A doctor who testified in the trial of a woman accused of nearly killing a ten month old boy had the authority of his evidence questioned in Magistrates' Court yesterday.

In March, former Noah's Ark Day Care owner Jacquelyn Fubler, 28, of Pearman's Hill West Warwick, admitted to causing grievous bodily harm to Stephen Ebbin, who was in her care on July 6, 2001.

At that time, Magistrate Tyrone Chin ordered the case be sent to the Supreme Court and Fubler was remanded in custody pending her sentence.

In May, 2004 when the case was presented in the Supreme Court to Chief Justice Richard Ground, Fubler admitted to causing grievous bodily harm to Stephen but stated she did not shake him so violently to cause symptoms consistent with shaken baby syndrome.

The case was then ordered back to Magistrates' Court for re-trial under the same magistrate to determined how the injuries occurred.

Yesterday, lawyers wrangled over the medical validity of evidence given by Stephen's paediatrician, Dr. Alexander Barron. Defence counsel Mark Pettingill told the court that medical evidence presented in the case had not followed the proper legal channels to be admitted as expert evidence.

In March, Dr. Barron told the court Stephen had an internal brain injury consistent with being shaken back and forth at a high velocity. He told the court blood vessels in the child's brain had burst, a classic indication of shaken baby syndrome. Scans of the brain taken after the date in question showed there was permanent fluid on his brain which can not be corrected and had caused a dramatic increase in head circumference. Experts have predicted that Stephen will never reach his full potential as a result of the injuries.

The court was also shown photographs of dark crimson bruises on Stephen's arm and legs and a cut on his lip said to be inflicted by the mother of two.

Stephen, now age three, had to be flown to Children's Hospital Boston for treatment that day, and was found by doctors to have a left-sided chronic facial seizure associated with head trauma. According to evidence submitted by the prosecution, seizures are seen as an important marker for brain dysfunction in children.

Mr. Pettingill said the evidence given by Dr. Barron was not backed up with testimony or reports from overseas witnesses and was “documentary hearsay”.

“Dr. Barron is not an expert, he was not admitted as an expert nor could he give expertise in the area required as he is not an expert in brain injury or wound interpretation,” said Mr. Pettingill.”

He questioned evidence given by Dr. Barron about Stephen's condition as it was relayed to him by other doctors and was not based on his own observations.

Mr. Pettingill said his client never had the opportunity to have Dr. Barron's evidence challenged at the time in Magistrates' Court.

“Your worship has to make a decision so he is sure that the injury observed in Stephen Ebbin is a traumatic injury to the brain attributable to violently shaking and that in the time frame of this injury occurring the defendant is the only person who could have caused that injury,” said Mr. Pettingill.

But prosecutor Kulandra Ratneser said that, since the case had taken place in Magistrates' Court, Mr. Chin was acting as both judge and jury and thus had the authority to decide what medical evidence was presented in court. He said the injuries suffered by Stephen related directly to the definition of grievous bodily harm under the Criminal Code, therefore qualifying Dr. Barron to give evidence of how the injuries impacted the child's health.

“We don't need an expert to determine that the health and comfort of this little child was affected, we can draw the inference from the evidence of either the victim or those who had observed the victim,” said Mr. Ratneser.

Since Stephen had survived the injuries, Mr. Ratneser said a highly trained expert was not needed to interpret how the injuries related to death.

“The simple question is did the accused do something to the child that caused the child to bleed in the brain.”

Medical evidence, including that of Dr. Alon Duby, a KEMH emergency room physician who saw Stephen when he was admitted on July 6, stated the child was in a coma, had bruising on his body and was slightly dehydrated. An admissions nurse noted the child was suffering from a seizure.

Yesterday, several witnesses took the stand, including Alanda Joaquin, Stephen's grandmother, who read a statement she gave Police on July 18, 2001.

She told the court how she cared for Stephen while his mother was at work.

Stephen's grandmother told the court that she took a trip at the beginning of July and when she returned to Bermuda on July 15, she noticed Stephen's head was swollen and he had lost weight.

Following on the stand yesterday, Stephen's mother, Theresa Ebbin, read out her Police statement, which was made on July 6, 2001.

Ms Ebbin told the court that she saw a bruise on Stephen's thigh and a cut on his forehead after she picked him up from day care several days before the assaults allegedly took place.

Ms Ebbin said Fubler told her Stephen received those injuries when he fell off of a chair. The court heard that on July 4 and July 5 Stephen threw up at day care and that the mother described her son as fussy and tired.

Ms Ebbin told the court she called paediatrician Dr. Alexander Barron about her son vomiting and he told her that there was a stomach bug going around.

The court heard on July 6, Stephen's mother fed him then she took him to day care.

Later that day the mother received a “hysterical” voicemail from the defendant, which she could not really make out except that something was wrong with her son, who had been taken to hospital by ambulance.

Ms Ebbin said that Fubler told her she put Stephen in the same chair and left the room and when she came back he was slumped in the chair.

Stephen was taken to the hospital and blood tests came back normal. He was airlifted to Children's Hospital Boston for further treatment.

Ms Ebbin said Fubler told her that she hit Stephen on the forehead with her hand by accident because he came up behind her while she was playing a game with other children.

Stephen's grandfather, Curtis Leroy Ebbin also took the stand, telling the court that on July 3 he noticed a bump on Stephen's forehead after he picked him up from day care. Fubler told him he had fallen out of a chair.

Hope Raynor, clinical co-ordinator at KEMH said she went to the day care on July 6 after receiving a 9-11 call.

She said Stephen was breathing and had a pulse but was unresponsive when she arrived and she noticed a bruise on his thigh and forehead.