R v Folbigg [2005] NSWCCA 23 (17 February 2005)

CITATION: Regina v Folbigg [2005] NSWCCA 23

FILE NUMBER(S): 2004/1814

HEARING DATE(S): 26 November 2004

JUDGMENT DATE: 17/02/2005

PARTIES:

Regina

Kathleen Megan FOLBIGG

JUDGMENT OF: Sully J Dunford J Hidden J

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 70046/02

LOWER COURT JUDICIAL OFFICER: Barr J

COUNSEL:

M. Sexton SC/J. Girdham/A. Mitchelmore - Crown
D. Jackson QC/P. Zahra SC - Appellant

SOLICITORS:

S. Kavanagh - Crown
S. O'Connor - Appellant

CATCHWORDS:

LEGISLATION CITED:

Evidence Act 1995 (NSW)
Criminal Appeal Act 1912 (NSW)

DECISION:

Extension of time granted to permit of hearing of present appeal and application

Appeal against convictions dismissed

Leave granted to appeal against sentence; sentences passed at first instance on Counts 4 and 5 quashed and appellant re-sentenced on those counts as follows

On Count 4 to imprisonment for 20 years to commence on 22 April 2008 and to expire on 21 April 2028; no non-parole period set because of the overall structure of the appellant's re-sentencing

On Count 5 to imprisonment for 22 years to commence on 22 April 2011 and to expire on 21 April 2033 with a non-parole period of 17 years to expire on 21 April 2028.

JUDGMENT:

IN THE COURT OF CRIMINAL APPEAL

2004/1814

SULLY J
DUNFORD J
HIDDEN J

17 February 2005

REGINA v Kathleen Megan FOLBIGG

Judgment

SULLY J:

Introduction

1 Between 1 April 2003 and 21 May 2003 the appellant, Mrs. Folbigg, stood trial in the Supreme Court, and before Barr J and a jury, upon an indictment containing five counts.

2 Count 1 charged the appellant with having murdered, on 20 February 1989, Caleb Gibson Folbigg.

3 Count 2 charged the appellant with having maliciously inflicted, on 18 October 1990, grievous bodily harm upon Patrick Allen Folbigg with intent to do grievous bodily harm.

4 Count 3 charged the appellant with having murdered, on 13 February 1991, Patrick Allen Folbigg.

5 Count 4 charged the appellant with having murdered, on 30 August 1993, Sarah Kathleen Folbigg.

6 Count 5 charged the appellant with having murdered, on 1 March 1999, Laura Elizabeth Folbigg.

7 On 21 May 2003 the jury found the appellant guilty as charged in each of Counts 2, 3, 4 and 5. Upon Count 1 the jury found the appellant not guilty of murder but guilty of manslaughter. On 24 October 2003 Barr J sentenced the appellant to various terms of imprisonment. 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.

8 The appellant now appeals against all five of her convictions and she applies for leave to appeal against each of the five sentences passed upon her. The Notice of Appeal which has been copied in the Appeal Book shows a filing date of 8 July 2004. This suggests that the appellant requires an extension of time in which to appeal against her convictions and to seek leave to appeal against the sentences passed upon her. I shall propose in due course, and for more abundant caution, an order formally granting any necessary extension of time.

9 Four grounds of appeal against the convictions were notified and argued. It will be convenient to deal with them in the order in which they were argued.

The Crown Case at Trial

10 The appellant was married in September 1987 to Craig Folbigg. 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.

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

12 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. A specialist paediatrician diagnosed laryngomalacia, a condition that is described in more colloquial language as a “floppy larynx”. The diagnosis was that the condition was mild and that the baby would grow out of it.

13 On 20 February 1989 the appellant put Caleb to bed in a bassinette in a room adjacent to the bedroom used by her and Mr. Folbigg; and they both of them went to bed. It appeared from a record kept by the appellant of the pattern of Caleb’s sleeping and feeding that Caleb had had an unsettled night, being awake from mid-night until 2.00 a.m.

14 At some time shortly before 3.00 a.m. Mr. Folbigg was awoken by what he described as “screamed words”. He ran into the adjoining room and found the appellant standing at the end of the bassinette. She was screaming: “My baby, there’s something wrong with my baby”.

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

16 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, usually, somewhere between 2 months and 6 months, dies suddenly and unexpectedly and there is no reason to suspect that the death resulted from unnatural causes.

17 It was the Crown case that the appellant had smothered Caleb.

18 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, Mr. Folbigg took 3 months off work in order to help in caring for the new baby.

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

20 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.

21 The appellant gave Patrick’s treating doctor a history of having gone into Patrick’s room at about 3.00 a.m. in order to see why he was coughing. He seemed to be alright and she went back to bed. At about 4.30 a.m. 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.

22 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.

23 In the aftermath of this the appellant showed signs of an inability to cope with the situation. She displayed frequently anger and frustration. She began to leave Patrick with Mr. Folbigg’s sister, Mrs. Carol Newitt, and one of their neighbours, so that they could baby-sit and she herself could just get away from things for a time. At one stage during this period Mr. Folbigg found a diary which the appellant 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.

24 At about 10.00 a.m. on 13 February 1991 Mr. Folbigg received at work a telephone call from the appellant. She screamed: “It’s happened again”. Mr. Folbigg at once went home. He arrived home at the same time as an ambulance which the appellant had called. Mrs. Newitt was already there, having been called by the appellant. Mrs. Newitt had found upon her arrival that Patrick was lying on his back in his cot; but the appellant, who was crying, would not allow her to lift Patrick out of the cot.

25 Mr. Folbigg 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.

26 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.

27 The Crown case was, once again, that the appellant had smothered her baby.

28 The appellant appeared to recover relatively quickly from Patrick’s death, just as she had done after Caleb’s death. She and Mr. Folbigg relocated to the Hunter Valley; and the appellant began to press Mr. Folbigg 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.

29 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. The appellant wanted to abandon the use of the blanket; and it was part of the Crown case that this showed an understanding on the appellant’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.

30 The appellant 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. The appellant showed marked signs of frustration, and it was left to Mr. Folbigg to calm the baby and to put her to bed in her cot at the end of the matrimonial bed.

31 According to Mr. Folbigg, he awoke briefly at about 1.10 a.m. 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. Mr. Folbigg went back to sleep from which he was aroused by the screaming of the appellant. He saw the appellant standing at the bedroom door. Sarah was lying on her bed. She was floppy and warm but not breathing. Mr. Folbigg, and subsequently ambulance officers, performed CPR, but unsuccessfully.

32 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.

33 The Crown case was that the appellant 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 the appellant’s hand-writing was subsequently discovered on a calendar. The note read: “Sarah left us at 1.00 a.m.”.

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

35 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.

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

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

38 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 the appellant’s part, boiling over into physical violence towards Laura.

39 On 1 March, the day of Laura’s death, the appellant took Laura to Mr. Folbigg’s place of work after her morning gym class. The appellant and Laura left for home at about 11.30 a.m. At about 12.14 p.m. an ambulance arrived at the home in answer to a call. The ambulance officers found the appellant 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.

40 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).

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

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

43 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 the appellant should be tried on one indictment and at one trial. There were unsuccessful interlocutory attempts by the appellant to bar a joint trial. The propriety of a joint trial is the focus of Ground 1 of the convictions appeal grounds.

44 The Crown case at trial depended heavily upon the contents of the appellant’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 the appellant that she appreciated that she was at risk of causing, similarly, the death of Laura. Whether this is a reasonable reading of the material is an important aspect of Ground 2 of the convictions appeal grounds.

45 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 is the focus of Ground 3 of the conviction appeals grounds.

46 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 is the focus of Ground 4 of the convictions appeal grounds.

The Appellant’s Case at Trial

47 The appellant did not give evidence at her trial. Her case rested in part upon the cross-examination of Crown witnesses; and in part upon evidence called in her case from five witnesses, three of whom were lay witnesses, and the other two of whom were medical experts. The general cast of the appellant’s case at trial is summarised helpfully, and as follows, in part A of the written Crown submissions:

“The appellant did not kill her children or harm Patrick. She specifically denied this in her ERISP interview. 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. The appellant in fact was a caring mother, who, for example, 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 the appellant’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. The appellant 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.” [Footnotes omitted]

48 It will be necessary, when dealing later herein with Ground 2 of the conviction appeals grounds, to consider in more detail the evidence in both the Crown and the defence cases.

The Convictions Appeal : Ground 3

49 The Ground is:

“The trials of the appellant miscarried as a result of evidence being led from prosecution 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.”

50 The ground refers to “prosecution experts”; but in fact expert opinion evidence relevant to the ground 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.

51 It will be necessary to consider presently the way in which the trial Judge ruled upon objections taken by Senior Counsel for the appellant at trial to the admission of this body of evidence in the Crown case. (It is convenient to note here, and not to repeat constantly hereafter, that the appellant was represented at trial by Mr. Zahra SC, the Senior Public Defender, who is particularly experienced in the conduct on behalf of accused persons of major criminal trials. Mr. Zahra appeared as second leading counsel for the appellant before this Court.)

52 Before doing that 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.

53 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.

54 Objection was taken to the leading of evidence directed to the fourth and seventh of the foregoing items. In a reserved judgment published on 16 April 2003 his Honour disallowed evidence directed to those two propositions. In doing so, his Honour made a number of observations which seem to me to be pertinent to Ground 3. 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.

55 On the day following the publication of this judgment, his Honour had to deal with objections to the proposed evidence of Professors Herdson and Berry and Dr. Beal. His Honour heard a deal of argument from the Crown Prosecutor and from Mr. Zahra SC, and reserved until 24 April his ruling on the objections.

56 On 24 April 2003 the Crown Prosecutor told his Honour this:

“We have been in communication with Dr. Beal, Dr. Berry and Dr. Herdson since the matter was last raised with your Honour. We have prepared a document that sets out in question and answer form the sort of questions that we would intend asking them in much more admissible form than their reports. Certainly there are parts of their reports which are admissible, as your Honour has provisionally indicated, but there are other parts which we would seek to lead in a form which is closer to the form that was used with Dr. Cala. I have a copy to hand up to your Honour of those and my friend received that some days ago, I think, Tuesday. I don’t know at this stage that we need the judgment from your Honour, unless my friend has some area that he wishes to raise.”

57 Some brief discussion ensued; and his Honour indicated that he would give at once his ruling on the evidence of Professor Herdson and Professor Berry. There followed immediately this interchange:

“HIS HONOUR: ................... Before I do, I take it, Mr. Zahra, if Dr. Beal’s evidence is dealt with in the way that Dr. Cala’s was, you would not be raising any objection.

ZAHRA: Yes. I wouldn’t cavil with your Honour’s previous judgment on that.”

58 His Honour then gave judgment. It is a brief judgment and it is convenient to reproduce it in full:

“1. HIS HONOUR: Objection is taken to the tender of evidence from Dr. Berry to this effect:

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 Folbigg were suffocated by the person who found them lifeless, and I believe that it is probable that this was the case.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.

8. 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.”

59 When one looks carefully at the wording of Ground 3, it is unclear whether the nub of the ground is a proposition that the foregoing preliminary rulings of Barr J were incorrect; or is, rather, a proposition that the rulings were correct, but were overtaken in fact by the actual evidence as led before the jury; or is a combination of those two propositions. Given that ambiguity, it is necessary to cover both of the putative individual propositions. That entails a need to examine the evidence that the Crown witnesses gave before the jury.

60 The first of the three to be called was Professor Herdson, who had very impressive credentials as a pathologist, and as a consultant forensic pathologist.

61 Professor Herdson expressed opinions based upon “a large dossier of material containing medical records for the four children, including their post-mortem reports .........(and) ......... a number of pathological slides that were taken during or shortly after the post-mortem examinations, ..... (and) ..... a certain amount of research in the literature”.

