Australia's worst female
The story of New South Wales
woman Kathleen Folbigg exposes the feminist propaganda that it is only
men who are violent and evil.
But for this misconception, one
or more of Craig and Kathleen Folbigg's children could still be alive.
Thirty six year old, Kathleen Folbigg cold-bloodedly killed her four
children over a ten year period for no better reason, according to her
diary, than they annoyed her when they cried and cut into her time to
go to the gym and to go dancing.
When this evil woman smothered
19-day-old Caleb his death was put down to Sudden Infant Death
Syndrome. Two years later she smothered 8-month old Patrick and then
The Coroner noticed bruises on
Sarah's neck but because of his blinkered view did not associates the
bruises with any action of the mother.
Then in 1999 she killed her
daughter, 19-month-old Laura.
A detective began investigating.
He was later to admit that his investigation was hampered by his
mind-set that women do not kill their children.
This a totally erroneous concept.
The National Homicide Monitoring Program conducted by the Australian
Institute of Criminology reveals that where children are killed by
their biological parents, the mothers commit 55 per cent of the
Folbigg was found guilty of the
murders and sentenced by NSW Supreme Court judge Graham Barr on 24
October 2003 to 40 years' jail.
Kathleen Megan Folbigg (née Donovan) (born
14 June 1967) is an Australian child killer. Folbigg was convicted of
murdering her three infant children, eight-month-old Patrick Allen,
10-month-old Sarah Kathleen and 19-month-old Laura Elizabeth. Folbigg
was also convicted of the manslaughter of a fourth child, Caleb
Gibson, aged 19 days. The murders took place between 1991 and 1999,
coming to an end only when her husband discovered her personal diary,
which detailed the killings.
Folbigg was originally sentenced to 40 years' jail,
with a non-parole period of 30 years, but on appeal this was reduced
to 30 years, with a non-parole period of 25 years. Folbigg maintains
her innocence, claiming the four children died from natural causes.
On 8 January 1969, Folbigg's natural father, Thomas
John Britton, murdered her mother, also named Kathleen, by stabbing
her 24 times. Following her father's arrest on the day after the
murder, Folbigg was made a ward of the state and placed into foster
care with a couple.
On 18 July 1970, Folbigg was removed from the care
of the foster couple and placed into Bidura Children's Home.
In September 1970, Folbigg moved into the home of
Mr and Mrs Marlborough, a couple who also provided foster care and
expressed a desire to adopt Folbigg. While living there she was
treated, particularly by Diedre Marlborough as a slave and not allowed
to spend time with friends often.
She was not told of her mother's murder by her
father until 1984, in fact she was not told that she had always been a
ward of the state, always believing she had been adopted by the
Marlborough's. Kathleen completed her Trial HSC in 1985 at Kotara High
School, until life at home became unbearable and she was forced to
leave home and school, finding work and then met Craig Gibson Folbigg
in 1985. The pair formed a relationship and bought a home in the
north-western Newcastle, New South Wales suburb of Mayfield in May
1987. They married in September that same year.
Caleb Gibson Folbigg was born a healthy baby on 1
February 1989. Caleb was known to breathe noisily and was diagnosed by
a pediatrician to be suffering from a mild case of laryngomalacia,
something he would eventually outgrow. On 20 February 1989, Folbigg
put Caleb to sleep in a room adjoining the room she shared with her
During the night, Caleb stirred from midnight until
2 a.m. Folbigg attended to her baby's cries, subsequently smothering
him. The death was attributed to sudden infant death syndrome (SIDS).
Patrick Allen Folbigg was born on 3 June 1990.
Craig Folbigg remained at home to help care for his wife and baby for
three months after the birth. On 18 October 1990, Folbigg put Patrick
to bed. Craig Folbigg was awakened by the sounds of his wife screaming
and found her standing at the baby's cot. He noticed the child wasn't
breathing and attempted to revive him by cardiopulmonary
resuscitation. An ambulance was called and Patrick was taken to
hospital. Patrick would later be diagnosed to be suffering from
epilepsy and cortical blindness.
The couple moved to Thornton in the City of
Maitland. Sarah Kathleen Folbigg was born on 14 October 1992, and died
on 29 August 1993.
In 1996, the couple moved to Singleton. On 7 August
1997, Laura Elizabeth Folbigg was born. On 27 February 1999, Laura
Folbigg's trial lasted seven weeks. During a jury
replay of Folbigg's police interview, she attempted to run from the
The prosecution alleged Folbigg murdered her four
children by smothering them in periods of frustration. Folbigg relied
on the defense that all four of her children had died from natural
causes and denied that the contents of her diary related to the
killing of her children.
The defence case:
The appellant did not kill her children or harm
Patrick... She did not think Craig was responsible for their
deaths... 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
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.
Prosecution had no evidence that was not
circumstantial, and questioned at least eight expert witnessess. None
of the doctors came to a consensus on the cause of death for any
On 21 May 2003, Folbigg was found guilty by the
Supreme Court of New South Wales jury of the following crimes: three
counts of murder, one count of manslaughter and one count of
maliciously inflicting grievous bodily harm. On 24 October 2003,
Folbigg was sentenced to 40 years' imprisonment with a non-parole
period of 30 years.
On 17 February 2005, the court reduced her sentence
to 30 years' imprisonment with a non-parole period of 25 years on
appeal. Due to the nature of her crimes, Folbigg resides in protective
custody to prevent possible violence by other inmates.
Benns, Matthew (2003).
When the Bough Breaks: The True Story of Child Killer Kathleen
Folbigg. Sydney: Bantam Books.
