The Australian Academy of Science issued a strongly worded statement (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”. But the judge on the inquiry had also erred in law, argues Flinders University legal academic DR BOB MOLES.
Whilst it is perfectly correct to say that the judges have acted in a manner which is inconsistent with the scientific findings, the judge on the inquiry (Blanch J) also acted in a manner which is inconsistent with basic legal principles governing criminal appeals.
He should have been aware of the special context for this form of inquiry. It is a preliminary to a possible referral of the case to the court of appeal. It is, in effect, a request for leave to appeal to the appeal court. As such, the principles governing criminal appeals should also inform the inquiry – the major difference being that the inquiry merely has to determine if there is a “reasonably arguable” case to forward to the appeal court.
Those principles include the following:
In a circumstantial case, if there is a rational explanation of the circumstances consistent with the innocence of the accused, the court may not convict. Clearly Professor Cordner and Dr Hilton provided such a rational explanation for the death of at least one or two of the children, and that being so, it was a sufficient basis upon which the appeal should be allowed.
On an appeal, a conviction cannot be upheld on the basis of evidence which was not put to the jury. If the defence comes forward with evidence to argue that the conviction should be overturned, the prosecution can adduce evidence to rebut that. However, the prosecution cannot adduce new evidence, which has not been put to the jury to show that the accused is guilty. There are significant recent decisions of the High Court of Australia to make it clear that the appeal court cannot usurp the function of the jury.
The appeal court is not to make its own determination of the guilt of the accused. The question of guilt is to be determined by a jury. The question for the appeal court is whether the court can be confident of the verdict arrived at by the jury.
If there has been an error at trial, the court must determine if there is a reasonable likelihood that the error may have influenced the jury in arriving at their verdict. If there is, the verdict of the jury ‘must’ be set aside.
If there has been a fundamental error at trial, one which brings into question the integrity of the trial process, the verdict may be set aside even where there is otherwise overwhelming or compelling evidence of guilt. The fundamental task for the appellate court is to uphold the integrity of the trial process.
The Board of Inquiry:
The judge on the board of inquiry said that he was not to run a retrial, but that is in effect what he did. He made his own determination as to the guilt of the accused. He failed to canvass the principles which the appeal court would apply if he were to refer the matter to that court, as he should have done.
A new right of appeal:
If NSW had a new right of appeal as now exists in SA, Tas and Vic, then the expensive and confusing process of ‘board of inquiry’ procedures could be avoided. The Eastman inquiry cost around $ 8m – the judge said that he thought Eastman was probably guilty, only to find that after spending another $6m on a retrial Mr Eastman was acquitted. This makes it clear that sometimes, judge’s perceptions of ‘guilt’ are not always reliable. With a new right of appeal, Folbigg could apply for leave to appeal to the court of appeal, the leave hearing would usually be dispensed with in a case like this and the court would proceed directly to the hearing of the appeal. The matter would be assessed in accordance with principles clearly established by the High Court and the whole thing could be over and done with in good time. If anyone was not satisfied with that they could then seek a further review in the High Court.
Involving the Governor, the Attorney-General and a costly and confusing board of inquiry which it states is not bound by rules of evidence and procedure, and an ‘administrative’ appeal conducted by judges who fail to follow both the science and the relevant legal principles is both legally and politically a great waste of time.
A criminal cases review commission
In the recent Australian article Folbigg petition: Science thrown out of court by Quentin McDermott, Professor Edmond mentions the benefit of establishing a Criminal Cases Review Commission which is something we and Michael Kirby have been seeking for a long time.
It works well in the UK, Scotland, Norway, NZ and now Canada. With the money being spent on ad-hoc inquiries for the odd case which wins the forensic lottery, you could have a proper standing commission staffed by people who have knowledge and access to relevant expertise, and who could provide a clear report to the appeal court to advise them in their further consideration of the matter. It is rational, cost effective and fair.
In short the legal issues which have been scrambled in this process are as important as the misunderstanding of the scientific principles. Both need to be corrected if we are to have a fair outcome in accordance with the rule of law principles in these cases.
* In 2003, Folbigg — from the Hunter Valley in NSW — was convicted of murdering three of her children, Patrick, Sarah and Laura, and the manslaughter of her firstborn, Caleb.
I am amazed at how poorly some judges can be at understanding the science and how it (and medicine from which it is derived) ‘works’. I sometimes wonder where the line between a qualified scientist and pathologist, and a judge (poorly trained in the nature of scientific-medical evidence) determining the cause of death. With now DNA evidence revealing the innocence of some, and the potential guilt of others, it ought to be more than evident to Australian judges that challenging on reasonable grounds of new scientific evidence is fair and reasonable… (I wonder what happened to my former fellow science graduates who also studied the law. I’d hope that some of them were getting to level of a justice.)
Felix – here’s the direction on which the Inquiry was based:
The Inquiry had to act on that Direction. The Judge at the Inquiry had to determine if the Folbigg case warranted an Appeal. That decision required him to study the latest genetic advances, because the prosecution’s case at trial was that “pigs might fly” was much more likely than genetics contributing to multiple SIDS deaths in a family in which four young children died. The Judge decided at the Inquiry that it did not warrant an Appeal, ref paragraphs 168a and 172 on page 340 and 341 of https://www.folbigginquiry.justice.nsw.gov.au/Documents/Report%20of%20the%20Inquiry%20into%20the%20convictions%20of%20Kathleen%20Megan%20Folbigg.pdf.
This Appeal – dismissed a few days ago – was by Kathleen Folbigg against that decision by the Judge. The problem is that 90 top scientists say the Judge erred in paragraphs 168a and 172. The NSW AG now has to decide who is right about the science – the Judge or the 90 scientists in the petition. My opinion is that it is the scientists who are right about the science, not the Judge.
Very interesting. But a Judge has to make a decision based on all the evidence not just the scientific evidence.
Had the scientific evidence being based on the examination of the tissue samples from Ms Folbigg’s deceased babies then it would have a compelling evidence. But, to my knowledge, this isn’t the case.