Legal Hour | Gender, Genes & Wrongful Convictions: Implications of the Kathleen Folbigg case

Good evening, everyone, and a warm welcome.

My name is Eileen Baldry and I'll be the chair of this forum and this panel this evening.

The first thing I want to do is to acknowledge the Gadigal people to acknowledge their elders past and present.

To acknowledge this, this land was never ceded.

And it always was and always will be Aboriginal land.

And I personally want to say how distressed I was at the outcome of The Voice.

This evening, we are here to investigate gender, genes and wrongful convictions.

Now you're all here because, you know that's what we're going to be doing.

And you have an interest quite clearly in this area.

This of course, is a an examination of Kathleen Folbigg's conviction, 20 years imprisonment and the work that was done to overturn that.

So I'd now like to introduce the panellists.

In the middle, we have Judge Andrew Haesler is see who's been a judge of the district court in New South Wales since September 2010.

After graduating from UNSW, one of ours, he worked as a solicitor with the Redfern Legal Centre, the Aboriginal legal service in Alice Springs, and Legal Aid Commission in Wollongong.

He was admitted to the bar in 1990 and appointed senior counsel in 2004.

From 1995 he practised as a public defender and later deputy senior public defender.

In 1999 to 2000 He was director of the criminal law review division of the New South Wales Attorney General's department, a very apt position to be thinking about this evening.

In 2010, he received the UNSW Alumni Award for his services to the community, and he's written and presented on a variety of topics concerned with the criminal law, including complex DNA evidence.

Immediately here on my left is Anna-Maria Arabia.

She's a chief executive of the Australian Academy of Science and a strategic advocate for science, social justice and diversity and inclusion she has over 20 years experience in the science sector, and is leading the Australian Academy of Science which is an independent not for profit organisation that provides authoritative and influential scientific

advice represents Australia on key international scientific bodies and builds public awareness and an understanding of science and champions and supports excellence in Australian science.

And we'll hear some of that this evening, because it was the Australian Academy of Science, which did the work on the DNA in this role.

Anna-Maria has led significant reform in global engagement in science and policy matters.

She's actually a neuroscientist by training, and she came to Australia and undertook medical research in Australia and abroad.

You she has held several senior executive positions in the science sector, CEO of science and technology Australia, and Deputy Director at Questacon, which many of you might know because you will have been there.

The National Science and Technology Centre in these roles she's worked extensively with parliamentarians, the business community sectors and the media.

On my far left is Dr. Leah Williams. Leah is a lecturer in the School of Law Society and criminology in the Faculty of Law and Justice at UNSW.

And she teaches criminal law courses across law and criminology, and has an interest in legal education, criminalisation, and the representation of crime and criminal justice processes in the media.

Her doctoral research examined the ways in which gender norms are reinforced and amplified through the reporting of criminal trials and the relationship between those gender norms and notions of deviance.

Again, most episodes this evening and finally, but not last is Mehera San Roque who is Associate Professor in the Faculty of Law and Justice at UNSW.

And an expert in evidence law and a feminist analysis of law with research interests in law, law and surveillance, visual cultures and the newly emerging field of law and sound.

She's a member of the evidence based forensic initiative at UNSW.

And again, this is most accurate place to discuss that today.

So we have the rest of this hour to discuss this case with our panellists.

And I will go through and ask each of them some questions, and they will have an opportunity to answer those.

We may have time for questions at the end.

Let's see how we go.

So to to start off, Mehera, can you tell us something about Kathleen phobics case.

Thanks Eileen.

So first of all, just wanted to set the scene I guess, for the for today's discussion in a couple of different ways.

And I want to do before I did that acknowledge the work that has led to this point.

One of the things that we'll be talking about today obviously is incredibly important work of the Australian Academy of Science, but I think we wouldn't be here talking about this case and the pattern in this case if it hadn't been for the work of her legal team, one of whom I think I might see in the audience, particularly Randy rego and Robert kavanah.

The work of her and her close friend and advocate Tracy Chapman and of other academics perhaps particularly and McCandless work, who's sort of the leading academic in terms of analysing this case, and in many respects, we're drawing on that legacy in talking about the case today.

As many of you are aware, so Kathleen was pardoned earlier this year, after 20 years imprisonment and that was on the back of a memo that was issued to the Attorney General from Tom Bathurst who headed up the second inquiry into Kathleen's case.

And that memo indicated a kind of advance ruling for some extent, which is that Bathurst indicated that he was firmly of the view that there was reasonable doubt in respect of all five of the convictions relating to the four children who died over a period of 10 years from 1989 through to 1999.

One of the things that I think is really interesting about that memo is the way that Bathurst takes us back to each of the elements of the case against Kathleen, and indicates I think, or perhaps foreshadows how he may be addressing the weaknesses in her conviction.

So while we were definitely talking about the kind of the new evidence and the emerging evidence, one of the things I think that is really different, perhaps about way that Bathurst to approach this compared to other inquiries is the way that he has taken us back to each element against Kathleen in her trial.

And so when she was convicted, I think it's important to note that in the absence of medical evidence for any indication of cause of death, so we were faced with a case in which there was no evidence as to why the children had died, and importantly, no evidence that they had been smothered.

So an absence in that sense of medical evidence.

The case proceeded to conviction on the basis of tenancy in coincidence evidence.

So in other words, the Crown argued that it was improbable given the similarities between the cases that each died of natural causes.

The Crown argued that there was tendency evidence in other words that Kathleen Folbigg had a tendency to lose her temper with her children and then to smother them.

