Regina v Kathleen Megan Folbigg [2005] NSWCCA 23

17 February 2005

[This edited version of the Court's judgment is compiled by Dr Robert Moles
Underlining where it occurs is for editorial emphasis]

See also the UK case of Sally Clark April 2003

and also the UK case of Angela Cannings January 2004

Sully J

Between April and May 2003 Kathleen Folbigg [KF] stood trial for having murdered son Caleb; for having maliciously inflicted grievous bodily harm upon son Patrick; for having murdered Patrick; for having murdered daughter Sarah and for having murdered daughter Laura. The jury found her guilty as charged in each of Counts 2, 3, 4 and 5. Upon Count 1 the jury found her not guilty of murder but guilty of manslaughter. The sentences were partially cumulated so as to produce an overall result of imprisonment for 40 years with a non-parole period of 30 years. KF now appeals against all five of her convictions and she applies for leave to appeal against her sentences. Four grounds of appeal against the convictions were argued.

The Crown Case at Trial

KF married Craig Folbigg [CF] in 1987. They had four children: Caleb, Patrick, Sarah and Laura. Each child died in infancy; died suddenly and unexpectedly; and died before the birth of the next child. In the case of each death the mechanism of death was the cessation of breathing. The post-mortem examination failed to establish exactly what had caused the cessation of breathing.

KF was the primary carer for each child. CF, following the unexplained death of Caleb and the subsequent birth of Patrick, left his employment and spent a period of 3 months actively assisting her in Patrick’s day-to-day care. Apart from that one interlude, CF was at all material times in full-time employment, and KF was the parent responsible for the day-to-day care of the children. It was particularly significant to the Crown case that CF was a very heavy sleeper, and that it was KF who attended to the needs of the children during the late night and early morning hours.

Caleb

Caleb was born on 1 February 1989 . He was a healthy and full-term baby; but it was early noticed that he tended to breath noisily and to stop breathing in order to feed. On 20 February 1989 KF put Caleb to bed in a bassinette in a room adjacent to the bedroom used by her andCF; and they both of them went to bed. It appeared from a record kept by KF of the pattern of Caleb’s sleeping and feeding that Caleb had had an unsettled night, being awake from mid-night until 2am.

Shortly before 3am CF was awoken by what he described as “screamed words”. He ran into the adjoining room and found KF standing at the end of the bassinette. She was screaming: “My baby, there’s something wrong with my baby”.

Caleb was lying on his back in the bassinette wrapped in a rug. CF picked the baby up and noted that he was warm to the touch but did not appear to be breathing. He told KF to call an ambulance and attempted to perform CPR on the baby. Ambulance officers arrived at 2.55am but Caleb was then already dead.

There was nothing known at the time that was indicative of Caleb’s death having been other than natural. In due course a diagnosis of sudden infant death syndrome, (SIDS), was made; such a diagnosis being normal when a baby aged between 2 months and 6 months dies suddenly and unexpectedly and there is no reason to suspect that the death resulted from unnatural causes. It was the Crown case that KF had smothered Caleb.

Patrick

Patrick was born on 3 June 1990. He, too, appeared to be a healthy baby. He slept normally in a cot in a bedroom off the dining room. As previously noted, CF took 3 months off work in order to help in caring for the new baby.

Three days after CF had resumed full-time employment he was awoken by the sound of KF screaming. He ran into the bedroom and found KF standing at the end of the cot. CF at once lifted Patrick out of the cot and performed CPR, noting that Patrick was warm to the touch. Ambulance officers attended at 4.41am and took Patrick to hospital. They noted that Patrick was in respiratory distress and gave him oxygen.

Patrick was aged at this time 4-1/2 months. In hospital he appeared to improve; but 2 days after the initial incident he had a sudden epileptiform seizure. KF gave Patrick’s treating doctor a history of having gone into Patrick’s room at about 3am in order to see why he was coughing. He seemed to be alright and she went back to bed. At about 4.30am she heard Patrick gasping. When she attended him she found that he was blue around the lips, listless and floppy but making minimal respiratory efforts and giving off a high-pitched cry.

A battery of diagnostic tests was performed on Patrick, but the cause of the apparent life-threatening event, (ALTE), was never formally determined. A paediatric neurologist diagnosed epilepsy and cortical blindness.

In the aftermath of this KF showed signs of an inability to cope with the situation. She displayed frequently anger and frustration. She began to leave Patrick with CF’s sister, Carol Newitt, and one of their neighbours, so that they could baby-sit and she could just get away from things. At one stage during this period CF found a diary which KF had been keeping, and in which she had written that she was not coping, and that Patrick and his father would both be better off if she left them, which she was intending to do if she could. This discovery led to an increase in Mrs. Newitt’s involvement in Patrick’s day-to-day care.

At about 10am on 13 February 1991 CF received at work a telephone call from KF. She screamed: “It’s happened again”. CF at once went home. He arrived home at the same time as an ambulance which KF had called. Mrs. Newitt was already there, having been called by KF. Mrs. Newitt had found upon her arrival that Patrick was lying on his back in his cot; but KF, who was crying, would not allow her to lift Patrick out of the cot.

CF found Patrick still lying on his back in his cot. He picked Patrick up and performed CPR, noting that Patrick’s lips were blue. Patrick and his parents were transported by the ambulance officers to hospital where Patrick shortly thereafter died. A hospital physician determined that Patrick had suffered a cardiac arrest, but could assign no cause for it. A subsequent post-mortem examination could detect no cause of death. The Crown case was, once again, that KF had smothered her baby.

KF appeared to recover relatively quickly from Patrick’s death, just as she had done after Caleb’s death. She and CF relocated to the Hunter Valley; and KF began to press CF to have another child. He eventually agreed to do so, but only on condition that SIDS specialists should be actively involved in any new baby’s care.