62 The Crown Prosecutor led Professor Herdson’s evidence-in-chief by taking him to the individual case of each in turn of the four children. As to each child, Professor Herdson agreed with a proposition, put to him by the Crown Prosecutor, that the child had died “from a sudden catastrophic asphyxiating event of unknown causes”. In the case of Patrick, Professor Herdson expressed the additional opinion that the ALTE had arisen from that type of event.

63 Professor Herdson said, as to each child, that the post-mortem findings were consistent with death by smothering. He thought that other observed phenomena: e.g. Caleb’s “floppy” larynx, Laura’s myocarditis, and Sarah’s displaced uvula, were not of significance as possible causes of death. Asked whether he could “think of any disease, illness or condition that could have accounted for the deaths of all these children”, Professor Herdson said, simply, that he could not.

64 Professor Herdson accepted a proposition, put to him by way of summary by the Crown Prosecutor, that “............death from SIDS is a diagnosis of death from some unknown natural cause, whereas death from undetermined causes implies a death from some unknown natural or unnatural cause”. He thought that Sarah’s case, looked at in isolation, came closest to satisfying the generally accepted diagnostic criteria for SIDS; but that, generally speaking, he could not “distinguish between SIDS and suffocation”.

65 In re-examination, Professor Herdson gave, over objection, this additional evidence:

“Q. Are you aware, from your own experience, from contact with your colleagues and from the medical literature, whether there have ever been three or more, thoroughly investigated, infant deaths from sudden infant death syndrome in the one family?

A. I am not aware of such a finding.”

66 Evidence was then taken from Professor Berry, a highly qualified and experienced paediatric pathologist. He, too, had examined the relevant medical records, post-mortem reports and microscopic slides.

67 It suffices for the moment to say that Professor Berry’s evidence, although obviously different in particular expression, accorded in substance with the evidence of Professor Herdson, taking each of the cases of the four children individually and in isolation from the other cases. Professor Berry gave in the concluding passages of his examination-in-chief the following evidence:

“Q. Professor, are you aware of any substantiated case where there have been three or more SIDS deaths in the one family?

A. There are some reports many years ago which now no longer stand scrutiny, but I am unaware of any families with – I think you said – three or more deaths from SIDS in what I might call the contemporary literature and up-to-date literature, nor have I encountered any in my practice or research.

Q. Putting aside the congenital or familial or genetic tests that were conducted on these children, are you aware of any case in which there have been three or more children who have died unexpectedly and suddenly from some other illness other than SIDS.

I think that question is a bit unclear.

A. I think I understand it. I’m personally not aware of any kindreds where there have been sudden deaths of previously fit children due to another medical condition that has affected three or more children. That’s not to say they don’t exist, but I’m personally unaware of any in the literature.

Q. Does that mean that you have not had any yourself, you are unaware of any of your colleagues having come across any and reported them to you, and you are not aware of any in the medical literature?

A. That’s correct. My experience, knowledge of disease, is that fatal diseases are not 100 per cent instantly fatal in every case. So, some of the genetic conditions, for example, that were excluded, have very clear presentations. They don’t, in fact, present with sudden death of a previously well child.

I could elaborate if you wish me to, but I will leave it there if you don’t.

Q. I would ask you to elaborate, doctor.

OBJECTION

ZAHRA: As I understood what Professor Barry was saying, I think his first answer was that there was no research that he was aware of. I’m unsure as to whether the question relates merely to his own experience or whether he has excluded – in other words, that he has excluded all other research; in other words, whether he has researched the literature to exclude multiple natural causes.

HIS HONOUR: That is a matter that can be investigated. I will permit the question.

CROWN PROSECUTOR: Q. You offered to elaborate on your last comment, and I would ask you to elaborate.

A. I wonder if you can help me if there has been discussion of emCAD in this Court, or not?

Q. No, we have not.

HIS HONOUR: Yes, there has been.

A. Just, as an example of a genetic condition that might run in a family that causes sudden death, there is something called emCAD. We do not need to go into it. It has been excluded, as I understand it, in this case. But those children do not present, generally speaking, as SIDS; they nearly always have a prodromal, an illness preceding their death, which is very characteristic. Two times out of three I can diagnose emCAD before I start the post-mortem from the history alone. So, what I am trying to say is that most illnesses have a period of illness before the child dies. The death is not instantaneous.

Q. Is that what you meant when you said “prodromal”?

A. Yes, a period of illness beforehand, so children do not just drop dead, as it were, of diseases and produce kindreds with multiple SIDS-like deaths. So, in this case, one of my anxieties is that there don’t appear to be significant illnesses before these children’s collapses.”

68 Later, and in re-examination, Professor Berry added this evidence:

“Q. What sort of a search have you made of the literature prior to coming to Australia to give evidence in this case?

A. This is a database called Mediline, which essentially contains references to all the medical articles that have been written since the 1960s, and you can select articles by putting in particular words, and so one might put in “sudden infant death” as one search criterion, and then you would put “multiple”, to pull up any paper that is indexed under “multiple infant deaths”, and some papers do come up, as you will – Dr. Susan Beal, for example, has written on this subject, and I am sure you will hear from her. A paper by Professor John Emery. There are other papers on this subject. But diseases that really cause sudden death, without preceding symptoms and without leaving traces from which you can make a diagnosis at post-mortem, three different ones in the same family, I am unaware of that.

Q. And the Mediline database that you have spoken about, is that one which is used by medical practitioners around the world?

A. Yes. It is the standard database.

Q. And it is universally recognised as the best medical database in the world?

A. I think that’s true. There are other medical databases, and one can look in others, but it is the absolute standard one that everybody uses, yes.”

69 Before Dr. Beal was called, there was extensive discussion in the absence of the jury about precisely what evidence, if any, she should be permitted to give. Before his Honour was a document containing what were described as “model questions”. The so-called model questions had been asked of Dr. Beal in an out-of-Court setting, and her answers, also recorded in the document, indicated what the Crown expected that she would say if examined in-chief in the terms of the model questions.

70 The discussion in the absence of the jury extends over some 24 pages of trial transcript. It is, with respect to those concerned, not always easy to fathom from what has been recorded in the transcript what points and objections were being agitated at any particular point. It is impossible to compress the 24 pages of material into a crisp paragraph or two. Perhaps the fairest way of proceeding is to note the opening submissions of Mr. Zahra SC. They are, as recorded:

“Your Honour, this witness will go further than any other expert and that would include Professor Berry and Professor Herdson. If I can just put it simply at this stage. We have a witness who will go further and who has not read the post-mortem reports. This is the essential foundation of the bases upon which this evidence is given. So we know that confidently because that is what the witness said in the voir dire. So it is a logical exercise to then ask one’s self well, what is it that she relies upon to say these things? When we go through the detail of the statements and we go through the evidence on the voir dire, it becomes apparent that in fact it is either on a statistical basis or either on a premise that if the child was not prone and had no heart lesions, then it would be homicide or, reliance on the mantra. In other words, taking into account the history of the others.

Your Honour, the danger is that my friend will lead from this evidence extensively her background and experience. Her qualifications, your Honour, are immense and are likely to persuade the jury about her opinion.

It is not to say that her field of study and her researches and her papers have not had a significant effect on the understanding of SIDS in the past and it is not to say that the basis of her research is in fact not meritorious. However, your Honour it is largely based on an examination of patterns, to use her expression “patterns” in relation to a number of cases that she has specifically looked at.

This has been an objection that we have obviously made more than once in relation to the use of statistical evidence as a foundation for opinion.”

71 As the interchanges between Barr J and Mr. Zahra SC proceeded, his Honour asked Mr. Zahra to clarify what he meant by a reference which he had previously made to a “reverse onus”. I cannot find a clear answer to that question; but I take Mr. Zahra to have had in mind a proposition that is advanced as follows in paragraph 111 of the appellant’s written submissions:

“111. The evidence also had the effect of impliedly reversing the onus of proof. It is likely that the Jury would have thought that the appellant had to in some way demonstrate that her case was indeed unique in medical history. If it weren’t then the Jury would have to convict her.”

72 Finally, in connection with Dr. Beal’s evidence as pertinent to Ground 3, the following interchanges occurred:

“HIS HONOUR: I understand that there are difficulties for you in the conduct of the defence of this case; just as there are for the Crown in the prosecution of it, and for me in doing what I have to do, and I sympathise with those difficulties; but should I stop a witness giving evidence because of those difficulties?

ZAHRA: Your Honour does have discretions to exclude the evidence, based on a prejudicial probative effect. Prejudicial effect here is really quite immense because coming back to my first statement, that we have a witness here who is going to give an opinion more so than any other witness, that in the sense that this is a likely suffocation.

HIS HONOUR: So you are applying for me to reject all the evidence, are you?

ZAHRA: Yes, insofar as that it goes outside general statements and it applies to the application of her expertise in the given case, so far as reaching a diagnosis.

HIS HONOUR: And what is the test? It is not admissible unless the probative value outweighs the risk of impermissible prejudice?

ZAHRA: Yes. I can only go back to my starting point that really we look at this as an exercise of logic that this witness in a voir dire was preferring these same opinions without looking at the post-mortem reports and indicating, your Honour, in her own statement, the first statement of 8 December that these macroscopic and microscopic examination is rarely helpful, so this is where this witness has started from, and it is just as an exercise in logic. She preferred these opinions each without reading the post-mortem reports.

HIS HONOUR: I am of the opinion that the probative value of the evidence outweighs any risk of unfair prejudice.

ZAHRA: If your Honour pleases.

HIS HONOUR: And I will give reasons later on, if appropriate.”

73 I cannot locate in the Appeal Book any subsequently published written reasons.

74 After all of the foregoing discussion had run its course, Dr. Beal was called. She gave evidence that she had been for some 35 years a paediatrician at the Women’s and Children’s Hospital in Adelaide; and an epidemiologist: that is, one who “looks at the patterns of diseases to see if they can find out more about what causes them, how to treat them, how to prevent them from occurring ............... “; and that she had made, for more than 30 years, a specialised study of SIDS. Dr. Beal was, otherwise, highly qualified, by both learning and experience, in her professional specialties.

75 Dr. Beal gave evidence to much the same effect as Professors Herdson and Berry when she spoke of each child’s case taken individually and in isolation from the other cases. Dr. Beal gave, as well, this evidence:

“Q. Now, doctor, as at the present time has there been accepted in the medical community, to your knowledge, that there have been any families that you are aware of, either from your own experience or the experience of your colleagues or from the medical literature, in which there have been three or more children who have died from SIDS?

A. No.”

“Q. Can you think of any natural cause, that has not been excluded in these children, by the tests they had during their lifetimes and afterwards, can you think of a natural cause that would account for their deaths?

A. No, excluding that natural disasters, like a plane crash or something, no.

Q. In your experience, and in the experience of your colleagues that have been related to you and in the medical literature that you have read over the years, have you ever come across a family in any of that experience or any of that reading or research, a single family in which there have been three or more children who have died suddenly from natural causes in the way that these children died?

A. No.”

76 The whole of the foregoing analysis seems to me to show: first, that there was no difference of substance between the evidence as foreshadowed by the Crown in connection with preliminary objections and rulings; and the evidence as actually led; and secondly, that Ground 3 should be understood as challenging the correctness in law of Barr J’s rulings that permitted the Crown to lead the evidence before the jury.

77 Three questions arise.

78 First, was the evidence to which Ground 3 refers, relevant in the sense contemplated by section 55 of the Evidence Act 1995 (NSW)?

