Victorian man allowed to appeal child homicide conviction after lawyers question baby shaking evidence

A man found guilty of killing his girlfriend’s baby son will be allowed to appeal the conviction, after a Victorian court agreed to hear from forensic experts who he says contradict evidence given during his trial.

Jesse Vinaccia was found guilty of child homicide and sentenced to eight and a half years’ jail in 2019, in part because of evidence about so-called “shaken baby syndrome”.

His case is one of three before the Victorian court of appeal involving men convicted after experts or scientists gave evidence that a “triad” of injuries found in the alleged victims could have only been inflicted by shaking or deliberate violent force.

In January 2016, Vinaccia found three-month-old Kaleb Baylis-Clarke unresponsive in his cot.

Vinaccia, who was 22 at the time, had been caring for the infant for the previous two hours. Kaleb died a week later in hospital.

On Tuesday, lawyers for Vinaccia succeeded in an application to have an appeal against his child homicide conviction considered on multiple grounds. Primarily what they will argue is the lack of scientific validation of a method used to diagnose the “triad” of injuries in infants : bleeding in the brain, the brain swelling and retinal haemorrhage.

Vinaccia’s lawyer, Richard Edney, argued in court that not only is there no scientific validation, but there is controversy about its validity as a diagnostic method.

Edney said it was for the court to determine whether two other appeals lodged against convictions based on similar evidence – including evidence given by the same experts – should be joined with the Vinaccia appeal.

Joby Rowe, who was found guilty of child homicide over the death of his three-month-old daughter, and Jesse Thomas Harvey, who was found guilty of recklessly causing serious injury to his seven-week-old son, have also submitted applications to appeal their convictions before the court.

The court of appeal is yet to decide if these cases will be joined to the Vinaccia matter.

The court’s president, Justice Chris Maxwell, said it had agreed to hear the Vinaccia appeal as the submissions made by Edney about new expert evidence deserved to be tested.

Edney argued during a previous appeal hearing that “the evidence is so cogent, plausible and probable that it would, if admitted ... establish that effectively, an innocent person has been convicted, or there has been a substantial miscarriage of justice”.

Christopher Boyce QC, for the prosecution, argued on Tuesday that the application should fail by either finality or futility: Vinaccia had the opportunity to present contradictory expert witnesses during his trial and did not do so, and the expert reports provided by Edney did not address the fundamental strength of the evidence given to the jury.

Boyce also said that given Vinaccia said during his police interview that he had handled Kaleb roughly shortly before he was found unresponsive it was “not a pure triad case”, as these admissions were part of the evidence given at trial.

Boyce said the prosecution would call expert witnesses to give rebuttal evidence during the appeal, which is set to be heard later this year.