Mothers Who Murder (9 page)

In July 2006 Folbigg’s solicitor made an application to reopen the appeal; this was only possible as the court registry had not entered the results of the first appeal into the court file.
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Kathleen’s appeal was allowed to continue on the following grounds: 1) the trial miscarried as a juror or jurors had obtained information on the Internet, revealing that Kathleen’s father had murdered her mother; 2) the trial miscarried as a result of the fact that a juror or jurors had researched, away from the trial, the length of time an infant’s body would remain warm to the touch after death. The information obtained by the jurors, and fed to the rest of the jury, was considered prejudicial. Allowing Kathleen’s appeal to proceed under these grounds is a clear-cut example of the mass media affecting the criminal justice system. However, this further appeal was subse
quently dismissed by the New South Wales Court of Criminal Appeal, on the grounds that ‘the irregularities should not have occurred … I am satisfied that they were not material and did not give rise to a miscarriage of justice’.
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Following the failure of this appeal, Kathleen remains convicted and in prison. The only legal avenue left to her is via the exceptional categories available in the relevant Criminal Appeal Act legislation.

THE MEDIA’S INFLUENCE

This discussion of the influence of the media is very relevant in Kathleen Folbigg’s case, as there is indisputable evidence that the jury was influenced by information made publicly and freely available by the media. In fact, Kathleen’s appeal was based on that fact.

In a spate of newspaper articles in 2013, which marked the ten-year anniversary of Kathleen going to prison, doubts of her guilt were raised. For example, one entitled ‘Did she do it? Why Kathleen Folbigg may not have killed her four babies’
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states that Folbigg has few supporters, but a number of academics have started asking questions. The article quotes the forensic pathologist who did Laura’s post-mortem, although it is unclear where the quote comes from. Regardless, the article says ‘Cala later wrote that had he examined Laura “without the knowledge I had at the time of previous infant deaths in the family, I might give the cause of death as myocarditis”. But in this case, he couldn’t go past those other three deaths, so he put the cause of death as “undetermined”, thus clearing the way for a murder investigation.’

Another article, this one titled ‘Is Kathleen Folbigg an innocent victim of SIDS?’,
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asks whether Kathleen Folbigg
is Australia’s worst child serial killer, as depicted by much of the Sydney media, or if she could be an innocent mother wrongfully imprisoned for crimes she had not committed, as some are beginning to suspect.

COMPARATIVE CASES

Kathleen’s case has a number of similarities to the British cases, including that of Sally Clark originally tried in 1999, Angela Cannings in 2002, and Trupti Patel, tried but acquitted in 2003. All were UK mothers accused of, and in the first two cases convicted of, the murder of two or more babies. Clark was a 35-year-old solicitor whose first son died suddenly within a few weeks of birth in 1996. His death was not considered suspicious; it was the occurrence of her second son’s death in a similar manner that led to her arrest and trial for the murder of both babies. Clark was convicted of murdering her two sons by a majority of 10 to 2, and the convictions only quashed following a second appeal in 2003. Clark’s family stood by her throughout, all saying she was an excellent mother. The prosecuting counsel offered background evidence from the (then) eminent British paediatrician, Professor Sir Roy Meadow, as to the likelihood of the babies both dying of cot death. There can be little doubt that his testimony played a part in the charging of Clark; a case that has been described as one of the greatest miscarriages of justice in modern British legal history.

Trupti Patel was yet another British mother and victim of Meadow’s law. Trupti and her husband lost a son (their second child) unexpectedly at two months of age in 1997; eighteen months later their next son died aged fifteen days. The third unexpected death happened in 2001, when the
couple lost a daughter, aged twenty-one days. The post-mortems of the two boys failed to provide causes of death, but the daughter was found to have four broken ribs. A police investigation was initiated, and Trupti Patel was arrested in 2002 and charged with the murder of all three children. This case became famous, well infamous, as one of the cases in which a mother was accused of multiple filicide,
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and importantly Sir Roy Meadow gave evidence. Patel was luckier, in some ways, than the other earlier victims of Meadow’s law, in that by the time her case came to trial, Meadow’s claims that second cot deaths in the same family were highly unlikely and most often suspicious had been largely discredited. Another fact that helped Patel was that Clark’s conviction had been overturned. As a result, it was determined that there was reasonable doubt as to Patel’s guilt, and she was acquitted.

