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Channel 9 interviews Dr. Bob Moles on the unravelling of the case against Kathleen Folbigg:
http://netk.net.au/Folbigg/FolbiggChannel9interview.mp4
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PASSAGE OF THE DAY: "My take on the matter is that initially the trial miscarried because Dr Cala's evidence suggesting Ms Folbigg’s guilt should not have been admitted. He was clearly not an expert on paediatric deaths, and just general expertise in forensic pathology was not sufficient to make his views admissible. He also said his views were based upon 'his experience', without providing evidence of what that experience was. Expert evidence is only admissible where the facts upon which the opinion is based have been or will be proved in evidence at those proceedings. The facts of Cala's so-called 'experience' were not provided in evidence. There is also no evidence he had undertaken study or training in paediatric deaths, another condition for admissibility. It amounted to little more than that he had never come across a case where there were multiple child deaths in a single family where it wasn’t a murder. The evidence now shows that ‘his experience’ was too limited."
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PASSAGE TWO OF THE DAY: "There have been such cases in the UK, the US and Canada for example. In addition, although the judge at trial would not allow in evidence of “Meadow’s Law." (Professor Meadows from the UK used to say, one death is unfortunate, two is suspicious, and three is murder unless proved otherwise). Apart from reversing the onus of proof, it was found to be wrong in notorious cases such as Sally Clark and many others in the UK. f we were to look at his experience now, we would find that his opinions are notoriously unreliable - see the cases of Jeffrey Gilham – Cala thought he could tell that several people had been stabbed by the same person because of the number and distribution of the stab wounds. Professor Cordner gave clearly researched evidence to demonstrate that it had no scientific basis to it at all. In the case of Pam and Bill Weightman Cala thought the old couple had died from their injuries in the car crash. It was subsequently revealed that they had been murdered - beaten to death and their bodies placed in the car and pushed off the road by their adopted son who wanted to inherit their assets At the Glebe mortuary inquiry, Dr Cala was said in the report to be the only person not to accept that what they had done at the mortuary was wrong. They had struck dead bodies to see how they might have bruised post-mortem – an unauthorised medical experiment. The test on an appeal is if the jury had known those facts about Cala, is there a reasonable likelihood it might have affected their assessment of his evidence - if so, that would be grounds for an effective appeal. The next stage is the emergence of the reports by Professor Cordner and Dr Hilton at the first inquiry (2018-2019) . They were both agreed that one of the babies had died of heart complications and another had died of complications arising from epilepsy. They were supported in their views by other well regarded medical professionals. So long as their explanations can be seen as being ‘reasonable’ and ‘consistent with the innocence of the accused’ then Ms Folbigg should have had her conviction overturned. There is no requirement that it be unanimous or the only opinion.
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PASSAGE THREE OF THE DAY: "So, to sum up, both of these inquiries are totally unnecessary from a legal point of view - the expense, and of course the length of time taken is monstrous given the circumstances Ms Folbigg has had to endure – not just the grief of her four babies dying one after the other, but the humiliation of the trial, being labelled ‘Australia’s worst serial killer’ and over 19 years in prison, mostly in solitary confinement, because the other prisoners would attack her. Whilst the AG has said much about his sympathies for Mr Folbigg, he has said nothing at all about his concerns for the mental health or safety of Ms Folbigg. So, we do need a major review of the multiple failures in this case? The time taken, the expense, the multiple legal failures at trial, at the appeal, and at each of the inquiries has involved a lot of lawyers on all sides who failed to grasp the key issues, and even to advocate for the use of correct procedures. It is clear that the current procedures for appeals and review of criminal cases are not working properly. We certainly need a new right of appeal which we have established in South Australia, Tasmania, Victoria and Western Australia."
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COMMENTARY: Australian Legal Scholar Bob Moles takes us to the moment in the on-going (second) inquiry at which he believes the the judge should have terminated the proceeding and referred the case to the Court of Criminal Appeal. Published by Networked Knowledge at the link below, on February 21, 2022. (Bob Moles heads Networked knowledge and is Adjunct Associate Professor in law, Flinders University of South Australia.)
