Proceedings were much quieter on the second day of the Kathleen Folbigg inquiry, without a camera in sight at Lidcombe coroner’s court.
Kathy’s friends Megan and Tracy say the second day in court went well, with four forensic pathologists giving evidence into whether there has been a miscarriage of justice in her convictions.
Megan was impressed with the expert opinions given regarding SIDS and the probable causes of death for Kathy’s four children.
For example, consulting forensic pathologist Johan Duflou noted that he believed Laura died from myocarditis and Patrick from a fit.
The petition that led to the inquiry included a report by Victorian Institute of Forensic Medicine director Professor Stephen Cordner, who said the trial included evidence given under circumstances where a “default diagnosis of murder” was discussed.
“The default diagnosis of murder came into play as an incorrect inference arising from the following question which was asked of some of the doctors: ‘Have you ever heard of a family with three or four sudden unexplained infant or childhood deaths?
“The uniform answer was no, with the inference being that murder was therefore the only alternative. This default position was wrong.
“The fact that an infant can be smothered without leaving signs, the misunderstanding of asphyxia (in particular that it is a diagnosis and/or that it can be diagnosed), and there being no families in the literature with three or four SIDS, contributed significantly to a homicide hypothesis which in fact has little forensic pathology content.”
Questioned by counsel assisting the inquiry, Gail Furness, SC, about whether SIDS always meant a natural death, Professor Cordner stated at the inquiry that it did not.
“We all understand whenever we use the word or term SIDS, there’s always the possibility there may be an unnatural explanation, or there may be a natural explanation we can’t uncover,” he noted.
“So to the extent there was a thought that SIDS was a natural cause of death, I’m not sure I’d completely agree with that.
“It is a term some people may hear as natural death, but I don’t believe that forensic pathologists generally believe they are absolutely saying it is a natural death.”
The second day of the inquiry mainly focussed on Kathy’s first child Caleb’s death, with discussion of the other autopsies to continue on day three.
Pictured: Kathy’s lawyer Jeremy Morris SC.
Kathy’s longtime friends Tracy and Megan (above) have spent the day in Lidcombe coroner’s court watching the hearing into her convictions commence.
Tracy ducked out at one point to give a radio interview to the ABC. Click here to listen to it.
It’s been a huge few weeks for Kathy’s supporters. Tracy also appeared in a 60 Minutes story on Sunday night, which saw reporter Tara Brown question an expert called Dr Ophoven, who admitted she had incorrectly relied on the controversial – and now discredited – Cot Death Theory, made famous by British Professor Roy Meadow, which stated that one cot death is a tragedy, two is suspicious, three murder.
Dr Ophoven used the theory during an eerily similar trial to Kathy’s, that of fellow Australian Carol Matthey, who was accused of killing her four children, Jacob, seven months, Chloe, nine weeks, Joshua, three months, and Shania, three and a half years old, between 1998 and 2003. She insisted that the chance of four unexplained infant deaths from natural causes was one in a trillion.
It’s the theory that sent several UK mothers to jail in the lead up to Kathy’s trial. But a fundamental statistical error in Meadow’s Law eventually saw the theory discredited and multiple murder convictions overturned.
In the UK alone, four grieving mothers – falsely accused and wrongly convicted – walked free.
When Brown questioned Dr Ophoven on the validity of the theory she used against Folbigg, she confirmed she “was incorrect” concerning the statistical rarity of so many children from one family dying of natural causes.
“That was incorrect. I was just citing previous literature – Roy Meadow,” Dr Ophoven said. “I would never say that now, but I wouldn’t change my diagnosis now. I would just say that it would be impossibly rare.”
Clinical psychologist Dr Sharmila Betts, who examined Kathy’s diary entries, also told 60 Minutes in her opinion not even Kathleen’s darkest writings were enough to convict her.
“The diaries reveal a tortured mind, and I’d be very surprised if there are not millions of mothers who think like that,” Betts told Brown.
Meanwhile, ABC journalist Quentin McDermott has published a news story discussing new evidence in the case that argues that there are plausible natural causes of death for Kathy’s children.
It reveals that Kathy’s third child, Sarah Folbigg, may have died earlier in the night than previously thought, in August 1993.
