‘A good day for justice’

Colin Matchim acquitted of charge he shook his baby, causing brain injury

Rosie Mullaley rmullaley@thetelegram.com
Published on May 8, 2014
Colin Matchim stands with defence lawyer, Erin Breen, on the steps of Newfoundland Supreme Court in St. John’s Wednesday after he was found not guilty of aggravated assault. — Photo by Rosie Mullaley/The Telegram

For five long years, Colin Matchim lived under the dark cloud of suspicion that he hurt his infant daughter. On Wednesday, he was finally in the clear.
Minutes after he was acquitted of aggravated assault, a teary-eyed Matchim could barely speak.

“I”m just emotional right now,” he said with a quiver in his voice. “I’m not really ready to talk about anything.”

Instead, he asked his lawyer, Erin Breen, to answer reporters’ questions for him.

“It’s a very good day for justice in our province. It’s an important day,” Breen said, as she stood alongside her client on the steps of Newfoundland and Labrador Supreme Court in St. John’s.

“It’s been a long road for Colin. It’s been over five years now he’s been living with this. He is innocent.”

The decision to acquit Matchim by Justice Carl Thompson was made after prosecutor Frances Knickle told the court that having reviewed the information in the case, the Crown would not proceed with any further evidence.

“We have determined that there is no reasonable prospect of conviction on the criminal standard,” she said.

As a result, the judge found Matchim not guilty based on the absence of Crown evidence.

Matchim had been accused of shaking his infant daughter, causing her brain damage. He was found guilty in November 2011 following a 17-day trial.

Evidence from the trial revealed that on March 17, 2009, Matchim was home alone with the 3 1/2-month-old girl while her mother was out running errands.

The baby was sleeping when her mother left the house that day. When the mother got home about an hour later, she noticed the child was unresponsive and pale.

The baby was taken to the Janeway hospital, where doctors immediately suspected shaken-baby syndrome.

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

However, before sentencing, Matchim’s lawyers — Breen and Bob Simmonds — filed an application seeking to have the case reopened and new medical evidence introduced.

It was argued at a hearing, which wrapped up in June 2013. During the months of proceedings, the court heard complex medical testimony from experts around the world, all of whom offered their opinions on the validity of shaken baby syndrome and on what they believed caused the child’s injuries.

One expert believed it may have been a blood clot. Another said the baby could have had a predisposed condition.

Breen argued that the experts’ evidence was persuasive enough that it could have made a difference in the outcome of the trial.

Justice Wayne Dymond agreed and  declared a mistrial.

Shortly afterwards, Phil LeFeuvre, who was prosecuting the case at the time, told the court the Crown intended to retry the case.

However, when Knickle reviewed the complicated and extensive material, she concluded the Crown would not proceed.

Breen said Knickle did the right thing.

“This was a miscarriage of justice and I think the entry of the acquittal ... is an acknowledgement that his conviction was wrongful,” Breen said. “We are very happy. We’re relieved.”

Breen said that at the first trial, the court only heard testimony from Janeway hospital doctors and didn’t hear the full story of medical evidence regarding the theory of shaken baby syndrome.

“Cases such as these have to be dealt with so carefully because the science that has evolved since the year 2000 has unravelled this theory,” Breen said.

“There is really no scientific basis for this theory in a case such as we were presented with.”

Breen said the evidence of their experts — Dr. Waney Squier of England, Dr. Julie Mack of Pennsylvania, Dr. Chris Van Ee of Michigan and Dr. David Ramsay of London, Ont. — was invaluable.

“Each of them brought forward a very thorough, very objective assessment of this case that clearly showed that there was no way a conviction could be entered,” Breen said.

She said Matchim’s next step is to try to see his daughter again. To do that, he will have to apply to Unified Family Court for access.

“He has not seen his daughter. He’s missed out on some very important years,” Breen said.

“The criminal justice system has done what it can to rectify the wrongful conviction. ... He may face another extended battle on his hands, but that’s something he’s willing to undertake.”

As for the year Matchim wrongfully spent in jail prior to being released before the hearing, Breen said she will talk with Matchim to see if he wants to take any further legal action.

“Because obviously, the damage that has been done to Colin is irreparable damage,” she said. “There’s not doubt about it.”



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