GIST: "On the recent inquiry, former Chief Justice Bathurst, the judge conducting the hearing, asked counsel assisting the inquiry, if “a reasonable hypothesis inconsistent with guilt” arose from the genetic evidence, viewed in isolation. Counsel replied “Yes, your honour”. (19 February Sydney Morning Herald)
It is my view that as soon as counsel assisting gave that answer, the judge should have immediately referred the case to the Court of Criminal Appeal as he is entitled to do.
That is a ground upon which an appeal would be allowed - in a circumstantial case - if there is an explanation of the circumstances consistent with the innocence of the accused (or inconsistent with the accused’s guilt), then the person may not be convicted. The law is quite clear on that.
My take on the matter is that initially the trial miscarried because Dr Cala's evidence suggesting Ms Folbigg’s guilt should not have been admitted. He was clearly not an expert on paediatric deaths, and just general expertise in forensic pathology was not sufficient to make his views admissible.
He also said his views were based upon 'his experience', without providing evidence of what that experience was. Expert evidence is only admissible where the facts upon which the opinion is based have been or will be proved in evidence at those proceedings. The facts of Cala's so-called 'experience' were not provided in evidence. There is also no evidence he had undertaken study or training in paediatric deaths, another condition for admissibility.
It amounted to little more than that he had never come across a case where there were multiple child deaths in a single family where it wasn’t a murder. The evidence now shows that ‘his experience’ was too limited.
There have been such cases in the UK, the US and Canada for example. In addition, although the judge at trial would not allow in evidence of “Meadow’s Law."
(Professor Meadows from the UK used to say, one death is unfortunate, two is suspicious, and three is murder unless proved otherwise).
Apart from reversing the onus of proof, it was found to be wrong in notorious cases such as Sally Clark and many others in the UK.
If we were to look at his experience now, we would find that his opinions are notoriously unreliable - see the cases of Jeffrey Gilham – Cala thought he could tell that several people had been stabbed by the same person because of the number and distribution of the stab wounds.
Professor Cordner gave clearly researched evidence to demonstrate that it had no scientific basis to it at all.
In the case of Pam and Bill Weightman Cala thought the old couple had died from their injuries in the car crash. It was subsequently revealed that they had been murdered - beaten to death and their bodies placed in the car and pushed off the road by their adopted son who wanted to inherit their assets.
At the Glebe mortuary inquiry, Dr Cala was said in the report to be the only person not to accept that what they had done at the mortuary was wrong. They had struck dead bodies to see how they might have bruised post-mortem – an unauthorised medical experiment.
The test on an appeal is if the jury had known those facts about Cala, is there a reasonable likelihood it might have affected their assessment of his evidence - if so, that would be grounds for an effective appeal
The next stage is the emergence of the reports by Professor Cordner and Dr Hilton at the first inquiry (2018-2019) . They were both agreed that one of the babies had died of heart complications and another had died of complications arising from epilepsy. They were supported in their views by other well regarded medical professionals.
So long as their explanations can be seen as being ‘reasonable’ and ‘consistent with the innocence of the accused’ then Ms Folbigg should have had her conviction overturned. There is no requirement that it be unanimous or the only opinion.
Prof Cordner was clearly an expert on paediatric deaths - one only has to look at his extensive contributions to the Goodge Inquiry in Toronto inquiring into the appalling conduct of Dr Charles Smith to recognise that.
It is also important to appreciate that once there is a natural causes explanation for just one of the deaths, then all four convictions have to be overturned, given there was just a single trial.
Of course, the first inquiry was no more than an application for leave to appeal - although set up to look like a royal commission etc, the only outcome of the inquiry was to either refer the case to the appeal court or to reject it.
For the retired judge to take 11 months and then issue a 450 page report for a ‘leave to appeal’ application is manifestly absurd.
On a first appeal, in most states, the appeal courts say they won't bother with a separate leave hearing, they will just go straight to a hearing of the substantive appeal.
That is clearly what should have been done here.
In the 450 page report, the judge did not set out with any clarity (or at all) the basic rules governing criminal appeals.
His sole focus should have been on the evidence given at trial and whether the new scientific evidence, if it had been known about at the time of the trial, 'might' have influenced the jury in arriving at their verdict. If it 'might' have done then the verdict of guilty 'must' be set aside.
A simple test to determine if Ms Folbigg had a fair trial. It is perfectly clear that a guilty verdict cannot be upheld on the basis of evidence which has not been put before the jury.
