Kathleen Folbigg speaks to the media after being acquitted at the NSW Court of Criminal Appeal in Sydney, on December 14, 2023. (AAP Image/Dean Lewins)
How nice it is to be able to celebrate, to find recent judicial work that is an historical survey of “law and science” both so comprehensive, and of such quality, that other decision makers, lawyers, teachers and students can turn to it as a model and as a resource, says columnist HUGH SELBY.
This article looks at the approach of Commissioner Tom Bathurst AC KC, the former NSW Chief Justice, inquiring into the convictions of Kathleen Folbigg for the killing of her four children. He found her convictions to be unsafe. She was released after serving 20 years and pardoned.
Hugh Selby.
Unusually, and usefully, his 2023 report captures the changes in a discrete area of medical science over a near quarter century. When Ms Folbigg was investigated, and at her first trial, the absence of relevant genetic knowledge, along with Meadows Law (explained below), entailed that she be found guilty.
That outcome was confirmed when she appealed. There were no doubts about her guilt.
Part and parcel of those certainties was the interpretation placed upon her diary entries, an interpretation that was strongly influenced by the assessment of all the other evidence that she was guilty.
What she wrote was capable of different interpretations and the one adverse to her was taken. A more favourable interpretation required a changed attitude on the part of those approaching that evidence. That recent change, along with the reasons for it, are set out in the report.
An aspect, worth remembering by those seeking to interpret the personal records of others is, as an expert said: “It is orthodox in the field of psychiatry that thoughts are not facts, and emotions are not intentions”.
Among those who should take pause are all those in prosecutor offices who are trawling through the lengthy, messy online message histories of people who once claimed to like each other, but are now hell bent on finding reasons to justify their mutual antipathy.)
Despite those discouraging results her persistent supporters pressed for an inquiry. That took place on the cusp of the genetic discoveries, but too soon to change the result.
Not to be put off, her supporters pressed again. The Bathurst Report is the happy outcome of their efforts and of all those who contributed to the wealth of evidence put before the inquiry and tested.
The inquiry report sets out the evidence presented at each stage from police investigations to her exoneration, along with the arguments that were put. This makes it both fascinating, and of great use, to anyone who wishes to understand at the practical level the intersection of evolving science and law.
Specifically, for forensic pathologists and medical scientists this report sets out the views of experts pre-trial, at trial, in a later inquiry, and finally at the Bathurst inquiry. It’s a long-term case study with practical lessons, the most important of which is being careful to avoid too confidently expressing conclusions.
Apart from police, prosecutors, defence lawyers and forensic scientists, there are others too for whom this judicial work is useful, most especially those who appear as occasional experts in litigation, both civil and criminal.
For them, the comprehensive setting out of the opinions and reasoning of the experts who provided reports and/or gave evidence, together with the Commissioner’s and Counsel Assisting’s evaluation of the competing claims, provides a benchmark for both how they should prepare to give evidence and how they and their opinions should be evaluated.
Beware of convenient prejudices
Just before Christmas 2023 the NSW Court of Criminal Appeal quashed all the Folbigg convictions. They relied upon the Bathurst report, along with the acceptance of that report by the NSW government and the advocates for Ms Folbigg. There was no quibbling. The commissioner’s full report is here.
Paradoxically, despite all the praise above, the investigative and legal journey in the Folbigg saga is a cautionary tale. It highlights two limitations of our approach to the assessment of evidence in an adversarial system.
One is the oft repeated failure in criminal cases to seek to objectively measure the strength of the evidence supporting competing hypotheses as to what happened. The High Court in the case of Baden-Clay (see below) has reminded everyone of the correct approach, but that instruction is neither read nor heard by some investigators and prosecutors.
The second limitation is our inevitable filtering of the available evidence through a prejudicial filter.
Put another way, all of us, including good judges (and jurors at trial), have our evaluation of an event coloured by our prior experiences and our emotions.
An inquiry into the safety of a past conviction does not start out neutrally. The starting point is that the person is guilty. Those representing the state will “defend” that position, often by “hostile” questioning of witnesses who come with new information.