Killing them softly
August 30, 2003
killed four of her babies before she was found out. What creates a
monster mother - and why are they so hard to catch? Julie Szego and
Stephen Cauchi report.
Sometimes cot death
runs in families. With Kathleen Folbigg, so does murder. Her father,
hoist driver Thomas John Britton, stabbed her mother, Kathleen Mary
Donavan, 24 times one balmy Sunday night about two weeks before
Christmas in 1968.
The reason: Britton
was furious over his partner's severe neglect of Kathleen, then their
It was the first in a
series of tragedies that are now culminating in Kathleen Folbigg's
sentencing for the deaths of her own four babies. The severity of that
sentence will depend partly on how much weight the NSW Supreme Court
places on evidence that it was her own childhood deprivation that
caused her to kill. Was she mad or bad? More importantly, how did she
get away with it for so long?
Folbigg, 36, has been
found guilty of killing Caleb, Patrick, Sarah and Laura, who were aged
between 19 days and 19 months. The first killing happened in 1991 and
the last in 1999. Two of the deaths were attributed to sudden infant
death syndrome, one to an epileptic fit and another cause of death was
investigating Folbigg but she was only exposed after her husband,
Craig, a car salesman, found a diary in which she detailed the
killings. He contacted police.
When mothers kill
their children, the rest of us are left to grapple with dark questions
that go beyond the complexities of the soul to touch on the stability
of the social order. As Medea, the murderous mother of Greek legend,
understood all too well, the woman who murders her babe rattles the
very foundations of civilisation because she subverts the ideal of the
How could they do it?
Melbourne University associate professor of psychiatry Anne Buist uses
the tag "narcissistic personality style". Such women usually have
severely fragmented personalities, which are probably the result of a
traumatic childhood coupled with a genetic makeup that might
predispose them to respond in certain ways. The lack of love early in
life gives rise, by way of compensation, to an inflated ego that makes
them see children as their possessions rather than as separate
entities. Says Buist: "It's a constant chasing of their own emotional
needs - they can't see anyone else."
As Medea herself
acknowledged: "I know, indeed, the evil of that I purpose. But my
inclination gets the better of my judgement."
Folbigg's story fits
the profile of early emotional deprivation. After her father was
jailed for the murder, Kathleen was sent to a church orphanage and
later to a foster family. She was a picture-perfect child with curly
blonde hair, according to her foster mother. But the young Kathleen,
she noted, also tended to keep her inner feelings to herself.
She left school at 15
and worked in a series of dead-end jobs before marrying 25-year-old
Craig Folbigg. Within a year she was carrying Caleb.
While most child
killers fall within distinct categories of human frailty, recidivist
Medeas such as Folbigg, who murder over and over in a seemingly
calculated and detached fashion, stand chillingly outside them.
Professor Ken Polk, co-author of a book on child victims of homicide,
says that in cases such as Folbigg's, psychiatrists and other experts
scramble to piece together a coherent story in retrospect.
"But I'm not sure
we'll ever get there," he says. "Sometimes, when you see violence that
is so grossly abnormal and unusual, all you can really say is that
this is a terrible tragedy. You can really only take it so far."
While explanations are
hard to find, the bald facts of a case can be even more elusive. For
welfare authorities to detect such mothers is extremely tricky because
"it's hard to pick up the ones who are truly dangerous from those who
are just incompetent".
And, as cases such as
Folbigg's demonstrate, the medical profession has an equally demanding
task picking murder from malfunction. In terms of pathology,
accidental asphyxia (deprivation of oxygen) can look the same as
Until recently, the
accepted wisdom when dealing with infant deaths was probably best
expressed by British child abuse expert Sir Roy Meadows: unless proven
otherwise, one cot death is a tragedy, two is suspicious and three is
In 1999, Meadows
called for the term SIDS to be replaced by "unexplained death".
Meadows said at the time the number of unexplained child deaths in the
UK was a "national scandal", citing 42 SIDS deaths in Britain that
were later shown to be homicides. "SIDS has been used, at times, as a
pathological diagnosis to evade awkward truths," he said.
But that theory has
been shaken by the recent trial of Berkshire mother Trupti Patel for
murdering her three children. The result is a dramatic contrast to the
Folbigg case. Patel's children had all died before the age of three
months, collapsing suddenly at the family home between 1997 and 2001.
alleged she had deliberately smothered the babies. A defence witness,
Professor Peter Fleming, who has been awarded the CBE for his research
into infant death, said all the evidence suggested the children died
because their bodies could not metabolise properly and they became
very ill, while appearing to be well.
The president of the
International Paediatric Pathology Association, Dr Jean Keeling, told
the court there was no evidence Patel had harmed her children, and
that an inherited condition or metabolic disorder could have caused
their deaths. Indeed, in crucial testimony, Patel's 80-year-old mother
told the court how five of her 12 children had died in infancy, all of
them under the age of six weeks. She did not know what had caused
After a six-and-a-half
week trial, the jury of 10 men and one woman acquitted Patel.
In Australia, the
number of SIDS cases has fallen from around 500 annually in the 1980s
to around 100 a year now, thanks to better diagnosis and safe-sleeping
campaigns. But experts warn that more needs to be done to ensure cases
of foul play don't slip through the scientific net.
Professor Roger Byard
from the South Australian Forensic Science Centre says the main
problems are in rural areas. In isolated parts of the country infant
autopsies - which require specialised techniques - are performed by
non-pathologists. A 2000 study in Queensland showed that 65 per cent
of infant autopsies did not meet minimum standards, were of poor
quality and were not done by trained pathologists. Similar conclusions
were reached in a 1995 inquest in South Australia, he said.
