By Adam Hussain (4th year BA/LLB)
On 5 October, the Centre jointly hosted a Symposium on the Folbigg case with the Sydney Institute of Criminology. The symposium was an insightful event addressed by a multitude of accomplished and informed speakers and explored the Folbigg case as both a travesty in itself and as a microcosm for the legal system at large.
It heard talks from a range of academics from UNSW, the University of Newcastle and the University of British Columbia. The Symposium was also addressed by a number of legal practitioners, doctors and scientists, including Professor Stephen Cordner, (Victorian Insitute of Forensic Medicine), Rhanee Rego (Ms Folbigg’s solicitor) and David Wallace (Legal Advisor to the Australian Academy of Sciences). A full program for the day is available here.
The Symposium opened with a keynote address by Professor Emma Cunliffe. Professor Cunliffe is a legal academic based out of the University of British Columbia and has been involved in the Folbigg case since 2011. She is the author of the leading academic commentary on the case, Murder, Medicine and Motherhood, which explored sudden infant death syndrome (SIDS) and the way that expectations of motherhood have led to wrongful convictions. Professor Cunliffe reflected on her role in working to overturn the conviction of Kathleen Folbigg. Her journey working with Kathleen started when she contacted Ms Folbigg, prior to the publication of her monograph, to express her belief that Ms Folbigg had been wrongfully convicted. Professor Cunliffe pointed out that from its very inception the case against Kathleen was rife with flaws and expressed her disappointment that the system continually failed to pick these up. She also noted how the now discredited ‘Meadows Law (the principle that three or more unexplained infant deaths should be assumed to be a murder unless proven otherwise) is still subtly employed in prosecutions and how this disproportionally effects mothers. Professor Cunliffe emphasised how this case is yet another in a line of wrongful convictions of mothers and how this reveals fundamental flaws in our legal system. From the ludicrous interpretations of Kathleen’s diaries to the unreliable and shifting witnesses, Professor Cunliffe’s talk outlined the successive failings of the courts and the first Inquiry. She raised questions about whether the legal system can in fact lay claim to a method of resolving cases and drew attention to the reluctance of the legal profession to address the wider or systemic issues raised by the case. The criticism was echoed by one of the closing speakers, Professor Stephen Cordner, when he asked whether it is correct to talk of the criminal justice process as a system, when it does not have a robust process for identifying and dealing with errors and mistakes.
It has been a monumental effort to free Kathleen Folbigg and perhaps no one has given more to the campaign than Tracy Chapman (Ms Folbigg’s longtime friend and coordinator of Justice for Kathleen Folbigg). For years, Tracy has been fighting for Kathleen’s exoneration and working tirelessly in advocating for her friend. Hearing Tracy, who had no previous experience in the legal system, talk of her encounters with the criminal justice system, provided valuable insight from an outsider looking in. Tracy reflected on the benefits of being in what she termed a ‘liminal space’ between Ms Folbigg and her legal team and representatives. Her talk also provided an important reminder that the cases that legal practitioners and academics so often look at as simply providing laws or rules, deeply affect a range of individuals, and behind each case there is a number of people who suffer. Having finally been vindicated and successful in her fight, Tracy left the room with a direct appeal and message to all those who are aware of this travesty: “What will you do?” Whilst the final report by from the most recent Inquiry has not yet been released, one risk that was identified was that it might downplay the early and ongoing systemic failures. With this in mind, Tracy reminded us that it is our duty as those who know better to ensure that our community understands the grave injustice that Kathleen suffered. Furthermore, it is imperative that, now that we are aware of the issues and failings, we work to advocate and effect change so that hopefully no one will ever have to suffer as Kathleen has.
The final session examined in more detail the need for a Criminal Cases Review Commission (CCRC). One of the clear lessons to be drawn from the course of the Folbigg case is the need for a permanent, independent criminal cases review commission in Australia, and Professor Hamer outlined some of the benefits and risks associated with the UK model (that has been operating since 1997). As noted by several speakers, flaws in the prosecution of Ms Folbigg were apparent from the start, as was the possibility that these were wrongful convictions. Comparable cases in the UK included the overturning of the convictions of Sally Clarke in 2003 following a referral from the UK Criminal Case Review Commission, and Angela Cannings in 2004. In Australia, comparable reported cases included the prosecutions in Phillips (1999) and Matthey (2007), neither of which proceeded to trial. Dr Katie Hail-Jares brought the Symposium back to the importance of analysing miscarriages of justice and wrongful convictions though a gendered lens and as noted, Professor Cordner emphasised the role of a CCRC as offering a mechanism to undertake an ongoing audit of cases; one that would be preferable as a systemic response to the possibility of error when compared to the remedy of ad hoc Inquiries.
Criminal Cases Review Commission (UK): https://ccrc.gov.uk/
Open Letter calling for the establishment of a CCRC in Australia: file:///Users/z3042814/Downloads/2023-call-for-a-criminal-cases-review-commission.pdf
Legal Hour | Gender, Genes and Wrongful Convictions: Implications of the Kathleen Folbigg Case (Register here)