Folbigg pardoning sparks call for more "science-sensitive" legal system

This week marked a watershed moment for the Australian legal and scientific communities as the NSW Governor announced the pardoning of Kathleen Folbigg, 20 years after she was convicted for the deaths of her four children over a 10-year period, due to the emergence of new scientific evidence.

It all started when a group of scientists were asked to investigate if a genetic cause could explain the deaths of the four Folbigg children — Caleb, Patrick, Sarah and Laura — as part of an inquiry into their mother’s convictions. Genomics was only in its infancy at the time of the 2003 trial, but by 2019, it was possible to sequence whole genomes and exomes from both mother and children. Here it was found that both Sarah and Laura, and indeed their mother, had a mutation in the CALM2 gene, which controls how calcium is transported in and out of heart cells. Mutations in this gene are understood as one of the best-recognised causes of sudden death in infancy and childhood, which in the case of the girls was likely triggered by infections they had at the time they died and the medication they were given.

The boys also had their own medical issues — Patrick was suffering from epilepsy and cortical blindness, while Caleb had difficulty breathing due to laryngomalacia, or a floppy larynx (something he would have eventually outgrown). Indeed, the examining scientists found the boys also had two different novel and rare variants in a gene known as BSN which, when defective in mice, causes early-onset lethal epilepsy.

While the first inquiry into the convictions (and a follow-up appeal) was unsuccessful for Folbigg and her supporters, a second inquiry was announced in 2022 — in one of the first times worldwide that a learned academy (the Australian Academy of Science) has acted as an independent scientific adviser during a public inquiry into an individual’s criminal convictions. With former Chief Justice of NSW Tom Bathurst AC KC finding there was reasonable doubt regarding the initial convictions, Folbigg was finally, unconditionally, pardoned — and the Academy is now looking to work with the NSW Attorney-General to develop and implement a more science-sensitive legal system to better handle such complex cases in future.

“This case has implications for the justice systems of every Australian state and territory,” said Academy Chief Executive Anna-Maria Arabia.

“Science needs to inform decisions wherever they are made, including in the justice system. So we do need ways — particularly when all of the appeals mechanisms have been exhausted, as was the case with Kathleen Folbigg — for that science to be heard. But also in other cases where we do need independent experts to come forward and quite independently put their scientific evidence to inform decision-making.

“We need a way in which science can be heard fairly, transparently and independently by the justice system.”

As explained by geneticist Associate Professor Jeremy Brownlie, from Griffith University, the Academy has suggested that the judiciary appoints scientific experts to serve as independent advisers to the courts, who could explain the science and help judges and jurors make decisions based on the most up-to-date scientific knowledge we have. Brownlie noted, “As a nation, we already rely on independent scientific expertise to help governments and industries in making informed choices. It only makes sense to extend this practice to our justice system.”

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