The wrongful conviction of Kathleen Folbigg: why did it happen and what must be done to stop it from happening again?

Jun 13, 2023
In this image made from video, Kathleen Folbigg reacts the day after her release from prison in Coffs Barbour, Australia, Tuesday, June 6, 2023. Folbigg, who spent 20 years in prison was pardoned and released Monday June 5, 2023, based on new scientific evidence that her four children died by natural causes as she had insisted. Image: AAP/Pool via AP

It is 41 years since Lindy Chamberlain was convicted for a non-existent crime, spent nearly five years in prison, and had her family life destroyed.

In 2003, Kathleen Folbigg was convicted for the manslaughter of the first of her four young children, Caleb, for the grievous bodily harm of the second, Patrick, and for the murder of Patrick, Sarah and Laura. She has spent the 20 years since in prison. It is now clear that at least two and probably three of her children died of natural causes and there is no reason to suspect that the remaining child was killed. The second Inquiry into her convictions has concluded that reasonable doubt exists in each of those five convictions. As a result the NSW Governor, on the advice of the NSW Attorney-General, has pardoned Mrs Folbigg and she has been released from prison. Retired NSW Chief Justice Tom Bathurst, who conducted this latest review, will release his full report in the coming weeks, including his detailed analysis and reasons, and whether the cases should be referred to the Court of Criminal Appeal for consideration of having her convictions quashed.

Kathleen Folbigg’s case tells us that the problems in our criminal justice system that can lead to wrongful convictions have not been sufficiently addressed since the Chamberlain case. Many of the factors leading to these two women being wrongly convicted are still present. In addition the processes of the system when doubts are raised about convictions are slow, difficult to access and ineffectual. Australia appears to have a criminal justice system that is resistant to learning from its mistakes.

At least three questions arise from the recognition of the wrongful conviction of Kathleen Folbigg. Why did the justice system let her down so badly? Why did it take so long to identify that the evidence against her should never have resulted in a guilty verdict? And what lessons must our criminal justice system learn from this truly shocking case? In particular, the justice system must not avoid the vital need for reform by seeking to explain the Folbigg decision solely on the absence of genetic evidence in 2003.

First, what went wrong for Kathleen Folbigg?

We suggest that there were at least five factors that worked against Folbigg. These included tunnel vision on the part of the investigating police and the office of the public prosecutor; the lingering impact of the so-called Meadow’s law; the refusal of the High Court to examine a request that each child’s death be the subject of separate trials; the misuse of coincidence evidence; and the impact of a zealous prosecutor who was not sufficiently restrained by the court in what he put to the jury.

Tunnel vision (also known as confirmation bias) is the well-recognised risk of investigators focussing on a particular suspicion and then directing all subsequent efforts to confirm that suspicion, ignoring any evidence to the contrary. Tunnel vision is mostly subconscious so it is difficult to guard against. If a suspicion is shared with other investigators, the independent assessment of any evidence by those investigators may be compromised. As with the rest of us who are also at risk of confirmation bias, police and prosecutors are not immune.

In Folbigg’s case it seems that once the possibility was raised that her children had been deliberately suffocated, all subsequent investigations were directed at confirming this suspicion. Tunnel vision may also have been in play in the first Inquiry – the 2019 Blanch review – as evidence from her friends and from doctors who had seen her with her children, evidence consistent with Kathleen Folbigg being a caring mother, was given no weight. That Inquiry also chose to ignore newly emerging genetic findings.

The so-called ‘Meadow’s law’ was an erroneous concept widely misused in the UK until the early 2000s. The principle stated that one cot death was a tragedy, two cot deaths in a family were inherently suspicious and three cot deaths suggested murder. The concept originated in the USA with a publication by DiMaio and was taken up and publicised by UK paediatrician Professor Sir Roy Meadow. This ‘principle’ has since been recognised as nothing more than an unfounded assertion, with mounting evidence to the contrary, and Meadow’s reputation as a result has been greatly diminished. However, for a time, the principle was attractive to investigators, including forensic pathologists and prosecutors. It almost certainly influenced the attitude of investigators and the prosecutor in Folbigg’s case.

