1 2 3 THE INQUIRY INTO PEDIATRIC FORENSIC 4 PATHOLOGY IN ONTARIO 5 6 7 8 ******************** 9 10 11 BEFORE: THE HONOURABLE JUSTICE STEPHEN GOUDGE, 12 COMMISSIONER 13 14 15 16 Held at: 17 Offices of the Inquiry 18 180 Dundas Street West, 22nd Floor 19 Toronto, Ontario 20 21 22 ******************** 23 24 December 14th, 2007 25

2
  1                        Appearances
  2  Linda Rothstein      (np) )     Commission Counsel
  3  Mark Sandler              )
  4  Robert Centa              )
  5  Jennifer McAleer     (np) )
  6  Johnathan Shime       (np) )
  7  Ava Arbuck           (np) )
  8  
  9  Brian Gover          (np) )     Office of the Chief Coroner
 10  Luisa Ritacca              )     for Ontario
 11  Teja Rachamalla      (np) )
 12  
 13  Jane Langford        (np) )     Dr. Charles Smith
 14  Niels Ortved              )
 15  Erica Baron               )
 16  Grant Hoole          (np) )
 17   
 18  William Carter       (np) )     Hospital for Sick Children
 19  Barbara Walker-Renshaw(np) )
 20  Kate Crawford             )
 21  
 22  Paul Cavalluzzo      (np) )     Ontario Crown Attorneys'
 23                                   Association
 24  
 25

3
  1                   APPEARANCES (CONT'D)
  2  Mara Greene          (np) )     Criminal Lawyers'
  3  Breese Davies        (np) )     Association
  4  Joseph Di Luca       (np) )
  5  Jeffery Manishen           )
  6  
  7  James Lockyer             )     William Mullins-Johnson, 
  8  Alison Craig              )     Sherry Sherret-Robinson and
  9  Phil Campbell        (np) )     seven unnamed persons
 10  Peter Wardle         (np) )     Affected Families Group
 11  Julie Kirkpatrick          )
 12  Daniel Bernstein     (np) )
 13  
 14  Louis Sokolov              )     Association in Defence of
 15  Vanora Simpson       (np) )     the Wrongly Convicted
 16  Elizabeth Widner      (np) )
 17  Paul Copeland         (np) )
 18  
 19  Jackie Esmonde        (np) )     Aboriginal Legal Services 
 20  Kimberly Murray      (np) )     of Toronto and Nishnawbe
 21  Sheila Cuthbertson    (np) )      Aski-Nation
 22  Julian Falconer      (np) )
 23  
 24  
 25

4
  1                 APPEARANCES (cont'd)
  2  Suzan Fraser              )     Defence for Children 
  3                             )     International - Canada
  4  
  5  William Manuel     (np)   )     Ministry of the Attorney
  6  Heather Mackay            )     General for Ontario
  7  Erin Rizok          (np)   )
  8  Kim Twohig          (np)   )
  9  
 10  Natasha Egan              )     College of Physicians and 
 11  Carolyn Silver     (np)   )     Surgeons
 12  
 13  Michael Lomer      (np)    )    For Marco Trotta
 14  Jaki Freeman        (np)   )
 15  
 16  
 17  
 18  
 19  
 20  
 21  
 22  
 23  
 24  
 25

1 TABLE OF CONTENTS Page No. 2 3 HELEN LAURA WHITWELL, Resumed 4 PEKKA SAUKKO, Resumed 5 6 Cross-Examination by Mr. James Lockyer 6 7 Cross-Examination by Ms. Julie Kirkpatrick 86 8 Cross-Examination by Mr. Louis Sokolov 150 9 Cross-Examination by Mr. Jeffery Manishen 165 10 Cross-Examination by Ms. Suzan Fraser 194 11 Cross-Examination by Ms. Luisa Ritacca 210 12 Re-Direct Examination by Mr. Mark Sandler 231 13 14 15 Certificate of transcript 269 16 17 18 19 20 21 22 23 24 25

1 --- Upon commencing at 9:30 a.m. 2 3 THE REGISTRAR: All Rise. Please be 4 seated. 5 COMMISSIONER STEPHEN GOUDGE: Good 6 morning. 7 Mr. Lockyer...? 8 9 HELEN LAURA WHITWELL, Resumed 10 PEKKA SAUKKO, Resumed 11 12 CROSS-EXAMINATION BY MR. JAMES LOCKYER: 13 MR. JAMES LOCKYER: Good morning, Mr. 14 Commissioner. Morning, Dr. Whitwell and, Dr. Saukko. 15 I'm here really as -- for your purposes, representing the 16 interests of Kassandra's stepmother, Dustin's father, 17 Gaurov's father and Kenneth's mother, and so it's in the 18 capacity of those four (4) that I'm going to be asking 19 most of my questions. 20 And one (1) thing I've noticed about the 21 four (4) -- those four (4) cases that the -- that the two 22 (2) of you have spoken about over the last couple of 23 days, is that in each of those cases we have a 24 preexisting condition that could account for the cause of 25 death.

1 So in Kassandra's case we have evidence of 2 a pre -- preexisting epileptic condition. In Dustin's 3 case we have evidence of a preexisting condition of 4 bronchopneumonia and gastric aspiration. In Gaurov's 5 case we have a preexisting condition of subdural 6 hemorrhage caused at birth. And in Kenneth's case we have 7 evidence of -- of previous seizures. 8 Am I right? And it's a very quick summary 9 of each case, but am I right in each of those cases? 10 DR. HELEN WHITWELL: Yes. 11 DR. PEKKA SAUKKO: Yes. 12 MR. JAMES LOCKYER: And so in the four 13 (4) -- in four (4) cases in which parents were -- or a 14 parent was charged and convicted of a crime in relation 15 to the death, in each of those four (4) cases that you 16 two (2) have spoken about -- about, coincidentally you 17 might say we have a preexisting condition that could 18 account for death. 19 Is that right? 20 DR. HELEN WHITWELL: Correct. 21 MR. JAMES LOCKYER: And is that -- just 22 taking the so-called Shaken Baby cases, Dr. Whitwell, is 23 that a common feature of -- of cases that have been 24 classified in the past as Shaken Baby cases? 25 DR. HELEN WHITWELL: Yes, you -- you do

1 see that. 2 MR. JAMES LOCKYER: You do? 3 DR. HELEN WHITWELL: Yes. 4 MR. JAMES LOCKYER: Which, of course, 5 begs the question as to whether it was the preexisting 6 condition or not that caused the death. 7 DR. HELEN WHITWELL: Correct. 8 MR. JAMES LOCKYER: As well, you -- my -- 9 my observation of the -- the cases in the UK that we've 10 seen, and also some of the ones in Canada and 11 particularly the ones that you're talking about, we often 12 a caregiver's explanation, and so just to take you 13 through, for example, in Dustin's case we have a 14 caregiver's explanation. 15 If we could go to PFP142940; it's Volume 16 IV, Tab 28, I think, of your materials. And if we could 17 go to page 5, and you'll see at paragraph 10 -- sorry, 18 could you go over the page -- 19 DR. HELEN WHITWELL: Yes. 20 MR. JAMES LOCKYER: -- and go to 21 paragraph 10. You'll see there an explanation as to what 22 happened. Mary's -- sorry, I'm on the wrong paragraph. 23 Sorry, could we go to page -- page 7, paragraph 15? 24 And we're looking there at events at the 25 Riverside Restaurant:

1 "According to his Will State, Constable 2 Ling observed the following on November 3 7th of '92." 4 And I'm going to sort of paraphrase some 5 of what I'm reading, so I don't have to read the whole 6 thing, but around 10:30/11:00 he was on North Front 7 Street stopped at a traffic light. He observed Dustin's 8 father pushing a baby carriage and walking east on West 9 Moira Street, that Dustin's father apparently came across 10 a friend and met him on the sidewalk, that the father 11 bent down and began unbuckling the rain cover of the 12 carriage, apparently to show off Dustin to his friend. 13 The traffic light then turned green. 14 He didn't see what happened past this 15 point, but that in his opinion, from all appearances, 16 that is from the police officer's opinion, Dustin's 17 father was unaware of anything troublesome with the baby 18 during his observations. 19 And at paragraph 16, according to the 20 statement of Scott Maracle, and he is the friend, that 21 the police officer observed, he saw the father, Dustin's 22 father, on the street. When Dustin's father pulled down 23 the rain protector and the blanket, Mr. Maracle observed 24 there was the baby laying there with foam coming out of 25 his nose, he was white, and his eyelids were blue.

1 He told Richard to go -- sorry, he told 2 Dustin's father to go into the restaurant and call an 3 ambulance. 4 And then in the next paragraph: 5 "When asked by the police if Mr. 6 Maracle saw Dustin's father shake the 7 baby in anyway, the friend replied, 'He 8 shook him by the snowsuit, that's what 9 I saw, not by two (2) hands or the 10 shoulder or the tummy, but by the 11 snowsuit. He shook him while the baby 12 was cradled in his arms. It was not a 13 violent shake.'" 14 And then if we move on to to page 16 of 15 the same document, at paragraph 41, you'll see towards 16 the bottom there it said -- and this is a police officers 17 interview of Dustin's father: 18 "He asked -- he asked Dustin's father 19 where he was going with the baby, and 20 the father replied for a walk and that 21 down by the restaurant by the bridge, 22 Scott Maracle, his friend, pulled up 23 and asked to see the new baby. 24 Dustin's father looked at the baby and 25 saw frothing from the nose. Dustin's

1 father wiped Dustin's nose. He asked 2 Dustin is he -- he asked Dustin's 3 father if he shook the baby, and 4 Dustin's father said he shook the baby, 5 but demonstrated a light shake." 6 And then Dustin's father advised that he 7 himself had been sedated at the hospital. 8 So there you have a caregiver's 9 explanation as to how Dustin came to meet his death. You 10 have a not dissimilar kind of explanation in Gaurov's 11 case. I won't take you to it, but where the father 12 explains he -- he picks up the baby from the crib at home 13 and suddenly the baby starts gasping for breath and goes 14 limp. 15 And I'm wondering is -- is a caregiver's 16 explanation a common feature of these kinds of cases, Dr. 17 Whitwell, that you've observed in the UK cases? 18 DR. HELEN WHITWELL: It is, yes. 19 MR. JAMES LOCKYER: It is? 20 DR. HELEN WHITWELL: Yeah. 21 MR. JAMES LOCKYER: And it's an -- and 22 innocent explanation for -- for the death? 23 DR. HELEN WHITWELL: In -- in a number of 24 these, in particular, in the young age group, as these -- 25 these two (2) cases are, there is similar or often

1 similar explanations to what you've described. And so 2 what you have is the -- the caregiver's explanation and 3 then the findings. 4 MR. JAMES LOCKYER: And is that a part of 5 what's lead to the concerns within profession about these 6 cases; that you have a -- what you might call consistent 7 explanations by caregivers from all walks of lives -- 8 DR. HELEN WHITWELL: That -- 9 MR. JAMES LOCKYER: -- and all parts of 10 the country, so to speak? 11 DR. HELEN WHITWELL: Often they are 12 remarkably similar. 13 MR. JAMES LOCKYER: Yes. 14 DR. HELEN WHITWELL: You know, either 15 choking or stopping breathing. And in a number, the 16 caregiver sticks to that explanation. And you're in a 17 situation -- and I think this is highlighted in the 18 appeal judgment -- of potentially, in some of these cases 19 -- you're actually saying -- disbelieving that story or 20 potentially. 21 MR. JAMES LOCKYER: And what you're doing 22 if -- if -- is potentially you're disbelieving any number 23 of stories from different people from different walks of 24 life and different places? 25 DR. HELEN WHITWELL: Correct.

1 MR. JAMES LOCKYER: And the caregiver's 2 explanations -- to take just Dustin's case for example, 3 because I've taken you through that in some detail, is a 4 -- could it be called almost a classic kind of -- of 5 explanation being given by a caregiver in one (1) of 6 these cases? 7 DR. HELEN WHITWELL: It's a similar tale 8 -- story that I've heard in a number of these cases in 9 this age group where the pathological findings are 10 essentially the triad. 11 MR. JAMES LOCKYER: So you're getting it 12 on both sides of the Atlantic, so to speak? 13 DR. HELEN WHITWELL: Yes. 14 MR. JAMES LOCKYER: Yes. All right. If 15 I could -- you'd referred to the -- the Court of Appeal 16 judgment, the -- the Harris case, and I just wanted to 17 spend a little bit of time on that. It's found at 18 PFP302178 and it's in Volume II, Tab 57 of your 19 documents. 20 DR. HELEN WHITWELL: What, the additional 21 documents? 22 MR. JAMES LOCKYER: Yes, the additional 23 documents. 24 DR. HELEN WHITWELL: Sorry, what number? 25 MR. JAMES LOCKYER: 57. And -- and --

1 DR. HELEN WHITWELL: Sorry -- 2 COMMISSIONER STEPHEN GOUDGE: Yes, we do 3 not have a 57, at least I don't. 4 DR. HELEN WHITWELL: No. 5 MR. JAMES LOCKYER: All right. 39, I've 6 heard. I take -- 7 COMMISSIONER STEPHEN GOUDGE: Did you 8 used to be a bingo caller, Mr. Lockyer? 9 MR. JAMES LOCKYER: Well, you know, when 10 I say a number I take no responsibility for it. It's -- 11 that's called ducking it. 12 13 CONTINUED BY MR. JAMES LOCKYER 14 MR. JAMES LOCKYER: Now, in -- in 15 Lorraine Harris', I appreciate this was four (4) -- four 16 (4) different individuals whose appeals were before the 17 Court of Appeal, but I want to focus just for a minute on 18 Lorraine Harris' case, and I'm going to Alan Cherry's 19 case a bit later. 20 But in Lorraine Harris' case, she was a 21 mom and her -- she actually had the doctor over at her 22 house at 1:30 in the morning on the day of her daughter - 23 - of her son's death, her son, Patrick's death, and one 24 (1) hour later she reported that she found her son pale, 25 and cold, and floppy when she picked him up.

1 Is that -- is that your memory of the 2 case? 3 DR. HELEN WHITWELL: Yes, that's correct. 4 MR. JAMES LOCKYER: And it was a case 5 where Patrick had no external injuries. 6 DR. HELEN WHITWELL: Correct. 7 MR. JAMES LOCKYER: Where the triad 8 existed. 9 DR. HELEN WHITWELL: Correct. 10 MR. JAMES LOCKYER: And therefore, seems 11 to be a particularly good match, if -- if I can put it 12 that way, for Dustin's case and for Gaurov's case. 13 Am I right? 14 DR. HELEN WHITWELL: Yes, sim -- 15 MR. JAMES LOCKYER: Particularly Dustin. 16 DR. HELEN WHITWELL: Similarised to 17 Dustin. 18 MR. JAMES LOCKYER: Gaurov's case is 19 queried because it's not clear; you've got the retinal 20 hemorrhages in Gaurov's case, but... 21 DR. HELEN WHITWELL: Well, Gaurov has 22 slight -- slightly different petip -- possibly slightly 23 different tissues. 24 MR. JAMES LOCKYER: And a potent -- 25 different potential cause.

1 DR. HELEN WHITWELL: Yeah. 2 MR. JAMES LOCKYER: Yes, all right. So 3 let's just stick to Dustin. It's very like Dustin's 4 case, not just in terms of the -- the head injuries found 5 and not found, that is the internal injuries found and 6 the external injuries not found, but also in terms of -- 7 of the explanation of the carer. 8 Am I right? 9 DR. HELEN WHITWELL: Correct. 10 MR. JAMES LOCKYER: And whilst Mr. Ortved 11 suggested to you yesterday, your -- part of your opinion 12 in that case was not accepted by the Court of Appeal, and 13 I -- I'm not sure from reading the case I necessarily 14 agree with the that. The point, nevertheless, remains 15 that the Court of Appeal quashed the conviction of the 16 mother. 17 Is that right? 18 DR. HELEN WHITWELL: Yes, that's correct. 19 MR. JAMES LOCKYER: Ms. Harris' 20 conviction was quashed? 21 DR. HELEN WHITWELL: Yes 22 MR. JAMES LOCKYER: And have you 23 testified personally at the Court of Appeal in that case? 24 DR. HELEN WHITWELL: Yes. 25 MR. JAMES LOCKYER: And from reading of

1 the case, there were twenty-one (21) experts who 2 testified in that appeal. 3 DR. HELEN WHITWELL: The number was -- 4 MR. JAMES LOCKYER: On the four (4) 5 appeals, should I say? 6 DR. HELEN WHITWELL: Yes. The number was 7 put to me yesterday; it was certainly a lot of people. 8 MR. JAMES LOCKYER: Yeah, in the judgment 9 I think he said ten (10) for the defence and eleven (11) 10 for the -- 11 DR. HELEN WHITWELL: Yeah, something like 12 that. 13 MR. JAMES LOCKYER: -- prosecution. This 14 is a bit of a systemic question in a -- in a funny way: 15 Who paid for everybody? 16 How -- how on earth was the all afforded? 17 I mean, I -- for example, Dustin has no access -- or 18 Dustin's father has no access to funds at all, for -- for 19 -- I can tell you that. So, if you were on that case, if 20 Dustin -- visualise Dustin's case as a part of the 21 cortege of cases -- 22 DR. HELEN WHITWELL: Yes, yes, yes. 23 MR. JAMES LOCKYER: -- who would have 24 paid for you? 25 DR. HELEN WHITWELL: Well, I was paid

1 directly by the lawyers, but they were granted what's 2 called Legal Aid -- 3 MR. JAMES LOCKYER: Yes. 4 DR. HELEN WHITWELL: -- to fund their 5 cases from the -- the Government. 6 MR. JAMES LOCKYER: And as far as you 7 know -- 8 DR. HELEN WHITWELL: That's my 9 understanding, all four (4) of them. 10 MR. JAMES LOCKYER: Right. 11 DR. HELEN WHITWELL: And that -- that 12 would be -- that -- that will be normal. 13 MR. JAMES LOCKYER: And as far as you 14 know, was that true of all four (4) of the people before 15 the Court? 16 DR. HELEN WHITWELL: As far as I know, 17 and that -- that's common; the -- the people who 18 generally have to fund themselves. And I think each case 19 is addressed on, you know, income and resources. But my 20 understanding is all these were funded from Legal Aid. 21 MR. JAMES LOCKYER: And would I -- would 22 it be fair to summarise your evidence -- it's actually 23 summarised in the judgment itself -- but it would fair to 24 summarise your evidence that one should be extremely 25 cautious of convicting someone when the only evidence

1 against the individual was the existence of the triad? 2 DR. HELEN WHITWELL: Correct. 3 MR. JAMES LOCKYER: And, of course, the 4 Court of Appeal accepted that judgment, or that opinion, 5 by way of quashing the conviction. Is -- 6 DR. HELEN WHITWELL: They did, yes. 7 MR. JAMES LOCKYER: -- that right? And 8 if we assume for a moment -- and I -- I appreciate you -- 9 you don't necessarily know all the ins and outs of -- of 10 Dustin's case, but certainly, as you said, Dustin's case 11 does seem to be a remarkable parallel to the 12 circumstances, at least at first sight, of -- of Lorraine 13 Harris. 14 Am I right? 15 DR. HELEN WHITWELL: Correct. 16 MR. JAMES LOCKYER: The other case that 17 was referred to by Mr. Ortved yesterday, in which you 18 played a role, was the -- the case of Alan Cherry. 19 Do you remember that? 20 DR. HELEN WHITWELL: Yes. 21 MR. JAMES LOCKYER: Now, Alan Cherry is 22 not a part -- has never been suggested to be a Shaken 23 Baby case by any one. 24 Is that right? It's a fall case, a short 25 fall case?

1 DR. HELEN WHITWELL: That's correct. 2 MR. JAMES LOCKYER: And if we could go to 3 page 97 of this judgment. Are you able to do that, or -- 4 I can give you a paragraph number. Paragraph 186 of the 5 judgment. 6 DR. HELEN WHITWELL: Yes, I've got 186. 7 Yes. 8 MR. JAMES LOCKYER: That's where... 9 10 (BRIEF PAUSE) 11 12 MR. JAMES LOCKYER: You'll see there that 13 the judgment -- that's where the judgment begins to deal 14 with Alan Cherry's situation. 15 You see that at -- at paragraph 186? 16 DR. HELEN WHITWELL: I'm -- yes. 17 MR. JAMES LOCKYER: And then it comes to 18 -- to your, or certainly a part of your involvement in 19 the case. 20 If we go to page 104, paragraph 213, and 21 this is in the context of the Cherry case. 22 DR. HELEN WHITWELL: Yes. 23 MR. JAMES LOCKYER: And at sub (3) there, 24 there's a reference to you where it says, and -- and this 25 of course was a case where the Court of Appeal dismissed

1 Mr. Cherry's Appeal. 2 Is that right? 3 DR. HELEN WHITWELL: That's correct. 4 MR. JAMES LOCKYER: They upheld his 5 conviction for -- I'm trying to remember if it was murder 6 or manslaughter. I think it was manslaughter, but I 7 could be wrong. It was either -- 8 DR. HELEN WHITWELL: It was manslaughter. 9 MR. JAMES LOCKYER: Manslaughter, right. 10 And it says at sub Roman numeral III -- 11 oh, we've lost it, sorry. Page 104. There, right. 12 DR. HELEN WHITWELL: Yes. 13 MR. JAMES LOCKYER: Sub Roman numeral 14 III: 15 "Even if contrary to the above..." 16 And there's been a reference to Dr. 17 Plunkett from the United States and his video of a child 18 falling, and so on. 19 DR. HELEN WHITWELL: Yes. 20 MR. JAMES LOCKYER: 21 "Even if -- even if contrary to the 22 above, it was thought Dr. Plunkett's 23 study did mean that a fall from a chair 24 here was capable of furnishing a 25 realistically possible explanation for

1 Sarah's death, it remains necessary to 2 address the two (2) separate sites of 3 scalp bruising. Professor Whitwell 4 conducted the post-mortem. As she 5 agreed in her oral evidence, her 6 impression, at least at the time of the 7 trial, was that the two (2) separate 8 areas of scalp bruising have been 9 caused at about the same time. 10 Inevitably, and as Professor Whitwell 11 further agreed, no scientific 12 development since the trial could alter 13 the relevance of these two (2) separate 14 sites of bruising. 15 Accordingly, for the fall to be capable 16 of providing an innocent explanation of 17 these injuries, it was necessary to 18 postulate two (2) impacts, window and 19 floor, in the course of the same fall. 20 As it seems to us, this is pure 21 speculation and stretches credibility 22 altogether too far." 23 And you're familiar with that part of the 24 judgment? 25 DR. HELEN WHITWELL: Yes, I am now. I've

1 re-read it, yes. 2 MR. JAMES LOCKYER: Okay. And I 3 understand that, without reading the whole judgment, 4 played a significant -- 5 DR. HELEN WHITWELL: It did. 6 MR. JAMES LOCKYER: -- role in the Court 7 of Appeal's decision -- 8 DR. HELEN WHITWELL: Yes, it did. 9 MR. JAMES LOCKYER: -- to uphold the -- 10 the conviction. 11 DR. HELEN WHITWELL: That's correct. 12 MR. JAMES LOCKYER: I understand, Dr. 13 Whitwell, this case is back in front of the CCRC. 14 Is that right? 15 DR. HELEN WHITWELL: It is. 16 MR. JAMES LOCKYER: And why is it back in 17 front of the CCRC? 18 DR. HELEN WHITWELL: It -- the CCRC have 19 agreed to re-look at it -- 20 MR. JAMES LOCKYER: Yes. 21 DR. HELEN WHITWELL: -- in the light of a 22 potential bio-mechanical evidence. 23 MR. JAMES LOCKYER: So -- 24 COMMISSIONER STEVEN GOUDGE: In light of 25 what? I didn't --

1 DR. HELEN WHITWELL: Bio-mechanical 2 evidence. 3 COMMISSIONER STEVEN GOUDGE: Okay. 4 5 CONTINUED BY MR. JAMES LOCKYER: 6 MR. JAMES LOCKYER: So Mr. Cherry has 7 continued to maintain his innocence, presumably? 8 DR. HELEN WHITWELL: He has, yes. 9 MR. JAMES LOCKYER: Despite the Court of 10 Appeal judgment? 11 DR. HELEN WHITWELL: He has, yes. 12 MR. JAMES LOCKYER: And the new bio- 13 mechanical evidence, does it relate to the passage I've 14 just read to you? 15 DR. HELEN WHITWELL: It does, yes. 16 MR. JAMES LOCKYER: And how does it 17 relate to it? 18 DR. HELEN WHITWELL: In sim -- in simple 19 terms, there's bio-mechanical evidence relating to the 20 issue of low level falls and -- and modelling to explain 21 -- to see if it's bio-mechanically possible that A) the 22 issue of the low level and B) the issue of the bruises. 23 MR. JAMES LOCKYER: The two (2) bruises? 24 DR. HELEN WHITWELL: Correct. 25 MR. JAMES LOCKYER: And -- and how does

1 the bio-mechanical -- what's your understanding of how 2 the bio-mechanical evidence relates to the two (2) 3 bruises? 4 DR. HELEN WHITWELL: Well first -- 5 firstly, there's the issue of the low level fall -- 6 MR. JAMES LOCKYER: Yes. 7 DR. HELEN WHITWELL: -- to see if the 8 impacts potentially generated. And then there's the 9 issue of could the head actually strike at two (2) 10 places, rather than simply just one (1), in terms of that 11 fall. That -- that's my understanding. 12 MR. JAMES LOCKYER: Mm-hm. 13 DR. HELEN WHITWELL: It's some while 14 since I've seen the written report. 15 MR. JAMES LOCKYER: Are you still -- have 16 you been reconsulted on the case again, have you? 17 DR. HELEN WHITWELL: I was about a year 18 ago, yes. 19 MR. JAMES LOCKYER: Yes, all right. And 20 do you know its -- its status in terms of a likely 21 decision from the CCRC? 22 DR. HELEN WHITWELL: I don't at the 23 moment, no. 24 MR. JAMES LOCKYER: All right. And if we 25 then move from there to -- back to this issue of the --

1 the triad, one (1) of the hypotheses presented to the 2 Court of Appeal is that a cutting off of a baby's air 3 supply can lead potentially to the triad of injuries. 4 Is that correct? 5 DR. HELEN WHITWELL: Correct. 6 MR. JAMES LOCKYER: And, no pun intended, 7 in your opinion is the jury still out on that issue? 8 DR. HELEN WHITWELL: It is in the -- the 9 cases such as Harris, in terms of where you have the 10 triad and no objective evidence of injury, does that 11 definitely mean shaking has occurred, or are there other 12 potential explanations? 13 Particularly in the light of some of the 14 histories and the issues of a child choking or coughing, 15 and whether or not there's a potential for oozing in the 16 subdural spaces as a result of that. Further 17 pathological studies are being undertaken by a number of 18 people to assess that issue. 19 MR. JAMES LOCKYER: Are you one (1) of 20 those people? 21 DR. HELEN WHITWELL: In part, yes. 22 COMMISSIONER STEPHEN GOUDGE: Could you 23 just explain that scientifically to me, Dr. Whitwell. I 24 don't quite understand coughing or choking leading to...? 25 DR. HELEN WHITWELL: Right. There's some

1 evidence from a physiological point of view that coughing 2 or choking may lead to raised pressure within the -- 3 within the brain -- within the -- within the head -- 4 COMMISSIONER STEPHEN GOUDGE: Okay. 5 DR. HELEN WHITWELL: -- through a sort of 6 straining mechanism, in simply terms. So the question 7 is -- 8 COMMISSIONER STEPHEN GOUDGE: And not due 9 to the cutting off of oxygen, but due to the straining 10 mechanism? 11 DR. HELEN WHITWELL: Correct. So -- 12 well, it could be a combination. I mean, in fairness, 13 the work is at a pretty early stage. 14 COMMISSIONER STEPHEN GOUDGE: Correct. 15 DR. HELEN WHITWELL: So, for example, you 16 can see subdural hemorrhages in things like whooping 17 cough, where there's continual coughing; although it's a 18 rare disease now. So the issue is, could oozing occur 19 simply as a result of back pressure and also the fact 20 that perhaps blood vessels are damaged by a lack of 21 oxygen. 22 So there are a number of individuals that 23 are studying -- 24 COMMISSIONER STEPHEN GOUDGE: Okay. 25 DR. HELEN WHITWELL: -- the dura in these

1 cases, in particular. 2 COMMISSIONER STEPHEN GOUDGE: Thank you. 3 4 CONTINUED BY MR. JAMES LOCKYER: 5 MR. JAMES LOCKYER: And the -- the 6 individuals who are doing it besides yourself, are there 7 other people whose names we've heard in the last couple 8 of days? 9 DR. HELEN WHITWELL: Yeah, I'm not sure 10 actually. 11 MR. JAMES LOCKYER: All right. 12 DR. HELEN WHITWELL: But in England 13 there's a couple of pathologists who are doing it. 14 MR. JAMES LOCKYER: Is -- is the research 15 being done just in England, or outside England as well? 16 DR. HELEN WHITWELL: I'm uncertain. 17 MR. JAMES LOCKYER: All right. And when 18 are we likely to get an answer? 19 DR. HELEN WHITWELL: I don't know. 20 MR. JAMES LOCKYER: Dr. Saukko, are you 21 aware of this research being undertaken? 22 DR. PEKKA SAUKKO: I've heard it 23 mentioned, yes, but I don't know any details. 24 MR. JAMES LOCKYER: Mm-hm. So all of 25 this sort of raises the question as to -- or could raise

1 the question anyway -- as to whether an Appeal Court of 2 judges, who are not trained obviously in your profession, 3 is the right place to deal with these kinds of issues. 4 DR. HELEN WHITWELL: That's correct. 5 MR. JAMES LOCKYER: And -- and what's 6 your opinion of that? 7 DR. HELEN WHITWELL: I don't -- I -- it's 8 my personal view it's not the right place; that 9 development in research and medical advances under 10 discussion around those should take place within the 11 medical and scientific community. 12 MR. JAMES LOCKYER: And insofar as there 13 are people convicted as a result of allegations that 14 scientifically may well be proved false in the future? 15 DR. HELEN WHITWELL: I'm sorry, what's 16 the -- 17 MR. JAMES LOCKYER: Well how do you deal 18 with cases -- I mean, have you considered how you deal 19 with cases like Lorraine Harris, for example? Or Dustin 20 XXXX for that matter? 21 DR. HELEN WHITWELL: In the judicial -- 22 MR. JAMES LOCKYER: I'm sorry, or Dustin 23 for that matter? 24 DR. HELEN WHITWELL: In the judicial 25 sense?

1 MR. JAMES LOCKYER: Yes. Or no, really, 2 in the individual sense, in the case of Dustin's father 3 and in the case of Mrs. Harris? 4 DR. HELEN WHITWELL: Well, one needs a 5 system where there is the ability to review a case when 6 new evidence or further work comes to light. 7 MR. JAMES LOCKYER: Mm-hm. So to take -- 8 if we go back for a moment to the -- the case of Alan 9 Cherry, it would seem then unless we somehow acknowledge 10 that our scientific knowledge is insufficient to be able 11 to handle these cases, there's a potential in the case 12 like Alan Cherry's, for as scientific knowledge moves on 13 that we keep coming back to an Appeal Court to look at a 14 case yet again and again and again and again? 15 DR. HELEN WHITWELL: That's correct. 16 MR. JAMES LOCKYER: And in the meantime, 17 Mr. Cherry service his sentence for manslaughter? 18 DR. HELEN WHITWELL: He -- he's already 19 served it. 20 MR. JAMES LOCKYER: All right. I think 21 perhaps makes the point even better. 22 In the -- and this was brought to your 23 attention by Mr. Ortved yesterday. In your original 24 short form report on Gaurov's case -- and it's to be 25 found at PFP001491. It's your Volume IV, Tab 33.

1 DR. HELEN WHITWELL: Sorry, which volume? 2 MR. JAMES LOCKYER: Volume IV, Tab 33, 3 page 2. Page 2 of the document that's up on screen. If 4 you just refer -- 5 DR. HELEN WHITWELL: Yes. 6 MR. JAMES LOCKYER: -- to the screen 7 it'll do the job for you. 8 DR. HELEN WHITWELL: Yes, that's fine. 9 MR. JAMES LOCKYER: So we're looking at 10 your -- your short form report on -- on Gaurov's case, 11 and at note C -- and this was brought to your attention 12 or -- or you referred by Mr. Ortved yesterday -- you 13 wrote: 14 "If I was reviewing this case as per 15 Goldsmith review, it's highly likely 16 this case would have been referred to 17 the CCRC Court of Appeal." 18 Now, you understand that the CCRC is 19 enroute potentially to the Court of Appeal, if the CCRC 20 makes the referral? 21 DR. HELEN WHITWELL: That's correct. 22 MR. JAMES LOCKYER: Right. And you -- 23 you told us yesterday that you said this because -- or 24 you wrote this because this was a case where, in your 25 opinion, to decide that the cause of Gaurov's death was a

1 homicidal cause of death, is a very questionable 2 judgment. 3 DR. HELEN WHITWELL: I'm sorry, could you 4 repeat that again? 5 MR. JAMES LOCKYER: Yes. You said, in 6 effect, yesterday that the reason you made this comment 7 was because in your opinion to -- to assign Gaurov's 8 death to a homicidal cause is -- is most -- a most 9 questionable judgment. 10 DR. HELEN WHITWELL: Correct. 11 MR. JAMES LOCKYER: And you didn't make 12 the comment -- the same comment as you made here in your 13 review of Kassandra's case and in your review of Dustin's 14 case, in your short form review. And you didn't come 15 back to this comment longer review in -- in Gaurov's 16 case. 17 And I'm wondering if -- if you make the 18 same comment with respect to Kassandra's case and with 19 respect to Dustin's case, as you made with respect to 20 Gaurov's case? 21 DR. HELEN WHITWELL: Yes, they could -- 22 they could fall into the same group. 23 MR. JAMES LOCKYER: So you could just as 24 well have made the same comment -- 25 DR. HELEN WHITWELL: I could, yes.

1 MR. JAMES LOCKYER: -- in their reports-- 2 DR. HELEN WHITWELL: Yes. 3 MR. JAMES LOCKYER: -- or your reports on 4 their cases, as well? 5 Now, you -- you talked a little bit about 6 the Goldsmith Review yesterday, and I think by the time 7 we get to the end it looks like that in fact twelve (12) 8 out of ninety-seven (97) cases made their way through the 9 CCRC -- 10 DR. HELEN WHITWELL: Correct. 11 MR. JAMES LOCKYER: -- or are making 12 their way through the CCRC, if they haven't already done. 13 Is that right? 14 DR. HELEN WHITWELL: That -- that's my 15 understanding, yes. 16 MR. JAMES LOCKYER: And potentially, 17 ultimately the Court of Appeal. And we get twelve (12) 18 out of ninety-seven (97). It was three (3) out of eight- 19 eight (88) plus nine (9) other cases that predated the 20 Goldsmith Review. They'd already -- 21 DR. HELEN WHITWELL: Yes, I'm not certain 22 where they are in the legal process. 23 MR. JAMES LOCKYER: Right. Well, some 24 have already gone through, I believe. 25 DR. HELEN WHITWELL: Yes.

1 MR. JAMES LOCKYER: I think one (1) of 2 them was Harris -- 3 DR. HELEN WHITWELL: Yes. 4 MR. JAMES LOCKYER: -- Lorraine Harris' 5 case. 6 DR. HELEN WHITWELL: Yes, it was. 7 MR. JAMES LOCKYER: So -- so those nine 8 (9) cases were already in the CCRC or Court of Appeal 9 system before the Goldsmith Review came on scene? 10 DR. HELEN WHITWELL: I think they were. 11 That's my understanding, yes. 12 MR. JAMES LOCKYER: And you talked of a - 13 - some kind of board that was assigned by the -- as a 14 part of the Goldsmith Review to review the individual 15 cases. 16 Is that right? 17 DR. HELEN WHITWELL: Yes. 18 MR. JAMES LOCKYER: And do you know, was 19 a forensic pathologist a part of that Review? 20 DR. HELEN WHITWELL: No. 21 MR. JAMES LOCKYER: So, who -- who -- did 22 they have any kind of expert, in any regard, on the 23 review? 24 DR. HELEN WHITWELL: My understanding is 25 that they -- it was led by a pediatrician; whether or not

1 and -- who was consulted, I'm not certain. 2 MR. JAMES LOCKYER: So, in effect, it was 3 clinician that they consulted? 4 DR. HELEN WHITWELL: That's correct. 5 That's my understanding, yes. 6 MR. JAMES LOCKYER: Do you know who it 7 was? 8 DR. HELEN WHITWELL: My understanding, it 9 was Dr. David, who is a pediatrician. 10 MR. JAMES LOCKYER: And in your opinion, 11 was that a -- might they have done a little better if 12 they had at least put a forensic pathologist there, as 13 well? 14 DR. HELEN WHITWELL: Well, in fairness, I 15 -- I don't know the -- the complete structure of the 16 review -- 17 MR. JAMES LOCKYER: Yeah. 18 DR. HELEN WHITWELL: -- so I don't know 19 if Dr. David consulted or whoever was involved. I mean, 20 generally -- it's generally helpful to have fore -- 21 forensic pathologists or pediatric pathologists reviewing 22 pathology. 23 MR. JAMES LOCKYER: Mm-hm, mm-hm. Now, 24 you've had considerable dealings with the CCRC yourself, 25 is that right?

