The petition carried the signatures of 91 scientists, medical practitioners and related professionals including two Nobel laureates. ... First, they did gene sequencing on samples from all four children and Kathleen Folbigg herself. 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. Daily pp 246, 346, 363). She was sentenced to 30 years in prison with a minimum of 25 years to be served before she could be considered for parole. At her trial, Folbigg’s lawyers told the jury there were medical explanations for each death. “This was not a case in which the ... conclusion was at odds with scientific evidence,” the judges wrote of the 2019 findings. 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 petition argues that Ms Folbigg should be granted a pardon based on the significant scientific evidence of natural causes of death for her children. 24/7 coverage of breaking news and live events. A growing number of scientists say Kathleen Folbigg is the victim of a miscarriage of justice, though many others consider the deaths too tragic to … A prejudicial tone was set early in the report (p 37) where Mrs Folbigg’s unhappy childhood experiences were emphasised. Where the Governor establishes an inquiry, the report of the inquiry must be sent to the Governor. The apparent attitude of the inquiry to one of the key arguments made in the original petition, viz. 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. She raised her eyes toward the ceiling on Wednesday as she watched the three judges hand down their decision via video from prison. 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. To Kathleen Folbigg, her diaries were a close friend, a "confidant". It is not the role of counsel-assisting to prosecute the case anew against the convicted person. Kathleen Folbigg: Mother convicted of killing her four children loses appeal. 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. In 1999, Folbigg’s fourth child Laura died at 19 months old. Despite weight placed earlier in the inquiry report on the absence of any genetic abnormalities (e.g. Folbigg did not testify at her trial, but she testified for almost three days at the 2019 judicial review of her convictions based on a pathologist’s findings that the children likely died of natural causes with no sign of smothering. Folbigg, now 53, was convicted in 2003 of murdering three of her children and the manslaughter of a fourth. that the jury was not informed that there have been instances of three SIDS cases in one family is of concern. Kathleen Folbigg was convicted and jailed in 2003 for murdering her children Patrick, Sarah and Laura and for the manslaughter of Caleb. the NSW Attorney-General) has a central role in this process. In June 2015, Mrs Folbigg petitioned the NSW Governor to hold an inquiry. 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. Are such cases a reflection of men in power hunting for witches when something happens that is beyond their narrow comprehension? 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. There are valid reasons for such reluctance. Kathleen Folbigg inquiry: Serial baby killer's damning diaries Kathleen Folbigg was convicted of killing her four children Patrick, Sarah, Laura and Caleb in … Patrick suffered epilepsy and his death had been attributed to an airway obstruction due to a seizure. The Australian Academy of Science's Fellow and ANU Professor Carola Vinuesa discusses the new scientific evidence behind the petition to have convicted child killer Kathleen Folbigg freed. Weekly, China wins on points in Alaska – making a change in…, At Anchorage the Chinese drew a line telling the US…, The Australian government has now welcomed Hong Kong “pro-democracy” leaders…, Without leadership, Australia is vulnerable to…, Having sold and ceded our sovereignty to the US on…, Orwellian media manipulation: PM’s answer to…, Look over there, mate. She was also convicted of the manslaughter of her fourth child, Caleb Gibson (at age nineteen days). 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). (Not an easy task. He is not formally trained in the law but has had nineteen years’ experience of participating in and chairing medical disciplinary inquiries and eight years of participating in and chairing hearings of the Federal Administrative Appeals Tribunal. An Inquiry continues into convictions of 'baby killer' Kathleen Megan Folbigg, who was imprisoned for at least 25 years in October 2003 after being found guilty of killing her four infant children. Should we really ignore a rape…, Marise Payne and Kurt Campbell believe their own…, The Australian Government and our tame media complain continually about…. Thus it seemed that such rarity was to be a determinant element in his findings (p 163-4). Her first child Caleb was born in 1989 and died 19 days later in what a court determined to be the lesser crime of manslaughter. The New South Wales state Court of Appeal dismissed her application for a review of a judge’s ruling that “makes her guilt of these offenses even more certain.”. 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. The judge hearing the review also heard expert testimony that both girls had an inherited genetic mutation linked to abnormal heartbeats and sudden death in children and suggesting their deaths may have been triggered by infections they had at the time. 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. Should Mrs Folbigg have been convicted on such circumstantial evidence? Turn on desktop notifications for breaking stories about interest? Your contribution will fund quality independent comment and analysis in Pearls and Irritations. Who is Kathleen Folbigg? 