A directions hearing was held this week in preparation for the inquiry into Kathleen Folbigg’s convictions.
A Sydney courtroom was packed on Thursday for the first mention of the inquiry. Legal representatives appeared for Folbigg, NSW Police and NSW Health, while Kathleen’s supporters were also in attendance.
Former chief District Court judge Reginald Blanch QC – who is leading the inquiry – said proceedings were unlikely to begin until February or March next year and would examine new evidence from forensic pathologists.
Senior counsel assisting the inquiry Gail Furness told the hearing the convictions were based on circumstantial evidence and four new reports from medical experts suggest the deaths could be explained by unidentified natural causes.
“Three of the reports concern the cause of the deaths and one is addressed to the use of diary evidence. None of those authors gave evidence at the trial,” Furness said.
Monash University forensic pathologist Professor Stephen Cordner concluded in his report that “there is nothing from a forensic pathology viewpoint to suggest that any of the children had been killed”.
Furness said the report by Cordner indicated there were natural causes of death for two of the children, Patrick and Laura, and natural causes were a plausible explanation for the other two deaths, Caleb and Sarah.
A peer-reviewed report on Cordner’s work, which will also be examined, suggested the “jury was almost certainly misled by statement made by experts regarding the rarity of multiple cases of SIDS [sudden infant death syndrome]”.
Furness submitted that the inquiry should focus on any new research or medical evidence about sudden infant death, and expert medical opinion as to the causes of death of each child.
She said a report from a clinical psychologists that suggested Kathleen’s diary entries did not contain a clear admission of guilt did not generate enough doubt to warrant further examination.
Folbigg’s barrister Robert Cavanagh (pictured above leaving the court) said he did not disagree the focus should primarily be on medical evidence.
The court heard Legal Aid has funded a senior barrister to represent Kathleen, who is expected to be briefed by the end of the year, when the inquiry will return for another directions hearing. The first hearings could be as soon as late February 2019.
Outside court, barrister Isabel Reed, who has been one of the lawyers working on the review, said her client was “as well as could be expected”.
Documents and information about the inquiry, including sitting dates, will be listed on its website, folbigginquiry.justice.nsw.gov.au.
A directions hearing for Kathy’s case has been listed for 10am on Thursday, October 25, 2018 in courtroom 2.1 of the Industrial Relations Commission in Sydney.
Any person who considers that he or she has information that may assist the inquiry has been asked to contact the following:
Inquiry into the conviction of Kathleen Megan Folbigg
GPO Box 25, Sydney, 2001
Or email: firstname.lastname@example.org
Announcements in relation to the inquiry will be made on the inquiry’s website at http://www.folbigginquiry.justice.nsw.gov.au
Also, here is the information that was contained in “Direction pursuant to section 77(1)(a) of the Crimes (Appeal and Review) Act 2001” by General David Hurley AC DSC (Ret’d)
His Excellency, Governor of New South Wales:
Pursuant to section 77(1)(a) of the Crimes (Appeal and Review) Act 2001 his Excellency, the Governor of New South Wales, has directed that an inquiry be held into the convictions of Kathleen Megan Folbigg for three counts of murder, one count of manslaughter and one count of maliciously inflicting grievous bodily harm in respect of her four children on 21 May 2003.
WHEREAS it appears that there is a doubt or question as to part of the evidence in the
proceedings leading to the conviction of Kathleen Megan Folbigg on 21 May 2003 of the
1. the manslaughter of Caleb Folbigg on 20 February 1989;
2. maliciously inflicting grievous bodily harm upon Patrick Folbigg on 18 October 1990,
with intent to do grievous bodily harm;
3. the murder of Patrick Folbigg on 13 February 1991;
4. the murder of Sarah Folbigg on 30 August 1993; and
5. the murder of Laura Folbigg on 1 March 1999;
AND WHEREAS that doubt or question concerns evidence as to the incidence of reported
deaths of three or more infants in the same family attributed to unidentified natural causes;
PURSUANT to section 77(1)(a) of the Crimes (Appeal and Review) Act 2001, I direct that an inquiry be conducted into the said convictions in accordance with the provision of Part 7 of the said Act; and
PURSUANT to section 81(1)(a) of the said Act I hereby appoint the Honourable Reginald
Oliver Blanch AM QC, formerly a judicial officer within the meaning of the Judicial Officers Act 1986, to conduct an inquiry into the said convictions, having particular regard to the said evidence, with the powers and authorities conferred on a commissioner by Division 2 of Part 2 of the Royal Commissions Act 1923 (except for section 17).
