Part Nine: Eight: Gaurov's Father; A Third Shocking Revelation From Inquiry; Brother collapsed Shortly Before Gaurov's Death: Hereditory Factor?

"THE HISTORY STATES THAT HE (GAUROV'S BROTHER SAUROB)WAS PLAYING WHEN HE SUDDENLY FELL ON THE GROUND - APPARENTLY THE FATHER GAVE HIM SOMETHING, AND COMPRESSIONS AND MOUTH TO MOUTH. AND THEN THERE'S A SUGGESTION THERE MAY HAVE BEEN A SIMILAR EPISODE LAST YEAR;"

LAWYER JAMES LOCKYER TO COMMISSIONER STEPHEN GOUDGE DURING CROSS-EXAMINATION OF PROFESSOR HELEN WHITWELL;

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"BUT IF WE ASSUME FOR A MOMENT THAT JUST DAYS BEFORE GAUROV DIED HIS ONE (1) YEAR OLD BROTHER, SAUROB HAD BEEN THROUGH, WHAT COULD BE DESCRIBED AS A SIMILAR EXPERIENCE TO GAUROV, WOULD THAT SUGGEST THAT THERE MIGHT BE ANY KIND OF -- OF HEREDITARY PROBLEM WITHIN FAMILY?

DR. HELEN WHITWELL: "I DON'T THINK I CAN REALLY ANSWER THAT. IT MAY OR MAY NOT. I MEAN, WE -- WE JUST DON'T KNOW."

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LAWYER JAMES LOCKYER AND PROFESSOR HELEN WHITWELL;

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In an earlier posting I referred to the shocking disclosure from the Goudge Inquiry that Dinesh Kumar's lawyer's testified that he had not been informed by prosecutors about a disturbing decision from Ontario Court Justice Patrick Dunn in the Amber case.

That decision was was highly critical of the opinions of Dr. Charles Smith and the Hospital for Sick Children SCAN (Suspected Child Abuse And Neglect) team.

Two other shocking disclosures relating to Gaurov's case also emanated from the Inquiry;

The second - the subject of this post - was that Dr. Charles Smith had informed homicide investigators that both he, and Dr. Dirk Huyer, the head of the SCAN team at the Hospital for Sick Children In Toronto were both "struggling" to find criminality in the case - a far cry from the language in their official reports;

Now the third: It has been disclosed during the Goudge Inquiry that in March 1992, just a few days before Gaurov's death his brother Saurob, was seen at a walk-in clinic at the Hospital for Children for spells.

Lawyer James Lockyer told the Inquiry that he had "just obtained" Saurob's medical records through a request.

Lockyer said the the history states that he was playing when he suddenly fell on the ground - - and we don't quite know what -- and was cyanosed. Apparently the father gave him something, andC compressions and mouth to mouth. And then there's a suggestion there may have been a similar episode last year.

Lockyer began this portion of his cross-examination of Professor Helen Whitwell - the independent reviewer of Gaurov's case - by informing Commissioner Steven Goudge that, "Another document that we just obtained through a request is the medical records, or -- the medical records of Dinash's (phonetic) brother, Saurob.

And if we go to PFP302210 -- now it's -- it's the best we have so far, and we're trying to get a better copy of this document -- but if you look at this document, it's addressed to Dr. Rana, who was Saurob's -- and indeed still is -- Saurob's physician.

Saurob is now -- I think I'm right in saying -- seventeen (17) years old and, Mr. Commissioner, he -- he is with his parents, I'm glad to say.

Any event, it's a report from the Hospital for Sick Children.

If we go to the second page, you'll see this document.

I'm afraid you -- we don't know who it's from because you can't quite read it.

But if you look at this document on page 1 -- if you could show us page 1 again? There might a Dr. Bard, if there is such a doctor at the Hospital for Sick Children.

And you'll see -- and this is a matter of days before Gaurov's death.

If you could raise the page, give us the bottom of the page.

COMMISSIONER STEPHEN GOUDGE: Is there a date on it somewhere?

JAMES LOCKYER: Well, it's -- I think it's mark -- I'm right in saying we've worked it out as being March 1st, 1992. It might be March 11th or 21st.

it's -- it's -- there's a one (1) and we have reason to think it's March. And I think that becomes apparent.

CONTINUED BY MR. JAMES LOCKYER:

MR. JAMES LOCKYER: If you could give us the -- the -- to the bottom of this page, please.

Thank you. You'll see here that Saurob, in what's really just a matter of days before Gaurov's death, was seen in the walk-in clinic at the Hospital for Sick Children for these spells.

you see where I'm looking?

DR. HELEN WHITWELL: Yes.

MR. JAMES LOCKYER: The history states -- and -- and we can probably invent some of the lines -- some of the words that are missing -- the history states that he was playing when he suddenly fell on the ground - - and we don't quite know what -- and was cyanosed.

Apparently the father gave him something, and compressions and mouth to mouth.

And then there's a suggestion there may have been a similar episode last year.

And then if we go to the -- over the page, and there's -- you'll see in the last paragraph: "Difficult to elicit exactly what the problem is. In a consideration of the description of this spell, we feel it's worthwhile to do..." And I'm -- I'm sort of translating, Mr. Commissioner, to some extent. "...a reassessment of the patient after an EEG has been done."

We also -- I can also tell you that Gaurov's father used to be an ambulance attendant back in his home country.

DR. HELEN WHITWELL: Right.

MR. JAMES LOCKYER: And so had familiarity with resuscitation and mouth-to-mouth techniques.

