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 November 19th 2007 25

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

3
  1                   APPEARANCES (CONT'D)
  2  James Lockyer              )     William Mullins-Johnson, 
  3  Alison Craig               )     Sherry Sherret-Robinson and
  4  Phil Campbell    (np)     )     seven unnamed persons
  5  
  6  Peter Wardle               )     Affected Families Group
  7  Julie Kirkpatrick          )
  8  Daniel Bernstein (np)     )
  9  
 10  Louis Sokolov              )     Association in Defence of
 11  Vanora Simpson            )     the Wrongly Convicted
 12  
 13  Jackie Esmonde    (np)     )     Aboriginal Legal Services 
 14  Kimberly Murray            )     of Toronto and Nishnawbe
 15  Sheila Cuthbertson         )     Aski-Nation
 16  Julian Falconer  (np)     )
 17  
 18  Suzan Fraser                     Defence for Children 
 19                                   International - Canada
 20  
 21  William Manuel   (np)     )     Ministry of the Attorney
 22  Heather Mackay   (np)     )     General for Ontario
 23  Erin Rizok                 )
 24  
 25

4
  1                   APPEARANCES (cont'd)
  2  
  3  Natasha Egan     (np)     )     College of Physicians and 
  4  Carolyn Silver   (np)     )     Surgeons
  5  
  6  Michael Lomer    (np)     )     For Marco Trotta
  7  
  8  
  9  
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1 TABLE OF CONTENTS 2 Page No. 3 Discussion 6 4 5 CHRISTOPHER MARK MILROY, Sworn 6 JACK CRANE, Sworn 7 JOHN BUTT, Sworn 8 9 Examination-In-Chief by Mr. Mark Sandler 7 10 11 12 13 Certificate of transcript 14 15 16 17 18 19 20 21 22 23 24 25

1 --- Upon commencing at 9:30 a.m. 2 3 MR. MARK SANDLER: Commissioner, this 4 week you'll be hearing from three (3) witnesses in a 5 panel, Dr. Milroy, Dr. Crane, and Dr. Butt. I can 6 indicate to you, Commissioner, as you know, that these 7 were three (3) of the five (5) forensic pathologists who 8 were retained by the Chief Coroner's office pursuant to 9 the review that was the subject of testimony last week. 10 I intend to examine these three (3) 11 panellists in three (3) broad areas. First, their 12 qualifications with a view to using them as a vehicle to 13 explaining how forensic pathology is delivered in other 14 jurisdictions: England and Wales, Northern Ireland, 15 Alberta, Nova Scotia. 16 I will then be addressing eleven (11) of 17 the cases in which one (1) of the panellists was the 18 primary reviewer pursuant to the Chief Coroner's review, 19 and for the benefit of counsel and the public, I have 20 listed the order of cases to be discussed. You will see 21 it on the monitor, and I've provided hard copies to the 22 media and to parties withstanding at this inquiry. 23 I -- after I examine these three (3) 24 panellists on those eleven (11) cases, throwing up some 25 of the systemic issues that are the subject of our

1 inquiry, I'll then be examining them generally on some of 2 the systemic issues that we have identified in a 3 preliminary way in the list that you and the other 4 parties with standing have reviewed. 5 I will be completed by examination-in- 6 chief on Wednesday of this week at exactly 12:43 in the 7 afternoon, and then cross-examination will follow. 8 COMMISSIONER STEPHEN GOUDGE: I'll make a 9 note of that. 10 MR. MARK SANDLER: All right. So I would 11 ask our Registrar to swear in each of our three (3) 12 panellists, please. 13 14 CHRIST OPHER MARK MILROY, Sworn 15 JACK CRANE, Sworn 16 JOHN BUTT, Sworn 17 18 EXAMINATION-IN-CHIEF BY MR. MARK SANDLER: 19 MR. MARK SANDLER: Thank you very much 20 and good morning, gentlemen. 21 DR. JOHN BUTT: Good morning. 22 DR. CHRISTOPHER MILROY: Good morning. 23 MR. MARK SANDLER: Commissioner, I'll be 24 turning to Tab 1 of the Milroy binder, and I'll ask the 25 Registrar to put up PFP033876.

1 And if you could go to page 2 of the 2 document please? Dr. Milroy, if we may deal with your 3 qualifications and background first. 4 As I understand it, you obtained your 5 bachelor's degree in medicine and surgery at the 6 University of Liverpool in 1983. 7 Am I right? 8 DR. CHRISTOPHER MILROY: That's correct, 9 sir. 10 MR. MARK SANDLER: You then commenced 11 training in pathology in 1984, gaining membership of the 12 Royal College of Pathologists, sub-speciality 13 histopathology in 1990, am I right? 14 15 DR. CHRISTOPHER MILROY: That's correct. 16 MR. MARK SANDLER: And following your 17 training in histopathology, I understand that you 18 undertook a further eighteen (18) months of training in 19 forensic pathology at the Department of Forensic 20 Pathology University of Sheffield? 21 DR. CHRISTOPHER MILROY: That's correct. 22 MR. MARK SANDLER: In 1991 that led to 23 obtaining your diploma in medical jurisprudence from the 24 Worshipful Society of Apothecaries, and that represents 25 post graduate qualification in forensic pathology.

1 Am I right? 2 DR. CHRISTOPHER MILROY: That's correct. 3 MR. MARK SANDLER: And to be clear, in 4 England and Wales, you can obtain your specialty 5 qualification in forensic pathology in two (2) different 6 ways. 7 Am I right? 8 DR. CHRISTOPHER MILROY: That's correct. 9 MR. MARK SANDLER: And could you outline 10 for the Commissioner how you can obtain that sub- 11 specialty in forensic pathology? 12 DR. CHRISTOPHER MILROY: Yes. You can 13 either train, firstly, in histopathology, which, in North 14 American terms, would be called anatomic pathology, and 15 then obtain a recognized diploma in forensic pathology, 16 of which there are two (2) -- one (1) by the Worshipful 17 Society of Apothecaries and the other by the Royal 18 College of Pathologists. And that's the training I did. 19 Or you can do some training in -- in 20 anatomic pathology and then -- histopathology -- and then 21 go on to obtain membership of the Royal College of 22 Pathologists in forensic pathology. 23 And either of those routes will then allow 24 you to practice as a forensic pathologist. 25 MR. MARK SANDLER: I take it that the

1 advantage of the route that you took is that, as a result 2 of your qualifications both in histopathology and 3 forensic pathology, theoretically, you could obtain a 4 posting either as a histopathologist or as a forensic 5 pathologist. 6 Am I right? 7 DR. CHRISTOPHER MILROY: That's correct. 8 MR. MARK SANDLER: If you had simply 9 obtained your sub-specialty in forensic pathology, you 10 could only be qualified to be posted in a position as a 11 forensic pathologist. 12 Do I have that right? 13 DR. CHRISTOPHER MILROY: That's correct. 14 MR. MARK SANDLER: And, at the risk of 15 muddying the waters, you made reference to the fact that 16 you can obtain a diploma from the Royal College of 17 Pathologists in forensic pathology. 18 Is that a reflection of the fact that, at 19 present, you can't become a member in two sub- 20 specialties? 21 DR. CHRISTOPHER MILROY: That's correct. 22 You can only become a member once, so the -- because of 23 the need to further qualify forensic pathologists, the 24 Royal College set up a diploma in forensic pathology. 25 MR. MARK SANDLER: All right. To be

1 trained as a forensic pathologist in England and Wales, 2 do you need to be trained in the other sub-specialties of 3 pathology, such as pediatric and neuropathology? 4 DR. CHRISTOPHER MILROY: Well, you don't 5 have to get if you lack accreditation, but you have to 6 spend now at least six (6) months in each of pediatric 7 pathology and neuropathology during your training. And 8 you can't sit the examination until you have completed 9 those requirements as well as your other requirements. 10 COMMISSIONER STEPHEN GOUDGE: During your 11 training to be a forensic pathologist? 12 DR. CHRISTOPHER MILROY: During your 13 training to be a forensic pathologist, Commissioner, yes. 14 15 CONTINUED BY MR. MARK SANDLER: 16 MR. MARK SANDLER: All right. So, what 17 is implicit in what you have said is that in the course 18 of your training as a forensic pathologist, you also 19 obtained training in pediatric pathology and in 20 neuropathology, but not to the point of a sub-specialty. 21 DR. CHRISTOPHER MILROY: That's correct. 22 Accredited to be a -- you can't take membership of the 23 Royal College in pediatric pathology and in 24 neuropathology; that requires a much longer period of 25 training.

1 MR. MARK SANDLER: All right. 2 COMMISSIONER STEPHEN GOUDGE: Can I just 3 ask, Mr. Sandler, what are the time frames involved for 4 histology and then for forensic? 5 DR. CHRISTOPHER MILROY: To obtain 6 membership, it's going to be about five (5) years -- 7 COMMISSIONER STEPHEN GOUDGE: Including 8 both? 9 DR. CHRISTOPHER MILROY: -- of -- of 10 training in -- to get membership either in histopathology 11 or forensic pathology, there's going to be a training 12 period, at least, of five (5) years. 13 My training was five (5) years plus 14 eighteen (18) months because of the way I did it. 15 COMMISSIONER STEPHEN GOUDGE: So the 16 forensics was eighteen (18) months? 17 DR. CHRISTOPHER MILROY: Yes. And one 18 should also add that while one is training as a 19 histopathologist, you do do some medicolegal autopsy 20 work, but what we would call non-forensic cases. You've 21 got to bear in mind that in the United Kingdom -- well, 22 in -- well, in England and Wales, we autopsy 23 percent 23 of all deaths as medicolegal autopsies. So there's an 24 awful lot of -- of natural deaths that get done, but they 25 get done by non-forensic pathologists.

1 2 CONTINUED BY MR. MARK SANDLER: 3 MR. MARK SANDLER: All right. Now, 4 continuing on, at page 2 of your curriculum vitae, we see 5 that in 1994 you obtained your MD from the University of 6 Liverpool, and unlike an MD in North America, that is the 7 equivalent of your PhD and that was in forensic pathology 8 as well. 9 Am I right? 10 DR. CHRISTOPHER MILROY: That's correct. 11 That's the thesis I wrote. 12 MR. MARK SANDLER: All right. And in 13 1998 you obtained your fellowship at the Royal College of 14 Pathologists. And I take it, you don't need to do 15 additional examinations to become a Fellow of the Royal 16 College of Pathologists; it's a recognition of seniority 17 after a number of years. 18 DR. CHRISTOPHER MILROY: And a way of 19 collecting more money from you, yes. 20 MR. MARK SANDLER: All right. 21 COMMISSIONER STEPHEN GOUDGE: Another 22 membership fee. 23 DR. CHRISTOPHER MILROY: Yes. 24 25 CONTINUED BY MR. MARK SANDLER:

1 MR. MARK SANDLER: And speaking of 2 membership fees, you also obtained your Bachelor or Laws 3 in the year 2004 from the University of London. 4 Am I right? 5 DR. CHRISTOPHER MILROY: That's correct. 6 MR. MARK SANDLER: And the last entry 7 under professional qualifications, the FFFLM, could you 8 explain to the Commissioner briefly what that designation 9 means? 10 DR. CHRISTOPHER MILROY: Yes, in 2005 a 11 faculty of forensic and legal medicine was founded at the 12 Royal College of Physicians of London and it was -- it's 13 really to give post-graduate status to people who do 14 clinical forensic medicine that traditionally have been 15 know as police surgeons. 16 The faculty actually consists of people 17 who, say, provide services to the living, so rape 18 victims, people in custody, people who have been injured, 19 but are not dead, and also medicolegal advisors to insu - 20 - insurance companies and also medical be qualified 21 coroners. 22 In England and Wales the coroner is 23 essentially a legal post, but you can actually be a 24 lawyer or a doctor, a medical practitioner, so that was 25 founded and really to so support some forensic

1 pathologists also joined. 2 MR. MARK SANDLER: All right. 3 DR. CHRISTOPHER MILROY: But it's not to 4 replace the Royal College of Pathologists for Forensic 5 Pathology. 6 MR. MARK SANDLER: Now, moving to the 7 lower part of page 2 of your curriculum vitae, it 8 reflects your current academic appointment as Professor 9 of Forensic Pathology, University of Sheffield, am I 10 right? 11 DR. CHRISTOPHER MILROY: That's correct. 12 MR. MARK SANDLER: And I won't take you 13 to it, but I take it that was a culmination of a series 14 of teaching positions that had commenced back in 1985 15 right up until 2000 when you were made the full professor 16 in that department. 17 DR. CHRISTOPHER MILROY: That's correct. 18 MR. MARK SANDLER: And who was your 19 predecessor as the head of the department? 20 DR. CHRISTOPHER MILROY: Professor Helen 21 Whitwell. 22 MR. MARK SANDLER: All right, who we'll 23 be hearing from, Commissioner, in December. You are also 24 reflected as the Chief Forensic Pathologist, Forensic 25 Science Service and Consultant Pathologist to the home

1 office. 2 DR. CHRISTOPHER MILROY: Yes. 3 MR. MARK SANDLER: Could you explain 4 briefly to the Commissioner what the Forensic Science 5 Service is? 6 DR. CHRISTOPHER MILROY: Well, the 7 Forensic Science Service is now what is known as a 8 government company; it used to be a direct organisation 9 of the home office that provides forensic science to 10 police forces in England and Wales. 11 Now, there has been a commercialisation of 12 the forensic science in England and Wales and there are 13 other providers of forensic science now, although the 14 Forensic Science Service provides about 85 percent. 15 They were looking to establish a 16 department of forensic pathology; in other words, get 17 medical input because there's no medical input. So my 18 department in -- was felt to be better sited within the 19 Forensic Science Service, rather than the university and 20 there -- there was a transfer of employment as a 21 consequence, and that was in 2006. 22 MR. MARK SANDLER: All right, so stopping 23 there for a moment. Originally you performed forensic 24 pathology services through the University of Sheffield -- 25 DR. CHRISTOPHER MILROY: Yes.

1 MR. MARK SANDLER: And then as of 2006 2 the department's administration transferred to the 3 Forensic Science Service -- 4 DR. CHRISTOPHER MILROY: That's 5 effectively -- 6 MR. MARK SANDLER: -- am I right? 7 DR. CHRISTOPHER MILROY: Yeah, it's my -- 8 I didn't change my desk or anything else, just that the - 9 - the paycheque comes from -- administration is by 10 somebody else. 11 MR. MARK SANDLER: All right. And as I 12 gather from what you've told the Commissioner, the 13 Forensic Science Service provides forensic science for 14 all of England and Wales, but in the field of forensic 15 pathology its work is more limited, am I right? 16 DR. CHRISTOPHER MILROY: That's correct. 17 The structure of forensic pathology is now into -- 18 effectively into regions with groups of pathologists in 19 various types of employment. 20 The home office have said that they will 21 not dictate how people are employed, so we have employed 22 people, we have self-employed people. The Forensic 23 Science Service Departments of Forensic Pathology 24 provides the forensic pathology for the area -- for three 25 (3) police forces, which is West Yorkshire, South

1 Yorkshire, and Humberside; those three (3) police forces 2 cover a population of just under 5 million and overall 3 there are about nine (9) groups within England and Wales 4 that provide forensic pathology and I'm one (1) of the 5 nine (9) groups. 6 MR. MARK SANDLER: So, to make some sense 7 of a fairly complicated situation, as I understand it, 8 forensic pathologists are grouped in England and Wales 9 either within private practice, or within a university 10 setting, or in your case, within the setting of the 11 Forensic Science Service, do I have that right? 12 DR. CHRISTOPHER MILROY: That's 13 essentially correct, yes. 14 MR. MARK SANDLER: All right. And could 15 you provide the Commissioner with some sense of how many 16 suspicious deaths or homicides you would autopsy within 17 your department in the course of a year? 18 DR. CHRISTOPHER MILROY: Yes. Well, the 19 -- the Home Office are concerned with the suspicious 20 deaths, so they're obviously ones where there is police 21 involvement. In England and Wales there are believed to 22 be, but the management data isn't -- is only just 23 becoming available -- about three thousand (3,000) 24 suspicious deaths a year. We have about eight hundred 25 (800) homicides a year -- that's in England and Wales --

1 and my department is doing something like two hundred and 2 eighty (280) to three hundred (300) of those, so we are 3 about 10 percent of the total of suspicious deaths. 4 Those are -- that's primary investigations 5 that we do; that's excluding reviews and other work that 6 we also do. 7 MR. MARK SANDLER: All right. And I'm 8 going to ask you about that in a little bit. 9 Can you explain to the Commissioner with 10 whom you contract for your service and pay? 11 DR. CHRISTOPHER MILROY: Yes. Well -- 12 well obviously I'm a salaried employee but the -- the 13 structure is that there is an agreed national fee-per- 14 case and that the police pay that as they pay for all 15 forensic science now. So forensic science and forensic 16 pathology, the police have to pay for that. The -- 17 MR. MARK SANDLER: Well, just stopping 18 there for a moment. So as I take it, you've described 19 the various groupings that exist, whether private, 20 university-based or forensic science -- 21 DR. CHRISTOPHER MILROY: Yeah. 22 MR. MARK SANDLER: -- service, and I take 23 it that each grouping has to contract with the local 24 police force in regards to the providing of these 25 services; am I right?

1 DR. CHRISTOPHER MILROY: That's correct. 2 And -- but we are instructed to do the work by the 3 coroner. So there is a con -- rather confusing, I think, 4 relationship. And the coroner does pay a fee for the 5 post-mortem examination set down by national fees but it 6 is -- it is essentially an uneconomic fee which is why 7 the fee structure through the police was developed. 8 MR. MARK SANDLER: All right. 9 COMMISSIONER STEPHEN GOUDGE: So there 10 are two (2) fees coming? 11 DR. CHRISTOPHER MILROY: Two fees come 12 in, but I mean the coroner's fee is about 10 percent of 13 the fee that is paid by the police. 14 COMMISSIONER STEPHEN GOUDGE: And does 15 the fee cover the entire range of work done by -- 16 DR. CHRISTOPHER MILROY: Yes. 17 COMMISSIONER STEPHEN GOUDGE: -- the 18 forensic pathologist, the autopsy and any subsequent 19 court attendances and so on? 20 DR. CHRISTOPHER MILROY: No, that covers 21 all the work done for the police; that may be going to 22 the scene, preparing the report. It doesn't cover 23 ancillary investigations such as neuropathology and it 24 doesn't cover court fees, which are paid separately by -- 25 they're paid by the Court Service.

1 COMMISSIONER STEPHEN GOUDGE: Okay. 2 Thank you. 3 4 CONTINUED BY MR. MARK SANDLER: 5 MARK SANDLER: All right. Now, you made 6 reference to the fact that England and Wales operates 7 within a coronial system? Can you provide the 8 Commissioner with a very brief overview of how the 9 coronial system operates in the context of suspicious 10 deaths or homicides? 11 DR. CHRISTOPHER MILROY: Yes. Well, 12 there are something of the order of over a hundred and 13 twenty (120) coronial jurisdictions. So in my area, for 14 example, South Yorkshire has two (2), West Yorkshire has 15 two (2), Humberside has two (2), so I work for six (6) 16 coroners, effectively. 17 And the coroner will instruct us to do the 18 autopsy; they're the only person that has the legal 19 responsibility to order a medicolegal autopsy. 20 The coroner's input though is relatively 21 limited in suspicious deaths because where a -- I should 22 say that the coroner in England has to or -- has to 23 inquest all unnatural deaths, so there's a high inquest 24 rate. So all suicides, all drug overdoses or accidents 25 have to be inquested.

1 MR. MARK SANDLER: Regardless of how 2 uncontentious they may appear to the forensic pathologist 3 and/or the coroner? 4 DR. CHRISTOPHER MILROY: That's abso -- 5 that's absolutely correct. 6 MR. MARK SANDLER: Is that where the 7 number of twenty-three thousand (23,000) autopsies in a 8 year is generated? 9 DR. CHRISTOPHER MILROY: No. There's a 10 hundred and twenty-three (123,000) autopsies. 11 MR. MARK SANDLER: A hundred and twenty- 12 three thousand (123,000)? 13 DR. CHRISTOPHER MILROY: There's a 14 hundred and twenty-three thousand (123,000) autopsies a 15 year because there are about five hundred (500) -- about 16 1 percent of the population in the Western world will die 17 each year and 1 percent will be born and of those five 18 hundred thousand (500,000) deaths, a hundred and twenty- 19 three thousand (123,000) are subject to a medicolegal 20 autopsy. And of those deaths, about -- there's about 21 twenty thousand (20,000) inquests a year, something of 22 that nature. 23 But what the coroner will do in -- where 24 somebody is subject to a charge -- I suppose if you look 25 -- go back to suspicious deaths, obviously some of the

1 suspicious deaths will become non-suspicious and will 2 then either fall into the Coroner's Inquest or, in fact, 3 if they're declared to be natural death then the coroner 4 doesn't have to hold an inquest. 5 If on the other hand he charges -- if 6 someone is charged with an offence of murder, 7 manslaughter or infanticide or one (1) of the homicide 8 offenses in driving terms; causing death by dangerous 9 driving, causing death by careless driving whilst over 10 the described limit, they go to the criminal courts and 11 the coroner adjourns his inquest having opened it. 12 And he then closes it almost as a paper 13 exercise. He doesn't then hold a formal inquest. So the 14 coroner's input into -- into suspicious deaths is 15 actually more limited than would be in other deaths. 16 MR. MARK SANDLER: All right. Now we're 17 going to come back to the coronial system at some point 18 in your testimony, but if I can move to page 4 of your 19 curriculum vitae, it reflects under professional licence 20 that you are on the United Kingdom Home Office list of 21 registered forensic pathologists and have been so since 22 1991. 23 Is that right? 24 DR. CHRISTOPHER MILROY: Yes, that's 25 correct.

1 MR. MARK SANDLER: And can you explain 2 what the UK Home Office list of registered forensic 3 pathologists is? 4 DR. CHRISTOPHER MILROY: Yes. 5 MR. MARK SANDLER: And how you get on it? 6 DR. CHRISTOPHER MILROY: Yes. Well, the 7 Home Office is the government department that has 8 responsibility for policing prisons and -- among other 9 things. And there has been a Home Office list since the 10 19th century, and it -- it came about apparently because 11 there were concerns about people getting away with murder 12 in poisoning cases. 13 So the -- so the Home Office appointed a 14 pathologist to deal with these cases. And it, 15 subsequently, grew into a list of pathologists who would 16 provide expertise for the police. 17 In the late '80's, there was a review tape 18 done of forensic pathology, and it was felt that there 19 should be a strengthening of the Home Office list in 20 terms of the number and the criteria to get on. 21 That actually took place in 1991, as it 22 happens. I was sort of coincidental to that, but in fact 23 not every forensic pathologist in England and Wales was 24 on it at that stage, because the London people 25 traditionally did not go on the Home Office list, but

1 they did. 2 And to go on the list now, you have to, 3 basically, have the criteria we've already talked about; 4 getting membership of the college, and your recognized 5 diploma if you have histopathology. 6 And you have to have also what's known as 7 a Certificate of Completed Training, which is now 8 required by European Union law. And that accredits you 9 as a specialist. You have to join one (1) of the group 10 practices, and then you can be put on the list. 11 MR. MARK SANDLER: All right. 12 DR. CHRISTOPHER MILROY: And once you're 13 on the list, you're then subject to various regulations, 14 audits and so on. 15 MR. MARK SANDLER: And we're going to 16 talk about those a little bit later. Approximately how 17 many people are on that -- 18 COMMISSIONER STEPHEN GOUDGE: Before you 19 ask that, Mr. Sandler, sorry. The purpose of the list is 20 it entitles you to do autopsies, medicolegal autopsies? 21 DR. CHRISTOPHER MILROY: Well, strictly 22 speaking, the coroner can still use whom he chooses to do 23 the autopsy, but the coroner's rules state that where the 24 death -- where someone is likely to be charged with an 25 offense of murder, manslaughter, or infanticide, the

1 coroner is supposed to consult with the Chief of Police 2 as to who the most appropriate person is to do the 3 autopsy. 4 In other words, it's code for you should 5 only use forensic -- accredited forensic pathologists to 6 do suspicious deaths. 7 COMMISSIONER STEPHEN GOUDGE: So there's 8 no legal requirement that you be on the list in order to 9 do a medicolegal forensic autopsy? 10 DR. CHRISTOPHER MILROY: That's correct. 11 COMMISSIONER STEPHEN GOUDGE: But in 12 practice does that happen? 13 DR. CHRISTOPHER MILROY: In practice 14 there is, because otherwise what will happen, if, for 15 example, the police force and the coroner chose not to 16 use an accredited forensic pathologist and something went 17 wrong, the Home Office would say, Well, you're on your 18 own, because we provide a list of accredited specialists 19 and you're not using them, then -- that's your 20 responsibility. 21 And there would obviously be problems for 22 the police force using non-accredited specialists. 23 COMMISSIONER STEPHEN GOUDGE: Sorry, Mr. 24 Sandler. 25

1 CONTINUED BY MR. MARK SANDLER: 2 MR. MARK SANDLER: No, that's fine. So 3 the de facto, it is the list that one goes to when a 4 suspicious death or homicide is engaged? 5 DR. CHRISTOPHER MILROY: That's correct. 6 MR. MARK SANDLER: And to be clear, is 7 there such a thing as a pediatric forensic pathologist in 8 England and Wale; that is someone whose work is confined 9 to pediatric forensics? 10 DR. CHRISTOPHER MILROY: There is one (1) 11 person who was a pediatric pathologist, and then sought 12 training as a forensic pathologist so that he could go on 13 the Home Office list and do the pediatric forensic work 14 in London. 15 But there -- there is not a recognized 16 speciality, and outside of London they are -- they're 17 done differently. 18 MR. MARK SANDLER: And I'm going to -- 19 DR. CHRISTOPHER MILROY: And I should -- 20 that practitioner is -- has re -- already retired from 21 his National Health Service and University post, so -- 22 and I -- I don't know that there are any plans to replace 23 them at the moment. 24 MR. MARK SANDLER: All right. And I'll 25 elicit from you a little bit later on whether it would be

1 wise or unwise to have a sub-specialty where pathologists 2 are confined to that kind of work. 3 How many forensic pathologists are there 4 currently on the home office list? 5 DR. CHRISTOPHER MILROY: It's about forty 6 (40). 7 MR. MARK SANDLER: All right. And we've 8 heard from Dr. Pollanen and Dr. McLellan last week about 9 the difficulties in securing forensic pathologists to do 10 the kind of work that we're examining at this Inquiry; 11 does the same difficulty exist in England and Wales? 12 DR. CHRISTOPHER MILROY: Yes. 13 MR. MARK SANDLER: Now, if I can move on 14 to your further features of your curriculum vitae, and I 15 can't possibly do it justice in a very short time, but if 16 you could turn to page 10, it reflects that you are 17 currently editing with Dr. Pollanen the new fifth edition 18 of the classic text, Polson's Essentials of Forensic 19 Medicine? 20 DR. CHRISTOPHER MILROY: That's correct. 21 MR. MARK SANDLER: It reflects in your 22 curriculum vitae at pages 10 and 11 that you have 23 authored chapters and various books as reflected in this 24 curriculum vitae and including a text at page 11 on 25 subarachnoid hemorrhage, coauthored with Professor

1 Whitwell? 2 DR. CHRISTOPHER MILROY: That's correct. 3 MR. MARK SANDLER: A text at page 12 on 4 problem areas and forensic neuropathology? 5 DR. CHRISTOPHER MILROY: Yes. 6 MR. MARK SANDLER: The role of the expert 7 witness? 8 DR. CHRISTOPHER MILROY: Yes. 9 MR. MARK SANDLER: Soft tissue pathology 10 and identification? 11 DR. CHRISTOPHER MILROY: Yes. 12 MR. MARK SANDLER: And un-ascertained 13 sudden death? 14 DR. CHRISTOPHER MILROY: Yes. 15 MR. MARK SANDLER: You have written some 16 fifty-seven (57) refereed papers, as outlined here -- 17 DR. CHRISTOPHER MILROY: Yes. 18 MR. MARK SANDLER: -- that make my 19 bedtime reading? And you've also authored and presented 20 at a number of places throughout the world. 21 Am I right? 22 DR. CHRISTOPHER MILROY: That's correct. 23 MR. MARK SANDLER: Now, I want to ask 24 you, as well, about the fact that you are currently the 25 Chief Examiner for the Royal College of Pathologists sub-

1 specialty in forensic pathology, am I right? 2 DR. CHRISTOPHER MILROY: That's correct. 3 MR. MARK SANDLER: And we'll talk a 4 little bit about the examination process a little bit 5 later in the piece. 6 As well, you are a examiner for the 7 forensic pathology sub-specialty at the Society of 8 Apothecaries, am I right? 9 DR. CHRISTOPHER MILROY: That's correct. 10 MR. MARK SANDLER: And who's the Chief 11 Examiner there? 12 DR. CHRISTOPHER MILROY: The person who 13 sat to my left. 14 MR. MARK SANDLER: All right, Dr. Crane. 15 All right, thank you very much. 16 Now, I'm going to come back to some of the 17 features of your background in the context of a 18 discussion of systemic issues a little bit later on. 19 If I can turn then, Commissioner, to the - 20 - Professor Crane's Volume I, and this is document 21 PFP033869. Good morning, Dr. Crane. 22 DR. JACK CRANE: Good morning. 23 MR. MARK SANDLER: Dr. Crane, you 24 obtained your Bachelor of Medicine and Surgery in 1977 at 25 the Queen's University of Belfast.

1 Am I right? 2 DR. JACK CRANE: That's correct. 3 MR. MARK SANDLER: You obtained your 4 diploma in Medical Jurisprudence, both clinical and in 5 pathology, in 1982 and 1982 -- and '83 through the 6 Society of Apothecaries in London. 7 DR. JACK CRANE: I -- I did. 8 MR. MARK SANDLER: And you are currently 9 a convenor, which is the term used as designating the 10 Chief Examiner for that examination process at the 11 Society? 12 DR. JACK CRANE: I am, yes, responsible 13 for running the exams, setting the standards. 14 MR. MARK SANDLER: All right. You became 15 a member of the Royal College of Pathologists in 1984? 16 DR. JACK CRANE: I did. 17 MR. MARK SANDLER: And was that in a 18 certain sub-specialty? 19 DR. JACK CRANE: Forensic pathology. 20 MR. MARK SANDLER: And so your route to 21 becoming a member of the Royal College of Pathologists 22 was that alternative route described by Professor Milroy? 23 DR. JACK CRANE: That's correct. I 24 decided to specialise in forensic pathology. 25 MR. MARK SANDLER: And you are also a

1 Fellow of the Faculty of Pathology, Royal College of 2 Physicians of Ireland, and you obtained that position in 3 1985. 4 DR. JACK CRANE: I did. 5 MR. MARK SANDLER: Now, your present 6 appointment is reflected as the State Pathologist for 7 Northern Ireland, is that right? 8 DR. JACK CRANE: That's correct. 9 MR. MARK SANDLER: How many state 10 pathologists for the Northern Ireland are there? 11 DR. JACK CRANE: There's just one (1), 12 that's me. 13 MR. MARK SANDLER: And that's you. 14 DR. JACK CRANE: That's me. 15 MR. MARK SANDLER: And you -- you 16 ascended to that post in 1990, am I right? 17 DR. JACK CRANE: That's correct. 18 MR. MARK SANDLER: And I'm going to ask 19 you a little bit about how pathology is organized in 20 Northern Ireland in a moment but I also do want to note, 21 from your curriculum vitae, that you also hold the 22 position as full Professor of Forensic Medicine at the 23 Queen's University of Belfast and have held that position 24 since 1993. 25 DR. JACK CRANE: That's correct.