The Crown argued that, in the absence of that medical evidence, there was an implicit argument or assumption, drawing on what was discredited assumptions from the UK, that where you have unexplained deaths, that there is in fact something suspicious there, which I think

some of you might know of as Meadows Law.

So the idea that one death is is a tragedy two deaths and suspicious three is murder unless otherwise proved.

And then importantly, the Crown case relied on the diaries and so diary entries that fall because self had written which the crown argued, were considered missions that she had, in fact said in her diaries that she was responsible for the deaths of their children.

So in going through each of those elements, in his memo to the Attorney General which led to the pardon, I think what Bathurst's I'm hoping I think, I guess what we'll see when we see more of the report from Bathurst is that we will get a much more detailed analysis

and critique of each one of those elements of the case.

And obviously importantly, Bathurst will also be addressing the fact that there is now scientific evidence that supports a reasonable cause of death or a probable cause of death in relation to at least three other children.

But I think it's important when we're thinking about the significance of the case or the implications The case is that we take into account all of those aspects of the weakness of the conviction from the start, and I think that's something that people who were acting for Kathleen, people who particularly looked at the case have sort of been drawing attention to over the years.

So hopefully that gives a little bit of that picture.

Thank you.

Thank you for setting that whole picture for us.

And I want to move to Andrew, because some, let's let's go back to the first inquiry, because this is a very complicated process that has happened here.

So I'd like to ask you Are these kinds of inquiries common?

And what are the strengths and weaknesses of inquiries like that?

In 2022, there were 64 Supreme Court trials, and 20 people were found not guilty and 34 guilty and five were dealt with not guilty on the grounds for mental illness.

Same year, there were 81 conviction appeals.

And 21 convictions were overturned.

That's 31%.

Most got new trials and they gave 10 acquittals.

So in the last 10 years, however, they've only been seven inquiries, and only four so far have resulted in acquittals.

So the Folbigg inquiry process was rare.

A second inquiry was to date unique.

Most appeals are characterised by an absence of resources at some stage, either at the trial stage or getting ready for an inquiry.

Folbigg had the benefit from day one of a legal team through legal aid, which was skilled and experienced.

She had during the appeal process, very good lawyers.

David Jackson, Rick Walker included.

She had a lot of support in the initial inquiry, and it was a comprehensive inquiry, resources and money were put into the first Blanche inquiry ended with a result that the commissioner was more convinced of her guilt.

Then before the inquiry had started and when you read that inquiry, you can see carefully reasoned, rational, logical progression of arguments.

Bathurst's inquiry will come to a totally different result.

In the course of the Folbigg matter.

Think 15, 13, possibly 14 Supreme Court judges had her case before her before them at some stage.

Three High Court judges considered her appeal.

Justice Blanche was one of the most experienced trial judges in the state, former public defender former Director of Public Prosecutions and a trial judge of some eminence.

He whoever was approaching it, and I think read it, and he did approach it on the basis that there was a jury verdict and almost every well every inquiry every appeal for a miscarriage of justice starts with that fundamental premise.

The jury or a court has found someone guilty to the standard of beyond reasonable doubt.

There was contested evidence, and that contest went against the accused.

Once you reach that stage, it's not a reversal of onus but it's a reversal of emphasis.

It is then on the person who has been found guilty to go through the appeal process and say a mistake was made.

The inquiry process expands the appeal process.

Because it enables going back to tours and going back into things that went wrong during the whole process.

But it can start with the same narrative that led to the conviction.

There are 10 circumstances which point to guilt.

There are diaries which admit guilt when the onus is put on the scientists and the lawyers for Ms Folbigg to say Hang on, there's something wrong with that combination, those 10 points

or 10 points that most mothers would have in common.

The diaries are read with the premise that she committed the crime and they are gendered.

A mother is cranky with her child and admits to being cranky with her child.

That is a motive for homicide.

Well, every mother in this room has a motive for homicide.

It doesn't add up.

And I'm fascinated to see how Bathurst went about his task, and I suspect it is going back to square one making no presumptions.

And one of the problems that we'll get to later in the talk, I think is that where the task is given to judges who are vastly experienced in criminal trials.

They have a mindset male or female, they have a mindset.

And that mindset is once someone is convicted at trial, if the problems occur that trial, obvious we can fix them get a free trial.

But once someone has been convicted by a jury who has heard the evidence, had rationally put to them heard the arguments, then it's up to that person, the convicted person to go through the process and prove their innocence and without scientists starkly as that, that's

really the appeal process being focused on error.

If you pick the wrong error as an appeal lawyer, you often don't get a second chance.

Mr. Maillard in Western Australia got a second chance his lawyers found something else British evidence from again, we can go into what is fresh evidence.

But lawyers, Supreme Court judges particular who are conducting these inquiries are also the same judges who are conducting the trials are also the same judges who are sitting on appeals from the trials and they used to overturning their brethren.

But at the same time there is a mindset can sometimes be interested with Bathurst who was not a criminal trial lawyer.

Maybe he took a different approach than someone who is and I'm as guilty as any.

I've been involved in the criminal trial process since the 1970s.

You go in with a certain mindset and it's very hard to get out of that mindset.

And I think that's where the tragedy of the bench inquiry started and finished.

Thanks Eileen Baldry 18:33 Andrew.

It and you've raised a number of things that I want to go to Leah about and that is, Were there particular aspects from your point of view, with the way Ms Folbigg was represented in the media and, and what did you see over time of the way in which that might have changed?

