Science, Media and the Law: Lessons from the Kathleen Folbigg Case (In Summary)

- Being involved with Kathleen's tragic journey has been one of the most challenging and rewarding matters I've actually ever taken on because Kathleen is a beautiful woman who lost her four children to a complex illness, but instead of being able to grieve for her losses, she was confronted with the full institutional force of the New South Wales police, the judiciary, the prison system, and an extremely hostile Attorney-General's office. Now, how Kath has survived this ordeal is a story in its own right. I mean, it is a great story of resilience. So, first of all, we now know, 'cause we've got all the backstory, right? I mean, we have got thousands and thousands of pages of information. A lot of it's confidential. It's never ever been made public. What we do know, though, was Kathleen was actually targeted by the New South Wales police and without any evidence to suggest that she actually did anything, 'cause, after all, three of her children had had incredibly poor health, epileptic fits, being in and out of hospital. You know, these weren't four healthy babies that, you know, she just whacked. That's rubbish, these were incredibly ill kids, except for one. So, they targeted her. She was in prison then for 20 years, of which most of that time she spent in isolation for her own safety. Now, child killers are prison scum, and she became fully aware of the consequences of this terrible title. How did we manage this? Well, first of all, it began through a true friendship from Tracy. Without Tracy, none of us would be here telling this story. Now, we came together in this incredibly effective team. Here is Team Folbigg, and we managed to wrench open the Attorney-General's office using tactics more commonly found, which I used to use in my days when I raided corporate entities, so hostile takeovers, which I've done quite a few of, but we used scientific skill, media network, and political pressure. And, of course, we had a committed legal team, and that's how we righted Australia's worst judicial wrongdoing. - One of the things I've learned in working with scientists and gathering their evidence is that the more volatile our world becomes, the more uncertain it becomes, the more we need science and the more we need to be able to draw on science to guide our actions and our decisions, and this was absolutely evident in the Kathleen Folbigg case. It offers a fantastic demonstration case of how science and the law should interact and how things could be done better in the future, and an absolutely extraordinary example of how science and scientists fought to be heard in a legal system that is currently ill-equipped to deal with the pace of scientific and technological change. We got involved because we are all about bringing evidence to decisions, and this is no different. We're often associated with bringing evidence to our parliament and to assisting the decisions of ministers, but bringing it to the justice system is something that is equally important. We were involved in the independent selection of experts, so we were able to literally look at where the experts were across the world in the correct sub-disciplines to be able to give the most up-to-date and best scientific evidence to that inquiry so it could be heard. Some of the reasons we need independent scientific advisors is because there is great misuse of statistics in our courts. Prosecution often chooses experts often because they're the people they know. They're good performers. They know that in interrogating them, they can get to a certain point and that's where it ends. Defence often don't have the resources to be able to come back, or even to identify experts to bring forward. So, an independent advisor would be able to overcome some of that. These are some of the wonderful people who came forward and signed a petition to petition the Governor of New South Wales to ask for a mercy plea to have Kathleen freed. So, what have we learned from this? From the Australian Academy of Science's perspective, there are three important law reform opportunities that we are focusing on and seeking to bring about. So, one of them is the introduction of a reliability standard for the admissibility of evidence. The second is a mechanism to select experts who are independent and by reliable sources, and thirdly, the establishment of a post appeals mechanism. Wherever decisions are made, they need to be informed by evidence, including in our justice system. - For the past 20 years, I've stood for my friend, Kathleen Folbigg, a woman who was once considered Australia's most hated woman, Australia's worst serial killer, but through all that noise and the accusations and the venom, I, along with a small group of friends, Megan, Alana, I'm not sure if they're listening tonight, but we all hung in there. Our close friendship and a handful of other people believed in something far greater than the stories told about Kath. We actually believed in the truth, and that's why we kept going for all these years. This was about rewriting a narrative, about