Behind The Scenes with Motive & Method

Hi, Michael Bachelard here. I'm the host of Diagnosing Murder. Since the podcast went out, we've received a huge response from you. A lot of people telling their stories. And the more I hear, the more I realize this story isn't over. So I'll continue reporting on this issue. In fact, we're working on a bonus episode right now about another extraordinary case. So stay tuned for that. In the meantime, here's a behind-the-scenes interview I did with Professor Zanthi Malat and Tim Watson Munro. They're the hosts of True Crime Podcast, Motive and Method. And in it, they've turned the tables on me. They're asking the questions. Till next time. You've got years of experience under your belt as an investigative journalist. For our listeners, can you give us a bit of a resume? Ah, boy. I've been a journalist my whole career. Started as a copy kid at the Canberra Times back in the early 1990s. I've been a foreign correspondence. The Indonesia correspondent. I've been an investigative reporter since 2006. I edited the investigative team. So a lot of that behind-the-scenes stuff for Nick McKenzie and some of those legendary investigative reporters. I was the sort of editor on those stories. I've edited the world section. I've deputated the age and then ultimately I decided actually what I really wanted to do was report. So I came back to reporting about three years ago. I recall, I mean, you have a fabulous reputation. But I think we first met. I'm not sure if you can mention this. But you interviewed Zanth and I over the Robert Farquhousen case. It's subject to ongoing investigations and a possible appeal. That's right. Yeah, a couple of years ago. One of the things, I came out of editing with a few things I really wanted to look at that have been I'd known about where around for a few years and the Farquhousen case was one of them. And what I thought was serious questions over whether that conviction was sound. And I found my way to both Tim and Zanth in that process. And yeah, I was produced a podcast about it a couple of years ago. Yeah, I really enjoyed working with you at that time. So Michael, diagnosing murder is your latest investigative podcast. Was there a specific case that drew you into this issue of shaken baby syndrome? Well, what was it that prompted you to start looking at the topic? Well, again, this was something that I'd known about for some years and and one of our I got as an editor. I got one of our investigative reporters to look at it and covered. He covered up a court case here in Victoria in 2021, which was a second and subsequent appeal in the shaken baby case. That's the Jesse Venassia case. That went to a full court of the of the Victorian appeals court. And they ruled against Venassia and said it was a majority decision to one. And they said shaken baby syndrome is a real thing. And this guy should be in jail. And for me, it's kind of that's been unfinished business. I felt like we hadn't really had a proper investigation journalistically of the science behind shaken baby syndrome, the politics around it, and the kind of some of the cases that have come up. But I didn't want to do it. I didn't want to make another podcast about dead children, frankly, after the Parkinson's case. And I didn't want to be that guy. But then I went to a meeting about this time last year and I heard about this particular case. It's the case we cover in the podcast. We've given them the names, Kabir and Deepika. It's a couple who at that time were facing criminal charges for recklessly causing serious injury to their child who we call doer. And the case was live. It was current. They had lost doer for 18 months to foster care. They had he was Kabir was confronting a criminal case and potentially up to 15 years in prison. And they were willing to talk. And as a journalist, that is an incredibly rare combination. They were willing to talk on tape. And I just thought, well, I don't want to do this now, but I can't pick the timing here. I just have to jump on this case. And so I heard the despair in their voices, having listened to those episodes. It's real for these people, isn't it? They, and this is not a child who died. But it can be more serious where children die. There's been cases overseas where people have been sentenced to death on the basis of perhaps dodgy evidence regarding Shaken baby syndrome. This reminds me very much of Meadows law. You know, the one child death is sad to his suspicious and three is murder, which we've talked about in relation to other cases on the podcast. You know, Professor Soror Meadows came up with that ethos. And you know, it's it's shadow was across a lot of cases. And the same with Shaken baby syndrome. But before we get into what you found across your investigation, can you just give us a snapshot of what Shaken baby syndrome is or at least what the classic diagnosis would be? The classic diagnosis of Shaken baby syndrome begins really with a medical three medical signs. One is sub juror hemorrhage. So that's bleeding under the juror layer of the brain. It's one of the layers