Blood on Robin's hand was not incriminating

1. Joe Karam claims that some of the blood on Robin’s hands, specifically that blood which appears to be coagulated remnants of blood washed off the hands, belongs to Stephen and that the blood got there from wearing the bloodied gloves found in Stephen’s room.  He repeatedly claims that the Crown pathologists in the retrial determined that at least one of the marks was sustained within the 12 hours prior to Robin’s death.  This is not true as we shall see.

2. In the Laws / Karam debate on 6 August 2011, Karam claimed that the blood on Robin’s hand proved that he wore the gloves that the killer wore and therefore that Robin is the murderer.  He also claims that no one provided an explanation for the blood on Robin’s hands apart from his. (audio):

Audio transcript: Joe Karam: Now, as to Robin killing anybody else in the family. Robin Bain’s hands, and particularly his left hand, again this is all forensic evidence that the jury saw in the trial, that photos were up on all of the computer screens throughout: his left hand was smeared with blood, and Michael you may wish to look at me while I’m doing this because the evidence in the trial was: blood down the back of his little finger; blood on the heel of his thumb on the inside of his palm; blood on the outside of the bottom of his thumb; and blood around the top of his thumb.  These were all residual smears of blood as they were described by the forensic, and I’ll show you the pictures if you don’t believe me. Then there was blood under Robin Bain’s finger nails. Then there was also blood smearing on the back of these two fingers, and there was a blood smear on his right hand as well. Now, this blood, nobody has ever been able to explain how it got there. Certainly the Crown and they had three prosecutors, including the Deputy Solicitor-General Cameron Mander: at the trial in their closing address they could offer no explanation for this blood simply because there isn’t one. The only explanation is this is the hand that wore the bloody glove and that’s how it got there. There’s no blood under David Bain’s fingernails. Secondly, Michael mentioned injuries and wounds on the back of Robin Bain’s hands. Now, I’ll just point out too: none of the blood on these hands was seen by the first jury. Dr Dempster brought these photos in not long before the second trial. In the first trial Robin Bain had a number of um small abrasions on his hands, which were all said to be more than 24 hours old. At the second trial, Dr Dempster again brought in another photo which there was a large abrasion, sorry, about a 3mm abrasion and about a 20mm bruise surrounding that abrasion on the back of Robin Bain’s right-hand knuckle. And Dr Dempster and the other Crown pathologist Dr Thompson’s evidence was that this was only hours old before Robin died. So sometime in the overnight, Robin Bain got a very big abrasion and a bruise on the knuckle of his right hand. Again Michael I’ve got the photo here. Now, Michael you may well be asking: how is it that you don’t know this when you followed this trial on the internet? Well what you need to do is ask your colleagues in the media why it is that they trotted out nonsense against David Bain…

And then for a second time during the debate (audio)

Audio transcript: Ignore that now you’ve made a big play of the fact that there was a recent bruise on the left of robin bains hands  no on his right hand – on his right hand - on his knuckles  - woopedoo I mean you could have got that in any way around the house at all. when david bain was asked about bruises on his face he couldn’t provide an explanation – OK now let’s give Joe and opportunity to respond to that one - well doctor dempster described the injury which you keep saying is like a mosquito bite and I’ve got the reference here, as a 3mm abrasion surrounded by a 25 mm bruise that was at the very oldest 12 hours old, which puts it at 7 o’clock the night before thereabouts 6.30 7 o’clock the night before; so overnight he has had to have go this on his hand now imagine if david had got that on his hand you’d be crying from the treetops…

3. Karam says the same in Trial by Ambush::

3.1.        From Trial by Ambush, p 235 “At the retrial Dempster described this wound as having occurred between the time of Robin Bain's death and 12 hours before. This assessment was put to the other Crown pathologist Dr Thomson,who agreed with Dr Dempster.  So here we have two Crown pathologists giving evidence at the retrial that Robin Bain had suffered a significant injury on the fist of his right hand ,after nightfall, between 6.30pm on the Sunday night and his death on the Monday morning “.

3.2.        From Trial by Ambush, p 273, in relation to Dr Dempster’s testimony: “The bruise/abrasion on the back of Robin’s hand happened sometime in the 12 hours between nightfall the previous day and his death.”

