Twenty years ago, Kathleen Folbigg was found guilty of killing her four children; but the extraordinary inquiry brought about by new genetic research could now recommend her convictions be quashed, or that she be pardoned.
Outside the Chief Secretary’s Building in Sydney, where the inquiry has been held since November 2022, Folbigg’s solicitor Rhanee Rego called on the New South Wales attorney-general Michael Daley to immediately release her from prison.
Irrespective, the weight of evidence seems substantially weighted in her favour, with both counsel assisting the inquiry and the NSW director of public prosecutions agreeing there is now a reasonable doubt as to Folbigg’s guilt.
Dean Jordan SC, for the DPP, observed in his closing submission that “the most critical new evidence concerning the CALM2 G114R variant was even beyond the contemplation of science when the trial was conducted in 2003”.
Indeed, understanding of human genetics has increased rapidly since the human genome was finally decoded in 2003 – the same year Folbigg was incarcerated.
It took another 10 years for geneticists to learn that variations in calmodulin genes – previously thought incapable of mutation – existed.
Now, a decade later, these two scientific advances could contribute to Folbigg’s release. At the specially convened inquiry into Folbigg’s convictions, which concluded in Sydney today, inquirer Tom Bathurst KC heard there was now a question over her guilt.
In its final submission to Bathurst, counsel assisting the inquiry led by Sophie Callan SC highlighted three key areas of scientific expertise leaving him open to a finding of reasonable doubt over Folbigg’s convictions:
- The CALM2 G114R variant, which codes for an incorrect calmodulin protein in Folbigg and was passed onto her daughters, is a “reasonably possible cause” of their sudden deaths.
- Myocarditis, observed in post-mortem analysis of Laura Folbigg’s heart tissue at the time and in more recent slide analyses, is a “reasonably possible cause” of her death.
- That expert evidence presented by paediatric neurologist Dr Monique Ryan is persuasive of a “reasonable possibility” that epilepsy caused one apparent life-threatening event and the subsequent death of Patrick Folbigg.
They also proposed that expert analysis of Folbigg’s complete diary entries “renders them neutral”, as opposed being admissions of guilt.
In the original trial, where a jury convicted her of murdering three of her children and the manslaughter and grievous bodily harm of another, specific excerpts were characterised as admissions by the prosecution.
Today, Folbigg’s team broadly accepted counsel assisting’s submission. But Dr Gregory Woods KC took the opportunity to caution against literal interpretations of her diary entries, as proposed yesterday by representatives for her ex-husband Craig Folbigg.
Jordan, for the DPP, concluded his statement to Bathurst by indicating the director had accepted the findings of counsel assisting.
The inquiry is now adjourned, with Bathurst’s final report likely to be delivered in the coming months.