Kathleen Folbigg inquiry: More questions than answers as legal advice kept under wraps

Kathleen Folbigg in 2019. Picture: AAP

For more than 20 years, Kathleen Folbigg has consistently and strenuously denied smothering all four of her children, despite her conviction by a jury in 2003.

To date, however, every appeal has been unsuccessful and she is serving a 30-year prison sentence.

The second inquiry into her convictions, announced on Wednesday by NSW Attorney-General Mark Speakman, was prompted by a petition lodged on Folbigg’s behalf in March last year, calling for her pardon and release. It has been endorsed by three Nobel laureates and more than 150 other eminent scientists and science advocates.

The petition argues forcefully that, contrary to the assertion that she smothered her children, all four died from natural causes, and her two daughters, Sarah and Laura, died from sudden cardiac arrests caused by a genetic variant they carried, CALM2 G114R, which they inherited from their mother.

The assertion that the ­mutation was likely pathogenic was raised at another inquiry held in 2019. But that inquiry’s commissioner, former District Court chief judge Reginald Blanch, refused a late request to extend the hearings, to explore this in greater detail.

Instead, after hearing explanations from Folbigg about diary ­entries she had written, which were used in evidence against her in 2003, he asserted that: “The ­investigations of the inquiry have instead produced evidence that ­reinforces Ms Folbigg’s guilt.”

That judgment is furiously ­opposed, not just by Folbigg’s friends, supporters and legal team, but also by the scientists who ­rallied to her cause following the publication of a peer-reviewed paper in the journal Europace, which established the mutation carried by the girls is pathogenic.

Speakman acknowledged on Wednesday that “this new evidence, and its widespread ­endorsement by scientists, cannot be ignored”. But he decided against seeking a pardon.

“It would not be appropriate for the Governor now simply to grant a pardon, or (for example) for the Governor or me to receive private briefings from experts with a view to considering granting a pardon, without that evidence being scrutinised independently in a public forum,” he said. “Only a transparent, public and fair inquiry can provide a just resolution of the doubt or question raised by that new evidence.”

Anna-Maria Arabia, chief executive of the Australian Academy of Science, said: “We respect the Attorney-General’s decision and the legal process he has ­decided on but the academy has every confidence that the overwhelming scientific and medical evidence, which is beyond reasonable doubt, will see Kathleen Folbigg freed from jail.”

For the past seven years at least, the NSW government has had solid evidence that there were serious doubts surrounding Folbigg’s convictions. In 2015, world-­renowned forensic pathologist Stephen Cordner concluded that: “Ultimately, and simply, there is no forensic pathology support for the contention that any or all of these children have been killed, let alone smothered.”

One unanswered question is whether the new inquiry will examine all of the exculpatory evidence, apart from the fresh genetic evidence. Lawyer Rhanee Rego told The Australian: “We are confident that the overwhelming evidence will finally free Kathleen Folbigg and prove her innocence.”

Almost certainly, by announcing a second inquiry, Speakman has effectively delayed any final decision until after the state election next March. That means if eventually Folbigg is freed, he may well not be the one to announce it.

And his decision begs more questions than it answers. Despite asserting “there is a need for fairness and transparency to all”, Speakman refused to release the legal advice he has received. One can only guess at what that legal advice says, what course of action it recommends, and whether he has followed that advice.