Consulting forensic pathologist Johan Duflou said in his view, taking into account the temperature of the child’s body and the stomach contents, “this would suggest that Sarah died closer to the time she was put to bed by [Kathy’s husband] Craig at around 21:00 hours, rather than when found by Folbigg at around 01:30 hours.”
Professor Duflou’s view challenges the argument presented by the prosecution at Kathy’s trial, that she was present with all four of her children when they died.
McDermott also noted that Allan Cala, who was the chief medical expert at Kathy’s trial, is expected to give evidence on Tuesday, March 19, as will Stephen Cordner, who did not give evidence at the trial, but who wrote a lengthy report which was attached to the petition, and John Hilton, who conducted the autopsy of Kathy’s third child Sarah, and gave evidence at the trial.
“The ABC understands that Dr Cala stands by the opinion he expressed at Kathy’s trial, that she smothered all four of her children,” McDermott writes. “But, both Professor Cordner and Professor Hilton disagree.”
In his report accompanying the petition, Professor Cordner wrote that: “If the convictions in this case are to stand, I want to clearly state there is no pathological or medical basis for concluding homicide.
“The findings are perfectly compatible with natural causes.”
He added: “Put simply, there is no positive forensic pathology support for the contention that any or all of these children have been killed.”
In his own statement submitted to the inquiry, Professor Hilton said he was “in substantial agreement with the comments, views and opinions” expressed by Professor Cordner in his report.
Significantly, Professor Hilton backs Professor Cordner’s view that Kathy’s fourth and oldest child, Laura, died from natural causes — in this case the illness known as myocarditis, or inflammation of the heart muscles.
“Laura died with, and highly probably because of, florid myocarditis,” Professor Hilton wrote.
“There was no medical evidence demonstrable or demonstrated in the report of the post-mortem examination to support another cause for her death.”
Professor Duflou backed the views of Professor Hilton and Professor Cordner in his statement to the inquiry: “In my opinion, there is without doubt myocarditis of a severity which can readily cause sudden and unexpected death … in this case, no competing cause of death has been identified at autopsy; therefore based purely on the autopsy findings, the cause of death would be given as myocarditis.”
Click here to read McDermott’s story, which resulted in the barrister acting for Kathy to be blasted by the judicial officer presiding over the inquiry into her convictions – former NSW District Court chief judge Reginald Blanch QC (above) – over the documents being leaked.
According to Tracy and Megz Tuesday will be a “bombshell day” in the case.
Kathy has also confirmed in writing that she will testify on April 17 and 18.
It’s the moment that felt like it would never come for Kathleen Folbigg’s supporters: the inquiry into her convictions begins on Monday.
Next week has been set aside to hear evidence relevant to forensic pathology and Sudden Infant Death Syndrome (SIDS) or Sudden Unexpected Death in Infancy (SUDI). April 15-16 have been set aside to hear evidence relevant to genetics and cardiology. April 17-18 have been set aside for Kathy to give evidence, if she chooses to do so.
The substantive hearings will be held at the Forensic Medicine and Coroner’s Court complex located on 1A Main Avenue, Lidcombe.
This Sunday night, 60 Minutes is running an interview with an Australian mother who suffered an identical tragedy to Kathy – four of her children dying of SIDS – but who walked free from court.
The program notes: “Kathleen Folbigg and Carol Matthey are mothers bound by terrible tragedy: both had four babies die. But while Kathleen was found guilty of murder and jailed, Carol was never convicted.”
It’s the first time in 12 years that Carol Matthey has spoken to the media since her preliminary hearing in 2007.
Kathy’s long-time friend Tracy Chapman tells Justice for Kathleen Folbigg: “I had the privilege of meeting Carol, spending time with her and hearing her story. The correlations between the two cases are astounding … The outcomes in both cases are polar opposites. The suffering of these two women, undeniable.”
Watch the preview of the segment below:
We have no idea how the finished program will pan out. Will it paint Kathy as Australia’s worst serial killer or suggest reasonable doubt?
Tune in on Sunday night and let us know your thoughts.
A group of Kathy’s supporters will attend the inquiry. We’ll try to keep you in the loop as much as we can about the proceeding.
“Next week I’ll sit watching Lidcome Coroner’s Court, heart in mouth, knowing that many years of hard work and dedication are about to decide Kath’s future,” Tracy said.
She also thanked the author Emma Cunliffe, Kathy’s legal team and friends who have worked tirelessly to make this milestone moment happen.
