The Big Folbigg Mistake – reviewed

Andrew L. Urban.

There is no worse crime than a mother murdering her own toddlers… four of them. Is there? Well, maybe one: wrongfully convicting a mother of such a deed. In his new book, The Big Folbigg Mistake, author John Kerr points the finger at the NSW criminal justice system, which has defied science and is still keeping Kathleen Folbigg in prison as she approaches 20 years behind bars. 

I reckon it wasn’t just prison that punished her, made her eyes look like she hadn’t smiled or laughed in years. It was the decades of private agony being regarded as a ‘smother mother’ all the time knowing she is innocent. This isn’t so much my opinion as my accepting the mountain of scientifically tested medical evidence, undersigned by an army of specialists. The main obstacle to the courts agreeing with me (and Folbigg, of course) are her diary entries. So we’ll get to those first – see THE DIARIES.

The administration of the criminal law, a vital pillar of democracy, can be complicated, incomprehensible to outsiders, slow, foolish – and unjust. Science – that other great pillar of democracy – is a powerful tool that, if properly used, can be of great service to the criminal justice system. If it is permitted to be. In the Folbigg case, the law has clashed with science, and is winning, but not righteously. That’s John Kerr’s proposition in brief, with this excellent book, a work of detective (or investigative) journalism at its best.

Most readers will know that Kathleen Folbigg was found guilty of murdering each of her four very young children over a period of 10 years. Her firm claims of innocence resonated in the central question, which has always been: could they have died of natural causes? The Big Folbigg Mistake is published s few months before a second inquiry into the conviction, due to start in early November 2022. This inquiry follows extensive new scientific evidence from literally dozens of medical specialists which demonstrates genetic malfunction (to put it overly simply) as the children’s cause of death. That’s just to provide a capsule briefing as context for Kerr’s new book. (He is also a publisher, and has put out a number of books, some of them his own, on subjects including Fred Hollows, Roger Rogerson, Arthur ‘Neddy’ Smith and Judith Anderson [of Mrs Danvers in Hitchcock’s Rebecca fame].

Rather than blather on about it, I’d rather ‘open’ the book at various passages and let readers digest the words directly via these extracts:

THE DIARIES

“If the diaries are read for guilt, the reader will find it. If for good mother care, that’s there too.”

“…the facts and what Kathleen said about the diaries as objects were subjected to sinister interpretations of guilty concealment and destruction. That the writer had no great regard for them after writing, became a she-would-say-that- wouldn’t-she? dead end. Her reaction to [her husband] Craig reading them was a mild you-could-have-asked-first. Recently childless, on Mother’s Day, she biffed some out—she wasn’t certain how many, but at least one, maybe three. When Craig rang and asked her what to do with the ones he still had [after they split up], she told him just to toss them out. There was no evidence presented that she showed the slightest concern that the diaries were repositories of guilty secrets or had the potential to harm her interests in any way.”

“In the 40,000 words of the extant diaries police and prosecution highlighted 26 whole entries totalling less than 3,000 words, in order to get the bits that they advanced as compelling circumstantial evidence of a homicidal consciousness. The charge of cherry-picking applies, but bench after bench has loved those cherries. Crown Prosecutor Mark Tedeschi QC in 2003 and especially Counsel for Craig Folbigg, Margaret Cunneen SC, in 2019, present these as ‘virtual admissions’, a phrase the Judicial officer used to describe them in his Report. A ‘virtual admission’ is not an admission, it is a literary opinion and it opens a can of logical and legal worms.”

“Tedeschi had to push Kathleen out of the ‘Does my bum look big in this?’ range of common vanities into the spooky extreme of the spectrum. His rhetorical devices of repetition and adjectival add-ons include, for example, his ‘constantly, we say, constantly preoccupied, to an exaggerated degree’ portray her as a selfish gym bunny who only cared about that social outlet and its promise of a toned bod. Indeed, over defence objections, Tedeschi read and re-read his favourite entries aloud in court.

“The number of such mentions in the diaries does not bear out ‘constantly’ or ‘exaggerated’.”

“The persecution and character assassination of Kathleen Folbigg echoes that of Lindy Chamberlain.”

“The [2019] Inquiry had before them Exhibit AO, ‘Distinguishing sudden infant death syndrome from child abuse fatalities’, and a 2001 policy statement from the American Academy of Pediatrics: ‘Parents who are innocent of blame in their child’s death often feel responsible nonetheless and imagine ways in which they might have contributed to or prevented the tragedy.’ Guilt is often a real but irrational feeling. Kathleen’s diaries illustrate that feeling and the what-ifs imaginings that follow from it.”

[Further details and expert testimony about the diary entries can be found at Kathleen Folbigg – science and the courts]

SIDS? OR HOMICIDE?

“Tedeschi QC opened with the observation that ‘Lightning doesn’t strike four times in one place’. (Obviously, he had not heard of Ranger Roy Sullivan; consulting the The Guiness Book of Records any year would have informed him of the ranger’s seven zaps; he thought more, but the others had no witnesses …)

“In the month following the verdict in R v Folbigg, in an English court, Trupti Patel was found not guilty of the murder of her three children between 1997 and 2001; in evidence, her grandmother would testify that she had lost five of her 12 children in a similar way, and a geneticist had argued that an unknown genetic factor could render a second Patel cot death a one-in-20 chance.”