And what is it about her case that makes it made it particularly vulnerable to gender representation?

Thanks Eileen.

Yes, the first thing to say is the answer is yes and no.

So it's not surprising that Kathleen's case was represented in the way that it was.

It's something that we've come to expect when women are charged with criminal offences, particularly when women are charged with criminal offences committed against their own children.

So it wasn't unusual that her case would kind of capture the media's attention and that she would be represented in a quite extraordinary manner.

What's extraordinary about her case, though, is the fact that it was for babies and this is something that led to this case being particularly vulnerable to the application of a very gendered constant comparison of them against feminine ideals against these impossible expectations.

That we have of women have always been calm, and nurturing and submissive, and maternal.

And if there's a woman who steps out of that frame, which you necessarily have to do, if you are charged with a criminal offence because there aren't many crimes that are characterised by calmness and nurturing and paternity.

Then you are, by necessity, deviant against those feminine norms you've stepped outside of social norms, and therefore there's this real amplification of your deviance before a legal determination has even been made.

What we saw for Kathleen during the trial, you know, the the murdering mother kind of frame that was put forward is not new, but it was just extraordinary because it was for babies because it was in Australia where we don't have that many cases.

You know, we've just sort of come off the the Chamberlain case, and this was the Chamberlain case on steroids to a degree so it's something that when it comes to representations in the media and know why this case captured public attention and why it was so vulnerable to

the way in which it was presented.

It could have been expected and it surely was expected by many criminologists as Emma Cunliffe wrote in her book in 2011.

The media representation of Kathleen's case really never left any option, but that she was guilty.

And this is something that I've found in my own research in the representation of defendants in general, but of women in particular, really being held up against these gendered stereotypes to say, no matter the fact that when reporters reporting on criminal trials and then subject

to say rules are in place, and there are restrictions and quite tight controls from the judiciary on what can be recorded.

It's not about what is being reported so much as how it's being reported.

And what we saw was an emphasis on the diaries, selective reporting on certain parts of the diaries that taken out of context look really bad.

Or look really bad, at least, you know, snapshot to the public.

And in terms of, has it changed over time?

Again, yes and no, no, in the sense that we still see women held up against these impossible ideals.

So if we had another case like Kathleen Folbigg's case today, those same stereotypes and those same tropes the murdering on the frame, that monstrous mother, the pathologisation of female deviant deviants would still be wheeled out.

But for Kathleen's case in particular, we have seen a change in sentiment.

And that change in sentiment came from the fact that very important people and influential people and very persistent people tried to change that narrative try tried to change that public sentiment to put pressure on to get that political process of the inquiry

going because without public sentiment in favour of maybe there has been a miscarriage of justice here.

Then we wouldn't have seen the kind of political impetus for the first inquiry and certainly not the second inquiry to take place.

And I think there's really a lot to be said that it was science more so than a kind of deep seated belief.

In Kathleen Folbigg's factual innocence.

That really led to the second inquiry, and I think it's certainly something that highlights that we still don't trust women, whether they're complainants from sexual assault trials, whether they're domestic violence victims, whether they're defendants we don't trust women who come into contact with the criminal justice system.

And this is something that we're really not seeing changing very much.

Thank you, Leah.

Well, you've you've led us to have a discussion with Anna-Maria about the pivotal one of the pivotal aspects of the case leading to misfire begs the question and that is, of course,

the role that the Academy of Science has played.

And that in my understanding prompted the second inquiry because there was such persistent and clear evidence.

So it'd be I'd love to hear the way that happened, and your perception of the importance of sciences and evidence that can now be brought into criminal justice processes.

Anna-Maria Arabia 25:22 Thank you.

You're absolutely right.

And others have said it science did trigger the second inquiry into the convictions of Kathleen Folbigg that it was by no means that only reason of the sole reason for her pardon.

I think quite the opposite, but he did provide the trigger that was necessary.

I too, would like to acknowledge the work of Ronnie Reagan and Robert Cavanaugh who have persisted over many, many years and well before the Australian Academy of Science became involved.

And if I could also acknowledge HWL Edwards, who assisted us pro bono at the academy to be our legal representatives in what was a very unique and certainly a first for our academy.

We acted as an independent scientific adviser to the second inquiry.

We believe it's the first time a learned academy anywhere in the world has performed such a role, in some ways, not an unusual role for an academy when you think about learned academies, being independent advisors to decision makers, so it's quite routine for us to provide independent advice to politicians, to ministers, to parliamentarians, less so to be independent advisors to a justice

system, but actually it's just an extension of that role, because of the very important decisions that are made in the justice system, and the increasingly complex nature of science and the way we need to evolve so it interacts with the justice system more effectively.

In our role as independent scientific advisors, we had a couple of responsibilities, and they were primarily to help in the selection of experts.

And also to ensure that those experts were asked the right questions.

I make these points because this was not a practice that we necessarily observed in the first inquiry, but I'll come back to that.

We were also tasked with ensuring there was scientific rigour in the way science was represented and communicated through the through the inquiry.

So we did a lot of the behind the scenes work to ensure that the right experts were asked the right questions and that scientific principles were being upheld throughout the process.

I'm not sure if anyone had a chance to observe the inquiry.

You could watch it online, of course, be there in person, but there was this one.

One situation where two Danish professors flew to Australia twice, actually Michael Toft Overgaard and Mette Nygaard and they stepped Commissioner batters and counsel assisting through what a calmodulin mutation meant scientifically.

