Forensic psychology, law and the Folbigg case
A conversation with Professor Gary Edmond and alumna Dr Sharmila Betts
A conversation with Professor Gary Edmond and alumna Dr Sharmila Betts
In the wake of the recent pardon of Kathleen Folbigg and the impending release of the report by Thomas Bathurst AC KC, Professor Gary Edmond FRSN interviews UNSW alumna, Dr Sharmila Betts, about her clinical psychology practice, graduate research in the Faculty of Law and Justice, and contribution to the reinterpretation of the diaries and Kathleen’s guilt.
Professor Edmond: Tell us a little about your professional background.
Dr Betts: I am a practising Clinical Psychologist with 37 years of clinical experience. I completed my Bachelor of Arts (Hons) and Master of Psychology at the University of Sydney before pursuing a PhD at UNSW, where my thesis topic was A critical analysis of medical opinion evidence in child homicide cases.
I have worked both in public and private child, adolescent, and family health. I started my career in the public domain – firstly in a developmental disability institution – and in group homes after the Richmond Report in the 1980s.
I then moved into community health at Prince of Wales Children’s Hospital (now the Sydney Children’s Hospital) in child psychiatry and child protection. Since 1999, I have been in private practice in the Eastern Suburbs and the Sydney CBD. I have had the privilege to work with young people, couples, families and parents across all areas of advantage and disadvantage. This taught me the universality of psychosocial challenges and suffering of people, irrespective of their socioeconomic status.
What role does law and justice play in your career?
Helping people, from all walks of life, and justice and fairness for the most disadvantaged, whoever they may be, has been an enduring motivation in my career (and my life).
I am an Indian migrant who came to Australia in 1971 and was afforded many opportunities, as my parents hoped I would be. I am committed to ensuring my life experiences, academic training and clinical expertise can help others overcome or endure more effectively their challenges.
I credit my maternal grandfather, perhaps my most formative relationship, with having a belief that our role in this world is to be of service to others.
When did you decide to undertake a PhD at UNSW Law & Justice? And, more importantly, what were your motivations?
My work in Sydney Childrens’ Hospital Child Protection Team was undoubtedly confronting, as the vulnerability of young people and their families was troubling. I specialised in assessing and helping treat children who had experienced physical and emotional abuse and neglect. I provided parenting assessments for Childrens’ Court and therapy for young people and, in some cases, their parents.
An aspect of my work involved cases of serious physical abuse in which medical experts (paediatricians) provided their clinical opinion on the purported causes of injuries, many of which were disabling. I became interested in understanding the basis of their diagnoses, often delivered with considerable confidence and certainty leading to the State of NSW rarely reuniting the children with their biological parents.
In my research, I came across 'Meadows Law' – a now debunked notion that led to the wrongful convictions of women in the UK and Canada. The idea that recurrent unexplained deaths in one family were likely to be murder, caused by the person at the scene of the 'crime' – usually the mother – was being actively challenged in the northern hemisphere. Yet, in NSW, I found that Kathleen Folbigg had been convicted. I was unconvinced the conviction was safe.
My search for supervisors for a PhD project researching injustices underpinned by questionable medical expert evidence led me to UNSW. I was fortunate that Professor Jane Goodman-Delahunty (who was working at the UNSW School of Psychology at that time) and Professor Gary Edmond (UNSW Faculty of Law) were open to supervising me.
After commencing my PhD in the School of Psychology, I continued my research in the UNSW Faculty of Law under Professor Edmond. I was keen to write a thesis providing a critique of wrongful convictions of mothers based on questionable medical evidence in Common Law countries.
The Faculty of Law accepted me – although I do not have a Bachelor’s degree in Law. The collegial team that Prof. Edmond and his colleagues provided gave me the freedom to apply my scientific training from Psychology to the empirical basis of medical opinion in unexplained sudden infant deaths. This progressed to analysing wrongful convictions, often of mothers, based on medical evidence. My thesis was titled A critical analysis of medical opinion evidence in child homicide cases.
I completed my thesis in three years due to exceptionally supportive supervision from Prof. Edmond, who also invited Prof. Emma Cunliffe (University of British Columbia), whose own PhD focused on Ms Folbigg’s case, to jointly supervise. For me, the thesis, encompassing the disciplines of Law and Medicine, which I had not studied as an undergraduate, was challenging. I was also working full-time in my clinical psychology practice throughout my candidature.
Prof. Edmond and his group were collaborative, gave me wise guidance, and challenged me to reach their rigorous standards of research. I felt entirely supported and was never judged for being a novice in the area. It enabled me to complete my PhD, despite the pressures of a busy clinical practice.
What did you gain through the process of postgraduate research?
The PhD offered me a deeper engagement with two disciplines related to my clinical psychology practice but with the distance that academic research and analysis affords, compared to the 'coalface' work of clinical practice. It confirmed for me the many challenges that law and medicine face when attempting to resolve unexplained infant deaths in the criminal justice system.
I believe procedural and methodological improvements are essential in both disciplines if we are to protect innocent individuals from wrongful convictions for murder.
Through my PhD, I learnt that too often, we are willing to assume guilt in conditions of uncertainty. The idea that the person on the scene of an assumed crime must be the perpetrator inevitably sets up a scenario in unexplained child deaths where the mother becomes the prime suspect. It is the basis of wrongful convictions and represents a fundamental flaw in the criminal justice system.
The research thesis reinforced my commitment in clinical practice to continue my role in advocacy, support and therapy for parents and individuals who have suffered loss and trauma.
