“My baby’s not breathing,” Kathleen Folbigg told an ambulance operator in 1999, after finding her 18-month-old daughter Laura unresponsive.
“I’ve had three SIDS [sudden infant death syndrome] deaths already … I’ve had three go already.”
By the morning of 1 March 1999, all three of Folbigg’s other children had already died – Caleb aged 19 days, Patrick aged eight months, and Sarah at 10 months.
Paramedics arrived nine minutes after Folbigg’s call, but were unable to resuscitate Laura. Folbigg’s fourth child was declared dead later that day.
In May 2003, Folbigg was convicted of murdering Laura, Patrick and Sarah, and the manslaughter of Caleb. She was labelled Australia’s “worst female serial killer” and “most hated woman”, and sentenced to 40 years in prison, later reduced on appeal to a 25-year non-parole period.
But Folbigg has always maintained her innocence, and in recent years, scientific evidence has emerged to suggest possible natural causes for at least two of the babies’ deaths. That’s raised an alternative possibility: that Folbigg could instead be at the centre of one of Australia’s gravest injustices.
After two decades in jail, Folbigg is now awaiting the outcome of a second inquiry into her case – one that her lawyer hopes will lead to her clearing her name.
“She’s a mum who has lost four kids. She has been locked in a maximum security prisons, largely in confinement for her safety, for two decades,” Folbigg’s lawyer, Rhanee Rego, says. “I don’t think that there’s anyone who would understand the grief that she has been through.”
Diary entries as ‘virtual admissions’ of guilt
Police interest in Folbigg began after Laura’s death in 1999. At the time, she and her then husband, Craig, were living in the New South Wales town of Singleton, 70km north-west of Newcastle.
Craig and Kathleen’s marriage deteriorated after Laura’s death, and they permanently separated a year later. Folbigg was not charged with the murders until April 2001, after police had obtained diary entries she had made intermittently between 1989 and 1999.
In Folbigg’s trial, which began in 2003, the prosecution relied heavily on the specific diary entries as admissions of guilt. They contended Folbigg had a “tendency to become stressed and lose her temper and control with each of her children, and then to asphyxiate them”.
The crown pointed to lines such as: “Scared that she’ll [Laura] leave me now. Like Sarah did. I knew I was short tempered & cruel sometimes to her & she left with a bit of help.”
But Rego says there were a number of issues with how the diary evidence was treated.
“At the trial, there was no attempt: a) to search for an alternate interpretation of the handful of words selected by the prosecution; b) to emphasise the need for the jury and others to read the whole of the diaries and journals; and c) no attempt to obtain expert opinion about how the jury and others should understand the context in which Kathleen wrote,” Rego says.
Though Folbigg was presumed to have smothered her children, there was “no positive forensic pathology support for the contention that any or all of these children have been killed”, according to a 2015 report by Prof Stephen Cordner, a prominent forensic pathologist who reviewed the medical evidence presented at the initial trial.
It is possible for an infant to be intentionally smothered without signs such as facial injuries or petechiae, spots that result from bleeding. But counsel assisting a 2023 inquiry would later note that “it seems increasingly unlikely that four children in the same family might be smothered without leaving any physical signs”.
Folbigg’s 2003 trial was also strongly influenced by the since-discredited Meadow’s Law, a precept espoused by a controversial paediatrician, Roy Meadow, suggesting that three or more sudden infant deaths in one family was murder until proven otherwise.
Mehera San Roque, an associate professor of law at the University of New South Wales, said there were comparable cases in other jurisdictions at the time where the “problems of that improbability reasoning that was being relied on in Folbigg’s case were already being exposed”.
In the UK, the convictions of Sally Clark, Angela Cannings, and Donna Anthony – women who had all been convicted of killing two of their babies, partly based on Meadow’s Law – were all overturned on appeal. In Australia, the Victorian woman Carol Matthey was charged in 2005 with killing her four babies, but had those charges dropped in 2007.
A number of high-profile supporters began pushing for an inquiry into Folbigg’s case. In 2018, a petition raising doubts over some of the evidence presented at trial led the NSW attorney general to announce the first of two inquiries into Folbigg’s convictions.
As part of that inquiry, which ended in 2019, the genomes of Folbigg’s four children were sequenced, revealing that Folbigg and her two daughters, Sarah and Laura, shared a new variant of a gene known as CALM2. Other mutations in this gene had previously been associated with cardiac abnormalities that caused sudden death in infants and children, but experts weren’t able to confirm the likely effect of the gene variant in Folbigg’s daughters before the inquiry finished in 2019.
Ultimately, that inquiry did not find the existence of “any reasonable doubt” as to Folbigg’s convictions, but rather that it “produced evidence that reinforces Ms Folbigg’s guilt”. In that inquiry, as in the initial trial, specific diary entries were interpreted as “virtual admissions” of her guilt.
“It was unfortunate that the 2019 inquiry spent far too much time trying to interpret or over-interpret the diaries, at the expense of what really should have been the focus, which was the emerging scientific evidence,” San Roque says.
Evidence of death by ‘natural causes’ grows
In November 2020, an international team of scientists published a research paper concluding that the variant Folbigg and her daughters possessed in the CALM2 gene, CALM2 G114R, was likely to result in life-threatening cardiac arrhythmias. “A fatal arrhythmic event may have been triggered by their intercurrent infections,” the researchers concluded. (Laura and Sarah had respiratory infections a few days before their deaths.)
