"Following the autopsy, Dr. Smith had instructed the police to search for an object that may have caused the “donut-shaped” injury to Kasandra’s head. On April 24, 1991, the police seized the Applicant’s wristwatch and Dr. Smith had photographs taken of it. He created overlays of the watch and photographs taken of the wound at autopsy. On May 1, 1991, handwritten police notes (whose author is unknown) reflect the following: 12:00 with Charles Smith; stated that the watch measurements [aligned] with the marks on the victims head. No question. Totally reasonable that a backhand blow could cause this injury Had photos of watch taken to have head and watch superimposed on each other . Dr. Smith certified the cause of death as follows:I hereby certify that I have examined this body, have opened and examined the above noted cavities and organs as indicated, and that in my opinion the cause of death was: Cranio-cerebral trauma."
From affidavit of Lawyer Alison Craig filed on behalf of her client Maria Shepherd in the Ontario Court of Appeal;
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Many insights into the wrongful conviction of Maria Shepherd - and the role played in it by Dr. Charles Randal Smith - can be gleaned from the affidavit filed in the Ontario Court of Appeal by Lawyer Alison Craig, an associate of Lockyer, Campbell, Posner, who, along with several other lawyers, did a superlative job of representing Ms. Shepherd and other victims of miscarriages of justice at the Goudge Inquiry; Because this affidavit is extremely lengthy I will be publishing selected sections, starting today with "the autopsy";
"27. At 1:00 p.m. on April 12, 1992, Dr. Charles Smith commenced the post-mortem on Kasandra’s body. He found her to be adequately nourished. He noted four small abrasions to her lumbosacral region, which he testified were “consistent with normal childhood activity so I ascribed no significance to them in terms of child abuse," this section begins;
"28. Of considerable significance to Dr. Smith was a “donut-shaped” contusion on the underside of the scalp, which he described in his Report of Post Mortem Examination as follows:
In the right occipital scalp was a super-elliptical-shaped area of hemorrhage in the configuration of a donut, with a pale central core which was 1.7/1.8 cm in diameter. The outer, dark red contusion was 3 cm in diameter. The soft tissues of the right temporal scalp had a yellowish tinge," the section continues;
"A diagram of the scalp contusion was also included in the report. There were no cuts or bruises on the outside of Kasandra’s scalp associated with this contusion. Dr. Smith in testimony attributed their absence to the cushioning effect of Kasandra’s hair.
29. This observation, and what took place as a result of it, became key findings in the case and play a significant role in the proposed appeal. Following the autopsy, Dr. Smith had instructed the police to search for an object that may have caused the “donut-shaped” injury to Kasandra’s head. On April 24, 1991, the police seized the Applicant’s wristwatch and Dr. Smith had photographs taken of it. He created overlays of the watch and photographs taken of the wound at autopsy. On May 1, 1991, handwritten police notes (whose author is unknown) reflect the following:
12:00 with Charles Smith
stated that the watch measurements [aligned] with the marks on the victims head. No question.
Totally reasonable that a backhand blow could cause this injury
Had photos of watch taken to have head and watch superimposed on each other .
30. Dr. Smith certified the cause of death as follows:
I hereby certify that I have examined this body, have opened and examined the above noted cavities and organs as indicated, and that in my opinion the cause of death was:
Cranio-cerebral trauma.
31. In addition to his Report of Post Mortem Examination, Dr. Smith also prepared a Final Autopsy Report for the Hospital for Sick Children. It included a description of the scalp injury and haematoma which Dr. Smith regarded as the “trauma” responsible for Kasandra’s death:
The postmortem examination demonstrated evidence of cranio-cerebral trauma, with a recent scalp haematoma forming a ring shape, 3 cm in diameter, in the right occipital region. This was spatially related to a subdural haematoma in the right occipital region. As well, a small haematoma was seen in the left frontal region, on the floor of the anterior cranial fossa; this may represent a contra-coup injury. There was a yellow staining in the soft tissues of the right temporal region as well as in the subdural space over the cerebral convexities. The brain was swollen but atrophic.
32. Members of the SCAN (Suspected Child Abuse and Neglect) Unit were involved in the case. One of them, Dr. Marcellina Mian, was recorded as telling the police:
In relation to the bruises noted on the 11th of February 1991, [Dr. Mian] felt that the bruise locations were unusual. She further stated that she would put child abuse at the top of her list given the physical exam, the social history and the blood tests. Doctor Mian went on to say that all she deals with is child abuse so naturally she would assume abuse...
Doctor Mian further stated that as far as she was concerned, the doctors and the child care people may as well have held Kasandra down while her step-mother beat her to death. It was further stated that the doctors and the CAS dropped the ball on this one and that the hospital wanted an Inquest because of that.
33. Dr. Smith advised the police that he could pinpoint the time of Kasandra’s head injury to within three to five hours of the police arrival at the home. Detective Barnhart attended the autopsy and took notes of Dr. Smith’s observations. They included the following entry:
– narrowed time frame down to Tues 9th April in afternoon - most likely 3-5 hours before she was taken to hospital
The notes of P.C. Keys contain an identical entry. This caused Detective Stephenson, the polygraph operator, to tell the Applicant when she took a polygraph test on April 24, 1991, that the “medical evidence” established that Kasandra had been hit on the back of the head with an object on “April the 9th between 4:00 to 9:00 p.m.” The police Synopsis of the Case in the Crown Brief included the following:
[The post mortem examination] showed that the victim died as a result of a blow to the head caused by the accused. This blow caused a chronic-cerebral trauma which in turn, caused death.
. . .
The death blow was determined to have taken place three to five (3 - 5) hours prior to police arrival on the 9th of April, 1991, that being 3 - 5 hours before 9:00 p.m. Further that a flat cylindrical object was used.
If such was the case, the timing fitted perfectly with when the Applicant was alone in the home with the three children, including Kasandra.
34. However, Dr. Smith did not maintain such a three to five hour window in his testimony at the preliminary hearing. When asked if he could time the injury back from her death in the afternoon of April 11, he simply said:
So we would be ante-dating back from that, perhaps, you know, perhaps 24 hours, perhaps 48 hours, maybe 72 hours, somewhere - - somewhere in that time frame.
At the Goudge Inquiry, Dr. Whitwell was asked to explain the extent to which the findings in Kasandra’s case would allow a pathologist to accurately pinpoint the time frame in which the “impact injury” occurred. She responded:
One can't. All - all one can say is that on the appearances, the impact to the back of the head appeared recent, which in pathological terms is anytime up to twenty-four/forty-eight (24/48) hours. .. you couldn't pin it down to three (3) to five (5) hours."
Harold Levy...hlevy15@gmail.com;