DR. HELEN WHITWELL: Yes.

MR. JAMES LOCKYER: So if we -- and I appreciate this is a dreadful document, but it's all we've got at the moment, and as I say, we're trying to get a better copy of it.

But if we assume for a moment that just days before Gaurov died his one (1) year old brother, Saurob had been through, what could be described as a similar experience to Gaurov, would that suggest that there might be any kind of -- of hereditary problem within family?

DR. HELEN WHITWELL: I don't think I can really answer that. It may or may not. I mean, we -- we just don't know.

This Blogster has no doubt that there is no way - at this point of time - that Professor Whitwell, or anyone else could give a definitive answer to this question.

I am however troubled by the fact that the shocking disclosure appears to have merged for the first time almost two decades after Mr. Kumar pleaded guilty to criminal negligence in connection with Gaurov's death.

This is an important investigative fact which should have been discovered by both the corner and police investigators, relayed to the police, and then disclosed to defence counsel - if at that point of time the prosecution was determined to expose Mr. Kumar to criminal proceedings.

It is crucial to recollect that Mr. Kumar felt pressured to enter a plea to criminal negligence causing Gaurov's death shortly after it was offered by prosecutors in order to avoid the oppressive murder charge - while the family was still deeply in mourning.

His lawyers therefore never got down to the type of investigation which would have revealed this kind of information which may have offered a medical defence which indicated that Gaurov, like so many other infants in Dr. Charles Smith's cases, had died a tragic, but natural death.

Harold Levy...hlevy15@gmail.com;

Part Eight: Gaurov's Father: A Second Shocking Revelation From Goudge Inquiry; Both Smith And Huyer Were "Struggling" With Criminality In the Case;

"SPEAK TO PATHOLOGIST, DR. CHARLES SMITH, OF SICK KIDS HOSPITAL RE. UPDATE. STILL IS OF THE OPINION THAT DEATH WAS FROM EITHER TWO (2) SOURCES: SHAKEN BABY, BLUNT TRAUMA. HE HAS CONSULTED WITH DR. HUYER, SCAN PROGRAM. THEY BOTH HAVE MISGIVINGS ABOUT CRIMINAL ELEMENT. QUOTE, 'HAS STRUGGLED WITH THIS BEING CRIMINAL. AGREES TO MEET WITH MARY HALL ANY TIME.'"

NOTE WRITTEN BY TORONTO HOMICIDE OFFICER DETECTIVE JOHN LINE IN RELATION TO KUMAR INVESTIGATION. DETECTIVE LINE WAS REFERRING TO MARY HALL WHO WAS DESCRIBED BY LAWYER JAMES LOCKYER AS HEAD CROWN ATTORNEY IN THE SCARBOROUGH OFFICE OUT OF WHICH KUMAR WAS PROSECUTED;

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In an earlier posting I referred to the shocking disclosure from the Goudge Inquiry that Dinesh Kumar's lawyer's testified that he had not been informed by prosecutors about a disturbing decision from Ontario Court Justice Patrick Dunn in the Amber case.

That decision was was highly critical of the opinions of Dr. Charles Smith and the Hospital for Sick Children SCAN (Suspected Child Abuse And Neglect) team.

Two other shocking disclosures relating to Gaurov's case also emanated from the Inquiry;

The second - the subject of this post - was that Dr. Charles Smith had informed homicide investigators that both he, and Dr. Dirk Huyer, the head of the SCAN team at the Hospital for Sick Children In Toronto were both "struggling" to find criminality in the case - a far cry from the language in their official reports;

The section of transcript relating to this disclosure is found in lawyer James Lockyer's cross-examination of Dr. Helen Whitwell, the independent examiner who reviewed Gaurov's case at the request of former Chief Coroner, Dr. Barry McLellan;

It reads as follows:

MR. JAMES LOCKYER: And so in Gaurov's case, whilst we have -- the preexisting condition may have been responsible for what ultimately caused Gaurov's death, beyond that, potentially, as Dr. Pollanen has pointed out, we don't even seem to have the triad in the first place.


DR. HELEN WHITWELL: No, you don't.

MR. JAMES LOCKYER: I don't know quite why Dr. Smith said this, but he seems to have had a lot of trouble with the case himself, and we got some notes just a -- a few days ago in this regard. If we could go to PFP302155; And what we're looking at here is the notes of one (1) of the officers in charge of the case, Detective Lines (sic). And if you go -- could you -- I'm sorry, I don't have a page number here. Could you just keep -- keep moving and I'll tell you when to stop through these notes. We're looking for March 23rd, which you'll see at the top of one (1) of the pages. And if you look at the entry for 2:55 on March 23rd -- and if you could raise the page a little so we can go to the bottom of it -- what it says there, and this is Detective Lines, one (1) of the officers in charge, and what he's noted March 23rd of 1992, which is post-autopsy, he's noted: "Speak to pathologist, Dr. Charles Smith, of Sick Kids Hospital re.
update. Still is of the opinion that death was from either two (2) sources: shaken baby, blunt trauma. He has consulted with Dr. Huyer, SCAN program. They both have misgivings about criminal element. Quote, 'Has struggled with this being criminal. Agrees to meet with Mary Hall any time.' And I can just tell you, Dr. Whitwell, that Mary Hall was then a -- the head Crown attorney in the Scarborough office where --

DR. HELEN WHITWELL: Right.