They started their explanation with evolutionary biology and yeast and how these genes were conserved over 1000s millions of years, and what it means to have that sort of gene it was a six hour I'll call it an interrogation, but it didn't feel like an interrogation it felt to me and looked to me, like one of the most exemplary and extraordinary forms of

science engagement between two systems that I have ever seen in my life.

Everyone felt informed, able to ask questions, to interrogate to share information to correct misconceptions.

It really for me, was an example of how things can and should be done going forward.

So some of the genetic information that was brought to bear in this and that triggered this second inquiry was new, some was not, some was presented in the first inquiry.

And it was really the I guess, the frustration of some of the scientists involved in that first inquiry, that science had not been adequately heard that caused them and in particular, I'd like to acknowledge Professor Carola Vinuesa fellow Australian Academy of Science, of course Carola to come to the academy and say, This isn't right.

You know, I've looked at my science I've experimented there are other experts around the world.

This wasn't heard adequately at that first inquiry, we need to do more.

And it was on the strength of that science that a petition was drafted and supported by around 150 scientists across Australia, all seeking for another mechanism to explore the fall big case which ended up leading to the second inquiry.

So not all of the information was new, but certainly there was new genetic information that emerged since the conclusion of the first inquiry and the second, why is it important to have an independent scientific adviser?

Why should the Academy of Science become involved?

The 2019 inquiry from our analysis, didn't meet some very basic scientific principles.

And I'd like to go through how that was the case in a kind of macro sense, but also in a micro sense.

So firstly, the calmodulin register is an international register and collects all of the cases around the world of individuals who have a calmodulin mutation and how they present so it's all in this in this register, and it's growing by the day there are a massive number of calmodulin mutations and data collected, but what's there is in this one, register,

the interpretation of the data within that register in the first inquiry from a scientific perspective was erroneous, it was incorrect.

So that was one concern and one way in which scientific principles were not upheld.

Circumstantial evidence as we've heard, the diaries were given much more weight and scientific evidence and that was concerning for us.

Many of the conclusions were based on the need for one unifying cause of death when scientifically that's not an appropriate way to assess for deaths.

And, of course, the fact that Kathleen had been convicted of suffocating her four children, three of the children, and there was no evidence there was no medical or scientific evidence of that being the case.

So they were some of the kind of macro concerns of science not being applied rigorously in the first inquiry.

I mean, more specifically, though, if we have a look at some of the assertions that were made in that first inquiry there were there were evidence put that children under the age of two couldn't die of sudden unexpected death.

The children couldn't die of some sudden unexpected death whilst asleep they needed to be active.

This was just plainly wrong.

The evidence should never have been admitted.

It should never have even been considered.

It was just incorrect.

A black and white incorrect and there was no degree of uncertainty there.

On the fact that some of the children had no prior symptoms. That is actually the definition of sudden unexpected.

No, no prior symptoms that Kathleen herself didn't have symptoms, that one's just again, factually incorrect, and that the fact that Kathleen is alive and her children are not and this presumption that if they both hold this mutation, they should both present similarly, it is a basic tenet of genetics that that is just not the case.

So some of those very core scientific principles were not met.

And then of course, the fact that the diaries themselves were never analysed by experts in journaling in mother's grief in trauma and loss that had never occurred until the 2022 inquiry.

So again, another fundamental absence of scientific principles being applied.

So they were some of the reasons why we felt strongly about putting the science and having sides heard well inadequately, but also, why we do need to find better ways for the science and the justice system to engage effectively going forward scientists and becoming less complex.

And there are some ways we can do that which I'm sure will speak about.

Thank you.

Thank you.

Like to move on to both Mehera and Leah to ask you in particular about the diaries.

We've we've heard a little bit of quite a bit about the diaries, and most of us would have heard quite a lot about the diaries as the inquiries were happening.

So what in particular, the from your perspectives were the representations and the importance of the reinterpretation of what was in the diaries?

Yeah.

So thanks for that.

And I think again, both what Anna-Maria said and what Andy said is actually kind of leads to this really nicely in terms of both what was inadequate in the through the trial process and the first inquiry in relation to interpretation.

But also, I think, the dominance of the trial narrative and the way that that sort of kept going through the first inquiry in many different ways.

So firstly, again, just for those who sort of are perhaps less familiar, Kathleen has sort of kept diaries over a long period of time, and certain passages of those diaries were interpreted in the trial as containing admissions that she was responsible for the deaths of her children.

And in isolation, I think it's probably fair to say that some of the comments in those stories were quite startling.

Not all actually introduced into the trial.

But so one concern I think, particularly in relation to that interpretation, was in the sense of the question of your starting point.

So, if you start from the, if the starting point is there is no known known cause of death and that that is itself suspicious, then you interpret the diaries through that lens of these statements must therefore sort of backup that suspicion.

If you interpret the door is from the starting point of the presumption of innocence, which is that an unexplained death is an unexplained death.

Then that significance, the significance of those statements that could be seen as admissions could be read very differently and expert evidence helps us with that and expert evidence was presented on that in the second inquiry, but we shouldn't necessarily have needed that I think in those sort of early stages when we think about that, that question that starting point.

And I think it's really important to note also that the diaries were what was seen to set Folbigg's case apart from a range of other cases in the UK and in Australia, and some that and you're involved in, in fact, mothers who were who had been convicted in the UK, Sally Clark being the most sort of famous one Angela Cannings been convicted in the

early 2000s.

