TOPICS: Kathleen Folbigg and creating a more science-aware justice system. Broadcast on Tuesday 27 May 2025
Sally Sara: Well, at the end of 2023 New South Wales woman Kathleen Folbigg fronted a big media pack after spending 20 years in prison over the deaths of her four children – the New South Wales Court of Appeal quashed her conviction.
Kathleen Folbigg (recording): I am grateful that updated science and genetics has given me answers as to how my children died. However, even in 1999 we had legal answers to prove my innocence. They were ignored and dismissed.
Sally Sara: You might remember some of those news pictures. Well, standing beside Kathleen Folbigg that day was Anna-Maria Arabia, the head of the Australian Academy of Science. The Academy was eventually brought into the case as an independent scientific adviser. It said basic scientific principles were not adhered to from the start of Kathleen Folbigg’s trial, but today, Anna-Maria Arabia says the major reforms urgently needed to avoid other miscarriages of justice still have not been put in place. Anna-Maria Arabia, the Chief Executive of the Australian Academy of Science, is my guest today. Anna-Maria, welcome to Changing Australia. It’s lovely to be with you; it’s good to have you in the studio. In the time since Kathleen Folbigg was released, do you think that the courts have improved the way that they apply and interpret science to the cases that need it?
Anna-Maria Arabia: Sally, I think the short answer to that is no, unfortunately, there is a great need to bring about changes to our justice system so that it is more science sensitive. That certainly takes time. And one of the barriers we have, is that justice systems are usually in the remit of states and territories. And of course, there’s an overarching system federally, and therefore to bring about change right across Australia takes concerted effort across the nation in a jurisdictional sense. It also takes time, because science is evolving quickly. New knowledge is generated daily, and for system change to happen, they need to be able to recognise that and change accordingly, so that they’re able to accept science in a range of different circumstances. So I don't pretend it would happen overnight, but I would like to have seen the Kathleen Folbigg case trigger some review of things like the Evidence Act and other measures that we might have looked at to see how we can create a more science-sensitive system.
Sally Sara: And if we’re standing back and looking at the Kathleen Folbigg case in particular, was it that that science didn’t exist at the time, or that science existed but it wasn’t taken account of?
Anna-Maria Arabia: Yes, so the science that ultimately saw her inquiry come to life certainly didn’t exist at the time of her conviction, so the genetic mutations that Kathleen Folbigg and her daughters held could not have been known in 2003 when she was convicted. It did exist in 2019 at her first inquiry, but it was not well heard. The range of experts that were brought to bear at that inquiry were not necessarily the best experts in their field, and so those last three years, from 2019 to when she was released, really, the science was known then, but the system was not created or working in a way that enabled that science to be heard and to deliver justice for Kathleen and certainly others.
Sally Sara: Each profession and each institution has its own culture. It has its own language, reason for existing and priorities. What’s it like dealing with the legal system coming from a scientific perspective?
Anna-Maria Arabia: Sometimes it’s like two people from different planets trying to talk to each other, and that doesn't mean they don’t want to understand each other. I think there’s a couple of principles here. So in science communication, it is really important to be able to communicate science in a way that engages audiences, and in this case, it’s a legal system. But equally, we as scientists, we need to be really conscious of how we communicate to members of the public, to legislators, parliamentarians, policy makers – and each of those requires nuance and sophisticated communication. But each profession, the legal system and the science system, the professionals in those systems, bring their best to their professions. There’ s no doubt in my mind about that when you have emerging science, it’s unfair to think a judge or jury could be an amateur scientist or be able to get across that, so we need to find mechanisms to enable the communication of science across those two audiences. And equally, it’s really difficult for a scientist who is used to exploring the grey, putting certainty and uncertainty measures around the evidence that they generate, for them to be able to understand a system that’s looking for finality, that might be more black and white, where cross-examination asks for yes–no answers. Scientists don’t often do yes–no. They seek to explain the nuance and the grey. So it is difficult for those two systems to come together, but not impossible, and there’s ways we can improve that.
Sally Sara: I’m wondering whether reputation is also an issue. A scientist might know that this science is proven, but do they worry about their reputation going into court to give evidence on a particular aspect of science?