If counsel assisting the commissioner also takes an adversarial approach, rather than an inquisitorial one, then better understanding of what happened in the past (that is, a search for truth rather than defending a past decision) is unlikely.
A feature of the Bathurst inquiry was the many comments in the report that demonstrate an objectivity for which future counsel assisting should strive.
The previous inquiry into Ms Folbigg’s convictions, also conducted by a highly respected judge, found her convictions were proper.
Information as to genetic explanations for some of the deaths was presented to that inquiry. However, it was insufficient to meet the legal tests for overturning a conviction.
Thereafter, but too late to displace the strength of the beliefs – based on other evidence – as to her guilt, that inquiry was given an advance copy of an important article suggesting that the identification of a novel genetic variant that was found in Ms Folbigg and her two daughters provided an explanation for the sudden death of those two children.
Prejudicial filters are a given in “wrongful conviction” cases. The Azaria Chamberlain case in Australia is a telling example: the public certainty that the infant Azaria’s mother had killed her in their car at Uluru in 1980, a jury convicting both parents in 1982, followed by the findings of a Royal Commission five years later that a dingo had taken the infant.
In the Folbigg saga the fact of four deaths gave rise to a presumption that the mother must have killed them. That presumption is not surprising. After all, it accords with our common sense.
For a time, including that of Ms Folbigg’s trial, this presumption was a settled principle, known after its best known proponent, Dr Roy Meadows: “one infant death is a tragedy, two are suspicious, and three is murder”.
At Ms Folbigg’s trial the prosecution placed heavy reliance on the following factors to show that the children did not die from natural causes, as follows:
(1) They all occurred suddenly;
(2) They all occurred unexpectedly;
(3) They all occurred at home;
(4) They all occurred during the child’s sleep period;
(5) They all occurred when the child was in a bed, cot or bassinet;
(6) They all occurred when the mother was the only adult at home or awake, giving her the opportunity to have done them harm;
(7) They were all discovered dead or moribund by their mother;
(8) They were all discovered dead or moribund by their mother during what she claimed was a normal check on the well-being of the children in the course of their sleep period (three of them on her way from the toilet);
(9) They were all discovered dead or moribund by their mother at around or shortly after death when they were still warm to the touch (two of them still had a heart beat, so these were found by her very shortly – literally minutes – after the cessation of breathing); and,
(10) In relation to four of the five events, she failed to render any assistance at all to them after discovering them dead or moribund, to the extent that she did not even lift them up out of their beds.
But Commissioner Bathurst found: “The evidence before the inquiry, at most, demonstrates that Ms Folbigg was a loving and caring mother who occasionally became angry and frustrated with her children. That provides no support for the proposition that she killed her four children.”
Every so often we should remind ourselves that our world was certainly flat until it wasn’t. Countless intelligent humans believed it. Countless others, concerned with daily survival, never turned their minds to the question. Advances in knowledge replaced a false certainty of a flat surface with a new truth of a sphere-like shape.
The commissioner stated from the outset that he would be guided by the 2016 High Court decision in R v Baden-Clay that, “where a case rests upon circumstantial evidence, the jury cannot return a verdict of guilty unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused, but that for an inference to be reasonable it must rest on more than mere conjecture.
“The court also emphasised that all the circumstances are to be weighed and considered in deciding whether there is an inference consistent with innocence reasonably open, and that the evidence is not to be looked at in a piecemeal fashion”.
The new scientific evidence was more than conjecture. It raised a reasonable hypothesis as to the causes of death which involved no criminal actions by Ms Folbigg.
The Folbigg Inquiry
Kathleen Folbigg’s story is a tragedy that few could survive. She lost her four children, one by one. She lost the father of those children who became convinced that she had killed them. She spent two decades in prison labelled as a serial child killer. Earlier attempts to throw doubt on her convictions failed.
But Commissioner Bathurst found that there was a “reasonable doubt as to her guilt”. Consequently, her convictions were unsafe.
It is important to note that the task was not to prove that she was guilty or innocent. The task was to explore whether there was evidence (not available at the time of the trial) that raised a doubt about guilt. If so then “proof beyond reasonable doubt” was impossible and any convictions could not stand.
What “saved” her was advances in medical science, discoveries that were made while she was in prison.
