News & Current Affairs Criminal Law

By Peter Woodhouse


Science has a role to play in preventing wrongful convictions

Kathleen Folbigg was convicted of murdering her 4 infant children in 2003.  She was labelled Australia’s worst female serial killer.  On Monday this week, she was granted a full pardon and released from prison after serving 20 years. 

Imagine being wrongly convicted of a serious criminal offence.  Imagine being wrongly convicted of murdering your own children.  Imagine spending 20 years in jail for crimes you didn’t commit.

Rare genetic variants in Ms Folbigg and two of her children triggered a second inquiry into those convictions.  The inquiry heard compelling scientific evidence and culminated in Counsel for the Office of the Director of Public Prosecutions conceding that there was a reasonable doubt in relation to Ms Folbigg’s convictions.  Earlier this week the chair of the inquiry, retired Justice Bathurst AC KC released a summary of his findings to the NSW Government, prompting the Attorney General to immediately recommend Ms Folbigg’s pardon to the NSW Governor. 

In what I understand to be a first, the Australian Academy of Science (the Academy) acted as an independent advisory to the inquiry into Ms Folbigg’s convictions and played a pivotal role in presenting scientific evidence that established a reasonable doubt.

Following Ms Folbigg’s pardon, Chief Executive of the Academy, Anna-Maria Arabia said reforms were needed to allow science to inform decision making and prevent further miscarriages of justice. 

“This case has implications for the justice systems of every Australian state and territory,” Arabia said.

“There is a critical role for independent scientific advice in the justice system, particularly where there is complex and emerging science.”

Ms Arabia noted that other common-law countries, like Canada and New Zealand had established criminal case review commissions.  Folbigg’s legal team echoed those calls.

A permanent commission makes sense.  Conviction appeal options through the Court system are extremely limited and time-sensitive.  Those options rarely allow for the reexamination of a conviction years later, when new evidence comes to light.  The establishment of a specialist commission could allow for new and compelling scientific evidence to be scrutinized and applied to dubious convictions and either confirm or overturn trial outcomes – no matter how much time has passed.  There are many cases where there have been pleas for pardons based on new evidence coming to light and far too many of them are dealt with on an ad hoc basis or not given the attention they deserve.  Whilst this most recent inquiry into Ms Folbigg’s conviction can easily be hailed as a success, it was not the first such inquiry and it is very difficult to secure one, let alone two.

Following Ms Folbigg’s pardon, Attorney General Michael Daley, indicated he was open to any necessary changes in the state’s judicial system to ensure nothing like this happens again.  Whilst those remarks are promising, they are a long way off sufficient action being taken, which may prove difficult in a law-‘n’-order heavy State like New South Wales.  Better still would be a national approach to such matters to ensure a uniform approach across all Australian jurisdictions.