MR. JAMES LOCKYER: -- out of which Mr. Kumar was prosecuted.
So it would seem, at least in the early days -- and this is before Gaurov's father is charged with the second degree murder of his son Gaurov -- that even after the autopsy, Dr. Smith, and indeed Dr. Huyer of the SCAN unit, to use the -- to use the quote, "struggling" with the question of whether any crime had
been committed in Gaurov's death in the first place. I don't think you would have known that. We only got this document about a week ago --

DR. HELEN WHITWELL: Right.

MR. JAMES LOCKYER: -- through -- through the officer himself providing it.

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We are told that this note was written before Dinesh Kumar was encouraged by prosecutors to plead guilty to criminal negligence causing his son Gaurov's death in order to avoid being prosecuted for murder.

The existence of such a note - in which both Dr. Smith and the Head of the SCAN team are struggling to find any scientific evidence of criminality in the case - clearly raises the prospect that there was no reasonable possibility of obtaining a conviction.

The last time I looked at a Criminal Code - Criminal Negligence Causing Death was just what it sounded like: a very serious criminal offence.

So we have to wonder why the prosecutors who, as crown attorneys, also hold the function of being officers of the Court, proceeded to take Mr. Kumar to Court on any criminal charge at all - whether they were bound by the law to withdraw all charges against him or not.

A very shocking revelation indeed, which, it seems, only raised its ugly head publicly more than 16-years after Mr. Kumar pleaded guilty to an offence he did not commit, to avoid life in prison for murder on the evidence of the celebrated Dr. Smith's evidence supported by the world famous Hospital for Sick Children, to regain custody of his son, and to avoid deportation from Canada;

How could our Canadian Justice system fall so low?

Next Posting: Part Nine; Gaurov's Father; A Third Shocking Revelation From The Goudge Inquiry;

Harold Levy...hlevy15@gmail.com;

Part Seven: Gaurov's Father; Shocking Disclosure At Inquiry: Kumar Not Told By Crowns About Recent Decision Blasting Smith And Sick Kids SCAN Team;

"THIS WAS A MAN WITH NO RECORD -- A NEW IMMIGRANT TO THIS COUNTRY, A WIFE WITH A BRAIN TUMOUR, A JOB. HE WAS A CONTRIBUTING MEMBER OF SOCIETY, AND ALL OF THE SUDDEN AN ATOMIC BOMB GOES OFF IN HIS LIFE -- MURDER 2. YOU HAVE TO TELL HIM BECAUSE THEY ALWAYS ASK, WHAT'S THE PENALTY, AND YOU SAY, LIFE WITH A MINIMUM PENALTY OF TEN (10) YEARS -- TEN (10) YEARS. HE WOULD HAVE GOTTEN OUT OF JAIL HAD HE
GOTTEN TEN (10) YEARS, AND IF THE TRIAL HAD TAKEN TWO (2) YEARS, HE'S JUST BE OUT NOW FOR FOUR (4) YEARS, AND HIS WHOLE LIFE WOULD BE SHATTERED. NOW, I -- I SEE IN THESE NOTES THAT I'VE BEEN GIVEN FOR THE FIRST TIME TODAY, THE MEETING JANUARY 30TH OF 1992, THE WORDS "DAMAGE CONTROL" APPEAR DEALING WITH THE CASE FROM MR. JUSTICE DUNN. I CAN'T MAKE A CONNECTION BETWEEN THAT MEETING AND WHAT HAPPENED IN MY CASE, EXCEPT THAT IT HAPPENED JUST A FEW WEEKS LATER OUT OF THE SAME OFFICE. I'M STILL SHOCKED."

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LAWYER DAVID GORRELL IN RESPONSE TO QUESTIONS POSED IN CROSS-EXAMINATION BY JAMES LOCKYER;

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One of the most shocking revelations from the Goudge Inquiry is Dinesh Kumar's lawyer's evidence that he was not been informed by prosecutors about a disturbing decision from Ontario Court Justice Patrick Dunn in the Amber case.

As we have seen in many previous posts, this decision was was highly critical of the opinions of Dr. Charles Smith and the Hospital for Sick Children SCAN team.

As will be seen towards the end of this post, a lack of access to this decision had dire consequences for Mr. Kumar which he bears to this day.

By was of background information, here is a post I ran on Thursday, January 10, 2008, under the heading "Damage Control And Lost Opportunity: The Hospital For Sick Children Suspected Child Abuse and Neglect (SCAN) Unit;"

It describes how the Hospital for Sick Children resorted to "damage control" rather than to dissecting Dunn's decision in order to see what they could learn from it in order to avoid future debacles.

I did not realize the additional significance of the damage control meeting - the presence of a prosecutor - until I was later exposed to Gaurov's case at the inquiry.

Here is the earlier post as published:

""C.S. FEELS HE WAS MISUNDERSTOOD."

FROM HOSPITAL FOR SICK CHILDREN DAMAGE CONTROL DOCUMENT;

One would like to think of the Hospital For Sick Children as an institution that wants to learn from its mistakes.

This would especially apply to the serious medical errors made by Dr. Charles Smith and the hospital's Suspected Child Abuse and Neglect (SCAN) Unit that led to a 12-year old girl Timmins, Ontario girl being wrongfully charged with manslaughter.