Partly on the basis of evidence from Sir Roy Meadows, and their convictions were overturned 2003 2005.

So, at the time that Kathleen's case was working its way through the court and particularly throughout those appeal processes.

It was already known that there were problems with convictions of women in very similar circumstances, with multiple unexplained infant death.

And so it was very clear that the diaries functioned as the kind of inoculation in respect of reviewing each of those convictions so I think again, that sort of the trial and error sort of the stickiness of the trial narrative kind of carried through, and then that carries through into the first inquiry as well.

And I think one of the other aspects about the first empire which was very unfortunate, in a sense was the way in which Kathleen who offered to give evidence was then cross examined by three different parties by the counsel for Craig Folbigg counsel, assisting and counsel

for the DPP on what she was doing what she was writing, what she was meaning in those diaries and the that cross examination, which I think in many respects, underpins Blanche's conclusion that that guilt was even more certain, again, was conducted on the basis that these

diaries were in some way almost a sworn statements at some points like there's certain points in the cross examination where she's being interrogated about inconsistency in word usage from one year to the next.

As if she's been she's written sort of prior inconsistent statements.

So I think that that was why I think you're absolutely right and read that in terms of the way that the second inquiry really took that back to basic and so we're not going to use the diaries in the same way we're going to really interrogate that was was such an important part of that, that shift both in terms of the approach and second inquiry, but then of course, in terms of underpinning the pardon.

From methods.

But then I think in terms of the sort of the gendered elements of what's in that comes very much back to what you were sort of saying, Leah, in terms of, of what the sort of ideals of motherhood were, that were underpinning the idea that someone who expresses frustration in their diaries is somehow not a good mother.

Absolutely.

And it really goes to it.

The diaries are emblematic of the way in which women who are associated with crime are accused of crimes pathologised as either mad, bad or sad, and the diaries kind of capture all of those things.

You know, was she bad in the sense that she was admitting that she had killed her children?

Was she mad was she you know, suffering from postpartum depression or some other kind of psychiatric illness?

Where she's sad and she depressed?

These kinds of explanations are these ways to try and characterise women who are accused of committing criminal offences or trying to understand the behaviours of women that go outside of those norms or those expectations of femininity and motherhood?

Really coloured the way in which Kathleen Folbigg was seen and was understood by the public through the media, but also in the trials.

But I also think there's a gendered element here as well in the way that the criminal justice system has a very shallow understanding of women's experience.

It is a system that is incredibly conservative and patriarchal and it is changing, but women haven't really been involved in the criminal justice system for very long, so we can't expect that.

Even though we want to we can see that the very unique experiences of women in the sense of new motherhood in this case, but in many other instances that we see come into criminal courtrooms just aren't understood by the law.

In the way that other issues and maybe men's issues that come in to the trial are understood.

So this notion that we expert evidence, wasn't initially called on the diaries to explain that.

No, this the way in which these diaries were written is what would what we would expect of a woman who is grieving a woman who has had several babies lost before.

Is scared is worried is sad is struggling, maybe all of these things that are completely normal to the experience of new motherhood but not seen in that way in a criminal trial context, because that female perspective doesn't really exist in the trial to that extent.

So things that we are still uncomfortable in speaking about in everyday life, we're even more uncomfortable with in the criminal courtroom in the kind of very ritualised form of life and proof that is the courtroom.

Thank you.

It's just an observation to pick up on something you said earlier.

Commission about this really did take a very comprehensive look at this case and did challenge many of the assumptions I think that had been made earlier.

But when I think back to the nature of the pardon petition, which we supported, and the I'm not going to use the leave the right legal term, because I'm not legally trained.

But the the scope of the instructions went to Commissioner Bathurst.

They were very much around assessing the genetic evidence.

And I take my hat off to Commissioner Bathurst for actually taking a step back and seeing the interconnectedness of that we previous assumptions that were made.

And I think that was in no small part to the submissions made by Kathleen's representatives, and the way they were able to demonstrate that actually you can't take these things in isolation and the diaries do need to be looked at and other aspects of this trial.

So credit to him for going that extra mile and all of those people who enabled that and in some ways went out of the immediate instruction.

Yeah, that was the pattern.

Yeah.

And I think, again, my understanding is that in the first inquiry he sort of went the other way, like the initial input, the first inquiry, the scope was much broader.

And Blanche actually narrated that's my said that, as far as he was concerned, there was no need.

Diaries could be interpreted through common sense.

We didn't need any additional information.

And so it's it was an interesting flip.

In that respect.

Yeah.

One of the important things this evening we want to do is reflect on what do we learn, what can we learn?

And should we be changing the way in which we do things and so Andrew perhaps if you'd reflect on Sally Clark's case, in any other cases, some for those of you not in the know there is something called the criminal case review commission in the UK.

And it it has reviewed quite a lot of cases and some of them like Kathleen's.

The present Attorney General of New South Wales has said, Folbigg's case proves the system works, and we don't we have in our criminal appeal Review Act, a process of either

petitions to the Governor or to the Supreme Court, and then we can have inquiries.

We have a legal aid system which allows people to be represented at trial.

And if you handle it well, you can keep your client out of the media.

And you can Mehera alluded to a case I did just after the Folbigg where a lady was killed, a mother was charged with murdering three children then attempting to murder the fourth.

You haven't heard about it?

Didn't get into the press.

It was thrown out before it got to formal trial when we spent 12 weeks tearing bit by bit in a razor sharp, every one of the 135 prosecution evidence, medical and scientific experts who were basing their conclusions on supposition and speculation.