79 In my opinion the correct answer to that question is: yes.

80 The Crown case was a circumstantial one. It posited the circumstances:

[1] That it was not a reasonable possibility that Caleb’s death had been caused by his defective larynx;

[2] That it was not a reasonable possibility that Patrick’s ALTE had resulted from either encephalitis or a spontaneous epileptic episode;

[3] That it was not a reasonable possibility that Patrick’s death had been caused by an epileptic episode causing him to stop breathing suddenly and for long enough to die;

[4] That it was not a reasonable possibility that Sarah’s death had been caused by a displaced uvula;

[5] That it was not a reasonable possibility that Laura’s death had been caused by myocarditis;

[6] That it was not a reasonable possibility that there was, in any individual case, some other natural cause of death;

[7] That, absent a natural cause of death in any one of four successive infant deaths in a single family, the only inference rationally available was that the deaths had been caused in some unnatural way;

[8] That the only rational inference as to the nature of the unnatural cause was that each of the children had been suffocated by somebody; and

[9] That the only person to whom the evidence pointed in that connection was, in each case, the appellant.

81 The parts of the evidence of Professors Herdson and Berry, and of Dr. Beal, relevant to Ground 3, constituted evidence tending to prove, in the section 55 sense, the matters itemised above as [6], [7] and [8].

82 Secondly, ought the evidence to have been excluded because its probative value was outweighed by the danger of unfair prejudice to the appellant in that the jury would misuse the evidence by reversing the onus of proof in the sense propounded in paragraph 111 of the appellant’s written submissions?

83 In my opinion the answer to that question is that there was no reason for Barr J to be apprehensive of any such danger, provided only that his Honour made clear to the jury that it was from first to last the burden of the Crown to prove its case; and that it was not in any respect the burden of the appellant to prove anything. It suffices for present purposes to say that his Honour gave clear and correct directions on this all-important principle; and did so both in writing and orally.

84 Thirdly, ought the evidence to have been excluded because its probative value was outweighed by the danger of unfair prejudice to the appellant in that the jury would misuse the evidence in some other way?

85 In my opinion the correct answer to that question is: no.

86 The appellant submits, in paragraph 110 of the appellant’s written submissions, that “(t)he proposition that a combination of events is entirely without precedent in medical history is not far removed from the expression of the odds of such a combination of events occurring innocently in terms of a statistic”. This entails, it is submitted, inherent “........ vice analogous to that identified in such cases as GK [2001] NSWCCA 413; (2001) 53 NSWLR 317”.

87 I do not accept these submissions. First, GK, and most of the decisions which are cited in it on the point, was a case involving the use of statistical probabilities in cases of DNA profiling. The expression of those probabilities was quite precise: 220,000 : 1 and 99.9995% in the case of one expert witness; and 147,005 : 1 and 99.9993% in the case of another. Any analogy between opinion evidence expressed in that fashion and opinion evidence as expressed by Professors Herdson and Berry and Dr. Beal, is inexact as the appellant’s submissions do in fact acknowledge.

88 Secondly, the judgment of Mason P in GK discusses helpfully what is often called, in DNA profiling cases, “The Prosecutor’s Fallacy”. Mason P illustrates, at paragraph 33 of his Honour’s judgment, how the fallacy operates. The illustration separates out two different propositions, denominated as A and B, and explains that the fallacy is occasioned by “(t)he slide from Propositon A to Proposition B”.

89 The two propositions are:

“A. The probability or chance of C’s father being a person selected at random rather than being GK is 147,005 : 1 against.

B. It is 147,005 times more likely than not that GK is C’s father.”

90 As Mason P explains, in paragraphs 47 – 54 inclusive of his Honour’s judgment, the correct extension of proposition A is to consider how many groups of 147,005 people there are in the relevant population. The number of such groups is what provides the relevant statistic for proposition B.

91 The challenged evidence of Professors Herdson and Berry and of Dr. Beal does not really fit into the Prosecutor’s fallacy template. That evidence does no more than to establish, - if accepted, a matter entirely for the jury, - that reputable and apparently reliable expert opinion cannot identify another known case where four infants in one family have died successively from unknown natural causes. That fact is no more than a piece of circumstantial evidence of which the Crown case argues that, when added to all other known facts and circumstances concerning the four deaths, there is left open no other reasonable hypothesis than that the four deaths were unnatural.

92 For all of the foregoing reasons I would not uphold Ground 3.

The Convictions Appeal : Ground 4

93 The Ground is:

“The learned trial Judge erred in his directions as to the use the Jury could make of coincidence and tendency evidence.”

94 This is the first occasion on which the adequacy of some part of the summing-up is challenged by the appellant. It is expedient to make at once two observations about the summing-up. First, the summing-up is carefully structured. It was supported by some appropriate written instructions, and by the use of various documents then in the hands of the jurors. Secondly, Barr J paused repeatedly throughout the summing-up and invited counsel to indicate any corrections that they might respectively require. On each such occasion both the Crown Prosecutor and Mr. Zahra SC responded unhesitatingly with any desired application. The record of what was said on those occasions seems to me to indicate that both counsel followed the summing-up alertly, and were astute to take promptly any point which seemed to them, respectively, to need clarification by Barr J.

95 The objections now made in Ground 4 were not taken at trial.

96 Barr J explained to the jury at a very early point in the summing-up that the Crown case on each of the five counts was a circumstantial case. His Honour directed the jury to “carefully examine the evidence and decide whether it is reliable before you draw conclusions from it”, adding: “in deciding whether you should draw the conclusions the Crown asks you to draw you must also consider all the evidence pointed to by the accused and give proper weight to the submissions made on both sides”.

97 A little later his Honour told the jury:

“The fundamental issue that arises out of each of the five events giving rise to the charges is whether that event happened naturally or by human intervention. It has not been suggested that any of the deaths, or Patrick’s ALTE, could have happened in any other way, for example by accidental suffocation. The evidence permits only one conclusion or the other. If any event happened by human intervention the person who intervened could only have been the accused because she was the only person in the vicinity on each occasion and there could be no suggestion that any other person was responsible.

I shall outline for you in due course the circumstances surrounding each of the events giving rise to the charges but, quite apart from the circumstances immediately surrounding the events giving rise to any charge you are considering, you are entitled, when deciding whether the Crown has proved its case on that charge, to take into account the events giving rise to the other charges as well.”

98 Those comments introduced the directions, of which the appellant now complains, concerning coincidence evidence. Those directions were:

“The Crown case is that there was a remarkable degree of similarity in the five events. They were so similar, the Crown submits, that it would be unreasonable to conclude that the deaths and Patrick’s ALTE, or any of them, happened naturally.

The law is that sometimes there may be such a striking similarity between different events that a jury may safely conclude that they did not all happen by coincidence. Putting it another way, the circumstances of the events are so remarkably similar that it would be an affront to common sense to conclude that they all happened naturally and coincidentally.

If, having considered the submissions of the Crown and the defence, you come to the view that the five events, or any number of them, are so strikingly similar that they cannot all have happened naturally, you are entitled to take that conclusion into account in considering whether the Crown has proved its case on the charge you are considering.

I must give you a special warning, however, about taking into account when considering any particular charge the facts which give rise to the other charges. You must not say that simply because the accused killed a particular child or caused Patrick’s ALTE she must have killed all the children and caused Patrick’s ALTE. Putting it another way, if you are satisfied beyond reasonable doubt that the accused is guilty of any of the charges, you may not say that she is therefore automatically guilty of them all. That is an unfair way of approaching the matter and you must not use it.”

99 His Honour then gave some general directions about expert opinion evidence and continued:

“When you come to consider whether the accused smothered any child, you are entitled to take into account far more than the doctors were in coming to their opinions. You are entitled to take into account, as they were not, the unexpected deaths of the other three children, and Patrick’s ALTE, and all the circumstances surrounding those deaths and that ALTE. You are also entitled to take into account all the other evidence in the case, particularly the entries made by the accused in her diaries from time to time, and any meaning that you attribute to those entries.”

100 The summing-up proceeded to deal with matters concerning causation. In that connection His Honour said, without objection from counsel:

“There are four possible causes of death of Caleb and of any of the other children. They are: identified natural causes, unidentified natural causes, accidental suffocation, and deliberate suffocation. Just those four. There seems to be no other available in logic.”

101 The summing-up then turned particularly to the death of Caleb. There was a careful examination of the evidence going to the question whether the death had been caused by some act of the appellant. That examination brought Barr J back to the topic of coincidence evidence, and more particularly to a document marked for identification 41. MFI 41 was a document listing similarities relied upon by the Crown to disprove mere coincidence. There were ten items in the list. Barr J went through the list, item by item, summarising the Crown and defence submissions. The summary was clear, and no objection was taken to it. Barr J used the same method when dealing, later in the summing-up, with the two counts concerning Patrick.

102 The appellant’s present complaint is put as follows in paragraph 114 of the appellant’s written submissions:

“114. This direction does not clearly identify for the Jury the logical process by which the “similar fact” evidence may be used in coming to a conclusion about any of the given counts. It is not sufficient to simply tell a Jury that they may “take that conclusion” into account.”

103 I disagree with this criticism. The jury was instructed, and correctly so in my opinion, that in considering each individual count of murder there were effectively three possibilities open on the evidence: identified natural causes; unidentified natural causes; and deliberate suffocation. The jury was instructed, clearly and correctly, that if, in any particular case, it remained open as a reasonable possibility that the death had been caused by some natural cause that could be identified, then there must be an acquittal on that count. What had to be explained correctly was that if, in any particular case, the jury did not regard it as remaining open as a reasonable possibility that death had been caused by an identified natural cause, then, in considering whether it remained open as a reasonable possibility that the cause of death had been some, albeit unidentified, natural cause, it was permissible to have regard to the whole of the context in which the particular death had occurred including, where appropriate, that part of the context was some other death or deaths similarly unexplained but so strikingly similar to the particular death then being considered by the jury as to cause the jury to infer that it was not open as a reasonable possibility that the particular death had been caused by some unidentified natural cause.

104 In my opinion a fair reading of the now challenged passages of the summing-up in the context which I have earlier summarised does not establish that Barr J erred in his Honour’s directions about coincidence evidence.

105 Barr J first came to deal with tendency evidence in the concluding portion of the summing-up. His Honour canvassed in clear and careful detail the competing cases; told the jury that he had now said “... virtually all I want to say to you about the matter”; and then added the directions that are now challenged. Once again, context is important. The entirety of the relevant directions is:

“You should, as Mr. Zahra has submitted, look very carefully at the detail of the circumstances attending each of the five events. You should also, as the Crown has submitted to you, look at the picture overall, as shown by the other events and as explained, if you think that they do provide explanation, by the diary entries.

Now, the Crown has submitted to you that the evidence shows that the accused had a tendency to become stressed and lose her temper and control with each of the children and to react to it by smothering. I won’t summarise for you again the evidence upon which the Crown makes that submission, but I want to give you a direction about how you can use evidence of what is called tendency. Both counsel have referred to this during their addresses to you.

If you are satisfied beyond reasonable doubt that on any of the five occasions giving rise to the charges the accused became stressed, lost her temper and control and smothered her child, then provided certain conditions are fulfilled you may take that conduct into account when you consider whether she is guilty on any other count.

I said provided certain circumstances are fulfilled, because you need to take care in employing this kind of reasoning. Inherent in the Crown submission is the proposition that if a person behaves in a particular way in a given set of circumstances on one occasion the person will tend to behave in the same way if similar circumstances exist on another occasion.

First, and obviously, you have to be satisfied about the features and circumstances of the accused’s behaviour on the first occasion that you are thinking about. That does not need to be the occasion giving rise to the first charge in time. It can be the occasion of any of the events, but you need to have a clear understanding of exactly what circumstances the accused was in and exactly how she behaved.

Secondly, you need to be sure that the circumstances repeated themselves on the occasion of the events giving rise to any other charge. You need to be satisfied that on such an occasion, there is a similarity of circumstances, a similarity of pattern of behaviour.