Sarah

Sarah was born on 14 October 1992. She slept in a bed in her parents’ bedroom. She manifested during her first three weeks of life some sleep apnoea, but not to any abnormal degree; and the SIDS consultants provided a sleep apnoea monitoring blanket. The monitor frequently returned false alarms. KF wanted to abandon the use of the blanket; and it was part of the Crown case that this showed an understanding on KF’s part that the baby was at no risk of spontaneous death. The use of the blanket was in fact discontinued two or three days before Sarah’s death.

KF was frequently bad tempered with Sarah, and markedly so on the night before her death when Sarah was unwell and difficult to settle down for the night. KF showed marked signs of frustration, and it was left to CF to calm the baby and to put her to bed in her cot at the end of the matrimonial bed.

According to CF, he awoke briefly at about 1.10am on the morning of Sarah’s death. There was a light coming from around the bedroom door, but neither mother nor baby was in the bedroom. CF went back to sleep from which he was aroused by the screaming of KF. He saw KF standing at the bedroom door. Sarah was lying on her bed. She was floppy and warm but not breathing. CF, and subsequently ambulance officers, performed CPR, but unsuccessfully.

A subsequent post-mortem examination noted small abrasions near Sarah’s mouth. Her lungs showed petechial haemorrhage, minor congestion and oedema, all of them phenomena consistent with death by asphyxiation caused by the application of mild force. A displaced uvula was noted and eliminated as a cause of death. The formal finding was one of death due to unknown natural causes.

The Crown case was that KF had taken Sarah out of the bedroom in order to attend to her in some way; but had in fact smothered the baby, and had placed her dead body back in the bed, pretending to have found her in that condition. A note in KF’s hand-writing was subsequently discovered on a calendar. The note read: “Sarah left us at 1.00 a.m.”.

In the wake of Sarah’s death KF seemed to become despondent and aimless. She would not depart from her version of having found Sarah already dead. Her relationship with CF deteriorated to the point of a number of separations and reconciliations; but by early 1996 KF and her husband were once again living together. KF pressed, once again, for another child.

Laura

Laura was born on 7 August 1997. Extensive testing showed mild apnoea, but no genetic, biochemical or metabolic disorders. Arrangements were made for the installation of a special type of sleep monitor which stored information that was subsequently down-loaded by telephone to a Sister Margaret Tanner of Westmead Children’s Hospital.

This monitor regularly returned false alarms. CF, suspicious that KF was not using the monitor, confronted her on that topic, and was assured by KF that she was watchful of Laura, and that the machine was driving her mad.

CF continued to be suspicious about KF’s correct using of the monitor; and over time their relationship again deteriorated. KF came increasingly to spend her days at a gymnasium and her nights with friends.

On the day two days prior to the day of Laura’s death, and again on the morning of the latter day, there were disturbing instances of anger and frustration on KF’s part, boiling over into physical violence towards Laura.

On 1 March, the day of Laura’s death, KF took Laura to CF’s place of work after her morning gym class. KF and Laura left for home at about 11.30am. At about 12.14pm an ambulance arrived at the home in answer to a call. The ambulance officers found KF crying and performing CPR on Laura who was lying on the breakfast bar. Laura was warm to the touch, but she was not breathing, and she had no pulse. The ambulance officers tried unsuccessfully to resuscitate her.

A subsequent post-mortem was conducted. It detected, but eliminated as a cause of death, a mild inflammatory condition of the heart. The formal finding was one of undetermined cause(s).

Laura’s death left her father distraught, and he and KF separated. While CF was tidying up the home in connection with that separation he discovered some diaries of KF. He read them; and what he read so disconcerted him that he contacted the police. Police investigations subsequently located a further diary in KF’s possession. The police investigations culminated in the charging of KF.

In the case of Laura, as in the case of her siblings, the Crown case was that KF had smothered the child.

The Charges

Ground 1

The Crown case at trial accepted that the evidence available to the Crown in each individual case was insufficient to establish in connection with that individual case guilt beyond reasonable doubt . The Crown contended that to deal separately with each case would be unjustly artificial, and that all matters charged against KF should be tried on one indictment and at one trial. There were unsuccessful interlocutory attempts by KF to bar a joint trial.

Ground 2

The Crown case at trial depended heavily upon the contents of KF’s diaries . It was the Crown case that this diary material contained virtual admissions of guilt of the deaths of Caleb, of Patrick and of Sarah; and admissions by KF that she appreciated that she was at risk of causing, similarly, the death of Laura. Is this is a reasonable reading of the material?

Ground 3

The Crown led at trial evidence from a number of witnesses who were presented as qualified to give professional expert opinion evidence to the effect that they knew of no previous recorded case in which three or more babies in one family had died suddenly and for reasons not explicable by proper professional diagnosis. The admissibility of this evidence.

Ground 4

The Crown case at trial relied in part upon coincidence and tendency evidence. The correctness of the learned trial Judge’s directions to the jury on those topics?

KF’s Case at Trial

KF did not kill her children or harm Patrick. She did not think Craig was responsible for their deaths. The Crown case had to be analysed extremely carefully to see if the Crown’s assertions that she lost her temper with the children in fact matched the evidence. There were natural explanations for the events, such as Sudden Infant Death Syndrome and, in the case of Laura’s death, myocarditis. KF in fact was a caring mother, who always kept her children clean and tidy and was attentive to their appointments with doctors. Many of her diary entries in fact showed that she was concerned as a parent and enjoyed being a parent, something that was noticed by Craig and other witnesses at various times and passed on to the police during their investigations. There was no direct statement of responsibility for a death and it is understandable how a mother would blame herself in KF’s situation, even though she was not responsible. There was no ‘failure to thrive’ by the children, apart from Patrick’s difficulties with epilepsy and blindness, and they were well-nourished and cared for. KF appeared to be utterly distraught when the ambulance officers, the former police officer Mr. Saunders and others came to the house after the deaths of the children.

The trials of KF miscarried as a result of evidence being led from experts to the effect that they were unaware of any previous case in medical history where three or more infants in one family died suddenly as a result of disease processes.