of the brain. The second is retinal hemorrhage or bleeding in the light sensitive layer at the back of the eyeball. And the third is a variety of symptoms or a variety of medical conditions, but essentially swelling of the brain. And if a child comes into a hospital and has one or more of those signs, clinical signs, it's been held since really the 1970s, but in a kind of judicial and legal sense, probably since the 1990s, that that might signal a criminal act of shaking. The diagnosis itself is morphed over time. They tend not to call it Shaken baby syndrome anymore. They call it abusive or inflicted head trauma. They add the words with or without impact because they sometimes say that perhaps there was impact involved. Whether or not there's bruising. But either way, it's these symptoms or these signs that kind of seem to lie behind that diagnosis. And of course, since the probably the 1970s and 80s, there's been a law in most states of Australia that you must if you're a child, if you're a physician or a pediatrician, you have a responsibility to report into mandatory reporting, responsibility to take it to child protection. And the child protection people might take it to the police. And so you get this kind of cascade of responses that come up once a child, particularly a small child, the baby, appears in hospital with these signs. The system takes over in a way. It reminds me of a case I did boy nearly 40 years ago. I was very green. I'd just come to Melbourne from Sydney. And it wasn't the case of a dead baby. But it was a case of a woman who had had her child taken by community services as they were known then. On the basis of a diagnosis of one's thousands by proxy. Oh, right. That's a very, very rare condition. And the backstory to this case was that she'd tragically lost a child to sudden infant death syndrome. She was understandably anxious about the welfare of the newborn. So whenever the child had a sniffle or a rash, she would take it down to the hospital. And eventually I said, well, you've been here a lot. Long story short, she was diagnosed with one's thousands by proxy. But the process in terms of what you're describing is very similar. The lawyers did a backtrack on the evidence forensically. And they found the initial case notes when she'd first presented. And it was a social worker had written one's thousands by proxy question mark. And that was how she became quite diagnosed. Well, that started it. It went up the food chain. I could put it that way. Like a Chinese whispers, so by the time it was put in front of a pediatrician, it was a well-established fact that this was a very rare case. But a legitimate case of one's thousands by proxy. The result of that case, while she took them on, there was evidence led to say this was nonsense. I can't recall the statistical prevalence of one's thousands by proxy, but it's exceptionally rare. And her child was returned to her. What she suffered at most was an anxiety disorder based on tragedy. So this process does go on all the time, would seem, in varying iterations. Yeah. I think that's a really pertinent example. And what often, well, what happened in the case of Kabir and Deepika, and I've heard it happen happening in other cases as well, is that the diagnosis is made, and that sets this cascade of events and interventions in train. And then the parents are asked with intent what happened to the child. And from their perspective, Kabir and Deepika's perspective, the child just went limp one day. They don't know. They're waiting for a medical explanation. As to what went wrong. So when they're asked what happened they say the child just went limp But that's not an explanation that satisfies the people asking the question the forensic pediatricians and child protection and the police What they want to hear is I shook the baby So you're kind of in this catch 22 you either say I shook the baby and satisfy their question Confess an avoid Confess an avoid or you say I don't know what happened and your your Essentially lying about what happened because they already know what happened so your guilty until you can prove otherwise And then obviously in this context you can't prove otherwise because there could be any number of reasons why a child will present with those symptoms Right and I mean medical science is still puzzled about many of the reasons why children Get ill have seizures or die. You've spoken to medical experts who are now disputing We'll call it shaken baby syndrome. What do they say to you? Well, probably the key expert that we've interviewed in the podcast and it was I was so pleased to have got him because he's an incredibly credible voice In this space is Stephen Cordner. Oh, yeah, yeah, yeah, the former head of Victorian Institute of Forensic Medicine for decades And he's become very concerned about this diagnosis and he says You know, the more we learn about Babies and children the less we know The things we were we were certain about a decade ago about say fractures, for example We're signals of abuse may not be because there are a bunch of genetic conditions and