Diagnosing Murder | Ep 3: The Engine Room

Just a warning, this episode contains some distressing content. Did you want to be a father? Yes, yes. Always liked kids. Sort of a big kid myself as well. This is David. For legal reasons, we can't identify him or his partner, but she felt the same way about having a child. At the time, she always wanted children, and she also struggled to have children, so it was like a little miracle that our son was born. The little miracle was their first son, and when he arrived, David was delighted and went part-time at work. I wanted to be there as much as I could to watch him grow up and watch him develop. Then, a couple of years later, another little miracle came along. How old was your first child when Oliver was born? He was about two and a half, I would say. And was it equally a surprise in winning the lotto when you got him a second time? Yes, it was. And what was Oliver like as a baby? Yeah, he was good. He was very quiet. Unfortunately, we only had him for four weeks. But, yeah, he was very. very gentle. Oliver's life was short, and according to David, his death was completely unexpected. It was November 27, 2017, and in their little house in country Victoria, the new baby was unsettled. Like, he was sort of hungry and grisly, but no matter what happened, he just didn't feed properly, and just unsettled. David and his partner had the kind of conversation new parents do. Should they feed him now or hold off? They decided to feed him. So my partner then went out to make the bottle. The bottle warmer took just minutes to do its work, but those moments will define the rest of David's life and his partner's. Just as she left, left the door, our son just made a funny deep breath, made a big sigh, and just became unresponsive. And that's when I rushed out the door to my partner and said, "There's something wrong. He's not breathing. He's stopped breathing." They called triple zero. They did CPR as the operator instructed, then stood back once the ambulances arrived 15 minutes later. For another half hour, the paramedics worked on Oliver. At one point, there were six of them in their little house. And tell me, what are you feeling at this point? I'm scared. Scared. My son's just lying there, unresponsive, and I don't know why. Finally, the paramedics got a pulse, and an ambulance took Oliver to the Royal Children's Hospital. Up until that point, what did you think about the Royal Children's Hospital? The Royal Children's Hospital, and the kind of treatment he'd get there. They say the Royal Children's Hospital is the best place in the world for kids. So with that, well, he's gone to the best hospital in the world. They can hopefully, you know, find out what happened and, you know, make him better. But after doctors had examined Oliver, it was anything but a safe place for David. Oliver had the triad of clinical findings. Remember the subdural haemorrhage, the retinal haemorrhage, and brain swelling that forensic doctors view as pointers to abuse. It was enough for one doctor to quickly conclude that Oliver was almost certain to have been shaken. Two days after he was admitted to hospital, Oliver was declared brain dead. David and his partner agreed to donate his organs, and his life support was switched off the following day. If you can, tell me what that moment was like. Horrible. Worst day of my life. Having to say goodbye to your son. I think no one in their world should be able to say goodbye to their son or daughter like that. Yeah, and to know that we only had four weeks with him, it was just heartbreaking. The grief of losing a child has a permanent effect on people's lives. But the diagnosis of abuse utterly upended David's and his partner's. Their first son had just been diagnosed with autism, so to save him from being taken into care, they moved out of their house, leaving him with his grandfather. A year later, David was diagnosed with autism. A year later, as David's partner was delivering their daughter, child protection workers were waiting to remove her as well. David's partner believed him and supported him, but the pressure was intense, and their relationship didn't survive. Then David was charged with child homicide and put on trial in the Supreme Court. All that was years into the future. But David traces everything to those first days in hospital, when one doctor, from one specialist unit of the Royal Children's Hospital, saw Oliver for the very first time. The first time we met that doctor, she came rushing into the room, didn't introduce herself, went straight over to Oliver. She began an examination, which took a couple of minutes, so she checked his eyes and looked at his body. Then she turned and looked, and looked at me and said, you did something. That were the very first words out of her mouth? Yep, you did something and I'm going to prove it. From the newsrooms of The Age and the Sydney Morning Herald, this is Diagnosing Murder. I'm Michael Bachelard, and this is episode three, The Engine Room. So, we're outside the front of the Royal Children's Hospital. It's this kind of, you know, really impressive glass building, very modern, and on the outside are these kind of colourful panels, graded from red. The Victorian government describes the Royal Children's Hospital as one of the world's best. It's internationally recognised as a leading centre of paediatric treatment, teaching and research. There's a big park behind called Royal Park, which is sort of grassland. Grassland, and huge, really. It's based in the health precinct of Inner Melbourne, gets almost a billion dollars in public funding, and treats nearly 300,000 children every year. Me, like probably every other parent in Melbourne at some point, has been here in fear and distress with a child