Opinion evidence was given by four witnesses, three of whom: Professor Herdson, Professor Berry and Dr. Beal, were called in the Crown case; and one of whom: Professor Bayard, was called in the defence case.

It is necessary to say something about some of the evidence which the Crown sought to lead at trial from Dr Allan Cala, a very experienced forensic pathologist, who performed the post-mortem examination of the child, Laura. The Crown sought to lead from Dr. Cala evidence to the following effect:

[1] That Dr Cala was not aware from his own experience or from reading medical literature that any child has ever died from a floppy larynx, a condition from which Caleb suffered.

[2] That no cause of Caleb’s death had been found.

[3] That in the light of the evidence of Dr Wikinson, Patrick’s ALTE was consistent with his having suffered from a catastrophic asphyxiation event deriving from unknown causes; and that no cause of Patrick’s death could be found.

[4] That it was inappropriate for Professor Hilton to call Sarah’s death a SIDS death.

[5] That no cause could be assigned for Laura’s death.

[6] That he could not think of any single natural cause that would account for all four deaths.

[7] That there was in his view an unnatural cause which could account for all the deaths, namely smothering.

[8] (Possibly) that each of the four children died from an unexpected catastrophic asphyxiation event of unknown origin.

His Honour said:

“(Dr Cala) used to be employed as a pathologist in the New South Wales Institute of Forensic Medicine in Sydney, and in that capacity carried out an autopsy on the body of the child Laura, and provided a report for the Coroner. In his report he stated his inability to determine the cause of Laura’s death.

Such a conclusion is to be distinguished from one that a death is a SIDS death. The acronym SIDS is made up from the initial letters of the words Sudden Infant Death Syndrome. Having heard a number of expert witnesses give evidence about its meaning, I have the impression that it means no more than this, that the epithet is assigned to the death of a child of appropriate age who is believed to have died of a natural cause or natural causes, which cause or causes cannot be identified.

According to Dr Cala, the difference between the two conclusions is that a death should not be described as a SIDS death if unnatural causes, which for present purposes means deliberate or accidental trauma, cannot be excluded .

Trial evidence from Dr Berry was that:

Sudden death of four infants in the same family who were previously well (in the case of Patrick before his initial collapse) due to natural disease is unprecedented in my experience, and I know of no substantial examples in the literature. Nevertheless, it is important to explore this possibility.

The sudden and unexpected death of three children in the same family without evidence of a natural cause is extraordinary. I am unable to rule out that Caleb, Patrick, Sarah and possibly Laura were suffocated by the person who found them lifeless, and I believe that it is probable that this was the case.

Objection has also been taken to passages from Professor Herdson’s report, but the only one now in dispute is this:

I am unaware that there had ever been three or more thoroughly investigated infant deaths in one family from sudden infant death syndrome.

As I understand it, the defence does not object to the qualifications of Dr. Berry and Professor Herdson as highly experienced medical practitioners in the field of infant death and its causes.

What is submitted, as I understand it, is that what those witnesses would be doing, if permitted to express those opinions, would be reasoning by way of an opinion which they were not entitled to have. The evidence would therefore be non expert opinion, as that term is defined in section 79 Evidence Act.

For the most part I disagree with that submission. It seems to me that both witnesses can give evidence based upon their experience, both on their own account and from their knowledge from communication with other experts in their field of the incidence of unexplained infant deaths. It seems to me to be permissible for Dr. Berry to give evidence that the sudden death of four infants in the same family who were previously well due to natural disease is unprecedented, and he can make that statement of opinion from his own experience. He can also say that he knows of no substantiated examples from the literature.

So long as he deals with the cases individually and does not rely on the kind of coincidence reasoning against which I ruled in considering Dr Cala’s evidence, it seems to me also that Dr. Berry is entitled to say that he is unable to rule out that Caleb, Patrick, Sarah and possibly Laura were suffocated.

It would not be permissible, however, for him to continue to say that he could not rule out that they were suffocated by the person who found them lifeless, because although in one sense unexceptionable, that is a piece of loaded evidence and liable to be misunderstood by the jury. He should not, in any case, say that he thinks that it is probable that that was the case.

Conformably with my decision about Dr. Berry’s challenged evidence, I think it permissible for Professor Herdson to say that he is unaware that there have ever been three or more thoroughly investigated infant deaths in one family from sudden infant death syndrome.”

The Crown case, as finally presented to the jury, was a circumstantial case depending upon the combined effect of bodies of evidence respecting, in the case of each child:

The circumstances of that child’s death, including in Patrick’s case the circumstances of his previous ALTE;
The similarities, said by the Crown to be striking, between those circumstances and the comparable circumstances in each of the cases of the other three children;
The results of the various medical examinations, and post-mortem examinations, carried out on that particular child;
The results of the various expert medical reviews of the deaths of the four children; Things said, done, or recorded in her diary, by KF.

As to Caleb

Dr. Springthorpe was firm in the view that the “floppy larynx” had nothing to do with Caleb’s death.

Professor Byard, a specialist forensic pathologist called in the defence case, gave as his diagnosis of Caleb’s death “an undetermined cause of death”. His reasoning to that end would be: “because we don’t have sufficient information. We have the death scene undescribed. We don’t have histology of the brain, and we have got this history of him having problems with his breathing, with a diagnosis of floppy larynx”.

Professor Byard was of the opinion that there were no positive medical or pathological signs of suffocation. To say that the cause of Caleb’s death was undetermined did not imply that SIDS was excluded as a possible cause.

In my opinion it was clearly open to the jury to accept the evidence of the Crown witnesses, and to prefer that evidence to the contrary evidence of Professor Byard. In that event it was clearly open to the jury to accept that the evidence did not leave open as a reasonable possibility that Caleb had died from an identified natural cause.

Professor Byard gave opinion evidence that Patrick’s ALTE could possibly have been caused by encephalitis or by epilepsy. He said that looking at the ALTE in isolation, there were no findings or symptoms which could amount to proof that the ALTE had been caused by suffocation.

