Andrew L. Urban.
When science clashes with the courts and science loses, the rule of law also loses – not to mention public confidence in the criminal justice system.
The Australian Academy of Science issued a strongly worded statement on Wednesday night (24/3/2021) immediately challenging the Court of Appeal’s rejection of Kathleen Folbigg’s appeal, re-stating “there are medical and scientific explanations for the death of each of Kathleen Folbigg’s children”.
As we reported (9/3/2021) 90 eminent scientists—including two Australian Nobel Laureates, medical practitioners, science leaders and prominent Australians—had signed a petition calling for Kathleen Folbigg’s immediate pardon and release from jail. They weren’t asking for mercy; they were demanding justice. It’s an attack on the court, according to The Australian‘s News Editor, Stephen Rice.
The three appeal court judges found there was no “error of law” in the 2019 report by retired District Court judge Reginald Blanch who concluded there was no reasonable doubt to Folbigg’s conviction.
“The appeal reviewed the legal processes undertaken by the inquiry but did not consider an assessment of the scientific evidence available since the inquiry,” the Academy said.
Academy president John Shine said it was “deeply concerning that there is not a mechanism to appropriately weigh up all medical and scientific evidence. There is now an alternative explanation for the death of the Folbigg children that does not rely on circumstantial evidence.”
Another signatory, former chief scientist Ian Chubb, said: “Expert advice should always be heard and listened to. It will always trump presumption.” Australian National University professor Carola Vinuesa, who gave crucial evidence at the 2019 inquiry, criticised the Court of Appeal for adopting Blanch’s “incorrect conclusions about the genetics evidence”.
Folbigg was convicted in 2003 of smothering her four children — Caleb, Patrick, Sarah and Laura — over a 10-year period from 1989 to 1999. She was sentenced to a maximum 30 years’ jail with a non-parole period of 25 years.
Much of the evidence against her was based on entries in her diary that the jury was told amounted to confessions of guilt, something she denied.
The inquiry by Blanch into her conviction was ordered after medical evidence raised doubt about her guilt, but the former judge found there was no natural explanation for the deaths.
New evidence that arose after the inquiry’s conclusion — of a genetic mutation known as CALM affecting Sarah and Laura that could impact on the normal function of a heart — was found by Blanch not to have changed the outcome.
The incorrect conclusions about the genetics evidence found by the Commissioner of the 2019 inquiry, were adopted by the NSW Court of Appeal in their conclusion today. The Europace peer reviewed scientific paper , which validates the findings of the mutation in Sarah and Laura Folbigg, displaces the findings and non-scientific reasoning at the Inquiry.
– Professor Carola Vinuesa FAA FAHMS
These points were made clear in the petition recently submitted to the NSW Governor and which is currently being considered by the NSW Attorney-General as a separate matter to this Inquiry.