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. Please keep your comments short and sharp and avoid entering links. If this was indeed a miscarriage of justice, why has it happened? Catch up on the developing stories making headlines. “It is deeply concerning that there is not a mechanism to appropriately weigh up all medical and scientific evidence in a case of this nature,” Australian Academy of Science president John Shine said. 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. 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. She was also convicted of the manslaughter of her fourth child, Caleb Gibson (at age nineteen days). ... First, they did gene sequencing on samples from all four children and Kathleen Folbigg herself. Kathleen Folbigg has been called Australia's worst female murderer - now scientists doubt her guilt. But signatories of the petition for a pardon disagreed. 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. CANBERRA, Australia -- A woman convicted of smothering her four children over a decade lost an appeal in a Sydney court on Wednesday against an inquiry’s conclusion that her victims had not died of natural causes. What will happen next? The case against Folbigg was circumstantial and relied on interpretations of vague entries she had made in personal diaries, one of which her estranged husband Craig Folbigg reported to police. p 162 and p 262) counsel-assisting may have confused these two roles. The NSW Governor will presumably seek the advice of the NSW Attorney General. Today the NSW Court of Appeal has dismissed Kathleen Folbigg’s appeal, which requested that the findings of the Commissioner of the 2019 inquiry be overturned. March 12, 2021. Caleb had a floppy larynx and Sarah had a congested uvula that could have obstructed their airways. In 2003, Kathleen Folbigg was sentenced to 30 years in prison after the court found her guilty of murdering her four children Kathleen Folbigg: Australia: CNN Reporter Julia Hollingsworth does an excellent job of explaining how genetics may free a woman convicted of killing her 4 babies and help other parents 'explain the unexplainable.' The deaths took place between 1989 and 1999. 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. Folbigg was convicted in 2003 of smothering her four children — Caleb, Patrick, Sarah and Laura — over a 10-year period from 1989 to 1999. 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. However, the inquiry never examined the import of this comment and its relevance to Mrs Folbigg’s case. Their report, published in the European Heart Journal in 2019, makes disturbing reading. 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. 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. There are a number of examples in the report that appear to suggest the reversal of the onus of proof; i.e. “Many international eyes are now on this case and there’re many more Australians rightly asking why Kath’s still in prison after 18 years when there’s mounting scientific evidence relating to her innocence,” the statement added. The trial of Kathleen Folbigg (Folbigg v The Queen [2005] HCA Trans 657 (2 September 2005)) In 2003, a jury in the New South Wales Supreme Court tried Kathleen Megan Folbigg for the deaths of her four children over a 10-year period (Caleb, aged 19 days in 1989; Patrick, aged 8 months in 1991; Sarah, aged 10.5 months in 1993; and Laura, aged 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. 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. Thus the Minister (i.e. The New South Wales state Court of Appeal dismissed Kathleen Folbigg's application for a review of a judge's ruling that "makes her guilt of these offences even more certain". (AP) world news Australian mom convicted of … A growing number of scientists say Kathleen Folbigg is the victim of a miscarriage of justice, though many others consider the series of deaths too tragic to be bad luck alone. A growing number of scientists say Kathleen Folbigg is the victim of a miscarriage of justice, though many others consider the series of deaths too tragic to be bad luck alone. The other two were recorded as Sudden Infant Death Syndrome, or SIDS. Read more 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. 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”. 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. Penelope Pelecas. The criminal case against Mrs Folbigg was entirely circumstantial, viz. Top scientists call for convicted child killer Kathleen Folbigg’s release. The report suggests that at times (e.g. Kerry Breen AM is a retired physician and gastroenterologist and past President of the Medical Practitioners Board of Victoria. Folbigg’s convictions would still stand, but she would be released. Her second child Patrick was 8 months old when he died in 1991. He is a co-author of Good Medical Practice: Professionalism, Ethics and Law, published in 2016 (4th ed). 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. ), How often? This was later reduced on appeal to 30 years’ imprisonment with a non-parole period of 25 years. Kathleen Megan Folbigg (née Donovan) (born 14 June 1967) is an Australian who was convicted of murdering her three infant children, Patrick Allen (at age eight months), Sarah Kathleen (at age ten months) and Laura Elizabeth (at age nineteen months). “Today’s decision and the pardon petition have got many more people looking at this important case than ever before, and many people are starting to ask valuable questions about how we got here,” Tracy Chapman said in a statement written in consultation with Folbigg, her friend. Kathleen Folbigg appears via video link during a convictions inquiry at the New South Wales Coroner's Court, in Sydney, on May 1, 2019. Kathleen Folbigg kept diaries which made up part of the evidence that led to her conviction in 2003. Credit: Dean Lewins/AAP. The entries included: “Obviously, I am my father’s daughter,” a reference to her father stabbing her mother to death in 1968 when Folbigg was 18 months old. Before a judicial inquiry into her case was announced, Kathleen Folbigg spoke publicly for the first time to Australian Story and gave an explanation for her incriminating diary entries. 