In what could become a significant test of how New Zealand courts deal with disputed medical evidence, an Auckland father at the centre of Melanie Reid’s latest investigation is seeking bail while he appeals his conviction.
Justin* was convicted in 2024 after Starship Hospital doctors told a jury his son had suffered a fractured hip and 19 back rib fractures, and is more than two years into a six-year prison sentence.
Four international medical experts engaged by Reid and her team have since reviewed the same imaging relied on by the Starship doctors and concluded there is no evidence of 19 rib fractures.
Experts also say the child’s hip injury is consistent with Justin’s account of an accident he had while showering his son.
Justin’s application for bail pending appeal comes as his legal team argues there is now compelling expert evidence that was not available to the jury.
Under New Zealand law, bail pending appeal is both uncommon and rarely granted. An applicant must generally show either exceptional circumstances or a strong likelihood that their appeal will succeed. As a result, defence lawyers do not typically make such applications unless they believe there are strong grounds and a realistic prospect of success.
The bail application is set to be determined on July 28.
Justin’s appeal lawyer, Kerry Cook, says he can’t comment while the case is before the appeal court.
For the past three years, Reid and her team have been looking into cases where parents have been accused of injuring their infants, but reviews of medical records by international experts have since found the injuries either had other potential causes, such as birth trauma and metabolic bone disease, or did not exist at all. These cases have been covered extensively in two podcasts, Fractured and Diagnosis of a Crime, on Newsroom’s investigative podcast arm, Delve.
Throughout their investigations they have repeatedly asked Health NZ and Starship Hospital doctors to identify the rib fractures relied upon in Justin’s prosecution. It has declined to do so.
Justin’s story
What began as a doctor’s visit for a hip injury became a non-accidental injury case that ended in a six-year prison sentence.
Justin and his partner took their one-year-old son to their GP after a near-fall in the shower. Although the infant appeared uninjured at the time, his parents became concerned the following day and sought medical help.
Doctors initially missed the injury, instead diagnosing a torn muscle and sending the family home (their usual doctor was away and they saw a locum). Two days later, out of the blue they received a call from their GP practice saying they needed to bring their son to Starship immediately or Oranga Tamariki would be called. They raced across the Harbour Bridge where further imaging revealed a fractured hip requiring surgery and a spica cast.
During the infant’s admission, doctors concluded the child also had 19 rib fractures and diagnosed non-accidental injury.
The father was charged by police and then convicted of causing grievous bodily harm in a jury trial where no medical experts appeared for his defence. He is now almost halfway through his sentence at an Auckland prison.
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.
Four international specialists have found the so-called rib fractures do not exist.
Additional overseas specialists have concluded the hip fracture is consistent with the father’s description of the shower accident.
This is in direct contrast to key expert evidence given at Justin’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.
More than 20 cases
Justin’s case is just one of a growing number of families whose lives have been torn apart by allegations of non-accidental injury.
Reid said the possibility of a representative or class action-style claim is now being considered, while former Race Relations and Human Rights Commissioner Joris de Bres has launched a petition calling for an independent inquiry into how these cases are investigated and prosecuted.
“I started off advocating for one mother and father who had their baby taken from them by Oranga Tamariki, with the mother subsequently being jailed for allegedly harming her. But after Melanie Reid and Bonnie Sumner investigated and published their story, citing overseas medical experts who challenged the evidence that led to her conviction, the response from other parents made it clear that this was a systemic issue,” says de Bres.
“We can’t leave each of these parents to wage their own battles to get their children back and fight the charges against them if it is a systemic problem. That’s why I have started a petition to Parliament for a wide-ranging inquiry into the whole issue of children being removed from their parents and parents being charged on the basis of a questionable medical diagnosis of abuse.”
Despite the growing calls for a broader review into the potential systemic issues underpinning a growing number of disputed non-accidental injury allegations, those in charge are refusing to take a closer look.