Professor Herdson’s opinion was that Patrick’s ALTE had arisen from a sudden catastrophic asphyxiating event of unknown causes.

In my opinion it was reasonably open to the jury to find that the overwhelming preponderance of the relevant medical evidence did not leave it open as a reasonable possibility that Patrick’s ALTE had been caused by an identified natural cause.

As to Patrick’s Death

Dr Khaira’s position was that he could not assign a cause of death. There were no signs apparent to him, of manual asphyxiation. Dr. Kan did not exclude a catastrophic asphyxiating event. The competing opinions which were expressed by Professors Herdson, Berry and Byard and by Dr. Beal.

I have to say that I do not see why the jurors, who saw and heard the relevant witnesses, could not reasonably have found that the preponderance of that evidence did not leave it open as a reasonable possibility that Patrick’s death, like his previous ALTE, had not been caused by some identified natural causes.

As to Sarah

Professor John Hilton performed the post-mortem examination of Sarah’s body. Professor Byard - how many autopsies have you done? A. 600 paediatric and about, I think, 1500 to 1600 adults. I think that in relation to Sarah you found that her death was from undetermined causes? A. That’s correct. Q. And – of course that also includes deliberate suffocation? A. That’s correct.”

In my opinion it was open to a reasonable jury to accept that the entirety of the foregoing evidence excluded Sarah’s uvula as an identified natural cause of death; and excluded any other identified natural cause of death.

As to Laura

Dr Cala, to whom reference has been made earlier herein, conducted a post-mortem examination of Laura. He found, among other things, inflammatory infiltrate on Laura’s heart. Of this, Dr. Cala said in-chief:
“Q. Now is that sort of finding, the finding that you found on Laura’s heart of inflammatory infiltrate, consistent with the after effects of a cold or flu?
A. I believe so.
Q. In your opinion did it play any role in causing her death?
A. I don’t believe so.
Q. Would you explain to the court why you have that opinion?
A. As I said, the heart was normal to the naked eye, but my microscopic examination did reveal inflammation of the heart. Having said that, the inflammation was quite patchy and rather mild in the sense that although the inflammation existed it was of a rather low amount as opposed to other cases that I’ve seen where the inflammation was much heavier in the heart and in other organs.
Q. Where the inflammation is much heavier, can it cause death?
A. Yes.
Q. And where it causes death is that a condition that is known as myocarditis?
A. Yes, it is.
Q. And if somebody had died of myocarditis of the kind that you have described, what would you expect to see in and around the heart?
A. I’d expect to see a number of things. The heart may, but not always, I have to say, it may be flabby and have a – when you cut through the pump of the heart, the left ventricle in particular, it may have a stripey appearance. In other words, areas of paleness against areas of more normal looking heart, and that is just the way that the inflammatory process is.
Q. Did you find any of those in Laura’s case?
A. No. This is with the naked eye, looking at the heart with the naked eye. The left ventricle, that is the main pump of the heart, may be a bit flabby and the chamber itself may be a bit dilated. I didn’t find those changes in this case.
Then there may be evidence of heart failure because a number of these people, both children and adults, may have myocarditis and it presents clinically to doctors as heart failure, so they may have fluid around the lungs and they may have fluid in the abdomen and I didn’t find either of those things in this case.”

And later:

“Q. What do you say to the possibility that she died of myocarditis?
A. I think, it’s known that myocarditis can cause sudden death, usually by cardiac rhythm disturbance, and I can’t say that didn’t happen with Laura but I think it’s, in all likelihood, very unlikely.
Q. Is it a reasonable possibility in your opinion that she died from myocarditis?
A. I don’t believe it is.”

And again:

“Q. What do you say as to whether or not the death of Laura can be regarded as just another SIDS case?
A. Well, I don’t believe that’s correct at all.
Q. And why is that?
A. Firstly, Laura was about 20 months old when she died. Now SIDS, as I said, is an invented term but nevertheless to classify a death as SIDS it generally falls within the age of about three to six months of age. So she is clearly three times, over three times the age for that, and that by itself, and I think that’s a very important thing to consider, in my opinion would categorically exclude this child’s death as being due to SIDS, irrespective of any family history of other deaths and so on. In isolation this would not and should not be called SIDS.”

The course of this evidence drew from Mr Zahra SC this statement:

“There is no issue that this was a SIDS death. It is not part of the way the accused’s case will be run.”

Much later, and at the end of his examination-in-chief, Dr. Cala gave this evidence:

“Q. In relation to Laura, you have already told us that your diagnosis was that her cause of death was undetermined?
A. Yes.
Q. That it was consistent with smothering?
A. Yes.
Q. Including deliberate smothering?
A. Yes.
Q. And that she probably died from an acute catastrophic asphyxiating event of unknown causes?
A. Yes.
Q. Now, putting those four individual children together is this correct, that they all died from what in your view should have been diagnosed as undetermined causes?
A. Yes.
Q. That they all died in circumstances consistent with deliberate smothering?
A. Yes.
Q. And that they all possibly died from an acute and catastrophic asphyxiating event of unknown causes?
A. Yes.
Q. Is there any natural cause of death that could account for all those four deaths and the ALTE?
A. No.”

In cross-examination Dr. Cala gave this evidence:

“Q. You can point to nothing, so far as your findings overall of Laura are concerned, that can specifically be attributed to suffocation?
A. Because there are no positive findings for suffocation, and my finding of no positive findings doesn’t exclude suffocation.
Q. Yes. Do I understand the essence of what you are saying is that because there was nothing, you can’t exclude it?
A. Because there was nothing to be found still does not exclude suffocation.
Q. Because it doesn’t necessarily follow that if there was suffocation that there could be signs?
A. That’s correct.
Q. So your process of reasoning in this case that you can’t exclude suffocation or that it is consistent with suffocation is always based on that foundation, that there are no symptoms, therefore you can’t rule it out?
A. Yes. There are generally no positive signs of suffocation, so in essence you can almost never rule it out.”