1 MR. MARK SANDLER: Can you explain to the 2 Commissioner how the state pathology department in 3 Northern Ireland operates. 4 DR. JACK CRANE: The provision of 5 forensic and routine coronial pathology services is 6 provided a State run service -- my department. So my 7 department is responsible for conducting medicolegal 8 autopsies in Northern Ireland. It's a government funded 9 department, and the state pathologist is appointed by a 10 government minister; the Secretary of State for Northern 11 Ireland, and I am responsible to that Minister for the 12 provision of the service in Northern Ireland. 13 Working with me, I have two (2) other 14 colleagues; a Deputy and an Assistant State Pathologist. 15 So there are three (3) forensic pathologists providing 16 pathology services throughout Northern Ireland. 17 MR. MARK SANDLER: All right. And I want 18 to ask you how it is that defence pathology services in 19 criminal cases are obtained. 20 DR. JACK CRANE: Normally what would 21 happen is that either one (1) of my retired colleagues 22 might do a defence autopsy. The State Pathologist for 23 the Irish Republic, who is not very far away in Dublin, 24 could come to Northern Ireland and do a second autopsy. 25 And occasionally, pathologists will come over from

1 England and do a second autopsy for the defence. 2 MR. MARK SANDLER: All right. And if I 3 could just go back to Professor Milroy for a moment. 4 How does the defence obtain work in 5 criminal cases? 6 DR. CHRISTOPHER MILROY: Quite easily is 7 the first answer. They're -- pathologists outside of one 8 (1) group may well be consulted, indeed, actually outside 9 of my group because I don't allow defence work to be done 10 between colleagues, but in the independent sector they 11 do. So, you actually, even within the region, they get 12 one (1) defence consulting a colleague. 13 I think there are problems with that which 14 is why I don't allow it to be done. But I regularly go 15 to the next adjacent areas to do post-mortem examinations 16 or I'll send the papers and that's all funded out of 17 public funds. 18 MR. MARK SANDLER: All right. And if we 19 could go to page 2 of Professor Crane's -- 20 COMMISSIONER STEPHEN GOUDGE: Before you 21 do that, Mr. Sandler, sorry to interrupt, but I'd like to 22 ask both Dr. Crane and Dr. Milroy. 23 You're both Professors of Forensic 24 Medicine; do most medical faculties in England, Wales and 25 Northern Ireland have Professors of Forensic Medicine;

1 that is, is -- is it a regular part of the medical 2 curriculum? 3 DR. JACK CRANE: Well, the answer to that 4 is sadly, no. There used to be many more departments of 5 forensic medicine and, indeed, most medical schools would 6 have had a forensic department. Sadly, a lot of these 7 departments have closed and, as a result, there are now 8 relatively small numbers of academic departments and, 9 consequently, relatively few professors of forensic 10 medicine left in the UK. 11 DR. CHRISTOPHER MILROY: And I'd just add 12 that for -- as an illustration, there were two (2) Regis 13 Chairs so -- technically appointed by the Crown in 14 Scotland, and they've both gone into abeyance, so it is - 15 - so there is a sad decline in academic forensic 16 medicine. 17 18 CONTINUED BY MR. MARK SANDLER: 19 MR. MARK SANDLER: Just arising out of 20 the Commissioner's question: 21 Professor Milroy, you indicated earlier to 22 the Commissioner that your employment with the Forensic 23 Science Service commenced initially through University 24 Department. 25 Why was it that it was moved out of the

1 University and into the Forensic Science Service? 2 DR. CHRISTOPHER MILROY: Well, the 3 problem is that a) the University didn't feel that they 4 wanted to run the contracts, the service side; and 5 secondly, there are internal University pressures, in 6 terms of doing research, which forensic medicine often 7 doesn't fit into the research that's conducted in 8 universities. It's the wrong type. 9 It doesn't achieve the funding. It 10 doesn't achieve the public -- publication power. There 11 are -- there -- there's rankings of journals and have 12 things called "impact factors". And the higher the 13 impact factor, the better rating you get in your funding. 14 And there isn't a single forensic journal 15 exists in the world that actually falls into the minimum 16 impact factor journal that you would be expected to 17 publish in. So there's a -- there's a -- there's, 18 unfortunately, a -- a sort of -- there are strings 19 pulling forensic medicine away from Eng -- English 20 universities at the moment. 21 MR. MARK SANDLER: All right. Now, 22 Professor Crane, we were highlighting some of your 23 qualifications, and at page 2 of your curriculum vitae, 24 we see under "Committees" that you are a council member 25 of the Royal College of Pathologists, Chair of the

1 Forensic Pathology Sub-Committee, member of the Home 2 Office Policy Delivery Board, member of the Forensic 3 Pathology Council and member of the Scientific Standards 4 of Policy Advisory Board for Forensic Pathology. 5 Is that right? 6 DR. JACK CRANE: That's correct. 7 MR. MARK SANDLER: And I'm going to ask 8 you a little bit later in the piece to describe some of 9 the activities in which you've been involved. One (1) of 10 them includes the creation of a code of standards for 11 forensic pathologists. 12 Am I right? 13 DR. JACK CRANE: Yes, that's correct. 14 MR. MARK SANDLER: Now, your publications 15 are listed in your curriculum vitae and scientific 16 presentations. If I could take you to page 5 of your 17 curriculum vitae, your research interests include Sudden 18 Infant Death Syndrome, and you were collaborating with 19 the Department of Child Health into a study of cot deaths 20 with a particular interest in fatty infiltration of the 21 liver and in association with inborn errors of 22 metabolism. 23 Am I right? 24 DR. JACK CRANE: That's correct. 25 MR. MARK SANDLER: And even though it's

1 not the subject matter of our Inquiry, you're recognized 2 for your expertise, sadly, as a result of your residence 3 in Northern Ireland in terrorist violence and explosives. 4 Am I right? 5 DR. JACK CRANE: Yes, I mean a large 6 proportion of the work of the Department in the past 7 dealt with terrorist activity. 8 MR. MARK SANDLER: And you've reflected 9 in your details of career and experience that, as a 10 forensic pathologist, you have advised defence counsel in 11 a number of criminal and civil cases in Northern Ireland 12 and elsewhere in the British Isles? 13 DR. JACK CRANE: Yes, I have. 14 MR. MARK SANDLER: You've reflected at 15 page 6 of your curriculum vitae, as we've heard, that you 16 are an examiner in forensic pathology at the Royal 17 College of Pathologists? 18 DR. JACK CRANE: Yes, I am. 19 MR. MARK SANDLER: And -- and the 20 Convenor for the Diploma at the Society of Apothecaries. 21 Now, the last thing I'm going to ask you about arising 22 out of your curriculum vitae is found at page 7. 23 And that is that under "Miscellaneous" you 24 reflect that you have advised the Criminal Cases Review 25 Commission on pathology in a number of cases referred to

1 them, the most notorious involving the conviction in 1975 2 of a man for -- for murder. 3 And -- and for the uninitiated, the 4 Criminal Case Review Commission is a commission that 5 reexamines cases that are sought to be reopened arising 6 out of convictions and criminal prosecutions? 7 DR. JACK CRANE: That's correct. The 8 Commission was set up to look at cases where, perhaps, 9 there was a possibility that the conviction was unsafe. 10 And then the Commission would often engage experts to 11 look at the papers. And if they felt that there was some 12 issue there, the Commission had the power to refer the 13 case to the Court of Appeal. 14 MR. MARK SANDLER: All right. And we're 15 actually going to see several cases that were referred to 16 the Court of Appeal and some of the systemic materials 17 that have been the subject of a -- of the notice 18 concerning your testimony. 19 If we could then turn to Dr. Butt. And 20 your curriculum vitae is found at Tab 1 of your binder, 21 and this is PFP-033949. 22 And if I can direct you, Dr. Butt, to page 23 2 of your curriculum vitae, we see that you obtained your 24 degree in medicine from the University of Alberta in 25 Edmonton in 1960.

1 Am I right? 2 DR. JOHN BUTT: That's correct. 3 MR. MARK SANDLER: And your post-graduate 4 training commenced in general medicine and neurology at 5 the University of British Columbia? 6 DR. JOHN BUTT: Yes. 7 MR. MARK SANDLER: Your pathology 8 training took place both in Canada and in England. 9 Am I right? 10 DR. JOHN BUTT: That's correct. 11 MR. MARK SANDLER: In Canada, you were 12 trained in morbid anatomy and haematology as an associate 13 resident at Vancouver General Hospital? 14 DR. JOHN BUTT: Yes. 15 MR. MARK SANDLER: And, from 1965 to 1966 16 you worked at the Institute of Neurology Queen's Square 17 and London, England, Department of Neuropathology, am I 18 right? 19 DR. JOHN BUTT: Yes. 20 MR. MARK SANDLER: It also reflects in 21 your curriculum vitae that from 1967 to 1971 you worked 22 within the environment at Guy's Hospital in the 23 Department of Clinical Pathology and Department of Morbid 24 Anatomy. 25 And also in the Department of Forensic

1 Medicine under the late Professor Simpson (phonetic), am 2 I right? 3 DR. JOHN BUTT: Yes. 4 MR. MARK SANDLER: If one (1) turns to 5 page 3 or your curriculum vitae, we see that you too 6 obtained your diploma in medical jurisprudence in 7 pathology in London, England in 1969? 8 DR. JOHN BUTT: Yes, that was with the 9 Worshipal Society of the Apothecaries as well. 10 MR. MARK SANDLER: All right, and that 11 you became a member of the Royal College of Pathologists 12 in 1973 by examination in morbid anatomy and forensic 13 medicine or pathology? 14 DR. JOHN BUTT: Yes. 15 MR. MARK SANDLER: And you subsequently 16 became a fellow of that same college in 1985? 17 DR. JOHN BUTT: Yes. 18 MR. MARK SANDLER: If one (1) looks at 19 your position since the completion of your training, we 20 see that -- that you were a lecturer at the Department of 21 Forensic Medicine at Charing Cross Hospital Medical 22 School in London in the early '70's? 23 DR. JOHN BUTT: Yes. 24 MR. MARK SANDLER: From 1974 to 1977 you 25 served as full time Associate Professor, Division of

1 Pathology, Faculty of Medicine, University of Calgary, am 2 I right? 3 DR. JOHN BUTT: Yes. 4 MR. MARK SANDLER: And that while you 5 were there, you were responsible for organizing the 6 forensic pathology service to support what was then the 7 Coronial System that existed in Calgary, am I right? 8 DR. JOHN BUTT: Yes. 9 MR. MARK SANDLER: Did Alberta remain on 10 a coronial system, or did that change? 11 DR. JOHN BUTT: No, it changed. The 12 change began with the development of a report of Mr. 13 Justice Kirby and a review of the lower courts in the 14 province of Alberta including the coroner's service. 15 MR. MARK SANDLER: And that resulted as 16 we see at page 4 of your curriculum vitae, in your 17 becoming, for a relatively brief period, the Chief 18 Coroner of the province of Alberta, and then its first 19 Chief Medical Examiner in 1977, am I right? 20 DR. JOHN BUTT: That's correct. 21 MR. MARK SANDLER: Can we take a moment 22 here, and could you advise the Commissioner -- and we're 23 going to leave aside the Ontario experience for a moment, 24 that could be said in some ways to be a hybrid of the two 25 (2) systems.

1 But could you compare for the Commissioner 2 how the medical examiner's system as you understand it 3 operates as opposed to the traditional coronial system? 4 DR. JOHN BUTT: Yes. Well a little 5 historic background. Of course the coroner's system is 6 said to be the oldest system in the judicial history of - 7 - of Great Britain. So it goes back a thousand years 8 (1,000) or close to it. The medical -- 9 MR. MARK SANDLER: Were you there for the 10 outset? 11 DR. JOHN BUTT: Not at all. I feel like 12 it, unfortunately. 13 MR. MARK SANDLER: We're going to allow 14 in this hearsay just on the limited basis. 15 DR. JOHN BUTT: But in the -- the medical 16 examiner's system developed in the United States, and it 17 has become a very significant death investigation system 18 on a statewide basis in the United States. 19 It came to Canada, I think first through 20 the province of Nova Scotia, secondly Manitoba, thirdly 21 Alberta, and finally Newfoundland. So most systems in 22 Canada that have changed or revised their death investiga 23 -- death investigation systems following some form of 24 legislative review have gone to a medical examiner system 25 in recent years.

1 The -- how does the system differ? The 2 system differs basically, if you were look -- to look at 3 a system, and it had three (3) components, and one (1) of 4 them was the investigative component, another one (1) was 5 administrative, and the third one (1) had to do with an 6 inquest function, the medical examiner's system per se, 7 in the hands of physicians, has no inquest function at 8 all in any of those provinces that I mentioned, 9 Newfoundland, Nova Scotia, Manitoba and Alberta. 10 So one (1) can get rid of that part of it. 11 And I -- I don't know that you want me to deal with that 12 section. In terms of the administrative functions and 13 the investigative functions, the Office of the Chief 14 Medical Examiner in each of the four (4) provinces is 15 lead by a forensic pathologist and basically -- and this 16 may be a little trite to say so, but everything follows 17 after that. 18 So if you had a system in which the 19 coroner says -- had been a medical person, as in Ontario, 20 and you changed to the medical examiner system, it would 21 leave the rural structure in Ontario the same. So all of 22 the local representatives, medically-qualified coroners, 23 would still be in place but, of course, none of them is 24 in the realm of conducting autopsies. This does not mean 25 that every person who works in the system as a physician

1 in -- in the province does -- is a forensic pathologist; 2 far from it. 3 So the -- in listening to the background 4 of my two (2) colleagues and the shortage of forensic 5 pathologists, ditto for Canada so it could never work. 6 However, that's the essence of the system, 7 and it provides professional direction in the medical 8 direction at the -- at the very top. 9 So if you look at the Province of Alberta 10 there is, by statute, room for four (4) forensic 11 pathologists, at least, and there are two (2) positions 12 in Edmonton and two (2) positions in Calgary. 13 Nova Scotia and New Bruns -- Newfoundland; 14 one (1) person in charge of the system. And then in 15 Manitoba, I don't -- I don't know whether it calls for 16 one (1) or two (2) people. 17 But in -- in my opinion, it -- it has a 18 better look at the most important issue at the very 19 beginning, and that is the medical cause of death. So 20 that provides an expert in medical death investigation, 21 sudden death investigation, and that's, basically, the 22 advantage of the system. 23 So, it came into the United States to 24 replace a variety of systems, and it has had that 25 experience in Canada.

1 MR. MARK SANDLER: And I've had the 2 opportunity to talk to you about this issue at some 3 length. 4 Some of the disadvantages, I take it, of 5 the medical examiner system is the de-emphasis upon the 6 medical involvement on the inquest side; am I right? 7 DR. JOHN BUTT: That's true. The -- 8 there is no relationship between the Chief Medical 9 Examiner and the holding of an inquest except that the 10 Chief Medical Examiner could be a witness at the inquest. 11 The Chief Medical Examiner, in both of 12 Nova Scotia and Alberta; I've worked in both provinces in 13 that office, and they're responsibility for -- 14 responsible rather, for turning over certain files that 15 may be deemed of value in holding a quote unquote "public 16 inquiry" under the Act, which is in each case called The 17 Fatality Inquiries Act in each of those two (2) 18 provinces. 19 MR. MARK SANDLER: All right. Now that's 20 just a little snapshot, Commissioner. I expect that if 21 time permits, we'll be dealing with that issue, in a 22 little bit more length, on Wednesday of this week. 23 Returning to your curriculum vitae, we see 24 at page 5 that in February of 1996, you became the Chief 25 Medical Examiner for the Province of Nova Scotia?

1 DR. JOHN BUTT: Yes. 2 MR. MARK SANDLER: And we see that in 3 September of 1999, you continued with your independent 4 consulting practice with offices at Dalhousie University 5 while you were in Nova Scotia; am I right? 6 DR. JOHN BUTT: Yes. 7 MR. MARK SANDLER: You were also a 8 Clinical Professor of Pathology at Dalhousie University 9 Faculty of Medicine during that period until you retired 10 from that position when you left Nova Scotia. 11 DR. JOHN BUTT: Yes. 12 MR. MARK SANDLER: At page 6 of your 13 curriculum vitae, we see that you, ultimately, became a 14 full Professor of Pathology, Faculty of Medicine, 15 Department of Pathology, Dalhousie University. 16 DR. JOHN BUTT: Yes. 17 MR. MARK SANDLER: And under "Other 18 Lectureships and Police Colleges", the second paragraph 19 reflects that you were the person who organized the RCMP 20 and later the Canadian Police College Sections on 21 forensic pathology. 22 DR. JOHN BUTT: Correct. 23 MR. MARK SANDLER: I do wish to note, as 24 well, that at page 7 of your curriculum vitae, you've 25 held the most senior positions within the National

1 Association of Medical Examiners, and that's largely an 2 American organization but with Canadian involvement as 3 well. Do I have that right? 4 DR. JOHN BUTT: That's correct. 5 MR. MARK SANDLER: And you served as its 6 President, Vice-president, Chairman of the Board of 7 Directors and as a Member of the Board of the Directors 8 at various times in the past? 9 DR. JOHN BUTT: Yes. 10 MR. MARK SANDLER: And as reflected at 11 page 8, the very last entry, you were appointed a Member 12 of the Order of Canada in April of 2000? 13 DR. JOHN BUTT: That's correct. 14 MR. MARK SANDLER: I don't intend with 15 any of you to go through your publications and detail, 16 but they are there in the curriculum vitae for the 17 Commissioner and all to read. 18 If I can then turn from the backgrounds 19 and qualifications of -- of each of you to address the 20 first of eleven (11) cases that -- that we will be 21 discussing, and that is the Sharon case, and I'm going to 22 direct my questions in that regard to Dr. Milroy. 23 I should say it once, Commissioner, that I 24 have provided, as I earlier indicated, a list of the 25 order of the cases that we'll be presenting and I -- I do

1 also wish to say, out of some sensitivity for the 2 affected families who may be hearing some of this 3 material for the very first time in the next two (2) 4 days, that particularly in the first two (2) instances, 5 we will be showing some fairly graphic photographs and I 6 -- I will be announcing when that will take place for 7 those who are watching. 8 Dr. Milroy, I'm going to take you to your 9 volume, Volume I, and if we can start with the overview 10 report for the Sharon case, which is reproduced at Tab 6 11 of your volume and which is PFP144453. 12 DR. CHRISTOPHER MILROY: Yes. 13 MR. MARK SANDLER: And if you'd look with 14 me at page 4 of the overview report, it reflects by way 15 of background -- just to get ourselves engaged with each 16 of these cases for a moment -- that Sharon was born in 17 Kingston, Ontario in December of 1989. She died on June 18 the 12th, 1997 at the age of seven and a half (7 1/2). 19 On June the 26th of 1997, her mother was 20 charged with second-degree murder in her death. The 21 preliminary inquiry was conducted the following year. 22 She was committed to stand trial on the charge and 23 remanded without bail for some period of time when she 24 was ultimately released with the consent of the Crown. 25 The Crown withdrew the charge on January

1 the 25th, 2001, indicating that it did not have a 2 reasonable prospect of conviction. As I understand it, 3 Dr. Milroy, as part of the Chief Coroner's review, you 4 were assigned to be the primary reviewer for this case. 5 DR. CHRISTOPHER MILROY: That's correct. 6 MR. MARK SANDLER: And if I can take you 7 to Tab 4 of your binder, which is PFP135449, this is the 8 medicolegal report that you prepared in connection with 9 this case? 10 DR. CHRISTOPHER MILROY: Yes. 11 MR. MARK SANDLER: And to be clear, as a 12 result of the Chief Coroner's review, you prepared a 13 significantly shorter document that has been described, 14 by Dr. Pollanen, as a checklist of sorts, and at the 15 request of this Commission, this medicolegal report has 16 been provided in this and other cases. 17 DR. CHRISTOPHER MILROY: That's correct. 18 MR. MARK SANDLER: Now, could you 19 provide, and -- and we'll be looking at page 4 of your 20 medicolegal report -- could you provide the Commissioner 21 with a very brief outline of the background history and 22 circumstances of this case? 23 DR. CHRISTOPHER MILROY: Yes, I was 24 ascertained that this case involves Sharon born the 28th 25 of December, 1989. On the 12th of June, 1997, she was

1 found dead, and an autopsy was performed by Dr. Smith who 2 gave the cause of death as multiple stab wounds. 3 Dr. Woods and an ontologist supported this 4 opinion; subsequently this was challenged by other 5 experts who gave the opinion that the injuries were dog 6 bites. 7 MR. MARK SANDLER: And -- and I only 8 intend to ask you this question, as opposed to each of 9 our panelists on each of the occasions, but what we see 10 common to each of the medicolegal reports that we'll be 11 examining over the next three (3) days is an outline at 12 pages 3 and 4 of your report and, indeed, the reports of 13 Professor Crane and -- and Butt, of the materials that 14 you examined in order to provide the opinions that are 15 expressed herein. 16 Am I right? 17 DR. CHRISTOPHER MILROY: That's correct. 18 MR. MARK SANDLER: So, for example, we 19 see at page 4 of your medicolegal report that amongst the 20 items that you examined, in addition to the various 21 reports that had been filed in this case, were the 22 histology slides, the photographs, Dr. Smiths's working 23 file, x-rays and skeletal remains. 24 DR. CHRISTOPHER MILROY: Yes. 25 MR. MARK SANDLER: Now, can you tell the

1 Commissioner, in a nutshell, what was your understanding 2 of the key issues in this case? 3 DR. CHRISTOPHER MILROY: Well, the key 4 issue was whether these injuries were caused by stabbing 5 or whether, as other experts had alleged, that this was a 6 case of an attack by a dog. 7 MR. MARK SANDLER: All right. And if we 8 can then go back to the overview report which, again, is 9 at Tab 6 of your materials and which, again, is 144453. 10 And we'll largely be going back and forth between your 11 medicolegal report and the overview report. 12 And if you could turn, with me, to page 27 13 we -- 14 DR. CHRISTOPHER MILROY: Yes. 15 MR. MARK SANDLER: -- see at paragraph 16 62, the overview report summarizes the abnormal findings 17 contained in the report of post-mortem examination 18 prepared by Dr. Smith. 19 Am I right? 20 DR. CHRISTOPHER MILROY: That's correct. 21 MR. MARK SANDLER: And could you simply 22 outline for the Commissioner what those abnormal findings 23 were and, where appropriate, what they mean in -- in lay 24 terms? 25 DR. CHRISTOPHER MILROY: Yes. Well, the

1 first one is multiple stab wounds -- I think that must be 2 self-evident; exsanguination too, which means loss of 3 blood; excision of scalp, which I would interpret as 4 meaning that the scalp had been incised by a sharp-edged 5 object. And then multiple cutaneous abrasions and 6 contusions. Abrasions are either caused by scraping 7 motion, or you can get an imprint of an abrasion. A 8 classic imprint would be a ligature mark. And then 9 contusions is a fancy way of saying bruises. 10 MR. MARK SANDLER: All right. And what 11 did Dr. Smith opine was the cause of death? 12 DR. CHRISTOPHER MILROY: He gave the 13 cause of death as multiple stab wounds. 14 MR. MARK SANDLER: All right. And could 15 you advise the Commissioner, as to your expert opinion, 16 as to whether this cause of death was or was not 17 reasonable. 18 DR. CHRISTOPHER MILROY: It is 19 unreasonable. 20 MR. MARK SANDLER: And can you explain 21 why you have formed that opinion. 22 DR. CHRISTOPHER MILROY: Because this is 23 a case of an attack by a dog and, therefore, the cause of 24 death was not stab wounds but penetrating wounds from a 25 dog.

1 MR. MARK SANDLER: And, at some point, we 2 will -- we will be turning both to the testimony of Dr. 3 Smith and to some of the photographs that illustrate the 4 points that you'll make. 5 But could you provide the Commissioner 6 with -- with a brief outline of the features of the case 7 that caused you to form that opinion? 8 DR. CHRISTOPHER MILROY: Yes. The -- 9 essentially, there are two (2) things that struck me when 10 I looked at the photographs in this case. The first was 11 the distribution of the injuries around the arms and 12 around, particularly, the neck and head. 13 And then, secondly, looking at them, one 14 can see that they contain -- they are relatively 15 irregular puncture marks with a lot of abrasion and 16 bruising associated with them. There are also a series 17 of other extra abrading injuries. And there's also -- in 18 one area, there is the impression of a -- a dog 19 dentician. 20 And so when you look at those, this is a 21 clear case. The other thing is that the scalp has been 22 torn off, and that would -- I have never seen a scalp 23 torn off in -- in a -- in an attack with a -- a weapon in 24 this way, but it does happen with dog attacks. 25 MR. MARK SANDLER: All right. And -- and

1 I'm going to take you to some features of -- of the 2 pathology that we see here that you -- that you've said 3 support that opinion. 4 But before I do, how common is it for you, 5 as a forensic pathologist in England and Wales, to see 6 stab wound cases? 7 DR. CHRISTOPHER MILROY: Stab wounds are 8 the -- are common. They are the commonest method by 9 which the English kill each other. If we exclude the 10 motor vehicle and -- but in terms of homicide, it's the 11 commonest method of killing. 12 MR. MARK SANDLER: All right. Well let's 13 turn if we may to Dr. Smith's testimony given at the 14 preliminary inquiry in this matter, and perhaps that will 15 help us all to understand what it is that you saw, and 16 the basis for your opinion. 17 If you can look at page 71 of the overview 18 report with me. And at paragraph 173, Dr. Smith's 19 testimony regarding the stab wounds is outlined: 20 "A: There were a number of stab wounds 21 or penetrating wounds that had occurred 22 in the upper part of her body." 23 And then he goes on to describe, 24 "some of the wounds as stab wounds, 25 some of them as incised wounds."

1 And stopping there for a moment, what is 2 the distinction between a stab wound, or a penetrating 3 wound as opposed to an incised wound? 4 DR. CHRISTOPHER MILROY: Well a -- 5 pathologists use the word "incised wound" when a sharp- 6 edged object has cut the skin. It has incised the skin 7 that's typically in a slashing motion rather in a 8 penetrating motion. 9 Some people actually call all stab wounds 10 incised wounds -- incised wounds, and then clarify them 11 further as whether they're penetrating or non- 12 penetrating. But essentially I -- I use the term 13 "incised wound" to mean a -- a motion -- a movement of a 14 -- the sharp-edged object across the skin, and a stab 15 wound as a sharp-edged object penetrating. 16 And one (1) other way is, an incised wound 17 is wider then it is deep, and a stab wound is deeper than 18 it is wide. 19 MR. MARK SANDLER: And it would appear 20 that Dr. Smith was using similar terminology in his 21 testimony? 22 DR. CHRISTOPHER MILROY: Yes. 23 MR. MARK SANDLER: And then if you look 24 at page 72, he says -- and this is the first answer on 25 this page,

1 "But there was an indication that at 2 least some of these had a double- 3 pointing mark." 4 And then skipping down four (4) lines: 5 "Now in general when you have only a 6 few stab wounds on a body, it is 7 difficult to know for sure whether the 8 instrument that caused the stab wound 9 was a knife or not. And when dealing 10 with knives, it's very difficult to 11 know whether it's a single-edged knife 12 or a double-edged knife. In North 13 America, the knives that tend to be 14 used in stabbings tend to be single- 15 edged blades as opposed to a blade 16 which is sharp on both sides, which is 17 perhaps more common in Europe. If you 18 have many stab wounds as a general 19 principle in that situation, one (1) or 20 more of the stab wounds are likely to 21 be associated with an imprint from the 22 guard or the handle. We don't have 23 that with any of the stab wounds in 24 Sharon's body. So that suggests that 25 the instrument that was used for

1 cutting did not have a guard or a 2 handle. Now the fact that we have 3 situations in which it appears that 4 there are two (2) points or two (2) 5 tracks to an injury, certainly is 6 consistent with a pair of scissors." 7 "Q: You mentioned that with scissors 8 you get a variable pattern of stab 9 wounds, is that what you found in this 10 case?" 11 "A: Yes." 12 And then if we go to the next page 13 briefly, at page 73, Dr. Smith further comments at 14 paragraph 174: 15 "There were a number of these marks in 16 the right neck region. In that area 17 there were at least twelve (12)..." 18 And he's referring to stab wounds. 19 "Which -- and I say at least twelve 20 (12) because of the problem of 21 confluence. And of those, three (3) of 22 them for sure had a double-pointed mark 23 which is well explained by the idea of 24 the pair of scissors." 25 So if we could break down that testimony

1 and ask you for your expert opinion on what he has said 2 there. Was there an indication that at least some of the 3 wounds were double-pointing marks? 4 DR. CHRISTOPHER MILROY: I -- I'm -- I 5 have to say I'm not very convinced by that. It -- it is 6 -- it is difficult to be certain about whether a weapon 7 is single or double-edged, and you -- you can see -- you 8 can see single-edged weapons. 9 In other words, you've got a blunt back 10 and a sharp edge actually giving the appearance of a 11 double edge because of the thinness. In others, you can 12 see what seems to be a single sharp edge and a single 13 blunt edge. The wounds here actually are rather 14 irregular and they just don't look like stab wounds. 15 MR. MARK SANDLER: All right. 16 DR. CHRISTOPHER MILROY: And the other 17 thing to point out about scissors is is of course if you 18 penetrate someone with sciss -- scissors actually have -- 19 characteristically obviously have to -- they have two (2) 20 blades and they have -- the outer ones are blunt. 21 So if you actually penetrate someone with 22 scissors, where both blades go in, you will get -- you 23 would expect to see, at best, two (2) blunt edges to the 24 wound not two (2) pointed edges. 25 MR. MARK SANDLER: All right. And we're

1 going to show an example of -- of scissor wounds in a -- 2 in a few moments but if you'd go on to the next feature 3 of Dr. Smith's testimony and that is that in North 4 America the knives that tend to be used are single-edged 5 blades as opposed to the blade that's sharp on both 6 sides, perhaps more common in Europe. 7 DR. CHRISTOPHER MILROY: Well, that is 8 assuming that Europe is used in the context to include 9 the United Kingdom though some of my compatriots don't 10 always think it should be. But if we -- most of the 11 stabbings that I see in my practice are single -- are 12 actually single-edged knives, so that's just an incorrect 13 statement. 14 MR. MARK SANDLER: And then he says: 15 "As a general principle, if you have 16 many stab wounds they're likely to be 17 associated with an imprint from the 18 guard or the handle which would suggest 19 here that the instrument used for 20 cutting did not have a guard or a 21 handle." 22 DR. CHRISTOPHER MILROY: Well -- 23 MR. MARK SANDLER: What do you say about 24 that? 25 DR. CHRISTOPHER MILROY: -- hilt marks,

1 marks by the guard, are actually uncommon and the 2 literature, I would -- it's certainly my experience 3 they're uncommon and, in fact, a piece of work done by 4 one (1) my previous heads of departments, Michael Green 5 with a colleague, they found five (5) in a hundred and 6 forty-three (143). 7 So less than 5 percent of stab wounds will 8 show a hilt mark, so it's an -- it's an uncommon finding 9 and, therefore, it's not something that we determine 10 whether there's a hilt or a guard just by looking at the 11 wounds -- 12 MR. MARK SANDLER: And in your -- 13 DR. CHRISTOPHER MILROY: -- unless -- 14 unless there is a positive presence. 15 MR. MARK SANDLER: And in your view, does 16 the absence of a hilt mark support the use of scissors? 17 DR. CHRISTOPHER MILROY: It does not, no. 18 MR. MARK SANDLER: And if we then -- go 19 with me to page 73, paragraph 175. Dr. Smith is asked 20 about abrasions and bruising and he says this: 21 "There were on her body and the neck 22 one (1) of the regions a number of 23 areas of abrasion on her surface and I 24 can't explain exactly what their 25 significance is because overall I

1 didn't see a single distinct pattern 2 that would allow me to understand how 3 they had occurred or match it up to any 4 specific object. 5 Q: These were abrasions and bruising 6 you're saying? 7 A: Abrasions, yes. 8 Q: Are you able to help us out as to 9 the length of time? Were they old 10 abrasions? 11 "Oh, I'm sorry, no. All of the 12 injuries I've talked about are acute 13 injuries so they have occurred at or 14 just before the time of death." 15 So Dr. Smith has opined that the abrasions 16 exist but he can't explain their significance, can you? 17 DR. CHRISTOPHER MILROY: Yes, they're 18 caused by a dog. 19 MR. MARK SANDLER: And what is it about 20 the mechanism of a dog bite that would cause one (1) to 21 expect abrasions? 22 DR. CHRISTOPHER MILROY: Well, the -- 23 dog's teeth are not as sharp as a stabbing -- the normal 24 stabbing weapons and as they penetrate they abrade the 25 edge. And furthermore, you've also got the -- the dog,

1 if it doesn't manage to penetrate completely will -- the 2 -- the teeth can scrape the skin and you also have the 3 claws of the dog as well to scrape. 4 So those abrasions are -- are fully 5 understandable in the context of a dog attack. 6 MR. MARK SANDLER: And if you'd turn with 7 me at page 74, Dr. Smith addressed at paragraph 176, the 8 injuries to the arms and he described here, and I won't 9 read this entire passage, the distribution of injuries. 10 Can you explain to the Commissioner why 11 the distribution of injuries that you saw here favour dog 12 bite and tell against stab wounds? 13 DR. CHRISTOPHER MILROY: Yes, well the -- 14 the position of them is on the arms and the neck. There 15 is an absence of injury to the trunk which is the typical 16 target of somebody who is stabbing somebody. It presents 17 the largest target. That's where you tend to aim, and 18 obviously, the more stab wounds you have, the more likely 19 you are to hit the trunk and there aren't any in this 20 case. However, it -- when one sees the injuries, it's 21 fully explainable by the dog clamping onto the upper 22 arms. 23 The other thing that would actually happen 24 in somebody who is being attacked in this way is that 25 they would resist the attack by trying to grab hold of

1 the weapon, so they will often have defence injuries on 2 their hands and their arms. 3 But, of course, if the dog has clamped 4 both sets of jaws onto the arm or onto the neck, then 5 they aren't able to get hold of -- or attempt to get 6 hold, so they don't -- they -- they haven't been injured, 7 so that accounts for the relative absence of injuries. 8 And -- and I should say, the other 9 striking thing is in absence of injuries to the trunk, 10 where of course, the dog isn't going to -- it isn't going 11 to bite because of the size of getting its jaws on, and-- 12 MR. MARK SANDLER: Sorry, just stopping 13 there for a moment. It -- it may be self-evident to 14 some, but just to be clear, why would the dog not 15 generally be biting at the trunk? 16 DR. CHRISTOPHER MILROY: Well, because he 17 can't get hold of it because you -- you're going to have 18 to put -- obviously it's going to have -- it's going to 19 grip both upper and lower sets of jaws so that it can do 20 that across the upper arms and across the neck much more 21 easily than it can grip the trunk. 22 But you would expect to see someone who is 23 stabbed repeatedly most likely to have injuries to the 24 trunk, so that is a -- that is a pointer. Then, one 25 looks at the -- the close up nature of the injuries, and

1 they're -- they're just not stabbing injuries. 2 MR. MARK SANDLER: All right, if by -- if 3 you could go with me to page 76 of the overview report, 4 paragraph 179, and this is Dr. Smith's testimony 5 regarding the scalp. He said: 6 "Initially, when I viewed her body the 7 scalp was lying beside it, and there 8 was a large defect on the top of her 9 head from where the scalp had been 10 removed." 11 Q: Are you able to assist us on how 12 that would be removed? 13 A: Well, the edges appeared to be cut 14 or incised. There's a suggestion in 15 some areas of a more crushing, or 16 perhaps tearing, type of mark, so if it 17 was a sharp knife, a scalpel, whatever 18 it is that cut around, one would expect 19 to see an imprint to the pericranium of 20 that incised mark. Now, with Sharon 21 that was no clearly apparent and so I 22 don't have this oval ring that was cut 23 into the pericranium. That suggests 24 that the instrument that was used to 25 remove her scalp did not cut down, but

1 rather cut through the tissues, and 2 based on that, the best explanation, in 3 my opinion, is an instrument more like 4 a pair of scissors which don't cut down 5 but rather cut laterally. 6 Q: And excuse my terminology, but the 7 outline of the scalp, is there anything 8 about that that would indicate cutting? 9 A: Well, it's sharp, it's a reasonably 10 sharp edge. Scissors, of course, in 11 fact, you can run into debate in the 12 forensic textbooks as to whether or not 13 scissors truly incise or whether they 14 cut by crushing or a combination of the 15 two (2), and that may be in part 16 explained by the sharpness and the 17 degree of maintenance of the scissors 18 or the design of scissors." 19 And then skipping down to paragraph 181, 20 defence counsel suggested that: 21 "A large portion of the scalp was 22 ripped off; would that be fair to say? 23 A: Well, first, I wouldn't use the 24 term "ripped off". I think that would 25 be misleading. The scalp was excised.

