EXPERT REACTION: Kathleen Folbigg pardoned

Having championed Kathleen Folbigg's case in public lectures for some time, I am delighted that she has, at last, been granted an unconditional pardon.  However, this is only the first step in the legal process and I expect that her lawyers will now take her case to the Court of Criminal Appeal with a view to quashing her conviction. If successful, it is conceivable that significant compensation will be awarded to her for the 20 years she has spent in prison.

I think it is important to recognise, however, that given our state of knowledge (at the time of her conviction) of the causes of sudden unexplained death in infants, it is not surprising that she was convicted in 2003. This together with the way in which the evidence was presented in Court and the impact that Folbigg's dysfunctional personality may have had on the Jury, it was inevitable that a guilty verdict was handed down. Folbigg suffered from an attachment disorder which contributed to "suspicious" entries in her diary at that time. These were interpreted by the Prosecution, inappropriately in my view, as intent to harm the children.

Though the wheels have turned slowly, it is gratifying that advances in medical science since that time have finally been recognised. It was found, subsequently, that two of Folbigg's children, Sarah and Laura, had a hitherto undescribed mutation in the gene coding for the protein, calmodulin. This protein plays a role in the regulation of cardiac rhythm and can cause sudden death, particularly in children aged two years and younger. That together with Patrick's epilepsy which quite probably contributed to his demise, made Folbigg's conviction unsound and unsafe.

In our legal system the accused does not have to prove their innocence; the onus is on the Prosecution to prove their guilt beyond reasonable doubt. Given the subsequent findings, I believe that much more than a reasonable doubt now exists.

This case shows the difficulty the law often has with science. The criminal trial deals in the binary guilty-not guilty. Science is often far less clear-cut. The prosecution case against Kathleen Folbigg relied heavily on the unlikelihood of all four of her children dying at such young ages of natural causes, supported by reliance on the now-discredited ‘Meadows law’.

The expert evidence of now-retired British paediatrician Roy Meadow had been used in criminal cases in the UK, to help convict several women of killing their children. He famously said that "unless proven otherwise, one cot death is tragic, two is suspicious and three is murder". Women convicted of killing their children, such as Sally Clark and Angela Cannings, were subsequently exonerated and Meadows has been heavily criticised for his role in their convictions. Kathleen Folbigg’s conviction has long seemed to many to have been unjust. Her pardon and release from prison raise significant questions for how science and experts should be used in criminal trials.

Attorney General Michael Daly’s pardon of Kathleen Folbigg marks a watershed moment for the Australian legal and scientific communities. While much will be written about Folbigg’s incarceration and what her future holds – the bigger question is how new scientific fields and technologies can be applied to legal cases of the past.

Community based innocence projects are not new, with teams of undergraduate students, scholars and lawyers working pro bono reviewing cases and evidence. What has been missing, is the ability to apply new scientific discoveries and technology to old cases, to re-evaluate evidence in light of that new knowledge and provide impartial advice to the justice system. But how could we encourage more scientists to engage in this, often adversarial process?  
 
One clever idea from the Australian Academy of Science would see the judiciary appoint scientific experts to serve as independent advisors to the courts, who could explain the science and help judges and jurors make decisions based upon the most up to date scientific knowledge we have. As a nation, we already rely on independent scientific expertise to help governments and industries in making informed choices. It only makes sense to extend this practice to our justice system.

The inculpatory evidence (about the possibility of death by smothering) given at trial by the forensic pathologist should not have been admitted. He agreed there was no forensic pathology evidence to support a conclusion of death by smothering. The conviction should never have occurred. 

The Australian Academy of Science welcomes today’s finding by former Chief Justice of NSW Tom Bathurst AC KC of reasonable doubt regarding the convictions of Kathleen Folbigg. Commissioner Bathurst’s findings have enabled the NSW Attorney General Michael Daley to recommend to the NSW Governor that Kathleen Folbigg be unconditionally pardoned.

The Australian Academy of Science, which acted as an independent scientific adviser to the Second Folbigg Inquiry, applauds the NSW justice system for having so comprehensively heard science.
Academy President Professor Chennupati Jagadish said, “I am relieved that an unconditional pardon to Kathleen Folbigg has been granted and that science has been heard.”

The representative of the Director of Public Prosecutions (DPP) at the Inquiry noted the importance of ensuring that new scientific evidence received by the Inquiry was obtained from independent and reliable sources. The NSW Attorney General also noted that it is appropriate that NSW have the mechanisms to re-consider these matters in the light of new evidence.

The question must now be asked: how do we create a system where complex and emerging science can inform the justice system more readily?
Academy Chief Executive Anna-Maria Arabia said the Academy looks forward to working with the NSW Attorney General to develop and implement a more science-sensitive legal system so that a miscarriage of justice of this magnitude never be repeated.

“This case has implications for the justice systems of every Australian state and territory,” Ms Arabia said.

“There is a critical role for independent scientific advice in the justice system, particularly where there is complex and emerging science.”
Ms Folbigg was convicted in 2003 of the murder of three of her children, infliction of grievous bodily harm on one child and the manslaughter of her first born.

The Second Inquiry into Ms Folbigg’s convictions is believed to be one of the first times worldwide that a Learned Academy has acted as an independent scientific adviser during a public inquiry into an individual’s criminal convictions.

The Academy would like to acknowledge the contributions of many of the scientific experts from across the world who were called to give evidence at the Inquiry.

In particular, we would like to acknowledge Academy Fellow Professor Carola Vinuesa FAA FRS. Her research with 26 co-authors, in a leading international medical journal, led to the establishment of this Second Inquiry.