1 DR. HELEN WHITWELL: I have, yes. 2 MR. JAMES LOCKYER: And -- and in what 3 capacity? Have you been consulted by the CCRC itself? 4 DR. HELEN WHITWELL: I have, yes. 5 MR. JAMES LOCKYER: Do you know how many 6 cases you've been consulted? 7 DR. HELEN WHITWELL: I couldn't give you 8 a number. At least half a dozen, probably more. 9 MR. JAMES LOCKYER: Have you also been 10 consulted by individual applicants -- 11 DR. HELEN WHITWELL: Didn't -- 12 MR. JAMES LOCKYER: -- to the CCRC? 13 DR. HELEN WHITWELL: I'm sorry, do you 14 mean -- how do you mean? 15 MR. JAMES LOCKYER: Have you been asked 16 by counsel for the individual -- any of the individual 17 applicants to provide opinions, as well? 18 DR. HELEN WHITWELL: Yes, I have. 19 MR. JAMES LOCKYER: So you've been 20 consulted in both capacities. 21 DR. HELEN WHITWELL: Correct. 22 MR. JAMES LOCKYER: And have you been 23 consulted by prosecutors, as well, in the context of any 24 of these cases? 25 DR. HELEN WHITWELL: Yes, I have.

1 MR. JAMES LOCKYER: Mm-hm. So you've 2 been -- you've been approached in all three (3) 3 capacities, is that right? 4 DR. HELEN WHITWELL: Yes. 5 MR. JAMES LOCKYER: And presumably when 6 you're consulted by the CCRC, they're the ones who pay 7 you. 8 DR. HELEN WHITWELL: That's correct. 9 MR. JAMES LOCKYER: Right. And could you 10 -- could you tell -- do you have opinions about the 11 effectiveness of the CCRC as a system? 12 DR. HELEN WHITWELL: It -- since it was 13 set up it certainly -- it certainly seems to be a 14 reasonable system for assessing cases, in terms of the -- 15 the convictions. 16 MR. JAMES LOCKYER: Were you involved in 17 any pre-CCRC cases, Home Secretary applications, prior to 18 the creation of the -- of the Board? 19 DR. HELEN WHITWELL: I was involved in 20 cases that went to the Appeal Court pre, and the 21 institution of the Board. 22 MR. JAMES LOCKYER: Mm-hm. And do you 23 have -- do you have opinions as to whether the -- the 24 CCRC process is better than the Home Secretary process? 25 DR. HELEN WHITWELL: I couldn't really

1 comment on that. 2 MR. JAMES LOCKYER: Okay, fair enough. 3 Dr. Saukko, does -- does Finland have a conviction review 4 process when an individual has been convicted of a crime, 5 lost all his appeals and is effectively out of the 6 system? 7 Is there a way of getting back in the 8 system in Finland? 9 DR. PEKKA SAUKKO: There's no separate 10 body, but if there's new evidence then one can apply the 11 Supreme Court to overrule the conviction. 12 MR. JAMES LOCKYER: So you can apply to 13 reopen the case? 14 DR. PEKKA SAUKKO: Yes. 15 MR. JAMES LOCKYER: And is the Supreme 16 Court the top court in the country? 17 DR. PEKKA SAUKKO: That's the top court, 18 but it -- to my understanding it happens very rarely. 19 MR. JAMES LOCKYER: Mm-hm. Do you know 20 if it's ever happened? 21 DR. PEKKA SAUKKO: I think so, but I 22 can't -- I haven't any -- I don't have any figures. 23 MR. JAMES LOCKYER: Okay. Have you ever 24 been consulted on a case like that? 25 DR. PEKKA SAUKKO: Not -- not Supreme

1 Court, no. 2 MR. JAMES LOCKYER: No, a post-conviction 3 review process, have you ever been involved -- 4 DR. PEKKA SAUKKO: No, no. 5 MR. JAMES LOCKYER: -- in a case? Mm-hm. 6 Has the -- the kind of concern that we've 7 seen in the UK and we're now obviously seeing in this 8 jurisdiction, as well, has there been any similar 9 movement in Finland -- 10 DR. PEKKA SAUKKO: No. 11 MR. JAMES LOCKYER: -- to review cases of 12 -- of alleged Shaken Baby? 13 DR. PEKKA SAUKKO: No, there hasn't. 14 MR. JAMES LOCKYER: Is it something that 15 you -- you think might happen in your own country? 16 DR. PEKKA SAUKKO: Well, these cases are 17 very rare in Finland, so in theory, yes, but... 18 MR. JAMES LOCKYER: All right. I want to 19 look now at the four (4) individual cases, sort of one by 20 one, if I may, that's -- that the two (2) of you have 21 looked at between you. 22 And I thought the -- the first case I 23 might look at is -- is Gaurov's case, all right? 24 Gaurov's the five (5) week old infant who died at home in 25 the arms of his father.

1 And there's a couple of things I wanted to 2 raise with you. First of all, can we go to Dr. 3 Pollanen's evidence of December 5th, 2007, please, to 4 page 46 of that evidence. 5 COMMISSIONER STEPHEN GOUDGE: Can we do 6 that, Mr. Centa? Is the -- 7 MR. ROBERT CENTA: Yeah. It'll just take 8 a moment. 9 10 (BRIEF PAUSE) 11 12 CONTINUED BY MR. JAMES LOCKYER: 13 MR. JAMES LOCKYER: Page 46. And if you 14 look at line 13 there, Dr. Pollanen testified: 15 "So in the Gaurov case, which is the 16 Shaken Baby, one (1) of the issue -- 17 one (1) of the issues there is the 18 presence of the triad, a group of three 19 (3) findings, is often used as evidence 20 to support the presence of Shaken Baby 21 Syndrome. Yet in and at autopsy 22 indeed, Gaurov had the triad, but on 23 admiss -- on initial admission to 24 hospital, one (1) element of the triad 25 was absent on initial examination.

1 MR. SANDLER: And that was the retinal 2 hemorrhaging? 3 DR. POLLANEN: Correct. Now that leads 4 to one (1) of two (2) possibilities. 5 The one (1) possibility is that the 6 doctor who examined the back of the eye 7 simply missed them, which sometimes 8 happens, although they weren't there, 9 and they developed subsequently through 10 another process. And there is in fact, 11 in the case, evidence of another 12 process that could produce them, which 13 was brain swelling. 14 So this actually does provide an 15 opportunity then to revisit the 16 diagnosis, Is there an ultimate cause, 17 for example, that's not Shaken Baby 18 Syndrome? 19 THE COMMISSIONER: So what does the 20 doctor do with that? What does the 21 post-mortem author do? 22 DR. POLLANEN: Well in that 23 circumstance, you'd have to essentially 24 determine if the absence of the triad 25 upon admission excludes or negates the

1 diagnosis of Shaken Baby Syndrome. 2 COMMISSIONER: And do -- do your best 3 to come to an opinion with some level 4 of certainty one way or the other? 5 DR. POLLANEN: Correct. or at least 6 identify that as an issue." 7 Do you agree with what's being said there 8 by Dr. Pollanen? First of all, you do have on the facts 9 at the time of the hospital admission of Gaurov, the 10 report of the admitting physician was that there were no 11 -- that the -- that the -- there was no hemorrhaging of 12 the eyes? 13 DR. HELEN WHITWELL: Yes, that's correct. 14 MR. JAMES LOCKYER: And that's something 15 that -- would it -- would it be easy to miss that as an 16 examining physician in the circumstances, or do you think 17 that would be noticed? 18 DR. HELEN WHITWELL: Well, I can't really 19 comment on whether or not how -- whether or not they 20 could have been missed. I think if a proper examination 21 had been done, they would have been picked up. 22 MR. JAMES LOCKYER: All right. And in 23 fact if you read the admitting physician's notes, he 24 makes specific reference to the condition of the eyes, so 25 -- of Gaurov, so he clearly looked at them at least.

1 DR. HELEN WHITWELL: Yes. 2 MR. JAMES LOCKYER: And would that be 3 something that would be wise to do on admission of a -- 4 of a baby in Gaurov's circumstances? 5 DR. HELEN WHITWELL: Yes, it would. 6 MR. JAMES LOCKYER: To examine the eyes 7 presumably under a magnifying glass of some sort? 8 DR. HELEN WHITWELL: Well, it -- in -- it 9 -- one uses an ophthalmoscope to look at the back of the 10 eyes through the front of the eyes. 11 MR. JAMES LOCKYER: Oh, I see. All 12 right. And that's a very interesting comment of -- of 13 Dr. Pollanen's, because if we assume that the admitting 14 physician was right in his observation of an absence of 15 hemorrhaging in the eyes, then that sort of inevitably 16 leads to -- back to Lorraine Harris' case, you might say, 17 insofar that would surely indicate that there must be 18 something other than shaking that caused the hemorrhaging 19 of the eyes? 20 DR. HELEN WHITWELL: That's correct. 21 MR. JAMES LOCKYER: So the hemorrhaging 22 of the eyes, in a sense you could use Gaurov's case as -- 23 as a precedent for further literature explorations of 24 whether the triad is in fact caused by shaking in the 25 first place.

1 DR. HELEN WHITWELL: Correct. 2 MR. JAMES LOCKYER: Or necessarily caused 3 by shaking -- 4 DR. HELEN WHITWELL: Yes, that's correct. 5 MR. JAMES LOCKYER: -- in the first 6 place. 7 Gaurov's case would be a good case to use 8 as a -- as a precedent. Is that fair? 9 DR. HELEN WHITWELL: Well it does -- yes. 10 I mean it -- if -- if the assumption is that retinal 11 hemorrhages are caused by trauma, ie. shaking, and 12 they're not there on admission, then what -- one looks at 13 other potential explanations, such as brain swelling. 14 MR. JAMES LOCKYER: And so in Gaurov's 15 case, whilst we have -- the preexisting condition may 16 have been responsible for what ultimately caused Gaurov's 17 death, beyond that, potentially, as Dr. Pollanen has 18 pointed out, we don't even seem to have the triad in the 19 first place. 20 DR. HELEN WHITWELL: No, you don't. 21 MR. JAMES LOCKYER: I don't know quite 22 why Dr. Smith said this, but he seems to have had a lot 23 of trouble with the case himself, and we got some notes 24 just a -- a few days ago in this regard. 25 If we could go to PFP302155.

1 And what we're looking at here is the 2 notes of one (1) of the officers in charge of the case, 3 Detective Lines (sic). And if you go -- could you -- I'm 4 sorry, I don't have a page number here. Could you just 5 keep -- keep moving and I'll tell you when to stop 6 through these notes. We're looking for March 23rd, which 7 you'll see at the top of one (1) of the pages. 8 And if you look at the entry for 2:55 on 9 March 23rd -- and if you could raise the page a little so 10 we can go to the bottom of it -- what it says there, and 11 this is Detective Lines, one (1) of the officers in 12 charge, and what he's noted March 23rd of 1992, which is 13 post-autopsy, he's noted: 14 "Speak to pathologist, Dr. Charles 15 Smith, of Sick Kids Hospital re. 16 update. Still is of the opinion that 17 death was from either two (2) sources: 18 shaken baby, blunt trauma. He has 19 consulted with Dr. Huyer, SCAN program. 20 They both have misgivings about 21 criminal element. Quote, 'Has 22 struggled with this being criminal. 23 Agrees to meet with Mary Hall any 24 time.'" 25 And I can just tell you, Dr. Whitwell,

1 that Mary Hall was then a -- the head Crown attorney in 2 the Scarborough office where -- 3 DR. HELEN WHITWELL: Right. 4 MR. JAMES LOCKYER: -- out of which Mr. 5 Kumar was prosecuted. 6 So it would seem, at least in the early 7 days -- and this is before Gaurov's father is charged 8 with the second degree murder of his son Gaurov -- that 9 even after the autopsy, Dr. Smith, and indeed Dr. Huyer 10 of the SCAN unit, to use the -- to use the quote, 11 "struggling" with the question of whether any crime had 12 been committed in Gaurov's death in the first place. 13 I don't think you would have known that. 14 We only got this document about a week ago -- 15 DR. HELEN WHITWELL: Right. 16 MR. JAMES LOCKYER: -- through -- through 17 the officer himself providing it. 18 Another document that we just obtained 19 through a request is the medical records, or -- the 20 medical records of Dinash's (phonetic) brother, Saurob. 21 And if we go to PFP302210 -- now it's -- 22 it's the best we have so far, and we're trying to get a 23 better copy of this document -- but if you look at this 24 document, it's addressed to Dr. Rana, who was Saurob's -- 25 and indeed still is -- Saurob's physician. Saurob is now

1 -- I think I'm right in saying -- seventeen (17) years 2 old and, Mr. Commissioner, he -- he is with his parents, 3 I'm glad to say. 4 Any event, it's a report from the Hospital 5 for Sick Children. If we go to the second page, you'll 6 see this document. I'm afraid you -- we don't know who 7 it's from because you can't quite read it. But if you 8 look at this document on page 1 -- if you could show us 9 page 1 again? There might a Dr. Bard, if there is such a 10 doctor at the Hospital for Sick Children. 11 And you'll see -- and this is a matter of 12 days before Gaurov's death. If you could raise the page, 13 give us the bottom of the page. 14 COMMISSIONER STEPHEN GOUDGE: Is there a 15 date on it somewhere? 16 MR. JAMES LOCKYER: Well, it's -- I think 17 it's mark -- I'm right in saying we've worked it out as 18 being March 1st, 1992. It might be March 11th or 21st. 19 It's -- it's -- there's a one (1) and we have reason to 20 think it's March. And I think that becomes apparent. 21 22 CONTINUED BY MR. JAMES LOCKYER: 23 MR. JAMES LOCKYER: If you could give us 24 the -- the -- to the bottom of this page, please. Thank 25 you. You'll see here that Saurob, in what's really just

1 a matter of days before Gaurov's death, was seen in the 2 walk-in clinic at the Hospital for Sick Children for 3 these spells. 4 You see where I'm looking? 5 DR. HELEN WHITWELL: Yes. 6 MR. JAMES LOCKYER: The history states -- 7 and -- and we can probably invent some of the lines -- 8 some of the words that are missing -- the history states 9 that he was playing when he suddenly fell on the ground - 10 - and we don't quite know what -- and was cyanosed. 11 Apparently the father gave him something, and 12 compressions and mouth to mouth. And then there's a 13 suggestion there may have been a similar episode last 14 year. 15 And then if we go to the -- over the page, 16 and there's -- you'll see in the last paragraph: 17 "Difficult to elicit exactly what the 18 problem is. In a consideration of the 19 description of this spell, we feel it's 20 worthwhile to do..." 21 And I'm -- I'm sort of translating, Mr. 22 Commissioner, to some extent. 23 "...a reassessment of the patient after 24 an EEG has been done." 25 We also -- I can also tell you that

1 Gaurov's father used to be an ambulance attendant back in 2 his home country. 3 DR. HELEN WHITWELL: Right. 4 MR. JAMES LOCKYER: And so had 5 familiarity with resuscitation and mouth-to-mouth 6 techniques. 7 DR. HELEN WHITWELL: Yes. 8 MR. JAMES LOCKYER: So if we -- and I 9 appreciate this is a dreadful document, but it's all 10 we've got at the moment, and as I say, we're trying to 11 get a better copy of it. 12 But if we assume for a moment that just 13 days before Gaurov died his one (1) year old brother, 14 Saurob had been through, what could be described as a 15 similar experience to Gaurov, would that suggest that 16 there might be any kind of -- of hereditary problem 17 within family? 18 DR. HELEN WHITWELL: I don't think I can 19 really answer that. It may or may not. I mean, we -- we 20 just don't know. 21 MR. JAMES LOCKYER: All right. If we 22 could move -- and this is Dr. Saukko, to Kenneth's case. 23 You've classified the cause of death in 24 Kenneth's case as being unascertained, is that correct? 25 DR. PEKKA SAUKKO: That's correct.

1 MR. JAMES LOCKYER: And just for 2 clarification, just so that we're all reminded of this, 3 it's never been suggested that Kenneth's case is a Shaken 4 Baby case -- 5 DR. PEKKA SAUKKO: No. 6 MR. JAMES LOCKYER: -- by anybody? 7 DR. PEKKA SAUKKO: Not to my knowledge. 8 MR. JAMES LOCKYER: All right. This is 9 more a case not unlike the ones that the other three (3) 10 panellists reviewed, who were here a couple of weeks ago? 11 DR. PEKKA SAUKKO: Mm-hm. 12 MR. JAMES LOCKYER: Insofar as you've 13 defined this case as being unascertained in terms of a 14 cause of death, Dr. Saukko, do you consider that would be 15 considered a controversial opinion within your profession 16 or an uncontroversial opinion? 17 DR. PEKKA SAUKKO: Well, if -- I don't 18 think it's controversial because there's absence of any 19 pathology whatsoever. 20 MR. JAMES LOCKYER: Okay. And, Dr. 21 Whitwell, you're familiar with this case and -- and -- 22 DR. HELEN WHITWELL: In brief, yes. 23 MR. JAMES LOCKYER: Yes. And -- and 24 would you share that opinion? 25 DR. HELEN WHITWELL: I would, yes.

1 MR. JAMES LOCKYER: It's not an 2 uncontroversial opinion to say the cause of death in this 3 case was unascertained. 4 DR. HELEN WHITWELL: No, that's correct. 5 MR. JAMES LOCKYER: And one (1) of the 6 things that we have in Kenneth's case is clear evidence 7 of preexisting seizure disorders, is that right, Dr. 8 Saukko? 9 DR. PEKKA SAUKKO: That's correct. 10 MR. JAMES LOCKYER: And I thought I might 11 take you to some of those by way of the -- the overview 12 report on -- on Kenneth's case. If we could go to 13 PFP047840, and it's Volume I, Tab 14 of your materials, 14 Dr. Saukko. 15 COMMISSIONER STEPHEN GOUDGE: What would 16 be the number? 17 MR. JAMES LOCKYER: I'm -- I'm sorry, 18 actually what we're looking at here -- my mistake. 19 That's all right. 20 COMMISSIONER STEPHEN GOUDGE: What 21 document are you looking for? 22 23 CONTINUED BY MR. JAMES LOCKYER: 24 MR. JAMES LOCKYER: I'm not sure it is 25 going to be the overview report. Could you just produce

1 PFP047840? 2 3 (BRIEF PAUSE) 4 5 MR. JAMES LOCKYER: Could you give us the 6 next page? Yes, I'm sorry, my mistake. It's -- it's -- 7 this is a letter of November 9th of 1993. It's not the 8 overview report itself; from Dr. Huyer of the Sick 9 Children's Hospital to the officer in charge of the case, 10 Detective Carroll. 11 You're familiar with this -- this letter, 12 Dr. Saukko? 13 DR. PEKKA SAUKKO: I'm -- I've seen it 14 now. 15 MR. JAMES LOCKYER: And it's a -- a 16 summary by Dr. Huyer of the -- of Kenneth's attendances 17 at the Hospital for Sick Children in the -- during his 18 lifetime, is that right? 19 DR. PEKKA SAUKKO: That's correct. 20 MR. JAMES LOCKYER: And if we could go to 21 page 3 of this document, please. And you'll see at the 22 bottom of that page, sir, if I can read it out, but first 23 of all, we have a reference to a seizure at the bottom of 24 that page. 25 And if we go to the top of the next page,

1 page 4, you have at the top there: 2 "Over age five (5) to twelve (12) 3 months Kenneth, reportedly, had seven 4 (7) seizures all associated with a high 5 fever. Following this, he reportedly 6 had one (1) seizure while afebrile." 7 Meaning, afebrile? 8 DR. PEKKA SAUKKO: Without fever. 9 MR. JAMES LOCKYER: Okay. 10 "XXXX reported that Kenneth was 11 assessed at the Hospital for Sick 12 Children and prescribed..." 13 I'm sorry. 14 "The mother reported that Kenneth was 15 assessed at the Hospital for Sick 16 Children and prescribed Phenobarbital. 17 She said the doctor only prescribed a 18 bottle and told her to stop the 19 medication after this was finished. 20 The family moved to Oshawa and two (2) 21 days after completing the 22 Phenobarbital, Kenneth was seen by Dr. 23 Ort, a pediatrician, and he was 24 concerned about the medication being 25 stopped and prescribed Dila -- Dilantin

1 twice a day. The mother reported a 2 seizure in July. She described 3 variability in the movements during the 4 seizures; that the eyes generally 5 rolled back and body shook. 6 Occasionally, it looked like Kenneth 7 was making snow angels and 8 occasionally, it looked like he was 9 running. Following the seizures, he 10 looked very fatigued and then developed 11 a burst of energy." 12 And you were familiar with that history, 13 sir? 14 DR. PEKKA SAUKKO: Yeah, I've read it now 15 during my stay here in Toronto. 16 MR. JAMES LOCKYER: And after Kenneth was 17 taken to the Hospital for Sick Children after -- when he 18 died -- and this is in the day or two (2) before he died. 19 If we go to page 7 of Dr. Huyer's letter -- you'll see 20 when examined -- and I'm near the top of the page -- this 21 is after he's now in the hospital; he dies, as I recall, 22 October 12th of '93. 23 And it says: 24 "When examined early in the morning of 25 October 10th, '93, Kenneth was

1 unresponsive having frequent seizure 2 episodes. He was int -- intubated and 3 breathing by a ventilator, a cardiac 4 monitor, a pulse oximeter, an arterial 5 line in the left wrist, et cetera, were 6 in place." 7 Do you see that? 8 DR. PEKKA SAUKKO: Yes. 9 MR. JAMES LOCKYER: And -- and I think 10 that continued right up to his death in the hospital, is 11 that right, sir? 12 DR. PEKKA SAUKKO: That's correct. 13 MR. JAMES LOCKYER: Now, your concern, or 14 -- or a part of your opinion in this case, is that 15 Kenneth -- Kenneth's death could be attributable to his 16 preexisting condition of seizures. 17 Is that right? 18 DR. PEKKA SAUKKO: It's a possibility, 19 yes. 20 MR. JAMES LOCKYER: And when we talk 21 seizures, are we talking epileptic seizures in his case 22 or what? 23 DR. PEKKA SAUKKO: They have been 24 described as epil -- tonic-clonic seizures. 25 MR. JAMES LOCKYER: Tonic-cloric?

1 DR. PEKKA SAUKKO: Clonic. 2 MR. JAMES LOCKYER: Clonic seizure. And 3 that's another way of saying a form of epileptic seizure? 4 DR. PEKKA SAUKKO: Yes. 5 MR. JAMES LOCKYER: Okay. 6 COMMISSIONER STEPHEN GOUDGE: What causes 7 them? 8 DR. PEKKA SAUKKO: Most of the epileptic 9 seizures are idiopathic, so it's not -- the cause is not 10 known, but they can be post-trauma and there are -- there 11 is possibilities. 12 13 CONTINUED BY MR. JAMES LOCKYER: 14 MR. JAMES LOCKYER: And if we now go to 15 PFP144159, which is the overview report and go to 16 paragraph 285 of page 97 or the document. 17 DR. PEKKA SAUKKO: Tab...? 18 MR. JAMES LOCKYER: I'm sorry, Volume I, 19 Tab 13, sir. 20 COMMISSIONER STEPHEN GOUDGE: What was 21 the page again, Mr. Lockyer? 22 MR. JAMES LOCKYER: 97. Which should 23 give us paragraph 285. 24 COMMISSIONER STEPHEN GOUDGE: Right. 25

1 CONTINUED BY MR. JAMES LOCKYER: 2 MR. JAMES LOCKYER: You'll see -- and 3 it's -- it's -- it's a very short summary of -- of a 4 section of Dr. Smith's evidence, but you'll see at 285, 5 the -- the overview report says: 6 "Dr. Smith was asked whether Kenneth's 7 death could have been caused by a 8 seizure. He stated, 'I can't accept 9 that explanation unless you have other 10 evidence to support it. I don't 11 evidence of that at all.'" 12 Are you able to explain that answer of Dr. 13 Smith's, Dr. Saukko? 14 DR. PEKKA SAUKKO: Well, sudden death in 15 epilepsy is a very problematic diagnosis. We very often 16 see very little. There can be bite -- fresh bite marks 17 in the tongue, but -- and if somebody has observed the 18 seizure, it's, of course, easier. But some -- if a 19 person dies during the first seizure, which is also 20 possible, and nobody has witnessed it, it can be very 21 difficult to come to the correct diagnosis. 22 COMMISSIONER STEPHEN GOUDGE: What is the 23 physical process that causes death during a seizure or as 24 a result of a seizure? What would it be? 25 DR. PEKKA SAUKKO: Probably some

1 disturbance at the brain centre's breathing, that's my -- 2 what do you say? 3 DR. HELEN WHITWELL: You mean the cause 4 of the actual sudden death? 5 COMMISSIONER STEPHEN GOUDGE: Yes. 6 DR. HELEN WHITWELL: It's -- it -- it -- 7 well, it -- 8 COMMISSIONER STEPHEN GOUDGE: That is, 9 take as an assumption. I recognize this will always or 10 perhaps often be a debate about whether the seizure 11 actually has resulted in death, but how would it happen? 12 DR. HELEN WHITWELL: It's potentially -- 13 potentially one (1) of the mechanisms is thought to be a 14 sudden cardiac arrhythmia, possibly from, you know, -- 15 COMMISSIONER STEPHEN GOUDGE: From the 16 signals coming from the brain? 17 DR. HELEN WHITWELL: Yes, that's correct. 18 Yes. And associated with -- often with poor level of 19 anticonvulsants and in the adults, alcohol as well. So 20 there are predisposing -- 21 COMMISSIONER STEPHEN GOUDGE: Conditions? 22 DR. HELEN WHITWELL: -- factors. 23 COMMISSIONER STEPHEN GOUDGE: Yes. Thank 24 you. 25

1 CONTINUED BY MR. JAMES LOCKYER: 2 MR. JAMES LOCKYER: And -- and would that 3 reveal itself at autopsy? Would you be able to find -- 4 DR. PEKKA SAUKKO: No. 5 MR. JAMES LOCKYER: -- evidence of that 6 at autopsy? 7 DR. PEKKA SAUKKO: No, not usually. 8 MR. JAMES LOCKYER: You wouldn't? 9 DR. PEKKA SAUKKO: It depends, of course, 10 what's the cause of the epilepsy. It could be also a 11 brain tumour. 12 MR. JAMES LOCKYER: All right. But -- 13 okay, so in some cases you may actually see a cause of 14 death -- 15 DR. PEKKA SAUKKO: Yes. 16 MR. JAMES LOCKYER: -- but in other cases 17 you may not see a cause of death at all -- 18 DR. PEKKA SAUKKO: That's correct. 19 MR. JAMES LOCKYER: -- forensically? 20 DR. PEKKA SAUKKO: That's correct. 21 MR. JAMES LOCKYER: Now, in the case of 22 Kenneth, you've said that sudden death caused by epilepsy 23 is a -- a particularly significant problem for a forensic 24 pathologists because you can't necessarily find any 25 evidence of it --

1 DR. PEKKA SAUKKO: That's correct. 2 MR. JAMES LOCKYER: -- right? 3 Particularly, if the death has resulted from the first 4 seizure that the deceased has ever experienced -- 5 DR. PEKKA SAUKKO: That's correct. 6 MR. JAMES LOCKYER: -- is obviously an 7 even bigger problem. 8 But certainly in this case we do have 9 evidence of previous seizures for Kenneth, numerous 10 seizures in his short life? 11 DR. PEKKA SAUKKO: That's correct. 12 MR. JAMES LOCKYER: So if we go back to 13 paragraph 285 and look at what Dr. Smith said when he 14 rejected the possibility of a seizure having caused the 15 death: 16 "I can't accept that explanation unless 17 you have other evidence to support it. 18 I don't have evidence of that at all." 19 It -- it would seem to me from what you're 20 saying, Dr. Saukko, that Dr. Smith clearly doesn't 21 understand the problem that's -- that can result from an 22 epileptic sudden death. 23 MR. MARK SANDLER: Well, I'm not sure 24 it's a fair characterization of Dr. Smith's testimony, if 25 you read it as a whole, because I think...

1 (BRIEF PAUSE) 2 3 MR. MARK SANDLER: I'm not sure it's a 4 fair characterization of Dr. Smith's evidence as a whole, 5 because elsewhere, he's asked whether there's a 6 possibility of a seizure as opposed to whether he accepts 7 that explanation. 8 DR. PEKKA SAUKKO: That's correct. 9 MR. MARK SANDLER: I'm a little concerned 10 about that. 11 12 CONTINUED BY MR. JAMES LOCKYER: 13 MR. JAMES LOCKYER: All right. Well, 14 given that, I -- I think my point -- I'm less interested, 15 and "I can't accept the explanations unless you have 16 other evidence to support it", because the 17 misunderstanding that I'm suggesting there is that in a 18 case of a death resulting from a seizure, there may no -- 19 may be no other evidence to support it. Is that right? 20 DR. PEKKA SAUKKO: That's correct. 21 MR. JAMES LOCKYER: And in particular 22 though, in this case, you do, at least, have the other 23 evidence of the child having been a victim of seizures 24 several times in its life. 25 DR. PEKKA SAUKKO: That's correct.

1 MR. JAMES LOCKYER: I say its life; I 2 should say his life, of course. 3 In your report, sir, on this case, 4 PFP135439, your Volume I, Tab 11, if we could go to page 5 9 of Dr. Saukko's report, please. 6 You say at the bottom of the page, sir -- 7 the last four (4) lines: 8 "Therefore, as a rule..." 9 And this is in the context of your report 10 on Kenneth's case: 11 "Therefore, as a rule, the cause of 12 death cannot be reliably established 13 without a complete autopsy with 14 ancillary investigations such as 15 complete histological examination of 16 all major organs, microbiology, 17 virology, and full toxicological 18 investigation. Although this practice 19 is nowhere followed in full, one must 20 bear in mind that anything less than 21 that always decreases the level of 22 certainty." 23 I want to focus on -- perhaps, focussing 24 on all of those, sir. Insofar as those weren't done, or 25 weren't done completely, what of those three (3) or four

1 (4) things; the histological examination of the major 2 organs; microbiology; virology; and full toxicological 3 investigation -- which of those could conceivably assist 4 us in determining whether Kenneth could have died as a 5 result of a seizure? 6 DR. PEKKA SAUKKO: Well, the toxicol -- 7 toxicology would show whether the level of medication was 8 correct. 9 MR. JAMES LOCKYER: Yes. 10 DR. PEKKA SAUKKO: And if it's below the 11 therapeutic level, then it would make a seizure more 12 probable, but that's not always the case. One can have a 13 therapeutic level of the drug, and in spite of this, 14 still have a seizure, or have a low level of the drug 15 concentration in the blood, and does -- don't have a 16 seizure, so it's -- it's not -- doesn't give definitive 17 evidence. 18 And of course, whatever is left out in -- 19 in the course of death investigation, it increases the 20 uncertainty, but we -- we cannot tell anything until we 21 have the -- all the results; what's the sig -- what might 22 be the significance, or whether they have significance. 23 You cannot -- you can't know it in -- in advance. 24 MR. JAMES LOCKYER: From your knowledge 25 of the case, sir, could further investigation in the

1 various regards that you've listed there -- some further 2 investigation be done, especially in the context of 3 microbiology, virology, and -- and toxicology? 4 DR. PEKKA SAUKKO: I think it's 5 problematic. I don't know what material is left, and -- 6 MR. JAMES LOCKYER: But if there is 7 material left, potentially, there could be further 8 examination? 9 DR. PEKKA SAUKKO: Possibly. 10 MR. JAMES LOCKYER: Dr. Whitwell, I want 11 to ask you some questions about Kenneth's case, or bring 12 up an issue that arises out of Kenneth's case, and I -- I 13 direct the questions to you because you work within a -- 14 a jury layperson's system and I think it's fair to say, 15 Dr. Saukko, your legal system doesn't use a jury 16 layperson system, am I right? Of -- 17 DR. PEKKA SAUKKO: No. 18 MR. JAMES LOCKYER: -- adjudication? 19 If we could go to the overview report 20 again, in Kenneth's case, 144159, Volume I, Tab 13. And 21 go to page 69, paragraph 196. 22 Sorry, just got to find my page. You'll 23 see there at 196, the trial judge made a ruling on the 24 admissibility of the autopsy photographs, quote -- this 25 is the trial judge speaking:

1 "I find that all of the autopsy 2 photographs, including the ones of Dr. 3 Charles Smith which indicate petechiae 4 on the heart and lungs of Kenneth shall 5 be admitted, except for two (2). The 6 ones that are admitted has significant 7 probative effect insofar as the process 8 of death is concerned, and will assist 9 the jury in understanding the rather 10 complex nature of the anticipated 11 evidence of Dr. Smith, the pediatric 12 pathologist." 13 And that means, of course, that the jury 14 deciding -- of laypersons -- deciding the responsibility 15 of Kenneth's mother for her son's death and, indeed, 16 decided that she was -- she had murdered her son, had 17 before them a series of external and internal autopsy 18 photogr -- photographs taken at Kenneth's autopsy, which 19 of course, have been argued to be potentially highly 20 prejudicial for -- for jury members to see. 21 And I want to ask you how this is dealt 22 with in the UK courts. Are these kinds of photographs 23 shown, to your knowledge, usually in the UK courts these 24 days where juries are adjudicating cases? 25 DR. HELEN WHITWELL: It's usually left up

1 to the judge and the various counsel as to whether or not 2 the photographs are used, but there's been an increasing 3 tendency not to use photographs. 4 MR. JAMES LOCKYER: Because of that 5 prejudicial effect? 6 DR. HELEN WHITWELL: Well, I -- I'm not 7 certain "prejudicial" is the correct word. I mean, 8 autopsy photographs are not necessarily easy for juries 9 to look at. 10 MR. JAMES LOCKYER: Okay. 11 DR. HELEN WHITWELL: Whether or not 12 they're prejudicial, I think is a different matter. But 13 now, with computers and computer graphics, there's an 14 increasing tendency to use computer generated pictures to 15 depict external injuries, for example, or the track of a 16 -- a knife through the body. 17 MR. JAMES LOCKYER: Mm-hm. 18 COMMISSIONER STEPHEN GOUDGE: Are these 19 actual photographs that are generated on the computer, or 20 are -- 21 DR. HELEN WHITWELL: No, what -- 22 COMMISSIONER STEPHEN GOUDGE: -- they 23 diagrammatic? 24 DR. HELEN WHITWELL: They're 25 diagrammatic, but they're taken from the photographs. So

1 whoever does them, they -- what they do, they look at the 2 post-mortem photographs and then put them onto diagrams 3 to correspond to the injuries. 4 COMMISSIONER STEPHEN GOUDGE: And is that 5 done because the diagrams can demonstrate things that the 6 photos don't, or is it done to reduce the impact on the - 7 - the potential impact on the jury of the actual photos? 8 DR. HELEN WHITWELL: It's certainly done 9 to reduce the impact on the jury. The other thing that 10 one can do is to -- with again, the use of computers, you 11 can actually move the picture on the screen. 12 For example, looking at a -- a knife wound 13 or a bullet track. And so you can actually rotate the -- 14 the -- the body diagrams, if you like, and do it in a 15 three (3) dimensional way. 16 COMMISSIONER STEPHEN GOUDGE: Okay. 17 18 CONTINUED BY MR. JAMES LOCKYER: 19 MR. JAMES LOCKYER: One (1) of the cases 20 that has achieved some notoriety in -- in our country, 21 came out of Newfoundland. A case of a man called Ronald 22 Dalton, who was convicted of murdering his wife, and 23 subsequently, that conviction was determined to be a -- a 24 wrongful conviction. And, in fact, just a matter of 25 weeks ago, he was compensated by the Newfoundland

1 Government because he spent eight (8) years in jail for a 2 crime he didn't commit. 3 And I wanted to take you, just in this 4 regard, to the judgment of the Newfoundland Court of 5 Appeal in this case. It's at PFP302087, and it's in your 6 Additional Documents, Volume II, Tab 37. And at page -- 7 this judgment was handed down in 1998 and Mr. Justice 8 Marshall wrote the judgment and indeed subsequently gave 9 evidence about this judgment, at what we know as the 10 James Driscoll Inquiry. 11 And at page 34 of this judgment, he 12 addressed this issue in the context of -- of the facts of 13 that case. Mr. Dalton -- I'm not sure if I said -- was 14 convicted of -- of murdering his wife. And paragraph 130 15 -- hmm, sorry, you have different page numbers from me 16 for some reason. Paragraph 130? 17 DR. HELEN WHITWELL: Yes. 18 19 (BRIEF PAUSE) 20 21 MR. JAMES LOCKYER: Okay. Mr. Justice 22 Marshall said: 23 "It must be appreciated that the jury 24 already had available to it the first 25 booklet containing eighteen (18)

1 pictures of the deceased taken by the 2 police before the autopsy, as well, as 3 the diagrams appended to the autopsy 4 report showing the location of the 5 injuries to her body and internal 6 throat organs. Moreover, it's 7 important to underscore no question had 8 been raised as to the conduct of the 9 autopsy itself. To the contrary, it 10 was acknowledged that Dr. Hutton had 11 competently preformed that task." 12 He being the pathologist who had done the 13 autopsy or the medical examiner. 14 "It was his interpretation of the 15 findings, which are questioned by the 16 other three (3) pathologists. In some 17 circumstances it would appear that real 18 concerns present themselves here as to 19 the relevance of the autopsy pictures, 20 in terms of the probative value, given 21 they're acknowledged inflammatory and 22 prejudicial effect, in circumstances 23 where the utility was so problematic as 24 a result of the availability of other 25 photographs and of the diagrams that

1 had already been provided to the jury. 2 It's recognized this concern over the 3 admission of the autopsy photographs 4 was not made an issue in this appeal. 5 However, in view of its eventual 6 outcome and since the relevancy of 7 these pictures is raised indirectly 8 through Dr. Markesteyn's questioning 9 the limits of the use of jury aids, it 10 has been essential to embark upon this 11 foregoing slight digression from the 12 discussion detailing the new views 13 expressed in the fresh forensic 14 opinions." 15 And certainly there a justice of the 16 Newfoundland Court of Appeal is expressing concern about 17 the -- what, in fact, is -- what he's -- calls the 18 acknowledged inflammatory and prejudicial effect in the 19 photographs that the jury saw at the trial. 20 And I think it might be fair to say that 21 if the photographs are of an infant, as of course they 22 were in the case of Kenneth, as opposed to an adult 23 woman, as they were in the case of Mr. Dalton's wife, 24 that that inflammatory and prejudicial effect could -- 25 might be considered even greater.

