The fight for Kathleen Folbigg’s pardon

In April 2015, Kathleen Folbigg wrote to her friend, Tracy Chapman, from Silverwater Women’s Correctional Centre: “One day, I hope to actually live! I’m not really sure I did after Caleb died … I was a mother for a short while in my life … I didn’t fail. I conceived. I nurtured. I bore them. I tended to their every need. But … Life, Karma, fate, God whatever, Mother Nature, genetics, all the labels that you wish to use, said no.”

By then Folbigg had served 12 years of her 30-year sentence for murdering three of her infant children, as well as for the manslaughter of Caleb, her first baby who died when he was 19 days old. After a jury found her guilty in 2003, she was labelled Australia’s worst female serial killer. She initially was held in near isolation due to threats against her. Later, she was taunted and bashed.

Folbigg always maintained her innocence. The case against her was circumstantial and there was no physical evidence she suffocated any child. The defence consistently argued there were natural causes for the babies’ deaths and an alternative explanation for Folbigg’s diaries that were used to prove her guilt.

On June 5, the New South Wales attorney-general, Michael Daley, announced Folbigg would be pardoned and immediately released. He had received a summary of findings from retired chief justice Tom Bathurst, who is conducting the second of two inquiries into the case. Bathurst found there was a reasonable doubt about all of Folbigg’s convictions. The evidence has shown likely natural causes for three of the deaths and that Folbigg was nothing other than a good mother to her children during their short lives.

In announcing the pardon, Daley said it was “confirmation that our judicial system is capable of delivering justice … I am glad that our legal system in NSW contains provisions that allow for continual pursuit of truth and justice”.

His reassuring comment mocks Folbigg’s 22-year journey from arrest to release. Flaws in the judicial system were an impediment to justice from the beginning. Folbigg would never have won her freedom if not for extraordinarily staunch friends, a tireless legal team and dedicated experts. The enormity of the injustice is hard to grasp.

Several appeals failed. In 2015, Folbigg’s barrister, Robert Cavanagh, completed a petition including a 150-page report by a highly respected professor of forensic pathology, Stephen Cordner. This provided detailed natural explanations for the deaths.

Folbigg and her lawyers waited on the NSW attorney-general for three years. Only after ABC journalist Quentin McDermott broadcast a program exploring doubts about the case did the NSW government establish an inquiry, chaired by retired NSW chief judge Reginald Blanch.

Blanch rejected the findings of Professor Cordner’s report, along with fresh genetic evidence that two daughters, Sarah and Laura, had a genetic variation, CALM2-G114R, in common with their mother. This is linked to myocarditis, the original diagnosis of Laura’s death until those findings were displaced in favour of a false theory that there was a “one in a trillion chance” four babies in one family could die of natural causes. Although this theory was discredited by the time of the 2003 trial, it lingered in the thinking of some judges, lawyers, experts and police throughout the case.

The inquiry also focused on a crucial part of the Crown case. Folbigg had a habit of recording her thoughts in diaries. In 1999, her husband, Craig Folbigg, gave one of these to the police, sparking a two-year investigation. In all there were 40,000 words, including some which viewed in isolation were disturbing. For example, there was a reference to doing “terrible things” to a child. Under hours of police questioning, Folbigg insisted she used the diaries to record emotions she couldn’t share with others and denied hurting any of her children.

At her trial, Crown prosecutor Mark Tedeschi told the jury words in the diaries were virtual admissions of guilt and revealed Folbigg’s motives for murder. He said she smothered the children because she had a low tolerance for stress and resented them interrupting her life and making her “constantly tired”. Her desire to stay slim by going to the gym was portrayed as extreme selfishness.

The defence argued the diaries needed to be interpreted in the context of a mother’s intense grief and bereavement. Folbigg blamed herself. In February 1997, while pregnant with her fourth child Laura, she  wrote: “What sort of mother am I, have been? A terrible one, that’s what it boils down to. That’s what I think and that is what I think I’m trying to conquer with this baby. To prove that there is nothing wrong with me. If other women can do it, so can I.”

Tedeschi’s cherrypicking approach persuaded the jury and senior judges in various appeals, even to the High Court. In some media reports, the diaries became the “Diary of a Monster”.

