Stephen Bain fought killer before being strangled, court told

Jacques Legros worked closely with Milton Weir (pictured) who has strongly denied planting any evidence after the killings. Photo / Pool

David Bain's younger brother Stephen likely fought his killer until being strangled with his own t-shirt and shot in the head, the High Court at Christchurch has heard.

Pathologist Alexander Dempster gave evidence today about examining the bodies of David Bain's parents and three siblings after they were shot dead on June 20, 1994.

Bain is on trial in the High Court in Christchurch for murdering five family members, but his lawyers say it was his father Robin who shot the rest of the family before shooting himself.

Dr Dempster told the court today that while David's mother appeared to be shot as she slept in her bed, Stephen, 14, appeared to have fought after being shot a first time until being incapacitated.

Stephen was found dead on the floor of his bedroom, on his left side, with his right leg straight, but flexed at the hip, and his left leg drawn up underneath. The room was in "considerable disorder" after a struggle that left blood throughout the room.

Dr Dempster said one bullet found in a pillow appeared to have grazed Stephen's head, causing profuse bleeding.

"My interpretation was that the bullet passed through the left hand and then grazed the head and then ended up in the pillow," Dr Dempster said.

"I think that would have probably accounted for a lot of the blood present at the scene."

Stephen would have been able to continue to fight after this wound. However it is likely he was then strangled by his own t-shirt, leaving injuries to his neck.

"He has been effectively strangled. I would have thought most probably to the point of being incapable of continuing the fight, and has then has been shot finally with a bullet though the top of the head."

Dr Dempster said it appeared David's mother, Margaret, was shot through the eyelid while she slept in her waterbed.

Silverfish were found on Margaret's body, which was warmer than the rest of the bodies, Dr Dempster said.

He said he found David's room the tidiest in the house. He noticed a large amount of rifle ammunition on the floor and a pair of glasses on a chair that had one lens missing.

He noted that Robin Bain's hands were not in bags when his body arrived at the mortuary, when using bags would have been normal procedure for preserving evidence. Bain's lawyers have already questioned police over their failure to protect Robin's hands for gunshot residue testing.

Dr Dempster said he had in mind taking the core body temperatures from the bodies, but the delay in time getting into the Bain house to do the examinations on the day of the killings meant this was not going to be useful.

"Determining time of death is not something you can do with great accuracy."

Earlier a detective who worked in the homicide said he would have had no problem reporting a police colleague if he had seen him planting evidence in the Bain family home.

Detective Jacques Legros told the court that he did not think that Detective Sergeant Milton Weir would stoop as low as planting evidence.

Mr Legros said he spent much of his time examining the Bain house in the bedroom of David's brother Stephen, with Mr Weir who was the head of the crime scene.

Police have given evidence of a bloody and violent struggle, and a spectacle lens found in Stephen's bedroom, which Crown prosecutors say came from David's glasses during the struggle.

Mr Weir has strongly denied planting any evidence.

Mr Legros said he worked very closely with Mr Weir during the systematic examination of Stephen's room in the days after the killings.

"We had to work in a very small and confined space which was very cluttered. We had to be very careful about where we put our hands and feet and everything. We were basically working shoulder to shoulder."

Mr Legros said he was there when Mr Weir uncovered the lens and said it was photographed, recorded and carefully packaged to preserve it as evidence. He said it appeared to be a left-hand lens, and "not dusty at all" - in reference to a suggestion previously made that the lens may have been in the room for some time.

Asked by Crown prosecutor Kieran Raftery what he would have done if he had seen Mr Weir planting evidence, he said he would not have stood for it. He would have reported it immediately to his superiors.

"I would have no problem of denouncing him so to speak."

Asked by Bain's lawyer, Helen Cull QC, if he could rule out that Mr Weir planted the lens when he was not there, Mr Legros said: "I can't exclude it 100 per cent. But I have worked with Detective Sergeant Milton Weir for a period of time and I don't believe he would have stooped that low."

Asked by Ms Cull if it would be highly unlikely for someone to plant evidence right in front of him, he said: "I would say near impossible".