“ …if the jurors in [the earlier trial in the UK] R v Clark had been told that in England and Wales each year there were four or five SIDS deaths of infants who had a sibling who had died a SIDS victim, they may have questioned  (Professor) Meadow’s 1-in-73-million figure [The chances of two SIDS in one family, he wrote, are 1 in 73 million. This was later debunked and reference to it was forbidden in Folbigg’s trial. Tedeschi used a colourful but just as prejudicial analogy instead: ‘… 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 the kitchen window and see these piglets flying out of his farm.]”

“But, while there is no doubt that the occurrence of two or more SIDS in the same family will be a rare event, so the occurrence of two or more infant murders in the same family will be rare too.”

“…the point was made in evidence that no one has heard of a family with (three or) four such deaths; therefore, so the default corollary appears to be, these must be homicides. Nowhere in the transcripts do I see the rejoinder: how often have you seen four homicides of infants/toddlers in one family, let alone four homicides masquerading as SIDS, or SIDS like deaths.”

Mathematics Professor Ray Hill: “When three sudden deaths have occurred in the same family, the statistics give no strong indication one way or the other as to whether the deaths are more or less likely to be SIDS than homicides.” So it is for the four such deaths in the Folbigg family.”

THE MEDICAL SCIENCE

“When [pathologist Prof. Stephen] Cordner’s ‘Report and Opinion in the Case of Kathleen Folbigg’ finally arrived, it looked like gold for them (defence).

The Report covers over 120 pages in 11 chapters, deals with reports and trial transcript evidence from almost 30 medics, covers much relevant literature, and draws on his work with respect to the Goudge Inquiry. At the 2019 Inquiry, the Report’s reason-why-we-are-here status was acknowledged by making it Exhibit C, preceded only by the petition to the Governor and 2003 trial documents. It was also the basis of a list of questions the Inquiry’s officers sent to all medical witnesses.”

“He leads with what went wrong in 2003:
In my view, much of the forensic pathology discussed at the trial is misconceived, based as it is on a flawed understanding of asphyxia. Asphyxia is not a helpful word in forensic pathology, is not understood in a uniform way, is not a diagnosis, and is not diagnosable. Yet the word is at the core of the main question asked repeatedly by the Prosecution: Did this child/these children suffer ‘acute catastrophic asphyxiating event’? If this question was intended to be a technical question in forensic pathology, it has no content and is not capable of an answer. Ultimately, and simply, there is no forensic pathology support for the contention that any or all of these children have been killed, let alone smothered.

“In my view, it is wrong to rely on the forensic pathology evidence provided in this case to support the conclusion that one or more of the Folbigg children are the victims of a homicide. There is no merit in forcing certainty where uncertainty exists. The very existence of the enigma of SIDS demonstrates how little we know about why some babies die. “

CLASH OF CULTURES: LAW v SCIENCE

“The exasperation expressed by Justice Judge, ‘the door never seems to close to new views about what may or may not cause cot death’—is a symptom of a clash of cultures between the law’s need for clear, firm rules and finality, and science’s restless quest. The science of SIDS has inched forward for decades, and has experienced great leaps forward, in knowing and dealing with the problem. With SIDS, the criminal law has stumbled and obstinately persevered with their error in the past. A better system for dealing with scientific evidence in legal practice is needed, or terrible miscarriages of justice are assured.”

“Among students of the 2003 trial the observation that the onus of proof effectively fell on the defence is commonplace. Kerry Breen’s reading of the 2019 Report2 sees the ruling to hear one case involving four children and not four cases involving one, as the point at which the ‘many senior people in the legal profession’ who ‘will soon be asking why such a miscarriage of justice took place’, may find their answer.

“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. The issue of potential prejudice was raised in the report of the Blanch inquiry… but was not canvassed in any detail as the inquiry aligned itself with earlier judgements…” [Blanch had been the first Director of Public Prosecutions (1987 – 1994), under whose leadership prosecutor Tedeschi learnt the ropes.]

“disbelief … horror”

“In his 557-page Report, genetic evidence received after the hearings closed on 1 May 2019 was dealt with in a nine-page Addendum.

“The Addendum ends:
Even on the basis of accepting the opinion of Professor Vinuesa that it is now plausible that Sarah and Laura Folbigg may have had a cardiac condition, and that that raises a possibility it caused their deaths, I do not consider the Inquiry should be re-opened …”

“Before long, the matters dismissed in the Addendum would ignite disbelief, then horror in the scientific community, and now hold a blow-torch to confidence in the justice system. The other 500 pages could be thrown in wastepaper baskets for the office cleaners.

“The articles in the legal press are now too numerous to list here. Almost all of them focus on various things that went wrong and many look at how those things could be avoided or fixed in the future, how to better deal with expert evidence the number one subject.

“Any move, if it is structural, to improve how the system deals with science in Australian courts will have to deal with law-makers, and it is clear few of them consider science important.

“Lawyer Dr Robert Cavanagh’s charge that the Hon Reginald Blanch AM QC failed ‘to engage with the science’ in the Inquiry had resonated in the legal and scientific community.”

ERRATA: The Kerr Publishing website corrects the printed dates in the book for the births and deaths of the four children. The correct dates are:

Caleb: 1 Feb 1989 – 20 Feb 1989 (19 days)
Patrick: 3 June 1990 – 13 Feb 1991 (8 months)
Sarah: 14 Oct 1992 – 30 Aug 1993 (10 months)
Laura: 7 Aug 1997 – 1 Mar 1999 (19 months)

• FULL DISCLOSURE: I co-authored the book Margaret Cunneen SC – The Boxing Butterfly (Wilkinson Publishing), with Margaret.