On Monday 14 November, the first hearing block of the 2022 Inquiry in the convictions of Kathleen Folbigg will begin in Sydney.
The inquiry, ordered by NSW attorney general Mark Speakman, will be heard by Thomas Bathurst QC, with the same powers of a commissioner under the New South Wales Royal Commissions Act.
In May 2003, Kathleen Megan Folbigg was found guilty of three counts of the murder of her children Patrick, Sarah and Laura; one count of the manslaughter of son Caleb; and one count of maliciously inflicting grievous bodily harm on Patrick.
She was sentenced to 40 years’ imprisonment, reduced to 30 years on appeal, with a 25-year non-parole period.
In 2015, Folbigg’s lawyers petitioned the NSW governor for a judicial review. That inquiry began in 2018 and concluded in 2019 under the commissionership of Reginald Blanch QC.
Then, in 2021, another petition signed by 90 eminent scientists was delivered to the governor, calling for another inquiry on the basis of new evidence. It was followed in March this year by three Australian Nobel laureates, and both the current and former presidents of the Australian Academy of Science calling on Speakman to “Respect the scientific and medical evidence that provide ample justification for the pardon of Kathleen Folbigg”.
In May, the attorney-general approved a new inquiry, and it is this scientific and medical evidence that will be at its heart.
What is the scientific evidence that will be considered?
That evidence relates, as reported by Cosmos previously, to genetic mutations that predispose a human to sudden cardiac death.
The finding of these mutations to the CALM2 gene – which codes for the calmodulin protein that regulates the movement of calcium in heart cells – was obtained via molecular autopsies of the female Folbigg children and presented at the 2019 inquiry into the Folbigg case.
Despite this, commissioner Reginald Blanch QC concluded he had not “any reasonable doubt as to the guilt of… Folbigg”.
At the time, scientists believed the lack of hard data showing these variants were likely to have caused a cardiac arrest was critical in the commissioner’s decision. Certainly, in his report, Blanch formed a view that these mutations were extremely rare, and that arrhythmias caused by them leading to sudden cardiac death were of “even more extreme rarity”. [[[PP 506-7]]
A study overseen by several eminent scientists including immunologist Carola Vinuesa, cardiologist Peter Schwartz, and protein scientist Michael Toft Overgaard into inherited cardiac arrhythmias was published in November 2020. Among its findings, the authors found calmodulinopathy (caused by the protein variant CALM2 G114R) “emerges as a reasonable explanation for a natural cause of their deaths”.
“The growing understanding of inherited cardiac arrhythmias forces a reassessment of the medical foundations, never challenged, on which several mothers were found guilty of infanticide on the basis of assumption instead of evidence,” the authors wrote.
Translation: In the years since the Folbigg children died, medical and scientific understanding of the calmodulin protein has grown, and is such that it may indicate why these deaths occurred. In essence, the authors argue that this genetic defect, inherited by the Folbigg children, more than likely caused their deaths.
Science in court
This is not a re-trial, it’s an inquiry. That means Commissioner Bathurst will not pass a trial verdict over Folbigg.
He will consider new evidence presented by scientists into calmodulin mutations and determine whether it is sufficient to suggest a genetic reason for the deaths of two of the Folbigg children.
If he is convinced of this data explaining these deaths (and not infanticide), he may recommend to the NSW Court of Criminal Appeal that it considers this new evidence.
The Court could take one of several actions, including overturning Folbigg’s conviction. It could also recommend a re-trial, where a new jury would consider the new evidence.
However, it could also find the jury of the original case would have been unlikely to be sufficiently compelled by the new evidence to find Folbigg not guilty.
Science will be considered by the judicial system over the next four months. If Folbigg is to be exonerated, it will be because science – and scientists – made the case.
- Cosmos Q&A: The clash between law and science
- Behind the science of the Folbigg petition
- Folbigg case: timelines compared
- Explainer: mutation and disease in the Folbigg case
- Determined science
- Infanticide vs. inherited cardiac arrhythmias
The Royal Institution of Australia coordinated the effort to bring international science expert witnesses to Sydney to appear in person at the inquiry. They would have appeared by video link instead without this assistance.