This was published 5 months ago
‘You’re not going to believe what I’ve found’: Inside the fight to free Folbigg
When Kathleen Folbigg had her long-standing convictions for the deaths of her four infant children quashed last year, Rhanee Rego was right by her side. The young lawyer had started working on her case while still at uni – and never stopped.
By Tim Elliott
In June 2017, at the age of 24, when most young people are drinking too much, dating the wrong people and otherwise avoiding adulthood, Rhanee Rego, a fourth-year law student at the University of Newcastle, took up a part-time placement with a barrister named Robert Cavanagh. Tall and lanky, with the lugubrious manner of a country undertaker, Cavanagh is well known for campaigning against wrongful convictions. One of the cases he was looking into at the time was that of a convicted child killer named Kathleen Folbigg.
Folbigg, who was also from Newcastle, had been found guilty, in 2003, of murdering three of her young children and the manslaughter of a fourth, and sentenced to 40 years in prison (later reduced to 30). She had become known as the country’s worst female serial killer and was widely reviled. She had been bashed in jail and placed, for her own safety, in solitary confinement. There seemed little doubt about her guilt. Her former husband, Craig, had given evidence against her, as had her foster sister. But Cavanagh believed Folbigg was innocent and set Rego to work reviewing the case.
“I had no idea what I was signing up for,” says Rego, who I met in Newcastle recently. “I knew almost nothing of Folbigg’s case growing up. I was just 11 when she was convicted.”
By the time Rego became involved, Folbigg had already been the subject of a trial, two appeals and a petition for review, initiated by Cavanagh and fellow barristers Isabel Reed and Nicolas Moir, not to mention investigations by journalists and justice advocates. But Rego came to the case with voracious intent. For the next two months, whenever she had time, she would drive from Swansea, just south of Newcastle, where she was living with her grandmother, to Cavanagh’s chambers in the city, and read everything about the case that she could get her hands on – the trial transcripts, witness statements, police and expert reports, formal submissions and Folbigg’s diaries. “The diaries were possibly the hardest part,” Rego says. “Kathleen’s handwriting is terrible.”
Cavanagh believed Folbigg was innocent, but Rego was determined to come to her own conclusion. “I didn’t want to help a woman who’d potentially killed four of her kids, especially pro bono,” she explains. But as she made her way through the material, she became increasingly alarmed. “There was simply no direct evidence anywhere to say Folbigg was guilty,” she says. “The case was entirely circumstantial. It was like clouds. You could see them, their shape and formation, but when you went to grab them, there was nothing there.”
When she mentioned her concerns to friends, they warned her against getting too involved; Folbigg was a figure of hate. But as a novice lawyer, it seemed clear to Rego that Folbigg’s convictions had been a mistake, and that, once the facts were re-examined, she would be released. “Surely the judges wanted to correct this?” she thought. “Surely politicians were worried they had put an innocent woman in prison?”
But that’s not the way it worked out. Folbigg would remain in jail for another six years. Rego, meanwhile, still wet behind the ears, would become her most unlikely advocate, a key player in reversing the worst miscarriage of justice in recent times. Now she’s working to secure what is expected to be one of the biggest compensation payouts in Australian legal history.
Rego, who is 31, lives in a modern apartment overlooking a row of historic terraces, a short walk from Newcastle Beach. The apartment belongs to a colleague who has allowed Rego to stay rent-free since 2020, while she worked on Folbigg’s case, most of which she did pro bono. It’s a nice place: light and breezy, with lots of books and Indigenous artwork and a little balcony for Rego’s bromeliads. Rego doesn’t have a partner – “I haven’t talked to a guy in seven years.” She adores animals, and hand-raised chickens and guinea pigs as a girl, but her friend doesn’t want pets in the apartment, so Rego goes wandering the streets most mornings in search of cats to pat.