When considering this kind of evidence you are entitled to give consideration to the extent, if any, to which the relevant conduct may have been unusual or unique, since that may reinforce the inference contended for by the Crown, and you need to apply your common sense, because the mere fact that a person has behaved in a particular way on one occasion does not necessarily mean that they will repeat that conduct if the surrounding circumstances are replicated.

So it is important for you to take into account the nature of any prior behaviour relied on by the Crown, the frequency of its repetition and the extent of its similarity to or dissimilarity from the facts with which you are comparing it. This is the only way in which you can use evidence of any tendency that you find the accused had. You may not say just because you are satisfied that she smothered one of her babies she must or is likely to have smothered the others.”

106 As soon as he had concluded those directions, his Honour invited submissions from counsel. There were some submissions from both counsel, but not in any way touching upon the tendency directions.

107 The appellant’s written submissions propound two particular criticisms. They are:

“116. His Honour then went on to list for the Jury certain conditions which had to be fulfilled in part of that process of reasoning. Those directions are at pp 114 – 115. It is submitted that the direction did not identify the legitimate use to which the tendency evidence could be put. It was not sufficient to tell the Jury that they could simply ‘take that conduct into account’.

119. The directions by the Judge effectively cast an onus on the accused to demonstrate an innocent explanation for each of the deaths. This was an erroneous approach. The Jury should have been warned that it was not necessary for them to find that any of the children died of natural causes in order for them to acquit. The case was about whether the Prosecution had proven beyond reasonable doubt that the appellant had smothered her children. It was not for the appellant to demonstrate that they had died naturally.”

108 As to the submission in paragraph 116, it is convenient to take as a starting point the second limb of the well known statement made about tendency or propensity evidence by Lord Herschell in Makin v Attorney General of New South Wales [1937] UKHL 2; [1894] A C 57 at 65:

“It is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. On the other hand, the mere fact that the evidence adduced tends to show the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused.”

109 Speaking of the second limb of Lord Herschell’s statement, Lord Hailsham said in Reg v Boardman [1975] A C 421 at 456E:

“The second of Lord Herschell’s rules in Makin is not capable of codification into a series of tight propositions or categories of case. Each case must be looked at in the light of all the circumstances and of the sentence containing the rule and of the observations upon it of Lord du Parcq in Noor Mohamed v The King [1954] HCA 2; [1949] A C 182 and Lord Simon in Harris v Director of Public Prosecutions [1952] A C 694, and of the ordinary rules of logic and common sense.”

110 The reference to Lord Simon is a reference to the following extract from his Lordship’s judgment in Harris at 706:

“Lord Herschell’s statement that evidence of ‘similar facts may sometimes be admissible as bearing on the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental’ deserves close analysis. Sometimes the purpose properly served by such evidence is to help to show that what happened was not an accident; if it was, the accused had nothing to do with it. Sometimes the purpose is to help to show what was the intention with which the accused did the act which he is proved to have done. In a proper case, and subject to the safeguards which Lord Herschell indicates, either purpose is legitimate. .................. Sometimes the two purposes are served by the same evidence.”

111 It is, of course, the case that Barr J’s tendency directions do not tell the jury in terms that the legitimate use of tendency evidence, if the jury finds tendency in fact, is “to help show that what happened was not an accident” or “to help to show what was the intention with which the accused did the act which he is proved to have done”.

112 It seems to me, however, that a fair reading of the relevant extracts from the summing-up in the context of the summing-up as a whole justifies a conclusion that by the time the summing-up concluded, it had been made quite clear to the jury that the whole point of both the tendency and the coincidence evidence was, precisely, to help show that each death was not an accident; and to help, as well, to show that, if the jury was satisfied that the appellant had in fact caused a particular death, then any such causative act had been accompanied by the intent appropriate to the crime of murder.

113 As to the proposition advanced in paragraph 119, I repeat that in my opinion the jury could not sensibly have understood from anything said by Barr J that the appellant bore any onus of proof upon any aspect of the proof beyond reasonable doubt of any of the essential elements of any of the crimes charged.

114 For the whole of the foregoing reasons I would not uphold Ground 4.

The Convictions Appeal : Ground 2

115 The Ground is:

“The verdicts of guilty are unreasonable and cannot be supported having regard to the evidence.”

116 Paragraph 107 of the appellant’s written submissions summarises the appellant’s case on this ground:

“The simple point made by the appellant in this case is that the exclusion by the Prosecution of any definitive known cause of death for the children did not establish a deliberate killing by the appellant. The deaths remained, it is submitted, unknown in their origin.”

117 The written submissions rely significantly upon things said in the judgment of the English Court of Appeal in Reg v Cannings [2004] 1 WLR 2067, a decision to which it will be necessary to return.

118 Before doing that it is appropriate to note that the definitive statements of principle by which this Court must be guided in dealing with Ground 2 are contained in the joint judgment of Mason CJ and Deane, Dawson and Toohey JJ in M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 493. Those statements of principle are now well-known and need not now be repeated at length. They have been reaffirmed by the High Court in Jones v The Queen [1997] HCA 12; (1997) 191 CLR 439; and in MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606.

119 In applying these principles to the evidence at the appellant’s trial it is useful to have in mind an overview of the relevant chronology. The Crown provided one, which became Exhibit A at trial, and it is reproduced hereunder. The material in parenthesis is the age, respectively of each child at the date of that child’s death and, in the case of Patrick, his age, also, as at the date of his ALTE.

Name Birth Event Death
Caleb FOLBIGG 1 February 1989
20 February 1989
(19 days old)
Patrick FOLBIGG 3 June 1990 18 October 1990 – near miss (4-1/2 months) 13 February 1991
(8 months 10 days)
Sarah FOLBIGG 14 October 1992
30 August 1993
(10-1/2 months)
Laura FOLBIGG 7 August 1997
1 March 1999
(1 year 7 months)

120 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:

[1] The circumstances of that child’s death, including in Patrick’s case the circumstances of his previous ALTE;

[2] 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;

[3] The results of the various medical examinations, and post-mortem examinations, carried out on that particular child;

[4] The results of the various expert medical reviews of the deaths of the four children; and

[5] Things said, done, or recorded in her diary, by the appellant herself.

121 What has been written previously in this judgment deals with items [1] and [2], and with much of the items [3] and [4]; but it is necessary to look further at how the medical evidence stood at the conclusion of the whole of the trial evidence.

122 As to Caleb:

[1] Dr. Springthorpe, a consultant paediatrician, gave evidence of having diagnosed the condition, previously herein described, of “floppy larynx”. He had discussed Caleb’s case with Dr. Cummings, who had died prior to the trial, and who had carried out the post-mortem examination of Caleb. Dr. Springthorpe was firm in the view that the “floppy larynx” had nothing to do with Caleb’s death.

[2] Professor Byard, a specialist forensic pathologist called in the defence case, gave as his diagnosis of Caleb’s death:

“With Caleb, I would say the cause of death was undetermined and the reasons for that, there are several, one is that I don’t have the death scene examination. The second is that the brain wasn’t examined, so I don’t really know whether there was any pathology in the brain. And thirdly, there is an issue of his voice box, he was said to have a floppy voice box.”

Professor Byard did not agree with Dr. Springthorpe’s conclusions, principally because Caleb’s larynx itself had not been microscopically examined. He was not aware of any case in which it had been reliably established that a child had died as a result of having a floppy larynx; and so he regarded that condition “as a potential, but a very rare cause of unexpected death”.

His own diagnosis on the available evidence would be “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.

Professor Byard’s opinion about an undetermined cause of death was tested in cross-examination, and to the following effect:

“Q. Is this the case : That in this case you can’t say what the cause of death was other than as to it was undetermined for each of these children?

A. That’s correct.

Q. And when you say that the cause of death was undetermined, that includes death from natural, death from natural causes and death from unnatural causes?

A. That’s correct.

Q. And unnatural causes includes deliberate suffocation?

A. That’s correct.

Q. In your view is one of the possibilities in this case that all of the deaths and the ALTE were caused by deliberate suffocation?

A. I think that is a possibility. The difficulty is of course that the pathology doesn’t really help us.”

And later:

“Q. Do you agree that it is highly unlikely that the floppy larynx had anything to do with the death of the child at all?

A. Yes.

Q. Have you yourself ever had an autopsy in which you have found the floppy larynx to be the cause of death?

A. No, no, I haven’t.

Q. Have any of your colleagues in South Australia, to your knowledge, had a case of floppy larynx being a cause of death?

A. Not to my knowledge, no.

Q. And have you ever, yourself, read in any of the medical literature of a death being caused by a floppy larynx?

A. No. No, I haven’t.

Q. So it would be fair to say this; that if this child had died from a floppy larynx, so far as you are aware, it would be the first time – it would be a world first, insofar as being reported?

A. I believe so, yes.:

Further cross-examination elicited the following evidence:

“Q. So would I be correct in saying that the presence of haemosiderin in this child tends to indicate that there was a previous episode of asphyxiation or attempted asphyxiation?

A. I think it would – that would be one possibility.

Q. Is that the thing that is the most likely cause of the haemosiderin, over and above other possible causes?

A. I am just trying to consider the study that I did. Probably, in the absence of documented trauma.”

[3] As previously discussed in connection with Ground 3, the weight of the evidence of Professors Herdson and Berry and of Dr. Beal supported the proposition that Caleb’s death could not be attributed to his floppy larynx or to any other identified natural cause.

123 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.

124 As to Patrick’s ALTE:

[1] Patrick was first seen upon admission to hospital by Dr. Joseph Dezordi who was at the time on duty as the paediatrics night resident at the hospital. At the time he gave his evidence Dr. Dezordi was a neo-natal Fellow at Townsville Hospital doing “advanced training in research projects in paediatrics”, and specifically in the case of new-born babies.

Patrick was observed to be afebrile and unresponsive to stimuli. There was no blockage of his airways. There was no evidence found upon testing and examination of illnesses, of injury, or of trauma. There was an “unexpected” discovery of a high level of glucose in Patrick’s urine; and, since Patrick did not present as diabetic, this level of glucose suggested to Dr. Dezordi “a fairly catastrophic event such as an asphyxiating event or a prolonged seizure”.

In the following days testing continued. A CAT scan was carried out; and it showed abnormalities in Patrick’s occipital and temporal lobes, but his lumbar fluid was clear. Dr. Dezordi was strongly doubtful about a possibility that Patrick may have had encephalitis. His ultimate conclusion was one of some unknown cause or causes for Patrick’s seizures.

Dr. Dezordi was extensively cross-examined and re-examined. A fair summary of his opinions respecting the origins of Patrick’s ALTE can be gleaned from the concluding questions and answers in re-examination:

“Q. My friend asked you questions about looking at the condition of Patrick with your expertise as it was back in 1990 and you indicated that you had the advantage of intervening years of experience. With those intervening years of experience, can you say what caused the seizures in Patrick?

A. I cannot say beyond a doubt what caused the seizures in Patrick. All I can do is make conclusions.

Q. And with the advantage of the intervening years of experience, what do you conclude caused the seizures in Patrick?

A. My experience over the years has embraced quite a lot of babies who have had asphyxia and hypoxia, that is, lack of oxygen to the brain. I have seen many babies since that time and also quite a number of babies with meningitis and encephalitis and I have no doubt that the whole scenario, as I said yesterday, is most consistent with some catastrophic event that caused the lack of oxygen to the child’s brain on the morning of October 18.

Q. And did you find a medical cause for that catastrophic asphyxiating event?

A. No, I did not find any medical cause.”

[2] Dr. Ian Wilkinson, an expert paediatric neurologist, assisted in Patrick’s treatment after his initial hospitalisation. Dr. Wilkinson gave this evidence:

“We also had white cells stained for a similar process, to see if there were what we called occlusions. Again, that was all negative.

We did all those tests that were available in 1990 at our disposal to look for inherited diseases that might have brought about neurological abnormalities.

