Kathleen Folbigg has had her convictions for killing her four children overturned by the New South Wales Court of Criminal Appeal.
The decision ends a 20-year battle by Folbigg, and opens the way for a compensation claim.
Outside the court in Sydney, Folbigg singled out the interpretation of her diary notes as the cause of the miscarriage of justice.
“They cherry-picked words and phrases from my journals,” Folbigg said.
“Those books contained my private feelings, which I wrote to myself. No-one expects those type of things to be read by strangers, let alone opinionated on.
“I’m grateful that updated science and genetics has given me answers as to how my children, however, even in 1999 we had legal answers to prove my innocence. They were ignored and dismissed. The system preferred to blame me, rather than accept that sometimes children do die suddenly, unexpectedly and heartbreakingly.”
Folbigg, 56, had served 20 years of a 30-year sentence until a special inquiry was opened by the previous state government at the end of 2022.
The original post-mortem reports described Sudden Infant Death Syndrome (SIDS) as the cause of death for Caleb (died aged 19 days in 1989) and Sarah (died aged 10.5 months in 1993).
Her second child Patrick, who had been diagnosed with epilepsy, was found to have died from asphyxia due to airway obstruction and epileptic fits aged 8 months in 1991, and her fourth child Laura’s death (died 1999 aged 19 months) was unexplained.
Folbigg had always protested her innocence and had sought avenues of appeal in the two decades since.
An inquiry in 2019 found no reason to overturn her convictions but an investigation into the genomes of the children during that process exposed an unusual finding – Sarah and Laura had unique mutations to genes that code for the calmodulin protein essential to the proper functioning of the heart.
On the back of further research by an international team of researchers led by Professors Carola Vinuesa, Michael Toft Overgaard and Peter Schwartz, and petitioning by the Australian Academy of Science, the NSW government opened a second inquiry in November last year.
The scientists argued the variant to the CALM2 gene – possessed by Folbigg and passed down to her daughters Sarah and Laura – would explain their deaths.
Explainer: How scientists decide which mutations in your DNA are deadly
Across most vertebrate species, the three CALM genes are highly resistant to variation, and in rare human instances, mutations lead to several cardiac diseases.
More than a mutation
While genetic discoveries triggered the second inquiry, the evaluation of other science was crucial to her convictions being overturned.
That included expert evidence provided by sitting federal parliamentarian and paediatric neurologist Dr Monique Ryan, who said the death of Folbigg’s second child Patrick should be explained by his epilepsy diagnosis.
The inqury also scrutinised Folbigg’s diaries and a debunked concept known as ‘Meadow’s Law’ closely.
“The case against me was always about my diaries and Meadow’s Law,” she said.
A group of psychologists and psychiatrists called as expert witnesses during the inquiry evaluated the Folbigg’s complete diaries – rather than single excerpts presented as evidence at her original trial – and found them to contain no admissions of guilt.
‘Meadow’s Law’ was a principle used to erroneously convict several UK women of similar crimes in the 1990s. It’s a principle that suggests more that two unexplained deaths in a single family would be murder until otherwise proven. Legal experts have often observed such a principle dismisses a person’s presumption of innocence, while scientists for years criticised its simplification of causes of death which might be due to shared environmental or genetic causes.
In his final report, Tom Bathurst KC noted “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”.
Bathurst formed a view there was a reasonable doubt as to Folbigg’s guilt based on the CALM2 mutation, Patrick’s epilepsy, the expert appraisal of her diary entries.
“I have concluded 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,” Bathurst wrote.
“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.”
In court, Chief Justice Andrew Bell found “there is now reasonable doubt as to Ms Folbigg’s guilt”.
“In these circumstances and as a consequence, it’s appropriate that Ms Folbigg’s conviction […] be quashed.”
Calls for system reform
The decision by the Court of Criminal Appeal has enabled advocates for legal reform to again call for the establishment of better legal review processes.
Folbigg had previously exhausted all legal avenues of appeal and relied on the NSW governor to grant special inquiries into her convictions as directed by the state’s attorneys general.
To provide means of reviewing evidence in such circumstances, some groups have called for a Criminal Case Review Commission, similar to those that exist in other countries. Among those advocating for change are the Australian Academy of Science.
The Academy is now calling for better ‘science-sensitive’ systems to be introduced in Australia’s legal system. In a statement released this morning, it’s seeking the introduction of reliability standards in state laws.
“As a matter of urgency, Australian jurisdictions must adopt a reliability standard to determine the admissibility of evidence,” it says.
“Until Evidence Acts across the country are amended to introduce a reliability standard, there is a significant risk that unreliable evidence will be admitted into courts. Australia remains well behind other nations in its absence of a legal reliability standard.”
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