Saturday, March 27, 2021

Folbigg petition: Science thrown out of court

She was convicted on the basis of an assumption now known to be false

At 10.10am on Wednesday, Australia’s most notorious female prisoner, Kathleen Folbigg, entered a room at Clarence Correctional Facility and sat at a table, facing a camera linked to a court in Sydney. Eight minutes later, looking slightly bemused, she stood up and left.

In the interim, NSW Supreme Court Justice John Basten had taken less than 45 seconds to dismiss an application made on Folbigg’s behalf to overturn the findings of an inquiry held in 2019 into her convictions for the manslaughter of her firstborn, Caleb, and the subsequent murders of her second child, Patrick, and her third and fourth children, Sarah and Laura.

A scathing written judgment from the three Appeal Court judges, justices Basten, Paul Brereton and Mark Leeming, confirmed the view of the commissioner who headed the earlier inquiry, Justice Reginald Blanch, that “there was an ample basis, consistent with the scientific evidence, for the judicial officer to conclude that there was no reasonable doubt as to Ms Folbigg’s guilt”.

The judges also suggested that: “This was not a case in which the judicial officer’s conclusion was at odds with the scientific evidence.”

What happened next was unprecedented. That afternoon, the Australian Academy of Science issued a statement directly contradicting the judges, saying: “There are medical and scientific explanations for the death of each of Kathleen Folbigg’s children.”

Academy president John Shine told The Australian: “Experts from around the globe have offered an evidence-based explanation for the death of the Folbigg children. It is time that this evidence be brought to bear in the Folbigg case. Any statement suggesting a contrary view should be backed with data. The Folbigg case calls into question the ability for the legal system to assess the reliability of expert evidence.”

Australian National University professor Carola Vinuesa, who gave evidence to the 2019 inquiry, went even further, describing Justice Blanch’s conclusions about the genetic evidence she had helped to present as “incorrect”, and the inquiry’s reasoning as “non-scientific”.

Or in other words, the judges got it wrong.

It’s clear that this is now a bare-knuckle fight between those scientists who believe that plausible natural causes of death have been established for all four of Folbigg’s children, and the judges who continue to reason that other, circumstantial elements of the case, combined with the anguished, ambiguous comments made by Folbigg in her diaries, leave no room for doubt that she smothered all four of her children.

The petition

The Appeal Court verdict comes less than three weeks after 90 eminent scientists — including two Australian Nobel laureates — signed a petition to NSW Governor Margaret Beazley, calling for Folbigg’s immediate pardon and release from jail.

That petition is based on peer-reviewed research published after Justice Blanch’s inquiry, which concludes that Folbigg’s daughters, Sarah and Laura, “likely” died of natural causes linked to a genetic abnormality, and it remains a live issue to be considered by the Governor and by the NSW Attorney-General, Mark Speakman, and his team. The petition and its new research were not referred to by the Appeal Court judges in their conclusions about the science.

Newcastle University Scientia professor emeritus Eugenie R. Lumbers told The Weekend Australian that in her view: “The conflict that exists between the legal system and science can be attributed to the rapid progress of new scientific knowledge. It is essential that the legal system takes a considered approach and places reliance on the expertise of scientists currently working in relevant specific areas of inquiry. ”

The challenge to the judges by the scientific community marks a significant escalation in the increasingly frosty relationship between medical and scientific expert witnesses, and the judges who assess that evidence.

This week, two expert witnesses who appeared on Folbigg’s behalf at the 2019 inquiry openly criticised the way in which they and their evidence were treated.

Newcastle University emeritus professor Robert Clancy said: “My experience in giving evidence at the 2019 inquiry was extremely stressful. I was subjected to a ‘vigour of inquiry’ that I found aggressive and beyond anything I had experienced in over 40 years as an expert witness.

“When I could not agree with incorrect and outmoded evidence given earlier, counsel asked me to provide a detailed report — which I did. Without my knowledge, relevant information in it was redacted.”

Caroline Blackwell, conjoint professor of immunology and microbiology at Newcastle University, says she had the impression the inquiry “was not aware of the complexity or the relevance of the information presented by Professor Clancy and myself”.

John Hilton, long regarded as one of Australia’s pre-eminent forensic pathologists, told The Weekend Australian that the medical evidence “certainly in one case, showed a clear-cut, obvious natural cause of death”.

