Newsroom’s investigative podcast team, Delve, has found there isn’t sufficient medical evidence to support a key part of the Crown’s case against a young Auckland father.
In February 2024 the man, who we call Justin, was convicted in a jury trial of causing grievous bodily harm with intent to cause grievous bodily harm and injuring with reckless disregard to his one-year-old son. He is almost two years into his six-year sentence.
As part of Delve’s inquiries, the child’s x-rays, CT scans and medical files were sent overseas to orthopaedic, forensic and radiology experts.
All international specialists we engaged agree: there is no evidence of rib fractures.
This is in direct contrast to evidence given at the young father’s trial by Dr Russell Metcalfe, a paediatric radiologist in Starship Hospital’s child protection unit Te Puaruruhau.
Metcalfe, a senior Starship Hospital radiologist who has appeared as an expert witness in numerous cases, testified at the man’s trial that there were “definitely multiple posterior rib fractures which are highly suspicious for non-accidental injuries”.
Justin has a large team of supporters who are emphatic he is the victim of a miscarriage of justice.
“He’s a loving dad and just an ordinary everyday hardworking Kiwi with his own business and has never laid a hand on anyone. If this can happen to us, it can happen to anyone,” Justin’s mother told Newsroom.
Every week, Justin’s partner and mother, a former prison officer, take his now four-year-old son to visit him in prison. For the nearly two years between being charged and awaiting trial, Justin’s bail conditions meant he was not allowed any contact with his partner or his son.
“That was really hard,” his partner told Newsroom. “And it was at an age where he needed that. From one till now he didn’t have that father figure.”
Justin and his family are one of the families who are the subject of Delve’s latest podcast investigation, Diagnosis of a Crime.
Across the past three years, the Delve team has been investigating the issue of over-diagnosis of non-accidental injury at Starship’s child protection unit, Te Puaruruhau, and assessing the medical evidence being used in New Zealand courts to secure convictions.
When the young parents in this case went to Starship Hospital following what they described as an accident in the shower, their one-year-old was found to have a hip fracture, but as the days went on the Starship child protection unit said they’d found other fractures, most significantly 19 rib fractures.
The family were stunned and confused because other than the shower accident, there were no signs of anything amiss with their son.
“There were no issues with picking him up. He showed absolutely no signs of being distressed. But Starship were meant to be the experts and we just couldn’t for the life of us understand how he had all these injuries,” Justin’s partner told Newsroom.
“They started off and told us that he had a hip fracture, and then as they did more x-rays, they came out and stated he had 19 rib fractures. And at that stage we were just looking at each other confused and thinking, this can’t be possible, what was going on? Our child is a happy little child that shows absolutely no sign of anything. And suddenly we were being looked at as if we had abused our child. We had no explanation for any of these injuries that they were trying to say he had. We just couldn’t figure it out. We just sat there absolutely beside ourselves.”
Justin’s mother was just as bewildered: “When my son was charged we all thought they’ve made a massive mistake saying he’d deliberately hurt the baby and they will realise it, but they never did.”
‘100 percent certain that’s a fracture‘
Metcalfe, the Starship Hospital paediatric radiologist, told jurors at Justin’s trial the rib fractures he identified were “absolutely there” despite not appearing on either of the x-rays taken, claiming “there’s no doubt they’re fractures, there’s lots of them, and I think at least several of them are healing”.
Two full body x-rays, known as a skeletal survey, were taken of the boy, and a CT scan.
Metcalfe said in court the fractures could only be seen on the CT scan and not on the x-rays, showing the jury a series of images to which he told them: “What I’m going to show you are fractures but they’re subtle, and you have to be experienced to see them.
“The type of rib fractures we see here are very difficult to age … These are quite subtle, so the signs of healing are very subtle, so I won’t pretend that I could be overly accurate.
“These posterior rib fractures … the way they are you can’t see them on anything other than CT.”
