When baby Azaria Chamberlain’s matinee jacket was found at Uluru in 1986, it led to the prompt release of her mother, Lindy Chamberlain, from prison.

Five days later a Royal Commission was announced; the Commission established the wrongfulness of her conviction and led to reforms in forensic science practices. In the case of Kathleen Folbigg, the publication in November 2020 of the genetic findings in her children in Europace could well have had a “matinee jacket” effect. Instead, Ms Folbigg remained in prison for another 2½ years until a second inquiry was completed. It was only then that the Inquirer, former Chief Justice Bathurst, advised the NSW Attorney-General that there was reasonable doubt about her convictions, resulting in her release.

Now, two years later, Folbigg has been offered $2 million in compensation. In a bid to still the cries that in the circumstances this was a miserly government response, the attorney-general was reported by the _Newcastle Herald_ as telling a Parliamentary Budget Estimates Committee on 28 August: “What set this matter apart was there was no proven malfeasance on the part of the state.”

This statement may mislead. It was not Justice Bathurst’s task to examine whether there was state misbehaviour or worse. The focus was entirely on the safety or otherwise of Folbigg’s conviction. The direction to Justice Bathurst was “that an inquiry be conducted into the said convictions in accordance with Part 7 of the Crimes (Appeal and Review) Act 2001”. It is unsurprising that Bathurst did not explicitly address this issue in his report.

We are now calling for a Royal Commission but, in doing so, we are cognisant of the quality and depth of the second NSW inquiry into the conviction of Folbigg conducted by Justice Bathurst. His findings were essential to the recognition of Folbigg’s innocence but (with the exception of some indirect allusions) his inquiry was not directed at identifying problems causing her wrongful conviction. However, some of his allusions would be a good place for a Royal Commission to start.

This extract from Justice Bathurst’s interim report to the NSW attorney-general is pertinent: “I am of the opinion that there is a real possibility that three of the children died of (identifiable) natural causes. I am unable to accept the proposition that the evidence established that Ms Folbigg was other than a caring mother for her children. In my view, informed by the expert evidence before the Inquiry, the diaries reflect Ms Folbigg blaming herself for the death of each child as distinct from admissions that she murdered or otherwise harmed them . . . . Regrettably… the jury were invited, at least implicitly, to accept the assumption that the four then unexplained deaths could only be due to unnatural causes, namely smothering. Meadows’ Law also ignores the fact that it would be similarly a remarkable coincidence if over the period of 10 years the mother of 4 children smothered them without leaving any trace on each occasion, and in circumstances in which two of them carried an extremely rare life-threatening genetic variant, of whom one also had myocarditis, and a third presented, at the least, atypically for a case of suffocation.”

At present, the NSW Attorney-General is in denial (or has not been adequately briefed). In addition to effectively claiming that the state was not at fault in Folbigg’s conviction, he seems to believe that since the genetic evidence that led to her release was discovered years after her conviction, all was satisfactory at her trial. The new genetic evidence was certainly key, but at the same time it helped to expose the array of errors in her trial. The public and most of the media are yet to appreciate these errors. The problems before, during and after the trial contributing to and prolonging Folbigg’s wrongful conviction were addressed in depth at a symposium in Melbourne in 2025.

Foremost among what a Royal Commission will need to address is the impact (subconscious or otherwise) Meadow’s Law had on many of the participants at her trial. Meadow was then a respected UK paediatrician who had popularised the idea that one sudden infant death in a family is a tragedy, two is suspicious and three is murder until proven otherwise. This idea was prominent at the turn of the century, but has always been wrong for the simple reason pointed out above by Bathurst.

The Commission should also examine — as alluded to by Bathurst — why no expert evidence was tendered about Folbigg’s diaries and their interpretation. And why was tendency and coincidence evidence so poorly understood? It should also explore the likelihood that several major pieces of evidence were never disclosed at the trial. Folbigg and her representatives only learned of these at the end of the Bathurst inquiry. These included 530 hours of covert domestic recordings of the Folbiggs; 86 new medical records; and the information that during the police investigation, Folbigg’s husband, Craig, had been arrested for hindering the investigation. Craig Folbigg then withdrew his support for his wife and participated in a recorded interview with police. The undisclosed interview undermined the reliability of some of his evidence.

The encouragement by the prosecution of expert witnesses — especially pathologists — to speculate, and the willingness of the experts to indulge in such speculation, should also be examined. The Royal Commission should also review why it took more than three years for the attorney-general to mount the first Blanch inquiry, why that inquiry failed to correctly identify the central issues and why the inquiry tended to be adversarial rather than inquisitorial. The sensitivity of these questions, with their hint of subconscious prejudice, is emphasised below when the selection of a Royal Commissioner arises.

Royal commissions and judicial inquiries tend to steer away from looking at the courtroom conduct of the parties. The Folbigg Royal Commission might think it useful to look at the guidelines for prosecutor conduct issued by the NSW Office of Public Prosecutor and then ask how it came to be that, in his concluding address to the jury, the crown prosecutor was permitted to use what appeared to be derogatory language, language that was also designed to embrace Meadow’s Law.

Another worrying matter to be probed is whether the justice system allowed juror misconduct to go unchecked. The court became aware that a juror had discovered on the internet the story of Folbigg’s unfortunate early childhood (her father had killed her mother) and had shared this information with other jurors. This admitted conduct was later the subject of an appeal to the Court of Criminal Appeal, but the three judges declined to order a new trial. This was a remarkable decision in the light of how seriously the judiciary regards jury misconduct.

And then there was the use of language which was prejudicial. For example, the simple phrase “consistent with” means quite different things to scientists and doctors on the one hand, and lay people on the other. When doctors said that the finding of no injuries in each of the four children was consistent with suffocation, they were saying that suffocation was one possible explanation for the findings. The jury would have heard “consistent with” to mean that the findings were indeed caused by suffocation. Such language was specifically identified by a Canadian Commission of Inquiry as inherently dangerous when used in evidence by forensic experts.

A Royal Commission could also be tasked with examining the lack of a transparent, appellable process for the awarding of compensation and restitution after wrongful convictions. The NSW approach is shamefully inadequate when compared with our neighbour, New Zealand.

Finally, should a Royal Commission be established, it will be essential that the Commissioner come from outside NSW. During the nearly 25 years of Folbigg’s saga, too many senior NSW legal figures have played roles in the decisions made against her and thus it would be difficult to find a Commissioner from NSW who was guaranteed to be without risk of subconscious prejudice or bias.

Clearly, the Royal Commission will have a daunting task. But until there has been a proper inquiry into what were the failings in the conviction of Folbigg, it is wrong of the attorney-general to say there was no state malfeasance. We believe there is a firm basis for saying there were significant failings. On the attorney-general’s own terms, what in the circumstances was inadequate compensation will need to be re-considered.

The views expressed in this article may or may not reflect those of Pearls and Irritations.