other medical conditions that might Might cause those He says there are 40 to 50 known Medical causes That could be associated with aspects of the triad symptoms for the 40 or 50 known ones And then he says there are those that we don't know so 40 or 50 different reasons why those symptoms could present that do not reflect Intentional shaking or a child abuse in essence That's right 40 or 50 conditions which Appearances being asked were what went wrong with your baby and they say I don't know that could be An absolutely legitimate answer an alternative That has nothing to do with shag and baby syndrome That's right and you know, I guess that's the basis of his concern in the Kabir and Deepika case without giving any spoilers spoiler alerts He provided cordon a provided an expert report to the To the defense which was then passed on to the prosecution which said that he thought it was Do a baby do as traumatic birth she was out, you know Second-stage label was like you know less than a minute or a couple of minutes the mother had a Fourth-degree tear she described it as being the mother Deepika described it as being from the vagina to the bum hole This was a traumatic traumatic birth. Yes, but in the prosecution it says no birth was normal didn't didn't recognize this at all and Coordinate said you can't rule out that that caused you know Traumatic bleed in baby doers head which would explain two things it would explain Why she had a seizure and collapsed, but it would also explain why she had been such an Unsettled child up until the point of that seizure to the point where she'd been in hospital and to doctors with With the parents saying why is this why will this child not be well not not lay flat? Why do I have to hold at the whole time? All this was on the medical record but the the forensic pediatricians diagnosed Shaken baby syndrome at first sight. Well it asks a third question in my view and that is Why did the prosecution? Sort of skate over that obvious medical fact. I would have thought I'm not a doctor of course But common-sense dictates that it's relevant. Why would you say it was a normal birth when it completely was not a normal birth? Well, if you go through the document and I've been through them It's it's kind of downplayed a little bit that that birth trauma But there's they can't say they weren't told that the typical was very upfront from the beginning of Doors arrival in hospital about what what the birth had been like But you know that was coming from the mum and the mum was under suspicion and there's a tendency I think to think that parents can't be believed But there's medical evidence That she suffered a major vaginal tear during childbirth. You can't make that up if it's on the record medically I would not thought. What do you think? Oh, yeah, I mean you see this a lot. I don't you have something doesn't necessarily fit a narrative It gets kind of diminished And yeah, and I think you're right. I think there is sometimes a skepticism about what parents say people assume parents Don't know what they're talking about when they talk to medics that you know their Their experience of a situation is kind of less relevant than the medical opinion and I think you know These these people know they were there right and yet their experience of that is Is diminished in that story? Well, we've discussed many times by the usual of confirmation bias Yes, where you sit out with a point of view and you look for evidence that confirms that and exclude all other evidence Yeah, that happens all that well, we know that right miss carriages justice one of the key reasons it happens tunnel vision confirmation bias. Yeah that exact thing Was writ large in this case. We have a we have a massive case of documents thanks to various people who intervened for Kabir and Deepika and among them You can you can follow the train the police Investigation goes out and starts looking for signs of domestic violence. So for example, they see a bed head In one of the bedrooms in the house now Kabir says I dropped that bed head one time when we were moving. It's an IKEA bed You know and damaged it it happens all the time, right? Right, but in the police evidence This is logged as a quote fist sized hole directly above where Deepika's head was It's not just a hole. It's a fist sized hole. Yeah They were also suspicious that you know the clothes that the babies clothes were Soaking in a sink rather than in the washing machine They were suspicious because the cot mattress was too short for the cot Like things innocuous things led to their suspicions and so their diagnosis based on these kinds of things was That he was perhaps a cohesive controlling domestic violence perpetrator. Yeah Completely disbelieving what Deepika said In fact follow it through she's being controlled by you. She's being controlled So follow that through to a logical conclusion. You end up with two Reports by domestic violence practitioners who say firstly well the main problem still is that he won't admit to it to these injuries that we know existed because And she won't admit to being