In regards to a specific CT image he showed the jury of one of the boy’s ribs, Metcalfe said: “I’m 100 percent certain that’s a fracture. And the majority of them look like that, although you have to actually spend a bit of time manipulating on the computer to show that. But that’s why you would never see these on a chest x-ray. They’re just too subtle.”
“There’s not a lot of literature about this.”
Metcalfe’s evidence was central to the prosecution case that sent the father to prison for six years.
The international evidence
We begin with a report from a paediatric radiologist and child abuse specialist from London’s Great Ormond Street children’s hospital. While he agreed for the most part with the Starship doctors, he came to a different conclusion on the supposed rib fractures.
Dr Owen Arthurs could not identify any rib fractures, saying in his formal report, “In my opinion, the original radiologists have over-interpreted what could be normal vascular channels as fractures. It is my expert opinion that there are no convincing rib fractures.”
So we sent the same CT scans, x-rays and medical files to US orthopaedic surgeon, Dr Doug Benson, who, echoing Arthurs’ report, said in his formal report, “I do not see any convincing evidence of rib fractures.”
Also working with Delve on our wider investigations is US lawyer Heather Kirkwood, a specialist in the overdiagnosis and misdiagnosis of non-accidental injuries.
A former antitrust lawyer, her first case in this field more than 25 years ago began when she discovered there was often no solid science underpinning many of these types of convictions.
Kirkwood has played a key role in securing six post-conviction victories, including four full exonerations and a plea deal for a man who was facing the death penalty. She’s been instrumental in having high-profile criminal cases dismissed before trial and has won multiple acquittals in court. Her work spans several US states, Sweden, Australia and now New Zealand.
Kirkwood was surprised a radiologist with 30 years’ experience could identify rib fractures that weren’t there.
“I thought I’d seen everything there is to see in this area but apparently not. If Starship has identified 19 fractures on a child that every other person who’s looked at it says there are no fractures, this is mind blowing. It’s tremendously embarrassing to say that there are 19 rib fractures if there are none.”
Kirkwood also arranged for the medical files and imaging to be sent for review by radiologist Dr Julie Mack, an associate professor at Penn State University College of Medicine.
Mack is board certified in diagnostic radiology and paediatric radiology, has published dozens of peer-reviewed papers and trained at Harvard Medical School, Baylor University Medical Centre and the Children’s Medical Centre in Dallas.
Mack’s report says: “Dr Metcalfe admits that the findings are subtle and required manipulation of the image to see. He admitted that these findings are not reported with any regularity in the literature, and do not show healing response on standard x-rays. Since he does not routinely perform follow-up CT, he cannot know if they show healing response on CT exam. Therefore, he has no gold standard to confirm they are fractures.
“It appears that in this case, irregularity of the rib was interpreted as fracture without confirmatory evidence of fracture.”
In summary, what Metcalfe identified as fractures, other experts have said are in fact vascular channels or typical growth irregularities. Importantly, there is no evidence that could confirm them as fractures – no swelling, internal injuries or healing response in follow up x-rays.
Justin’s mother cried when Newsroom told her about the findings from the international experts.
“I don’t know what to say. Surely not. They can’t make that much of a mistake. They have to listen to us now. They have to listen. It’s what we’ve known all along, and somebody has to listen because it’s just been so wrong.”
The hip fracture
This case began back in mid-2022 when the father was giving his one-year-old son a shower. The father says his son slipped from his grasp, and he grabbed him forcefully so his head wouldn’t hit the ground.
After the near-fall in the shower described by the father, the baby appeared to settle quickly and seemed uninjured. The next day, however, the parents felt something was wrong and took him for medical evaluation.
An initial x-ray reading missed the hip fracture or dislocation, and the young couple were sent home with baby Pamol and told he had a torn muscle.
Two days later, the couple were phoned by the GP and told to go to Starship Hospital or Oranga Tamariki would be called. Follow-up x-rays showed the hip fracture and the child underwent surgery and was placed in a spica cast.
