JOHN KERR The Big Folbigg Mistake: extract
Did Kathleen Folbigg kill her babies? John Kerr makes the case for taking another look.
In 2003 Kathleen Folbigg was convicted of killing her four children: Caleb, 19 days old (1989); Patrick, 8 months old (1991); Sarah, 10 months old (1993); and Laura, 19 months old (1999). She has consistently maintained her innocence.
Last week a special inquiry into her conviction under former NSW Chief Justice Tom Bathurst was suspended to allow the parties to consider new evidence before reconvening in February next year.
Over the years there has been increasing support for a re-examination of the Folbigg case from both legal scholars and the scientific community. A significant factor in the original trial was the sheer unlikelihood of four babies in the one family dying from natural causes. However, new scientific research suggests that it is possible that the children could have died due to a deadly genetic variant.
This would suggest that guilt had not been proven ‘beyond reasonable doubt’, and The Big Folbigg Mistake sets out to show how the legal system got it wrong. It begins with a snapshot of Kathleen Folbigg’s life and marriage, moves on to the circumstances of each baby’s death, what is known (and not known) about SIDS, then goes through the detail of the trial, the appeals, new advances in genetic research and their implications, the increasing chorus of questions from the legal and scientific communities, and the Inquiry of 2019 headed by Reginald Blanch. It is the further developments in the area of genetics that has resulted in the 2022 inquiry.
However, there has always been an additional factor in the case: Kathleen’s diaries.
This extract from The Big Folbigg Mistake discusses the diaries and the role they played in the trial and subsequent appeals, and the 2019 Inquiry.
Extract courtesy of Kerr Publishing
edited extract from Chapter 15: Dear Diary …
To turn from the careful words of the pathologists about causes of deaths and the gene variation unearthed by the geneticists in Tranche 1 and 2 of the 2019 Inquiry, to the diary evidence in the last tranche, takes us from hard science to soft lit crit. The former ought to have trumped the latter.
Since the Inquiry’s Report was handed down the relevance of the diaries has ebbed away. If the Inquiry’s judicial officer, the Hon. Reginald Blanch AM QC erred, as alleged here, it is to a large extent because of his reliance on what he read in the diaries, and what he read into them. This applies to lesser extents to the jurors in 2003 and appellate judges, there being less hard science presented back then.
Judges spend a good deal of their time reading. These ones have fallen on the olives the prosecution picked from the diary tree and found they made the good oil: in no particular order: ‘chilling reading … damning … probative value … very powerful evidence … [paints a] terrible [picture] … credibility … very persuasive … strong evidence … plain meaning of the diary entries is one of virtual admissions of guilt for the deaths …’ Some appellate judges underlined the best probative bits within the quotations they chose in their reasoning. So, why bother with the diaries’ story at all? Because a woman has spent nearly 20 years in prison in large part because of them, and because nothing of the sort should be allowed to happen again.
The use made by media of words from The Witch’s pen is not our subject here, but diary excerpts were always going to be better copy than myocarditis or a gene variant, honourable media exceptions acknowledged. [When] Kathleen Folbigg took the stand on Day 9 [of the 2019 Inquiry] the Daily Mail showed its love of a good ol’ witch burning by running a headline Diary of a Monster …
All readers agree the diaries are circumstantial evidence. No-one challenged the idea that the diaries, in general, were admissible evidence. All agree there is no confession or admission of harming children in them.
The rest is a ‘Yeah, but …’ argument.
In the trial, Kathleen’s now quasi-famous entry ‘Obviously I am my father’s daughter …’ was withheld from the jury. Justice Barr’s reasons were impeccably fair – if the jurors knew Kathleen’s father had killed her mother, they might form the ‘illegitimate view’ that there was a propensity to murder in her bloodline: no visiting the sins of the father on the daughter in Justice Barr’s court, and Mr Barr’s application of equity, of fairness, is impeccable here. But the year was 2003. One of the jurors predictably searched the internet and discovered it was so anyway, and the NSW Court of Appeal was required to convene with three judges on the bench to say no ‘material’ harm had been done, verdict stands.
*
Kathleen Marlborough kept personal diaries as a teenager. The adult Ms Folbigg kept them as a wife and mother. The stapled exercise book, say, which formed her current ‘babble-book’, as she sometimes called her diary, often lay about the house, never in a locked drawer or the like.
She took some old diaries with her when she moved out of the family home for the first time in April 1999, and left some behind. Craig [her husband], grieving over Laura’s death and forlorn about his wife moving out, was cleaning up and making a pile of Kathy’s effects, and found two of them. He read and took these to Detective Senior Constable Ryan.
Ever since late in DSC Ryan’s investigation, the facts and what Kathleen said about the diaries as objects were subjected to sinister interpretations of guilty concealment and destruction. That the writer had no great regard for them after writing became a she-would-say-that-wouldn’t-she? dead end. Her reaction to Craig reading them was a mild you-could-have-asked-first. Recently childless, on Mother’s Day, she biffed some out – she wasn’t certain how many, but at least one, maybe three. When Craig rang and asked her what to do with the ones he still had, she told him just to toss them out. There was no evidence presented that she showed the slightest concern that the diaries were repositories of guilty secrets or had the potential to harm her interests in any way. Losing track of some, trashing some, and the incompleteness of the extant diaries as a full chronological set were considered suspicious, an adverse circumstance in a circumstantial case, yet her offhand attitude to them was not considered a positive one.
Kathleen wasn’t particular about stationery. Besides ruled exercise books, she took over one of Craig’s appointment diaries and also used printed diaries, a day planner, and a wall calendar. The over 200 entries, about 40,000 words, made on about 270 pages, were sporadic, handwritten and she did not go back over them to correct, add or delete. They are dashed off and of the day (or of the night). She said she used the diaries to ‘vent’ thoughts and feelings.
As Kathleen’s counsel Jeremy Morris SC drew to the Inquiry’s attention during his cross-examination, the diaries were used as a running record of daily baby-care detail: ‘50ml’ milk, ‘water’, ‘1 am Restless. Changed nappy etc’; and as a to-do book: ‘8.30 appointment, hospital’ and ‘booster shot’. This is evidence of a mother’s actual deeds and commitment to managing baby care, evidence damned only by its very ordinariness. In the 1989 volume appointments extended to days after Caleb died.
The prosecutors can perhaps be forgiven for hunting down black thoughts on the page and building pattern evidence of a crime; building and pushing a case is his or her role in the adversarial system. But judges never seemed to have thought about the premise such correlations rested on: that the diaries were the real Kathleen Folbigg.
In the 40,000 words of the extant diaries, police and prosecution highlighted 26 whole entries totalling less than 3000 words in order to get the bits that they advanced as compelling circumstantial evidence of a homicidal consciousness. The charge of cherry-picking applies, but bench after bench has loved those cherries. Crown Prosecutor Mark Tedeschi SC in 2003 and especially counsel for Craig Folbigg Margaret Cunneen SC in 2019, present these as ‘virtual admissions’, a phrase the Judicial officer used to describe them in his Report. A ‘virtual admission’ is not an admission, it is a literary opinion and it opens a can of logical and legal worms.
[Legal scholar] Emma Cunliffe calls the prosecution’s reading and selection process ‘constructing a murderous mother’, specifically a trivial, selfish one with maternally unnatural attitudes towards her children and her memory of them, prone to killing when under stress.
John Kerr The Big Folbigg Mistake Kerr Publishing 2022 PB 272pp $34.95
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