Partly in recognition of the potential adverse impact of Meadow’s law, Folbigg’s lawyers sought to have separate trials in relation to each charge of murder. This approach was rejected by the NSW Supreme Court and an appeal to the High Court was denied. We suggest that the cards were stacked against Kathleen Folbigg by the refusal of the High Court to examine the issues. As a result, it is likely that every expert witness who gave evidence at her trial in 2003 would have been aware that four young children had died in unexplained circumstances and would have been consciously or unconsciously biased by their knowledge of how unusual this was. Many would also have been aware of Meadow’s law but not yet aware of how badly misleading this concept was.

Coincidence evidence is evidence which uses the improbability of two or more events occurring coincidentally to prove that a person performed a certain act. We suggest that coincidence evidence was misused in Folbigg’s trial where the following similarities were relied upon: all of the deaths were sudden and unexpected; all occurred at home; all occurred during a sleep period; all occurred while each child was in a bed/cot/bassinet; all occurred while the child was in the care of Folbigg; and all were discovered dead or moribund by her. This list is riddled with similarities which overlap with each other. Sudden death implies unexpectedness. If you die during a sleep period, then the chances are you will be in a cot or bed! If you are an infant, then the chances are you will be in the care of your mother (especially if the parents have made an agreement to this effect as Kathleen and her husband had). The genetic evidence in this case now exposes the frailties of the coincidence evidence. Not only were the similarities not independent of each other (and therefore did not disprove coincidence), in our view they should not have been used to favour homicide over natural death.

The role of any criminal prosecutor is to place all the relevant evidence before the court in an even-handed manner. As former High Court Justice Michael Kirby wrote in 2002 “It is one of the great traditions of our legal system, which we must be at pains to preserve, that the prosecutor is not a persecutor”. Compare that statement of the duty of a prosecutor with this excerpt from the final submission of the prosecutor in the Folbigg trial:

I can’t disprove any of that, but one day some piglets might be born from a sow, and the piglets might come out of the sow with wings on their back, and the next morning Farmer Joe might look out the kitchen window and see these piglets flying out of his farm. I can’t disprove that either. I can’t disprove that one day some piglets might be born with wings and that they might fly. Is that a reasonable doubt? No. Is the hypothesis that the defence advances a reasonable doubt? No. Why not? Because if you look at what they are suggesting, not in isolation, but in totality: There has never ever been before in the history of medicine that our experts have been able to find any case like this. It is preposterous. It is not a reasonable doubt. It is a fantasy, and of course the Crown does not have to disprove a fanciful idea.’

How much this language influenced the jury will never be known.

Why did it take so long to get it right?

Following her conviction, under the system of appeals in place in NSW then (and still in place today), once the High Court had refused to intervene (in 2005), Kathleen Folbigg had exhausted her appeals. There was only one other avenue of review which was to petition the Governor of New South Wales to conduct an inquiry. To have any chance of the petition succeeding, her lawyers had to find significant new exculpatory evidence or new interpretations of previous evidence. This is an expensive and time-consuming task but eventually in 2015, her pro bono legal team had assembled such material and were in a position to petition the Governor.

The basis of the petition included that: (a) at her trial the jury had not been informed of known instances of three cot deaths in the one family; (b) a review of the forensic pathology evidence (undertaken by one of the authors, SC) raised the likelihood of an alternative natural cause of death in one child and clarified the natural causes of death in another; and (c) there were new and better interpretations of Kathleen Folbigg’s diaries. Although the petition was to the Governor, it was the role of the NSW Attorney-General, an elected politician, to advise the Governor whether an inquiry was warranted. It took over three years for the Attorney-General to decide.

