5 potential outcomes for Folbigg case

NSW Attorney-General Mark Speakman continues to stall his decision on the petition to the Governor of NSW that calls for Kathleen Folbigg’s immediate pardon and release.

The petition was endorsed by the Australian Academy of Science and supported by more than 150 scientists, including Nobel laureates professors Elizabeth Blackburn and Peter Doherty. It argued that fresh genetic evidence showed that ‘has been wrongfully incarcerated because the justice system has failed her’.

Speakman’s only comment when approached by News Corp last week was: “I have received detailed advice from senior and junior counsel regarding the various issues raised in relation to the petition. The matter and advice have been carefully reviewed and I expect to make an announcement shortly.”

Journalist Quentin McDermott notes in The Daily Telegraph that Kathleen could possibly face five potential outcomes arising from the petition, although her legal team considers that there is only one outcome supported by the evidence: a pardon.

PARDON AND RELEASE

Speakman can recommend to the NSW Governor that the petition should be granted, and that Kathleen should be pardoned and released. The NSW Government says that: “Some examples of extraordinary circumstances in which pardons have been granted include wrongful convictions, where new methods of forensic evidence raise significant questions as to the petitioner’s guilt.”

Kathleen’s legal team says her case “fits this definition exactly, because of the new genetic evidence.”

If Kathleen is released, Speakman can also refer her case to the NSW Court of Criminal Appeal, for her convictions to be quashed.

REFERRAL TO THE COURT OF CRIMINAL APPEAL

Even if Kathleen isn’t pardoned and released, Speakman can refer her case to the Court of Criminal Appeal for her convictions to be quashed, based on the fresh evidence contained in her petition.

Kathleen’s legal representatives will not oppose such an application. They expect that if a referral is made by Speakman, it will be based on his conclusion that her convictions should be quashed, and that the application will not be opposed by the NSW Director of Public Prosecutions.

PARDON DENIED

Speakman can deny the petition to pardon and release Kathleen.

If he does so, almost certainly it will cause a storm of protest from the science community, backed strongly by the Australian Academy of Science, which has offered to assist Speakman by providing experts to help him assess the fresh genetic evidence. Speakman has turned down their offer.

Professor John Shine, President of the Australian Academy of Science, told News Corp: “Internationally, other mothers wrongly convicted of murdering their children based on the improbability that multiple infants can die in the one family from natural causes have been released.”

He said Kathleen is “the last known woman to remain in prison because of this discredited assumption. She remains incarcerated despite the new clear scientific evidence.

“I again call on the NSW Attorney General to make an evidence-informed decision, based on the strong, new scientific evidence demonstrating Ms Folbigg’s innocence, and release her from prison.”

SECOND INQUIRY ORDERED

An inquiry into Folbigg’s convictions in 2019 ended with the inquiry’s Commissioner, a former Director of Public Prosecutions and Chief Judge of the NSW District Court, Reginald Blanch, reporting that his investigations had “produced evidence that reinforces Ms Folbigg’s guilt,” – a conclusion which has been hotly contested by Folbigg’s supporters and by the science community ever since.

It is open to Speakman to order a second inquiry, following the submission of fresh evidence in the petition. But Kathleen’s lawyers argue that “is unnecessary because full details and evidence have already been provided to the Attorney General.”

The last Inquiry in 2019 heard evidence from Professor Vinuesa and others that the genetic mutation they had discovered was “likely pathogenic”.

But despite this discovery, Blanch refused to reopen the inquiry to hear further evidence about the CALM2 G114R variant. Later experiments would demonstrate that the variant is indeed lethal.

EARLY PAROLE

The final option which Speakman may have considered, is to grant Folbigg early parole. In this eventuality, her release would be conditional, and her convictions would stand.

It would be a decision which sets Kathleen free but without necessarily acknowledging the new science which, her legal team argues, permits a pardon to be granted.

Her lawyers say: “Taking this course would indicate a refusal to consider properly the fresh evidence and apply the law.”

Read Quentin McDermott’s full, compelling news article here.

How you can help

If you live in NSW, send a letter to your local members of the NSW Parliament demanding they speak to Speakman on your behalf and table a related question asking when he will provide a decision on Kathleen’s pardon petition.

Your local members of parliament are located here.

Here is a sample letter to use:

Dear [insert local member’s name],

I write as a member of your electorate to draw your attention to the case of Kathleen Folbigg. I request that you raise the issue of Ms Folbigg’s ongoing incarceration with the NSW Attorney General, Mr Mark Speakman and that you raise the issue in parliament in the next sitting period.

Kathleen Folbigg was convicted in 2003 for the murder of three of her children and the manslaughter of her firstborn. From 1989 to 1999, Kathleen Folbigg’s four children – Caleb, Patrick, Sarah and Laura – all died at different ages. All four children had autopsies and they were diagnosed with dying from natural causes.

Despite no signs of murder detected at autopsy, the prosecution claimed Ms Folbigg smothered all her children. Selected entries from Ms Folbigg’s private diaries were cited to establish her guilt.

In November 2020, new genetic evidence became available through functional testing of a mutation identified in Ms Folbigg and her two daughters. A study conducted by 27 scientists from several countries was published in the prestigious Oxford University journal, EP Europace. The study concluded that CALM2 G114R is pathogenic, and thus there is a >99% certainty that the mutation was responsible for the death of both Sarah and Laura.

Over a year ago, on 3 March 2021, a petition was sent to the NSW Governor and the Attorney General requesting that Ms Folbigg be pardoned based on evidence of natural causes of death and an absence of any evidence of smothering. This was strongly supported by the new studies that provided a genetic basis for the cause of death for Sarah and Laura. The petition has been backed by more than 150 leading scientists and doctors worldwide, including three Australian Nobel Prize Laurates.

In the interests of the accurate assessment of science generally, but also, in this case, the Australian Academy of Science wrote to Mr Speakman to offer him and those advising him a briefing about the new genetic evidence. Eight of the world’s best experts offered their time to Mr Speakman pro bono, to explain in detail and answer any questions about the new genetic findings. Mr Speakman declined this offer.

3 March 2022 marked the one-year anniversary of the petition requesting Ms Folbigg be pardoned. For over a year, Mr Speakman has had significant, probative evidence pointing to an innocent woman in prison wrongfully. Mr Speakman said in budget estimates on 16 March 2022 that he would say something “within a month”. The deadline of 16 April 2022 has now passed.

There is an innocent woman languishing in prison for crimes that science has proven never occurred. I do not want to live in a state or country which allows an innocent woman to remain in prison despite strong scientific evidence of innocence.

I ask you as my local member /NSW Attorney General / NSW Shadow Attorney General to raise this important case with the NSW Attorney General and demand he respond to the pardon petition immediately.

I can be contacted on [insert contact details].

I look forward to hearing from you.

Yours sincerely

[insert name]

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