When pigs do fly: the Crown proved wrong in Folbigg case

Andrew L. Urban.

At the murder trial of Kathleen Folbigg in 2003, prosecutor Mark Tedeschi compared the likelihood of four children in the same family dying of natural causes to pigs flying. It was the Crown’s alternative to relying on the discredited and inadmissible Meadows’ Law, a statistical formulation claiming that three or more such deaths must be regarded as murder. But Tedeschi’s pigs do fly, as demonstrated in the comprehensive 2021 submission by Folbigg’s barrister Dr Robert Cavanagh and solicitor Rhanee Rego – as confirmed by the results of the 2023 inquiry that exonerated Folbigg.

The Cavanagh/Rego submission focuses on “the fundamental errors that occurred at trial and on appeal regarding coincidence and tendency evidence.”

It concludes with a damning declaration: “As illustrated …the coincidence and tendency evidence advanced by the Crown at trial, and subsequently approved in appeals, was flawed. This caused substantial prejudice to Ms Folbigg: she was required to prove her innocence because four deaths in one family from natural causes is so rare, it ought to be regarded as impossible. Ms Folbigg should never have had this onus placed on her and it poisoned every appeal and review of this case to date (as at August 2021).”

The following extracts from their submission provide readers insight how the legal catastrophe of the Folbigg case was made possible by erroneous propositions, ignorance – and the risks associated with coincidence & tendency provisions of the Evidence Act. It started with a major mistake that favoured the Crown.

Coincidence and tendency evidence allowed the death of each child to be joined and heard as one trial. The four cases could not have been proved beyond reasonable doubt if they had been tried separately.[ii] Each court (starting from the pre-trial hearing in 2002) unreservedly promoted the proposition that three deaths in a family is extraordinary, so much so it was considered impossible.[iii] In appeals to the Court of Criminal Appeal and the special leave application to the High Court, the judicial officers adopted this reasoning to support the dismissal of Ms Folbigg’s appeals.

At trial, a lack of reported cases on three or more SIDS deaths in the same family was elevated to a status of objective truth despite data published reporting multiple infant deaths in one family, well before the trial in 2003.

Propositions or theories relating to the unlikelihood of multiple natural deaths in one family is another way of expressing the discredited ‘Meadow’s Law’: that one infant death is a tragedy, two is suspicious and third is murder until proven otherwise.[xiii] This creates a virtually irrefutable position that four infant deaths in the one family from natural causes is so impossible that murder is only reasonable conclusion. This blatantly incorrect reasoning was rejected in the successful appeal by Sally Clark[xiv] in the United Kingdom in April 2003 (and in other cases) and was criticised heavily by the British Royal Statistical Society in 2001.[xv] Despite the discrediting of the approach before Ms Folbigg’s trial commenced, Crown experts referenced Meadow’s Law for support when they offered suffocation as the cause of death or claimed that the deaths ‘were consistent with smothering.’

Tedeschi instead of negativing natural causes for each of the children used coincidence reasoning as a substitute to invite the jury to conclude that all four children had been smothered. [xxxix]

The first part of the reasoning required doctors to decide whether there could be more than three deaths in a family even if they had not been involved in determining cause of death in any of the cases. In every case in which a death occurs, at least in Australia, the treating doctor or a forensic pathologist, determines the cause of death. In the Folbigg case, the court relied upon experts who, except for Dr Cala and Professor Hilton, had not examined or treated the deceased children at any time.

piglets flying

The Crown was not able to prove that the deaths were not the result of natural causes. It relied on speculation by its expert witnesses and improper submissions to the jury.[xl] The approach is most clearly shown by Tedeschi, who when referring to natural causes of death stated in his closing address: ‘Well, yes, ladies and gentlemen, I can’t disprove anything of that, but one day some piglets might be born from a sow, and the piglets might come out of the sow with wings on their back, and the next morning Farmer Joe might look out a kitchen window and see these piglets flying out of his farm. I can’t disprove that either. I can’t disprove that one day that some piglets might be born with wings and that they might fly.’[xli] The Crown was aware he could not prove each child died from manual suffocation, so he instead relied on the improbability of the four deaths together. He was in fact required to negate natural causes in order to prove his case beyond reasonable doubt,[xlii] which he earlier acknowledged. He did not prove the case beyond reasonable doubt.

