In addition, there is a petition supported by over 150 world-leading scientists endorsing the case to free Ms Folbigg from almost 20 years behind bars. This petition is still with NSW Attorney-General Mark Speakman, who indicated in a budget estimates this week he would have a recommendation “within a month”.

According to Dr Cavanagh, Ms Folbigg’s lawyer and a barrister with decades of experience in criminal law – including coronial inquests and matters involving infant deaths – the case should never have proceeded to trial. The 2003 conviction of Ms Folbigg went ahead despite a lack of forensic pathology evidence of smothering for each of the four children. This, Dr Cavanagh told Lawyers Weekly, did not take place in the “dark ages” where legal reasoning had yet to fully develop.

Dr Cavanagh and Ms Rego said, in their opinion, having carefully reviewed all the evidence, that “the police should not have charged Ms Folbigg and the trial should never have proceeded based upon what was available then”. They added that the evidence available in 2003 did not support the prosecution’s case of smothering.

“This is not just a miscarriage of justice in a small way. This is substantial. Many mistakes were made. Not one, not trivial ones,” Dr Cavanagh commented.

In this interview, Dr Cavanagh and Ms Rego provide Lawyers Weekly with an update on the next stage of Ms Folbigg’s case, and they speak directly to Australian lawyers to point out why they should all be following this case closely.

New submission calls for coronial inquest into Folbigg children’s deaths

In the submission to NSW State Coroner Magistrate Teresa O’Sullivan, Ms Rego and Dr Cavanagh specify the scientific evidence to refute the prosecution’s case that Ms Folbigg smothered her four children. In short, they are asking for findings to be made of natural causes of death for each of Ms Folbigg’s children. Importantly, they added that none of the children had a coronial inquest at the time of their deaths.

“The coronial inquest will potentially shift focus away from criminal responsibility of Kathleen Folbigg to the science and medicine in this case,” Ms Rego explained, adding that there is “ample strong, rigorously validated evidence” that indicates natural causes of death for all four of the Folbigg children. Late last year, Lawyers Weekly set out the evidence in another of our in-depth features.

“In this forum, the diaries and the speculation about three or more deaths in the one family from natural causes used to prove the case against Kathleen Folbigg should be eliminated from the discussion,” Ms Rego said, and adding: “These matters have now been thoroughly discredited by science and leading experts in the fields of psychotherapy, psychology, psychiatry and linguistics.”

During the 2003 trial, the prosecution put forward the arguments that there could be no such thing as three or more infant deaths in one family from natural causes and that selected diary entries written by Ms Folbigg were “virtual admissions”. These claims and more have been debunked by leading scientists working pro bono.

In a submission to the State Coroner, Dr Cavanagh and Ms Rego again pointed out that there were no confessions of murder or forensic pathology evidence to suggest that Ms Folbigg had a hand in any of her children’s deaths. In particular, the prosecution’s reliance on the proposition underlying the Meadow’s Law theory – which has time and again been discredited – put the jury at Ms Folbigg’s trial in a difficult position of considering “speculative, dangerous dogma”.

“It is a nonsense, it always was a nonsense,” Dr Cavanagh said. “It is complete and utter rubbish. The jury received that rubbish, which put them in a difficult position of considering if there can’t be that many deaths in a family, then of course she must have smothered all of her children.”

Another issue is the prosecution’s argument that the absence of evidence should be regarded as evidence she did smother her children. The prosecution argued at trial that because smothering can sometimes leave no signs behind – and there were no signs in this case – it should be “regarded as positive evidence of smothering”.

“This approach allowed for speculation and suspicion to flourish and by the end of the case overwhelmed the only task the jury had – to determine whether the prosecution had proved its case beyond reasonable doubt,” the submission read.

State Coroner O’Sullivan should soon make a decision about the coronial inquest. Should this be rejected – along with the petition sitting before Attorney-General Speakman, Ms Rego said that they would continue to stand with Ms Folbigg and the scientists supporting the new evidence to have the truth listened to.

The ongoing difficulties with the Attorney-General

Ms Rego said that asking for a coronial inquest does not bring an end to the pardon petition that Mr Speakman has had since March last year. Although the details of the petition – written about here or accessed here – have been before Mr Speakman for over a year now, he has yet to make a decision. At a budget estimates hearing this week, he did say a recommendation to the Governor is imminent.

A month after the last submission was provided on 14 September 2021, Mr Speakman’s department asked the team to particularise the grounds for a pardon and to provide submissions. By the November deadline, they had done so – but he also said that the team was providing material to him until December. Mr Speakman revealed in budget estimates that Hament Dhanji SC had been engaged to provide advice, but that he had since been appointed as justice of the Supreme Court.

“Mr Speakman has had evidence that establishes innocence since 3 March 2021, over a year now,” Ms Rego said. “It cannot be properly said that we were providing material to him until December. The December update about the CALM2 G114R mutation’s inclusion in an international database cannot be regarded as substantive material. It was a mere update to reinforce the strength of existing evidence.”

The ongoing reluctance to engage with world-leading scientists to properly evaluate the ground-breaking scientific information that points to natural causes of death has concerned Ms Folbigg’s legal team. They have questioned again why there is a reluctance from the NSW government to listen to science.

Responding to Adam Searle, the deputy leader of the opposition in the Legislative Council, Mr Speakman said that he would not take up an offer from the Australian Academy of Science to be briefed about the genetic evidence. Instead, he said he is “approaching this as carefully, as thoroughly and as promptly as possible”.

“In terms of the offer from the Academy of Science, having taken advice, the view I took is that I should not be receiving submissions and having private meetings with third parties. It is a matter for the petitioner to identify what she wants to rely upon.