And by the end of the case, there was no case.

Story over.

No press.

Not every lawyer wants to get the publicity for the cases they do.

In the UK, they have a criminal case review commission.

About 30,000 cases have been reviewed by it 800 have gone back to the court and about 70% of seen the convictions overturned.

So 800 that's about 500.

England, it's a national system.

They cover all of the serious crimes.

It's quite involved.

It's quite intensive but its budget has been cut and cut over the last decade and the number of cases been referred has been cut.

It works because anyone can apply and most of the applications are from the jail from unrepresented people.

The failure with our current system is that unless you have someone on the outside, prepared to put normal amounts of effort in to coordinate the initial request for the inquiry.

It's not going to happen.

So if you don't have a legal team, you don't have elite lawyers interested you don't have friends on the outside.

It's just not going to happen.

Whereas in the UK at least you can start the process and you can tweak the interest of a variety of commissioners.

Some are lawyers but none as far as I'm aware are appellate law appellate judges, they're not the people who will be sitting on the ultimate decision.

And so the criminal case review commission will bring in experts will review the place case will put a case to the court of criminal appeal in equivalent in the Court of Appeal in the criminal division in the UK.

They are selective they only put cases that they think are going to succeed on appeal.

Which is not always the right test.

And the resources are being undermined.

And so a lot of people cases are reliant upon students in innocence projects, Philanthropic agencies So it works, but it could be better and the criticism of it it still is designed to go back to the Court of Appeal.

And any system that we had in Australia, constitutionally would still have to go back to a Supreme Court unless we change that constitution, which let's just put that aside.

Ultimately, it would have to be commissioned would have to be framed to put cases to to the Court of Appeal.

It would have to be resourced I thought was great idea.

I thought oh I'm perfect person for the job, done lots of trials.

Then I'd looked at the Blanche inquiry and thought maybe a criminal lawyer is not always the best person for the job.

But in UK they have I think 12 or 13 commissioners, who are varied, some are scientists, some are administrative lawyers, some are legal aid lawyers, some ones are fireman with experience in running organisations so there's a breadth of people for their committee.

I think that's important.

New Zealand has a criminal case review commission.

With a senior criminal lawyer running it they do investigate from complaints.

They've done about 200 investigations.

And so far, what they have done is prove their system works.

There's only been one matter referred and it was interesting, but it was a review of a sentence where a child they found out that the person who was sent to jail as an adult was in fact a child when he was convicted and jailed, and his retrospectively received justification for vindication for being jailed when they shouldn't have but they haven't

had any significant inquiries into convictions.

So it is possible to set up a well-resourced Commission.

It is possible to have a range of people as commissioners who will not fit into the mindset that similar to that in the Blanche inquiry but I don't think it's going to happen.

Why not?

It costs money.

If you would not be impossible far from it, the Canadians have there had a review and they they have a criminal case review commission currently before their parliament.

The bill doesn't actually bring in as many of the recommendations as the people who wrote the initial paper brought in but it could be a better model, and we're improving on the criminal case Commission.

The involvement and resourcing of appropriate scientific information is is critical and admission of failure.

When I was in the Attorney General's department at the turn of the century, we put performed a proposal for an independent Forensic Science Commission up to the New South Wales Government and it was effectively to have what is partly the Forensic Science Service but an A team and a B team so that you could have two independent forensic agencies providing advice in criminal

cases, so that at least you've got two perspectives.

Money was the problem then didn't died before they even got to Parliament.

So we can make the trial process better air and her colleagues.

review of the evidence act we can resource trials better, finding the right experts having a two experts available to the defence as well as the prosecution can improve the trial process.

There are things that we could do tomorrow to improve the trial process.

We can tweak the Review Act in New South Wales.

I'd advocate that commission but a commission that is set up learning from the mistakes made in the UK and New Zealand and that I'm not optimistic that the money will be forthcoming.

We'll come to you Anna-Maria in a second because I know that you support it.

But of course because Australia has eight jurisdictions, it would be very different to the UK or or New Zealand and they would you know if it was set up it would be set up in each to presumably one set up in each jurisdiction and

there's a proposal for a national that would require each of the states and territories to see to the Commonwealth Not necessarily.

Over to you Anna-Maria You could have a national one then refers a case back to its own criminal system.

That would be efficient, cost effective.

I'd have thought there are barriers there's no doubt that there are barriers for me there are a couple of principles at stake here.

From a scientific perspective, there is a complex and emerging science every single day and we're not at that that pace of change is not going to slow down or go backwards.

So I think the justice system will be challenged with this going forward it already is and it will continue to be but also I feel it's quite the former attorney general Mark Speakman was put in a very difficult position with the pardon petition.

It was an elected executive member of government who had to make a decision around potentially pardoning Kathleen Folbigg going on and he had the power to do that.

No elected members should do that that should rest within the justice system.

So there's clearly a need for a mechanism where there is new and emerging evidence.

And of course in a criminal case review commission, it would need to meet a threshold you couldn't leave cases open forever.

There would have to be a significant standard or threshold to be met before a case is assessed by that commission.

Um, you know, it does need resourcing there's real politics.

There's all of those sorts of things, but I think it's well worth a reformer worth pursuing.

Thank you.

I mean, I just to pick up on absolutely, I think, again, I think we all would very much in support of it.

And I think one of the other aspects, which I think is interesting in the UK example and you can see it also in New Zealand example is that one of the powers they have is to kind of look at large groups of cases or at least to kind of address systemic issues.