"People are not
necessarily up on the literature. They may do one case every five
years," said Byard.
While Byard wants to
see national guidelines introduced for child deaths, he believes a
"very small percentage" of deaths attributed to SIDS are actually
The comforting reality
is that relatively few mothers kill their children. Between July 1989
and June 2002 an average of 25 children were murdered each year -
nearly 40 per cent of them at the hands of their mothers. Younger
children were at significantly greater risk, with the majority of
victims aged five or younger. Children under one experienced the
highest level of victimisation, accounting for 26 per cent of all
criminologist Professor Ken Polk says mothers who kill their babies
tend to come under four main headings.
One of the most common
is the (typically young) mother who kills her baby within the first
few minutes or hours after birth, having never accepted the fact of
her pregnancy. The teenager who dumps her newborn in the toilets and
then hurries back to the dance floor exemplifies this disassociative
Then there is the
suicidal mother, usually isolated and despairing after a relationship
breakdown, who can't imagine her child surviving without her. Murder
in this context becomes "a curious form of altruism," Polk says.
Rarer cases involve
mothers, and often step-fathers, who dish out severe physical
punishment in an attempt to control their children. Mothers in such
"battered children" cases believe they are administering "tough love"
and fail to understand their violence as dangerous.
Mothers affected by
psychotic disturbance, those who hear voices urging evil acts, are
another small group. Buist, a postnatal depression expert, gives as an
example Texas mother Andrea Yates, last year sentenced to at least 40
years' prison for drowning her five children in the bathtub. While
childbirth is the spark for such "post-partum psychosis," only one in
600 women are likely to be afflicted, in contrast to the 14 per cent
affected by postnatal depression.
There are other, more
obscure, sub-categories. Mothers suffering from Munchausen's by proxy
syndrome, or fictitious disorder, inflict illness on their child to
gain attention for themselves. This week a 35-year-old Gold Coast
mother was jailed for seven years for torturing three of her children
by making them sick and subjecting them to risky medical procedures.
behaviour after each death, what her husband later termed her "broken
sparrow" routine, was theatrical. He would wake to his wife's
blood-curdling screams and see her standing over the bassinet. After
the deaths of the first three children, Kathleen packed all their
belongings away, taking photos out of the frames and off the
mantelpiece. She would not mention their names afterwards.
Do our laws properly
reflect the varied contexts in which mothers murder? The issue has
particular relevance in Victoria, where mothers who kill babies
younger than 12 months can be charged with the somewhat archaic crime
of infanticide. The offence applies only to women who have suffered a
"disturbance of the mind" resulting from birth or lactation.
infanticide is both a "lesser" charge to murder, attracting a maximum
penalty of five years' jail and a defence to homicide. As a category
of crime, it was a "merciful" 19th-century response to women who
killed babies born out of wedlock as a means of escaping social
But the Victorian Law
Reform Commission will consider pushing for the crime's abolition, as
part of its review of defences to homicide. Chairwoman Professor
Marcia Neave said the commission intended to "provoke debate" about
whether infanticide should be abolished as a separate offence for
"On the one hand we
don't want to entrench the idea that women are victims of their
bodies, which is what the defence does," she said. "But on the other
hand there are women, who, because of their circumstances, like having
no support, kill young children, and maybe we should be merciful and
be treating people rather than locking them up."
University Associate Law Professor Jenny Morgan: "The law rests on the
notion that you've got to have a psychotic disturbance, but the data
suggests that these are not women who are seriously depressed but
perhaps in circumstances of stress because the child-rearing burden
overwhelmingly falls on them. We are squeezing women into a category
they can't fit into."
Folbigg is now in a
category of her own: Australia's most notorious woman serial killer.
In court this week, she sat impassive, listening as a psychiatrist
said she needed regular therapy for several years; therapy she would
not get in prison. Psychiatrist Bruce Westmore told the court she did
not have an anti-social personality disorder or psychotic illness, and
was not a risk to the public, but "she's a potential critical risk to
any children that she might have".
Folbigg recently wrote
to her step-sister from jail; the letter ended up in a newspaper. She
said she was outraged by the Crown's use of her diaries: "They are not
literal. Definitely not a window to my brain."
But it was critical
evidence at the trial and now provides some of the raw material for
her psychiatric assessments.
Some of the sentences
will long resonate with the public. While pregnant with her fourth
child, and after the deaths of her first three, Folbigg wrote:
"Obviously I'm my father's daughter. But I think losing my temper and
being frustrated and everything has passed. I now just let things
happen and go with the flow. An attitude I should of had with all my
children, if given the chance, I'll have it with the next one."
And, more chillingly,
"With Sarah, all I wanted was her to shut up. And one day, she did."
- with AAP
Julie Szego is
social affairs reporter and Stephen Cauchi is The Age
By Patrick Bellamy
Against All Odds
Kathleen Megan Marlbourough left school in 1982, she was 15. Like many
kids her age with a limited education, she worked at several
low-paying jobs before marrying at age 20. Her husband, Craig Folbigg,
was a steel worker. He was 25. They settled in Mayfield, a suburb of
Newcastle, Australia's sixth-largest city an hour's drive north of
a year, Kathleen was pregnant. She gave birth to their first child a
son, Caleb, in February 1989. At the time of his birth Caleb was
described as "full term and healthy."
days later Kathleen took him home. One morning while feeding him,
Kathleen noticed that Caleb was having difficulty breathing and took
him back to the hospital where doctors diagnosed him as having "a lazy
p.m. on February 19, 1989, Kathleen put Caleb in his crib to sleep. At
2:50 a.m. the next morning, Craig Folbigg was awoken by his wife's
screams. Running to the sunroom where the baby slept, Craig saw
Kathleen standing over the crib screaming, "My baby, something is
wrong with my baby."