“She has identified that, to some large extent she wants to rely upon the material and the arguments of the Academy of Science. And to the extent that she has indicated that this is the case, that will be taken into account in reaching a decision. But having taken advice, it is not appropriate for me to be having private hearings with people for or against the petition. It is done on the papers,” Mr Speakman said.

Talking to Lawyers Weekly, Ms Rego said that if the pardon is denied, it will signal that the Perrottet government “does not accept validated, world-class science”.

“If so, that is hugely concerning.The knowledge about the mutation that has been gained as a result of this tragic case has the capacity to save lives,” Ms Rego said. “By denying Kathleen Folbigg justice, we are denying the science.”

In a letter to the Attorney-General on 4 March 2022, three Nobel Laureates and the outgoing and incoming presidents of the Australian Academy of Science said there was no “justifiable reason to keep Ms Folbigg incarcerated”, given the overwhelming evidence that she was not responsible for the deaths of her four children.

In addition to freeing Ms Folbigg from more prison time, the academy called on Mr Speakman to consider legal reforms so that “no person finds themselves in a similar situation”. This, they said, would also relieve him of the “unfair burden” of determining the outcome of a potentially serious miscarriage of justice as a politician.

During budget estimates, Mr Speakman made it clear that this was “not a political decision”; however, he is yet to determine if it will go before cabinet.

“The options before you are simple: respect the scientific and medical evidence that provide ample justification for the pardon of Ms Folbigg and demonstrate that you take seriously your responsibility to provide justice for the people of NSW or deny justice by denying science and place under a cloud the integrity of the NSW justice system,” the academy said, adding the “power rests with you to right this wrong”.

In a statement, the Attorney-General’s office said that the “fair and transparent nature” of the process is the reason why it would be “inappropriate” to the petitioner for him to consider material provided by someone other than the petitioner or their legal representative or to hold private consultations with other members of the public.

“Consideration of this material and the updated grounds is a process that must be taken with great care and diligence; as is the case with all petitions. As such, the Attorney-General has instructed the Crown Solicitor’s office to obtain the advice of senior and junior counsel on the matters raised in this petition,” Mr Speakman said.

A message for lawyers

Another issue to consider in Ms Folbigg’s case is the role lawyers can play in assisting the system to rectify miscarriages of justice, Dr Cavanagh explained.

Dr Cavanagh said he would like for lawyers to read this case carefully and to stand with an abused woman and a large cohort of eminent scientists. He said that there is “nothing proper about remaining silent when the system has got something so badly wrong” and that transparency, which is not a new concept to the law, should apply to executive decisions about a person’s liberty. Dr Cavanagh added that the courts are open, and it is time the case is brought into the community “where it belongs”.

“I have been practising as a barrister for a very long time and I have also taught law at universities. I am amazed that we wouldn’t – all of us, as lawyers – be saying, ‘let’s have a look at this one very carefully, let’s not be afraid of criticism and instead let’s see why these scientists are saying what they are saying’,” he said.

Dr Cavanagh said it is important that in this case, and in many more, mistakes are acknowledged and the problem is rectified: “We have a duty as lawyers to assist the court and to ensure that when mistakes are made by us, we stand up and stand with the person who has lost their liberty due to our human failure.”

As for the Attorney-General himself, Dr Cavanagh said he cannot “simply reply upon the advice of others” without assessing the factual basis himself.

Mr Speakman should also accept help and advice from those with specific expertise – such as the world-leading expert in the genetics of cardiac arrhythmias, who has offered time for free to Mr Speakman and his advisers. As we have reported in the past, Mr Speakman has not accepted a meeting offered by the Australian Academy of Science that made available to him eight of the best experts in the world to help him with thoroughly assessing the new genetic evidence.

“The case has clear and certain evidence which should lead to the immediate release of Ms Folbigg. We have made every attempt to work with Mr Speakman in a collaborative way, but he remains unresponsive,” Dr Cavanagh said.

“In almost every criminal trial I am involved in, the prosecution is cooperative, transparent and helpful. It becomes difficult if the other side is opaque; we might as well be looking effectively at a pitch dark room and that’s not helping progress the case. The system of reviewing pardons needs to change.”

At budget estimates, Mr Speakman said there are “very grave consequences that I take very seriously” in relation to his recommendation to the Governor. Dr Cavanagh and Ms Rego said the only grave consequences are if the system keeps an innocent woman in prison for crimes that science is now indicating never occurred.

Responding to Mr Speakman’s claim that it would not be appropriate for him to hold a meeting with the academy, Ms Rego and Dr Cavanagh cautioned that the experts who have studied the genetic mutation or are in a position to be an expert on any of the science related to the case “should in no way be seen as Ms Folbigg’s advocates”.

“They support the pardon because the science supports the pardon, not because they are crusaders. They are also concerned to see evidence appropriately considered in the legal system. To that end, any suggestion that the science is biased towards Ms Folbigg is simply inaccurate,” Dr Cavanagh and Ms Rego said.

“We trust Mr Speakman understands that the principles of science are not biased towards an individual and only based on hard facts.”

Dr Cavanagh and Ms Rego added that the geneticists and forensic pathologists are indicating that science and medicine now understand a lethal genetic mutation killed Sarah and Laura, like other nearly identical mutations have in the past. This is the same with the psychotherapists, psychiatrists, psychologists and linguists who have thoroughly assessed this case and have provided their professional opinion – particularly about the selected words in the diaries that were claimed to be damning.

“They bring their specialised knowledge, training, study and experience to place in context what a grieving mother has recorded in her journals,” the legal team said.

As for the submission to the NSW State Coroner, Dr Cavanagh said all lawyers in NSW should read the submission for an inquest and the grounds for a pardon.

“It is not disgraceful to have made a mistake. It’s human. What is important is how one acts when the mistake is identified and what actions are taken to stop suffering.”  

More to come as this story develops.