Q. Did you find any inherited diseases?

A. No, we found absolutely none.

Q Did you ever find out how Patrick suffered that damage to his brain?

A. We never had any absolute explanation for that.

Q. Was that damage to Patrick’s brain consistent with him having suffered from a catastrophic asphyxiating event from unknown causes?

A. Absolutely.

Q. If there is such damage to the brain, can that damage in turn cause seizures to develop within a few days?

A. Yes. It’s a very typical sort of story that a child, who’s suffered some asphyxial damage to the brain, may then, over the next few days and weeks, develop progressive change within the brain that produces seizures. So, it is quite common that, although the child having suffered such an event and survived, it may not have seizures initially. It’s quite common to find that further down the road they may have seizures.

In Patrick’s case it became apparent, further down the line, that he had lost visual function. That is, again, something I have seen in a number of situations, where children have suffered various asphyxial events and subsequently developed visual problems. I believe that is because the visual part of the brain is extraordinarily sensitive to lack of oxygen. It is one part of the brain that, following oxygen deprivation, may show malfunction – perhaps even in an isolated fashion.

Subsequently, development of his seizures and the progressive changes on the EEG, electroencephalogram, and the changes on the CAT scan, which became progressive over time too – I think that was all quite in keeping with his having suffered an asphyxial event at the beginning of that, and then evolved over time.”

Later, and after his re-call for cross-examination, Dr. Wilkinson gave this evidence:

“Q. And it is also possible, isn’t it, that prior to his admission to hospital on 18 October 1990, that is the first admission, he had encephalitis?

A. I think it is absolutely impossible.

Q. Have you ever considered that it was possible?

A. Yes, I did certainly so when I realised it had been raised as an issue. I examined all the detail and I believe it is impossible, him having encephalitis.

Q. In relation to Patrick and the facts and circumstances surrounding him, has it always been your opinion that it is impossible that he suffered from encephalitis?

A. Not always. At the time of his first admission that was an issue that was a possibility. During that first admission as the evidence, clinical evidence and the investigations unfolded it became progressively clear it was not encephalitis.”

Dr. Wilkinson never thereafter departed from that view. In his re-examination he re-affirmed his opinion with special reference to a document which he had prepared and in which he had itemised comprehensively the reasons which had led him to dismiss encephalitis as the cause of the ALTE. That part of Dr. Wilkinson’s re-examination concluded thus:

“Q. Putting all of those together, are you able now to exclude encephalitis as a possible cause of Patrick’s admission when he first came into hospital?

A. Yes, I can.

Q. And what do you say now is the most likely cause of the first admission to hospital?

A. I think the most likely cause was asphyxia.

Q. And what does asphyxia mean?

A. Asphyxia is a situation where the end result is that the blood cannot deliver oxygen to the tissues and that may be as a result of a number of issues. It would be as a result of just obstructing the passage of air and oxygen into the lungs, it can be other situations, carbon monoxide poisoning where the oxygen can’t be carried, but I think asphyxia most commonly is the result of oxygen not getting into the body.”

[3] Dr. Christopher Marley saw Patrick, as a General Practitioner, on five occasions for routine childhood illnesses and to administer routine childhood treatment. Despite his epilepsy and his cortical blindness Patrick was “progressing well and growing well”. Dr. Marley observed no life-threatening conditions in Patrick apart from his seizure disorder.

[4] Associate Professor David Cooper gave evidence as a specialist in paediatric respiratory and sleep medicine. He had conducted sleep studies on Patrick at the age of about 1-1/2 weeks; and the studies showed no signs of any episode of apnoea. The study results were entirely normal.

[5] 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 Byard’s cross-examination on the topic of Patrick’s ALTE culminated thus:

“Q. So if Patrick’s ALTE was a first epileptic seizure, it was highly unusual?

A. Yes.

Q. I think you in fact in your evidence-in-chief called it “very unusual”?

A. I would agree with that, yes.”

“Q. Is your conclusion this: That the ALTE was caused by an asphyxiating event of unknown cause?

A. I think that’s the most likely, yes.”

[6] As previously herein noted Professor Herdson’s opinion was that Patrick’s ALTE had arisen from a sudden catastrophic asphyxiating event of unknown causes.

[7] Professor Berry, asked in cross-examination whether it was “possible that the ALTE was the manifestation of a first epileptic seizure”, replied that in his view, and although the question might better have been put to a clinician, “it would be an extraordinary presentation of epilepsy”.

[8] Dr. Beal, similarly pressed in cross-examination, said that she could not exclude the ALTE as having been caused by an epileptic seizure: “one hundred per cent, no, but pretty close”.

125 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:

[1] Dr. Christopher Walker was director of the emergency department at Newcastle Hospital when Patrick was brought there on 13 February 1991. Dr. Walker’s opinion was that Patrick had suffered an out-of-hospital cardiac arrest. He could find no cause for it; but he could say that such a cardiac arrest could be caused by asphyxiation.

[2] Dr. Wilkinson had certified in Patrick’s death certificate that the cause of death had been “epileptic fits giving rise to asphyxia”. Having reviewed the matter in the light of the subsequent post-mortem report, Dr. Wilkinson would no longer see epilepsy as having caused the fatal asphyxia, and he would reject “absolutely” encephalitis as the cause.

[3] A post-mortem of Patrick’s body was carried out on the day of his death. The examination was conducted by Dr. G. S. Khaira under the supervision of Dr. Jan Bishop who was his departmental supervisor.

At a macroscopic level of examination there were no physical abnormalities or signs of trauma. There were, however, observable changes in the brain; and a reference was therefore made to Dr. Alex Kan, a specialist neuropathologist.

That further examination, in which Dr. Khaira took part with Dr. Kan, suggested changes in the brain caused by an old hypoxic event. The indications were consistent with that event’s having been four or five months old.

Essentially, Dr. Khaira’s position was that he could not assign a cause of death. There were no signs apparent to him, of manual asphyxiation.

[4] Dr. Kan himself gave evidence. His findings did not exclude a catastrophic asphyxiating event. There were no conclusive signs that Patrick had been suffering from encephalitis as at the date of his death. Neither could Dr. Kan exclude, however, that Patrick might have suffered a pre-mortem seizure caused, not by encephalitis, but by some other abnormality of the brain so located in the brain as not to have been identifiable by Dr. Kan’s own examination.

[5] The competing opinions which were expressed by Professors Herdson, Berry and Byard and by Dr. Beal in connection with Patrick’s ALTE carried over, essentially, into their respective opinions in connection with Patrick’s actual death.

126 Once again, 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:

[1] Professor John Hilton performed the post-mortem examination of Sarah’s body. The Crown was permitted to cross-examine Professor Hilton upon the contents of a certain American publication, the Crown’s objective being to suggest to Professor Hilton that he ought not to have given the cause of Sarah’s death as SIDS, that having been in fact his expressed view in his post-mortem report. The end result of that exercise is the substance of the following questions and answers which conclude the Crown cross-examination:

“Q. Professor Hilton, would you tell us whether or not you agree with this proposition, that there are certain circumstances which should indicate to a pathologist conducting a post-mortem the possibility of intentional suffocation and that they include the following: The previous unexpected or unexplained death of one or more siblings, that is, a brother or sister, of the deceased. What do you say to that?

A. Yes.

Q. And another factor that should indicate the possibility of intentional suffocation for a pathologist conducting a post-mortem is an ALTE, that is, an acute life threatening event of a sibling while in the care of the same person who cared for the deceased?

A. Yes.

Q. And would you agree with this proposition, that when conducting a post-mortem examination one should give consideration to the possibility of intentional asphyxiation, that is smothering, in cases of unexpected infant death with a history of ALTEs, or one ALTE, witnessed only by a singe care-giver in a family, or of previous unexplained infant deaths. Do you agree with that?

A. Broadly, yes.

Q. Now, I want to suggest to you that in the light of those propositions which I have just put to you, that you ought not to have diagnosed Sarah Folbigg’s death as being due to SIDS and that you ought to have diagnosed it as being a death from unknown or undetermined causes. What do you say?

A. With respect, I would disagree with that.

Q. And I want to suggest to you that particularly because of the punctate abrasions which you saw in the vicinity of her lips and the scratch on her arm, particularly in the light of those findings, that you ought not to have diagnosed her cause of death as SIDS, but rather death from undetermined causes?

A. Again, with respect, I would disagree with that.

Q. Do you agree with the proposition that it is extremely difficult, if not improper, at autopsy to distinguish between SIDS on the one hand and accidental or deliberate asphyxiation with a soft object on the other hand?

A. It may well be.

Q. Do you agree with that proposition?

A. I agree it may well be.

Q. And would you agree with this proposition, that Sarah Folbigg in essence died from an acute catastrophic asphyxiating event of unknown cause?

A. No, it was my opinion then that the most likely diagnosis on the balance of probabilities was sudden infant death syndrome.

Q. Do you agree that you found that she died from asphyxia?

A. There is no specific autopsy test for asphyxia outside a period of something like six hours from the time of death to the time of examination.

Q. Do you agree that she died from a cessation of breathing?

A. Yes.

Q. Do you agree that you are not able to say why she ceased to breath?

A. That is true.”

Professor Hilton gave some evidence about Sarah’s uvula; but could say very little about any possible connection that it might have had with the actual death. That was because Professor Hilton felt that he could not exclude the possibility that the post-mortem dissection might itself have caused damage to the uvula.

[2] Dr. Marley, the general practitioner who gave evidence about Patrick, (see above), gave evidence that Sarah appeared to him to be a normal healthy child.

[3] Associate Professor Cooper, who had conducted sleep tests on Patrick, (see above), conducted similar tests on Sarah when she was about 3 weeks old. The tests showed a small handful of apnoeas, but they were not abnormal. There was no apparent reduction in Sarah’s oxygen saturation level.

[4] Professor Byard gave in his evidence in-chief the following evidence:

“Q. Is the age of Sarah relevant to your consideration of the cause of death?

A. Not particularly, no.

Q. What is your diagnosis as to the cause of death of Sarah?

A. I’m putting the cause of death down as undetermined for several reasons. One of them is that I have this odd upper airway. I’m not sure what that means. Secondly, I don’t think – I haven’t seen a description of the death scene.

Q. Does your diagnosis of undetermined exclude the possibility that Sarah died of SIDS?

A. No, it doesn’t. People have said she’s quite old for SIDS. The definition of SIDS is up to 12 months of age. 90 percent of SIDS deaths occur under six months, which means one in 10. We have seen six months and twelve months. I diagnose SIDS readily in children of that age.

Q. Is it to be understood that the fact that is preventing you coming to such a conclusion from such a diagnosis is the fact, firstly, that there is not a crime scene?

A. That is one of the reasons, yes.

Q. And the issue concerning the uvula?

A. That’s correct.

Q. Putting those to one side; otherwise would your findings be consistent with SIDS or the findings be consistent with SIDS?

A. I think you can’t exclude those mechanisms of course, yes.

Q. You referred to the age ranges that is considered in relation to SIDS. What about the child Caleb being 19 days old at the time of the death; what do you say about that age?

A. There is actually no official lower limit for SIDS. Some people say you can’t diagnose under eight months, but that is not in the definition. I would diagnose down to a week of age. I may have actually diagnosed it under that.

Q. Looking at all the findings of the pathology of Sarah in isolation, is there any finding or symptom which could amount to proof of suffocation?

A. No, there is not. There’s just my concerns about the upper airway and whether that was involved in obstruction.”

In cross-examination Professor Byard gave these answers:

“Q. I would like to move now to Sarah. You noted Dr. Littleton’s report about a displaced uvula?

