The lawyers representing Kathleen Folbigg say reasoning underpinning her 2003 conviction was erroneous and has “no place in any courtroom in Australia”.
That statement, by Folbigg’s representative Dr Robert Cavanagh on Wednesday, was a focal point among closing submissions to the inquiry into her convictions for the deaths of her four children.
The reasoning he referred to – known as ‘Meadow’s Law’ – was discredited around the time of Folbigg’s conviction, primarily for discarding the presumption of innocence inherent in the justice system by suggesting more than two unexplained child deaths in a family is automatically murder.
It has since been demonstrated that multiple unexplained deaths in a single family can be the result of shared genetic and environmental factors. This led to the release of several previously convicted women in the UK two decades ago.
Cavanagh singled out several uses of Meadow’s erroneous reasoning that occurred during the inquiry, including a passing comment just minutes prior by Peter Hastings – representing Craig Folbigg – who described the probability of four deaths in the same family as “one in a million – a billion, I think”.
Hastings described this as an application of Bayes’ theorem for calculating statistical probabilities, but it’s still the principle central to the debunked Meadow’s Law.
This is because rather than being independent events, multiple infant deaths in a single family are likely to share causes, such as the gene mutation proposed by the research into Folbigg’s DNA. Such shared characteristics would – in theory – significantly increase the likelihood of multiple infant deaths in one family.
Reasonable doubt slated by counsel assisting
Cavanagh submitted to Bathurst that Folbigg “should be believed, and there are good grounds for it found throughout the evidence”.
Those grounds were brought to the attention of presiding judicial officer Tom Bathurst KC by counsel assisting the inquiry Sophie Callan at the start of the day.
Notably, the CALM2 G114R variant possessed by Folbigg, and passed to her daughters, could lead to cardiac arrythmia, and was a reasonable explanation for Sarah and Laura’s deaths.
Myocarditis – an inflammation of heart tissue observed in post-mortem analysis of Laura’s heart by more than a dozen forensic pathologists – could also explain her death.
It was also suggested to explain the progression of epilepsy in son Patrick – diagnosed before his death – which was suggested as a reasonable explanation for an ‘acute life-threatening event’ he experienced in the weeks prior to his subsequent death.
Diaries cast doubt on conviction
“Thoughts are not facts and emotions are not intentions.”
This comment, made by psychiatrist Dr Kerri Eagle in her evidence in February, was drawn on by Callan in her summary of the expert appraisals of Folbigg’s diaries.
Specific excerpts of those entries helped to convict Folbigg in 2003. However Eagle, fellow psychiatrist Yumna Dhansay, and psychologist Patrick Sheehan, told this inquiry that Folbigg’s diary entries were unlikely to constitute admissions of guilt.
Rather, they appear to be expressions of maternal grief.
Callan described the use of diary excerpts in the original trial as having “always been based on a circumstantial case”. Bathurst, she noted, would need to weigh that in the context of all evidence when making his final report.
Callan remarked that no diary entry contained “an unequivocal or unambiguous statement” where Folbigg admits causing deliberate harm to her children leading to their deaths. Instead, the use of the diaries in the original trial, and their scrutiny since, had “always been a process of interpretation”.
“Real care”, Callan cautioned, needed to be taken when inferring what Folbigg’s written remarks meant.
Following Callan’s summary, Hastings contended the strength of the new evidence discussed during the inquiry was insufficiently established. He also drew Bathurst’s attention to the apparent lack of curiosity in Folbigg’s diaries to the cause of her children’s deaths, and comments indicating little affection for them.
Proceedings will continue for at least one more day, with representatives for Kathleen Folbigg, the NSW Director of Public Prosecutions – which will accept new evidence presented at this inquiry suggests reasonable doubt over her convictions – and forensic pathologist Dr Alan Cala, to make final submissions.
Regardless of Bathurst’s findings, the trial has already resulted in calls for law reform, with the Australian Academy of Science repeating calls for the establishment of criminal case review processes, and suggesting courts could advise the selection of independent scientific experts for judicial proceedings.