Folbigg was dead at just 20 days old.
official cause of death was listed as Sudden Infant Death Syndrome
(SIDS) or "cot death."
months later, Kathleen was pregnant again. She gave birth to another
son, Patrick, in June 1990.
October 18, 1990, Kathleen put Patrick to bed. Craig looked in on him
at 10 p.m., and he appeared to be sleeping peacefully. At 3:30 a.m.
the next morning he was again awoken by Kathleen's screams.
According to the police statement, "He rushed into Patrick's room and
saw his wife standing over Patrick who was lying in his cot. Mr.
Folbigg picked up the baby and noted faint, labored breathing. He
commenced resuscitation until the ambulance arrived. Patrick regained
consciousness, but was (later) found to now have epilepsy and be
survived, but not for long.
morning of February 13, 1991, Kathleen called Craig at work, and,
according to the police statement, said: "It's happened again." Craig
left work and arrived home just as the ambulances came. Patrick was
taken to hospital, but was dead on arrival.
autopsy was conducted and the cause of death was an "acute
asphyxiating event" resulting from an epileptic fit.
Following Patrick's death, the Folbiggs moved to Thornton, a town
northwest of Newcastle.
later, Kathleen was pregnant again. In October 1992, a daughter Sarah
seemed well until 11 months later when Sarah caught a cold and was
"having trouble sleeping."
a.m. the next morning Sarah was dead.
time, according to the police report, Craig was awoken by Kathleen's
screams and saw her standing in the doorway of their bedroom. Sarah
was lying in bed, motionless.
death was officially attributed to SIDS.
Sarah's death they relocated to Singleton in Hunter Valley, a popular
wine producing area north of Newcastle.
couple spent two years there before Kathleen became pregnant for the
fourth time. Their second daughter, Laura, was born in August 1997.
was apparently healthy when Kathleen brought her home three days
later. Unlike her siblings, Laura's breathing and sleep patterns were
monitored closely for several weeks after her birth, just to be sure.
well until 19 months later when Laura caught a cold.
Kathleen gave her medication but at 12:05 p.m. on March 1, 1999, she
called an ambulance after Laura allegedly stopped breathing. According
to the official report, two ambulance officers arrived to find
Kathleen "performing CPR on her daughter on the breakfast bar." They
examined Laura and found that she "was not breathing and had no
before, an autopsy was conducted but, unlike the others, the coroner
considered Laura "too old" to have succumbed to SIDS, recorded her
cause of death as "undetermined," and ordered a police investigation.
Detective Sergeant Bernard Ryan was assigned to investigate Laura
Folbigg' s death, he could have looked at the case as just one more
tragic "cot death." But, following the coroner's finding, he decided
to consider all the possibilities.
Detective Ryan began his investigation routinely by interviewing
Kathleen and Craig Folbigg. When he learned that Laura was the fourth
child to have died in a similar fashion, however, his suspicions grew.
the case took an unexpected turn. Kathleen, who had left her husband
after Laura's death, had moved out without taking many of her
possessions. While Craig was cleaning up, he made an unpleasant
bedside drawer he found her diaries, whose contents, he later told the
court, made him "want to vomit." He took them to the police.
police that he had "the odd suspicion," but after finding the diaries
his suspicions became horribly real.
Detective Ryan learned that Kathleen had been keeping diaries most of
her life, but had thrown most of them away. The ones Craig found
obviously had been overlooked.
entries indicated a woman torn by mixed emotions. On one hand, she
wanted children to "prove she could do it, just like other women
could," and described the feeling of having a child growing inside her
and being impatient for the birth: "We're all waiting, little one,
when will you come?"
other hand, she wrote about the frustrations of being a mother,
including her inability to breast feed despite numerous, fruitless
attempts with each child.
also wrote about the resentment she felt after each birth when the
attention shifted away from her to the new baby, describing it as a
"feeling of abandonment" just like she had experienced as a child,
where she was "in a family but never felt like part of it."
wrote about her wild mood swings and how she watched fish swim in a
tank to try and calm herself: "I don't know, how do I conquer this?
Help is what I want."
writings also disclosed her innermost fears. She worried that Craig
would leave her. She felt threatened when he teased her about her
weight, and wrote about how she couldn't deal with his "perpetual
flirtations." At one point, when he rejected her advances because of
her pregnancy, she wrote, "Craig's roving eye will always be of
concern to me."
lose extra weight or he will be even less in love with me than he is
now. I know that physical appearance means everything to him," she
she was pregnant with Laura, she wrote: "On a good note, Craig said
last night he accepts that I'm not going to be skinny again. That's
wonderful, but I know deep in my heart he wants his skinny wife back."
after time she wrote about her weight and Craig's preoccupation with
it. "Got to start changing my life and becoming a hot-looking
energetic mother for my daughter and a sexy wife for my husband."
entry on November. 13, 1996, indicated the isolation she felt, even
from her own family. "Why is family so important to me?" she wrote. "I
now have the start of my very own, but it doesn't seem good enough. I
know Craig doesn't understand. He has the knowledge and stability and
love from siblings and parents, even if he chooses to ignore them. Me
I have no one but him. It seems to affect me so. Why should it matter?
she was home alone when a storm struck. She wrote how she was torn
between wanting Craig home to comfort her and then not wanting him
there because of how bad he makes her feel: "I actually relish in the
fact he has a weight problem now. All the years of him tormenting me
have come back to get him."