Coercively controlled because she's coercively controlled So perhaps the solution to that is to put him in prison so that she will finally feel free She'll see the life to admit it now, you know, I mean I Look, I don't I don't want to diminish coercive control and I certainly don't want to diminish domestic violence or the fact that Shaken babies syndrome in some cases is real Well, there's there was actually a good big scientific debate about that too That's why I threw it in and we spend a lot of time. Oh Michael We spend a lot of time in in the podcast talking about that but nevertheless I guess the point the point is that if you can listen to Kabir and Deepika talking about their lives to each other interacting with each other in our podcast and I guess you get to hear as to whether you think she's she's so subdued that that she that she's been controlled by him As for does Shaken baby syndrome exist that that really is still a massive source of conjecture, but some people do abuse their children and do Shake them and it does call trauma, but are you saying that the symptoms that have been Identified as reflecting Shaken baby syndrome of what is contested right and again I don't want to for a moment diminish child abuse. It absolutely happens and is horrific and You know the state does need to intervene inside in in cases of child abuse, but Does Shaking a baby can Shaking a baby cause retinal hemorrhage subdual hemorrhage and brain swelling By the act of shaking There is doubt about that and the doubt really centers on the science. You can't shake a baby to find out so the evidence is anecdotal and based on confession studies and Could be a said to us at one point when child protection was saying well, you know Depic a doer the baby can come home if you confess essentially and he said I was tempted to confess I wanted to get the baby back to get the baby back to get the baby out of foster care And they said and he said well I lie if you want me to lie and they said no, no, we don't want you to lie And he said well, I didn't shake the baby But this goes way back to experiments that that began in the 1970s and sorry in the 1980s by a mechanical Experiments where they were you know, which have been done repeatedly with baby lambs, baby monkeys, dolls, crash test dummies, and as violently as you can possibly shake a baby sized crash test dummy, the amount of force you exert on the inside of the baby's head is a tiny fraction, tiny fraction of the amount of force that a baby that is inflicted from a fall even from something as low as a couch onto a hard surface. So an accidental fall could explain a case like that. So yeah, I mean the biomechanics have been unfriendly to the shaken baby theory. You can't do the experiments to find out, and when you look at witnessed cases of shaken baby syndrome, cases where somebody's been witnessed doing the shaking, you don't tend to see those symptoms. You see other damage, but you don't tend to see the triad, except in cases where the baby has a preexisting condition. So I think that's partly why the diagnosis is morphed now to maybe there's been impact that we don't know about. There's no bruise, but it could have been impact. But that debate remains life. The debate is to whether it can even cause those signs, clinical signs. Is it actually a life debate? Well, you've tapped into something that's very relevant at the moment in terms of potential miscarriages of justice. As you say, of course child abuse occurs, children need to be protected. But we need to look at what's going on with the system. The gaps in the failures, what did you find? How do you think it can be remedied? That is such a difficult question, Tim. And you know, as a journalist, I'm good at pointing out flaws. Yeah, probably less good at pointing to solutions. We didn't really cover this in the podcast. I actually thinking about doing an extra episode on this, but it seems to me that in the child protection system, that is before you get to the criminal courts and where you're in the children's court kind of arena, there's a tendency to play it better safe than sorry. And that is, if a child comes in with these signs, if a forensic pediatrician says it's likely non accidental injury or abusive head trauma, then that carries that report carries very often sufficient weight for both defender and prosecution in that case to say to the children's court magistrate, we better be safe here and remove the child. And I've spoken to practitioners who say that's kind of how it works. And the child might be away from home for 18 months or two years in foster care or in family care. And that's a separate discussion about the potential damage to those children. Refrival debonding between the child and the parents. And I hate to say that the potential abuse that occurs with some kids in foster care, I hear about it all the time in my practice. Yeah. And perhaps I will interview you for that bonus episode because, you know, I think it's better safe than sorry is well, you'd be better be sure that the diagnosis is good and that they are safer where they're