Convicted infant killer Kathleen Folbigg's lawyers have accused a former senior judge of not doing his job properly when his fresh inquiry into her babies' deaths concluded her guilt was "even more certain".
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Former NSW District Court chief judge Reginald Blanch QC in 2019 found significant investigations had failed to find a reasonable natural explanation for any of the deaths of Caleb, Patrick, Sarah and Laura, who all died before their second birthday in the decade to 1999.
Folbigg's own explanations and behaviour in respect of her diaries, which weren't available in any of the mother's criminal appeals, made "her guilt of these offences even more certain," Mr Blanch concluded.
But the jailed woman's lawyer on Monday said Mr Blanch didn't properly consider if some or all of the deaths were because of natural causes.
"He failed in the obligation to conduct an inquiry," Jeremy Morris SC told the NSW Court of Appeal.
The court, hearing Folbigg's attempt to overturn the report itself, was told there were a number of errors in the analysis that was undertaken in order to exclude the natural causes defence.
"It seems to me that you're trying to re-run the case you ran against Mr Blanch," Justice John Basten said as the hearing entered the fourth hour.
"A commission of inquiry is not bound to go down every rabbit hole," Justice Paul Brereton said.
Mr Morris said there was evidence that Caleb potentially died in 1989 of a floppy larynx - undermining Mr Blanch's conclusion that there was no identifiable natural cause of Caleb's death.
"That's an error of fact but no more than that," Justice Mark Leeming said.
Mr Morris also suggested Folbigg's contemporaneous diaries had only been read from the perspective the mother was guilty.
"If one starts with a presumption of guilt from the convictions, it's easy to read her diaries as exculpations of guilt," he said.
"But if the inquiry was to start from a neutral position, it needed to start from the position that they (may have died naturally).
"The judicial officer, we say, did not undertake that exercise of looking at it naturally."
He said Folbigg's January 1997 entry of "stress made me do terrible things" could be explained by her accepting she would get angry with her children.
"If we assume these children died naturally, that entry and that explanation cease to have the exculpatory reason the judge found was the only conclusion that could be drawn," Mr Morris said.
Another entry, dated February 4, 1997, stated: "What scares me most will be when I'm alone with the baby. How do I overcome that? Defeat that?"
"Defeat what?" Justice Leeming asked on Monday.
"That reference could be discovering another child is dead," Mr Morris replied.
Evidence presented to the Blanch inquiry suggested the CALM2 genetic variant shared by Sarah, Laura and their mother may be linked to sudden deaths in young children.
But Mr Blanch, who now serves as head of the NSW police watchdog, concluded that medical evidence and advancements in the understanding of SIDS did not cause reasonable doubt in any of Folbigg's convictions.
Folbigg, who is serving a minimum of 25 years for the deaths, lost three appeals against conviction, including one in the High Court.
The judicial review hearing is expected to run until Thursday.
Australian Associated Press