In 2011, University of British Columbia professor of law Emma Cunliffe published her book Murder, Medicine and Motherhood, which drew on decades of research on women, grief, medicine and the law to demonstrate how the cherrypicking approach had been used to construct a “murderous mother” and obscure deficiencies in the case. She argued this flawed approach resulted in a miscarriage of justice.

Unlike at her trial, Folbigg gave evidence to the Blanch inquiry. In his book The Big Folbigg Mistake, John Kerr described how Craig Folbigg’s barrister, Margaret Cunneen, cross-examined Kathleen on the diaries for six-and-a-half hours, asking 970 questions, many of them repeating what barristers had already asked. Folbigg was reduced to tears but denied all accusations.

Her lawyers wanted to call psychiatric experts to provide evidence that the writings should be understood in the context of a grieving mother blaming herself for the deaths, but Reginald Blanch said he did not need to hear from experts.

Blanch delivered his report in July 2019. It was crushing. He rejected the fresh scientific evidence and found the case against Folbigg, whom he found had not told the truth, was stronger than ever.

Scientific experts, including international ones, were concerned a court had disregarded serious scientific evidence. Meanwhile, genetic evidence grew even stronger. A new petition was organised in March 2021. Some 90 eminent scientists called for Folbigg’s immediate pardon and release from jail.

The petition included the scientific reports and concluded: “It is incumbent on the Governor to exercise her power to stop the ongoing miscarriage of justice suffered by Ms Folbigg. Not to do so is to continue to deny Ms Folbigg basic human rights and to decrease faith in the New South Wales justice system. Ms Folbigg’s case also establishes a dangerous precedent as it means that cogent medical and scientific evidence can simply be ignored in preference to subjective interpretations of circumstantial evidence.”

Nothing happened for 12 months. The outgoing president of the Australian Academy of Science, Professor John Shine, and other scientists wrote to the NSW attorney-general appealing him to accept a miscarriage of justice had occurred. Finally, in May 2022, the then NSW attorney-general Mark Speakman announced a second inquiry by retired Supreme Court chief justice Tom Bathurst. This time the Academy of Science acted as independent advisers.

The genetic and other scientific evidence was updated and reviewed by Bathurst. This time, several experts also gave evidence that it was unreliable to interpret the diaries as an admission of guilt. Bathurst found the diaries did not have probative force. They showed a mother blaming herself for the deaths. A central part of the case against Folbigg finally collapsed.

On April 26, the Director of Public Prosecutions conceded there was a reasonable doubt about the convictions. This was another key moment. Although the judge still has to write a full report before the Court of Appeal can consider overturning the convictions, even those who had pursued Folbigg for so long had conceded.

In early May, Folbigg’s lawyers yet again applied for her to be released on parole or pardoned. This can happen quite independently of the inquiry and has happened in other cases. The new Labor attorney-general, Michael Daley, said he would make no comment until the Bathurst report was available.

On May 31, Greens MP and lawyer Sue Higginson moved a motion in the NSW Legislative Council marking the “grim” 20th anniversary of Folbigg’s imprisonment and calling on the government to advise the governor to pardon Ms Folbigg immediately and release her “without delay”. The motion continued: “Holding Ms Folbigg for even a day longer is a compounding of the worst of injustices” and that many women “struggle for justice in a system that often fails them”.

The motion passed, but only after Labor amendments, including the removal of the words “grim” and “struggle for justice” and the call for “immediate” release. Instead, the final motion called on the government to “act in this matter appropriately as soon as practicable”.

Since Folbigg’s release, there has been a tendency to highlight the important breakthroughs in science that were crucial in helping to prove this miscarriage of justice. This narrative should not override questions hanging over the case. Should Folbigg have been convicted in the first place? Was her prosecution fair? Why wasn’t she released earlier? Why was the legal system so immune to decades of legal feminist scholarship into how sexism works in the criminal justice system?

Civil Liberties Australia and others have renewed calls for a criminal law review commission, which could independently investigate miscarriages of justice. Similar bodies already operate in Britain, the United States and New Zealand.

According to the council, there are likely to be hundreds of innocent people among Australia’s 40,000 prisoners. Since nearly a third of these are First Nations people, we can assume they are also grossly overrepresented among the innocent. A criminal law review commission would need to understand how sexism and racism operate at all stages and levels of the justice system.

“This isn’t a rare case,” says Michael Kirby, a former High Court justice who is among the advocates for a review commission. “We seem to be having lots of these cases of unjust convictions coming forward.”