Freedom for Kathleen Folbigg achieved after a near-20year-long fight by friends, lawyers and scientists
In the end, like so many tragedies, a saga that spanned decades and inflicted so much grief was suddenly over. Kathleen Folbigg was free.
In the end, like so many tragedies, a saga that spanned decades and inflicted so much grief was suddenly over. Twenty years in jail, multiple appeals and applications to the High Court, all of them unsuccessful, an inquiry and even a judicial review of that inquiry, and just like that, it seemed, Kathleen Megan Folbigg was free.
For those who campaigned for her release, however, there was nothing speedy about her unconditional pardon, even as Folbigg found freedom before some of her keenest supporters learned of her momentous news.
“I am crying out of happiness,” said Professor Carola Vinuesa, who woke to the news in Europe, where she was recently made a member of the Royal Society. “It has been difficult, it has been frustrating,” she added of her years-long efforts to convince others of the science behind the reasonable doubt that has only now seen Folbigg leave prison. “It has taken quite a long time.”
The movement to find freedom for Folbigg began tentatively and for a long time moved slowly, but for many years it seemed like there was almost no one on her side. When, more than a decade ago, Emma Cunliffe began writing about mothers convicted of murdering their babies, almost no one was even publicly questioning Folbigg’s guilt.
Cunliffe’s book, Murder, Medicine and Motherhood, was published in 2011 and maintained that Folbigg “was tried at a moment in which there was a particularly strong emphasis on homicide as the most likely explanation of recurrent unexplained infant death within a family”.
It was also a moment in which those unexplained deaths were disproportionately blamed on mothers. “I reached the conclusion that she had been wrongly convicted because the medical scientific evidence that was relied on in the trial was unreliable in 2003,” Cunliffe, now professor at the Allard School of Law at the University of British Columbia, told The Australian from Canada.
While the justice system seemed immovable, Cunliffe’s book had a profound effect on highly respected forensic expert Professor Stephen Cordner, then head of the Victorian Institute of Forensic Medicine. Prompted by a review he penned for the Journal of Forensic Sciences, Cordner spent a lot of spare time over the following year sitting at his kitchen table probing the Folbigg case.
The 100-page report he compiled, the longest in his long career, was critical of the path that led to Folbigg’s conviction, referring to a “homicide hypothesis which in fact has little forensic pathology content”.
Cordner concluded that all of Folbigg’s children appeared to have died of natural causes: Caleb and Sarah likely due to SIDS, Patrick from an unexplained life-threatening event, and Laura from myocarditis, inflammation of her heart. “Ultimately, and simply,” he found, “there is no forensic pathology support for the contention that any or all of these children have been killed, let alone smothered.”
In 2015, Folbigg’s lawyers included Cordner’s report in a petition for an inquiry into their client’s convictions. By then she had spent more than a decade in jail. But three more years passed before then NSW attorney-general Mark Speakman announced a review headed by former District Court judge Reg Blanch.
Around this time, Vinuesa, an expert in discovering genetic disease, was at work at the Australian National University in Canberra when a former student contacted her about a possible genetic cause for the deaths of Folbigg’s babies.
Vinuesa soon discovered Folbigg had a genetic mutation, not seen previously. Realising other mutations in the CALM 2 gene were known to cause sudden death in children, she enlisted the help of more scientists, including those with detailed expertise in CALM 2 mutations. They forwarded their findings to the inquiry, which had already finished hearing evidence.
When Blanch’s report was released in July 2019, he found there was no reasonable doubt about Folbigg’s conviction, based largely on interpretation of her diaries and the rarity of multiple SIDS cases in one family.
While the new scientific information from Vinuesa and others meant it was now plausible that the girls might have had a cardiac condition “that raises a possibility it caused their deaths”, Blanch found “there is no reported case of a death of such nature … If so associated, Sarah and Laura’s deaths would be the first and second reported cases of their kind”.
Folbigg would remain in jail, her path to freedom seemingly even less likely, when, in March 2021, the NSW Court of Appeal deemed the inquiry’s conclusion was not at odds with scientific evidence.
A few months later, Vinuesa visited her in jail. “It was difficult to know whether she really had hope. In that visit she conveyed that she was very thankful to the many people who were working on the case, and the science. That’s what gave her hope.”
By then, close to 100 scientists, including Australian Nobel Laureates immunologist Pete Doherty and molecular biologist Elizabeth Blackburn, had signed a petition calling for Folbigg to be pardoned. Blanch’s conclusion, they said, “runs counter to the scientific and medical evidence that now exists. This is because a natural cause of death for each of the children has been ascribed by qualified experts”.
More months passed and then in May last year NSW attorney-general Speakman decided against recommending a pardon for Folbigg. Instead he announced a second inquiry, “notwithstanding that Ms Folbigg has already had numerous attempts to clear her name”.
By the time that second inquiry concluded in April, Folbigg’s future, for the first time since the deaths of all her children, seemed less dim.
“There is a significant body of evidence now to suggest reasonable possibilities of identifiable natural causes of death,” the inquiry’s head, Tom Bathurst KC, former chief justice of the Supreme Court of NSW, announced in the final stretch of hearings “That (evidence) wasn’t there at the (2003) trial.”
Public calls for Folbigg’s immediate release in the weeks that followed appeared to have been ignored by the new state government. But behind the scenes moves towards securing her freedom were growing.
Last Tuesday, only weeks after the inquiry’s hearings concluded, Bathurst phoned the new Attorney-General, Michael Daley. While his report was progressing and still months away, he had come to an important point. “I am firmly of the view that there is reasonable doubt as to Ms Folbigg’s guilt,” he wrote in a seven-page memorandum delivered to Daley on Friday. “I felt it appropriate to notify you of that view prior to the delivery of my report to the Governor.”
Over the weekend Daley spoke to the Crown Solicitor. On Monday morning an executive council meeting was held and Daley recommended to NSW Governor Margaret Beazley that Folbigg be pardoned. Beazley, who only months earlier had established the second inquiry, agreed.
The wheels of justice, which had moved so slowly for so long, suddenly sped up in Folbigg’s favour. By the time Daley addressed a packed media conference on Monday morning, her long life behind bars was over.
“This (second) inquiry has done many things right, and the consideration towards Kathleen has been commendable,” said Vinuesa. “This inquiry has listened to the science in great detail through many hours. That’s something remarkable because it wasn’t trivial science.”
On the other side of the world, Cunliffe also cried for the woman known, for almost half her life, as the nation’s worst female serial killer. “I felt very mixed emotions. I am so pleased for Kathleen,” she said. “And I am angry it went on as long as it did. She has lost 20 years of her life, she has lost the ability to grieve, and she has been demonised.”
And yet already there were signs that the resurrection of Kathleen Folbigg was under way. Hidden amid Bathurst’s many lines of reasoning was a small but poignant reminder.
Referring to the Crown’s case, in Folbigg’s long ago trial, that she had deliberately smothered her children in a fit of anger or put them to sleep so she could sleep, Bathurst noted: “None of the behaviours of Ms Folbigg can be described as anything but normative of young mothers of infant children. Moreover, the balance of evidence at the trial and the inquiry was to the effect that she was a loving and caring mother.”
In one paragraph, a mother’s public persona was flipped from child killer to the bearer of unimaginable grief.