The Delve team has repeatedly gone to Health NZ over the past three years to ask them to identify the fractures international experts have said don’t exist, and whether there is a systemic issue of misdiagnosing or over-diagnosing non-accidental injury in Te Puaruruhau.
They consistently provide the same response, that “it would not be appropriate for Health New Zealand to comment on a specific case in which our clinicians have provided evidence”. And, “We have the utmost confidence in the expertise, impartiality and integrity of our paediatric radiologists and child protection teams who provide expert evidence.”
You can read more about the Delve team’s ongoing attempts to get answers from Health NZ here.
Reid and her team have now been approached by more than 20 families, and have investigated six separate cases, where the evidence put forward by Starship Hospital’s child protection unit, Te Puaruruhau, has been disputed by international experts.
While no one denies that physical child abuse does occur, the families in the cases uncovered by Newsroom’s investigation’s team say the cookie-cutter responses from Health NZ and ministers fall short of the standards expected of those in charge of the country’s health system.
These families and their advocates continue to call for reviews of their cases, a broader systemic review, and accountability for those who they believe have failed in their duty of care and responsibilities.
Systemically failing children
This investigation comes in the wake of a series of inquiries in recent years that have put the spotlight on examples of the state failing children – from illegal uplifts then reverse uplifts by Oranga Tamariki, through to the widespread abuse and torture of children in state care.
In the case of Oranga Tamariki’s without-notice uplifts – like the one that occurred in Melanie Reid’s explosive expose into the attempted uplift of a newborn baby from Hastings hospital in Hawke’s Bay in 2019 – an urgent Waitangi Tribunal inquiry found the government department’s policies and practices resulted in “a number of serious breaches of both the terms of te Tiriti/the Treaty and its principles, and that this has resulted in significant and ongoing prejudice to Māori”.
Then in 2022, Newsroom released another extensive video investigation, Breaking Bad Practice, involving four young children who were taken from their “forever home” with a foster couple and placed with extended whānau they had had limited contact with, in a different region of the country.
As a result of the investigation, then minister for children Kelvin Davis ordered an immediate halt to all reverse uplifts.
That same year Chief Ombudsman Peter Boshier released an inquiry into the case that backed the findings of Newsroom’s investigation, in a report that lambasted Oranga Tamariki’s practices.
The Royal Commission of Inquiry into Abuse in Care found children taken into state care suffered widespread physical and sexual abuse, and torture, over decades. Once the state became aware of the abuse, it began a campaign of cover-up and managing legal, financial and reputational risk.
Now, this latest ongoing investigation from Melanie Reid and her team has highlighted another area where the state has been accused of systemically failing children.
“We can now show there is a ‘overcall’ occurring in multiple cases diagnosed by the Starship child protection unit and in paediatric hospital care throughout New Zealand – it would appear that many of these wrongful accusations and potential wrongful convictions are based on outdated science or a belief system, and other plausible medical explanations for injuries are being overlooked,” says Reid.
‘Criminal assumption’
Throughout reporting on this issue, Newsroom has repeatedly sought comment from government ministers, asking what steps they planned to take to ensure justice had been achieved in the specific cases reported on in the Newsroom podcast series Fractured and Diagnosis of a Crime. They were also asked whether they would seek official advice or commit to an inquiry into what could be a systemic problem.
The ministers’ responses have largely echoed those of Health NZ – expressing confidence in the medical experts at Starship Hospital’s Child Protection Unit and refusing to offer further comments, citing ongoing court proceedings.
Justice Minister Paul Goldsmith said it would be inappropriate to comment on matters either before the court, or being investigated by the Criminal Cases Review Commission. A spokesperson for Simeon Brown added that the health minister had confidence in the clinical specialists across Health NZ who provided expert evidence to the courts.
The Children’s Minister, Karen Chhour, did not provide a response, with a spokesperson saying it was an important issue and the questions put to political leaders were fair, but Oranga Tamariki – the agency overseen by the minister – did not play a role in this part of the process.