That case was Laura, Folbigg’s fourth child, where Hilton and three other forensic pathologists all gave evidence to the inquiry that her death could be ascribed to myocarditis, a sometimes fatal inflammation of the heart muscle. Hilton describes it as a “strong probability”.

Laura’s myocarditis was also referred to by the cardiac geneticists who reviewed the case and who suggested it may have triggered her underlying genetic condition causing a cardiac arrest and her sudden death.

Hilton says: “For some reason or other, people have found it terribly hard to get their heads around this. They didn’t understand really what the medical evidence was saying.”

The science

This is now the main allegation being levelled at Justice Blanch, and at the Appeal Court judges who reviewed the genetic evidence that was presented to his inquiry — that they didn’t understand the science.

Law professor Gary Edmond, from the University of NSW, says: “If you were designing a system to facilitate an impartial review of a conviction, where the major issue is the biomedical evidence, would you appoint legally trained personnel to conduct, oversee and evaluate the evidence? Why do we have a legally trained chair, legally trained counsel assisting but no forensic pathologist, geneticist or statistician sitting on the panel?”

Referring to the genetic mutation, CALM2 G114R, which Vinuesa and her colleagues discovered in Folbigg and her two daughters, the judges acknowledged this week that: “The scientific evidence raised a theoretical possibility that there were innocent explanations for the deaths of the two girls.”

But, they argued: “Their circumstances departed from the reported cases of deaths associated with CALM abnormalities.” Compared with other cases reported in the literature, the deaths of Sarah and Laura were “outliers”, the judges ruled. One example was that “the girls apparently died suddenly when asleep and not during exertion”. A further example was the contention that they died at a younger age than other, known examples of CALM-induced deaths.

But Vinuesa begs to disagree. “In all four Folbigg children, there is credible medical and pathological evidence, including new peer-reviewed genetic findings, by an international team of 27 scientists published in a top international cardiology journal … that points towards natural causes of death,” she says.

This is the evidence that the scientists published in the highly respected journal, Europace — which Vinuesa believes was not adequately considered by the Appeal Court.

Vinuesa says that the Folbigg girls’ deaths were not outliers with regards to already known CALM-related sudden unexpected deaths.

On Friday, one of the world’s foremost cardiologists and cardiac genetics experts, Peter Schwartz, weighed in. He described the judges’ scientific commentary as “simply wrong”, adding: “It goes against the only serious data available, namely those of our International Calmodulin Registry.

“With over 100 patients enrolled, it is crystal clear that life-threatening or fatal events have occurred in infants and young children at rest or during sleep, and the majority occur without prior warning.” Vinuesa and her team discovered a different genetic mutation in the two boys, Caleb and Patrick, although the scientists acknowledge that here, further research is needed.

The judges’ conclusions implied that CALM mutations that are lethal in children are not inherited from healthy parents. But Schwartz argues that: “It is widely accepted in genetics that highly symptomatic infants can inherit the disease-causing mutations from apparently healthy parents or parents with mild disease. Consistent with the latter, Ms Folbigg had numerous transient fainting episodes (known as syncopes) during childhood and adolescence, including a witnessed syncope while swimming as an 11-year-old child, requiring her to be dragged out of the pool, which rules out it having been a ‘benign’ syncope.”

What next?

Folbigg’s fate now rests with the NSW Governor and the politically appointed Attorney-General, Mark Speakman.

Will they agree with claims by the Australian Academy of Science, that the scientific conclusions reached by the Appeal Court judges are flawed, or will they decide that the circumstantial evidence presented at Folbigg’s trial, and the evidence of her diaries, overrides these claims?

Edmond argues that: “NSW should have an independent criminal cases review commission — like England, Scotland and New Zealand.”

And he adds: “At one level, given the medical evidence, the diary entries may not even be meaningful. If there is no medical evidence suggesting murder or even deliberate harm, does it matter that a woman has written self-deprecating and adverse self-accusations? The ambiguous diaries must be read subject to the medical evidence. If the medical evidence does not support murder, then ambiguous diaries cannot operate as a makeweight.”

Blackwell says: “There have been significant advancements in science and medicine in the last 18 years. This is particularly evident in the field of genetics, which has led to groundbreaking findings that could not have been envisioned almost two decades ago. The law needs to be open to this progress. It also requires scientists to support the legal system in their understanding of the true cause of all unexpected deaths.”

