The NSW attorney-general has refused to recommend a pardon for convicted child killer Kathleen Folbigg, but has recommended yet another public inquiry into the deaths of Folbigg's four children in response to a petition for her release signed last year by 90 eminent scientists citing evidence that say raises doubt over her guilt.
Folbigg was jailed in 2003 for murdering her children Patrick, Sarah and Laura, and for the manslaughter of her son Caleb.
An inquiry in 2019 upheld Folbigg's conviction, and ultimately concluded that her guilt was "even more certain", though her lawyers argued that both the trial and subsequent inquiry were flawed.
On Wednesday, attorney-general Mark Speakman announced that the governor, on his recommendation, has directed another inquiry into Folbigg's conviction.
"There have been numerous legal proceedings in this matter," Mr Speakman said, "Numerous appeals, and applications to the High Court, and in 2018 his excellency at the time, Governor Hurley, on my recommendation, directed an inquiry be undertaken by former District Court Chief Judge Reg Blanch into the convictions.
"At the inquiry, there was evidence of a mutation of a gene known as CALM 2 but there was disagreement between the experts as to the effect that mutation may have."
The CALM 2 gene is part of the calmodulin gene family and controls how calcium is transported in and out of heart cells. Mutations in the gene are one of the best-recognised causes of sudden death in infancy and childhood.
After the 2019 inquiry, the medical journal Europace published a paper authored by 27 scientists, which studied the mutation of the CALM 2 gene in both Folbigg and her two daughters, and concluded that the mutation was a reasonable - and even likely - explanation for the girls' death by natural causes. Her two dead sons also had illnesses, which could have caused them to stop breathing as they slept.
The petition to pardon Folbigg on the back of the paper's assertions was delivered to the NSW Governor, Margaret Beazley, in March last year. It claimed that the case against Folbigg was entirely circumstantial, and that the trial and later inquiry was derailed by flawed logic.
"It is based on the proposition that the likelihood of four children from one family dying of natural causes is so unlikely as to be virtually impossible," the petition reads.
Evidence before the 2019 inquiry, as well as the fresh scientific evidence of genetic mutation, should give any reasonable person doubt that Folbigg killed her four children and deciding otherwise rejects medical science as well as the law, the petitioners argued.
Folbigg's solicitor, Rhanee Rego, said the fresh evidence should result in a pardon.
NSW Attorney General Mark Speakman is making a statement about Kathleen Megan Folbigg who was convicted of killing her four babies. #7NEWS https://t.co/D2xGP6QTaS
— 7NEWS Sydney (@7NewsSydney) May 18, 2022
Mr Speakman on Wednesday, however, refused calls to pardon Folbigg, claiming that a pardon granted "behind closed doors", in light of the public airing of the case up to this point, could undermine the public's trust in the justice system.
"I can well-understand why members of the public may shake their heads and roll their eyes about the number of chances Ms Folbigg has had to clear her name," Mr Speakman said. "But the evidence clearly, in my view, reaches the necessary threshold for some kind of intervention. It certainly rises to the level of questionable doubt, that is referred to in the statute about appeals in this sort of matter."
"Ms Folbigg's lawyers have asked for a pardon. I have recommended to the governor that a pardon not be granted because I don't think it is appropriate against the backdrop of what has happened, nor fairness and transparency, that there simply be a pardon.
"We have had a trial by a jury in a public space. We have had numerous applications in court. We have had a very public inquiry. It would be undermining confidence in the judicial process and our justice system if I, as a politician, recommended behind closed doors to the governor that there be a pardon, no matter how compelling Ms Folbigg's lawyers say the evidence is.
"A pardon is not appropriate because the evidence needs to be tested ... (and) it is not appropriate that it is tested behind closed doors."
The new inquiry will be headed by recently retired NSW Chief Justice Thomas Bathurst, who, prior to his appointment to the bench in June 2011, served as president of both the Australian Bar Association and the NSW Bar Association.
Mr Speakman described former Chief Justice Bathurst as "an eminent jurist, (and) someone particularly qualified for this role, and someone who I have every confidence will deal with this matter in an expeditious and fair manner".
"Justice in NSW has to be transparent and open," Mr Speakman said, "If people are to be confident in our justice system, they have to see it in action. Open justice is a key underpinning of our justice system, so in the end, a simple pardon without that open and transparent process would not be appropriate."
Mr Speakman expressed his condolences, and his regret, about the re-traumatising impact that yet another inquiry into Folbigg's convictions would have on her surviving family, particular her ex-husband Craig Folbigg.
"It will weigh on all our shoulders, the pain and suffering that the Folbigg family has been through, particularly Craig Folbigg," Mr Speakman said. "This is a man who has lost four children over a 10 year period, who has seen his wife convicted of their homicides, who has had to relive it all again in a public inquiry in 2018 and 2019, and who will have to go through it all yet again in 2022, this time with Commissioner Bathurst.
"I am truly sorry for the pain that Mr Folbigg suffers, and for his family, because of this re-traumatisation.
"I think all of us just cannot imagine what this family have been through and whatever the outcome of this inquiry, it is an extraordinary tragedy.
"This is a tragedy anyway you look at it ... But it is clear that in the interest of justice, there has to be a further public inquiry that is open, transparent, fair and efficient."
Deeper reading: The case of Kathleen Folbigg
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Scientists call for governor to pardon Kathleen Folbigg on Hunter Valley murder convictions (March 4, 2021)
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Kathleen Folbigg inquiry analyses DNA from accused's deceased children (April 15, 2019)
- Barrister Robert Cavanagh criticises three-year wait for decision on petition for judicial review (August 14, 2018)
- Pressure mounts for a judicial review of Hunter mother convicted of killing her four babies (August 11, 2018)
- Kathleen Folbigg has spent 14 years in jail for killing her babies, but experts say there's real doubt over her conviction (May 17, 2017)
- Petition calls for Folbigg child murder conviction review (July 2, 2015)
- Folbigg babies 'were not murdered': Governor petitioned for judicial review (July 2, 2015)
- Kathleen Folbigg case review bid challenges SIDS evidence (October 6, 2014)
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Legal centre in push for judicial inquiry (October 25, 2013)
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Kathleen Folbigg's family says she deserves jail time (February 11, 2013)
- The crusade to free Kathleen Folbigg (Feburary 4, 2013)
