Pearls and Irritations

The NSW Court of Criminal Appeal has adopted the findings of the inquiry of the Honorable Thomas Bathurst AC KC into the convictions of Ms Kathleen Folbigg. As a result, her five criminal convictions from 2003 have been quashed and she has been acquitted.

Notably Bathurst found ‘that there is an identifiable cause of the death of Patrick, Sarah and Laura, and that it was more likely that Patrick’s ALTE (acute life-threatening event) was caused by a neurogenetic disorder rather than suffocation. Once that conclusion is reached, any probative force of the coincidence and tendency evidence is substantially diminished. Further, I have concluded that the relationship Ms Folbigg had with her children does not support the inference that she killed them. Finally, I do not regard the diaries as containing reliable admissions of guilt’ (para 1975).

The Court of Appeal highlighted ‘the substantial and extensive body of new scientific evidence …which diminished any probative force of what had been relied upon at the original trial as powerful coincidence and tendency evidence…Secondly… we agree with Mr Bathurst’s conclusion that the diary entries were not reliable admissions of guilt’ (paras 26 and 27). However, the Court of Appeal judgement records that ‘the verdicts at trial were reasonably open on the evidence then available’ (para 28). If this comment means that the Court of Appeal believes that it was reasonable to conclude in 2003 that Ms Folbigg was guilty, we respectfully suggest the Court is mistaken.

Neither the Court of Appeal nor the Bathurst inquiry address the crucial question as to why these wrongful convictions occurred in the first place. However, within Bathurst’s well-structured and lucid 415-page report there are many hints at where and how the original trial in 2003, the appeals, and the 2019 inquiry, went astray – and went astray in ways which should have been apparent from the beginning, well before the new genetic evidence surfaced.

The following factors are drawn from Bathurst’s report. While we regard these as indicators of where the trial and the subsequent proceedings miscarried, we do not wish to imply that Bathurst’s intention was to criticise the trial, the appeals or the first inquiry. He simply identified specifically where and why he came to different conclusions, having received much of the same evidence.

The impact of ‘Meadow’s Law’: Sir Roy Meadow is a UK paediatrician whose misleading declaration that ‘one cot death was a tragedy, two cot deaths were suspicious and three cot deaths were murder until proven otherwise’ was yet to be debunked at the time of Ms Folbigg’s trial in 2003. Bathurst identifies a number of instances where expert witnesses at the trial appeared to espouse this ‘law’ (paras 331,357,366).

At para 1894 Bathurst states: ‘… it must be borne in mind that the mere fact of four unexplained infant deaths does not, in the absence of any evidence to the contrary, establish murder. To reach that conclusion would be to apply the now discredited Meadow’s Law and, on one view, reverse the onus of proof. Although the Crown did not directly rely upon Meadow’s Law, Professor Berry at least implicitly adopted it. Professor Herdson explicitly did so in his evidence.’

Meadow’s Law is based on the fallacy that since one sudden unexplained death in infancy is very uncommon, a second in the same family is exceedingly uncommon and a third is so extremely rare that murder becomes the obvious explanation. No one thought to ask the parallel question: how common are three (or in Ms Folbigg’s case, four) murders in one family where there are no observable injuries? We suggest at least as extremely rare as three or four unexplained deaths. This being so, the alleged criminal significance of the rarity of multiple natural infant deaths in one family is neutralised.

It is our view, and we suspect Bathurst might agree, that the prosecution, the defence and the judge (as well as all subsequent appeal court judges and the first inquiry) failed to critically assess, and uncritically accepted, the assumption that four deaths without specific causes must be homicides. There is no sense anywhere in the trial that the prosecution, defence, or the judge questioned this assumption. While it is true that the medical evidence followed the same assumption, this was an assumption that was not defined by special knowledge – its fallacy was accessible to anyone with common legal sense. This was a serious failing of the trial. It is one thing to say that the guilty verdicts were reasonably open to the jury on the evidence then available; it is a much more helpful thing to say that the prosecution, trial, and subsequent legal proceedings all failed to recognise what was there to be seen – a dangerous assumption which with quite simple logic could be seen to be wrong.

Coincidence evidence: The prosecutor at the trial relied heavily on ten coincidences surrounding the deaths of Ms Folbigg’s four children claiming they could only be explained by Ms Folbigg’s guilt. These coincidences were that the deaths all occurred suddenly, unexpectedly, at home, during the child’s sleep period, when the child was in a bed (or a cot or bassinet), when Ms Folbigg was the only adult at home or awake; the children were all discovered dead or moribund by their mother, during normal checks on the well-being of the children in the course of their sleep period (three of them on her way from the toilet), at around or shortly after their death when they were still warm to the touch; and in relation to four of the five events she failed to render any assistance at all to them after discovering them dead or moribund to the extent she did not even lift them up out of their beds.