Rego (pronounced like Lego), was born in Newcastle, the older of two siblings. (Daniel, her brother, is five years younger.) Her mum was a dental hygienist; her father is a marine engineer of Spanish-Portuguese-Indian descent; they separated in 2005. The family travelled a lot for her father’s work: they moved to Mumbai when Rego was three, then Vancouver, the US, South Africa and Hong Kong. They returned when Rego was 11. She attended a Catholic high school where she became known for asking knotty questions about God and the Holy Trinity. She was inherently sceptical: when her mother told her something, she would reply, “Mum, are you lying to me?” – and had a precocious social conscience. “When Rhanee was a kid, we were walking down the foreshore at Swansea and there was a group of kids messing around with a puffer fish, kind of torturing it,” remembers Daniel. “They were twice her age but Rhanee ran straight up and said, ‘What are you doing?!’ ”
Law wasn’t on Rego’s radar at school. She considered becoming a maxillofacial surgeon, removing wisdom teeth and neck cancers. She also liked marine biology and forensic science. After school, she took a year off, selling health insurance before studying criminology at Griffith University, where she became interested in law. In 2014, she enrolled in law and
social science at the University of Newcastle. “She was a deep thinker,” says Professor John Anderson, who taught her criminal law. “She’d contribute to discussions, which a lot of students don’t.” Cavanagh was similarly impressed. “She was extremely bright,” he tells me. “And she didn’t give up easily.”
In 2017, when Rego began her placement with Cavanagh, Folbigg’s case was at a standstill. A request by Cavanagh and Reed to reexamine Folbigg’s case had been sitting with the office of the attorney-general for two years. In the meantime, Rego went back to the beginning. She dug up the old police logbooks, which laid out how the original investigation had taken place in the late 1990s. She also examined the children’s autopsies, which had concluded that Folbigg’s kids had died of natural causes (Patrick of an epileptic fit; Caleb and Sarah of SIDS; and Laura of probable myocarditis). Accordingly, the Director of Public Prosecutions had, after 10 months of reviewing the evidence, recommended to police that Folbigg’s case be referred to the state coroner. But this never happened. Instead, the then-deputy state coroner, together with the police, decided to charge Folbigg with three counts of murder and one of manslaughter.
“[The then-deputy state coroner] had the discretion to dispense with an inquest, but she never explained why she disregarded the DPP’s advice, especially when the DPP said there wasn’t enough evidence,” Rego says.
Rego started verifying the key claims made at Folbigg’s trial, in 2003, one of which was that her crimes were unique – that, as the Crown and its experts insisted, there were no known cases of multiple infant deaths in one family from natural causes anywhere in the world. “It was pivotal to their case,” says Rego. “So it was an obvious thing to check.” And so, one morning in Cavanagh’s chambers, Rego sat in a side room and began reviewing the online literature. Within hours, she’d turned up no less than six research papers published in the 1980s and 1990s documenting multiple infant deaths in one family from natural causes. Indeed, as Rego later discovered, a crucial prosecution witness who had given evidence in 2003 that she had never known a case of multiple infant deaths in one family had herself written a paper in 1988 that documented the deaths of three children in one family from Sudden Infant Death Syndrome (SIDS).
‘The moment I met Kath … I sensed that she might actually be innocent, rather than just legally innocent.’
Rhanee Rego
Rego sat staring at her computer. “I was like, ‘What the f---?’ ” she tells me. She got up, walked next door to Cavanagh’s office, and said, “You’re not going to believe what I’ve found.”
In September 2017, Rego visited Folbigg at Cessnock Correctional Centre, in the NSW Hunter Valley, with barrister Isabel Reed. It was Rego’s first time in a prison. “There was lots of noise,” she says. “People yelling, and doors opening and clanging.” They were led through a series of heavy steel doors to a tiny room, little more than a metre square, with three chairs squeezed around a small desk. Folbigg was already there, sitting facing the door, dressed in prison greens. The first thing that struck Folbigg, as she told me later, was that Rego was so young. The first thing that struck Rego, meanwhile, was that Folbigg was so normal. “She didn’t make the hair stand up on the back of my neck. She wasn’t profoundly mentally unwell, and she didn’t appear to be a psychopath,” Rego says. While it was clear to Rego that the prosecution had not proved their case, she was still, on a human level, disturbed by the fact that Folbigg’s four children had died. “But that changed the moment I met Kath,” she says. “I sensed that she might actually be innocent, rather than just legally innocent.”
Being represented by a woman was new for Folbigg. “Most of the other lawyers I’d dealt with were males,” she tells me, when we meet in a cafe by the harbour in Newcastle. “With one of them, even though he was trying to help me, the way he asked questions raised my hackles, and it made me put my walls up, which was counterproductive, but I couldn’t help it.” Rego was different. “To have a young female want to understand what was happening with an older woman was unusual.”