We’re thrilled to hear that Gail Furness, SC, will assist retired NSW District Court chief judge Reg Blanch, QC, in the inquiry into Kathy’s case.
The team at Justice for Kathleen Folbigg believes the appointment of Furness is a positive development.
“We are very happy to know that Reg and Gail are heading up the inquiry given their backgrounds and history of appointments to date,” said Tracy Chapman. “Their reputations for getting to the heart of matters fairly gives us hope that the matters raised by barristers Isabel Reed, Robert Cavanagh and their team more than five years ago.
“Obviously, we’d like to see Kath set free, but one step at a time. This is a significant move in the right direction.”
Furness was the counsel assisting the Royal Commission into Institutional Responses to Child Sexual Abuse, including the questioning of Cardinal George Pell about his management of abuse survivor John Ellis’ legal compensation case against Sydney Archdiocese.
A spokesperson for Attorney General Mark Speakman confirmed Ms Furness’ appointment on Monday.
We are still waiting to hear whether the inquiry will be held in Newcastle or Sydney. Isabel has approached the Attorney-General about having it in Newcastle, but that will probably be decided at the directions hearing.
Kathy will not be at the directions hearing, but is expected to attend the full inquiry.
It was great to finally see Kathy again at Silverwater Detention Centre on Saturday.
It’s been a long time between visits – I’d only managed to drive up from Sydney to Cessnock to see her once during her time there.
She’s anxiously preparing for the judicial inquiry into her case, after almost three years of waiting to hear if she’d be given the chance.
It hasn’t been easy riding that emotional rollercoaster of hope and fear for so long. No one thinks of the person trapped in the process.
Kathy has been in jail for more than 15 years now. She still has more than 10 years of her sentence to serve.
I arrived on Saturday for a 12.40pm visit, but no one ever gets inside until it’s waaaaaay after 1pm. It takes forever to process everyone’s visitor forms, check their fingerprints and irises and usher them through the metal detectors.
The guards wrap the visits up just before 3pm.
You feel sad for the kids who only get to see their mums for such a short period of time.
There were lots of kids there on Saturday, sweet-faced ones with ponytails, little terrors darting around the waiting room, tired bubbas sobbing in their prams.
Visiting jail is totally bizarre, yet completely normal experience.
I’ve seen a little girl in a pink dress playing hopscotch beside a barbed wire fence, pausing to wave and shout “Bye Daddy” as she glimpsed her father being taken back to his cell.
I’ve watched a visitor coo when a prison guard showed her snapshots of his new baby.
And I’ve overheard some fascinating conversations. One of the most colourful was when a woman wearing fuzzy bed socks and chain-smoking started ranting loudly about being called up for jury duty for the second time in just a few months. She told the authorities: “Look, my daughter’s in jail for f@#kin’ murder. I don’t feel like being on a f@#kin’ jury right now. And they got straight back to me that I didn’t have to f@#kin’ do it.”
When we finally get inside the visitors’ room, we sit on pastel-painted metal stools, bolted to the floor and arranged around a little bolted-down metal table, like some Tim Burton-style nightmare version of fairy toadstools.
Kathy wears a white canvas jumpsuit, secured with an electrical cable tie at the neck. We sip cans of Diet Coke and snack on bags of Mars Bar Pods and Kettle Chips from the junk food machines in the hallway.
We talk about her latest upheavals in protective custody and her hopes of getting a job to ease the boredom and pay for the ever-increasing number of items that are on “buy-up”. When I first started visiting you could sent pyjamas, underwear, books and other items, but they’ve all been banned now.
We discuss her return to Silverwater and how she vomited repeatedly from the stress of being locked in a prison van to be transported from Cessnock jail back to Sydney.
She never fails to amaze me with her strength and resilience in the face of the challenges her daily life presents.
When visiting hours end, all too soon, everyone hugs and cries as they separate.
I watch a couple embrace and the woman call over her shoulder as she returns to her cell: “See you in court on Thursday! I love you!”
So mundane, yet so otherwordly at the same time.
I walk out of the security doors and into the sunlight I feel so grateful to be free.
I don’t have many jail pictures to share with you, because they are verboten for security reasons.
There was a total furor when one of Kathy’s cellmates once sold photographs (and lies) from inside the prison to a weekly magazine.