However, a document has emerged at the Goudge inquiry which shows that the SCAN team reacted to Ontario Court Judge Judge Patrick Dunn's scathing criticisms of its work by holding a "damage control" meeting at which Smith defended his work, and Dunn was branded as "strange" and "from the bottom of the heap"

The handwritten document does not evidence any concern on the part of Smith or the members of the SCAN team that Judge Dunn's rejection of the hospital's opinion that baby Amber was a victim of "shaken-baby syndrome," as opposed to a fall down the stairs, may have been well-founded.

Nor does it evidence any desire to figure out what went wrong so that the risk of future wrongful prosecutions can be minimized.

Instead, after noting that the meeting was attended by the members of the SCAN team and several prosecutors, it goes on to describe Dunn as "strange" a member of the "family court" and "not used to criminal standards."

It goes on to express a concern that, "the judgment is likely to be passed around and (symbol for "therefore") damage control)";

(In retrospect, this prediction was right on the mark as Dunn's carefully structured judgement is resonating today at the core of the Goudge inquiry as one of the first alarm bells to sound over Smith's competence.)

But is is evident that the "damage control" ultimately failed as the hospital's failure to accept its responsibility and do something to remedy its mistakes is now available on the public record for all to see.

One of the most disturbing suggestions in the document is the comment that there is "no precedential value re medical evidence. Family court judge at bottom of heap. Error may be brought up in another case."

The reality is that if Dunn's criticisms - as set out in a beautifully structured decision - had been heeded back in 1991, so many other individuals would have been spared the torment of being wrongfully accused of killing their beloved children.

Instead, the consensus of the meeting appears to be that it is, "acceptable to say we disagree with judge's judgment."

The notes indicated that Smith defended his opinion in the case on the basis that "our standard is higher than theirs" - (an apparent reference to the large number of U.S. experts called by the defence) - "but still has to be held up to a higher standard."

He also attempts to deflect criticism from himself by saying that the case involved an "outside opinion" and that he "relied on police photos."

"C.S. feels he was misunderstood," the anonymous minute-taker wrote.

This is typical of Dr. Charles Randal Smith.

Evidence called at the Inquiry indicates that even his defenders at the highest levels of the Chief Coroner's Office observed toward the end of his career at the hospital that he was incapable of accepting responsibility for his actions and tended to blame others for his own mistakes.

During his questioning yesterday of Dr. Dirk Huyer, former head of the SCAN team and Dr. Katy Driver, who played a prominent role for that team in Amber's case, lawyer Louis Sokolov, who represents the Association in Defence of the Wrongly Convicted, (AIDWYC) suggested that the Hospital's damage control meeting represented, "a lost opportunity."

He sure got that right.

(See previous posting: "A glimmer of understanding: Part Three; A dangerous mix; Dr. Charles Smith and the Hospital For Sick Children SCAN team.)

Posted by Harold levy at Thursday, January 10, 2008;"

Goudge Inquiry Counsel Mark Sandler twigged to the fact that the prosecutor who was present at the damage control meeting played an active role in the Kumar investigation - just several weeks later;

Here is Sandler's examination of David Gorrell, Kumar's lawyer, on this connection:

(Bear with me: I prefer to give full stretched of evidence rather than to risk inadvertently distorting the substance through editing);

CONTINUED BY MR. MARK SANDLER:

MR. MARK SANDLER: Thank you. Mr. Gorrell, we know from the materials that have been filed here that -- that Gaurov died in Toronto on March the 20th, 1992, at the age of five (5) weeks. Due to suspicions about his death, his older brother was apprehended by CAS on that same date. We also know that on June the 16th of 1992, the report of post-mortem examination prepared by Dr. Smith was issued. I'm going to take you to the overview report if I may, which is at Tab 1 of your materials. And if you'd go to PFP143828, at paragraph 59, and you'll
see paragraph 59 is at page 32 of the overview report.

MR. DAVID GORRELL: Thank you.

MR. MARK SANDLER: And you'll see that on June the 26th of 1992, there was a meeting involving Dr. Smith, Constable Line, Detective Rolf Prisor, and -- Prisor, and Crown counsel, Mary Hall and Sandra Kingston. Just stopping there for a -- for a moment. First of all, what was Ms. Hall's position back in June
of 1992, as you understand it?

MR. DAVID GORRELL: I believe she was the -- either a Bureau Chief, or a Crown attorney, an independent Crown attorney. I'm not sure if Scarborough had been hived off yet, and made into a -- a jurisdiction for a separate Crown. But she was the head person. (Blogster's Note: Prosecutor Hall did not testify at the Inquiry. Her side of the story is not represented in this post.)

MR. MARK SANDLER: And were you aware of what, if any, role she played in the Gaurov case?

MR. DAVID GORRELL: Well, she would obviously supervise. She did participate in the -- in a judicial pretrial that we had on October 22nd of 1992, but that was simply because the assigned Crown, I believe, was not available.

MR. MARK SANDLER: And that was Ms. Koehl?

MR. DAVID GORRELL: Ms. Koehl, yes.

MR. MARK SANDLER: And you see from the overview report that that meeting involving the police and Crown counsel and Dr. Smith took place on June the 26th, and the overview report reflects that, according to a police report, Dr. Smith confirmed his diagnosis of Shaken Baby Syndrome, and added that the injuries probably resulted from continuous shaking as opposed to a single violent shake. We also know, Mr. Gorrell, that on June the 29th of 1992, Gaurov's father was arrested for second degree murder, some three (3) days later.

MR. DAVID GORRELL: Yes.

MR. MARK SANDLER: And the bail hearing took place on July the 10th -

MR. DAVID GORRELL: Yes.

MR. MARK SANDLER: -- and were you involved in the bail hearing?

