Diagnosing Murder | Ep 4: The List

Just a warning. This episode contains content that some listeners may find distressing. All my friends call me like I'm an open book, like I can't hide things. And if he was a monster to me, I would have told everyone about it. This is Deepika. You met her in the first episode. I wouldn't have lived with a person like this. So no, he's never been controlling, never. In 2021, her husband, Kabir, was accused of shaking their baby do a so hard he seriously injured her brain. That concern was raised first by the doctors at the Royal Children's Hospital and followed almost immediately by the police opening an investigation. In the pages of their notebooks, what the police started painting was a dark picture. It suggested Kabir might be a cold, coercive man who had been violent towards Deepika. Did I tell you about the breast milk? You didn't. Tell me about the breast milk. The breast milk. This is how the Kirkwood, you also met her in the first episode. She's a lawyer who used to run big antitrust cases for the US government. Now she helps people all over the world who she says are wrongly accused of shaking their babies. She agreed to be a consultant on Kabir's case. And as she does when she's working on a case, Heather gathered thousands, tens of thousands of pages of evidence. Among it all, she saw something. So the breast milk from the body was like a real eye grabber, and I'm like, "Oh my God, what happened?" It started with a text message one day, shortly after baby doer was born. Deepika was messaging her friend who also had a newborn baby. But this message was in Hindi, so we Indians sometimes write Hindi in English. The friends were commiserating with each other about how clueless husbands are. I was producing a lot of milk, so we used to store them in small bottles in the fridge, so being literally is just all like severed bottles in a day. But at night, Kabir and Deepika would feed doer formula, not breast milk, because it helped her sleep better. One night, Kabir got the wrong bottle out of the fridge. Instead of getting formula, he got my milk. It was like, "He got my breast milk. Can you believe how stupid husbands are?" He would both work up cleaning about each other's husbands, just talking how guys don't understand things. In the hands of the police investigation, though, the translation from Hindi of this one single text message was mangled. In Heather's words, the police believed that he had removed breast milk is sounded like violently or physically removed breast milk from her body. If you get this translated, it never talks about my breast, my body, nothing. And I still remember when the police asked me this question and this whole translation, I looked at her and I said, "Can you repeat that?" And she repeated her and I was like, "And the thing that was going in my hair, these Australian police crazy, like, what is she talking about?" That misunderstanding was bad enough, but it was far from the only one. Because once the medical evidence had all but pointed the finger at Kabir, everything the investigators saw from then on was viewed through the prism of his guilt. From the newsrooms of the age in the Sydney Morning Herald, this is Diagnosing Murder. I'm Michael Bachelard, and this is the fourth and final episode, The List. In the first episode of this podcast, you heard how one ordinary night in October 2021, Kabir's nine-regold baby Dua suddenly went limp in his arms. And then suddenly she started having some seizure like motions and then she would stiffen up and she did that. I think Dua three times she did that. They rushed Dua to the Royal Children's Hospital. Within days, the specialist doctors at the Victorian Forensic Pediatric Medical Service had called a meeting with police and the child protection service. They raised the prospect that Dua had been deliberately shaken. From there, the two agencies quickly went to work. Child protection decided within three days to apply to the children's court to remove Dua and put her in foster care. The reason? Because Kabir and Deepika had given no explanation for Dua's illness. The police, meanwhile, began a criminal investigation. And twice within the first week after Dua collapsed, officers from the child abuse squad visited the family's suburban house to look for evidence. The second time they came armed with a search warrant. The statement that was later produced by the officer conducting the searches noted a number of things that she found, quote, significant or strange. There was a mattress that was too short for the cot and with no sheets on it. Dua's clothing was soaking in water, not in the washing machine. The officer also found damage to a bedhead. Kabir told us he dropped it one time while moving house. But in the hands of the police, that damage became, quote, a fist-sized hole directly above where Deepika had been sleeping. Much later, determined to find out why Dua was being kept away from them for so long. Kabir and Deepika fought for access to whatever records they could find. Their legal team issued subpoenas and Deepika applied for her full medical records. The searches turned up a trove of documents. Among them were two reports produced in 2022 by a team of specialist family violence practitioners. They'd been commissioned by child protection to investigate Kabir. Those reports confirm that still the biggest obstacle to Dua being returned remained the VFPMS's original diagnosis. After their heading, perpetrator accountability, one report says, quote, "Dad continues to deny he injured the child." In both reports say that so long as Kabir and Deepika failed to explain the reasons for Dua's injuries, she would not be returned to them. One of the worries voiced was that Deepika didn't have a driver's license. The family violence specialists noted that this made her dependent on Kabir and they wrote it was their belief that he wouldn't let her get one. I asked Deepika about this and is that the fact that you can't drive because he won't let you? No, because I'm scared of the cars coming. Sometimes