Folbigg, who is 56, has a head of thick auburn curls, hazel eyes and an air of optimism that hums about her like low-level static. “I’ve just come from changing my name,” she says, with no small relish. “Folbigg was my married name. But my husband [Craig Folbigg] divorced me in 2003.” (Craig Folbigg remarried in 2004 and had a son in 2005. He died this March from a heart attack.)
Life outside prison has been a whirlwind. “I was released so suddenly that I didn’t have the option of going to a transitional centre where you learn how to re-enter society,” she says. “It took me three months just to get my identity back, like a driver’s licence, Medicare card, bank account, internet, even a phone. Rhanee has been my main help with it.” Folbigg has also been writing a memoir: Rego tells me that Folbigg and her media manager, Nick Fordham, have been deluged with interest from filmmakers wanting to tell her story.
‘By 2010, I’d given up … I had to take hope out of the picture and knuckle down and concentrate on how I’d get through my time with as least scars as possible, mental and physical.’
Kathleen Folbigg
Anyone who followed Folbigg’s case over the past 20 years would have noticed her many iterations: glasses, no glasses, dyed hair, grey hair, straight hair, curly hair. She has appeared variously indifferent, defiant, dissociated or depressed. But, more often than not, she has looked resigned. “By 2010, I’d given up,” she says, tucking into a plate of meatballs. “I had to take hope out of the picture and knuckle down and concentrate on how I’d get through my time with as least scars as possible, mental and physical.”
In August 2018, Folbigg got a boost when the ABC’s Australian Story aired a piece on her case. The program featured fresh forensic opinion, and argued that natural causes were a plausible explanation for her children’s deaths. Nine days later, then-attorney general Mark Speakman ordered an inquiry into her convictions. “I felt hopeful,” Rego says. “I thought, finally the state might be prepared to rectify the mistake.”
Rego and Cavanagh started preparing Folbigg, who was then an inmate at Silverwater Correctional Complex in Sydney’s western suburbs, for the inquiry. The pair began visiting her three times a week, driving from Newcastle in Cavanagh’s rattling black RAV4. “We’d leave at 5am, in the dark,” Rego says. “We’d get to Silverwater at about 7.30am. There was a little cafe opposite the jail where we’d have a toastie and coffee before heading in to see Kath.”
Rego and Cavanagh met Folbigg in a poky conference room with a glass panel on one wall. Inmates aren’t allowed internet access, so Rego had to leave her phone and laptop outside. Every time she visited, she’d take in brick-like bundles of documents for Folbigg to read, thousands of pages in all, including transcripts, judgments and expert reports. But the most pressing issue was Folbigg’s diaries. “Kath’s conviction had nothing to do with science,” Rego says. “There was never any evidence that she’d smothered her children. What convicted her were her diaries.”
‘Kath was a deeply traumatised woman.’
Rhanee Rego
Written between 1989 and 1999, Folbigg’s diaries run to 355 handwritten pages – 50,000 words – most of which are exceedingly mundane. There are birthday reminders, hair appointments; musings on her weight and the state of her marriage. (Craig, she writes, often forgot her birthday and refused to change a nappy.) But they also contain what appear to be startling admissions. When Laura, her fourth child, wouldn’t stop crying, she wrote, “I nearly purposly [sic] dropped her on the floor.” After her third child, Sarah, died, Folbigg wrote that “I was short-tempered & cruel sometimes to her & she left. With a bit of help.” The prosecution at the 2003 trial made much of these entries, which the judge described as “chilling”.
“Obviously, I saw how ‘With a bit of help’ could look bad,” Rego tells me. “People thought the ‘help’ was her.” Rego needed to understand what Folbigg meant by such phrases, and so on her visits to Silverwater the two women sat and re-read the diaries together, line by line. “Rhanee would say, ‘I’m sorry to put you through this but I need you to explain the feeling behind this or that line,’ ” Folbigg says. “She was worried I might not cope. But it was uplifting to have someone ask the right questions for the right reasons.”