Neither could Tedeschi show any cases of four children murdered in the one family – but he didn’t mention that.

At the 2019 inquiry, Commissioner Blanch does not make a finding in respect of the causes of death. Albeit framed another way, Commissioner Blanch adopts the same position as the courts in Ms Folbigg’s case history: smothering cannot be excluded, ergo it is smothering. 

As has recently been reaffirmed in the High Court in Pell v the Queen,[lii] the prosecution must exclude the reasonable possibility that the accused did not commit the offences. The Crown at trial, and the Commissioner of the 2019 Inquiry, could not exclude reasonable natural causes of death. The Commissioner does not provide any reasons for the rejection of reliable forensic and medical opinion. His lack of conclusions about the cause of death of each child should be ignored in preference to qualified experts who can identify a natural cause of death for each child.

 COINCIDENCE EVIDENCE

The evidence of rarity of three or more deaths in one family was only admissible if the trials were joined. The prejudicial effect of allowing evidence of expert’s knowledge/experience of three or more deaths in one family from natural causes effectively created a default position that murder was the only cause because the other alternative has never been seen or heard of before anywhere in the world. There was no substantial probative value in this evidence because asking very few experts to opine on whether they had seen three or more deaths in the one family from SIDS was flawed on the following basis: 

1. Experience: Asking experts if they have ever seen a case of three or more deaths in one family from SIDS is meaningless because they do not see the world’s representation of cases, or even that which is representative of their state in Australia. It cannot be concluded on the basis of this evidence that there are no known cases of three or more deaths in one family from SIDS or other natural causes.
2. Literature: It is now accepted that the experts who opined on the absence of known cases of three or more deaths in one family from SIDS in the literature were wrong.[lviii]

 2005 HIGH COURT

Following the CCA decision in 2005, a special leave application was made to the High Court. There were three judges hearing the leave application and it was refused. McHugh ACJ made some observations about the cogency of the similar facts surrounding the deaths of the four children:

‘You have to look at the positive similarities.  Two deaths occurred during the day, two deaths and the acute life-threatening event occurred in the early hours of the morning.  In each case the applicant was alone with the child, the child ceased breathing, the husband was either absent or asleep and there was no clear, natural cause of death and all the children showed signs that were consistent with smothering with a pillow.’[xlvi]  

It should be noted that there was no evidence that suggested that the children were smothered by a pillow (or smothered, at all).

2019 INQUIRY – AFFIDAVITS NOT TENDERED

…the whole Crown case theory was that she became stressed and killed her children as a result. This is reflected in the tendency particularisation: Ms Folbigg would ‘become stressed and lose her temper and control with each of her four children, and then to asphyxiate them.’[xcvii]

Affidavits of Megan Donegan and Karren Hall were obtained by those representing Ms Folbigg at the 2019 Inquiry. These were provided to Counsel Assisting, Gail Furness, yet were not tendered. Ms Furness was responsible for the tender of all documentation at the Inquiry (further reinforced by unilateral redactions of material provided by Ms Folbigg’s representatives to Crown Solicitor, Amber Richards). These affidavits provided contemporaneous observations of Ms Folbigg at the time her children were alive and also after they died. They report Ms Folbigg being a loving mother, and also being deeply distressed when they died. The affidavits contradict the Crown position that she was prone to temper with the children and was unfeeling in her attitude towards the deaths of the children. Clearly, Ms Folbigg’s character was attacked at the trial and the 2019 Inquiry in her evidence over the course of three days. Observations by her friends at the relevant time to counter the suggestion she was prone to stress and temper and capable of murder. On this basis they should have been relevant to the Inquiry, as it had to be interested at arriving at the truth.

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With thanks to reader Peter for the link to the submission.