Photo: Dominion Post
BECAUSE STARSHIP'S child protection team, led by Patrick Kelly – considered New Zealand's leading child-abuse expert – appears only for the Crown, defence lawyers are forced to go elsewhere. Many turn to Terry Donald, a forensic paediatrician and senior consultant in child protection services at Adelaide's Women's and Children's Hospital, who most often gives evidence for the prosecution in Australia.
Medical evidence in child-abuse cases in this country has come down to a good old-fashioned stoush between Australia and New Zealand, with a couple of notable victories for the Aussies.
But he doesn't come cheap – his fee is around $20,000.
Donald gave evidence in the Kahui murder trial in 2008, challenging Kelly's evidence of the timing of the assaults on the twins. Their father, Chris Kahui, was acquitted. Last year Donald appeared for the defence in the trial of Abhinesh Sharma, charged with murdering his 16-month-old nephew by violently shaking him and slamming his head against a wall.
Kelly concluded it was child abuse and that the injuries could not have been sustained by a fall from a couch, but Donald testified they could have. Sharma was also acquitted.
In a similar case this year, Donald gave evidence in the trial of Famaile Lino, testifying that his baby daughter's injuries could have been sustained in a fall from a chair. The judge criticised Starship doctors who concluded abuse, saying they had not considered all the evidence.
Kelly declined interview requests, saying it would be inappropriate to debate information relating to a specific child, including evidence he had given in court, through the media. In a statement he said the health board had a complaints process and he welcomed feedback from it. "Formal complaints are treated with respect, and lessons learned are used to guide clinical practice."
Donald says it is worrying that there are not enough specialists in New Zealand prepared to help defence teams, partly out of deference to Starship. "It's an important issue that no one in New Zealand will give the defence any time. Defence lawyers risk going to people who are seen as extreme, who aren't even sometimes people who've ever assessed children clinically. I've tried to give them a balanced perspective."
He believes New Zealanders should be concerned that defence lawyers are having to look overseas for experts, not just for cost reasons.
"There's a lot of rivalry between Australia and New Zealand, and New Zealand would generally be regarded as an impressive country but what's it doing with child protection? It's having to defer questions to Australia."
He says there's a danger in rushing to judgement in child head injury cases. "The issue of inflicted head injury is a major problem. It's not a matter of identifying retinal haemorrhages in association with subdural haematoma (as in the Lino case) and then deciding the child has been shaken. It's much more complicated."
England's Appeal Court recently issued guidelines on how judges and juries should deal with expert evidence in shaken-baby cases. If there's a realistic prospect of an unknown cause for the injuries, judges must remind juries of that.
Kahui defence team member Michele Wilkinson-Smith says Kelly is a "wonderful" doctor who cares for the children he treats, but she wonders if that may sometimes prevent him being objective.
"In court you've got to be utterly objective and forget about your advocacy role for the child. That's where I have a problem with some of the evidence he's given."
She said in her view it appears that he "has definitely reassessed the way he gives evidence since Kahui. I've had more cases with him and his reports are less dogmatic."
Wilkinson-Smith says that because Australia has a much bigger peer group of forensic paediatricians, doctors are challenged more often, and are used to having to ensure their opinions stand up to challenge.
"Here, until Kahui, no one was challenging Dr Kelly."
Sharma's lawyer, Maria Pecotic, believes treating clinicians should not give expert evidence. "I don't think they are open-minded enough."
Auckland Crown Solicitor Simon Moore says a meeting was held with Kelly and his team after the Lino judgement. Recommendations included ensuring expert witnesses are provided with all the relevant evidence to help formulate their opinions, and considering engaging overseas experts to review the opinions of local experts.
"In a case like Lino, there are always going to be ramifications that arise out of that sort of judicial criticism," Moore says. "It means those agencies responsible for the prosecution need to take stock and review their processes."
He says it's important to note that most suspected abuse cases are referred to the child protection unit by other medical professionals. "This is not a stand-alone unit that's some kind of roving forensic paediatric police force."
Moore says it is notoriously difficult to prosecute child-abuse cases. "If you have an expert who comes along and is prepared to say: `I think it's possible the explanation could be something else', even if he doesn't favour it, then we haven't proven our case. That's why internationally only 20% of these cases succeed."
He says Kelly attends all the same conferences as Donald and other experts.
"He is internationally regarded as one of the most talented and able paediatricians in the world. We should be extremely proud of what that man has achieved."