What can be learned from Ms Folbigg’s case, now recognised as one of Australia’s worst miscarriages of justice? Delve into the evidence and implications of the case- from conviction, to appeal, to the two recent Inquiries, and the cutting-edge genetic evidence that led to Ms Folbigg’s release. Join our panel of experts as they discuss the wrongful conviction of Kathleen Folbigg and her subsequent pardon twenty years later.
Andrew Haesler SC
Judge of the District Court of NSW
Chief Executive of the Australian Academy of Science
Dr Leah Williams
UNSW Law & Justice
Associate Professor Mehera San Roque
UNSW Law & Justice
How did you come to be involved in the Folbigg case?
I read the appeal from Kathleen Folbigg’s 2003 conviction with considerable disquiet. In large measure, my disquiet was due to the prosecution's reliance on alleged diary 'confessions' in the absence of reliable medical evidence of murder.
My concern about the accuracy of Ms Folbigg’s conviction motivated my research into the forensic pathology upon which the causes of sudden infant death were determined. My PhD involved a critique of the science underpinning forensic pathology evidence in child homicide cases. In addition, my thesis examined the difficulty in interrogating the reliability of expert evidence in our adversarial criminal trial process and the wrongful convictions of mothers based on such evidence.
Beginning in the 2000s, some of these cases were being overturned in the UK and Canada via criminal case review processes which Australia currently lacks. Yet Ms Folbigg remained in jail for some 20 years, pardoned only recently.
In 2014, Ms Folbigg’s legal team asked me to provide a psychological analysis and review of her diaries based on my clinical psychology training and experience. This report was proffered in both the 2019 and 2022 Inquiries.
My analysis of the diaries confirmed my opinion that Ms Folbigg had been wrongfully convicted. I continue to be perplexed by the absence of expert psychological evidence, despite the extensive medical opinion evidence proffered in Ms Folbigg’s trial. The introduction of expert psychological evidence about mothers who experience repeated, unexplained sudden deaths may have protected Ms Folbigg from being wrongfully convicted.
While it is true that psychology is ubiquitous and everyone has some notion of psychology by virtue of having their own 'inner world', so to speak, it is not the case that the effect of trauma, loss, catastrophe, and maternal adjustment under these conditions is necessarily something the 'reasonable person' (a hypothetical person who knows a common set of facts/experiences) understands.
So, it is concerning that no expert psychological evidence pertaining to the diary entries of a bereaved mother was adduced to assist the Court in understanding the reasons Ms Folbigg blamed herself for the deaths of her children and felt so much guilt.
Why were Kathleen Folbigg’s diaries so important in the trial, appeal, and inquiries?
In the absence of unequivocal pathological evidence of murder, Ms Folbigg’s diaries were considered definitive evidence of guilt, containing confessions of murder. In the 20 years since the conviction, the notion of 'diaries as truth' has been used by media, in the original trial and in subsequent appeals and the 2019 Inquiry, to reinforce the veracity of her conviction. The lack of any medical evidence of non-accidental death has been lost in time. The diaries were considered a 'window' into the mind of a murderer.
Yet, there was no psychological evidence proffered about maternal psychological functioning in the context of multiple unexplained infant deaths. Fortunately, psychological evidence interpreting Ms Folbigg’s diaries was tendered in the 2021 Inquiry. This evidence explained the grief and self-blame that characterised Ms Folbigg’s 'inner world' or mind.
Did your involvement in this case lead to any further observations?
As a practicing Psychologist, the surprising lack of psychological expertise about grief in mothers who experience sudden infant death continues to be an area of concern and a fundamental area of injustice for me.
Ms Folbigg’s case suggests to me that our criminal legal system has not evaluated the unique distress and fear of further loss suffered by a parent experiencing the recurrent catastrophes of the unexplained deaths of four infants. Like other professionals and academics, I am committed to changing this dangerous oversight which has led to Ms Folbigg being incarcerated for 20 years despite consistently maintaining her innocence.
Gary Edmond is a law professor in the School of Law at the University of New South Wales, where he directs the Program in Expertise, Evidence and Law, and a research professor (fractional) in the School of Law at the University of Northumbria, UK. Originally trained in the history and philosophy of science, he subsequently studied law at the University of Sydney and took a PhD in law from the University of Cambridge.
Gary is an active commentator on expert evidence in Australia, England, the US and Canada, a Fellow of the Royal Society of New South Wales, a member of the editorial board of the Australian Journal of Forensic Sciences, served as an international adviser to the Goudge Inquiry into Pediatric Forensic Pathology in Ontario (2007-2008), and sat on the Council of the Australian Academy of Forensic Sciences and Standards Australia’s forensic science committee. He is Chair of the Evidence-based Forensics Initiative and is co-author of Australian Evidence: A principled approach to the common law and the uniform acts (6th ed. LexisNexis, 2017).
Dr Sharmila Betts is a Clinical Psychologist with 37 years’ experience in working with children, adolescents, families and adults. She has worked child, adolescent, and family mental health in both the private and public sectors, including in Child Psychiatry and then Child Protection at the Sydney Children’s Hospital, Randwick.
Sharmila currently provides psychological therapy in private practice. She has written expert reports on a range of psycho-legal issues and given evidence in the Family, Children’s, and District courts. Her 2013 PhD thesis (Faculty of Law, UNSW) was entitled A Critical Analysis of Medical Opinion Evidence in Child Homicide Cases, in which Ms Folbigg's case was analysed. She prepared psychological reports on Ms Folbigg’s diaries for both the 2019 and the 2022 Inquiries.