PASSAGE OF THE DAY: Madeleine: "What changes would you like to see to the New South Wales law system to make sure that this never happens again, not just from the initial conviction but also in reviewing the scientific evidence?" Bob Moles: "It is perfectly clear that the appeal system in New South Wales, in common with many of the other states and territories around Australia is not really fit for purpose when considering what we call ‘post-appeal reviews’. That means a person has had a conviction, they’ve had an unsuccessful appeal, and then questions arise about the safety of the conviction. Four of five states in Australia have already implemented the right to a second or further appeal and that clearly should be done in New South Wales. There should be an inquiry into the use of expert evidence in criminal cases because as in this case expert evidence was given at trial that ought not to have been admitted. And there clearly should be a criminal cases review commission such as they have in the UK, in New Zealand and they’re implementing one in Canada. So Australia’s virtually the only similar country that has no such mechanism for reviewing post-appeal cases."
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POST: Networked Knowledge media report relating to an 'ABC Mornings' media interview new conducted by Madeleine Morris; June 6, 2023. (Link below);
GIST: "Madeleine: We turn now to the pardoning of Kathleen Folbigg and take a deeper look at some of the legal aspects of the case. Dr Robert Moles is a leading expert in miscarriages of justice. He gave evidence to the second inquiry into Kathleen Folbigg’s conviction [this was not correct – I did not give evidence to the inquiry] which has seen her pardoned and we’re delighted to say that he can join us now from Malaysia. Its terrific to have you on the program. You are Australia’s foremost expert really in miscarriages of justice. Where does the case of Kathleen Folbigg sit within miscarriages of justices in Australia?
Bob Moles: Well it’s clearly one of the most disastrous cases we’ve had in Australia. The fact is that in fact that Ms Folbigg should never have been convicted in the first place.
There was very clear evidence given at trial to say the forensic pathologist at trial didn’t know what the cause of death was and the only reason she was convicted was because there were four deaths and they assumed that with four deaths the only possible explanation could be that they were caused by third party intervention being the mother and that was simply incorrect.
Madeleine: It was really entirely circumstantial and her diaries also played an important role in her conviction but if you look on them through a different lens – the lens of a grieving mother they could be read entirely in a different way?
Bob Moles: Yes, the common-sense reading of the diaries simply indicates that we’d got a mother who had actually lost four babies – a simply indescribable grief – and its hardly surprising that she would make statements in the diaries that she felt responsible in some way for the babies’ deaths, that is perfectly understandable. That has now been accepted but it should have been the position all along.
Madeleine: People have made some parallels with the case of Lindy Chamberlain. Do you see parallels?
Bob Moles: Well of course we have a situation in which the mother of a child or several children who have died has been unfairly labelled or categorised as an unfeeling person and without any particular evidence to support it has been dealt with as being responsible for the deaths of the babies.
It is perfectly clear that she should never have been convicted in the first place and that these proceedings have taken far too long to arrive at a fairly obvious result which is that she is not responsible for the deaths.
Madeleine: Lets talk about the amount of time that it has actually taken for this to happen because it did take some time for the scientific discovery that the DNA evidence did actually come to light but you are critical of the entire time that its taken, at what point do you think this should have been reviewed this conviction?
Bob Moles: Well, certainly when Professor Cordner and Dr Hilton came forward at the beginning of the second [I should have said ‘first’] inquiry and said that they were satisfied that there were explanations, natural cause explanations for the deaths of two of the children, that should have been a sufficient basis on which the convictions should have been set aside.
When the 150 experts then signed up to a statement saying that they understood that there was a genetic cause of death – you see all that you have to do on a criminal appeal is to establish that there is either a doubt about the conviction or that if the jury had been in possession of this new information they might have come to a different verdict.
Well, with 150 experts who were all saying that the evidence presented at the trial was incorrect and that there is in fact a DNA explanation, I mean that’s an overwhelming case for the conviction to be set aside and that should have happened at least three or four years ago
Madeleine What changes would you like to see to the New South Wales law system to make sure that this never happens again, not just from the initial conviction but also in reviewing the scientific evidence?
Bob Moles: It is perfectly clear that the appeal system in New South Wales, in common with many of the other states and territories around Australia is not really fit for purpose when considering what we call ‘post-appeal reviews’.
That means a person has had a conviction, they’ve had an unsuccessful appeal, and then questions arise about the safety of the conviction.
Four of five states in Australia have already implemented the right to a second or further appeal and that clearly should be done in New South Wales.
There should be an inquiry into the use of expert evidence in criminal cases because as in this case expert evidence was given at trial that ought not to have been admitted. And there clearly should be a criminal cases review commission such as they have in the UK, in New Zealand and they’re implementing one in Canada. So Australia’s virtually the only similar country that has no such mechanism for reviewing post-appeal cases.
Madeleine: And just briefly Dr Moles, Lindy Chamberlain got $1.3 million dollars in compensation when she served three years for the death of her daughter. We’re not there yet but when we get to the point where Kathleen Folbigg should be able to seek compensation, if her convictions are quashed do you have any sort of idea how much she might be entitled to?
Bob Moles: Well, a good guide would be to look at the case of Henry Keogh in South Australia. He was imprisoned for a similar period of time as Ms Folbigg, twenty years, and after he had his conviction overturned, it being understood that the crime for which he was convicted never occurred – he was given an ex-gratia payment of around two and a half million dollars.
In the case of David Eastman in the ACT, he was wrongly convicted for a similar period of time, about twenty years and he undertook legal proceedings for compensation and he was awarded over seven million dollars. So, given the similarity in the periods of time, an obvious calculation would be something between two and half and seven million dollars for Ms Folbigg.
Madeleine: Well ok, we’re a few steps away from that, its great to get your perspective this morning, Dr Robert Moles, thank you.
Bob Moles: You’re very welcome."
The entire interview can be read at:
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/120008354894645705/47049136857587929
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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