entry searched for identity: "Thirty years. The first five I don't
really remember, the rest, I choose not to remember. The last 10-11
have been filled with trauma, tragedy, happiness and mixed emotions of
all designs. If it wasn't for my baby coming soon, I'd sit and wonder
again what I was put on this earth for. What contribution have I made
to anyone's life?"
entries seem more sinister. She wrote how stress "made her do terrible
things" and spoke of "flashes of rage, resentment and hatred" toward
diaries also indicate that she had no control over her depression and
feelings of resentment. She wrote about wanting to wake her husband
and "ask for help."
entry marked "9:45, Wednesday, June 11, 1997" reads: "My brain has too
much happening, unstored and unrecalled memories just waiting. Heaven
help the day they surface and I recall. That will be the day to lock
me up and throw away the key. Something I'm sure will happen one day."
entries spoke specifically about her treatment of her children: "I
feel like the worst mother on this earth. Scared that she [Laura] will
leave me now. Like Sarah did. I knew I was short-tempered and cruel
sometimes to her and she left.
With a bit of help."
My Father's Daughter
December evening in 1969, Thomas John Britton confronted Kathleen Mary
Donavan outside her home in the Sydney suburb of Annandale and stabbed
her 24 times.
had been living in a de facto relationship, and had an 18-month-old
trial six months later, a woman who witnessed the murder gave evidence
against Britton. She testified that after brutally murdering Donavan,
Britton had knelt down and kissed her saying: "I'm sorry, darling. I
had to do it." Allegedly he then turned to the witness and said, "I
had to kill her because she'd kill my child."
was convicted of murder and sent to prison. The child was sent to a
church orphanage. Twelve years later, Britton was released and
deported to the United Kingdom.
little girl stayed in the orphanage until she was three. At that time
Kathleen Megan Marlbourough was adopted by a foster family who lived
in the Newcastle suburb of Kotara.
Kathleen was an adult before she met her half sisters and learned the
truth about her parents.
October 14, 1996, with three of her children already dead, Kathleen
made a disturbing diary entry that indicated how the tumultuous events
of her childhood had affected her: "Obviously I am my father's
It was to be her undoing.
Detective Ryan took two years to assemble a case that prosecutors
could try with a good chance of a conviction.
April 19, 2001, Kathleen Megan Folbigg was arrested at her home, taken
into custody, and charged with murdering her four children.
her bail hearing at Maitland Local Court, Police prosecutor Daniel
Maher told the court that the prosecution would show evidence from
Folbigg's own diaries, technical evidence from pathology experts, and
testimony from her estranged husband to prove that Folbigg had killed
each child's individual death had not raised much concern," Maher told
the court, "their collective deaths could only be attributed to
the circumstances surrounding the deaths were "not consistent with
sudden infant death syndrome or cot death." This included the fact
that "each child was found face up, they were still warm when found
and in two cases there were signs of life."
cited medical evidence from the United States, given by forensic
pathologist Dr. Janice Ophoven that showed "the chances of cot death
being responsible were a trillion to one."
that means is this is the only case that has occurred in the world.
It's just not likely."
told the court that Folbigg did not appear to grieve after each
Extensive tests had ruled out the possibility that the children
suffered fatal genetic or viral disorders, he told the court.
admitting that the diary entries were circumstantial, Maher argued
that they contributed to her "partial admission of guilt."
Doyle, Folbigg's defense council, told the court the deaths were a
"coincidence" adding, "Every one of the children was in fact ill in
their lifetime before their death."
the court that the medical experts the prosecution would call as
expert witnesses had "come to their conclusions after being supplied
with Mrs. Folbigg's diaries and other statements. So what we have got
at the end, wholly and solely, is coincidences," he said.
hearing submissions, Magistrate Richard Wakely refused bail and
ordered Folbigg be held in custody to await trial.
the two-month trial at Darlinghurst Supreme court in Sydney, the
prosecution led by Crown Prosecutor Mark Tedeschi, Q.C., presented
strong evidence that portrayed Folbigg as a woman "preoccupied with
her own life and looks, more interested in going to the gym and
nightclubs than looking after her own children."
Focusing on the same evidence presented at the bail hearing, Tedeschi
made the assertion that Folbigg "had a low stress threshold" and
killed her four children by smothering each of them over a 10-year
period because she could no longer deal with the day-to-day
responsibility of being a mother.
Tedeschi also criticized Professor Hilton, the pathologist who had
conducted Sarah's post mortem examination. "He had been wrong to
attribute Sarah's death to SIDS when he was aware of the family
history," the prosecutor said.
the court that because of Hilton's finding a full police investigation
or coronial inquiry was never called.
court also heard that the chances of Laura dying of SIDS were
extremely low because during her life she was "exhaustively
investigated, monitored and had lived beyond the SIDS danger period."
support this theory, the prosecution called Dr. Christopher Seeton,
the doctor in charge of the sleep investigation unit at Sydney's
Westmead Children's Hospital. Seeton told the court that Laura's risk
of dying from SIDS compared with other children was "infinitely
perhaps less than average, which is 1 in 1,000."
crown also asserted that Folbigg avoided investigation because none of
the children had shown signs of abuse so the matter was never reported
to the Department of Child Services for attention.
defense, led by lawyer Peter Zahra, refuted the claim and based their
argument on the fact that the children had all been sick prior to
strengthen this argument, Zahra called Professor Roger Byard, a
forensic pathologist who told the court that it was possible the
children died from suffocation and "medical problems relating to each
of the four children could explain their deaths in isolation."
