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November 9, 2016
Forensic Pathology and the Law

By Steven Blyth

Last week I defended a father accused of physically assaulting his son by striking his son with a broom, squeezing his face and striking him to the top of the head with an open hand.

As part of the police obligation to provided disclosure prior to the trial being held, I received photos taken by the child’s mother and by the police shortly after the alleged assaults occurred.

Some of the images of the injuries allegedly caused by the broom reminded me of a case I was involved in some 20 years ago, because the bruising in that case resulted in what I call ‘linear tracking’ on the skin. i.e. 2 distinct parallel lines with adjacent bruising.

As a result, I sought to obtain the opinion of a forensic pathologist to advise whether the bruising depicted in the images, sat comfortably with the evidence of the child as to how and when he had suffered those bruises.

The difficulties obtaining a private forensic pathologist to advise were significant, and essentially no service provider of that type exists in Western Australia. Those who are qualified within the public sector and the State Mortuary Service were not inclined to assist.

Ultimately, we engaged Dr Byron Collins from Victoria, who gave evidence at the trial and we are awaiting the court’s reserved decision on all the charges.

On the Integration Between Law Disciplines and Science

The law has always involved interaction with other disciplines and sciences and the development of a wide body of knowledge generally by lawyers whose practices are litigation based (and that includes criminal law).

The evidence Dr Collins gave was interesting insofar as he had to comment upon whether the child in question was more likely to bruise from trauma if he was obese or otherwise significantly overweight, and interestingly the answer given was – yes obese people tend to more readily bruise than non-obese people.

One of the alleged assaults involved a bruise to the left jaw area of the child which the child said had been caused by his father squeezing his face very tightly using a hand.

My immediate thought was that a squeezing or pincer action to a child’s face would require squeezing both the left and right sides of the face.

In this case there was relatively extensive bruising to the child’s left jaw but no bruising to the right jaw. When in evidence I suggested that the child’s face had not been squeezed as he had suggested, Dr Collins agreed because of the lack of bruising to the right side of the jaw. i.e. significant force would have had to be applied to the right side of the jaw, to result in enough force being applied to the left side of the jaw, to give rise to bruising to the left side of the jaw.

What also emerged was the lack of an ability of a forensic pathologist to accurately date when a bruise had arisen. That is because some people bruise more easily than others, and because bruises emerge and resolve at different rates, and interestingly the colour that a bruise can present changes and includes shades of purple, yellow and even green.

When a proposition was put to Dr Collins as to whether a blow by a broom to the child’s backside had to be severe in order to produce the bruising that had arisen, Dr Collins rejected that proposition because the child in question was wearing board shorts and Dr Collins indicated that if the force used had been severe, not only would there be a significant bruise, but there would also be what he described as a ‘compound injury’ – the compound injury would be the existence of the bruise but also an abrasion injury to the skin itself caused by the material of the board shorts.

The Potential Implications of Forensic Testimony

Accordingly, the lesson to be learned (at least from my perspective) is that accusations of assault when put under the microscope of a forensic pathologist, can sometimes be comprehensively and scientifically refuted, giving the courts a far better basis to determine guilt or innocence than upon the mere say so of witnesses.

The cost of obtaining such evidence is significant but the benefits of an acquittal and the knock on effect of findings of innocence by a magistrate, can have far reaching implications, especially when such accusations arise in Family Court ‘custody’ disputes.

If you are faced with a particular legal matter or challenge and would like to discuss your options going forward, contact Steven Blyth, Partner on sblyth@lbandh.com.au to schedule an appointment.