Solicitor Rhanee Rego and barrister Robert Cavanagh, co-authors of the petition seeking Folbigg’s release, believe that the Appeal Court’s decision this week “should not impact on the petition for pardon of Ms Folbigg, which is currently under consideration by the Governor. The petition deals with matters not considered by the NSW Court of Appeal.”

Rego says: “One of the biggest tensions in our legal system is the varying levels of scientific literacy of those who preside over and appear in courtrooms.

“This can lead to fundamental errors in the assessment of scientific evidence … We must be conscious to listen to those experts who represent their field of expertise and treat with caution those who do not.”


Outrage as young boys are forced to stand in school assembly and 'apologise for rapes committed by their gender' to female classmates

It's a basic principle of natural justice that you are not responsible for the deeds of others

A school has sparked outrage by forcing its young male students to apologise on behalf of their gender to female classmates.

Brauer College in the south-western Victorian town of Warrnambool held an assembly on Wednesday where boys were told to stand up in a symbolic gesture of apology to girls and women.

One parent said her son in Year 7 was left confused about why he had to stage the bizarre apology, where boys were told to say sorry that women are raped and sexually assaulted.

'He said that he was made to stand up and basically apologise... it wasn’t explained properly to the male students what they were doing or why they were doing it,' the mother Danielle Shephard told 7News.

'They really should have made more of an effort to notify the parents.'

In a separate post on Facebook, Ms Shepherd shared another complaint from a parent who called the assembly 'a joke'.

'Wow just wow... this is actually disgusting Brauer College... not at all impressed that you made my son apologise for something he's never done nor considered doing,' she wrote.

A male student also criticised the assembly in a Snapchat post. 'Today at Brauer they made every guy stand up and apologise to every girl for rape, sexual assault,' the student said. 'Guys go through as much s**t as girls do.'

Brauer College Principal Jane Boyle said the apology part of the assembly was 'inappropriate' but defended the school's intentions.

'The assembly included the screening of a video message by Brisbane Boys’ College Captain Mason Black about being proactive in stopping incidents of sexual assault and harassment,' she said in a statement.

'As part of this discussion boys were asked to stand as a symbolic gesture of apology for the behaviours of their gender that have hurt or offended girls and women.

'In retrospect, while well-intended, we recognise that this part of the assembly was inappropriate.'

One mother said on Facebook their son had told her the exercise was simply intended to 'raise awareness'.

'My son explained they stood not to apologise, but to stand in support and solidarity,' another parent wrote.

'You'll find all schools will be teaching consent over the next year - Braeur won't be the only one.'

Victorian Acting Premier James Merlino has since moved to make teaching consent compulsory in all government schools from next month.

The initiative previously did not explicitly direct schools to teach consent and instead focused on relationships, sexuality and safety.

From term two, the directive will compel state schools to teach the government's Respectful Relationships training on free agreements.

Brisbane Boys' College is another of several schools in Australia that has been named in testimonies from private and public school girls who say they were either sexually assaulted, harassed or raped.

Thousands of schoolgirls shared their experiences after Kambala School alumni Chanel Contos, 22, launched a petition on February 18, demanding students be taught about consent.


Gross police abuse of their powers

Police officers have been accused of deliberately intimating a lawyer on his way to court and scaring him so badly he fled through the Magistrate's exit.

The solicitor had been on his way to represent an outlaw motorcycle gang member in a case against NSW Police Strike Force Raptor - the elite bikie-fighting unit. The lawyer was so shaken that the hearing was adjourned.

The abuse of power was detailed in the Law Enforcement Conduct Commission's report which was made public late on Friday.

The lawyer, a principal in his own criminal law firm, first noticed a police car driving past his house at 6.30am on May 28, 2019 - the day he was due in court to represent the bikie against Strike Force Raptor, the report said.

Being on good terms with local police in his country town, he waved - but they didn't wave back.

At 7am he reversed out of his driveway onto the empty street and noticed police were following him.

They pulled him over less than 10 minutes away at a nearby Beaurepaires tyre shop, and identified themselves as being from Strike Force Raptor.

The Raptor officers asked for his drivers license - which he had forgotten.

On his way home to get his ID, the Raptor officers stopped him again to conduct a 'roadworthiness check' on his vehicle.

They repeatedly pulled the front seatbelt before claiming it was not retracting.

They then opened the bonnet and told him they could see an oil leak, then defected him for oil leaks, seat belt defects and window tinting, forcing him to walk home in his socks and thongs.

