PASSAGE TWO OF THE DAY: "The latest flashpoint in the use of forensic sciences in Australian criminal cases relates to deaths attributed to shaken baby syndrome. In April this year, Nicholas Aaron Baxter was found not guilty in the Queensland supreme court of the manslaughter of his infant son Matthew, who had died almost a decade earlier. In a 2017 trial, Baxter had been found not guilty of murder but guilty of manslaughter. But the Queensland court of appeal allowed a retrial because evidence that Matthew had rib fractures at the time of his death was found to have been improperly considered as part of the medical and forensic evidence put to the jury. The prosecution case largely rested on Matthew presenting with a “triad” of injuries – bleeding in the brain, the brain swelling and retinal haemorrhage – that are linked to trauma having been inflicted on a child, known as shaken baby syndrome. Those who agree with the science of shaken baby syndrome claim the injuries could not be caused by any other event other than extreme trauma. But others believe the science is flawed: how does one conduct an experiment that would conclusively prove the impact that shaking has on a live baby? As Queensland supreme court justice David North found in the retrial of the Baxter case, “one of the difficulties in studying such an hypothesis and testing the theory is that for obvious reasons it [is] impossible to conduct any studies upon actual infants”. He ultimately found that “what caused Matthew’s cardiorespiratory collapse and death remains a matter of speculation. The law requires on a charge of manslaughter proof beyond reasonable doubt based upon probative admissible evidence. For the reasons I have given proof to that standard is absent.”
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PHOTO CAPTION: “Forensic sciences – mostly the use of DNA – have been a powerful tool in proving the innocence of the wrongfully convicted but have also been found to have regularly contributed to miscarriages of justice.”
STORY: “Forensic examination: the case for a criminal review commission on Australia, by Nino Bucci, published by The Guardian on July 17, 2021. Nino Bucci is a reporter for The Guardian in Australia, based in Melbourne. Thanks to Dr. Robert Moles of Networked Knowledge for bringing this story to our attention.)
SUB-HEADING: “Uneasy about improper use of their discipline, forensic experts call for an appeals body to protect against miscarriage of justice.”
GIST: “Two of Australia’s leading forensic scientists say an independent criminal cases review commission should be established to protect against miscarriages of justice amid growing unease about the improper use of their disciplines.
The commission – similar to a model that exists in the UK – would allow people who have exhausted their rights to appeal in the courts to seek a review of their case.
Forensic sciences – mostly the use of DNA – have been a powerful tool in proving the innocence of the wrongfully convicted. But in recent years forensic sciences have also been found to have regularly contributed to miscarriages of justice, particularly in the US and Europe.
Prof David Ranson and Assoc Prof Richard Bassed, both Victorian Institute of Forensic Medicine (Vifm) deputy directors, told Guardian Australia there was a clear need for an independent body that would help protect the integrity of the forensic sciences and provide a last resort for the wrongfully accused.
“The justice system likes closure, finality, but I don’t think we can accept that in a just society when that means someone is being deprived of their liberty,” Ranson said.
“[An independent review body] is sensible … but it has to be properly resourced. It can’t just be a group of lawyers sitting around a table.”
Bassed, in a separate interview, said an independent review board would be “very useful”. It could help overcome the “inherent bias” that may occur when police investigators or forensic scientists were given too much information regarding a death, leading to skewed evidence and miscarriages of justice, he said.
Ranson and Bassed agreed forensic methods relating to bite mark, hair, bullets, footprints, blood spatter and mixed-sample DNA analysis that were previously considered meritorious were now either regarded as baseless or without conclusive evidence that they work. There are also concerns about whether fingerprint comparisons, for example, are as reliable as had long been believed.
Ranson categorises the flaws as either fundamental, meaning they cannot be used at all, or based on application, meaning concerns can arise if the science is not applied correctly.
It is unlikely that any offender in Australia would have been convicted solely because one of these flawed methods was used, but does their use in some circumstantial cases help convince a jury of their guilt?
Ranson believes appeals to an independent commission could be based on multiple factors, including new research that debunked a forensic science, new evidence that indicated a particular scientist may have misrepresented their evidence (or was not properly challenged about it in court), or that failures to complete certain tests or forensic examinations as part of the initial investigation meant that an individual could not be proven guilty beyond reasonable doubt.
