In 2018, in two separate Gold Coast homes, a baby boy and a baby girl collapsed while being cared for by their fathers.
The infants, both aged under six months, were separately taken to the Gold Coast university hospital. Their conditions stabilised, and both children went on to make a full recovery.
But a doctor at the hospital had seen something that concerned them: medical imaging showed the children were suffering internal bleeding. They believed the babies had been shaken, causing the bleeding which had in turn caused the babies to collapse.
In Queensland, doctors who have a “reasonable suspicion” a child has been abused have a statutory obligation to contact authorities, so the doctor reported the cases to police.
Within months, the fathers, both aged in their 20s, were each charged with causing grievous bodily harm to their infants – an offence carrying a maximum prison term of 14 years.
There were no external injuries to the children, no witnesses to the alleged shaking, and no evidence the fathers had previously been violent towards their children – the medical report had been the basis for the police investigation, and remained the central piece of evidence.
Almost three years after the incidents, and despite both men being committed to stand trial, the Queensland office of the director of public prosecutions has discontinued their cases. Submissions by lawyers for the men convinced prosecutors that there were “insufficient prospects” of proving the charges.
The two men were charged because of a diagnosis backed by “shaken baby syndrome”, a theory increasingly being unpicked by expert witnesses and lawyers in courtrooms around the world.
Michael Nott, one of the lawyers who represented the Gold Coast men, says they had avoided a serious miscarriage of justice.
“You have families believing in the institutions of this society; that doctors will do the right thing, that police will do the right thing, that courts will do the right thing.
“When this happens, that faith drops. It tears them apart.
“They had the support of not only their wives but their wider families and friends. They’re from normal Australian suburban families … their child collapses, and for three-and-half years they go through hell and all kinds of stress, because of doctors making opinions with no scientific basis.”
Shaken baby syndrome is used to explain a triad of injuries in children: subdural haemorrhage, the brain swelling and retinal haemorrhage.
The syndrome is central to three outstanding appeals – including in relation to charges of child homicide – in Victoria.
In June, the president of the Victorian court of appeal, Justice Chris Maxwell, said in relation to one of those appeals that the forensic science underpinning the theory was “the real field of battle”.
“Is this something that the court of appeal will have to wrestle with sooner or later, or should wrestle with in the interests of the integrity of the criminal justice system or public confidence in it, or some combination of those things?” Maxwell asked, before deciding to grant the appeal.
Senior figures at the Victorian Institute of Forensic Medicine have also expressed concern about the use of the syndrome to pursue criminal cases, including Prof David Ranson, Prof Stephen Cordner and Assoc Prof Richard Bassed.
They argue it is impossible to prove the science that underpins the syndrome to a point that would make it admissible in a criminal court, because experiments cannot be conducted on live babies.
Using evidence of the syndrome in cases where other harm can be proven by medical examinations or witness testimony is considered less problematic. Last month another Queensland man was sentenced to seven years prison after he pleaded guilty to three charges relating to the assault of his infant child and several drug offences.
His baby, who is likely to require care for the rest of its life, was found to have the “triad”, but also an injury to the cranio-cervical junction (where the brain joins the spinal cord), a bruise to the chin, and fractured ribs. Others gave evidence that they had seen him roughly handling the child before the incident that resulted in it being taken to hospital.
Dr Bill Liley, an expert on head trauma in infants who will present at a national brain injury conference in November, believes the syndrome is under reported, and that the “triad” does present in children who are shaken (although cannot always be explained only by shaking).
But he says fighting over the syndrome’s use in the criminal justice system is distracting from a far more important issue: an absence of education for new parents that would reduce the chance of children being harmed.
He does not blame defence lawyers – particularly those in the US – for finding ways to challenge the syndrome, nor does he think police are wrong to charge fathers when the triad is present. But if a parent is charged for shaking, “the second defendant should be the birthing hospital,” he says, because there had been a failure in educating that person on how to care for the child.
“It’s a preventable injury,” Liley says.
Neither of the Gold Coast men recently cleared of shaking their children wished to speak publicly, Nott said, as they remained deeply troubled by their experience.
Their cases were formally discontinued in July and August. For the first time in almost three years, the fathers were again allowed to spend time alone with their children.
The single medical report had set off a chain of events, Nott said, that also cost each father about $100,000 in legal representation for three distinct court matters: intervention orders taken out against them by police on behalf of the children, custody orders taken out against them by child protection authorities, and the criminal cases.
Nott said the doctor’s medical reports contained serious flaws, both in relation to how information was interpreted, and how it was presented. He claimed there were also issues with the adequacy of disclosure by the prosecution that he raised as part of his submission to the prosecution about discontinuing the cases.
A spokesperson for the Queensland office of the director of public prosecutions said that in both cases the child sustained “significant injuries … which were non-accidental and unexplained.
“The medical report … was only one part of the available evidence. Further evidence was obtained as part of the ongoing investigation of the issues that arose in these cases. On a careful review of the evidence in each case, it became apparent that there were insufficient prospects of successfully proving the offences charged against each of the men.”
This is not a matter of me defending child abuse ... My real problem is that the medical profession and the police are … not doing a proper investigation
Queensland police did not answer specific questions about the case, but said investigations carried out by the child protection investigation units, such as those conducted into the Gold Coast men, were “often complex due to the family-orientated circumstances that they generally involve.
“Investigations can include but are not limited to interviewing family members, sourcing medical documents, trying to identify witnesses, door-knocking and looking for CCTV,” a spokesperson said.
Gold Coast health also declined to answer specific questions about the cases or the doctor involved, including whether the hospital would provide guidance to staff about shaken baby syndrome, but said every patient subject to a child protection investigation undergoes extensive examination to exclude other causes.
Nott said shaken baby syndrome encouraged medical practitioners who are trained to diagnose the injuries of patients to instead make a finding about how those injuries were caused.
In some cases, he said, doctors who had triggered criminal investigations appeared to be overzealous in their approach.
“The shaken babies theory is more a belief than a science,” Nott argued.
Nott has appeared on behalf of four Australian men accused of shaking their baby who have later been cleared. Each case was referred to police after a child presented at hospital with unexplained injuries.
Nott says a judicial inquiry should be held into the units within hospitals that are designated to protect children.
In the case of the Gold Coast babies, Nott believes that despite the hospital’s claims, the cause of the children’s collapse was not properly investigated, as it was assumed too early that they had been shaken. While it did not form part of his submissions to prosecutors, Nott says there was evidence both children had family histories of medical issues which could explain their injuries.
“This is not a matter of me being out here defending child abuse: we know there are people out there who assault and kill children and babies,” he says.
“When we think that’s happened, sure, do the investigation. My real problem is that the medical profession and the police are … not doing a proper investigation.”