1 It was removed. It wasn't ripped off. 2 By "excised" you mean deliberately cut 3 out, is that correct? 4 Well, I mean I would have said cut out 5 and perhaps not used the word 6 "deliberate", but my opinion was, yes, 7 it was deliberately cut out. 8 And then he says again: 9 "I think the best explanation is a pair 10 of scissors." 11 And finally: 12 "How did you determine that the scalp 13 was cut, as opposed to torn off? 14 It's the wound edge. The wound edge 15 was remarkably smooth, both to the 16 naked eye, as well as to microscopic 17 examination. I think that I made it 18 very clear that it looked to me like it 19 had been removed with a sharp 20 instrument. That by naked-eye 21 observation, I thought, yesterday, I 22 had said it been removed by a sharp 23 instrument. I didn't believe that it 24 had been incised or circumcised because 25 I didn't see underlying changes on the

1 periosteal tissue or the pericranial 2 tissue, but rather it had been removed 3 by a sharp instrument, which I best 4 believe to be explained by a pair of 5 scissors." 6 What do you say about a) his description 7 of the injury to the scalp; and b) his opinion as to how 8 it was caused? 9 DR. CHRISTOPHER MILROY: This is -- this 10 is a lacerated wound edge that has been torn or ripped 11 away. And, in fact, when one looked at the -- the skull 12 of Sharon, you could actually see puncture marks where 13 the dog's teeth had penetrated. So -- 14 COMMISSIONER STEPHEN GOUDGE: When you 15 say "lacerated", do you mean rough not smooth? 16 DR. CHRISTOPHER MILROY: Yes. I should - 17 - perhaps I should explain. Forensic pathologists use 18 "laceration" in a very specific way. A laceration is a 19 splitting or tearing of the skin, and that's got to be 20 contrasted with an incised wound which is where you have 21 a sharp-edged object. 22 And I -- I don't know about North America, 23 but I know that in -- in England, doctors have a habit -- 24 who are not forensically trained -- of calling all 25 injuries "lacerations" but, in fact, there is a very

1 specific definition in forensic medicine. And by 2 "lacerated", I mean, that this was a tearing injury. 3 COMMISSIONER STEPHEN GOUDGE: Can one 4 observe that with a naked eye or is -- 5 DR. CHRISTOPHER MILROY: Yes -- 6 COMMISSIONER STEPHEN GOUDGE: -- is it 7 microscopic? 8 DR. CHRISTOPHER MILROY: -- you can see 9 it with naked eye. 10 COMMISSIONER STEPHEN GOUDGE: Yes. 11 12 CONTINUED BY MR. MARK SANDLER: 13 MR. MARK SANDLER: And just going back to 14 page 77 for a moment. The -- the answer right at the top 15 of the page. Dr. Smith says: 16 "Well, the edges appeared to be cut or 17 incised. There's a suggestion in some 18 areas of a more crushing or perhaps 19 tearing type of mark." 20 So I'm not entirely clear, and perhaps you 21 can help us out, because at some points Dr. Smith is 22 saying that it appears to be smooth, and at some points 23 that there appears to be more of a crushing or perhaps 24 tearing type of mark. 25 DR. CHRISTOPHER MILROY: Well, I mean,

1 edges can look slightly variable especially when they're 2 torn. It's -- you don't expect to see it normally with 3 incised wounds but looking at lacerations, you can have a 4 variable amount of crushing and tearing. But this 5 patently is a tearing injury; not cut off with a pair of 6 scissors. 7 MR. MARK SANDLER: All right. At page 79 8 of the overview report, Dr. Smith is asked whether he 9 would excise wounds to microscopically examine them if 10 you expect -- if he suspected contamination. And he 11 says, 12 "I didn't do that." 13 And the questioner says: 14 "Because of, in fact, you got saliva 15 from a dog in any of these wounds that 16 would show up when you look swab -- 17 when you took swabs from the wounds, 18 correct? 19 A: Now you're asking me a question I 20 don't know the answer to. I don't know 21 whether dog saliva would show up or not 22 from a wound." 23 And then there's questioning about the 24 absence of taking of swabs. What do you say about that? 25 DR. CHRISTOPHER MILROY: Well, you can

1 identify saliva from wounds. It's -- it's -- we -- we 2 always swab bite marks for saliva -- human bite marks -- 3 because you can DNA it, and you can DNA animal saliva as 4 well. And you can certainly say whether something is 5 human or non-human so there is value in taking swabs. 6 MR. MARK SANDLER: All right. Would you 7 have taken swabs in this case? 8 DR. CHRISTOPHER MILROY: Possibility not 9 because I would have recognized it as a dog bite. 10 MR. MARK SANDLER: All right. At page 80 11 of the overview report, Dr. Smith is asked about this 12 possibility of a dog having attacked Sharon. And the 13 questioner says: 14 "I suggest those contusions are 15 consistent with a pitbull dog grabbing 16 the child by the neck and clamping 17 down. 18 A: I suggest you're absolutely wrong." 19 And he says: 20 "I don't see any lacerations. I don't 21 see any lacerations. There are no 22 marks in here that look like a tearing 23 of a laceration. Furthermore, I don't 24 see the pattern or a dental arch that 25 would be associated with canine

1 dentician so we have no disruption in 2 terms of a laceration. We don't have 3 any tearing going on. I don't have any 4 marks that look like a canine dentician 5 pattern. 6 No, this doesn't look to me like a 7 pitbull or any other carnivorous animal 8 which has done that." 9 And then skipping to the next page, page 10 81, defence counsel asks: 11 "How many other cases have you been 12 involved in in where a dog has been 13 responsible for the wounds? 14 A: I've seen dog wounds. I've 15 seen coyote wounds. I've seen wolf 16 wounds. I recently went to an 17 archipelago of islands owned by another 18 country up near the North Pole, and had 19 occasion to study osteology and look at 20 patterns of wounding from polar bears. 21 As absurd as it is to think that a 22 polar bear attacked Sharon, so it is 23 equally absurd that it is a dog wound." 24 And he goes on to say that: 25 "It's possible that a dog interfered

1 with the body, but I do not see on 2 Sharon's body any marks that are 3 typical of canine activity." 4 I'm going to ask you two (2) questions 5 arising out of that. The first is, what do you say about 6 the testimony given; that it's as likely that a polar 7 bear was responsible for these wounds as a dog wound? 8 DR. CHRISTOPHER MILROY: Well, I find 9 that evidence emotive and it's prejudicial, I -- in my 10 opinion. The -- I mean, subsequently, it's being 11 conceded that -- I think by Dr. Smith, that at least some 12 of these injuries are dog woun -- dog wounds, so that 13 that piece of testimony must be wrong. 14 This was a dog bite case. I think one (1) 15 of the other points is that -- I mean, bringing in the 16 polar bears, he was talking about the study of osteology 17 which is bones. He wasn't talking about skin injury 18 anyway. So I don't see the relevance of bringing in 19 polar bears. 20 But it -- it just looks emotive and 21 unbalanced testimony. 22 MR. MARK SANDLER: I'm going to ask you 23 about the point that he also makes that there was no 24 pattern of canine dentition that was seen; do you agree 25 with that?

1 DR. CHRISTOPHER MILROY: I don't. 2 MR. MARK SANDLER: All right. And 3 perhaps that's the point at which we're going to look at 4 some of the photographs that have been assembled. Excuse 5 me for a moment. 6 7 (BRIEF PAUSE) 8 9 MR. MARK SANDLER: Excuse me for a 10 moment, Commissioner. Commissioner I -- I wanted to show 11 the -- the photographs at this point, and the only 12 concern that I have is that -- in my respectful 13 submission, that if the photographs are shown in the 14 media room then, in my respectful submission, they ought 15 not to make their way into a newspaper having regard to 16 the respect that should be shown for -- for the body of 17 the people involved in this, and -- and in the next case. 18 And I'm a little bit concerned about that. 19 It may very well already be implicit in the -- in the 20 Order that you've already been -- already made. But -- 21 but I did want to indicate that at this point. 22 COMMISSIONER STEPHEN GOUDGE: I take it 23 you are suggesting I should make an order, explicitly, 24 that the photographs you're about to show us ought not to 25 be reproduced in the media?

1 MR. MARK SANDLER: Exactly. 2 COMMISSIONER STEPHEN GOUDGE: I think 3 that's appropriate. 4 5 (BRIEF PAUSE) 6 7 CONTINUED BY MR. MARK SANDLER: 8 MR. MARK SANDLER: All right. I'll ask 9 the Registrar then to -- to show the -- the Sharon photo 10 presentation, and if you'll just go one (1) by one (1), 11 Dr. Milroy can describe what it is that we're seeing. 12 DR. CHRISTOPHER MILROY: Well, this 13 showing the -- obviously, the neck. Here you have these 14 variable sized puncture wounds. They have a lot of 15 abrasion around them, and a lot of contusion around them, 16 and they do not look like -- they are not injuries caused 17 by a sharp penetrating weapon. 18 MR. MARK SANDLER: All right. The next 19 photograph, please? 20 DR. CHRISTOPHER MILROY: Here you can see 21 the -- the arm. Again, showing irregular puncture wounds 22 with a lot of bruising and a lot of abrasion. You can 23 also see an absence of injury other then one (1) or two 24 (2) abrasions which could be -- for example, be cau -- 25 caused by a dog's claw, but there are no puncture wounds

1 on the trunk. 2 MR. MARK SANDLER: All right. The next 3 please. 4 DR. CHRISTOPHER MILROY: And here you 5 have a photograph taken with scale showing what this 6 highly suspicious of a dog arch. 7 COMMISSIONER STEPHEN GOUDGE: I'm sorry, 8 highly suspicious of...? 9 DR. CHRISTOPHER MILROY: Of dog arch, the 10 teeth of the dog. 11 COMMISSIONER STEPHEN GOUDGE: The arch of 12 the -- 13 DR. CHRISTOPHER MILROY: The arch of the 14 dog. 15 COMMISSIONER STEPHEN GOUDGE: -- the 16 teeth in the mouth? 17 DR. CHRISTOPHER MILROY: Yes. And it 18 seems to have been recognized at the time in the sense 19 that it was photographed. There's a patterned abrasion 20 there. 21 22 CONTINUED BY MR. MARK SANDLER: 23 MR. MARK SANDLER: All right. 24 DR. CHRISTOPHER MILROY: Now this is a 25 case that I have put up which is of scissors. What you

1 actually see in a number of areas are pairs of short, 2 penetrating wounds, and that's caused by the tips of the 3 scissor. And then when they penetrate right through, you 4 then get the appearance of a -- of a stab wound. 5 Now there is a little drying artifact on 6 the edge, but you can see in comparison with the other 7 there is an absence -- and we're going to show a 8 comparison photograph -- there is an absence of bruising, 9 and there is an absence of abrasion associated with these 10 wounds. 11 MR. MARK SANDLER: All right. 12 DR. CHRISTOPHER MILROY: And there is the 13 -- a comparison of the two (2) wounds. And I should say 14 in case -- those wounds are on the trunk of a victim. 15 And then finally in this group is just 16 what a typical stab wound looks like. And here we have a 17 typical stab wound, in fact with a -- appears to be a 18 single sharp-edged knife because on the right-hand side 19 as you look, you can see an incision with a slight tail. 20 But, there again, there is an absence of 21 abrasion and an absence -- relative absence of bruising 22 in this case. So that's -- that's a typical appearance 23 of a stab wound -- 24 MR. MARK SANDLER: All right. 25 DR. CHRISTOPHER MILROY: -- with a knife.

1 MR. MARK SANDLER: All right. Thank you 2 very much. 3 If we can go back to the overview report, 4 and I was about to take you to the next entry, and that 5 is at page 85, paragraph 189. During cross-examination, 6 Dr. Smith was questioned on whether he kept notes of 7 conversations with police officers or other persons. He 8 answered: 9 "I have not made any notes of any 10 conversations with police officers or 11 anyone else. No. The notes that I -- 12 you have notes that I took from the 13 post-mortem examination, but I don't 14 keep notes of conversations with police 15 officers. 16 Q: Or others involved in the case? 17 A: Not usually, no. No. Usually it 18 is something significant. I mean, if - 19 - let me give you an example. If I'm 20 looking for results of a toxicologic 21 examination, and I phone the Centre of 22 Forensic Sciences to get drug levels 23 and they give them to me. I will 24 record those so that would be a note. 25 But other than that kind of thing, I

1 have no other information. I'm taking 2 no notes during my conversation with 3 the police. The police may have notes 4 of such things; if they want them they 5 can take them, but I certainly don't 6 need them." 7 What systemic issue do you see arising out 8 of that answers? 9 DR. CHRISTOPHER MILROY: Well, in my 10 practice, when I first meet with the police at the start 11 of the case, they will give -- provide me with a history 12 of the events as they are aware of them at the time. I 13 write down that history. I, subsequently, transcribe 14 that history into the typewritten report. And if there 15 are conversations with the police, we have to keep notes 16 of them. 17 And also, at the end of an autopsy we will 18 brief -- debrief the police officers of our findings 19 because they may well use those to go away and arrest or 20 charge somebody. 21 Now we don't always do this, but there is 22 a developing practice that we actually -- we certainly 23 dictate to the police, and they take a note. Sometimes 24 we actually sign that note, and that is something we're 25 looking to develop into a more formal -- more formal

1 process so that we have agreement between us as to what 2 we have said at the autopsy and have a record of it. 3 MR. MARK SANDLER: All right, so -- 4 COMMISSIONER STEPHEN GOUDGE: This is a 5 report you would give to the police at the conclusion of 6 your autopsy? 7 DR. CHRISTOPHER MILROY: Yes. Just a 8 short -- maybe two (2) or three (3) paragraph, just to 9 explain the principal findings. Because often what you 10 find is that somebody will have been -- may even have 11 been arrested before you do the post-mortem examination - 12 - and they're going to, then, go and put your post-mortem 13 findings to the suspect in interview and, therefore, you 14 want to be certain that they understand what you're 15 saying, and it's important, therefore, that you have that 16 debriefing process. 17 And it's equally important at the start 18 that you have a record of what you've been told because 19 it may change. And if the police tell you something that 20 is of significance to your conclusions but that, 21 subsequently, that information changes. For exam -- 22 COMMISSIONER STEPHEN GOUDGE: Make a 23 judgment that the -- 24 DR. CHRISTOPHER MILROY: It may affect 25 your -- you may need to make an alteration of that,

1 subsequently. 2 COMMISSIONER STEPHEN GOUDGE: Okay. 3 MR. MARK SANDLER: So let -- 4 COMMISSIONER STEPHEN GOUDGE: Sorry, Mr. 5 Sandler, I was just about to ask, if at the conclusion of 6 the autopsy, there was a view that there was lab work 7 that needed to be done, I take it that would be a factor 8 in what the police were told. 9 DR. CHRISTOPHER MILROY: Yes. They're 10 often -- I often have to say to them at -- at the end, 11 especially if a pediatric case, obviously, I've got to do 12 more tests. I'll have to do the histology. I'll have to 13 do the neuropathology. I'll have to await the 14 toxicology, and would anticipate -- and I then try and 15 give them a time frame when my report will be ready. 16 And so, in -- in -- often in those sorts 17 of cases, they will say, Well, under that, we'll probably 18 bail our suspect and ask him to answer bail in three (3) 19 months or something like that. 20 So, clearly, there are management issues 21 to the case from the moment -- there are management 22 issues from the moment you arrive at the mortuary -- the 23 morgue, in American terms -- to explain -- to -- from the 24 moment the police off -- the -- the police officer, and 25 that's normally a senior police officer. In my practice,

1 the Superintendent characteristically comes to the 2 autopsy and it's he that does the briefing. 3 4 CONTINUED BY MR. MARK SANDLER: 5 MR. MARK SANDLER: All right. So, just 6 unpacking some of things that you've said, because they - 7 - they raise a number of the issues that -- that we've 8 identified here. 9 First of all, you examined -- and, in 10 fact, all three (3) of you examined a number of reports 11 of post-mortem examination that were prepared by Dr. 12 Smith. 13 And did they generally contain a history, 14 Dr. Milroy? 15 DR. CHRISTOPHER MILROY: No. 16 MR. MARK SANDLER: Dr. Crane, in the ones 17 you examined? 18 DR. JACK CRANE: They did not. 19 MR. MARK SANDLER: Dr. Butt...? 20 DR. JOHN BUTT: No, they did not. 21 MR. MARK SANDLER: And would you all 22 agree with Dr. Milroy that it's -- it's sound practice to 23 memorialize the history that is provided by the police or 24 -- or others prior to the commencement of the post- 25 mortem? Dr. Crane...?

1 DR. JACK CRANE: Yes. I have to say that 2 sometimes the history is excluded whenever the report is 3 used in proceedings because it's regarded as being as 4 hearsay. But, nevertheless, if I'm asked what 5 information I was provided with, then I have the history 6 recorded, so I have written down what the police officer 7 has told me. 8 MR. MARK SANDLER: All right. And Dr. 9 Butt, do you agree with that? 10 DR. JOHN BUTT: I agree with it, but I 11 must admit that in some of the cases that I review from 12 the United States, it's not included by some 13 pathologists. 14 MR. MARK SANDLER: All right. And, in 15 fairness, you can't comment on the extent to which 16 histories were or were not being included in the form 17 that Dr. Smith was using back in the period that we're 18 talking about here. 19 Am I right? 20 DR. JOHN BUTT: Correct. 21 DR. JACK CRANE: That's correct. 22 MR. MARK SANDLER: Okay. 23 COMMISSIONER STEPHEN GOUDGE: Can I ask 24 the three (3) of you, from your perspective, has there 25 been any evolution in the practice of the recording of

1 history in detail in the autopsy report over the last 2 fifteen (15) years? 3 DR. CHRISTOPHER MILROY: Yes. In -- 4 certainly, there were areas in the -- in England where it 5 wasn't done. It's now regarded as being necessary and is 6 part of our Code of Practice. 7 And, I have to say that I have never been 8 challenged for putting a history in. I mean, I -- I do 9 in all cases. And I -- it's -- it's, certainly, in my 10 practice, is expected that there will be a history. But 11 there -- there were areas that didn't used to put it in. 12 13 CONTINUED BY MR. MARK SANDLER: 14 MR. MARK SANDLER: And Dr. Crane, we'll 15 be hearing about this a little bit on Wednesday, but, 16 indeed, the -- the courts and the codes of practice now 17 speak to the content of what should be in a post-mortem 18 examination, do they not? 19 DR. JACK CRANE: They do. And they 20 include the history as being part of your report. 21 MR. MARK SANDLER: All right. Now, Dr. 22 Milroy, you raised another issue, and that is at the 23 conclusion of the post-mortem examination, I take it, 24 it's not uncommon for police officers to want some 25 answers, even if further ancillary investigations have to

1 be taken. 2 Am I right? 3 DR. CHRISTOPHER MILROY: That's correct. 4 MR. MARK SANDLER: So you've indicated 5 that it's a wise practice, from a systemic perspective, 6 to ensure that your advice to them is memorialized. 7 DR. CHRISTOPHER MILROY: Yes. I mean, 8 they -- characteristically, they write it down as you 9 speak to them. 10 MR. MARK SANDLER: And, Dr. Crane, what 11 are the concerns that prompt the need for memorializing 12 the advice that you give to police officers at the 13 conclusion of a post-mortem examination? 14 DR. JACK CRANE: The difficulty can be 15 that, first of all, the police officer is writing 16 something down. He may write it down incorrectly. Or it 17 may be that he only writes down, perhaps, what he wants 18 to hear or only part of what you've said. 19 So my practice is that I write down on a 20 form what my principal findings were. Now, in some 21 cases, if there are further tests to be done, we simply 22 write down undetermined pending further investigations. 23 But I write this down and give it to the 24 police officer so that there's a clear note from me as to 25 what I find during the autopsy.

1 MR. MARK SANDLER: And, I take it, that 2 also prevents the danger of over-interpreting what 3 findings you've made at that stage of the post-mortem? 4 DR. JACK CRANE: I think that's right. As 5 I say, sometimes the police can be overzealous and can 6 just pick up on part of what you've said, rather then 7 taking it, perhaps, in it's -- it's proper context. 8 MR. MARK SANDLER: All right. Now if I 9 can go back, Dr. Milroy, to the overview report, and take 10 you to page 88. And I'm looking with you, if I may, to 11 paragraph 193. And here Dr. Smith was asked on the com - 12 - to comment on the difference between his ability to 13 offer opinions on the source of wounding versus the 14 ability of forensic pathologists. 15 "Q: Normally in your area of 16 expertise, you're not as well qualified 17 as a forensic pathologist, are you, to 18 offer opinions as to the source of 19 wounding on bodies that you do 20 autopsies on? 21 A: You've asked an interesting 22 question. It depends on the type of 23 wound pattern that we're looking at. 24 The adult pathologist -- forensic 25 pathologist tend to steer away from the

1 children because of the very distinct 2 or peculiar aspects of wound patterns 3 in kids. 4 Q: How can you say you're more 5 qualified to assess the source of 6 wounds on a child then a forensic 7 pathologist who deals with adults? 8 A: Because the pattern of wounding in 9 children is different then adults. 10 Q: Is there some authority to state 11 that proposition? 12 A: Yes. I mean, that statement is 13 well regarded. It's the very basis of 14 all of the textbooks which deal with 15 patterns of physical abuse of infants 16 and children. That's a fundamental 17 difference. 18 Q: What I'm suggesting to you Dr., is 19 possibly wounds by a knife or scissors 20 or by some other means isn't unique to 21 children, is it? 22 "No, in fact it's more common in the 23 adult realm then in the pediatric 24 realm, yeah, that's right." 25 So I would suggest to you that a

1 forensic pathologist would be in a 2 better position to offer an opinion as 3 to the source of wounds then yourself, 4 who's an anatomical pathologist, 5 wouldn't that be fair to say? 6 "No, no, no, no. The answer is yes and 7 no. The issue is, in stab wounds there 8 are pathologists practising in Canada 9 who have more experience with stab 10 wounds then I have. I've had perhaps 11 more experience with stab wounds in the 12 young then others who have experience 13 in adults." 14 And then he goes on the concede that other 15 pathologists have more experience with stab wounds 16 generally than he does. 17 What do you say about his testimony that 18 he's more qualified to assess the source of wounds on a 19 child then a forensic pathologist who deals with adults 20 because the pattern of wounding in children is different 21 then adults? 22 DR. CHRISTOPHER MILROY: Well, with 23 respect to this case, that was just frankly misleading. 24 It's -- it's nonsense. There is no difference between a 25 stab wound in a child and a stab wound in an adult, and I

1 do both. 2 MR. MARK SANDLER: Let me ask you the 3 question systemically. If this case presented itself in 4 England and Wales, who would conduct the autopsy? 5 DR. CHRISTOPHER MILROY: A forensic 6 pathologist. 7 MR. MARK SANDLER: For the reasons you've 8 indicated? 9 DR. CHRISTOPHER MILROY: Yes, it's 10 patently a case where you -- you need a forensic 11 pathologist. You wouldn't require pediatric pathology 12 input into this case. 13 MR. MARK SANDLER: Well, let me ask you 14 about a practice that the Commissioner has heard about 15 last week, and that is double-doctoring in England, 16 Wales, and Northern Ireland. I'm going to ask you and 17 Dr. Crane what you experience is in that regard, and then 18 move it in to this particular case. 19 What is the practice of double-doctoring 20 in England and Wales? 21 DR. CHRISTOPHER MILROY: Well it happens 22 -- it happens throughout the United Kingdom, because it 23 happens in Scotland as well. Scotland, by law, has to 24 have two (2) -- two (2) pathologists do every autopsy. 25 And where it's a pediatric case, they -- they try and

1 ensure one (1) is a forensic pathologist and one (1) is a 2 pediatric pathologist, and that's, essentially, what we 3 do in England as well. 4 And this is for the cases where it's a 5 question of whether you think that there is -- the child 6 may have died of natural disease or it may have died of a 7 -- a non-natural event. 8 In that case, the double experience of the 9 forensic pathologist looking, if you like, at the trauma 10 side, and the pediatric pathologist looking at the 11 natural disease side works best. 12 Where on the other hand, you have a, 13 frankly, homicidal death, be it stabbings, blunt trauma, 14 poisoning, shooting; then you can just deal with it as a 15 forensic pathologist. 16 And then if necessary, if you found 17 something peculiar on the histology, for example, you 18 could then go and consult a pediatric pathologist just as 19 much as we consult a neuropathologist or we consult a 20 toxicologist. 21 MR. MARK SANDLER: And where do you 22 obtain your pediatric pathologist? 23 DR. CHRISTOPHER MILROY: Well, that's a 24 difficult problem because they work in the hospitals, but 25 they're not always available at night and the weekends

1 when the police sometimes want cases done because they've 2 got someone arrested and charged. 3 So -- and not all pediatric pathologists 4 are keen to get involved in the work because it means 5 going to court, and most doctors don't like going to 6 court. Forensic pathologists are a bit peculiar in that 7 way, in that we -- we don't mind going to court or we 8 accept the -- our responsibility. 9 So in -- in Sheffield and Yorkshire, I 10 will use a hospital pediatric pathologist and I will -- 11 you know, and then myself or my colleagues. 12 MR. MARK SANDLER: Dr. Crane, your 13 situation's a little different, isn't it? 14 DR. JACK CRANE: Yes, my department still 15 has overall charge for doing all these cases. And 16 certainly if it's a trauma case, if there are injuries on 17 the body, then the forensic pathologist will do those. 18 Sometimes we will have a pediatric pathologist with us, 19 but if it's a trauma case, if there are injuries, then 20 the forensic pathologist always takes the lead because 21 that's what our bread and butter is. 22 We look at injuries; we interpret 23 injuries. That's what our job is. In -- I suppose the 24 cases where we rely more heavily on the pediatric 25 pathologist is the death that appear to be natural; the

1 sudden unexpected deaths in infancy. But, nevertheless, 2 even though they appear to be natural, there is still a 3 forensic pathologist participating in those autopsies. 4 We will do the external examination. We 5 will do the evisceration. And we will usually then ask 6 the pediatric pathologist to examine the organs; to take 7 the appropriate sections. 8 MR. MARK SANDLER: And -- 9 COMMISSIONER STEPHEN GOUDGE: Is the 10 pediatric pathologist present at the autopsy? 11 DR. JACK CRANE: Yes, we are both there 12 for the whole thing. We -- we take the history together 13 -- as I say, normally we would take the lead in doing the 14 external examination. 15 COMMISSIONER STEPHEN GOUDGE: Mm-hm. 16 DR. JACK CRANE: Because again, we are 17 the ones who are the experts in interpreting injuries, 18 interpreting marks. So we -- we do it together, we're 19 both there. 20 21 CONTINUED BY MR. MARK SANDLER: 22 MR. MARK SANDLER: So to -- to provide an 23 illustration, you've heard Dr. Milroy describe the Sharon 24 case. Would a pediatric pathologist in your department 25 have to attend that autopsy?

1 DR. JACK CRANE: No. 2 MR. MARK SANDLER: All right. You're 3 going to be talking either later today or tomorrow about 4 the Nicholas case, where originally the pathologist 5 described the case as SIDS, subject to further 6 investigation, and the issue arose as to whether it was 7 truly a SIDS case or -- or indeed was a suspicious death. 8 How about that kind of case? How would 9 you handle that in Northern Ireland? 10 DR. JACK CRANE: In that type of case, it 11 would be done jointly; a forensic pathologist and a 12 pediatric pathologist. 13 MR. MARK SANDLER: And I take it, that 14 brings the forensic pathologist experience concerning 15 injuries and trauma, and it brings the pediatric 16 pathologist experience in disease and metabolic disorders 17 and the like? 18 DR. JACK CRANE: That's correct. 19 MR. MARK SANDLER: Okay. 20 COMMISSIONER STEPHEN GOUDGE: Does a 21 resourcing challenge limit you to doing that in any way? 22 DR. JACK CRANE: Sorry? 23 COMMISSIONER STEPHEN GOUDGE: Does the 24 resourcing challenge limit your ability to do that? 25 DR. JACK CRANE: We have two (2)

1 pediatric pathologists who work with this. Now, I -- 2 obviously, they have other commitments. 3 COMMISSIONER STEPHEN GOUDGE: They are 4 hospital based? 5 DR. JACK CRANE: They're hospital based, 6 but my department is situated in the same hospital, and 7 we make an arrangement that we can do it at a mutually 8 convenient time. They're very keen to get involved in 9 these cases so we don't have any difficulty. 10 11 CONTINUED BY MR. MARK SANDLER: 12 MR. MARK SANDLER: All right. Dr. 13 Milroy, in your view, did Dr. Smith have the best 14 background and training to conduct this autopsy? 15 DR. CHRISTOPHER MILROY: No. 16 MR. MARK SANDLER: And for the reasons 17 you've already indicated? 18 DR. CHRISTOPHER MILROY: It required a 19 forensic pathologist with forensic pathology training to 20 do this case. 21 MR. MARK SANDLER: All right. 22 Commissioner, I'm just about -- I'm almost completed the 23 Sharon matter. This is an appropriate time for our 24 morning break. 25 COMMISSIONER STEPHEN GOUDGE: Fine, we

1 will be back then at 11:30. Thank you. 2 3 --- Upon recessing at 11:14 a.m. 4 --- Upon resuming at 11:33 a.m. 5 6 THE REGISTRAR: All rise. Please be 7 seated. 8 COMMISSIONER STEPHEN GOUDGE: Mr. 9 Sandler...? 10 11 CONTINUED BY MR. MARK SANDLER: 12 MR. MARK SANDLER: Thank you, 13 Commissioner. 14 Dr. Milroy, if you could look with me back 15 into the overview report at page 128. And we know from 16 the overview report that Dr. Ferris was asked to express 17 his opinion in writing in connection with this case. He 18 concluded that Sharon died from dog bites, and he made a 19 variety of comments that have been broken down in his 20 report. And if we may, just briefly, go through them to 21 see which ones you agree -- 22 DR. CHRISTOPHER MILROY: Yeah. 23 MR. MARK SANDLER: -- and disagree with 24 or would qualify. 25 (a) "Dr. Smith made a number of

1 sweeping generalizations which were 2 either wrong or over-simplifications 3 and may have indicated a relative lack 4 of experience and understanding of the 5 manner and mechanism of wounding, 6 particularly incise wounds." 7 I won't ask you to comment on the extent 8 to which they were sweeping generalizations which are 9 somewhat subjective. What do you say about the relative 10 lack of experience and understanding on the manner and 11 mechanism of wounding? 12 DR. CHRISTOPHER MILROY: I agree. 13 MR. MARK SANDLER: 14 "Dr. Smith described the difference 15 between the type of knife used in 16 stabbing in Europe as opposed to North 17 America when no difference existed." 18 DR. CHRISTOPHER MILROY: I agree with Dr. 19 Ferris' comments. 20 MR. MARK SANDLER: Dr. Smith considered 21 an imprint injury with a garter (phonetic) handle of the 22 knife as being characteristic of a stab wound when in Dr. 23 Ferris' view the incidents of hilt or handle marks is 24 probably less than 5 percent. 25 DR. CHRISTOPHER MILROY: I agree with

1 that and so does the literature. 2 MR. MARK SANDLER: 3 "Dr. Smith concluded that the injuries 4 to the scalp were as a result of 5 stabbing or cutting with scissors 6 although almost none of the features of 7 scissors injuries could be seen in the 8 injuries to Sharon." 9 DR. CHRISTOPHER MILROY: I agree. 10 MR. MARK SANDLER: 11 "Dr. Smith concluded that the injuries 12 to Sharon were as a result of tissues 13 being cut away from scissors. Dr. 14 Smith described the cleanly cut margins 15 of the scalp." 16 Although in Dr. Ferris' opinion the post- 17 mortem photographs showed extensive irregularity, 18 laceration and tearing around two-thirds (2/3) of the 19 portion of the scalp. 20 DR. CHRISTOPHER MILROY: I agree with Dr. 21 Ferris. 22 MR. MARK SANDLER: 23 "Dr. Smith concluded that a cleanly cut 24 margin, if present, excluded a 25 potential dog injury."

1 In the Dingo Baby case, Dr. Ferris noted 2 extensive experimental studies carried out by a number of 3 independent experts for the Royal Commission showed that 4 a wild dog could produce linear and planar cuts in fabric 5 with the carnassial teeth and also with their incisor 6 teeth, and the dingo teeth produced cuts in the fabric in 7 the same manner. 8 Can -- can you provide to us very, very 9 briefly an explanation of what Dr. Ferris is talking 10 about by -- 11 DR. CHRISTOPHER MILROY: Yes. 12 MR. MARK SANDLER: -- reference to the 13 Dingo case? 14 DR. CHRISTOPHER MILROY: Well, it was -- 15 it's the infamous case from Australia, the Lindy 16 Chamberlain case. I think it's very well known. It was 17 made into a film, I think, starring Meryl Streep, if my 18 memory serves me right. 19 It was from the Northern Territory where a 20 -- a child disappeared and the defence -- the prosecution 21 was that the parents had killed it; the defence was it 22 had been carried away by a dingo which is, of course, an 23 Australian wild dog. 24 And they did experiments with, I think -- 25 where they -- dead lambs, I think it was, were placed

1 into baby clothes and then they observed what the dingos 2 did, and they produced cuts in clothing because I think 3 clothing had been recovered. 4 And it was actually being said by the 5 pathologist called in by the Crown, who was a British 6 pathologist, that they were scissor marks, and, in fact, 7 they showed that the dingos produced identical damage to 8 the clothing, as was found in the -- the clothing of the 9 -- of the child. 10 MR. MARK SANDLER: All right. So, do -- 11 do you agree with what he's had to say -- 12 DR. CHRISTOPHER MILROY: Yes. 13 MR. MARK SANDLER: -- as to the relevance 14 of that here? 15 DR. CHRISTOPHER MILROY: Well, yes, it -- 16 it's clearly relevant. I haven't formally studied the 17 case, but I have discussed it with some of the de -- 18 people who were involved in the case. 19 MR. MARK SANDLER: All right. 20 DR. CHRISTOPHER MILROY: And I was aware 21 of the evidence that the damaging clothing could look 22 very much like scissor damage. 23 COMMISSIONER STEPHEN GOUDGE: What's a 24 planar cut? 25 DR. CHRISTOPHER MILROY: Planar --

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1 COMMISSIONER STEPHEN GOUDGE: Planar. 2 DR. CHRISTOPHER MILROY: -- I -- I think 3 it's just the -- it's just the shape, linear and planar, 4 well it's just the shape of the cut. 5 6 CONTINUED BY MR. MARK SANDLER: 7 MR. MARK SANDLER: All right, Dr. Smith 8 concluded that the apparent lack of incision marking or 9 scoring of the tissues beneath the scalp indicated the 10 scalp was removed by scissors and not a knife; in Dr. 11 Ferris' view it was virtually impossible to remove a 12 portion of scalp tissue by either a knife or scissors 13 without leaving markings under the scalp in the deep 14 layers of tissue over the outer surface of the skull. 15 DR. CHRISTOPHER MILROY: Well, I would 16 agree with that. 17 MR. MARK SANDLER: All right. Dr. Smith 18 offered no reasonable explanation for the multiple 19 irregular broad linear abrasions on Sharon. In Dr. 20 Ferris' view these injuries were characteristic of dog 21 claw marks or dog teeth scraping the skin's surface, and 22 you've spoken to that issue already. 23 DR. CHRISTOPHER MILROY: I agree with 24 that. 25 MR. MARK SANDLER: There was evidence

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1 that the penetrating injuries were irregular in size and 2 shape and associated with the crushing and bruising of 3 the underlying tissues and laceration and tearing of the 4 sternal mastoid muscle in the neck and the biceps and 5 tricep muscles in the right arm. 6 In his opinion, such crushing and bruising 7 was inconsistent with stabbing by either a knife or 8 scissors. 9 DR. CHRISTOPHER MILROY: I agree with 10 that. 11 MR. MARK SANDLER: There was evidence of 12 multiple penetrations on both sides of the neck at the 13 back, with tearing and laceration across the back of the 14 neck, and similar front and back penetrations of the 15 tissues of the upper arm without evidence of through and 16 through penetration of either the neck or the arm. 17 In Dr. Ferris' opinion, these injuries 18 were consistent with dog bark markings -- dog bite 19 markings? 20 DR. CHRISTOPHER MILROY: I -- I agree 21 with that one (1) and when, like one -- instead of 22 consistent, I would be stronger than just consistent 23 with; I would say characteristic of dog bites. 24 MR. MARK SANDLER: All right. Dr. Wood 25 stated in his report that dog bites generally occurred in

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1 the limbs and not the head, neck, and should -- shoulder 2 girdle, as in this case, and Dr. Ferris noted that Dr. 3 Wood presented a case of a domestic dog attack with 4 injuries in the neck and arm region at the Conference of 5 the American Academy of Forensic Sciences. 6 DR. CHRISTOPHER MILROY: Well, I'm not -- 7 I -- I don't know whether Dr. Wood did or did not present 8 such a case, but I -- I would agree with Dr. -- the sort 9 of underlying tenor of that comment that dogs actually 10 attack the head and -- the head and neck, and indeed 11 there is a -- there was a -- there was a recent paper 12 talking about the way such thing including scalping 13 that's appeared in the literature in the last few months. 14 MR. MARK SANDLER: All right. Dr. Wood 15 stated that the markings on Sharon lacked any similar 16 markings from the incisor teeth; although in Dr. Ferris' 17 opinion such markings were clearly illustrated in the 18 post-mortem photographs? 19 DR. CHRISTOPHER MILROY: Yes, I -- I 20 agree. 21 MR. MARK SANDLER: Dr. Smith concluded 22 that the three (3) penetrating marks to the skull were 23 inconsistent with dog teeth marks. In Dr. Ferris' 24 opinion, the post-mortem photographs showed almost 25 circular areas of indented penetrating fractures

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1 characteristic of animal tooth bite marks. 2 DR. CHRISTOPHER MILROY: I agree with 3 that and so did subsequent experts. 4 MR. MARK SANDLER: And you showed us 5 examples of that in the photograph. 6 DR. CHRISTOPHER MILROY: Not of the 7 skull. 8 MR. MARK SANDLER: Not of the skull. Dr. 9 Smith concluded that the depth of the penetration of one 10 (1) of the neck injuries could not have been made by a K- 11 9 tooth which measures up to 2 centimetres. 12 In Dr. Ferris' opinion the skin of the 13 neck and tissues of the neck were capable of distortion 14 and stretching and it's possible that the true depth of 15 the penetration of this injury might have been as little 16 as 1.5 centimetres. 17 DR. CHRISTOPHER MILROY: That's correct, 18 and when -- both in terms of animals, and for that 19 matter, in terms of stabbings; you quite often are 20 presented with a knife where the stab wound depth seems 21 longer than the blade, but with compression, you can 22 easily account for the difference. Obviously, there are 23 some tissues that can be easily compressed and the neck 24 could be compressed sufficient to produce the injuries 25 from a dog.