And there's a series of cases being processed at the moment through the UK Commission, the post office horizon scandal, that is what it's called, which is I think really interesting as a contrast, perhaps to the Folbigg case, because it's a situation where you have lots of very low level convictions for fraud based on faulty software that was installed at the

post office as a bit of a robo debt kind of sense here.

And they're working through a lot of cases and they can do them in this quite efficient way in a sense, because there's commonalities across those and that's a different kind of aspect.

I think that would make something like criminal cases review commission a real benefit overall, and I guess it's another way of thinking about a system, you know, system error.

Problem issue.

I mean, I think Steven Corder made the point recently that, you know, can you call the criminal justice system a system if it doesn't have a way of dealing with error and Spoken like a true scientist So in that sense, I think yeah, it also sort of fits I think your point about scientific principles.

There's precedent in another area and the healthcare system hospitals also stayed in territory issues.

Many years ago, I worked on sentinel event reporting, these are those catastrophic events that happened in hospitals like children going home with the wrong parents, surgery happening on the wrong side of the body, someone being injected with potassium chloride instead of sodium chloride, instant dead, those sort of things.

So until we started reporting and collecting data, in a central National Register around these one off errors that were happening across the country, in different hospitals in different jurisdictions, we didn't realise that accidentally, doctors and nurses were injecting potassium chloride instead of sodium chloride, because they were in the exact same coloured vials

stored in the same cabinet in hospitals.

So that led to a very quick decision to put potassium chloride in an orange fluoro orange separate cabinet.

So some of these systemic areas that is a totally a jurisdictional issue.

That benefited from coming together in a national approach.

It can be done.

On systematic issues as well.

I mean, one of the key things that has been brought up already is that the appeals system that we have in the inquiry system in particular, is not easy.

To access and requires a lot of goodwill from people who are not the person who's locked up in prison.

There are only some people in the community who have the kind of social or political capital to have that support outside.

So if you are an indigenous person, for example, you're far less likely to be able to have that support or to have the resources available to you to access those systems, which means that there's potential in you know, without having any way of counting miscarriages of justice or accounting for them.

There's potentially many, many people who are in prison wrongfully with there's definitely people who are in prison wrongfully, who just have no way of accessing the inquiry process.

And that's the principal reason whether we started as a National Science Committee whether we started as a division of the Legal Aid Commission, so people have to have access to that because it might not surprise you that a lot of people who are convicted wrongly are not always very nice people.

And some of them are in jail with our friends.

And then they've been convicted of a serious crime, which makes it even less likely that they're going to have friends.

And if you haven't got any friends, and you're not particularly nice, it's even hard for your lawyers to even like you.

Were pretty like almost everyone.

But so if you don't have access to that resource, and you're not capable of making friends with even the legal aid lawyer who might be able to represent you to put the case together.

You're not going to have that miscarriage correct.

And if there is a system, anyone that picks it up, then that can be sometimes picked up really quickly.

I'm jaded, but the states and territories were able to get together to have a national DNA register, when it came to and the contract.

So there are mechanisms in terms of law enforcement, where they can all work together.

So it is possible to be done.

I was on the Criminal Code committee does have a national criminal code for Australia.

Fire there that was I think there's one section.

It's been adopted by every jurisdiction, but it's possible.

Access to the science is the hardest thing when I was not involved in the initial fabric method, but the lawyers who were in the same Chambers as me, and they were on the phone at midnight and three in the morning, trying to track down people, training people with expertise.

And going back to my days as defence though, finding someone with the expertise and the money to pay for them to do the analysis of the crime scene.

There's a case called Wolanski which I think has a miscarriage but other people don't.

Where we would have needed to reconstruct a bedroom and then we would have needed to have a DNA analysis of the clothing on a grid and microscopic, no way anyone who's going to put money up for big inquiry illustrated this how things can be done differently.

We were able to find those experts for the inquiry and it wasn't a case of oh, here's Corolla Benway so let me get all of the people who think like Corolla vinuela and put those to the inquiry.

Quite the opposite.

There was the entire spectrum of use, made available through experts, but what was important is that those experts were asked questions in their domain.

And so they were able to the evidence that was considered was reliable because it came from the right experts who were interrogated appropriately and some of that adversarial nature of the interrogation wasn't there, but that didn't take away the contest of ideas or the the the fact that people could and should question the evidence is put before them.

It just meant that we had the right group of experts independently selected.

And for me, it would be such a missed opportunity if we didn't look at this phobic inquiry, and how the justice and the science system worked together and not look at ways in which we can better that system going forward.

So quite aside from the criminal case review commission, there is a reliability standard for admissibility of evidence where independent experts or panel could assist.

Well, there isn't a reliability for the jurisdiction or evidence, the law says that the scientist can give evidence if they have experience and knowledge of the science, but that doesn't have a reliability stamp.

We don't think so as long as they're a scientist.

You want an example of that so recent high court case called Lang and are far be it from me humble district court judge to criticise judges, the High Court of Australia so just read the different judgments because they couldn't they do a good enough job on each

other was unreliable science was relied upon and two judges out of the last five.

See that was unreliable and it wouldn't have gone and he should have got to retract that the other three said no, he was properly convicted.

So elements of that in the first inquiry.

So we do reliability standard and the independent selection of experts would be a way in which we could assist the justice system more effectively in an all of the time not not in this very one off case.

Others have said Kathleen benefited from friends from a fantastic legal team, from the force of the Australian Academy of Science, putting all of its resources and its convening power.

