The final oral submissions to the inquiry into Kathleen Folbigg’s convictions for killing her four children will be held over the next three days in Sydney.
From Wednesday, presiding judicial officer Tom Bathurst KC will hear from representatives of several parties – including Folbigg – in relation to evidence presented in November 2022 and February this year.
Folbigg was convicted in a 2003 jury trial for killing her four children over a 10-year period. She is serving a 30-year sentence and will be eligible for parole in 2028.
She has persistently declared her innocence, and with all other avenues of appeal exhausted, ‘governor’s inquiries’ have been specially convened to hear her case. The first, held before Reg Blanch KC in 2019, didn’t exonerate her.
The second – currently taking place – was convened on the back of petitioning from 90 eminent scientists seeking an avenue to hear fresh genetic evidence that emerged around the time of the 2019 inquiry.
Among those who gave evidence at this latest inquiry are members of the international research group whose study suggests a mutation to one of Folbigg’s calmodulin-coding genes – known as CALM2 G114R – was passed onto her daughters Sarah (died 10 months) and Laura (19 months).
Their research suggests cardiac arrythmia – an irregular heartbeat – may result from the mutation, and explain circumstances surrounding their deaths.
Other geneticists and cardiology experts have questioned the degree of pathogenicity – or likelihood to cause disease – of the G114R variant.
What have we learnt in the second Folbigg inquiry?
As well as critiques of the research which prompted this inquiry, experts in sudden infant death syndrome such as Professor Peter Fleming have suggested post-mortem reports taken at the time of the children’s deaths do not indicate foul play.
Separately, paediatric neurologist and now federal parliamentarian Monique Ryan presented evidence related to epilepsy in Patrick (eight months), suggesting complications from the condition explain his sudden death.
Fleming, Ryan give evidence to Folbigg inquiry
Several forensic pathologists at this and previous hearings also suggested homicide would be unlikely in this case.
Psychologists and psychiatrists also analysed Folbigg’s complete set of diaries – only some excerpts of which were used in evidence at her original trial – and variously found they suggested Folbigg suffered maternal grief, which in the first trial were characterised as admissions of guilt.
What happens next?
Bathurst will evaluate this evidence in deciding whether Folbigg’s convictions are still supported. If he believes there to be a reasonable doubt as to Folbigg’s guilt, he could refer the matter to the Court of Criminal Appeal to consider quashing her sentence.
Those findings are likely to be presented via a final report. The Blanch inquiry took about two months to hand down its findings, but Dr Xanthé Mallett, a criminologist who has closely followed Folbigg’s case, suspects this inquiry will make its decision far quicker.
“I think it’s going to be a lot sooner [than two months],” Mallett tells Cosmos.
She suspects a quicker resolution as counsel assisting the inquiry has already indicated the “effect of the evidence” heard in November and February may cast doubt over her convictions, both in-hearing and potentially in submissions provided to Folbigg.
“There are a number of things that can happen: the convictions can be found to be ‘safe’ [but] that, I think, is unlikely given the counsel assisting has already clearly stated there are grounds to suggest there could be reasonable doubt.”
While the role of counsel assisting an inquiry is, in part, to establish facts relating to the matter at hand, the judicial officer – Bathurst – will be of his own mind when making findings.
Like others, including the Australian Academy of Science, Mallett hopes one outcome of the Folbigg inquiry will be a greater consideration of new science in judicial matters.
Academy calls for law reform in wake of Folbigg inquiries
“I’ve been slowly pushing for a criminal case review commission, which is what they’re called in other countries,” Mallett says.
“[In the UK] it’s been very successful, it’s independent of the criminal justice system, which it absolutely should be.”
The Law Council of Australia also supports such review mechanisms. In February its president Luke Murphy told Cosmos, “The Law Council’s long held position is that a new mechanism for post-conviction review at the Commonwealth level is required.”
“To that end, the Law Council has previously recommended that a Commonwealth Criminal Cases Review Commission, which is independent of the Executive Government, should be established.
“The Law Council considers that an independent, objective, statutory body, which is removed from the trial process and the court system, would be better placed to conduct the inquiry into whether and when a matter should be able to be referred back to the appeal court to balance the competing demands of finality of outcomes in the justice system and accuracy of outcomes.”