Bearing in mind that the defence case at trial was that it was a reasonable possibility that Laura had died from myocarditis, the following evidence in cross-examination of Dr. Cala is important:

“Q. Looking at this case in isolation, the autopsy you carried out, can you exclude myocarditis as the cause of death?
A. I can’t exclude it as a cause of death.
Q Might you have given the cause of death as myocarditis looked at individually?
A. I don’t think I would because, although it was present, the amount of inflammation was not particularly heavy. There wasn’t any evidence of heart failure, the heart to the naked eye looked pretty normal, so – and not only that, there was evidence in other organs, the lungs and spleen in particular, of lymphocytes being in there as well. In other words, indicative of some viral infection that Laura was suffering from around the time of her death.
Q. Did you write to a Detective Ryan on 19 June 2001?
A. Yes.
Q. And did you answer a number of questions?
A. Yes.
Q. And did you say this on the second page of that letter:
“If I examined the body of Laura in isolation, I might give the cause of death as myocarditis.”
A. Yes.
Q. Is that your view today?
A. Well, I said in the letter I might, and if I was pushed I would take it no further than I might, but I have to – for the reasons that I have given, that the amount of inflammation and so on was not particularly heavy and there weren’t any overt signs of heart failure, and so on. But I have to say, as I have said, I can’t exclude the possibility that this child did not die of myocarditis.
Q. Particularly in the absence of any other pathology that you can’t exclude myocarditis?
A. There really was no other significant pathology that I found, either with the naked eye or looking down the microscope to account for the child’s death.”

In re-examination Dr. Cala amplified the selected excerpt that had been put to him out of his letter to Detective Ryan. It suffices to quote one further extract from that letter:

“My opinion that the inflammatory infiltrate in the heart represents an incidental finding is not based on the family history but, rather, after consideration of the history provided of Laura’s very sudden and most unexpected death, the post-mortem findings of Laura and the histological assessment of the heart together with my own knowledge and experience of the condition of myocarditis”

Professor Byard gave in-chief this evidence:

“Q. What is your diagnosis in the present case?
A. I’ve put the cause of death as undetermined because I can’t exclude myocarditis as the cause of death.
Q. What is your process of reasoning, coming to the conclusion of that being undetermined?
A. If I looked at her cases in isolation I would, without anything else, I would have said myocarditis. But the fact that there have been other deaths in the family makes me less certain that I can say myocarditis. So I said undetermined cause because of the circumstances.”

And later:

“Q. Looking at the finding on pathology of Laura in isolation, what would you have as to the cause of death?
A. In isolation, looking at slides, I have no doubt the cause of death was myocarditis.
Q. Looking at all the findings of pathology of Laura in isolation, is there any finding or symptom which could amount to proof of suffocation?
A. No, no, there is not.”

In cross-examination Professor Byard gave this evidence:

“Q. Now, do you agree that Laura’s myocarditis could be incidental to her death?
A. Yes.
Q. And do you agree with Dr. Cala, that the myocarditis is probably unrelated to her death?
A. No, I don’t.
Q. I would like to put a hypothetical situation to you. If a child, like Laura, had a cold or a flu that had caused mild myocarditis, and the child’s mother deliberately smothered her, without leaving any signs, then do you agree that many pathologists would wrongly conclude that Laura had died from myocarditis if they were viewing Laura’s case on its own?
A. Yes.
Q. And do you agree that that is a distinct possibility in this case?
A. I think that is a possibility.”

And later, after a body of evidence directed to a publication of Professor Byard’s own:

“Q. Do you agree that there is a greater chance that she died of some other cause than that she died of myocarditis?
A. I suppose if we are speaking purely statistically, yes.
Q. And there is nothing that you have seen in any of the medical records relating to Laura that would cause you to doubt the applicability of those statistics to her case; is that right?
A. Yes, I think that’s right.
Q. Would you also agree that most people – and I deliberately say people, meaning adults and children – most people who have myocarditis, don’t die?
A. I think that is probably correct, yes.
Q. And of those who do die, of those people – adults and children – who do die, most of them have symptoms?
A. Yes, I think that’s correct.
Q. So for all of those reasons, would you agree with this; that if myocarditis was the cause of Laura’s death it was a quite unusual case?
A Yes
Q. Professor, you have given evidence that it is possible in this case that all four of these children died from suffocation?
A. Yes.
Q. And I take it that you also agree that it is possible that Patrick’s ALTE was caused by suffocation?
A. Yes.
Q. And by suffocation you would include deliberate suffocation by an adult?
A. That’s correct.
Q. Would you agree with this; that it is not a reasonable conclusion to say that they all died from the same natural cause?
A. I think that’s – could you repeat that again?
Q. Yes. Do you agree with this: That it is not a reasonable conclusion that they all died from the same natural cause?
A. Yes. I think that’s a reasonable statement.”

In re-examination Professor Byard reaffirmed his view that myocarditis could not be excluded positively as the cause of death; and that, in more general terms, he could not exclude that Laura had died of natural causes.

The whole of the foregoing analysis of the medical evidence establishes, in my opinion, that it was amply open to the jury, which saw and heard the witnesses, to reject the defence hypothesis that each of the five relevant events could be explained away as having derived from identified natural causes; and so to be satisfied beyond reasonable doubt that the Crown had demonstrated that the five events could not be so explained away. I am myself, and as a matter of independent assessment of the evidence, of the same opinion.

The next step in the present consideration of Ground 2 focuses upon the only real hypotheses remaining in a practical sense open on the evidence: namely, first, death or ALTE caused by unidentified natural causes; or secondly, death or ALTE caused by unnatural causes.