I did try driving, but I wasn't too comfortable, but I need to learn. This is a joke, but we know that Dua will drive first. She's never learned driving before. Dua already started learning. So she set up back seat in the car seat. She knows it's at the red light, so you've got to stop. Green light, go. The family violence reports also said Kabir was employed in IT, so it was likely tracking Deepika's phone and quote, "capable of setting up cameras in the family home." Kabir is not an IT expert. He's a sales manager. He works with computers in that he is a marketing person, so he does Excel sheets. That's Heather again. And as he says, if the Excel sheet isn't working, he calls IT. That is clearly a stereotype in there, right? I mean, from my IT, if you would ask me anything, the best advice I could give you is just start off your computer and turn it back on. And it should fix that. If not, then he has to go to a real IT person. So no, I have never studied IT. I've never had any rules with IT, no, so I'm not an IT, no. After the time, over a video call, a child protection worker thought they spotted Deepika with a black eye. So he did a video call. And in that video call, they called my, this eye was bruised, someone punched me, but it was just dark circle. I mean, they didn't have dark circles. So I'm like, imagine, that's what they wrote in their reports. And I'm like, he never punched me. Throughout these reports, Deepika is described as the victim survivor. But whenever she denied she was being controlled or assaulted, or if she tried to laugh these comments off, it was just further evidence. In the words of the family violence reports, she was quote, highly coerced by dad and too fearful to disclose family violence. In the end, the report found only one method was left to get her to admit it. They think that if they get the father sent to prison, she will disclose domestic violence. It is somehow they haven't used strong enough pressure on her to disclose a violence that they know exists. How do they know it exists? Because they know it exists the same as they know the baby of a shaken. As I've taken Kabir and Deepika through this catalogue of allegations, It's mainly Dippica who's been answering. So I asked Kabir. to have that then taken and used against you, could be, "How did you feel about that?" So that's one side of it, it's like how unreasonable or delusional someone can be to think about that. But then the other side of me thinks like, "Okay, like how motivated or blind someone needs to be, that they can go to such a lens to prove their point." And that's the scary part, that is the scary part for me. I know they just got stuck, they got stuck in the mindset of if we can't do it this way, well, in prison, the dad. And I think that the police and prosecutors are charging along that path without realizing that the path has gone this way. When Heather mentions the path going a different way, she's talking about another set of reports. Because remember every weekday without fail, Tobier and Depika would turn up to the local library for a two-hour contact visit with Doer. And every day supervisors from child protection would take notes. Over 18 months, they produced more than 200 individual reports. Heather read every one of them. Every observer who had observed a visit, ever, wrote very carefully neat notes on it. Every single one, it was five times a week for a year and a half, and because it was by many different observers over a long period of time, and people can't maintain it for sards that long, it was impressive. Dipping into those notes, you see comments like, quote, "Father affectionately greeted child, carried her in the air, gave kisses. Mother changed nappy, unprompted, dad supported by dangling toys in front of child's face, keeping her attention. Father playful and engaging with child through playing with books and toy. Child often reached over to be held by the father. To Heather, who was busy trying to build a defense for Tobier, these notes were like gold." It was like a video camera. It was like, "Oh my gosh, I've never seen anything like this. We don't need a sick eval. This is better. This is coming from their people. This is what they're seeing." But despite the positive reviews, by late 2022, the family became aware of what seemed like a blockage in the system. So we were being told by some supervisors that this is the talk in the office, that you're going to get your daughter back, but that did not materialize. There was definitely something blocking it. Again and again, they were told to expect to her back. But every day, they were forced to part with her again. So Heather commissioned reports from five medical experts who all raised doubts about whether Tobier had caused to his injuries. And the family's Australian lawyer pushed for a date in the children's court for what's called a contested hearing. There, they could challenge the medical evidence of abuse. And within a week's time, they started calling me saying that "How can we, we want to return your child? We want her back home. She belongs to her family. The whole attitude changed." So the whole atmosphere? Yeah, changed. Child protection didn't answer our questions. Instead, they sent a statement saying removing a child from their parents only occurs when they're significant or imminent risk. They added that it was always in the best interest of the child. So in May 2023, Dewell was back, but that didn't stop the police. Their investigation barreled on. And as you heard in the first episode, in November that year, Tobier was charged with intentionally causing Dewell's serious injury. But by the time the details of the police case emerged, there was no mention of family violence. Some of the things that had helped keep this family apart for so many months had simply disappeared in their place with something else entirely. Searchers that the father had conducted on his phone and iPad on various occasions in the weeks lead up to the baby's ultimate collapse. This is Holly Boilin. She's could be as lawyer. And