going than they would be where they've been. As for the criminal courts, look, I think we come back to that, that question that you guys have talked about a lot. And that I've talked about in my previous episode on the farquist in case, which is how reliable is the science that we are deploying in court? How reliable are the experts? What kind of questions are we asking them? And coordinator for one wants an inquiry and he's not the only one into the reliability of the science of Shaken Baby Syndrome in Australia. And he wants to ask that question so that the people who are giving evidence for the prosecution in these cases are held to a scientific standard of proof. They just die reckoned. Not just die reckoned. And not just based on this is what I was taught and these are the authorities. Are the authorities right? Have the authorities been questioned? And, you know, there is a growing body of medical science globally that says we're not sure about Shaken Baby diagnosis. And in the US, for example, you mentioned that there was a guy in death row in Texas, his name is Robert Robertson. He was days away from execution in October, just recently. When the appeal court in Texas says hang on, we're not sure of the science here. We think it might be junk science and send it back to the appeal court for another appeal. He's been on death row since 2003. And there are a number of courts now in the US that won't try these cases on the basis that they believe it's junk science. So things are moving globally. But that's a problem in itself because, as we said, children are sometimes abused. Now, I'm not saying that these particular symptoms that have been listed as reflecting Shaken Baby Syndrome should be relied upon, but there will be cases where children have been shaken and damaged cause. They've been injured. And there may now be a reluctance to try any case where there's a doubt over it because of the shadow of these problems. Does that make sense? So genuine cases may not be taken to court because of this ongoing issue. It's a double edged sword. That is absolutely right. And that's why it's such a diabolical issue. As I say, I don't have a solution to that. I think Gordon has called for an inquiry is a very sensible thing. What can we reliably say about science here? And going back to my previous podcast again, Anna Maria Arabia at the head of the Australian Academy of Science and the Academy was very involved in the phobic case, said we desperately need in Australia two things. We need a reliability standard for the science that's used in courts. It's amazing that we don't have that. We have admissibility standards in other countries, but here it's much more laissez faire, shall we say? So the science, your expert is talking about there's no requirement on them to prove that this is reliable science. And she said we also need a criminal cases review commission to look at these former potential wrongful convictions here. Absolutely. We do. One of the things that's really shifted the dial in the US are the innocence projects. They've had 40 exonerations in the US on shaken baby cases because of the work of innocence projects. We just don't have innocence projects in Australia. Yes, we do. Well, not in the same way though. We'll learn and doctors part of what. Yeah, I started one, but we haven't had any exonerations yet partly because and none of them. I mean, the one there's one in Sydney, there's one in Brisbane, there's one at Newcastle University, that one down at RMIT down in Melbourne. So we do have the innocence projects exist, but the problem with the cases is, you know, it takes a bloody long time to work through them. You know, these are not done overnight getting documents is highly problematic. There's no money to support the evaluations and to get expert evidence. So they exist. And there were people very committed to working on these miscarriages of justice. I know because I work with them. And yet, you know, there's there are still so many cases that, you know, don't have access to those types of resources. And yeah, we desperately need a criminal case review commission in this country as a port of call for people who are claiming to have been wrongfully convicted. If somebody who knows about the ongoing attempt to mount an appeal for farquess in this case, that is, that's absolutely true. I mean, there's a bunch of lawyers working hard, but pro bono, clients in jail has got no money. And, you know, they seriously believe he's an innocent man, he's in jail for 33 years. But, but get even getting that to the door of the court for their second and final kind of chance is a massive undertaking that they're doing for free in their spare time. Yeah. And that's the thing that will do exists, right? Yeah. Yeah. And there's the thing people need a champion on the outside that could be a journalist. It could be an innocent's project. It could be a family member, a lawyer, someone though. They all need a champion because when these people are incarcerated, they don't have access to any resources to a system. They can't do the legwork that they don't