Meanwhile, Labour’s justice spokesperson Camilla Belich said if elected, Labour would seek advice before commenting on any future steps.
Of the political leaders approached by Newsroom, Green Party co-leader Marama Davidson was the only one who said her party supported calls for both a review of the cases detailed by Newsroom, as well as an independent review of the “potential broader systemic issues at play”.
Doubts revealed by the investigations into some families being seemingly wrongly criminalised for hurting their children could not be ignored, she said.
“New Zealanders need reassurance that government decisions to protect children from harm are made using the best available evidence. That means being willing to examine evidence when credible concerns are raised.”
Davidson said when she was diagnosed with breast cancer, a veteran experienced oncologist informed her that even though she had decades of experience and could ascertain from initial tests that she most likely had cancer, those results would still need to be sent to the lab to properly confirm and diagnose her medically.
“What jumps out at me from reading through the Delve investigations is that there seems to be a missing step and a criminal assumption of a child’s condition is too readily assumed. This feels wrong to me even at a basic level of understanding both health and justice processes.”
The further harm perpetuated, once any parent was found criminal and children were removed from custody and court proceedings followed, was too great to dismiss, she said, adding that this needed further investigation.
Davidson said any review should centre on the wellbeing of families and children, and help maintain public confidence in child protection, health, and justice processes.
“The Green Party recognised that child protection professionals, clinicians and frontline staff carried huge responsibility and played a critical role in keeping children safe.
“Public institutions must be accountable and improve when legitimate concerns are raised about potential miscarriages of justice, to ensure the right decisions are made for children and their families, as the stakes are so high.”
Lady Tureiti Moxon, chairperson at the National Urban Māori Authority and managing director of Waikato health services provider Te Kōhao Health, also saw these as systemic issues that warranted further investigation.
“We are relying on a system that has obviously got it wrong a number of times. This is not an isolated mistake; it is a pattern of systemic failure. The court has treated expert opinion as unquestionable fact, and that trust has been catastrophically misplaced,” said Moxon.
“Families have been torn apart, tamariki separated from their parents, and whānau have lost years of their lives in prison all based on evidence now in serious doubt. Access to justice should not depend on whether a family can afford their own expert. No family’s future should hinge on a single opinion. You cannot build a just system on a foundation of injustice and this must stop.”
While there appears to be no appetite for a deeper inquiry among current government ministers, the families who have been affected by these allegations and their advocates continue to push for accountability through different channels.
The families involved in the cases highlighted by Newsroom said they were considering representative action against the Government – New Zealand’s version of a class action lawsuit.
Zita’s case
Meanwhile, the Criminal Cases Review Commission is considering Zita’s* case, after Reid’s team and Zita’s advocate – former Human Rights Commissioner Joris de Bres – requested a systemic inquiry.
Zita was sent to prison for two years and seven months after she was convicted of injuring her baby following a diagnosis of non-accidental injury from Starship. Overseas experts concluded her daughter’s injuries were likely the result of severely low vitamin D and a prolonged, traumatic birth.
De Bres said he also planned to launch a parliamentary petition, calling for a broader, systemic inquiry into potential misdiagnoses of child abuse and potential miscarriages of justice.
Writing in Newsroom earlier this month, de Bres said: “This is clearly a systemic issue and needs to be inquired into independently to put right past injustices and prevent future ones. We are all rightly concerned about child abuse, but we must also care for those who are wrongfully accused of it.”
He went on to say: “While internationally these diagnoses are increasingly challenged, the medical establishment in New Zealand remains unmoved.
“An independent inquiry must be conducted to hear the parents’ stories and critically examine the validity of the scientific and legal basis on which such prosecutions are being brought. Otherwise, there is a real risk that more parents will be wrongfully convicted and more children will be unnecessarily removed from their parents by the state.”
* Not their real names
To hear more about this issue, you can listen to both seasons of Fractured and both seasons of Diagnosis of a Crime by searching for our channel Delve on Spotify, Apple or wherever you listen to your podcasts.