Starship’s Metcalfe testified it was the only fracture like that he had seen in his 30-plus years on the job, “I can’t imagine how this would have happened … but it’s nothing to do with normal handling of a child to get this sort of fracture.
“The options are either a direct blow or some sort of transmitted force; say the child was picked up by the leg and swung.”
His colleague, Dr Susana Pereira, a paediatrician who also concluded the boy’s injury was non-accidental, said in court she had: “ … never seen a fracture like that in a situation that has been described”, and that it could not be explained by the father’s account of the child slipping in the shower and being caught.
However, that conclusion is also in contention.
Sydney-based forensic pathologist Professor Johan Duflou has written in his formal report that the father’s description of the incident was consistent with a mechanism that could have resulted in the fracture.
“In my opinion, a twisting and abduction (outward movement of the leg) type action at the hip can cause such injury. Such action would in my opinion not be inconsistent with a mechanism which could have resulted in the fracturing of the hip.”
Justin’s partner says Starship didn’t believe Justin had had an accident in the shower.
“They think that was a lie. They think that night he woke up and he walked past me in bed and he walked down the hallway to our son’s room, got him out of his cot, grabbed him by his legs and swung him. And then they said they think he’s then put him back in bed, ran back to get in bed with me before our son woke up crying.”
Additional injuries described by the Starship doctors as non-accidental also confused the parents of the one-year-old. Hairline fractures in both of the boy’s knees and elbows were identified, which Metcalfe dated to a time when the father was away and not with his son.
Lawyer Heather Kirkwood describes these as incidental findings.
“Suspicion is a very low standard. And what many departments do is that every fracture is treated as suspicious for abuse. So then you have skeletal surveys and x-rays and CT scans looking for any other sign. What you find then are what we call incidental findings. So those are all little abnormalities that a person may have within them, and that one would never, ever know about without this.”
Kirkwood says the boy had no pain or symptoms.
“Nothing bothered him. So he had nothing to suggest that he had elbow or knee fractures or anything else. So the type of fractures he has, you could call them cracks in the growth plate, self-healing, no symptoms. You would never ever know about them.”
Other factors were also mentioned by the experts, including the acne medication Accutane, which the boy’s mother took during the first six weeks of pregnancy before being told to stop due to its strong link to birth defects.
Dr Doug Benson attributed other irregularities in the child’s bones to be, “likely a collagen abnormality.”
He observed that the boy had asymmetric skin folds, was already being monitored for left hip dysplasia, had an abnormal crawl and his eyes had blue-grey sclera.
Delve approached Heath NZ and Metcalfe for comment, putting to them a detailed account of the criticisms levelled at Metcalfe, including the conclusions of the three international experts that there was no evidence of rib fractures, and that a forensic pathologist also concluded the mechanism described by Justin for his son’s hip fracture could plausibly have caused that injury. We also extended an invitation for an interview.
Health NZ replied that it would not be appropriate to comment on a specific case which involved Starship clinicians giving evidence in a criminal proceeding.
“Our doctors have already answered all questions put to them throughout the court proceedings. We are confident of the expertise of our Starship Child Protection team and the work they do in conjunction with the police and other relevant agencies.”
Judge’s direction
At his trial, Justin had no medical expert evidence for the defence, and the family says in hindsight he had no chance.
“Unless you can get somebody that will help you to get overseas experts, you’re at the mercy of Starship because they are the so-called experts. And a sentence that was said by the judge in my son’s case was, ‘You either believe the medical experts from Starship with 40 years’ experience, or you don’t’. And the jury were like, ‘Well, how do you go against the medical experts from Starship?’ He had no show,” Justin’s mother told Newsroom.
The prosecution had five medical experts give evidence. Even so, after two days of deliberation, the jury could not reach a unanimous verdict.
Justin’s mother recalls hearing the jury argue in the adjoining room.