So, if there is any additional evidence to show that Ms Folbigg is guilty, that can be put in at a retrial, but not on an appeal (or an inquiry such as this), unless it rebuts exculpatory evidence being put by the defence on that appeal or inquiry.
For the judge to express his personal view as to the guilt of Ms Folbigg is not appropriate.
Once the scientific evidence on the appeal gives rise to a 'reasonably arguable' case to support an explanation consistent with the innocence of Ms Folbigg, then the judge should have referred the case to the appeal court.
If the evidence of Cordner and Hilton provides such a reasonably arguable case that would be sufficient.
But now they were being supported by over 150 of the world’s most eminent scientific experts including Nobel Laureates and Australia’s former Chief Scientist. At that time there is clearly an overwhelming case to satisfy the 'reasonably arguable' test for leave to appeal – or to establish ‘reasonable doubt’.
I know of no other comparable case (in the UK or Canada for example) where $2.5m has been spent over such a long time to hear such truly compelling evidence and at the end of the day for that to be rejected for such spurious reasons.
It is clear that once the scientific evidence provides a credible explanation for a natural causes explanation for just one of the deaths, the diary evidence is totally irrelevant.
It is just common sense to appreciate that if the science tells you there was not a murder, then the ambiguous expressions in the diary of a distraught grieving mother cannot change that.
Even if Ms Folbigg gave a clear statement saying that she murdered her children, if the science is inconsistent with that, then we are in the realm of 'false confessions' which is a very interesting topic in its own right - see here http://netk.net.au/ConfessionsHome.asp
It should be said that Ms Folbigg's lawyers were in error in applying for a 'pardon' because you only ask for one of those if you are actually guilty. It allows for part of the sentence to be remitted, but leaves the guilty verdict intact.
If you claim to be innocent, then you don't want a pardon, you want your conviction overturned.
Also, the lawyers were entitled to apply directly to the Supreme Court for a review and that is what they should have done.
It was a clear strategic error to apply to the Attorney-General who has a clear conflict of interest.
He is responsible for forensics, police, prosecutions etc, so overturning an iconic case like this would never reflect well on him and his responsibilities - which is partly why we argued for the new right of appeal.
Once we get into the second inquiry we are in the same boat as the first, with the exception that the science is now much stronger. They are now getting into explaining how the deaths occurred at the molecular level.
The strange thing is that once you have an overwhelming case for a conviction to be overturned (using the correct legal test) to make it even stronger is kind of pointless.
Once the scientists could begin to explain at the molecular level how the Calmodulin actually works to bring about the heart failure, whilst that is very interesting from a scientific point of view, it is not the least bit necessary from a legal point of view.
Once you have established a 'reasonable doubt' that the proposition put by the prosecution about 'pigs flying' was in fact false that is sufficient for Ms Folbigg to go home.
The prosecutor said that he cannot guarantee that tomorrow pigs might be born and sprout wings and take to flying – but he thought it unlikely.
Just as unlikely as their being a natural causes explanation for four ‘unexplained’ deaths in the one family.
Once that line of reasoning can be shown to be wrong, then the conviction must be overturned.
The High Court has said clearly that if the jury has been invited to engage in an impermissible line of reasoning, that must result in the conviction being overturned.
There is also of course the ‘prosecutor’s tricky reasoning’ which was used in the trial in this case. It goes like this:
Prosecutor to expert witness: Do you know what the cause of death is in this case?
Expert witness: No. [All the experts were agreed that there are no indications from the forensic pathology that any of the babies had been smothered or choked]
Prosecutor to expert witness: So, does the evidence exclude the possibility of smothering? Expert witness: No.
Prosecutor to expert witness: So, you would say the evidence is consistent with smothering? Expert witness: Yes.
Once the prosecutor has that statement from the expert the jury can be told that the evidence is ‘consistent with’ smothering. They will be inclined to believe that ‘consistent with’ means ‘caused by’.
So, from no evidence of a crime having occurred the jury can be induced to believe the accused is guilty.
There have been numerous inquiries and Royal Commissions, particularly in Canada and the UK (but also in Australia) where such practices have been regarded as misleading and flawed.
The judge at trial should ensure the jury is not misled.
But, in a case where the sympathies are against the accused (seen publicly to be a very wicked person – despite the ‘innocent until proven guilty’ factor). As Bibi Sangha said in her recent talk, all of this is not too far from the old idea of burning witches.