The inquiry was held and reported in July 2019. Readers can find an analysis of the findings of this inquiry posted on Pearls and Irritations in May 2021. The opportunity to examine all the evidence dispassionately and with an open mind seems to have been missed by that inquiry. Worse, when provided with the first tranche of the genetic research that has now raised serious doubts about Kathleen Folbigg’s guilt, the inquiry brushed it aside. It effectively declared that the new genetic evidence did not outweigh the other evidence before the inquiry, particularly the evidence in Folbigg’s diaries. That inquiry declared “it is impossible to give the diary entries any meaning other than their ordinary English meaning”, closing off psychological interpretations consistent with innocence.

Kathleen Folbigg’s diary entries were full of grief and guilt as might be expected from a parent whose children have tragically died. However in her trial some of her expressions were taken inappropriately to be admissions of guilt, rather than feelings of guilt at not being able to prevent her children’s deaths.

As the genetic evidence accumulated, Kathleen Folbigg’s lawyers lodged a new petition in March 2021. This time the Attorney- General took only fourteen months to make a decision to hold a new inquiry which began in November 2022 and resulted in the finding of reasonable doubt in all five of Mrs Folbigg’s convictions and a pardon.

What lessons must our criminal justice system learn?

No apology or financial compensation can repair the harm done to Kathleen Folbigg from the ordeal that she has suffered. Neither can she be restored to her former situation. Having suffered the loss of her children, she then had to endure being accused of their murder and spend two decades in prison for this wrongful conviction. However, she may feel some sense of reparation if the criminal justice system collectively and wholeheartedly embraces and insists on one simple but major reform. We refer to the establishment of a Criminal Cases Review Commission (CCRC) as has been in place in the UK for over 20 years.

For readers unfamiliar with the concept, a CCRC replaces the ultimate option of an appeal to the head of state to exercise the government’s prerogative of mercy. In effect it replaces the politicised role of the Attorney- General with a thorough independent review of criminal convictions in situations where sufficient doubt is raised about the safety of a conviction.

Commissions are now in place in England, Wales and Northern Ireland, Scotland, New Zealand and Norway. Canada also recently decided to establish one. Thus there are several models that can be studied to ensure the best possible design of an Australian CCRC. Hopefully our attorneys-general will agree that we must have a single national CCRC and not eight separate commissions. For two decades, numerous senior Australian lawyers have called for a CCRC, so far without success. We sincerely hope that the unacceptable ordeal of Kathleen Folbigg will be the catalyst for action at last.

Some final observations

As mentioned above, it will be tempting for some to defend the 2003 trial findings on the basis that the genetic evidence was not then available. The new genetic studies crystallised the evidence against her guilt, making this clear to everyone. However, it is our contention that Kathleen Folbigg should not have been convicted even in the absence of this evidence. A foundational feature of the modern common law is the presumption of innocence, meaning that every essential element of the alleged crime must be proved by the prosecutor beyond reasonable doubt. Nevertheless, the trial proceeded on the basis of the now thoroughly discredited ‘Meadow’s law’, which effectively (and impermissibly) reversed the onus of proof – indeed five of the Crown’s expert witnesses explicitly argued that in the case of multiple cot deaths, it was murder until proven otherwise.

The presumption of innocence should have meant that the prosecution had to prove beyond reasonable doubt that an act of the accused caused the death of each of the four children, yet there was no medical or physical evidence of smothering or suffocation – this was merely asserted and then assumed. Similarly, the significant misinterpretation of Folbigg’s diaries was allowed to substitute for proof beyond reasonable doubt that she intended to kill her children. Finally, the requirement of a single trial (rather than four separate trials) resulted in an undue emphasis given to coincidence and tendency evidence, especially when combined with ‘Meadow’s law’. All of which added up to a grave miscarriage of justice, even before the subsequent genetic evidence further called Folbigg’s convictions into doubt.

While the pardon has resulted in Mrs Folbigg’s release from prison, we have to await the Bathurst report to see what steps will be advised to have the wrongful convictions quashed. In addition the NSW Government will have to address the issue of adequate compensation.

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