Academy’s call for criminal justice law reform in wake of Folbigg inquiries

The Australian Academy of Science hopes the inquiry into Kathleen Folbigg’s convictions will open the door to a more refined consideration of science in the nation’s judicial systems.

Folbigg is currently serving a 30-year sentence for killing her four children. Her convictions may be deemed ‘unsafe’ if inquiry judicial officer Tom Bathurst KC finds fresh scientific research, retrospective analyses of medical records regarding the four deaths, or psychological appraisals of her diaries cast ‘reasonable doubt’ on her guilt.

What have we learnt in the second Folbigg inquiry, and what happens now?

The AAS has acted as an independent scientific advisor to the inquiry, which has now adjourned until April.

Its chief executive officer Anna-Maria Arabia is hoping the conversation will now move towards how science can be better utilised in the justice system.

Folbigg had exhausted all available avenues of appeal until the governor of New South Wales opened special inquiries into her convictions.

These were due to new forensic pathology examinations of each child’s post-mortem in 2015 and, in 2020, the publishing of new genetic research into a rare, potentially disease-causing protein variant inherited by Kathleen’s daughters Sarah and Laura.

“It is our hope that this case enables some consideration of law reform for Australia,” Arabia told Cosmos.

“There is no post-appeals mechanism for new scientific discoveries that may bring reasonable doubt as to a conviction or an existing case, for those discoveries to be heard.”

Can justice keep up with science?

Arabia and the AAS are proposing a Criminal Case Review Commission. Such a body already exists in the UK. There, an expert panel considers disputed convictions and is powered to send cases to the British appeals court for review.

Such a body would require one of at least two approaches. With states and territories responsible for prosecuting criminal cases, it follows that each of these jurisdictions would need to implement their own review commissions.

However a national-level body to which cases are referred, tested and recommendations sent back to states and territories, could also be considered.

“They could determine if they passed a threshold for reconsideration or reopening of that case, and if that threshold is passed, they could be referred back to the respective state legal system to further advance,” Arabia says.

Expert selections could do with a look too

Presently, prosecutions, defences and courts select expert witnesses to provide opinion on evidence.

The Folbigg inquiry has seen this with experts from genetics, cardiology, neurology, paediatric and psychology disciplines.

But Arabia, and others, see the opportunity to overhaul the way experts are selected for these duties.

Such a move might raise the standards determining who is qualified to give evidence, and whether their expertise is relevant.

This wouldn’t negate the likelihood of experts disagreeing in their expert assessments. As seen during the Folbigg case, scientists will draw different conclusions from research and differ in their opinions.

However, the AAS proposes an independent body could help raise the calibre of experts appointed to appraise evidence.

“Being able to present those experts to the system independently [of prosecutors or defence teams] or in a way that informs both sides would be far more beneficial, and allow the science to remain independent of the adversarial nature… of that legal setting.”

Anna-Maria Arabia joins the Cosmos Podcast to discuss the AAS’s view on pro-science law reform.