Petra Stock
New South Wales former Chief Justice, Thomas Bathurst KC, has released his final report from the 2022 Inquiry into the convictions of Kathleen Folbigg, concluding reasonable doubt as to her guilt.
The 415-page report published by the NSW Government details Bathurst’s reasons.
He writes: “I have concluded that there is an identifiable cause of the death of Patrick, Sarah and Laura, and that it was more likely that Patrick’s ALTE was caused by a neurogenetic disorder rather than suffocation. Once that conclusion is reached, any probative force of the coincidence and tendency evidence is substantially diminished.
“Further, I have concluded that the relationship Ms Folbigg had with her children does not support the inference that she killed them. Finally, I do not regard the diaries as containing reliable admissions of guilt.”
As well as providing his report to the Governor, Bathurst has also referred the matter to the Court of Criminal Appeal to consider whether Folbigg’s convictions should be quashed.
The report concludes the Inquiry, established on 18 May 2022 following an article in Europace, the Journal of the European Society of Cardiology, indicating calmodulinopathy may provide a reasonable explanation for the natural cause of the children’s deaths.
In a statement, the Australian Academy of Science (AAS) welcomed Bathurst’s report, and the referral of Folbigg’s case to the Court of Criminal Appeal.
AAS President, Professor Chennupati Jagadish, says the Commissioner and Counsel Assisting must be applauded for adopting mechanisms to have science so comprehensively considered throughout the inquiry.
The AAS also acknowledged the contribution of the many scientific experts who gave evidence.
“Science needs to inform decisions wherever they are made, including in the justice system and the second Folbigg Inquiry benefited from the Academy being appointed an independent scientific adviser,” says Jagadish.
The AAS role, of independent scientific adviser to the Bathurst Inquiry, is believed to be the first time worldwide that a learned academy has played such a role in a judicial inquiry.
The academy is now calling for a more science-sensitive legal system in every Australian jurisdiction so that miscarriages of justice are not repeated.
The AAS says the case demonstrates the need for law reform in 3 key areas:
- The adoption of a reliability standard to determine admissibility of evidence.
- Mechanisms for the selection of experts by independent and reliable sources particularly where complex scientific material is required to inform decision making.
- The establishment of post appeals review mechanisms, such as a Criminal Case Review Commission.
In 2003, Folbigg was sentenced to 40 years in prison for offences relating to the deaths of her four children Caleb, Patrick, Sarah and Laura.
She was unconditionally pardoned on 5 June by the New South Wales governor. However her convictions stand unless quashed by the NSW court of criminal appeal.