who's got something going on and you don't know what it is, and you kind of come here. But it's much more than just a hospital. It's a Melbourne institute, and it's all about inclusion. The first of the Queen's royal engagements was to reopen the new Royal Children's Hospital, where she met with young patients and their families. It's beloved. Generous Victorians opened their hearts and wallets to help smash the all-time record in the Good Friday Appeal. Since 1931, it's been raising money from the public in its Good Friday Appeal. This year, that appeal reaped $24 million in donations. The official face of the appeal is $44 million. Is four-year-old Mimi being treated for leukaemia? Her mother thrilled with the result. It even has meerkats. Her Majesty toured the wards, clearly impressed with the new meerkat enclosure. It's hoped the unique feature will help to delight and distract the children who are treated there. It's iconic. It claims to be a world leader, and it actually is. I have great admiration, but things can go wrong. This is Dr James Tibbles. For 43 years, he worked at the Royal Children's Hospital as a paediatric intensive care physician. In his time there, he treated thousands of babies and children. One of them was David's son, Oliver. The public loves the hospital, there's no doubt about it, because we are looking after their most valued positions, their children. So it's little wonder that they have gold status. James has seen pretty much every injury and illness a child can get. And when he speaks, he punctuates it with a boyish laugh, as if he's on the verge of saying something a bit cheeky. And he knows that what he's about to tell us will make him some enemies in the place he worked at for all those decades. But they will be having dark thoughts, I can tell you, about this. But I'm retired. LAUGHTER MUSIC PLAYS MUSIC FADES MUSIC FADES On the night the ambulance brought Oliver to the Royal Children's Hospital shortly after 2am, James wasn't on duty. But he became Oliver's treating physician when he arrived for work. work later that morning. As the senior medical officer in charge of Oliver's case, you'd think he'd be the most important person in the room. But by the afternoon of Oliver's first day on the ward, another team had become involved. And when they turned up, pretty much everything changed. That team goes by the ungainly name of the Victorian Forensic Paediatric Medical Service, or VFPMS, and its members carry enormous power. They work for the hospital, but they're separate from the other doctors. They can examine children, but they don't actually treat them. They're called forensic paediatricians, and their job is to identify children who've been abused, and then, if necessary, to bring in police and child protection workers to act against the abuser. In the majority of cases, all this would be considered a crime. But in the majority of cases, all this would be considered a crime. completely justified. Where there's strong evidence that a child's been deliberately hurt, society rightly expects that they'll be protected from their tormentor. But the science of shaken baby syndrome is subject to serious questions. As we've outlined in previous episodes, overseas, this diagnosis has been found to have caused dozens of wrongful convictions. In Australia, though, there's no debate to speak of. And the VFPMS reject that there's any medical controversy here at all. So minutes after seeing David's son Oliver, they developed a suspicion that he'd been abused. And within 48 hours, a criminal investigation had begun. And it started in earnest when the forensic doctors called what's known as a SCAN meeting. SCAN meetings. I've been to quite a number, but not. It's almost impossible for a parent to escape unscathed, even if there's a good explanation. Once the accusation has been made, it's almost impossible for a parent to escape unscathed, even if there's a good explanation. There's only one explanation, and it's deliberate child abuse. Okay, so we'd better get out there and find out who did it. This is a decision that impacts everybody, and it starts from that engine room. We interviewed James with the academic Neera Bhatia. She's an associate professor at Deakin Law School, who researches health law. They recently published a paper together questioning the VFPMS's work in David's case. Neera's also observed the power of SCAN meetings. And once we've kicked off from there, it's very difficult, if not almost impossible, to change the belief system of individuals involved here all the way to the courtroom. But James says normally the treating doctor is just not told about what's going on at the SCAN meeting. The general person doesn't know if the parent has been maligned or falsely accused or thought to be innocent. Whatever. Because all what goes on is kept secret. The discipline of forensic paediatrics grew out of the recognition in the 1960s that some parents abused their children. Well, we think that at least one child a day in this country is killed because of a series of views. And since 2006, the VFPMS has been based, at the Royal Children's Hospital. Similar units exist in hospitals in other states. But the VFPMS is more powerful than most, because they can play a role in every suspected child abuse case in every hospital in Victoria. You've already met some of its doctors in this podcast. In episode one, they came to suspect baby Dua had been shaken and started the cascade of events that led to Kabir being charged. What is going to happen is they're going to be charged with child abuse. They're looking for an explanation. If they do not get it, then they will take Dua away. In David's case, it was a VFPMS doctor who, he says, rushed into the hospital room on the first day and accused