Andrew L. Urban.
The question of the title is posed without optimism. The legal system has no proud history of reform. All three past Attorneys-General have ignored or rebuffed calls for a Criminal Cases Review Commission network in Australia. Kathleen Folbigg’s 20 wrongful years in prison is just one of many compelling reasons for the legal system to “heal thyself”. We are not the only ones calling for reform, as we report here.
Anna-Maria Arabia, Chief Executive of the Australian Academy of Science, has told wrongfulconvictionsreport.org that “Ms Folbigg’s case demonstrates the need for law reform in the following three areas:
- the adoption of a reliability standard to determine admissibility of evidence.
- mechanisms for the selection of experts by independent and reliable sources, particularly where complex scientific material is required to inform decision making.
- the establishment of post appeals review mechanisms, such as a Criminal CasesReview Commission.
“The Academy will be writing to and engaging with Federal and State Attorneys-General in early 2024 to outline its proposal for law reform in the areas outlined above.”
The Academy also issued a statement:
STATEMENT BY THE AUSTRALIAN ACADEMY OF SCIENCE
While justice has finally been served for Ms Folbigg, wrongful convictions will continue to occur without major reforms to justice systems across Australia.
New genetic evidence available in 2019 played a significant role in bringing about the second Inquiry into Kathleen Folbigg’s convictions and subsequent pardon in 2023; however, basic scientific principles were not upheld from the time of her trial.
- Kathleen Folbigg was convicted for murdering her children by suffocation, yet there was no pathology-based evidence of suffocation of the children
- medical and pathological evidence was available to indicate natural causes of death of the Folbigg children
- the case against Kathleen Folbigg was premised on an incorrect logic that four children could not die in a family from natural causes unless it was one unifying cause of death
- circumstantial evidence (including non-scientific opinions about Ms Folbigg’s diaries) was given more weight than medical and pathological evidence available at the time of trial
- at the first Inquiry, erroneous interpretation of data held in the International Calmodulinopathy Registry was presented and accepted
- no journalling, trauma or grief experts were given the opportunity to provide expert evidence in a formal legal process until the 2022 Inquiry.
Australia must be open to learning from the gross miscarriage of justice in Ms Folbigg’s case. The Academy’s role in Ms Folbigg’s case has always been to ensure that science is being heard in the criminal legal system.
Our role in this case has reinforced our view that in every Australian state and territory, a more science-sensitive legal system is required.
As a matter of urgency, Australian jurisdictions must adopt a reliability standard to determine the admissibility of evidence.
Until Evidence Acts across the country are amended to introduce a reliability standard, there is a significant risk that unreliable evidence will be admitted into courts. Australia remains well behind other nations in its absence of a legal reliability standard.
When the Academy petitioned the Governor of NSW to pardon Kathleen Folbigg based on additional scientific evidence uncovered by its Fellow, Professor Carola Vinuesa FAA FRS, it took nearly three years for Ms Folbigg to be pardoned.
This unacceptable time delay is because Australia lacks effective post-conviction review mechanisms. In countries such as the United Kingdom, Norway, New Zealand and, most recently, Canada, criminal cases review commissions have been established.
These commissions are independent, dedicated bodies that investigate miscarriages of justice. It is time Australia introduced an independent, transparent and accountable review mechanism. This is particularly important in an age of rapid scientific and technological discoveries.
The Australian Academy of Science acted as an independent scientific adviser to the second Folbigg Inquiry – a unique and rare interaction between a learned academy and a legal system. It assisted by independently recommending experts to assist the Inquiry. This meant that the Inquiry could hear from the best available experts from the relevant scientific disciplines wherever they resided in the world.
A mechanism to enable the courts to routinely hear from independently identified experts who are available to all parties for cross-examination must be found.
The Academy looks forward to working with the Attorneys General across Australia to develop and implement more science-sensitive legal systems.
Wrong assumptions about four infant deaths
The question in the title is underscored by John Menadue’s Public Policy Journal, Pearls & Irritations. (Among other senior positions, Menadue has worked for various Prime Ministers in a distinguished career as a senior public servant and in private enterprise.) In the December 21, 2023 edition of Pearls & Irritations, he publishes an article by Kerry Breen and esteemed forensic scientist Dr Stephen Cordner, a comprehensive analysis of the Folbigg case and its many failings, concluding with:
“The wrongful conviction of Kathleen Folbigg represents a serious failure of Australia’s criminal justice system. It demands a thorough inquiry as to why the jury was led to this wrong decision. Such an inquiry must also address how such decisions can be prevented and how wrongfully convicted people can more readily have their claims dealt with. Many similar legal systems have addressed this by creating criminal case review commissions (CCRCs). How much longer do we have to wait for a CCRC in Australia?”
Crucially, the article notes the central, fatal error in the whole saga, echoing our own observation made in earlier articles. It’s about the fallacy that “since one sudden unexplained death in infancy is very uncommon, a second in the same family is exceedingly uncommon and a third is so extremely rare that murder becomes the obvious explanation. No one thought to ask the parallel question: how common are three (or in Ms Folbigg’s case, four) murders in one family where there are no observable injuries? We suggest at least as extremely rare as three or four unexplained deaths. This being so, the alleged criminal significance of the rarity of multiple natural infant deaths in one family is neutralised.”