MR. DAVID GORRELL: I became involved on July 2nd. The case first went to Dhamen Kissoon -- K-I- S-S-O-O-N, who had gone to the bar in 1989, and he retained me to lead on the defence. And I became involved on June 30th. And we worked on preparing the necessary affidavits and so on for the bail hearing from June 30th on.


MR. MARK SANDLER: All right.

MR. DAVID GORRELL: Until July 10th.

MR. MARK SANDLER: And we know from the materials that have been filed that the Crown consented to the release of your client on bail, pending trial. Am I right?

MR. DAVID GORRELL: Yes.

MR. MARK SANDLER: And I want to ask you about a conversation that your dockets reflect took place with Rita Koehl on the same date of the bail hearing, June -- July the 10th.

MR. DAVID GORRELL: Yes.

MR. MARK SANDLER: Tell us what transpired.

MR. DAVID GORRELL: This is a -- a case that's sixteen (16) years ago, and therefore, I'm relying heavily on the notes that were found in Mr. Kissoon's file. My own file isn't -- is no longer available. According to the dockets and the notes that I have here, on the day of the bail hearing, Ms.
Koehl, with Sergeant Prisor, I think, present, discussed with me the possibility of a resolution by way of plea to something possibly for no time.

MR. MARK SANDLER: All right. And how did you react to the fact that on a murder case, the Crown had initiated a discussion with you that involved a
potential plea for -- for no time?

MR. DAVID GORRELL: I was surprised.

MR. MARK SANDLER: And did you have any explana -- or was any explanation given to you as to why the Crown was taking that position as -- that early and at that stage in the proceedings?

MR. DAVID GORRELL: Not that I recall, and I would not have asked. You don't look a gift horse in the mouth.

MR. MARK SANDLER: All right. And similarly, I see that, as you've indicated, there was a consent to your client's release on bail, pending trial.

MR. DAVID GORRELL: Yes.

MR. MARK SANDLER: Was that in your experience usual for a murder case?

MR. DAVID GORRELL: John would be better to ask. I haven't done nearly as many as he has, but you can get consent releases on murders, and I think this would have been a case where you could have.

MR. MARK SANDLER: All right. Now, just seeing what, if anything, we can figure out about -- about why the Crown was motivated to proceed in the way it did. I want to ask you about something that you may or may not know about, and that is, we've heard some evidence here, Mr. Gorrell, that on January -- in January of 1992, that same year -- a conference -- a case conference was conducted at the Hospital for Sick Children in connection with the Amber case, and it arose out of the comments that Justice Dunn had made about the Hospital for Sick Children witnesses, including Dr. Smith, at -- at that trial, and we also know that in January of 1992, Ms. Hall and Ms. Kingston participated in that conference.
Two (2) questions arising out of that. Did either Ms. Hall or Ms. Kingston, or anyone else from the Crown's office have any discussions with you about the Amber case and its impact upon the Gaurov case?

MR. DAVID GORRELL: No.

MR. MARK SANDLER: Were you aware that -- that the Crowns, including Ms. Hall, had participated in a case conference in connection with the Amber case before the Gaurov case had taken place?

MR. DAVID GORRELL: No.

MR. MARK SANDLER: All right.

MR. DAVID GORRELL: All right, let me rephrase that. I know that they met again, I think, on June the 26th about this case, about the -- the Gaurov case, but I was unaware of this meeting. I have the notes in front of me here. I've seen them today for the first time. I was unaware of this meeting on January 30th, 1992.

MR. MARK SANDLER: All right. And you've made reference to -- to the meeting that took place here and -- and I've made reference to the Crown, so just taking you to page 32, paragraph 59, that's the reference that I took you to a little bit earlier of the meeting that took place involving Dr. Smith, the police, Ms. Hall, and Ms. Kingston. Am I right?

MR. DAVID GORRELL: Yes.

MR. MARK SANDLER: And were you aware that -- that that conference had taken place prior to the laying of the charges?

MR. DAVID GORRELL: I don't think so. It's been a long time ago, but I don't think I was aware of that meeting, and I don't think I had the police notes of it. I do have the original disclosure here from 1992, and the summary that is -- is available in these materials is not in that disclosure.

MR. MARK SANDLER: Okay, and leaving aside your awareness of the June 26th, 1992 meeting, you earlier indicated that you were the one that actually
gave Mr. Struthers a copy of the Amber decision, and this would be sometime later on.

MR. DAVID GORRELL: Yes.

MR. MARK SANDLER: Were you even aware of the Amber decision back in June of 1992 or during the currency of your involvement in the Gaurov file?

MR. DAVID GORRELL: No, I was not.

MR. MARK SANDLER: Was it something that you would have been like -- that you would have liked to have been aware of?

MR. DAVID GORRELL: Oh, yes;"

As the following transcript indicates, lawyer James Lockyer, who represents William Mullins-Johnson, Sherry Sherret-Robinson and at least seven unnamed persons at the Inquiry, was quick to zoom into this connection in his cross-examination of Gorrell;

MR. DAVID GORRELL: This was a man with no record -- a new immigrant to this country, a wife with a brain tumour, a job," Gorrell told Lockyer;

"He was a contributing member of society, and all of the sudden an atomic bomb goes off in his life -- murder 2. You have to tell him because they always ask, What's the penalty, and you say, Life with a minimum penalty of ten (10) years -- ten (10) years. He would have gotten out of jail had he gotten ten (10) years, and if the trial had taken two (2) years, he's just be out now for four (4) years, and his
whole life would be shattered. Now, I -- I see in these notes that I've been given for the first time today, the meeting January 30th of 1992, the words "damage control" appear dealing with the case from Mr. Justice Dunn. I can't make a connection between that meeting and what happened in my case, except that it
happened just a few weeks later out of the same office. I'm still shocked.