But here are a few snaps to give you a brief glimpse of what it’s like …
One of Kathy’s supporters sent us a message that we wanted to share with you.
Here’s what they had to say:
For those of you who thought or assumed that Kathleen gave birth to four completely healthy babies, here is some more information you may not be aware of: on October 17, 1990, Patrick was placed in his cot to go to sleep.
At about 3.30am the following morning, Craig Folbigg was woken by the screams of his wife. He rushed in and Kathleen called an ambulance. The ambulance officers administered oxygen and Patrick responded almost immediately. Patrick was then treated in hospital over a number of days. He was diagnosed as suffering from a major form of epilepsy.
Caleb, Kathleen’s first baby, was diagnosed with a “lazy larynx” after Kathleen and Craig consulted a pediatrician because he had been experiencing difficulty breathing and feeding at the same time.
Sarah was sent home with a sleep apnea blanket to monitor her breathing while she slept, and Laura was also sent home with a sleep breathing monitor. Due to the scarcity of resources, that type of equipment was only ever sent home with babies where there was a genuine need.
In between her pregnancies, Kathleen and Craig consulted geneticists for advice on whether they should have more children.
It is worth thinking about that.
These were all babies with health difficulties right from the start. What do you make of that?
What will the former chief judge of the District Court, the Hon Reginald Blanch AM QC, makes of that when he conducts the inquiry into Kathy’s convictions?
There are a growing number of experts coming forward to offer their assistance and join the respected forensic pathologists who contributed to the Petition that led to the inquiry.
There has been so much progress in medical fields since Kathy’s conviction and many new theories about what might have caused her children’s deaths.
We are so grateful there is finally an inquiry into Kathy’s case. It’s been a long time coming.
It’s been a huge few weeks for Kathy and her supporters following her appearance on Australian Story and NSW Attorney General Mark Speakman subsequent announcement of an inquiry into her convictions.
To top it all off, Kathy was also suddenly transferred last Saturday from Cessnock Jail back to Silverwater Correctional Centre.
So we wanted to give you an update on how she’s going.
Fortunately, Kathy has already had a few visitors at Silverwater, who’ve given her big hugs and report that she’s in good spirits.
While we were initially concerned about the move, she tells us it’s a better alternative to the conditions at Cessnock, which were pretty limited and basic.
Barrister Isabel Reed, who has been one of the driving forces behind gaining an inquiry, said Kathy is over the moon that an inquiry has been granted, but will need time to distill the news.
Fellow barrister Robert Cavanagh has also argued that Kathy needs to be released from jail during an inquiry into “how a miscarriage of justice occurred”.
“You can’t have a conviction where there’s a natural cause of death and yet that’s what’s occurred here and she’s been in jail for 15 years because of it,” he told The Newcastle Herald.
Kathy was also quoted in New Idea saying that those who still feel she is guilty should “do some proper research into my case and the expert opinions included in my Petition and open their minds.”
She admitted that her past 15 years in jail have been incredibly challenging.
She copes by taking it “One day at a time, minute by minute, one foot in front of the other. You make your world the immediate space around you to survive emotionally or depression rules. To survive you need to adjust and adapt. You can’t comprehend what it is like behind prison walls, it’s such a tough, difficult place.”
Kathy thanked her legal team “who have been absolutely incredible and I can’t thank them enough for giving me a reason to hope”.
And she looked to what the future might hold if the inquiry leads to her release.
“I’d like to do some advocacy work to make sure other people don’t go through the hell that I have,” she said. “The manner prosecutions are handled needs an overhaul and Australian needs an independent review body for these sort of cases. I’d also like do do some social justice work, as the current prison system is broken. It’s a revolving door because prisoners with high security classifications aren’t taught life skills, they receive limited education and little support post incarceration.”
We will keep you up to date on Kathy and the inquiry over the coming months.
NSW Attorney General Mark Speakman has announced an inquiry into the conviction of Kathleen Folbigg, regarding the deaths of her four children.
Kathleen was found guilty by a NSW Supreme Court jury in 2003 of the murder of three of her children and the manslaughter of a fourth.
On appeal, the Court of Criminal Appeal imposed a total sentence of 30 years imprisonment with a non-parole period of 25 years. Kathleen has maintained her innocence during the 15 years she has already spent in jail.
The inquiry will be led by Reginald Blanch QC, the former chief judge of the NSW District Court.
Speakman said he carefully considered a Petition for review – sent to the Governor almost three years ago – and formed the view that an inquiry was necessary.
