An "Overview Report" on the Brenda Waudby case released yesterday reveals that police investigators discussed the laying of criminal charges against Dr. Smith in connection with his investigation of 21-month-old Jenna's death.
This information is revealed in a telephone conversation on February 26, 2003, between Detective Constable Larry Charmley, a Peterborough Lakefield police officer and Detective Sergeant Larry Linton of the Metro Toronto Police Services.
Charmley's memo-book notes reflect that Linton:
"Wanted to know if our service ever considered charging Dr. Smith or
investigating him as a result of our findings.
"Advised that there had been minimal discussion at one time about whether we should question him further and it was determined that whatever documentation we had, we should turn over to the College of Physicians & Surgeons.
This was done.
Also, the coroner's office was made aware of our concerns.
We had decided to concentrate on our homicide investigation feeling it was the mandate of other agencies to look into Smith.
Nothing so overtly obvious that any charge could immediately be pursued."
The note does not specify the nature of the alleged conduct that might serve as the basis of a criminal charge.
However, the police were concerned at this point over the fact that Smith had failed to acknowledge at Waudby's preliminary hearing that he had seized and retained in his office at the Hospital for Sick Children for five years a curly dark male type pubic hair found in Jenna's vulva area during the autopsy.
(Brenda Waudby had protested from the outset that the police should have been investigating J.D., the teenage babysitter who had been babysitting Jenna on January 22, 1997, the night she was beaten to death.)
The police were also aware that Smith had the hair with him in the courtroom when he was delivering his sworn testimony.
Here is a portion of Smith's cross-examination by Waudby's lawyer Jim Hauraney at the preliminary hearing as found in the Overview Report: (Hauraney is referring to a passage in the emergency physician's report H.L);
Q. And then he goes on to say, "A curly hair around the vulva area"?
A. Um-hmm.
Q. Do you see that?
A. Yeah.
Q. Would you expect this young girl to have a curly hair on her vulva?
A. No, no - I assume that that's some pick up - that's something, which has
landed there.
Q. I understand, from speaking with him, and it would be evidence later on...
A. Um-hmm.
Q. … but I understand in speaking with him he was satisfied it was consistent
with a dark pubic hair?
A. You know something I don't know.
Q. No - and I appreciate that...
A. Yeah, yeah.
Q... but does that - by that added....
A. Does that - does that raise the alarm bells?
Q. Yes?
A. Yes, sure.
Q. And I take it then, as far as you know, the police didn't bring any pubic hair to
you for examination?
A. No.
Q. And did they advise you that there may have been a pubic hair found?
A. I can't - I can't remember.
Q. All right.
A. I don't know - I'm sorry."
This was Dr. Smith's sworn evidence at Waudby's preliminary hearing.
However, the Overview Report indicates that Smith gave a very different story to Charmley over the telephone on October 5, 2001:
"According to D/Cst. Charmley, he asked Dr. Smith about the hair found in
Jenna’s vagina," The report says.
"Dr. Smith advised that he did recall this and that he had seized the hair," it continues. He described it as a fibre that the police did not feel was pertinent to seize (which the police strenuously denied H.L.) so he kept it in his files."
"He believed he still had this item.
Dr. Smith further advised that he was surprised the police relied so heavily on the medical evidence when it would be the police investigation that would solve the case...
He also stated that he had a child sexual abuse expert examine Jenna and that he was satisfied that there was no evidence of sexual assault.
(Prosecutors ultimately withdrew two charges of sexual assault against J.D., the babysitter, after he pleaded guilty to manslaughter.")
D/Cst. Charmley asked Dr. Smith if he could retrieve the hair and advised that it would be seized as evidence."
Charmley was clearly troubled by Smith's conduct - as indicated in a note he made after interviewing the police officer who attended at Jenna's autopsy:
"The recovery of this hair raised some concerns about how such a potentially
crucial piece of evidence was overlooked and never examined," Charmley wrote.
"Potentially the hair could also lend credibility to the fact that Jenna might have been sexually assaulted.
There was an obvious difference in recollection to what had occurred at the autopsy.
Dr. Smith said the police did not think the hair was pertinent and
Cst. Kirkland said that he never indicated this and it was Dr. Smith who was
telling him what was important.
Why would a police officer suggest that a foreign hair in the vaginal area was not important, especially given that Jenna was being cared for by a 14-year old male when she died?
Further, why would a pathologist accept such a view without further discussion with the officer in attendance, the primary investigator or other colleagues?
Other than the sealed envelope containing the hair, there was no documentation made about the seizure of the hair.
Further, the hair was not photographed before removing it from Jenna’s body.
Although there is one photo that has been mentioned, again it is obvious
that this photo was not intended to capture the hair.
Dr. Smith was also questioned at the preliminary inquiry about a hair being found on Jenna.
He had no recollection of such a hair, but did admit that such a finding would raise alarm bells.
D/Cst. Charmley is aware from attending several autopsies over the years,
that sometimes things do progress quickly and there has to be communication
from both sides to ensure the pace is comfortable and the knowledge is shared.
Unfortunately, only Cst. Kirkland was present at autopsy for police.
Is it reasonable to believe that between making notes and changing camera film that
Cst. Kirkland may have missed something occurring?
Given Dr. Smith’s position, should he have pursued advising others of the hair seizure?
Police investigators probably gave little thought about the hair, given that there was no mention of it being recovered at autopsy, there was no evidence of a sexual assault, and as the investigation progressed such a hair would presumably have no evidentiary value to charges against Brenda.
The recovery of this hair would not be made known to any witness or suspects until later in the review."
Ultimately the hair, when tested, could not assist the police investigators because it did not match samples taken from both Waudby and J.D.
(Which is not really surprising given the manner in which the hair was seized and retained by Smith without having even been submitted for forensic testing or photographed. How can any one be sure that it was in fact the hair taken from Jenna during the autopsy? H.L.)
The hair may not have been of any value to the prosecution - but it sure said a great deal about Dr. Charles Randal Smith.
Just one more of his "mistakes?"
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