Scotland has just issued a formal apology to the 2.600 women and girls who were strangled and burned on the forecourt of Edinburgh castle for being witches.
Like Ms Folbigg, just ‘women’ who were in the wrong place when something unfortunate occurred – her mere presence was enough for people to leap to the conclusion that ‘she did it’.
Once it is established that the jury have been invited to engage in a false or misleading line of reasoning which could give rise to a guilty verdict, it is then clear the accused person has not had a fair trial.
You do not have to establish the jury actually followed that line of reasoning (we cannot ask them of course) - just the 'possibility' that they had an 'impermissible line of reasoning' available to them is sufficient to set the verdict aside.
So, to sum up, both of these inquiries are totally unnecessary from a legal point of view - the expense, and of course the length of time taken is monstrous given the circumstances Ms Folbigg has had to endure – not just the grief of her four babies dying one after the other, but the humiliation of the trial, being labelled ‘Australia’s worst serial killer’ and over 19 years in prison, mostly in solitary confinement, because the other prisoners would attack her. Whilst the AG has said much about his sympathies for Mr Folbigg, he has said nothing at all about his concerns for the mental health or safety of Ms Folbigg.
So, we do need a major review of the multiple failures in this case? The time taken, the expense, the multiple legal failures at trial, at the appeal, and at each of the inquiries has involved a lot of lawyers on all sides who failed to grasp the key issues, and even to advocate for the use of correct procedures.
It is clear that the current procedures for appeals and review of criminal cases are not working properly.
We certainly need a new right of appeal which we have established in South Australia, Tasmania, Victoria and Western Australia.
Queensland and the ACT are on the way. NSW and the NT are the only two doing nothing.
I am sure that will change once the Folbigg conviction is overturned.
The clear view must be that it is better to spend a lot more money having another inquiry than to be the person who has to make the decision to overturn the conviction.
Politics must not be part of the legal review process.
That problem has been recognised and dealt with in most other comparable jurisdiction. We need a Criminal Cases Review Commission - the UK, Scotland, Norway and NZ have them with Canada on the way.
Australia is the only equivalent country doing nothing.
We need effective innocence projects - they have been a great success in the USA and properly managed and focussed could provide terrific support to an ailing legal system and help to keep costs down.
We have over 40,000 law students in training in Australia and if just one in ten worked on innocence issues, that would be 4,000 bright and highly motivated people to help us sort out the horrendous cases like those of Derek Bromley and Henry Keogh.
With 40,000 people in prison, it is not hard to work out how many might be wrongly convicted. Most studies put the figure around 4%.
If it was just 1% that would work out to be 4,000 wrongfully convicted people in the slammer with each costing us $100,000 pa.
Effective and humane methods of error review and correction need not cost us a fortune. We must not continue to torture innocent people as we are doing to Ms Folbigg.
The entire commentary can be read at:
http://netk.net.au/Folbigg/Folbigg110.pdf
PUBLISHER'S NOTE: I am monitoring this case/issue/resource. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy: Publisher: The Charles Smith Blog;
SEE BREAKDOWN OF SOME OF THE ON-GOING INTERNATIONAL CASES (OUTSIDE OF THE CONTINENTAL USA) THAT I AM FOLLOWING ON THIS BLOG, AT THE LINK BELOW: HL:
https://www.blogger.com/blog/post/edit/120008354894645705/4704913685758792985
FINAL WORD: (Applicable to all of our wrongful conviction cases): "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."
Lawyer Radha Natarajan:
Executive Director: New England Innocence Project;
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FINAL, FINAL WORD: "Since its inception, the Innocence Project has pushed the criminal legal system to confront and correct the laws and policies that cause and contribute to wrongful convictions. They never shied away from the hard cases — the ones involving eyewitness identifications, confessions, and bite marks. Instead, in the course of presenting scientific evidence of innocence, they've exposed the unreliability of evidence that was, for centuries, deemed untouchable." So true!
Christina Swarns: Executive Director: The Innocence Project;
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YET ANOTHER FINAL WORD:
David Hammond, one of Broadwater’s attorneys who sought his exoneration, told the Syracuse Post-Standard, “Sprinkle some junk science onto a faulty identification, and it’s the perfect recipe for a wrongful conviction.”
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