him of assaulting baby Oliver. And it was the VFPMS deputy director, Dr. Joe Tully, who you heard last episode explaining the mainstream view of how shaking a baby causes brain damage. As the baby's shaken, the brain moves backwards and forwards, and round and round inside the skull. As we've already outlined, this is a controversial analysis, but it's a belief that's strongly held among forensic doctors in her team. This idea that there can be no other explanation is taught at the very top, and it filters down into the whole system, into social work, into the nursing staff, into the medical staff, into the judiciary, into the whole system. So, seven years after David's first encounter with the doctor from the VFPMS, he's still wary. When I ask him to name her, he refuses. Could you tell us why you're a bit reluctant? I feel that these people still have a lot of power, and I just want to, yeah, be careful, but I can name them. After David's experience at the Royal Children's, he could be forgiven for having misgivings, realistic or not. But we can identify her. Her name is Dr. Marianne Lobo. Much later, in court, she denied using the words David attributed to her in that first meeting. But it's clear that David and his former partner were already under suspicion. The VFPMS quickly called in the police child abuse squad and child protection agency. And as their four-week-old son was lying critically ill nearby, David says he and his partner were grilled. Did you feel that they had already made up their minds about you? Yes. Or that they still had open minds? Yes. That they'd made up their minds? They just looked directly at me and they said, all right, what happened? Did you drop him? Did you do something? Did something? What happened? And I was like, well, he became unresponsive. Nothing happened. I was holding him, he became unresponsive. But they didn't believe me, so. Later, in court, David's partner testified that a child protection worker had said, you'd better get a good lawyer. A few days after Oliver's admission and that initial meeting, a more formal one took place, a scan meeting. Marianne Lobo wasn't there, but she'd already made her views clear. A police officer had earlier recorded her saying, quote, Oliver on life support and was not going to survive. No other cause other than non-accidental head injury. Her strong view was that he'd been shaken. In the scan meeting, the minutes show Jo Tully gave the VFPMS report. She's Marianne's boss and the VFPMS deputy director. Jo told the meeting that Oliver's injuries were, quote, likely caused by shaking. Jo said when an otherwise well baby collapses like this, the trauma, quote, usually occurred immediately prior to the accident. Prior to the collapse. So David was in the frame. Police and child protection workers were also at the meeting. Victoria Police has 500 specialist police officers to identify and respond to suspected child abuse, including shaken baby syndrome. Their training is provided by the VFPMS. In David's case, James and another treating doctor, Robert Henning, thought there was serious doubt that Oliver had been abused. Remember, the treating doctor's usually not at scan meetings, and James wasn't at David's. He wasn't invited. There's an official reason for this. From a governance point of view, the idea is that people looking after the infant shouldn't be contaminated, that their care to the infant should not be influenced by what they think of the parents. But James thinks the real reason is often different. In David's case, for example, he says he wasn't there because the VFPMS doctors knew he didn't agree with their theory. Have you ever, to your knowledge, been deliberately excluded from a scan meeting where your knowledge was, they didn't want to hear your knowledge? Yes, definitely. That suspicion was apparently confirmed when David's case later came to court and James was giving evidence. Well, in the recent case, I didn't know this. The counsel for the defence told me, he said something like, do you know that the nurse from the forensic medical unit has told the police not to listen to your opinion? I said, no. That was the first you'd heard of it at the trial? Yeah. I was gobsmacked. As a journalist, it's my obligation to try to hear from all sides of a question. And also, I'm just curious about how the Children's Hospital and the VFPMS would respond to the things that David, James and Neera have been saying. So a few months ago, I began emailing and calling and asking for interviews. Oh, g'day. My name's Michael Batchelor. I'm a journalist at the Age News paper in Melbourne. I'm doing a story about shaken baby syndrome. And I was just wondering if I could line up an interview from the VFPMS. Early on, I had a conversation with the head of VFPMS, Dr Anne Smith. She said she'd run the idea of an interview up the flagpole. But the same day, I got a refusal from the hospital's public relations team. I could supply them written questions, they said. I tried the equivalent unit at Westmead Children's Hospital in Sydney. I haven't closely investigated any of their cases, but they also have forensic doctors. I got a call back from a junior PR person who started peppering me with questions. What was the purpose of the story? What was my angle? Who else was I interviewing? Some questions I was happy to answer. Some were none of their business. So, I'm sitting at my desk and the phone rings, and it's from a private number. I vented about this to my producer, Ruby. And I, like, I made the point, so they're a big public hospital. They get a billion dollars of government funding a year. They should be answerable to the public. That's my view anyway. But she was just like, oh, no, we're not going to, we can't talk to you. So it's a blanket