An eminent former Australian judge has called into question the science underlying the shaken baby syndrome diagnosis, saying some doctors who give expert evidence in courts are guilty of “group think”.
Dr Ken Crispin, a former barrister, ACT Supreme Court judge and president of the territory’s Court of Appeal, delivered a devastating judgment in one of Australia’s early prosecutions of shaken baby syndrome in 2001. He has now spoken about the syndrome publicly for the first time in a new episode of the podcast, Diagnosing Murder.
The defendant in the 2001 case that Crispin oversaw was a young Canberra carpenter called Stuart, who was charged with recklessly causing grievous bodily harm by shaking his partner’s baby daughter in 1999. This masthead has chosen not to use Stuart’s full name because he could not be contacted.
Stuart’s then-partner, the baby’s mother, Kellie-Lee Billerwell, supported him throughout and in 2001 Crispin found the young man not guilty in a judge-alone trial.
Crispin produced written reasons that are still cited today in the global debate over the controversial medical diagnosis. He told the Diagnosing Murder podcast he found the evidence for the shaken baby diagnosis was weak, circular and based on poor science. In his view, expert witnesses convinced of the theory were at risk of causing injustices.
“It’s a phenomenon that in other contexts would be called excessive product enthusiasm,” he told Diagnosing Murder.
“In relation to shaken baby syndrome, you tend to have the same, or people who are associated with the same, group of experts giving the evidence – and you get a measure of group think about it.”
Evidence compiled by activists from court records and media reports shows that, since Crispin’s findings in the case against Stuart, hundreds of Australian parents and carers have been prosecuted for assaults and homicides against babies based on the decades-old medical theory. In some court systems, this theory is now considered to be “junk science”.
According to the theory – now commonly known as abusive head trauma, or inflicted head trauma – a particular set of medical signs known as the “triad” points almost inevitably to a child having been shaken. The theory is accepted by doctors around the world, including the specialist forensic paediatricians working in Australia’s large public children’s hospitals.
A growing number of dissidents, however, insist there are dozens of other potential innocent medical causes of those symptoms, including injuries incurred during birth and genetic causes.
In the Canberra case, the baby’s mother, Kellie-Lee Billerwell, has also spoken for the first time, and told Diagnosing Murder that the case had motivated her to become a lawyer, and then a police officer.
“I wanted to train police in how to deal with these sorts of cases … to go and say … in the event of a shaken baby, this is what you need to look at,” she said.
In her case, the lawyer for the defendant, Stuart, was renowned Canberra legal figure and former ACT attorney-general Bernard Collaery. Collaery said one prosecution expert, NSW paediatrician Dr Michael Ryan, had sought to demonstrate the action of shaking a baby.
“There was a medical specialist, crusader, giving evidence, who, after he entered the witness box, bent down to his bag and pulled out a doll with a plastic skull,” Collaery said.
“He started shaking the baby [doll] with both hands on the baby in front of him violently … He just got so excited that he smashed the skull to pieces on the witness box ledge. And there was a silence, like a shocked silence in the court.
“This trial was infected with emotive demonstrations throughout.”
In his written judgment in 2001, Crispin was highly critical of the four prosecution experts. He wrote that experts were “not immune from the temptation to leap to unwarranted conclusions, engage in unsubstantiated speculation or act upon hearsay or rumour”.
Ryan died in 2019.
Asked about the shaken baby syndrome diagnosis itself, Crispin told the podcast: “There seem to be a number of logical flaws.
“I can remember, [expert] witnesses insisted when I asked, ‘Is there any evidence that [the injuries] can’t be caused any other way?’, the answer was, ‘They’re caused this way’. I said, ‘Yes, I understand that. But the fact that you can cause a combination of injuries one way doesn’t ipso facto prove they can’t be caused in some other manner, does it?’
“‘No, no, they’re caused this way’ [they replied].
“The problem is that people tend to see themselves as on a crusade to save children, which is entirely understandable and in many respects entirely laudatory. But you just have to be so careful that you don’t wind up causing injustice.”
Before he became a judge, Crispin was a barrister and acted for Lindy Chamberlain. In that role, he helped reveal that much of the so-called scientific evidence underlying Chamberlain’s original conviction over the 1980 death of daughter Azaria was bogus.
In his written judgment in Billerwell’s case, Crispin wrote: “There is no law of human nature that decrees that expert witnesses are immune from the temptation to leap to unwarranted conclusions, engage in unsubstantiated speculation or act upon hearsay or rumour … The mere fact that a number of people, even a number of experts, believe something does not warrant the conclusion that it must be true.”
Crispin told Diagnosing Murder that despite demonstrated flaws over many years in some expert evidence, it often proved compelling to juries.
“There is no more convincing witness than somebody who is honest, who honestly believes what they’re saying, even if it’s wrong,” Crispin said.
He had not spoken publicly before, he said, because: “To be frank, I thought that further research and more objective approaches would prevail and that the triad would be seen as grounds for suspicion but not proof beyond reasonable doubt.”
Kellie-Lee Billerwell said the child abuse investigation into Stuart had been a nightmare. The media was intrusive, their house was bugged by police and the couple was followed around Canberra by detectives for months. She said it had ended their relationship and kept Stuart apart from the two children he fathered with her.
She said he had never fully recovered. After she became a police officer, Billerwell said she had tried but failed to train her colleagues to take a more objective approach to shaken baby cases.
“I was trying to educate them with the knowledge that I’d had in relation to that, and they were not listening to me at all. There were walls up in, ‘This is how we do it and it’s not going to change’.”
Queensland Police Service said in response to questions that it was committed to evidence-based policing and participated in research to make sure investigations kept up with best practice.
As for the allegedly shaken baby, Charlie: doctors in 1999 insisted she would be blind and probably would not walk. In fact, Billerwell said, Charlie grew up, met all her milestones and is now a healthy, vibrant adult with no apparent ongoing issues.
“Charlie is vivacious and she’s independent … and she loves to sing in the car and have chats … and I’m proud of who she’s become. She’s going great.”
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