Shaken baby syndrome on trial: Judges to re-examine homicide conviction 

The Age

By Chris Vedelago 

Republished 5/9/2021

 Victoria’s highest court has flagged serious concerns about the scientific diagnosis known as “shaken baby syndrome”, which has been used to prosecute and jail a number of young men for child homicide and abuse in recent years. 

The Court of Appeal has ordered a hearing into the reliability of the 50-year-old forensic theory as part of an appeal by Jesse Vinaccia, 28, who was jailed in 2019 for killing his girlfriend’s 3½- month-old son. 

 Joby Rowe, Jesse Vinaccia and Jesse Harvey have launched appeals that will test the science underpinning shaken baby syndrome.

The outcome could have major repercussions nationwide for past convictions for childhomicide and assault — as well as child protection proceedings — where experts have relied onthe diagnosis as a basis for prosecutions or other action.

The Age is aware of at least two ongoing criminal prosecutions in Victoria that are now likely tobe delayed until the Court of Appeal makes a ruling that might ultimately affect the outcome ofthose cases.

At the centre of the controversy are findings by some forensic experts that an infant must havedied as a result of violent shaking if an autopsy reveals a “triad” of internal head injuries –bleeding in the brain, retinal haemorrhage and swelling of the brain – even where there are noexternal injuries such as bruises, cuts or broken bones or a known history of abuse.

Other scientists say the same symptoms of the triad can be a result of non-violent medicalcauses, including complications of otherwise silent birth-related head injuries, geneticconditions, infections and bleeding disorders.

The “triad-only” diagnosis has become controversial internationally but remains widelyaccepted by Australian law enforcement, forensic specialists and child-abuse experts.

The issue also raises broader questions about the way scientific evidence is used in courts, withformer prosecutors, judges and legal experts saying they are concerned that the use of disputedor untested forensic and medical opinions risks causing miscarriages of justice because of theway juries understand scientific evidence.

In 2020, Vinaccia became the first person to file an appeal challenging his shaken babysyndrome conviction, in part, on the basis the science is fundamentally flawed. Vinaccia hadbeen found guilty of killing his girlfriend’s son, Kaleb, following forensic testimony the babyshowed clear signs it had been shaken, even though experts were unable to substantiate exactlyhow the abuse occurred.

The prosecution also relied on statements from Vinaccia that he might have put Kaleb into hiscot “pretty rough” and his treatment could have been “a bit bouncy and stuff” as evidence hehad shaken the boy. There were no physical signs of abuse apart from the presence of the triad.21/08/2021 Shaken baby syndrome on trial: Judges to re-examine homicide conviction. 

 Vinaccia’s appeal claims the confession was unreliable, the conviction was unsupported bymedical evidence confirming shaking was the cause of the fatal injuries, and that police andexperts failed to consider that the injuries could be accounted for by Kaleb’s pre-existingmedical condition, which had previously led to him being hospitalised with swelling in hisbrain.

During an earlier hearing, before the court granted the appeal, Justice Chris Maxwell said thatfor the Vinaccia case, the “real field of battle is the forensic evidence field” and there was apotential “public interest question” that could be answered about the reliability of the shakenbaby theory.

“Is this something that the Court of Appeal will have to wrestle with sooner or later, or shouldwrestle with in the interests of the integrity of the criminal justice system or public confidencein it, or some combination of those things?” Justice Maxwell asked in June.

The green light for the appeal comes after The Age revealed earlier this year that two ofVictoria’s top forensic scientists held serious concerns about the reliability of the shaken babydiagnosis and its use in criminal proceedings.

The Victorian Institute of Forensic Medicine’s director, Professor David Ranson, and the headof the forensic pathology department, Dr Linda Iles, warned that “triad-only” cases were riskybecause the evidence of abuse was only “indirect” and therefore weak.

“That reliance on a single piece of evidence is always dangerous. Whether you like the triadissues or don’t like the triad issues, it’s not the be-all and the end-all. It behoves the entirelegal system to say giving weight and relying solely on a single piece of evidence is incrediblydangerous,” Professor Ranson told The Age and The Sydney Morning Herald in May.

Dr Iles is one of the experts called by the prosecution to testify at Vinaccia’s trial who will nowbe re-called as part of the Court of Appeal’s review of the evidence.21/08/2021 Shaken baby syndrome on trial: Judges to re-examine homicide. 

 Another is Dr Jo Tully, the deputy director of the Victorian Forensic Paediatric Medical Serviceat the Royal Children’s and Monash Children’s hospitals, whose evidence has been central tomany prosecutions for shaken baby syndrome and child protection actions. She has previouslycharacterised criticism of the evidence for shaken baby syndrome as coming from “non-believers”.

The Court of Appeal also heard that two other appeals against convictions for child homicideand assault have been filed by the same lawyers representing Vinaccia.

Joby Rowe was found guilty of child homicide in 2018 over the death of his three-month-olddaughter, Alanah. “Violent shaking with or without impact on a soft surface” was found to bethe cause of death based on her internal injuries, with experts testifying there was no other“reasonable explanation”. Rowe denied mistreating the child.

Jesse Harvey was convicted of recklessly causing serious injury to his seven-week-old son,Casey, in 2019. He claimed he did not shake or hit Casey, but said the baby bumped his head onthe edge of a couch as Harvey sat down. The medical evidence held the child’s internal injurieswere equivalent to a 10-metre fall or high-velocity motor vehicle collision.

 Support is available from the National Sexual Assault, Domestic Family ViolenceCounselling Service at 1800RESPECT (1800 737 732).