Smith For The Defence: Part Two: The Charge To The Jury;

FROM JUSTICE DAVID CRANE'S CHARGE TO THE JURY: REGINA VS. KUZYK;

"THE THEORY OF THE DEFENCE...

THAT DR. SMITH HAS OUTSTANDING CREDENTIALS, AND IT IS HIS OPINION THAT TRISTAN'S INJURIES COULD HAVE POSSIBLY BEEN INFLICTED AS EARLY AS 6:00 P.M. ON SATURDAY THE FIFTH OF JANUARY."

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MY NOTE IS THAT DR. SMITH SAYS IT WAS POSSIBLE FOR TRISTAN TO RECEIVE LETHAL INJURIES AT FIVE OR SIX P.M., 10 OR 11 HOURS BEFORE UNCONSCIOUSNESS. MY COMMENT, MEMBERS OF THE JURY, IS THAT IT IS FOR YOU TO DECIDE WHETHER DR. SMITH WAS SPEAKING OF INFANT-HEAD INJURY CASES AS A GROUP, OR WHETHER HE WAS SPEAKING ONLY ABOUT TRISTAN'S CASE.

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I am providing several portions of Justice David Crane's address to the jury in the Kuzyk case in order to help our readers evaluate Dr. Smith's evidence for the Defence:

Justice Crane's comments on the crown and defence theories;

His comments on the evidence given by Dr. Rao and Dr. Smith, the "forensic" experts for the Crown and Defence respectively:

THE CROWN'S THEORY;

"The Crown's theory, according to myself:

Shelly Kuzyk has fabricated the bed fall.

On her video interview she said Tristan was in good health until the bed fall.

At trial. when she had seen. by Crown evidence, that the bed fall fabrication cannot succeed, she changed her evidence using the usual symptoms of head injury as stated by the doctors at trial to say that Tristan had these symptoms all the way back to 6:00 p.m. on Saturday.

That she also changed her story of Stephen Gandza leaving at 4:30 p.m. on the Saturday on the basis that she remembered seeing the clock at 4:35.

That it is a fact that Tristan's death was due to injuries intentionally inflicted;

That the best medical evidence is that of Dr. Rao, whose specialty is to determine time of the injury and unlike Dr. Smith, she actually examined the injuries microscopically, and investigated the damaged tissues.

Her opinion is that Tristan would show immediate serious symptoms;

That Tristan's injuries had to be of the most severe of cases, as they were indeed fatal;

That he could not.

That is "he" Tristan could not have carried his injuries until he became unconscious without it being obvious to any person seeing him that he was injured.

That the time from injury to serious symptoms depends on the seriousness of the injury.

Tristan was seriously injured.

He had two fractures of the skull and he had demonstrable evidence of injury of his brain.

The proposition that he would carry his injuries until he was unconscious is against all the medical evidence and yet, it is exactly Shelly Kuzyk's evidence in this case.

That Shelly Kuzyk in inflicting the injuries which Tristan suffered would have to have the requisite intent to cause bodily harm. that she knew was likely to cause death and was reckless whether or not it caused death.

That Dr. Smith could only speak of cases generally. where Dr. Rao spoke of Tristan specifically."

THE THEORY OF THE DEFENCE;

"The defence's theory, according to me, is the presumption of innocence.

The accused is to prove nothing.

The Crown has failed to prove guilt. and it has to prove guilt in order to have a conviction.

That the evidence is that Stephen Gandza. at the material time. was in a rage:

that he was a violent person:

that Stephen Gandza would be very frustrated and angry, waiting and waiting for Ms. Kuzyk to finish her shower;

that he could be fired from his job if he was late;

that he is a big. strong man who expresses anger physically;

that at the time Tristan was fussy and out of sorts, and required patience, which M. Gandza had lost.

That it was an easy matter for Mr. Gandza to shake the baby and bang him against a wall or some other activity of that sort;

That Dr. Malcolmson and Dr. Smith spoke of gradually building of symptoms.

That it makes common sense that if a fracture. then a fall by Tristan on his head. that this would make his head injuries worsen and could put Tristan over the (unclear) on his symptoms.

That Dr. Smith has outstanding credentials, and it is his opinion that Tristan's injuries could have possibly been inflicted as early as 6:00 p.m. on Saturday the Fifth of January.

As I indicated ladies and gentlemen. it is not for the defence to prove any of this.

It goes to the submission of the defence of creating a reasonable doubt by which the Crown fails proof.

That the key issue is who caused Tristan's injuries and that timing is important.

That Dr. Smith supports the possibility of up to 24 hours to unconsciousness from Tristan's blunt force trauma.

That Shelly Kuzyk is loving;

that the intent to injure is not there.

That her voice on the 911 call is of genuine concern for Tristan. from his loving godmother;

that there is no motive on the evidence, and this is a circumstance to support the presumption of innocence;

that the evidence of bruising is inconclusive as to intention and as to time."

THE EXPERT EVIDENCE PRESENTED BY DR. RAO AND DR. SMITH;

DR: RAO:

"Dr. Rao testified that she saw fresh haemorrhaging in the brain, eyes and optic nerve.

She stated from the time of injury to the time at hospital was zero to a maximum of four hours.

She allowed a further one or two hours either way.

She stated the photos showed two separate fractures being two separate blunt force injuries.