have the skills. Don't know legal systems to do it. And if they don't have that champion, that's what worries me. Those people who are silently sitting in prison, wrongfully convicted, and they don't know where to go, or how to ask for help. Which leads into another question. I mean, what does this mean for previous cases? People have been convicted over these shaken baby syndrome diagnosis. I agree with Professor Cordner. We need an inquiry. I agree. We need independent analysis of all this, let's say that gets up. happens to these people who have been potentially wronged by the system to date? Well, what happened in the UK is interesting. There was an appeal, I think, the slide is sketching on the history here, but in general terms there was an appeal which overturned Shaken Baby Case and questioned the science and the Crown Prosecution then, the Crown Prosecution Service then sort of got a judge to have a look at the science and the judge found there were some questions over it and looked at a whole bunch of previous cases. And out of that, essentially the judge found that most of them were sound, but the Crown Prosecution Service came out with a new policy around what they called triad only cases. These are cases where the triad of symptoms, the three that I spoke of earlier are the only diagnostic method of saying this baby was Shaken. There's no bruising, there's no head injury, other head injuries, there's no fractures and so forth. And they said the Crown Prosecution Service adopted a policy to say, let's be very careful about those cases, essentially, let's look outside the triad to see if we've got further evidence or proof. Now that's a useful recommendation. I think some of the advocates would say that doesn't go far enough, but nevertheless it's at least something. But in Australia we've had a bunch of triad only convictions. In Victoria particularly over the past sort of eight years or so there's been quite a lot. Kabir in Deppickett's case was one and a half elements of the triad were there. So you don't have to have all three necessarily? You don't have to have all three. It's very dangerous. There was no brain swelling in doer at all and doer made a full recovery within days. So there's one case I know that I also feature in the podcast, a guy called Jesse Harvey. He's served his term now six years in jail. But I think there's holes all over that conviction. It was basically on the medical evidence only. It was a triad only case. But up until 48 hours before his baby had a seizure, he was in hospital with a swollen head with fever and it turns out the child had a congenital heart condition. And the mother had a seizure disorder and epilepsy through into adulthood. There's some genetic connection which as a child had led to a diagnosis of shaken baby syndrome and she and her sister were put into foster care. So all of that happened. None of that was raised in the case. Even by the defense and the defense argued well okay the baby was convinced by the medical diagnosis. Okay the baby was shaken maybe it was the guy's brother who did it completely didn't convince the jury and he was convicted and spent six years in jail. Did the child die? The child eventually died but at the time he was tried and convicted the child was alive but living with well living with this permanent disabilities and died of his injuries a few years later. So to me the medical like the the the reasonable doubt in that case is just a blaring, right but he spent six years in jail. I've spoken quite a few times to Jesse you know he's a young uneducated very smart uneducated kid from a very poor background and he didn't stand a chance. Yeah he was railroaded by the sound of it and of course it's not just the deprivation of liberty is it it's spending time in jail as a convicted child abuser. Yeah the stigma you carry with you for the rest of your life. The stigma and inevitably applies to I'd imagine in protective custody that sort of escalates the intensity of the prison experience if I could put it that way it's highly traumatising against a backdrop of potentially being innocent you know it's extraordinary. It will also affect every relationship he has you know somebody dates him and they have children that could cause problems you know with friends with family you know it goes on and on the impacts are just endless. Well you're labeled for life aren't you really something you carry with you whether you're guilty or not. Yeah and you know he's found it very hard to get a job you know he's still got there are things that still prevent him from hanging out with children and he's got nieces and nephews and people in this family and things like that people he can't see because of that this it's it's got a long a long tail. Absolutely yeah absolutely. Well it's been a fascinating discussion and spoiler alert I've listened to a fair bit of this podcast it's worth listening to it's fabulous so Michael congratulations again on a fabulous job well done and thanks for joining us today on Motive and Method. Thanks so much Michael. Thanks very much it's been a pleasure.