those searches included things like shaken baby syndrome, how much force is required for shaken baby syndrome, baby concussion and things of that nature. And the police alleged that those searches were essentially incriminating. It was suggested that those searches were done because he had done something in those weeks. Now, it seems curious to me that a man would prowl the internet for instructions on how to shake his baby. But I've read through the 3,400 page brief of evidence prepared by the police and prosecutors. It includes the prosecution's summary of the case. And that contains just two kinds of evidence. The first is the medical reports, including the VFPMS doctors saying shaking was the likely cause of Dewell's injuries. The second form of evidence is the Google searches. So why was Kabir searching shaken baby? Well, remember, Dewell had always been a restless child who couldn't comfortably lie down. One theory about this was that her traumatic birth, which had given Deepika a fourth degree tear, had also caused damage to Dewell's head. But when they took her to the doctor or hospital and asked why she wouldn't stop crying, Kabir and Deepika were just told it was normal. Babies cry. In shaken baby orthodoxy, it's this time. What the proponents call the period of purple crying, where the peak danger lies. Parenting is not easy. It's about doing your best. Sometimes you'll feel like you're being put to the test. Parents, they say, can get so frustrated and sleep deprived that they take it out on their child by shaking them. Remember no matter how upset you feel, shaking your baby is just not the deal. So one maternal healthcare nurse gave the couple a pamphlet about shaken baby syndrome. Kabir read it carefully, but he says he found the message confusing. Because in Hindi, his first language, shaking is, well, kind of the same thing as rocking. So it's like, what does, what is a distinction? Like, I mean, what is shaking? So five days after he got the pamphlet, he started googling. There were numerous searches of that period. There were about the difference between rocking and shaking. There was also shaking shaken baby syndrome that was shaking. Then Kabir started worrying. Was all that crying a sign of some kind of damage to do it? And then they started looking and okay, what does baby with a brain damage look like? Or what does baby with a brain concussion look like? In the week's leading up to do his hospitalisation, Kabir also looked for baby grunting in their sleep, baby very sleepy and baby rocking or shaking. It's all these searches that turned up in the prosecution's brief of evidence. But they weren't his only searches in that period. It turns out that Kabir searches everything. Every new car, every new model car comes up. He knows everything about it. Even if you want to buy a small, your phones are in a TV, he will just go in. Documents produced by the police show the so-called suspicious searches are a couple of dozen among thousands. He googles everything. He googles good mattresses, he googles baby prams, he googles the best pacifiers for babies. Right. He googles. There were more than a thousand searches related to the home, household chores and utilities. And more than 140 related to typical birthday and citizenship celebrations. Heather says all those searches just show a good and devoted family man. I asked Holly his lawyer about this strand of the evidence. From my perspective, it seems like an inquisitive father doing research into whether he was settling her appropriately or using too much force was the reason that she was crying because he was jostling her or those kinds of things. That was my assessment of those searches. This investigation started with a medical diagnosis. Morphed into accusations of domestic violence, then was paired back again to some Google searches. When I asked police about it, they described their investigation as, quote, extensive and thorough. But I wanted to know if this sort of thing happened often. So I asked Heather. She's been a consultant and lawyer on cases all over the world. She's helped exonerate five or six people who've been convicted and had many more cases dismissed. She told me that this case in modern day Australia had turned from something she knew and understood well to something she'd never seen before. Part one was exactly like other shaken baby cases. The ones we win, the ones we get overturned all the rest of it. It was just a regular old shaken baby case with a whole bunch of light. misunderstandings of the physiology in the anatomy and they get the facts wrong because they don't speak to the parents and so on and so forth. Regular old shaken BB case but this part of it. The domestic violence reports though. The allegations of coercion and spying. The proposal to lock Kabir in prison to get difficult to talk. No, no, that is not a razor shaken BB case. What is it? How would you describe it? A lynching. When I talked to Kabir earlier this year, he had his daughter do a back but he'd been charged with a serious crime. The prosecutor was preparing for trial and a date was soon to be set. At worst, Kabir faced 15 years in prison. What's it like living under that shadow? Look in, within this period, it's mainly about okay, how do we make sure that we are best represented legally? And I think I think that's what it has, it has come down to. You speak, when I ask you questions like that, you often speak very practically. You speak about what we need to do next and so forth but surely there must be some kind of part of you that just disintegrates when you think about what's ahead. No, it's a very very scary proposition, right? I mean, it's like separating or ripping a part of family again, that's the crux offered. So it's not easy. It's also specifically aimed at you. Yeah, you, you, you shook your baby. You, you know, you did this at this specific time. There is, there is a some part of me that says that okay, things, there is, there is a limit on how much wrong can go ahead. And, and I mean, I would say I'm just relying on some little