NSW Governor Margaret Beazley has directed a second inquiry into the convictions of Kathleen Folbigg, on the recommendation of the state’s Attorney-General Mark Speakman.
Earlier on Wednesday, 18 May 2022, NSW A-G Speakman SC MP announced that, on his recommendation, NSW Governor the Honourable Margaret Beazley AC QC has directed a second inquiry into the convictions of Kathleen Folbigg.
The inquiry will be led by former NSW chief justice Tom Bathurst, who earlier this week was named as the new chair of the state’s Law Reform Commission.
In 2003, Ms Folbigg was convicted of the homicides of her children Caleb, Patrick, Sarah and Laura, following a trial by jury. On appeal, the Court of Criminal Appeal imposed a total sentence of 30 years’ imprisonment, with a non-parole period of 25 years.
In the past year, Lawyers Weekly has extensively covered the developments in Ms Folbigg’s case that allegedly prove her innocence, and her legal team’s calls for resolution on a “substantial miscarriage of justice”.
Solicitor Rhanee Rego also spoke on The Lawyers Weekly Show about the new evidence suggesting that Ms Folbigg may be innocent, as well as opportunities to reform the justice system on the back of this case.
Ms Rego also penned an op-ed in December 2021, outlining the legacy of Ms Folbigg’s case and the need for a Criminal Cases Review Commission in NSW.
Genetic mutation and second inquiry
Ms Folbigg’s case has had several unsuccessful appeals to the Court of Criminal Appeal and a number of applications to the High Court. The findings of a first public inquiry into the case, in 2018-19, saw a discontinued application for special leave to the High Court following a judicial review by the Court of Appeal.
In the wake of that first inquiry – undertaken by the Honourable Reginald Blanch AM QC – a petition detailing “developments in genetic science in respect of the CALM2 genetic mutation found in Sarah and Laura Folbigg” sought the exercise of the royal prerogative of mercy to grant Ms Folbigg a pardon.
That petition submitted, A-G Speakman said, that the discovered mutation provided an updated cause of death for both Sarah and Laura.
“Although the original 2018-2019 inquiry was aware of the mutation, there was no completed study as to the functional effects of that mutation at that time,” he said.
“Such a study has now been completed. Notwithstanding that Ms Folbigg has already had numerous attempts to clear her name, this new evidence, and its widespread endorsement by scientists, cannot be ignored.”
Australian Academy of Science chief executive Anna-Maria Arabia added that, in March last year, “more than a hundred eminent scientists, including several Nobel laureates, signed a petition seeking the immediate release of Kathleen Folbigg”.
“Last year’s petition was based on new medical and scientific evidence that came to light after the 2019 inquiry. In particular, the new evidence dealt with the findings that Ms Folbigg’s female children had a pathogenic genetic variant capable of causing cardiac arrest and death,” she said.
“While many fellows of the academy think there is overwhelming evidence to justify Ms Folbigg’s immediate release, we respect the Attorney General’s decision and the legal process he has decided on, which is to have a second inquiry.
“The academy will seek to facilitate that process as best it can and looks forward to receiving the draft terms of reference for the inquiry from the Attorney General so it can assist in defining the scope of the inquiry.”
The scientist who discovered the genetic mutation Professor Carola Vinuesa noted: “In 2019 we discovered the rare gene mutation in both Folbigg girls and in 2020 an international team of 27 scientists led by Danish Professor Michael Toft Overgaard demonstrated through biochemical testing that this mutation is pathogenic.
“The mutation disrupts the normal heart rhythm and can cause sudden cardiac death. The first outward sign of the disease can be a child dying while they sleep. The biochemical testing showed that the effects of the variant found in the Folbigg family are as severe as those of other mutations that have led to sudden cardiac death in young children.
“As there was never any evidence of child abuse, the most likely explanation for the deaths of Sarah and Laura Folbigg is that they died from a sudden cardiac arrest caused by the genetic variant they carried.
“The variant or mutation changes a protein called calmodulin that controls the way calcium enters and leaves heart cells. When mutations like this one occur, they can cause cardiac arry[h]thmias that can lead to sudden death without warning.
“Sudden death in these cases can be triggered by infection or fever and there was evidence of infection in both Folbigg daughters.”
No pardon and next steps
Responding to the announced inquiry, Ms Rego said she assumes that A-G Speakman was “compelled by the new expert reports from psychiatrists, psychologists and linguists, which all say there are no confessions of murder in the diaries”.
“We therefore expect a cooperative approach to establishing the scope of the inquiry. For it to be fair and equitable, it must deal comprehensively with the new genetic evidence and the new diary evidence,” she said.
“At Ms Folbigg’s 2003 trial, only a handful of selected words were cherry-picked out of the total 50,000 words written by Ms Folbigg. The same cherry-picked entries were focused on at the 2019 inquiry.
“We look forward to world-class experts being able to give their opinions in full to this public inquiry.
“There are more than 150 eminent scientists and doctors who back the new evidence, including three Nobel prize winners. We are confident that the overwhelming evidence will finally free Kathleen Folbigg and prove her innocence.”
While the A-G has recommended a second inquiry, he has declined to recommend that the Governor pardon Ms Folbigg.
“Ms Folbigg’s representatives contend that the new scientific evidence is compelling,” he noted.
“However, Ms Folbigg has been unsuccessful in numerous public proceedings to date, and there is a need for fairness and transparency to all. Against that backdrop, it would not be appropriate for the Governor now simply to grant a pardon, or (for example) for the Governor or me to receive private briefings from experts with a view to considering granting a pardon, without that evidence being scrutinised independently in a public forum.
“Only a transparent, public and fair inquiry can provide a just resolution of the doubt or question raised by that new evidence.”
Ms Folbigg will, the A-G added, continue to serve her sentence.
If the conclusion of the report from Mr Bathurst is that there is a reasonable doubt as to Ms Folbigg’s guilt, Mr Speakman said, the matter may be referred to the Court of Criminal Appeal for further consideration.
The A-G said that he will not comment further on the matter, given that it is now the subject of an independent judicial inquiry.
He did reflect, however, on the “immeasurable and continuing grief” that the deaths of the four children have caused to their family and community.
“I have written to Ms Folbigg’s legal representatives to advise them of the decision. I have also again spoken with their father, Craig Folbigg, to inform him about today’s decision.
“I am deeply sorry that yet again he and his family will have to re-visit their nightmare,” Mr Speakman said.