Intense days ahead, especially for Kathy, who has spent the last 16 years in a jail cell and is desperately hoping expert witnesses will convince the inquiry that she didn’t murder her four children.
Kathy’s supporters remain disappointed that Kathy’s former husband and the father of her children, Craig Folbigg, has refused to provide a DNA sample for analysis.
A fourth directions hearing prior to the judicial review of Kathy’s case was held at the Chief Secretary’s Building in Bridge Street, Sydney today.
Kathy – via her legal team – has asked for permission to watch the hearings on video link from Silverwater Jail. She has yet to decide if she will give evidence at the review.
Hearings will begin on March 18 at Lidcombe Coroners Court. Forensic pathologists and sudden infant death syndrome experts will be the first to testify, followed by a panel of geneticists in mid-April.
Former NSW District Court chief judge Reginald Blanch, who’s heading the inquiry, said April 17 and 18 have been set aside for Kathy to give evidence if she chooses to do so. But she will be required to give one-month’s notice if she intends to appear at the Coroners Court.
“The scope of the inquiry will not include the evidence of Folbigg unless we are notified in writing by March 17 that she does intend to give evidence,” Blanch noted.
The inquiry will focus on medical advances and new research, including findings on multiple natural infant deaths in the one family.
Kathy’s friend Tracy Chapman has shared her frustration that today’s media reports continue to rely on sensationalist language, referring to her as a “serial baby killer”.
“I’m tired of reading this,” she said. “I hope that one day they’ll think about how such headlines stick, hurt, frustrate and affect real people, before they do it again to some other poor person.”
Three of Kath’s school friends – Megan, Tracy and Alana (pictured above at a cafe near Silverwater Jail – visited her over the weekend and report that she is in good spirits and looks well.
She’s both cautiously optimistic and careful not to get too hopeful about the outcome of the upcoming inquiry into her case.
Alana said the four chatted about everything from the mundane to the life changing during the visit.
“Kath told us about savouring her first taste of fresh cream in 16 years when a prison staff member gave her a slice of sponge cake,” she said.
As for the life-changing, Alana added: “I was floored by how huge it’s beginning to feel as we count down to the inquiry in March. The evidence in Kathy’s favour is beginning to pile up and there’s a giddy desire to allow a glimmer of hope that the scales of justice will balance.”
Tracy drove down from the North Coast at 1am in the morning so she could be there for a double visit with Kath, one at 8am and one at 12pm. She collected Megan on the way. Following the afternoon visit, they immediately started the trek back, with Tracy breaking the long journey home in Newcastle.
Tracy said: “Kath thanks everyone for their continued support. Especially the legal team, as there is a massive amount of time dedicated on their part for discussion, research, preparation and collation for the enquiry, even before representation at court.
“Kath dreams of a day in the not too distant future where she gets to thank you all in person for your support.”
A fourth directions hearing has been listed at 10am on Monday, February 11, 2019, at a location to be confirmed.
Substantive hearing dates for the hearing of expert medical evidence by the inquiry have also been set down.
The week beginning Monday, March 4, 2019, has been set aside to hear evidence relevant to forensic pathology and Sudden Infant Death Syndrome (SIDS) or Sudden Unexpected Death in Infancy (SUDI).
The week beginning Monday, March 18, 2019 has been set aside to hear evidence relevant to genetics and cardiology.
The substantive hearings will be held at the Chief Secretary’s Building and the Coroner’s Court in Lidcombe.
A third directions hearing prior to Kathy’s judicial review has revealed that lawyers are negotiating with Craig Folbigg to obtain a DNA sample.
During a second directions hearing earlier this month, the court was told that Kathy’s ex-husband had filed a complaint with the Law Society of NSW about being approached by his ex-partner’s legal team.
Former NSW District Court chief judge Reginald Blanch – who’s heading the inquiry – said he’d met with geneticists who said DNA samples were important as they could overturn Kathy’s conviction.
It was noted at the third hearing on Thursday that the solicitors from the inquiry have been in touch with Craig and “are in discussions with him about it”.
“It’s a matter of calming the situation down if we can and he is talking to us about it,” it was noted.
Kathy’s lawyer Jeremy Morris SC also successfully applied for the scope of the inquiry to be expanded so her client could testify “should she choose to”.