She stated. and this is simply by my notes ladies and gentlemen. that more than two non-fracture blows were made to the head in different areas.

It is her opinion that there was a combination of blunt trauma force with shaking.

Her evidence was that Tristan received significant injuries, and for such injuries the symptoms are immediate.

The symptoms she stated, and I am relying simply on my notes ladies and
gentlemen, are lethargy. or unconsciousness, breathing difficulty or breathing stopped. and in some cases convulsions.

She stated. in cross-examination, that on Tristan's injuries, in her opinion. there was an immediate comatose state.

DR: SMITH:

Dr. Smith testified that he reviewed the postmortem report, which is Dr. Rao's report, Exhibit number 19. the photos of the C.T.Scan, the reports of Drs. Hollenberg. Malcolmson and Ockenden. the video interview,, which is now Exhibit One, and the transcripts of the witnesses at the Preliminary Hearing in this case.

Dr. Smith gave his opinion that Tristan died of non-accidentally-inflicted injuries: that Tristan died of blunt trauma to his head.

Dr. Smith considered cause of death as between shaken baby syndrome or blunt trauma to the head. and stated that the cause 4e favours is blunt impact.

Either Tristan was hit with something or Tristan was flung into something.

I want to read you something from my notes.

This is my note of Dr. Smith's evidence.

It deals with timing of the injury.

My note is that he said there is no absolute science with regard to timing of injuries;

that it is difficult to be absolute on time:

that there are factors that can affect timing;

that Tristan lived from injury to death approximately 16 hours. and this makes the pathology more difficult:

that it is not possible to separate injury 16 hours. 18 hours or 24 hours back from death.

Microscopically, it cannot be separated to 16. 18 or 24 hours.

Sixteen hours of life from injury makes timing difficult.

Based on pathology of blunt trauma, from point of injury. Tristan is no longer normal.

He was asked, when was child normal and not normal and he said look for some or all of the following before unconsciousness occurred after trauma; Crying, sometimes abnormal, unusual. whimpering, and not normal crying, change of behaviour, often irritable, wants to be left alone, or alternatively: wants cuddling, could be either: not eat and drink normally, vomiting a sign of head injury, lethargy maybe, may appear tired but not sleeping, really moving into unconsciousness.

Seizures are usually at the end of the process.

Shelly Kuzyk gave a good description of a seizure on Exhibit One.

Seizures may be subtle and not seen.

A bed fall cannot explain Tristan's injuries. It did not inflict serious harm to Tristan.

Ms. Kuzyk's description of an "arched back" is a good description of a seizure.

Head going back is a late change description of Tristan's injuries. This is an end stage.

Then I have a note. range of time from injury to extremis, and there was no, my understanding is that nobody asked and there was no definition of what was exactly meant by extremis, what point of time. what that was exactly.

Generally. it is thought to be at the end of something.

In medical terms. the end from injury to death.

But it is not, by my recollection of the evidence, it was not precisely determined what was meant.

Dr. Smith referred to the old literature. saying that range of time from injury to extremis. under that heading. the old literature was 24 to 36 hours.

The Doctor's own experience was six hours maximum.

The Doctor's opinion that six hours is not an upper limit and 24 hours is too much.

The Doctor says. therefore between six and 24 hours.

He said that if you don't accept statements of accused persons, then look to histories from motor vehicle accidents or falls for a reasonable upper limit.

The Doctor believes the upper limit is more than six hours.

A blunt impact is a longer time than a shaking type injury.

He said by my note, six hours, sure. eight or 12 hours, sure, and he said, by my note. the-first observers are the best observers.

Emergency room doctors may be too busy to interpret causes.

If Emergency doctors make good observations. then believe those observations.

My note is that Dr. Smith says it was possible for Tristan to receive lethal injuries at five or six p.m., 10 or 11 hours before unconsciousness.

My comment, Members of the Jury, is that it is for you to decide whether Dr. Smith was speaking of infant-head injury cases as a group, or whether he was speaking only about Tristan's case.

In cross-examination, Dr. Smith agrees that the time 30 - he is still talking about the same question - that the time could be 20 minutes from the time of injury to extremis.

He was asked a question about the shaking component, and my note is that he said "Yes, could be violent and prolonged shaking".

He said, "The trauma is violent", and question, "Was there severe abuse of this child?", and answer. "Yes".

The question then is, did Tristan's severe symptoms present immediately, or did the severe symptoms develop over a period of time?

If some time. how much time?

The difference of note. between the two opinions, is on the maximum side of the range and not on the minimum side. four hours plus or minus one or two hours per Dr. Rao, to certainly six hours and less than 24 hours per Dr. Smith.

Although allowing a range of time, Dr. Rao says for Tristan, her opinion is "immediate" time.

Dr. Smith does not believe timing of this kind can be precise.

He says with 20 minutes on the minimum side to the maximum that I have already discussed...

NEXT POSTING: SMITH FOR THE DEFENCE: PART THREE; DID SMITH'S INFLATED CREDENTIALS INFLUENCE THE JUDGE? There was a clear conflict between the expert evidence tendered by the prosecution and the defence as to the outer limits of the time at which the injuries were caused. Was it Dr. Charles Smith's inflated description of his qualifications that that tipped the jury in favour of the defence?

BLOGGIST'S NOTE: Regrettably, the transcript mispell's Tristin's name.

Harold Levy; hlevy15@gmail.com;