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1 MR. MARK SANDLER: In Dr. Ferris' view, 2 Dr. Smith may have been correct in his conclusion that 3 the cause of death was exsanguination. Dr. Ferris 4 concluded that the deep injuries in the back of the neck 5 and the presence of a one (1) chip of bone in the 6 cervical vertebrae indicated that there may have been a 7 fatal biting injury to the cervical spine. 8 Dr. Ferris was surprised that Dr. Smith 9 had not performed a dissection of the spinal canal and 10 spinal cord, what do you say about that? 11 DR. CHRISTOPHER MILROY: Well, I think 12 you -- if you -- if you've got injuries down to the 13 spine, then you open up the spinal cord. Exsanguination 14 is one (1) of the patterns causing death, but there are 15 others; in fact, there may have been air embolism, where 16 air enters the veins and goes to the heart and stops the 17 circulation and that also is a feature and that could 18 have -- so that's another one (1) -- mechanism, and also 19 clamping across the -- the neck can obstruct the 20 vasculature and the breathing of -- a bit like a 21 strangulation case, so there are a number of possible 22 mechanisms of death. 23 But the -- the actual, if you like, mode 24 of death is not so important in this case, as determining 25 that it's caused by a dog.

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1 MR. MARK SANDLER: Now he also made some 2 comments on the procedures that actually took place 3 during the autopsy themselves. And I want to briefly ask 4 you about those, at paragraph 295. He said that: 5 "The pathologist should have documented 6 what examinations were performed on 7 each occasion where the autopsies 8 spanned the course of two (2) separate 9 days." 10 DR. CHRISTOPHER MILROY: I agree with 11 that. 12 MR. MARK SANDLER: Should have documented 13 who was present? 14 DR. CHRISTOPHER MILROY: To a certain 15 extent. I mean I -- the practice there is that normally 16 I put down who the senior investigating office is who's 17 present, who the identifying officer is who's present. 18 I also document who the exhibits officer 19 is, because I -- we haven't dealt with when exhibits are 20 taken at a post-mortem examination. It's important that 21 they're not only documented, but you record them in your 22 report, what you have taken. 23 MR. MARK SANDLER: All right. Noted the 24 -- documented the clothing related to a body? 25 DR. CHRISTOPHER MILROY: Well that's --

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1 that's often in the exhibit list, that you actually -- 2 what -- what you have taken off. 3 MR. MARK SANDLER: Noted the date and 4 time of the taking of any swabs? 5 DR. CHRISTOPHER MILROY: Well that's 6 again back to the exhibit list that you -- you rec -- I - 7 - when I take my exhibits, which would include swabs, 8 clothing, I hand them to an exhibits officer, he makes a 9 list. I take that list, and I incorporate it into my 10 autopsy report. 11 And I also sign exhibit labels for each 12 exhibit I have produced. And that then allows the chain 13 of custody to be maintained. 14 MR. MARK SANDLER: All right. I won't 15 take you through the -- the balance, which really are of 16 similar nature in -- in terms of the documentation that - 17 - that you'd expect. 18 296, Dr. Ferris noted is -- it was his 19 procedure to shave the hair from the head and the scalp 20 to conduct a detailed review of the wound margins while 21 the tissues were fresh. What do you say about that? 22 DR. CHRISTOPHER MILROY: That's correct. 23 That's a very standard procedure when you have scalp 24 injuries because hair hides. 25 MR. MARK SANDLER: All right. Now, I'm

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1 just going to ask you sev -- several more questions about 2 this particular case. It appears that Dr. Smith retained 3 a forensic odontologist before he produced his final 4 report of post-mortem examination? 5 DR. CHRISTOPHER MILROY: Yes. 6 MR. MARK SANDLER: And do you agree that 7 that was a appropriate process on his part? 8 DR. CHRISTOPHER MILROY: Yes, I do. 9 MR. MARK SANDLER: All right. And it 10 could be said that -- that he detrimentally relied upon 11 the forensic odontologist who we know originally 12 expressed the opinion that these were definitely not dog 13 bites. 14 So I'm interested in your -- your comments 15 on how you would deal with that? 16 DR. CHRISTOPHER MILROY: Well whenever 17 you're getting another expert involved in the case, one 18 (1) must pay -- one (1) must pay attention to what 19 they're saying. But if you -- if you disagree with them 20 then you -- you have to say so. 21 I mean, because in this case, if I -- if I 22 had got my odontologist and the doc says, I don't think 23 this -- these are -- these are dog bites. I would say, 24 well, I just have to disagree with you for the following 25 reasons. Because I'm used to -- I'm the person who --

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1 who interprets the injuries. Really the odontologist is 2 to try and work out -- I mean, most characteristically, 3 whether it's a human bite mark. And then whether he can 4 compare the features of that bite mark to a specific 5 individual. 6 It's just a case where, you know, you have 7 two (2) experts getting it wrong instead of one (1). 8 MR. MARK SANDLER: All right. Leaving 9 aside the issue of dog bites, do -- would you rely upon a 10 forensic odontologist as to whether these are stab 11 wounds? 12 DR. CHRISTOPHER MILROY: No. 13 MR. MARK SANDLER: And I'm going to ask 14 Dr. Butt a question, just arising out of something you 15 said earlier. All of you have remarked upon the fact 16 that the reports of post-mortem examination that were 17 prepared by Dr. Smith lacked a -- a history contained in 18 them. 19 And all of your reports also reflect a 20 somewhat minimalist approach in -- in the way exhibits 21 are listed, and tests were performed at times during the 22 autopsy process. 23 Dr. Butt, could you speak to the -- the 24 form and what, if any, limitations the -- the existing 25 form at the time posed in that regard?

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1 DR. JOHN BUTT: Well I think the form, 2 which I believe is form 12, provided a pro forma, as I 3 would call it, by the coroner's office. And it's a 4 mandatory requirement for the pathologist to complete 5 this form, recording the findings of a coroner's autopsy. 6 The point that I would like to make is 7 that there is no room on the form for historical 8 information. 9 The second issue is that the form itself 10 may provide less space for subjective comments in 11 general; impressions of the pathologist and remarks of 12 the pathologist regarding his opinions, only because it 13 has this style to it. 14 And the style appears to be, for lack of a 15 -- another expression, fairly strict. In other words, 16 the spaces are limited, and the information that is 17 required is, basically, indicated on the form. 18 The third point is that it doesn't include 19 an area, as Professor Milroy just mentioned, as a list of 20 persons present at the autopsy which I think is important 21 where there is a suspicion about the death. 22 There are other forms available that 23 provide a general direction. And I can think of one (1), 24 in fact, and based upon my own experience which is the 25 form that is used in the Province of Alberta, and

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1 latterly, in the Province of Nova Scotia, in which the 2 covering page is a summary documented in a box on that 3 page that occupies a very significant part of that page. 4 There is an indication that -- of the information that's 5 required in summary form, including -- including 6 historical information. 7 So I think that's important. And in terms 8 of procedure and some of the issues that were covered, 9 for example, at the end of the autopsy, I don't disagree 10 with what was said by the other two (2) people. But, in 11 terms of the autopsy, that form is available to the 12 pathologist to write his findings in -- in his own hand 13 and to provide a copy of it to the police so that there 14 is no misunderstanding. 15 And I don't think that that's an 16 unreasonable thing to do, and it provides a real record 17 for the pathologist of just exactly what information he 18 exchanged with the police. 19 MR. MARK SANDLER: Okay, thank you. 20 We're now going to turn, Commissioner, if we may, to the 21 Jenna case and Professor Milroy will be asked the 22 questions concerning this case. And, again, I do wish to 23 indicate at the outset that I'll be asking Professor 24 Milroy about some graphic photographs in the course of -- 25 of my questioning.

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1 Professor Milroy, if you would -- 2 COMMISSIONER STEPHEN GOUDGE: And just to 3 deal with the media, I take it the same request applies 4 and, perhaps, I should make clear that -- is that right? 5 MR. MARK SANDLER: It does. 6 COMMISSIONER STEPHEN GOUDGE: Why don't I 7 simply make a general order that when photographs from 8 individual cases are shown, they can't be reproduced by 9 the media, in the media. This is not about individual 10 cases to that level of detail except within the context 11 of the hearing room. 12 MR. MARK SANDLER: Thank you, 13 Commissioner. 14 15 CONTINUED BY MR. MARK SANDLER: 16 MR. MARK SANDLER: Professor Milroy, if 17 you would look with me at Tab 20 of Volume 1 of your 18 binder, which is PFP144684. And this is the overview 19 report concerning the Jenna case. 20 And if you'd look at page 3 of the 21 overview report with me. It reflects, commencing at 22 paragraph 1, that Jenna was born in Peterborough, Ontario 23 in April of 1995. She died on January the 22nd, 1997 at 24 the age of twenty-one (21) months, also in Peterborough. 25 Her mother was charged with second degree

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1 murder on September the 18th of 1997. The criminal 2 proceeding concluded on June the 15th of 1999 when the 3 charge was withdrawn. 4 As reflected in the overview report, the 5 Children's Aid Society apprehended Jenna's mother's older 6 child on the day that Jenna died and placed her in 7 temporary foster care. And the -- the history of -- of 8 the Child Protection Proceedings that followed is set out 9 in paragraph 3 in more detail. 10 That child was ordered returned to Ms. 11 Waudby's care on May the 2nd, 1997, and remained in her 12 care until the day of Jenna's mother's arrest at -- 13 arrest. She was later reapprehended as reflected 14 therein. Children's Aid also apprehended a second child 15 born after Jenna's death and placed him with his father. 16 After the charge was withdrawn against Jenna's mother, 17 the child was ordered returned to her mother's care. 18 On December the 28th of 2005, J.D., the 19 youth who was babysitting Jenna the night she died was 20 charged with second degree murder, and in December of the 21 following year pleaded guilty to manslaughter and was 22 sentenced as a youth to twenty-two (22) months 23 incarceration followed by eleven (11) months of community 24 supervision. 25 Dr. Milroy, as I understand it, as part of

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1 the chief coroner's review you were assigned to be with 2 primary reviewer for this case? 3 DR. CHRISTOPHER MILROY: That's correct. 4 MR. MARK SANDLER: If I can take you to 5 Tab 18 of your binder, which is 135465. And this is the 6 medical legal report that you prepared for the Commission 7 arising out of this case? 8 DR. CHRISTOPHER MILROY: That's correct. 9 MR. MARK SANDLER: And if you'd look with 10 me at page 4 of your medical legal report, and provide 11 the Commissioner with some of the background history and 12 circumstances to this case, some of which will have 13 already been reflected in the overview report, which I 14 read. 15 DR. CHRISTOPHER MILROY: Yes. Well, I 16 ascertained that Jenna was certified as being dead on 17 arrival at the Civic Hospital in Peterborough. And that 18 she had been born in April 1995. A babysitter had 19 reported that Jenna had been unwell then vomited and 20 become unwell. 21 It was recorded that the family was 22 dysfunctional with CS involvement. Jenna was with -- 23 stayed with the mother and there was access with company 24 to the father, who was separated. It -- the warrant also 25 states there was a history of brain cysts with admission

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1 for several days for investigation in 1995. 2 There was evidence of injuries with no 3 clear details of the cause of the injuries, and the 4 suggested diagnosis before the autopsy was stated to be 5 shaken baby syndrome. And that was not -- it was not the 6 cause of death. 7 The coroner's investigation also stated 8 that both parents have a history of drug abuse and 9 personality disorders. It was said that the mother had 10 gone out at 1700 hours on the 21st of January leaving 11 Jenna in the care of the babysitter. 12 I should say that the child was brought to 13 the hospital at 0150 hours, so that's some eight (8) 14 hours or so later. The -- Jenna was said not to have 15 eaten her supper and subsequently vomited black material, 16 becoming lifeless. Then after prolonged investigation, 17 the police charged the baby's mother. 18 The homicide review stated that following 19 preliminary hearing the mother was committed for trial; 20 however, following a challenge to the medical evidence, 21 the homicide charge was withdrawn against the mother, as 22 it could not be established that the mother had care of 23 Jenna when the fatal blow was delivered. 24 MR. MARK SANDLER: And, as I understand 25 it, when you did your original work for the chief

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1 coroner's review, JD had not yet entered a plea of guilty 2 to this charge? 3 DR. CHRISTOPHER MILROY: He actually 4 entered a plea the day after I completed my report, as I 5 recall. 6 MR. MARK SANDLER: All right. Now, 7 before we go to the particulars concerning this death, 8 could you advise the Commissioner what at its heart was 9 the real issue in this case, as far as you're concerned? 10 DR. CHRISTOPHER MILROY: The real issue 11 in this case was a question of timing, timing of the 12 injuries. And because if the -- a survival period after 13 the infliction of the injuries was short, it would point 14 to someone who had sole care of the child. If it was 15 longer then it could implicate others. 16 MR. MARK SANDLER: All right. Now, if 17 you'd go with me back to the overview report, which is at 18 Tab 20 of your binder and is PFP-144684. And I'm going 19 to take you to page 10 of that document, if I may. And I 20 want to start by outlining for you what it was that J.D. 21 originally had to say about that period of time that he 22 was the caregiver of -- of Jenna. 23 You'll see at paragraph 23 that according 24 to his original account, there was an event that occurred 25 that Jenna accidentally hit her head while playing on a

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1 slide, producing a bump. 2 Then at paragraph 24: 3 "That Jenna accidentally came into 4 contact with the hair dryer the [he] 5 was using, leaving some red lines." 6 Then at paragraph 27: 7 "That Jenna accidentally rolled off the 8 couch and hit her side on a plastic 9 picnic table in front of the couch 10 ending up on her back on the floor and 11 appeared to stop breathing momentarily 12 and later spitting up and vomiting." 13 And then skipping down to paragraph 29, 14 that -- at page 11: 15 "That at some point while in the 16 bathroom with Jenna, JD was holding her 17 and accidentally let go of her, and she 18 fell backwards banging the back or side 19 of her head against the wall heater. 20 When he picked her up, she was 21 wheezing; took her back into the 22 bedroom and lay her on the floor at 23 which time her eyes rolled back into 24 her head and appeared that she stopped 25 breathing."

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1 What I want to ask you at once, as part of 2 the explanation that JD provided for that time that he 3 was with Jenna. He described four accidental events that 4 had occurred in the manner that I've just read out to 5 you. If you, as a forensic pathologist, was given that 6 history, was it compatible with the injuries as you 7 observed in this case? 8 DR. CHRISTOPHER MILROY: No. The -- the 9 history is a very characteristic one of child abuse where 10 there is an -- there is an attempt to give innocent 11 explanations to injuries that cannot have an innocent 12 explanation. 13 MR. MARK SANDLER: All right. And can we 14 focus -- so leaving aside the fact that -- that as a 15 common sense proposition one looks at the likelihood of 16 four (4) accidental events occurring in the way described 17 by the caregiver, would you point to one (1) injury in 18 particular here that was incompatible with accident? 19 DR. CHRISTOPHER MILROY: Well, when you 20 just look at Jenna, the hair dryer injury is incompatible 21 with it being an accident and right next to the -- that 22 is an enormous bruise, which again is not what you see in 23 an accident. So just one (1) look at Jenna and that 24 history, as provided, would have immediately sounded 25 alarm bells to me and I would be saying to the police I

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1 do not accept the explanations given. You know, that 2 person clearly has some questions to answer. 3 MR. MARK SANDLER: All right. Now was 4 there any doubt in your mind, based upon the pathology 5 that existed, that this was an overtly abused child? 6 DR. CHRISTOPHER MILROY: This is a -- 7 this is patently an overtly abused child. 8 MR. MARK SANDLER: All right. So if we 9 can then turn to some of the observations that had been 10 made at the hospital. And in that regard, I'll take you 11 to page 13 of the overview report; paragraphs 34 and 35. 12 And we see here that one (1) of the 13 doctors at the Peterborough Civic Hospital observed at 14 paragraph 34: 15 "Numerous areas of bruising." 16 He also observed: 17 "Possible rectal stretching and tears 18 in the vulva and a curly hair in the 19 vulva." 20 His emergency record noted: 21 "Curly hair found in the vulva area; 22 question source." 23 Another doctor who also treated Jenna 24 noted: 25 "A rectal tear, genitalia bruising to

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1 the anus and a swollen labia." 2 He suspected both child and sexual abuse. 3 And then it's noted at paragraph 35 that 4 one (1) of the officers who took possession of Jenna's 5 body made notes of his observations, and a nurse pointed 6 out a thread in the vaginal area, partly imbedded between 7 the labia. And three nurses also noticed the hair in 8 this vaginal area. 9 Several questions arising out of that: 10 First, would that be the kind of information that in your 11 view should be communicated to the pathologist? 12 DR. CHRISTOPHER MILROY: Absolutely. 13 MR. MARK SANDLER: And if communicated to 14 the pathologist, what if any response would be had? 15 DR. CHRISTOPHER MILROY: Well, the first 16 thing I would do is obviously I'd make a written note of 17 that information, and that would be placed within the 18 report. 19 Secondly, that would immediately direct me 20 to do a sexual abuse investigation, which would be 21 seizing the hair, giving that to the police as an 22 exhibit, but first having photographed it in situ to 23 demonstrate its presence; where it was. 24 Obviously rec -- make a note of -- rec -- 25 to record that myself, and then hand the hair over to the

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1 police as an exhibit, and to take swabs. With the 2 presence of injuries, I would then have to do histology 3 of those areas. 4 MR. MARK SANDLER: All right. Now does 5 that necessarily presume that the nurses and doctors have 6 correctly interpreted what they've seen? 7 DR. CHRISTOPHER MILROY: No, it's not 8 uncommon to be told there is an injury when there isn't, 9 so you've got to carefully examine. But it does -- the 10 taking of swabs, for example, is such an easy thing to do 11 that one would do it almost without thought in this sort 12 of case. 13 And also the -- the mere fact that you 14 have a child who's died with injuries in the presence of 15 a -- of a male babysitter would, actually, prompt you to 16 do the swabs, regardless of whether there was injury or 17 not. 18 MR. MARK SANDLER: All right. And 19 regardless of whether you had the history as -- as I've 20 outlined it to you? 21 DR. CHRISTOPHER MILROY: Yes. If you -- 22 if I just have this child as an injured child found dead 23 with a male -- with a babysitter, I would -- I would do - 24 - I'd do the swabs. And, in fact, I would do -- I would 25 do the swabs, automatically, in a case like this.

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1 MR. MARK SANDLER: All right. Generally 2 speaking, how is it that these kinds of records; in other 3 words, the hospital records that would record these -- 4 these kinds of facts be made available to the forensic 5 pathologist, or would they? 6 DR. CHRISTOPHER MILROY: Normally the 7 police go and try and seize them. Sometimes that causes 8 problems because the hospital can be reluctant to allow 9 the police to have them. 10 Usually the coroner gets around that by 11 saying he requires them as part of the investigation. So 12 we usually get copies; sometimes the originals. Actually 13 at -- I ask, you know, can I have the emergency room 14 records, please, presented to me, and if -- and they will 15 often go and get the general practitioner/family doctor 16 records as well, and they will have other hospital 17 records. 18 It they're not immediately available, they 19 will be made available, subsequently. 20 MR. MARK SANDLER: And is that something 21 that you ask for as a matter of routine, if not provided? 22 DR. CHRISTOPHER MILROY: If not provided 23 then, where it's clearly relevant in child abuse cases it 24 is; then we will ask for them to produce the records. 25 MR. MARK SANDLER: All right. Dr. Crane,

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1 do you have the same or different practice in Northern 2 Ireland? 3 DR. JACK CRANE: We would have the same 4 practice, but in addition, all the hospitals are required 5 to produce for us, a clinical summary. And so we would 6 have a record. And they must produce that -- and they're 7 told that they must produce that for us. 8 So we will have a brief, maybe one (1) 9 page, two (2) page document outlining the course of 10 events whenever the person came into hospital, and what 11 happened when they were in hospital. 12 MR. MARK SANDLER: Is that a statutory, 13 or regulatory rule? 14 DR. JACK CRANE: Well, the coroner's have 15 directed that they do it, and they're told to do it, and 16 they do it in every case. 17 COMMISSIONER STEPHEN GOUDGE: In every 18 medicolegal autopsy? 19 DR. JACK CRANE: They do it in every 20 medicolegal autopsy where a person has died in hospital. 21 22 CONTINUED BY MR. MARK SANDLER: 23 MR. MARK SANDLER: All right. And Dr. 24 Butt, in the medical examiner systems in which you've 25 been involved, would -- would you expect this kind of

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1 material to be provided, and how does it make its way 2 into the hands of the forensic pathologist? 3 DR. JOHN BUTT: Generally, and I think in 4 the Canadian experience, if I may, and I hope I'm not 5 generalizing too much, but there's reference in the 6 Hospital Act to the provision of documents to the coroner 7 or the medical examiner, and that's how it happens. 8 MR. MARK SANDLER: All right, thank you. 9 COMMISSIONER STEPHEN GOUDGE: And would 10 that be standard practice, Dr. Butt, in medical 11 forensic -- 12 DR. JOHN BUTT: Yes, sir. It would be 13 standard practice for somebody to go to the hospital from 14 the coroner's office or an agent of the coroner's or 15 medical examiner's office to pick up the documents; or 16 optionally, the documents faxed to the office. 17 DR. CHRISTOPHER MILROY: Perhaps I should 18 just add one (1) thing, and that's -- 19 20 CONTINUED BY MR. MARK SANDLER: 21 MR. MARK SANDLER: Yes, of course. 22 DR. CHRISTOPHER MILROY: -- that our 23 coronial legislation is due to change. Although, in 24 fact, there wasn't a bill included in the Queen's speech 25 recently although it was thought that there was going to

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1 be. But they still proposed to change it. 2 And one (1) of the things that I 3 understand that will -- that is proposed to be changed is 4 to give the coroner more formal seizure powers so that -- 5 that will be written into the coro -- Coroner's Act; that 6 he will have the right to seize evidence. 7 So I think it will become a more 8 formalized thing rather then having to, if necessary, go 9 through the -- the court to order seizure. 10 MR. MARK SANDLER: All right. 11 DR. CHRISTOPHER MILROY: And perhaps I 12 should just finally add, we also -- we can get written 13 statements off the clinicians, and the coroner can 14 require that, but it's not usually provided to us until 15 after the post-mortem examination report. 16 MR. MARK SANDLER: Thank you. Dr. 17 Milroy, if could take you to page 15 of the overview 18 report, at paragraph 39, we see that Dr. Smith performed 19 the autopsy on Jenna on January the 22nd of 1997, and if 20 I can take you to the last line on that page, it reflects 21 that Constable Kirkland's notes of his attendance at the 22 autopsy state, and then going over to the next page: 23 "Dr. Smith concludes that the victim 24 suffered a blow with a blunt object. 25 It could be a fist or foot, causing a

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1 rupture in the duodenal, pancreas, and 2 liver. There was no evidence that this 3 injury had begun to heal. It occurred 4 within a few hours prior to death; 5 obvious evidence, as well, of 6 continuous abuse." 7 Dr. Smith appeared, on your medicolegal 8 report, to have gotten this exactly right at that point 9 in time. 10 DR. CHRISTOPHER MILROY: That's correct, 11 if that opinion was expressed to the police, I would 12 agree with that that was a -- that was a perfectly 13 reasonable opinion to give at that time. 14 MR. MARK SANDLER: And -- and we'll come 15 to it, but was that the opinion that Dr. Smith, 16 ultimately, communicated during his testimony in this 17 matter? 18 DR. CHRISTOPHER MILROY: No, the length 19 of time was extended and that obviously became critical 20 because it was the length of time -- and -- and I should 21 say that this is not an uncommon problem faced by 22 pathologists to determine when an injury occurred; the 23 length of time had -- had expanded considerably, and 24 therefore, brought in the mother when the mother should 25 have been excluded.

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1 MR. MARK SANDLER: All right, and we'll 2 come to your opinion in that regard shortly, but just -- 3 just going through some of the preliminary matters, if -- 4 if I can take you then to page 18 of the overview report 5 at paragraph 46. 6 This reflects that on January the 23rd of 7 1997, and I get that date from a previous page -- I won't 8 take you to it -- that one (1) of the officers said that 9 Dr. Smith reviewed the autopsy findings with him and 10 advised that it would be important to obtain a history of 11 Jenna's habits and behaviours and any changes just prior 12 to her death. 13 According to Detective Constable Lemay: 14 "Dr. Smith wished our investigation to 15 focus on determining as best as 16 possible the child's behaviours and 17 habits, the child's natural 18 developments and so on, when signs of 19 injuries were manifested, in addition, 20 attempt to determine what had caused 21 the distinctive mark on the deceased's 22 forehead." 23 And it's reflected at paragraph 47 that 24 the officer decided to concentrate on identifying all of 25 Jenna's activities during the 24 hours prior to her

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1 death, and that he understood that the police were 2 dealing with a pediatric homicide. 3 And again, would the advice that Dr. Smith 4 was giving to the police, if that's accurate at that 5 point in time, been -- been sound advice? 6 DR. CHRISTOPHER MILROY: Yes. 7 MR. MARK SANDLER: All right, and would 8 the history that appears that Dr. Smith was requesting 9 the -- the police to collect or advising them that they 10 should collect include in your mind the kind of history 11 of the events as described by JD on his account? 12 DR. CHRISTOPHER MILROY: Yes. 13 MR. MARK SANDLER: All right. Now, if we 14 can move forward from there to take a look at Dr. Smith's 15 report of post-mortem examination, and it is summarized 16 at paragraph 62 of the overview report, page 23. 17 And I don't intend to go through, item by 18 item, the description of the abnormal findings that are 19 contained here. 20 Do you have any comment on the abnormal 21 findings generally, having had an opportunity to review 22 the post-mortem report? 23 DR. CHRISTOPHER MILROY: Well, I mean -- 24 I mean they clearly describe a catalogue of abusive 25 injuries. I -- I tend not to put child abuse per se in

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1 the abnormal findings, but that's -- but I would clearly 2 report in my conclusions that the injuries, in my 3 opinion, were intentionally inflicted. 4 COMMISSIONER STEPHEN GOUDGE: Because it 5 is not a finding, it is a conclusion? 6 DR. CHRISTOPHER MILROY: Because it's not 7 a finding, it's an opinion really, isn't it, or it's not 8 an anatomical finding. 9 10 CONTINUED BY MR. MARK SANDLER: 11 MR. MARK SANDLER: All right, you don't - 12 - you don't take a quarrel with its content, but -- 13 DR. CHRISTOPHER MILROY: No. 14 MR. MARK SANDLER: -- just it's misplaced 15 where it's -- 16 DR. CHRISTOPHER MILROY: It's -- it's 17 just in -- it's just in the -- I mean I -- I don't 18 structure my reports in this way, so that's one (1) 19 reason why it may not be, but at the end of the day the 20 cause of death would -- is --is correct and the -- the 21 description of the findings clearly indicates that this 22 was a very abused child. 23 MR. MARK SANDLER: All right. Now, at 24 paragraph 62 it does say that he confirmed the cause of 25 death as blunt abdominal trauma, and that's a cause of

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1 death with which you agree? 2 DR. CHRISTOPHER MILROY: Yes. 3 MR. MARK SANDLER: Now, the report of 4 post-mortem examination says nothing about timing of 5 injuries or circumstances surrounding injuries or it 6 doesn't speak to the issues that we've -- we've talked 7 about earlier, namely, the account that was provided as 8 to the day in question. 9 Are those the kinds of things that you'd 10 expect to be contained in a report of post-mortem 11 examination? 12 DR. CHRISTOPHER MILROY: Yes. In this 13 case, what I would have expected the police to have done 14 is get an account of the mother, get an account of the 15 babysitter, whether that's under caution or not, they may 16 -- they may actually summarize the interviews with the 17 suspects and then provide them to me. 18 And then in my conclusions, I would -- say 19 I have read the explanation given by one (1) or the other 20 and then made comments and basically placed the timing of 21 the injuries into the explanations given would say that 22 you -- you know, the explanation does not account for the 23 injuries present. 24 The -- the -- but-- and I would also be -- 25 I think the most fundamental thing in this case would be

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1 to say how -- how long this child survived after the 2 infliction of the fatal injury. 3 MR. MARK SANDLER: All right. Now, just 4 stopping there for a moment, viewing this systemically, 5 you've said that the issue in this case was really the 6 timing of injuries, and -- 7 DR. CHRISTOPHER MILROY: Yes. 8 MR. MARK SANDLER: -- and I take from 9 what you've just said to the Commissioner that -- that 10 they report of post-mortem examination should be user 11 friendly in the sense that it should address the issue 12 that is the live one for the people who are involved in 13 the investigation. 14 DR. CHRISTOPHER MILROY: Yes, a post- 15 mortem examination report must be set in language that's 16 going to be understood by people who are not only not 17 pathologists but not doctors. They're going to be used 18 by lawyers, and you -- you know, you are perfectly aware 19 that when you are producing these reports they are going 20 to be used in a different tribunal. 21 And in this sort of case, you know that 22 the likelihood is there will be a homicide trial that's 23 going to follow, so your language must be able to be 24 understood by people who are not pathologists. 25 MR. MARK SANDLER: Dr. Crane, apart from

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1 the issue of understanding the language that's contained 2 in the report, would it be satisfactory practice to 3 articulate simply the cause of death as being that 4 described in this post-mortem report and then verbally 5 address the issue of timing of injuries, likelihood, or 6 plausibility of the explanations given by the various 7 parties? 8 DR. JACK CRANE: No. What's important is 9 that, included in the report, is information relating to 10 how the injuries might have been sustained, when they 11 might have been sustained. That's the sort of 12 information that those who are going to use the report 13 need to have. It's not good enough simply to give it 14 verbally. 15 It had to be included in your report. And 16 not only may be it important for the police or the 17 prosecutor, but if a person is charged then their defence 18 have an entitlement to see what the pathologist is 19 thinking, what his views are. Because obviously that may 20 affect how they are going to conduct their defence. 21 So all this must be recorded in the 22 report. 23 MR. MARK SANDLER: All right. Well, now, 24 in theory, the defence could be provided disclosure of 25 that kind of information verbally as opposed to in

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1 writing, what dangers, if any, do you see in -- in a 2 regime that would permit that kind of -- those kinds of 3 conclusions to simply remain verbal? 4 DR. JACK CRANE: Well, the -- the problem 5 with verbal communications is they can be distorted, 6 people's recollection's may change, and indeed even the 7 pathologist's views may change, so this is why it's 8 important that all this is recorded in written form in 9 the report. Not -- as I say, it may be that the 10 pathologist's view may change and that's perfectly 11 acceptable if new information is provided. 12 If that's the case then the pathologist 13 has an obligation then to produce a supplementary written 14 report, so that the reasons why he may have changed or 15 altered opinions are known. 16 MR. MARK SANDLER: Dr. Milroy, your 17 format for reports in England and Wales is very different 18 than -- than exists here in -- in Canada. Your reports 19 may be characterized more of a declaration as -- as 20 opposed to a report. 21 Could you explain to the Commissioner how 22 -- how that works? 23 DR. CHRISTOPHER MILROY: Well, when we 24 actually sub -- prepare reports in England, we actually - 25 - they are put on as a statement with a declaration at

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1 the top that says that the contents we know to be true, 2 and if we have willfully left something out that we know 3 or we have put something in that we know not to be true 4 or wilfully left something out then we can be subject to 5 prosecution. So they're known as "criminal justice 6 statements". So we make that declaration. 7 We also have additional comments now made 8 following a judgment of the Court of Appeal, which is 9 called "Bowman", where the Court of Appeal laid out what 10 they expect in an expert report, including declarations 11 of -- that we have read certain documents; that we have 12 complied with our duty to provide independent objective 13 evidence for the Court; that if our opinions alter we 14 will inform our senior investigating officer or 15 instructing solicitor in writing and give reasons. 16 So we have to lay -- and we are expected - 17 - in that Bowman (phonetic) calls upon us that if we have 18 an opinion we have to express the reasons behind the 19 opinion. So this is all now laid out in a mixture of 20 judgments and statutory obligations. 21 MR. MARK SANDLER: All right. And we'll 22 show the Commissioner those specific provisions on -- on 23 Wednesday of this week. 24 So if I can move on in the Jenna file, if 25 -- if I could. And in this case, could a forensic

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1 pathologist properly opine on the issue of timing? 2 DR. CHRISTOPHER MILROY: Yes. 3 MR. MARK SANDLER: And in your expert 4 opinion, what could be said about the issue of timing 5 here? 6 DR. CHRISTOPHER MILROY: This child died 7 within a few hours, under six (6), from the infliction of 8 the fatal injury. 9 MR. MARK SANDLER: All right. And could 10 you provide the Commissioner with a brief summary of the 11 basis for that conclusion? 12 DR. CHRISTOPHER MILROY: Yes. Well, the 13 -- just the -- the general nature of these injuries is 14 such that you wouldn't expect a -- a child to survive 15 longer than that. But then when one (1) looks at -- what 16 the pathologist has in -- in advance of a clinician is 17 that we can look at the tissues under the microscope. 18 And the moment an injury is inflicted on 19 somebody, the healing reaction will begin and cells, the 20 inflammatory cells, come into the tissue in an attempt to 21 repair the damage and that gives us the timing. And in 22 this case, there was no inflammation and that would, 23 therefore, time it under six (6) hours. 24 So the evidence was there from the start 25 to indicate that this child did not survive very long

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1 from the infliction of the injuries. 2 MR. MARK SANDLER: Now did that mean that 3 all of the injuries that were observed as part of the 4 pathology occurred within a few hours? 5 DR. CHRISTOPHER MILROY: No. There was 6 evidence of an older or -- the liver injury showed injury 7 in -- with healing, so that was an older injury. 8 Now it could have occurred at the start of 9 the process; it could be older than that. But the -- the 10 key in this case was the fatal injury was available. You 11 can look at the fatal injury, which was the rupture of 12 the pancreas and the duodenum, and that could not have 13 occurred longer than six (6) hours. 14 The other thing is that the clinical state 15 of a child who has had that injury inflicted will not be 16 normal. So if the child was described as being normal 17 when it was handed over to the babysitter, that was an 18 instant clue that the child had not been struck in the 19 abdomen at that stage. 20 MR. MARK SANDLER: Just from a lay 21 perspective, can you help us understand this: Was -- was 22 this a close call in -- in terms of the timing of 23 injuries? 24 By that I mean, was it is susceptible to 25 reasonable differences of opinion as to whether the fatal

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1 injuries were inflicted during the time period of the 2 caregiver as opposed to the time period that -- that the 3 mother had control of the child? 4 DR. CHRISTOPHER MILROY: This was a case 5 -- not always the cas -- it's not always so, but this was 6 a case where you could clearly de -- separate out whether 7 it was the babysitter or the mother, and in this case it 8 was clearly within the time of the babysitter. 9 MR. MARK SANDLER: Now you did make 10 reference -- 11 COMMISSIONER STEPHEN GOUDGE: That turns 12 very importantly on the lack of healing process? 13 DR. CHRISTOPHER MILROY: On the lack of 14 the healing process, because that's the most objective 15 evidence you have and it sort of trumps everything else, 16 really. But you could add in other evidence which is 17 more subjective about the state of the child. 18 The point is that people could lie about 19 the state of a child; I mean, they could say it was up 20 and running when it wasn't. And -- and, you know, 21 clearly I -- in my opinion, the explanations given by the 22 babysitter as to the -- the accidents that happened to 23 the child were just untruthful. 24 25 CONTINUED BY MR. MARK SANDLER:

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1 MR. MARK SANDLER: All right. So this 2 was -- 3 DR. CHRISTOPHER MILROY: So -- so you 4 clearly -- 5 COMMISSIONER STEPHEN GOUDGE: The 6 principle in that was the hair dryer? 7 DR. CHRISTOPHER MILROY: The hair dryer 8 and the size of the bruising you see. It's not -- it's 9 not that you would see in just a simple accidental fall. 10 But the hair dryer, I -- I just -- presented with that, I 11 would have just told the police, No, I do not accept that 12 as an accidental injury; especially in the context of all 13 the other injuries, it just doesn't make sense. 14 15 CONTINUED BY MR. MARK SANDLER: 16 MR. MARK SANDLER: All right. Now, it -- 17 it could be said on the other hand, that -- that because 18 there were older injuries that reflected some healing as 19 opposed to the more recent injuries that you described, 20 that that presented a difficult picture for the forensic 21 pathologist to analyse. 22 Is it unusual, in the context of the cases 23 that a forensic pathologist seize, to have child abuse 24 that -- or injuries that are apparently occurring at 25 different points in time?