At the second directions hearing, Blanch said he “would be happy” to call Kathy to give evidence in the upcoming hearings, adding “it would be a matter entirely for her”.
“In fairness to her, if she wants to give evidence she should be able to give evidence,” he said.
However, it had previously been agreed the 2019 inquiry should focus on medical advances and new research.
“I will make an order extending the scope of the enquiry to include allowing Mrs Folbigg to give evidence about the diary entries, her possession of the diaries and her disposal of the diaries and the evidence from her in relation to that will be restricted and the cross-examination of her will be restricted to those particular issues,” the judicial officer said on Thursday.
Morris said his client might testify but she’d been unable to commit while the legal team waited for police to locate certain interview tapes.
Blanch said 15 years had passed and his understanding was the evidence in question could not be located by police.
A fourth directions hearing has been listed at 10am on Monday, February 11, 2019, at location to be confirmed.
A friend of Kathy’s has spoken to the 7.30 Report about the terrifying moment Laura Folbigg stopped breathing in her care.
After Laura, Kathy’s fourth child, was born Karren offered to help look after her and undertook a CPR course to ensure she was prepared for emergencies.
Karren was babysitting Laura one day while Kathy ran some errands. About 20 minutes after Laura fell asleep on Karren’s couch, Kathy called to check on her 12-month-old daughter.
Karen was shocked to discover Laura lying on the lounge, her face “a funny colour, like it had drained”.
“I actually got on the floor and bent over. I couldn’t hear her breathing, couldn’t feel her breathing. I sort of went into panic mode. I put my arms under her and scooped her up and was about to put her on the floor to start CPR, and she took a big gasp in and then a couple of breaths, and it was all good from there.
“But it was very scary. I believe she had stopped breathing. I did everything that I was trained to do to see whether she was breathing or not, and to me there was no breath, none at all.”
Dr Matthew Orde, a forensic pathologist at Vancouver General Hospital, told the ABC it is possible Laura suffered an acute, life-threatening event, or ALTE.
“The episode described by Karren Hall, when Laura was 12 months of age, could well be an ALTE,” he said.
Karren’s experience with Laura raises the possibility that Kathy’s children had a genetic abnormality which rendered them at risk of sudden death.
However, at a directions hearing in Sydney earlier today, the presiding judge, Reginald Blanch, revealed Kathy’s ex-husband, Craig Folbigg, refused to provide DNA evidence to a lawyer ahead of the inquiry into the deaths of their four children.
Craig filed a complaint with the Law Society of NSW about being contacted by his ex-partner’s legal team.
The court heard a DNA sample had already been provided by Kathy for genetic testing. The inquiry will now ask Craig to provide a sample as well.
Meanwhile, a confidential briefing note written by one of Australia’s top forensic pathologists has been obtained by the ABC which raises fresh questions about the conviction of Kathy in 2003 for smothering all four of her children: Caleb, Patrick, Sarah and Laura.
A second directions hearing was held today in preparation for the inquiry into Kathy’s convictions.
At the hearing, further interested persons were able to seek leave to appear. The second directions hearing also provided the final opportunity for interested parties with leave to make submissions regarding the scope of the inquiry.
It was revealed during the hearing that Kathy’s ex-husband, Craig Folbigg (pictured above), had refused to provide DNA evidence to a lawyer ahead of an inquiry into the deaths of their four children.
Folbigg filed a complaint with the Law Society of NSW about being contacted by his ex-partner’s legal team.
Kathy has supplied a DNA sample from Silverwater Correctional Complex.
Justice Blanch said he’d recently met with geneticists who said DNA samples were important as they could overturn Kathy’s conviction.
“(We were) told in that meeting that it would be the best outcome if we had some DNA material from both Mrs Folbigg and Craig Folbigg,” he said.
Counsel assisting Gail Furness SC today said the inquiry should focus on new research and medical advances including multiple “natural” infant deaths in the one family. She suggested there could be three weeks of scientific and medical hearings before Kathy potentially gave evidence.
Blanch said he “would be happy” to call Kathy to give evidence in the upcoming hearings, adding “it would be a matter entirely for her”.
“In fairness to her, if she wants to give evidence she should be able to give evidence,” he said.
Hearings are anticipated to begin in the first week of March and the inquiry is expected to run for six to 12 months.