It is pertinent to add the following evidence taken from the cross-examination of the leading defence expert, Professor Byard:

“CROWN PROSECUTOR: Q. Professor, you would agree with me, would you not, that it is often impossible to distinguish between SIDS and suffocation?
A. Absolutely, yes.
Q. And you would also agree with me, wouldn’t you, that suffocation, including deliberate suffocation by an adult of a child, often leaves no trace behind?
A. Particularly with a baby or young child.
Q. Is this the case : That in these four cases of the four children, you cannot exclude deliberate suffocation by an adult as a cause of death for any of them?
A. In these cases and in a number of my other baby cases, because there is no pathology, no definite pathology so, no, it can’t be excluded.
Q. In this case; each of these children died or had an ALTE suddently?
A. Yes.
Q. In this case each child died or had an ALTE unexpectedly?
A. Yes, I think to say that Patrick’s death wouldn’t be unexpected given the history but the ALTE was unexpected.
Q. Next, you have been made aware each child died or had ALTE, apparently during a sleep period?
A. Yes.
Q. And in this case you have been made aware that each child died or had an ALTE at home?
A. Yes, I believe so.
Q. Have you yourself ever had a case in your practice in which there have been three or more children in the one family who have all died or had an ALTE suddenly, unexpectedly during a sleep period at home?
A. No, I haven’t.
Q. Have you from your discussions with your colleagues, either here in Australia or overseas, ever heard of a case of three or more children in the one family who have all died or suffered an ALTE suddenly, unexpectedly during a sleep period at home?
A. That’s less easy to answer because there are cases that have been recorded in the literature of up to five deaths or more in a family that has been attributed to SIDS. These are cases from a number of years ago.
Q. Could I interrupt you there: Is it now considered by the medical profession that they were not SIDS?
A. I believe so, yes.
Q. So perhaps if I can refine my questions a little bit. Have you become aware from discussions with your colleagues of any case of three or more children present in one family who have all died of natural causes suddenly, unexpectedly during a sleep period at home?
A. I can’t think of any cases.
Q. You can’t think of any?
A. That’s right.
Q. Are you aware of any such cases from a review of the medical literature?
A. No, I’m not. Although I think that some of the very rare metabolic conditions could cause it and some of the cardiac conditions might cause it, but I can’t come up with a paper that details this.
Q. Are those cardiac and metabolic conditions, conditions that you have been told have been excluded in these cases?
A. That’s correct.”

There is to be added to that material the evidence of the relevant contents of KF’s diary. There is a deal of this material, and it cannot be fairly compressed into a brief paraphrase. The Crown’s written submissions extract a little over five A4 pages of diary entries. I set out a number of portions of that extract, acknowledging the selectivity of that method, but concentrating on particular entries that give, in my view, a fair, representative idea of the relevant material:

“3 June 1990: This was the day that Patrick was born. I had mixed feelings this day. wether or not I was going to cope as a mother or wether I was going to get stressed out like I did last time. I often regret Caleb & Patrick, only because your life changes so much, and maybe I’m not a Person that likes change. But we will see?

18 June 1996: I’m ready this time. And I know Ill have help & support this time. When I think Im going to loose control like last times Ill just hand baby over to someone else.

.... I have learnt my lesson this time.

4 December 1996: [found out she was pregnant]. I’m ready this time. But have already decided if I get any feelings of jealousy or anger to much I will leave Craig & baby, rather than answer being as before. Silly but will be the only way I will cope.

1 January 1997: Another year gone & what a year to come. I have a baby on the way, ...... This time. I am going to call for help this time & not attempt to do everything myself any more – I know that that was the main Reason for all my stress before & stress made me do terrible things.

4 February 1997: Still can’t sleep. Seem to be thinking of Patrick & Sarah & Caleb. Makes me generally wonder whether I am stupid or doing the right thing by having this baby. My guilt of how responsible I feel for them all, haunts me, my fear of it happening again haunts me.

....... What scares me most will be when Im alone with baby. How do I overcome that? Defeat that?

16 May 1997: .... Craig says he will stress & worry but he still seems to sleep okay every night & did with Sarah. I really needed him to wake that morning & take over from me. This time Ive already decided if ever feel that way again I’m going to wake him up.

25 October 1997: .... I cherish Laura more, I miss her [Sarah] yes but am not sad that Laura is here & she isn’t. Is that a bad way to think, don’t know. I think I am more patient with Laura. I take the time to figure what is rong now instead of just snapping my cog. ... Wouldn’t of handled another like Sarah. She’s saved her life by being different.

29 October 1997: felt a little angry towards Laura today. It was because I am & was very tired. ... she [Laura] doesn’t push my Button any where near the extent she [Sarah] did. Luck is good for her is all I can say.

3 November 1997: Lost it with her earlier. Left her crying in our bedroom – had to walk out – that feeling was happening. And I think it was because I had to clear my head & prioritise. As I’ve done in here now.

I love her I really do I don’t want anything to happen.

9 November 1997: ... he [Craig] has a morbid fear about Laura. ... well I know theres nothing wrong with her. Nothing out of ordinary any way. Because it was me not them. ... With Sarah all I wanted was her to shut up. And one day she did.

19 November 1997: Bit nervous tonight. Laura $ I are by ourselves tonight.”

“8 November [sic, December] 1997: Had a bad day today, lost it with Laura a couple of times. She cried most of the day. Why do I do that. ... Got to stop placing so much importance on myself. --- funny how, now she’s [Laura’s] here, we can’t seem to imagine a life without her dominating every move. Much try to release my stress somehow. I’m starting to take it out on her. Bad move. Bad things & thoughts happen when that happen. I will never happen again.”

“New Year’s Eve, 1997: Getting Laura to be next year ought to be fun. She’ll realise a Party is going on. And that will be it. Wonder if the battle of the wills will start with her & I then. We’ll actually get to see. She’s a fairly good natured baby – Thank goodness, it has saved her from the fate of her siblings. I think she was warned.”