1 Has this been consid -- considered at a -- 2 at a systemic level in the UK and might it; the used of 3 these kinds of photographs and seeking ways to avoid 4 using them? 5 DR. HELEN WHITWELL: I don't think it's 6 being considered in a systemic way. I mean, my 7 experience of the courts, it seems to be done on a trial 8 by trial basis and what the judge and either the defence 9 and the prosecution barristers think is appropriate or 10 not appropriate. 11 MR. JAMES LOCKYER: Paragraph 33 of the 12 same judgment -- and I -- I won't give you a page number 13 because obviously my page numbers don't work -- another 14 comment is made by Justice Marshall in the Dalton case 15 and it's somewhat reflective of some of the issues we've 16 discussed during this inquiry. Paragraph 33, Justice 17 Marshall said: 18 "It's noteworthy that the foregoing 19 conclusion conforms with the assumption 20 with -- with which Dr. Hutton appears 21 to have approached his investigation 22 into the cause of death. It's clear 23 from his testimony the bruising on this 24 thirty-one (31) year old woman's body, 25 who had no medical history of any

1 serious natural disease, filled his 2 suspicious at the outset that Ms. 3 Dalton had met her death by foul play. 4 A reading of his evidence gives the 5 distinct impression that this 6 assumption was operative throughout his 7 investigation. 8 For example, Dr. Hutton made repeated 9 references to the term 'assailant' in 10 discussing the injuries observed on the 11 body. Moreover, in the course of his 12 cross-examination, on being questioned 13 on his suggestion that certain bruises 14 and abrasions could have been assailant 15 marks, he openly conceded that he made 16 the assumption that there'd been an 17 assailant at the start of the procedure 18 and approached the autopsy on the basis 19 that a homicide had occurred, whilst 20 explaining, 'I do that for everyone. 21 That's just my nature, and it's the 22 nature of forensic pathologists.' 23 It's evident, therefore, that Dr. 24 Hutton approached the inquiry into the 25 death of Mrs. Dalton assuming she had

1 been murdered, and his conclusion that 2 she had died as a result of an assault, 3 and then a manual strangulation with a 4 right hand was consistent with that 5 premise." 6 And indeed, I think I can tell that in -- 7 in his evidence at the Dalton case, Dr. Hutton actually 8 used the words, that he thought a pathologist should, 9 quote, "think dirty", which is an expression we've heard 10 in the course of this Inquiry coming from elsewhere as 11 well. 12 And I just wanted to ask both of you, Dr. 13 Saukko and -- and Dr. Whitwell, as to whether you agree 14 with Mr. Justice Marshall's sentiments as to the way Dr. 15 Hutton apparently approached his task as a pathologist? 16 DR. PEKKA SAUKKO: I don't agree. I 17 don't -- 18 MR. JAMES LOCKYER: Sorry. You don't 19 agree with Justice Marshall, or you don't agree -- 20 DR. PEKKA SAUKKO: No. I don't agree 21 with the way that forensic pathologist has to -- 22 necessary to think dirty. 23 MR. JAMES LOCKYER: Mm-hm. And do you 24 have the same view? 25 DR. HELEN WHITWELL: Yes, I do.

1 Essentially one starts from a position of -- of making an 2 objective assessment of the -- the findings. 3 MR. JAMES LOCKYER: Now, in -- in the UK, 4 Dr. Whitwell, I'm aware now of -- of four (4) 5 professionals in the field in which we're talking in this 6 Inquiry having got into trouble with the authorities, in 7 one way or another. 8 We've all ready heard during the inquiry 9 about Professor Meadows. And you're aware of his 10 circumstances? 11 DR. HELEN WHITWELL: Correct. 12 MR. JAMES LOCKYER: We've also all ready 13 heard of Dr. Heath. And you're aware of his 14 circumstances? 15 DR. HELEN WHITWELL: Correct. 16 MR. JAMES LOCKYER: I think we've heard 17 something about Dr. Williams in this Inquiry. Could you 18 just tell us a little bit about Dr. Williams. 19 DR. HELEN WHITWELL: Dr. Williams was the 20 home office forensic pathologist who performed the post- 21 mortem examinations on the Clark babies, in the case of 22 Sally Clark. 23 MR. JAMES LOCKYER: And Dr. Williams has 24 come in for -- I'm not quite sure -- is it disciplinary 25 proceedings? Is it -- because of his views in that case?

1 DR. HELEN WHITWELL: That's correct. 2 And -- 3 MR. JAMES LOCKYER: And because of the 4 way -- sorry. 5 DR. HELEN WHITWELL: -- the General 6 Medical Council. 7 MR. JAMES LOCKYER: Okay. And I 8 understand just last week there was yet another person, a 9 Dr. Southall, is that right? 10 DR. HELEN WHITWELL: Yes, that's correct. 11 MR. JAMES LOCKYER: And just last week, 12 Dr. Southall was disciplined? 13 DR. HELEN WHITWELL: Yes. I'm -- he -- 14 he was in front of the General Medical Council. I'm 15 sorry, I can't remember exactly what's happened to him. 16 MR. JAMES LOCKYER: Okay. And Dr. 17 Southall is what? Or was what? I think "was" is the 18 right word. 19 DR. HELEN WHITWELL: A pediatrician. 20 MR. JAMES LOCKYER: A pediatrician? 21 DR. HELEN WHITWELL: Correct. 22 MR. JAMES LOCKYER: Clinical 23 pediatrician? 24 DR. HELEN WHITWELL: Correct. 25 MR. JAMES LOCKYER: And which of the

1 better known cases was he involved in? 2 DR. HELEN WHITWELL: He was involved, 3 peripherally, in the Sally Clark case. 4 MR. JAMES LOCKYER: Yes. 5 DR. HELEN WHITWELL: I -- I really -- I'm 6 -- I'm uncertain as to which other cases he's been 7 directly involved with. 8 MR. JAMES LOCKYER: And -- and are you 9 aware of what it is that caused him to come before the 10 Medical Council? 11 DR. HELEN WHITWELL: My understanding, 12 it's -- was complaints about handling cases. I -- I 13 can't really be any more specific, I'm afraid. I haven't 14 actually gone through the -- 15 MR. JAMES LOCKYER: All right. And they 16 were child death cases, is that right? 17 DR. HELEN WHITWELL: No. I'm not -- I'm 18 not certain if they were all death -- if they were 19 deaths. I -- I really -- 20 MR. JAMES LOCKYER: Okay. 21 DR. HELEN WHITWELL: -- I'm sorry, I 22 haven't actually gone -- looked in detail at his case. 23 MR. JAMES LOCKYER: Would I be right in 24 saying -- if -- if I can coin a phrase that all four (4) 25 of these individuals ultimately were what you might call

1 providing prosecutorial-type opinions? 2 DR. HELEN WHITWELL: I don't think I can 3 comment on that, I'm afraid. 4 MR. JAMES LOCKYER: Okay. And in the -- 5 in the case of -- of these individuals, had they 6 attained, some or all of them, a -- a sort of a -- to 7 some degree, an icon status within their professions? 8 DR. HELEN WHITWELL: Well, again that's a 9 difficult question to answer, and certainly Professor 10 Southall and Professor Meadow were well known. 11 MR. JAMES LOCKYER: Mm-hm. And 12 frequently resorted to for opinions? 13 DR. HELEN WHITWELL: That's my 14 understanding. Again, I don't know how many opinions or 15 what. 16 MR. JAMES LOCKYER: All right. Dr. 17 Saukko, if I can just come back to you on a matter raised 18 with you yesterday on -- on Kenneth, before I leave his 19 case. I understood Mr. Ortved to suggest to you 20 yesterday that Dr. Smith's diagnosis of asphyxia in 21 Kenneth's case was a diagnosis -- I think I'm quoting him 22 right: 23 "Based on circumstantial evidence 24 without identifying it as such." 25 Do you remember that being put to you as a

1 proposition? 2 DR. PEKKA SAUKKO: I -- I don't remember 3 the exact wording, no. 4 MR. JAMES LOCKYER: All right. But 5 something like that being put to you as a proposition? 6 That somehow Dr. Smith -- his diagnosis of asphyxia was 7 based on evidence outside the autopsy, and was based on 8 other circumstantial evidence? 9 Do you remember that suggestion being put 10 to you yesterday? 11 DR. PEKKA SAUKKO: I'm not sure whether 12 Dr. Smith understood in that way, but in my 13 understanding, in the absence of positive pathological 14 findings, you -- you can not give a diagnosis like -- 15 like that. 16 MR. JAMES LOCKYER: Certainly, in his -- 17 would I be right in saying in his autopsy report, he 18 makes no reference to outside circumstances -- 19 circumstances outside the autopsy as having any impact or 20 influence on his opinion as to cause of death, is that 21 right? 22 DR. PEKKA SAUKKO: That's correct. 23 MR. JAMES LOCKYER: And as I understood 24 you yesterday, you don't see it as the role of the 25 forensic pathologist to go outside the autopsy and take

1 into account other evidence provided to the pathologist, 2 which may, in some way, affect the cause of death to be 3 assigned to a case? 4 DR. PEKKA SAUKKO: Well, the forensic 5 pathologist has to consider all the information, but if 6 there is not pathology -- 7 MR. JAMES LOCKYER: Right. 8 DR. PEKKA SAUKKO: -- you can not 9 diagnosis a death without any findings -- physical 10 findings. 11 MR. JAMES LOCKYER: And that's because 12 really, you're crossing into the role of a trier of fact 13 if you start looking at other issues outside what you see 14 as the forensic pathologist at the autopsy? 15 DR. PEKKA SAUKKO: Yes, we -- we, of 16 course, have -- have to deal with the circumstance -- 17 circumstantial evidence when we say or comment on the 18 manner of death, in Finland, but not when you can't give 19 a cause of death without pathology based on 20 circumstantial evidence only. 21 MR. JAMES LOCKYER: Dr. Whitwell, to 22 question you about Kassandra's case just for a minute. 23 You told us yesterday that Kassandra's case, in your 24 opinion, on its pathology, at least, was a case that 25 likely would not get into a criminal court in England

1 anymore, is that right? 2 DR. HELEN WHITWELL: Yes, that's what I 3 said. 4 MR. JAMES LOCKYER: And you say that 5 because of the potential for an underlying disease to 6 have been the neuropathological cause of death in this 7 case? 8 DR. HELEN WHITWELL: Yes, but -- but I 9 should point -- that's my opinion. Whether or not it 10 would get into a criminal court in the UK, I -- I can't 11 say on other issues, but that would be my opinion on 12 knowing the case. 13 MR. JAMES LOCKYER: And I think Dr. 14 Pollanen made a similar point. If we go to his January 15 8th, 2007 memorandum, PFP032588, and look at paragraph 70 16 -- oh sorry, it's Additional Documents Volume I, Tab 19, 17 and at paragraph 70. 18 DR. HELEN WHITWELL: Sorry. 19 COMMISSIONER STEPHEN GOUDGE: Have you 20 got a -- 21 MR. JAMES LOCKYER: Page 14, I'm sorry. 22 DR. HELEN WHITWELL: Sorry, which -- 23 where are we? 24 MR. JAMES LOCKYER: Additional documents 25 Volume I, Tab 19.

1 DR. HELEN WHITWELL: Yeah, okay. Okay. 2 3 CONTINUED BY MR. JAMES LOCKYER: 4 MR. JAMES LOCKYER: And Dr. Pollanen's 5 written here, in paragraphs 70/71: 6 "There's evidence to suggest that 7 Kassandra may have died from status 8 epilepticus caused by a natural 9 disease, and that her death was not 10 related to acute head injury. A second 11 opinion review of this case is required 12 to determine if this death is unnatural 13 or natural." 14 And do you agree with that? 15 DR. HELEN WHITWELL: Yes. 16 MR. JAMES LOCKYER: And a second opinion 17 review of this case, in a sense, I suppose, could be said 18 that you've provided a second opinion -- 19 DR. HELEN WHITWELL: Correct. 20 MR. JAMES LOCKYER: -- of this case from 21 a pathological point of view? 22 DR. HELEN WHITWELL: Yes. 23 MR. JAMES LOCKYER: And a second opinion 24 review of the case, taking into account pathology and any 25 other evidence that may or not exist, would presumably,

1 at least the way things stand these days, be the role of 2 a Court, rather than you. 3 DR. HELEN WHITWELL: That's correct. 4 MR. JAMES LOCKYER: Taking into account 5 the new pathology opinions. 6 DR. HELEN WHITWELL: Yes. 7 MR. JAMES LOCKYER: Okay. 8 COMMISSIONER STEPHEN GOUDGE: You've got 9 five (5) minutes, Mr. Lockyer. 10 MR. JAMES LOCKYER: I'm actually down to 11 11:15 on the document I got yesterday, Mr. Commissioner, 12 and was working off that. 13 COMMISSIONER STEPHEN GOUDGE: I think 14 you're misreading the document; you have an hour and a 15 half. 16 MR. JAMES LOCKYER: It said 9:30 to 17 11:15, the document I have. 18 COMMISSIONER STEPHEN GOUDGE: That's the 19 time that includes both you and fifteen (15) minutes for 20 your successor, Ms. Kirkpatrick. 21 MR. MARK SANDLER: 11:00. 22 MR. JAMES LOCKYER: Okay, I didn't -- 23 okay, then, my misunderstanding. All right, then I -- 24 I'll -- I'm on the last case, anyway, sir. I'm pretty 25 well there.

1 COMMISSIONER STEPHEN GOUDGE: And the 2 last few questions. 3 4 CONTINUED BY MR. JAMES LOCKYER: 5 MR. JAMES LOCKYER: Indeed. So, to look 6 at the -- the case of Dustin, Dr. Whitwell, the -- the 7 last case that I wanted to -- to refer to. And I just 8 wanted to refer you to one (1) issue, and that is this 9 issue of -- of whether or not, and -- and in particular, 10 the -- as reported by Dr. Padfield, the issue of not -- 11 or not of whether there was any real shaking in this 12 case. 13 If we could go to the overview report; 14 that is on the Evidence Outside Pathology, PFP142940, 15 Volume IV, Tab 28, of your materials. 16 DR. HELEN WHITWELL: Yes, I've got that. 17 MR. JAMES LOCKYER: And if you first look 18 at page 8, paragraph 17 -- 19 DR. HELEN WHITWELL: Page 8, paragraph 20 17. 21 MR. JAMES LOCKYER: Yes. And I've 22 already read this to you, you'll -- you'll see again 23 where Mr. Maracle, the friend of Dustin's father, talks 24 about how he shook him by the snowsuit: 25 "That's what I saw; not by two (2)

1 hands, or shoulder, or tummy, but by 2 the snowsuit. He shook him while the 3 baby was cradled in his arms." 4 Do you see that? 5 DR. HELEN WHITWELL: Yes, I do. 6 MR. JAMES LOCKYER: And if we then move 7 to page 18 and look at paragraph 45 -- you'll see right 8 in the last three (3) lines of paragraph 45 so 9 immediately before paragraph 46 -- you'll see here and 10 what we're reading here is Dr. Padfield obtained this 11 history from Dustin's father and mother but obviously 12 this part from Dustin's father. 13 Dr. Padfield recorded Dustin's father as 14 telling him: 15 "He tried to revive the baby by shaking 16 him. He took him into a nearby 17 restaurant and the ambulance was 18 called." 19 Do you see that? 20 DR. HELEN WHITWELL: Yes, I do. 21 MR. JAMES LOCKYER: And then -- and 22 there's been reference to paragraph 95, which is at page 23 36 of the document, and this is Dr. Padfield. The 24 previous paragraph was written by Dr. Padfield, November 25 17th of 1992, which is on the -- the day of -- of Dustin

1 coming into the hospital and the day of his death. 2 DR. HELEN WHITWELL: Right. 3 MR. JAMES LOCKYER: Dr. Padfield then 4 made a further written record but -- several months 5 later, on February the 8th, 1993 -- where -- and you'll 6 see he's -- suddenly the shaking has changed in its 7 nature, according to his record he's written right at the 8 end of 95: 9 "Richard began to shake Dustin quite 10 severely when he found him not 11 breathing and immediately took him into 12 the restaurant where a lady attempted 13 some mouth-to-mouth resuscitation. The 14 ambulance was called immediately." 15 And -- and I can tell you, I haven't been 16 able to find how Dr. Padfield's come to rewrite the 17 description that's been given to him by Dustin's father 18 of what he did when he realized that his baby was in 19 extremis in the -- in the pram. 20 And then Dr. Nag, of course, in her 21 report, you'll recall, and I'm not going to take you to 22 it, just for time reasons -- recor -- recorded the cause 23 of death as being pneu -- pneum -- broncho -- I can't do 24 it -- bronchopneumonia, I think -- 25 DR. HELEN WHITWELL: Yes.

1 MR. JAMES LOCKYER: -- with -- with 2 aspiration -- 3 DR. HELEN WHITWELL: Mm-hm. 4 MR. JAMES LOCKYER: -- as the first 5 cause, and the second cause being a subdural hemorrhage 6 -- 7 DR. HELEN WHITWELL: Yes. 8 MR. JAMES LOCKYER: -- remember that? 9 DR. HELEN WHITWELL: Yes, I do. 10 MR. JAMES LOCKYER: And the issue in 11 Dustin's case then is whether the former finding, in some 12 way, caused the latter finding pathologically, -- 13 DR. HELEN WHITWELL: That's correct. 14 MR. JAMES LOCKYER: -- is that right? 15 All right. Thank you. Those are my questions. 16 COMMISSIONER STEPHEN GOUDGE: Thanks, Mr. 17 Lockyer. Ms. Kirkpatrick...? 18 19 CROSS-EXAMINATION BY MS. JULIE KIRKPATRICK: 20 MS. JULIE KIRKPATRICK: Thank you, 21 Commissioner. Good morning, Drs. Whitwell, Dr. Saukko. 22 My name is Julie Kirkpatrick, and I'm one (1) of the 23 lawyers appearing on behalf of the Affected Families 24 Group. The children of those families being Jenna, 25 Sharon, Nicholas, Athena, and Tyrell.

1 Now, I appreciate that neither of you have 2 been responsible for reviewing those particular cases. 3 They're among the later cases that begin in 1997 and 4 following. And so my questions for you this morning will 5 be quite broad and thematically based, systemically 6 focussed. 7 I also appreciate the fact that you have 8 two (2) large binders of additional documents, some of 9 which are before you at my request. And I've -- I've 10 advised Commission counsel, and I've advised you, my 11 intention is not to get bogged down in the details of 12 those documents. 13 They're simply there if we need to refer 14 to them for the purposes of illustration and 15 clarification, fair enough? 16 DR. HELEN WHITWELL: Yes. 17 MS. JULIE KIRKPATRICK: Keeping this in 18 mind, I note that the majority of the cases which you 19 have each reviewed are what I would call the early cases. 20 They begin with the Amber case in 1988, move through the 21 Kassandra case, 1991, Gaurov, Dustin, and Delaney in 22 1992, and the Kenneth case in 1993. 23 There's the Taylor case, which is somewhat 24 later in 1996, and although it's an important case as 25 well, I will not be referring to that case in my

1 cross-examination. So, Dr. Whitwell, I'm going to first 2 -- address my first questions to you. 3 You have reviewed four (4) out of five (5) 4 of these early cases; Amber, Kassandra, Gaurov, and 5 Dustin, correct? 6 DR. HELEN WHITWELL: Yes. 7 MS. JULIE KIRKPATRICK: And to put it in 8 context chronologically, the Amber case predated the 9 creation of the Ontario Pediatric Forensic Pathology Unit 10 at the Hospital for Sick Children in 1991, correct? 11 DR. HELEN WHITWELL: I don't -- 12 MS. JULIE KIRKPATRICK: That's -- that's 13 my understanding. 14 DR. HELEN WHITWELL: If you're telling 15 me, yes. 16 MS. JULIE KIRKPATRICK: I can tell you 17 that's the evidence that's been before the Commission. 18 And you've given evidence over the last two (2) days 19 about a number of the issues and the debates in the 20 scientific literature. I want to go back to one (1) 21 specific issue that you raised in your evidence on 22 Wednesday. 23 You were asked by the Commissioner about 24 Shaken Baby Syndrome, and you stated in your evidence 25 that:

1 "By the late '80s and '90s, forensic 2 pathologists and neuropathologists were 3 realizing that in the vast majority of 4 cases there is evidence of blunt 5 impact, but that looking back at that 6 time, pediatricians would have perhaps 7 examined a child, not find evidence of 8 impact, and will then say there is no 9 evidence of impact, therefore, it's 10 shaking. 11 That's a -- a quote from your evidence. 12 Do you recall saying that, something to that effect? 13 DR. HELEN WHITWELL: If you say I said 14 it, I said it. 15 MS. JULIE KIRKPATRICK: All right, fair 16 enough. 17 DR. HELEN WHITWELL: And I do recall 18 saying it. 19 COMMISSIONER STEPHEN GOUDGE: Do you 20 agree with it? 21 DR. HELEN WHITWELL: Yes, I -- no, I -- I 22 do. I agree with it. Sometimes it's difficult to 23 remember what I did ten (10) minutes ago -- 24 MS. JULIE KIRKPATRICK: I -- I appreciate 25 that.

1 DR. HELEN WHITWELL: -- days ago. 2 MS. JULIE KIRKPATRICK: As a point of 3 clarification, am I correct in saying that when you say 4 the late '80s and '90s what you're referring to is, in 5 fact, the late '80s and early '90s, is that fair? 6 DR. HELEN WHITWELL: You know, I -- late 7 '80s/'90s. No, I mean, it may not have been. No, I 8 think probably the '90s, actually. 9 MS. JULIE KIRKPATRICK: Okay. You went 10 on to say the following: 11 "That you think pathologists were more 12 attuned to the issue of impact causing 13 a significant number of injuries, 14 whatever the type of impact might have 15 been." 16 DR. HELEN WHITWELL: That's correct, yes. 17 MS. JULIE KIRKPATRICK: And in making 18 that statement, Dr. Whitwell, am I right that you're 19 including low level falls -- short falls -- in the issue 20 of -- the characterization of type of impact? 21 DR. HELEN WHITWELL: Well, I mean, each 22 case is looked at on its own facts as to what the actual 23 cause. 24 I was referring then to the fact that 25 forensic pathologists were more attuned to the fact that

1 impact was involved in a significant number of cases. 2 MS. JULIE KIRKPATRICK: Okay. And can 3 you give us some understanding of why that was? Why 4 would you expect a forensic pathologist to be more attune 5 to that issue than clin -- clinicians? 6 DR. HELEN WHITWELL: Because it's -- was 7 recognized that a post-mortem examination -- there may be 8 no signs of injury externally for the clinicians to 9 identify. 10 But when you look at the deep tissues of 11 the scalp, quite often you found bruising which was not 12 seen externally. And there's a number of series that, 13 you know, comment on that. 14 MS. JULIE KIRKPATRICK: Okay. So if I 15 understand your evidence, and the scientific literature, 16 it's not a situation at the time of the Amber case in 17 1988 where everyone was convinced that no child would 18 ever die from a household fall -- fall? 19 That was not the state of affairs that -- 20 at that point? 21 DR. HELEN WHITWELL: No, but in -- in 22 fairness, it was recognized that -- you know, I think 23 it's almost too general a statement, and what 24 pathologists do is to look at each case on its own 25 merits.

1 MS. JULIE KIRKPATRICK: Yes. 2 DR. HELEN WHITWELL: You know, and the 3 problem with the literature is a) the inclusion of cases 4 and are they correctly included and what's the cri -- 5 inclusion criteria, and then these are all individual 6 cases, so that's what each case has to be look -- you 7 know, examined on. 8 MS. JULIE KIRKPATRICK: Okay. Which 9 leads me to my next series of questions. Mr. Registrar, 10 if you could please pull up the Amber overview report, 11 which is PFP143724, and I understand that it's at Tab 7, 12 Volume I of the Commission documents; and Mr. Registrar, 13 I'm looking for page 80. 14 Now at the bottom at paragraph 216 -- do 15 you see that on the screen? 16 I'm going to draw your attention to 17 Justice Dunn's comments, as it does appear that Justice 18 Dunn was very alive to the debate, and what he says at 19 paragraph 16 is: 20 "In my analysis of the defence 21 witnesses, I do not agree with all of 22 their theories. Indeed, they do not 23 always agree with each other, but they 24 have all said one (1) thing. In their 25 experience and their appreciation of

1 the current medical literature; in some 2 cases, their experimentation and 3 contraindication -- contraindication to 4 the doctors at the Hospital for Sick 5 Children, subdural hematomas and 6 cerebral edema in infants are a very 7 real possibility." 8 And you have stated in your evidence that 9 that is -- you would agree with that statement, correct? 10 DR. HELEN WHITWELL: Yes. 11 MS. JULIE KIRKPATRICK: Now, I -- I just 12 want to stop there for a moment. I -- I note that, in 13 the Amber case, there was also some discussion of 14 subgaleal bruising. Do you recall that? 15 DR. HELEN WHITWELL: What do you mean? 16 In terms of testimony, or -- 17 MS. JULIE KIRKPATRICK: Well, perhaps if 18 we go to -- I think if we go to page 190, there'll be a - 19 - a reference to the testimony of defence experts in that 20 case. 21 COMMISSIONER STEVEN GOUDGE: Page or 22 paragraph? 23 MS. JULIE KIRKPATRICK: Or paragraph. 24 DR. HELEN WHITWELL: Paragraph. 25 MS. JULIE KIRKPATRICK: Paragraph 190.

1 I'm sorry. 2 3 (BRIEF PAUSE) 4 5 DR. HELEN WHITWELL: Could you just 6 remind me which tab I'm -- I'm on here, because I -- 7 8 CONTINUED BY MS. JULIE KIRKPATRICK: 9 MS. JULIE KIRKPATRICK: Oh, I'm sorry. 10 We are -- 11 DR. HELEN WHITWELL: -- it's actually 12 easier for me to do it from the file. 13 MS. JULIE KIRKPATRICK: Is it? Okay. 14 It's Tab 7 -- 15 DR. HELEN WHITWELL: Yeah, okay. Thanks. 16 MS. JULIE KIRKPATRICK: -- of Volume I of 17 the Commission's documents -- 18 DR. HELEN WHITWELL: And which paragraph? 19 MS. JULIE KIRKPATRICK: -- and it would 20 be page 68 in your Volume -- 21 DR. HELEN WHITWELL: Okay. 22 MS. JULIE KIRKPATRICK: -- and it's 23 paragraph 190. This is one (1) brief example of -- of 24 the issue. 25 It refers to Dr. Ferguson's evidence in

1 that case, and the fact that Dr. Ferguson noted a subg -- 2 subgaleal bruise in the autopsy photographs, correct? 3 DR. HELEN WHITWELL: That's what it says, 4 yes. 5 MS. JULIE KIRKPATRICK: Yeah. And does 6 that go back to the issue that we were just talking 7 about? That -- where pathologists may be more attune to 8 the issue of blunt impact. Is this -- is this a -- a 9 example of that? 10 DR. HELEN WHITWELL: Well, the 11 pathologist has the opportunity to examine both the 12 external and internal, so you know, I'm not quite -- I 13 can't remember who Dr. Ferguson was, actually. 14 MS. JULIE KIRKPATRICK: He was one (1) - 15 - I can tell you he was one (1) of the defence experts in 16 that case. 17 DR. HELEN WHITWELL: Right. Okay. So -- 18 you know, they are in the best position to find those 19 deep bruises. 20 MS. JULIE KIRKPATRICK: And this is 21 something that would be indic -- indicative of impact. 22 DR. HELEN WHITWELL: It would, yes. 23 MS. JULIE KIRKPATRICK: Okay. 24 DR. HELEN WHITWELL: A bruise -- 25 COMMISSIONER STEPHEN GOUDGE: Can you

1 just remind us what a subgaleal bruise is? 2 DR. HELEN WHITWELL: It's -- it's 3 bruising of the tissues beneath the skin, of the scalp. 4 COMMISSIONER STEPHEN GOUDGE: And what 5 would be apparent, if anything, on the surface of the 6 skin? 7 DR. HELEN WHITWELL: Well, that -- I 8 mean, in -- in this case, there was a bruise apparent 9 with deep bruising, but many cases of head injury you 10 don't see anything on the outside, and it's only when you 11 reflect that -- that the scalp, to look beneath, that you 12 find bruising. 13 COMMISSIONER STEPHEN GOUDGE: How does 14 that happen? Why don't you see something on the surface 15 of the skin if there's a deep bruising in the tissue 16 under the skin? 17 DR. HELEN WHITWELL: It's -- it usually 18 happens where you've got a broad area of impact, so 19 there's nothing patterned. 20 COMMISSIONER STEPHEN GOUDGE: So the 21 energy is distributed over a broad area -- 22 DR. HELEN WHITWELL: It is. 23 COMMISSIONER STEPHEN GOUDGE: -- of the 24 surface, but enough -- 25 DR. HELEN WHITWELL: It is, yeah.

1 COMMISSIONER STEPHEN GOUDGE: -- to 2 damage the tissue deep under the surface? 3 DR. HELEN WHITWELL: Yes, that's correct. 4 I mean if -- if you were hit with a hammer, for example, 5 or an object, then you're far more likely to get an 6 impression on the outside, but if you've got a broad 7 surface, then you often tend to -- to see it deep. 8 The other issue is, is that hair, to some 9 extent, also protects against bruising. 10 COMMISSIONER STEPHEN GOUDGE: Why doesn't 11 it protect against the deep bruising? 12 DR. HELEN WHITWELL: It protects against 13 the surface bruise, but the im -- 14 COMMISSIONER STEPHEN GOUDGE: But why 15 doesn't it protect -- 16 DR. HELEN WHITWELL: No, that's -- the 17 impact is still -- is still there, so -- it's common in 18 head injuries not to see external -- when I say "common", 19 it's well recognized that you may see simply deep 20 bruising. 21 COMMISSIONER STEPHEN GOUDGE: Okay, thank 22 you. Sorry, Ms. Kirkpatrick. 23 24 CONTINUED BY MS. JULIE KIRKPATRICK: 25 MS. JULIE KIRKPATRICK: That's Fine. Dr.

1 Whitwell, I -- I just want to fast forward for a moment 2 to the Tyrell case, and I appreciate that you haven't 3 reviewed -- 4 DR. HELEN WHITWELL: I haven't, no. 5 MS. JULIE KIRKPATRICK: -- that case. I 6 appreciate that, but we've heard some evidence from -- 7 from Dr. Crane during the second week of the Inquiry -- 8 and this is a head injury case and Tyrell died in 1999, 9 so it's of the later cases. 10 And I can tell you that we've heard at the 11 Inquiry, the -- the withdrawal of the charges against his 12 caregiver was one (1) of the precipitating events that 13 led to Dr. Smith ceasing to do medicolegal autopsies. 14 If, Mr. Registrar, we could pull up the 15 Tyrell overview report, it's PFP144019, and if we could 16 go to page 80? And can you see that, Dr. Whitwell, I 17 believe it's highlighted in yellow on -- on your screen, 18 as well? 19 There is -- third paragraph down, this is 20 Dr. Smith's evidence at the Preliminary Inquiry in that 21 case, and that took place in January 2000. And what Dr. 22 Smith is saying here, and I'll read it: 23 "And the studies are all quite 24 consistent in that in although they 25 answer the question in slightly

1 different ways, they are consistent, 2 and the statements are this: 3 Number 1: Children do not doll -- die 4 from a fall of less than 15 feet, 5 unless it is this, you know, kind of 6 epidural hemorrhage and you know 7 something very unusual, which we're not 8 dealing with here, so. 9 And obviously 15 feet is more than -- 10 is a height greater than -- than 11 normally one can fall in a home, unless 12 you're dealing with unusual 13 architecture in a home." 14 And he goes on to say, the next paragraph: 15 "And in fact, in order for there to be 16 a reasonable likelihood of death 17 occurring from a fall, a child has to 18 fall not 15 feet, but at least three 19 (3) stories, if not four (4) stories. 20 And in fact, the original study in the 21 area which drew people's attention to 22 this and which was then affirmed by 23 subsequent studies suggested that 24 children who fall four (4) stories and 25 have a 50 percent of survival and has

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1 been affirmed by others as well." 2 This is January 2000. And if I understand 3 your evidence, that would not be accurate, is that 4 correct? 5 DR. HELEN WHITWELL: That's correct. 6 MS. JULIE KIRKPATRICK: So I believe that 7 the word that Dr. Crane used in his evidence was 8 "unreasonable", would you agree that this would be -- 9 DR. HELEN WHITWELL: I would agree with 10 that. 11 MS. JULIE KIRKPATRICK: -- unreasonable? 12 DR. HELEN WHITWELL: I would agree with 13 that, yes. 14 MS. JULIE KIRKPATRICK: Okay. So, based 15 on this statement made in January 2000, that a child 16 would have to fall from a height of at least three (3) 17 stories, does it appear to you that Dr. Smith has changed 18 his opinion at all regarding low level falls in the 19 eleven (11) years between the Amber case and the Tyrell 20 case? 21 DR. HELEN WHITWELL: Well, no, not 22 really, no, based on what you've told me. 23 MS. JULIE KIRKPATRICK: I'd suggest that 24 these case -- cases are really the bookends of his tenure 25 as the leading pediatric forensic pathologist in the

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1 Province of Ontario, 1998/2001. 2 COMMISSIONER STEPHEN GOUDGE: Is this an 3 appropriate time to take our morning break? 4 MS. JULIE KIRKPATRICK: It would be, yes. 5 Thank you. 6 COMMISSIONER STEPHEN GOUDGE: We'll rise 7 now until 11:30. 8 9 --- Upon recessing at 11:16 a.m. 10 --- Upon resuming at 11:38 a.m. 11 12 THE REGISTRAR: All rise. Please be 13 seated. 14 COMMISSIONER STEPHEN GOUDGE: Ms. 15 Kirkpatrick...?" 16 17 CONTINUED BY MS. JULIE KIRKPATRICK: 18 MS. JULIE KIRKPATRICK: Dr. Whitwell, 19 before the break, we were talking about the Tyrell case, 20 Dr. Smith's opinion in the Tyrell case, and you indicated 21 that the position that he took, at that time in January 22 of 2000, was unreasonable. 23 DR. HELEN WHITWELL: Based on what you've 24 shown me. 25 MS. JULIE KIRKPATRICK: Yes.

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1 DR. HELEN WHITWELL: I -- I haven't 2 reviewed the case. 3 MS. JULIE KIRKPATRICK: Okay. I just 4 want to take you to the -- the midpoint, which is 1995, 5 and up on your screen, at the bottom of the -- the right- 6 hand column. This is a document that's entitled, 7 "Parents Who Kill". Mr. Registrar, if you could just go 8 up to the top of the page, we can see the date, I 9 believe, and then we'll go back down. 10 The 12th of June 1995, I can tell you this 11 was a presentation that Dr. Smith was involved in 12 presenting to the Toronto Police Force. And at the 13 bottom of the page you can see that it says, "Charles 14 Smith notes on child abuse". 15 So the second column at the bottom, I'm 16 going to read it. It says: 17 "That a fall from a considerable height 18 is necessary to kill it not well known 19 to the public (nor to some lawyers). 20 Almost every trial of child abuse draws 21 into question the possibility that a 22 young child died as a result of an 23 accidental fall. The lethality -- the 24 lethality of falls has been the subject 25 of medical publications. Several

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1 published studies of children who fell 2 within a hospital environment from a 3 crib or change table indicate that 4 these children do not die as a 5 result..." 6 If we go to the top of the next page, page 7 34. 8 "...result of their accident. 9 Significant head injury is very 10 uncommon and death does not occur." 11 So here in 1995, would you agree with me 12 that that is the same statement, it's unequivocal that 13 children do not die from household falls? 14 DR. HELEN WHITWELL: Well, it appear so 15 from that -- from that document. 16 MS. JULIE KIRKPATRICK: Okay. Now, if we 17 could go back -- 18 MR. MARK SANDLER: Excuse me. Just -- 19 just before we leave there, I just think in -- in 20 fairness, on that same page it says in another -- in the 21 column on the left side of page 34: 22 "That's not to say that children do not 23 die from falls within a home. Those 24 which are fatal are down many stairs 25 onto a concrete floor.