Rattled, he took a taxi to work - but the police followed his taxi, checking it after he arrived at work with their flashing lights on, the report said.

At 8.30am, his client arrived, telling him the police were 'doing laps' outside his office. This worried the lawyer so much he took a back exit from his office to a solicitor friend who rang the regular police - but they said they could not do anything.

He was so shaken that when he appeared before the Magistrate to represent his client against Strike Force Raptor, she adjourned the matter.

When he left the courtroom, five to 10 Strike Force Raptor officers were waiting.

This intimidated the lawyer so much he fled the court by the Magistrate's private exit, with her permission.

He then told his client that he should not represent him anymore - and the client hired another lawyer, the report said.

Integrity Commissioner Lea Drake found that a senior Strike Force Raptor officer had ordered two other officers to 'target, interact and harass' the lawyer so that he did not make it to court, and also intimidated his female friend.

The Commissioner found that the officers' conduct towards the lawyer was 'disgraceful', inventing breaches in order to target him.

'When misused, targeting can create a hostile relationship between the police and citizens who would otherwise have no animosity towards the police,' the Commissioner wrote.

'The Commission is concerned about the sense of entitlement that can develop in an elite strike force and was demonstrated by this conduct.

'Such limited strategies can become unrestrained and unlawful. If you are an elite, are you bound by the rule of law and the policies of the NSW Police Force or are you bigger, better, harder and more entitled?

'The task of these officers is to enforce the law. If the unlawful conduct engaged in by these officers is allowed to continue and be condoned because of some imagined higher purpose, there can be no good to come from it for the people of New South Wales.'

The Commissioner wrote that while Strike Force Raptor had been successful in disrupting criminal activity, it could not be allowed to harass people.

'However, unlawful conduct must not be condoned or covered up.'

Greens MP David Shoebridge was beside himself on reading the report and slammed the conduct within it late on Friday, summing up the story in an outraged Twitter thread.

'Lawless,' he wrote.

'This is seriously lawless behaviour by a number of police acting in concert and it’s close to unbelievable .... We (will) not leave it here I can assure you. Seriously unbelievable.'

A spokesman for NSW Police said the release of the report had been 'noted' and its contents and recommendations would be 'considered'.


Brisbane man claims paramedics took more than four hours to arrive to his code one call

A Brisbane man has called on the government to expedite fixing ambulance response times before someone dies after he said he waited four hours for paramedics to arrive.

Ben Mihan, 33, said he rang Triple-0 at 8.58pm on Friday as he was suffering from severe chest pains along with trouble breathing.

“They put me as a category one patient and they took four hours and 15 minutes to arrive,” he said.

“During the time they didn’t communicate to check in with me considering the long duration of time I was waiting and I was left in the dark.

“Paramedics didn’t arrive until 1.15am the following morning and I was rushed to hospital.”

Mr Mihan who lives alone and also suffers from asthma, said he then spent five days in the cardiac ward at Chermside’s Prince Charles Hospital, where he was hooked up to a heart monitor for the week.

“It was really scary not knowing when the ambulance would even turn up. I thought they forgot about me,” he said.

“Over that period of time in hospital they ran lots of tests and, as a 33-year-old man, the whole experience was pretty intense and scary.”

The Clontarf resident said an abnormal rhythm was detected in his heart twice, with doctors suspecting a possible blood clot.

Mr Mihan said he was shocked with the four hours it took for an ambulance to arrive, but grateful to be alive. “If somebody, like an elderly man is having a heart attack and it’s a definite heart attack, those four hours would make a difference. He won’t survive that,” he said. “Some people are going to die from these wait times.”

He said he wanted to share his story in the hope it would help alert the government that the Queensland Ambulance Service (QAS) direly needed more resources.

The pressure has been on the Queensland Government to increase the number of QAS personnel after it was revealed in January response times had fallen to an average of 18.3 minutes for a code one – or a life threatening emergency.

The ambulance response time statewide averaged 18.4 minutes during 2019-2020, up from 17.1 minutes during 2018-2019, according to the Report on Government Services (ROGS) 2021.

Ben Mihan said he called Triple-0 three times, and each time was told an ambulance would be there soon. Picture: Supplied
Ben Mihan said he called Triple-0 three times, and each time was told an ambulance would be there soon. Picture: Supplied
The best QAS response time recorded since 2012 was during 2013-2014 when an average time of 14.7 minutes was achieved, but it has continued to creep up ever since.




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