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Folbigg report could have done more for legal system, expert says
The Folbigg inquiry report failed to consider “systemic issues” within the NSW legal system, an Australian law expert argued.
Naomi Neilson
Given the narrow scope of the inquiry into Kathleen Folbigg’s wrongful imprisonment for the deaths of her four children, University of British Columbia Law Professor Emma Cunliffe said the final report could not account for the many holes in the justice system.
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While she applauded former chief justice Tom Bathurst’s work in coming to the conclusion there is a “reasonable doubt as to Ms Folbigg’s guilt” and his decision to refer it to the Court of Appeal, it failed to engage with the real issues within the justice system.
“In its present form, the NSW legal system has no effective mechanism by which systemic dimensions of wrongful convictions can be identified and addressed or individual claimants can fairly make their case for innocence.
“In the absence of such a mechanism, wrongful convictions will continue to occur in NSW, and they will not be remedied when they arise. It is extremely likely other innocent people languish in NSW gaols as a result,” Professor Cunliffe said.
Former chief justice Bathurst concluded there were “identifiable causes of death” for Sarah and Laura – the CALM2 G114R gene – and Patrick’s death was likely caused by a neurogenetic disorder.
These findings left it open for the “reasonable possibility” that Caleb had died of “unknown natural causes”.
Professor Cunliffe said it was a “careful analysis” of the evidence, but it should have considered more, such as the “ethical ramifications” of former chief justice Bathurst’s finding that Ms Folbigg had been subjected to an “openly hostile” cross-examination in the 2019 inquiry.
Former chief justice Bathurst wrote that in light of this conclusion, the 2019 inquiry’s own conclusions “are open to question”.
Professor Cunliffe said that former chief justice Bathurst could have also explored the “systemic significance” of a conclusion reached by Dr Allan Cala, whose evidence was “heavily influenced by the fact that he regarded it as inherently unlikely that four children in one family could die of natural causes” in circumstances where this reasoning had been prohibited.
“Equally, it does not advert to whether the NSW system of post-conviction review is effectively inaccessible to most claimants because of the burden cast on applicants to establish grounds for review, without any access to public funding or investigatory powers,” Professor Cunliffe said.
Supporting Professor Cunliffe’s findings, the Australian Academy of Science has called for a “more science-sensitive legal system”.
Chief executive Anna-Maria Arabia said the case demonstrated the need for decisions to be “routinely enforced” by evidence, “especially when it involves understanding complex and emerging science”.
The academy has suggested the legal system adopt a reliability standard to determine the admissibility of evidence, support mechanisms for the selection of experts of complex scientific material, and establish a post-appeals review mechanism.
“We look forward to working with attorneys-general across Australia to bring about law reform to create more science-sensitive legal systems,” Ms Arabia said.
While Attorney-General Michael Daley refused to comment after the report’s release, he did tell media earlier this year it would be “appropriate that NSW have the mechanisms to reconsider these matters in light of the new evidence”.