One of these cases reviewed following Clark’s release and Patel’s acquittal was that of Angela Cannings, a mother accused and convicted in 2002 for the murder of her son, who died at eighteen weeks in 1991. Cannings had lost one child, a thirteen-week-old daughter to SIDS in 1989, an incident that had passed without suspicion. Regardless, Cannings’ conviction, for which she received a life term, was based on prosecution claims that she had smothered her two children. The prosecution case was solely based on Cannings’ ‘suspicious behaviour’, which included phoning her husband rather than the emergency services when she discovered one of the cot deaths, and Meadow’s evidence that she had murdered both children. Cannings had already lost one appeal, but following the turmoil caused by the Clark and Patel acquittals, her case was fast tracked through the appellate courts. Cannings’
conviction was overturned by the Court of Appeal in December 2003, on the grounds that it was unsafe.

As we saw in those cases, the children were initially believed to have died of SIDS, and it was the coincidence of multiple deaths that led to the initiation of a police investigation. Professor Meadow failed in his duty by not limiting himself to evidence associated with medical facts, but rather allowed himself to stray into territory where he did not have the requisite understanding. In the end Meadow gave factually incorrect and misleading evidence that helped convince more than one jury that an innocent woman had murdered her children.

I see a clear parallel with some of the medical submissions in Kathleen Folbigg’s case. Here medical practitioners entered evidence that was not based on medical expertise; instead, they commented on the likelihood of multiple babies from one family dying of SIDS. Dr Susan Beal, a paediatrician for the Crown, went further:

I would question the veracity of this statement; simply because these experts were unaware of any such incidents does not mean they have not happened. In fact, it seems an odd comment. Even if I had not previously been aware of the cause and prevalence of SIDS, purely based on logic I could have guaranteed that somewhere in the world someone has been unlucky enough to lose three or more children to SIDS. It would not have taken these experts long to do a quick check of the medical literature
to find this statement is patently untrue; and it is dangerously misleading when given in evidence by an expert in a criminal trial.

I do not claim to be an expert in SIDS, but again the British cases have some relevant information. During Trupti Patel’s trial a geneticist for the defence stated that multiple SIDS deaths in one family could be caused by an undiagnosed genetic defect. In Cannings’ case, the court heard evidence that there was a history of SIDS in the accused’s family, as Cannings’ paternal great-grandmother had lost a child to SIDS, and her paternal grandmother had lost two children to sudden infant death – indicating again that genetic inheritance was the most likely cause of the children’s deaths. This information was available to Kathleen’s defence at the time of the trial in 2003. Cannings’ case was actually mentioned by Kathleen’s defence counsel, but the importance was lost on the Australian audience watching this case unfold.

The ghost of Meadow raised its head again in relation to statistical analysis entered in Folbigg’s trial. Meadow had stated during the infamous British trial of Sally Clark that there was a one in 73 million likelihood that the two children died of natural causes. In Kathleen Folbigg’s case the same logic was applied and the numbers were even higher because a fourth child had died. It’s part of experts’ duty to the court to remain up to date with their knowledge. I wonder what effect such huge numbers, achieved using Meadow’s flawed statistical formula, had on Ophoven’s evidence at trial, as this expert seemed to believe it is virtually impossible that the children died of natural causes. I also wonder why the likelihood of a mother murdering her four children was not entered in
defence. All of these points came out at Clark’s appeal, and were available to the experts in the Folbigg case, as Clark was freed in January 2003, two months before the Folbigg trial began.