MR. JAMES LOCKYER: The same Crown, as a matter of fact --

MR. DAVID GORRELL: Well, no, -- well, no, Ms. Koehl wasn't on this case, but Mary --

MR. JAMES LOCKYER: Mary Hall --

MR. DAVID GORRELL: Mary Hall, the same Crown attorney.

MR. JAMES LOCKYER: -- was the common denominator to your case and their case, is that right?

MR. DAVID GORRELL: Yes, and the Scarborough courthouse --

MR. JAMES LOCKYER: Mm-hm.

MR. DAVID GORRELL: -- and Charles Smith, Of course. But --

MR. JAMES LOCKYER: I think Mary Hall was actually the Crown when you did the pretrial in October--

MR. DAVID GORRELL: Yes, she did.

MR. JAMES LOCKYER: -- on the Gaurov case, is that right?

MR. DAVID GORRELL: She was there. I think Ms. Koehl was unavailable for some reason, but...

MR. JAMES LOCKYER: Yes. And I -- as I recall, Mr. Koehl also said that any plea arrangement would be subject to the approval of Ms. Hall.

MR. DAVID GORRELL: That I don't remember, but I -- I wouldn't be surprised in any case.

MR. JAMES LOCKYER: It's in one (1) of the documents in the file you arrived with today.

MR. DAVID GORRELL: Really?

MR. JAMES LOCKYER: Yes.

MR. DAVID GORRELL: Fine, then I accept
that.
MR. JOHN STRUTHERS: It was the practice
at the time.

MR. JAMES LOCKYER: Yes.

MR. DAVID GORRELL: But the -- just -- just to continue with this, what -- I said, my heart went out to Gaurov's father. I don't know how I'd -- I'd act in this situation if I had someone like Mr. Struthers saying, Well, you can get ninety (90) days on weekends. After emission, that's sixty (60) days. That's a maximum of fifteen (15) weekends. The Mimico is jammed, so you'll wind up doing only three (3), or four (4), or five (5). You can do that, or you can sit in the courtroom and be judged by everybody with a risk, with Charles Smith up there with a mantle of Sick Kids on his shoulder. You can go to jail. You can go to jail on a
manslaughter. I really didn't think a murder was in the cards, but you can go to jail on a manslaughter. What decision would I make? I'm pretty sure I'd make the
decision he made even if I were not guilty. But as his lawyer, I'm the only person in the whole scenario that Doesn't judge him. The police judge him when they charge him. The Crown judges him when they prosecute him. The Judge judges him, the jury judges him, the press judges him. When he says, I want to plead guilty, and
I will sign on the dotted line, and I did it, I'm not going to tell him, No, sir, you're going to face the trial and if you get eight (8) years, that's for the
greater good of the justice. I took his instructions and I -- I would not be at all surprised, with the stress that man was under at the time, if he was doing it out of expediency.

MR. JAMES LOCKYER: And the instructions that you received from him by way of the form that you prepared, obviously the way it's typed up, it was -- the words were your words in that document, is that fair?

MR. DAVID GORRELL: Yes, they were my words.

MR. JAMES LOCKYER: And they were words designed to fit the notion of criminal negligence. Reckless is hardly a word an east Indian that doesn't
speak English is going to come up with.

MR. DAVID GORRELL: No, the -- this -- these were my words.

MR. JAMES LOCKYER: Yes. And, as Mr. Struthers was just saying, it was more a document for your protection than a document to assist Gaurov's
father, is that fair?

MR. DAVID GORRELL: I think that's probably fair. It's also a document that you would use to fix his mind as to what he's doing, so that he can't
come back and -- I guess to protect counsel, that's right. I(t) was thirteen (13) pages;"

Dear readers:

Imagine how the prosecutors must have felt to learn about Justice Dunn's troubling criticisms of the work performed by Dr. Charles Smith and the Hospital for Sick Children SCAN-TEAM in the then recent Amber case;

Would that not have raised serious questions as to whether or not there was a reasonable possibility of obtaining a conviction in the case?

At the very least, shouldn't the existence of the decision - which was not likely publicly available at that time - have been made to the defence lawyers?

At least, that way they could assess the strength of the Crown's case before putting the plea to criminal negligence causing his son Gaurov's death to his client whether or not the law relating to disclosure at the time required them to do so?

As a criminal lawyer, I suspect that after reading the Dunn decision I would have been in a position to more confidently advise the client to contest the murder charge - instead of having to go through the contortions involved in a criminal negligence plea where I would have so much doubt about my client's guilt?

Just imagine how much pain this mourning family would have been spared - let alone the need to bear the load of sixteen years of stigma in their tiny community - and having to fight for ultimate exoneration after sixteen years in the Ontario Court of Appeal;

Next: Part Seven; Gaurov's father: Another shocking revelation;

Harold Levy: hlevy15@gmail.com;

Part Six: Gaurov's Father: Spotlight On The Court Of Appeal;

"FRESH EVIDENCE IN THE FORM OF NEW MEDICAL EVIDENCE IS NOW AVAILABLE WHICH ESTABLISHES THAT THE DECEASED BABY, GAUROV KUMAR, LIKELY DIED FROM ACCIDENTAL OR NATURAL CAUSES AND SHOULD BE ADMITTED INTO EVIDENCE ON APPEAL;"

NOTICE OF APPEAL: ONTARIO COURT OF APPEAL;

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Dinesh Kumar's fight for exoneration after sixteen years is now before the Ontario Court of Appeal.