“The petition appears to raise a doubt or question concerning evidence as to the incidence of reported deaths of three or more infants in the same family attributed to unidentified natural causes in the proceedings leading to Ms Folbigg’s convictions,” Speakman said.
“The direction establishing the inquiry requires Mr Blanch to have particular regard to this evidence in conducting the inquiry.”
Speakman also noted: “I have spoken with Mr Craig Folbigg to explain this immensely difficult decision. I am sorry for the renewed distress and pain he and his family will endure because of the inquiry.”
The inquiry is expected to take six to 12 months to complete. Blanch will then prepare a report. If he is of the opinion that there is a reasonable doubt as to the guilt of Kathleen, he may refer the matter to the Court of Criminal Appeal for further consideration.
It’s an emotional day for Kathy’s supporters. We’ll keep you up to date with developments as they unfold.
Thank you to Kathy’s legal team for their hard work and passion.
A must-read for anyone interested in learning more about the path to Kathy’s Petition to the Governor is a book called Murder, Medicine & Motherhood.
It was written by a Canadian legal academic, Emma Cunliffe, who spent six years researching Kathy’s case and concluded she shouldn’t have been found guilty based on the evidence presented in court.
The Petition includes a 120-page report by internationally-respected forensic pathologist Professor Stephen Cordner, which criticised medical evidence given at the trial and concluded that the jury verdict was based on a lot of inaccurate and misleading evidence.
“There is no forensic pathology support for the contention that any or all of these children have been killed. If the convictions in this case are to stand, I want to clearly state there is no pathological or medical basis for concluding homicide,” Professor Cordner said.
Cordner wrote a review of Murder, Medicine & Motherhood for the Australian Journal of Forensic Sciences. It makes for fascinating read. We’ve attached a copy of it below:
Did you watch the Australian Story episode featuring Kathy tonight? What did you think?
We’re still processing our feelings, we’re a bit too close to it all.
It was interesting to read the comments on Australian Story’s Facebook page. While many condemned Kathy, others felt there was reasonable doubt.
Among the supportive remarks:
“Wow. We actually call guilty without evidence of guilt in this country. Utterly shocked by this show. Circumstantial evidence was nothing but agreement about a convenient story as to cause of death: murder! Couldn’t believe my ears when one on the show says there was no evidence, then cites diaries and husband’s opinions and calls that the ‘weight of evidence’. Unbelievable.”
“Very interesting story tonight. Obviously there is insufficient evidence to hold up the convictions and her case should be reviewed. We don’t know the full evidence that was presented at trial but there definitely seems to be a lot of reasonable doubt. Review her case with new modern forensic eyes.”
“This could so obviously be a miscarriage of justice. Those diaries could have been written by any mother who had lost children and felt responsible, without actually being responsible. It’s so clear that the courts could have gotten this so wrong, just as they did in the Chamberlain case. What amazes me is that people are so willing to believe that she is guilty. Although rare there have been cases of multiple infant death in families before, due to genetic causes. What a travesty, a massive miscarriage of justice.”
And we remain convinced that if some of the greatest science minds have grave doubts about her convictions, surely that’s got to mean something.
Thank you for joining us on this difficult journey. We appreciate it.
Today’s the big day for the team behind Justice For Kathleen Folbigg.
Australian Story will feature the latest on Kathy’s story tonight at 8pm.
Here are the first few paragraphs from an article on the ABC site:
Almost every day about 9.30am, Tracy Chapman’s phone rings. “Kath” is the name that flashes up on the screen but before either woman can speak, a robotic American voice interjects.
“You are about to receive a phone call from an inmate at Cessnock Correctional Centre. Your conversation will be recorded and may be monitored. If you do not wish to receive this call, please hang up now.”
Tracy Chapman never hangs up. “Good morning bub, how are you?” she says to her friend, convicted serial killer Kathleen Folbigg.
Since May 2003 when a New South Wales Supreme Court jury found Folbigg guilty of the murder of three of her infant children and the manslaughter of another, their conversation mostly has been banal — chitchat about Folbigg’s daily routines, about the laundry or cleaning or other inmates.
But for the past three years, their conversations have increasingly focused on Folbigg’s frustrations about the NSW Government’s delay in considering her lawyers’ petition for a judicial review of her case.
Read the rest of the story by clicking here and be sure to tune in tonight at 8pm and let us know what you think afterwards.