28 January 1998: I’ve done it. I lost it with her. I yelled at her so angrily that it scared her, she hasn’t stopped crying. Got so bad I nearly purposely dropped her on the floor & left her. I restrained enough to put her on the floor & walk away. Went to my room & left her to cry. Was gone probably only 5 minutes but it seemed like a lifetime. I feel like the worst mother on this earth. Scared that she’ll leave me know. Like Sarah did. I know I was short tempered & cruel sometimes to her & she left. With a bit of help. I don’t want that to ever happen again. I actually seem to have a bond with Laura. It can’t happen again. Im ashamed of myself. I can’t tell Craig about it because he’ll worry about leaving her with me. Only seems to happen if I’m too tired her moaning, bored, wingy sound, drives me up the wall. I truly can’t wait until she’s old enough to tell me what she wants.

6 March 1998: Laura not well, really got on my nerves today, snapped & got really angry, but not nearly as bad as I used to get.

13 March 1998: Seem to have a good day. She didn’t piss me off more than a couple of times.

1 April 1998: Thought to myself today. Difference with Sarah, Pat, Caleb to Laura, with Laura I’m ready to share my life. I definitely wasn’t before.”

132 These entries make chilling reading in the light of the known history of Caleb, Patrick, Sarah and Laura. The entries were clearly admissible in the Crown case. Assuming that they were authentic, which was not disputed; and that they were serious diary reflections, which was not disputed; then the probative value of the material was, in my opinion, damning. The picture painted by the diaries was one which gave terrible credibility and persuasion to the inference, suggested by the overwhelming weight of the medical evidence, that the five incidents had been anything but extraordinary coincidences unrelated to acts done by KF.

It remains only to consider the English decision in Cannings, upon which the submissions made for KF place great store in the context of Ground 2. It is convenient to begin by quoting the headnote of the report. The headnote sufficiently summarises the relevant facts, and indicates in broad terms the factors that were decisive of the result in that particular case:

“The defendant was the mother of four children, three of whom died in infancy. She was charged with the murder of both her sons, J and M. The charge of murder of her first child, G, a daughter did not proceed. At the trial the Crown adduced evidence that three of the children, including the daughter who survived, had suffered an acute or apparent life threatening event (“ALTE”). The Crown alleged that the defendant had smothered both her sons, intending to kill them or to do them really serious bodily harm by obstructing their upper airways. To support that allegation it was suggested that the death of G and each of the ALTEs suffered by the other children were also the result of smothering by the defendant and that these actions formed part of an overall pattern. The defendant denied harming any of her children. It was her case that the deaths were natural, if unexplained, incidents to be classified as sudden infant death syndrome (“SIDS”). The expert medical witnesses called by the Crown and on behalf of the defendant disagreed about whether three infant deaths and further ATLEs in the same family led to the inevitable conclusion that the deaths were not natural. The defendant was convicted of murdering both her sons.

On her appeal against conviction -

Held , allowing the appeal and quashing the convictions, that where there were one, two or even three infant deaths in the same family, the exclusion of currently known natural causes of infant death did not lead to the inexorable conclusion that the death or deaths resulted from the deliberate infliction of harm; that significant fresh evidence before the Court of Appeal as to the rarity of three natural and unexplained infant deaths in the same family, the interval between the infant’s death, or near death, and the last time when that infant appeared to be well and the possible significance of an ALTE preceding death presented a picture more favourable to the defendant than that which was before the jury; that, accordingly, the basis of the Crown’s case was thereby fundamentally undermined; and that, further, where a full investigation into two or more sudden unexplained infant deaths in the same family was followed by a serious disagreement between reputable experts as to the cause of death, so that natural causes could not be excluded as a reasonable possibility, the prosecution of a parent or parents for murder should not be started, or continued, unless there were additional cogent evidence, extraneous to the expert evidence, which tended to support the conclusion that the infant or infants had been deliberately harmed.”

Those passages sound warnings which are as appropriate to the present appellant’s case as they were to the case of Mrs. Cannings.

Cannings is a case-specific decision, and it has features that are quite different from the features of KF’s case.

One of the principal Crown experts had given evidence in another trial, and it had been demonstrated, but only after the conclusion of that other trial, that his evidence had been seriously flawed. The Court of Appeal thought that it “must reflect on the likely impact on the verdict in the present case if ........ (defence counsel) ........ had been able to cross-examine ....... (the particular witness) ........ and undermine the weight the jury would invariably attach to his evidence by exposing that, notwithstanding his pre-eminence, at least part of his evidence in .... (the other trial) ..... was flawed in an important respect”. There is no such situation present in the expert evidence given for the Crown at KF’s trial.

The Court of Appeal in Cannings received at the hearing of the appeal a body of fresh scientific evidence. This fresh evidence is described as “a substantial body of research, not before the jury, and received by us in evidence .....”. There is no such fresh post-trial evidence before this Court.

The Court of Appeal discusses what it describes as “The Family Context”. In that connection the Court of Appeal considers both trial evidence, and post-trial fresh evidence, about the immediate and extended family tree of Mrs Cannings. The Court concludes that: “That there may well be a genetic cause, as yet unidentified, for the deaths of the Cannings children, manifesting itself in some, but not all of the extended family, through autosomal dominant inheritance with variable penetrance. That would mean that the child in question needed only to inherit the gene from one parent to be liable to develop whatever the genetic mechanism may be”. There is no comparable situation in the present case.

The Court of Appeal emphasises that in the case of Mrs Cannings: “there is no suggestion of ill-temper, inappropriate behaviour, ill treatment let alone violence, at any time, with any one of the four children”. In KF’s case, there is a body of such evidence, and it was not shown to be inherently incredible. That evidence was, rather, bolstered by the diary entries, for which there was no parallel in the Cannings case.

The differences between KF’s case and that of Mrs. Cannings entail that it does not follow that the reasoning which led to the quashing of Mrs. Cannings’ convictions must lead more or less as a matter of course to the quashing of KF’s convictions.

In the present case there was, in my opinion, ample evidence at trial to justify these findings, reached beyond reasonable doubt:

None of the four deaths, or Patrick’s ALTE, was caused by an identified natural cause.

