Where does the Australian Academy of Science sit in the Folbigg inquiry?

The 2022 Folbigg inquiry’s first hearing block began today, and in an interesting twist the commissioner, Thomas Bathurst KC, refused the Australian Academy of Science’s legal counsel Duncan Graham SC permission to cross-examine the first witness.

Commissioner Bathurst, formerly NSW Supreme Court Chief Justice and now the head of the NSW Law Reform Commission, told the Academy’s counsel that he would not grant him an over-arching leave to cross-examine all witnesses.

The Academy played a pivotal role in convincing the NSW Governor to call for the new inquiry, and it was given leave to be a party to the proceedings at the 2022 inquiry.

The first expert witness called was Assistant Professor Hariharan Raju, a cardiologist who had examined Kathleen Folbigg. Neither the Director of Public Prosecutions nor counsel for Folbigg had any questions for Raju.

But Graham SC sought leave to ask questions, and Bathurst refused the request.

Commissioner Bathurst said: “Mr Graham, I didn’t give you leave to ask questions in circumstances where what I might describe as the two principal protagonists have got anything to ask. I quite frankly don’t see any reason to give you leave.

“The grant of leave does not extend to the examination or cross-examination of witnesses but does not preclude the Academy from making an application to examine or cross-examine any particular witness.

“But I don’t think the evidence from this witness is particularly controversial. If you make your questions clear they can be put on an ad hoc basis.”

The inquiry is looking into the conviction of Kathleen Folbigg for the murder and manslaughter of her four children between 1989 and 1999.

Folbigg has exhausted the usual options for appeal, but in May this year NSW Governor Margaret Beazley directed that an inquiry be conducted after 90 eminent scientists petitioned her in March 2021 for a pardon, saying a miscarriage of justice had occurred.

Many Academy Fellows believe genetic research advances cast doubt on the conviction. In addition, the Academy of Science is making a case for reform of the law to assist courts to make decisions in the face of complex scientific evidence. It says Norway, the UK and New Zealand have implemented ‘criminal cases appeal commissions’ for use in situations like this. Several other jurisdictions around the globe have similar bodies.

“The Academy has previously stated it would like to work more closely with the legal community to ensure evidence placed before courts is presented in the most accurate way possible, using the most appropriate experts and the most up-to-date science,” an Academy spokesperson told Cosmos.

Australian Academy of Science Chief Executive Anna-Maria Arabia said in May that many Academy Fellows “think there is overwhelming evidence to justify Ms Folbigg’s immediate release, we respect the Attorney General’s decision and the legal process he has decided on, which is to have a second Inquiry”.

“In particular, the new evidence dealt with the findings that Ms Folbigg’s female children had a pathogenic genetic variant capable of causing cardiac arrest and death.”

The spokesperson added: “The Academy’s role in the lead-up to the second inquiry has included making submissions that have addressed suitable experts in areas of specialised scientific knowledge for the purpose of obtaining relevant evidence; questions/clarifications for experts who are engaged by the Inquiry and scientifically technical aspects of the inquiry – in particular, how that science should be approached consistently, with appropriate scientific standards and scientific rigour.”

Correction/Clarification: After the initial article was published the AAS asked us to make it clear that comments made by Anna-Maria Arabia were made prior to the Academy being confirmed as an independent scientific adviser to the inquiry.