Kathleen Folbigg described her pardon and release after 20 years in prison as a victory for science “and especially truth”.
But not all cases of wrongful conviction end this way. It took a sustained push from Folbigg’s friends and years of pro bono legal work.
Experts say the case shows there is a need for an independent body to investigate possible miscarriages of justice in Australia to avoid a repeat of Folbigg’s nightmare.
“This isn’t a rare case,” said Michael Kirby, a former high court justice. “We seem to be having lots of these cases of unjust convictions coming forward.”
Folbigg, 55, was pardoned last week by the New South Wales attorney general after spending 20 years in prison over the deaths of her four children.
Her advocates have said she suffered one of the gravest miscarriages of justice in Australia’s history.
She was convicted in 2003 of the murders of three of her children and the manslaughter of one child but always maintained her innocence.
An inquiry led by the former state chief justice Tom Bathurst found there was reasonable doubt as to Folbigg’s guilt for each of the deaths after new scientific evidence found three of the children could have died of natural causes.
The findings of the inquiry prompted the attorney general, Michael Daley, to recommend that Folbigg be unconditionally pardoned and released immediately.
Kirby said cases such as Folbigg’s required “very careful contemplation” and should not always be pushed through the usual criminal courts and appeals system.
“Very intelligent people looked closely at the Folbigg case, and on the basis of the evidence that was before the jury they came to the conclusion there had not been a miscarriage of justice,” he said.
Kirby is among academics and experts calling for the introduction of a body to review such cases, known in other countries as a criminal cases review commission.
“It’s preferable to have matters of this kind determined by an independent reviewer. It is a failsafe.”
While these commissions take different forms in different jurisdictions, the rough outline remains the same: an independent panel of experts review convictions and comb through old or fresh evidence.
Kirby pointed to similar systems established in comparable countries, including the UK, the US, New Zealand and Canada.
The UK Criminal Cases Review Commission, established in 1997, had already reviewed 27,514 cases, with 776 sent back to courts and 535 appeals allowed.
“What is so superior about the Australian criminal justice system that we don’t need it?” Kirby asked.
He is not alone. The Australian Law Council and the Sydney Institute of Criminology are also calling for the establishment of a review body, while a host of experts have voiced their support.
Daley said the circumstances of Folbigg’s case were “rare and exceptional” and reflected the “changing nature of scientific knowledge”.
He said he had requested advice from the Department of Communities and Justice on the system of post-appeal conviction reviews.
“I will consider this advice carefully, along with the report of the inquiry into Ms Folbigg’s convictions when that report is finalised.”
The current system makes it extremely difficult for anyone to have their convictions overturned once they have exhausted their appeal pathways. It relies on a prisoner having the network and patience to mount public campaigns to persuade the government to call an inquiry or allow an exceptional appeal.
A review body would have the power and resources to dive into claims of injustice and refer them back to the court of criminal appeal if they had any standing.
Prof Gary Edmond from the University of New South Wales said a review commission would enable the legal system to understand and address some of its “blindspots”.
“If we take innocence seriously in our system, we would have such a commission,” he said. “It would enable us to get a sense of some of the kinds of blind spots and limitations and consider the systemic problems with the performance of our trial and appellate processes.
“Because our system is so case based, it’s hard for it to kind of learn. And I think cases like Folbigg’s reinforce that.”
While Edmond said the treatment of forensic sciences in courts had historically been a “mixed bag”, he added that admissibility requirements for expert evidence as well as varying levels of resources available to defendants meant there were still gaps in the system.
“If the parties aren’t well enough resourced or aren’t sophisticated enough to actually appreciate problems and issues that need to be raised, then courts are never going to be presented with them,” he said.
“We have a lot of assumptions that are untested. And if you kind of poke them, they don’t necessarily hold water.”