After a while, the diaries took on an entirely different light. “Kath was a deeply traumatised woman,” Rego tells me. “Her mum was murdered by her husband when she was a kid, and she was brought up in a foster family, which wasn’t very nurturing and where she was told that her feelings had consequences and that she wasn’t to express them.” The foster family was religious, and Folbigg came to believe in higher powers and consulted clairvoyants. (The diarised reference to “a bit of help”, she would later explain, “was a reference to God or to some higher being”.)
She also suffered from a poor sense of self and deep-seated feelings of inadequacy. “When doctors couldn’t give her an understandable explanation for her kids’ deaths, Kath’s thinking became warped,” Rego explains. “She thought, ‘Obviously I’m not a good enough parent, and so my children chose to leave me.’ She thought, ‘It was me, not them.’ That might seem odd to outsiders who hadn’t lost four children, but that was Kath’s reality.”
In 2012, when Rego was 18, her mother got lacrimal adenoid cystic carcinoma, a rare and aggressive eye cancer. “I thought she was going to die,” Rego says. Her brother Daniel didn’t cope well, and their father was in Canada, so it fell to Rego to carry the load. She stayed in hospital for 12 days after her mother’s surgery (Daniel moved in with his grandmother), and became her primary carer at home. “Mum had half her face removed,” Rego tells me. “When people would stare at her, I’d get so angry, even though they weren’t doing it on purpose.”
Rego, as a consequence, had to grow up fast. She enjoyed uni, working in pubs and sharing a love of pet fish with her then-boyfriend, with whom she went travelling through South-East Asia. But she also developed, either by accident or design, an air of casual authority, a deep voice and scalpel-like diction. This has served her well as an advocate, but there is a sense that it came at a cost, as if she leapfrogged from early adolescence to middle age. Asked to nominate some of her vices, she says, “gardening and bird-watching”, adding, “I’m 75 in a 31-year-old body.”
In late 2018, Rego finished university and was offered a job with the DPP. It paid $70,000, but she turned it down in order to follow Folbigg’s case, which had been transferred to a Newcastle firm called Cardillo Gray. The firm employed her to work on the upcoming inquiry. She worked 12- to 15-hour days, summarising evidence and engaging experts, including immunologists, geneticists and pathologists, all of whom had to be briefed in detail about Folbigg’s children’s deaths. “We put together thousands of pages of the children’s medical records, like autopsy reports, neonatal screening
documents and hospital admissions.” She stayed up late reading the latest
academic literature and joined Twitter, so she could follow the leading experts in each field.
“She became a self-taught scientist,” says Caroline Blackwell, an immunologist whom Rego brought in for the 2019 inquiry. “She also realised that getting Folbigg out required input from multiple disciplines and that some of those disciplines needed to interact. She was the conduit for this.”
The 2019 inquiry was overseen by Reginald Blanch, a former chief judge of the NSW District Court. It went badly for Folbigg almost from the start. Blanch said little on the bench, and at one stage accused Folbigg’s team of leaking to the media. He wrestled with the science regarding SIDS, neurology and forensic pathology, focusing instead on Folbigg’s direct evidence and diary entries. Folbigg’s team insisted that the diaries contained no confessions of guilt, and that they might be better understood with the help of a psychiatrist. But Blanch declined. “I would not be assisted at all in this inquiry by a psychiatrist who wanted to come along and tell me a) what the words of the diary mean, or b) about the fact that a mother who had lost her babies would be upset and emotional and so on.”
Rego was dismayed. “He isn’t a psychiatrist, he’s not a mother, and he hadn’t lost four children,” she says. “He’s an old white man, but he still felt able to interpret Kathleen’s words and why she wrote them.” Six weeks after the hearings closed, additional evidence emerged showing that the cardiac mutation in Folbigg’s two daughters was likely to be deadly. But Blanch opted not to reopen the inquiry, instead dealing with the new information in a brief addendum.
It became clear, to Rego at least, that what was really on trial was Folbigg’s mothering. Margaret Cunneen, senior counsel for Craig Folbigg, berated Kathleen, insisting that she hated her children and that she was a bad mother for wanting time alone. “I felt like saying, ‘So Margaret, when you were raising your kids, you never got angry with them or wanted time out?’ ” Rego says. “Kath was held to a standard of motherhood which does not exist.” Folbigg was also humiliated. Cunneen asked her 69 times if she had killed her
children. When Folbigg finally broke down, Cunneen remarked, “Well, poor Kathy.”
