HWLE’s Sydney Health team were privileged to act pro bono for the Australian Academy Science (the Academy) at the second inquiry in the convictions of Kathleen Folbigg before the Honourable Justice Thomas Bathurst AC KC (the Second Inquiry).
In 2003, Ms Folbigg was convicted of the murder of her three children Patrick, Laura and Sarah and the manslaughter of her son Caleb and sentenced to 25 years in prison. Ms Folbigg always maintained her innocence.
On 18 May 2022 a second inquiry into Ms Folbigg’s convictions was announced. The Second Inquiry was primarily instigated after testing of stored genetic material from Ms Folbigg’s two daughters, Sarah and Laura, indicated that they were affected by a rare genetic variant called CALM2-G114R which had the potential to cause life threatening cardiac arrhythmias.
Given the complexity of the new scientific evidence to be led at the Second Inquiry, HWLE obtained leave for the Academy to appear at the Inquiry and make submissions addressing:
- suitable experts in areas of specialised scientific knowledge for the purpose of obtaining relevant evidence;
- suitable questions/clarifications for experts who are engaged by the Inquiry; and
- scientifically technical aspects of the inquiry: in particular how that science should be approached in accordance with scientific standards and scientific rigour.
Using their expertise in health law, HWLE were able to assist the Academy and the Inquiry in sourcing and recommending leading scientific, medical and psychiatric experts from around the world and providing the Inquiry with questions to be put to experts both before and during the Second Inquiry.
The hearing of the Second Inquiry took place over a period of 13 days between 14 November 2022 and 27 April 2023 before The Honourable Thomas Bathurst AC KC. At the hearing, evidence was provided by world leading experts in cardiac genetic conditions, paediatric neurology, sudden unexplained infant death, maternal grief and psychiatry. The overwhelming consensus amongst the experts was that there was a natural cause of death for each child.
During closing submissions, both Counsel Assisting and the Department of Public Prosecutions submitted that the evidence given at the Second Inquiry raised ‘reasonable doubt’ as to Ms Folbigg’s guilt.
On Monday 5 June, following receipt of The Honourable Thomas Bathurst’s preliminary findings that there was reasonable doubt as to Ms Folbigg’s guilt, NSW Governor Margaret Beazley exercised the Royal Prerogative of mercy and granted Ms Folbigg an unconditional pardon.
This matter demonstrates the interaction between science, medicine and the law and the critical role that expert evidence plays. The role of the Academy as a scientific advisor to the Inquiry was unique within the Australian judicial environment but raises the question of the need for such involvement when complex medical and scientific evidence is critical.
Academy Chief Executive, Anna-Maria Arabia, has clearly articulated the challenge that this matter has highlighted for our legal system – ‘We do not always have a system where the most qualified or the most expert person is made available to that system…The independent selection of scientific experts, so they can bring to bear their knowledge in an unfettered way, would be an enormous advancement…‘
This article was written by Kylie Agland, Partner, and Stacey King, Senior Associate.