fear that I have remaining in this in the system, saying that that wrong has to stop. But we know the police of laid chargers and we know that the director of public prosecutions has decided to pursue them. Yeah. So that's the, that's the, that's the, that's the full weight of the state. It is. Being directed against you, for this case. But you still say you have faith in the, in the system? I have to. Otherwise, I'll be just just a, just a wreck. It's, there has to be something holding, holding me, right? So, I mean, then that, that's what I'm holding to, that, I guess, something needs, something will click, something will, will happen. And of course, they continued to fight. They already had the American expert medical reports, but Holly knew the importance of getting somebody homegrown. I think jury's can be cautious of international experts that don't know who they are or why they should be relied upon in our courts. Has it been difficult to find experts to come and give evidence for the defense? Yes, it hasn't been easy. Why not? Well, it's difficult to identify those who are open to the prospect that the science isn't settled and isn't reliable. Prosecution have a particular body, a forensic body that they can go to. And it happens to be that those experts have a particular view. And that is that, that science is settled. And it's not controversial. This is the Victorian forensic pediatric medical service? Yes, that is the VFPMS. And once they form a view about a particular matter, they will pursue a prosecution. In a statement, the VFPMS said its work was underpinned by national and international research, which is constantly reviewed. It also said it quote works closely with Victoria Police and Child Protection. On behalf of Kabir, Holly said about finding someone credible who could challenge the view of the VFPMS. So she asked Dr. Stephen Kordner, the forensic pathologist who you heard from in the last episode. He'd been involved in one earlier case in which the prosecution had dropped the charges against the accused after 10 long years. But Holly wasn't holding her breath. Stephen provides expert reports in this area sparingly. In Kabir's case though, he agreed. And on March 3rd this year, he sent Holly his 60 page expert opinion. While the VFPMS medical reports and the prosecution summary said there was quote no birth trauma. Stephen wrote that do is traumatic birth was indeed a possible cause of her illness. In typically measured language, Stephen concluded quote, there is insufficient medical evidence for a conclusion of inflicted head injury. He continued, in my view, the possibility that do is illness is due to inflicted injury rises to a modest level of suspicion. The medical evidence does not bear any more weight than that. He finished saying there is no merit enforcing certainty where uncertainty exists. Holly sent that report to the prosecution. She wanted them to see it. And then just a few weeks later, and days before a trial date was due to be set in Kabir's case, Holly called my producer Ruby. "Be at court first thing the following morning," she said. So Ruby went "Testing, testing, testing, testing." So it's about 8.30am, and I am standing outside of the County Court of Victoria on the corner of William and Monsdale Street. On April the 3rd this year, a hearing is held in the County Court in Kabir's case. Holly is there in person. She already knows what's about to happen. So yeah, heading in now. In the courtroom, the judge is whistling through a bunch of cases. Defendants appear on screen one after the other. Some clearly from inside prison. Others on parole. One guy in his car. Lawyers also be mean from their chambers, clumsily requesting new trial dates for their clients. Then, at 9.34am, the judge calls on Kabir's case. Kabir appears on screen from the home where we interviewed him a couple of months earlier. He's wearing a pink polo shirt and a blank expression. Then the judge speaks, and he announces what everyone already knows is coming. Because the day before, all the parties have been notified that the charge against Kabir has just been dropped. It's a very anticlimactic hearing. The matter is called on. The prosecution formally announces a discontinuancy in court. And the court says, "Thank you. I've made those orders. You are now free to go when you're no longer on bail and you have no other obligation to the court." And that's it. And it is very clinical and short and not particularly sweet. Is there any apology? Is there any offer of compensation? No. No. None of that occurs. So, for the years last, there's that hit. Yes, it is a hearing that puts a full stop on the proceeding and offers nothing else. By 9.36am, it's all over. So, why did the prosecution just decide to discontinue? When I asked them, the Director of Public Prosecutions said in a statement, it was because of the Defence Expert reports. Their view that birth trauma could be an alternative explanation for doers' injuries meant there was, quote, "no reasonable prospect of conviction." Ruby leaves court and calls to be a. Are you with Deepaka right now? Yeah, I think she's just going to the bathroom. As usual, he's sounding pretty practical. How did it feel hearing that news from her? So, yeah, initially, I just took it as, okay, this is the fact and this is what I was happening. And there was a moment of relief that this was happening, but then it's not overshadowed by why this had to happen and this had to go and last for three and a half years. So, it just because someone thought something and they're wrong. Yes, all of this wasn't required. Deepaka, also as usual, expresses the emotions. For them, it's very simple. Okay, we're not going ahead, but this was our life, like, for four years. We were constantly crying, thinking about it. What will happen? When will do I come back? What will happen with the criminal matter? It was a torture. And the fear of unknown? I can say I'm not the same person who I was four years back. I am not. If someone says to me, I think positive. Nothing is going to happen. I'm