In the end, Blanch reaffirmed Folbigg’s conviction, claiming that the evidence had made her guilt “even more certain”. The decision came through too late for Rego to call Folbigg, who learnt of it on TV in the reception area of Silverwater jail. “I don’t cry, naturally,” Folbigg says. “But I was out-of-control crying for five minutes. In jail, being out of control is a bad place to be because you’ll end up in a safety cell. So I told myself, ‘Get your act together.’ And I stopped crying and went back to my cell.”
Rego was devastated. She left Cardillo Gray and travelled to Canada, where she spent time with a friend in Whistler. She was exhausted and wanted to leave law altogether. Cavanagh told her she wouldn’t last beyond a few weeks. He was right. “Three weeks later I came back, even more determined to get Kath out.”
After the Blanch inquiry, Rego and Cavanagh began mulling new strategies. In the meantime, she taught at university and started her PhD about the criminal justice review process. She gardened, pampering her maidenhairs and propagating succulents for friends. She also developed a food and wine law course, which I pictured involving students sitting around sipping merlot but, in fact, covered trade and regulations.
And yet Folbigg’s case was never far away. By early 2021, a powerful coalition had formed, informally tagged Team Folbigg, consisting of scientists, lawyers, business people and lifelong friends including Tracy Chapman and Megan Donnelly, all convinced that Folbigg’s situation constituted an ongoing miscarriage of justice. “It was a huge effort – the scale and the capability of any corporate takeover,” says Peter Yates, chairman of the Centre of Personalised Immunology at Australian National University and former CEO of Kerry Packer’s Publishing and Broadcasting Limited.
‘The Folbigg case is a huge embarrassment for the NSW legal system … [We’d had] a grieving mother in jail for 20 years.’
Rhanee Rego
Yates had learnt of Folbigg’s case from the director of the Centre for Personalised Immunology, Professor Carola Vinuesa, who had given expert evidence at the Blanch inquiry only to come away disillusioned by the way the court dealt with the science. Yates, a former investment banker and one of the best connected people in Australia, quickly set about raising funds for Folbigg’s case from the top end of town. “Kathleen was this completely downtrodden, trashed woman who had been up against the whole judicial system,” he says. “We all wanted to help her.”
Because of her familiarity with the case, Rego became Team Folbigg’s brains trust, working madly to assimilate new information and coordinate resources. One of her particular talents is being able to convince a lot of very smart and extremely busy people to do a considerable amount of work for free. She commissioned US psychologist and linguist James Pennebaker, who has worked for the FBI and CIA on criminal cases, to analyse Folbigg’s diaries using his text-analysis program that he claims can identify inculpatory language and thought patterns. (He concluded that the diaries contained no admissions of guilt.)
Rego also brought in a communications consultancy, GRACosway, which worked, pro bono, to change the public’s understanding of the case. “It was hard,” GRACosway director Brigid Glanville says. “Most people only had the 20-year-old history to base their opinion on, but there was so much more new evidence out there.”
In early 2021, Rego and Cavanagh wrote another pardon petition for Folbigg, which detailed the faults with the first trial and the mountain of new genetic evidence. She then sent it to the world’s leading scientists, doctors and legal experts, in the hope they would endorse it. The scientists were almost unfailingly cooperative: 91 of them, including two Nobel laureates, ultimately signed the document.
Notably less receptive was the legal community, all but one of which, David Bennett, a former solicitor-general of Australia, declined to help or ignored Rego altogether. “The Folbigg case is a huge embarrassment for the NSW legal system,” Rego says. “We were going against 17 Supreme Court judges. [We’d had] a grieving mother in jail for 20 years.”
‘When I hear [the word “compensation”] I think of someone falling over and breaking their ankle, but how does it apply to someone who had their entire life taken away?’
Kathleen Folbigg
The petition led to another inquiry, in 2022, chaired by Tom Bathurst, a former NSW chief justice. It was marked by a refreshing open-mindedness from the counsels assisting. “Their approach was less adversarial than inquisitorial,” says Rego. “They wanted to understand what had happened to Kath rather than re-prosecute her.” Bathurst also appeared more willing to explore the phenomenon of maternal grief and guilt, particularly in relation to Folbigg’s diaries, which he made a point of reading in their entirety. And he would not tolerate the kind of speculation that had characterised Folbigg’s case from the start: when Peter Hastings KC, representing Craig Folbigg, contended in court that Kathleen had inherited what amounted to a “killer gene” from her father, Bathurst shut him down, ordering that the argument be redacted.