“The jury took the best part of two days to come to their decision. The first day they went out, we waited pretty much all day for the verdict and then they came back late that afternoon and they couldn’t come to a verdict.”
She says the judge asked the jury if they could come to a unanimous decision and they said no.
“He said, ‘Well, I will allow you to come to a majority decision.’ And the jury all went back out. After a short while we could hear raised voices yelling from behind a couple of closed doors where the jury were all deliberating and we could hear them in the courtroom. And we all looked at each other and were like, what is going on? What’s happening?”
Following the judge’s direction, the jury returned a majority guilty verdict.
In sentencing the man to six years in prison, Judge Russell Collins wrote in his sentencing notes that he had asked Justin’s lawyer at a pre-trial meeting whether the only issue at trial would be “who caused the injuries”, because it would be unusual for anyone to seriously challenge the opinion of the Starship doctors that the injuries were non-accidental, “given the expertise and the reputation that the Starship experts have, for both their technical knowledge and their extraordinary fairness”.
Heather Kirkwood, the US lawyer, says a properly informed jury would not have convicted Justin, and the so-called rib fractures may not have been presented at all.
“As a lawyer, that evidence should have been dealt with before trial, and I would’ve thought that there would be a very good chance that it should be excluded entirely. So assuming the jury does not hear about 19 rib fractures, what you have is a hip fracture.”
Kirkwood explains the type of hip fracture the boy had was a Salter I or Salter II fracture, which are “fairly well known” and should have been explained by an orthopaedic surgeon to the jury.
“I’ve looked at a fair amount of this case. It certainly seems to fit extremely well with what the father described. If you had defence experts come in and say, no, Starship is wrong on this, this is why, that’s what I mean by a properly informed jury. [But] there are pockets – and it may be that New Zealand is one of them – in which a children’s hospital has attained such a reputation that nobody will testify against them either because they think they are right, or it will damage their careers. And from some of the judge’s comments, I think in this trial that seems to be the case in New Zealand.”
Similar cases
This isn’t the first time Starship’s child protection unit, Te Puaruruhau, has been in the spotlight.
Concerns about overreach from the unit have been around for more than a decade.
In a case from 2010, an Auckland district court judge criticised Starship doctors for concluding that a father assaulted his baby daughter without considering all the evidence.
The judge found the father not guilty and reprimanded the medical staff, sparking a high-level meeting between the Crown and Starship management to discuss the “potentially far-reaching” implications of the verdict and about how doctors differentiate between accidental and non-accidental head injuries.
Other similar local cases have occurred since then, some of which we have already covered.
US investigative journalist Susan Goldsmith, whose documentary, The Syndrome, examines faulty child abuse diagnoses, says the weight of such testimony is often decisive.
“When it comes to child abuse, real or not, when people hear those words, they stop thinking rationally. It’s all emotion. People are prone to believe police, prosecutors and child abuse specialists. When doctors all say it, it has a weight that is very hard to overcome no matter what expert you have.”
In the UK last month, the country’s leading expert on bone injuries in infant death cases, Professor David Mangham, referred himself to the General Medical Council after a High Court judge accused him of having a “closed mind” and making “a number of repeated mistakes”.
Concerns about his evidence in criminal trials have now come to light, and several parents convicted over the deaths of their babies are launching appeals as a result.
Previous Delve investigations into the overdiagnosis of non-accidental injury, covered in two seasons of the podcast, Fractured, have already had significant results. The Delve team’s work has seen a child returned to her parents’ care, the mother’s deportation to India halted and the Criminal Cases Review Commission accept a submission for her conviction to be referred to the appeal court.
Our new podcast, Diagnosis of a Crime, features three cases, including one involving a professional athlete in the South Island who has been charged.
But for now, the young father at the centre of this case remains behind bars. An appeal is being prepared, armed with expert reports the family hope will overturn the verdict that has ripped their lives apart.
Original source: nz