Experts’ testimony should prompt trial to be reopened: defence

Crown in Colin Matchim case says more to it than medical evidence

Rosie Mullaley
Published on June 19, 2013
Colin James Matchim sits in the prisoner’s dock near his lawyer Erin Breen Tuesday prior to the start of proceedings at Newfoundland Supreme Court in
St. John’s. Matchim spent 10 months in jail before he was granted bail last year.
— Photo by Rosie Gillingham/The Telegram

It was a case that saw medical experts from around the world testify, each giving their opinion as to what caused brain damage in a 3 1/2-month-old infant girl from St. John’s in 2009.

Some were adamant it was Shaken Baby Syndrome. Others said it could have been other medical conditions.

In November 2011, the child’s father, Colin James Matchim, was found guilty of aggravated assault for shaking August Coombs and causing her injuries.

The 27-year-old hasn’t been sentenced — and may not be.

It will depend on the outcome of a hearing that wraps up today in Newfoundland Supreme Court in St. John’s.

The hearing argued the merits of an application filed by Matchim’s lawyers, who are seeking to reopen the case to introduce medical evidence that wasn’t introduced during his 17-day trial.

The hearing — which began last year — included complex medical evidence that delved into the widely debated issue of Shaken Baby Syndrome and its validity.

But whether or not that’s what caused August Coombs’ injuries is not what Justice Wayne Dymond has to determine. It’s whether or not the defence’s medical experts were believable enough to prompt him to overturn the guilty verdict — one of the key criteria in what’s known in law as the Palmer test, a motion to introduce fresh evidence.

“You just have to determine if their opinions are capable of belief,”  Matchim’s lawyer Erin Breen said Tuesday during final arguments. “It’s the same as whether they have an air of truth. It’s a low threshold …

“I suggest their evidence stands up and the court must accord their testimony weight.”

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Evidence from the trial revealed on March 17, 2009, Matchim was home alone with the baby while her mother, Kate Coombs, was out running errands. Coombs said the baby was sleeping when she left the house that day. When she got home about an hour later, she noticed the child was unresponsive and pale.

August was taken to the Janeway children’s hospital, where doctors immediately suspected Shaken Baby Syndrome.

Tests revealed severe swelling to the left side of the baby’s brain, hemorrhaging and other damage. As a result, she had difficulty walking on her own and moving her right side. The damage is believed to be permanent.

One of the defence’s key witnesses was Dr. Waney Squier, a consultant  neuropathologist at John Radcliffe Hospital in Oxford, England.

She testified the baby most likely suffered brain damage because of blood clotting and not because she was shaken.

Another witness — Dr. David Ramsay, a neuropathologist and professor in the department of pathology at the London Health Sciences Centre and the University of Western Ontario — concluded there was no direct or specific evidence of trauma. He also said the child had several risk factors that could have caused such a condition.

However, Crown prosecutor Phil LeFeuvre argued the defence’s medical evidence is not strong enough to warrant a retrial.

“First of all, I’d like to remind the court that Mr. Matchim wasn’t convicted of Shaken Baby Syndrome. He was convicted of aggravated assault,” said LeFeuvre, who noted that only in exceptional circumstances do courts rule to reopen cases after a conviction.

LeFeuvre suggested the Crown’s witnesses were more qualified and more reliable, including Dr. Simon Avis, this province’s chief medical examiner, and Toronto-based pediatric neuroradiologist Dr. Manohar Shroff from the Hospital for Sick Children, who specializes in such brain injuries.

Both testified that non-accidential trauma was a likely conclusion and other conditions were remote possibilities.

The defence’s experts, he said, are known skeptics.

“Just because some doctors believe shaking alone would not cause such injuries doesn’t (mean) the decision should be overturned,” LeFeuvre said.

But unlike most cases, LeFeuvre said, Matchim’s case also involves a confession.

Ten days after the baby was brought to hospital, Matchim admitted to shaking the baby.

In a videotaped interview with police, Matchim demonstrated the force he used when shaking the baby.

“I freaked out because I didn’t know what I was after doing,” he told officers.

He later recanted the confession.

Lawyers will return to court today to discuss some final issues. A date will then be set for Dymond to render his decision.

The judge can make one of three rulings — to dismiss the application and let the guilty verdict stand; declare a mistrial; or overturn the guilty verdict and reopen the trial.

Dymond admitted “it’s not a run-of-the-mill case” and noted not many courts are dealing with such an issue.

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