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1 I -- I just think in fairness that that 2 aspect should be read, as well. 3 4 CONTINUED BY MS. JULIE KIRKPATRICK: 5 MS. JULIE KIRKPATRICK: That's fine, 6 that's fine. If you'd like, I can read the whole -- the 7 -- the whole rest of that paragraph, in fact? 8 "In fact, falls from a much greater 9 height are usually needed. In New York 10 City a campaign was launched to educate 11 the public about the danger of children 12 falling from apartment windows. In 13 that city, in random falls, it was 14 noted that the LD50 for a fall was 15 three (3) stories. That's not to say 16 that children do not die from falls 17 within a home. Those which are fatal 18 are down many stairs onto a concrete 19 floor. In our experience, these have 20 been associated with the use of baby- 21 walkers, the use of which is actively 22 discouraged by the Canadian Pediatric 23 Society." 24 Now, it would appear, would you agree, Dr. 25 Whitwell, that the reference to the study in New York

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1 City would be the same study that was referred to in the 2 Amber case? Can you comment on that? 3 DR. HELEN WHITWELL: Well, it would 4 appear to me, yes. 5 MS. JULIE KIRKPATRICK: Thank you. 6 DR. HELEN WHITWELL: Yes. 7 MS. JULIE KIRKPATRICK: Okay. If we can 8 move along to the Tyrell overview report, which is 9 PFP144019. It's not in your binder, Dr. Whitwell. 10 DR. HELEN WHITWELL: Do I have the -- 11 MS. JULIE KIRKPATRICK: It'll come up on 12 the screen -- 13 DR. HELEN WHITWELL: Okay. 14 MS. JULIE KIRKPATRICK: -- at page 88. 15 It's just one (1) brief reference that I would like to -- 16 to draw your attention to. 17 There's a specific loopback to the Amber 18 case here. And we can see about midway down the -- the 19 page -- this is a transcript of the pro -- or excerpt 20 from the transcript of the preliminary hearing, again, 21 January 2000. 22 About midway down the page, Dr. Smith is 23 asked about the Amber case by defence counsel and the 24 question is: 25 "You testified in a case in Timmins,

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1 Ontario in 1991, in a case that's 2 referred to as SM." 3 Do you see that -- 4 DR. HELEN WHITWELL: Yes. 5 MS. JULIE KIRKPATRICK: -- beside the 6 questions? 7 DR. HELEN WHITWELL: Yes, I do, yeah. 8 MS. JULIE KIRKPATRICK: And the response 9 below in that particular case -- a number of doctors came 10 and testified -- and you used the unfortunate phrase in 11 speaking to me earlier, "against me". 12 Now keep that in mind, and we're going to 13 turn to the Dustin overview report which is PFP142940, at 14 page 86. 15 DR. HELEN WHITWELL: Sorry, in my volume? 16 MS. JULIE KIRKPATRICK: Oh, I'm sorry, in 17 your volume -- it would be in the Commission Counsel 18 Documents Volume -- 19 DR. HELEN WHITWELL: IV. 20 MS. JULIE KIRKPATRICK: -- IV. 21 DR. HELEN WHITWELL: I think I've got it 22 actually. It's Tab 28. 23 MS. JULIE KIRKPATRICK: And Tab 28, thank 24 you. My apologies. 25 So here we are at paragraph 223 of the

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1 Dustin overview report, and this was a case that you 2 reviewed, correct, Dr. Whitwell? 3 DR. HELEN WHITWELL: That's correct, yes. 4 MS. JULIE KIRKPATRICK: And you'll see 5 that we have the same language here, where Dr. Smith is 6 asked about the Timmins case at the Preliminary Inquiry. 7 This Preliminary Inquiry was in March 1994. 8 And he states: 9 "I know the controversies, and the 10 experts who testified against me were 11 people who almost -- almost all of whom 12 were part of this one (1) study I 13 talked about from 1987." 14 Now it -- do you think he's speaking of 15 the Duhaime Study, Dr. Whitwell? 16 DR. HELEN WHITWELL: Yes, I -- I think 17 so, yes. 18 MS. JULIE KIRKPATRICK: Okay. Now it -- 19 can you -- can you offer any comment onto the -- 20 regarding the appropriateness of that kind of language 21 from the witness box at a Preliminary Inquiry, referring 22 back to earlier scientific debate in another case? 23 Dr. Smith is being asked at a Preliminary 24 Inquiry under oath as a witness about his involvement in 25 an earlier --

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1 DR. HELEN WHITWELL: Yes. 2 MS. JULIE KIRKPATRICK: -- case. 3 DR. HELEN WHITWELL: Yes. 4 MS. JULIE KIRKPATRICK: And his response, 5 we see in both the Tyrell case and the Dustin case, is to 6 say, I know these people who came to testify against me. 7 DR. HELEN WHITWELL: Oh, I'm sorry, is 8 that the -- that's what you want me to comment on? 9 MS. JULIE KIRKPATRICK: Yes. Yes. 10 DR. HELEN WHITWELL: Well, that -- that 11 isn't terminology I would use in the literal sense. 12 Essentially, in England we act for the Courts. 13 MS. JULIE KIRKPATRICK: I'm sorry, I 14 have -- 15 DR. HELEN WHITWELL: We act for the 16 Court. 17 MS. JULIE KIRKPATRICK: Right. 18 DR. HELEN WHITWELL: We don't -- we don't 19 -- we don't act for prosecution, we don't act for 20 defence. 21 MS. JULIE KIRKPATRICK: So how do you -- 22 in a situation where you are challenged by -- by your 23 peers, how do you deal with that situation? 24 DR. HELEN WHITWELL: In what sense? In 25 the Courts?

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1 MS. JULIE KIRKPATRICK: Yes. 2 DR. HELEN WHITWELL: I give my opinion to 3 the Court. If somebody wants to agree or disagree or 4 partially agree or disagree, then they give their 5 evidence and that's it really. 6 MS. JULIE KIRKPATRICK: Thank you. Okay, 7 now in the Dustin report, and we're still there. At page 8 85, paragraph 221, so we're just going back one (1) page. 9 Again, this appears to be a loop back to the Amber case. 10 And the Dustin case is 1994, the Amber case is 1988. 11 And I'm going to read the -- the quote 12 that's set out at paragraph 221. And it's going to lead 13 into a -- a number of other questions. Dr. Smith stated: 14 "My opinion has been fortified by the 15 medical literature [and again he's 16 speaking about household falls] which 17 I've read since then. Let me tell -- 18 also tell you, if you go through my 19 curriculum vitae, you can see that I 20 participated in the presentation on the 21 subject at a recent meeting of the 22 American Academy of Forensic Sciences, 23 which is probably one (1) of the more 24 prestigious forensic science group in - 25 - science groups in the world, in which

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1 we attempted to break down major falls, 2 minor falls, and then non -- non- 3 accidental head injury to work through 4 the differences of pathology. 5 In fact, if you go through that 6 presentation, you'll see that there are 7 some troublesome cases. There was a 8 child who was in a crib or change table 9 who fell forward and hit -- an infant 10 who hit his or her head on the corner 11 of the solid metal steam radiator, and 12 died. 13 So that is a death from really what 14 should have been a minor or trivial 15 fall about the home. But here we're 16 dealing with something. We're dealing 17 with an event that has been witnessed 18 and is extraordinary." 19 So keeping that in mind, Dr. Whitwell, 20 and, Dr. Saukko, could we please turn to Dr. Smith's CV, 21 which is PFP005092, and you'll find that in Volume II of 22 the Additional Documents, I believe. It should be there, 23 but it's up on the screen, so perhaps we can work through 24 it on the screen. 25 I'm going to suggest if we look, beginning

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1 at page 14 of the CV, that in the post-Amber period, and 2 during the time that these early cases were moving 3 through the system, Dr. Smith was teaching at the 4 University of Toronto. He was presenting to various 5 organizations, including police officers, Crown 6 attorneys. We've already seen that in the Parents Who 7 Kill presentation. 8 And in particular, he's involved in 9 research activities with colleagues at the Hospital for 10 Sick Children, or at the Office of the -- the Chief 11 Coroner. 12 And Dr. Whitwell, I'm looking at the -- at 13 Volume II, and -- and my apologies. It doesn't appear 14 that the CV has made its way in, so if we could just work 15 from the screen. 16 DR. HELEN WHITWELL: Sorry. I have -- I 17 -- it's here. 18 MS. JULIE KIRKPATRICK: Oh, it is? 19 DR. HELEN WHITWELL: -- in the volume. 20 MS. JULIE KIRKPATRICK: Oh, thank you. 21 DR. HELEN WHITWELL: That's -- well, I 22 believe I'm reading the same -- Tab 6. 23 MS. JULIE KIRKPATRICK: Oh, great. Okay. 24 So at page 14, Number 55, we see that Dr. Smith has co- 25 authored a paper called "The Pathology of Shaken -- Fatal

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1 Shaken Baby Syndrome", the International Association of 2 Forensic Sciences, October 1990, and that's with a Dr. 3 McLachlin. I believe Dr. McLachlin is a -- a Hospital 4 for Sick Children employee. 5 Number 56 at the bottom of the page, again 6 with a number of colleagues from the Hospital of Sick 7 Children, a 1990 paper entitled "Post-Mortem Orbital 8 Findings in Shaken Baby Syndrome". 9 If we go over to ta -- to page 15, we see 10 Number 57, again Dr. McLaughlin, Dr. Smith, and this time 11 we see Dr. Young, who is the Chief Coroner at the time, 12 "Optic Nerve Injury in the Shaken Baby Syndrome; Form of 13 Fatal Child Abuse". That was presented to the Canadian - 14 - or United States and Canadian Academy of Pathology in 15 March of '91 in Chicago. 16 Then Number 63, middle of the page, we see 17 Dr. Smith and N. Denic. I understand N. Denic to have 18 been a pathology assistant at the time at the Hospital 19 for Sick Children, and we see a -- a paper entitled 20 "Fillicide by Asphyxia", American Academy of Forensic 21 Sciences, 1993. 22 DR. HELEN WHITWELL: Sorry. 23 MS. JULIE KIRKPATRICK: Yes? 24 DR. HELEN WHITWELL: Dr. Saukko's -- he 25 found -- he found it now.

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1 MS. JULIE KIRKPATRICK: Okay. My 2 apologies, Dr. Saukko. 3 DR. HELEN WHITWELL: Right. Sorry. So 4 where were you? 5 MS. JULIE KIRKPATRICK: I was at Number 6 63, which is page 15. A paper presented to the American 7 Academy of Forensic Sciences, co-authored with N. Denic, 8 who I understand to be a pathology assistant at Hospital 9 for Sick Children at the time, and the paper is entitled 10 "Fillicide by Asphyxia". 11 Then we have Number 64, Pediatric Forensic 12 Pathology, "A Fifteen Year Survey in a Large Canadian 13 City". Again presented at the American Academy of 14 Forensic Sciences in 1993, co-authored with Dr. Denic, 15 Dr. Becker, and Dr. Young. Again Dr. Young was the Chief 16 Coroner at the time. 17 And then at the bottom of that page, 18 you'll see that we have the paper that Dr. Smith is 19 referring to in the Dustin case, and that is "Child Abuse 20 Versus Falls", presented at the American Ac -- or at the 21 Academy of Forensic Sciences in 1994. Again co-authored 22 with Denic and Dr. Young. 23 Now, there's one (1) further article, 24 which is not found on Dr. Smith's CV, because I think it 25 post-dates the CV that we have, but it can be found at

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1 Tab 4 of volume Number II. 2 DR. HELEN WHITWELL: There's nothing 3 here. 4 MS. JULIE KIRKPATRICK: Oh, I'm sorry. 5 Tab 28 of volume Number II. 6 And I see that it has been given a PFP 7 number, although it's not in the data base. Mr. 8 Registrar, it's PFP302067. There it is. It's an article 9 entitled "Fatal Child Abuse Maltreatment Syndrome, a 10 Retrospective Study in Ontario, Canada in 1990 - '95", 11 co-authored by Dr. Smith, Dr. Chiasson, Dr. Cairns, Dr. 12 Young, and Dr. Pollanen. 13 Now, prior to coming here today -- this 14 week, and reviewing these documents, have you come across 15 any of this work in the past? 16 DR. HELEN WHITWELL: I -- I may well have 17 seen this paper, but I -- I mean, I -- 18 MS. JULIE KIRKPATRICK: Now is this -- 19 this one (1), is this a peer reviewed paper? The one (1) 20 that's published in Forensic Science International? 21 DR. HELEN WHITWELL: I think you -- 22 you'll have to ask Dr. Saukko, because he's the editor. 23 MS. JULIE KIRKPATRICK: Oh. Well, 24 perhaps you can tell us. 25

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1 (BRIEF PAUSE) 2 3 MS. JULIE KIRKPATRICK: So this is a -- 4 this is a peer reviewed paper? 5 DR. PEKKA SAUKKO: Correct. 6 MS. JULIE KIRKPATRICK: Okay. Now the 7 other documents that we've referred to, the ones that are 8 presented at the American Academy of Forensic Sciences, 9 are those peer reviewed papers as far as you know? 10 DR. HELEN WHITWELL: Well, they're not 11 peer reviewed as -- as they are in this journal. I 12 really don't know how the papers are looked at. I mean, 13 essentially if you -- if you do a verbal presentation at 14 a meeting, you send in an abstract and whichever meeting 15 it is, it's looked at, so I don't know how much peer 16 review process, if any, is -- is involved. 17 MS. JULIE KIRKPATRICK: Okay. And I'm 18 going to suggest that that would be something that would 19 be important for a Court to know, would you agree with 20 that, whether something was formally peer reviewed or not 21 or what the level of peer review was? 22 For example, let me just put in context, 23 Dr. Smith is giving evidence at a preliminary inquiry 24 about papers that he has presented. He's presenting 25 himself as an expert in household falls.

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1 Would it be important for a Court or 2 counsel to know the context of that paper? Can you 3 comment on that? 4 DR. HELEN WHITWELL: Well, I can see if 5 from two (2) -- two (2) angles really. And in fairness 6 to Dr. Smith, he may not be thinking through the issue of 7 peer review when he refers to his studied. You know 8 there is also an onus on the lawyers to -- to actually 9 find out about where the work is presented or -- or 10 published, and perhaps ask. 11 MS. JULIE KIRKPATRICK: Fair enough. 12 Okay. 13 DR. PEKKA SAUKKO: I could comment on 14 that, as well. 15 MS. JULIE KIRKPATRICK: If you could, 16 yes. 17 DR. PEKKA SAUKKO: Of course, peer review 18 increases the probability that the paper is -- is good, 19 but it doesn't say that. Good papers can also be 20 published in non--peer reviewed papers -- journals, so 21 that as such doesn't guarantee. So you cannot take it as 22 a quality issue because it depends where one wishes to 23 publish. 24 MS. JULIE KIRKPATRICK: Okay. And is the 25 converse also true, that just because something is peer

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1 re -- peer reviewed doesn't make it a good study; for 2 example, if the underlying data is -- is wrong? 3 DR. PEKKA SAUKKO: For instance, yes. 4 MS. JULIE KIRKPATRICK: Yes. And what we 5 see, I -- I would suggest, in some of these cases is 6 reference, for example, to fifteen (15) years of 7 experience at the Hospital for Sick Children. And I 8 don't think that we can say that we would know what cases 9 have gone into the -- those studies. 10 But would you agree with me that if the 11 cases that we see now as being problematic formed the 12 underlying data for those studies, that perhaps the 13 conclusions would be erroneous, as well? 14 Would you agree with that? 15 DR. PEKKA SAUKKO: That's a possibility, 16 yes. 17 DR. HELEN WHITWELL: Yes, but -- that -- 18 that probably apply -- may well apply to a number of 19 series -- 20 MS. JULIE KIRKPATRICK: Yes. 21 DR. HELEN WHITWELL: -- and -- and 22 papers. 23 MS. JULIE KIRKPATRICK: But in 24 particular, when we look at -- at these papers that I've 25 just taken you through, would you agree with me that if

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1 they are based on cases that we now know as problemat -- 2 for example, if they're based on the Amber case, if 3 they're based on the Dustin case, if they're based on the 4 Kassandra case, would you with agree me -- 5 DR. HELEN WHITWELL: That's correct, yes. 6 MS. JULIE KIRKPATRICK: -- that there 7 would be a problem with the anu -- 8 DR. HELEN WHITWELL: Yes. 9 MS. JULIE KIRKPATRICK: -- with the 10 conclusions? 11 Now, Dr. Whitwell, you -- you have stated 12 in your -- your evidence that in fairness to Dr. Smith 13 that his views were shared by a number of clinicians at 14 the Hospital for Sick Children. And we see that in the 15 Amber case, as well. I think Justice Dunn refers to 16 that, that, in fairness to Dr. Smith, he was not 17 completely isolated out there on his own in forming his 18 opinions. 19 There were many colleagues at the Hospital 20 for Sick Children who shared his views, at least in the 21 Amber case. 22 Would you agree? 23 DR. HELEN WHITWELL: Yes. 24 MS. JULIE KIRKPATRICK: And in -- in the 25 other cases that you reviewed, Dr. Whitwell, did you see

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1 that there was any involvement of -- of colleagues from 2 the Hospital for Sick Children in those cases? 3 Do you recall? 4 I'll take you through it, but I'm just 5 wondering if you have an independent recollection of 6 that. 7 DR. HELEN WHITWELL: Yes, yes, there -- 8 there was. There was also involvement from clinicians at 9 other hospitals. 10 MS. JULIE KIRKPATRICK: Right. Okay. 11 And I believe that, if I understand your evidence 12 correctly, in response to a question posed by Mr. 13 Sandler, you stated that with respect to the pathology 14 issues that are raised by the so-called Shaken Baby 15 cases, pathologists and pediatricians can be found across 16 a broad spectrum. 17 I believe that that was -- that what -- 18 that was what you said. 19 And you said that looking back at 20 pediatricians at the time, they may not find evidence of 21 external impact in shaking. And we've talked about that 22 already. 23 So, I guess what I want to ask you, Dr. 24 Whitwell, if there's any way that you can expand on that 25 and -- and help us understand what, in the late

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1 '80s/early '90s, that spectrum was? 2 DR. HELEN WHITWELL: That -- I mean, that 3 -- that's a very diffi -- difficult question. 4 MS. JULIE KIRKPATRICK: Well, let -- let 5 me ask this -- 6 DR. HELEN WHITWELL: In terms of -- I 7 think, if you perhaps define it better for me. 8 MS. JULIE KIRKPATRICK: Okay. Let me ask 9 it this way, and I'll -- I'll be quite specific. If we 10 could go to the Kassandra overview report, which is 11 PFP143173. And the Kassandra overview report is in 12 Volume IV at Tab 41, the Commission documents. 13 DR. HELEN WHITWELL: Excuse me, I've got 14 that, yeah. 15 MS. JULIE KIRKPATRICK: Is that right? 16 DR. HELEN WHITWELL: Yeah. 17 MS. JULIE KIRKPATRICK: Okay. And we're 18 looking at paragraph 169. And my apologies, I don't have 19 the page number noted. 20 DR. HELEN WHITWELL: Okay, yeah. 21 MS. JULIE KIRKPATRICK: Dr. Whitwell, 22 could you tell us what page it's on? 23 COMMISSIONER STEPHEN GOUDGE: Page 57. 24 25 CONTINUED BY MS. JULIE KIRKPATRICK:

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1 MS. JULIE KIRKPATRICK: Thank you. And 2 again, the Kassandra case was a case which you reviewed, 3 Dr. Whitwell, correct? 4 DR. HELEN WHITWELL: Yes. 5 MS. JULIE KIRKPATRICK: And we talked 6 about the involvement of clinicians and the involvement 7 of members of the SCAN Team in the Amber case. 8 And -- and are you aware that there were a 9 number of the same people who were involved in the 10 Kassandra case? 11 DR. HELEN WHITWELL: Sorry, a number of - 12 - same people -- 13 MS. JULIE KIRKPATRICK: The -- the same 14 clinicians, the same SCAN Team members? 15 DR. HELEN WHITWELL: As other cases -- 16 MS. JULIE KIRKPATRICK: Yes. 17 DR. HELEN WHITWELL: -- is it? 18 MS. JULIE KIRKPATRICK: Yes. 19 DR. HELEN WHITWELL: Yes. 20 MS. JULIE KIRKPATRICK: Okay. And one 21 (1) was Dr. Marcellina Mian, -- 22 DR. HELEN WHITWELL: Mm-hm. 23 MS. JULIE KIRKPATRICK: -- who was a SCAN 24 pediatrician. And I can tell you that we see Dr. Mian's 25 name in the Valin and the Tyrell cases, as well.

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1 But just focussing here on the Kassandra 2 case, there's a -- a passage at 169, and it's a police 3 record that records the views that were expressed to the 4 police by Dr. Mian about the case. 5 And I'm going to read it: 6 "Dr. Mian further stated..." 7 Oh, she -- I'll start sort of part way 8 through the first paragraph. 9 "She further stated that she would put 10 child abuse at the top of her list 11 given the physical exam, the social 12 history, and the blood tests." 13 Now, I just want to stop there. Can you - 14 - can you help shed some light on what kind of blood 15 tests would -- would provide evidence of child abuse. 16 DR. HELEN WHITWELL: Blood tests are done 17 to usually find out if there's evidence of underlying 18 disease -- 19 MS. JULIE KIRKPATRICK: Okay. So that -- 20 DR. HELEN WHITWELL: -- such as a 21 clotting disorder. 22 MS. JULIE KIRKPATRICK: So that would be 23 a situation of exclusion, if I understand -- 24 DR. HELEN WHITWELL: Yes, that's correct. 25 MS. JULIE KIRKPATRICK: Okay.

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1 DR. HELEN WHITWELL: I -- I mean, these 2 appear to be notes taken by police officers, is that 3 correct? 4 MS. JULIE KIRKPATRICK: That's right, 5 yeah. 6 DR. HELEN WHITWELL: And my gen -- 7 general experience is that they're not necessarily the 8 most accurate -- 9 MS. JULIE KIRKPATRICK: Fair enough. 10 DR. HELEN WHITWELL: -- recorders. 11 MS. JULIE KIRKPATRICK: Fair -- fair 12 enough, fair enough. But we have it here in the overview 13 report, it's evidence before the inquiry, but, yes, that 14 will -- we'll preface it by saying that this is recorded 15 by a police officer. And that context actually may well 16 be quite important. 17 So it goes on to say that Dr. Mian went -- 18 went on to say that all she deals with is child abuse, so 19 naturally she would assume abuse. 20 Dr. Mian stated that as far as she was 21 concerned the doctors and childcare people might as well 22 have held Kassandra down while her stepmother beat her to 23 death. 24 And it was further stated that the doctors 25 and the CAS dropped the ball on this one, that the

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1 hospital wanted an inquest because of that. 2 And I note, Dr. Whitwell, that in your 3 medicolegal report you are aware that in inquest was, in 4 fact, held -- 5 DR. HELEN WHITWELL: Yes. 6 MS. JULIE KIRKPATRICK: -- in the 7 Kassandra case, later on in 1997? 8 So using that as a specific example, where 9 on the spectrum is -- is this statement, assuming that 10 it's a correct view? 11 DR. HELEN WHITWELL: Where on the 12 spectrum in terms of...? 13 MS. JULIE KIRKPATRICK: The spectrum that 14 you were talking about in the early -- late '80s/early 15 '90s. I -- I think if we look at what Dr. Pollanen is 16 suggesting to us there in the spectrum, there's -- on one 17 hand there's dogma, on the other hand I think he used the 18 word sceptical, if that helps. 19 DR. HELEN WHITWELL: Yes, well, it 20 appears to me that the -- the pediatrician may well be no 21 different from other pediatricians, is being very firm in 22 terms of the diagnosis. 23 MS. JULIE KIRKPATRICK: Right. And that 24 leads into my question, which is: You would agree with 25 me that the diagnosis of shaking in Shaken Baby Syndrome

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1 isn't just within the purview of the pathologist, 2 correct? 3 DR. HELEN WHITWELL: No, that's correct. 4 MS. JULIE KIRKPATRICK: Often -- and we 5 see it in these cases, you have a child who's presenting 6 at the hospital with a head injury who subsequently dies, 7 so you have clinicians who are involved before death and 8 a pathologist who's involved after death. 9 DR. HELEN WHITWELL: Yes. 10 MS. JULIE KIRKPATRICK: So a clinician -- 11 I think, you have stated in your evidence in the -- in 12 the Amber case, it was, in fact, a clinician, Dr. Driver, 13 who initially raised the issue of shaking, correct? 14 DR. HELEN WHITWELL: Yes. 15 MS. JULIE KIRKPATRICK: And -- 16 DR. HELEN WHITWELL: That -- that's -- 17 yes. 18 MS. JULIE KIRKPATRICK: And we also heard 19 from you then that Dr. Smith testified that as the 20 pathologist, after that diagnosis or that -- that 21 suspicion had been raised, that he went on a fishing 22 expedition. I believe those were her -- his words. 23 Correct? 24 DR. HELEN WHITWELL: I'm sorry, I just 25 don't remember.

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1 MS. JULIE KIRKPATRICK: Okay. I -- I'm - 2 - I think that if we go to the over report -- overview 3 report we'll see that, but perhaps that's not necessary. 4 Dr. Smith, I would suggest, testified that he went on a 5 fishing expedition -- and -- 6 DR. HELEN WHITWELL: Oh, yes I -- 7 MS. JULIE KIRKPATRICK: Yes. 8 DR. HELEN WHITWELL: -- I'm sorry, I 9 remember -- I do remember in the -- in the context of 10 what -- yes. 11 MS. JULIE KIRKPATRICK: And the evidence 12 that he gave at the Preliminary -- Preliminary Inquiry 13 was something to the effect of looking for something to 14 the contrary. Looking for something that would disprove 15 abuse. You would agree that -- 16 DR. HELEN WHITWELL: Yes. Yes. 17 MS. JULIE KIRKPATRICK: Yes. And I think 18 that your comment about that was that he started on a 19 presumption and then went looking for the evidence, 20 correct? 21 DR. HELEN WHITWELL: That's correct. 22 MS. JULIE KIRKPATRICK: Okay. And the 23 fact that there would be this -- this interaction, this 24 relationship, between Dr. Smith and the SCAN team at the 25 Hospital for Sick Children, that shouldn't come as a

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1 surprise, correct? We're -- we're talking about a major 2 pediatric hospital? 3 DR. HELEN WHITWELL: That's correct. 4 MS. JULIE KIRKPATRICK: And Dr. Smith was 5 an employee of the hospital? 6 DR. HELEN WHITWELL: Yes. 7 MS. JULIE KIRKPATRICK: So that's not 8 anything that we should be concerned about? 9 DR. HELEN WHITWELL: No. 10 MS. JULIE KIRKPATRICK: No. And I don't 11 want to leave that relationship between the pathologists 12 and the clinicians completely. I think there's something 13 -- there is something in the cases that -- that raises a 14 concern. 15 But I'm going to turn to you, Dr. Saukko, 16 with a -- something that, I think, might be a similar 17 issue, and I want to pick up on something you said the 18 other day about discussions with your Hungarian 19 colleagues. 20 Do you recall saying that in conversation 21 with some of your colleag -- colleagues in Hungary, they 22 had indicated to you that they didn't want to use the 23 word "unascertained" with respect to the cause of death, 24 because the police didn't like it? 25 DR. PEKKA SAUKKO: That's correct. But I

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1 must add that -- that was in -- in the old days -- 2 MS. JULIE KIRKPATRICK: Yes. 3 DR. PEKKA SAUKKO: -- in the old system. 4 MS. JULIE KIRKPATRICK: I -- I appreciate 5 what you're saying, and I don't think that's the case in 6 Ontario either. At least, I hope it's not. But it 7 raises an interesting point, and I'd like to explore that 8 with you. 9 And that -- the -- the issue is the -- the 10 nature of the influence or the pull upon the pathologists 11 by the police -- but not just the police -- the police, 12 perhaps a SCAN Team in -- in some of these cases; perhaps 13 the Children's Aid Society. 14 There are people present at the autopsy 15 generally. We've heard that the police definitely -- two 16 (2) or three (3) sometimes are -- are present, and they 17 want answers, do they not? 18 DR. PEKKA SAUKKO: Yes, they do. 19 MS. JULIE KIRKPATRICK: So in your 20 experience as a forensic pathologist, you've -- you've 21 obviously come up against this problem, where you have 22 police officers there with you, and they have a theory of 23 the case, and they want answers from you? 24 DR. PEKKA SAUKKO: Well, but I -- but I 25 won't give answers before -- before I'm ready to give

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1 them, before the -- of course, I can't give an opinion 2 what -- how it looks based on the facts, but they have to 3 wait. 4 MS. JULIE KIRKPATRICK: Okay. And do 5 they accept that from you? 6 DR. PEKKA SAUKKO: Oh yes, they do. They 7 have no choice. 8 MS. JULIE KIRKPATRICK: Okay. Dr. 9 Whitwell? 10 DR. HELEN WHITWELL: The same applies to 11 me. 12 MS. JULIE KIRKPATRICK: Okay. Can you 13 see though that in some situations, and some context, 14 there may be that pull, and there may be a tension 15 between the duty of the pathologist -- the strict duty of 16 the pathologist in contuct -- conducting the autopsy -- 17 and the surrounding circumstances? 18 Because as we know from Dr. Pollanen, the 19 surrounding circumstances are very important, aren't 20 they? The pathologist, in determining the cause of 21 death, needs to know what's happening around the case. 22 That information, would you agree, is coming from the 23 police or from the SCAN Team, or from the Child 24 Protection Authorities, you'd agree with that. 25 And then the pathologist's role, would you

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1 agree, is to filter out all of that information and do 2 exactly what you've said, Dr. Saukko, say, Well, I'm not 3 sure, you have to wait. Correct -- 4 DR. PEKKA SAUKKO: Yes. 5 MS. JULIE KIRKPATRICK: -- that's a 6 pathologist's role? 7 DR. PEKKA SAUKKO: That's correct. 8 MS. JULIE KIRKPATRICK: And I'm goin -- 9 going to suggest that, perhaps, what we see playing out 10 in the Amber case or in the Kassandra case -- the Shaken 11 Baby cases, -- so called Shaken Baby cases -- perhaps, 12 what we see is that same kind of pressure, same kind of 13 pull; not from the police, but from more of a clinical 14 perspective. Is that a fair suggestion based on your 15 review of these cases? 16 DR. HELEN WHITWELL: You know, it's 17 actually very difficult to comment on suggestibility or 18 otherwise of the circumstances. It -- it is a 19 possibility. That's -- that's all I can, you know, I can 20 say. 21 MS. JULIE KIRKPATRICK: And what do -- 22 what do you -- 23 DR. HELEN WHITWELL: And I wasn't there. 24 MS. JULIE KIRKPATRICK: What do you do in 25 your practice to guard against that kind of pressure

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1 coming from -- from outside interests? Not that they're 2 not valid interests; preventing child abuse, we would all 3 agree, is a -- is a very important societal goal. 4 But is that the purview of the 5 pathologist? How do you guard against that pressure? 6 DR. HELEN WHITWELL: Well, you -- you 7 guard -- you try and guard against it using your 8 experience, and as Dr. Saukko said, you know, the police 9 just have to wait, or whoever, has to wait. It can also 10 apply to lawyers. 11 MS. JULIE KIRKPATRICK: True. Now, the 12 final point on -- on this, as you've -- just to -- to 13 continue this for -- for a moment. 14 I would suggest that -- that if you have 15 an aggressive police officer, or an -- an aggressive 16 child abuse investigator, that -- that maybe that is a -- 17 a difficult thing to deal with as a pathologist in some 18 circumstances. 19 And would you agree with me that child 20 abuse is a very highly emotional issue, and there can be 21 a strong media pull as well. Would you agree with that? 22 DR. HELEN WHITWELL: I -- I would agree 23 about the emotive issues. I'm not so certain about the - 24 - the media issues. 25 MS. JULIE KIRKPATRICK: Okay. Would I --

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1 would I -- 2 DR. HELEN WHITWELL: But -- but maybe 3 that's a reflection of England. 4 MS. JULIE KIRKPATRICK: Okay. Well, lets 5 go to England, then. 6 I -- I just want to turn briefly to some 7 excerpts from the Shipman Inquiry. I understand, Dr. 8 Whitwell, that you were involved in -- in the Shipman 9 Inquiry? 10 DR. HELEN WHITWELL: I was, yes. 11 MS. JULIE KIRKPATRICK: And those can be 12 found at Tab 25, Volume II, of your Additional Documents 13 volume. And I believe that they have been given a PFP 14 number. 15 DR. HELEN WHITWELL: Sorry. Which 16 additional volume? 17 MS. JULIE KIRKPATRICK: Volume II. 18 DR. HELEN WHITWELL: Mm-hm. 19 MS. JULIE KIRKPATRICK: Tab 25. 20 DR. HELEN WHITWELL: Tab 25. 21 MS. JULIE KIRKPATRICK: And it's 22 PFP302055. All right. Now, the -- this is from the 23 third report of the Shipman Inquiry, and it's a five 24 hundred and thirty (530) page document, so this may be a 25 little confusing because I've just pulled out a couple of

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1 expert -- excerpts. 2 So I'll walk you through where I'm going. 3 DR. HELEN WHITWELL: I -- I remember the 4 specific cases actually. 5 MS. JULIE KIRKPATRICK: Oh, do you? Can 6 you -- actually first of all, can you tell us a bit about 7 your involvement with the Inquiry? 8 DR. HELEN WHITWELL: My involvement was 9 twof -- twofold. 10 Firstly, when the Shipman Inquiry was 11 commenced, individuals and relatives were asked to -- 12 this is my understanding anyway -- you know, review if a 13 relative -- if they were worried about a relative of 14 theirs who went to the practice may have died. 15 So in fact, there was a number of ca -- 16 deaths from quite a long period of time which were 17 reviewed as part of the first part of the review. They 18 were reviewed from all angles, including death scene 19 investigation; cause of death; et cetera. 20 A number of those -- approximately about 21 forty (40) to fifty (50) had actually had post-mortem 22 examinations, and so my role there was reviewing those 23 post -- post-mortem examinations in terms of the causes 24 of death that were given at that time. 25 MS. JULIE KIRKPATRICK: Okay. All right.

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1 DR. HELEN WHITWELL: So in fact, Mrs. 2 Overton was a -- an early case who had been admitted to 3 hospital with, as it says there, a morphine overdose. 4 MS. JULIE KIRKPATRICK: Okay. And was 5 it -- 6 DR. HELEN WHITWELL: And she died several 7 months later, which was a complicating factor in the case 8 highlighted; in fact, a systems breakdown, if you like. 9 MS. JULIE KIRKPATRICK: Okay. And was 10 the concern in these cases that the -- the fact that -- 11 that these were unnatural deaths -- was missed in the 12 autopsy? Is that true? 13 DR. HELEN WHITWELL: Well, yes. That -- 14 that's correct. 15 MS. JULIE KIRKPATRICK: Okay. 16 DR. HELEN WHITWELL: Yes. 17 MS. JULIE KIRKPATRICK: And were you 18 aware of the fact that Dr. Young, who at the time was the 19 Chief Coroner of Ontario, he travelled to Britain, and 20 gave evidence before the Inquiry about the Ontario 21 system? 22 DR. HELEN WHITWELL: I wasn't aware at 23 the time, no. 24 MS. JULIE KIRKPATRICK: Okay. 25 DR. HELEN WHITWELL: I -- I've been made

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1 aware later, or at least, I don't think I was aware at 2 the time. 3 MS. JULIE KIRKPATRICK: I believe the 4 timing was about 2003. Is that correct? 5 DR. HELEN WHITWELL: Well, there were 6 various stages, so the initial stage was reviewing the 7 cases. So that was one (1) part. 8 And then there was another part to look at 9 systemic issues, et cetera, et cetera. 10 MS. JULIE KIRKPATRICK: Okay. 11 DR. HELEN WHITWELL: So it -- it was 12 split. 13 MS. JULIE KIRKPATRICK: All right. 14 DR. HELEN WHITWELL: And so it -- it was 15 in the early 2000s. I can't -- I can't give you the 16 exact time -- date. 17 MS. JULIE KIRKPATRICK: Okay, I believe 18 it was 2003, but Commissioner, I may have to check that - 19 - that. 20 DR. HELEN WHITWELL: I mean that -- 21 COMMISSIONER STEPHEN GOUDGE: Oh, it 22 won't be a subject of controversy -- 23 DR. HELEN WHITWELL: I presume he was 24 asked to give a -- one (1) of -- to do a syste -- a 25 report on systemic issues, rather than the cases.