Considered an expert on cot deaths, Byard added: "But the fact that
there are all the other deaths in the family makes me less certain ...
I say undetermined because of the circumstances."
in cross-examination whether it was possible the children had died
from deliberate suffocation, Byard answered: "It was a possibility,"
but declined to draw a stronger conclusion as he had not "examined the
death sites and the deceased children himself."
questioned regarding the deaths of Patrick from epilepsy and Sarah
from the heart disease, myocarditis, Professor Byard, said there was
"nothing in the pathology to show Patrick died of epilepsy," and added
that "only one child per year in Australia ever died of myocarditis."
Tedeschi shifted his attention to the incriminating diary entries
claiming that they showed Kathleen Folbigg as "deeply resentful of the
intrusion her children had on her own life, in particular on her
sleep, her ability to go to the gym, and her ability to socialize
including going out dancing."
attention to the fact that Folbigg was worried about her weight,
telling the court: "She was constantly preoccupied to an exaggerated
degree on her weight gain due, in part, to the fact she couldn't get
to the gym because of her children," he said.
called witnesses to attest to the fact that Folbigg showed "no obvious
reaction to the deaths of her four children."
hospital nurse described her as "detached," and Deborah Grace,
Folbigg's neighbor gave evidence that Folbigg was "straight-faced"
after Laura's death. "There were no tears in her eyes. There was
nothing," she told the court.
Folbigg's foster sister was also called and told the court that
Folbigg's demeanor "changed suddenly at Laura's funeral from crying to
being a totally different person. She was happy, laughing, enjoying a
the presentation of evidence Folbigg remained calm, almost cool but
during the fourth week of the trial she broke down as a video
recording of her 1999 interview with police was played for the court.
Crying uncontrollably, Folbigg attempted to leave the courtroom but
was restrained by court staff and conveyed to a nearby hospital where
she was sedated. The trial was delayed for several days while she
recovered. When it resumed, Craig Folbigg was called to give evidence
against his former wife.
testimony, he related the details of each baby's death and described
the "terrifying growl that Kathleen would produce when she got
frustrated with the children." He also told the court how Kathleen had
"pinned Laura to her high chair and attempted to force-feed her before
dumping her on the floor with the words, "Go to your fucking father."
Several hours later, Laura was dead.
months after the trial began and the evidence presented, the lawyers
for both sides completed their closing statements and the judge
directed the jury to retire to consider their verdict. They returned
in less than eight hours and told a hushed courtroom that they had
reached a verdict. They found Kathleen Megan Folbigg guilty of
murdering her four children.
verdicts were read, Folbigg broke down and cried and at one point
turned toward her sister in the public gallery before slumping forward
with her head in her hands.
taken to Mulawa Women's Detention center where she was placed in
protective isolation, as women in prison take a very dim view of women
who kill children, especially their own.
following August she was returned to court to hear Justice Graham Barr
officially sentence her to 40 years in prison with a non-parole period
of 30 years.
Interviewed outside the court, Craig Folbigg dissolved into tears
telling reporters, "My humble thanks go to 12 people whom I have never
formally met, who today share the honor of having helped set four
beautiful souls free. Free to rest in peace finally."
Following the sentencing, Kathleen Folbiggs' lawyers also made a brief
statement indicating that they would begin working on an appeal at the
Several weeks after the trial, Folbigg wrote a scathing
letter to the Sydney Morning Herald expressing her anger at the
decision. "It took four years to come up with a totally circumstantial
non-factual, hearsay case," she wrote.
"I now face being the most 'hated' woman around at the
moment and death threats are a real consideration."
On the subject of her diaries she wrote: "It's a sad
day when a mother can be put away for merely being a normal mother,
who wrote down her emotions, anxieties and frustrations in bloody
She also defended herself against claims her demeanor
was "aloof and unemotional."
"I didn't have the choice to be any other way," she
wrote. "I would not have been useful in my own defense. The day may
come where it is time to release it all, but till my battle is done in
clearing my name and reputation, that day is not yet."
She also lashed out at her former husband saying he had
"I have already suffered greatly at the hands of Craig
and his capability to deliver with his tongue and his quite amazing
ability to turn simple into exaggerated and extravagant tales."
Looking for Answers
Following the trial, Melbourne University Associate Professor Anne
Buist, an expert in post-birth psychiatric disorders, told reporters
that genetic predisposition, along with the loss of her mother at a
young age, could have led Kathleen Folbigg to murder her children. "We
know her father killed her mother, so we know there is potentially a
genetic issue there," she said.
Professor Buist also discussed the issue of neglect or emotional abuse
of young children. "A lot of studies have shown this can affect your
development very significantly," she said. "Both your brain
development, your actual structural biological development if it
starts early enough, as well as development at the level of not having
a good parenting model, self esteem."
Sydney forensic psychiatrist Rod Milton, who gave evidence at Ivan
Milat's "Backpacker Murder" trial also agrees that the genetic
implications of the case could not be rejected. "We can't discount
what the father said 'If I let her (mother) live she would have killed
mean, it might be true, and that raises the genetic issue . . . that
maybe there's some sort of genetic tendency. We're in the land of not
knowing, but to exclude it would be folly. The obvious genetic
implications can't be rejected."
think she must have lacked empathy for them, otherwise I don't see how
she could have killed them," he said.
asked if he thought Folbigg was mad or bad, he answered, "She
certainly wasn't mad. Whether she was bad is in the judgment of others
and not for me to say."
asked if it would be possible to rehabilitate her, he said, "The idea
of her being released while still of child-bearing age is one that
doesn't inspire much confidence."