like, I'm sorry, I can't. I think the worst. And this is what you get to have a baby in Australia. Like, this is exactly what's in my head. For them, it's easy. It's just a case. We are just a case number. For us it's our life and they have changed us completely completely changed us. Yeah Kabir, Deepika and Dua were finally free to get on with their lives But not before their lives had been turned upside down by an allegation two week to be substantiated Have they just been extraordinarily unlucky? Or is this happening to others in this country? It's a question I really wanted an answer to So I went looking That's after the break So how common are shaken baby convictions and child removals in this country? When people are convicted is there usually evidence beyond the triad injuries? And what happens to people who don't get a good lawyer? Kabir had a consultant from America a medical expert of his own and a determined lawyer. What happens if you don't have all those things? In trying to answer these questions I started with what I had Remember Dr. Jo Tully the VFPMS deputy director said this about the numbers Conservative estimates nationwide is there about 65 cases of inflicted head trauma per year admitted to Australian hospitals And certainly we in our service at just at the Royal Children's Hospital last year Saw about 20 children who we thought had suspected inflicted head trauma And in David's court case you heard about that last episode The forensic doctor Mary Ann Lobo said the VFPMS got about 40 referrals a year for so-called inflicted head trauma She told the court that in more than half of those cases they found an accidental cause So that's again almost 20 cases a year just in the state of Victoria Now in a written statement to us the VFPMS said they're not keeping count What about the outcome of court cases there involved in? During our reporting we came across an email Jo Tully sent in 2019 saying her organisation does keep those records But when a researcher sent a request for them the VFPMS turned him down saying the list didn't exist So what do we know for sure? Well, we know that most of the attention comes on criminal trials in the higher courts But the VFPMS has also said publicly there's much more action taking place out of sight in the Children's Court There the law prevents us from identifying pretty much anyone So children being removed from their parents in most shaken baby cases just fly under the radar I asked the court for numbers, but they said they don't have them They referred me to child protection And they simply said all decisions are made in the best interest of the child So in Australia today it seems nobody at least officially is keeping count But we found one pair of committed individuals who spends almost every waking hour trying So we're all set up over here Great, thank you If you two can just array yourselves here and here So we asked them to come into the studio All right, look, I might just start by getting you both to introduce yourselves Yeah, I'm Canille Lindsay And I'm Lisa Vanessia Canille and Lisa aren't doctors They're not lawyers, they're not academics But they've compiled the most comprehensive list of these cases in Australia that I know of And they've done it out of love My brother was convicted of murder in 2018 And is currently serving a 34-year sentence It involved the death of a child's Infant baby chase And he was convicted by mechanism of shaking baby syndrome Lisa's story is just as hard My son was convicted of child homicide back in 2019 Also a shaken baby Also a shaken baby syndrome If Lisa's name sounds familiar It's because you've already heard about her son, Jessi Vanessia His appeal in the Victorian Supreme Court basically became a trial of shaken baby science in Australia But he lost the case and went back to prison Lisa and Canille spend their time trawling court lists and transcripts They watch for any mention of shaken baby cases in the media Then they hunt out thousands of pages of documents and read them And they've summarised all this work on a sprawling multi-coloured spreadsheet And how far back does it go? I think, you know, that case in 1995 And we have some of those files in that case It's called a review 100 cases But that's kind of wrong now At row 220, in bright red, Canille and Lisa have inserted a plea to themselves We have a marker there that says let's stop at 250 before we go mad Like a bold red, um, highlighted But I think we just can't stop We've even added just just last week Another two cases, new cases The pair met, of course, over a case Canille was chasing down a blood clotting condition that she thought might explain baby chases death And the same experts had also been involved in another case of a guy called Joey Roe For two years, probably I looked everywhere for his family and tried to contact His family, I spoke to his lawyer Unknown to Canille, Lisa was on the same hunt After Jessie's conviction, I actually went looking for Joey as well And that's how I met Canille They found their way to one another and then they got to work Their list has 34 columns left to right showing everything Like the names of the accused, dates, the age of the child, their injuries The doctors who gave evidence, the plea, the sentence, everything Like the spreadsheet, the charges listed are a catalogue of misery Murder, recklessly causing serious injury Child homicide There are dozens of not guilty pleas, but precious few not guilty findings And the prison sentences are long 15 years, 8 years, life 34 years There's no secret to their method, it's pure grunt work This list has taken Hundreds if not thousands of hours of work, we're reading documents And a paper chase, so where do these documents live? Oh, I have a room for them We've got, you know, storage on USBs Printed documents Laptops Posted notes We literally up all After I put my son to bed, like sometimes it's late, but you know, I'm You know, that's all back and forth, typing to each other Like it's not every day It's not every day But it's most, we always check in with