CASE CLOSED

Kathleen Folbigg remains in prison, and in reality is destined to stay there unless someone does something. The nature of her conviction as a child-murderer has meant that other prisoners have made her a target; she has to be confined to protective custody and is isolated to her cell for twenty-three hours a day. As Kathleen has, in my opinion, suffered from a prolonged and serious psychological condition in the form of post-natal stress (at best) or psychosis (at worst), if she were ever released I think she would find it hard to recover from the effects of her conviction and imprisonment. Regardless, having reviewed her case, I have some very serious concerns regarding the reliability of her conviction.

I found the medical evidence in this case unconvincing, because it was not possible to prove medically that the children were smothered, as there were no positive findings at post-mortem for intentional suffocation. What the experts really said was that the physical evidence couldn’t rule out intentional smothering. However, we shouldn’t forget that the medical findings couldn’t rule out a lot of other things either. It was the coincidence of the multiple deaths in one family that caused alarm.

I am also especially concerned that the experts for the Crown appeared to step outside the bounds of their medical opinion, having reached their conclusions after being supplied with Kathleen’s diaries and other state
ments. I wonder if they were influenced by the diary entries, and let their determination that Kathleen Folbigg was guilty taint the objectivity of their reports.

I would argue that the experts should have prepared their reports in isolation from each other, and certainly without reference to the circumstantial aspects of the case that did not directly inform their report. The final and significant concern I have relates to the comment by Dr Ophoven, who stated that SIDS has no hereditary basis. I believe, taken together, the medical evidence is at best inconclusive, and the case against Kathleen remains purely circumstantial, based largely on coincidence.

I also disagree with the prosecutor’s criticism of Professor Hilton, the forensic pathologist who performed Sarah’s post-mortem. Hilton should absolutely not have taken the family history into account when undertaking his analysis, and if he had considered it after the post-mortem but before writing his report, I would have hoped that he would have considered both potential meanings of the family history – the prosecutor’s assertion that it meant Kathleen had murdered her children, and the alternative that Kathleen was predisposed to losing children to SIDS.

So, for me, as with Lindy Chamberlain, the ‘how + why = who’ just doesn’t stack up, at least not to the level of beyond reasonable doubt, as I certainly have my doubts that Kathleen’s guilt was proven to the required legal standard. The ‘how’ was the smothering. When we look at each death in isolation, there is no medical evidence that could not be explained by other medical conditions. The motive presented by the prosecution is problematic for me – low stress threshold. However, although I don’t agree with the Crown’s motive, the ‘why’ is not quite as
clear-cut, because I do think that Kathleen was suffering from a severe psychological post-natal disorder, either depression or psychosis. That being said, in no way does that indicate she actually harmed her children, but it does help explain the diary entries. I would be interested in a psychiatrist’s opinion on the stress brought on by killing four of your own children. Is that something that Kathleen could have coped with psychologically? Could anyone? And I also wonder why, if she had had any intention of hurting Sarah, her fourth child, on 28 August, two days before Sarah’s death, Kathleen moved her sleeping cot into the main bedroom. If we accept the Crown case that Kathleen’s intent was to smother Sarah, this action, if anything, would have made it harder for her to do this, with Craig so close by. To me, these little things just don’t make sense, as this seems to be the action of a woman wanting to keep a close eye on her child, not distance herself from it.

So I think the ‘who’ is a big problem, and I’m not the only one. It will be fascinating to see if the judicial inquiry goes forward; and it’s hard to see how it won’t when the momentum is gathering to have Kathleen’s case reviewed.

I need to be clear here: I am not saying that Kathleen Folbigg is innocent. What I am saying is that I do not believe that the evidence (including the lack of any forensic evidence that indicates that Kathleen intentionally harmed any of her children) demonstrated guilt beyond the legal criminal standard of beyond reasonable doubt. The question I would ask those involved with prosecuting her is – have we learnt nothing from the Chamberlain case?