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1 DR. CHRISTOPHER MILROY: No, it's -- it's 2 a -- context of child abuse. It is a common thing to see 3 injuries at multiple ages. And it's clearly one (1) of 4 the things that we regularly have to deal with. 5 You see older rib fractures. You may see 6 -- I have cases in my department, for example, where 7 there's been evidence of a blow in the past, 'cause you 8 can see quite an advanced healing stage that -- that, in 9 that case hasn't, for example, ruptured the bowel, but 10 has caused bleeding around it. 11 And then, clearly, the child than is 12 subjected to a second blow which is acute, and the child 13 then dies from that. So, time -- teasing out the 14 different stages of healing and injuries is a common 15 problem faced by forensic pathologists. 16 MR. MARK SANDLER: And if -- if I've got 17 your evidence correctly, and you correct me if I'm wrong, 18 that -- that in this case, one could clearly make the 19 determination that you've described, but it's not always 20 a clear cut case to differentiate for the purposes of 21 evaluating who the perpetrator is? 22 DR. CHRISTOPHER MILROY: That's correct. 23 MR. MARK SANDLER: Okay. 24 COMMISSIONER STEPHEN GOUDGE: How old 25 were the older injuries in this case, or could you tell?

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1 DR. CHRISTOPHER MILROY: Well it's -- I 2 mean, the liver injuries could -- could have been 3 anywhere from a few hours to a day or more. So you've 4 got -- certainly injuries could overlap. 5 COMMISSIONER STEPHEN GOUDGE: Okay. Once 6 the healing process starts, pathologically, it is hard to 7 identify how quickly it goes on -- 8 DR. CHRISTOPHER MILROY: They can, but -- 9 COMMISSIONER STEPHEN GOUDGE: -- and 10 therefore -- 11 DR. CHRISTOPHER MILROY: Yes. They can 12 vary in age, and -- and the process depending on, for 13 example, the state of health of the child. If the 14 child's very malnourished, it's healing reactions may not 15 be as good. 16 COMMISSIONER STEPHEN GOUDGE: Right. 17 DR. CHRISTOPHER MILROY: But there are -- 18 you can compartmentalize some things. So that for 19 example, if you see iron in the tissue from bleeding, 20 that will usually indicate there's at least two (2) days 21 -- two (2) to three (3) days old. 22 But the nature of biological variation is 23 that if -- if, for example, the mother had handed the 24 child over two (2) or three (3) hours before the child 25 died, then it would have been difficult to have placed

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1 the -- to say for certain it was within the care of the 2 babysitter -- with the time that we had here, it clearly 3 wasn't in the time that the mother had care of the child; 4 it was in the time when the babysitter had care of the 5 child. 6 And that was present in the pathology. 7 8 CONTINUED BY MR. MARK SANDLER: 9 MR. MARK SANDLER: If you look with me at 10 page 25 of the overview report, paragraph 66, it reflects 11 that: 12 "On September the 17th of 1997, the 13 police investigators met again with Mr. 14 Thompson, who was the Crown. The 15 investigators were satisfied they had 16 reasonable probable grounds to arrest 17 Jenna's mother. The grounds were 18 partially based upon information from 19 Dr. Smith in previous conversations, 20 that the injuries that caused Jenna's 21 death could have occurred some twenty- 22 four (24) hours prior to death. Plans 23 were made to arrest Jenna's mother the 24 following day." 25 Assuming for the purposes of my question,

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1 that that accurately represents advice received from Dr. 2 Smith, what do you say about that? 3 DR. CHRISTOPHER MILROY: Well, it was 4 unreasonable. 5 MR. MARK SANDLER: All right. 6 DR. CHRISTOPHER MILROY: It was incorrect 7 advice. 8 MR. MARK SANDLER: Now, if I can take you 9 to the testimony that Dr. Smith gave at the preliminary 10 inquiry, and that testimony wa -- commences at page 26 of 11 the overview report, paragraph 72. 12 And at paragraph 72, Dr. Smith is being 13 asked about the issue of sexual abuse: 14 "Q: Let's move next to this: Did you 15 in the course of your post-mortem 16 examination consider and investigate 17 whether Jenna had been sexually abused, 18 and whether there was physical evidence 19 of that. 20 A: No, there was no physical evidence 21 to support any injury to her genitalia. 22 Now, having said that, let me be very 23 careful here. Having said that, you 24 need to understand it's quite possible 25 that someone who's not a parent, not a

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1 caregiver who's looking after her in 2 terms of bathing; it's quite possible 3 someone touched her inappropriately, 4 but I have no marks at autopsy which 5 indicate injury which could be 6 attributed to sexual abuse." 7 And then Mr. Hauraney, who was counsel for 8 the defence, in cross-examination, raised the issue of 9 sexual abuse and, in particular, what was contained in 10 the reports of the Peterborough Civic Hospital; including 11 in the middle page, the posterior fourchette bore a 12 reddish blue discolouration measuring one (1) centimetre 13 in maximum dimension: 14 "Is that normal, sir -- sir, is that a 15 normal finding?" 16 "Yeah, it can be -- yeah, it can be 17 just part of the normal colouration or 18 discolouration after death. You know, 19 if it was -- if it was anterior and not 20 posterior that would, to me, be much 21 more suspicious." 22 "And you found as well, as I understand 23 it, small red punctuate petechiae -- 24 petechial, two of them?" 25 "Uh-huh."

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1 "At the five o'clock position of the 2 hymenal region." 3 "Uh-huh." 4 "And is that normal, sir?" 5 "We can see them. I've seen them from 6 time to time in kids, yeah, who were 7 confident of not being injured in any 8 way in this area." 9 "Would it also be consistent with some 10 interference in the vaginal area?" 11 "It could be, it could be. I can't 12 say. I have no basis to say that there 13 has been interference, but at the time 14 I can't rule it out. There's been no 15 typical injury in the area." 16 "Q: I just want to refer to the notes 17 that you saw from the Civic Hospital, 18 Doctor. There's a nurse's note here; 19 would their initial observations be 20 important to you?" 21 "They may." 22 And then Dr. Smith goes on to say that -- 23 that it's not uncommon that -- that the clinicians or 24 nurses can misinterpret post-mortem findings as evidence 25 of sexual abuse. And you'll see skipping to page 29 --

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1 and I don't intend to read all of this -- about eight (8) 2 lines down: 3 "A: It's very common for people to say 4 that there's anal contusion or there's 5 been anal interference by -- it's by 6 people who are not familiar with the 7 anus post-mortem." 8 And then to page 30 about five (5) 9 questions down. 10 "Did you take any swabs?" 11 "You know, I was wondering if I did. I 12 don't have -- I don't have any record 13 of it, so I -- without that, I don't 14 know if I did a rape kit or not." 15 "Q: Would that have at least satisfied 16 you in some regard whether or not there 17 may or may not have been some 18 interference with the vagina? 19 A: The rape kit certainly doesn't rule 20 it out. You know, if you have evidence 21 then, yes, you can say there's 22 interference, but the lack of evidence 23 doesn't mean that there's no 24 interference." 25 So just stopping there for a moment, what

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1 is your comment on -- on the issues that are raised in 2 this aspect of the testimony? 3 DR. CHRISTOPHER MILROY: Well, firstly, 4 with the history given by the nursing staff and the other 5 staff at the Peterborough Hospital, I would certainly 6 agree that you can sometimes get clinicians saying that 7 there is a change there when there isn't. However, -- 8 MR. MARK SANDLER: Can you actually see - 9 - just stopping there for a moment. That was the very 10 issue that Dr. Pollanen and you and Dr. Crane and, 11 indeed, Dr. Butt opined on in connection with Mullins- 12 Johnson, in part. 13 DR. CHRISTOPHER MILROY: Well, I'm going 14 to say, certainly that's right that the clinicians often 15 over interpret post-mortem changes because they're not 16 used to looking at them. So -- so I fully accept that 17 comment. 18 It obviously -- in -- in that case we -- 19 we made that -- that point very clear; however, there 20 was, in my opinion, on -- on the photographs a reddening 21 that would have certainly prompted me to have done 22 histology of that because that microscopic examination is 23 very helpful in determining whether there's any true 24 bruising present. 25 With respect to taking swabs, I would have

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1 taken swabs on this case, as I said, and I would have 2 recorded them. And, therefore, there would not have been 3 a problem trying to recollect whether I had or had not 4 taken swabs because it was in my post-mortem report. 5 And so that should not arise. It's true 6 that what swabs merely identify the presence of semen and 7 they don't -- and there can be sexual activity without 8 penetration. And that occasionally happens, so you know, 9 you don't just swab -- you swab the appropriate areas and 10 you may swab the thighs, for example, looking -- so -- so 11 you do a proper examination, but you would record it and 12 then you'd know about it. 13 MR. MARK SANDLER: So there's both the 14 systemic issue raised as to documentation of what it is 15 that you did or didn't do and, second, the issue as to -- 16 whether adequate steps were taken in the circumstances 17 having regard to the history. 18 DR. CHRISTOPHER MILROY: Yes. 19 MR. MARK SANDLER: All right, now, if 20 you'd look with me at the -- at page 32, this is 21 continued cross-examination by Mr. Hauraney on the issue 22 of sexual interference and Mr. Hauraney is noting some of 23 the documentation that makes reference to: 24 And you'll see this at line 3, 25 "a curly hair around the vulva area, do

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1 you see that? 2 A: Yeah. 3 Q: Would you expect this young girl to 4 have a curly hair on her vulva?" 5 "No, I assumed that's some pickup, 6 that's something which has landed 7 there." 8 "Q: I understand from speaking with 9 him, and it will be evidence later on, 10 but I understand in speaking with him 11 he was satisfied it was consistent with 12 a dark pubic hair." 13 "You know something I don't know." 14 Q: No, I appreciate that." 15 "Yeah." 16 "But does that -- by that added --" 17 A: Does that raise the alarm bells?" 18 Q: Yes? 19 A: Yes, sure. 20 Q: And I take it, then, as far as you 21 know the police didn't bring any pubic 22 hair to you for examination? 23 A: No. 24 Q: And did they advise you that there 25 may have been a pubic hair found?"

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1 A: I can't remember, all right. I 2 don't know; I'm sorry." 3 What issues are raised for you here? 4 DR. CHRISTOPHER MILROY: Well, 5 understanding what happened to the exhibit subsequently, 6 I think it's extraordinary that it wasn't documented and 7 it was extraordinary that it wasn't handed to the police. 8 I -- I just cannot conceive of a situation 9 where an exhibit like that would not be photographed in 10 situ and then turned over to the police because it's 11 patently a potentially vital piece of evidence. 12 MR. MARK SANDLER: All right. Now, if we 13 could move on to -- I'm going to interrupt the -- the 14 testimony of Dr. Smith at this point and -- and take you 15 to the various pieces of evidence that informed this -- 16 this hair or fibre, and if you'd look with me at 17 paragraph 129, which is at page 74, and you'll see at 18 paragraph 129, and this is after the charges had been 19 withdrawn against Jenna's mother: 20 "Detective Constable Charmley felt 21 there needed to be an independent 22 review of the medical information to 23 determine what information could be 24 relied on from Dr. Smith and what 25 conclusions could be drawn about the

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1 time frame during which Jenna received 2 the fatal injury. He began compiling a 3 medical brief to ensure that the expert 4 who reviewed the case had all of the 5 information necessary to reach an 6 informed opinion. He also reviewed 7 video and photographic evidence from 8 the morgue autopsy which appeared to 9 corroborate Mr. Hauraney's information 10 about a hair having been found in 11 Jenna's vagina. He also reinterviewed 12 the hospital staff that treated Jenna, 13 including Dr. Friesen and the nurses, 14 all of whom recalled seeing a hair on 15 Jenna's vagina." 16 And then skipping down to paragraph 132: 17 "On October the 5th Dr. Smith called 18 Detective Constable Charmley in 19 response to a message from the police 20 officer. According to Charmley, he 21 asked Dr. Smith about the hair found in 22 Jenna's vagina. Dr. Smith advised that 23 he did recall this and that he had 24 seized the hair. He described it as a 25 fibre that the police did not feel was

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1 pertinent to seize, so he kept it in 2 his files; he believes he still had 3 this item. Dr. Smith further advised 4 that he was surprised the police relied 5 so heavily on the medical evidence when 6 it would be the police investigation 7 that would solve the case. Dr. Smith 8 advised he was upset when he heard it 9 was reported that there was a change in 10 medical opinion. He indicated that he 11 was working with different information 12 than those who reviewed the entire 13 case. He explained that his area of 14 expertise was in the post-mortem body 15 and not the living child. He still 16 stood behind his extended timelines of 17 when Jenna could possibly have received 18 her injuries, but felt that the police 19 should not have relied so heavily on 20 his opinion given other evidence of 21 Jenna's behaviour prior to her death. 22 He also stated that he had a sexual -- 23 a child sexual abuse expert examine 24 Jenna and that he was satisfied that 25 there was no evidence of sexual

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1 assault. Detective Constable Charmley 2 asked Dr. Smith if he could retrieve 3 the hair and advised that it would be 4 seized as evidence. 5 What, if any, systemic issues are raised 6 for you, assuming the accuracy of this account of what 7 Dr. Smith had to say? 8 DR. CHRISTOPHER MILROY: Well, firstly, I 9 just -- as I said already, I cannot conceive of how the 10 police would not be interested in a piece of material in 11 the child's vagina in a homicide. And I just find it 12 inconceivable that the exhibit would then be retained by 13 the pathologist and not handed over to the police. 14 MR. MARK SANDLER: Now, just stopping 15 there for a moment. As far as you're concerned, 16 systemically, who bears the responsibility of determining 17 the importance of exhibits at the autopsy? 18 DR. CHRISTOPHER MILROY: Well, it's 19 primarily the responsibility of the pathologist but you 20 may have a -- you may have a forensic scientist or 21 scenes-of-crime officer who will say, Can we take that as 22 well, please, Dr. Milroy? And I will say certainly. You 23 know, you can never have too much evidence. 24 And if -- if they want -- I will have a 25 discussion with the forensic scientist if they -- if

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1 they're present, or the scenes-of-crime officer and the 2 senior investigating officers, to what exhibits we will 3 be taking. But if I point to something and say, This is 4 important regardless of what the police think, they'll 5 take it. 6 MR. MARK SANDLER: Dr. Crane, if a police 7 officer said to you in the course of an autopsy we don't 8 think that the hair or fibre that was found in that 9 location was im -- is important, what would the reaction 10 be? 11 DR. JACK CRANE: They would be told to 12 take it, and that would be the end of it. 13 MR. MARK SANDLER: Okay. Dr. Butt, same 14 reaction? 15 DR. JOHN BUTT: I agree. 16 MR. MARK SANDLER: All right. So moving 17 on in the chronology of events. If I can then take you, 18 Dr. Milroy, to page 77, paragraph 138. I'm sorry, I'll 19 go up to paragraph 137: 20 "On November the 8th, 2001, Detective 21 Constable Charmley spoke with Mr. 22 Maitland [who is with the Chief 23 Coroner's Office] who confirmed that 24 Dr. Smith had located the fibre from 25 Jenna. That same day, Detective

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1 Constable Charmley also spoke with Dr. 2 Smith and arranged to attend at his 3 office to retrieve the hair. 4 November the 15th, Charmley attended at 5 Dr. Smith's office and was given a 6 sealed white envelope with the words 7 'Hair from pubic area' written on the 8 outside. 9 There was a seal on the envelope that 10 indicated the contents were seized from 11 Jenna's autopsy. 12 The seal number on the envelope was 13 later proven to be sequential to others 14 used during the autopsy. 15 The next day, Detective Constable 16 Charmley opened the envelope and 17 confirmed that it appeared to be a dark 18 hair with a slight curl. 19 Four days later, Detective Constable 20 Charmley interviewed Constable Kirkland 21 about his recollection of the autopsy. 22 He had no recollection of Dr. Smith 23 discussing or seizing anything from her 24 vaginal area. He further doubted that 25 he would have said it's not important.

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1 He advised that Dr. Smith controlled 2 the autopsy and told him what was 3 important and what pictures to take. 4 He did have a vague recollection of one 5 (1) autopsy with Dr. Smith, although he 6 did not believe it to be Jenna's. 7 During that autopsy, Dr. Smith 8 commented about a fibre in the groin 9 area but said it was common to find 10 this from clothing and it was not 11 significant. 12 After interviewing Constable Kirkland, 13 Detective Constable Charmley made the 14 following note: 15 'The recovery of this hair raised some 16 concerns about how such a potentially 17 crucial piece of evidence was 18 overlooked and never examined. 19 Potentially, the hair could also lend 20 credibility to the fact that Jenna 21 might have been sexually assaulted.' 22 There was an obvious difference in 23 recollection to what had occurred at 24 the autopsy. 25 Dr. Smith said the police did not think

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1 the hair was pertinent, and Constable 2 Kirkland said that he never indicated 3 this, and it was Dr. Smith who was 4 telling him what was important. 5 Why would a police officer suggest that 6 a foreign hair in the vaginal area was 7 not important, especially given that 8 Jenna was being cared for by a 14-year- 9 old male when she died? 10 Further, why would a pathologist accept 11 such a view without further discussion 12 with the officer in attendance, the 13 primary investigator, or other 14 colleagues? 15 Other than the sealed envelope 16 containing the hair, there was no 17 documentation made about the seizure of 18 the hair; further, the hair was not 19 photographed before removing it from 20 Jenna's body. Although there is one 21 (1) photo that has been mentioned, 22 again it's obvious that this photo was 23 not intended to capture the hair. 24 Dr. Smith was also questioned at the 25 preliminary inquiry about a hair being

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1 found on Jenna; he had no recollection 2 of such a hair but did admit that such 3 a finding would raise alarm bells. 4 Detective Constable Charmley is aware, 5 from attending several autopsies over 6 the years, that sometimes things do 7 progress quickly and there has to be 8 communication from both sides to ensure 9 the pace is comfortable and that 10 knowledge is shared. Unfortunately, 11 only Constable Kirkland was present at 12 the autopsy for the police. 13 Is it reasonable to believe that 14 between making notes and changing 15 camera film that Constable Kirkland may 16 have missed something occurring? 17 Given Dr. Smith's position, should he 18 have pursued advising others of the 19 hair seizure. Police investigators 20 probably gave little thought about the 21 hair given that there was no mention of 22 it being recovered at autopsy, there 23 was no evidence of a sexual assault, 24 and as the investigation progressed 25 such a hair would presumably have no

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1 evidentiary value to charges against 2 Brenda. The recovery of this hair 3 would not be made known to any witness 4 or suspects until later in the review." 5 Again, any systemic issues that are raised 6 -- and I don't want you to -- to evaluate the credibility 7 because -- 8 DR. CHRISTOPHER MILROY: No. 9 MR. MARK SANDLER: -- there's obviously a 10 difference in recollection as to the event. 11 DR. CHRISTOPHER MILROY: Well, when we do 12 suspicious death examinations with the English police 13 forces that I work with, and I've worked with many over 14 the years, we have a -- an exhibits officer present whose 15 sole role is to collect, seal, and document the exhibits. 16 The photographer is separate, so that the 17 photographer would have been directed to have 18 photographed the exhibits in situ. It would then have 19 been seized as an exhibit, and it would then be 20 separately -- and handed to the exhibit's officer, who 21 would make a record of it. 22 COMMISSIONER STEPHEN GOUDGE: The 23 direction given by the pathologist? 24 DR. CHRISTOPHER MILROY: On the direction 25 of the pathologist. Yes, the photographs are taken under

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1 direction of the pathologist, and any exhibit seized is - 2 - is handed to the exhibits officer, and he sequentially 3 documents them, he makes a note of them. 4 And again, there would also be a senior 5 policeman pre -- detective present, who would also be -- 6 so doc -- making mental notes and -- and also having 7 discussions with the pathologist about what was being 8 seized. So the situation that aro -- arose here, I just 9 find it impossible to -- that it would occur in our 10 system. 11 There's just no way that a hair in a 12 vagina would be considered unimportant. There is no way 13 it would not have been seized, and there is no way that 14 it could have ended up in a pathologist's drawer and 15 forgotten about. 16 17 CONTINUED BY MR. MARK SANDLER: 18 MR. MARK SANDLER: All right. Now, self 19 evident in what you've said, perhaps, but one (1) of the 20 things that Dr. Smith has reported to have said is that 21 it was a fibre as opposed to -- to a hair. 22 Whose determination is that to make? 23 DR. CHRISTOPHER MILROY: Well, that's the 24 determination of the forensic scientist when they have a 25 proper look at it. And the -- the very fact that I think

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1 a -- that it's been suggested that this was not of 2 forensic significance shows a lack of forensic training. 3 'Cause even if for some peculiar reason 4 the police -- it's difficult to imagine how -- didn't 5 think that the fibre or hair in the vagina wasn't 6 important, a forensically-trained pathologist would say, 7 I don't care what you think, this is important. You are 8 going to seize it. 9 MR. MARK SANDLER: If you can turn with 10 me to page 84 of the overview report, paragraph 159. 11 Commissioner, with your permission, I'm going to suggest 12 that we complete this area, which may take us a little 13 bit past our ordinary -- 14 COMMISSIONER STEPHEN GOUDGE: That is 15 fine. 16 17 CONTINUED BY MR. MARK SANDLER: 18 MR. MARK SANDLER: -- ending point. 19 Paragraph 130 -- 159, page 84 reflects -- and this is in 20 April of 2002: 21 "According to Detective Constable 22 Charmley, Dr. Smith had advised Dr. 23 Cairns that he had no rough notes of 24 the autopsy." 25 He also told Dr. Cairns that he had the

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1 hair with him in an envelope at the 2 preliminary inquiry. 3 I'm stopping there for a moment. What, if 4 any, systemic issues does that raise for you? 5 DR. CHRISTOPHER MILROY: Well, when -- 6 there are essentially two (2) ways in which you can 7 document your findings of an autopsy. The first is to 8 make rough notes or -- you make manuscript notes and that 9 has been my practice since I've started in pathology. 10 You could also use a dictaphone and dictate as you go 11 along. 12 If you do use a dictaphone, in our 13 jurisdiction we keep the tape until the completion of 14 legal proceedings. So the tape is -- from which the 15 report is then made is kept. So you should have 16 somewhere contemporaneous -- a contemporaneous record of 17 what you were doing in the autopsy. 18 MR. MARK SANDLER: All right. Now, I 19 won't take you to the paragraphs, but as reflected at 20 paragraph 169 of the overview report, the hair -- and it 21 was identified as a hair by the Centre of Forensic 22 Sciences -- was submitted for mitochondrial DNA in the 23 United States. 24 And it turned out that -- and that was 25 because of the absence of the root for conventional DNA,

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1 and it turned out that the hair was not sourced to either 2 Jenna's mother or the babysitter. Does that change 3 anything that you've said? 4 DR. CHRISTOPHER MILROY: No, it doesn't 5 change a single thing. I mean, of course, you don't know 6 how valuable any swab or piece of evidence that is taken 7 -- that you take is going to be, but you still take it. 8 MR. MARK SANDLER: All right. Now if 9 you'd look at paragraph 204, page 105 of the overview 10 report. We see here at paragraph 204, that Dr. Smith is 11 writing to the college in reply to a complaint that was 12 made by Jenna's mother against him. 13 And I only want to deal with one (1) 14 aspect of that at this point, and that's at the following 15 page, page 106. And if you look under a) Sexual Abuse 16 Examination, Dr. Smith says this: 17 "At the time of the post-mortem 18 examination, a sexual abuse examination 19 was performed by me. In this, I was 20 assisted by Dr. Dirk Huyer, the 21 Director of the Suspected Child Abuse 22 and Neglect Program at the Hospital for 23 Sick Children. He and I agreed that 24 there was no evidence of abuse. 25 Nevertheless, appropriate sampling was

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1 undertaken. The police who are 2 responsible for the submission of 3 evidence in a homicide investigation 4 chose not to submit this material for 5 analysis. It remained under seal in my 6 care. Following Ms. Waudby's complaint 7 to the college, I have asked the police 8 investigators to reconsider their 9 position, and they agreed to do so. 10 Subsequently, a member of the police -- 11 Peterborough police service obtained 12 the material from me, and he gave it to 13 the Office of the Chief Coroner for 14 safe-keeping until a final decision is 15 made on whether it would be examined." 16 And again, I'm not asking you to resolve 17 any issues of credibility that arise in the case, but 18 does it raise any systemic issues in connection with the 19 sexual abuse examination issue? 20 DR. CHRISTOPHER MILROY: There are two 21 (2). They're related. The first is if you're going to 22 get an opinion from a colleague, that a) you should 23 document that you have sought an opinion from that 24 colleague, and b) that colleague should produce a report, 25 even if it's negative.

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1 Secondly, you should document the sampling 2 that you have conducted, and then you hand it to the 3 exhibits officer. You certainly do not keep it yourself. 4 MR. MARK SANDLER: All right. And then 5 we look at page 108 -- 6 COMMISSIONER STEPHEN GOUDGE: Can I just 7 ask, would it be the pathologist decision in your 8 experience, about whether to submit the fibre or the hair 9 for -- 10 DR. CHRISTOPHER MILROY: No. 11 COMMISSIONER STEPHEN GOUDGE: -- forensic 12 analysis? 13 DR. CHRISTOPHER MILROY: That's a police 14 -- 15 COMMISSIONER STEPHEN GOUDGE: Or that's a 16 police decision? 17 DR. CHRISTOPHER MILROY: That's a police 18 decision. It's a -- it's a police decision, because, for 19 example, it may well be that having taken all the 20 material, they -- for -- the suspect may admit to 21 everything, for example, to contact, so you wouldn't 22 submit fingernails. 23 You wouldn't -- if the police want to find 24 out whether there's been a sexual assault, they clearly 25 would have to submit the swabs, but it's the decision of

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1 the police whether they're submitted. And that's why 2 they retained the exhibit. 3 4 CONTINUED BY MR. MARK SANDLER: 5 MR. MARK SANDLER: All right. 6 DR. CHRISTOPHER MILROY: We also -- I 7 should have the police have to pay for it. 8 MR. MARK SANDLER: All right. And would 9 you give advice to the police in that regard? 10 DR. CHRISTOPHER MILROY: Yes. You would 11 give advice in terms of -- you may say, I think we need 12 an odontologist to look at this. We can have a -- you 13 know, another specialist. Sometimes the police do that. 14 They ask themselves, We would like another specialist to 15 see that, and then I will say whether I think that 16 they've got the right specialist or not. 17 I may recommend a specific person. So 18 there's -- there's an interaction here. 19 MR. MARK SANDLER: All right. And then 20 if you'd look at page 108, paragraph 207, the last 21 paragraph. This is Dr. Huyer writing to the college in 22 connection with the complaint that had been made against 23 Dr. Smith. And it says in the last paragraph: 24 "I've not found any notes or 25 documentation relating to my

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1 involvement in the post-mortem 2 evaluation of Jenna. I'm aware of the 3 circumstances of the death, and the 4 investigation surrounding the death. 5 I've had conversations with 6 professionals involved in the case 7 since the death. I cannot specifically 8 recall attending the autopsy, although 9 I do recall having conversation with 10 investigating officers around the time 11 of the death, discussing potential 12 suspects. When I would attend during 13 autopsy procedures, Dr. Smith and I 14 would generally examine the genitalia 15 together. I would discuss the findings 16 verbally with Dr. Smith. It was my 17 impression that he would document the 18 results of our examination. Given the 19 age of the child, if there were no 20 specific concerns of sexual abuse and 21 there was no evidence of genital 22 injury, I would not have likely 23 recommended completion of specific 24 forensic testing to evaluate for sexual 25 contact. It's my opinion that without

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1 specific injury to the hymen, forensic 2 finding of semen or sperm in the 3 vaginal vault would be unlikely in a 4 child this age." 5 What systemic issue is raised here? 6 DR. CHRISTOPHER MILROY: Well, I mean the 7 principal systemic issue is about documentation. 8 Documentation by the -- both parties, both Dr. Smith and 9 Dr. Huyer. They should both have documented their 10 presence. 11 Now, of course, if -- it may well be that 12 if Dr. Huyer was never -- and I don't know whether this 13 is correct or not -- did not -- not get involved in the 14 case then clearly, he wouldn't have any notes, but if he 15 had got involved then he should have done. 16 I mean, it's not just good practice; it's 17 a required practice now for anyone who's involved in a 18 case with criminal proceedings to make contemporaneous 19 notes and then make a witness statement. 20 COMMISSIONER STEPHEN GOUDGE: Required 21 by...? 22 DR. CHRISTOPHER MILROY: It's really 23 required by the -- it's required by the legal system. 24 25 CONTINUED BY MR. MARK SANDLER:

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1 MR. MARK SANDLER: All right. Now in 2 fairness to Dr. Smith, the overview report also reflects 3 that in 2004 at Ms. Langford's instance notes, rough 4 notes, of Dr. Smith in relation to this post-mortem 5 examination were -- were obtained and provided and 6 reflected a line entry that -- that Dr. Huyer did perform 7 a sexual examination during this post-mortem. All right? 8 DR. CHRISTOPHER MILROY: Yes. 9 MR. MARK SANDLER: I thought, in 10 fairness, I should mention that. It doesn't -- doesn't 11 change the -- the issues as raised, namely, the adequacy 12 and availability of documentation, I take it? 13 DR. CHRISTOPHER MILROY: No, because, I 14 mean, if you -- if you make a note in your rough notes, I 15 would expect that to be transcribed into the -- into the 16 typewritten script. It's important to say, you know, not 17 only do I feel that the genitalia were normal but I have 18 also got a, you know -- and then -- a sexual abuse 19 expert, Dr. Huyer, he examined it with me and stated it 20 was negative. And then other people reviewing it would 21 know that that had happened. 22 MR. MARK SANDLER: All right. I do 23 intend now to have you look briefly at the photographs 24 that -- that you've assembled that relate to this matter. 25 And if you could look at each one (1) of them as they

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1 come up on the screen and explain to the Commissioner 2 what their significance is. 3 DR. CHRISTOPHER MILROY: Well, here you 4 have a photograph of the forehead especially, and you can 5 see a large area of bruising that would immediately raise 6 suspicions. 7 And then on the left, as you look on the 8 right-hand side of the forehead is a patterned burn. 9 That would -- looks to me like it would accord with a 10 hair dryer and I would have said -- I would not accept 11 that as being an accident. 12 And then just a close up with further 13 dried probable burn on the cheek and there is also 14 bruising around the eye. 15 COMMISSIONER STEPHEN GOUDGE: I take it 16 you would not accept the accident explanation because of 17 the length of time that it would be required to hold the 18 hair dryer on the forehead to produce that significant a 19 burn? 20 DR. CHRISTOPHER MILROY: Absolutely. And 21 also, I think one has to say in the context of the case 22 as well, this is such an overtly abused child that it -- 23 it would be stretching credulity to think an accidental 24 burn occurred in the context of all these other injuries, 25 regardless of the time it would take to cause it.

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1 2 CONTINUED BY MR. MARK SANDLER: 3 MR. MARK SANDLER: All right. 4 DR. CHRISTOPHER MILROY: This is a view 5 of the genitalia. And there is a reddening area that 6 raises suspicions of an injury and that would have 7 prompted me to have done histology in that area. 8 MR. MARK SANDLER: All right. When you 9 say "prompted you to do histology", what would you have 10 done specifically here? 11 DR. CHRISTOPHER MILROY: Well, you have 12 to actually take the whole layer out and subject it to 13 microscopic examination? 14 MR. MARK SANDLER: All right. 15 DR. CHRISTOPHER MILROY: It's quite a 16 detailed process. 17 MR. MARK SANDLER: Now, we haven't talked 18 about this feature of the pathology up until this point 19 in time. 20 Could you describe what it was that 21 prompted you to include this photograph for the 22 Commissioner? 23 DR. CHRISTOPHER MILROY: Well, it's part 24 -- because of what Dr. Smith said in his report. He 25 described a bite-like mark on the knee, and when I think

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1 I may or may not have a bite mark, that's when I get an 2 odontologist to come and have a look. And he should have 3 got an odontologist because if this is a bite and you've 4 got a 14-year-old male and an adult female as suspects, 5 the bite pattern may distinguish between the two. 6 MR. MARK SANDLER: And what about the 7 issue of swabbing? 8 DR. CHRISTOPHER MILROY: Well, again, you 9 can swab it. You would swab it if you think it's a bite 10 mark, because often, in fact these days DNA will solve 11 that issue almost before you have to worry about the 12 odontologist because if someone bites they're quite 13 likely, either to have left it on the clothing, if 14 they're biting through clothing, or on the skin itself, 15 so we always swab bite marks -- 16 MR. MARK SANDLER: Okay. 17 DR. CHRISTOPHER MILROY: -- or potential 18 bite marks. And that's just a close up of the area. And 19 I'm aware that an -- an odontologist has looked at that 20 and I think has described it as a probable bite mark. 21 There is a scale of definite bite mark, probable bite 22 mark, possible bite mark, not bite mark, so certainly 23 there was potential evidence there that could have been 24 examined further. 25 MR. MARK SANDLER: All right. Now,

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1 Commissioner, I'm about to turn to Dr. Smith's testimony 2 on the timing of the injuries themselves; that would be a 3 convenient time to break for the lunchtime. 4 COMMISSIONER STEPHEN GOUDGE: Okay, so we 5 will break now for an hour and fifteen (15) minutes and 6 come back shortly before ten (10) after 2:00. 7 MR. MARK SANDLER: Thank you. 8 9 --- Upon recessing at 12:56 p.m. 10 --- Upon resuming at 2:11 p.m. 11 12 THE REGISTRAR: All rise. Please be 13 seated. 14 COMMISSIONER STEPHEN GOUDGE: Mr. 15 Sandler...? 16 17 CONTINUED BY MR. MARK SANDLER: 18 MR. MARK SANDLER: Thank you, 19 Commissioner. Professor Milroy, we were dealing with the 20 Jenna case immediately before lunch. One (1) of the 21 items that you showed the Commissioner, photographically, 22 was the pathology concerning the genitalia. 23 DR. CHRISTOPHER MILROY: Yes. 24 MR. MARK SANDLER: And how would you 25 describe that in a post-mortem report had you seen that

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1 as the forensic pathologist? 2 DR. CHRISTOPHER MILROY: Well, I mean -- 3 I mean, do you mean how would I describe it in terms of 4 an injury or would I -- what would I say its significance 5 would be? 6 MR. MARK SANDLER: What would you put as 7 any abnormal finding in your report? 8 DR. CHRISTOPHER MILROY: Well, I would 9 say if it was an abnormal finding it -- just on the photo 10 -- photography, it's an area of reddening. It may be a 11 superficial bruise; it could be an abrasion. 12 MR. MARK SANDLER: All right. 13 DR. CHRISTOPHER MILROY: But it -- you'd 14 record it something. 15 MR. MARK SANDLER: And apart from the -- 16 the issue as to documenting any examination of the area 17 or the taking of swabs, did Dr. Smith describe that 18 injury in his report of post-mortem examination? 19 DR. CHRISTOPHER MILROY: No. 20 MR. MARK SANDLER: I want to turn, then, 21 to the issue of his testimony on timing of injuries. And 22 if you'd go with me to page 33 of the overview report, 23 144684, which again, Professor Milroy, is at Tab 20 of 24 your binder, and if you'd look at what Dr. Smith had to 25 say, commencing at page 33.

