Kathleen Folbigg pardon shows Australia needs a dedicated body to investigate wrongful convictions

The New South Wales Attorney-General Michael Daley today announced Kathleen Folbigg has been pardoned after having served 20 years for the murder of three of her infant children and the manslaughter of a fourth child. She has already been released, and won’t serve the rest of her 30-year sentence.

Daley had seen the preliminary findings of a second judicial inquiry led by former NSW Chief Justice Thomas Bathurst, which found there was reasonable doubt as to Folbigg’s guilt for each of the offences.

At trial, the prosecution had relied on the statistical improbability of so many of her children dying accidentally. However, at the second inquiry, this reasoning was called into question by fresh scientific evidence pointing to possible medical causes of the deaths.

Read more: Kathleen Folbigg's children likely died of natural causes, not murder. Here's the evidence my team found

Her two daughters were found to have a mutation in the CALM2 gene, which is associated with sudden infant death.

One of her sons may have had an underlying neurological condition such as epilepsy, which may have caused his death.

In relation to the death of her other son, Bathurst said the new medical evidence regarding the other three deaths undermined some of the reasoning used in the case against her. He said “the coincidence and tendency evidence which was central to the (2003) Crown case falls away”.

At trial, and in the first inquiry, the prosecution had argued Folbigg’s diary entries relating to the deaths of her children could be interpreted as admissions of guilt. But having been presented with fresh psychological evidence, Bathurst interpreted the diary entries as “the writings of a grieving and possibly depressed mother, blaming herself for the death of each child”.

Whereas at trial Folbigg had been presented by the prosecution as “Australia’s worst female serial killer”, Bathurst indicated he was “unable to accept […] the proposition that Ms Folbigg was anything but a caring mother for her children”.

The Folbigg case is a particularly tragic case, but it’s not unprecedented. The criminal justice system carries an inbuilt risk of wrongful conviction. Ad hoc commissions of inquiries like the Folbigg inquiry are inefficient and expensive. The system needs reform.

The Folbigg case is yet another demonstration that Australia needs a Criminal Cases Review Commission (CCRC) – a statutory body working at arm’s length to investigate claims of wrongful conviction.

A CCRC would have the powers and resources to investigate defendants’ claims to have been wrongfully convicted. Claims found to have substance can be referred back to the court of criminal appeal. Standing CCRCs have proven to bring a cost-effective improvement to the accuracy of criminal justice systems overseas.

Preferably, it would be a single federal body covering all jurisdictions, or failing that, one for each jurisdiction.

Wrongful convictions

Cases where miscarriages of justice are identified years later, such as Folbigg’s, do happen.

In the last decade, Jason Roberts in Victoria was acquitted in a retrial after serving two decades in prison for the murder of two police officers.

Scott Austic in WA was acquitted in retrial after serving 12 years for the murder of his partner who was pregnant with his child.

David Eastman in the ACT was acquitted in a retrial after serving 20 years for the murder of assistant police commissioner Colin Winchester.

Henry Keogh in SA was freed following an exceptional second appeal having served 20 years for the murder of his fiancé.

In these cases, as in the Folbigg case, the subsequent proceedings considered fresh forensic evidence or highlighted flaws in the original proceedings or investigation.

Read more: 'Serial' podcast's Adnan Syed has murder conviction vacated. How common are wrongful convictions?

Systemic solution

It’s a primary goal of the criminal justice system to avoid the searing injustice of a wrongful conviction. This goal is pursued through principles such as the presumption of innocence and the requirement of proof beyond reasonable doubt.

But absolute certainty in guilt isn’t feasible and isn’t required. A risk of error is run and occasional errors should be expected. They will not necessarily be corrected on appeal, where the defendant is no longer presumed innocent and weight is given to the “finality principle”. This means the jury verdict is ordinarily considered final, for the sake of efficiency and to provide the parties and society with closure.

Following an unsuccessful appeal, the finality principle bites still harder and it becomes significantly more difficult for the wrongly convicted defendant to achieve justice. The imprisoned defendant will face an almost insurmountable challenge in persuading the government (or, in some jurisdictions, court) to order an inquiry or an exceptional subsequent appeal. In order to achieve justice, defendants like Folbigg, Roberts, Keogh and Eastman require remarkable resilience, as well as supporters on the outside.

Read more: Why is it so hard for the wrongfully jailed to get justice?

The criminal justice system needs to do more to address the statistical certainty of the occasional wrongful conviction. Overcoming this injustice shouldn’t demand superhuman reserves of fortitude, or the chance arrival of a champion.

The systemic risk of wrongful conviction demands a systemic solution.

Other developed nations have recognised that CCRCs are well-suited to this task, including England and Wales, Scotland, New Zealand, and Canada. Australia should follow in this path.

The extent of the change can be carefully calibrated through the design of the CCRC. The CCRC is a gatekeeper, and legislation can determine how widely the gate is opened.

The call for this key piece of criminal justice infrastructure isn’t new. The Australian Law Council expressed support for a federal CCRC in 2012. Commentators have called for an Australian CCRC on many occasions.

Last year former High Court Justice, Michael Kirby, reiterated his view that “such a commission is needed”. And the Sydney Institute of Criminology is currently calling on governments to take steps to establish an Australian CCRC.

Cases like Folbigg’s demonstrate that this reform is urgently required.