no? No. No. It's a blanket, it's a blanket no. Finally, I sent the Royal Children's Hospital a long list of 45 written questions. In reply, I got an emailed statement. It said they couldn't discuss any individual cases for privacy reasons. The statement went on to say the VFPMS was underpinned by, quote, national and international research, which is constantly reviewed. It said the unit delivers a best practice, multidisciplinary, statewide service that cares for children and young people, and its judgments are based on a wide variety of symptoms and signs. That, quote, the child's safety, health and well-being are always put first. It seemed like none of the proponents of shaken baby theory wanted to go on tape to defend their views. Some of them, though, have appeared in public forums and spoken about it. So we dug those recordings out. And then eventually, we did get hold of one senior influential doctor. And he agreed to talk. That's after the break. My name is Kim Oates. I'm a paediatrician. Kim Oates is retired now. He's an emeritus professor of paediatrics at Sydney University after a long and storied career. I trained in Sydney, London and Boston, and I've worked at a children's hospital in Sydney pretty much all of my professional life. Roles there have included head of child protection, professor of paediatrics and child health, and my last role there was as chief executive of the hospital. Kim has spoken more than once at conferences run by the National Centre for Shaken Baby Syndrome, big proponents of shaking theory. He's hugely experienced in child abuse medicine, and he says there's ample evidence to support the diagnosis. I mean, we know. a vast amount about children and their physiology and how they work. And we know the mechanism, for example, with shaking and what happens. According to Kim, those who question this are a tiny rump. Most of the people who write in that area tend to have much in the way of qualifications in the area. And most of the studies are in fairly insignificant journals with fairly small numbers. But there's a desire, there's a small group of people that deny this problem. He and a colleague. have also done some recent research in this area. Their study is into subdural hematomas, brain bleeds in children under two. So I wanted to put to him one of the big question marks over this kind of science. You heard about it in episode two, when some were arguing that the evidence base for shaken baby syndrome was weak because it was based on something called circular reasoning. One of the accusations that the opponents of this diagnosis make is that the reasoning is circular, the selection of the cohort that we say has been abused is the people with these symptoms. Yeah, I find the circular reasoning argument not very helpful at all. We looked at subdurals. We looked at every subdural we'd seen in 10 years. We looked at those that were accidental and those that we thought were non-accidental and we compared the two. So we didn't really have a circular argument, although the ones that were thought to be non-accidental were probably in diagnosis, non-accidental, of course. Right, so that's the question, though, isn't it? You think they're non-accidental and then you look at them and they have these symptoms, so you say, well, yes, they're non-accidental. Yeah. Isn't that the circularity? But what else can one do? There's no other way I can see of doing this. And the people who do this, they've seen a lot of cases. They're pretty experienced, most of the pediatricians, especially the forensic ones now, and the people who do it full-time that we have. They're not. Yeah. I guess the accusation against them, though, is if they've been schooled on, the circular argument that they themselves are diagnosing on circularity. Yeah, well, I think a good argument, certainly I've always taught in child abuse, you've got to approach every case with an open mind. And an open mind means open to the fact that it is abuse and open to the fact it's not abuse. Just once you jump to the conclusion, you exclude all the bits that don't fit in with your diagnosis. That's bad medicine. And I think being a closed mind is very dangerous in any branch of medicine. The person we really wanted to hear from while researching this story, though, was Dr. Jo Tully. Jo's the deputy director of the VFPMS, and she's crucial in this debate because she's one of the most influential voices among the proponents of shaken baby syndrome. She was the doctor who delivered the likely head trauma diagnosis at David's scan meeting, and she was a key witness in the big Victorian appeal court case in 2021, which basically put shaken babies theory on trial. We told you about that in the last episode. The majority judges in that case endorsed the theory as settled science, and in their decision, they made it clear that Jo's voice was the most convincing. We asked Jo directly for an interview for this podcast. She politely refused. But hearing from her, her view of the world seemed crucial to telling this story. Yes, over there. Oh, hello. And eventually, we came upon this talk that Jo gave to a group of paediatricians in 2018. I do spend a fair amount of time talking to groups about child abuse. It's what I do every day of the working week. Jo's talking about abuse well beyond shaken baby cases, but in this talk, she makes clear what motivates her to do this work. It's that failure to identify that occult burning injury. Failure to identify that thin-laid subdural is failing in our duty as advocates for these children. And that failure allows that child to perhaps go home to a household where the abuse will continue and they may be killed. Jo's saying she's an advocate, an advocate for something huge and precious, the life of the child