As the commissioner found: “The evidence enables me to be comfortably satisfied that there was a reasonable possibility that the deaths of (two of the children) resulted from their carriage of the CALM2-G114R variant [gene].”
This gene variant is associated with heart problems. A genetic variant is a permanent change in the DNA sequence. While many gene variants have no, or negligible effect, some genetic variations are disease causing – or “pathogenic”.
With respect to a third child, the commissioner found: “The evidence…. satisfies me that it was more likely than not that it was caused by an unknown neurogenetic disorder. It is also a reasonable possibility that (his) death can be characterised as what (was) described as a SUDEP (a sudden unexpected non-traumatic and non-drowning death in an individual with epilepsy)”.
As to the death of the fourth child, the commissioner concluded that no identifiable cause of his death was identified. Further, that the relationship Ms Folbigg had with her children did not support an inference that she killed them. The reasonable possibility that he died of unknown natural causes had not been excluded.
Recognition of all the effort
Commissioner Bathurst, at the end of his report, rightly acknowledges: “It only remains to express my appreciation to counsel and the solicitors assisting the inquiry for their submissions and the manner in which the inquiry was conducted. I also express my appreciation to all participants for assisting in this difficult matter being conducted as efficiently as possible”.
It is worthwhile for anyone with an interest in how to conduct an inquiry to read Volume 3 of the report of the 2009/2010 Victorian Bushfires Royal Commission.
The Commission conducted an extensive investigation into the causes of, the preparation for, the response to and the impact of the fires that burned throughout Victoria in late January and February 2009, claiming 173 lives.
While everything in Volume 3 is valuable, I have cherry picked from chapter 1.6 dealing with the interviews of survivors. There it records: “Great credit is due to the Commission’s Community Engagement Manager, Ms Lana Kolyunski, who worked closely with grieving families and friends. She contacted many family members in the months, weeks and days leading up to the hearings to explain the commission’s processes and to see if she could help in any way.
“She then provided follow-up support and assistance as necessary. Lana also baked biscuits and slices for each of the 86 inquiries into the deaths, demonstrating a level of personal commitment that became a hallmark of her approach.
“An astonishing 3150 biscuits and pieces of slice were eaten – accounting for about 12 kilograms of butter, more than 12 dozen eggs, more than five kilograms of icing sugar, and five kilograms of plain flour. Lana leaves a personal legacy to many who came into contact with her during this time.”
It’s worth republishing this appreciation from 15 years ago, not just for the singular acknowledgement and detail of Ms Kolyunski’s contribution, but also, and importantly, because it is an evidence-based statement of appreciation by the three commissioners, something that goes beyond the usual “acknowledgements”, to words that convey being truly grateful for her contribution to what was a big team effort.
Successful inquiries, being those that lead to quality outcomes, reflect not just the efforts of the person or people heading the inquiry but also the contributions of investigators, experts, lawyers, counsel assisting, witness assistance staff and all the administrative staff without whose efforts nothing would be achieved. It’s a team effort.
Which leads to the following suggestion. The purpose of this article is to celebrate and learn from the happy outcome of the long and painful path to justice for Ms Folbigg.
Fortunately, the quality of Commissioner Bathurst’s report allows us to understand that journey and to learn from it.
The Australian Academy of Science supported the efforts of those seeking to have the advances in genetic knowledge understood and applied at the Bathurst inquiry. They also ran symposia after the report was published. See, for example, here.
It would be nice if the Academy followed up with a prize, the Folbigg Prize (if Ms Folbigg agrees), awarded when the circumstances are appropriate, for scientific advances that upset received wisdom.
Hugh Selby, a former barrister, is the CityNews legal affairs commentator. His free podcasts on “Witness Essentials” and “Advocacy in court: preparation and performance” can be heard on the best known podcast sites.
Who can be trusted?
In a world of spin and confusion, there’s never been a more important time to support independent journalism in Canberra.
If you trust our work online and want to enforce the power of independent voices, I invite you to make a small contribution.
Every dollar of support is invested back into our journalism to help keep citynews.com.au strong and free.
Become a supporter
Thank you,
Ian Meikle, editor