To its credit, the Ontario Government has agreed that the appeal has merit - and has not put any obstacles in its way.

To this writer's knowledge, at the moment more than a dozen cases involving Dr. Charles Smith have been filed in the Ontario Court of Appeal.

Mr. Kumar is appealing his conviction on the following grounds:

0: Fresh evidence in the form of new medical evidence is now available which establishes that the deceased baby, Gaurov Kumar, likely died from accidental or natural causes and should be admitted into evidence on appeal;

0: There was no absence of due diligence on the part of the defence at trial.

0: Leave should be granted to the Appellant to withdraw his plea of guilty, and,

(0) The fresh evidence is such that to sustain the Appellant’s conviction would amount to a miscarriage of justice.

In a nutshell, he is asking the Court to admit the fresh evidence, grant leave to withdraw his plea of guilty should be granted, quash the conviction, and enter a verdict of acquittal.

A date has not yet been set for the appeal.

Harold Levy...hlevy15@gmail.com;

Part Two: Gaurov's Father: Pleaded Guilty 16 Years Ago Because He Feared Smith; Judge Open Way To Kumar's Appeal After Crown Conceeds Its Merit;

"IN HIS APPLICATION, MR. KUMAR CONTENDS THAT HE WAS EFFECTIVELY FORCED TO PLEAD GUILTY, RATHER THAN FACE TRIAL TESTIMONY FROM THE COUNTRY'S LEADING FORENSIC PATHOLOGIST - CHARLES SMITH.

THE NOW-DISCREDITED DR. SMITH WAS TO TESTIFY FOR THE CROWN THAT GAUROV WAS A VICTIM OF SHAKEN BABY SYNDROME - A POPULAR DIAGNOSIS AT THE TIME - WHICH IS NOW IN SERIOUS QUESTION IN THE FORENSIC PATHOLOGY COMMUNITY.

REFERRING TO THE CONTROVERSY, JUDGE ROSENBERG SAID YESTERDAY: "NEW EVIDENCE HAS NOW COME TO LIGHT CASTING SERIOUS DOUBT ON THE VALIDITY OF THE FINDINGS OF DR. SMITH."

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FROM GLOBE AND MAIL REPORTER KIRK MAKIN'S STORY ON DINESH KUMAR'S BID TO APPEAL HIS CONVICTION IN THE DEATH OF HIS SON IN SPITE OF HIS GUILTY PLEA ANDTHE PASSAGE OF SIXTEEN YEARS;

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Kirk Makin reports in today's Globe and Mail that Justice Marc Rosenberg has given the green light to Dinesh Kumar's application to appeal his 1993 conviction.

Makin has been covering the Goudge inquiry from the outset and is the author of "Redrum The Innocent", an extraordinary account of the wrongful conviction of Guy Paul Morin, published by Penguin in 1992.

"A Toronto man's chances of being exonerated in the 1992 death of his five-week-old baby appeared to soar yesterday, after an Ontario Court of Appeal judge reopened the 16-year-old case and offered him some hopeful words," Makin's story begins;

"Mr. Justice Marc Rosenberg said he found it "very understandable" that Dinesh Kumar accepted a plea bargain from the Crown in 1993, which resulted in him getting a 90-day sentence for criminal negligence causing death," it continues.

"Judge Rosenberg said the plea offer was "exceedingly lenient," considering Mr. Kumar faced a term of life imprisonment if convicted for the murder of his child, Gaurov.

"It is manifestly in the interests of justice that an extension of time be granted in these unusual circumstances, notwithstanding the long passage of time," Judge Rosenberg said.

In his application, Mr. Kumar contends that he was effectively forced to plead guilty, rather than face trial testimony from the country's leading forensic pathologist - Charles Smith.

The now-discredited Dr. Smith was to testify for the Crown that Gaurov was a victim of shaken baby syndrome - a popular diagnosis at the time - which is now in serious question in the forensic pathology community.

Referring to the controversy, Judge Rosenberg said yesterday: "New evidence has now come to light casting serious doubt on the validity of the findings of Dr. Smith."

In another significant move yesterday, Crown counsel Gillian Roberts told the court she did not oppose reopening Mr. Kumar's appeal - a concession that indicates the Crown sees merit in his appeal.

After the brief hearing, Mr. Kumar - who was accompanied by his wife, Veena, his son, Saurob, and several relatives - expressed delight at the outcome. "This is a great day now," he said in an interview. "I am happy. It is a very good thing for us."

Defence counsel James Lockyer said he will file Mr. Kumar's appeal immediately. "I think that the way Justice Rosenberg spoke was very encouraging," he said. "The next step is to sit down with the Crown and sort out where we go from here."

Mr. Lockyer said he is hoping the Crown will simply agree to Mr. Kumar being exonerated, without both sides having to go to the trouble and expense of seeking expert opinions from forensic pathologists abroad.

"I would like Mr. Kumar's name to be cleared as soon as possible," he said.

Five weeks after his birth, Gaurov screamed in his sleep one night. Mr. Kumar told police that he rushed over to the child's crib to find him gasping and looking bluish. Doctors determined later that night that Gaurov was brain-dead. A day later, on March 20, 1992, he was removed from life support.