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1 2 CONTINUED BY MS. JULIE KIRKPATRICK: 3 MS. JULIE KIRKPATRICK: Okay. 4 DR. HELEN WHITWELL: That's why I was 5 involved in both parts. 6 MS. JULIE KIRKPATRICK: Okay. Now, if we 7 go to the next page, I'm looking for -- I think we have 8 to go one (1) more page. One (1) more. Bear with me for 9 one (1) second. 10 COMMISSIONER STEPHEN GOUDGE: What are 11 you looking for? 12 MS. JULIE KIRKPATRICK: I'm looking for 13 page 10, and it's subparagraph 18.67, down at the bottom 14 of the page. And this is the Commissioner stating: 15 "It's eviden -- evident to me that the 16 Ontario Coroner Service has strong 17 leadership together with a positive 18 philosophy which enables it to meet the 19 practical difficulties pres -- 20 presented by the state's geography and 21 climate." 22 And it goes on -- 23 DR. HELEN WHITWELL: I'm sorry, where are 24 you? 25 MS. JULIE KIRKPATRICK: Oh, I'm sorry.

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  1  I'm at the bottom of page 10.
  2                 DR. HELEN WHITWELL:   Okay.
  3                 MS. JULIE KIRKPATRICK:   And it's
  4  subparagraph 18.67, do you see that statement?
  5                 DR. HELEN WHITWELL:   Mm-hm, yes.
  6                 MS. JULIE KIRKPATRICK:   Okay.  And then
  7  if we go to subparagraph 18(4), which is back on page 5,
  8  there is it, it states:
  9                   "It's evidence -- evident from the
 10                   documents which the Inquiry has been
 11                   provided with..."
 12                 And I'll stop there.  It's not clear from
 13  the report what documents the Inquiry was provided with. 
 14                 Reading on:
 15                   "The -- the Coronial Service in Ontario
 16                   seeks and is successful in securing it
 17                   for itself a high public role.  That
 18                   profile ensures that the public is
 19                   aware of both the existence of the
 20                   service and the mechanism of
 21                   investigating deaths about which there
 22                   is any concern or problem.  This acts
 23                   as a positive encouragement to report
 24                   deaths about which any concern arises."
 25                 This is in the context of the Shipman

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1 Inquiry. It appears that the Commissioner was very 2 interested in hearing that from Dr. Young. 3 And then if we go to the next paragraph, 4 which is 18.5, the next full paragraph, and we see that 5 over on page 7 -- my apologies. I knew it would be 6 confusing to simply excerpt it. 7 And reading from that paragraph: 8 "Following a report of a death, 9 investigating coroners are instructed 10 to attend the scene of death, unless 11 there's good reason for not doing so. 12 Investigating coroners should complete 13 a certificate confirming that he/she 14 has legally seized the body. 15 Investigating coroners are instructed 16 considered -- to consider the worst 17 possibility or 'think dirty' and to 18 liaise with the family in investigating 19 the death." 20 And I just want to underscore that because 21 I have -- it -- it appears that that was accepted by the 22 Inquiry, that -- that "think dirty" was a good idea, at 23 least, in the context of these cases. And it was -- it 24 was affirmed by the Shipman Inquiry, and there was some 25 concern.

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1 And I've put in just a brief series of 2 Letters to the Editor in the British Medical Journal, and 3 that is, if you turn to Volume II, Tab 27, it's just a 4 document entitled "Rapid Responses" -- something I 5 quickly pulled off the internet -- but it -- it appears 6 to show that there was some -- some real concern about 7 this, about the idea of "think dirty", and in particular, 8 the -- the last letter. 9 And if we could just go to page 2. 10 11 (BRIEF PAUSE) 12 13 MS. JULIE KIRKPATRICK: All right. At 14 the very bottom: 15 "It would be extremely unfortunate if 16 general reporting of the Shipman 17 Inquiry gave renewed life to think the 18 "think dirty" catch phrase would just 19 cause so much harm in the investigation 20 of infant deaths." 21 And this is in the British context. So, 22 can you offer a comment on that debate, on the "think 23 dirty" debate? 24 DR. HELEN WHITWELL: Well, these letters 25 were written in 2003, weren't they? Yeah, so we were in

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1 the period of time when there had been a number of either 2 acquitted -- individuals acquitted at trial or appeals. 3 And in terms of those cases which actually 4 were not shaken baby cases -- they were potential 5 suffocation or -- they were unexplained infant deaths. 6 MS. JULIE KIRKPATRICK: Mm-hm. 7 DR. HELEN WHITWELL: They -- there was 8 great concern about a number of those cases that that 9 attitude seemed to have held in their investigation and 10 potentially, prosecution. 11 MS. JULIE KIRKPATRICK: And here after 12 the Shipman Inquiry, the -- we see it coming up again? 13 DR. HELEN WHITWELL: Yes, that's correct. 14 MS. JULIE KIRKPATRICK: Okay. 15 DR. HELEN WHITWELL: But these letters to 16 me, and I'm afraid I haven't had -- you know, you've 17 presented them to me, so I have -- I've been able to skim 18 over. What -- what they seem to be doing is looking at 19 the Shipman Inquiry conclusions; well, then commenting, 20 particularly on the context of infant deaths correctly 21 so. 22 MS. JULIE KIRKPATRICK: Correct. So is 23 this a pendulum that just keeps swinging? 24 DR. HELEN WHITWELL: Well, I think the 25 general accepted view is that one hopes it doesn't swing

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1 -- back again. 2 MS. JULIE KIRKPATRICK: Okay. And that 3 brings me -- 4 COMMISSIONER STEPHEN GOUDGE: Can I just 5 ask a question about -- can you bring it back up, 6 Christopher, 302055? This is the Shipman Report. 7 302055, page 11. 8 9 (BRIEF PAUSE) 10 11 COMMISSIONER STEPHEN GOUDGE: I just want 12 to get your views on paragraph 11.68 where Madam Justice 13 Smith recites the ethos that she says is essential in 14 viewing the circumstances of any particular death. 15 She describes a high index of suspicion 16 which is essential that any system of death investigation 17 is to work. And she defines that as simply not 18 approaching ones task on the assumption that all will be 19 well. 20 Okay, do you see that on para -- 21 DR. HELEN WHITWELL: Yes, I do. Yes. 22 Yeah. 23 COMMISSIONER STEPHEN GOUDGE: How does 24 that sit with what I take to be the ethos that you and 25 Dr. Saukko have displayed of "think objective".

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1 How does that...? 2 DR. HELEN WHITWELL: Well, I -- I think 3 that that paragraph is referring to partic -- the system 4 in England and Wales where the -- there is criteria where 5 a death is reported to the coroner -- 6 COMMISSIONER STEPHEN GOUDGE: Mm-hm. 7 DR. HELEN WHITWELL: -- and our Coroner 8 System, I'm sure as everybody's aware, have not -- don't 9 have the same role, as I understand they do here. 10 COMMISSIONER STEPHEN GOUDGE: Right. 11 DR. HELEN WHITWELL: So what happens is 12 there are various guidelines when a death must be 13 reported to the coroner -- 14 COMMISSIONER STEPHEN GOUDGE: Right. 15 DR. HELEN WHITWELL: -- and where the 16 doctor can not issue a death certificate. That's fine, 17 the telephone call goes in. The problem is, and it is a 18 major problem in England and Wales, because we don't 19 really have proper death investigation systems. 20 And that's what the Shipman Inquiry 21 highlighted. So the telephone call goes in. Now when I 22 say proper death investigation systems, the person, for 23 example, who may be called to a certain death at home may 24 be an inexperienced police officer who possibly hasn't 25 even seen a dead body.

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1 So he goes and has -- has a look at it, 2 and -- and that -- that level may be left to somebody who 3 -- who -- not through their own fault -- is not 4 experienced at assessing a death scene investigation. 5 So either the police officer or the 6 coroner's officer is left to do the investigation and 7 that -- that system, unlike where you have a proper death 8 investigation system, has great deficiencies, because it 9 depends upon the individual and, in fairness, how 10 enthusiastic or otherwise they are to investigating the 11 issues. And -- 12 COMMISSIONER STEPHEN GOUDGE: So that -- 13 DR. HELEN WHITWELL: -- in the sut -- I 14 mean clearly, if somebody's got ten (10) bullets in them, 15 then anybody could say that was suspicious. 16 COMMISSIONER STEPHEN GOUDGE: Okay. So 17 do I take your view to be that in the context of that 18 kind of death investigation, where it may well be an 19 untrained police officer, that the kind of ethos Lady 20 Justice Smith articulates, is appropriate? 21 DR. HELEN WHITWELL: Yes. In fair -- in 22 fair ne -- yes, that's correct. But probably she was 23 also suggesting that the need for a proper system to 24 investigate these -- these cases rather than the rather 25 hodgepodge system we've got at the moment.

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1 COMMISSIONER STEPHEN GOUDGE: Okay. Now 2 let me transport you to our system. Is there ever any 3 room, in the view of either of you, for what Lady Justice 4 Smith calls a high index of suspicion on the part of the 5 pathologist, the forensic pathologist? 6 Take, for example, a case that one would 7 define or that is brought to the pathologist as one with, 8 where the circumstances are suspicious. Is that an 9 appropriate ethos to apply in such a case? 10 DR. PEKKA SAUKKO: Well, I think one has 11 to have an open mind and consider all -- consider all 12 possibilities. And -- 13 COMMISSIONER STEPHEN GOUDGE: That is 14 your bedrock, is it not? 15 DR. PEKKA SAUKKO: Yeah, yeah. 16 COMMISSIONER STEPHEN GOUDGE: Yes. And 17 what about you, Dr. Whitwell? 18 DR. HELEN WHITWELL: The same. You 19 look -- 20 COMMISSIONER STEPHEN GOUDGE: So does 21 that -- 22 DR. HELEN WHITWELL: -- look at the facts 23 and be objective -- 24 COMMISSIONER STEPHEN GOUDGE: -- mean in 25 the terms that Lady Justice Smith used even in a case

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1 that would come to you with what one, a layperson, might 2 call suspicious circumstances, the pathologist should, in 3 your terms, be open to all possibilities rather than have 4 a high index of suspicion? 5 DR. HELEN WHITWELL: That's correct. 6 DR. PEKKA SAUKKO: That's correct. 7 COMMISSIONER STEPHEN GOUDGE: Okay. 8 Thank you. Thanks, Ms. Kirkpatrick. 9 MS. JULIE KIRKPATRICK: And I think this 10 brings me to almost my last question. I'm going to be 11 finishing early, Commissioner. 12 COMMISSIONER STEPHEN GOUDGE: Well, isn't 13 that good news. 14 15 CONTINUED BY MS. JULIE KIRKPATRICK: 16 MS. JULIE KIRKPATRICK: The -- and -- and 17 following along with the question you just answered. 18 What I was going to suggest to you is that there's a -- a 19 real possibility, given what we've talked about, given 20 the -- the pressures that sort of -- I suppose I would 21 characterize as the pressures that come to bear in the 22 autopsy room. 23 The police are there; people want answers. 24 The pathologist is the -- is the scientist. The 25 pathologist is the one examining the body. The

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1 pathologist is the one who can give answers, so of 2 course, there's going to be that pressure. 3 In any Death Investigation System, isn't 4 it, therefore, the pathologist who can be the bedrock, 5 who can be the ballast; the objective central check on 6 the system? The pathologist, in a perfect world, could, 7 in fact, be the filter. There's all the circumstantial 8 evidence swirling around a death investigation. 9 There's all sorts of information. You 10 know, is the CAS involved? Was there domestic violence? 11 Was there -- there's all sorts of things that can -- that 12 can be brought in and that's all relevant, but isn't -- 13 can the pathologist not be the steady calm and take the 14 time, as Dr. Saukko has said, and not give the response 15 until they're good and ready? 16 DR. HELEN WHITWELL: Well, that -- 17 MS. JULIE KIRKPATRICK: Do you see that 18 potential? 19 DR. HELEN WHITWELL: -- that's the 20 correct approach. Whether or not that influences anybody 21 else is -- is a different issue. 22 MS. JULIE KIRKPATRICK: So that's what 23 we're aiming for. So -- so my last question then is 24 this: What do you need to do that job? 25 As a forensic pathologist, given what

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1 we've just talked about, what do you need to be able to 2 be that ballast or be that filter in the Death 3 Investigation System? 4 DR. PEKKA SAUKKO: Well, you need a good 5 education and training in the profession; structured 6 specialist training. And, of course, an environment 7 where you can consult other professionals if you don't 8 know the answer yourself; have a good continuing medical 9 education. 10 I would also prefer to have a system where 11 you combine teaching research and routine; that you have 12 inter-play between all these aspects. 13 MS. JULIE KIRKPATRICK: Could you say 14 those -- 15 COMMISSIONER STEPHEN GOUDGE: Why? 16 DR. PEKKA SAUKKO: Well, if we look -- we 17 can look back about two hundred (200) years of forensic 18 pathology. The first institute was established in 19 Vienna, 1804, and I think the -- the first chair in 20 forensic medicine in the English speaking world was 21 established in Edinburgh in 1807. 22 And if we look at the literature, the 23 majority of the work has been done by the academic 24 institutions -- the research. And as we know very well 25 today, there are still lots of open questions. We need

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1 research. 2 Who else would do the research then 3 academic institutions so for as pathology? 4 COMMISSIONER STEPHEN GOUDGE: Okay. I 5 hear you implying, Dr. Saukko, that when you say the best 6 environment is one that combines teaching, research, and 7 what I would call service, that is the performance of the 8 pathology -- 9 DR. PEKKA SAUKKO: Yeah, service. Yeah. 10 COMMISSIONER STEVEN GOUDGE: -- that the 11 pathology service will be best done in such an 12 environment? 13 DR. PEKKA SAUKKO: Exactly. 14 COMMISSIONER STEVEN GOUDGE: And is that 15 because it is likely to be informed -- it is more likely 16 to be informed by evolution of good science than if the 17 service is not part of such a triumvirate? 18 DR. PEKKA SAUKKO: Exactly. 19 COMMISSIONER STEVEN GOUDGE: Do you agree 20 with that, Dr. Whitwell? 21 DR. HELEN WHITWELL: Yes, I do. I think 22 the other important thing is that -- as Dr. Saukko has 23 all ready said that pathologists work together, but to 24 have a -- to develop a rigorous system of peer review and 25 audit of -- of standards, so that there's a cross-

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1 checking system. 2 COMMISSIONER STEVEN GOUDGE: Right. You 3 can do that without combining it with teaching and 4 research though? 5 DR. HELEN WHITWELL: That's correct. 6 Yes, you can. 7 COMMISSIONER STEVEN GOUDGE: How 8 important is the element of combining it with teaching 9 and research? 10 Because, frankly, that says a lot about 11 the setting in which the service institute is to rest. 12 It means its got to have some close connection with the 13 post-secondary community, with Universities. 14 Isn't that right, Dr. Saukko? 15 DR. PEKKA SAUKKO: Correct. 16 COMMISSIONER STEVEN GOUDGE: How 17 important is that, Dr. Whitwell? 18 DR. HELEN WHITWELL: Well, in my view 19 it's very important. It -- unfortunately in England and 20 Wales, it's -- hasn't -- the University departments have 21 closed -- many University departments have closed. The 22 undergraduates in England and Wales get minimal teaching 23 in forensic medicine or forensic pathology, if at all, 24 which -- which I don't think benefits potential medical - 25 - medical graduates. I think the research is important

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1 in order that the speciality develops and continues. 2 DR. PEKKA SAUKKO: That's one (1) 3 important aspect, and another one is that when you're 4 involved in research, you realize very quickly how little 5 we know. And it may be easier to maintain an objective 6 attitude towards various things because you know that you 7 are not so dogmatic because I believe a few are -- 8 COMMISSIONER STEVEN GOUDGE: So it's 9 easier to stay within what we know if you are researching 10 about what we don't know? 11 DR. PEKKA SAUKKO: Yes. 12 MS. JULIE KIRKPATRICK: Those are my 13 questions. Thank you, Commissioner. Thank you. 14 COMMISSIONER STEVEN GOUDGE: Thanks, Ms. 15 Kirkpatrick. 16 Mr. Sokolov...? 17 18 CROSS-EXAMINATION BY MR. LOUIS SOKOLOV: 19 MR. LOUIS SOKOLOV: Good afternoon, 20 Doctors. My name is Louis Sokolov, and I represent 21 AIDWYC, the Association and Defence of the Wrongly 22 Convicted. 23 The first area I'd like to raise with you 24 is the issue of testimony of forensic pathologists. And 25 both of you identified severe deficiencies in the manner

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1 in which Dr. Smith gave evidence in some of the cases 2 that you looked at, you will recall. And -- and you will 3 also be aware that issues in respect of how forensic 4 pathologists give their evidence are central to the 5 mandate of this Inquiry. 6 With -- with that in mind, I'd like us to 7 look at the issues from a number of perspectives. And 8 first of all I take it that you would both agree that 9 formal training of forensic pathologists in the man -- in 10 respect of the manner in which they should give evidence 11 is a good idea. 12 DR. PEKKA SAUKKO: Yes. 13 DR. HELEN WHITWELL: Yes. 14 MR. LOUIS SOKOLOV: And would you also 15 agree with me that professionals of all kinds can get 16 into bad habits as we get older, and that periodic 17 refresher training on this topic -- 18 COMMISSIONER STEVEN GOUDGE: Careful, Mr. 19 Sokolov. 20 MR. LOUIS SOKOLOV: Yeah, yourself 21 excluded, Commissioner. I was just referring to everyone 22 else in the room. 23 24 CONTINUED BY MR. LOUIS SOKOLOV: 25 MR. LOUIS SOKOLOV: Would -- would you

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1 agree with me that periodic refresher training on this 2 topic is a good idea as well, to -- 3 DR. PEKKA SAUKKO: That's correct. 4 DR. HELEN WHITWELL: Correct. 5 MR. LOUIS SOKOLOV: -- as a check against 6 bad habits? 7 DR. HELEN WHITWELL: Yes. 8 MR. LOUIS SOKOLOV: Would you also agree 9 that written standards for testimony can be developed, 10 not only for the benefit of forensic pathologists 11 themselves, but to make them accessible to the bench and 12 the bar to determine whether forensic pathologists are 13 giving evidence within exce -- within acceptable 14 boundaries? 15 Dr. Whitwell...? 16 DR. HELEN WHITWELL: I'm Sorry, could you 17 just -- do -- do you mean reports, or testimony? 18 MR. LOUIS SOKOLOV: I'm talking about 19 testimony here. That re -- 20 DR. HELEN WHITWELL: Testimony, okay. 21 MR. LOUIS SOKOLOV: -- standards or 22 guidelines can be prepared for forensic path -- 23 pathologists setting out the app -- appropriate 24 boundaries for giving evidence in Court? 25 DR. HELEN WHITWELL: Yes, that's correct.

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1 MR. LOUIS SOKOLOV: And that that can be 2 a useful tool not only for the forensic pathologists 3 themselves, but for judges and lawyers to be able to 4 consult to know whether the forensic pathologist is 5 within the proper boundaries in the manner in which he or 6 she gives evidence? 7 DR. HELEN WHITWELL: Yes, it's probably 8 more for judges because as ours is an adversarial system, 9 the lawyer represents whoever, and it's -- it's a rather 10 different brief from a forensic pathologist acting to the 11 court. 12 MR. LOUIS SOKOLOV: Okay. And, Dr. 13 Saukko...? 14 DR. PEKKA SAUKKO: Well, I -- I really 15 can't say. I ought to see those guidelines first to -- 16 to comment, so -- 17 MR. LOUIS SOKOLOV: But it -- 18 DR. PEKKA SAUKKO: -- I've never seen 19 any, -- 20 MR. LOUIS SOKOLOV: In -- 21 DR. PEKKA SAUKKO: -- such guidelines. 22 MR. LOUIS SOKOLOV: -- in theory the -- 23 DR. PEKKA SAUKKO: Yeah. 24 MR. LOUIS SOKOLOV: -- the idea of 25 guidelines is a good one then?

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1 DR. PEKKA SAUKKO: In general, if they 2 are good guidelines then, yes. 3 MR. LOUIS SOKOLOV: Yes. Now, Dr. Whit - 4 - Whitwell, you testified in response to a question of 5 the Commissioner yesterday that to some extent it is the 6 court system itself that gives discipline to the manner 7 in which the expert testifies. You may recall that? 8 DR. HELEN WHITWELL: I don't recall my 9 exact words, but I'm -- it was along those lines, yes. 10 MR. LOUIS SOKOLOV: Right. And you'd 11 agree with me that the effectiveness of that discipline 12 depends upon the level of the -- of knowledge or 13 competence on the part of the lawyers, in a particular 14 case, or indeed on the part of the judge? 15 DR. HELEN WHITWELL: To some extent, it 16 may do, yes. 17 MR. LOUIS SOKOLOV: And would you agree 18 with me that in order to effectively carry out that 19 discipline, the bar and indeed the bench need to be 20 appropriately skilled in how to recognize the appropriate 21 boundaries of expert testimony? 22 DR. HELEN WHITWELL: Yes. 23 MR. LOUIS SOKOLOV: And, Dr. Saukko...? 24 DR. PEKKA SAUKKO: Yes. 25 MR. LOUIS SOKOLOV: And, Dr. Saukko, you

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1 said yesterday that you've been involved in actually 2 training some appellate court judges in Finland in 3 respect of assessing the boundaries of expert testimony? 4 DR. PEKKA SAUKKO: Yes. 5 MR. LOUIS SOKOLOV: And as I understand 6 the Finnish justice system, which is probably no better 7 than Dr. Whitwell understands the geography of the 8 province of Ontario -- 9 DR. HELEN WHITWELL: Perhaps less, 10 actually. 11 MR. LOUIS SOKOLOV: -- the -- the 12 appellate court judges will actually rehear cases that 13 are in the trial court, is that right? 14 DR. PEKKA SAUKKO: Yeah. 15 MR. LOUIS SOKOLOV: All right. And could 16 you just tell us a little bit more about the kind of 17 training that you have done in that context? 18 DR. PEKKA SAUKKO: Well, we -- that was 19 on one (1) occasion and it included the province of 20 Lapland. We -- we have one (1) appeal court in -- in 21 Germany (phonetic), I mean, it's close -- close to the 22 polar cir -- Arctic Circle. And I was doing that with a 23 colleague of mine, who is a forensic psychiatrist. 24 And we were mainly concentrating on -- on 25 how to recognize an expert. And, for instance, I tried

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1 to -- to define the hallmarks of a good witness and a bad 2 witness. And trying to make clear that it's not always 3 obvious that even if someone has a high academic degree, 4 the position, it doesn't necessarily guarantee that he or 5 she is a -- is an expert witness in that area. 6 For instance, being a professor doesn't 7 necessarily guarantee that you are -- and I can tell you 8 that I was testifying as expert witness for -- at the 9 same appeal court a few months later, and we lost our 10 case so. 11 MR. LOUIS SOKOLOV: You may have taught 12 them too well, is that -- is that what you are... 13 And -- and have you also been involved in 14 the -- the training of advocates, as well? 15 DR. PEKKA SAUKKO: No, I've -- I 16 regularly hold courses in forensic medicine for the law 17 students at our university, but not advocates. 18 MR. LOUIS SOKOLOV: And is that a part of 19 the required curriculum in Finland that the -- 20 DR. PEKKA SAUKKO: It's optional -- it's 21 optional in -- in criminal law. 22 MR. LOUIS SOKOLOV: Let me turn then to 23 another area briefly, and that's the area that Mr. Ortved 24 spent some time on yesterday afternoon. The degree to 25 which pathologists can appropriate -- appropriately rely

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1 upon circumstantial evidence in making their findings. 2 And I just wanted to go a little bit 3 further into this area. Dr. Saukko, let's go back to the 4 example you raised, and that was the example of how some 5 pathologists in Finland might make a finding of alcohol 6 poisoning on the basis of circumstantial evidence of 7 empty Vodka, or half empty Vodka bottles, in the absence 8 of toxicological evidence of alcohol in the blood. 9 Do you recall? 10 DR. PEKKA SAUKKO: Well, I've encountered 11 such -- when I've assessed our -- our medicolegal system 12 ten (10) years ago, I had a -- as a help -- a database -- 13 a national -- we had -- in those days, we had a national 14 database with some information -- some basic information 15 from each case where a medicolegal autopsy had taken 16 place. 17 We had, at that time, some eighty thousand 18 (80,000) cases in the database. And I analysed 19 individual -- the performance of individual forensic 20 pathologists who had at least a thousand (1,000) cases in 21 -- within the database, and that was one (1) minor part 22 that I found cases with zero blood alcohol level, but the 23 diagnosis was alcohol intoxication. 24 MR. LOUIS SOKOLOV: And I raise that 25 example, and I assume you raised that example yesterday,

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1 because it really puts the issue quite starkly. And you 2 said that you weren't comfortable obviously making 3 findings on that basis, on the basis of purely 4 circumstantial evidence. 5 DR. PEKKA SAUKKO: That's correct. 6 MR. LOUIS SOKOLOV: And I'm correct, I 7 take it, that you don't see those findings as arising 8 from pathology? 9 DR. PEKKA SAUKKO: I'm sorry. I -- 10 MR. LOUIS SOKOLOV: That -- that you 11 wouldn't see a finding of alcohol poisoning in that 12 context arising from pathology and that you understand 13 that the specific expertise you offer the Court is that 14 of an expert pathologist -- 15 DR. PEKKA SAUKKO: Yes. 16 MR. LOUIS SOKOLOV: -- correct? And that 17 you're conscious of your proper role as an expert, is to 18 offer the Court the specialized expertise that you have, 19 correct? 20 DR. PEKKA SAUKKO: Yes, that's correct. 21 MR. LOUIS SOKOLOV: And a judge or a jury 22 doesn't need your special expertise to draw an inference 23 from empty bottles that the deceased may have been 24 drinking? 25 That's something that a finder of fact can

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1 make themselves. 2 DR. PEKKA SAUKKO: That's correct. 3 MR. LOUIS SOKOLOV: It's a commonsense 4 inference you don't need a forensic pathologist to make? 5 DR. PEKKA SAUKKO: I think every forensic 6 pathology -- path -- pathologist needs commonsense. If 7 you don't have commonsense there -- there's a problem, 8 and I -- I think you can't teach it at the University. 9 MR. LOUIS SOKOLOV: Fair enough. Would I 10 be correct, though, that you see your role as providing 11 scientific evidence to the Court, not speculation on the 12 basis of inferences that any layperson can make? 13 Is that fair? 14 DR. PEKKA SAUKKO: Right, that's correct. 15 MR. LOUIS SOKOLOV: And Dr. Whitwell, I 16 see you nodding. You'd agree with that as well? 17 DR. HELEN WHITWELL: Yes. 18 MR. LOUIS SOKOLOV: And to -- to rely on 19 circumstantial evidence in context where there is an 20 absence of pathological evidence, or where the 21 circumstantial evidence outweighs the pathological 22 evidence, in your view does that go beyond the role -- 23 the proper role of an expert forensic pathologist? 24 DR. PEKKA SAUKKO: Yes. If there's no 25 pathological evidence.

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1 MR. LOUIS SOKOLOV: Or if it -- or if the 2 circumstantial evidence substantially outweighs the 3 pathological evidence? 4 DR. PEKKA SAUKKO: It's difficult to say. 5 I would need to have an example. 6 MR. LOUIS SOKOLOV: All right. 7 COMMISSIONER STEVEN GOUDGE: Suppose an 8 example, Dr. Saukko, where the toxicology came back and 9 showed high blood alcohol content. Would you, in writing 10 your report, include in it the strewn empty bottles 11 around the body? 12 DR. PEKKA SAUKKO: Of course we'd give a 13 analogy -- statement -- a short history of the 14 circumstances of -- 15 COMMISSIONER STEVEN GOUDGE: Right. 16 DR. PEKKA SAUKKO: -- of every -- every 17 case. 18 COMMISSIONER STEVEN GOUDGE: But would 19 you use that in your own thinking in reaching your cause 20 of death, the alcohol poisoning? Or would you just use 21 the toxicology? 22 DR. PEKKA SAUKKO: Well, the main issue 23 is the toxicology. 24 COMMISSIONER STEVEN GOUDGE: Would you 25 simply exclude from your mind the bottles around the

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1 body? 2 DR. PEKKA SAUKKO: No, no. Of course it 3 would support. 4 COMMISSIONER STEVEN GOUDGE: It is some 5 support then? 6 DR. PEKKA SAUKKO: Of course. It's 7 support. 8 COMMISSIONER STEVEN GOUDGE: So once you 9 have the pathology foundation, you can build in support 10 from the circumstantial -- 11 DR. PEKKA SAUKKO: Yes. 12 COMMISSIONER STEVEN GOUDGE: --information. 13 14 CONTINUED BY MR. LOUIS SOKOLOV: 15 MR. LOUIS SOKOLOV: But just to follow 16 from that, would you have to, yourself, be confident of 17 the strength of the toxicological evidence before you 18 would be comfortable drawing upon the circumstantial 19 evidence to support it? 20 DR. PEKKA SAUKKO: Yes. 21 MR. LOUIS SOKOLOV: And just on a related 22 point, if we could turn up PFP301189. This is the review 23 of the ten (10) systemic issues that Dr. Pollanen did. I 24 believe it's in the new Volume I, Tab 17. 301189. 25

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1 (BRIEF PAUSE) 2 3 MR. LOUIS SOKOLOV: I -- I see that, Dr. 4 Saukko and Dr. Whitwell, I believe you have the paper 5 copy in front of you? Perhaps we could just -- 6 DR. HELEN WHITWELL: Yes. 7 DR. PEKKA SAUKKO: Yes. 8 MR. LOUIS SOKOLOV: -- just proceed. 9 I'll read out the -- the relevant portion. And you'll 10 recall -- here we are. If we go to page 6, which was the 11 sliding scale of certainty. And you'll recall -- or you 12 may recall that Mr. Ortved took you to passages at the 13 bottom of this page yesterday. 14 And I just want to continue onto the next 15 page, which is page 7, where Dr. Pollanen talked about a 16 detailed examination of the overview reports; that's the 17 first full paragraph. It shows that: 18 "Many of the diagnostic issues were 19 quite complex." 20 And he went on to described five (5) 21 forces, as he referred to them, that were relevant to the 22 outcomes of the cases. And I'm concerned with force 23 number 2: 24 "The misinterpretation was reinforced 25 by the presence of circumstantial

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1 information or autopsy findings that 2 indirectly supported or failed to 3 negate the misinterpretation. 4 Do -- do you see that? 5 DR. PEKKA SAUKKO: Yes. 6 MR. LOUIS SOKOLOV: And from your review 7 of the cases that you reviewed and your understanding of 8 the cases as a whole, is that something that you would 9 agree with, Dr, Saukko? 10 DR. PEKKA SAUKKO: Well, I -- I really 11 don't know much the circumstantial information has -- 12 MR. LOUIS SOKOLOV: And, Dr. Whitwell? 13 DR. PEKKA SAUKKO: -- influenced. 14 DR. HELEN WHITWELL: I -- I think the 15 point is a generally very good point. 16 MR. LOUIS SOKOLOV: And another way of 17 saying that, at least in some of the cases that have 18 given rise to this public inquiry, I'd suggest, is that 19 reliance on circumstantial evidence can contribute to 20 misinterpretation of pathological findings. 21 Is that a proposition that you agree with, 22 Dr. Saukko? 23 DR. PEKKA SAUKKO: Which point is that? 24 MR. LOUIS SOKOLOV: That -- that's not 25 written there, that' a -- a proposition that I'm putting

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1 to you as just a -- 2 DR. PEKKA SAUKKO: Could you repeat it -- 3 MR. LOUIS SOKOLOV: -- as a way of 4 rephrasing it; is that reliance on circumstantial 5 evidence can, in some circumstances, contribute to 6 misinterpretation of pathological findings? 7 DR. PEKKA SAUKKO: Yeah, that -- that's 8 possible. 9 MR. LOUIS SOKOLOV: And Dr. Whitwell? 10 DR. HELEN WHITWELL: Yes. 11 MR. LOUIS SOKOLOV: And, therefore, would 12 you agree with me that forensic pathologists should, at a 13 minimum, exercise a high level of caution before basing 14 their findings in whole or in part on circumstantial 15 evidence? 16 Dr. Saukko...? 17 DR. PEKKA SAUKKO: Yes. 18 MR. LOUIS SOKOLOV: And, Dr. Whitwell? 19 DR. HELEN WHITWELL: Yes. 20 MR. LOUIS SOKOLOV: Thank you. 21 COMMISSIONER STEPHEN GOUDGE: Thanks, Mr. 22 Sokolov. We will rise now until two o'clock, and come 23 back with you, Ms. Manischen. And given what is ahead of 24 us, I propose that we keep on trucking right through 25 until we conclude this afternoon. So if you would come

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1 back prepared to do that, that would be great. 2 So we will be back at two o'clock. 3 4 --- Upon recessing at 12:45 p.m. 5 --- Upon resuming at 2:00 p.m. 6 7 THE REGISTRAR: All Rise. Please be 8 seated. 9 COMMISSIONER STEPHEN GOUDGE: Mr. 10 Manischen...? 11 12 CROSS-EXAMINATION BY MR. JEFFREY MANISCHEN: 13 MR. JEFFREY MANISCHEN: Thank you, Mr. 14 Commissioner. Dr. Saukko, and, Dr. Whitwell, I'm here on 15 behalf of the Ontario Criminal Lawyer's Association. And 16 what I'm going to focus on, particularly, will be how a 17 syndrome such as the Shaken Baby Syndrome can develop, 18 and how it can be and has been challenged, to evaluate 19 and perhaps, learn from the history of it because 20 syndromes can be identified in the future and may create 21 some difficulties as medical science might evolve. 22 A question was asked, by the Commissioner, 23 of Dr. Pollanen last week when he described Shaken Baby 24 Syndrome about it's the recorded wisdom; how did it 25 become recorded?

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1 And he indicated that it was based, in 2 part, on the triad and based on confessions that might 3 have been made by perpetrators. For you, Dr. Whitwell, 4 for your involvement in Shaken Baby Syndrome research, 5 you've gone back and have identified that it has been the 6 concept that started many years ago. 7 Perhaps particularly with the work done by 8 Caffey in 1946? 9 DR. HELEN WHITWELL: Correct. 10 MR. JEFFREY MANISCHEN: And that between 11 Caffey's work in 1946 and the work by Dr. Duhaime in 12 1987 -- 13 DR. HELEN WHITWELL: I think you -- 14 probably the papers you're referring to are actually in 15 the '70's. 16 MR. JEFFREY MANISCHEN: All right. The 17 work by Caffey then early -- was it early '70's? 18 DR. HELEN WHITWELL: Yes. 19 MR. JEFFREY MANISCHEN: All right. 20 DR. HELEN WHITWELL: Late '60 -- yeah, 21 there was a number, okay. 22 MR. JEFFREY MANISCHEN: Caffey's work 23 gave rise to the -- the view that vigorous shaking of an 24 infant would lead to a triad of symptoms, is that right? 25 DR. HELEN WHITWELL: Correct.

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1 MR. JEFFREY MANISCHEN: And initially, am 2 I correct that the way the triad was originally 3 characterized; it was retinal hemorrhage, subdural 4 hematoma, and for a time, it was no sign of external head 5 trauma? 6 DR. HELEN WHITWELL: Yes, that's true. 7 MR. JEFFREY MANISCHEN: And that even 8 precedes the cerebral edema; the original third component 9 of the triad was the absence of sign of external head 10 trauma, correct? 11 DR. HELEN WHITWELL: Yes. 12 MR. JEFFREY MANISCHEN: And the idea was 13 when we had the nature of those injuries, and we didn't 14 see some apparent cause, it was concluded that shaking -- 15 vigorous shaking -- is what caused those severe injuries? 16 DR. HELEN WHITWELL: Correct. 17 MR. JEFFREY MANISCHEN: And it was 18 considered as well, it was the combination of factors, 19 not any of them individually, but the combination of the 20 retinal hemorrhage and subdural hematoma? That was the 21 way it was originally thought? 22 From the standpoint from how it actually 23 had become a syndrome as such, are you familiar with the 24 concept of evidence-based medicine? 25 DR. HELEN WHITWELL: Yes.

