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Is Kathleen Folbigg an innocent victim of SIDS?

By Bernie Matthews - posted Friday, 10 December 2004


Shortly after 10am on Friday November 26, 2004 a hush descended over the packed courtroom 13A at Sydney Supreme Court when 3 ermine-robed judges entered the room. Justices Brian Sully, Peter Hidden and John Dunford were assigned to hear legal argument in the appeal hearing of Kathleen Megan Folbigg against conviction and 40-year sentence for the deaths of her 4 children.

The three judges faced an onerous task in legally deciding whether Kathleen Folbigg was Australia’s worst child serial killer as depicted by the Sydney media or if she was an innocent mother wrongfully imprisoned for crimes she had not committed? It seemed ironical that 20 years ago a similar murder trial was played out in the Northern Territory with the same media onslaught that crucified Lindy Chamberlain for the death of baby Azaria. Was history repeating itself?

I looked around the packed courtroom and tried to read the faces. Were they there to see justice done or were they just spectators witnessing the closing chapter of a woman’s life who was destined to die inside a NSW prison? A woman confined in protective custody and isolated to a cell 23 hours each day for fear that other prisoners would kill her because she was a "rock spider" - a child killer.

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Was Kathleen Folbigg the callous killer portrayed by the prosecution and deserving of the punishment?  Or was it possible that the Folbigg children had died from Sudden Infant Death Syndrome (SIDS) as she claimed throughout her trial? The damning expert medical testimony delivered at the trial relied upon statistical evidence to convince the jury that it was an impossible one in a trillion chance for four SIDs related deaths to occur in the one family. It was a compelling argument that hammered a final nail into Kathleen Folbigg’s legal coffin.    

The soft spoken voice of David Jackson QC, the lawyer assigned to challenge Folbigg’s conviction and sentence, shattered my contemplative mood when he began his legal address to the presiding judges.

Jackson argued that Folbigg’s trial had been disadvantaged because all the indictments were heard together in one trial and there should have been separate trials for each death. Having the four murder indictments heard together made it easier for the jury to deliver a guilty verdict, because the similarities between each death made it less likely for a jury to consider the possibility of SIDS, as Folbigg had claimed in her defence.

“You don’t submit the evidence of the other deaths was inadmissible as coincidence evidence?” Justice Dunford asked from the Bench.

“Well, we do Your Honour,” Mr Jackson replied.

Crown Prosecutor Michael Sexton, SC, countered that argument by claiming once it was ruled that evidence of each death could be used in the trial of their siblings there was no point in having separate trials for each child’s death.

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As the verbal cut and thrust of legal argument was parried back and forth in the packed courtroom Jackson referred to the statistical evidence offered by medical experts in the British case of Angela Cannings. My instinct told me that another dimension to the Folbigg case had just developed. I looked over at the media bench to see if any other journalist had picked up on the significance of the Cannings case. My inquisitiveness was met with blank stares. There was no flurried notebook scribbling. Mention of the Cannings case and its significance to Australian jurisprudence had faded into obscurity inside courtroom 13A.

Angela Cannings, 40, a former shop assistant from Wiltshire, England, was jailed for life on April 16, 2002 for the murder of 7-week-old Jason in 1991 and 18-week-old Matthew in 1999.

Like Kathleen Folbigg, Angela Cannings denied murdering the boys, claiming they were victims of SIDS. Her subsequent appeal was based on several factors but principally that the expert evidence relating to SIDS was misleading. The British Court of Criminal Appeal agreed and overturned her conviction on December 10, 2003 and she was set free.
 
When Ms Cannings was convicted, the jury was told that the deaths of her children could not have been caused by a genetic defect because there was no evidence of other infant deaths in her close relatives. It was later revealed that her great-grandmother and grandmother had also lost babies in unexplained circumstances. SIDS was also recorded as the cause of death after Ms Cannings' first child, Gemma, died at the age of 13 weeks in 1989.

Angela Cannings' legal appeal was based on several factors but principally that the expert medical testimony and statistical evidence of Professor Sir Roy Meadow was misleading.

Michael Mansfield QC argued that, were the trial to take place now, "it is unlikely the Crown would call Professor Meadow as a witness, or, if they did, it would have to be done with a health warning attached to it".