We were literally we are every single day able to convene experts wherever they reside in the world.

One of the wonderful things about my job is to call a an expert and ask if they can assist the academy and 99% of the time they say yes, it's really is a joy.

So to have that kind of convening power and to put that to a public good use in the justice system should not be isolated, benefit a few.

It really should be a public good that is shared.

So I think it would be such a missed opportunity if we couldn't bring about some of the systemic changes that are needed to improve the way that justice in the sciences to work together.

Thank you, and a little plug.

The Academy of Science was absolutely central here.

I'm a member of the Academy of Social Sciences and and and this refers, I think, to the other huge issue that we've talked about today and that is the gendered nature of the assumptions

that were being made by everyone in the first in the original trial and then in a second.

So there are just a couple of questions that were sent in earlier.

And we have we're really pressed for time, but I will honour people's questions.

So Chrissy said, Could you comment on what this means really for changes in case law?

If you know with the science implications, something like this, does anybody want to comment on that?

I think that was I mean, I think that was a question sort of in some respects about this relationship.

I think that AnnMarie you were saying was like, how do we if we have a sort of case, a series of cases that have have perhaps embedded a conviction or have kind of reaffirmed a conviction?

How do you bring in the new information for example, that came up in this this case?

And I suspect perhaps your point is that a more systematic way of doing that might be helpful?

Absolutely.

So it's not we're not relying on this one off circumstance but to find ways in which independent the independent selection of experts can be facilitated, and I'm not in actually in any way advocating that that be the Academy of Science that does this.

It may be a separate body that's established to perform that role.

And it may be that same body or a panel that looks at reliability standards.

Could I just, I mean, I think what we're seeing here is not unique to the justice system.

It actually goes to the evolution of our knowledge systems, and it goes to the point you made about the social sciences Academy and others.

There are no decisions that we make in our society today, that rely on one discipline or one source of knowledge.

We absolutely require multidisciplinary evidence to come together, as well as evidence and information and knowledge from different knowledge systems, including indigenous knowledge holders, the way we evolve our knowledge systems and this is something that challenges our academy every day.

The way we work together with all of those knowledge holders is really important if we are going to engage in a society and the trust of society maintain the trust of society with science, and to be able to take an evidence informed approach to the way we live and the many many challenges that are before us whether the challenges within the justice system or broader challenges like climate change or our energy transition or whatever it might

be.

We really do need to think about the way our decisions are made and taking a very, very multidisciplinary approach.

There is a kind of broader evolution that's happening in our society and this isn't unique, actually.

Yes.

I agree with you completely on that.

Maybe we'll just give them a question about in the sense partly, Ms Folbigg's future of course, she has.

It has been.

It's been it's been introduced.

So the question is really what exactly has happened?

Yeah, she's been, but what does that mean conviction has not been overturned.

The convictions have not been overturned.

So following the Bathurst inquiry, publication, a case will be put to the Court of Criminal appeal and the DPP and the state will, the state will be represented and she will be represented and it will be for three judges have appeal.

Presumably not the judges who previously set on which cases although that's one of the judges did sit twice for them to decide whether the conviction should be set aside and should be set aside.

And in the UK, half the cases have gone.

There's been a couple of cases with the appeal court and said the conviction is set aside that doesn't mean he's innocent.

But I'm not sure what that result will be.

But there's one more stage to go.

It's another stage to go so that I think that was the intent of that question.

So everyone, look we have we've come to the end of a terrific panel.

I would just like to emphasise for everybody the advocacy in this everyone has mentioned how important it was that Kathleen phobic had people outside who were advocating for her and her were dedicated to doing that.

And there are many people will know of sisters inside in Queensland and some of the work of some of the women's groups in Victoria.

And, and the importance of those for things like this, because it is only when when when people persist with something that they can see and believe is a miscarriage of justice

or is unjust, that this was able to be progressed.

So thank you to all of those people who did all of that as we said near the beginning.

So I'd like to thank our panellists, Leah, Mehera, Andrew and Anna Maria, for an excellent discussion.

On handing over to the dean of law and justice, Andrew Lynch as Andrew Lynch to wrap it all up.

Thanks very much i lane.

I'll be very quick about this because I think a lot of the thinking has been done, but that was a really rich and incredible discussion and we were so fortunate to hear from our panellists tonight, Dr. lair Williams, Associate Professor of Medicine rock Judge Andrew Hassler and Anna Marie Arabia.

Please join me in thanking all four of them again for orchestrating the discussion so beautifully was a maritime Professor Eileen Baldry.

Eileen, we're very grateful to you for stepping in or very much at the last minute as a colleague of ours Maria Jenna Copalis was unable to chair the discussion.

So Eileen thank you so much for making the discussion float.

Legal hour is an event that the faculty holds twice a year.

It is designed as a conversation between experts on a range of different topics.

Please keep your eyes peeled for the 2024 offerings.

It's primarily targeted towards alumni of the faculty.

But of course everybody is welcome.

And of course, I was thinking tonight when we looked at this theme, this is a really appropriate theme because the faculty has alumni now who work in the field of criminology, criminology at UNSW has been a jointly taught programme between the Faculty of Law and the School of Social Sciences since the early 2000s.

But criminology now has its home in law.

We still have social scientists also teaching into it.

But the academic staff and students belong to the Faculty of Law and also now justice.

So it was really wonderful to bring this legal out all of you because we have alumni who aren't just words, but also criminologist.

And in the instance of some of our panellists tonight, or both.