Do we still burn witches? The petition to pardon Kathleen Folbigg over the death of her four children

Mar 24, 2021

The recent petition to the NSW Governor to pardon Mrs Kathleen Folbigg led me to read the 557 page report of the inquiry conducted into her case in 2019. What I read made me feel uncomfortable and raises a number of questions for the legal system and for all of us who are subject to it.

In May 2003, in a jury trial in the Supreme Court of New South Wales, Mrs Folbigg was found guilty of the manslaughter of her first child and the murder of her other three. She was also convicted of grievous bodily harm for an alleged unsuccessful smothering event resulting in brain damage of one of those children. She was sentenced to 40 years’ imprisonment with a non-parole period of 30 years. This was later reduced on appeal to 30 years’ imprisonment with a non-parole period of 25 years. An appeal against the conviction to the NSW Court of Criminal Appeal in 2004 failed and an application for special leave to appeal to the High Court in 2005 was refused.

In June 2015, Mrs Folbigg petitioned the NSW Governor to hold an inquiry. The basis of the petition included that at the original trial the jury was not informed that, although rare, there have been instances of three sudden infant death syndrome cases (SIDS) in the same family. The petition also claimed new evidence from an independent forensic pathologist and new material relating to the use made of Mrs Folbigg’s diary entries at trial. Three years later in August 2018, the NSW Governor established such an inquiry pursuant to the Crimes (Review and Appeal) Act 2001 Part 7 and appointed retired judge Reginald Blanch AM, QC to conduct it. The report of the inquiry was published in July 2019.

The NSW Crimes (Review and Appeal) Act 2001 Section 7 provides that petitions can be made to the Governor for review of a conviction or a sentence. If after consideration it “appears that there is a doubt or question as to the convicted person’s guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case”, three avenues are open: (a) the Governor may direct that an inquiry be conducted by a judicial officer into the conviction or sentence, or (b) the Minister may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912, or (c) the Minister may request the Court of Criminal Appeal to give an opinion on any point arising in the case. Thus the Minister (i.e. the NSW Attorney-General) has a central role in this process. Where the Governor establishes an inquiry, the report of the inquiry must be sent to the Governor. In addition, where a report recommends that a conviction should be quashed a copy is also to be sent to the Court of Criminal Appeal.

In regard to both appeals and inquiries, it should be noted that in our adversarial legal system courts and inquiries are reluctant to overturn or reject decisions arrived at by juries. There are valid reasons for such reluctance. There are also valid reasons for recognising that juries may struggle to come to grips with allegations where the evidence is based in complex science or is predominantly circumstantial.

The criminal case against Mrs Folbigg was entirely circumstantial, viz. the unexplained deaths of four children under her care over a period of 10 years plus entries in Mrs Folbigg’s diaries which were said to be inculpatory. The children died at the ages of 19 days, 8 months, 10 months and 18 months respectively. Despite detailed pathological investigations, a cause of death was never confidently established for any child.

A key legal issue at the outset of the trial was whether it was prejudicial that all four deaths be the subject of the one trial. This issue went to the High Court which refused to intervene. As a non-lawyer, it seems to me from recent developments in this case that many senior people in the legal profession will soon be asking why such a miscarriage of justice took place. It seems that the die was cast when the courts ruled that the probative value of the existence of four deaths outweighed any prejudicial effect it may have on the accused person to have these matters dealt with in a single trial.

This ruling placed Mrs Folbigg and her lawyers in an impossible position as virtually all the witnesses called by the prosecution had knowledge of the four deaths and this knowledge likely influenced their reports and their evidence. The issue of potential prejudice was raised in the report of the Blanch inquiry (p 108) but was not canvassed in any detail as the inquiry aligned itself with earlier judgements in the courts.

What is it that I read that made me uncomfortable? Here are some of my concerns and analyses.

Overall the report reads very much like a decision made on appeal, rather than an inquiry into any “doubt or question as to the convicted person’s guilt”.

In this type of inquiry, I understand that the role of counsel-assisting is to ensure that all material, favourable or unfavourable to the convicted person, is placed before the inquiry. It is not the role of counsel-assisting to prosecute the case anew against the convicted person. The report suggests that at times (e.g. p 162 and p 262) counsel-assisting may have confused these two roles.

A prejudicial tone was set early in the report (p 37) where Mrs Folbigg’s unhappy childhood experiences were emphasised. Why this information was included as being relevant is never explained.

It is not clear to me why the inquiry would favourably quote Justice Sully as finding Mrs Folbigg’s diary excerpts to be “chilling” (p 100 and p 346) and favourably quote Justice McHugh of the High Court as to the significance of the diary entries (p 346). Neither is it clear whether counsel-assisting ever addressed the inquiry on the possibility, indeed likelihood, that there are plausible innocent explanations for the material in the diaries, despite this being one element in the original petition that led to the inquiry (p 23). Much is made of Mrs Folbigg’s alleged attempts to conceal some diaries but she is given no credit for drawing the attention of the police to a new diary (pp 364,365). It was surprising that there was no discussion or consideration as to the significance of a supposed guilty person keeping diaries that are at risk of being found and may be incriminating.