Angela Cannings' appeal was the third in a series of high-profile British cases involving infant deaths where prosecutors relied on statistical medical evidence from scientific experts to convince juries to convict. She joined two other British women also freed after being accused of killing their children.

Sally Clark, 38, had been jailed for life for murdering her two baby sons but was cleared by the British Court of Criminal Appeal in January 2003. A June 2003 jury at Reading Crown Court also cleared 35-year-old pharmacist, Trupti Patel, of murdering her three babies.

The three judges from the British Court of Criminal Appeal that decided Sally Clark’s conviction was unsafe, took the unusual step of revealing full details of why her convictions were quashed.

Mrs Clark, who had always protested her innocence, was convicted of the murders in November 1999 at Chester Crown Court. She was accused of killing her 11-week-old son Christopher in December 1996 and 8-week-old Harry in January 1998 at the home she shared with her husband Steve in Wilmslow, Cheshire.

Lord Justice Kay, giving the court's reasons for overturning her conviction, said the Crown had taken the "right and proper course" not to seek a retrial. The judge said, "We would have taken a great deal of persuading that on the state of the evidence as we now know it to be, any jury could properly have been sure that either or both of these children were murdered".

Lord Justice Kay, sitting with Mr Justice Holland and Mrs Justice Hallett, added, "When the medical evidence is as divided as it is in this case, it seems to us that it would in all probability be impossible, even if the case was reheard, to reach a conclusion with the required degree of certainty about this matter".

The Clark, Patel and Cannings cases have drawn the legal spotlight to SIDS and infanticide in Britain.

All three cot death cases have highlighted the difficulties for police investigating the sudden and unexpected deaths of infants. The trials have also highlighted one of the main obstacles to proving a case against a mother accused of killing her own babies - that of motive.

Donna Anthony, of Yeovil, Somerset, was 25 when she was given 2 life sentences in 1998 for murdering her daughter and son.  She has always claimed that her children were victims of cot death but an appeal to quash the convictions was unsuccessful in June 2002. Sir Roy Meadow was also an expert witness in the case against her. Donna Anthony has been in a Durham jail for the last five-and-a-half years. She is now seeking a re-investigation of her case.

In Australia, Kathleen Folbigg steadfastly maintains her innocence while her murder convictions continue to ignite speculation about what causes mothers to kill their own children. It is the inherent danger of miscarried justice that continues to exist while mystery and uncertainty surrounds SIDS and its possible causes. Those inherent dangers are compounded if unexplained infant deaths result with authorities wrongly targeting innocent mothers who have lost children to SIDS, as evidenced by the recent British cases.

The Crown successfully argued that Folbigg suffocated her four babies over a ten-year period because she had a low threshold to stress and had resented their intrusion into her life despite any conclusive evidence to support that theory. Crown Prosecutor Tedeschi told the jury that Folbigg smothered her babies "in a flash of anger, hatred and resentment".

Folbigg’s defence team retaliated to those accusations by claiming that 19-day-old Caleb, 8-month-old Patrick, 10-month-old Sarah and 19-month-old Laura all died from SIDS. They argued Caleb died from a floppy larynx, Patrick an epileptic fit, Sarah an inflamed uvula and Laura died of the heart disease myocarditis. A panel of international experts disagreed and unanimously testified they had never heard of four children in the same family dying of SIDS. It was claimed the odds occurring within the same family was a staggering one in one trillion.

Despite the statistical evidence that helped convict Kathleen Folbigg the disturbing similarity that emerged between the Clark, Patel and Cannings cases is also present in the Folbigg case. That evidence coincides with the prospective re-opening of 258 similar cases of infanticide in Britain.

The three eminent judges of the NSW Supreme Court have an onerous task during their deliberations over the Folbigg appeal. Is Kathleen Folbigg Australia’s worst serial killer of children? Or is she an innocent mother torn between expert opinions, the uncertainty of SIDS and a criminal justice system that may have wrongfully imprisoned her for crimes she never committed? 

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About the Author

Bernie Matthews is a convicted bank robber and prison escapee who has served time for armed robbery and prison escapes in NSW (1969-1980) and Queensland (1996-2000). He is now a journalist. He is the author of Intractable published by Pan Macmillan in November 2006.

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