each other, but it's most days They want to identify patterns To find out whether across hundreds of cases, the medical evidence is wrong And the real reasons for children's illnesses are being overlooked But it's overwhelming Even they say they can't do all the work required To find which cases they think are problematic They want an inquiry to get to the bottom of it Like do you ever think sometimes it's too hard, I'm giving up Oh, my life back Sometimes Sometimes, yeah, I would And how do you get your life back after that? You can't At number 150 on their list is David At 162 is Kabir It's taken us months to investigate just those two cases Every entry on this list represents a human tragedy And every tragedy has its own individual facts Some of the adults on the list had until they were charged Led blameless lives Others have been violent or drug users Some of these are triad only cases Others were more complex I asked Lisa and Kineal if they found any patterns Only one really stood out Father and was mainly fathers fathers One obvious pattern here though Is that some people facing accusations are at a disadvantage before they begin Kineal says her brother Dwayne for example couldn't even convince his own lawyer to believe in him Given Dwayne's history and there is a history of drugs and there are criminal background Who's gonna believe me that this guy's innocent? No one It does like no one It's a big uphill battle It's an uphill battle In 2018 and 2019 Three young guys in Victoria faced just this kind of battle In that short period All three were triad and found guilty of baby shaking In what were effectively triad only cases Their names were joby row Jesse Harvey and Jesse Venacia Numbers 141 142 and 143. three on Lisa and Coneal's list. The photos outside court show all three have bad teeth and bad haircuts, and they're also clearly from poor backgrounds. Each insisted he was innocent, but all were found guilty and sentenced to jail based largely on the medical evidence. In each case, Jo Tully from the VFPMS provided that evidence. And one of those three was this young man. While I got up with my mum, my mum had seven kids, we didn't have any of our dads around. This is Jesse Harvey. Yeah, we didn't really have much money. You know, we're going to be the trouble, but I sort of see it as, you know, mum done her best for us at the time. And yeah, we had a pretty rough, but yeah, I don't really complain to be honest though. He was convicted of recklessly causing serious injury to his son Casey and sentenced to six years. He's out now and trying to put his life back together. It's hard. But then for him, it's never really been easy. I'd become a care for my mum from maybe age 11 onwards, but yeah, when I was about 14 and become a full-time care for her, because she was extremely unwell. Jesse had a few run-ins with the law, what he calls stupid kidship. Then when he was 19, he had a son, Casey. The birth was pretty normal. He came out fairly easy. She didn't have any gas or anything, but that's when they first told us about the heart condition. As well as Casey's severe heart defect, his mother had a seizure disorder when she was a baby, which led to accusations that she had been shaken. And in the days leading up to his collapse, Casey was admitted to hospital and kept for three days with suspected men in Gytus. Tests showed then there was blood in his cerebral spinal fluid. I argued with the hospital left right in time, because he wasn't right, he wasn't right. And they pretty much told me they're the doctors. He's starting to feed well now, taking home if you get worse than next 72 hours, bringing back. Less than two days later, Jesse says he woke up to find baby Casey in his cot, staring up into space with his hands up. At the Royal Children's Hospital, forensic doctors found the triad. And they pretty much explained that he's very unwell and he's got bleeding on the brain and sort of, you know, how this happened? And I said, no, I don't. And I explained that he was in hospital previously. Casey survived, but was destined for a life of disability. Jesse denies ever-shaking Casey. In her evidence, Joe Tully told a different story. She described the baby's injuries as equivalent to a 10-meter-fall or a high-velocity car crash. And it's clear from Jesse's case notes that nobody ever seriously challenged that. Jesse couldn't afford a lawyer, so his defence was funded by legal aid. He says his own lawyer kept pressuring him to confess and plead guilty. Jesse refused. I was given a plea deal to say, if I plead guilty, I can stay out and look after my mum and I told him right where to put that. I said, I'm not omitting to something I didn't do to get last time, I said, I didn't do it, I'd rather get expert time. At the trial, Jesse's lawyers didn't commission their own independent expert to cast out on Joe's evidence. They did cross-examine her and the medical evidence, but the jury sided with Joe. Did anyone tell you why you didn't have your own expert? No, it's pretty much they were just going to cross-examine their expert. Was it about money, do you think? Well, yeah, if I had, if I was Rick, I probably would have been able to fall good lawyers and might have turned out different. The only alternative story his lawyer offered was the possibility that Jesse's brother had done the shaking. That Jesse's sentencing, his own barrister, blamed his clients, quote, "low socioeconomic status and limited abilities." He said of Jesse, he thinks having a baby is a good idea, but being unable to raise it was the beginning of the end. Jesse also lost an appeal and ended up in prison for almost six years. While he was there, his mother died, so did baby Casey. When we called Jesse, he was on parole and out and about. I'm walking around at the moment with my nephew doing cans and bottles, though. Doing what? Doing a lot of putting cans in the machine. They'd been collecting cans and bottles for pocket money. Since leaving prison, Jesse hasn't been able to find a job. Okay, is it good money? Well, depending on how many