itself. Now, Protega Maxima, that was the magical shield spell that was cast over Hogwarts. To protect Harry and the other students from the Death Eaters and the Dementors. As she speaks, Jo makes a comparison to the magical world of Harry Potter. What's the magical shield for abused kids? Is there one? The shield, she concludes, is the work of the Child Protection Service, police and doctors like her. She says it's a tough job. Now, this work isn't easy and I do it every day of the week. You need to be prepared to be criticized. To be scrutinized. You need to be prepared to be questioned. And I think it almost feels sometimes that you need to sort of don this psychological suit of armor and into battle you go. And I think that takes some bravery. As Jo's saying this, a slide flashes up on the screen behind her. It shows a knight in armor on a horse that's rearing up. And another image that shows bravery is the antidote to fear. She says child abuse is much more common than we think. And that means doctors should always be on the lookout for it. Vigilant, if not suspicious. An example that I think we often see of what I would call rather loose language in this area is the fracture was consistent with the fall. Okay, good, great, done a job, go home. Except there is one huge gap in that statement. And that's what else could that fracture be consistent with? Could the fracture be consistent with a kick to the thigh? Could the fracture be consistent with being thrown against the wall? Could the fracture be consistent with a forceful twist? How are we going to sort that out? Well, this is how we're going to. Jo goes on to say that she applies her suspicions of abuse far beyond the direct medical observations. We go on a huge information-gathering exercise in VFPMS. We're in school teachers, maternal and child health nurses, kindergarten teachers, anyone we can think of to try and build up a picture of this child's life. In drawing all this together, what the parent or carer says happens. happened is a factor, but it's just one among many. say the story provided by the carer of the fall is likely to explain the fracture. Or we may say we simply cannot determine. And all of those are okay, provided they're right. This is not a time for guesswork. This is really not a time for subjective opinions. This is a time to get it right. Jo says forensic doctors must bring certainty to their diagnosis. And when they give their advice, they need to be clear and communicate that certainty. I think we need to write reports that carry impact, that are explicit, but that are 100% right, 100% of the time. So how does all this apply to shaken baby syndrome? Well, for a start, Jo says it's not called that anymore. She now prefers inflicted head trauma. Others use abusive head trauma. These are all the same. These terms also include the possibility of impact to the head, as well as simply shaking. The words the triad have also fallen out of favour. Some participants in this debate now say that term is a straw man, which misrepresents the true diagnostic process. They're now more likely to say they look at a whole constellation of medical findings, and then perform what they call a differential diagnosis. This means considering all the signs and symptoms, including alternative conditions, and only then making a diagnosis of shaking. But at the end of her talk, Jo speaks about a man called Joby Rowe, who had recently been tried for the child homicide of his daughter Alana. Jo says the baby had presented with subdural hemorrhages, retinal hemorrhages, and severe brain swelling, what is colloquially known as the triad, indicating violent shaking. Remember, Jo says they don't use the triad, anymore. But it seems that in the courtroom, that term was alive and well, at least until 2018. Partly as a result of her evidence, Joby Rowe was found guilty and sentenced to nine years in jail. 26-year-old Rowe said something is wrong with Alana. He's always maintained he wasn't violent. Now, to our knowledge, that's the first successful conviction for a triad-only case in Victoria. And I think it came about as the result of rigorous examination of the medical evidence, which actually could stand up to that scrutiny. Whatever you call this syndrome, Jo, the VFPMS Deputy Director, believes it's settled science. And in her mind, the problem is much bigger than even she knows. This is from another talk she gave to a different audience. Conservative estimates nationwide is there are about 65 cases of inflicted head trauma per year admitted to Australian hospitals. And certainly, we in our service just at the Royal Children's Hospital last year saw about 20 children who we thought had suspected inflicted head trauma. Australian Bureau of Statistics data suggests that in 2015, for example, 22 children were killed by their carers. And the majority of these will have been as a result of head trauma. And this is really only a little less than children who die from medical conditions such as diabetes, asthma, cancer, combined. And these figures are almost certainly the tip of the iceberg. How many are missing? Well, I don't think we will ever know. Why does she say so many cases are missed? I think there are clinicians out there who are still unwilling to believe that a parent or carer will harm their child. Listening to Jo talk, I'm reminded of Henry Kemp, the father of child abuse medicine, and his disgust that other doctors were avoidant. Avoiding calling out the abuse they saw. In Jo's view of the world, the responsibility falls on her and her colleagues in forensic medicine to diagnose these hidden abuses. To stand up strong in a field which, in a training course, she once described as being, quote, plagued by non-believers. To cast the spell, if you like, that