3.3.        From Trial by Ambush, p 416: “Perhaps the most compelling matter that incriminates Robin is the blood on his hands and the blood (if the blood-like substance was blood) seen in his fingernail scrapings,”

3.4.        From Trial by Ambush, p 419: “A man with a bruise and abrasion on his right fist that had been sustained in the hours before his death.”

4. He makes similar claims in Bain and Beyond, page 14: “There is now a substantial body of expert opinion from pathologists of great experience and reputation in Australia to exactly the opposite effect.”

However:

In the 2009 retrial, during evidence in chief, Dr Dempster states that determination of age of injuries is very difficult by photograph and does not think that the bruise was inflicted immediately prior to his death (Q = counsel; A = Dr Dempster):

Q.        Can we turn and deal with your examination of Mr Bain’s hands please.  What did you observe?

A.        There were a number of relatively minor injuries on the hands.  The first one was an abrasion three millimetres in diameter over the mid-portion of the right metacarpal bone, which is in this area here, and it was associated with a bruise surrounding – a bruise 20 millimetres in diameter.

Q.        Just pause.  Could we have photograph 4 of booklet 601 please.

A.        Actually it is not a great photograph but you can see the bruise here, a fresh bruise surrounding this area which looked as though it was a little, a little dry.  There was no evidence of recent bleeding on it, and there was no bloodstaining of the surrounding tissues.  I formed the opinion that it was a relatively recent bruise.  I couldn’t be dogmatic about its duration but I thought it was not or hadn’t been inflicted immediately prior to his death.

Under cross examination Dempster said that the wound could have been anything between one hour and 24 hours old and it was not a significant injury.  He is then cross examined about hystology and answers with the phrase "we probably can't tell whether it's within a few minutes or up to 12 hours" which appears to be a hypothetical reference to the accuracy of the hystology method and is not a direct answer to the question: "How old do you think the injuries are?". From the retrial transcripts.

Q.        Now I want please to come to the various injuries to Robin Bain please.  I would like the photograph please PMR38 to be put on the screen.  Now you have commented on a number of the injuries but take the largest mark there, the largest injury seen?

A.        Yes.

Q.        Can I put it to you that you cannot exclude the possibility that this injury was suffered right up until minutes before death?

A.        I can't exclude that it is a recent injury, it's stated, I think, that determining the age of injuries, either by examination with the naked eye or microscopic examination, is quite difficult.  It doesn’t have blood clot adherent to it, it's a bit dry, it's a bit depressed, but I would accept that it and the surrounding bruise that we see here as the bluish area of discoloration surrounding it, is relatively recent.  I can't say whether it's occurred within the last hour or within the last 24 hours.

Q.        To be reasonably accurate with abrasions and bruises and things like this, I am instructed that you need to do an hystology, would that be right?

A.        Well that’s debated, there is a recent text book on –

THE COURT: 

Q.        Just before we go on tell us what is hystology please?

A.        Hystology is taking a lesion, embedding in a wax block, cutting thin sections and staining it with hystological stains and examining it down the microscope.  That will show whether there is any evidence of inflammation or repair.

Q.        You were asked whether that was required – whether that is the way to examine a wound such as this – the best way of doing it really?

A.        It can be done, it's not necessarily going to in my view tell us whether it's a very recent wound or perhaps 12 hours old.  There are some – there is some literature going back to the early 1970s where the author is relatively dogmatic about it, but there’s a text book by Don Mack and others published in 2005 which says that there are many ways of assessing the age of injuries and none of them are particularly reliable.  Including microscopy I might add.

CROSS-EXAMINATION CONTINUES:  MR REED

Q.        So I just put it to you Doctor that we are left in a position really that you can't tell whether it's within a few minutes or 12 hours can you?

A.        Yes and I doubt even with hystology that we could have.

Q.        But that is a fair way of putting it isn't it, even with hystology we probably can't tell whether it's within a few minutes or up to 12 hours, we just don’t know?

A.        That’s correct.

 

Kenneth Thomson also testified that he felt the injuries were between about six and twelve hours old (Q = counsel; A = Thomson):

A.        The hand injuries in photographs 4, 5 and 6 –

Q.        Yes, of which booklet please?

A.        – and 8.  They all look remarkably trivial and dried, it’s very hard to age injuries like this.  They’re the sort of thing one does in the garden every day and they heal quickly, so, I wouldn’t have said that any of them have been actively bleeding in the last period before the body was removed, they all look as though they’ve been there a bit longer than that. 

