Two McCarthy killers: defence

At the end of the Travis Burns murder trial yesterday, the jury heard a final twist on how Whangaparaoa woman Joanne McCarthy may have been killed.

Continuing his closing address in the High Court at Auckland, Burns' lawyer, Barry Hart, suggested it was possible that there might have been two men associated with a yellow ute seen at the scene that the defence says is the "key" to the murder.

Two sets of unidentified footprints were found at the address, he said.

Initially the men parked nearby and went on foot to the address.

During the violent assault on Joanne McCarthy, one of the men was badly covered in blood, said Mr Hart.

As the man would have been conspicuous leaving the house in bloodied clothes, an attempt was made to leave in the dead woman's car. But when that proved unsuccessful, his associate went to get the ute and drove to the address to pick him up. Mr Hart said the ute then drove to a nearby toilet block for the killers to clean up.

After hearing Justice Robert Chambers sum up as the trial entered its eighth week, the jury retired just before 4 pm to consider its verdicts.

At 9.30 last night the jurors were sent to a hotel and will resume deliberations this morning.

Burns, aged 32, is accused of aggravated burglary and murdering the 33-year-old kindergarten teacher with a hammer at her Little Manly home on November 12, 1998.

Mr Hart said the ute - for a long time the focus of police attention but never found - was the Crown's Achilles' heel.

"They cannot explain it away so the best they can come up with is to say it is a red herring."

The timing of events was one of the many crucial issues in the trial.

Joanne McCarthy was last seen alive at 11.35 am and was found dead in a bath of water at her home around 1.40 pm.

Burns maintained that he had not been to Whangaparaoa that day, something that was contradicted by a friend.

Burns said he was in Puhoi for three or four hours on the morning of the killing, planting out cannabis, before going to Milford and then to Mission Bay and St Heliers.

A yellow ute was seen at Joanne McCarthy's place around 12.50 pm when Burns was captured on the BNZ bank surveillance video in Milford, 30km away.

Mr Hart said that because of the "silent witness" provided by the bank video which gave Burns an alibi, the Crown was "pushing" evidence that death occurred in the first hour after Joanne McCarthy was last seen alive.

While a pathologist called by the Crown said death occurred in the first hour, a pathologist called for the defence said it was merely "guesswork."

Mr Hart told the jurors they should discount forensic evidence which showed that DNA found under Joanne McCarthy's fingernails was 300 billion times more likely to be from Burns than from any other man in the country.

He strongly criticised the Institute of Environmental Science and Research (ESR), saying its setup was "absolutely open for contamination and that is what happened."

Cross-contamination had already occurred in the case, he said, when forensic scientist Dr Sally-Ann Harbison coughed on a sample from the murder scene.

"I suggest it has happened again," said Mr Hart.

However, the Crown has strongly supported the ESR, saying it was highly professional.

Mr Hart also warned jurors to discount evidence from a former friend of Burns who told the court that the accused had admitted the killing. The witness was a "canary" prepared to say anything to ingratiate himself with the police because he was in "deep trouble."

Earlier, the Crown Solicitor for Auckland, Simon Moore, said bloody footprints at the scene came from a rare Rivergum Classic shoe - a brand of footwear owned by Burns - but Mr Hart said the sole was not unique.

Mr Moore had told the court that Burns put Joanne McCarthy's body in the bath to try to wash his blood off her clothing after she scratched him.

On the day of the killing Burns bought a first-aid kit, which the Crown said was to treat the wound but Burns said was to wrap round his head as a disguise for a bank robbery.

"Bizarre and crazy" though it seemed, said Mr Moore, the robbery bid was a "cynical" attempt by Burns to try to explain away his purchase of the first-aid kit.