Bassed has been so concerned about the lack of understanding between the lawyers and forensic scientists that he has established a masters of forensic and legal studies at Monash University, where he heads the department of forensic medicine, to break down the misconceptions between the parties.
He believes defence lawyers being unable to find experts who can contradict the forensic evidence presented by the prosecution, and an inability to properly cross-examine the forensic witnesses of the prosecution, contributes to miscarriages of justice.
The pair’s Vifm colleague, Prof Stephen Cordner, has also called for an independent review body. Last year, Cordner raised his concerns to his local federal MP, Liberal Russell Broadbent, who in turn brought the matter to the then attorney general, Christian Porter.
Broadbent said he received a “general” response back, but he believed there would be no political will to introduce a commission unless “someone at a higher level was inspired by a particular case”.
“Often you need a trigger. Lindy Chamberlain has been the trigger for me for justice to exist in the justice system,” Broadbent said.
He said that there was “no reason in the world we should fear” establishing a commission similar to that which exists in the UK.
“Until there’s an obvious miscarriage of justice and the public say ‘this can’t happen again’… it can happen again tomorrow,” Broadbent said.
A spokesperson for the current attorney general, Michaelia Cash, did not respond to a request for comment.
In late 2019, the Council of Australian Governments agreed to a national review of the reliability of forensic evidence being used in courts. But, as the Age reported earlier this year, that review has now been shelved.
The review was proposed by the Victorian government. A spokesperson for the Victorian attorney general, Jaclyn Symes, said there was no plan for a review of the forensic sciences to be conducted by the state.
Shaken baby syndrome
The latest flashpoint in the use of forensic sciences in Australian criminal cases relates to deaths attributed to shaken baby syndrome.
In April this year, Nicholas Aaron Baxter was found not guilty in the Queensland supreme court of the manslaughter of his infant son Matthew, who had died almost a decade earlier.
In a 2017 trial, Baxter had been found not guilty of murder but guilty of manslaughter.
But the Queensland court of appeal allowed a retrial because evidence that Matthew had rib fractures at the time of his death was found to have been improperly considered as part of the medical and forensic evidence put to the jury.
The prosecution case largely rested on Matthew presenting with a “triad” of injuries – bleeding in the brain, the brain swelling and retinal haemorrhage – that are linked to trauma having been inflicted on a child, known as shaken baby syndrome.
Those who agree with the science of shaken baby syndrome claim the injuries could not be caused by any other event other than extreme trauma. But others believe the science is flawed: how does one conduct an experiment that would conclusively prove the impact that shaking has on a live baby?
As Queensland supreme court justice David North found in the retrial of the Baxter case, “one of the difficulties in studying such an hypothesis and testing the theory is that for obvious reasons it [is] impossible to conduct any studies upon actual infants”.
He ultimately found that “what caused Matthew’s cardiorespiratory collapse and death remains a matter of speculation. The law requires on a charge of manslaughter proof beyond reasonable doubt based upon probative admissible evidence. For the reasons I have given proof to that standard is absent.”
We tend to see forensic science as absolute, but we need to also learn that science is always developing
Mai Sato
In the US state of Maryland last year, an appeal was granted in the case of a man who had spent more than two decades in prison for the death of his infant son, because the court found that the “current controversy or debate within the scientific community” regarding shaken baby syndrome meant there was a “substantial or significant possibility of a different result” should the case be reheard.
There are now three appeals that have been filed or are set to be filed in Victorian courts by men who were found guilty of killing or seriously injuring children in their care. The appeals were first reported by the Age.
The appeals will be closely watched by Australian lawyers and academics who research or work within what is loosely termed “the innocence movement”.
Mai Sato, a Monash University associate professor who has extensively researched the UK criminal cases review commission, said concerns about shaken baby syndrome underline a fundamental flaw with how forensic science is perceived in the justice system.
“We tend to see forensic science as absolute, but we need to also learn that science is always developing,” Sato said.
There was also a misconception that a miscarriage of justice must involve malicious police investigations, when issues such as non-disclosure – or disclosing too much – can also influence an expert view.
Sato, who is also a member of the Bridge of Hope miscarriage of justice advisory group, said it was implausible the UK required a criminal cases review commission any more than Australia.
“It’s certainly not that there’s no miscarriages of justice here, that it’s so safe,” she said. “Little things will always be going wrong along the way, and that equates to a wrongful conviction. The justice system produces these mistakes. And we need a system to deal with it.""
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