‘One miscarriage of justice is too many’: Top lawyer builds case for baby shaking rethink

6 hours ago 4

One of Australia’s best-known lawyers, former ACT attorney-general Bernard Collaery, has warned that wrongful shaken baby cases are damaging the reputation of the justice system and should prompt reform of Australia’s forensic medical agencies.

Collaery, a criminal defence lawyer who took on the federal government in the Witness K case, agrees with retired forensic pathologist Stephen Cordner that Australia must conduct an inquiry into the science underpinning the shaken baby syndrome diagnosis.

Bernard Collaery, who represented the accused in the Witness K case, and who successfully defended an early shaken baby case.

Shaken baby syndrome is a medical diagnosis that has become highly controversial overseas. Over the past four weeks, this masthead and its podcast Diagnosing Murder have told a number of emotional stories about children who have had apparent medical episodes misdiagnosed as abuse.

Parents have lost their children for years at a time to foster care or other child protection arrangements. Some have been charged, convicted and jailed based on medical testimony that elsewhere has been labelled “junk science”.

Former paediatric intensive care physician James Tibballs, a 43-year veteran of the Royal Children’s Hospital, has also urged a rethink, saying: “You see the start of it in North America – who knows where it will end up?”

The head of the federal parliament’s standing committee on health, Labor MP and former paediatrician Mike Freelander, acknowledged the controversy over the diagnosis, but said it was a state issue. Any federal inquiry should look at the child protection and child removal systems more broadly, he said.

Collaery said that, nationwide, there was “clear evidence that we’re failing to protect mothers and their partners, of good character, from totally unjustified suspicion”.

Collaery was the ACT attorney-general from 1989 to 1991. In 2001, he represented a young carpenter accused in a high-profile case of shaking his baby. The man was acquitted in a judge-alone trial by ACT Supreme Court chief justice Ken Crispin.

In his judgment, Crispin wrote: “It is difficult to envisage any circumstances in which a medical expert would be entitled to express an opinion that the injuries must have been inflicted deliberately because divining the state of mind of an unknown person would not fall within his or her field of specialised knowledge.”

More than two decades later, the expert opinions of forensic doctors who swear that injuries have been deliberately inflicted remain decisive in courts across the country.

“One miscarriage of justice is one too many,” Collaery said. “It’s an issue that shakes the community’s confidence in the law.”

Professor Stephen Cordner has called for an inquiry into shaken baby syndrome.

Collaery proposed an Australian Law Reform Commission inquiry on the use of science in courts and a new national forensic medicine authority to ensure forensic doctors were independent of police, hospitals and state governments.

“We need a centre of totally independent scientists who are well paid,” Collaery said. “There is a desperate need for independent forensic experts across the board … when they are close to the police zone of influence, that’s a problem.”

Sweden, Britain and several court systems in the United States have changed the way they approach these cases after becoming concerned at the quality of the science underpinning the diagnosis, which has contributed to well over 100 people being jailed in Australia since the 1990s.

A man in Texas recently had his execution halted over a court’s concerns. But in Australia there has been no systemic debate about the diagnosis, and forensic paediatricians argue it is settled science. Cordner has called for an “independent national or international medical-scientific-legal review”.

“Kabir” (pictured in his home) told his story to the podcast Diagnosing Murder.

Episode four of Diagnosing Murder, released this week, features parents “Kabir” and “Dipika” – whose real names cannot be revealed for legal reasons. They lost their child to foster care for 18 months.

The Victorian Health Department and the office of Premier Jacinta Allan have refused to engage on the issue.

Asked by this masthead if they were concerned at the recent revelations relating to the Royal Children’s Hospital, and if they were satisfied with the structure, independence and operations of its Victorian Forensic Paediatric Medical Service (VFPMS), the department failed to answer the questions. The VFPMS has been described as the “engine room” of the diagnosis in Victoria.

The questions the Victorian Health Department did not answer

Are you concerned at recent revelations in The Age and Sydney Morning Herald about misdiagnosis of abuse involving shaken baby syndrome in Victoria?
Are you worried that people are losing their children, or being wrongly convicted, based on a scientifically doubtful diagnosis?
Respected forensic pathologist Stephen Cordner and others are calling for an inquiry into these issues in Australia. Will the Victorian government institute such an inquiry?
Are you satisfied with the structure and operations of the Victorian Forensic Paediatric Medical Service, considering the recent criticisms from eminent people of the way it operates?
Do you have confidence that the Royal Children’s Hospital and its forensic medical unit are safe places to take their critically ill children?
Cordner has told us forensic doctors should be made independent from the Royal Children’s hospital to ensure the independence of their reports. What is your response to that?
What does the government say to people who claim they have been wrongly accused and/or convicted in Victoria?

The response:

Quotes attributable to a Department of Health spokesperson: “VFPMS and the Royal Children’s Hospital are high [sic] respected experts in the delivery of care for children and young people who they suspect are victims of abuse, assault or neglect. The safety, health and wellbeing of children remains our top priority and the care delivered by this statewide service is robust and best practice.”

The Health Department instead issued a two-paragraph statement saying: “VFPMS and the Royal Children’s Hospital are high [sic] respected experts in the delivery of care for children and young people who they suspect are victims of abuse, assault or neglect.

“The safety, health and wellbeing of children remains our top priority and the care delivered by this statewide service is robust and best practice.”

Allan’s office did not respond.

The children’s hospital has previously defended the VFPMS, saying its often complex work was underpinned by science which was constantly reviewed. Its doctors now prefer to call the condition “inflicted head trauma”.

In Victoria, VFPMS doctors train specialist police and child protection officials. When a case comes to the hospital, VFPMS doctors call in the same police and child protection officials.

Episode four of the Diagnosing Murder podcast reveals how the forensic doctors’ judgments continued to inform the police and child protection investigations in Kabir and Dipika’s case over more than three years.

Cordner, who spent 27 years as the head of the Victorian Institute of Forensic Medicine, has also called for forensic doctors to be independent from the hospital, describing the current arrangement as “tiger country”.

When asked whether things could change, Tibballs told the podcast: “The machine has got a huge amount of momentum.

“To change its course means changes on so many levels – in medicine and law, in the police, social workers, medical nursing – it’s just almost impossible. But it’s happening.”