The law can make mistakes

A campaign by some of the nation’s top scientists to right what they say is a grave injustice against a woman accused of murdering her four infant children is too powerful to ignore. The case against Kathleen Folbigg, who is serving a 30-year jail term, has echoes of the Lindy Chamberlain affair in which a disbelieving public and legal process refused to accept the possibility a dingo had taken her baby. The 90 scientists who have signed the petition calling for Folbigg to be pardoned claim a serious miscarriage of justice has taken place. If they are correct, the suffering endured by a woman who has lost four children to sudden infant death syndrome and natural causes and has been wrongly sent to prison for their murder is almost beyond comprehension.

Eminent researchers who have signed the petition include two Nobel laureates and several Australians of the year. Among them is Australian Academy of Science president John Shine, Nobel laureate Peter Doherty, and Ian Frazer, co-inventor of the vaccine that prevents cervical cancer. They say new medical evidence about a mutant gene carried by two of the Folbigg children creates a “strong presumption” that they died from natural causes.

The case against Folbigg was circumstantial, with no forensic evidence she had smothered any of her children, let alone all four. Following Folbigg’s 2003 trial, the Victorian Clinical Genetics Service sequenced entire genomes from neonatal heel-prick blood cards that were more than 20 years old. It found a novel, never before reported mutation in two infants that had been inherited from the mother. The variant can cause sudden cardiac death.

The evidence was not sufficient to sway a 2019 inquiry into Folbigg’s conviction but the scientists say the hearings did not include a single expert in the genetics of cardiac arrhythmias. Nor was there an expert in calmodulin, the gene at the centre of the evidence challenging two of the deaths. Folbigg was convicted on the basis of ambiguous entries in her private diaries that the jury was told amounted to confessions of guilt, something she denied.

The scientists argue the inquiry’s findings run “counter to the scientific and medical evidence that now exists”. New evidence and the strong support of top scientists demand that Folbigg’s case be reconsidered. The law can make mistakes. When new facts come to light they must properly be taken into account. Beyond reasonable doubt seems difficult to sustain in a case where scientific evidence suggesting innocence is pitted against a circumstantial case that rests on disputed entries in a personal diary.