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1 And if you have that, you'll see that 2 we've reproduced, in the overview report, a lengthy 3 passage from his testimony at the Preliminary Inquiry, 4 all of which addressed the issue of timing of the fatal 5 injuries. I don't intend to read out this lengthy 6 passage which is some 10 pages. 7 Have you examined his testimony as given 8 in these passages? 9 DR. CHRISTOPHER MILROY: I have. 10 MR. MARK SANDLER: And can you advise the 11 Commissioner what your opinion is concerning the 12 reasonableness of the opinion expressed therein? 13 DR. CHRISTOPHER MILROY: Well the -- the 14 opinion it's unreasonable because it's based on a -- a 15 wrong interpretation of the pathology. The -- as already 16 outlined, the healing response in this case clearly is 17 absent from the pri -- the fatal injury, timing it, 18 therefore, in just a few hours, yet in testimony, it's 19 suggested it could be as old as twenty-four (24) to 20 forty-eight (48). And in answer to a direct question, 21 that it could have been twenty-eight (28) hours, but that 22 -- that's just not reasonable. 23 MR. MARK SANDLER: And that's for the 24 reasons that you've already communicated? 25 DR. CHRISTOPHER MILROY: Yes.

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1 MR. MARK SANDLER: And what about the -- 2 the -- the form of what is communicated in the answer, 3 apart from the reasonableness of the opinion? 4 DR. CHRISTOPHER MILROY: Well, I think 5 it's also -- it's too long. It's -- I find that 6 rambling; it's difficult to dissect, and it could have 7 been given much more pithily then it was. 8 MR. MARK SANDLER: All right. So -- so 9 leaving aside the merits of the opinion which -- which 10 you've expressed, did -- did you see in your review of 11 the testimony of Dr. Smith, generally a -- a systemic 12 issue as -- on -- as to communication that should be 13 addressed? 14 DR. CHRISTOPHER MILROY: Yes, I -- I 15 mean, I think in -- in a number of these cases the -- the 16 descriptions are often confusing; they were often 17 unclear. And they -- they -- the testimony appeared 18 rambling at times, frankly. It was -- it was just not 19 succinct, accurate testimony. 20 MR. MARK SANDLER: All right. And, Dr. 21 Crane, you had the opportunity to examine the testimony 22 of Dr. Smith. I'm going to ask you about the merits of 23 the opinions expressed a little bit later on, but can you 24 speak to the issue of communicating expert opinions in 25 pathology?

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1 DR. JACK CRANE: Yes, I think that 2 experts, in general, and medical experts, have a very 3 important part to play in -- in a criminal trial. And 4 it's very important that they gauge their answers in 5 terms that are not pejorative; in terms that do not 6 exaggerate things. 7 Because obviously juries are very 8 impressionable, particularly from a medical expert. A 9 medical expert says something, then there's a tendency, 10 perhaps, for a lay jury to -- either to accept that or, 11 indeed, sometimes to misinterpret that, so I think we 12 have to be very careful about the language we use. 13 Keeping it succinct, straightforward, easy 14 to understand, and not using comparators that may be 15 grossly over-stating or over-exaggerating a particular 16 point. 17 MR. MARK SANDLER: All right. And, Dr. 18 Butt, do you want to add to what has already been said or 19 does that reflect your view? 20 DR. JOHN BUTT: It basically reflects my 21 view. I think that the longer the explanation, the more 22 it looks like waffling. And I found that I must admit 23 with my own evidence at times then -- you know, and I 24 think one has that concern always. 25 It's better known to the courts than to

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1 have my judgment about it, but I think the -- the issue 2 that Professor Milroy mentioned about the evidence being 3 pithy, and answering the question directly, is very 4 important as part of one's confidence in getting a point 5 across properly. 6 MR. MARK SANDLER: All right. And -- 7 COMMISSIONER STEPHEN GOUDGE: Is that 8 part of the forensic training? 9 DR. JOHN BUTT: May I tell an anecdote at 10 this point? 11 COMMISSIONER STEPHEN GOUDGE: If it's 12 pithy and clear. 13 DR. JOHN BUTT: Well, I -- I was trained 14 as, you may recall, from the CV in Great Britain, and the 15 -- the boss, Professor Keith Simpson (phonetic) spoke 16 beautifully. And after I'd been there about seven (7) 17 years, he introduced me one (1) time and said, I'd like 18 to introduce you to Butt; he still can't speak English. 19 And brevity is a very important part of 20 the -- of the language, and I think it is taught, to 21 answer to your question, in there -- in the context of 22 being disciplined by people who use the language 23 properly, all the time, in court. So that was of some -- 24 it was a bit of a remonstration, but I don't that it is 25 taught here at all.

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1 CONTINUED BY MR. MARK SANDLER: 2 MR. MARK SANDLER: Dr. Crane, you've 3 described to me some testimonial training that takes 4 place for forensic pathologists in your jurisdiction. 5 Could you describe that for the 6 Commissioner, please? 7 DR. JACK CRANE: Yes. What's now 8 required for pathologists who actually want to go on the 9 Home Office List is that they have to do a two (2) day 10 training program; what's called "Criminal Justice 11 Interface Training." 12 And during that two (2) day training, they 13 are asked to bring along reports, and they are, then, 14 examined-in-chief and cross-examined on those reports by 15 counsel. And a -- if you'd like, a referee, acting as a 16 Judge -- usually a senior forensic pathologist -- listens 17 to that evidence and actually makes comment on it. And 18 at the end of that two (2) day, they have to pass that 19 training program before they will be allowed on the Home 20 Office List. 21 MR. MARK SANDLER: All right. And in 22 addition to that, within the State Pathologist's Office 23 in Northern Ireland, is there any ongoing monitoring of 24 the testimony that's -- that's given by one (1) of the 25 pathologists under your charge?

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1 DR. JACK CRANE: Yes. First of all, I 2 encourage my junior staff to come along to Court and 3 listen to me. Perhaps that's who -- or they shouldn't 4 give their evidence, but I encourage them to come along. 5 And then what I do is that I encourage our coroner, for 6 instance, to call my junior pathologist to come along and 7 give his evidence. 8 And I would often go along myself and sit 9 at the back of the Court, unknown to him, just to hear 10 how he's performing; whether his evidence was succinct, 11 whether it was clear. So I think that those are quite 12 good ways of trying to encourage people to develop skills 13 in presenting evidence. 14 MR. MARK SANDLER: All right. And 15 Professor Milroy, do you want to add to anything that's 16 been said on this issue? 17 DR. CHRISTOPHER MILROY: Well, I see that 18 Professor Crane has already outlined that it's the Home 19 Office, so it -- it's actually the England/Wales training 20 that you do the criminal justice studies and all the 21 people now have to go on. 22 One of the ironies, actually, if they're 23 having so many inquests is that you do learn to give 24 evidence at -- a lot of inquests before you move on to 25 the more adversarial process of Crown Court, and that

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1 actually has been helpful. 2 MR. MARK SANDLER: But you wouldn't 3 suggest, systemically, that we should hold too many 4 inquests in order to train pathologists on the giving of 5 evidence. 6 DR. CHRISTOPHER MILROY: Or send them 7 over to England. No, I mean, there too many inquests, 8 but it just happens to have been a route. But I -- I 9 agree with what Professor Crane says, that you should go 10 along and hear other people give evidence. 11 And I always find it interesting to hear 12 the way other people give evidence because you always 13 learn things from them, either positive or negative. 14 MR. MARK SANDLER: All right. On the 15 Jenna case, the last item that I want to address with 16 you, Professor Milroy, is at page 92 of the overview 17 report. And reference is made, at paragraph 172, to Dr. 18 Pollanen's review of the forensic pathology in this case. 19 And it reflects that he prepared a report dated June 20 16th, 2002 concluding that: 21 "Jenna's death was due to an intra- 22 abdominal hemorrhage from blunt impact 23 trauma to the abdomen which was 24 inflicted within hours of her death." 25 And he recommended, at paragraph 173:

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1 "That a separate clinical opinion be 2 obtained on the rate of development of 3 symptoms from the fatal injuries. It 4 may be appropriate to canvass this 5 opinion based on the pathologic 6 findings that are described in this 7 report. This would ensure a full 8 medical assessment of the case, that is 9 based on a combination of clinical and 10 pathologic parameters. Also 11 consultation with a clinical expert in 12 child sexual abuse may insist in 13 interpreting the hemorrhage in the sub- 14 clitoral vulva." 15 Do you agree with the content of Dr. 16 Pollanen's report? 17 DR. CHRISTOPHER MILROY: I do. 18 MR. MARK SANDLER: All right. That 19 completes my questioning, Professor Milroy, on the Jenna 20 case. And, Commissioner, if I could ask you to look at 21 Volume I of Professor Crane's brief. 22 We will now be turning to the Joshua case. 23 And Professor Crane, if I could take you to Tab 6 of 24 Volume I of your materials, PFP143053. And, Mr. 25 Registrar, if you could turn to page 3 of this document,

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1 we see, Professor Crane, that Joshua was born in 2 Belleville, Ontario on September the 23rd, 1995. He died 3 on January 23rd, 1996 at the age of four (4) months in 4 Trenton, Ontario. 5 On March the 27th of that same year, his 6 mother was charged with first degree murder in Joshua's 7 death. 8 After a preliminary inquiry, she was 9 committed to stand trial on first degree murder. That 10 committal was quashed and she was ordered to stand trial 11 on a charge of second degree murder instead. 12 On January the 4th of 1999, a new 13 indictment charging infanticide was placed before the 14 Court. His mother entered a plea of not guilty. 15 However, the Crown then read into the 16 record certain facts, and the Defence called no evidence 17 to respond to the facts read in, and did not dispute 18 them. As a result, the mother was convicted of 19 infanticide. Just prior to the laying of the criminal 20 charge, Joshua's brother was apprehended by Children's 21 Aid and placed in foster care, and ultimately adopted by 22 his foster family. 23 In September of 2005, some years later, 24 Joshua's mother had another child. Children's Aid 25 obtained a supervision order which was later terminated

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1 in April of 2007. 2 As I understand it, Professor Crane, you 3 were assigned as part of the Chief Coroner's Review to be 4 the Primary Reviewer for this case. 5 DR. JACK CRANE: That's correct. 6 MR. MARK SANDLER: And if I can take you 7 to your medical-legal report; it is reproduced at Tab 4 8 of your binder, and it is document PFP 135527. 9 And can you outline -- and I'll ask the 10 Registrar to turn to page 2 of this document at the 11 bottom of the page, please -- can you outline for the 12 Commissioner, very briefly, the history and circumstances 13 of this case that might be relevant to our discussion 14 this afternoon? 15 DR. JACK CRANE: Joshua was a four (4) 16 month old infant who lived with his mother and older 17 brother. He had been healthy, apart from an episode of 18 wheeziness, about a month prior to his death. 19 On the morning of January 23rd, 1996, he 20 was apparently found dead, lying face downwards in a 21 playpen in which there were a number of blankets and 22 quilts. 23 The police arrived at the scene, and when 24 an ambulance arrived, cardiopulmonary resuscitation was 25 carried out at the scene and en route to hospital.

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1 Further resuscitation was performed in the 2 emergency room, but without response. Death was 3 confirmed at 9:20 a.m. 4 MR. MARK SANDLER: Now, we know that the 5 post-mortem examination was conducted by Dr. Smith on 6 January the 24th of 1996. 7 Am I right? 8 DR. JACK CRANE: Yes, that's correct. 9 MR. MARK SANDLER: And at page 3 of your 10 medical-legal report, you have summarized the abnormal 11 findings that are contained in that post-mortem report. 12 Could you briefly review each of the 13 abnormal findings as they're reproduced in your report 14 and in the original post-mortem report? And simply at 15 this stage, provide the Commissioner with an 16 understanding, in lay terms, as to what each of them 17 means. 18 DR. JACK CRANE: The summary of abnormal 19 findings was as follows: 20 1. Sudden and unexpected death. 21 2. Asphyxia with petechical hemorrhages 22 of the thymus, pulmonary pleura, and epicardium. 23 Petechia, Commissioner, are small pinhead- 24 sized hemorrhages, and these were found on the thymus 25 gland which is a small gland in the upper part of the

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1 chest. 2 The pulmonary pleura is the covering over 3 the lungs. And the epicardium is the surface layer of 4 the heart. 5 So we had these small hemorrhages on the 6 internal organs in the chest cavity. 7 There was congestion and edema of the 8 lungs. Now, "edema' means that the lungs contain a lot 9 of fluid and "congestion" means that they contain a lot 10 of blood. 11 There was hemorrhage in the connective 12 tissues of the neck. This was seen on microscopic 13 examination. The connective tissue being the soft 14 tissues of the neck. And there was cerebral edema; that 15 indicates that the brain was swollen. 16 MR. MARK SANDLER: And just stopping 17 there for a moment, Professor Crane. It would appear 18 from the configuration of the summary of abdormal -- 19 abnormal findings, that -- that the findings that you've 20 just outlined, 1.1 to 1.4, figured in the determination 21 that this was a case of asphyxia; am I right? 22 DR. JACK CRANE: That's correct. 23 MR. MARK SANDLER: And -- and we'll come 24 back to asphyxia and what it means shortly. 25 If you could continue on with the other

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1 three (3) abnormal findings. 2 DR. JACK CRANE: Under 3), there were 3 contusions of the scalp described as "recent". 4), Dural 4 hemorrhage, recent and old. The dura is a thick, fibrous 5 layer of tissue that covers the brain and what we had 6 here was bleeding into the dura, which was both recent 7 and -- and old. 8 And under 5), was given an avulsion 9 fracture of the distal left tibia described as healing. 10 The left tibia would be the shin bone, and 11 the distal end of it would be at the ankle region. 12 MR. MARK SANDLER: All right. And then 13 looking at what you've placed under "Review of Autopsy", 14 you reflect that a skeletal survey was carried out, and 15 that the radiologist reported a metaphyseal corner 16 fracture of the left distal tibia but no other fraction - 17 - fracture is noted. 18 Is that the same reference to the avulsion 19 fracture described below? 20 DR. JACK CRANE: It is, yes. 21 MR. MARK SANDLER: All right. What was 22 given by Dr. Smith as the cause of death? 23 DR. JACK CRANE: Dr. Smith gave the cause 24 of death as asphyxia. 25 MR. MARK SANDLER: And you've noted that

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1 Dr. Smith stated in his report, and this will become 2 significant a little bit later on in the piece, no 3 evidence of skull fracture, am I right? 4 DR. JACK CRANE: That's correct, he 5 recorded that. 6 MR. MARK SANDLER: Now, can you advise 7 the Commissioner, and please feel free to refer to your 8 comments on the autopsy report that are also contained at 9 page 3 and into page 4. 10 What do you have to say about the 11 significance of each of the abnormal findings described 12 by Dr. Smith and his ultimate cause of death designated 13 as asphyxia? 14 DR. JACK CRANE: Perhaps if we start with 15 the term "asphyxia" first of all. 16 It's not a terribly good term; it's rather 17 non-specific and, unfortunately, it means different 18 things to different people. 19 In general, pathologists tend to use it 20 when they are implying that there has been some form of 21 mechanical interference with breathing. So, for example, 22 if something was put into the mouth; if something was put 23 over the face; plastic bag over the head; if there had 24 been compression of the neck; those are all mechanisms 25 whereby breathing is obstructed or interfered with and

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1 asphyxia can occur. 2 Now, as regards the parameters that Dr. 3 Smith had used; first of all, the petechia hemorrhages. 4 Petechia hemorrhages, occasionally, can be significant, 5 particularly, if they're found in the face, in the lining 6 of the eyelids and over the eyeballs where it's suspected 7 that there has been compression of the neck. And they 8 may be -- and I say "may be" an indicator of neck 9 compression, i.e., strangulation. 10 MR. MARK SANDLER: And -- and the 11 Commissioner has heard a little bit of this earlier on 12 with Dr. Pollanen, but why is that the case that they may 13 be indicative of neck compression but not necessarily so? 14 DR. JACK CRANE: What can happen is that 15 if a compression or pressure is applied on the neck, the 16 pressure may not be sufficient to stop blood going 17 upwards to the head but may be sufficient to compress the 18 superficial veins which require less pressure to block. 19 So, in fact, what's happening is blood is 20 going up to the head but isn't getting away; small blood 21 vessels then become congested and gorged with blood; they 22 rupture and you get these small pinhead-sized hemorrhages 23 forming. 24 MR. MARK SANDLER: All right. So you 25 said that certain kinds of petechial hemorrhages can be

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1 significant; what about the petechial hemorrhages of the 2 thymus pulmonary pleura and epicardium described here? 3 DR. JACK CRANE: The finding of petechial 4 hemorrhages on the internal organs have absolutely no 5 significance, whatsoever, and are certainly not an 6 indicator of asphyxia. 7 MR. MARK SANDLER: And why is that so? 8 DR. JACK CRANE: They are frequently 9 found in natural deaths, and particularly so in young 10 children and infants, and often, if they have been found 11 in a face-down position. And it probably simply 12 represents post-mortem congestion with ruptured small 13 blood vessels. 14 MR. MARK SANDLER: And you say that -- 15 that, typically, this may be found in a -- when the child 16 is found in a face-down position. Did that have 17 application to the Joshua case? 18 DR. JACK CRANE: Yes, my understanding 19 was that this was the position that Joshua was found in 20 the playpen. 21 MR. MARK SANDLER: All right. So moving 22 from the petechial hemorrhages to the next item, could 23 you continue on, please? 24 DR. JACK CRANE: Yes, the next item was 25 congestion and edema of the lungs. Now, I am -- this is

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1 simply a terminal event that happens as a person is 2 dying. Again, it has no significance as an indicator of 3 asphyxia. It's found in death from a variety of causes, 4 and it's completely nonspecific. 5 MR. MARK SANDLER: The hemorrhage and 6 connective tissues of the neck; did you examine, 7 histologically, those purported -- that purported 8 hemorrhage in the course of expressing your opinion? 9 DR. JACK CRANE: Yes, I did. First of 10 all, there was no injury apparent, either on the neck 11 externally or internally. However, on the examination of 12 the slides -- these were small samples of tissue that 13 were taken -- there was evidence of some bleeding. 14 That bleeding was sighted at the periphery 15 of the tissue, and, in my opinion, it represented an 16 artifact, i.e. when the tissue was being taken and when 17 it had been processed, blood had leaked out. It was, in 18 my opinion, not evidence of anti-mortem injury. 19 MR. MARK SANDLER: All right. And anti- 20 mortem being before death. 21 DR. JACK CRANE: Before death. 22 MR. MARK SANDLER: Item 1.4, cerebral 23 edema. 24 DR. JACK CRANE: Yes, this just, as I 25 said, implies swelling of the brain. And swelling of the

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1 brain occurs frequently, again, at or about the -- the 2 time of death. 3 It's often related to the fact that not 4 enough oxygen is getting to the brain from a variety of 5 causes. The brain, when it suffers any form of insult, 6 becomes swollen. So if your heart stops and not enough 7 oxygen is getting to your brain, your brain may undergo 8 swelling. It's a nonspecific finding. 9 MR. MARK SANDLER: All right. And by 10 "nonspecific finding" in this context, it doesn't advance 11 the position that this was a case of mechanical asphyxia. 12 DR. JACK CRANE: It does not. 13 MR. MARK SANDLER: All right. So, 14 stopping there for a moment; what, if anything, does 15 consideration of those abnormal findings tell you about 16 the existence of pathological evidence to support the 17 diagnosis of asphyxia in this case? 18 DR. JACK CRANE: There is no evidence to 19 support a diagnosis of asphyxia. 20 MR. MARK SANDLER: All right. What about 21 the other items that are reflected under review of 22 autopsy 3, 4, and 5? Did these contribute to the death 23 of Joshua in any way? 24 DR. JACK CRANE: No, they didn't. There 25 were some small areas of bruising on the scalp, and any

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1 injury in an infant requires an explanation. Again, 2 there also was a little evidence of bleeding into the 3 dura over the surface of the brain, and there was present 4 a -- a fracture of the tibia. 5 And, certainly, the bruising requires an 6 explanation, and the tibial injury requires an 7 explanation, but they did not contribute to the death of 8 this infant. 9 MR. MARK SANDLER: All right. And when 10 you say that "items 3 and 5 require an explanation," 11 there -- I take it from that, that there could be an 12 innocent or there could a malevolent explanation to 13 these, but they have to be investigated? 14 DR. JACK CRANE: That's correct. I mean, 15 bruising on the scalp may be due to the child having 16 struck its head moving around. The injury to the leg, if 17 the child had fallen, is a possibility. 18 And, of course, one's always alert to the 19 possibility, particularly with a leg fracture, of the 20 child's leg perhaps being twisted, the child having been 21 lifted by the leg. So you would be alert to a 22 possibility that it be non-accidental, but certainly no 23 conclusive evidence that it is. 24 MR. MARK SANDLER: All right. What about 25 the dural hemorrhage, recent and old? You've said that

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1 that did not form part of the cause of death or 2 contribute to the cause of death. Is that to be 3 distinguished from say the subdural hemorrhage? Perhaps 4 you could explain to the Commissioner what does or 5 doesn't become significant in the context of hemorrhages 6 in the dural region? 7 DR. JACK CRANE: Yes, it's -- it's well 8 recognized that if an infant is subjected to or receives 9 head trauma, a blow on the head, or the child's head is 10 struck against a surface, then one (1) of the reactions 11 can be that small blood vessels between the dura and the 12 surface of the brain can become damaged. 13 And the result, blood can accumulate in 14 the subdural space. And subdural hemorrhage is an 15 indicator of trauma and may be very serious and may cause 16 symptoms. In my view, the bleeding here was not 17 significant. 18 And it is recognized that a small amount 19 of bleeding can occur as a result of the process of 20 birthing. The baby's head is squeezed through the birth 21 canal. You can get a little bit of bleeding under those 22 circumstances. 23 So my view, it wasn't significant, and 24 certainly played no part in the death. 25 MR. MARK SANDLER: Let me ask you a

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1 little bit more about asphyxia, because we see the 2 designation as asphyxia, as a cause of death, figures 3 prominently in a number of cases that will be discussed 4 both by you and by your colleagues on each side of you. 5 Could it be said that asphyxia is -- is a 6 benign description of a cause of death, in that it could 7 refer to virtually any case in which a young person has 8 died? 9 DR. JACK CRANE: Well, as I indicated, we 10 tend to use it indicating mechanical interference with -- 11 with breathing. Now I am -- I suppose, in theory, you 12 could use it, for example, say you had a child who 13 suffered a severe epileptic fit and wasn't breathing as a 14 result of that. 15 You might say, Well it died an asphyxial 16 death. I think the difficulty is, that again, this term, 17 perhaps, is often misrepresented, and the issue of the 18 term, certainly to lay people, might imply some sort of 19 third party involvement; that something has happened; 20 something has been done to cause this. 21 So it -- it's -- in that term, I think it 22 can be misinterpreted, and that's why I don't think it's 23 a good term to use. 24 MR. MARK SANDLER: Apart from -- 25 COMMISSIONER STEPHEN GOUDGE: Can I just

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1 ask a question about that, Dr. Crane? Pathologists, I 2 take it -- forensic pathologists -- do not intend third 3 party involvement when they use the term asphyxia? 4 DR. JACK CRANE: Well, my view is they 5 probably shouldn't use it at all. 6 COMMISSIONER STEPHEN GOUDGE: Right. 7 DR. JACK CRANE: For example, if the 8 asphyxia is induced by compression of the neck -- 9 COMMISSIONER STEPHEN GOUDGE: Right. 10 DR. JACK CRANE: -- then the cause of 11 death should be given compression of the neck, making it 12 quite clear the mechanism. If it's due to a plastic bag 13 being put over their head, the cause of death is plastic 14 bag suffocation. 15 So there you're being specific about what 16 has caused the death, rather then using a vague term 17 which is open to, perhaps, misinterpretation. 18 COMMISSIONER STEPHEN GOUDGE: Yes, the 19 reason I wanted to ask the question is, that in the 20 answer you gave previously, you were approaching it from 21 the perspective of the listener; that is, how would the 22 lay listener hear the term asphyxia, and you were 23 concerned that the layperson might interpret that to mean 24 third party involvement. 25 DR. JACK CRANE: Yes.

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1 COMMISSIONER STEPHEN GOUDGE: How do 2 forensic pathologists guard against having their language 3 misinterpreted that way? I mean, that's a very general 4 question, but it's part of the puzzle for me of how this 5 expert evidence gets communicated in a way that doesn't 6 produce a misleading conclusion on the part of a 7 listener? 8 DR. JACK CRANE: Well there -- there are 9 two (2) ways. First of all, explaining the terms that 10 you use in your autopsy report. So if you're saying that 11 someone, for instance, died of asphyxia, then you should 12 explain in your report what precisely you mean by that. 13 COMMISSIONER STEPHEN GOUDGE: And if you 14 mean simply cutting off the airway and stopping the 15 oxygen flow, then you should say that. 16 DR. JACK CRANE: You should say that. 17 And similarly, if you're giving oral testimony in court, 18 again, explaining precisely what you mean. You must 19 always guard against misinterpretation because although 20 you may know what you mean; that others may not fully 21 understand what you mean. 22 COMMISSIONER STEPHEN GOUDGE: And is part 23 of the forensic training in giving evidence, training 24 about how lay people hear the language that experts like 25 pathologists use?

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1 DR. JACK CRANE: Yes, I mean, I think 2 it's crucial. Writing the commentary or an opinion of a 3 report -- to me is the most important part of the report. 4 I often tell my juniors, for instance, 5 that if you find someone who's been stabbed, you don't 6 need a pathologist with thirty (30) years experience to 7 say that they've been stabbed, but you need the 8 pathologist to say that this wound was caused when the 9 person might have been upright or when they were 10 struggling, the amount of force that's required. 11 So those are the things that the 12 pathologist has to explain and he must be able to do it 13 in a way that lay people understand. 14 And writing a commentary on a report might 15 take me four (4) or five (5) hours to do because you have 16 to go over it again, reread it to make sure that someone 17 else reading it will understand precisely what you're 18 trying to put across. 19 COMMISSIONER STEPHEN GOUDGE: Asphyxia is 20 particularly prone to ambiguity because it may be seen as 21 a term of art by the expert and perceived quite 22 differently by the lay listener. 23 DR. JACK CRANE: That's correct. 24 25 CONTINUED BY MR. MARK SANDLER:

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1 MR. MARK SANDLER: Apart from the 2 concerns about the use of the language -- and we're going 3 to see, Commissioner, as we look at a number of these 4 cases, how asphyxia was used and interpreted both by Dr. 5 Smith and others. 6 Dr. Crane, would you ever use asphyxia 7 alone as a designation of cause of death even with an 8 explanatory note to follow? 9 DR. JACK CRANE: No, I would not. 10 MR. MARK SANDLER: Is it a cause of 11 death? 12 DR. JACK CRANE: No, it's not. It's -- 13 if you like, it's a mechanism whereby the person died but 14 it's not explaining exactly how the death came about. 15 MR. MARK SANDLER: Professor Milroy, do 16 you agree with what Professor Crane has said? Do you 17 ever use asphyxia in your reports and do you ever use it 18 to designate cause of death? 19 DR. CHRISTOPHER MILROY: I don't. I'm 20 moving away from using asphyxia at all. Indeed, in -- in 21 the book that I'm editing with Dr. Pollanen -- in the old 22 days you would have had a chapter that said "asphyxia" or 23 "asphyxial deaths." I'm going to move away from that and 24 not talk about asphyxial deaths but talk more about the 25 mechanism by which the death is brought about, whether

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1 it's obstruction of the airway, compression of the neck. 2 Because I think that the term -- I mean, 3 the original derivation of the word "asphyxia" is from 4 the Greek meaning "absence of the pulse." And it's -- 5 it's actually been changed from absence of the pulse or 6 pulselessness -- I mean, absence of oxygen, so even it's 7 original -- original terminology has changed. 8 So it's not a helpful term and of itself 9 it -- it only indicates a mode of death, it's not a cause 10 of death. 11 MR. MARK SANDLER: And -- 12 COMMISSIONER STEPHEN GOUDGE: Was 1996 13 the old days in your term? 14 DR. CHRISTOPHER MILROY: Nope. No, I'm 15 talking -- we -- we just know that the -- the Greek root, 16 the ancient Greek root of -- of 17 COMMISSIONER STEPHEN GOUDGE: I guess 18 what I am getting at -- 19 DR. CHRISTOPHER MILROY: But -- but -- 20 COMMISSIONER STEPHEN GOUDGE: -- is, was 21 asphyxia much more liberally and less precisely used? 22 DR. CHRISTOPHER MILROY: Ten (10) years 23 ago, no. I was -- well, I would have thought that the 24 change was beginning to occur before then. Indeed, you 25 can go back into the '50s and people say that the

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1 asphyxial signs are not signs of asphyxia. And indeed, 2 in 1974, in a classic textbook of forensic pathology by 3 an American called Lester Adelson, he described what were 4 called the classic signs of asphyxia as the obsolete 5 quintet because none of them were specific. In so-called 6 classic asphyxial death they are absent and they can be 7 present in deaths that aren't asphyxial. 8 And this is one (1) of the problems is 9 that as we've already alluded to the presence of 10 petechiae does not mean asphyxia. And we see them in 11 deaths from heart disease, a whole series of things, and 12 yet people who, for example, have obviously died of what 13 we would call a -- an asphyxial death -- say, they had a 14 plastic bag put over their heads or they put it over 15 their head usually themselves, they have no asphyxial 16 signs. They're -- they're negative signs. 17 So it's -- I think it's very much 18 recognized by forensic pathologists as being an unhelpful 19 term. 20 21 CONTINUED BY MR. MARK SANDLER: 22 MR. MARK SANDLER: And in the cases -- 23 and I won't take you to them now because we'll be dealing 24 with them tomorrow, but in the cases that you reviewed as 25 the primary reviewer, did you have concern about the use

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1 of "asphyxia" and how it was interpreted both by Dr. 2 Smith and -- and others? 3 DR. CHRISTOPHER MILROY: Very much so. I 4 mean, just to -- I would say, I've always worried that if 5 you put the term "asphyxia" down people will think you're 6 talking about me -- mechanical asphyxia and that it has 7 potentially sinister overtones that there is a third 8 party involved in the death, so one's got to be very 9 aware of that. 10 And the diagnostic criteria used to 11 establish what was called the diagnosis of asphyxia, in 12 my opinion, were meaningless; they were non-specific 13 findings that were converted into evidence of asphyxia. 14 MR. MARK SANDLER: All right. And, Dr. 15 Butt, in the cases that you were the primary reviewer on, 16 did you have a similar concern? 17 DR. JOHN BUTT: I did. I -- I can only 18 agree with what has been said. 19 Let me give a quick example. If you go to 20 a textbook of medicine rather than a textbook of 21 pathology, you'll find a much larger collection of 22 asphyxia-related conditions than you will in a pathology 23 textbook. 24 And probably, the term "anoxia" is a 25 better general term, but there are a whole range of

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1 causes, for example, asphyxiating gases, such as hydrogen 2 sulphide gas. So the term is far too general in itself. 3 And I think the other explanations cover the points. 4 MR. MARK SANDLER: All right. Now, 5 Professor Crane, I'm going to take you back if I -- if I 6 may to the case of Joshua. And if we could look together 7 at the testimony of Dr. Smith in the preliminary inquiry 8 that was conducted here in Canada, you have summarized 9 your view of the testimony at page 4 of your medicolegal 10 report. But what I intend to do is take you to the 11 testimony itself and discuss what it is that -- that was 12 said. 13 So if you look with me back at Tab 6 of 14 your binder, which is the Overview Report again, 143053, 15 and I'm going to take you to page 64. And you'll see at 16 paragraph 163, Dr Smith's testimony is summarized or 17 reproduced, 163. 18 "Q: And what was the cause of death 19 with respect to the infant, Dr. Smith? 20 A: Yes, in my report I have attributed 21 Joshua's death to asphyxia. 22 Q: Thank you. Is asphyxia consistent 23 with suffocation, Dr. Smith? 24 A: Well, suffocation is one (1) form 25 of asphyxia. Asphyxia is a more

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1 generic term which incorporates both 2 impaired supply and/or impaired 3 utilization of oxygen by the tissues in 4 the body of which suffocation is simply 5 one (1) mechanism. 6 Q: Were your post-mortem findings 7 consistent with the infant being 8 suffocated or smothered by someone 9 else? 10 A: Yes." 11 And then: 12 Q: "Does an infant of this age, in 13 your experience, suffocate himself?" 14 On to the next page and then Dr. Smith 15 indicates that except in unusual circumstances one (1) 16 doesn't suffocate oneself. 17 And then skipping down four (4) questions 18 and answers: 19 "Q: Did you -- did your post-mortem 20 reveal anything unusual that caused you 21 concern with respect to whether this is 22 a non-accidental or an accidental 23 suffocation? 24 A: Let me make a couple of statements 25 about that. First of all, I can't tell

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1 you for sure how the asphyxia occurred. 2 You suggested suffocation; I can't tell 3 you for sure it's suffocation though I 4 am certainly highly suspicious of 5 that." 6 So that's the first statement. 7 "The second is that there was some 8 microscopic evidence of haemorrhage in 9 the neck tissues and that is certainly 10 a disturbing finding which would lend 11 support to the suggestion or the 12 hypothesis that this is a suffocation- 13 type of a death." 14 Could you comment on that testimony, 15 please? 16 DR. JACK CRANE: Well, I think if you're 17 going to -- to give a cause of death and you have to 18 explain how the death came about. And I don't think that 19 you can give various possibilities; either you know how 20 it came about or you don't. So you can't say it might be 21 suffocation, it might be smothering, it might be 22 compression of the neck. I mean, a pathologist can't do 23 that. If you don't know how someone died well then you 24 say I don't know. 25 And if Dr. Smith was basing the diagnose

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1 of asphyxia on those various signs, none of those signs, 2 in my view, indicated an asphyxial death. 3 Now what I would say is that sometimes you 4 can suffocate or you can smother a child, or they may 5 suffocate or smother accidentally, and not find any marks 6 at all; that -- that can happen. But from a pathology 7 point of view, you can't suppose that that happened 8 without any pathological evidence. 9 MR. MARK SANDLER: Well, several 10 questions arising out of that. The first is that would 11 you feel comfortable in this case saying if asked, that 12 one (1) can't exclude these various possibilities but the 13 pathology doesn't support any one (1) of them? 14 DR. JACK CRANE: No, I wouldn't do that 15 at all. 16 MR. MARK SANDLER: All right. How -- 17 COMMISSIONER STEPHEN GOUDGE: How would 18 you answer the question? 19 DR. JACK CRANE: Well, I think you say 20 there is no evidence that this child was suffocated or 21 smothered, because there is no evidence. There is no 22 evidence that this child suffered any degree of airway 23 obstruction at all. 24 25 CONTINUED BY MR. MARK SANDLER:

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1 MR. MARK SANDLER: All right. And when 2 he's asked by the prosecutor that -- when he says: 3 "I've attributed his death to asphyxia. 4 Is asphyxia consistent with 5 suffocation? Is it consistent with 6 suffocation? Is it consistent with 7 smothering?" 8 And he says, "Yes." Do you have any 9 concern about the use of the term "consistent", leaving 10 aside asphyxia in the context of these kinds of questions 11 and answers? 12 DR. JACK CRANE: I think that 13 pathologists in general frequently use the term 14 "consistent with", and I think probably I'm as guilty as 15 any other pathologist in using the term. 16 The -- the difficulty with using that 17 term, in a very general way, is that again, you may be 18 conveying to the court and to the jury that because the 19 pathologist is saying something is consistent with, that 20 equals that that has been the cause of it. 21 So I think you need to be very careful 22 when using that term. 23 MR. MARK SANDLER: What can "consistent 24 with" mean? I mean, what's the range of meanings as you 25 understand it?