you get, we've got about nine bags. So yeah, it'll probably get a bit. How much do you reckon? Well, they're 10 cents each. So we've already got, he's still got four or five bags to go and we've already got $17, so. I asked Stephen Cordner to take a look at Jesse's files and he said there were a lot of question marks over the medical evidence in this case. Enough to raise serious doubts about whether Jesse should have been convicted. Jesse strongly maintains his innocence and he really wants his voice to be heard. Why did you feel like you needed to do this now? It gives us spent last six years in jail. There's something I didn't do. I lost my son and these people need to be held accountable because it's going to continue to happen. And I want to claim my name, I want to claim a son's name and I want to stop these people from being able to do this to anyone else. I can understand why Jesse feels so strongly about this and why he wants to speak out, despite the jury verdict and the appeal. But for me, a broader question remains. Did his poverty and background influence the outcome of his case? Looking through Lisa and Kaniel's list, it's too hard to draw conclusions about the rubbery concept of class. One lawyer we spoke to, who works in the Children's Court, says middle-class people are suspected as often for shaking their baby as poor people are. But she said they get good lawyers like her. They do everything child protection asks of them and their case finishes without further prosecution. What about race? Heather Kirkwood, who's defended more of these cases than most, says she's reluctant to say it plays a role. But in Kabir's case, she certainly wondered. It wasn't just race, it was being Muslim, both the combination of race and religion. Heather's come to believe that these things were factors in how the police, child protection and the domestic violence practitioners investigated their case. The Muslim, I think, fed into the. They control their women. And the Indian fed into. They know how to do it through Haiti and that stuff. Have you got any. In the report, is there any evidence of that? Does it say that explicitly or in the. No, no, but it's just the absence of any evidence. They've got 100 reports of this kind, gentle man. Why are they thinking that he's abusing everybody? In the United States, one study actually looked at some of these questions. It picked out 173 Shaken Baby cases and what it was actually looking for was cases that were missed. The study concluded that what it called abusive head trauma was far more likely to be missed in white children than children of minority races. In other words, black and Hispanic people were more likely to be accused. And the same went for people where mum and dad don't live together. Joe Tully has used this study to argue that one in three cases of Shaken Baby are slipping through the cracks. Another way to read it, if you're skeptical about the diagnosis, is that among poor people and minorities, the condition is being overdiagnosed compared to wealthier demographics. Joe was asked about these ideas at the end of a talk she gave in 2018. I had a question, which is that you discussed the importance of treating the 19-year-old drug addicted mother the same as the nuclear family from the right side of town. How do you think about how to rein back those cognitive biases and sort of examine it with a fresh pair of eyes? I think it's just sticking to those objectivity. You just look at the injury and you don't. You're going to interpret the injuries in the context of the story given to you, but not in the context I don't believe of the social background. It's important, it's something that needs to be. Information needs to be gathered and it's something that child protection will use, but I don't think it's our role. As forensic pediatricians, it's certainly not our role to interpret psychosocial factors in terms of the story. I think we have to stick to objectivity. - Maybe one last question. - That's the thing about cognitive bias, though, isn't it? It's hidden. You don't know it's there. And that makes objectivity very difficult, indeed. The title of this podcast is "Diagnosing Murder." Because in many cases, the contested theory of shaken baby syndrome gives prosecutors so much of what they need to convict someone. But can a medical opinion in this area ever deliver the kind of certainty a criminal court needs? The courts say beyond reasonable doubt. Medicine is necessary. never be on reasonable doubt. Nothing is beyond reasonable doubt because it changes over time. That's Dr. Mark Donahue. You heard from him earlier in the series. He was one of the first to question the shaken baby science. Medicine has doubt everywhere. We're forever refining our diagnosis. We're refining our treatments. We're refining things hopefully on evidence. Professor Kim Oates told us a similar thing. He's the former chief executive of Westmead Hospital and a strong supporter of shaken baby science. I mean, medicine is not an exact science in many areas. And so if somebody sent me a call, Dr. Oates could use say with 100% absolute certainty that this couldn't have happened in any other way, I'd say no. The Defence lawyer, Holly Boylin, fought these cases for both David, who you met in the last episode, and Kabir. And she won. But she says it's not easy, especially up against experts with strong views from powerful beloved institutions. Once a hypothesis is settled on, then minds are closed to further inquiries. And it's not until you have really pesky defence lawyers looking at things and probing what was actually done to realise not every possible test was done, not every possible avenue was explored. And it's too late, it's too late. And in these cases, how many people get a pesky defence lawyer who's prepared to put time and money into this? I'm not sure, because I don't know how many other cases there are out there and who's facing what, but I haven't seen many positive results coming out of these criminal proceedings. Still Heather Kirkwood, the American attorney who consulted