Judge tells jury that to return a verdict of murder they must be sure the accused intentionally killed Millane by strangling her

Justice Simon Moore has summed up in the murder trial of Grace Millane in Auckland’s high court, telling the jury that while it is clear the defendant has repeatedly lied that is not grounds to convict him of murder.

Millane died on the night of 1 December 2018 after a Tinder date with the accused, a 27-year-old New Zealand man whose name is suppressed. He has pleaded not guilty to murder. It is agreed that Millane died by strangulation in the accused’s hotel room in central Auckland, and that he later buried her body in a suitcase in a bushland area west of the city.

The defence argues Millane died by accident during consensual strangulation. The prosecution says it was murder.

Grace Millane trial: 'You can't consent to your murder,' prosecutor says in closing Read more

Moore applauded the jury for their “conscientiousness” during the three-week trial, and said while they may be swayed by sympathy for the Millane family and their daughter who “should have been here on a happy and exciting adventure” they must put their emotions aside in their assessment of the case.

Moore also advised the jury to ignore their personal feelings about the accused’s lifestyle and sexual interests, as neither was grounds for a murder conviction, or should influence their decision.

Moore said that to convict him of murder the jury would have to be convinced “beyond doubt” that the accused had intended to kill Millane by using reckless pressure applied to her neck.

If they could not be sure of these facts, they must return a verdict of not guilty.

In summing up the evidence of three medical experts, Moore said there was a consensus that the pressure applied to Millane’s neck must have been strong and sustained, and that if the pressure had been released in the five to 10 minute window it took her to die, being young and fit it was likely she would have recovered.

“Was this some gentle loving breath-play, or was it something much more than that?” Moore said, adding that both forensic pathologists had agreed death by erotic asphyxiation was “rare” around the globe and not something commonly seen as an accident of consensual sexual play.

Both sets of lawyers had presented evidence to the jury on how alcohol could have affected Millane and the accused. Moore said this was an important point for the jury to consider in reaching their verdict.

“You need to bear in mind the affect alcohol may have had on the accused’s state of mind,” Moore said.

“People may say and do things when they’re drunk that they wouldn’t do when they’re sober. But ... drunken intent is still an intent. Intoxication is not, in itself, a defence.”

Moore said it was the prosecution case that the accused’s conduct following Millane’s death was “extremely instructive” as to his conduct before she died. The prosecution had raised the accused’s photographs of Millane’s corpse, his viewing of porn while she lay dead in the room, and internet searches for “waitakere ranges’, “hot fire”, and “rigor mortis”.

“The essence of [prosecutor] Mr Dickey’s submission is that this was a man who was cool, calm and in control … he knew what he was doing,” Moore said.

“Mr Dickey says this evidence speaks of a person who has killed with murderous intent.”

Moore instructed the jury to carefully consider the issue of consent, saying being severely intoxicated took away a person’s ability to consent, as did being unconscious.

“No person under our law may consent to their own death … consent can be revoked at any time,” Moore said.

“If Miss Millane was rendered unconscious by the pressure applied to her neck but the accused continued after she passed out … she was no longer consenting.”

Moore said for the jury to return a verdict of murder, they would have to be “sure” that the accused caused Millane’s death by applying pressure to her neck, and that he was guilty of “culpable homicide,” meaning “blame-worthy homicide, the blame-worthy killing of one person by another”.

“This is where the concept of murderous intent comes in.” Moore said.

“It is important you do not confuse intention with motive. The crown doesn’t have to prove motive, the crown doesn’t have to prove why someone acted in a particular way. Intention, on the other hand, is what result the person intended to bring about – not why they intended to do it.”

A large media contingent was stationed in the Auckland high court, including a significant international media presence, waiting for a verdict to be reached. Moore instructed the jury to take their time in making their decision, and if a unanimous verdict was not reached by the end of the day, court would be adjourned until Monday.

Millane’s parents, David and Gillian, have remained for the whole of the murder trial and were planning to be in the room for the jury’s decision.