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1 DR. JACK CRANE: Well, it can mean that 2 it's consistent with this or a hundred (100) other 3 possibilities. Or it may be that it's consistent with 4 this but not consistent with -- with something else. 5 So probably it's better to use -- to use 6 the term the other way around. That if you say something 7 is not consistent with a particular finding then I think 8 that's more helpful then saying something is "consistent 9 with." 10 MR. MARK SANDLER: All right. And when 11 you -- when you read the testimony that I have outlined 12 for you just a moment ago, do you have a concern about 13 how that testimony would be interpreted by the court? 14 DR. JACK CRANE: Yes. I mean, by saying 15 that the post-mortem findings were consistent with the 16 infant being suffocated or smothered by someone else and 17 by answering that in the affirmative, the impression is 18 that that is how this child met his death. Someone else 19 suffered -- suffocated or smothered the child. 20 COMMISSIONER STEPHEN GOUDGE: How should 21 that be answered if it were being answered properly? 22 DR. JACK CRANE: Well, I think what you 23 would have to say, in my view, is that there is no 24 pathological evidence to indicate that this child was 25 suffo -- suffocated or smothered.

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1 However, it is recognized that you can 2 effect suffocation of a child, which may not be 3 associated with any pathological changes. 4 5 CONTINUED BY MR. MARK SANDLER: 6 MR. MARK SANDLER: In other words, the 7 pathology just doesn't support it? 8 DR. JACK CRANE: That's correct. 9 MR. MARK SANDLER: Though can't exclude 10 it? 11 DR. JACK CRANE: But can't exclude. 12 MR. MARK SANDLER: What about the use of 13 the language in the court of law: 14 "I'm certainly highly suspicious of 15 suffocation and that the microscopic 16 evidence of hemorrhage in the neck 17 tissues was a disturbing finding that 18 would lend support to the hypothesis of 19 suffocation." 20 What do you say both as to the use of 21 language and about the substantive opinion being 22 expressed? 23 DR. JACK CRANE: Well, I think that in my 24 view it's inappropriate for the pathologist to use terms 25 like "I'm highly suspicious of." Again, I think that may

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1 have an inappropriate or -- an inappropriate effect on a 2 jury. 3 This expert is very suspicious of how this 4 occurred. 5 COMMISSIONER STEPHEN GOUDGE: 6 Inappropriate in the sense that the jury may conclude 7 that the pathologist is more certain then the pathologist 8 really is? 9 DR. JACK CRANE: Yes, I -- I think that's 10 right. It's -- it's -- again, it's how someone else 11 might interpret the terms that -- that you are using. 12 COMMISSIONER STEPHEN GOUDGE: How should 13 a pathologist articulate the level of certainty that he 14 or she may have -- 15 DR. JACK CRANE: Well -- 16 COMMISSIONER STEPHEN GOUDGE: -- when 17 it's less than 100 percent certain. 18 DR. JACK CRANE: I think that if you are 19 giving an opinion on something I think you have to try 20 and give some indication as to how sure you are. Now 21 sometimes that isn't possible and -- and you have to be 22 open and honest and say, Well, I don't know; this is a 23 possibility, but there are many other possibilities as 24 well. So I think you have to be very careful and be 25 precise about the language you use.

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1 COMMISSIONER STEPHEN GOUDGE: Should the 2 best practice, Dr. Crane, ever track the language of 3 certainty -- relative certainty that lawyers use in 4 criminal cases; that is, beyond a reasonable doubt or to 5 take the civil standard of proof, more probable than not? 6 DR. JACK CRANE: I think that if we are 7 giving an opinion on perhaps how an -- an injury might 8 have occurred, I think that you must try and give some 9 indication about how sure you are, not whether you should 10 use the legal standard or not. 11 Certainly, nothing in medicine is ever 100 12 percent but you -- you may be able to say that in my 13 opinion, all the features indicate that this injury was 14 caused by a particular thing. So, again, what you're 15 doing is you're laying down the basis on which you're 16 coming to that conclusion. 17 So, for example, let me say you find a 18 curved laceration on the scalp and a circular depressed 19 skull fracture of the underlying skull and there's a 20 blood-stained hammer found at the scene. 21 What you may say is that the appearances 22 of the scalp injury and the injury to the skull would 23 indicate to me that an object with a circular head, such 24 as a hammer, caused this injury. So there you are trying 25 to explain how you come to the conclusion that you think

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1 that that weapon could have caused the injury that you 2 found. 3 COMMISSIONER STEPHEN GOUDGE: Think with 4 what level of certainty? 5 DR. JACK CRANE: Yes. 6 COMMISSIONER STEPHEN GOUDGE: No, but do 7 you try to articulate how certain you are that it was 8 caused by an instrument with a circular head? 9 DR. JACK CRANE: Well, what I'm saying is 10 that -- I'm saying that those features would indicate 11 that the injury was caused by a weapon with a circular 12 head. 13 I'm not saying that it was that particular 14 hammer, but I'm saying it's consistent with having been 15 made or -- or was -- was caused by a weapon that had a 16 circular head. 17 COMMISSIONER STEPHEN GOUDGE: Thank you. 18 19 CONTINUED BY MR. MARK SANDLER: 20 MR. MARK SANDLER: All right. Professor 21 Milroy, I know that "consistent with" is a -- is 22 something that you feel very strongly about. 23 What would you like to tell the 24 Commissioner about that term and what has been said about 25 it in England and Wales?

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1 DR. CHRISTOPHER MILROY: Well, the -- in 2 fact it was -- the Court of Appeal has made comment on 3 the use of the term "consistent with", saying it can be 4 misleading in a case, in fact, which both Professor Crane 5 and myself were involved in on behalf of an appellant, 6 and they were critical of it because it can be misleading 7 because I think "consistent with" can mean anything from 8 highly unlikely but possible to an almost near certainty. 9 So I think one (1) has got to be very careful about using 10 the term "consistent with". 11 It's interesting that the -- the Forensic 12 Science Service have developed a gradation of likelihood 13 with their evidence and they actually -- I have to say we 14 haven't put it into effect in pathology and it's 15 something that I think we may have to look at again where 16 they say some things provides no support, slight 17 support, moderate support, strong support, or very strong 18 support for a proposition. 19 COMMISSIONER STEPHEN GOUDGE: Is that 20 amenable to pathology or is it -- 21 DR. CHRISTOPHER MILROY: I think it -- I 22 think it could be amenable to pathology, yes. 23 I mean, for example, in Professor Crane's 24 example of the curved laceration with the underlying 25 circular fracture, one (1) would say that -- that this

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1 would be -- this would be very strong support that it was 2 caused by a circular object. And for -- I think for the 3 -- for -- for suggesting that this case was suffocation 4 you would provide there is no pathology support to say 5 it, but it -- I cannot -- I cannot exclude that. 6 COMMISSIONER STEPHEN GOUDGE: The 7 pathology doesn't exclude. 8 DR. CHRISTOPHER MILROY: The pathology 9 doesn't exclude it. 10 11 CONTINUED BY MR. MARK SANDLER: 12 MR. MARK SANDLER: And, Professor Milroy, 13 do you share the view of Professor Crane that -- that it 14 is problematic to be describing even your gradation of 15 belief in terms of high suspicion? 16 DR. CHRISTOPHER MILROY: That's an 17 inappropriate comment because it's not based on any 18 scientific objective pathology evidence. It seems to be 19 putting your own value onto other evidence. 20 COMMISSIONER STEPHEN GOUDGE: It would 21 also be an ambiguous way of grading your level of 22 certainty even if there was pathology -- 23 DR. CHRISTOPHER MILROY: Yes. 24 COMMISSIONER STEPHEN GOUDGE: -- to 25 support it.

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1 DR. CHRISTOPHER MILROY: Yes. 2 3 CONTINUED BY MR. MARK SANDLER: 4 MR. MARK SANDLER: And just while we're 5 on this topic, I'm wondering if the registrar can bring 6 up PFP151010? And this is the Puaca case, even though 7 it's spelled Puaca, my pronunciation has been corrected 8 by Professor Milroy. And is this the case that you have 9 made reference to in the English Court of Appeals that 10 address consistent? 11 DR. CHRISTOPHER MILROY: That's correct. 12 I think it's line 42, isn't it, that -- 13 MR. MARK SANDLER: If I could ask the 14 registrar to go to page 11, and if we look at paragraphs 15 41 and 42 of the judgment, the court said this: 16 "We turn now to the evidence given by 17 Dr. Heath during the course of the 18 trial. Before looking at the detail, 19 we set out our strong criticism of the 20 way in which his evidence was given. 21 We shall see that over and over again 22 Dr. Heath said that various post-mortem 23 findings were consistent with or were 24 signs of asphyxia. He was 25 cross-examined about his evidence often

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1 vehemently. That challenge continued 2 before us. What, unfortunately, was 3 not made clear during most of his 4 evidence was whether Dr. Heath was 5 referring to asphyxia generally or 6 asphyxia by upper airway obstruction. 7 We returned to that later. What gives 8 us even greater concern is a concession 9 which was made by Dr. Heath in re- 10 examination, although the answer was 11 anticipated in cross. In re- 12 examination he said that the findings 13 which he described as consistent with 14 or signs of asphyxia were also 15 consistent with the cause of death 16 being an overdose. In the light of 17 that answer, the evidence about his 18 findings, excluding the evidence of 19 damage to the muscles, was, in our 20 view, largely irrelevant. It could 21 have been relevant to a rigor- mortis 22 theory of the cause of the injuries to 23 the muscles advanced tentatively by Dr. 24 Carey, but no more. If before the 25 start the evidence, Mr. Coker

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1 (phonetic) had known the answer which 2 Dr. Heath was to give during the course 3 of re-examination, a great deal of time 4 would have been saved and the risk of 5 jury confusion would have been 6 substantially reduced. This is another 7 very troubling feature of this case. 8 Mr. Coker submitted that an expert's 9 entitled to say what he has found is 10 consistent with something and that has 11 probative value. Whereas, 12 inconsistency is often probative, the 13 fact of consistency is quite often of 14 no probative value at all. In this 15 case, his evidence of consistency had 16 no probative value, assuming the 17 correctness of this answer in re- 18 examination. We consider that there is 19 a very real danger in educing before a 20 jury dealing with a case such as the 21 present evidence of matters which are, 22 quote: "consistent", closed quote, with 23 a conclusion, at least unless it is 24 made very clear to them that such 25 matters do not help them to reach the

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1 conclusion. If it introduced in 2 evidence, and particularly if it is 3 given some emphasis, a jury may well 4 think that it assists them in reaching 5 a conclusion, for why otherwise are 6 they being told about it. We are also 7 not convinced that the summing up was 8 as clear as it could have been on this 9 point." 10 And is that the passage that you make 11 reference to? 12 DR. CHRISTOPHER MILROY: Yes. 13 MR. MARK SANDLER: And -- and while we're 14 in the -- the neighbourhood of -- of Puaca, perhaps we 15 can use that as an -- as an opportunity to elicit from 16 Professor Milroy and Professor Crane the existence of one 17 (1) aspect of oversight that does -- that does occur in 18 England and Wales. Dr. Heath was referred to in this 19 judgment. 20 Professor Crane, was Dr. Heath the subject 21 of disciplinary proceedings in England and Wales? 22 DR. JACK CRANE: Yes, he was. 23 MR. MARK SANDLER: Who were the 24 complainants in relation to that matter? 25 DR. JACK CRANE: Myself, and Professor

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1 Milroy, and Professor and Professor Whitman. 2 MR. MARK SANDLER: All right. And, 3 Professor Milroy, what was essence the -- the nature of 4 the complaint against Dr. Heath? 5 DR. CHRISTOPHER MILROY: Well, there were 6 -- there were actually two (2) cases. One (1) of them 7 was Puaca. And in fact, in respect to Puaca, I was not a 8 complainant because I came into the case after the 9 complaint had been made. Mr. -- Mr. Puaca had been 10 convicted of murder and was serving a sentence, and I 11 came in on the appeal. 12 The other case involved a 13 misinterpretation of injuries, so that a prosecution was 14 made at the -- the central criminal court. And we raised 15 concerns about that case, stating that, in our view, 16 there were incorrect interpretations by Dr. Heath. 17 And as a consequence of that, and then a 18 complaint made about Puaca, a disciplinary tribunal; that 19 there was held to be a prima fascia case in the 20 disciplinary tribunal was held, and we were witnesses at 21 that tribunal. 22 MR. MARK SANDLER: And Professor Crane, 23 before what forum was the disciplinary proceeding take 24 place? 25 DR. JACK CRANE: Sorry?

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1 MR. MARK SANDLER: Before what forum did 2 discipline take place; was this under the auspices of the 3 Home Office? 4 DR. JACK CRANE: That's correct. The 5 Home Office. 6 MR. MARK SANDLER: All right. And what 7 was the result of the disciplinary proceedings? 8 DR. JACK CRANE: The disciplinary panel 9 found against Dr. Heath. But he resigned from the Home 10 Office register. So no further action was taken against 11 him. 12 MR. MARK SANDLER: And I take it that the 13 disciplinary process, under the Home Office rules, 14 exposes the person who's the subject of the complaint 15 from anything from an admonition to being struck from the 16 register that Professor Milroy described earlier. 17 Is that right? 18 DR. JACK CRANE: That's correct. 19 COMMISSIONER STEPHEN GOUDGE: The Home 20 Office register. 21 DR. CHRISTOPHER MILROY: The Home Office 22 register, yes. 23 24 CONTINUED BY MR. MARK SANDLER: 25 MR. MARK SANDLER: All right. Which

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1 effectively means you can't practice forensic pathology? 2 DR. JACK CRANE: You can't practice as a 3 forensic pathologist, but it doesn't at that -- it 4 doesn't remove your license. 5 COMMISSIONER STEPHEN GOUDGE: You're not 6 removed from the college? 7 DR. JACK CRANE: Well -- the college 8 doesn't really have a disciplinary procedure -- 9 COMMISSIONER STEPHEN GOUDGE: Right. 10 DR. JACK CRANE: -- but the general 11 medical counsel -- 12 COMMISSIONER STEPHEN GOUDGE: Right. 13 DR. JACK CRANE: -- which is the 14 equivalent of the College of Physicians and Surgeons of 15 Ontario, wouldn't at that stage, necessarily remove your 16 licence. 17 Although, as -- a complaint could be made 18 separately to the General Medical Council which covers 19 all medical practice. 20 MR. MARK SANDLER: And we'll talk about 21 the General Medical Council and the disciplinary process 22 that already exists there, on Wednesday. 23 Just for the benefit of the Commissioner 24 and parties, the Heath decision is found, and I won't ask 25 the Registrar to take us there, at PFP150178.

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1 COMMISSIONER STEPHEN GOUDGE: Because I'm 2 curious about it. Who conducts the hearing that the Home 3 Office instigates? 4 DR. CHRISTOPHER MILROY: Well, the Home 5 Office, it's -- 6 COMMISSIONER STEPHEN GOUDGE: What are 7 disciplines of the people that do it is really what I want 8 to know? 9 DR. CHRISTOPHER MILROY: Yes. Well, the - 10 - the tribunal is established on the prerogative powers of 11 the Crown; that's the first thing. And it's been 12 subjected to judicial review on two (2) occasions, and 13 held to be a lawful process. That's the first thing. 14 They always have a Legal Chair, and the 15 last two (2) -- there have been three (3) -- the last two 16 (2) have been with the Senior Queen's Counsel. So they 17 are the Legal Chair. 18 In case of Dr. Heath, there was a forensic 19 scientist, who'd actually been the Chief Forensic 20 Scientist of the Forensic Science Service. 21 There was a senior, recently retired, 22 police officer at the rank of Superintendent. And we used 23 a non-UK -- in fact this case is Swiss -- forensic 24 pathologist. And that was the tribunal panel. 25

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1 CONTINUED BY MR. MARK SANDLER: 2 MR. MARK SANDLER: All right. Professor 3 Crane, and deliberately so, I've taken you off at times, 4 to address some of the systemic issues that are of 5 relevance to the inquiry. 6 If I can take you back to page 65 of the 7 overview report in the Joshua case -- I assure you Dr. 8 Butt, we're going to work you harder tomorrow, and we're 9 not talking about the British Isles. 10 Now at page 63 -- 11 COMMISSIONER STEPHEN GOUDGE: 143053. 12 13 CONTINUED MR. MARK SANDLER: 14 MR. MARK SANDLER: I'm sorry. Thank you. 15 So if you would look with me at the last 16 question on the page, page 65, Crown Counsel asks Dr. 17 Smith: 18 "Did you find any fractures? Did you 19 find any fractures with respect to this 20 infant?" 21 And he answers: 22 "Yeah, now those are not directly 23 related to the cause of death." 24 And stopping there, you'd agree with that? 25 DR. CHRISTOPHER MILROY: Yes, that's

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1 correct. 2 MR. MARK SANDLER: He says: 3 "They can be tied in indirectly, by 4 making some suppositions. But they're 5 not directly related to the cause of 6 death. 7 The fractures were found in two (2) 8 areas. There was a fracture of the 9 distal left tibia, which would be down 10 by the ankle, and that was evident 11 radiographically, as well as 12 microscopically." 13 And you've already described that in your 14 testimony. 15 DR. CHRISTOPHER MILROY: Yes. 16 MR. MARK SANDLER: And then he says: 17 "There was also a healing skull 18 fracture, which I'm not aware was 19 evident radiographically. That 20 certainly wasn't evident to my naked eye 21 observation. It was a chance finding on 22 microscopic examination. Those are both 23 healing fractures." 24 And he goes on to say that he couldn't -- 25 he couldn't say that it was definitely non-accidental as

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1 opposed to accidental in the testimony that followed. 2 What do you say about the presence of a 3 skull fracture as described for -- by Dr. Smith in his 4 testimony? 5 DR. JACK CRANE: Well, firstly, the 6 radiologist who conducted the skeletal survey found no 7 evidence of a skull fracture. Dr. Smith, when he examined 8 the skull at the time of the autopsy, specifically 9 mentioned in his report that there was no skull fracture, 10 and then in his testimony, he indicates that he finds 11 under the microscope, evidence of a skull fracture. 12 To me, it's almost bordering on the bizarre 13 that a chance finding on looking down the microscope on a 14 section of the skull, you would find a skull fracture. It 15 just is incredible that this would happen. 16 COMMISSIONER STEPHEN GOUDGE: Would you be 17 ever looking down your microscope after you had completed 18 your autopsy report? 19 DR. JACK CRANE: If, for instance, you saw 20 some abnormality in the skull which you suspected was a 21 fracture and you wanted to determine how old it was, then 22 what you would do is you would take that little section of 23 bone out and look at it under the microscope. But the 24 chances of taking the skull out and then taking a section 25 anywhere from it and finding a fracture is just beggar's

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1 belief. 2 3 CONTINUED MR. MARK SANDLER: 4 MR. MARK SANDLER: All right. Now you've 5 addressed the issue of the skull fracture in your report, 6 and I'll take you back to it at Tab 4, PFP135527, at page 7 5. 8 And if one looks at the last paragraph, can 9 you advise the Commissioner what your own investigation of 10 this purported skull fracture yielded? 11 DR. JACK CRANE: Yes, I mean, as I said, I 12 found this finding, in relation to the testimony, very 13 surprising. So I had the opportunity of looking at the 14 slide that Dr. Smith had looked at, in relation to the 15 microscopic finding, and it was my view that this did not 16 represent a skull fracture. 17 MR. MARK SANDLER: What did it represent, 18 in your view? 19 DR. JACK CRANE: What I think it represent 20 is a suture between the bones of the skull. Now if you 21 consider the skull of an infant, it is not one (1) single 22 bone, but it is made up of a number of bones that are 23 separated by sutures or spaces and over a period of time 24 those bones fuse together. And for those of -- who have 25 handled an infant, if you put your finger on the top of an

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1 infant's head, you can feel a little soft spot and that's 2 because the bones have not all fused. 3 Now if you take a section between two (2) 4 of the bones, you will find a gap. And it's my belief 5 that that's what Dr. Smith, incorrectly, interpreted as a 6 skull fracture. 7 MR. MARK SANDLER: Now we know, and it's 8 reflected at page 4 of your report, that this case was 9 reviewed by Dr. Pollanen who produced a consultation 10 report that, in essence, concluded that in his opinion 11 there was no skull fracture; am I right? 12 DR. JACK CRANE: That's correct. 13 MR. MARK SANDLER: And -- and as a result 14 of that consultation report, was an exhumation done of 15 Joshua's baby -- 16 DR. JACK CRANE: That's correct. 17 MR. MARK SANDLER: -- body? And as a 18 result of the exhumation, did that yield additional 19 information about this skull fracture? 20 DR. JACK CRANE: Well, Dr. Pollanen's view 21 was that there was no skull fracture, but the skull was 22 retained, and I had the opportunity to examine the skull. 23 And as a result of my examination, I concluded that there 24 was no skull fracture. 25 MR. MARK SANDLER: All right.

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1 COMMISSIONER STEPHEN GOUDGE: That simply 2 confirmed the view that you had formed looking at the 3 slide? 4 DR. JACK CRANE: That's correct. Yes. 5 6 CONTINUED BY MR. MARK SANDLER: 7 MR. MARK SANDLER: And confirmed the view 8 that Dr. Pollanen had expressed in his consultation report 9 before the exhumation had taken place? 10 DR. JACK CRANE: Yes. 11 COMMISSIONER STEPHEN GOUDGE: Did it 12 increase your level of certainty? 13 DR. JACK CRANE: Well, as I said, the fact 14 that no skull fracture had been seen either in x-ray or 15 grossly, I mean, the chances of finding a skull fracture 16 were so -- were so, you know, remote that I was -- I was 17 pretty certain then that there was no skull fracture. 18 MR. MARK SANDLER: All right. Now, if 19 you'd turn to page 6 of your report? And I take it -- 20 just to kind of close this off for a moment -- I mean, one 21 (1) of the things that -- that you were able to evaluate 22 as a result of the exhumation, is the location from which 23 the histology had been taken at the original autopsy, and 24 whether it was taken in the location where you'd expect 25 the suture, is that right?

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1 DR. JACK CRANE: That's correct, yes. 2 MR. MARK SANDLER: Okay. Now you've 3 reflected in the second paragraph of page 6, that: 4 "It's unclear when Dr. Smith found the 5 so called skull fracture, as there's no 6 mention of microscopic examination of 7 the skull in his final autopsy report. 8 It would thus seem that the section was 9 taken at the time of autopsy, but not 10 examined. Why was this? Dr. Smith 11 clearly knew about the fracture prior to 12 giving testimony in court. It would 13 appear that this additional evidence was 14 not served in the form of a 15 supplementary report to the prosecuting 16 authorities, and through them to the 17 defence." 18 Now stopping there for a moment, I'm going 19 to show you in -- in a few moments that -- that indeed it 20 would appear that verbal disclosure was given by Dr. Smith 21 to the Crown and through the Crown to the defence; that 22 Dr. Smith was -- subsequent to his post-mortem report, 23 alleging that a skull fracture existed. 24 So assume with me, for the purposes of our 25 discussion, that -- that oral disclosure was given through

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1 Dr. Smith to the Crown and through the Crown to the 2 defence, and -- and you will see some exchange of 3 correspondence involving the Crown that expresses concern 4 about the inability to get that in writing from Dr. Smith. 5 Tell us about what you expect to be done in 6 those circumstances where a subsequent review of the 7 histology does show, in your view, something that changes 8 the opinion expressed in your earlier report? 9 DR. JACK CRANE: Well I think that what 10 Dr. Smith initially done was -- was correct. In other 11 words, he contacted the authorities and said, I have found 12 something. And I think that's what I would expect any 13 pathologist to do if they find something new. 14 Now I -- it's all very well doing that 15 verbally, and I -- and I think it's right to do it 16 verbally, because I -- I think speed is often important, 17 that you alert the authorities as quickly as possible. 18 But that verbal exchange must be followed 19 up by the pathologist producing a supplementary report. A 20 supplementary written report indicating what was found, 21 when it was found, the circumstances under which it was 22 found, and of course, the significance of those findings. 23 MR. MARK SANDLER: All right. And for all 24 the reasons that you've indicated earlier in your 25 testimony?

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1 DR. JACK CRANE: Yes. 2 MR. MARK SANDLER: All right. If we can 3 come back, and we're almost completed Dr. Smith's 4 testimony -- 5 COMMISSIONER STEPHEN GOUDGE: Do you want 6 to do that before we break? 7 MR. MARK SANDLER: Why don't we take the 8 break at this point, because I'm going to be a -- a few 9 minutes still on -- on this particular case. 10 COMMISSIONER STEPHEN GOUDGE: Okay. Come 11 back at 3:35. 12 13 --- Upon recessing at 3:21 p.m. 14 --- Upon resuming at 3:35 p.m. 15 16 THE REGISTRAR: All rise. Please be 17 seated. 18 COMMISSIONER STEPHEN GOUDGE: Mr. 19 Sandler...? 20 21 CONTINUED BY MR. MARK SANDLER: 22 MR. MARK SANDLER: Thank you. Professor 23 Milroy, I'm going to take you back to the Overview Report 24 at Tab 6. 25 DR. CHRISTOPHER MILROY: Do you mean

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1 Professor Crane? 2 MR. MARK SANDLER: Professor Crane, I'm 3 sorry. 4 DR. CHRISTOPHER MILROY: I am paying 5 attention. 6 MR. MARK SANDLER: That's very good. Just 7 for that I should ask you a question. 8 At page 65 you had analysed a number of the 9 components of what Dr. Smith said in the passage on that 10 page, and just to be clear, in the middle of the page when 11 he says: 12 "There's some microscopic evidence of 13 hemorrhage in the neck tissues; that's 14 certainly a disturbing finding which 15 would lend support to the suggestion or 16 to a hypothesis that this is a 17 suffocation type of a death". 18 Apart from the dialogue that you've had 19 with me and with the Commissioner over the use of 20 language, I take it substantively you disagree that that 21 hemorrhage proves anything? 22 DR. JACK CRANE: That's correct. I think 23 it was a post-mortem ar -- artifact which occurred 24 whenever the tissue was being removed and I don't think it 25 played anything -- or has anything to do with the -- the

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1 death of this infant. 2 COMMISSIONER STEPHEN GOUDGE: Are there 3 microscopic signs that lead you to that conclusion? I 4 mean, is that the way you would come to that conclusion? 5 DR. JACK CRANE: Well, the microscopic 6 slides show some blood at the periphery of the slide -- 7 COMMISSIONER STEPHEN GOUDGE: Right. 8 DR. JACK CRANE: -- which I think is an 9 artifact. 10 There is no evidence of substantive bru -- 11 bruising in the tissues of the neck, which might raise the 12 possibility that pressure has been applied to the neck. 13 COMMISSIONER STEPHEN GOUDGE: And the 14 artifact explanation is consistent with what you see in 15 the slide. The lack of bruising is also consistent with 16 it being an artifact? 17 DR. JACK CRANE: No. Maybe I -- I'll try 18 and explain, Commissioner. Bruising indicates that blood 19 vessels have been damaged -- 20 COMMISSIONER STEPHEN GOUDGE: Yes. 21 DR. JACK CRANE: -- and because of the 22 beating action of the heart, blood leaks out. 23 COMMISSIONER STEPHEN GOUDGE: Right. 24 DR. JACK CRANE: And if you looked at 25 bruising under the microscope you would see red blood

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1 cells because they have been -- the blood vessels have 2 been damaged. 3 Now what we're seeing in the slides that 4 Dr. Smith took is a little bit of bleeding at the very 5 peripheral of where the tissue was taken. And you can 6 imagine if you're taking the tissue then you're going to 7 cut blood vessels, you're going to get some leakage of 8 blood, so that's why I think it's -- it's an artifact. 9 10 CONTINUED BY MR. MARK SANDLER: 11 MR. MARK SANDLER: All right. Whether 12 it's an artifact or whether it's the real item, so to 13 speak, could one say with confidence that this was the 14 real item for the purposes of a post-mortem report? 15 DR. JACK CRANE: No. 16 MR. MARK SANDLER: If you can turn to page 17 68, and I'm looking with you, if I may, at the last 18 question on that page. Question: 19 "Excuse me for a moment, now you may 20 have already answered this indirectly, 21 Dr. Smith, but are you able to express 22 an opinion as to what is more probable 23 in this case, accidental or non- 24 accidental death?" 25 "A: If I take all of the information

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1 and not just limit the autopsy finding 2 simply to those related to asphyxia, 3 only in my opinion it's more likely that 4 Joshua died on a non-accidental basis 5 than on an accidental basis; however, I 6 can't be absolute on that. And if I 7 dare use a term which is one (1) that 8 you can better understand, that is, 9 beyond a reasonable doubt, I can't use 10 that kind of terminology to support my 11 opinion. I am certainly very suspicious 12 of a non-accidental cause of Joshua's 13 death. If I were a betting man I would 14 bet that it is, but that's based on pure 15 probability alone, but I can't go to a 16 level of certainty using the kind of 17 terminology that you're familiar with." 18 And in cross-examination, he's asked in the 19 middle of the page, what are the pieces of information 20 that he relies upon in risking your hard-earned coin. In 21 other words, that he was -- that he was a betting man in 22 favour of non-accidental death. 23 And in the passages that follow, he makes 24 reference to the evulsion fracture, he makes reference to 25 the skull fracture and makes reference to the neck

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1 hemorrhage. Could you comment on the various aspects of 2 his testimony given in the passages that I've just 3 reviewed for you? 4 DR. JACK CRANE: Well -- well, first of 5 all, this is not, you know, a day at the races and I -- I 6 think that it's quite inappropriate to use terms such as, 7 if I were a betting man. A pathologist is there to give 8 expert opinion on his findings. He's not there to say 9 what he thinks if he was betting on something. So my own 10 view is that that was a totally inappropriate phrase to 11 use. 12 MR. MARK SANDLER: All right. Now what 13 about -- leave aside the expert opinion that you've 14 already expressed as to the role that the hemorrhages 15 should play. We've heard both Dr. Smith and you say that 16 the -- that the fracture -- and let's assume for the 17 purposes of the question that the skull fracture exist -- 18 that the -- that the fracture in the left -- the tibia, 19 factored into Dr. Smith's opinion that it's more probable 20 that this is a non-accidental death. 21 How do you deal -- and I phrase the 22 question badly, but let me put it this way. Is it 23 appropriate for a forensic pathologist to factor into a 24 question as to the likelihood of non-accidental death a 25 piece of the pathology that does not relate to cause of

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1 death? 2 DR. JACK CRANE: I think it's probably 3 fair that pathologists will often consider cases in the 4 round; they have to consider all the evidence that's 5 available to them and I think that's right and proper. 6 But if we consider the -- the tibial 7 fracture, this has played, in my view, no part at all in 8 the cause of death. So, therefore, to factor it into the 9 cause of death is inappropriate. It certainly is a 10 significant finding, it's one that has to be explored and 11 hopefully explained, but as regards what the cause of 12 death is, it has no relevance whatsoever. 13 COMMISSIONER STEPHEN GOUDGE: Suppose 14 there had been significant evidence of old child abuse 15 injuries, nothing to do with the cause of death, at some 16 point, does it get to be information that the pathologist 17 can legitimately factor into the cause of death analysis? 18 DR. JACK CRANE: No, it's information that 19 he can legitimately factor into his report and say that 20 there's evidence that this child has been abused in the 21 past. But you can't then make the leap of faith and say 22 because it's been abused in the past, and although I don't 23 have any evidence to say what the cause of death is, one 24 can say well, then that its -- its death has been due to 25 abuse or to non-accidental injury.

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1 I don't think that you can make that leap. 2 3 CONTINUED BY MR. MARK SANDLER: 4 MR. MARK SANDLER: All right. 5 Now if I can direct you to page 95 of the 6 Overview Report -- sorry, 94. And you'll see at page 94 7 that the Crown on this case engaged in some post- 8 conviction correspondence that has been reproduced in the 9 paragraphs that -- that follow. And she reflects at 10 paragraph 187: 11 "Dr. Smith initially prepared an autopsy 12 report that said there was no injury to 13 the baby's skull. He then later called 14 me to say that upon re-examination of 15 the autopsy slides, he discovered a 16 skull fracture. Again, I requested a 17 written report concerning this fracture, 18 and again, he would not provide it. We 19 were not depending on Dr. Smith to prove 20 the cause the death but rather to rule 21 out certain things. The presence of the 22 skull fracture was, of course, extremely 23 important to the case. Again, I never 24 did get a report about this. Dr. Smith 25 is very quick to condemn other

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1 pathologists who miss things during the 2 post-mortem; this opened the door for 3 the defence to say that he could have 4 missed other things." 5 And just stopping there for a moment, 6 concern is being expressed about the failure of the Crown 7 to the able to elicit a written report. And again, does 8 that raise the same systemic issues that -- that you've 9 raised earlier here? 10 DR. JACK CRANE: Yes. I mean, as -- as I 11 indicated earlier, it was Dr. Smith's responsibility, 12 having found something else after he had completed his 13 report, to ensure that that information was transmitted to 14 the Crown as quickly as possible, and to follow that up 15 with a written report. And it would appear that he -- he 16 didn't do that. 17 MR. MARK SANDLER: All right. And if 18 you'd then go with me to the following page, page 95, and 19 at paragraph 189, Ms. Walsh is -- is addressing one (1) of 20 the more senior Crowns in connection with this file. And 21 in fairness, she says in the second paragraph: 22 "I've had three (3) cases involving Dr. 23 Smith which have caused me concern for 24 reasons I'll set out below. Whether or 25 not these situations may be classified

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1 as going to his competence or 2 credibility may be debatable, but, as I 3 don't know the facts of the present 4 case, I will leave it to you to make the 5 disclosure decision." 6 And this had to do with the disclosure of 7 some of the work on cases on another case that was before 8 the Court. 9 "As you will see in all of these cases, 10 Dr. Smith's involvement adversely 11 affected the Crown's case. I've never 12 seen him say or do anything questionable 13 which had a prejudicial effect on the 14 case for the defence." 15 And you'll see on this following page, page 16 96, she says at the top of the page: 17 "The mother was charged with second 18 degree murder. Again, Dr. Smith did the 19 post-mortem on this infant and indicated 20 the cause of death was asphyxia. There 21 was circumstantial evidence indicating 22 that she had smothered her child. Prior 23 to the prelim, I asked Dr. Smith if he 24 could testify as to which was more 25 likely; accidental or non-accidental.