The strain on Rego was immense; at night before bed, she would glance at her much-neglected herbs and dream of the orchids she once grew with her grandmother. The stress was compounded by the fact that her mother’s cancer, dormant for a decade, had returned in the middle of the hearings. “At some stages, she was running the inquiry from the side of the hospital bed,” Daniel, her brother, says.
In June 2023, Bathurst delivered his findings, concluding that there was reasonable doubt over Folbigg’s conviction. Moreover, the evidence suggested that, rather than being a monster, Folbigg was, as counsel assisting Sophie Callan put it, “a loving and caring mother”.
Folbigg was released from jail four days later. In December, her convictions were quashed by the NSW Court of Criminal Appeal. On the steps outside the court, an emotional Folbigg spoke to reporters, insisting, among other things, that society should think twice before demonising a parent. Rego then took the microphone. She wore a crisp white blazer and red lipstick, and sounded, with her oratorical poise and modulated rage, like Boadicea with a master’s degree. She thanked Folbigg’s supporters and called for a Criminal Case Review Commission to rectify miscarriages of justice. She then confirmed that Folbigg would be demanding “substantial” compensation. When asked how much, she replied, “bigger than [anything] that has ever been made before”.
When I ask Folbigg how she endured 20 years in jail, she replies, “with self-control and patience”. Prison psychologists invariably recommended she try mindfulness and yoga, but the only thing that really worked was exercise. “When I was in solitary, I talked them into giving me a little plastic step,” says Folbigg. “I’d do one step at a time, in a six-by-four cell.”
The word “compensation” doesn’t make much sense to her. “When I hear that I think of someone falling over and breaking their ankle, but how does it apply to someone who had their entire life taken away?”
Research in Flinders Law Journal lists 71 known wrongful convictions in Australia from 1922 to 2015. Some of the most egregious include Perth man Andrew Mallard, who spent almost 12 years in prison for the murder of jeweller Pamela Lawrence in 1994. (Mallard received $3.25 million in compensation from the WA government in 2009.) Former public servant David Eastman wrongfully served 19 years for the 1989 murder of federal police assistant commissioner Colin Winchester. (Eastman was awarded $7 million in 2019.)
The case most often likened to Folbigg’s is that of Lindy Chamberlain, the Mount Isa mother convicted of murdering her nine-week-old baby while on a camping trip at Uluru in 1980. Both Chamberlain and Folbigg were arguably convicted, as much as anything, for being the wrong kind of mother. But the miscarriage of justice in Folbigg’s case is an order of magnitude more serious. Folbigg lost not one child, but four. She spent 20 years in jail; Chamberlain spent three. Chamberlain was cleared after six years and received $1.3 million (about $3 million today) in 1992. Folbigg endured 20 years of being “Australia’s worst female serial killer”.
“Robert and I have prepared hundreds of pages of submissions detailing where the case went wrong and the people responsible for it,” Rego says. “Kathleen’s claim is different to how the public would view most compensation claims. For example, if someone has a personal injury claim, they can sue an insurance company who can use law, formulas and case studies to help them decide how much to pay. The state will struggle to come up with a figure because there are no recent case comparisons or formulas to draw on.”
There are, however, some objective standards that might help them, from the obvious ones, including the loss of income and opportunities, to the fact that Folbigg was bashed in prison, spent time in solitary, and had her guilt compounded by the state’s repeated errors. “In the end, however, the process is discretionary,” says Rego, who has no idea when a decision will be made. “The state will pay what they think the public expects is fair.”
Folbigg isn’t a flashy person. On her first night of freedom, she had a Kahlua and coke and takeaway pizza. At the cafe where we had lunch she wore a small pendant, in the shape of the infinity symbol – a figure eight, lying on its side. It matches one she bought for Rego on her 31st birthday. Cavanagh also has an infinity symbol, as a tie pin. “It represents the bond we all share now,” Folbigg says. I was about to ask why she chose the infinity symbol, but the waiter arrived with Folbigg’s dessert, a plate of apple pie, and I didn’t want to take up any more of her time.
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