1. Despite detailed pathological investigations, a cause of death was never confidently established for any child. Kathleen Folbigg is in jail for killing her children as infants between 1990 and 1999. By Quentin McDermott-Sydney. 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. 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. “There is now an alternative explanation for the death of the Folbigg children that does not rely on circumstantial evidence,” Shine added. Kathleen Folbigg, pictured after a court hearing in 2004 Imagine for a moment what it must feel like if, as a mother, you give birth to four children, one after another, each of whom, as infants, dies from natural causes over a 10-year period. (Please note that we are unable to post comments on your behalf. If a pardon is not granted, there will inevitably be a call for a Royal Commission. Statement from Australian Academy of Science – Kathleen Folbigg There are medical and scientific explanations for the death of each of Kathleen Folbigg’s children. But given the deaths of her three siblings, a pathologist listed the cause of her death as “undetermined.”. That the “whole of the evidence” was circumstantial was conveniently ignored. 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”. Her lawyers said in a statement the court loss should not impact the pardon application. 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. On the following page (p 161) a similar caution from an English case in 2004 seems to have been brushed aside. The case of Kathleen Folbigg has become a contest between cutting-edge science and an Australian court system that sometimes ignores it. The three appeal court judges found there was ample evidence for the 2019 inquiry to conclude Folbigg was guilty. 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. 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). The report of the inquiry was published in July 2019. She was also convicted of grievous bodily harm for an alleged unsuccessful smothering event resulting in brain damage of one of those children. She has consistently denied guilt. Last year, the findings of 27 scientists describing the genetic mutation in the Folbigg girls and its functional validation were published by Oxford University Press in the peer-reviewed cardiology journal Europace. Nobody knows. https://www.bbc.com-image copyright Fairfax Media/Getty Images. The Australian Academy of Science's Fellow and ANU Professor Carola Vinuesa discusses the new scientific evidence behind the petition to have convicted child killer Kathleen Folbigg freed. In addition, as seen in this instance, claims can take inordinate time to be dealt with. Perhaps it is time for the state and federal governments to consider such a reform? Here are some of my concerns and analyses. Her last hope of early release now lies with a petition for a pardon lodged this month with the state governor. 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”. Kathleen Folbigg: Could science free Australian jailed for killing babies? The children died at the ages of 19 days, 8 months, 10 months and 18 months respectively. This issue went to the High Court which refused to intervene. 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. 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. 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). Folbigg was the first on the scene of each tragedy. Kathleen Folbigg in 2019. For questions regarding our comment system please click here. 0. Similar evidence given by a general practitioner at the original trial was also ignored (p 82). An autopsy found Laura had myocarditis, an inflammation of heart muscle that can be fatal. 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). She was sentenced to 40 years’ imprisonment with a non-parole period of 30 years. This week the convicted child killer spoke in a courtroom about her notorious journal entries for the first time. Kathleen Folbigg was convicted of killing her four children, including Laura (pictured). Two years later, Sarah died aged 10 months. Mar 04, 2021. 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”. The children died at the ages of 19 days, 8 months, 10 months and 18 months respectively. Folbigg didn’t confess, there was no obvious motive, and no one claimed to have seen her murder her children. A woman convicted of smothering her four children has lost an appeal in a Sydney court against an inquiry’s decision that her victims had not died of natural causes. 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). The criminal case against Mrs Folbigg was entirely circumstantial, viz. Their report, published in the European Heart Journal in 2019, makes disturbing reading. 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. All the above considerations lead to the following questions. 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”. 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. Why this information was included as being relevant is never explained. Folbigg, 53, was arrested in 2003 following a seven-week trial in which she was convicted of smothering her four children — Caleb, Patrick, Sarah and Elizabeth — over a ten-year period during moments of frustration. Kathleen Megan Folbigg (née Donovan) (born 14 June 1967) is an Australian who was convicted of murdering her three infant children, Patrick Allen (at age eight months), Sarah Kathleen (at age ten months) and Laura Elizabeth (at age nineteen months). The deaths took place between 1989 and 1999. What is it that I read that made me uncomfortable? None of Folbigg’s children survived to a second birthday. 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. 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