Critique of baby shaking prosecutions raises troubling response

The response of Victorian forensic scientists to a critique of their methods in assessing so-called baby shaking cases shows that there is some disagreement among those in this field. Perhaps this ought to be the trigger for a much-needed independent inquiry and review of the use of forensic science and evidence in the criminal justice system. The decision of attorneys-general across Australia to abandon such a review, commissioned in 2019, should be reversed immediately.

As The Age has revealed, an article by Dr Chris Brook, published in 2019 in the Australian Journal of Forensic Sciences, took issue with a 2018 conviction of Joby Rowe, who was jailed for nine years for the homicide of his three-month-old daughter. The case involved the evidence of forensic pathologist Dr Linda Iles and forensic paediatrician Dr Jo Tully. Their evidence was based on a “triad” of internal head injuries – bleeding in the brain, retinal haemorrhage and swelling of the brain – as the cause of death.

Dr Chris Brook, astrophysicist and critic of shaken baby syndrome.

As The Age reported, “the diagnosis that ‘triad-only’ injuries are caused by the violent shaking of a baby is now hotly contested globally. Proponents claim the triad is conclusive of abuse, while detractors say faulty science means such convictions are unsound.”

Dr Brook is one of those critics . After correspondence,the article was pulled from the Journal website. Whether Drs Tully and Iles on the one hand and Dr Brook on the other are correct, or if both have valid points, is a matter that seems unresolved. But then it is not unusual in science to have disagreements between professionals over such issues as methods and theories.

The concerns about forensic evidence and science in the criminal justice system is, however, not new. There have been with rumblings of doubt in the medical and legal world, including judicial comment, in recent years.

The response by a senior Victorian prosecutor, Ray Gibson QC, to this controversy over the methodologies and theories in so-called shaken baby cases fails to grapple with the essence of the issue. According to Mr Gibson when an expert witness “gives an opinion, they are subject to cross-examination. It’s open to scrutiny, it’s open to be contradicted by another expert giving a contrary opinion. If we as the prosecution can’t exclude that then the prosecution fails.”

Joby Rowe was jailed for nine years over the death of his baby.

This reminder breezes over the issue of the president of Victoria’s Court of Appeal, Chris Maxwell, has identified as the “scientific illiteracy” of those who participate in a trial. Justice Maxwell has for some years expressed his concern about “the problem of unreliable science and wrongful convictions” and their effect on the criminal justice system. In his 2017 paper, Preventing Miscarriages of Justice: the Reliability of Forensic Evidence and the Role of the Trial Judge as Gatekeeper, he notes that the responsibility for ensuing the reliability of evidence “lies with judges and practitioners, in particular prosecutors”. Justice Maxwell’s concerns are well founded.

In July 2019 a ground-breaking and disturbing analysis by a researcher at the University of Sydney led by Dr Jason Chin, a law and psychology lecturer, found after examining 30 forensic science journals that “these journals aren’t requiring authors to conduct their research transparently, such as by posting their data online for others to scrutinise. These are the closed practices that in other fields contributed to studies showing medicines worked when they didn’t but in forensics, this science is used to put people behind bars.”

Forensic science practices and methodologies, like all forms of science, need regular independent review.

That is not to say Dr Iles and Dr Tully were wrong, and Dr Brook right, it is just that if there is real disagreement about something so critical as forensic evidence in the criminal justice process Victoria’s Attorney-General Jaclyn Symes should go it alone on such a review if her counterparts across the nation refuse to allow the national review they commissioned two years ago to begin its work.

At the very least, surely there should be a pause in current prosecutions in cases where a person is charged in relation to the death of a child and where the state relies on hotly contested methods and theories such as “triad” evidence so that experts like Dr Iles and Dr Tully and colleagues can take stock of the state of the science.

Greg Barns SC is a barrister and National Criminal Justice Spokesman for the Australian Lawyers Alliance.