The family of shaken baby Stephen Ebbin must wait longer for justice after Jacqueline Fubler gave an equivocal plea before the Chief Justice, minutes before he was to sentence her.

Chief Justice Richard Ground ordered that Fubler?s case be sent back down to Magistrates? Court for re-trial after she said she had injured the ten month old boy in 2001 but does not know how he could have the symptoms of shaken baby syndrome as a result of her actions.

In March, she pleaded guilty in Magistrates? Court to causing grievous bodily harm to the infant at her former day care, Noah?s Ark in Warwick. Fubler, who is a mother of two children, has been incarcerated since mid-March when she entered a guilty plea in Magistrates? Court.

In a social inquiry report dated April 30, Fubler denied causing the injuries. ?You?ve pleaded guilty to the charge against you, but in the psychiatric evaluation and in the social inquiry report interviews you said you did not cause these injuries,? said Chief Justice Richard Ground yesterday.

Fubler said Stephen had been injured accidentally and denied ever shaking him. ?He had fallen out of a chair and cut his lip and he had a bruise on his head. But I will not plead guilty to violently shaking Stephen Ebbin.?

Defence lawyer Mark Pettingill told the court that Fubler?s plea was ambiguous as she said she was unaware of how Stephen received the head injuries. A special hearing was held early in May to establish how Stephen received the injuries.

Senior Crown Counsel Lloyd Rayney said if Fubler is now denying that she caused the injuries she was in fact changing her guilty plea to one of not guilty.

Mr. Justice Ground told the Ebbin family that he had no basis on which to sentence Fubler due to her denial that she severely shook Stephen and caused injuries consistent with shaken baby syndrome.

?It will be remitted to the proper court for trial where it left off,? said Mr. Justice Ground. ?I do this with a really heavy heart as I am aware of the pain and the misery this will cause family members.

?I hope the family will understand and bear with this delay as the court must understand what the circumstances were in order for me to sentence properly.?

He refused Mr. Pettingill?s application for bail. During the Magistrates? Court trial in March, photographs of dark red bruises and markings on the arms, legs, and forehead of Stephen were presented.

Senior Crown Counsel Lloyd Rayney told the court the head injuries sustained by Stephen are irreversible and the child would never be able to reach his full potential. Dr. Alexander Barron, a paediatrician at King Edward VII Memorial Hospital, told the court that Stephen had suffered serious brain injury caused by being shaken back and forth at a high velocity.

He said this caused blood vessels in his brain to burst. Stephen had to be taken by air ambulance to Children?s Hospital Boston for treatment.

The court viewed photographs of crimson bruises on Stephen?s cheek and forehead and a cut on his lower lip inflicted by a ring Fubler was wearing.

CT scans taken since that date have shown that there is permanent fluid on Stephen?s brain which cannot be corrected and has caused a dramatic increase in his head circumference.

Previously, Mr. Rayney had recommended Fubler face a three- to five-year prison sentence. The case went to trial in Magistrates? Court this year after Fubler?s attempts to secure legal aid and a medical witness for her defence were unsuccessful.