The apparent attitude of the inquiry to one of the key arguments made in the original petition, viz. that the jury was not informed that there have been instances of three SIDS cases in one family is of concern. While Justice Blanch readily accepted this as fact, he went on to emphasise its rarity stating “a review of the literature indicates that repeat SIDS deaths are rare” (p 164). Thus it seemed that such rarity was to be a determinant element in his findings (p 163-4).

There are a number of examples in the report that appear to suggest the reversal of the onus of proof; i.e. Mrs Folbigg’s lawyers seemed to be repeatedly expected to provide evidence that Mrs Folbigg was innocent (see pp 121-126, 229, 241, 272, 332, 507). On p 241, para 400 reads “None of the forensic pathology or medical experts at trial excluded smothering as a possible cause of Sarah’s death” and on p 272, para 601 reads “No forensic pathologist has excluded the possibility of an unnatural cause of Laura’s death”. Such blunt statements, without any explanation that this situation applies universally in cases of SIDS, causes the report to read as if it is up to Mrs Folbigg’s lawyers to prove that she did not smother her children.

Returning to the problematic issue of combining all four deaths in one criminal trial, it is relevant to observe that the inquiry report quotes a Victorian Supreme Court judge (p 160) in 2007, conducting the trial of a woman charged with the deaths of four of her infant children, as saying “The rarity of the phenomenon of four unexpected and seemingly unexplained deaths in one family cannot, of itself, provide a cause of death”. However, the inquiry never examined the import of this comment and its relevance to Mrs Folbigg’s case. On the following page (p 161) a similar caution from an English case in 2004 seems to have been brushed aside.

The report fails to explain how the inquiry dealt with numerous character witnesses who had praise for Mrs Folbigg as a caring mother and the assessments of various doctors involved in the care of Mrs Folbigg and her children who saw only evidence of a caring mother (e.g. pp 246, 346, 363). Similar evidence given by a general practitioner at the original trial was also ignored (p 82).

The use (or misuse) of Mrs Folbigg’s extensive diaries to inculpate her as a murderer is starkly undermined where the report states (p 445) “it is true that the diary entries contained no express admissions”. Two pages later it is stated (p 447) that “it is impossible to give the diary entries any meaning other than their ordinary English meaning”, thereby intimating that the inquiry was not prepared to accept any evidence that Mrs Folbigg gave about her diary entries, and apparently ruling out any consideration of how a woman who had suffered multiple natural infant deaths might write about them.

After the inquiry proceedings closed, but before the report was finalised, a detailed submission was received on new genetic test results that showed that Mrs Folbigg and two of her four children carried an abnormal gene that had been linked to sudden deaths.  Despite weight placed earlier in the inquiry report on the absence of any genetic abnormalities (e.g. p 162), this new material was noted but was seemingly brushed aside by the comment (p 508, para 56) that “in determining cause of death the Inquiry must consider that evidence in the context of the whole of the evidence before the Inquiry”. That the “whole of the evidence” was circumstantial was conveniently ignored.

Mrs Folbigg’s lawyers have lodged a new petition, now seeking a pardon, based on these relevant new genetic research findings, which now extend to all four children, albeit of not yet established clinical significance in two.  What will happen next?  Nobody knows. The NSW Governor will presumably seek the advice of the NSW Attorney General. If a pardon is not granted, there will inevitably be a call for a Royal Commission. In the meanwhile a probably wrongly convicted mother will languish in prison.

All the above considerations lead to the following questions.  Should Mrs Folbigg have been convicted on such circumstantial evidence?  If this was indeed a miscarriage of justice, why has it happened?  Readers who recall the conviction of Mrs Lindy Chamberlain for the murder of her baby might see some similarities, especially the wilful misinterpretation of grief responses said to be abnormal, leading to media suggestions of evil mothers. Are such cases a reflection of men in power hunting for witches when something happens that is beyond their narrow comprehension?

The case might also be used to remind us that, in Australia, claims of miscarriage of justice in jury trials, after all avenues of appeal are exhausted, are notoriously difficult to draw any action. In addition, as seen in this instance, claims can take inordinate time to be dealt with.  While setting up an inquiry into such a claim is a decision eventually of the Governor of the state, the Governor acts on the advice of the Attorney-General. The Attorney-General not only sits at the pinnacle of the legal system but is a member of the government of the day and is a politician. In recognition of the problems that can arise through political considerations when reviewing claims of possible miscarriage of justice, the UK has established a Criminal Cases Review Commission, independent of politics, for this purpose.  Perhaps it is time for the state and federal governments to consider such a reform?

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