No proof baby died from being shaken: defence
Published Monday, April 23, 2012 6:20PM EDT
HALIFAX - There are enough medical uncertainties about the death of a seven-week-old girl in Halifax to acquit her father of manslaughter and aggravated assault, the man's defence lawyer argued Monday.
Donald Murray delivered his closing arguments in the case of Ashiqur Rahman, who has pleaded not guilty in the July 2009 death of Aurora Breakthrough.
Jane Gomes, Rahman's ex-girlfriend and the child's mother, has told the Nova Scotia Supreme Court that she saw Rahman slap and shake the baby.
Medical examiner Marnie Wood concluded the death was the result of "non-accidental trauma."
But Murray argued Monday that evidence from pathologists and medical experts didn't prove she died as a result of being shaken or hit. He told Judge Felix Cacchione that after Aurora died, a pediatric cardiologist found she had a congenital heart condition.
Murray said it's possible that condition played a role in Aurora's cardiac arrest on July 23, 2009, four days before she died.
Outside court, Murray said the courts have had poor experiences in the past on relying on pathologists' opinions.
"They are informed guesses by doctors, but they're still guesses," he said.
"Even if they may be right, how much should the legal system trust them at this point? The legal system has had bad experiences before with accepting an opinion and suddenly discovering that medicine has moved on."
Murray said even if Wood were correct, there was no concrete evidence to show that Aurora suffered some trauma -- such as being shaken -- on the day she was rushed to hospital.
Murray said that he respects the pathologist's opinion, but he added that she made too many assumptions to meet the legal system's demands for definitive proof of what caused Aurora's death.
Murray also said it's possible injuries to Aurora's ribs, femur and wrist were caused by an accident such as a parent rolling onto her while sleeping with her in bed.
He also said the medical evidence indicated the baby's wrist was broken in the early weeks of the child's life, and that was a time when Rahman wasn't alone with the child.
Gomes pleaded guilty last year to a charge of failing to provide the necessities of life and received a conditional discharge with six months of probation. She agreed to testify at Rahman's trial as part of an agreement with the Crown.
Murray challenged her credibility in his closing remarks, saying it was troubling she had lied to her parents about her relationship with Rahman, her status as a student at Acadia University, and her pregnancy for many months prior to giving birth.
"It is a big deal in the criminal justice system when you lie to people," he said in court, urging the judge not to believe her testimony that Rahman assaulted Aurora.
"Jane Gomes had equal if not greater opportunity to inflict shaking injuries to Aurora Breakthrough than Ashiqur Rahman."
The prosecutors declined comment as they left the court. They will begin their final arguments Tuesday.