Last week Kathleen Folbigg, convicted in 2003 of killing all four of her children, was pardoned unconditionally and released from prison, after serving 20 years behind bars.
Within hours, the story spread around the world, from Australia to the UK, and from Britain to Brazil. It marked a sensational outcome to one of the most widely reported cases in Australia’s criminal history.
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Ms Folbigg’s children were born and died between 1989 and 1999. Following the death of her fourth child Laura in 1999, a lengthy police investigation ensued, resulting in Ms Folbigg being put on trial, and convicted four years later.
Ms Folbigg was found guilty of three counts of murder, one of manslaughter, and one of inflicting grievous bodily harm. She was sentenced to 30 years in prison, with a non-parole period of 25 years. There seemed little prospect of her being released before 2028 at the earliest.
But last week, Tom Bathurst KC, formerly chief justice of New South Wales, who presided over a recent inquiry into the convictions, said he had reached “a firm view that there was reasonable doubt as to the guilt of Ms Folbigg for each of the offences for which she was originally tried”.
That might never have happened, had a young legal academic, Emma Cunliffe, not taken an interest in the case while she was working on her PhD.
Dr Cunliffe’s ground-breaking book, Murder, Medicine and Motherhood, published in 2011, forensically analysed the evidence and arguments put forward at Ms Folbigg’s trial, concluding that she was the victim of a miscarriage of justice.
In 2013, Dr Cunliffe told Channel Nine’s 60 Minutes that: “An error has been made, and a woman has been wrongly convicted.”
But two more years would pass, until in 2015, lawyers acting on Kathleen Folbigg’s behalf lodged a petition with the then-governor of NSW, General David Hurley, calling for a judicial review of her case.
Attached to the petition was an exhaustive re-examination of the forensic evidence in the case, written by Professor Stephen Cordner, from the Victorian Institute of Forensic Medicine.
He concluded that: “There is no positive forensic pathology support for the contention that any or all of these children have been killed.”
But for three years, nothing happened.
I came to the story six years ago after being alerted to some of the criticisms that had been made of the way in which the case was prosecuted. Dr Cunliffe pointed out that there were other recorded cases of three or more infants in a family dying from natural causes, which were not revealed to the jury at Ms Folbigg’s trial.
Questions had also been raised about the evidence given at the trial as to the extent of illness suffered by Ms Folbigg’s fourth child Laura, before she died.
At her post-mortem, Laura was found to have myocarditis – an inflammation of the heart muscle that can be fatal. The pathologist who conducted the post-mortem, Allan Cala, characterised it as “patchy” and “mild”. But this view was disputed by Professor Cordner, who concluded that Laura’s death “has been caused unexceptionally by myocarditis”.
The two experts clearly disagreed, and so I approached another forensic pathologist, Matthew Orde, who – like Professor Cordner – had not appeared at Kathleen Folbigg’s trial.
With Ms Folbigg’s agreement, I invited Dr Orde to examine the slides of Laura’s heart muscle. He agreed with Professor Cordner, concluding that Laura had an “eminently fatal” case of myocarditis.
“Of course, we can’t say for sure that this would have been the cause of death in Laura’s case,” he told Australian Story. “All I can say is I think this provides a very good explanation for her untimely death.”
The problem for Ms Folbigg and her legal team was that despite strong forensic evidence pointing to a natural cause of death for at least one of her children, nothing was happening with the petition.
A senior NSW forensic pathologist, Professor Johan Duflou, I discovered, had provided an urgent briefing note on the Cordner report in 2015 and called for a full-scale review of the case. But it didn’t happen.
I approached Robert Cavanagh, the barrister who had co-authored the petition.
“I believed that the petition would be seriously considered,” Dr Cavanagh says now.
“Professor Cordner’s analysis of the causes of death and the evidence of failures at trial was compelling.”
I interviewed Nicholas Cowdery, who had been the NSW director of public prosecutions when Kathleen Folbigg was tried. He conceded that the three years it had taken for a decision to be taken on the petition was concerning and “an inordinate delay”.
In 2018, as we prepared the Folbigg story, we knew that it raised concrete doubts about her guilt. But it lacked one vital element: Ms Folbigg herself, telling her own story.
So, at the urging of our executive producer Caitlin Shea, I invited Ms Folbigg to speak out on Australian Story.
Courageously – because she could have been punished for doing so – she agreed. Prison phone calls are monitored and cut off after just six minutes, and the challenge was to record multiple phone calls over several days, between her and her lifelong friend Tracy Chapman, without raising suspicion within the prison. We managed to do so and happily, without Ms Folbigg being punished for speaking out.
For the first time Australia heard Ms Folbigg speak openly about her life in prison, her former husband Craig, her children, her trial, the entries in her diaries and what they meant, and her hopes for the future. There was warmth and wit in her remarks, along with sadness, strength and stoicism.
Nine days after Australian Story went to air, a judicial inquiry was finally announced.
Dr Cavanagh believes that, without Australian Story’s intervention, “it is likely that expert evidence, and therefore Kathleen Folbigg would have continued to be ignored”.
Our story had another, unexpected consequence.
The day after Australian Story went to air, Dave Wallace, a young lawyer with a science honours degree in immunogenomics, wrote to barrister Isabel Reed, then a member of Ms Folbigg’s legal team.
He told her that he had been interested in Ms Folbigg’s case since law school and had always had issues with the prosecution’s case. He suggested that genetic sequencing of Ms Folbigg, her former husband Craig and their children could yield evidence of a genetic cause for the children’s deaths.
Shortly afterwards, Mr Wallace got in touch with a genetic immunologist who would change the entire course of the Folbigg case – Professor Carola Vinuesa, who at the time was at the Australian National University.
“He offered to contact Carola, and she was instantly interested in assisting in any way she could – I think spurred on by David’s tireless enthusiasm,” Isabel Reed recalls.
Dave Wallace suggested to Professor Vinuesa that she watch Australian Story.
When she did so, Professor Vinuesa says: “I saw firsthand some of those images of the pathology of Laura’s myocarditis. I was intrigued. I thought there could be a genetic basis for that disease. The coincidence was that just a few weeks before, I had been referred a family in which there had been four neonatal deaths in children aged from 20 days to four months, and we had found a genetic cause for their deaths.”
In October 2018, Isabel Reed obtained permission from the governor of Silverwater prison for a colleague of Professor Vinuesa to visit Ms Folbigg to obtain a buccal swab.
When the swab was tested, it revealed that Ms Folbigg carried a unique and potentially pathogenic cardiac mutation CALM2 G114R – a protein that is important in regulating heart function.
For Professor Vinuesa, it felt like a major breakthrough.
“I was quite excited,” she says.
“It had never been identified in any other individual in the world.”
Kathleen Folbigg’s two daughters, Sarah and Laura were found to have carried the same genetic mutation as their mother.
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In Denmark, professors Michael Toft Overgaard and Mette Nyegaard carried out experiments from which they concluded that the mutation had likely triggered their deaths.
A further petition supported by three Nobel laureates and the prestigious Australian Academy of Science resulted in a second inquiry that began last November and has now led to Ms Folbigg being pardoned and set free.
In time, almost certainly, Ms Folbigg’s convictions will be quashed. She is hoping for law reform that will allow potential miscarriages of justice to be independently investigated, and referred to courts of appeal, without the delays that she herself has endured.
Watch Australian Story’s program on Kathleen Folbigg’s 20 year Fight for Freedom on iview