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1 MR. JEFFREY MANISCHEN: And would I be 2 correct that the original development of the Shaken Baby 3 Syndrome did not come about as a result of the 4 application of principles of evidence-based medicine? 5 Would I be correct? 6 DR. HELEN WHITWELL: Yes, you would. 7 MR. JEFFREY MANISCHEN: And from the 8 standpoint of even trying to evaluate, perhaps, whether 9 we call it the logical path of working forwards and 10 working back, it was considered that vigorous shaking 11 could lead to the triad? 12 DR. HELEN WHITWELL: Correct. 13 MR. JEFFREY MANISCHEN: And so then the 14 logic worked backwards; if we have the triad, the 15 conclusion was it was as a result of vigorous shaking? 16 DR. HELEN WHITWELL: Correct. 17 MR. JEFFREY MANISCHEN: And I may 18 mispronounce the word, it was so strongly believed, it 19 was considered to be pathopneumonic? A vigorous shaking? 20 DR. HELEN WHITWELL: Yes, by some 21 authors, yes. 22 MR. JEFFREY MANISCHEN: Virtually 23 diagnostic? 24 DR. HELEN WHITWELL: Yes. 25 MR. JEFFREY MANISCHEN: And so that led

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1 to firmly held views that many pathologists did adhere 2 to? 3 DR. HELEN WHITWELL: Many doctors. 4 MR. JEFFREY MANISCHEN: And that's all 5 without an evidentuary basis and research? 6 DR. HELEN WHITWELL: Correct. 7 MR. JEFFREY MANISCHEN: And then -- in 8 fact, there are even those doctors -- Dr. Pollanen 9 indicated to us that even today, notwithstanding the 10 advances -- there are some doctors that would still say 11 that it was a shaking incident that even from retinal 12 hemorrhages alone? Would you agree or disagree with what 13 he said? 14 DR. HELEN WHITWELL: Yes, I think some 15 would have that view, yes. 16 MR. JEFFREY MANISCHEN: Then we get to 17 1987, and the work done by Dr. Duhaime provided a basis 18 to, perhaps, reconsider whether the shaking alone could 19 cause the injuries, correct? 20 DR. HELEN WHITWELL: Yes. 21 MR. JEFFREY MANISCHEN: And through this, 22 of course, there was no bio-mechanical testing that was 23 available to be able to establish whether the shaking 24 alone could, in fact, cause the injuries. 25 DR. HELEN WHITWELL: That's correct.

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1 MR. JEFFREY MANISCHEN: And that's where 2 Dr. Duhaime added into it; the concept of the need for 3 some potential impact. 4 DR. HELEN WHITWELL: Yes. 5 MR. JEFFREY MANISCHEN: And you've 6 indicated that there's more work to be done with respect 7 to that, is that correct? 8 DR. HELEN WHITWELL: Yes, there is. 9 MR. JEFFREY MANISCHEN: And that's even 10 with respect to the degree of force needed to produce the 11 injuries which now, at this stage, we would include 12 cerebral edema. 13 DR. HELEN WHITWELL: Correct. 14 MR. JEFFREY MANISCHEN: And so, from the 15 standpoint of trying to identify, in a criminal law 16 context, of course, we're looking at the potential for 17 accidental cause, as opposed to non-accidental cause. 18 DR. HELEN WHITWELL: Correct. 19 MR. JEFFREY MANISCHEN: And the degree -- 20 the minimal degree of force, the least amount needed -- 21 is a feature which is critical to assisting in a court 22 deciding accidental, non-accidental, am I correct? 23 DR. HELEN WHITWELL: Yes. 24 MR. JEFFREY MANISCHEN: And from the 25 standpoint of even determining, today, what the minimal

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1 amount of force needed is to achieve the triad; that 2 hasn't yet been determined, has it? What the least 3 amount is? 4 DR. HELEN WHITWELL: No -- no, not from 5 the biomechanical point of view, no. You're correct. 6 MR. JEFFREY MANISCHEN: Again, the 7 syndrome then, and I may be incorrect on this; you can -- 8 you can assist me. The language that was used then, was 9 no longer Shaken Baby Syndrome, but Shaken Infant Impact 10 Syndrome. 11 DR. HELEN WHITWELL: Shaken Impact 12 Syndrome. 13 MR. JEFFREY MANISCHEN: Because we now 14 needed the element of impact. 15 DR. HELEN WHITWELL: Correct. 16 MR. JEFFREY MANISCHEN: And we've heard 17 from Dr. Pollanen that things at that stage became very 18 hotly debated and polarized. Would you agree with that? 19 DR. HELEN WHITWELL: In 1987? 20 MR. JEFFREY MANISCHEN: Yes. 21 DR. HELEN WHITWELL: Yes. There -- there 22 was certainly ongoing discussion and debate, yes. 23 MR. JEFFREY MANISCHEN: Now, in relation 24 to the ongoing and discussion and debate, would it be 25 fair to characterize it as becoming very vigorous amongst

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1 the medical profession? 2 DR. HELEN WHITWELL: You could use that 3 word, yes. 4 MR. JEFFREY MANISCHEN: As, for example, 5 that there were strongly held views by those who were 6 strong adherents to the existence of the Shaken Impact 7 Syndrome. 8 DR. HELEN WHITWELL: Yes. 9 MR. JEFFREY MANISCHEN: And this is still 10 without a -- an evidence-based medicine, research 11 foundation, for that opinion. 12 DR. HELEN WHITWELL: Yes, to some extent. 13 I -- I don't think you can discount, you -- you know, all 14 -- all research. 15 MR. JEFFREY MANISCHEN: No, but -- but 16 when we speak about it from the standpoint of a -- a 17 significant body of research that enables one to be able 18 to evaluate, predict, and ultimately diagnose as one 19 would need in medical diagnosis, for example. 20 DR. HELEN WHITWELL: Yes, that's correct. 21 MR. JEFFREY MANISCHEN: That didn't 22 exist. 23 DR. HELEN WHITWELL: No, it didn't. And 24 in fact -- but in fairness, the concept of evidence-based 25 medicine is -- is relatively recent.

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1 MR. JEFFREY MANISCHEN: Certainly, but 2 I'm gonna go back and say that we had a syndrome that 3 members of the medical profession adhered to, without an 4 evidence based foundation. 5 DR. HELEN WHITWELL: Correct. 6 MR. JEFFREY MANISCHEN: And in relation 7 to the work that continued from there, it was -- it was 8 work in 2001 that you and Dr. Geddes did, that provided 9 assistance, at least in part, on the minimal amount of 10 force needed. 11 DR. HELEN WHITWELL: I think it's fair to 12 say that we identified changes which raised the issue 13 about degree of force. We didn't attempt to look at -- 14 solve it in any particular way. It wasn't that sort of 15 study. 16 MR. JEFFREY MANISCHEN: It -- it -- all 17 right. And perhaps, Dr. Saukko, I will turn to you. You 18 have written together with Dr. Knight, a text on forensic 19 pathology. Is that correct? 20 DR. PEKKA SAUKKO: Well, Dr. Knight has 21 written a text. I've made the last edition -- 22 MR. JEFFREY MANISCHEN: The fourth -- 23 DR. PEKKA SAUKKO: -- the majority of the 24 text is based on Dr. Knight's earlier -- 25 MR. JEFFREY MANISCHEN: And in relation

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1 to that, the issue of the Shaken Infant Impact Syndrome, 2 for matters of, or the syndrome in that regard, was 3 addressed in the text. Is that correct? 4 DR. PEKKA SAUKKO: Yes, that's correct. 5 MR. JEFFREY MANISCHEN: And, I have 6 provided to our Registrar, a couple of excerpts from the 7 text. And if you can locate it, Mr. Registrar, there's a 8 passage from page 193 of the text, and it may be in -- 9 the numbers are recently provided 302, possibly 302217, 10 or if you've located it for me, 13756; I see you've got 11 that. 12 If we can go to it; it would be in page 9 13 -- 193 -- within that. I don't know if you can scroll 14 down to the page -- the numbers are at the bottom of the 15 page. 16 All right. We can go back -- can we go 17 back a couple of pages from there, because that's at one 18 ninety-eight (198). Back one (1) more page please. All 19 right. 20 One ninety-three (193) on the bottom 21 paragraph on the left-hand side of the page. This is 22 dealing with the -- the issue of shaking, and it's in the 23 context of talking about acute subdural hemorrhage. 24 You've allowed for the fact that you can 25 have a lesion -- the second to last paragraph on the

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1 lefthand side: 2 "You can have a pure lesion associated 3 with a closed head injury where the 4 only other signs may be scalp bruising, 5 or even nothing at all, as blunt 6 impacts may leave no signs on the scalp 7 externally or internally, and no skull 8 fracture." 9 And to go on, Dr. Saukko, in the text that 10 you've co-authored: 11 "The latter situation is probably the 12 explanation in most of the cases 13 formally attributed to the shaking of 14 an infant. Many pediatricians and 15 pathologists have enthusiastically 16 adopted the shaking aetiology wherein 17 there was no overt sign of impact, or 18 sometimes even where there was such 19 evidence! [exclamation point] To such 20 an extent, that it is frequently 21 proffered as the favoured diagnosis. 22 However, the concept of the shaken baby 23 subdural has been strongly challenged 24 recently, as it has been shown to 25 sharing forces of the order fifty (50)

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1 times less in shaking than in impact. 2 Thus it's very probable that the 3 majority of allegedly shaken babies 4 has, in fact, had no gall (phonetic) 5 head impact which has not left any -- 6 had not left any signs on the scalp, 7 sub-scalp tissues, or skull." 8 I've just taken you through that paragraph 9 from your text, correct? From page 193, the last 10 paragraph? You're just taking a look at it? 11 12 (BRIEF PAUSE) 13 14 DR. PEKKA SAUKKO: Yes. 15 MR. JEFFREY MANISCHEN: With respect to 16 the use of some of the language, and -- and it is put in 17 -- in strong terms. You use the phrase: 18 "Many pediatricians and pathologists 19 have enthusiastically adopted the 20 shaking aetiology." 21 The concept of enthusiasm; is it meant to 22 reflect or characterize the vigour with which some 23 pediatricians and pathologists adhere to the belief in 24 the syndrome? 25 DR. PEKKA SAUKKO: Well, the wording is

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1 from Professor Knight. 2 MR. JEFFREY MANISCHEN: Do you agree with 3 it? 4 DR. PEKKA SAUKKO: We have -- have very 5 few cases in Finland, so I don't have the personal 6 experience. 7 MR. JEFFREY MANISCHEN: All right. 8 Perhaps we'll ask Doc -- Dr. Whitwell, would you agree 9 with it -- that there are many that have 10 enthusiastically adopted the shaking aetiology? 11 DR. HELEN WHITWELL: Yes. I -- I mean I 12 -- I would say adopted. Whether or not I'd use the term 13 "enthusiastic" is a slightly separate issue. 14 MR. JEFFREY MANISCHEN: All right. We'll 15 go on with the concept of diffuse axonal injury which 16 your work with Dr. Geddes indicated didn't appear to be 17 present. And I'm going to factor that into the issue of 18 force. 19 It was considered in the research prior to 20 yours in 2001 that diffuse axonal injury was a factor 21 that was seen in Shaken Impact Infant Syndrome. 22 DR. HELEN WHITWELL: That's correct. 23 MR. JEFFREY MANISCHEN: And that, in 24 turn, was used as an indication of the amount of force 25 needed, correct?

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1 DR. HELEN WHITWELL: It was, yes. 2 MR. JEFFREY MANISCHEN: Because there 3 were studies in which major motor vehicle accidents or 4 falls from second story windows led to diffuse axonal 5 injury. 6 DR. HELEN WHITWELL: Correct. 7 MR. JEFFREY MANISCHEN: So it was posited 8 the reverse if we see diffuse axonal injury, the force 9 needed to have created it was the equivalent of a major 10 motor vehicle accident or a fall from a second story 11 window? 12 DR. HELEN WHITWELL: Correct. 13 MR. JEFFREY MANISCHEN: But again that 14 logical path isn't based on science, is it? 15 DR. HELEN WHITWELL: Well, it -- it 16 wasn't -- what that was based on was -- I think, I -- I 17 mentioned yesterday, two (2) early studies in the '80s on 18 a limited number of cases with limited sampling of the 19 cases. And it's quite an interesting example of how a 20 small amount of work can get into major textbooks, and -- 21 and sort of get into the medical literature as a whole. 22 MR. JEFFREY MANISCHEN: That's exactly 23 what I wanted to ask you about. 24 What about -- can you tell us about that, 25 for the benefit of the Commissioner, because that's a

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1 situation where we've seen Dr. Smith, in, I think, the 2 Tyrell case, talking about it needing to be a fourth 3 story, as opposed to a second or a third, or a major 4 motor vehicle accident, and we don't know if we define 5 that by dollar. 6 Tell us about how that happened. How it 7 came about that it was in a couple of periodicals, and 8 ultimately, finds it way into the accepted dogma? 9 DR. HELEN WHITWELL: Well, the -- the 10 papers that were done at the time were reviewed and were 11 published, and then presumably whoever, you know -- 12 whoever the author of a textbook or whatever was use -- 13 would use the -- the basis of those papers to say that 14 diffuse axonal injury occurred in infant head injury, or 15 in Shaken Baby Syndrome. 16 MR. JEFFREY MANISCHEN: And then how does 17 it go from being in a couple of publications with basic 18 studies into being accepted in the literature as an 19 element of the amount of force needed or to negative the 20 potential for limited -- 21 DR. HELEN WHITWELL: Well, it -- it got 22 in because people quoted those chapters -- sorry, the -- 23 the reference is as being indicative to the diff -- 24 diffuse axonal injury occurred in the syndrome and it's, 25 I suppose, like any other reference; it was included and

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1 it -- it got into the literature. 2 MR. JEFFREY MANISCHEN: As part of the 3 substrata that's then part of the overall foundation? 4 DR. HELEN WHITWELL: Well -- well, it 5 illustrates and it -- it's -- I'm sure, it's not the only 6 time it suffered in -- in medical writing; that it can be 7 difficult to assess publications as to how -- how 8 accurate or correct they are. 9 MR. JEFFREY MANISCHEN: And that's an 10 illustration that, I think, Dr. Saukko indicated that the 11 fact that a publication may be peer reviewed doesn't 12 provide any real assurance that it is sound or as its -- 13 before its merit? 14 DR. PEKKA SAUKKO: That's correct. 15 MR. JEFFREY MANISCHEN: And the danger 16 then becomes when it appears in a publication that may be 17 peer reviewed, it be -- it could become part of the 18 literature and become part of the, quote, "accepted 19 science", unquote, even though it's never been fully and 20 vigorously tested. 21 DR. HELEN WHITWELL: Well, yes, it could. 22 In fairness, at the time, with the techniques and the -- 23 and the knowledge of diffuse axonal injury, it's fine 24 looking back to the '80's, but -- but at the time, it was 25 considered reasonable work.

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1 MR. JEFFREY MANISCHEN: I'm trying to 2 look forward from today, though, because the potential 3 could exist that something today could appear in a peer 4 review publication and find its way into science in the 5 future to be a part of a new syndrome. There's a risk of 6 that, I suppose. 7 DR. HELEN WHITWELL: That's correct. 8 That's correct, yes. 9 MR. JEFFREY MANISCHEN: In -- in 10 addition, on the issue of the amount of force needed, 11 that gave rise to the whole short distance fall 12 controversy, as it were; whether a short distance fall 13 can produce enough force to lead to the triad. 14 DR. HELEN WHITWELL: Correct. 15 MR. JEFFREY MANISCHEN: And it was 16 generally held that a short distance fall wasn't 17 possible. 18 DR. HELEN WHITWELL: Correct. 19 MR. JEFFREY MANISCHEN: But then there 20 have been studies, and I believe they're referred to in 21 your text, Dr. Saukko, as well, and again, this may be 22 part of Dr. Knight's component of it, where the whole 23 short distance fall controversy is described and 24 discussed. 25 DR. PEKKA SAUKKO: Yes.

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1 MR. JEFFREY MANISCHEN: And studies are 2 shown where -- although it may not be frequent, there 3 were studies in which short distance falls could lead to 4 fatal consequences with retinal hemorrhage and subdural - 5 - retinal hemorrhage and subdural hemorrhage. 6 DR. PEKKA SAUKKO: That's correct. 7 MR. JEFFREY MANISCHEN: From the 8 standpoint of the degree of enthusiasm, if I'm not 9 mistaken, Dr. Whitwell, there was -- one (1) of the 10 studies was done by a Dr. John Plunkett on short distance 11 falls and potential fatal consequences. 12 DR. HELEN WHITWELL: It was, yes. 13 MR. JEFFREY MANISCHEN: And it was put in 14 a peer review publication. 15 DR. HELEN WHITWELL: It was, yes. 16 MR. JEFFREY MANISCHEN: And it attracted 17 significant response by, was it a group of pediatricians? 18 DR. HELEN WHITWELL: Yes. It was, yes. 19 MR. JEFFREY MANISCHEN: Something like 20 over a hundred (100) of them protested or disagreed 21 vigorously with what he said? 22 DR. HELEN WHITWELL: Yes, I don't know 23 how many. 24 MR. JEFFREY MANISCHEN: But a large 25 number in the UK.

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1 DR. HELEN WHITWELL: Well, I -- I think a 2 lot were from the US, actually. 3 MR. JEFFREY MANISCHEN: All right. 4 DR. HELEN WHITWELL: I -- I really don't 5 remember if they were all United States physicians or 6 there was some UK ones, as well. 7 MR. JEFFREY MANISCHEN: All right. In 8 any event, what we had, once again, was a strong -- or 9 let's characterize it as "enthusiastic" adherence to the 10 concept short distance falls can't lead to death, 11 notwithstanding studies that showed that it did. 12 DR. HELEN WHITWELL: That's correct. 13 MR. JEFFREY MANISCHEN: And another area 14 that -- that I believe has come up at times in the -- the 15 course of the Shaken Baby Syndrome, or Shaken Impact 16 Syndrome -- issues have to do with what's known as the 17 lucid interval. 18 DR. HELEN WHITWELL: Yes. 19 MR. JEFFREY MANISCHEN: Am I correct on 20 that -- 21 DR. HELEN WHITWELL: Yes, that's correct. 22 MR. JEFFREY MANISCHEN: -- Dr. Whitwell? 23 DR. HELEN WHITWELL: Yes. 24 MR. JEFFREY MANISCHEN: And in relation 25 to the lucid interval, where it comes into play in the

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1 criminal trial process is a situation such as Gaurov's 2 where Dr. Smith said, Well, if the child had been fed 3 properly, then the injury would have been inflicted after 4 the last feeding because there was some that believed 5 that the consequences were immediate, the conses -- the 6 consequences of a shaking episode. 7 DR. HELEN WHITWELL: Correct. 8 MR. JEFFREY MANISCHEN: What can you tell 9 us in your opinion, Dr. Whitwell, about the ability to 10 predict or comment on the lucid interval between a 11 shaking episode and the ultimate loss of consciousness? 12 DR. HELEN WHITWELL: I think that's a 13 very difficult area, and it's one (1) of those areas 14 where there is still considerable discussion. 15 MR. JEFFREY MANISCHEN: So when we say 16 "discussion", would I be correct it's "enthusiastic" 17 controversy? 18 DR. HELEN WHITWELL: Well, to be more 19 English, an understated debate. 20 MR. JEFFREY MANISCHEN: Thank you. Very 21 well put. And -- and in terms of that, where it does 22 become significant is, in the criminal law context, the 23 opportunity for one (1) person or others to have 24 committed the offence. 25 DR. HELEN WHITWELL: That's correct.

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1 MR. JEFFREY MANISCHEN: And another way 2 in which it's of significance is to potentially disprove 3 the story given by the caregiver. 4 DR. HELEN WHITWELL: Yes. 5 MR. JEFFREY MANISCHEN: And in relation 6 to that, is there an evidence-based approach currently 7 being implemented to determine the parameters of the 8 lucid interval? 9 DR. HELEN WHITWELL: I don't know. I 10 don't think so. 11 MR. JEFFREY MANISCHEN: So even today, we 12 cl -- we could potentially find pathologists who would 13 describe it as being -- 14 DR. HELEN WHITWELL: Well, -- 15 MR. JEFFREY MANISCHEN: -- immediate -- 16 go ahead. 17 DR. HELEN WHITWELL: Yes, I mean, the 18 concept it was based on being immediate was the concept 19 of diffuse axonal injury, which produces immediate loss 20 of consciousness. Now, that is being questioned. I -- I 21 -- it's scenarios that needs detailed clinical study. 22 MR. JEFFREY MANISCHEN: And appreciating 23 that it needs detailed clinical study, at the present 24 time there are still pathologists who will give opinions 25 on it as to how long it could last and what -- what

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1 changes you might see in the child after the episode of 2 alleged shaking? 3 DR. HELEN WHITWELL: There may well be. 4 MR. JEFFREY MANISCHEN: And in that 5 regard, for example, there's a range of reaction ranging 6 from the child becoming irritable and showing diminished 7 consciousness to no apparently change -- no apparent 8 change in the child's reaction for some period of time? 9 DR. HELEN WHITWELL: That is, in 10 fairness, one (1) of the areas for debate. And I tend 11 not to stray into that area as a -- a pathologist. 12 MR. JEFFREY MANISCHEN: But it is one (1) 13 that Crowns and defence counsel ask -- 14 DR. HELEN WHITWELL: Oh, yes, absolutely. 15 MR. JEFFREY MANISCHEN: -- experts to 16 comment on? 17 DR. HELEN WHITWELL: They do, yes. 18 MR. JEFFREY MANISCHEN: And, in fact, to 19 put it accurately, if -- if you were on the witness 20 stand, asked to comment, would it be right to say that 21 the issue still needs sufficient further study that it's 22 not possible to reliably comment on it? 23 DR. HELEN WHITWELL: I -- I would have 24 that view. In -- in fairness, I tend to refer to 25 pediatricians on that aspect.

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1 MR. JEFFREY MANISCHEN: And in relation 2 similarly -- 3 DR. HELEN WHITWELL: Or people who are 4 used to dealing with children. 5 MR. JEFFREY MANISCHEN: Right. And in 6 relation similarly to the concept of re-bleeding and in 7 that regard, that gives rise to a few components. 8 One (1) of them is, we may see signs in 9 the child of fresh subdural hematoma and older subdural 10 hematoma? 11 DR. HELEN WHITWELL: Correct. 12 MR. JEFFREY MANISCHEN: And it's 13 difficult to date this -- the older subdural hematoma? 14 DR. HELEN WHITWELL: Yes. 15 MR. JEFFREY MANISCHEN: That, in fact, 16 you can have a potential -- if there has been some form 17 of trauma that has lead to the initial hematoma, it could 18 well take much less trauma to cause a recurrence that 19 could be fatal? 20 DR. HELEN WHITWELL: It could do. Again, 21 it's one of those areas which needs further work. 22 MR. JEFFREY MANISCHEN: And there may 23 well be those who would testify that you can still 24 determine that there is a significant of -- amount of 25 force needed notwithstanding the potential for re-bleed?

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1 DR. HELEN WHITWELL: That's correct. 2 MR. JEFFREY MANISCHEN: With respect to 3 issues of -- and, of course, that does tie in too to the 4 matter of force that with a re-bleed situation it could 5 require minimal force for a recurrence not -- a force 6 that could certainly be accidental. 7 DR. HELEN WHITWELL: Well, again, we're 8 in an area, you know, of assessing and looking at the -- 9 the evidence. 10 MR. JEFFREY MANISCHEN: With respect to 11 the matter of support from clinicians -- and perhaps I 12 can ask Dr. Saukko about this. 13 Is there a unit in Finland that's the -- 14 that's a -- an equivalent to the Suspected Child Abuse 15 and Neglect Unit that appeared to be in place -- that was 16 in place at the Hospital for Sick Children? 17 DR. PEKKA SAUKKO: Not to my knowledge. 18 MR. JEFFREY MANISCHEN: And with respect 19 to it, Dr. Whitwell, is there a -- an equivalent form of 20 unit with one (1) of the hospitals that you've dealt with 21 in the UK? 22 DR. HELEN WHITWELL: What, in terms of -- 23 of what? 24 MR. JEFFREY MANISCHEN: A team approach 25 with various clinicians whether it's neurologists,

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1 opthamologists, pediatricians all working together on a 2 suspected child abuse and neglect team? 3 DR. HELEN WHITWELL: Yes, most of the -- 4 generally, each city has a -- a major pediatric unit, and 5 within those hospitals some clinicians and radiologists 6 will tend to concentrate more on this type of issue. 7 MR. JEFFREY MANISCHEN: And would you 8 say, Dr. Whitwell, that there is a potential risk that 9 when you have members of the same team - appreciating, 10 for example, that Dr. Smith had support from other 11 clinicians - that there's a potential risk of teammates 12 not being unbiased and impartial? 13 DR. HELEN WHITWELL: Well -- 14 MR. JEFFREY MANISCHEN: When it comes to 15 supporting the opinion of another teammate? 16 DR. HELEN WHITWELL: You know, that -- 17 that potentially is a risk. Whether or not it's a -- a 18 real or actually occurs is -- is not really -- it's not 19 really for me to say. 20 MR. JEFFREY MANISCHEN: All right. 21 Finally, and if it can be located, Mr. Registrar, there's 22 a passage towards the latter part of the text at page 23 471. It's the very last page of one (1) of the excerpts 24 I have for you. So it'll be at page 471 of the text. 25 And I'll have some questions for you, Dr.

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1 Saukko, which we can cover in the time remaining, if it 2 can be located. 3 Because I will ask you while we're finding 4 it, Dr. Saukko, on the preparation of the medical texts 5 such as yours and Dr. Knight's on forensic pathology, 6 would you agree - I hope you would - that's it one (1) of 7 the recognized standards in the -- in the field of 8 forensic pathology? 9 DR. PEKKA SAUKKO: That's correct. 10 MR. JEFFREY MANISCHEN: And in terms in 11 what -- what's involved in completing a revision of a 12 text like that, to be able to evaluate how often is that 13 text revised? 14 DR. PEKKA SAUKKO: I'm supposed to start 15 a new revision next year. 16 MR. JEFFREY MANISCHEN: All right. Page 17 471, Mr. Registrar. It'll be farther along into that 18 process. 19 And the last revision was 2004? 20 DR. PEKKA SAUKKO: Yeah, it came out 21 2004. 22 MR. JEFFREY MANISCHEN: And the concept 23 in terms of preparing a text like that is to be able to 24 not only inform those working in the medical profession, 25 but you recognize it has benefit for those of us who

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1 practice in the criminal justice system? 2 DR. PEKKA SAUKKO: Yes. 3 MR. JEFFREY MANISCHEN: And that, in 4 fact, at times if we can't locate someone such as you to 5 fly out to Hamilton to appear, that I might have the 6 benefit of your text reference to put to a witness in 7 cross-examination. 8 You know your text can help me that way? 9 It can. Because I'll take you to page 471 dealing with - 10 - about half way -- we'll go about ten (10) lines down -- 11 thank you, Mr. Registrar, that's great. 12 You'll see on the right-hand column, we're 13 talking about the -- the evidence of low falls. 14 "The evidence that low falls may cause 15 brain or meningeal lesions is much less 16 convincing than that proving skull 17 fractures, but the possibility exists 18 and cannot be dismissed by inflexible 19 dogmatic opinion." 20 Stop there for a moment. Is that 21 something that some pathologists are guilty of; 22 inflexible dogmatic opinion? 23 DR. PEKKA SAUKKO: Some may be. 24 MR. JEFFREY MANISCHEN: And to go on: 25 "The problem with assessing the

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1 mechanical basis of head injury is that 2 human experimentations are virtually 3 impossible." 4 And to go on: 5 "Animal models are useless." 6 But then you go on to indicate that: 7 "The frequent difficulties for the 8 pathologists, lawyers, and the Courts 9 have to rest on available statistical 10 evidence which can never give a 11 definitive answer in any one (1) case. 12 If a non -- phenomenon has definitely 13 occurred once, then they can occur 14 again. Whatever the statistical weight 15 is against this frequency is a 16 precedent that has been established. 17 We cannot be against that as a 18 possibility. 19 That could equate to the realistic 20 potential or a possibility in our range 21 of outcomes." 22 DR. PEKKA SAUKKO: Yeah. 23 MR. JEFFREY MANISCHEN: And to go on, you 24 talk about, or you and Professor Knight talk about the 25 standard proof from, and the last paragraph is

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1 significant. 2 "To rely on the quote 'experience' 3 unquote of medical witnesses is also 4 fraught with difficulty, as their 5 anecdotal memories of previous cases 6 will provide unsatisfactory data in 7 respect to the causation of the injury. 8 When adults are accused of malice or 9 neglect, they are very unlikely to 10 fabricate or distort the circumstances 11 of the injury, and claim that the 12 infant fell from the chair, the arms of 13 the bed, even a genuine accident. 14 Feelings of guilt cloud a recollection 15 from panic will often lead to an 16 inaccurate account of the 17 circumstances, so the doctor's past 18 experience is often of lesser value 19 than the accused adults, the lawyers, 20 and the Court imagined, due to 21 inadequate or false knowledge of the 22 true circumstances of previous cases." 23 That provides a kind of watch word to say, 24 a pathologist ought not to place so much weight on 25 circumstances, such as statements made by the accused or

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1 other surrounding circumstances, but ought to look to the 2 pathologic -- the pathology before him or her to form an 3 opinion. 4 Would that be right? 5 DR. PEKKA SAUKKO: That's correct. 6 MR. JEFFREY MANISCHEN: And Dr. Whitwell, 7 part of that opinion should be, I would suppose, on an 8 evidence-based perspective on the one hand, or on the 9 other, if it's qualified on the subject of debate, those 10 qualifications ought fairly to be put before the trier of 11 fact? 12 Would you agree? 13 DR. HELEN WHITWELL: Correct. Yes, I 14 would. 15 MR. JEFFREY MANISCHEN: Thank you. Those 16 are my questions. 17 COMMISSIONER STEVEN GOUDGE: Thanks, Mr. 18 Manischen. 19 Ms. Fraser...? 20 21 CROSS-EXAMINATION BY MS. SUZAN FRASER: 22 MS. SUZAN FRASER: Good afternoon. My 23 name is Sue Fraser, and I'm here on behalf of a 24 children's rights organization, which is called Defence 25 for Children International, and its goal is to promote

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1 and protect the UN Convention on the rights of the child. 2 And Mr. Commissioner, Doctors Whitwell and 3 Saukko, I think it important that I correct for the 4 record what Canadians think about when they think about 5 Finland. 6 COMMISSIONER STEPHEN GOUDGE: At least 7 add to it. 8 9 CONTINUED BY MS. SUZAN FRASER: 10 MS. SUSAN FRASER: Some of us think of the 11 greatest runner of all time, Pavo Cur -- Pavo Nurmi, 12 pardon me. Some of us who are not so inclined to think 13 about sports think of the famous modernist, Ero 14 (phonetic), and I -- I always mispronounce this, Sarinin 15 (phonetic), and those of us who love our hockey, but do 16 not like the Montreal Canadians, think more in favour of 17 Yari Kuri, Tikkanen and -- and Tammuz Laney (phonetic). 18 So let me just start with that. 19 Is there any question that, putting aside 20 the debate on shaking, that the vigorous shaking that was 21 once mentioned -- once -- once described in the early 22 studies on Shaken Baby Syndrome is a violent act that 23 should not be something that parents or caregivers do to 24 a child. 25 That -- that's not a matter of debate, is

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1 that fair? 2 DR. HELEN WHITWELL: That's fair. 3 MS. SUZAN FRASER: Okay, and we just 4 simply -- and -- and you'd agree? 5 DR. PEKKA SAUKKO: I agree. 6 MS. SUZAN FRASER: And that's just -- in 7 terms of what parents hearing this kind of evidence, and 8 caregivers, nobody should think that it's okay to 9 vigorously shake a baby; you both agree with that? 10 DR. HELEN WHITWELL: I would, yes. 11 DR. PEKKA SAUKKO: Yes. 12 MS. SUZAN FRASER: All right. 13 MS. SUZAN FRASER: Dr. Whitwell, I have a 14 couple of questions for you. I wanted to follow up a 15 point that was raised -- initially raised when Professor 16 Milroy was here a few weeks ago on November the 23rd. 17 And a question was put to him about what 18 protocols are used by a pathologist in approaching a 19 sudden and unexpected death. 20 DR. HELEN WHITWELL: Mm-hm. 21 MS. SUZAN FRASER: In infancy. 22 DR. HELEN WHITWELL: Right. 23 MS. SUZAN FRASER: And he made reference 24 to a protocol, the CESDI protocol, which he said is about 25 seventy (70) pages long, and I think your attention was

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1 drawn to it yesterday. 2 We might turn it up now. 3 DR. HELEN WHITWELL: I think we need -- 4 my attention was drawn to a lot of things. 5 MS. SUZAN FRASER: No, sorry. Not in 6 this -- not while you were giving your evidence, but I 7 think -- 8 DR. HELEN WHITWELL: All right, okay. 9 I'm sure somebody did -- 10 MS. SUZAN FRASER: -- knew it was coming. 11 DR. HELEN WHITWELL: -- mention it, but I 12 -- I'll be honest, I -- 13 MS. SUZAN FRASER: Okay. 14 DR. HELEN WHITWELL: -- haven't looked at 15 it since it was mentioned to me. So you'll have to 16 remind me and turn me to it. 17 MS. SUZAN FRASER: Okay. It's at 18 PFP301222, and I believe that's Tab 16. 19 DR. HELEN WHITWELL: Sorry, at which 20 Volume? 21 MS. SUZAN FRASER: Oh, Volume I of -- 22 DR. HELEN WHITWELL: Okay. 23 MS. SUZAN FRASER: You know, maybe if we 24 just look at it on the screen, and then we'll -- 25 DR. HELEN WHITWELL: Yeah.

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1 MS. SUZAN FRASER: Can you just -- I 2 understand that CESDI was -- is a confidential inquiry -- 3 DR. HELEN WHITWELL: It is, yes. 4 MS. SUZAN FRASER: -- into sudden death? 5 DR. HELEN WHITWELL: That's correct. 6 MS. SUZAN FRASER: And then -- 7 DR. HELEN WHITWELL: And they publish a 8 report. 9 MS. SUZAN FRASER: Okay. 10 DR. HELEN WHITWELL: In a book form every 11 so many years. 12 MS. SUZAN FRASER: All right. And it's 13 now merged with maternal death, as I understand it, the 14 actual name is the Maternal and Child Health, so it now 15 has a new -- 16 DR. HELEN WHITWELL: Right, okay. 17 MS. SUZAN FRASER: -- acronym. Okay, and 18 I understood that was set up in 1992? 19 DR. HELEN WHITWELL: The child one (1) 20 was. I'm -- and I'm not -- well -- 21 MS. SUZAN FRASER: CESDI -- 22 DR. HELEN WHITWELL: Yes, that's correct. 23 But I'm -- I'm not sure about the maternal one (1). 24 MS. SUZAN FRASER: All right. And the 25 hope of that -- I take it it's a study?

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1 DR. HELEN WHITWELL: Essentially what it 2 is, it's been a method of reviewing all child deaths, and 3 I think this form that you're -- you're showing to me is 4 the one (1) that the pediatricians would fill in in any 5 given area. 6 I think it's fair to say that some areas 7 of England have been slower to develop than others. 8 MS. SUZAN FRASER: All right. 9 DR. HELEN WHITWELL: But -- but now, 10 every unexplained death in an infant, the family are 11 visited, interviewed, you know, medical histories taken 12 and that. 13 MS. SUZAN FRASER: And I understand that 14 the information in the form is delivered confidentially, 15 so that once it's entered into the database that 16 information isn't used for any other purpose oth -- other 17 than the statistical analysis? 18 DR. HELEN WHITWELL: That -- that's my 19 understanding. 20 MS. SUZAN FRASER: All right. 21 DR. HELEN WHITWELL: Yes. And that 22 generally applies -- there's been a number of 23 confidential inquiries into various types of death in 24 England and Wales. For example, post-operative deaths, 25 maternal deaths, et cetera.

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1 MS. SUZAN FRASER: All right. And are 2 those reports useful to pathologists in understanding the 3 developments in our understanding of sudden infant death 4 in -- sudden unexpected death in Infants? 5 DR. HELEN WHITWELL: They're more of an 6 overall survey -- 7 MS. SUZAN FRASER: Yes. 8 DR. HELEN WHITWELL: -- to -- to 9 highlight to a certain point in time. I -- I find them - 10 - the -- the development of a pediatric -- pediatrician 11 being involved in an unexplained or unexpected death 12 useful because they act -- they actually provide 13 considerable information. 14 Much more detail for example than 15 investigating Coroner's Office or police officers -- 16 MS. SUZAN FRASER: All right. 17 DR. HELEN WHITWELL: -- may do. 18 MS. SUZAN FRASER: So it is useful to you 19 as a pathologist to have whoever is involved in that type 20 of investigation to be following a standard protocol? So 21 if there's a sudden unexpected death -- 22 DR. HELEN WHITWELL: Yes. 23 MS. SUZAN FRASER: All right. 24 DR. HELEN WHITWELL: And they do. Some - 25 - on some occasions before I've started a post-mortem on

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1 a -- an unexpected death, either myself or the other 2 pathologist has talked to the pediatrician. 3 MS. SUZAN FRASER: All right. And you, 4 as a pathologist, is there a protocol that you use in 5 terms of the types of -- 6 DR. HELEN WHITWELL: Investigations, yes. 7 MS. SUZAN FRASER: Yes. And does that 8 have a name or is that a personal protocol? 9 DR. HELEN WHITWELL: The -- the protocol 10 was initially in -- and I'm afraid I don't remember which 11 -- which volume. It was -- it was A) published in a 12 histopathology journal, but B) it came into one of the 13 confidential Inquiry books. 14 MS. SUZAN FRASER: I see. 15 DR. HELEN WHITWELL: And it was devised 16 by, I think, Professor Barry and Professor Fleming from 17 Bristol and, essentially, there's a list of various 18 investigations. 19 There is an updated protocol, if you like, 20 in the Joint Royal College of Pathologists in Pediatrics, 21 the Joint Kennedy Report, which I think and -- and I 22 think it came out in 2004. 23 So in -- in there, there are lists of 24 investigation which -- which are fair -- fairly standard. 25 MS. SUZAN FRASER: All right.

