Defence challenges jury on Colin Mitchell in Riverhead quarry trial: 'How can you be sure?'

Colin Jack Mitchell is on trial for abduction and assault. Photo / NZME

The jury tasked with deciding whether Colin Jack Mitchell is guilty of kidnapping and assaulting a woman at a West Auckland quarry have been given a simple message by the defence - "you must be sure".

In February last year Mitchell allegedly kidnapped an intoxicated 23-year-old woman as she walked home from a bar on Karangahape Rd.

He then allegedly drove her to a deserted quarry at Riverhead and assaulted her.

He intended to sexually assault her, police allege, but she escaped.

Mitchell has denied charges of abduction, wounding with intent to cause grievous bodily harm and assault with intent to commit sexual violation.

But he says police got the wrong man and he is innocent.

Mitchell's trial in the High Court at Auckland is in its third week.

Crown prosecutor Kirsten Lummis gave her closing address, spanning about two hours, earlier today.

She said there was no doubt for the Crown that Mitchell was the man who kidnapped and assaulted the woman last year.

She said Mitchell's explanation of his whereabouts that night and how his DNA was on gloves at the scene of the attack were "fanciful" and "a moving feast" of fabrication and implausibility.

This afternoon Mitchell's lawyer Mark Ryan gave his closing address, rejecting the Crown case point-by-point.

He reminded the jury of their duty and reminded them that neither his or the Crown closing addresses could be taken as evidence.

"You must reach your verdict solely on the evidence that you have heard and seen in this courtroom - nothing else," he said.

"You're not allowed to speculate, you're not allowed to guess what may have happened."

Ryan said suggestions on what "might have happened" by the Crown were not relevant.

The jury must make their decision based only on the evidence they had heard and seen from witnesses.

He invited them to write beside each charge "can I be sure?".

"Because that is the test," he said.

"The defence case is that it wasn't him, it wasn't his car," said Ryan.

"And to find Mr Mitchell guilty, you must be sure that the Crown have proved their case."

Ryan said the "nub of the case" was the gloves found at the scene of the offending, with his DNA on and inside them.

"It's no secret Mr Mitchell's DNA was on the gloves, the issue is when it got on there, how it got on there and how those gloves got to Riverhead," he said.

Mitchell yesterday gave evidence in person, saying he was at home the night of the attack watching a movie before going to bathe his legs in the water at Onehunga, then driving to several parks in Avondale.

He said he did not go anywhere near Great North Rd, where the 23-year-old was last seen, and certainly did not visit the quarry that night.

He further stated that he had tried on a pair of gloves at The Warehouse that were identical to those found at the attack scene.

However, he did not purchase them.

Ryan went through the case with jury - rejecting numerous points that the Crown said fingered Mitchell as the offender.

He said the victim was drunk and unconscious and had no memory of being kidnapped or being taken to Riverhead.

There was no evidence in Mitchell's car linking her to him.

And Ryan said there was no actual proof or forensic evidence that Mitchell's car was the one captured on CCTV footage on the night of the alleged assault.

"You cannot be sure," he said to the jury of his client's involvement, based on the Crown's evidence," he said.

Ryan said there were more than 130 cars similar to Mitchell's that had not been checked.

"How can you be sure that (the victim) was inside Mr Mitchell's car?

"Because you have to be sure of that.

"In the absence of any evidence whatsoever that (the victim) was in Mr Mitchell's car, you cannot be sure."

Ryan went on to say the cellphone polling data, which placed Mitchell near the scenes of the kidnap and assault, and the CCTV footage presented by police was unreliable.

He said there was absolutely no evidence that he assaulted the woman with his own pool cue, as stated by the Crown.

And, he and further challenged the DNA evidence around the gloves.

"People of the jury, probably the ladies, how often do you go and try on a bikini, a bra, a top and you don't like it so you put it back on the rack?" he asked.

"Your DNA would probably be on that item … and someone who purchased it later would be walking around with your DNA on it."

He said on that basis, how could anyone be sure Mitchell was the one who transported the glove to Riverhead.

"There is no evidence to suggest that it was Mr Mitchell, with the pool cue, in the quarry … so you can't be sure on that," Ryan said.

He said if jurors looked at the case "honestly and dispassionately" they would be "left with a reasonable doubt".

He said the strands of rope that the Crown was relying on to convict were simply not strong enough.

Ryan said Mitchell was facing "serious charges deserving of serious consideration by the fact finders".

"Dispassionate, analytical review of the evidence must leave you in some doubt.

"You cannot be sure the Crown have proved their case.

"If you have a doubt you must find Mr Mitchell not guilty."

The case has now been adjourned for the day.

Tomorrow morning Justice Sally Fitzgerald will sum up both sides of the case for the jury and instruct them on the deliberation process.

They will then be sent out of court to reach a verdict.