It was possible that each of the five events had been caused by an unidentified natural cause, but only in the sense of a debating point possibility and not in the sense of a reasonable possibility. The evidence of KF’s episodes of temper and ill-treatment, coupled with the very powerful evidence provided by the diary entries, was overwhelmingly to the contrary of any reasonable possibility of unidentified natural causes. So were the striking similarities of the four deaths.

There remained reasonably open, therefore, only the conclusion that somebody had killed the children, and that smothering was the obvious method.

In that event, the evidence pointed to nobody other than KF as being the person who had killed the children; and who, by reasonable parity of reasoning, had caused Patrick’s ALTE by the same method.

 “The trials of KF miscarried as a result of the five charges in the indictment being heard jointly.”

Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.”

The correct construction and application of section 101(2) were considered by a specially convened five Judge Bench of this Court, in R v Ellis (2003) 58 NSWLR 700.

There is no need for an assumption that all such evidence is ‘likely to be highly prejudicial’, nor for guidance that the test for admissibility is ‘one of very considerable stringency’.” Those statements of principle have been subsequently approved by the High Court of Australia: Ellis v The Queen [2004] HCA Trans. 488 (1 December 2004).

This was a matter where, in essence, the Crown case disclosed five events which were, at their highest from the point of view of the Crown, undetermined in their origins. Without such a proven event the approach of the Crown in its endeavours to use the subject evidence had an element of circularity about it. It is suggested that this defect had not been resolved by the close of addresses and the conclusion of his Honour’s summing-up. The circularity is that it rested upon an impermissible assumption that each event (considered individually) was relevant in the sense required by the Evidence Act in that it was a non-accidental death.”

Relevant case law apart, I do not agree with that reasoning.

It seems to me that the four deaths and Patrick’s ALTE satisfy every relevant part of the Evidence Act , the section dealing generally with coincidence evidence. The five events were substantially and relevantly similar. The circumstances in which they occurred were, plainly I should have thought, substantially similar. The five events were, therefore, “related events” in the statutory sense. The admissibility, when considering any one of those events, of evidence respecting all four other events depended, therefore, upon the test: Does the Court which is asked to admit the coincidence evidence “think” that the particular evidence has “either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence”, what the section describes as “significant probative value”?

Had any one of the five counts charged in the present case been severed and tried separately, there must have been a Crown application to lead as coincidence evidence, evidence that the event central to the severed count was not, in truth, an isolated event at all; but was, rather, but one in a chain of events that were “related events”; that whole chain of events having occurred in such an overall context, of which the diary entries were a most cogent feature, as to negate any reasonable possibility of mere, albeit somewhat astonishing, coincidence.

I can see no persuasive argument that would have rendered the proposed coincidence evidence inadmissible. There is, as it happens, authority which seems to me to support the foregoing reasoning.

In my opinion no one of the grounds of appeal has been made good; and I would, therefore, dismiss the convictions appeal.

The other judges agreed with Sully J.

http://netk.net.au/Cala/Folbigg.asp

Sinistrogyrous or Regressive

This is how we call writing which letters are slanted towards the varying between 92º and 150º. In this case (letter which is slanted towards the left) there is no progression, no moving forward. This means that there is a defensive attitude, of rejection and repression. Introversion, disassociated conduct that does not manage to express what the individual feels. Represses impulses and need for affection and contact. Who has lacked affection during childhood, in adulthood will feel conditioned to avoid friction, conflicts, that might be associated to old inner frustrations. Inverted writing expresses repression, for whatever reason, the person fears, distrusts and is not able to free his tendencies. Feels distrusts of the intentions of the ones that surround him, inferiority feelings, narcissism, egocentrism. May also be slowness in ideas , but with great ability for concentration. These are very discrete individuals, cautious, reserved and prudent. Introverted and insecure. They demand protection. They establish dependent relationships since they were not able to detach from the mother. They present difficulties for social adaptation. This writing is hard to interpret. That is why it is necessary to confirm with other signs.

That could easily apply to her , if you listen and read some of the things that have come out about her.  Rejection, lack of affection, etc, when you take into account her father murdered her mother.

Caleb was baby No 1 and they had no suspicions then.  Just accepted it as cot death.  If there hadnt been 3 more after him maybe she would have got away with him.   But when baby 2, 3 and 4 all go the same way anyone in their right mind would have to have a rethink.  I find it hard to believe the husband didnt think to himself, "hang on, we cant be this unlucky to have all these kids that just keep dying " .

If it should happen again in our lifetime the defendant will have and should have at least 2 examples NOW of 3 or more children dying from SIDS. And this approach from the prosecution will be inadmissible.

Aurelius wrote: acacia alba wrote: Go search it yourself, Djebel.  Its been on every news site for weeks now, while her appeal has been in the courts.  You cant be that silly you cant find it yourself,  surely ??   It was a major feature of her original trial and conviction, and again the last few weeks.   Every man and his dog has seen it . Then to cap her appeal she started talking rubbish about a  "higher being " taking her kids.     Watching you harass Djbel makes me realise how Dolly parents felt. Oh but hang on your part female arn't you.

Reading this thread for the first time. Absolutely astonishing how someone can take up a cause like this, become completely obsessed and completely disregard the evidence , jury verdict and subsequent investigation

Baby-killer Kathleen Folbigg's appeal bid fails

By Sarah Gerathy

Should be free soon. 

BREAKING: The NSW Governor has directed a second inquiry into Kathleen Folbigg, who was convicted of killing her 4 children. It follows a petition highlighting a genetic mutation found in her two daughters, adding 'enough of a question or doubt' says NSW AG Mark Speakman.

Full pardon, to be released immediately.

Her support team has it covered apparently. Considered a formality to have conviction overturned and then compensation can be sought.

 She should never have been convicted of murder.

The initial forensic evidence of baby blood in the boot of the car was tantamount in finding the Chamberlain lady being found guilty of murder , but later found to be flawed evidence .

People often write ambiguous entries in diaries when under stress or depressed. They could eaily be construed as suspicious when they are merely thought processes.