Laniet Bain's gurgling explainable - pathologist

Dr Dempster agreed Robin Bain could have shot himself by resting the rifle on an object such as a chair. Photo / Pool

A pathologist giving evidence in the Bain murder re-trial says he cannot rule out that David Bain's sister Laniet was still making noises 15 minutes after she would have been expected to have died from gunshot wounds.

The matter has arisen over a statement by David Bain that he heard Laniet, 18, making a gurgling sound when he arrived back from his paper round at his Dunedin home on the morning of June 20, 1994, to find his family had all been shot.

David Bain, 37, is on trial for murdering his parents and three siblings, but his defence team are arguing that his father Robin shot dead the rest of the family before turning the rifle on himself on June 20, 1994.

An email from pathologist Alexander Dempster to Crown prosecutor Robin Bates was read to the court today in which Dr Dempster said he had become aware of a motor vehicle accident in which a person was reported to be making "gasping respirations" 15 minutes after the accident, which was considered non-survivable.

Dr Dempster agreed today with defence lawyer, Michael Reed QC, that the injuries to the person in the accident were more severe than those suffered by Laniet, though different.

He said in his email to Mr Bates that he could not express a further opinion that Laniet was not gurgling when David said he arrived home after the shootings.

Asked if it could not be excluded that Laniet was making noises 15 minutes after what would normally be expected to be death, Dr Dempster said he would generally agree with that.

He said he would somewhat surprised if she had survived after the gunshot wounds above her ear and on the top of her head.

"I can't rule out that she did survive for some period of time."

He agreed with Mr Reed that trying to determine when Laniet's gurgling may have occurred was "fraught with danger".

"There are never any absolutes in medicine."

Earlier today, defence lawyers said evidence will be given that a live bullet found near his father's body could not came from the alcove where prosecutors allege David fired.

David Bain, 37, is on trial for murdering his parents and three siblings, but his defence team are arguing that his father Robin shot dead the rest of the family before turning the rifle on himself on June 20, 1994.

Bain's lawyer, Michael Reed QC, today said a UK expert would give evidence that a live bullet found in the Bains' lounge, near Robin's body and the rifle, had been misfired.

This bullet was not in the adjoining alcove where the prosecution has said David fired the rifle at Robin, 58.

Mr Reed put it to pathologist Alexander Dempster that if David Bain had misfired the rifle, it was not logical to suggest Robin would have simply stood and waited for David to reload.

Mr Reed: "It's just plain barmy isn't it?".

Dr Dempster: "I'm not going to use words like barmy, but it's unlikely".

Evidence would be given that this bullet must have fallen from a rifle fired in the lounge, Mr Reed said.

If Robin Bain was standing, rather than kneeling, as the evidence suggested, Mr Reed asked what would have happened if Robin had shot himself.

Dr Dempster said he would have been immediately incapacitated and collapsed.

Yesterday Dr Dempster gave evidence at the High Court that the gunshot wound that Robin Bain suffered in the left temple was "very unusual" for a self-inflicted wound.

He said it was unlikely, though not impossible, that Robin committed suicide.

However, today Dr Dempster agreed that if Robin shot himself, he would likely have used positions different to those he showed on Tuesday.

Dr Dempster had demonstrated it was hard to pull the rifle trigger while holding the gun to his temple.

Mr Reed said today a pathologist from the United Kingdom who did an autopsy on Princess Diana would be among those saying that the site of the bullet wound in Robin's head would not be unusual for a suicide.

Mr Reed put to Dr Dempster that his demonstrations yesterday were unrealistic and unhelpful, because Robin would never have held the rifle up in that way to shoot himself.

Dr Dempster said: "I'm perfectly happy to accept the rifle could have been rested on a point such as a chair".

Mr Reed put it to him that it was ridiculous to theorise that Robin would have held the gun against his temple with his arm in that way he demonstrated.

Dr Dempster: "I can't comment whether it's ridiculous or not. It's just a possibility".

Mr Reed said experts in the United Kingdom would demonstrate how easy it was for Robin to have shot himself. Dr Dempster agreed, after viewing images of the UK testing, that it could be done.

In one image, a reconstruction was done with a person with the rifle having a foot on a chair.

Mr Reed: "It seems relatively easy to shoot yourself in that position if you so choose?"

Dr Dempster: "It could be done".

Mr Reed put to him it was much more likely that Robin would have chosen positions as illustrated in the images from the defence experts he was shown.

Dr Dempster: "One has to consider what a person in that situation would do. There's no certainty that an individual would follow a particular course"

Dr Dempster said statistics showed that one in eight people who committed suicide with a gun would shoot themselves in the left temple, where Robin Bain's wound was.

He agreed with Mr Reed he was not a ballistics expert.

Mr Reed: "Really these tests need to be done by a ballistics expert, don't they?"

Dr Dempster: "Ideally".

Mr Reed said a previous expert witness had stated it was more likely that Robin suffered the gunshot wound while standing up rather than kneeling. The Crown case in the past has been that Robin was kneeling when he was shot by David Bain.

A rifle magazine was found alongside Robin's body on its edge. Dr Dempster agreed with Mr Reed that he stated that the magazine had been moved or re-placed in the examinations of the Bain house.

The court proceedings had an early break this morning as one of the jurors broke into tears.