Dr Dempster – These facts from his own evidence at retrial - The Crowns primary expert destroyed any suggestion that Robin’s death was not suicide (list below taken from pages 271-273 Trial By Ambush – Joe Karam.
• That Laniet Bain could have been making gurgling noises when David arrived home from his paper round if Robin had shot her three times in the head 15 or more minutes before David got ome, and that the Crown had overstated matters in the first trial as far as his evidence was concerned on this issue.
• In a further matter that will be discussed in relation to the death of Laniet and the gurgling evidence, Dempster agreed that he did not examine the bullet fragments from Laniet’s head or the bullet fragments found external to her body. He accepted that if these bullet fragments contained white fibres, it meant that the bullet must have been fired through an intermediate target of white fabric and that when that happens this can cause unusual entry wounds like the one in the top of her head.
• That if Stephen Bain, lying almost naked on the floor in the freezing house, had been killed by David about 4 a.m. as the Crown postulated, his body would have got cold much quicker than Margaret, Arawa and Laniet.
• Dempster was aware of reports that showed that right-handed people sometimes shot themselves in the left temple when committing suicide. One report indicated that this occurred one in every eight times and that it was perfectly feasible that Robin Bain was one of those eight.
• That the wound to Robin Bain was a contact wound.
• That contact wounds to the head are in 90 percent of cases the result of suicide. Putting it another way, fewer than 10 percent of contact wounds are the result of homicide.
• That suicide by robin Bain in any or all of the positions demonstrated by the defence was perfectly feasible and did not require any contortions of the body.
• That when he first entered room A where Robin Bain’s body was found, he could hear the whirr of the computer fan, making untenable the proposition that Robin came in and knelt down to pray unaware that someone was behind the curtains where the computer was located.
• Based upon the new evidence that he had put to him from defence pathologists Prof Cordner and Dr Chapman, he accepted that the site of entry and the angle and trajectory of the shot were the fact quite normal and did not exclude suicide at all.
• He agreed that the test firing results done with the rifle matched his original measurements of the wound to Robin Bain.
• That when he examined Robin Bain’s gunshot wound he noticed a number of skin defects including blackheads and that those sorts of things are hard to distinguish when just looking at photos.
• That if the live bullet found on the floor beside the rifle had got there as a result of a misfeed, that was hardly compatible with homicide because a person, Robin Bain, would be very unlikely to just stand there while a killer cleared the bullet and reloaded.
• There was nothing in the way Robin’s body was lying when he was discovered that contradicts the photographs showing the various positions in which he may have shot himself.
• That the blood splash on the index fingernail of Robin Bain could have got there as a result of Robin Bain shooting someone else.
• That none of the blood on Robin Bain’s hands had been tested and that if any of that was the blood of anyone other than Robin, it would have dramatically changed his view of what happened.
• He was very concerned that two samples collected from Robin Bain’s hands had been destroyed.
• The bruise/abrasion on the back of Robin Bain’s hand had happened sometime in the 12 hours between nightfall the previous day and his death.
• He accepted that the red staining running around the top of the left thumb of Robin Bain was likely to be blood and similarly with the red smear on the base of the thumb, and that neither of these was collected as a sample.
• He said that the Crown thesis relating to 400 ml of urine in Robin’s bladder missed the point. He accepted that he was not a urologist and it was a complex area of medicine. He accepted that the important point as put to him was the way the bladder functioned rather than the amount or quality of liquid retained and also that the urge to urinate can be overridden by external events.
Dr Dempster before the decision to hold a second trial was expressing his serious doubts about the claims made by the Crown ‘that only the killer could have heard Laniet Bain Gurgling’ etc.
Letter from Dr Dempster to Robin Bates, the Crown Prosecutor, 16 May 2007.
Before any decision is made with respect to a retrial or otherwise for David Bain I feel that I should raise with you, a component of my evidence in the original trial, on which events subsequent to the trial have influenced my opinion.
It is as to whether Laniet could have continued to have respiratory activity at the time when David returned from his paper round. Assuming the alternative proposition that Robin was the killer, one would have to allow 15 min or so for him to have cleaned up after the shooting.
Subsequent to the first trial, I was the pathologist in the case of a motor vehicle crash in Kaikorai Valley Road. In that case the driver of the vehicle suffered an injury which almost completely transacted the lower brain at the point below where Laniet suffered, what I believe, was the fatal gunshot injury. The victim in the crash was reported by the ambulance officer who attended the case, about 15 minutes after it occurred , to be making a few gasping respirations when they arrived at the scene.
As a result of this case, I do not feel that I can now express a firm opinion that Laniet could not have been heard to have been making gurgling noises at the time David returned from his paper round. It is impossible to determine conclusively, the precise effect on the nervous system of any single gunshot wound unless it completely destroys the medulla or hindbrain.
At the time of the trial I felt that prosecuting counsel, as reported, placed a greater emphasis on this point than I would have preferred on the basis of my evidence. I did expect, however, that my evidence, which I assume was scrutinized by the defence pathologist from the Victorian Forensic Institute, would have been challenged, if he saw any issues in it to which he took exception. Similarly other pathologists who had scrutinized my evidence in reviews of the case have not, to my knowledge, raised specific concerns.
For what it is worth it is my opinion that a lot of the scientific evidence which was presented, not permitted to be presented (such as the ESR report on the splatter pattern on the curtain) or subsequently raised as issues by the defence (such as the length of Robin Bain’s arms), should also be critically reviewed prior to any decision concerning a retrial.
Footnote To This:
I had been critical of Dempster early on in the re-trial, primarily because of the information 'fed' from the Medical School at Otago University. And because of the other pathologists called by the Crown who endeavoured to offer 'expert' opinion contrary to the distance Dempster testified that the rifle had been from Robin's temple at the time of the gunshot. It was revealed however, both at that the trial, and more completely above that Dempster was not an 'all cost's Crown witness. He was a witness to the truth, willing to consider other opinions and modify his own accordingly if so influenced. Between the lines of his letter above it is clear to me, that he had doubts that David should be retried and not just discharged. But of course the Crown weren't listeniing. I apologise to Dr Dempster for what I wrote earlier, and before I understood he, almost alone it seems now, was true to his profession and his committment to forensic evidence.