According to the U.S. National Center for Health Statistics, infant
homicides are classified as "deaths purposefully inflicted by other
persons on children less than one year old."
from the same source also indicate that "homicide is the leading cause
of injury deaths among infants under one year of age in the United
States and is the 15th leading cause of infant mortality from all
Australia, the Australian Institute of Criminology reports similar
statistics: "More infants under the age of one year are murdered each
year in Australia than die in either motor traffic accidents,
accidental poisonings, falls or drowning. Between 1989 and 1993 an
average of 27 children aged under 15 were murdered each year in
Australia. Almost two thirds of these children were aged five or less.
Around half of all children killed by assault were under one year of
controversial article in Australia's New Weekly magazine, Judy
Wright, a criminologist at the Australia Institute of Public Safety in
Melbourne, revealed the findings of her own investigation which she
says shows that women are "getting away with murder."
1990 study revealed difficulties in prosecuting mothers that kill
their children because "a mother's role is revered in society. Her
study also indicates that when women are brought to trial for killing
their children they mostly rely on mental disorders as their defense,"
she said. " It's all due to beliefs that no sane woman could be
capable of wanting to kill her own child."
look for explanations to say those mothers who kill must be sick not
bad, just mad. Though we rather not think about it, women are capable
of killing for the same reasons as men anger, revenge and power," she
reach her findings, Wright examined hundreds of autopsy reports,
coroner's findings, Victorian Police homicide statistics and Supreme
Court files as she investigated the deaths of seventy-four children
between 1978 and 1990. She discovered that "more than half had been
murdered by their mothers, and in 11 cases women killed more than one
child. Children had been drowned, set alight, stabbed, suffocated and
one baby had even been thrown out of a window by it's mother who was
furious at her partner for paying attention to their dog."
were other deaths where mothers' sketchy explanations sounded
suspicious, and 16 where the cause was undetermined. Many weren't
charged with murder, though there were clearly elements of rational
planning in the offences. Those who were charged received lenient
sentences after arguing they were traumatized, and others were given
probation. Most were considered unwell and were treated accordingly."
result of her research, Wright also believes that many homicides have
been falsely attributed to SIDS.
tragic excuse because it really devalues the pain of parents who
genuinely lose children to SIDS she says."
Cala, the forensic pathologist who voiced his suspicions after
conducting an autopsy on Laura Folbigg agrees saying that homicide,
accidental death and illness should be fully explored before reaching
a diagnosis of SIDS.
believes that many pathologists give SIDS as the cause on death
certificates to "spare parents the trauma of a coronial inquest."
may have also been the case for Kathleen Folbigg had it not been for
her habit of writing down her innermost thoughts as without the
damning evidence they contained she may never have been convicted or
even brought to trial.
more disturbing is that at the time her case went to trial she was
considering getting married a second time.
She may have even
considered having more children.
Regina v Kathleen Megan Folbigg 
Between April and May 2003 Kathleen Folbigg [KF] stood
trial for having murdered son Caleb; for having maliciously inflicted
grievous bodily harm upon son Patrick; for having murdered Patrick;
for having murdered daughter Sarah and for having murdered daughter
Laura. The jury found her guilty as charged in each of Counts 2, 3, 4
and 5. Upon Count 1 the jury found her not guilty of murder but guilty
of manslaughter. 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. KF now appeals against all five of her
convictions and she applies for leave to appeal against her sentences.
Four grounds of appeal against the convictions were argued.
Case at Trial
Craig Folbigg [CF] in 1987. 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.
KF was the
primary carer for each child. CF, following the unexplained death of
Caleb and the subsequent birth of Patrick, left his employment and
spent a period of 3 months actively assisting her in Patrick’s
day-to-day care. Apart from that one interlude, CF was at all material
times in full-time employment, and KF was the parent responsible for
the day-to-day care of the children. It was particularly significant
to the Crown case that CF was a very heavy sleeper, and that it was KF
who attended to the needs of the children during the late night and
early morning hours.
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. On 20 February 1989 KF put Caleb to bed in a
bassinette in a room adjacent to the bedroom used by her andCF; and
they both of them went to bed. It appeared from a record kept by KF of
the pattern of Caleb’s sleeping and feeding that Caleb had had an
unsettled night, being awake from mid-night until 2am.
3am CF was awoken by what he described as “screamed words”. He
ran into the adjoining room and found KF standing at the end of the
bassinette. She was screaming: “My baby, there’s something wrong
with my baby”.
lying on his back in the bassinette wrapped in a rug. CF picked the
baby up and noted that he was warm to the touch but did not appear to
be breathing. He told KF to call an ambulance and attempted to perform
CPR on the baby. Ambulance officers arrived at 2.55am but Caleb was
then already dead.
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 between 2 months and 6 months dies suddenly and unexpectedly
and there is no reason to suspect that the death resulted from
unnatural causes. It was the Crown case that KF had smothered Caleb.
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, CF took 3 months off work in order to help in caring for the
after CF had resumed full-time employment he was awoken by the sound
of KF screaming. He ran into the bedroom and found KF standing at the
end of the cot. CF at once lifted Patrick out of the cot and performed
CPR, noting that Patrick was warm to the touch. Ambulance officers
attended at 4.41am and took Patrick to hospital. They noted that
Patrick was in respiratory distress and gave him oxygen.
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. KF gave Patrick’s treating doctor a history of having gone
into Patrick’s room at about 3am in order to see why he was coughing.
He seemed to be alright and she went back to bed. At about 4.30am 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.
