Kathleen Folbigg’s pardon on Monday should advance calls for nationwide law reform, her lawyers say.
Folbigg, who has served 20 years in prison for killing her children, was unconditionally pardoned by the New South Wales governor on Monday following an inquiry into her convictions.
A full report from the inquiry’s judicial officer, Tom Bathurst KC, is expected within weeks, according to the NSW attorney general Michael Daley.
Folbigg, who has always asserted her innocence and has been supported by a two-decade-long grassroots movement calling for her release, left prison on Monday.
Her lawyer, Rhanee Rego, says the Folbigg case lays a stronger case for an independent convictions review panel, when new evidence emerges.
“This case should reignite the discussion to strengthen the interactions between law and science, to make important reforms so that the legal system makes decisions based on the best scientific evidence available, not speculation,” Rego said.
“It is impossible to comprehend the injury that has been inflicted upon Kathleen Folbigg – the pain of losing her children, close to two decades locked away in maximum security prisons for crimes which science has proved never occurred.
“This decision highlights the need for Australia to consider seriously implementing an independent body for reviewing miscarriages of justice, such as those which have been established in the United Kingdom, Scotland, Norway, New Zealand and Canada. We strongly urge the Attorneys-General across the country to prioritise a review of their post-conviction review systems as a matter of priority.”
The Australian Academy of Science also reiterated its call for a criminal case review panel, such that the nation’s legal systems can be more “science sensitive”, and consider how scientists are called to give expert evidence.
“Science is complex, we don’t need scientists put into a boxing ring [and] put up against each other,” said Academy chief executive Anna-Maria Arabia.
“We need a way in which science can be heard fairly, transparently and independently by the justice system.”
Such reform isn’t necessarily science-specific though. Criminologist, Associate Professor Xanthé Mallett from the University of Newcastle, has followed the Folbigg case closely and says that while the scientific findings that triggered the Folbigg inquiry were compelling, her original conviction had always relied on circumstantial evidence.
Independent criminal review commissions like those in the UK and Canada, she says, can add another check in extraordinary cases of possible wrongful conviction.
“It’s not that there was never reasonable doubt in the case until the [new] medical evidence, there always was – it was purely circumstantial,” Mallett tells Cosmos.
“Had an independent review commission looked at it [the case], they may have reached the same conclusion, and we may have avoided egregious miscarriage of justice.”
Kathleen Folbigg’s ongoing grassroots campaign is not dissimilar to other cases with the support of so-called ‘innocence projects’, which call for review of evidence when appeal avenues are exhausted.
Even with avenues of appeal available, Mallett says obtaining such opportunities is challenging, and any nationwide law reform or review commission would require alignment between states and territories, and federal government support.
But such authorities would at least provide pathways for independent expertise to consider fresh and compelling evidence – such as that leading to the second Folbigg inquiry – and determine whether an appeal is warranted.
“I think surely it’s in everyone’s interest to prevent this type of miscarriage happening and so [providing] that layer of protection,” Mallett says.
“People are concerned that there would be huge numbers of cases going forward to these commissions, but that hasn’t happened [overseas], and so I think in cases where there’s clearly an issue, there needs to be full independence for everybody: we need transparency, we need accountability, we need to trust our criminal justice system to get it right.”
While Folbigg has been released with an unconditional pardon, her convictions will still stand unless the NSW court of criminal appeal quashes them. This would require the matter be referred to the court by the inquiry’s presiding judicial officer Tom Bathurst when he makes his final report, expected within weeks.