protects our kids. With the trepidation that I'm making this podcast, I've often felt really strong resistance. Of course shaking a baby can kill them, they say. It's common sense. And one question I get asked is, well, if it's not shaking, then what is injuring their brains? Well, to start with, small babies sometimes die. And. Of those who do die, which includes babies said to have died of shaken baby syndrome, the second leading cause of death is. Other ill-defined causes. This is Professor Stephen Cordner. And the third leading cause of death, actually, is sudden infant death syndrome. And that's essentially, we don't know why your baby died. Few forensic doctors in Australia would be more highly regarded than Stephen. He's retired now. He's an emeritus professor at Monash University. But for 27 years, he was the forensic pathologist who ran the Victorian Institute of Forensic Medicine. It's a government-funded body that provides independent medical and scientific advice to the justice system. And he's making the point that when small children die, very often the cause remains a mystery. The number one cause of death, by the way, is a host of genetic illnesses and conditions relating to pregnancy and birth. This includes what in the first episode we called birth trauma. Birth injuries sometimes can. In my view, get confused with head injuries that are regarded by others as non-accidental head injury. As for the triad that's at the centre of shaken baby syndrome, Stephen says there's a whole list of medical conditions that could cause that, too. You know, the list is 10 or 20 long, but I'm sure if you really went into research, you could probably find 50. Just pause here and think about this. The fact is that medical science has dramatically reduced child and infant mortality. But Stephen points out we haven't fixed it. And when a baby dies, we still often can't say why. Despite this, when a baby comes to hospital with a triad of injuries, doctors at units like the VFBMS are called in. Under the law, that's basically mandatory. And they've been taught, and the courts have upheld, over years, that these injuries are closely associated with abuse. So if, like Kabir and David, the parents can't come up with a compelling alternative story, then a diagnosis of abuse is well and truly on the table. But Stephen's saying there are 40 or 50 conditions, some of them vanishingly rare, that could also cause the triad findings. Maybe we don't know. What's going on? Maybe it's a mystery, not abuse. Maybe it's a mystery. Maybe it's a mystery is not a line that gets you very far in court. Because courts, like Joe Tully, who we heard from earlier, demand certainty. It's right there in the words beyond reasonable doubt. And Stephen just doesn't think that doctors alone are equipped to deliver it. Child abuse definitely occurred. I mean, it is a skirt. No question, child abuse occurred. The real issue is how well can medicine diagnose it? Stephen's never spoken out publicly about shaken baby syndrome before. But he's agreed to talk because he's seen what he believes are people who've been wrongfully convicted. And he wants to. Prevent future wrongful convictions. I mean, I think that's why I'm here. Stephen and I agree that everyone in this field has the best interests of children at heart. But he also thinks those good intentions can sometimes go wrong, especially when doctors encounter the legal system, that they may be thinking. Oh, look, I'm a soldier on the front line against hidden child abuse. And if there's a few casualties along the way as we send these child abusers off to jail, well, you know, that's. They're just collateral damage in a greater cause. And is that how you think some doctors treat this issue? I do. Stephen's particularly concerned by triad-only cases. He thinks those three clinical findings are just not enough to diagnose abuse. And don't forget that the allegation is that the child has been violently shaken. You'd have to grip arms around the shoulders or. Yeah. You'd have to grip the upper arms and grip so hard that you can shake the head so that you could imagine it's going to bleed inside the head, in the bone, over the bone. But I really have great difficulty in accepting that if that happened, you could do it without leaving an injury. But once a case is before the court, it's been very hard to defend. Part of the reason for that could be that experts fear backlash. Is part of it, do you think, a fear on the part of sceptics that they might be painted as. as apologists for child abuse. Possibly, yeah. And having to deal with very solid consensus at the children's hospital. So, you know, you're fighting against a very powerful and, you know, world-class institution. So what do we do with all this? Stephen has two suggestions. The first is to make the VFPMS independent from the Royal Children's Hospital. In the hospital, he suspects that because they see themselves as advocates, forensic doctors might have a tendency to favour an explanation of abuse over an unknown cause. Stephen's instinct is that those high-stakes decisions would be better dealt with by doctors who aren't employed by the organisation that's also treating the child. Because the hospital's got a bit of skin in this game and the parents, you know, need to be perhaps independent of everybody to properly approach this issue. It's a tiger country. Tiger country? It's dangerous sort of medical territory, I think. Stephen also thinks that. But leaving this decades-old medical-scientific controversy to be decided case-by-case in the criminal courts is the wrong approach. Lay judges, juries and lawyers simply don't have the expertise. He's calling for an open inquiry where doctors, scientists and lawyers examine the question what can