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1 DR. HELEN WHITWELL: But in here we're 2 talking about unexpected deaths. 3 MS. SUZAN FRASER: Yes. 4 DR. HELEN WHITWELL: A number -- or 5 unexplained deaths. A -- a number of the head injured 6 children wouldn't actually fall into this group. 7 MS. SUZAN FRASER: Right. Right. And so 8 then for those children, the head injured children, is 9 there a proto -- an investigative protocol that you use? 10 DR. HELEN WHITWELL: In -- in the young 11 ones, one tends to do everything that's outlined in the 12 CESDI protocol. If, for example, you have a child who 13 dies in a road traffic collision, then -- then you don't. 14 MS. SUZAN FRASER: Right. Okay. 15 DR. HELEN WHITWELL: Because the -- the 16 Kennedy Report specifically said sudden, unexpected, or 17 unexplained deaths. So if you have a child who -- with a 18 -- an obvious explanation, then it doesn't actually fall 19 within the group that need extensive microbiology and 20 toxicology, et cetera. 21 MS. SUZAN FRASER: I understand. And -- 22 COMMISSIONER STEPHEN GOUDGE: If the 23 death were obviously criminal, would you run all the 24 tests? 25 DR. HELEN WHITWELL: Obviously criminal

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1 in wh -- in what sort of -- 2 COMMISSIONER STEPHEN GOUDGE: Or are you 3 talking about the only accidental deaths that -- where 4 the cause is obvious that you wouldn't run all the tests? 5 DR. HELEN WHITWELL: You -- I think if 6 there's any doubt, then you do all the -- 7 COMMISSIONER STEPHEN GOUDGE: You do the 8 whole range. 9 DR. HELEN WHITWELL: -- investigations 10 you can. And then -- 11 COMMISSIONER STEPHEN GOUDGE: What I was 12 really getting at is, if you're in a -- in the criminally 13 suspicious range, even if it's pretty obviously a non- 14 accidental injury, you'd do all the tests, wouldn't you? 15 DR. HELEN WHITWELL: There will be a 16 tendency now to do more than perhaps we did ten (10) 17 years ago. 18 COMMISSIONER STEPHEN GOUDGE: Yes. 19 DR. HELEN WHITWELL: I mean ten (10) 20 years ago if it had a skull fracture subdurals, a child 21 had -- then we wouldn't have done them ten (10) years 22 ago. 23 COMMISSIONER STEPHEN GOUDGE: Right. 24 Thanks. 25

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1 CONTINUED BY MS. SUSAN FRASER: 2 MS. SUZAN FRASER: Okay. Dr. Whitwell, 3 you had some thoughts on, or at least made reference to 4 some of the frailties of your death investigations system 5 in England and Wales. 6 DR. HELEN WHITWELL: That's correct, in 7 terms of the Shipman Inquiry. 8 MS. SUZAN FRASER: Yes. 9 DR. HELEN WHITWELL: Yeah. 10 MS. SUZAN FRASER: And -- and currently, 11 in terms of your -- what are the -- in your view, the key 12 elements to a good death investigation? And I'm -- I'm 13 thinking specifically of children under 5. 14 DR. HELEN WHITWELL: Well it -- in 15 fairness, they -- they -- these deaths are probably 16 investigated far, far better than most of the adult 17 deaths, because of the involvement of the pediatricians 18 on issues. You know, the CESDI protocol, and then the 19 protocols for the post-mortem. So, and I think there's a 20 -- potentially, I -- I think there's going to be even 21 more involvement, looking at all childhood deaths. 22 Because my understanding is that the 23 English home office want to reduce all child deaths from 24 whatever cause. So I think they are -- all of them, up 25 to age of about 18, are going to be even more fully

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1 investigated. 2 MS. SUZAN FRASER: All right. And so 3 then, if I could just stay with the CESDI protocol, and 4 if Mr. Registrar could go to the second page. What I 5 understand the process to be is that there is a first 6 interview where there's general information taken, and 7 there's a checklist on the right hand side. 8 DR. HELEN WHITWELL: Yes. I mean this is 9 my understanding. It's not a document that I personally 10 use. 11 MS. SUZAN FRASER: Right. Right. But I 12 -- but the information -- 13 DR. HELEN WHITWELL: It's the 14 pediatrician who uses it. 15 MS. SUZAN FRASER: Right. So -- but does 16 the information come to you as a pathologist? 17 DR. HELEN WHITWELL: Sometimes it does. 18 Yes, it -- it -- if it doesn't come directly, then it 19 forms part of the whole investigation into the case. 20 MS. SUZAN FRASER: I see. 21 DR. HELEN WHITWELL: I don't -- I don't 22 see these. I may see a letter from the -- for example, I 23 -- I've done cases with Professor Fleming CH) from 24 Bristol, who's -- who's clearly one of the leaders in 25 this area. And often, there's been a referring letter

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1 with -- with -- outlining some of the background is here. 2 MS. SUZAN FRASER: Okay. And then, 3 there's a reference to -- I understand the pediatrician 4 also makes an attendant's -- or take this type of 5 information, and my question is, what type of support is 6 given to the family? Do -- is that something you know? 7 DR. HELEN WHITWELL: I don't know. I 8 mean, my understanding is that there is a lot of support 9 but -- but I don't know. That's not a field I'm involved 10 in. 11 MS. SUZAN FRASER: All right. Professor 12 Whitwell, and I'm sorry all the questions are for you. 13 Normally, we treat our visitors better, 14 but I understand from some research commissioned by the 15 Commission that at the time of the Goldsmith Review, 16 there was a parallel review of some of the family court 17 cases by the Minister of State for Children. 18 Do you know anything about that? And I'm 19 sorry to put upon you, but... 20 DR. HELEN WHITWELL: Yes, there was, but 21 my -- 22 MS. SUZAN FRASER: You weren't involved 23 in that process? 24 DR. HELEN WHITWELL: No, no. No, you'd 25 had to refer me to any document that there -- there was

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1 because there has been an issue in England about the 2 openness or otherwise of the family courts. 3 MS. SUZAN FRASER: All right. And, 4 Professor Whit -- or Professor Milroy made reference to 5 the fact that one (1) of the issues there is that the 6 pathologist tends to give his evidence in -- in a private 7 setting, and so -- 8 DR. HELEN WHITWELL: That's correct. 9 MS. SUZAN FRASER: -- it's subject to the 10 same kind of scrutiny? 11 DR. HELEN WHITWELL: That's correct. 12 MS. SUZAN FRASER: All right. And then 13 just finally, reference was made in -- in Ms. 14 Kirkpatrick's -- Kirkpatrick's evidence to a paper that 15 was commiss -- or was prepared by Dr. Smith. The paper 16 on -- with the Child Abuse Maltreatment Syndrome. And 17 I'll make this for Dr. Saukko. 18 Is -- is that a symptom -- syndrome? It 19 was called, "Fatal Child Abuse Maltreatment Syndrome," 20 and it was published in the journal, I think, that you 21 edited, if I under -- if I recall properly. 22 Is that a syndrome that has -- is 23 generally -- generally well accepted? 24 DR. PEKKA SAUKKO: Sorry. 25 MS. SUZAN FRASER: The question was:

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1 There's a -- there was a paper authored and it was 2 discussing a -- a syndrome which was called Fatal Child 3 Abuse Maltreatment Syndrome. 4 And is that a syndrome of which you're 5 aware and that you support? 6 DR. PEKKA SAUKKO: I don't recall that 7 paper. 8 MS. SUZAN FRASER: If just -- all right. 9 It's at Tab 28 of Volume II, and it's PFP302067. 10 DR. PEKKA SAUKKO: Is it...? 11 MS. SUZAN FRASER: It's on the screen. 12 COMMISSIONER STEPHEN GOUDGE: Yes. No, 13 there it is. He has got it now. 14 DR. PEKKA SAUKKO: Okay. Yeah, I now -- 15 I recall the paper, yes. 16 17 CONTINUED BY MS. SUZAN FRASER: 18 MS. SUZAN FRASER: And -- and Mr. 19 Manischen who was the counsel before you talked about 20 different syndromes and -- and the issue of something 21 sort of becoming popular. 22 Is this something that has made its way 23 into the textbooks or into the literature, otherwise? 24 DR. PEKKA SAUKKO: I don't know. 25 MS. SUZAN FRASER: You don't know, okay.

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1 And, Dr. Whitwell, do you know? 2 DR. HELEN WHITWELL: I take it that it's 3 -- yet another name like Shaken Baby Syndrome, Shaken 4 Impact Syndrome. You know, it's generally covering the 5 same thing. 6 MS. SUZAN FRASER: All right. 7 DR. HELEN WHITWELL: But it's not -- it's 8 not a term that we generally use in England, at all. 9 MS. SUZAN FRASER: All right. Thank you. 10 Mr. Commissioner, those are my questions. 11 COMMISSIONER STEPHEN GOUDGE: Thanks, Ms. 12 Fraser. 13 The article Dr. Saukko's describes it as a 14 spectrum, one (1) variant of the spectrum, recognized by 15 the forensic pathology community has been increasingly 16 referred to as the Fatal Child Abuse Maltreatment 17 Syndrome. 18 Is anything -- I mean, is this a concept 19 that has elevated itself to anything like the level of 20 Shaken Baby Syndrome? 21 DR. PEKKA SAUKKO: Not to my knowledge. 22 DR. HELEN WHITWELL: No. 23 COMMISSIONER STEPHEN GOUDGE: So your 24 journal is breaking new ground with this. Thanks, Ms. 25 Fraser.

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1 MS. SUZAN FRASER: Thank you. 2 COMMISSIONER STEPHEN GOUDGE: Ms. 3 Ritacca...? 4 5 CROSS-EXAMINATION BY MR. LUISA RITACCA: 6 MS. LUISA RITACCA: Thank you, 7 Commissioner. Good afternoon, Doctors. My name is Luisa 8 Ritacca, and I am one (1) of the lawyers here for the 9 Office of the Chief Coroner. 10 Dr. Whitwell, yesterday Dr. -- Mr. Ortved, 11 rather, pointed out to you that the cases you reviewed of 12 -- as part of the Chief Coroner's review and subsequently 13 for this Inquiry -- 14 DR. HELEN WHITWELL: Mm-hm. 15 MS. LUISA RITACCA: -- had already been 16 identified as problematic cases, and he further 17 identified that this wasn't simply a blind sample of -- 18 of a random number of Dr. Smith's cases, and you agreed 19 with him yesterday. 20 DR. HELEN WHITWELL: That -- that was my 21 understanding about the cases, yes. 22 MS. LUISA RITACCA: Right. But would you 23 also agree that the fact that the cases you reviewed had 24 already been identified as problematic did not influence 25 your opinion on the cases?

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1 DR. HELEN WHITWELL: No. 2 MS. LUISA RITACCA: And would you agree 3 that the fact that you were provided with information 4 about the cases from Dr. Pollanen, for example, did not 5 influence your opinion on the cases? 6 DR. HELEN WHITWELL: No. 7 MS. LUISA RITACCA: So, you agree they 8 did not influence your opinion? 9 DR. HELEN WHITWELL: Sorry, I made my own 10 opinion of the cases -- 11 MS. LUISA RITACCA: Okay. 12 DR. HELEN WHITWELL: -- that's what I'm 13 trying to say. 14 MS. LUISA RITACCA: It's just a poorly 15 phrased question. 16 COMMISSIONER STEPHEN GOUDGE: I took you 17 to mean "I agree". 18 DR. HELEN WHITWELL: Yeah. 19 COMMISSIONER STEPHEN GOUDGE: Is that 20 right? 21 DR. HELEN WHITWELL: Well, if you'll just 22 repeat the question. 23 24 CONTINUED BY MS. LUISA RITACCA: 25 MS. LUISA RITACCA: Sure.

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1 DR. HELEN WHITWELL: Sorry, I'm -- 2 COMMISSIONER STEPHEN GOUDGE: Played on 3 surprise, Ms. Whitwell. 4 5 CONTINUED BY MS. LUISA RITACCA: 6 MS. LUISA RITACCA: The fact that you had 7 information -- 8 DR. HELEN WHITWELL: Too many -- it's too 9 much lawyers -- 10 MS. LUISA RITACCA: I'm sorry. Did the 11 fact that you had information about the cases from Dr. 12 Pollanen affect your opinion about the cases? 13 DR. HELEN WHITWELL: What's -- you mean 14 factual information? 15 MS. LUISA RITACCA: Information about the 16 possible issues arising in the cases. 17 DR. HELEN WHITWELL: I -- I was aware of 18 the issues that he had raised, but -- but in fairness, 19 again, I looked at the cases myself. 20 MS. LUISA RITACCA: Thank you. And, Dr. 21 Saukko, I'm going to put the same proposition to you. 22 The fact that you reviewed cases that had 23 already been identified as problematic, did that affect 24 your opinion on the cases? 25 DR. PEKKA SAUKKO: No.

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1 MS. LUISA RITACCA: And the fact that you 2 were provided with information from Dr. Pollanen, did 3 that affect your opinion on the cases? 4 DR. PEKKA SAUKKO: No. 5 MS. LUISA RITACCA: And if I could ask 6 you to turn up, I believe, Dr. Whitwell, this is in 7 Volume I, Tab 7, where your overview reports are. 8 DR. HELEN WHITWELL: Yeah. 9 MS. LUISA RITACCA: And it's the Amber 10 overview report. Oh, and com -- reg -- Mr. Registrar, 11 it's PFP143724. And, Dr. Whitwell, Mr. Ortved asked you 12 a number of questions about the Amber case, and in 13 particular he asked you to agree that the coroner, Dr. 14 Ouchterlony's failure to investigate this case sooner 15 caused delay in the investigation, and I took him to mean 16 in the scene investigation, and you agreed that there was 17 a delay. 18 DR. HELEN WHITWELL: Yes. 19 MS. LUISA RITACCA: And presumed that Mr. 20 Ortved was talking about a delay in interviewing the 21 babysitter and attending the home where the accident was, 22 is that -- 23 DR. HELEN WHITWELL: Well, in terms of 24 the autopsy? 25 MS. LUISA RITACCA: No, not in the

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1 autopsy; the death investigation itself. 2 DR. HELEN WHITWELL: Right. 3 MS. LUISA RITACCA: He suggested that 4 there was a delay in -- in the full investigation, 5 leaving aside that there was a delay in the autopsy. 6 DR. HELEN WHITWELL: Yes. I mean, I 7 think I -- 8 MS. LUISA RITACCA: You recall there -- 9 DR. HELEN WHITWELL: Yes. 10 MS. LUISA RITACCA: -- that he's asked 11 you that. Okay. 12 I just want to take you to a couple 13 sections of the overview report that I don't think you 14 were taken to. And if we can go to page 5, paragraph 10 15 -- 16 DR. HELEN WHITWELL: Sorry, which -- the 17 over -- the -- 18 MS. LUISA RITACCA: The Amber overview. 19 DR. HELEN WHITWELL: Okay. 20 MS. LUISA RITACCA: Yeah. 21 DR. HELEN WHITWELL: Sorry, page...? 22 MS. LUISA RITACCA: Page 5 -- 23 DR. HELEN WHITWELL: Yeah. 24 MS. LUISA RITACCA: -- paragraph 10. 25 DR. HELEN WHITWELL: Page 5, paragraph

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1 10. Yes. 2 MS. LUISA RITACCA: In -- in fact, if we 3 could just go up to the previous page at paragraph 7. 4 5 (BRIEF PAUSE) 6 7 MS. LUISA RITACCA: And just to identify 8 paragraph 7, the -- the date of the injury is identified 9 as July 28th, 1988; do you see that? 10 DR. HELEN WHITWELL: Yeah. 11 MS. LUISA RITACCA: Okay. And I 12 understand from the overview report, and I don't think 13 there's any debate here, she was brought to the hospital 14 in Timmins, St. Mary's General Hospital, and then 15 transferred to the Hospital for Sick Children. 16 DR. HELEN WHITWELL: Yes. 17 MS. LUISA RITACCA: And at paragraph 29, 18 page 11. 19 DR. HELEN WHITWELL: Yes. 20 MS. LUISA RITACCA: Indicates that on 21 July 30th, 1988, so a day later, Amber's pronounced brain 22 dead. 23 DR. HELEN WHITWELL: Yes. 24 MS. LUISA RITACCA: You see that? And it 25 was at this point, according to the overview report, that

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1 the coroner and the SCAN Team were notified. Obviously, 2 a -- you know, a coroner wouldn't be notified before 3 brain death, that -- that seems reasonable. 4 Do you agree with that? 5 DR. HELEN WHITWELL: Mm-hm, it does seem 6 reasonable, yes. 7 MS. LUISA RITACCA: Yeah. And as I 8 understand it, paragraph 30, which is over the next page, 9 Mr. Registrar, there was organ removal. And I'm going to 10 ask you about that in a minute, but Amber's ventilator 11 was turned off on July 31st. 12 DR. HELEN WHITWELL: Yes. 13 MS. LUISA RITACCA: So three (3) days 14 after the date of the injury. And we also know from the 15 overview report, starting at paragraphs 42, page 17, Mr. 16 Registrar. DR. HELEN WHITWELL: Yes. 17 MS. LUISA RITACCA: That there was -- 18 right from the day following the date of the injury, 19 there was involvement from the Hospital for Sick 20 Children's SCAN Team and that there were -- was contact 21 by a Dr. Driver of the SCAN Team to Lisa Larabie from the 22 -- to -- who's at the Children's Aid Society and act -- 23 to ask her to investigate the injury. 24 And I don't think I need to take you to 25 every paragraph there but it -- it goes on between

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1 paragraphs 42 and 45, makes it clear that there was a 2 police investigation afoot -- 3 DR. HELEN WHITWELL: Yes, that's correct. 4 MS. LUISA RITACCA: -- even before the 5 coroner was notified of the brain death; is that fair? 6 DR. HELEN WHITWELL: Yes. 7 MS. LUISA RITACCA: Okay. And so you'd 8 agree that there's nothing - as far as we can tell from 9 the overview report and from what you've reviewed - to 10 suggest that there was any delay caused by the coroner's 11 failure to attend the scene or to interview the 12 babysitter that would have impacted on the police's 13 investigation; is that fair? 14 DR. HELEN WHITWELL: Yes. The -- 15 remember, I come from different system -- 16 MS. LUISA RITACCA: Fair enough. 17 DR. HELEN WHITWELL: -- you know, so I'm 18 not familiar with the role of the coroner in terms of 19 interviewing, investigation, et cetera, et cetera, et 20 cetera. And it may well be that -- that in fairness the 21 -- one (1) of the problems with the Amber case, however 22 it came about, was that the -- the autopsy didn't go -- 23 there was no autopsy. 24 MS. LUISA RITACCA: That's fair, and I 25 wasn't asking about the autopsy, but --

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1 DR. HELEN WHITWELL: No, sure. 2 MS. LUISA RITACCA: -- we're on the 3 police investigation, right. I take your point. Thank 4 you, Doctor. 5 And, Dr. Whitwell, in addition, when Mr. 6 Ortved asked you, you agreed that it was inappropriate in 7 this case for Amber's organs to have been harvested; is 8 that correct? 9 DR. HELEN WHITWELL: It was. 10 MS. LUISA RITACCA: And if I understood 11 your evidence correctly, it was your view that -- or it 12 is your view that organs should not be harvested in 13 suspicious cases? 14 DR. HELEN WHITWELL: That's correct. 15 MS. LUISA RITACCA: I have a little bit 16 of difficulty with that, I confess, Dr. Whitwell. 17 Clearly, this is a head injury case; is that a fair 18 assumption to make? 19 DR. HELEN WHITWELL: Yes. 20 MS. LUISA RITACCA: And prior to Amber's 21 death, she was being treated, including the Burr-hole 22 surgery and craniotomy -- that's all set out in the 23 overview report. 24 DR. HELEN WHITWELL: Yes. 25 MS. LUISA RITACCA: I don't think we have

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1 to take you to that. So the issue really with respect to 2 her death was the manner in which she suffered the head 3 injury. It wasn't some possible natural disease that 4 could have -- 5 DR. HELEN WHITWELL: Well, she -- 6 MS. LUISA RITACCA: -- ended her life? 7 DR. HELEN WHITWELL: Yes. And as you 8 quite correctly say, Dr. Driver had -- you know, the SCAN 9 doctors had become involved. Now, I'm look -- looking at 10 it from the point of, if there is a suspicion of child 11 abuse or non-accidental injury, then in a significant 12 number of these cases they may have other injuries 13 elsewhere. 14 So if you harvest the organs, for example, 15 you may not find a torn liver or a torn bowel or 16 something of that nature. And as regards, 17 transplantation generally -- there are cases in England 18 and Wales, but they -- which are harvested in suspicious 19 circumstances, but they're fully documented and they 20 mainly relate to adult head injuries. 21 MS. LUISA RITACCA: Okay. And I think -- 22 I think you've answered this. It was -- my question to 23 you was going to be if you could help us understand how 24 harvesting the organs other than the eyes, for example, 25 in a -- in a suspected head injury case could impact the

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1 forensic pathologist's work, but you're saying that you 2 lose possible other evidence of child abuse. 3 DR. HELEN WHITWELL: You do, yes. 4 COMMISSIONER STEVEN GOUDGE: Suppose 5 there'd been no evidence of child abuse, but only: this 6 is a head injury, we've seen the bruising. 7 DR. HELEN WHITWELL: Well -- 8 COMMISSIONER STEVEN GOUDGE: Is the 9 blanket prohibition on harvesting necessary? 10 DR. HELEN WHITWELL: Well, the -- one (1) 11 of the issues was abdominal child trauma, for example, in 12 child abuse cases where there may be ruptures of various 13 -- you know, the liver, you may not see any external 14 evidence of impact. So there may be none -- 15 COMMISSIONER STEVEN GOUDGE: So the mere 16 fact that it was suspicious would make you think we 17 should not harvest any organs, even though the suspicion 18 derives from how was this head injury caused, as opposed 19 to whether there were any internal injuries elsewhere on 20 the body? 21 DR. HELEN WHITWELL: Well, in -- in a 22 full investigation of a child death, you need to assess 23 the other organs in case there are other injuries 24 elsewhere. 25 COMMISSIONER STEVEN GOUDGE: Okay. Thank

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1 you. 2 3 CONTINUED BY MS. LUISA RITACCA: 4 MS. LUISA RITACCA: And I anticipate, Dr. 5 Whitwell, that this Commission will hear that the Office 6 of the Chief Coroner has quite an extensive protocol with 7 regard to harvesting organs in suspicious cases and I -- 8 in fairness, I know that you wouldn't be familiar with it 9 at all. 10 And I think that you might have answered 11 this in part, but are there any circumstances in 12 suspicious cases in -- in your jurisdiction where you 13 would be allowed to harvest the organs? And I think your 14 answer was yes. But primarily in adult cases? 15 DR. HELEN WHITWELL: There are, but what 16 -- what would tend -- tend to happen and tends to happen 17 with our cases is that if there is potential police 18 involvement, and -- and these cases usually go into 19 hospital with a head injury or something, then if the -- 20 the issue and the -- on Critical Care Unit and ITUs -- if 21 the issue about harvesting comes up, which as we know 22 there's a -- a shortage of organs, so then the -- what 23 normally happens in England is that the coroner will be 24 contacted, and if he's got any issues he would ring the 25 forensic pathologist.

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1 MS. LUISA RITACCA: Okay. And I 2 anticipate we'll -- 3 DR. HELEN WHITWELL: And also -- 4 MS. LUISA RITACCA: I'm sorry. 5 DR. HELEN WHITWELL: Yes, and also 6 involved police and also any potential defence lawyers. 7 MS. LUISA RITACCA: Thank you. And Dr. 8 Saukko, you had the same concern about organ harvesting 9 in the Kenneth case and I had the same question for you. 10 Are -- are there any circumstances in -- 11 in Finland where you would be allowed to harvest organs, 12 even where it's a suspicious, or a criminally suspicious 13 case? 14 DR. PEKKA SAUKKO: No. We -- we don't 15 allow them to harvest organs if it's a suspicious death. 16 MS. LUISA RITACCA: Okay. And finally 17 Dr. Whitwell, if I -- could I ask you to turn to Tab 4 of 18 your additional documents binder, Volume I. 19 20 (BRIEF PAUSE) 21 22 DR. HELEN WHITWELL: Yes. 23 MS. LUISA RITACCA: And this is an 24 article entitled, "Reforming the Coroners Service." 25 DR. HELEN WHITWELL: Yes.

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1 MS. LUISA RITACCA: Prepared for the BMJ; 2 that's the British Medical Journal, is that right? 3 DR. HELEN WHITWELL: Yes. 4 MS. LUISA RITACCA: And it was prepared 5 in July 2003, is that correct? 6 DR. HELEN WHITWELL: It was published in 7 July -- 8 MS. LUISA RITACCA: Oh, published in, I'm 9 sorry. 10 DR. HELEN WHITWELL: Yes. 11 MS. LUISA RITACCA: The top of my page 12 says it was downloaded December '07, but I assumed it was 13 prepared earlier than that. 14 And as I understand the article -- it's 15 prepared by you and Professor Milroy, is that correct? 16 DR. HELEN WHITWELL: Yes. 17 MS. LUISA RITACCA: Okay. And the both 18 of you are commenting on the state of the coronial 19 service in the UK in the context of the Shipman Inquiry 20 report? 21 DR. HELEN WHITWELL: Yes. 22 MS. LUISA RITACCA: And also in the 23 context of a review that was conducted of the coroner 24 services in England, Wales, and Northern Ireland? 25 DR. HELEN WHITWELL: That's right. There

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1 were two (2) -- there was associated -- Dame Janet Smith 2 review. 3 MS. LUISA RITACCA: Yes. 4 DR. HELEN WHITWELL: And the home office 5 under Tom Luce, his review, which I think came out well 6 after, but... 7 MS. LUISA RITACCA: It looks like a month 8 apart. Is that..? 9 DR. HELEN WHITWELL: Yes, I think that's 10 correct. 11 MS. LUISA RITACCA: Right. Both in -- in 12 the summer of 2003. 13 And if I can take you to the first 14 paragraph in your article there, I see that you're 15 commenting, as I said, on the coroner system, and 16 starting at "The coroner", which is a few sentences down: 17 "The coroner is central to death 18 investigation in the English legal 19 system, and implementation of these 20 proposals will result in major 21 changes." 22 And those are the proposals of the Inquiry 23 and the review, that's correct? 24 DR. HELEN WHITWELL: Correct. 25 MS. LUISA RITACCA: And:

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1 "The current system is fragmented, 2 legalistic and inadequately funded. 3 The coroner was exported to many 4 Commonwealth countries. In the United 5 States and Canada many states and 6 provinces have abolished the coroner 7 system, replacing it with a medical 8 examiner system, other systems having 9 been modernized, notably in Ontario, 10 Canada and Victoria, Australia." 11 I read that correctly? 12 DR. HELEN WHITWELL: Yes. 13 MS. LUISA RITACCA: And can you tell us 14 what the impetus of -- for this paper was, for you and 15 Dr. Milroy. 16 DR. HELEN WHITWELL: Well, it was a 17 review and an editorial -- well, an editorial -- really, 18 to -- probably to try and see the way forward, based on 19 both of the -- these reports and to -- to look at the 20 weaknesses and perhaps make some suggestions. 21 MS. LUISA RITACCA: And as I see it, 22 you've -- you've plucked out, as it were, a number of 23 the recommendations made by Dame Smith and by the author 24 of the review. 25 DR. HELEN WHITWELL: Yeah. The Luce,

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1 yeah. 2 MS. LUISA RITACCA: Yeah. And including 3 -- if we go down to the first three -- I'm sorry, the 4 third paragraph, starting, "The Shipman Inquiry": 5 "The Shipman Inquiry proposes greater 6 medical input." 7 DR. HELEN WHITWELL: Yes, that's correct. 8 MS. LUISA RITACCA: 9 "The Inquiry rightly recognizes that 10 many of the decisions taken by the 11 coroner, or frequently the Coroner's 12 Office, are medical. 13 The inquiry therefore proposes sixty 14 (60) medical coroners in district 15 offices, along with regional medical 16 coroners and a chief medical coroner." 17 Skipping one sentence, then: 18 "The Medical Coroner would have the 19 responsibility for the medical 20 investigation." 21 And I take it this was a recommendation 22 that you and Professor Milroy thought was a good 23 recommendation? 24 DR. HELEN WHITWELL: It was one (1) of 25 the recommendations. And certainly we recognize the

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1 issue of having more medical input. I think at the stage 2 we wrote it, it was slightly -- it was unclear really, 3 how things would evolve -- 4 MS. LUISA RITACCA: Okay. 5 DR. HELEN WHITWELL: -- which they 6 haven't evolved really at all. 7 MS. LUISA RITACCA: That was going to be 8 my last question for you, but you've -- you've answered 9 it. 10 DR. HELEN WHITWELL: So, you see there's 11 a lot of discussion, you know, in general terms. For 12 example, does the Medical Coroner do everything? Or do 13 you have a separate -- the legal one with medical input? 14 MS. LUISA RITACCA: Yes, okay. And if I 15 could take you down to the bottom, last sentence on that 16 page, the review recommends -- if you flip the page, Mr. 17 Registrar, it's the second page: 18 "Recommends formal contractual 19 relations with pathologists. The 20 Inquiry suggests that a special health 21 authority could provide pathology 22 services, including both forensic 23 pathologists and histopathologists 24 doing coronial work. Post-mortem 25 examinations should meet approved

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1 standards with greater use of 2 toxicology. 3 The Review calls for audits of coronial 4 pathology and for the work to form part 5 of the pathologist's appraisal." 6 Could -- can you help us explain why it's 7 important to have a connection between the forensic 8 services and the coronial death investigation, or why you 9 and Dr. Milroy -- 10 DR. HELEN WHITWELL: No, what we 11 suggested here -- and in fact, it was a suggestion from 12 the then President of our Royal College and myself, that 13 at the moment the system in England and Wales is 14 fragmented. So some -- for example, in Cardiff, all the 15 coronial autopsies, as well as the suspicious cases, are 16 done by the University of Forensic Pathology in Cardiff. 17 Elsewhere, you've got a hodgepodge 18 situation, where consultants who are primarily Diagnostic 19 Histopathologists within the NHS, do the coronial work on 20 top. It doesn't come -- it doesn't -- it -- it's -- 21 contractual work on top of service diagnostic work. And 22 in other areas, the pathologist may do it as part of 23 private practice. 24 There has been no quality control issues, 25 no real audit. Although, there have been some reviews

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1 after this was published. 2 MS. LUISA RITACCA: Right. 3 DR. HELEN WHITWELL: It -- looking at the 4 quality of coronial autopsy work and -- and it was felt - 5 - and it certainly, in my opinion, that it -- it was just 6 not designed as a proper service. 7 Now the reason that Professor Underwood 8 and I suggested a special health authority is that it's - 9 - you could organize it as a national service and then 10 you could have forensic units, with forensic pathologists 11 in, with a se -- a ha -- we call it a hub and spoke 12 service -- so that you could then have district 13 pathologists and if they got, you know, had difficult 14 cases, that you could have a referral system in and out 15 and then you could have it also properly funded. 16 MS. LUISA RITACCA: And how would that 17 hub and spoke forensic services be related to the 18 coronial service, the investigation arm? 19 DR. HELEN WHITWELL: You would -- that 20 service would supply the pathology input to the coronial 21 service, right. The -- the medical input, which the 22 reports were -- were keen on, is actually -- was 23 potentially for more clinical input in terms of reviewing 24 medical records, et cetera, et cetera, which I think is 25 what actually happens in -- from what I've seen of

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1 Toronto, it does -- it does happen. 2 And one (1) of -- one (1) of the issues is 3 that there's no real targeting of who should have a post- 4 mortem or not in England and Wales. There are a various 5 statutory, you know, cases which are -- are reported, and 6 the potential would -- could be to reduce the overall 7 autopsy rate, but to do a higher standard on those cases 8 which -- when it was necessary to do. 9 MS. LUISA RITACCA: And in your view 10 there would be a lower autopsy rate if there was a 11 medical coroner involved in the earlier stage of the 12 investigation? 13 DR. HELEN WHITWELL: Whether -- whether 14 you'd call them medical coroners or whether you'd call 15 them -- 16 MS. LUISA RITACCA: Investig -- medical 17 investigators. 18 DR. HELEN WHITWELL: Yes. I mean I think 19 Alberta has a system, a death investigation system, where 20 they mainly have people with medical backgrounds doing 21 the -- and that's what I think, the initial 22 investigation. 23 MS. LUISA RITACCA: Right. And I think 24 you've answered this, but I'll -- I'll ask it: Have 25 there been any of these improvements since 2003?

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1 DR. HELEN WHITWELL: No, I mean every -- 2 the Coroner's Act in England and Wales is -- is ancient, 3 it's archaic, some of the -- the actual sections. So, 4 for example, coroners are still not allowed to move a 5 body from say Birmingham to London, or some will 6 interpret it like that. So even -- even minor changes 7 like that still haven't been done. 8 MS. LUISA RITACCA: And -- and has there 9 been any change as a result of Lady Smith's, Dame Smith's 10 Inquiry? 11 DR. HELEN WHITWELL: Various 12 recommendations have -- have gone to government, but 13 nothing seems -- seems to have happened. And I think, 14 from a legal point of view, because of the way the 15 original Coroners Act is devised, it -- it needs -- it 16 needs to go through Parliament. 17 MS. LUISA RITACCA: Thank you, Doctors. 18 Those are my questions, Commissioner. 19 COMMISSIONER STEPHEN GOUDGE: On that 20 sobering note, Mr. Sandler...? 21 22 RE-DIRECT EXAMINATION BY MR. MARK SANDLER: 23 MR. MARK SANDLER: Dr. Saukko, a number 24 of counsel here seem to want to tell you what they think 25 of when they think of Finland. I must be spending too

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1 much time with this Inquiry, when I think of Finland, I 2 think of you, sir. 3 DR. PEKKA SAUKKO: Yeah. 4 MR. MARK SANDLER: I'm going to ask you 5 some questions about the Kenneth case arising out of some 6 cross-examination by Mr. Lockyer. 7 DR. PEKKA SAUKKO: Yes, please. 8 MR. MARK SANDLER: And if I can take you 9 to your volume at Tab 14. 10 11 (BRIEF PAUSE) 12 13 MR. MARK SANDLER: And this is PFP047840. 14 And you'll recall Mr. Lockyer asked you some questions 15 about the desirability of toxicological and other 16 ancillary investigations being done on the seizure issue 17 arising out of the Kenneth case. 18 DR. PEKKA SAUKKO: Of course. 19 MR. MARK SANDLER: Do you remember him 20 asking you those questions? 21 DR. PEKKA SAUKKO: Yeah. Yes. 22 MR. MARK SANDLER: And just in -- in 23 fairness, if I can take you to page 7 of this letter from 24 Dr. Huyer to the investigating officer, or one (1) of the 25 investigating officers on the case, and we actually see

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1 at page 7, the second last paragraph, that a 2 "toxicological screen was negative, 3 apart from barbiturates, most likely 4 the Phenobarbital given in the ICU 5 prior to sample collection; acetones, 6 which likely represents ketones from 7 low oxygenation; and the Dilantin level 8 soon after admission was less than 5." 9 So it would appear that some toxicological 10 work indeed was done, as reported by Dr. Huyer; am I 11 right? 12 DR. PEKKA SAUKKO: That's correct, yeah. 13 MR. MARK SANDLER: Now if you'd go to Tab 14 13, which is the overview report in connection with 15 Kenneth. It's PFP144159. And -- and if you'd go to page 16 97 of the overview report. You'll see at paragraph 285, 17 a paragraph that Mr. Lockyer asked you some questions 18 about, which reads: 19 "Dr. Smith was asked whether Kenneth's 20 death could have been caused by a 21 seizure." 22 DR. PEKKA SAUKKO: Yes. 23 MR. MARK SANDLER: He stated: 24 "I can't accept that explanation unless 25 you have other evidence to support it.

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1 I don't have evidence of that at all." 2 And -- and you may recall that -- that I 3 made a comment at that point simply to put a more fulsome 4 account of what Dr. Smith said on the record. And 5 perhaps we can just do that briefly, and I have a 6 question arising out of it. 7 At page 100, we see -- and this is at 8 paragraph 296 that at the trial: 9 "Dr. Smith agreed that although he was 10 unconvinced, he couldn't rule out the 11 possibility that Kenneth may have died 12 of a seizure." 13 DR. PEKKA SAUKKO: That's correct. 14 MR. MARK SANDLER: Is that right? And 15 that accords with your recollection of your review of the 16 trial -- 17 DR. PEKKA SAUKKO: Yes. 18 MR. MARK SANDLER: -- testimony? And we 19 also see another entry at page 57. And at page 57 of the 20 overview report at paragraph 162, the Commission has 21 summarized Dr. Smith's evidence that was given at the 22 preliminary inquiry. And you see at paragraph 162: 23 "Dr. Smith could not rule out the 24 possibility that Kenneth may have died 25 from a seizure."