“We consider the variant likely precipitated the natural deaths of the two female children,” the researchers wrote.
The team also identified that the two boys, Caleb and Patrick, carried variants in a gene known as BSN – “a gene shown to cause early onset lethal epilepsy in mice when detected”. Patrick had suffered from epileptic seizures. A 2022 paper subsequently identified BSN variants in five unrelated people with epilepsy. The researchers identified that “biallelic variants”, which the two Folbigg boys had, were associated with “severe epilepsy with neurodevelopmental delay (even fatal epilepsy)”.
In March 2021, 90 prominent Australian scientists and medical professionals petitioned the NSW governor to pardon Folbigg. Signatories included the Nobel laureates Elizabeth Blackburn and Peter Doherty, Ian Chubb, the former chief scientist of Australia, and the then president of the Australian Academy of Science, John Shine, who endorsed the petition on the basis that “the scientific and medical evidence … creates a strong presumption that the Folbigg children died of natural causes”.
“Folbigg’s case also establishes a dangerous precedent as it means that cogent medical and scientific evidence can simply be ignored in preference to subjective interpretations of circumstantial evidence,” they wrote.
Folbigg, having exhausted all existing avenues of appeal, in 2021 filed a petition for mercy to the NSW governor. Last year, a second judicial inquiry was announced, in light of the new scientific evidence. Conducted by Thomas Bathurst KC, the inquiry began in Sydney last November, and heard oral closing submissions last week.
The latest inquiry heard extensive scientific evidence on the CALM2 gene variant, including an explanation for why Folbigg had survived into adulthood with this gene variant, while her two daughters had not.
“What we found right at the end of this inquiry was that Sarah and Laura inherited a modifier gene from their dad,” Rego says. “Kathleen does not have this modifier gene.”
The modifier gene, REM2 G96A, was present in all four children, and was hypothesised to increase the likelihood of lethal arrhythmia in Sarah and Laura.
San Roque describes Folbigg’s case as unusual, “insofar as there has been a significant shift in scientific knowledge around potential genetic causes … notwithstanding that, there was substantial criticism of the prosecution and of the convictions at the time”.
The inquiry also heard psychological and psychiatric expert interpretations, which concluded that they were the expressions of a grieving mother and did not contain clear admissions of criminal guilt.
A lawyer for the NSW director of public prosecutions, Dean Jordan SC, told the inquiry the genetic evidence “fundamentally changes our understanding of the circumstances leading to the deaths of the girls”.
Bathurst, who has not yet released his final report, said there was “significant body of evidence now to suggest reasonable possibilities of identifiable natural causes of death”.
‘Biggest miscarriage of justice in Australian history’
The case has garnered comparisons to Lindy Chamberlain, who was wrongfully convicted – and later exonerated – for the murder of her daughter, who was attacked and taken by a dingo.
“There’s an entrenched traditional notion of what femininity is that I think can disadvantage women who come into contact with the criminal justice process,” says Dr Leah Williams, a lecturer in criminology and criminal law at UNSW. “It’s something that you really saw with the Lindy Chamberlain case. ‘She didn’t cry enough’, or ‘she didn’t seem sad enough’ – all the judgments made about character then feed into perceptions of criminal guilt.”
Folbigg has been similarly demonised. “She’s referred to as a baby killer, Australia’s worst female serial killer,” Williams says. “They may be accurate with reference to her convictions, but they have that emotive element to them.”
Folbigg’s lawyer says she has been held to a standard of motherhood that does not exist. “The legal system has told Kathleen from 1999: how she should have looked when she was grieving, what she should have written in her diaries if she was indeed innocent, what she should have not written in her diaries, and how she should have conducted herself as a mother,” Rego says.
Bathurst is to finalise his report on the inquiry in the coming weeks, which he will then provide to the NSW governor, Margaret Beazley KC.
Bathurst could find that there is a basis for the governor to exercise the Royal Prerogative of Mercy which could take the form of a “free pardon”, which would mean the conviction still remains although Folbigg would be released.
Another option is that the case could be referred by the judicial officer to the court of criminal appeal, where the conviction itself could be considered and possibly quashed.
“Given the way it is looking,” San Roque says, “I think there would be a strong argument that Kathleen Folbigg should be released from custody at this point, pending the final resolution.”
Folbigg’s legal team is hoping that Bathurst will report to the governor a finding of reasonable doubt and that there may be basis for a pardon. Folbigg’s ultimate goal is to have her convictions quashed by the court of criminal appeal, Rego says, which amounts to a legal recognition that she is innocent.
Rego is pushing for both a pardon and early parole. “The Court of Criminal Appeal could take months to hear the case if referred to them – we don’t want Kathleen languishing in prison while the legal system takes its course,” she says.
“Kathleen’s case is in my view the biggest miscarriage of justice in Australian history, and it’s not just because I’m her lawyer,” she says.
“It’s because of the many factors in her case: the complete dehumanisation of a woman for being a normal mother; a preference by police and the prosecution to rely on discredited unscientific dogma and speculation; the number of appeals and reviews which failed to identify this serious miscarriage of justice.”