courts safely make of triad-only cases? That's why I'm here. I think sorting this out in the courts is hopefully. We're the greatest of us. And you feel a responsibility to speak publicly about it? Well, I think people should know that there isn't totally impenetrable medical-scientific fence around defending this position, yes. But if an inquiry is what Stephen wants, he'll need to get it over that same high fence. And so far, even for a man of his eminence, that's proven too big a task. He tells us of a conversation he had with one of Stephen's lawyers. He tells us of a conversation he had with one of Stephen's senior doctor to try to get her institution to back the idea. But she absolutely, unequivocally said if there is any weakening of the line against child abuse, don't want to be involved. In the meantime, the prosecutions continue. On May 21st last year, almost seven years after Oliver went to hospital, David walked into the Supreme Court for the first time. His lawyer's advice for that walk? They pretty much tell you not to look guilty. If that makes. How do you not look guilty? It's like, well, you know, sort of walk upright. Don't walk too fast, but don't walk too slow. Try not to look down at the ground. Try and walk. Try and walk. After 18 days of his trial, David did the same perp walk. And for those two or three weeks, your life's picked apart. You know, how you grew up, where you grew up, why'd you grow up the way you did. Yeah, everything. In the prosecutions corner was the VFPMS, represented by two doctors, including Mary-Anne Lobo, and a brace of other medical and police witnesses. In the other was a defence medical expert, David's former. His former partner gave evidence for the prosecution, but it favoured him. She described him as a good, gentle, caring dad to Oliver. And James Tibbles, the treating doctor, was also in the stand, also for the prosecution, but he cast doubt on deliberate abuse as the cause of the injuries. But arguing that Oliver's collapse was just a mystery was not going to cut it. So the crucial argument in the case became something you haven't heard before. David's defence didn't rely on the story that he told me, that Oliver had simply gone limp in his arms. Instead, his lawyers made the case that David had dropped him by accident. And an accident means David could not have had criminal intent. That story was based on something David had told his GP, and the GP told the court. But this all left me puzzled. I have to ask you this. Did you drop Oliver? No. No. Did you later tell the doctor that you had? Um, that's open-tech injecture. Um, from what the doctor said, I did say that. But I feel in my mind and in my heart I didn't. You don't remember saying that? No. David told me that at the time of his visit to the doctor, a few months after Oliver died, he was having a mental breakdown. That meant he couldn't remember much of what was going on. But he was adamant that he'd not dropped his son. So how do you feel about that becoming, in essence, the centrepiece of your defence? It was hard. It was a very difficult decision to make. It wasn't a decision that was made lightly. But it was agreed that in the best interests of the case and what my best chances of being acquitted were, that was the best path to go on. Did you agree with that decision? Yes. In the end, yes. For David's defence, the dropping story also had another benefit. It appeared to explain a piece of prosecution evidence that had only turned up in Oliver's autopsy. That showed some internal bruising under the baby's scalp. The VFPMS doctor and other experts said these bruises were further proof, beyond the triad, that David had violently assaulted his baby boy. The case was hard fought. We asked the court for the audio of the trial, but the judge denied our request. The transcript, though, makes for compelling reading. It shows that, from the day Oliver arrived at the Royal Children's, Marianne Lobo was pushing the idea that David had killed him. She denied that, but the words are there in the documents tendered in court. The police officer's notes on the first day quote her saying there is no other cause other than non-accidental head injury. Another time, a nurse spotted a bruise on the baby's back. According to David's partner, the nurse said, that will be from our lines, referring to one of the tubes that was keeping Oliver alive. David's partner told the court, Marianne ignored the nurse and instead measured the bruise. Marianne said she couldn't remember this happening. She ordered the bruise to be photographed, and in court, the prosecution presented that as further evidence that David had assaulted his son. David's partner also said she'd raised questions about potential genetic factors in Oliver's illness, including the fact that he was a baby boy. Including four direct relatives who died shortly after birth. Um, which there was a lot of family history with heart issues, aneurysms, um, stuff like that. Marianne told the court she'd heard this history, but that quote, it was not relevant to Oliver's case because he clearly had died of a head injury. Asked if there was any broader controversy about shaken baby syndrome, she said quote, I don't accept that. And informing her expert appointments, she didn't consider any critical studies because she disagreed with them. Shortfalls, she insisted, could not cause the kind of damage seen on Oliver. The cross-examination of her evidence was hard, aggressive, and went for days. When James Tibbles, Oliver's treating doctor, gave evidence, it's fair to say his opinion didn't accord with that of his Royal Children's Hospital colleague. And the court also heard how James had described Oliver as a child, to get past a years-long attempt by the VFPMS, then the police, to