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1 And then we've reproduced it on this page 2 and then into the following page, and I'll take you to 3 the following page, what Dr. Smith had to say on that 4 particular issue. And you'll see that it ends with the 5 comment at page 58: 6 "Now, I'm not a pediatric neurologist, 7 I'm not a neurologist, so you need to 8 understand the limits of my knowledge 9 here." 10 So just stopping there for a moment. 11 Would it be fair and appropriate for a forensic 12 pathologist to be acknowledging that in the area of 13 seizure, assistance could be rendered and should be 14 rendered by a pediatric neurologist? 15 DR. PEKKA SAUKKO: That's correct. 16 MR. MARK SANDLER: And -- and you know 17 from your review of the materials that -- that indeed a 18 forensic -- sorry, a pediatric neurologist, Dr. Logan 19 (phonetic), did it express an opinion and was called by 20 the Crown at trial on the issue of seizure, in part; am I 21 right? 22 DR. PEKKA SAUKKO: Yes. 23 MR. MARK SANDLER: Okay. Now, if I can 24 move from that point for a moment. You'll recall that 25 you've been asked by a number of counsel about

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1 circumstantial diagnoses of asphyxia and, in particular, 2 and -- and not confining to Mr. Ortved's cross- 3 examination, but he put to you the portion where he asked 4 you: 5 "So what Dr. Pollanen effectively is 6 saying is that what we have here..." 7 And we're talking about the Kenneth case. 8 "...is a circumstantial diagnosis and 9 really the issue is for the court to 10 decide, correct?" 11 And, Dr. Saukko, you acknowledged that 12 that is what Dr. Pollanen effectively was saying. And 13 what I want to do is take you just briefly to Tab 15 of 14 your materials, PFP005902. And -- and let me make clear, 15 Dr. Saukko, I don't want to revisit the issue of the 16 extent to which forensic pathologists should incorporate 17 non-medical circumstantial information in determining 18 cause of death. 19 Your views on that have been expressed in 20 response to a number of questions, and -- and I don't 21 know that we have to talk about that issue, which is 22 fully engaged through Dr. Pollanen's evidence and your 23 own. 24 But what I want to ask you just from a 25 systemic perspective and -- and from a perspective of

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1 transparency, when you look at page 5 of this report of 2 post-mortem examination, if you were engaged in -- in the 3 independent review of this report of post-mortem 4 examination, can you help us, based upon its structure 5 and its content as to what you would take from this as to 6 the basis upon which Dr. Smith was opining that the cause 7 of death was asphyxia? 8 DR. PEKKA SAUKKO: Well, the problem was 9 -- with these, that in the report you -- you have no idea 10 what -- what he's -- he's reasoning. 11 MR. MARK SANDLER: All right. So first 12 of all, from a transparency perspective, if -- and I say 13 if, a pathologist is of the view that non-medical 14 circumstantial evidence should inform the cause of death, 15 you'd expect systemically that it would be -- 16 DR. PEKKA SAUKKO: That's if -- 17 MR. MARK SANDLER: -- helpful to identify 18 what information is relied upon? 19 DR. PEKKA SAUKKO: Exactly. 20 MR. MARK SANDLER: Otherwise you've got 21 no basis -- 22 DR. PEKKA SAUKKO: Yeah. 23 MR. MARK SANDLER: -- to review the 24 sufficiency, or the adequacy, or the accuracy of what's 25 here. Am I right?

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1 DR. PEKKA SAUKKO: That's correct. 2 MR. MARK SANDLER: And secondly, if you 3 just -- leaving aside that issue, if you look under 4 Summary of Abnormal Findings, we see number 1 asphyxia 5 with, and then you've got subcategories under that. 6 Am I right, and you can tell me if I'm 7 misreading it, but it -- it would seem that in the 8 absence of any other explanation, one could presume that 9 the asphyxia is 10 based upon the findings that are subsumed under asphyxia. 11 Is that right? 12 DR. PEKKA SAUKKO: That's correct. 13 MR. MARK SANDLER: Okay. And -- and the 14 same comments systemically about transparency and whether 15 or not Dr. Smith was relying upon circumstantial 16 evidence, at least on the surface of the documents, could 17 be said about Delaney. 18 There was no reflection in the Report of 19 Post-Mortem Examination in the Delaney case of the 20 circumstantial evidence that might have informed his 21 cause of death if it wasn't what's contained in his 22 summary of abnormal findings. Is that accurate? 23 DR. PEKKA SAUKKO: That's cor -- correct. 24 MR. MARK SANDLER: All right. Now, 25 Professor Whitwell, if I can turn to you, because you

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1 haven't been asked enough questions today, and -- and I'm 2 just going to ask you a few, if I may, and...I don't 3 think it'll help, but I'm happy to do that. Sure. 4 Mr. Ortved thought that it would be 5 helpful if I actually took you to the Delaney -- I'm 6 sorry, Dr. Saukko, to the Delaney Report of Post-Mortem 7 Examination. So lets -- lets do that. 8 So Dr. Whitwell, you've got a reprieve for 9 a moment. And if I can take you to the Delaney Report of 10 Post-Mortem Examination, which is PFP002507, which is at 11 Tab 7. 12 DR. PEKKA SAUKKO: Yes. 13 MR. MARK SANDLER: And if you'd go to 14 page 4, I've been asked to point out to you that under 15 Summary of Abnormal Findings, under asphyxia, we see 16 "digital airway obstruction." 17 DR. PEKKA SAUKKO: That's correct. 18 MR. MARK SANDLER: And -- and again, just 19 -- if you had been looking at this report without the 20 benefit of -- of any discussion that's taken place here 21 about circumstantial diagnoses, what would you infer was 22 the basis for Dr. Smith -- rightly or wrongly, what would 23 you infer was the basis for Dr. Smith opining that 24 asphyxia digital airway obstruction took place here? 25 DR. PEKKA SAUKKO: Well, I understood

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1 that it came from the history given by the mother. 2 MR. NIELS ORTVED: Right. 3 4 CONTINUED BY MR. MARK SANDLER: 5 MR. MARK SANDLER: All right. So -- so 6 the -- and you would infer that because the abnormal 7 findings, and anything else that's contained in the 8 Report of Post-Mortem Examination would not support that 9 conclusion. 10 Is that right? 11 DR. PEKKA SAUKKO: Sorry. 12 MR. MARK SANDLER: Should I ask that 13 again? 14 DR. PEKKA SAUKKO: Yes, please. 15 MR. MARK SANDLER: In other words, you 16 would infer that he must have gotten digital airway 17 obstruction from something other than the pathology, 18 because there's nothing in the path -- pathology that's 19 described in the Report -- 20 DR. PEKKA SAUKKO: That's correct. 21 MR. MARK SANDLER: -- of Post-Mortem 22 Examination that leads to that conclusion. 23 DR. PEKKA SAUKKO: That's correct. 24 MR. MARK SANDLER: All right. And again, 25 systemically, and I'm not sure Mr. Ortved would take

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1 issue with this -- systemically it would be preferable if 2 circumstantial evidence is being relied upon to inform 3 the decision, whether you agree with that or not, it'd be 4 identified in the Report of Post-Mortem Examination? 5 DR. PEKKA SAUKKO: Exactly. Yes. 6 MR. MARK SANDLER: Okay. Thank you, Mr. 7 Ortved, that's helpful. 8 Now, Professor Whitwell, if I can take you 9 to the Dustin overview report, which is at Tab 28 of 10 Volume IV of your material; PFP142940. 11 DR. HELEN WHITWELL: Sorry. What tab did 12 you say? 13 MR. MARK SANDLER: This is at Tab 28. 14 DR. HELEN WHITWELL: Yes. 15 MR. MARK SANDLER: And you were taken by 16 counsel for the Affected Family group, to page 86 of the 17 overview report. 18 DR. HELEN WHITWELL: Yes. 19 MR. MARK SANDLER: And at paragraph 223, 20 Dr. Smith is giving some evidence in the Dustin case 21 about the Amber Case. 22 DR. HELEN WHITWELL: Yes. 23 MR. MARK SANDLER: Do you remember being 24 taken to this passage? 25 DR. HELEN WHITWELL: Yes.

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1 MR. MARK SANDLER: And one (1) of the 2 items that your attention was -- was drawn to, and just 3 so that we can ensure that the record is straig -- is 4 clear, is that in the middle of this excerpt, he says: 5 "In fact, [this is about five (5) lines 6 down -- I'm sorry, I'll go up to give 7 you the context.] For instance, if you 8 wander into the area of retinal 9 hemorrhaging, you will see the medical 10 literature which was very controversial 11 five (5) years ago, in fact, has become 12 much less controversial. 13 And so there have been very good 14 studies published in the last several 15 years that would make it very clear 16 that the type of retinal hemorrhage in 17 here, and the type of retinal 18 hemorrhage that was seen in Timmins how 19 many years ago that was, does not occur 20 as part of a trivial fall. 21 And so you know what I said five (5) 22 years ago, in fact, though I know the 23 controversies and the experts who 24 testified against me, were people who 25 almost -- all of whom were part of this

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1 one (1) study I talked about from 2 1987." 3 Now I want to ask you two (2) questions 4 arising out of that. The first is, he's alluding to the 5 fact that there was a debate that took place about 6 whether there's a different kind of retinal hemorrhage 7 that exists in the shaken baby case from a retinal 8 hemorrhage that would be manifest in -- in other 9 situations. And -- did you understand that that's also a 10 debate that's taken place in the forensic pathology 11 community? 12 DR. HELEN WHITWELL: It has. 13 MR. MARK SANDLER: And -- and am I right 14 that if one moves to the Harris Case -- which I'm going 15 to go to in a moment -- in the English Court of Appeal. 16 The English Court of Appeal even talks about the fact 17 that that controversy remains alive as between the 18 forensic pathologists who testified before the English 19 Court of Appeal at that time? 20 DR. HELEN WHITWELL: Yes, in fact it was 21 really the ophthalmologist, not the pathologists. 22 MR. MARK SANDLER: Okay. And the second 23 feature of -- of this passage was that Dr. Smith 24 testified that -- that: 25 "...the experts who testified against

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1 me, were people who, almost all of 2 whom, were part of this one (1) study I 3 talked about from 1987." 4 And if we can just look at the study, I 5 take it you took that to be the Duhaime study in 1987? 6 DR. HELEN WHITWELL: Well I did; I said 7 that this morning, I think. 8 MR. MARK SANDLER: Right. And if you go 9 to PFP094981 -- 10 DR. HELEN WHITWELL: Sorry, what -- 11 MR. MARK SANDLER: And this isn't in a 12 binder. You'll have to just look on the screen, and 13 we're only going to look at the top of it -- 14 DR. HELEN WHITWELL: Okay. 15 MR. MARK SANDLER: -- in any event. This 16 appears to be the 1987 "Shaken Baby Syndrome Clinical, 17 Pathological and BioMechanical Study", is that right? 18 DR. HELEN WHITWELL: Yes. 19 MR. MARK SANDLER: And again, just so the 20 record's clear, it lists a number of authors, and -- and 21 as I read them, Dr. Duhaime is one (1) of the authors, 22 and she testified for the defence in the Amber case, 23 right? 24 DR. HELEN WHITWELL: Yes. 25 MR. MARK SANDLER: And Dr. Thibault was

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1 one (1) of the authors, and he testified for the defence 2 in the Amber case? 3 DR. HELEN WHITWELL: Mm-hm. Yes. 4 MR. MARK SANDLER: And the other authors 5 are authors none of whom testified in the Amber case, am 6 I right? 7 DR. HELEN WHITWELL: Not -- not that I'm 8 aware of, no. 9 MR. MARK SANDLER: Not that you're aware 10 of, and of the nine (9) experts that testified for the 11 defence in the Amber case, so we've got Dr. Duhaime and 12 Dr. Thibault, right? 13 DR. HELEN WHITWELL: Correct. 14 MR. MARK SANDLER: Okay. Now if we can 15 move from there, and just as an entree to some questions 16 that both Mr. Lockyer and Mr. Ortved asked you about the 17 English Court of Appeal decisions. 18 Mr. Ortved was asking you about Dr. 19 Smith's opinion that the triad or the findings in Dustin 20 were pathopneumonic of Shaken Baby Syndrome, and you 21 agreed that's what Dr. Smith said. 22 And you agreed with Mr. Ortved that that 23 was a defensible conclusion in 1992. And Mr. Ortved said 24 to you: 25 "In pathopneumonic -- he looked it up

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1 in the dictionary -- it's specifically 2 characteristic of a particular disease, 3 do you agree with the definition?" 4 And you said: 5 "It sounds correct." 6 And then Mr. Ortved said: 7 "So actually in medical terminology, 8 sounds very much like the Court of 9 Appeals terminology -- a strong pointer 10 -- doesn't it?" 11 Dr. Whitwell: 12 "Well, pathopneumonic to me is 13 diagnostic. The Court of Appeal is 14 saying a strong -- a strong pointer. 15 As I think I said yesterday, in 1992 16 clinicians and pathologists would -- 17 most would have come up with this sort 18 of statement. I think that this is the 19 group that Dr. Pollanen has referred to 20 now where you have a young infant with 21 the triad and no objective evidence of 22 trauma. That's now the difficult 23 case." 24 And Mr. Ortved said: 25 "It's put in this way, Dr. Whitwell.

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1 It's difficult for you, but it actually 2 is not so difficult for the Court of 3 Appeal." 4 And you said: 5 "Well, yes, but no. I accept that. 6 Whether or not the Court of Appeal is 7 the correct place to judge scientific 8 literature, I'm not clear about." 9 When I read the Court of Appeal decision 10 in -- in Harris, et al, it would seem that -- the Court 11 of Appeal has said that -- that -- and -- and I'm going 12 to take you to the passage now. 13 Why don't we do that instead of -- instead 14 of my paraphrasing. Let's look at it because we're going 15 to examine it just in several features. It's in Volume 16 II, Tab 39, of your materials, PFP151105. 17 Now, before we go into the -- the specific 18 paragraphs; as I understand it, there's -- there's four 19 (4) appellants, am I right? 20 DR. HELEN WHITWELL: Correct. 21 MR. MARK SANDLER: And as I understand 22 it, in the result, two (2) of the appellants had their 23 convictions quashed as unsafe. 24 DR. HELEN WHITWELL: Correct. 25 MR. MARK SANDLER: One (1) had his

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1 conviction upheld on appeal. 2 DR. HELEN WHITWELL: Correct. 3 MR. MARK SANDLER: And one (1) had his 4 conviction for murder reduced to manslaughter on appeal, 5 do I have that right? 6 DR. HELEN WHITWELL: Yeah. Yes, that's 7 correct. 8 MR. MARK SANDLER: And -- and you were 9 asked, and I'll -- I'm going to come back to this 10 pathopneumonic point as we go through the judgment 11 briefly, but you were asked about Geddes, Number 3 -- 12 DR. HELEN WHITWELL: Yes. 13 MR. MARK SANDLER: -- otherwise known as 14 the Unified Hypothesis. 15 DR. HELEN WHITWELL: That's correct. 16 MR. MARK SANDLER: And -- and it is quite 17 clear that the -- that the Court in its judgment rejected 18 the application of the unified hypothesis, am I right? 19 DR. HELEN WHITWELL: Correct. 20 MR. MARK SANDLER: But if we look at 21 paragraph 58, simply for context, and fairness to you, 22 and I don't have page numbers, so we'll have to work on 23 paragraphs, if we may, Mr. Registrar, so if you go at 24 paragraph 58. 25

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1 (BRIEF PAUSE) 2 3 MR. MARK SANDLER: You'll see that Dr. 4 Geddes' position is -- is summarized. And if we go down 5 to where it says "Dr. Geddes", it says: 6 "Dr. Geddes, at the beginning of her 7 cross-examination, accepted that the 8 unified hypothesis was never advanced 9 with a view to being proved in Court. 10 She said that it was meant to stimulate 11 debate. Further, she accepted that the 12 hypothesis may not be quite correct, or 13 as she put it, I think we might not 14 have the theory quite right. I think 15 possibly the emphasis on hypoxia, you 16 know, I think possibly we're looking 17 more at raised pressure being the 18 critical event." 19 And if we could move down to the next 20 page. And then there's some discussion about the fact 21 that she thinks it's unfortunate that it's been relied 22 upon to the extent to which it has been. 23 And she reflects in her answer: 24 "It's not fact; it's hypothesis, but as 25 I've already said, so is the

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1 traditional explanation. I would very 2 unhappy to think that cases were being 3 thrown out on the basis that my theory 4 was fact. We asked the editor if we 5 could have hypothesis paper put at the 6 top, and he did not, but we do use the 7 word "hypothesis" throughout." 8 And again, does that accord -- as -- as a 9 coauthor of the -- of the project, does that accord with 10 -- with your outlook of the Geddes 3, so to speak? 11 DR. HELEN WHITWELL: Correct. 12 MR. MARK SANDLER: Now, you've referred 13 throughout your testimony, and particularly in 14 examination-in-chief to Geddes 1 and 2, and Dr. Pollanen 15 referred to it, as well. 16 And -- and I don't intend to take you to 17 all of the passages, but am I right, if one looks at -- 18 and I'll just give the references for others, if one 19 looks at paragraphs 74 to 76, 148, 182 to 183, and 256 to 20 257, the Court reflected general acceptance of the 21 findings in Geddes 1 and 2, am I right? 22 DR. HELEN WHITWELL: That's correct. 23 MR. MARK SANDLER: And -- and indeed it 24 appeared to be common ground that -- amongst the 25 scientific community that -- of general acceptance of

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1 what had been learned from Geddes 1 and 2. The issue was 2 it's application, am I right? 3 DR. HELEN WHITWELL: That's correct, yes. 4 MR. MARK SANDLER: And -- and as well, we 5 actually see that Geddes 1 and 2, which you utilized in 6 the testimony that you give on -- on, for example, 7 Faulder -- figures prominently in the courts 8 determination as to what one can truly say about amount 9 of force that's actually needed before a child is 10 injured? 11 DR. HELEN WHITWELL: That's correct. 12 MR. MARK SANDLER: Okay. Now, if you'd 13 go to paragraph 70. This is what the court said about 14 the -- about the triad. And I'm not going back to the 15 whole issue of what it was that the English Court of 16 Appeal said as a bottom line here on pathonomonic 17 diagnostic and the light. It says: 18 "Mr. Horwell..." 19 And this would be the Crown counsel. 20 "...in his final submissions invited 21 the court to find that the triad was 22 proved as a fact and not just a 23 hypothesis. On the evidence before us, 24 we do not think it possible for us to 25 do so. While such strong pointer to

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1 non-accidental head injury on its own, 2 we do not think it possible to find 3 that it must automatically and 4 necessarily lead to a diagnosis of non- 5 accidental head injury. All the 6 circumstances, including the clinical 7 picture, must be taken into account. 8 In any event, on general issues of this 9 nature where there's a genuine 10 difference between two (2) reputable 11 medical opinions, in our judgment, the 12 Court of Criminal Appeal will not 13 usually be the appropriate forum for 14 these issues to be resolved." 15 And again, that's reflecting some of the 16 sentiments that you expressed earlier about the 17 appropriateness of -- of the appellate forum to resolve 18 scientific issues, am I right? 19 DR. HELEN WHITWELL: That's correct. 20 MR. MARK SANDLER: And it's also 21 reflecting that -- that the court was not saying that 22 these are no longer difficult cases, was it? 23 DR. HELEN WHITWELL: No. 24 MR. MARK SANDLER: And as Mr. Lockyer 25 said to you in examination, the first case in the

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1 sequence, which only involved the triad, was quashed as 2 unsafe? 3 DR. HELEN WHITWELL: Correct. 4 MR. MARK SANDLER: Now, Mr. Ortved asked 5 you about your testimony in -- in Cherry. We know in 6 Harris that the conviction was quashed. We know in the 7 Rock (phonetic) decision that -- that the conviction was 8 -- was upheld -- I'm sorry, that the -- that the murder 9 conviction was reduced to manslaughter, right? 10 DR. HELEN WHITWELL: Yes. 11 MR. MARK SANDLER: And -- and then in the 12 Cherry and Faulder cases, you testified in relation to 13 both, did you not? 14 DR. HELEN WHITWELL: Yes. 15 MR. MARK SANDLER: And in Cherry, if we 16 can just look at paragraph 191. And -- and you'll recall 17 that Mr. Ortved asked you and you agreed that you'd 18 originally testified, having conducted the post-mortem 19 examination in this case, in -- in -- for the Crown. 20 And that you were testifying in favour of 21 the defence position before the appellate court, is that 22 right? 23 DR. HELEN WHITWELL: Correct. 24 MR. MARK SANDLER: That's cherry. And -- 25 and what reflected at paragraph 191:

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1 "Her report prepared for the appeal 2 evidences her revised views. She said 3 that the possibility of Sarah suffering 4 a fatal injury as a result of falling 5 from the chair had to be considered a 6 fresh in the light of Dr. Plunkett's 7 research. The primary brain pathology 8 was due to lack of oxygen, this hypoxic 9 ischemic injury could have been caused 10 as a result of primary injury to the 11 brain causing Sarah to stop breathing 12 and/or as a result of vomiting with 13 inhalation of vomit into the lungs. 14 She would still, to an extent, be 15 unhappy as regards the scalp bruises 16 arising in a fall, but it has to be a 17 considered possibility that Sarah's 18 head impacted against some other 19 surface as well as the ground." 20 And then you reflect in your -- they 21 reflected in your oral evidence at the appeal: 22 "You explained that your changed of 23 view was based on Dr. Plunkett's work 24 and your own experience. She had not 25 found diffuse axonal injury. Such

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1 trauma, she found, was associated with 2 impact. The need to explain Sarah's 3 scalp bruising in one (1) separate 4 locations lead to Professor Whitwell 5 contemplating that Sarah might have 6 struck her hear both on the window and 7 then on the ground in the course of her 8 fall. Indeed, she later underlined two 9 (2) impacts were needed to explain this 10 bruising." 11 And then if you go to the next paragraph 12 193: 13 "She agreed that at post-mortem there 14 was no evidence of vomit or aspiration. 15 She agreed that Sarah has up to a 16 maximum of twenty-two (22) bruises. 17 She was concerned about that number of 18 bruises. They are probably more than 19 fair wear and tear for a twenty-one 20 (21) month old. In the absence of 21 proper explanation, they were highly 22 suggestive of abuse. 23 There had been no developments in 24 science between the trial and the 25 appeal to alter her view as to the

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1 relevance of the two (2) sites of scalp 2 bruising. 3 Her view at the trial, and she was the 4 person who had conducted the post- 5 mortem, was that those two (2) areas of 6 bruising had been caused at about the 7 same time. She had herself identified 8 traumatic injury to the brain. She 9 accepted that the subdural bleeding 10 occurred because of the tearing of 11 bridging veins." 12 So if one looks at, actually, the facts in 13 the case, there was -- there was significant pathology 14 including a number of bruises that the court ultimately 15 weighed as circumstantial evidence as to what should be 16 done with a conviction, am I right? 17 DR. HELEN WHITWELL: That's correct. 18 MR. MARK SANDLER: And secondly, as 19 you've reflected, did you ever express the opinion that - 20 - that this was a -- an accidental injury or postulated 21 that as a possibility in light of the new work that had 22 been done? 23 DR. HELEN WHITWELL: In ter -- I'm sorry, 24 could you just repeat the question? 25 MR. MARK SANDLER: Sure. Did you ever

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1 express the opinion to the court that in your -- that you 2 were able to form the opinion that this was an accidental 3 injury or only that that possibility now had to be raised 4 in light of the more recent work done by -- 5 DR. HELEN WHITWELL: Raised. 6 MR. MARK SANDLER: -- Dr. Plunkett and 7 others? 8 DR. HELEN WHITWELL: Raised. 9 MR. MARK SANDLER: All right. And even 10 as part of that scenario, the -- the court would have to 11 find concern about two (2) separate impacts occurring 12 accidentally, is that right? 13 DR. HELEN WHITWELL: That's correct. 14 MR. MARK SANDLER: On your evidence? 15 DR. HELEN WHITWELL: That's correct. 16 MR. MARK SANDLER: Okay. 17 COMMISSIONER STEPHEN GOUDGE: And at the 18 same time? 19 DR. HELEN WHITWELL: And at the same 20 time. 21 22 CONTINUED BY MR. MARK SANDLER: 23 MR. MARK SANDLER: And at the same time. 24 And if we can look at the -- the Faulder case, paragraph 25 256.

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1 DR. HELEN WHITWELL: Yes. 2 MR. MARK SANDLER: And we see that -- in 3 256, the -- the court addresses the opinion that you 4 expressed in the Faulder case, which was based upon 5 Geddes 1 and 2 research. And ultimately, they're unable 6 to reject that opinion and that opinion contributed, as 7 you know, to the decision that that conviction in Faulder 8 was unsafe, is that right? 9 DR. HELEN WHITWELL: Correct. 10 11 (BRIEF PAUSE) 12 13 MR. MARK SANDLER: Excuse me for a 14 moment. 15 16 (BRIEF PAUSE) 17 18 MR. MARK SANDLER: And finally, Mr. Ortved 19 asked you some questions on the -- in connection with 20 Amber. And he asked you: 21 "Dr. Smith wasn't given a chance to 22 reconsider his opinion in relation to 23 the Amber case, correct?" 24 And at first, you said, "I don't know," 25 and then he said:

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1 "Well, did you get anything as part of 2 your package and materials showing that 3 Dr. Smith had been given an opportunity 4 to reconsider his opinion?" 5 And you said: 6 "To be perfectly honest, when I arrived 7 here, I was given so much materials, 8 including on that case." 9 And he said: 10 "The answer is no, you haven't been 11 given anything from Dr. Smith, and the 12 answer is no." 13 I want to focus on this, in part, 14 systemically, though it does arise -- it does arise on 15 the facts of this case, as well. And that is that when 16 we're talking about opportunities to revisit or 17 reconsider a decision, I want to ask you whether or not 18 the following present opportunities to reconsider a 19 decision. 20 The one (1) obvious one is the one that 21 occurred in the English case that we've just talked 22 about, and that is if the case makes its way on appeal 23 and the issue is engaged yet again, in that level or at 24 the Criminal Case Review Commission; that presents an 25 opportunity for the forensic pathologist to revisit in

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1 light of other evidence or other opinions the accuracy of 2 the original opinion expressed, am I right? 3 DR. HELEN WHITWELL: It does, yes. 4 MR. MARK SANDLER: And -- and did you see 5 that as an opportunity in that case? 6 DR. HELEN WHITWELL: In term -- in terms 7 of a -- the judgment of Mr. -- is that what you're 8 referring to? 9 MR. MARK SANDLER: I'm talking about in - 10 - in Cherry that was -- 11 DR. HELEN WHITWELL: I'm sorry, yes. 12 Yes. Yes, a number of us were very interested in -- in 13 finding out, you know, the written. 14 MR. MARK SANDLER: And in -- and in 15 connection with -- 16 DR. HELEN WHITWELL: And that applies to 17 other appeal cases I've been involved in. 18 MR. MARK SANDLER: Right. And in 19 connection with Amber, if you had the opportunity to 20 review a judgment that had been given evaluating your 21 evidence and the evidence of nine (9) other experts, 22 would that present an opportunity to revisit or reassess 23 the opinion that you had given in a case? 24 DR. HELEN WHITWELL: It should, yes. 25 MR. MARK SANDLER: All right. And if

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1 colleagues had raised why it was that the judge rejected 2 your evidence, would that represent an opportunity for 3 you to reevaluate or reconsider the opinion expressed in 4 the case? 5 DR. HELEN WHITWELL: Yes. 6 MR. MARK SANDLER: And if you were cross- 7 examined at a subsequent legal proceeding on the Amber 8 case, would that present an opportunity for you to 9 reevaluate or reassess? 10 OBJ MR. NIELS ORTVED: I have an objection. 11 COMMISSIONER STEPHEN GOUDGE: Mr. 12 Ortved...? 13 MR. NIELS ORTVED: Sir, I object to this 14 line of questioning, which is just gratuitous, and -- and 15 I do so because Mr. Sandler knows exactly what my 16 objection was yesterday when I put to Dr. Whitwell that 17 she'd never seen anything from Dr. Smith. 18 And it has to do with the fact that Dr. 19 Smith was presented with twenty (20) cases -- which have 20 now become eighteen (18) cases -- of conclusions from 21 experts adverse to him and he was given no notice of 22 those whatsoever, and that's what I'm objecting to. 23 And I -- and -- and I don't agree with 24 this. 25 MR. MARK SANDLER: Well, with all due

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1 respect, that isn't what was put to Dr. Whitwell and 2 that's not would analogize to Dr. Whitwell's situation in 3 Cherry, which is where we started this, with great 4 respect. 5 I mean, I'm asking what opportunities 6 present themselves to a forensic pathologist if one truly 7 wants to revisit a decision at a later date. And Mr. 8 Ortved can make the argument that -- that the Chief 9 Coroner's review was unfair in some sense in not 10 providing Dr. Smith, if that's -- if that's what you find 11 with an opportunity to comment upon the findings of the 12 review committee. 13 I'm not addressing that issue. I'm 14 addressing the larger question that he did not confine 15 his question to, and that is the lost opportunity to 16 revisit a decision, and I suggest it is relevant. 17 COMMISSIONER STEPHEN GOUDGE: Why don't 18 you just ask the question: What are the opportunities do 19 you have to revisit your opinion once having given it; if 20 that's where you're going, I take it? 21 MR. MARK SANDLER: It is, but frankly, I 22 was just going to ask about the opportunities that -- 23 that could be said to operate here and some of these are 24 -- are actually materials that -- that were available. 25 I only have a couple of more questions in

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1 the area. 2 COMMISSIONER STEPHEN GOUDGE: Okay, carry 3 on. 4 5 CONTINUED BY MR. MARK SANDLER: 6 MR. MARK SANDLER: So, what I was asking 7 Dr. Whitwell is that if cross-examined on a case in which 8 you had previously testified and challenged on the 9 evidence that you had been given, would that present an 10 opportunity to -- for you to revisit or reevaluate the 11 decision that had been given at the -- your opinion that 12 had been given in the earlier case? 13 DR. HELEN WHITWELL: It -- it would. I 14 mean, I have to say, perhaps in the English Courts, it 15 doesn't -- I've personally not really been in that -- 16 that situation. 17 MR. MARK SANDLER: Fair enough. And if a 18 complaint was made about your opinion expressed in a 19 case, in England, would you have an opportunity to 20 respond to the complaint that had been made? 21 DR. HELEN WHITWELL: You would, yes. 22 MR. MARK SANDLER: And so on Amber, if a 23 complaint were made against Dr. Smith and he had an 24 opportunity to respond, that again would provide an 25 opportunity for him to evaluate or reassess whether or

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1 not he wished to maintain the same or different opinion. 2 Is that right? 3 DR. HELEN WHITWELL: Yes. I mean I can 4 only speak about what potentially could happen in 5 England, and we would have the opportunity to respond. 6 MR. MARK SANDLER: All right. Thank you 7 very much. Those are all the questions. Thank you both. 8 You've been very helpful. 9 COMMISSIONER STEPHEN GOUDGE: Let me just 10 ask this, Dr. Whitwell, and maybe Dr. Saukko. I mean one 11 (1) of the things you have both spent a lot of time 12 enlightening us on is the aspect of forensic pathology 13 that, at least, has evolved as it relates to the Shaken 14 Baby Syndrome debate. 15 In a circumstance -- I mean, take like the 16 case like Cherry, Dr. Whitwell, where because of the 17 change in the information base on which you were 18 operating, you came to another view, fair enough? 19 DR. HELEN WHITWELL: Yes, that's correct. 20 COMMISSIONER STEPHEN GOUDGE: Should 21 there be any obligation on -- I mean, you were faced with 22 a form in which that view could be articulated, because 23 of the revisiting by the English Court of Appeal. 24 Should there be any obligation on forensic 25 pathologists to take the initiative themselves when they

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1 come to the view that they've changed their opinion on 2 the basis of the evolution of their science? 3 I mean, and what I'm getting at -- 4 DR. HELEN WHITWELL: Yes. No, no. 5 COMMISSIONER STEPHEN GOUDGE: -- is that 6 part of -- 7 DR. HELEN WHITWELL: Yeah. 8 COMMISSIONER STEPHEN GOUDGE: -- the 9 issue we're faced with here is that the criminal justice 10 system is forced to make decisions on the basis, 11 sometimes, of cases based on forensic pathology. 12 And what are the corrective mechanisms and 13 should the forensic pathology be a trigger of one (1) of 14 those mechanisms if the science changes? Or is it up to 15 somebody else? 16 DR. HELEN WHITWELL: Well, if a case is 17 current -- 18 COMMISSIONER STEPHEN GOUDGE: That's 19 different? 20 DR. HELEN WHITWELL: -- or a trial is 21 pending -- 22 COMMISSIONER STEPHEN GOUDGE: That's 23 different? 24 DR. HELEN WHITWELL: -- then -- then -- 25 yes, the --

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1 COMMISSIONER STEPHEN GOUDGE: The system 2 can accommodate that with -- 3 DR. HELEN WHITWELL: -- and that -- 4 COMMISSIONER STEPHEN GOUDGE: -- 5 supplementary reports -- 6 DR. HELEN WHITWELL: -- reports -- 7 COMMISSIONER STEPHEN GOUDGE: -- and so 8 on? 9 DR. HELEN WHITWELL: Yeah, exactly. 10 COMMISSIONER STEPHEN GOUDGE: But a case 11 like Cherry? 12 DR. HELEN WHITWELL: I mean one (1) of 13 the -- one (1) of the problems is that most of us have so 14 many cases and they'd all be at various stages. I -- 15 there's no mechanism -- I've take your point, there's no 16 -- you know, there's no -- 17 COMMISSIONER STEPHEN GOUDGE: I don't 18 know whether there should be or not -- 19 DR. HELEN WHITWELL: There's no -- 20 COMMISSIONER STEPHEN GOUDGE: -- I just 21 am curious -- 22 DR. HELEN WHITWELL: There's no -- 23 COMMISSIONER STEPHEN GOUDGE: -- that you 24 were obviously were given a mechanism by the English 25 Court of Appeal considering these four (4) cases? And so

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1 it's still in the system in that sense? 2 DR. HELEN WHITWELL: Yeah, the -- the -- 3 yes, they -- they were in the system perhaps because of 4 the review of the child, et cetera, et cetera -- 5 COMMISSIONER STEPHEN GOUDGE: Right. 6 DR. HELEN WHITWELL: -- but there's no 7 mechanism for -- there's no person that I can write to 8 and say, You know, this has changed -- 9 COMMISSIONER STEPHEN GOUDGE: I've 10 changed my view on the degree to which -- 11 DR. HELEN WHITWELL: You know, for -- 12 COMMISSIONER STEPHEN GOUDGE: -- 13 shortfalls can produce fatal injuries, for example, to 14 take an extreme case? 15 DR. HELEN WHITWELL: There's no -- nobody 16 to -- nobody to write to, and there's no -- no real 17 mechanism for that. You know -- 18 COMMISSIONER STEPHEN GOUDGE: And it may 19 not be up to the forensic pathologist, it may be up to 20 other institutions in society, I'm just -- Dr. Saukko, do 21 you have any views on that? 22 DR. PEKKA SAUKKO: No, I can't add 23 anything to -- to that, but I agree with Dr. Whitwell. 24 COMMISSIONER STEPHEN GOUDGE: That there 25 are no mechanisms?

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1 DR. PEKKA SAUKKO: Yeah. 2 COMMISSIONER STEPHEN GOUDGE: Should 3 there be? 4 DR. PEKKA SAUKKO: Well, the only 5 mechanism there is, there is somebody who is interested 6 in science and is doing research write about that. 7 COMMISSIONER STEPHEN GOUDGE: All right. 8 And then it gets into the scientific community and -- 9 DR. PEKKA SAUKKO: Yeah. 10 COMMISSIONER STEPHEN GOUDGE: -- the 11 question then is, how does it get back -- 12 DR. PEKKA SAUKKO: That's the only -- 13 COMMISSIONER STEPHEN GOUDGE: -- to the 14 criminal justice community? That's perhaps not your 15 problem but our problem. Okay. 16 Well thank you both very much. You've 17 been very generous with your time and travelling all this 18 distance and sharing your knowledge with us, and we found 19 it very helpful, so we're very much in your debt. 20 We hope you have a safe trip home. 21 DR. PEKKA SAUKKO: Thank you. 22 COMMISSIONER STEPHEN GOUDGE: We'll rise 23 now until Monday at 9:30. 24 25 (WITNESSES STAND DOWN)

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1 --- Upon adjourning at 3:50 p.m. 2 3 4 5 Certified correct, 6 7 8 9 10 ______________________ 11 Rolanda Lokey, Ms. 12 13 14 15 16 17 18 19 20 21 22 23 24 25