A. That’s correct.

Q. You noted his evidence that in his view it was not the cause of death but was probably incidental?

A. Yes. I was be certain – yes. Yes.

Q. And is that also your view that it was probably incidental and not the cause of death?

A. I’m not sure of its significance.

Q. Have you, yourself, ever done an autopsy where a displaced uvula was the cause of death?

A. No, I haven’t.

Q. Incidentally, how many autopsies have you done?

A. 600 paediatric and about, I think, 1500 to 1600 adults.

Q. Sorry, in all of those 2,000 plus autopsies, you have never had a displaced uvula causing death?

A. No.

Q. Have any of your colleagues in South Australia told you about autopsies in which a displaced uvula has caused death?

A. No. No, they haven’t.

Q. And is this the case; that in the medical literature that you are aware of there is only one case that has ever been reported, to your knowledge, of an uvula that has caused a death by obstruction.

A. I believe so, yes.

Q. And that was an elongated and split uvula of a completely different category to Sarah’s uvula?

A. I believe so, yes.

Q. So is this the case; that the kind of uvula that Sarah had has, to your knowledge, never been reported, as being a cause of death anywhere in the world?

A. That’s correct, yes.

Q. So if Sarah’s uvula was her cause of death it would be a first reported world event?

A. I believe so, yes.

Q. And 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.”

[5] Professor Herdson gave evidence that, in his opinion, Sarah’s uvula was not significant in determining the cause of her death. Professor Berry and Dr. Beal gave evidence to the same effect. Professor Berry, had he been carrying out a post-mortem on Sarah’s case in isolation, “...... probably would have, in isolation, given the cause of death as SIDS but with the slight misgiving about Sarah’s age”.

127 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 :

[1] Dr. Christopher Seton, a specialist in sleep investigation, was consulted by the appellant and her husband before Laura was born. Given the history of the sudden and seemingly unexplained successive deaths of three siblings, Dr. Seton advised and assisted the appellant and her husband in the care of Laura after her birth. Post-natal monitoring disclosed that Laura had some mild central apnoea, but that was not unusual in premature babies, and occurred in perhaps 2%-3% of non-premature babies. Constant monitoring did not detect any on-going breathing problem, but there was a worry that “it seemed, on our data, that Laura wasn’t always monitored during all her sleeps”.

Dr. Seton gave this evidence in-chief:

“Q. In March of 1999 were you informed that Laura had died at her home at Singleton?

A. Yes, I was.

Q. In your view, doctor, did Laura Folbigg fit the profile of a high risk SIDS patient?

A. No, she did not.

Q. Why is that?

A. We assessed all the known risk factors and, as you know, some of those are reversible. So, for example, cigarette smoking is something that parents can choose and agree not to do. So we minimise the reversible risk factors. We excluded the risk factor that I was worried about, which was obstructive sleep apnoea, which appeared to run in the family on Mr. Folbigg’s side of the family. We excluded that. We excluded other inheritable and non inheritable disorders. We were convinced as a group of doctors that Laura was very healthy and as an added precaution we monitored her. So all those thing, really, reduced her risk of SIDS hugely to a level well below average.

Q. What do you say about the age at which Laura died and SIDS?

A. SIDS is highly unusual at Laura’s age, but in my view it does happen and I have seen it in the past. But to put it in perspective, most SIDS deaths occur between two and five months and a death at Laura’s age is highly unusual. We have seen patients in the past who continue to exhibit risk factors at that age on our testing and we know that those particular babies, though rare, remain at risk of SIDS well beyond their first birthday.”

And in re-examination:

“CROWN PROSECUTOR: Q. You were asked some questions by my learned friend, Mr. Zahra, about excluding inheritable disorders, and you mentioned MCAD. Having excluded MCAD in Laura’s case and having excluded obstructive sleep apnoea in Laura’s case, what do you say her risks were in relation to, compared to other children, of dying from SIDS?

A. Laura’s risk of dying from SIDS in my opinion was extremely low, infinitely, perhaps less than the average, which is 1 in 1,000. The reason for that was she was exhaustively investigated, she was monitored and she was well beyond her first birthday when she died.”

[2] 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 Folbigg 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 Folbigg 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 Folbigg 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 Folbigg 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 Folbigg 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”

[3] Dr. Bailey, a consultant cardiologist, gave evidence of having analysed a heart rhythm tracing taken by the ambulance officers who first treated Laura. The rhythm was slow and abnormal. It was called, in technical terms, an agonal cardiac rhythm, and “it is the last activity that you see in the heart before the heart dies”.

As to the proposition that Laura’s death was caused by myocarditis, Dr. Bailey gave in-chief this evidence:

“Q Now, doctor, in this case, you have read Laura’s autopsy report, which refers to her having localised areas of myocarditis?

A. Yes.

Q. Was this, in your opinion, probably related to a viral infection that she had at the time?
A. Yes. I think it most likely was.

Q. And are you able to say whether or not in your view it was of a sufficient extent to account for her death?

A. I would have thought it was unlikely to have accounted for her dying.

Q. And why is that?

A. Well, firstly because of what I have already said, that people with common illnesses are thought to often have or at least in say 5 or 10 per cent to have myocarditis. And of course people with the flu or colds or similar gastric upsets, don’t commonly drop dead.

Secondly there are other cardiac conditions where inflammatory cells are found in the heart similar to this, cells similar to what were found in Laura’s heart. One is a condition called pericarditis which is an inflammation of the lining outside the heart which causes often a lot of chest pain. But it also happens very often frequently after cardiac surgery and this can be accompanied by a myocarditis which is localised. But patients with pericarditis do not frequently drop dead. In fact they rarely drop dead, otherwise a lot of people would die after cardiac surgery. Another similar condition is transplant rejection. Patients who have had another person’s heart put into them need to be on drugs that suppress their immune system because the natural tendency is for the body to reject the transplanted organ and in that conditions there is also inflammation similar to myocarditis in the heart. But in the mild or moderate stages that is often asymptomatic.

Q. Asymptomatic meaning?

A. That the patients have no symptoms. The doctor can’t detect anything. But if you were to obtain samples of the heart to look at under the microscope, then you would find they were quite abnormal, and sudden death is not a common feature of that.

Q. For those reasons, you are of the opinion that it is unlikely that myocarditis caused her death?

A. Yes. And I think the other thing to state is that it is found in a number of routine post-mortem examinations. It is not an unusual thing to find a degree of myocarditis in a perhaps four or five percent of post-mortem examinations. So for all those reasons I suspect that this was not likely to have been the cause of death.”

[4] 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.

[5] Dr. Owen Jones, a specialist in paediatric cardiology, gave evidence in the defence case.
Dr. Jones did not agree with Dr. Bailey’s analysis on the topic of Laura’s agonal heart beat. Asked whether he thought it “possible that myocarditis represented an incidental finding”, Dr. Jones said that he thought that it was possible. Asked whether he thought that “the myocarditis in the present case would have accounted for Laura Folbigg’s death”, Dr. Jones replied “I believe it could”.

In cross-examination Dr. Jones gave this evidence:

“Q. You agree that mild myocarditis almost never leads to death?

A. I know that mild myocarditis can lead to death.

Q. That is not what I asked you, doctor: Do you agree that mild myocarditis almost never leads to death?

A. I think that is a correct statement, yes.

Q. And that even with moderate myocarditis there are very few instances where sudden death occurs?

A. I would agree with that.

Q. Do you also agree that myocarditis is often given as a possible cause of death incorrectly in cases where, in reality, it is an incidental finding?

A. I can’t make a comment about that.”

And later:

“CROWN PROSECUTOR: Q. Doctor, is this the case: That you don’t feel qualified to comment on whether or not Laura’s myocarditis was a cause of death?

A. I’m prepared to state that it’s a possible cause of death but I’m not in a position to state that it is the cause of death.

Q. Is this the case: That neither do you feel qualified to be able to say whether it is likely or unlikely to have been her cause of death?

A. I’m not in a position to comment on that probability.

Q. Is this the case: That you would defer on issues like that to the better judgment of pathologists?

A. I would defer to the extent that there may be other issues that in their judgment make the consideration of myocarditis as being incidental in her case.”

And finally:


“Q. Would you expect to find agonal rhythm if a person had died of myocarditis?

A. It is the final electrical activity that is seen from the wide variety of mechanisms, so I would not be surprised to see it.

Q. Do you agree it is something that you would expect to see in a case of death from suffocation?

A. I think it would be seen, it would be seen in that case, yes, I would agree with that.”

Once again, I have to say that I do not see why it was not open to a reasonable jury to find that the preponderance of the entirety of the foregoing evidence closed off any reasonable possibility that the cause of Laura’s death was either myocarditis or some other identified natural cause.

128 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.

129 That conclusion entails that 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.

130 I have already canvassed the evidence which was given upon that area of inquiry by Professors Herdson and Berry and Dr. Beal. 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 Folbigg 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.”

131 There is to be added to that material the evidence of the relevant contents of the appellant’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 Allan David Folbigg 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 the appellant.

133 It remains only to consider in connection with Ground 2 the English decision in Cannings, upon which the submissions made for the appellant place great store in the context of Ground 2.

134 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.”

135 It is appropriate then to set out paragraphs 10-13 inclusive of the judgment, because those passages sound warnings which are as appropriate to the present appellant’s case as they were to the case of Mrs. Cannings.

“10. It would probably be helpful at the outset to encapsulate different possible approaches to cases where three infant deaths have occurred in the same family, each apparently unexplained, and for each of which there is no evidence extraneous to the expert evidence that harm was or must have been inflicted (for example, indications or admissions of violence, or a pattern of ill-treatment). Nowadays such events in the same family are rare, very rare. One approach is to examine each death to see whether it is possible to identify one or other of the known natural causes of infant death. If this cannot be done, the rarity of such incidents in the same family is thought to raise a very powerful inference that the deaths must have resulted from deliberate harm. The alternative approach is to start with the same fact, that three unexplained deaths in the same family are indeed rare, but thereafter to proceed on the basis that if there is nothing to explain them, in our current state of knowledge at any rate, they remain unexplained, and still, despite the known fact that some parents do smother their infant children, possible natural deaths.

11. It will immediately be apparent that much depends on the starting point which is adopted. The first approach is, putting it colloquially, that lightning does not strike three times in the same place. If so, the route to a finding of guilt is wide open. Almost any other piece of evidence can reasonably be interpreted to fit this conclusion. For example, if a mother who has lost three babies behaved or responded oddly, or strangely, or not in accordance with some theoretically “normal” way of behaving when faced with such a disaster, her behaviour might be thought to confirm the conclusion that lightning could not indeed have struck three times. If, however, the deaths were natural, virtually anything done by the mother on discovering such shattering and repeated disasters would be readily understandable as personal manifestations of profound natural shock and grief. The importance of establishing the correct starting point is sufficiently demonstrated by this example.

12. Before this trial began, this court, differently constituted, had decided that the fact of three deaths (that is those of Gemma, Jason and Matthew), as well as each of the ALTEs, provided admissible evidence relevant to each count. There could be no denying that the death of three apparently healthy babies in infancy while in the sole care of their mother was, and remains, very rare, rightly giving rise to suspicion and concern and requiring the most exigent investigation. Given the overwhelming consensus of medical evidence, it would indeed have been an affront to common sense to treat the deaths of the three children and the ALTEs as isolated incidents, entirely compartmentalised from each other. All the available relevant evidence had to be examined as a whole. Nevertheless a degree of caution was necessary to avoid what might otherwise have been the hidden trap of taking the wrong starting point. If, for example, at post mortem it was obviously established that Matthew’s death had resulted from natural causes, the situation reverted to precisely where it stood before he died. The concerns which would have arisen as a result of his death – as the third in the sequence – would have been dissipated. There would have been a positive innocent explanation for the death, which would no longer be a SIDS, and might help to confirm that the earlier deaths were indeed natural deaths. Equally, if there were unequivocal evidence that one of these deaths, or even one of the ALTEs, had resulted from deliberate infliction of harm by the defendant, that would be likely to throw considerable light on the question whether the other deaths, or ALTEs, resulted from natural or unnatural causes. If, after full investigation, the deaths, or ALTEs , continue to be unexplained, and there was nothing to demonstrate that one or other incident had resulted from the deliberate infliction of harm, so far as the criminal process was concerned, the deaths continued properly to be regarded as SIDs, or more accurately, could not properly be treated as resulting from unlawful violence.

