The contrasts between the scientific and judicial processes have again been highlighted at the Folbigg inquiry, with its head, former NSW Chief Justice Tom Bathurst KC, saying it can’t wait for scientific certainty to emerge over years to make a decision.
And legal experts say the inquiry will decide if there’s reasonable doubt over Kathleen Folbigg’s convictions only after hearing all the evidence. That means that science alone is unlikely to determine the outcome.
While hearing expert evidence on calmodulinopathy – an emerging field of study into diseases caused by mutations in CALM genes – Bathurst, one of Australia’s most eminent jurists, observed the inquiry closes in little over a fortnight.
“My difficulty is, I’ve got to make a decision on this inquiry now. I can’t wait for science to fully develop,” he said, adding that the inquiry will decide on scientific evidence, even if others are concerned about deductions based on evolving information.
Bathurst was responding to evidence from expert Professor Peter Schwartz, who had expressed concern that the known characteristics of calmodulinopathy were still emerging.
Bathurst remarked that while he accepts science develops and changes, he will focus only on the facts at hand.
UNSW expert speaks to gene’s uncertainty
The issue arose again when the inquiry heard from Professor Edwin Kirk, a clinical geneticist from UNSW who works in both research and patient consultation.
Kirk and his colleagues gave evidence at the original inquiry into Folbigg’s convictions, in 2019. They investigated several mutations found in the Folbigg children’s genes, and concluded none were likely to have caused their deaths.
Kirk’s assessment of the G114R variant for the current inquiry remains that it’s a variant of unknown significance.
The researchers behind the data that triggered this inquiry have found G114R to be likely to cause disease. They say it’s an explanation for the deaths of Kathleen Folbigg’s daughters, who were gene carriers.
“Uncertainty means exactly that. It means uncertain.”Edwin Kirk
“I’m putting more weight on the lack of clinical evidence, and the interpretation of the majority of the cardiologists that the [cardiac] investigations are normal,” Kirk told the inquiry.
“I think it’s possible that it could have caused the deaths, I think it’s plausible that it could have caused the deaths. I don’t have enough evidence on which I can say I think it’s likely that it caused the deaths.”
When asked directly by Bathurst whether he could exclude the “reasonable possibility” that the Folbigg daughters died as a result of the mutation, Kirk’s answer was simple: “No.”
An exchange between the pair also highlighted the challenge facing all geneticists at the inquiry.
Bathurst asked Kirk: “You have a person who’s died… You can’t identify a clinical cause… you know she has a variant which has been classified as a variant of uncertain significance. Would you dismiss that variant, absent any other evidence, as a possible reason for the sudden death?”
“Oh goodness, no,” replied Kirk. “Uncertainty means exactly that. It means uncertain.”
It’s not just about the genetics
The nature of science as a work in progress has been acknowledged by the inquiry.
Speaking to Cosmos outside of the inquiry, Arlie Loughnan, Professor of Criminal Law and Criminal Law Theory at Sydney University, says while science and law are on different pathways, they do intersect and are in “constant dialogue”.
“This is a complex mix, and the evidentiary picture is not solely about scientific evidence.”Professor Arlie Loughnan
Loughnan also points out that science – or one particular branch of it – rarely carries the full burden of determining a legal outcome.
The inquiry will also consider psychology, neurology, forensic pathology, cardiology and the physical evidence of written diary entries from Folbigg, in addition to the genetics evidence.
“This is a complex mix, and the evidentiary picture is not solely about scientific evidence,” Loughnan says.
“The issue for the court is about the standard of reasonable doubt, so that if something is not a ‘safe’ conviction, it’s because evidence that’s become available at a later point has cast a new light on the conviction.
“And that’s, I guess, justice.”
“[Bathurst’s] task, now, is to see whether or not what can be available to be brought before this inquiry is going to cast those convictions into doubt.”