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1 Given my experience with him, I was very 2 careful to point out that I would only 3 ask such a question if he felt 4 comfortable with it. 5 He took a few weeks to think about it, 6 and when I interviewed him about this 7 just minutes before he took the witness 8 stand, he told me that he felt 9 comfortable saying that this was more 10 likely a non-accidental death. 11 Then when I asked the very same question 12 when he was under oath, he said words to 13 the effect of, Let me express this in a 14 way that you'll understand. I cannot say 15 beyond a reasonable doubt that this was 16 a non-accidental death. 17 She entered a guilty plea to failing to 18 provide necessaries. For what it's 19 worth, I don't trust Dr. Smith, however, 20 as you can see, my reasons have nothing 21 to do with any suggestion that he was 22 predisposed to advocate for the Crown." 23 So, it would appear from -- from this 24 material that -- that the Crown is certainly not taking 25 the position that he was predisposed to advocate or be

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1 over zealous in favour of the Crown. The Crown was taking 2 the position that, if anything, in his testimony, it -- it 3 deviated from her prior understanding that had been given 4 verbally to a point that it prejudiced the success of the 5 Crown's case. 6 Do you see that correspondence and -- 7 DR. JACK CRANE: Yes, I do. 8 MR. MARK SANDLER: -- and its tenor? Any 9 comments about how that relates to some of the systemic 10 issues that you've identified here? 11 DR. JACK CRANE: Well -- well, first of 12 all, I think it's important to say, at the outset, that it 13 doesn't matter which side the pathologist is called for. 14 Whether we're called for the Crown or whether we're called 15 for defence, our prime duty is to the Court, and we're 16 there to act as an independent, impartial witness. 17 And it doesn't matter, as I say whether 18 it's the Crown calls or the defence calls, we still should 19 be giving impartial evidence. 20 It's obviously important whenever we are 21 preparing our reports and perhaps when we're having our 22 consultation before the trial, that whatever side is 23 calling us, they know what we are prepared to say, how far 24 we're prepared to go. Because that might very well decide 25 whether, for instance, the Crown may decide to continue

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1 with a case, they may decide to abandon it. 2 So I think they need to know the 3 pathologist's views; what essentially he's going to say 4 when he gets into the witness box. 5 MR. MARK SANDLER: And I take it -- just 6 stopping there for a moment -- the same would attain to 7 the exchanges that take place with the police prior to a 8 determination being made as to whether a charge should be 9 laid? 10 DR. JACK CRANE: Absolutely. And often 11 that preliminary information if very important for the 12 police in deciding whether they are going to proceed with 13 charges. But quite really there are issues there if the 14 pathologist, perhaps before the trial, is coming on with 15 views strongly supporting the case, and then when he's 16 going into the witness box, is then changing his mind. 17 Now again, in fairness, there may be 18 reasons that one (1) may do this. For example, one (1) 19 may have a particular view about the case, and the defence 20 may produce some evidence. They may say, Well have you 21 considered something else? 22 Under those circumstances, it's right and 23 proper for the pathologist to say, Well no, I didn't 24 consider that, this another explanation, I might concede a 25 point. So it's perfectly legitimate to do that do that,

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1 and it's right and proper that one (1) should do that. 2 But certainly I -- I think it's more 3 problematical if a pathologist says one (1) thing and 4 indicate what he's going to say in court, and then goes 5 into court and says something different. 6 COMMISSIONER STEPHEN GOUDGE: Without 7 providing an explanation? 8 DR. JACK CRANE: That's correct, 9 Commissioner. 10 11 CONTINUED BY MR. MARK SANDLER: 12 MR. MARK SANDLER: And -- and the verbal 13 exchange that took place earlier, however accurately the 14 Crown has described it, or the police has described it, or 15 Dr. Smith has described it, certainly lends -- lends to 16 the inference that, in this case, there's a concern of 17 either the earlier findings being over stated or over 18 interpreted by those involved? 19 DR. JACK CRANE: Yes. 20 MR. MARK SANDLER: I want to ask you about 21 Dr. Pollanen's report which is summarized at page 108. 22 And at paragraph 213, Dr. Pollanen states: 23 "That, in my opinion, there is no 24 definitive cause of death. 25 Specifically, there's no positive

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1 evidence to support manual compression 2 of the face or neck as the cause of 3 death, since no injuries are present. 4 But some forms of homicidal mechanism 5 asphyxia in infants may leave little or 6 no evidence at autopsy, and cannot be 7 excluded on the basis of autopsy 8 findings alone. My examination of the 9 microscopic sections of the neck reveal 10 no evidence of injury. In contrast, Dr. 11 Smith reported that hemorrhages were 12 present in the soft tissue of the neck 13 organs. But these hemorrhages are 14 positioned along the periphery of the 15 tissue, and are adjacent to planes of 16 dissection of the neck. On this basis, 17 these hemorrhages are dissection-related 18 artifacts, rather then injuries. In my 19 opinion, there's no safe inference that 20 could be made on these findings. An 21 important consideration in this case is 22 the scene, since it may have important 23 implications for the cause of death. 24 Specifically, the infant was found face 25 down in a makeshift crib. The crib was

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1 constructed from a playpen using a 2 sleeping bag and a quilt as a sleeping 3 surface. In addition, the mother 4 indicated to the police that the 5 comforter was bunched up at that end of 6 the playpen around his head, and the 7 infant had only recently been sleeping 8 in the playpen, rather than in a 9 bassinet. Based on prevailing thinking, 10 this could very well be a significant 11 factor to explain death. Forensic 12 Pathologist have become increasingly 13 aware that unsafe sleeping environments 14 are often associated with sudden death 15 in infancy. In my view the scene and 16 autopsy findings can reasonably support 17 the conclusion that death occurred by an 18 accidental asphyxia means, in an unsafe 19 sleeping environment, without any 20 influence of another party. The precise 21 situational factors that may have been 22 involved in this case include both head 23 covering by bedding, and prone 24 positioning on a soft and depressable 25 surface. Thus, asphyxia may well have

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1 occurred by re-breathing in a micro 2 environment with concominent 3 overheating." 4 Now, first of all, I -- I'm interested in 5 your expert opinion concerning the cause of death, or lack 6 thereof, identified by Dr. Pollanen and, more 7 specifically, could you explain to the Commissioner what 8 the unsafe sleeping environment issue is, as raised by Dr. 9 Pollanen, and your views on it? 10 DR. JACK CRANE: Yes. First of all, my 11 view, if I had been doing this case, Commissioner, I would 12 put the cause of death out as unascertained. 13 There was nothing from the pathological 14 examination that would help me to come to a definitive 15 diagnosis. And, therefore, if I don't know, then I would 16 say that the cause of death is unascertained. 17 I would, however, agree with Dr. Pollanen 18 and in my commentary on the case, I would indicate that 19 there remains a significant possibility that the care -- 20 the death could have been caused by some form of 21 suffocation in an unsafe sleeping environment. 22 Now, I would say that I would put that in 23 my commentary because that's an opinion that I'm giving, 24 but because I -- I can't be sure, I certainly would not 25 give it as -- as the cause of death.

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1 We -- we do know that infants can be prone 2 to interference with their airway, particularly, if, for 3 example, they're put down in a -- a bed with an adult, if 4 they're sleeping on a -- a sofa or a couch with an adult, 5 where, for instance, an adult may roll over on top of the 6 child. So, we do know that unsafe sleeping positions may 7 be a factor in predisposing to death in infants. 8 MR. MARK SANDLER: And only in situations 9 of co-sleeping or -- or other unsafe -- unsafe sleeping 10 environments, as well? 11 DR. JACK CRANE: Well, certainly the co- 12 sleeping is probably the most recognized, but certainly 13 any environment where there's a possibility that a child 14 could have its airway obstructed may be important. 15 MR. MARK SANDLER: And -- and do you see 16 that an issue in this particular case? 17 DR. JACK CRANE: I think that it is a -- a 18 possibility, and one that needs to be considered, and one 19 I would have certainly mentioned in my commentary. 20 MR. MARK SANDLER: All right. 21 COMMISSIONER STEPHEN GOUDGE: Would you 22 have testified using the phrase "significant possibility"? 23 DR. JACK CRANE: Yes. 24 COMMISSIONER STEPHEN GOUDGE: Unpack that 25 phrase as you would have intended the jury to understand

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1 it, Dr. Crane? 2 DR. JACK CRANE: Well, what I'm saying is 3 there could be a range of -- of possibilities, but what we 4 have, in this particular case, is a child being found in 5 face-down position in an unsafe sleeping environment where 6 there were quilts and blankets. 7 And we do know that in such a position, 8 infants may be susceptible to airway obstruction, which 9 could result in death. 10 COMMISSIONER STEPHEN GOUDGE: Do you mean 11 by, "significant possibility," likelier than any other 12 explanation you can offer, based on the pathology? 13 DR. JACK CRANE: Well, it's not based on 14 the pathology because the pathology hasn't -- hasn't shown 15 anything. It's -- it's based on, if you like, the 16 environment and the circumstances where that child was 17 found. 18 COMMISSIONER STEPHEN GOUDGE: That is what 19 I was getting at. It is not based on the pathology, but 20 offering that opinion, would you be offering it as an 21 effective differential explanation that is more likely 22 than any other? 23 DR. JACK CRANE: Yes, I think I would, 24 Commissioner, yes. 25 COMMISSIONER STEPHEN GOUDGE: Again, I am

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1 puzzled by how that would be understood by the lay 2 listener? Do you think there is any risk that that phrase 3 would be understood to carry more certainty with it than 4 you intended? 5 DR. JACK CRANE: Well, I would hope not, 6 because I would still be giving the cause of death as 7 being "unascertained." 8 9 CONTINUED BY MR. MARK SANDLER: 10 MR. MARK SANDLER: And arising out of the 11 Commissioner's question, when one is talking about the 12 various possibilities or differential diagnosis that 13 exist, do you see any distinction to be drawn as between 14 possibilities that advance a theory of culpability and 15 possibilities that are exculpatory? 16 DR. JACK CRANE: Yeah, I mean, there 17 definitely -- there are differences there, yes. 18 COMMISSIONER STEPHEN GOUDGE: Could you 19 explain that? 20 DR. JACK CRANE: Yeah, I mean, if this 21 child died because of a non-safe sleeping environment, it 22 would tend to suggest that this was a completely 23 accidental death. And that might, obviously, have great 24 significance. It might be important, for example, when 25 the police were considering my report. It might be

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1 important when the Crown are considering my report to 2 decide whether or not they're going to consider preferring 3 charges. 4 5 CONTINUED BY MR. MARK SANDLER: 6 MR. MARK SANDLER: Okay. I mean, would it 7 -- at -- at the risk of -- of putting a suggestion to you, 8 is there a heightened concern about suggesting 9 possibilities that favour culpability, given the 10 implications that flow from that, as opposed to suggesting 11 possibilities that could exculpate? 12 DR. JACK CRANE: Well, I suppose that -- 13 that's true, yes, that -- that may happen. 14 MR. MARK SANDLER: Professor -- 15 COMMISSIONER STEPHEN GOUDGE: But is that 16 a concern for you as an expert witness, or are you simply 17 trying to come as close to the truth as you can, given the 18 limited extent of the information you have? 19 DR. JACK CRANE: Yeah, I mean, I -- I 20 don't think that the pathologist, perhaps, can take over 21 the case. I mean, the pathology in these cases is just 22 one (1) facet of the entire case. 23 COMMISSIONER STEPHEN GOUDGE: Right. 24 DR. JACK CRANE: And I don't think that 25 the pathologist should necessarily provide the whole

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1 answer to the whole case, but he may be able to find -- 2 provide some advice to those who are investigating the 3 case. 4 5 CONTINUED BY MR. MARK SANDLER: 6 MR. MARK SANDLER: All right. The last 7 passage that I wanted to take you to is back at page 57 of 8 the overview report. And it reflects, at paragraph 148, 9 that in April of 1996, and this is before -- just before 10 Dr. Smith signed the report of post-mortem examination, a 11 meeting was taken -- a meeting was held that included the 12 Crown, police, Regional Coroner, the Deputy Chief Coroner, 13 and Dr. Smith. 14 And we have notes prepared by one (1) of 15 the officers who attended that meeting. And the notes 16 purport to describe what it is that the pathologist 17 reported at that meeting. And you'll see that at the 18 bottom of the page, and it ends with the item, after 19 significant points: 20 "Both are consistent with someone, right 21 handed, pushing the baby's head down." 22 Could you comment upon that, assuming its 23 accuracy? 24 DR. JACK CRANE: Totally inappropriate 25 comment to make. Pathologists -- you know, it's a bit

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1 like saying, Well, I think the assailant was six (6) feet 2 tall with blue eyes and blonde hair. I mean, pathologists 3 can't get into the realm of, you know, speculating to 4 whether a person might be right handed or -- or left 5 handed. 6 And I know, in the past, perhaps some have 7 done this, but totally inappropriate. 8 MR. MARK SANDLER: And you just don't 9 think the science supports it. 10 DR. JACK CRANE: There's no science to it 11 at all, I mean it's just -- it's just making something up, 12 I think, really. 13 DR. CHRISTOPHER MILROY: It's sometimes 14 known as "the Sherlock Holmes approach to forensic 15 pathology." 16 MR. MARK SANDLER: All right. Dr. Butt, 17 do you agree with those sentiments? 18 DR. JOHN BUTT: I do. I won't say 19 anything more. 20 MR. MARK SANDLER: All right. If I can 21 then leave this case, Commissioner, and I'm going to turn 22 to a second case, which is found, again, within Dr. 23 Crane's binder, and that is the Nicholas case. 24 And if I can take you to Tab 19, PFP 143263 25 at page 4, please, Mr. Registrar.

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1 And we see from the overview report, 2 Professor Crane, that Nicholas was born in Sudbury, 3 Ontario on January the 2nd, 1995. He died on November 4 30th, 1995, also in Sudbury. He was 11 months old at the 5 time of his death. 6 Criminal proceedings were not initiated. 7 The local Children's Aid Society initiated proceedings in 8 respect of the mother's second child born in 1998. The 9 proceedings concluded in March of 1999 when the Children's 10 Aid Society withdrew the protection application. 11 As I understand it, as part of the Chief 12 Coroner's review, Dr. Crane, you were assigned to be the 13 Primary Reviewer for this case. 14 Am I right? 15 DR. JACK CRANE: Yes, I was. 16 MR. MARK SANDLER: And if I can take you 17 to your medicolegal report, which was prepared at the 18 request of the Commission and is found at Tab 17. It is 19 PFP 135519. 20 DR. JACK CRANE: Yes. 21 MR. MARK SANDLER: And if you could move 22 to page 3 of your report and outline for the Commissioner 23 the history and circumstances of the case as you 24 understood them. 25 DR. JACK CRANE: Nicholas was an

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1 apparently healthy eleven (11) month old child who had 2 been seen by the family physician when age seven (7) 3 months for routine immunization. 4 According to the infants mother, he had a 5 tendency to lose balance and fall in the two (2) weeks 6 prior to his death. His mother stated that on the 3rd of 7 November, 1995, she had just fed the infant and that he 8 had been playing in the family room beneath a sewing 9 machine table, when he stood up and bumped his head on the 10 undersurface of the table. He started crying, so his 11 mother picked him up. 12 He seemed to be having trouble catching his 13 breath, and then it seems that he stopped breathing. His 14 mother slapped his back and shook him before going to a 15 neighbour's house for help. 16 An ambulance was summoned and the attendant 17 carried out cardiopulmonary resuscitation at the scene and 18 en route to hospital. 19 On arrival at hospital at 17:14 hours, the 20 infant had no vital signs and resuscitation was 21 unsuccessful. Death was pronounced at 17:34 hours. 22 The police report concludes, and I'm 23 quoting now: 24 "From the examination of the deceased 25 and the scene, there is nothing to

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1 support foul play." 2 The Coroner was informed of the death and 3 instructed an autopsy to be carried out. And the initial 4 autopsy was performed by Dr. Chen. 5 MR. MARK SANDLER: And your understanding 6 was that, at that time, Dr. Chen was a pathologist at the 7 local general hospital. 8 Is that right? 9 DR. JACK CRANE: Yes, that -- that's 10 correct. 11 MR. MARK SANDLER: And in the middle of 12 page 3 of your medicolegal report, you reflected the 13 content of Dr. Chen's autopsy or post-mortem report. 14 Could you outline briefly for the Commissioner what it was 15 that Dr. Chen said he found in the course of that post- 16 mortem? 17 DR. JACK CRANE: Firstly, a skeletal 18 survey was carried out, and it was reported of showing no 19 evidence of boney injury. 20 Dr. Chen commented in his report that there 21 were no external marks of violence. There were no 22 abnormalities of the scalp, and the skull showed no 23 fractures. 24 The brain weighed one thousand two hundred 25 and twenty (1,220) grams and was fixed prior to

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1 sectioning. The fixed brain was described as grossly 2 unremarkable. 3 MR. MARK SANDLER: And just stopping there 4 for a moment. As a matter of protocol, that -- that a 5 child's brain will be fixed to enable dissection at a 6 later date when it -- when it hardens? 7 DR. JACK CRANE: That's correct. The 8 brain of an infant is very soft, and when you try and 9 section it, it's almost like jelly. It's very difficult 10 to cut. 11 If you put it in formalin and leave it for 12 a few weeks, it becomes preserved and it's easier to cut 13 at that point. 14 When it's described as "grossly 15 unremarkable," what that means is that the intact organ is 16 unremarkable. Gross examination, looking at the whole 17 organ, indicated that it was unremarkable. 18 A toxicological examination was carried out 19 and no drugs or alcohol were detected in the body. 20 Dr. Chen concluded: 21 "No anatomical or toxicological cause of 22 death has been established. Autopsy 23 findings are consistent with SIDS, i.e., 24 the Sudden Infant Death Syndrome, 25 pending all other aspects of the

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1 investigation are negative." 2 MR. MARK SANDLER: All right. Now at page 3 5 of your report, you review the two (2) autopsies that 4 were conducted in this case. And I want you simply to 5 confine yourself, at this point, to the autopsy that you 6 have just described. 7 Could you provide your expert opinion to 8 the Commissioner both as to the conduct of Dr. Chen's 9 autopsy and -- and the report that followed? 10 DR. JACK CRANE: Yes. Firstly, I think 11 there was a skeletal survey carried out, and I think that 12 was correct and the proper course of action to do. But 13 Dr. Chen's report, I thought, was inadequate in a number 14 of respects. 15 No microbiological or biochemical 16 investigations appear to have been carried out. Now, the 17 reason for conducting those is if this child had some 18 serious infection, then we would do microbiology to detect 19 that. 20 And, secondly, biochemical investigations 21 might indicate some underlying abnormality which might 22 account for the death. So those -- 23 MR. MARK SANDLER: So this would be an 24 abnormality in the blood, for example? 25 DR. JACK CRANE: That's correct. So these

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1 would be routine tests that would be -- be done on infants 2 dying suddenly and unexpectedly. 3 MR. MARK SANDLER: And stopping there for 4 a moment, is it generally recognized in protocols for 5 these kinds of cases in 2007, that this kind of work has 6 to be done as part of the ancillary investigation. 7 DR. JACK CRANE: That's correct, it is. 8 MR. MARK SANDLER: All right. Go on, if 9 you would. 10 DR. JACK CRANE: Again, my concern was 11 although the brain was fixed prior to being examined, it 12 doesn't appear to been subjected to a proper neuro- 13 pathological investigation. 14 So the correct course of action would have 15 been for the brain, once it had fixed, then to be examined 16 by a neuro pathologist, because obviously they are expert 17 in detecting abnormalities that might, again, either show 18 evidence of injury, or show evidence of disease or some 19 abnormality that, again, that could account for death. 20 MR. MARK SANDLER: All right. What about 21 the content of the report itself? 22 DR. JACK CRANE: I think there are two (2) 23 things. First of all, there's the use of the term "SIDS." 24 And -- and I don't think that that was appropriate in -- 25 in this case.

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1 We tend to use the term "SIDS" for infants 2 who are much younger than that. Classically, it's between 3 six (6) weeks and six (6) months, albeit, it -- it can go 4 up to twelve (12) months. 5 These deaths usually occur in infants who 6 are put to sleep in their crib and they're found dead. 7 And subsequent post-mortem examination fails to reveal a 8 cause for the death. 9 This child appeared to been up and around, 10 might have bumped its head, and then appears to lose 11 consciousness. That is not the scenario that one 12 associates with a SIDS death. 13 MR. MARK SANDLER: Now just to be clear at 14 that point, when you say, that it -- it's not the scenario 15 that's contemplated by SIDS, you're not saying that it was 16 a non-accidental death. You're simply saying it doesn't 17 fall within the category that -- that has been 18 characterized as SIDS, internationally. 19 DR. JACK CRANE: That's correct. As I 20 say, I'm not saying that it was unnatural or natural. I'm 21 just saying it doesn't fall into the group that we would 22 normally call a SIDS death. 23 MR. MARK SANDLER: And is the SIDS 24 designation generally used to describe a phenomenon where 25 children, under those circumstances, have died naturally?

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1 DR. JACK CRANE: Yes. There's some debate 2 about its use, I have to say. But some people would 3 recommend it in those cases where a young infant dies, 4 usually, as I say, in his cot, and where detailed post- 5 mortem examination, including all the additional 6 investigations, failed to reveal anything. 7 MR. MARK SANDLER: And I understand from 8 our earlier conversations that -- that you generally don't 9 use the term SIDS as a cause of death in your post-mortem 10 reports. 11 Is that right? 12 DR. JACK CRANE: That -- that's right. 13 The reason being is that if you describe something as a -- 14 a "syndrome," the impression is that you're describing a 15 particular condition; that we know that there is this 16 particular condition. 17 What we know is that we don't know what the 18 cause of death is in these cases. I think the reasoning 19 behind using the term "SIDS" is that it's -- it's perhaps 20 better for the parents. They can understand a little bit 21 better that this is a natural death, and that it's a 22 recognized cause of death. 23 MR. MARK SANDLER: Just so I understand 24 your practice; in circumstances where the death meets the 25 criteria that has been set out for -- for SIDS, but that

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1 the pathological examination and ancillary investigations 2 does not reveal any positive findings, how would you 3 characterize that death? 4 DR. JACK CRANE: I would ascribe the cause 5 of death as being unascertained. 6 MR. MARK SANDLER: All right. Just 7 stopping there for a moment. Dr. Butt, do you have any 8 views as to the use of the term "SIDS" as a cause of 9 death? 10 DR. JOHN BUTT: I don't have any objection 11 to it. It's been used for a long time. It -- it has 12 certain defined entities. I agree with what Professor 13 Crane says about it. 14 Under the circumstances here, I can't see 15 how it fits, for exactly the same reasons that he said. 16 The first being the age of the child. And 17 the second being that the child was basically ambulating 18 at the time that -- that this incident occurred. 19 So, the circumstances don't fit very well 20 at all. And those circumstances, as he indicated, factor 21 highly into the diagnosis of the so-called "syndrome." 22 MR. MARK SANDLER: All right. Professor 23 Milroy, do you use the term SIDS to describe -- 24 DR. CHRISTOPHER MILROY: Yes. 25 MR. MARK SANDLER: -- a death?

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1 DR. CHRISTOPHER MILROY: Yes, I do 2 actually. Just to echo what's already been said, this 3 would not fall into the category of SIDS, this death. But 4 you -- you've got to also realize that if we call a death 5 unascertained in England, we have to have an inquest. 6 And so conscious of that, and if the 7 parameters fit, the SIDS, then I call it SIDS. Because I 8 think it's reasonable under those circumstances. But 9 there are -- 10 COMMISSIONER STEPHEN GOUDGE: And does 11 that avoid an inquest? 12 DR. CHRISTOPHER MILROY: Sorry? 13 COMMISSIONER STEPHEN GOUDGE: Does that 14 avoid an inquest? 15 DR. CHRISTOPHER MILROY: Yes, because it's 16 then deemed to be a natural death. The peculiar thing is, 17 that -- that the definition of SIDS includes after 18 thorough investigation. So, in fact, although we say this 19 appears to be a SIDS, and that avoids an inquest, we 20 haven't actually completed our investigations at that 21 stage. 22 You shouldn't really sign off as SIDS until 23 you've done all your investigations, your metabolic 24 studies, and so on. 25 There are however, some coronial

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1 jurisdictions that don't like the term -- don't -- SIDS, 2 until they've had the inquest. So there are some coroners 3 that insist that you don't use it. So there is a -- there 4 is a variability of practice within England. 5 And some people don't like the term 6 unascertained, and that came out in the Kennedy report, 7 because for some reason some people think that it implies 8 potential action on the part of the parents. 9 It doesn't. It just says that at the end 10 of an autopsy, you haven't found the cause of death. 11 12 CONTINUED BY MR. MARK SANDLER: 13 MR. MARK SANDLER: All right. Now we're 14 going to come back to the Kennedy report which speaks to 15 some of the issues that are of systemic interest here. On 16 page 7 of your report, Professor Crane, you raise an issue 17 about -- about who performed the autopsy in this case. 18 Can you advise the Commissioner -- thinking 19 back to our conversation earlier in the day about the 20 Sharon case -- and whether a forensic pathologist, a 21 pediatric pathologist, or some combination would perform 22 that or other autopsies? 23 How would the Nicholas case be treated in 24 Northern Ireland? 25 DR. JACK CRANE: The post-mortem

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1 examination would have been conducted jointly by a 2 pediatric pathologist and a forensic pathologist. 3 MR. MARK SANDLER: All right. Professor 4 Milroy? 5 DR. CHRISTOPHER MILROY: It would either 6 have been done by a pediatric pathologist on their own, 7 because to all intensive purposes it seems a sudden 8 unexpected death -- of a child naturally. Or, there's a 9 distinct possibility it would be done as a double-doctor. 10 But certainly not as a forensic pathologist 11 on their own. 12 MR. MARK SANDLER: Okay. 13 COMMISSIONER STEPHEN GOUDGE: And I take 14 it that's because, at least, on first look, this is an 15 unascertained death in terms of cause? 16 DR. CHRISTOPHER MILROY: Yes, I mean, 17 perhaps I should explain that where in England we have 18 deaths that look to be straight forward -- cot death, crib 19 death -- with no other suspicious circumstances, the 20 police say, We're happy, this seems to be a sudden cot 21 death. That's normally done by a pediatric pathologist on 22 their own, and that's what they do. 23 And it's only if there's a -- and that's 24 recommended in the Kennedy report which we're going to 25 come to -- it's only if there is unusual circumstances or

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1 suspicion that it adds in a forensic pathologist under 2 those circumstances. 3 Because 95 percent of these deaths that you 4 deal with in this age group are sudden natural deaths. 5 6 CONTINUED BY MR. MARK SANDLER: 7 MR. MARK SANDLER: All right. Now, 8 Professor Crane, after this autopsy was performed, 9 concerns were raised by the coroner, which prompted a 10 referral to the Paediatric Review Committee. 11 And it would appear that Dr. Smith reviewed 12 the case on behalf of the committee and prepared a 13 consultation report on January the 24th of 1997. 14 Could you comment on the practice that is 15 reflected in what I've just described? 16 DR. JACK CRANE: I -- I think it's -- it's 17 good practice that deaths in infants and young children 18 are reviewed. I think that is good, and it's -- it's a 19 practice that -- that we adopt in Northern Ireland. 20 But rather then the review just being done 21 by the pathologist or a pediatric pathologist on their 22 own, we would normally involve others in that. Perhaps 23 the coroner, but because our coroners are legal, we don't 24 think that they have much input into the discussion, so it 25 would be --

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1 COMMISSIONER STEPHEN GOUDGE: Very wise. 2 DR. JACK CRANE: But we would certainly 3 have a pediatrician along to discuss the case. So, often 4 it would be the pediatrician, a pediatric pathologist, and 5 a forensic pathologist, so we would get together and 6 discuss the case. 7 8 CONTINUED BY MR. MARK SANDLER: 9 MR. MARK SANDLER: All right, now there -- 10 there's some documentation, and I won't take you to it, 11 but it's at paragraph 45, that one (1) person, namely, Dr. 12 Smith was assigned for the initial review on the grounds 13 that the committee could not testify as a whole in the 14 event that Court testimony was required here. 15 Do you see the testimony that you've given 16 about your preference incompatible with -- with that 17 rationale? 18 DR. JACK CRANE: I -- I can't really. I 19 mean I -- I can't speak for perhaps your legal system in - 20 - in Canada, but it's certainly at our review meetings. 21 Often what happens is that one (1) person will be charged 22 with -- we have a discussion together and then one (1) 23 person then produces a report from the committee as a 24 whole; that seems to work perfectly well. 25 That's seem to be perfectly acceptable to

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1 the Courts. Often these cases make their way to -- from 2 the proceedings, an -- and again, there seems to be no 3 difficulty with one (1) person representing the committee. 4 MR. MARK SANDLER: All right. If I can 5 take you to Tab 19 of your binder, which is the overview 6 report for Nicholas, and it's 143263, and if we can go 7 together to page 14 of that overview report. 8 And we see that after the case was assigned 9 to Dr. Smith for an initial review, at paragraph 46 Dr. 10 Smith had his colleague, Dr. Babyn, acting Chief of the 11 Department of Diagnostic Imaging at the Hospital for Sick 12 Children, review the x-rays. And Dr. Smith, in a later 13 affidavit regarding his interactions with Dr. Babyn and 14 others, said this: 15 "I asked Dr. Paul Babyn to review the 16 copy radiographs with me. He showed me 17 two (2) changes; one (1), marked 18 widening of the skull sutures, and two 19 (2), changes to the left side of the 20 mandible, which could be interpreted as 21 a mandibular fracture. Because of the 22 uncertainty with the mandibular changes, 23 which could be a technical artifact, he 24 and I showed the copy radiographs to Dr. 25 Armstrong, Neuroradiologist at the

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1 Hospital for Sick Children. Dr. 2 Armstrong, who was unaware of Dr. 3 Babyn's findings, independently 4 confirmed the presence of widely-split 5 skull sutures. He indicated to me that 6 he was uncertain of the mandibular 7 changes and that on the balance of 8 probabilities it represented a fracture, 9 but he wished to review the original 10 films in order to rule out a technical 11 artifact. I asked Dr. Babyn to provide 12 a written consultation report to Dr. 13 Cairns, and Dr. Babyn subsequently sent 14 a report of these films to Dr. Cairns in 15 a letter dated January 13th, 1997." 16 And just stopping there for a moment, Dr. 17 Smith makes some reference to Dr. Babyn describing a 18 marked widening of the skull sutures and Dr. Armstrong 19 describing widely split skull sutures, could you explain 20 to the Commissioner what it is that's being talked about 21 in that regard? 22 DR. JACK CRANE: Yes. Commissioner, you 23 remember earlier I said that the skull is made up of a 24 number of bones and the gap in between these bones is 25 known as the sutures and if the underlying brain becomes

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1 swollen, then these sutures can open up, and that's what 2 we're talking about, widening of -- of the sutures. 3 MR. MARK SANDLER: All right. And we see 4 that the letter that -- or report that Dr. Smith refers to 5 is reproduced at paragraph 47, page 15, of this overview 6 report. And just skipping down to the third paragraph, 7 Dr. Babyn writes as follows: 8 "The examination of the skull shows mild 9 diastasis of the coronal and sagittal 10 sutures with an area in the occiput 11 which may be an accessory suture, 12 however, skull fracture is not excluded, 13 which may be better seen on the original 14 radiographs." 15 Stopping there for a moment, can you place 16 that language into English for the rest of us? 17 DR. JACK CRANE: Well, what Dr. Babyn is 18 saying in the letter is that there seems to be -- and he 19 uses the word, "mild" separation of the sutures. And now 20 I -- what concerns me is that if we go to the previous 21 page, we have Dr. Smith referring to Dr. Babyn as saying 22 "marked widening of the skull sutures." 23 And I -- I think there is a difference 24 there. Marked widening to me doesn't mean mild diastasis, 25 so there's a little bit of concern there about the

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1 adjective that -- that is used to describe the separation 2 of -- of the skull bones. 3 MR. MARK SANDLER: And what about the 4 characterization of Dr. Armstrong's opinion as "widely 5 split skull sutures"? 6 DR. JACK CRANE: Well, again, that's 7 somewhat even more a motive. The -- the impression being 8 that, you know, they've actually split open. And again, 9 it's -- it's often the use of language that might be 10 misinterpreted. 11 "Widely spread open" seems to me to imply 12 very severe widening of the sutures, and that's not 13 reflected in the letter of -- of Dr. Babyn? 14 MR. MARK SANDLER: Certainly not in Dr. 15 Babyn. You can't speak to what Dr. Armstrong did or did 16 not say. And the actual word "diastasis" means what? 17 DR. JACK CRANE: Just slight separation. 18 Well, it means separation. The word "mild" is obviously 19 qualifying the degree of that separation. 20 MR. MARK SANDLER: All right. And what, 21 if anything, does Dr. Babyn have to say based upon his 22 review of the copy radiographs about the mandibular 23 fracture that was also referred to by Dr. Smith? 24 DR. JACK CRANE: Well, he's saying that 25 there's a suspicion or it's suspicious of a fracture.

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1 He's not saying there is a definite fracture of the lower 2 jaw. 3 MR. MARK SANDLER: All right. And then if 4 you would go with me -- I'm sorry, before we go to Dr. 5 Smith's consultation report, did you have occasion to 6 examine the original x-rays in connection with this 7 matter? 8 DR. JACK CRANE: Yes, I did. 9 MR. MARK SANDLER: Just to give some 10 context to -- to what we are looking at here. And what, 11 if any, opinion did you form on the two (2) issues that 12 have been raised in the correspondence; namely, the 13 existence of splitting of the skull sutures and the 14 existence of a mandibular fracture? 15 DR. JACK CRANE: Well, I'm not a -- a 16 pediatric radiologist, so I -- I certainly would bow to 17 Dr. Babyn's expertise. When I looked at them, certainly, 18 there might have been a degree of separation, but as I 19 say, I wouldn't be an expert in that. 20 I would also defer to a radiologist in my 21 own cases. I'd say my interpretation, I don't think, is - 22 - is worth an awful lot. 23 MR. MARK SANDLER: And -- and would you 24 say the same about the mandibular fracture? 25 DR. JACK CRANE: Yeah, I -- I didn't see a

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1 fracture, but again, as I say, I'm not expert in 2 radiology. 3 MR. MARK SANDLER: All right. And we'll 4 see how -- how that's subsequently dealt with the original 5 x-rays are actually examined in a few moment, won't we? 6 Well, actually we won't see it in a few moments, 7 Commissioner. It's 4:30, that would be appropriate time, 8 if we may? 9 COMMISSIONER STEPHEN GOUDGE: Very good. 10 Thank you, gentlemen. We will convene tomorrow then at 11 9:30. 12 13 --- Upon adjourning at 4:29 p.m 14 15 16 17 Certified Correct, 18 19 20 __________________ 21 Rolanda Lokey, Ms. 22 23 24 25