on Kabir's case, says there's not much choice, but to fight case by case. The other option would be to challenge the shaken baby diagnosis itself to try to convince a court to pick the other side in a global scientific debate. But Heather says that approach is dangerous. If you take on the system itself, it just goes into a defensive crouch. She says that's what happened in Victoria in the Vynarsia appeal. If they had accepted the Swedes and said shaken baby does not exist, that means they would have been putting in prison, taking kids from parents here in Victoria for years and years and years. So that's really what's a driving force often. If you come and just say shaken baby doesn't exist, you get this total resistance because it means you've been wrong for years and what you've done has been very harmful to children and families. And most people can't take that. Who wants to admit their wrong? Particularly, they've had enormous consequences on numerous families. That's James Tibbles again, the retired pediatric intensive care physician from the Royal Children's Hospital. People could be in jail. Families could be broken up. Are they going to, on the spot saying, I'm sorry, I got it wrong? No, they won't. Just imagined for someone to say, well, you know, I gave the wrong evidence. I put someone away, he perhaps was innocent. How am I going to live with that? When the majority judges rejected Jesse Vannasi as appeal three years ago, it basically cemented the diagnosis in the case law in Victoria. Overseas though, case by case, some people are being exonerated. Forty convictions have been overturned since the 1990s in the United States. There, bodies called innocence projects take them on and win. In Australia, such bodies don't exist and unlike the UK and New Zealand and various states in the US, Australia also doesn't have a criminal cases review commission to systematically query wrongful convictions. There's so many wrongful convictions coming out of America on this very topic, and it's just crickets over here. Nobody wants to talk about it. Lisa and Kineal are talking, and so is Stephen Kordner, the retired forensic pathologist. Like them, he wants some sort of medical, high level medical inquiry. It's really important that we do that in Australia. But is the system capable of taking a hard look at itself? Well, I think that the system will change. There will be a reversal eventually, but I think it's decades off, really, because the machine, which has got a huge amount of momentum and the changes course means changes on so many levels in medicine and law, in the police, social workers, medical nursing, is just almost impossible. But it's happening, you see the start of it in North America, who knows where we'll end up. At the start of this podcast, I talked about how I'd hesitated about investigating this story, about how I didn't want in any way to excuse child abuse, and many people have told us that they're looking out for the best interests of the child. But when I look at Kabir and Deepika, and the devastation unleashed in their lives by this contested diagnosis, I see a profound injustice delivered by some of our most powerful institutions. It's changing people's lives. I've only got one more question. Yeah. And it actually circles back to something we spoke about at the beginning, but I just want to speak about it again, and that is the prospect of another child. What's, you started off both of you saying, you wanted two children. What's your thoughts about having another child in this environment now? No, I'm scared. I'm so scared. I can't imagine child protection getting involved again because I had another baby, no. I don't think we, I would not have this friend to just go through this again because of the child being separated through our any other child. It's very scared, yeah. But like I said, I just want to take care of the world, grew up like, yeah, just give her all the tension, like all we have. And yeah, that's it. For now, yes, that's the plan, yeah. These days, Little Doer is just getting on with her life. She's nearly four, and she's doing well. Today, Kabir is picking her up from child care. Baba, where are we going now? We're going home. Yes, we're going home. Yeah, that's not like a, this is our car. Doer won't remember her illness. With luck, she also won't remember being separated from her parents. Where's Heather? Heather is in Seattle. Seattle is great. She certainly remembers Heather, who's played such a big role in keeping her father in her life, and out of jail. What is Heather's eating? Heather's eating burger? Yeah, rendered sheet burger. Kabir and Deepika do worry about the 18 months they spent apart from Doer. When they got her back, they treated her a bit like a baby, because they hadn't been there as she'd got bigger. They also worry about how that separation's affected her. Kabir says sometimes if Doer's playing and they step out of the room, she'll panic because she can't see where they are. She'll come to him and take his hand and won't let go until they found Deepika. Is this normal? They don't really know. A year after they got Doer back, they're still finding their equilibrium as a family. Which code do you want? This one, this one. This one? As for Deepika, well, she's finally learning to drive. And Doer's driving lessons? Well, they're coming along quite well too. Can red means? Stop. Good job. That's red. Yeah, that is red. When Green happens, tell me, OK, then we'll go. Green light. Green. Green traffic light. Let's go. Let's go. Let's traffic light. This is a red traffic light. 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 the 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 Carcazzle was a producer on this series, mixing by Martin Peralta, editing from Patrick Elliott, the age's editor and Matthew Duncley, the deputy and investigations editor, additional editing by Catherine Winter, special thanks to Lisa Muxworthy and Luke McAlvin. Subscribe to the age of the Sydney Morning Herald to read more articles about this issue. (gentle music)