On June 26, 1992, Mr. Kumar was arrested for second-degree murder.

The real cause of Gaurov's death might never be determined. In a brief to the court, Mr. Lockyer and co-counsel Alison Craig stated that Dr. Smith should have realized that shaken baby syndrome was not even a legitimate diagnosis at the time, since one of three indicators that must be present for such a diagnosis - retinal hemorrhages - was absent."

Harold Levy...hlevy15@gmail.com

Part One: Gaurov's Father: Seeking Exoneration After Sixteen Years: Pleaded Guilty Because he Feared Smith;

"IN THE INTERVIEW, MR. KUMAR SAID THAT HE LONGS ONLY TO RESTORE HIS REPUTATION; THAT HE TRIES NOT TO THINK ABOUT THE PROFOUND EFFECT DR. SMITH'S CONCLUSIONS HAD ON HIS FAMILY.

"I DON'T NEED TO SAY ANYTHING ABOUT HIM," MR. KUMAR SAID. " HE IS GOING TO GET PUNISHED BY GOD."
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DINESH KUMAR TO JUSTICE REPORTER KIRK MAKIN; THE GLOBE AND MAIL;

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The Ontario Court of Appeal is once again confronting the chaos inflicted on Ontario's Justice system by Dr. Charles Smith.

As Justice reporter Kirk Makin set out in the Globe and Mail on May 26, 2008, the appeal has been brought by Dinesh Kumar who's son died sixteen years ago.

"After learning that the country's leading forensic pathologist - Charles Smith - was going to testify against him at his trial for murder in the death of his five-week-old baby, Dinesh Kumar realized his chances of an acquittal were minuscule," Makin's story begins.

"My lawyers told me that whatever he said, the court would make their decision because of it," Mr. Kumar said, in his first public statement since his 1992 conviction. "My lawyer told me that Dr. Smith was like a god in court. The whole thing was up to him,"" the story continues.

"Resigned to his fate, the 42-year-old man accepted an extraordinarily lenient plea offer from the Crown. He admitted to a crime that Mr. Kumar insists he did not commit - shaking his baby, Gaurov, to death. His sentence was 90 days in jail for criminal negligence causing death - a far cry from the term of life imprisonment he had faced.

Sixteen years later - with Dr. Smith's reputation reduced to ashes and many of his court findings in great doubt - Mr. Kumar is returning to court in search of exoneration. Tomorrow, he intends to tell an Ontario Court of Appeal judge that his guilty plea was the act of a desperate man who was terrified of spending his life behind bars.

"I want to show people that I didn't do anything to my son," Mr. Kumar said in an interview.

"This is always on my mind. I came to this country for its good opportunities - and then, this happened to me. I have felt a great sadness inside. Almost every night, I have been crying. It changed my life totally."

The Kumar case was among 20 cases Mr. Justice Stephen Goudge has scrutinized recently at an inquiry into errors Dr. Smith made during his two-decade reign as Ontario's top forensic pathologist.

As part of the application to reopen the case, Association in Defence of the Wrongly Convicted lawyers James Lockyer and Alison Craig intend to argue that Dr. Smith's theory - that baby Gaurov was a victim of shaken baby syndrome - is scientifically unsustainable.

"Some medical experts have gone so far as to suggest that the condition of shaken baby syndrome is a medical myth," the lawyers maintain in a brief to the court.

In his affidavit, Mr. Kumar states that his lawyer - David Gorrell - urged him to accept the Crown's extraordinary offer in 1992. He said that he was petrified at the prospect of being deported or having his other son, Saurob, taken away permanently.

"I could not allow my wife to bring up Saurob without me," he said in the affidavit. "I could not conceive of losing him too. I wanted to get everything over with. It was the hardest decision I ever had to make."

Mr. Kumar had emigrated from India just two years earlier. He married, and Gaurov was born shortly afterward. Just five weeks later, Gaurov screamed in his sleep one night. Mr. Kumar said he rushed over to the child's crib to find him gasping and bluish. Doctors determined later that night that Gaurov was brain-dead. A day later, on March 20, 1992, he was removed from life support.

There was little time for Mr. Kumar and his wife, Veena, to mourn. Based on Dr. Smith's autopsy conclusions, police quickly homed in on Mr. Kumar as a killer. On June 26, 1992, he was arrested.

Mr. Kumar said that after their ordeal he and his wife decided not to have any more children, for fear they might lose them. "We were completely devastated and dejected," Mr. Kumar said in his affidavit. "I carry a photograph of Gaurov everywhere I go. We cry for him. I think of him every day.

"I love him, cared for him, and would never have done anything to hurt him. I did not, as was claimed, shake him at all. I was a gentle, careful, loving father to him at all times without exception."

The real cause of Gaurov's death might never be solved. In their brief, Mr. Lockyer and Ms. Craig state that Dr. Smith ought to have realized that shaken baby syndrome was not even a legitimate diagnosis at the time, since one of three indicators that must be present for such a diagnosis - retinal hemorrhages - was absent.

They said that bleeding in Gaurov's brain lining at his autopsy could have been the result of a birth injury that reopened and bled again.

In the interview, Mr. Kumar said that he longs only to restore his reputation; that he tries not to think about the profound effect Dr. Smith's conclusions had on his family.

"I don't need to say anything about him," Mr. Kumar said. "He is going to get punished by God.""

Harold Levy...hlevy15@gmail.com;