keep him silent. Evidence shows that early on, the VFPMS nurse unit manager told a police officer not to speak to James because he didn't have enough expertise to comment. Then Marianne Lobo told police that treating doctors often provided unfounded opinions to comfort families. And when the case made it to court, she dismissed James, as being just an anaesthetist, adding, quote, he's not a paediatrician and was not responsible for managing or providing opinions on injury interpretations. In fact, I think Lobo dismissed you as an anaesthetist. Oh, well, she's wrong. As a result of all this, it took the police five years after Oliver died to take a statement from James. And that only happened after the defence asked them repeatedly to do so, and they had repeatedly, either ignored or refused the request. In the end, James's evidence was crucial in David's case. He questioned the idea that Oliver's injuries inevitably pointed to abuse. He said dropping could account for the baby's condition. It also came out in court that when Oliver had been born, forceps had been used. James said this was well known to cause subdural hemorrhages in some babies. David's partner said the forceps had left bruises and dents on Oliver's newborn skull. So did medical or genetic factors play a role in Oliver's death? James didn't conclude that, and on the basis of blood and other tests, the VFPMS doctors say they excluded various other known causes. But did Marianne Lobo's quick belief that Oliver had likely been assaulted prevent a deeper medical investigation? We'll never really know. In her summing up of the case, the judge, Amanda Fox, made it clear how important James's voice had been. She told the jury they could only accept Marianne's expert opinion beyond reasonable doubt if there was, quote, a good reason to reject the evidence of Dr Tibbles. If there was no good reason, then David should get the benefit of the doubt. From his place in the dock, David was watching it all. And it felt like he was watching it all. It felt good. I was relieved because finally, after seven years, things were happening and things were coming out and these people were being accounted for to see it coming out in court the way it did and the way she unravelled was just a huge relief. It was a train wreck for an expert witness. When the jury came back, David was acquitted of all charges. He was free to return home. It was a rare moment. In Victoria's legal history, only a handful have escaped conviction in shaken baby cases. David describes himself as one of the lucky ones. But his experience has led him to the conclusion that he was not the only one. David's experience has led him to the conclusion that he was not the only one. It's left him sceptical about shaken baby convictions wherever they occur. There's a lot of innocent people in prison and incarcerated for things they haven't done. And I admit I'm one of the lucky ones. For his part, James Tibbles says he's speaking up because there was too much he ignored when he worked at the hospital that he now wants to set right. Throughout my career, you know, I often come home and think, I thought, well, shit, that's wrong. What can we do about that? Nothing. I've got 20 patients to look after tomorrow. I'll concentrate on them. The consequences of ignoring these problems are big. They might think they are looking out for the best interests of the child here, but they're not. That's James' co-author, the law academic Niravatiya, again. The long-term and short-term implications of this on the families, on society, on the siblings, it's just, it's huge. David got his freedom back, but he'll never be the same. He's still in touch with his partner and other children, but he doesn't live with them. He has no house, no assets, and he still can't afford to bury his son's ashes. I've lost seven years of my life and my kids' lives and everything that's happened that I can never get back. You know, we'll never get our son back. And people keep forgetting that we lost our son. You know, all these people were just hell-bent on putting me away. That they also forgot that we lost our son. Yeah, so moving forward, it's like I'm, it's effectively a new start, really. And at the end of the day, it doesn't matter because it still doesn't bring my son back. You know, I still don't have a son. Next time, on the final episode of Diagnosing Murder. I looked at her and I said, can you repeat that? And I was like, aren't these Australian police crazy? Like, what is she talking about? He Googles everything. He Googles good mattresses. He Googles baby prams. He Googles the best pacifiers for babies. Right. He Googles. I said, I'm not admitting to something I didn't do to get less time. I said, I didn't do it. I'd rather get extra time. That is the VFPMS. And once they form a view about a particular matter, they will pursue a prosecution. Inevitably, once a hypothesis is settled on, then minds are closed to further inquiries. That's next time. If you found anything in this series distressing, you can call Lifeline on 13 11 14. Diagnosing Murder is a production of the Age and Sydney Morning Herald. It's hosted and reported by me, Michael Bachelard. Ruby Schwartz, executive, produced the series. She's also the head of investigative podcasts. Julia Carr-Katzel was a producer of the series. Mixing by Martin Peralta. Editing from Patrick Elligott, the Age's editor, and Matthew Dunkley, the deputy and investigations editor. Additional editing by Catherine Winter. Special thanks to Lisa Muxworthy and Luke McElveen. Subscribe to Diagnosing Murder to make sure you don't miss an episode. Subscribe to the Age and the Sydney Morning Herald to read articles about this issue. Thanks for watching. Thanks for watching. Thanks for listening.