Kathleen Folbigg’s closest confidant says a written submission from counsel assisting the inquiry into her convictions may indicate reasonable doubt over her guilty verdict.
In 2003, Folbigg was convicted of the murder of her children Patrick (aged eight months), Sarah (10 months) and Laura (18 months), and manslaughter of son Caleb (19 days). She has served 20 years of a 30-year sentence and will be eligible for parole in 2028.
The inquiry was prompted after new scientific evidence came to light over the past two years.
Tracy Chapman, a long-time advocate and now Folbigg’s next-of-kin, today revealed Folbigg had received a copy of counsel assisting’s final written submission to the inquiry’s judicial officer, Tom Bathurst KC.
Folbigg told Chapman the submission suggests evidence provided in November and February’s hearing blocks casts a reasonable doubt over her convictions. Parties involved in the inquiry, including representatives of Folbigg, NSW Police and the Director of Public Prosecutions, will make final oral submissions to Bathurst at the end of April.
These, along with any final written submissions, are the last opportunity for parties to put their positions on the evidence to the presiding judicial officer.
Arlie Loughnan, a Professor of Criminal Law at the University of Sydney, told Cosmos that while submissions to Bathurst will offer perspectives on the evidence, Bathurst is free to make up his own mind when deliberating.
“Submissions are something that the judge takes into account, but they don’t determine the outcome,” Loughnan says.
“His task is to address the safety of the convictions: are the convictions still good convictions?
“Therefore it’s necessary for him to be looking at what’s now known, that has ‘shed new light’, if you can put it that way, on the events that occurred leading to the deaths of the children. Does that ‘new light’ mean that the convictions are now unsafe?”
Chapman acknowledged this point, saying Folbigg had at least “felt heard” by the process.
“This is only counsel assisting’s report… it’s one chunk of the process,” Chapman tells Cosmos.
“It’s a significant one, but at the end of the day, Bathurst, his honour, will have to come up with his own findings.”
Final submissions on scientific evidence to be heard on April 26
The ‘new light’ includes the scientific research into the mutated gene CALM2 G114R, which is possessed by Folbigg and was passed to her two daughters.
Those leading the research include professors Carola Vinuesa, Matthew Cook, Todor Arsov, Michael Toft Overgaard and Mette Nyegaard, who each appeared at the inquiry. They suggest this gene mutation leads to cardiac arrythmia – an irregular heartbeat – and potentially cardiac arrest, which they suggest as the cause of Sarah and Laura Folbigg’s deaths.
A petition co-signed by more than 90 eminent scientists, including two presidents of the Australian Academy of Science, prompted the inquiry. The Academy, which has acted as an independent scientific adviser to the inquiry, told Cosmos in a statement it had provided regular technical advice to support proceedings and was looking forward to closing submissions on April 26.
“The Academy was granted leave to make submissions regarding suitable experts for the Inquiry to engage and suitable questions to ask those experts. It was also granted leave to make submissions regarding scientifically technical aspects of the Inquiry. To date, the Academy has made such submissions in accordance with its grant of leave and will continue to do so until the conclusion of the Inquiry,” it said.
Other expert scientific evidence considered by the inquiry included reviews of epilepsy as a potential cause of Patrick Folbigg’s death, myocarditis as a cause of Laura’s, and forensic pathology and paediatric appraisals of suffocation as a cause of all four deaths.
New appraisals of Folbigg’s diary entries used in the original prosecution by three psychological experts were also heard. They found no evidence to suggest infanticide as the cause of the children’s deaths. On the last day of the February sittings, NSW Police handed in more than 500 hours of previously unheard recordings for consideration.