 As we have noted here recently, these so-called coincidences were equally likely whether the deaths were natural or caused by smothering. They were a logical outcome of the primary carer finding the dead child and reporting the death, whatever the cause. Bathurst is clearly critical of the prosecutor’s reliance on this coincidence evidence and sets this out (paras 133-141) without seeming to rely on the later genetic evidence.

This particular use of coincidence evidence is a glaring example of confirmation bias.

We have written elsewhere about confirmation bias as we recognise this is an important factor underpinning many wrongful convictions. The coincidence evidence was the prosecutorial device which aggravated the medical experts’ implicit approval of Meadow’s Law.

The language of the prosecutor: Separate to the coincidence evidence itself was how it was used by the prosecutor. Bathurst in his report specifically identified the use of an analogy of the four children’s deaths as being as unlikely as a person being struck by lightning four times (para 136). He could easily have added, but did not, the ‘pig’s might fly’ metaphor that was also used by the prosecutor. Bathurst referred to these prosecutorial metaphors as ‘rhetorical flourishes’, emphasising that they would not influence him. He was silent on the likely influence of such language on the jury but does hint that the language was inappropriate (para 141). These metaphors also suggest that the prosecution itself was deeply influenced by Meadow’s Law.

Police influence on the evidence of Mr Folbigg: Bathurst records that Mr Folbigg said that attempts were made by the police to convince him that his wife may have harmed their children (para 206) and therefore to change his evidence, thus bolstering the police case.

The interpretation of Ms Folbigg’s diaries: The Bathurst report devotes 34 pages to the evidence he received about the diaries and 10 pages to an analysis of that evidence. Bathurst expressly states ‘It is necessary to confront the fact that the Court of Criminal Appeal at Ms Folbigg’s appeal had no hesitation in considering that the entries constituted admissions, and the 2019 Inquiry reached the same conclusion, expressly rejecting Ms Folbigg’s evidence concerning the entries’ (para 1910).

In essence Bathurst advised that he had reached a different conclusion (about the diaries) because of the ‘psychological and psychiatric evidence which is now before me’ and which was not available at the trial or the appeals, and, in relation to the diaries, was not sought by the Blanch inquiry. Thus, Bathurst wrote ‘In these circumstances, taking into account the possible reasonable explanations for the deaths of three of the children, considering the entries said to constitute admissions of guilt in the context of the diaries as a whole, and taking into account the significant psychiatric and psychological evidence, I am unable to accept that any of the diary entries contain reliable admissions of the guilt of Ms Folbigg’ (para 1958).

There is no comment as to why psychological and psychiatric evidence (in relation to interpretation of the diaries) was not adduced at the original trial nor the first inquiry. We understand that in 2003 there existed an extensive literature on the psychological impact of sudden infant deaths and that self-blame and feelings of guilt were commonly reported among bereaved mothers. We do not say that forensic decisions made by the defence were wrong – we tremble at the thought of some decisions that defence counsel have to make. But if such evidence could have been given in 2003, its absence is clearly a failing of the overall trial process. In relation to the assessment of the diaries at the first inquiry,Justice Blanch repeatedly asserted the impossibility of giving the diaries anything other than their ‘ordinary English meaning’(paras 472, 475, 492, 493). Thus, expert evidence on the proper way to assess the content of the diaries was also ignored at the first inquiry. Again, we recognise that it was not part of Bathurst’s task to comment upon or explain the absence of such evidence at the trial or the first inquiry. We make the point only to support our view that neither the Bathurst report, as thorough and compelling as it is, nor the Court of Appeal decision, should be the end of this saga.

At present, it is tempting for the justice system to conclude that, since the relevant genetic testing was not available in 2003, all was well with the Folbigg trial. We suggest that this interpretation is seriously misplaced. Specific causes of death were available in 2003 for two of the Folbigg children (i.e: Patrick’s encephalopathic state and Laura’s myocarditis). The pernicious influence of Meadow’s Law did not cease with the prohibition of any reference to its claims at the trial. The false assumption at its heart should not have been so readily accepted by the expert witnesses and could have been identified by the application of the sort of logic which is second nature to our best lawyers. Bathurst also identified the misuse of coincidence evidence and drew attention to the prosecutor’s ‘rhetorical flourishes’. The failure to seek and/or admit psychological evidence in relation to the diaries at both the trial and the first inquiry and its uncontested inclusion in the recent inquiry is baffling. Research into the thinking of juries is generally not permitted in Australia; hence one is left to guess at what factors were in mind when the jury wrongly found Ms Folbigg guilty. The foregoing analysis takes no account of Jeremy Gans’ searing view of the significance of the outside research undertaken by a jury member during the Folbigg trial which was passed on to the other jury members.

The wrongful conviction of Kathleen Folbigg represents a serious failure of Australia’s criminal justice system. It demands a thorough inquiry as to why the jury was led to this wrong decision. Such an inquiry must also address how such decisions can be prevented and how wrongfully convicted people can more readily have their claims dealt with. Many similar legal systems have addressed this by creating criminal case review commissions commissions (CCRCs). How much longer do we have to wait for a CCRC in Australia?

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