EXPERT REACTION: Nobel Laureates and leading scientists call for Kathleen Folbigg pardon

I signed because I accept the proposition that the mutation in the CALM2 gene shared by Sarah and Laura Folbigg is likely pathogenic, and so provides a reasonable explanation for their deaths, which in turn leads me to believe that there is reasonable doubt that their mother killed them.

I was also concerned about the extent to which the 'coincidence evidence' played an unduly large role in assessing the other medical and non-medical evidence. I believe that the proper assessment of 'coincidence evidence' is far more challenging than most people - professionals and laypersons - appreciate.

It is my view that the Folbigg case should be referred to the Court of Criminal Appeal for further review for the following reasons:

The evidence of Dr Cala which was given at trial should not have been admitted because it did not comply with the requirements for the admissibility of expert opinion evidence. He asserted that based upon ‘his experience’, four unexplained deaths of young children could be interpreted to have been from non-accidental causes. That was not an opinion based upon ‘specialised knowledge’ as the result of study or training. It should also be noted that the cases of Jeffrey Gilham and the Weightman family were adversely affected by errors by Dr Cala – see the Dr Cala Homepage.

The opinions of Professor Cordner and Dr Hilton make it clear that there is credible scientific evidence to establish that the deaths of one or two of the children were from ascertainable and identifiable illness. That is sufficient to establish that the case which was put by the Crown at trial of four deaths from unidentifiable causes at the trial of Ms Folbigg was incorrect. Professor Cordner was the leading expert who established that Dr Cala’s evidence was incorrect on the successful Gilham appeal.
The subsequent DNA evidence, which has been supported by a plethora of well-credentialled experts, makes it perfectly clear that the hypothesis put forward by Professor Cordner and Dr Hilton has been confirmed. There is no longer any scientific basis to support the case put forward by the Crown at the trial of Ms Folbigg.

The purpose of the Board of Inquiry was merely to establish if leave to appeal should be granted for a further appeal. An appeal can be allowed where there has been an error at trial which could reasonably have influenced the jury in arriving at their verdict. The scientific evidence provides such a basis and clearly the case should have been referred by the Inquiry for a further appeal.

However, the judge at the Inquiry went on to consider the statements made by Ms Folbigg in her diary. He interpreted those as adding weight to the hypothesis that she had murdered her children. However, such material can only be relevant where the factual basis for such a claim remains undisturbed. Once there is evidence to show that one or more of the children had died from an identifiable disease process, the factual basis for the Crown case at trial cannot be sustained and the verdict must be set aside. When the judge at the Inquiry went on to consider the guilt of Ms Folbigg, he stepped outside the remit of his proper function. The guilt of an accused person can only be determined by a jury, properly instructed. The purpose of appellate review is merely to determine if the jury had been given reliable evidence and properly informed of the relevant legal issues. Once it is established that the factual basis upon which they arrive at their judgment was in error, that is sufficient for an appeal to be allowed – and a fortiori – for leave to appeal to be granted.

The entries by Ms Folbigg in her diary, which can only go to motive, cannot be relevant if the factual basis of the Crown case has been shown to be false. Even if the entries by Ms Folbigg were seen to be ‘confessions’ to murder (and I do not see that they can be), they could not be relevant until it is established that a murder has occurred. Without that, they could merely be seen to be a ‘false confession’ – the cases on that are frequent and well-established in all jurisdictions.

It may be added, for further discussion, that the current appeal procedures in NSW (and the ACT, Q’land, and NT) have been determined by the Australian Human Rights Commission (see para 6.2) to be inconsistent with Australia’s international human rights obligations. They do not adequately protect the right to a fair trial or the right to an effective appeal. This is why we helped to establish a new statutory right of appeal in South Australia, Tasmania and Victoria, with Western Australia underway. If that arrangement were in place in NSW, Ms Folbigg would have been able to apply directly to the Court of Criminal Appeal for leave to appeal, and many of the current confusions and unnecessary expense and delay could have been circumvented.

In addition, we have argued, along with Michael Kirby, former justice of the High Court of Australia, that we should have established a Criminal Cases Review Commission for Australia, similar to those which exist in the UK, Norway, New Zealand and soon in Canada. See Mr Kirby’s article here.

This petition shows the important role that the new tool of whole genome sequencing can provide for the legal system. In particular, it can provide information about potentially pathogenic (disease-causing) mutations that would not be visible through other kinds of genetic tests.

It is worth noting that the novelty of the genetic mutation that scientists report may have resulted in the deaths of Ms Folbigg's children are research data that have not yet been clinically validated. This is often the case with whole-genome data, which by its very nature picks up on rare events.

The eminence of the scientists who have signed the petition, as well as the peer-reviewed nature of the publishing journal, speaks to the quality of the data that has been generated. In my mind, this should be adequate to reassert the presumption of innocence. It also speaks to the need for systematic efforts to incorporate whole-genome sequencing into legal cases of this nature in the future.