13. Reverting to the two possible approaches to the problems posed in a case like this, in a criminal prosecution, we have no doubt that what we have described as the second approach is correct. Whether there are one, two or even three deaths, the exclusion of currently known natural causes of infant death does not establish that the death or deaths resulted from the deliberate infliction of harm. That represents not only the legal principle, which must be applied in any event, but, in addition, as we shall see, at the very least, it appears to us to coincide with the views of a reputable body of expert medical opinion.”

136 These observations were supplemented towards the conclusion of the judgment, and in paragraph 177:

“177. We recognise that the occurrence of three sudden and unexpected infant deaths in the same family is very rare, or very rare indeed, and therefore demands an investigation into their causes. Nevertheless the fact that such deaths have occurred does not identify, let alone prescribe, the deliberate infliction of harm as the cause of death. Throughout the process great care must be taken not to allow the rarity of these sad events, standing on their own, to be subsumed into an assumption or virtual assumption that the dead infants were deliberately killed, or consciously or unconsciously to regard the inability of the defendant to produce some convincing explanation for these deaths as providing a measure of support for the prosecution’s case. If on examination of all the evidence every possible known cause has been excluded, the cause remains unknown.”

137 The next point to be made about Cannings is that it is a case-specific decision, and that it has features that are quite different from the features of the appellant’s case.

138 First, 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 the appellant’s trial.

139 Secondly, the Court of Appeal in Cannings received at the hearing of the appeal a body of fresh scientific evidence. This fresh evidence is described in paragraph 138 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.

140 Thirdly, the Court of Appeal discusses at paragraphs 31-35 inclusive, 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.

141 Fourthly, the Court of Appeal emphasises, (paragraph 160), 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 the appellant’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.

142 The differences between the appellant’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 the appellant’s convictions.

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

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

[2] 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 the appellant’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.

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

[4] In that event, the evidence pointed to nobody other than the appellant 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.

144 In my opinion Ground 2 has not been established.

The Convictions Appeal : Ground 1

145 The Ground is:

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

146 It is convenient to begin by reciting the relevant provisions of section 101 of the Evidence Act 1995 (NSW):

“101(1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98.

(2) 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.”

147 The correct construction and application of section 101(2) were considered by a specially convened five Judge Bench of this Court, (Spigelman CJ; Sully, O’Keefe, Hidden and Buddin JJ), in R v Ellis [2003] NSWCCA 319; (2003) 58 NSWLR 700. The nub of the decision appears in the following portions of the judgment of the Chief Justice:

“94. The words ‘substantially outweigh’ in a statute cannot, in my opinion, be construed to have the meaning which the majority in Pfennig determined was the way in which the common law balancing exercise should be conducted. The ‘no rational explanation’ test may result in a trial judge failing to give adequate consideration to the actual prejudice in the specific case which the probative value of the evidence must substantially outweigh.

95. Section 101(2) calls for a balancing exercise which can only be conducted on the facts of each case. It requires the court to make a judgment, rather than to exercise a discretion. ................ The ‘no rational explanation’ test focuses on only one of the two matters to be balanced – by requiring a high test of probative value – thereby averting any balancing process. I am unable to construe s 101(2) to that effect.

96. My conclusion in relation to the construction of s 101(2) should not be understood to suggest that the stringency of the approach, culminating in the Pfennig test, is never appropriate when the judgment for which the section calls has to be made. There may well be cases where, on the facts, it would not be open to conclude that the probative value of particular evidence substantially outweighs its prejudicial effect, unless the ‘no rational explanation’ test was satisfied.

97. .......................

98. ......................

99. ...................... In my opinion, the statutory formulation should operate in accordance with its terms. 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’.”

148 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).

149 The appellant submits that her case is, indeed, one in which: “........... it would not be open to conclude that the probative value of particular evidence substantially outweighs its prejudicial effect, unless the ‘no rational explanation’ test were satisfied”. In that connection the appellant’s arguments are encapsulated in the following paragraphs of the appellant’s written submissions:

“94. It is suggested that this is such a case. Indeed, it is submitted that the evidence did not even satisfy the tests posed by sections 97 and 98 of the Evidence Act: the evidence did not, on proper analysis, have significant probative value.

95. If there were evidence capable of satisfying the Jury in relation to one of the given deaths that, considered alone, the appellant was responsible then the situation would be different. If there were evidence that she had been observed suffocating one of the children or had confessed to such an act then that could be used, given sufficient similarities being established between it and the suspect events, to prove those events. This was not such a case.

96. 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.”

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

151 It seems to me that the four deaths and Patrick’s ALTE satisfy every relevant part of section 98 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 established by section 98. The admissibility, when considering any one of those events, of evidence respecting all four other events depended, therefore, upon the section 98(1)(b) 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”?

152 The concept of “significant probative value” is meaningless unless it is related to the fact or facts in issue towards the proof of which the coincidence evidence is being tendered at all. The fact or facts in issue is or are those facts described in section 98(1) itself:

“................................... Because of the impossibility of the .... (related) ..... events occurring coincidentally, ...... (the accused person) ........ did a particular act or had a particular state of mind.”

153 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” in the section 98 sense; 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.

154 I can see no persuasive argument that would have rendered the proposed coincidence evidence inadmissible, except, of course, for the possible operation of section 101, or of section 137 of the Evidence Act; - (and perhaps sections 135 and 136, although I would myself have thought that those sections were, as a practical matter, academic in a case of the0 present kind).

155 For the foregoing reasons, I would not be persuaded that, absent binding authority to the contrary, there was any miscarriage by reason of the joint trial of all five counts in the indictment. There is, as it happens, authority which seems to me to support the foregoing reasoning.

156 It is convenient to begin that canvass by referring back to part of the contents of paragraph 12, previously herein quoted, of the judgment of the English Court of Appeal in Cannings. The judgment of a differently constituted Bench of the Court of Appeal which dealt with the interlocutory application of which paragraph 12 speaks, was made available to this Court. That judgment takes as its starting point the decision, earlier herein mentioned, of Makin. There follows a detailed and helpful canvass of subsequent English authority. The conclusion reached upon the basis of that canvass is put as follows in paragraph 31 of the judgment:

“In our judgment, it would be, in the words used in the authorities, ‘an affront to common sense’ if the evidence in relation to the deaths and ALTEs of each of these children was not admissible in relation to the deaths referred to in the indictment. As we have said, we do not accept that it is a necessary prerequisite to the admission of such evidence that, when viewed in isolation in relation to each child, it gives rise to a prima facie case. Whether or not there is, in relation to either count in the indictment, a prima facie case, is a matter, of course, determinable at the close of the prosecution case at trial. But, in our judgment, when fairness to the prosecution, as well as fairness to the defence, are considered, there is nothing either wrong in law or unfair in the evidence in relation to each of these children being admitted, in relation to the death of the others. It follows that, in our judgment, the judge was correct to rule in relation to admissibility as she did and to rule that severance was inappropriate.”

157 Of the authorities which are canvassed by that interlocutory judgment of the Court of Appeal there is one, Director of Public Prosecutions v P [1991] 2 AC 447, in which the Lord Chancellor, Lord Mackay of Clashfern, states a number of propositions which are, I think, helpful to the present discussion.

158 At 460D – 461A his Lordship says:

“As this matter has been left in Reg v Boardman I am of opinion that it is not appropriate to single out ‘striking similarity’ as an essential element in every case in allowing evidence of an offence against one victim to be heard in connection with an allegation against another. Obviously, in cases where the identity of the offender is an issue, evidence of a character sufficiently special reasonably to identify the perpetrator is required and the discussion which follows in Lord Salmon’s speech on the passage which I have quoted indicates that he had that type of case in mind.

From all that was said by the House in Reg v Boardman I would deduce the essential feature of evidence which is to be admitted is that its probative force in support of the allegation that an accused person committed a crime is sufficiently great to make it just to admit the evidence, notwithstanding that it is prejudicial to the accused intending to show that he was guilty of another crime. Such probative force may be derived from striking similarities in the evidence about the manner in which the crime was committed .................. . But restricting the circumstances in which there is sufficient probative force to overcome prejudice of evidence relating to another crime to cases in which there is some striking similarity between them is to restrict the operation of the principle in a way which gives too much effect to a particular manner of stating it, and is not justified in principle.”

159 And 462D – G:

“When a question of the kind raised in this case arises I consider that the judge must first decide whether there is material upon which the jury would be entitled to conclude that the evidence of one victim, about what occurred to that victim, is so related to the evidence given by another victim, about what happened to that other victim, that the evidence of the first victim provides strong enough support for the evidence of the second victim to make it just to admit it notwithstanding the prejudicial effect of admitting the evidence. This relationship, from which support is derived, may take many forms and while these forms may include ‘striking similarity’ in the manner in which the crime is committed, consisting of unusual characteristics in its execution the necessary relationship is by no means confined to such circumstances. Relationships in time and circumstances other than these may well be important relationships in this connection. Where the identity of the perpetrator is in issue, and evidence of this kind is important in that connection, obviously something in the nature of what has been called in the course of the argument a signature or other special feature will be necessary. To transpose this requirement to other situations where the question is whether a crime has been committed, rather than who did commit it, is to impose an unnecessary and improper restriction upon the application of the principle.”

160 For the whole of the foregoing reasons I am, therefore, of the opinion that Ground 1 has not been made good.

The Convictions Appeal : Conclusion

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

The Sentence Application

162 As previously herein noted Barr J passed sentences structured so as to produce an overall head sentence of imprisonment for 40 years and a non-parole period of 30 years.

163 The practical structure of the sentences was:

[1] Count 1 – imprisonment for a term of 10 years to commence on 22 April 2003 and to expire on 21 April 2013;

[2] Count 2 – imprisonment for a term of 14 years to commence on 22 April 2005 and to expire on 21 April 2019;

[3] Count 3 – imprisonment for a term of 18 years to commence on 22 April 2006 and to expire on 21 April 2024;

[4] Count 4 – imprisonment for a term of 20 years to commence on 22 April 2013 and to expire on 21 April 2033; and

[5] Count 5 – imprisonment for a term of 22 years to commence on 22 April 2021 and to expire on 21 April 2043. Non-parole period of 12 years to commence on 22 April 2021 and to expire on 21 April 2033.

164 Three matters are at once apparent.

165 First, Barr J correctly fixed a distinct sentence for each distinct offence. This conformed to what is required by the decision of the High Court of Australia in Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610.

166 Secondly, his Honour made each sentence in the sentencing sequence incrementally larger than the preceding sentence in that sequence. I see no error of principle on that account. His Honour was dealing, after all, with five distinct offences separated by not insignificant periods of time.

167 Thirdly, his Honour built in to the sentencing structure a measure of cumulation. As a matter of broad sentencing principle there was, in my respectful opinion, no manifest error in that approach.

168 The appellant submits that the end result achieved by Barr J is manifestly excessive. It is submitted that the degree of cumulation as between the sentences passed in connection with Counts 1 and 4, a cumulation of 10 years, which is the entire term of the Count 1 sentence; and as between Counts 1 and 5, a cumulation of 18 years; is itself indicative of error. It is submitted, as well, that the sentences do not allow adequately, if indeed at all, for the unusual personal and psychological profiles of the appellant; and, further, that the sentences do not allow for the special features of the harshness of the custodial regime to which the appellant is, and is likely to remain, subject.

