THE PROSECUTION OF INFANT PHYSICAL ABUSE CARINA COETZEE SAPSAC 14 TH ANNUAL NATIONAL CHILD ABUSE CONFERENCE JUNE 2013

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1 THE PROSECUTION OF INFANT PHYSICAL ABUSE CARINA COETZEE SAPSAC 14 TH ANNUAL NATIONAL CHILD ABUSE CONFERENCE JUNE 2013

2 INVESTIGATION Any unexplained death of an infant / child MUST be investigated, namely SIDS & Killer Couch incidents The thorough investigation is the duty and moral obligation of every Medical Professional and SAPS Investigating Officer. Enough evidence must be collected to allow the Court to draw only one reasonable inference from the totality of the evidence.

3 INVESTIGATION A history must be obtained to include detailed description of the circumstances leading up to the death / injuries, including activities / incidents in the days or weeks immediately preceding the death / injuries Witness statements must be obtained from all relevant persons, namely teachers, family members, neighbours A video reconstruction of the incident with a weighted doll can also be of the utmost importance

4 INVESTIGATION Investigation by the SA Criminal Record Centre at the scene where the infant / child had been injured ( crime scene ) MUST include meticulous measurements and clear photographs. Thorough history taking as Warning Statements to ensure admissibility of statements during a subsequent trial. Forensic Pathologists must visit crime scenes to enable them to give expert opinions during a subsequent trials.

5 POST MORTEM / ADMISSION EXAMINATION Record of exact time of arrival at hospital; Complete notes of infant /child s condition on arrival; A complete history from the parents / caregivers / person in whose care the child was injured; A complete radiological Skeletal survey; A brain scan with detailed radiological interpretation; A retinal examination by an Ophthalmologist;

6 POST MORTEM / ADMISSION EXAMINATION An opinion from a Orthopaedic Surgeon / expert Radiologist when there are fractures of various ages of healing; Clear & precise photographs of all vital injuries and damaged organs. A reference scale should be placed in the same plane as the injury & visible in the photos to enable subsequent measurements.

7 POST MORTEM / ADMISSION EXAMINATION Full & detailed description of all external attributes & injuries, with the view of determining age(s) & cause(s) Injuries must be dated to indicate the time frame in which the injury was sustained. Determine the presence of underlying diseases, either as cause of death, incidental finding or contributory condition, Natural diseases includes osteogenises imperfecta, rickets, Menkes disease, etc

8 CONSULTATIONS All Medical Professionals must be available for detailed consultations with the Prosecutor Consultations provide an opportunity for the Medical Professionals to obtain relevant details regarding the case And provide an opportunity to Medical Professionals to conduct the necessary research for an informed opinion

9 1. Murder OFFENCES 2. Culpable Homicide 3. Assault with the intention to cause grievous bodily harm 4. Assault 5. Child Abuse in contravention of Section 305(3) of the Children s Act 38 of Accidental trauma does NOT result in criminal liability

10 THE TESTIMONY The expert witness testimony must be correct, objective, and impartial. The expert evidence must be based on her/his own observations and clinical findings. The Medical Professional must give an opinion about the symptoms the child would have presented with after sustaining the injury, nl loss of consciousness, pain, etc The Medical Professional must also comment whether the symptoms would have been severe enough to seek medical assistance

11 THE TESTIMONY The purpose of hearing expert evidence is to assist the presiding officer in finding the truth and to reach a just verdict. It is therefore of the utmost importance that the Medical Professional must base her/his opinion on the totality of the evidence. In other words, the injuries must not be regarded in isolation, but must be assessed in totality.

12 THE TESTIMONY The evidence must not be based on a hypothetical situation but that grounds exist upon which the fact or opinion is founded. S v Mkohle 1990 (1) SACR 95 (A) S v Zuma 2006 (2) SACR 191 (W)

13 THE TESTIMONY The facts stated or opinions expressed, will have little value if it is not linked to the facts of the particular case. The witness must therefore be familiar with the facts of the case. S v Laubscher 1979 (3) SA 47 (A) S v Mkohle 1990 (1) SACR 92 (A)

14 THE TESTIMONY An expert witness may not merely convey the opinion of others as contained in textbook(s). S/he must show s/he has personal knowledge of the matter and may refer to textbook only for purposes of refreshing her/his memory or to explain or support her/his own opinion and then only if s/he associates her/himself with the contents. Only those parts of the textbook to which reference was made, becomes evidence. S v Harris 1965 (2) SA 340 (A)

15 EXPERT WITNESS The purpose of an expert witness is to assist the Court with specialised knowledge that does not form part of judicial knowledge. In a complex medical case the evidence of an expert witness is invaluable to assist presiding officers reach just verdicts. The expert witness can give an opinion based on the facts of the case, her/his own experience, and other recognised sources. (Other witnesses are merely allowed to relate the facts.)

16 EXPERT WITNESS Definition of an Expert Witness: S v Gouws 1967(4) SA 527 (E) An Expert Witness is a witness who possesses knowledge in a specialized field and whose function is to assist the court in arriving at a correct decision

17 EXPERT WITNESS Holtzhauzen vs Roodt 1997(4) SA 766 Satchwell J In such circumstances I am of the view that it would be unwise and it would be irresponsible for myself as a judicial officer, who is lacking in special knowledge and skill, to attempt to draw inferences from facts which have been established by evidence, without welcoming the opportunity to learn and to receive guidance from an expert who is better qualified than myself to draw the inferences I am required myself to draw.

18 OPINION EVIDENCE Opinion evidence is irrelevant and inadmissible unless the witness, as a result of special training, experience or education, is more able than the Court to decide a particular issue. The expert s duty is merely to guide the presiding officer to a just verdict. The Court shall only rely on an expert opinion if s/he finds that the opinion is reliable, and based on fact. The expert s opinion can be based on recognised writers and authority.

19 CRIMINAL TRAIL The medical evidence forms the crux of the evidence. All the information collected shall be regarded as Circumstantial Evidence Inferences are to be drawn from the medical evidence as seen in the context of the history given at the time of admission or death. This inference is a technical one which cannot be drawn without expert knowledge. It should be the only reasonable inference to be drawn from the totality of the evidence.

20 CRIMINAL TRIAL R v Blom 1939 AD 188 The inferences to be drawn must be consistent with all the proved facts; and The facts proved should be such that they exclude every reasonable inference from them save the one sought to be drawn.

21 CRIMINAL TRIAL Aspects of importance;- 1. Severity of injuries 2. The presentation of symptoms after sustaining injuries 3. The type, the number and distribution of injuries 4. History supplied 5. Presentation of observable symptoms 6. Developmental milestones (of infant) 7. Age of injuries 8. Fracture-mechanism 9. Cause of death 10. Abrasion / incised injuries sustained before or after death occurred