ensuring that justice was served and that the whole truth, including those damn diaries, prevailed. For the first time, I felt vindicated. These incredibly skilled, well connected, high-profile individuals were standing beside us, willing to be counted, and that was amazing, and for the first time, I actually felt hope, and that felt pretty good. And I hope this case inspires you all to adjust your own worldviews, to reassess who you are and what you're willing to see and do in this rapidly changing world. I hope it encourages you all to expand your concepts of caring beyond yourself, your family, and your work to encompass many other things other than that. It's up to each of you to be the very best humane beings you can be. - I do want to tell you a little bit about my experience with DNA profile evidence, which is my main area of expertise, 'cause I think it's relevant, and just to highlight, Anna-Maria showed you a headline about, oh, the chances of four babies dying in one family is one in a trillion or something. Of course, the number is nonsense. You know, there are instances of this occurring around the world, although, of course, it's extremely rare. The one in a trillion, even if it's true, it doesn't really mean anything on its own. There are a lot of, rare events happen, you know. The rarity of an event on its own doesn't really say anything. What the, kind of, scientific approach to evaluating evidence is, how likely is this evidence if the prosecution is right, how likely is this evidence if the defence is right? So, you've got to think about both sides. Just the unlikeliness of the event on its own doesn't tell you very much. You've got to weigh it up, it's unlikely under this case, but it's also unlikely on the other case, and it's got to be much more unlikely under the defence case, in other words, much more likely under the prosecution case, hugely more likely to get a conviction beyond reasonable doubt. In Kathleen's case, it's clear. You know, obviously I've now read quite a lot about it. It's just astonishing, in retrospect, how little real evidence there was. We heard from Tracy about the diary evidence that really doesn't amount to very much, but also, people can't get their heads around this rareness of four deaths in one family, and that also doesn't amount to much on its own. I mean, possibly the prosecution could have made a case, but they didn't. There is a science of doing it properly, and we've just got to get this promoted more widely in the system. That's what I'm trying to do. - What I've realised, when you go through appeals processes, too, you bloody well, excuse the language, but get it right at the trial, because whatever comes thereafter is "the truth", and that's what you're trying to actually overturn. You only have limited capacity to do stuff, right? And the outcome for the trial meant that the truth was that Kath killed her children and the diaries were the truest form of evidence that said she did it. Garbage, to me, like, absolute garbage. We find then that we get an inquiry, and when I think that perhaps we might actually get some experts in the room, we get three days of some of the worst cross-examination I have ever seen in a courtroom, and if you haven't heard it, it's all online. Do yourself a favour, go and listen to it. I'm sure your toes will curl. It was disgusting. So, you've got that, and then, you know, you get Blanch that says he's even more convinced that she's guilty now, and Kath and I just went, "How does this happen?" So, we actually had a really robust conversation about whether we were gonna go, and it was just that the diaries were brought in this time, 'cause they go, "Hey, that's technically new evidence, right?" If you actually stuffed up and didn't do it the right way the first time, then if you're gonna do it the right way, bring it in. Then that's new evidence, isn't it? So, we were really happy that Kath's legal team then brought it in, and then we were able to bring in some of these other cases and actually have real conversations about this stuff and bring in the truth. - It will become ever more important to have very accurate, meaningful, and accessible science communication to those people making decisions, that's judges and jurors, to put them in the best positioned place to be able to draw a conclusion, and sometimes, that material will be grey, will be uncertain. Scientists have no problem at all dealing with uncertainty if it is presented in a way where the boundaries of that evidence are well described, where, you know, margins of error are described, the level of certainty we have around evidence and material presented is well described. You equip and empower decision-makers to make a best possible decision with the available evidence. At the moment, that's not happening. So, I don't think we should do away with jurors, I don't think we should do away with judges. Our system mostly works for us, but we do need to be able to give them the most accurate and accessible information, with all of the parameters around it, around the certainty with which they can take that information.