Anna-Maria Arabia: Absolutely, the scientists who have been expert witnesses with whom I’ve spoken, they speak about the great integrity they bring to that process, the real desire to be the best professional they can be, and to explain something completely, and then feel a little bit let down and cornered when they’re asked a yes–no question. So it does go to reputation. It also goes to the court – the courts being adversarial, and I understand it’s an adversarial system, as it should be. It’s not really an environment where scientists, I think, feel most comfortable bringing their expertise, albeit quite accustomed to controversy and people critiquing their work, being sceptical about their work. That’s quite normal within their scientific community. But when the opportunity to convey science in its completeness in a fulsome way, is denied – at least that’s how they feel – I think there are real difficulties in bringing those two professions together.
Sally Sara: How and why did you become involved in the Kathleen Folbigg case?
Anna-Maria Arabia: The Australian Academy of Science, like many academies across the world and the Royal Society of London and the National Academy of Science in the US, have been involved in science law matters for quite a while. The Kathleen Folbigg case was a very interesting and I think unique manifestation for the Academy of Science to bring evidence to decision-making. We do that all the time. We bring evidence to this parliament. We try and convey evidence wherever decisions are made, but it was one of our Fellows, the extraordinary Professor Carola Vinuesa, who undertook the genetic analysis of Kathleen and her children, and she was an expert witness in the first inquiry in 2019, and she very, very strongly felt that the scientific knowledge and understanding that she held had not been heard in that legal setting. And quite frustrated, she came to the Academy of Science looking for an august institution that had some weight to be able to make the case. And we looked closely at this, and Sally, to be honest, when we first looked at it, it’s like ‘are you sure Carola, you know, you’ve understood this completely?’ We have great faith in our justice system in Australia, and so we questioned it as we should have. And actually, as we looked closer, it became really clear that there had been many missteps in that case. And so we became involved in it and eventually were appointed as the independent scientific advisor to the second inquiry. And that’s something that I don’t think has happened anywhere in the world. And for me, was an illustration of how we can create a more science-sensitive legal system, and the benefit of having an independent body come to that setting and make recommendations. So, it wasn’t a decision-making role, but to be able to say to the justice system, here are the right experts in this very particular field you’re looking at. Here are some of the questions you might ask of them, so you can get the most clear understanding of this situation, and then you make your decision from that point on. But at least you have available then, you have in front of you, the best available expert evidence from the most qualified experts. So that was a unique role. And one I’m really proud of.
Sally Sara: In addition to the legal process, you know, Kathleen Folbigg is, is an individual. What was it like for you, your colleagues and others to convey this information to Kathleen Folbigg: ‘this is what we’ve found’.
Anna-Maria Arabia: We didn’t play that role, that went via her solicitor. But Kathleen, today, as a free woman, talks about receiving the genetic analysis, her own genetic analysis and that of her children as a very freeing moment. For her it gave her an understanding of why her children died. So she had grieved her children, been imprisoned for murdering them, knowing that she was innocent. So, the science wasn’t just the pathway to her freedom, but she speaks about it as a pathway to her resolving her grief for her children, and to understanding the sort of mutations that they had and then using that to potentially help other families as well. So, I think the science played a really important role in her emotional state and her psychological ability to to deal with this extraordinary trauma that she had been through.
Sally Sara: Kathleen Folbigg’s case is an incredible example of when things go wrong, but also the way that science can be applied once it emerges, and deliver more evidence. What else is happening in this interaction between science and law now with the lessons that were learned from Kathleen Folbigg’s case and from other experiences as well?