Later he concedes that one mark might be recent but he says it might be six to twelve hours old which is too old to fit into the plaintiff’s theory about it being sustained during a fight with Stephen:

Q.        Look down to the left of the photograph, there appears to be quite a recent wound, abrasion or whatever you call it on the bottom left of the photograph, do you see that?

A.        Yes.

Q.        That one?

A.        Yep.

Q.        It seems to be quite recent, doesn’t it?

A.        Yes it’s – it’s moist and it hasn’t got a scab over it.

Q.        Right, indicating?

A.        A recent injury, the last six to 12 hours.  I’d have to –

In the retrial the prosecution posed the idea that the marks on Robin’s hands were caused by work he had been doing the previous weekend in fixing the guttering.  The plaintiff’s statement in the audio transcript that the prosecution gave no other explanation is untrue. From the retrial transcripts:

Q.        And you covered this partially in talking to Ms Cull, your instructions in relation to the marks on the hand from what I understand from what you said, was to see if they would fit some sort of tooth formation?

A.        Trauma from teeth.

Q.        Yes, and so you started with the marks in the photograph and you then took at random a youth, 16-year-old cast of somebody and you put the two together, is that correct?

A.        I studied the – yes I studied the random cast.

Q.        And you formed the conclusion that it was possible for these marks to be made by that sort of cast?

A.        It is possible.

Q.        And it is possible also isn’t it for those marks to have been made by many, many other things that we encounter in our daily lives?

A.        Yes it is.

Q.        As simple as gardening?

A.        Ah, I don’t know.

Q.        Were you told that Robin Bain had been fixing spouting during the course of the weekend prior to his death?

A.        No.

Q.        Even if you haven’t fixed spouting, you would be aware of where it is on the house and what’s required to do that and the nature of the materials that are being dealt with, for example corrugated iron and so on?

The alleged wounds on Robin’s hands are an important part of Karam's theory for Robin’s guilt in the murders since, if they can be considered only a few hours old at the time they were examined, then it is possible they were caused in the fight with Stephen.

Joe Karam got the assumptions he made on page 203 of David and Goliath regarding blood on Robin’s clothes wrong.  He makes a similar assumption regarding the blood on Robin’s hands.  The weekend before the murders, Robin Bain worked on the spouting of the house. Such an activity invariably results in injuries to the hand.  A towel was found with Robin’s blood on it, an item which cannot be associated with the murders, but indicates that he had sufficient bleeding to warrant some attention.  According to their neighbour at the time (from the retrial transcripts):

Q.        Did you just leave the guttering then as a problem, or did you pursue that a bit more?

A.        Well I had to eventually go to the council and have the council deal with it, I wasn’t, you know, nothing was, it wasn’t advancing any further than just conversation so I had to rely on the council to deal with it.

Q.        So coming to the weekend before the murders next door, did you see anything of the family on that weekend?

A.        Yes I saw them on, you know, the ladders up against the side of the house, and they were –

Q.        Pause there.  When you say you saw them, who did you see on the ladders?

A.        I recall seeing Robin and Stephen and David. 

Q.        The male members?

A.        Yes.

Q.        What were they doing, if anything, about the spouting?

A.        Well I didn’t take much notice, but I mean I was aware of the fact that they, you know, I was pleased to see that something was happening, so I mean, my recollection was that they were working on it themselves, they didn’t have anyone in professionally to repair it but, that some effort was being made to repair that offending bit of spouting, so...

Q.        Was that just going on the one day or on both days over the weekend?

A.        It was both days of the preceding weekend of the shootings, but my recollection is that it was the Saturday of the weekend of the shootings, it was the Saturday but not the Sunday but I could be....

Karam made statements in David & Goliath about the evidence of blood on Robin’s clothes without reference to the facts and the statements later proved to be incorrect.  He made statements in the media about the evidence of blood on Robin’s hands without reference to the facts.  There is no proof that what he says is correct regarding the blood on Robin’s hands.  The blood could have an innocent explanation related to the fixing of the spouting at the weekend.