169 There can be no gainsaying, in my opinion, that the objective criminality of the five offences was, overall, very serious indeed. On this topic Barr J made these findings:

“The stresses on the offender of looking after a young child were greater than those which would operate on an ordinary person because she was psychologically damaged and barely coping. Her condition, which I think she did not fully understand, left her unable to ask for any systematic help or remove the danger she recognised by walking away from her child. She could confide in nobody. She told only her diary. Even when her diary was discovered and her feelings realised she was persuaded to stay with Patrick. I think that the condition that gave rise to her fears and anxieties prevented her from refusing the well-intentioned offer.

The attacks were not premeditated but took place when she was pushed beyond her capacity to manage. Her behaviour after each attack contained elements of falsity and truth. She falsely pretended the unexpected discovery of an accident and falsely maintained her innocence. That, I think, was because she could not bring herself to admit her failure to anyone but herself. However, her attempts to get help, including what I think was a genuine attempt to perform cardio-pulmonary resuscitation on Laura, were genuine and made out of an immediate regret of what she had done. Her anger cooled as fast as it had arisen.

However, even with these mitigating features one would not hesitate, without the evidence of the events of the offender’s childhood and their eventual effect on her behaviour as an adult, to say that, taken together, her offences fell into the worst category of cases, calling for the imposition of the maximum penalty. As the Crown said in its written submissions, the real issue that arises is whether the offender’s dysfunctional childhood provides any significant mitigation of her criminality.

I think that it does. I think that notwithstanding the stable family environments afforded by the Platt and Marlborough families and by Mr. Folbigg the effects on the offender of the traumatic events of her childhood operated unabated. She was throughout these events depressed and suffering from a severe personality disorder. I accept the evidence of Dr. Westmore that her capacity to control her behaviour was severely impaired.

I accept that throughout her marriage the offender was affected by the abuse perpetrated upon her during the first eighteen months of life. The effects included an inability to form a normal, loving and forbearing relationship with her children. Although she realised that shortcoming she lacked the resources to remedy it. She was unable to confide in Mr. Folbigg. He never knew that she was at the end of her tether. The result was that he continued to leave everything to her and her fear of the consequences became settled. Her depression went unrelieved and on occasions turned itself into anger. The offender was not by inclination a cruel mother. She did not systematically abuse her children. She generally looked after them well, fed and clothed them and had them appropriately attended to by medical practitioners. Her condition and her anxiety about it left her unable to shrug off the irritations of unwell, wilful and disobedient children. She was not fully equipped to cope.

On occasions she appeared cool, detached, self-interested and unaffected by the fate of the children. In truth, she suffered remorse which she could not express.”

170 All of these findings were, in my respectful opinion, amply open to his Honour upon the whole of the evidence, but particularly the evidence of Drs. Giuffrida and Westmore, that was put to his Honour during the proceedings on sentence.

171 I add, because the matter is very important in the present context, that the psychological damage to which Barr J refers in paragraph 91 as quoted above, was not trifling or peripheral damage, but was serious, deep-seated damage caused over a period of some years commencing when the appellant was a baby. The details make sad and shocking reading. It is unnecessary to rehearse now all of the ugly and distressing particulars.

172 The appellant was born on 14 June 1967. She was aged, therefore, a little more than 36 years when she stood for sentence. Her subjective profile was shaped in large part by the psychological damage to which I have previously referred. The just balancing of the appellant’s objective criminality, as found by Barr J, and her subjective profile, posed three particular questions for his Honour.

173 First, to what extent was the appellant, now and in the foreseeable future, a continuing danger to the well-being of the community. Barr J concluded:

“Dr. Guiuffrida and Dr. Westmore agree that the offender’s condition is for the most part untreatable. Her chronic depression may respond to medication. Her feelings of vulnerability and failure may respond to psychotherapy, though there may be doubt whether it will be possible to offer her the fortnightly services that Dr. Westmore considers necessary for that purpose. She will always be a danger if give the responsibility of caring for a child. That must never happen. She is not a dangerous person generally, however, and her dangerousness towards children does not disentitle her to eventual release upon parole on conditions which will enable risks to be managed.”

174 I respectfully agree with those conclusions, but subject to a note of caution in connection with the proposition that the appellant: “will always be a danger if given the responsibility of caring for a child. That must never happen.”. I think, with all due respect to his Honour, that such an assessment is unacceptably speculative insofar as it treats of distant future probabilities. There is also, I think, a risk that such a cut-and-dried look into the far distant, and in truth unknowable, future will introduce into the sentencing process an impermissible element of mere preventative detention which punishes the appellant, not for the crimes that she has undoubtedly committed, but for crimes which it is feared, in an incohate general sense, that she might commit in that future: cf Veen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 per Mason CJ, Brennan, Dawson and Toohey JJ at 473.5 – 474.2.

175 Allied to that question is the issue of general, as well as personal, deterrence. It is submitted for the appellant that an offender with the appellant’s damaged psychological profile is not a suitable vehicle for the provision of general deterrence. If that submission means that in the case of such an offender the factor of general deterrence will not have in the nature of things the importance that it would have in the case of an offender whose objective criminality was not so mitigated, then I would accept the submission as being both sound in logic and consistent with relevant authority. It the submission means, however, that there is no room in such a case for a measure of general deterrence, then I would not accept the submission. A theme of much of contemporary social behaviour is “stressing out” and then lashing out. To say that “stressing out” should have a sensibly mitigating effect upon objective criminality, and upon the accompanying subjective factors, is one thing. It is quite a different thing to encourage any view in any segment of society that “stressing out” is some sort of licence to commit criminal offences; and a fortiori the criminal offences of manslaughter and murder.

176 Secondly, to what extent did the appellant have prospects of rehabilitation? Barr J dealt with this topic thus:

“.............. She is not a dangerous person generally, however, and her dangerousness towards children does not disentitle her to eventual release upon parole on conditions which will enable risks to be managed.

Because of the intractability of her condition, the offender’s prospects of rehabilitation are negligible. She is remorseful but unlikely ever to acknowledge her offences to anyone other than herself. If she does she may very well commit suicide. Such an end will always be a risk in any event.”

177 I see no error in these findings and opinions. I do see a need to make sensible allowance for the fact that no Court which now deals with this appellant can really foresee how she will develop in decades from now, should she be given humane, professional treatment and support.

178 Thirdly, what needs to be done about the likely circumstances of this appellant’s imprisonment?

179 Barr J describes these circumstances simply, clearly and graphically thus:

“Gaol is a dangerous environment for any serving prisoner. It will be particularly dangerous for the offender. In order to protect her from the danger of murder by other inmates the authorities will have to keep her closely confined for the whole of her time in custody. The number of people with whom she will have contact will be limited. So far she has been locked up for twenty-two hours in every twenty-four and the indications are that some such regime will obtain indefinitely. For these reasons she will serve her sentences the harder and is entitled to consideration.”

180 I see no error in any of those findings or in that assessment.

181 The foregoing questions apart, Barr J speaks of the perceived need to accommodate “the outrage of the community”. This is, I apprehend, a fairly conventional notion in the context of sentencing; but it seems to me to need some carefully discriminating application in particular cases. The concept itself cannot mean, surely, outrage that is seen and assessed through the normally distorted prism of the coverage given to high-profile criminal cases in the mass media of social communication. The concept must entail, surely, a notion of the outrage that would be reflected in a properly informed, sensible and thoughtful community consensus.

182 I apprehend that the appellant’s crimes would be regarded by any person who was properly informed, sensible and thoughtful, as terrible crimes, not only on account of their substance, but also on account of the tragic background which explains to some extent, although it does not excuse to any extent, how the crimes came to be committed. I apprehend that any such person would understand readily enough the need which arises when punishing such crimes, not unthinkingly, (and to borrow from the oral submissions of Mr. Jackson QC), to treat the appellant as somebody “to be locked up and the key thrown away”.

183 When this Court comes, in adjudicating an appeal against sentence, to consider whether there has been any error at first instance, it is important, in my opinion, that the Court not depart either insouciantly or idiosyncratically, from the findings and conclusions of the sentencing Judge, and particularly in the present case when the sentencing exercise was so extraordinarily difficult. As has been said many times in the cases, sentencing is an art and not a science. “That is”, to quote from the joint judgment of Gaudron, Gummow and Hayne JJ in Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at 611, “what is meant by saying that the task is to arrive at an ‘instinctive synthesis’. This expression is used, not as might be supposed, to cloak the task of the sentencer in some mystery, but to make plain that the sentencer is called on to reach a single sentence which, in the case of an offence like the one now under discussion, balances many different and conflicting features”.

184 I have considered anxiously the particular question now posed for this Court, that is to say, whether some other and more lenient sentence is warranted in law: see section 6(3), Criminal Appeal Act 1912 (NSW). I can see no proper answer other than an affirmative one.

185 First, I think that there is an identifiable particular error in Barr J’s method of cumulation. That some cumulation was warranted is, in my opinion, plainly correct. But the structuring of the sentences passed in connection with Counts 4 and 5 entails that the sentence on Count 4, a heavy sentence in any event, does not commence until 7 years after the commencement of the sentence on Count 3, and 10 years after the commencement of the sentence on Count 1; while the sentence on Count 5, an even heavier sentence, does not commence until 8 years after the commencement of the sentence on Count 4, and 18 years after the commencement of the sentence on Count 1.

186 These are quite extraordinary cumulations. The prospect that they offer the appellant is so crushingly discouraging as to put at risk any incentive that she might have to apply herself to her rehabilitation. That seems to me to indicate, without more, error.

187 Secondly, I am of the opinion, with every proper respect to Barr J, that the overall results of a head sentence of 40 years and a non-parole period of 30 years are so crushing as to manifest covert error.

188 The written submissions of the appellant draw attention to a number of cases which are said to indicate, at least in a broadly helpful way, a pattern of sentencing that suggests such a covert error in the present case. The individual comparisons are necessarily inexact, as the appellant’s written submissions fairly acknowledge. But they do tend to strengthen my opinion that the overall results in the present case are simply too high.

189 As matters stand, the appellant cannot be paroled until she is aged 66 or thereabouts. She might well not be paroled until she is even older; and if political reaction to media pressure and to meretricious polling operates at that future time as it tends to operate now, she might well not be released until she is aged 76 or thereabouts. That is, it seems to me, a life sentence by a different name.

190 Barr J stopped short of passing a life-means-life sentence, and that for reasons with which I respectfully agree. An end sentencing result which does not have the same pedantic theoretical operation, but which is likely to have the same practical effect, is in my respectful opinion such as to warrant the section 6(3) intervention of this Court. In my opinion, justice would be done by an overall result entailing a head sentence of 30 years and a non-parole period of 25 years.

191 The non-parole period thus proposed is about 83 per cent of the proposed head sentence rather than the statutory norm of 75 per cent. I think, as did Barr J, and for the same reasons as his Honour, that a somewhat longer than normal non-parole period is justified in order to reflect the reasonable requirements overall of the appellant’s case.

Orders

[1] That there be granted any extension of time necessary to permit of the hearing of the present appeal and application;

[2] That the appeal against convictions be dismissed;

[3] That leave be granted to appeal against sentence; that the sentences passed at first instance on Counts 4 and 5 be quashed, and that the appellant be re-sentenced on those counts as follows:

· On Count 4 to imprisonment for 20 years to commence on 22 April 2008 and to expire on 21 April 2028; no non-parole period being set because of the overall structure of the appellant’s re-sentencing;

· On Count 5 to imprisonment for 22 years to commence on 22 April 2011 and to expire on 21 April 2033. A non-parole period of 17 years, to expire on 21 April 2028, is set.

192 DUNFORD J: I agree with the orders proposed by Sully J and with his Honour’s reasons for such orders.

193 HIDDEN J: I agree with Sully J.