Anna-Maria Arabia: Yeah, so Kathleen’s case has received international attention. I was recently in London speaking about it actually, and there are legislators across the world who are looking at it, to look at ways in which they can improve their justice systems and the better delivery of justice. Some of the things we’ve been working on, taking the learnings from the Kathleen Folbigg case, is how do we have as a matter of routine the independent selection of experts. So at the moment, prosecution and defence select their experts and then they’re cross-examined. They are limited by the reach of prosecution and defence. If you had the independent selection of experts they could be offered to the justice system and then cross-examined by prosecution and defence, and that would enable the best possible experts to be there. Things like the Evidence Act, I think it’s probably time that the Evidence Act be reviewed. There are reliability standards that are within that act, there is a question to be asked about whether that’s still fit for purpose. So as you have new science and new technologies emerging, and you’re looking at those, we need to be able to run a ruler over evidence before it is admitted into a court of law asking whether it’s reliable, and reliable from a scientific perspective as well. There’s really interesting work and calls we’ve been part of, to have genome sequencing done of all causes of so we can investigate causes of death where they are unknown particularly in children. So imagine families who have lost children, cannot explain their death, have the finger pointed at them, or even don’t have the finger pointed at them. They end up in the Coroner’s Court. There is no great understanding of what’s caused that death. Imagine being able to sequence those genomes and have an understanding before any criminal proceedings or any sort of court proceedings even start – that would give great comfort to parents. It would help parents avail themselves to things like genetic counselling and IVF that would enable them to have healthy children going forward. It would add to the body of evidence to help us understand disease. Those sort of measures don’t just help the justice system; they help families, they help science. They would be terrific things we could introduce as learnings from the Kathleen Folbigg case.
Sally Sara: You’re listening to Changing Australia and my guest this morning is the head of the Australian Academy of Science, Anna-Maria Arabia. Now that there is a greater look at incorporating science and scientific expertise and evidence into the justice system, I’m wondering about other issues. We know that, for example, amongst the prison population there is a proliferation of people who’ve had significant head or brain injuries, and there’s a lot of discussion about criminal responsibility with that. What sort of other applications do you see for not only experts testifying in cases, but a rethink of the way that we deal with questions of justice and questions of science?
Anna-Maria Arabia: It’s huge. So that’s one example. Think about climate change litigation, which is in our courts already, where the underpinning science around climate change is brought into those legal settings. Think about the use of AI. Think about autonomous vehicles and where responsibility lies when things go wrong. These are all advances in science and technology, and these are within the courts and within our justice system more broadly. We need mechanisms to be able to deal with this, so it requires the justice system to be more scientifically literate. It also requires the science system to be more literate of how the law works. So, there’s a mutual responsibility there. But there are a number of challenges facing our legal system. This isn’t new though; it’s not beyond our wit to be able to do this. I remember when I was a young scientist, my supervisor at the time was called to be an expert witness, and he was explaining to me that he needed to provide evidence as to whether stress caused cardiovascular conditions, and whether somebody who had had a heart attack and whether their work environment contributed to that. It was very grey at the time, and the courts were trying to deal with this, and there was a lot of litigation. That’s the same principle at play equally. The ones I’ve just mentioned are now examples nowadays. We’ll see many emerge with quantum computing. We’ll see many emerge as science continues. So again, we really need a legal system that’s fit for purpose and able to evolve and work with new knowledge as it comes to life and influences the way we all engage in society and some of the matters that emerge in a legal sense.
Sally Sara: Anna-Maria, coming full circle, back to where we began. I’m wondering, personally and professionally, what are the biggest things that you learnt from your involvement in the Kathleen Folbigg case?
Anna-Maria Arabia: It was an extraordinary experience, personally, to look at a case, a criminal case so closely that involved a grieving mother who has gone through an unimaginable amount of grief and injustice, and to be able to bring science to bear to that was extraordinary. One of the things that drives me every day is, how do I bring evidence to decision-making? And I know that sounds really kind of transactional, but this is where the rubber hits the road. This is where it affects lives, where we can look at systems and structures. And [to] help in this case, the delivery of justice, for me was an enormously proud moment to be able to convene the wonderful scientists in our country and indeed internationally; in the case of Kathleen Folbigg – to bring them to the justice system to bear witness to the communication of science in that courtroom, which Sally I would argue, was the most sophisticated engagement between the justice system and the science system I’d ever seen. The Commissioner, Bathurst, was fully engaged in this complete explanation of science and the mutations that Kathleen holds and her children hold, and why they’re important in a way that was not superficial, that brought about understanding. It was evidence-informed decision making at its very best. And for me, it was an example of what this could look like and how an organisation like the Australian Academy of Science can really be brought to bear to help individuals, to help systems. It was a very proud moment.
Sally Sara: Anna-Maria Arabia, it’s been so interesting to talk to you about your work and the applications of this kind of work as well. Thank you so much for being my guest this morning on Changing Australia.
Anna-Maria Arabia: It’s such a pleasure to be here. Thanks for having me.
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