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
aftermath of this KF showed signs of an inability to cope with the
situation. She displayed frequently anger and frustration. She began
to leave Patrick with CF’s sister, Carol Newitt, and one of their
neighbours, so that they could baby-sit and she could just get away
from things. At one stage during this period CF found a diary which KF
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
At about 10am
on 13 February 1991 CF received at work a telephone call from KF. She
screamed: “It’s happened again”. CF at once went home. He
arrived home at the same time as an ambulance which KF had called.
Mrs. Newitt was already there, having been called by KF. Mrs. Newitt
had found upon her arrival that Patrick was lying on his back in his
cot; but KF, who was crying, would not allow her to lift Patrick out
of the cot.
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. 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. The Crown case was, once again, that KF had smothered her baby.
KF appeared to
recover relatively quickly from Patrick’s death, just as she had done
after Caleb’s death. She and CF relocated to the Hunter Valley; and KF
began to press CF 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.
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. KF wanted to abandon the use of the blanket; and it was part
of the Crown case that this showed an understanding on KF’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.
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. KF showed marked signs of frustration, and it was left
to CF to calm the baby and to put her to bed in her cot at the end of
the matrimonial bed.
CF, he awoke briefly at about 1.10am 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. CF went back to sleep from which
he was aroused by the screaming of KF. He saw KF standing at the
bedroom door. Sarah was lying on her bed. She was floppy and warm but
not breathing. CF, and subsequently ambulance officers, performed CPR,
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.
The Crown case
was that KF 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 KF’s hand-writing was subsequently discovered on
a calendar. The note read: “Sarah left us at 1.00 a.m.”.
In the wake of
Sarah’s death KF seemed to become despondent and aimless. She would
not depart from her version of having found Sarah already dead. Her
relationship with CF deteriorated to the point of a number of
separations and reconciliations; but by early 1996 KF and her husband
were once again living together. KF pressed, once again, for another
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.
regularly returned false alarms. CF, suspicious that KF was not using
the monitor, confronted her on that topic, and was assured by KF that
she was watchful of Laura, and that the machine was driving her mad.
to be suspicious about KF’s correct using of the monitor; and over
time their relationship again deteriorated. KF came increasingly to
spend her days at a gymnasium and her nights with friends.
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 KF’s part, boiling over into physical violence towards
On 1 March,
the day of Laura’s death, KF took Laura to CF’s place of work after
her morning gym class. KF and Laura left for home at about 11.30am. At
about 12.14pm an ambulance arrived at the home in answer to a call.
The ambulance officers found KF 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.
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).
left her father distraught, and he and KF separated. While CF was
tidying up the home in connection with that separation he discovered
some diaries of KF. He read them; and what he read so disconcerted him
that he contacted the police. Police investigations subsequently
located a further diary in KF’s possession. The police investigations
culminated in the charging of KF.
In the case of Laura, as in the case of
her siblings, the Crown case was that KF had smothered the child.
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 KF should be
tried on one indictment and at one trial. There were unsuccessful
interlocutory attempts by KF to bar a joint trial.
case at trial depended heavily upon the contents of KF’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 KF that she appreciated that she was at risk of
causing, similarly, the death of Laura. Is this is a reasonable
reading of the material?
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
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?
KF’s Case at Trial
KF did not kill her children or harm Patrick. 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. KF in fact was a caring mother, who 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 KF’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. KF 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.
The trials of
KF miscarried as a result of evidence being led from 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
evidence 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.
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. The Crown sought to lead from Dr. Cala evidence to the
 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.
 That no
cause of Caleb’s death had been found.
 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.
 That it
was inappropriate for Professor Hilton to call Sarah’s death a SIDS
 That no
cause could be assigned for Laura’s death.
 That he
could not think of any single natural cause that would account for all
 That there
was in his view an unnatural cause which could account for all the
deaths, namely smothering.
that each of the four children died from an unexpected catastrophic
asphyxiation event of unknown origin.
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.
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
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
from Dr Berry was that:
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
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 were suffocated by the person
who found them lifeless, and I believe that it is probable that this
was the case.
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.
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.
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.
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.
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.
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.
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.”
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:
circumstances of that child’s death, including in Patrick’s case the
circumstances of his previous ALTE;
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;
The results of the various medical examinations, and post-mortem
examinations, carried out on that particular child;
The results of the various expert medical reviews of the deaths of the
four children; Things said, done, or recorded in her diary, by KF.
As to Caleb
Springthorpe was firm in the view that the “floppy larynx” had
nothing to do with Caleb’s death.
Byard, a specialist forensic pathologist called in the defence case,
gave as his diagnosis of Caleb’s death “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
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
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.
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.
Herdson’s opinion was that Patrick’s ALTE had arisen from a sudden
catastrophic asphyxiating event of unknown causes.
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.
Dr Khaira’s position was that he could
not assign a cause of death. There were no signs apparent to him, of
manual asphyxiation. Dr. Kan did not exclude a catastrophic
asphyxiating event. The competing opinions which were expressed by
Professors Herdson, Berry and Byard and by Dr. Beal.
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
Hilton performed the post-mortem examination of Sarah’s body.
Professor Byard - how many autopsies have you done? A. 600 paediatric
and about, I think, 1500 to 1600 adults. 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.”
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
As to Laura
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?
Q. And where it causes death is that a condition that is known as
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.”
“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 but I think it’s, in all likelihood, very unlikely.
Q. Is it a reasonable possibility in your opinion that she died from
A. I don’t believe it is.”
“Q. What do
you say as to whether or not the death of Laura 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 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
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.”
and at the end of his examination-in-chief, Dr. Cala gave this
relation to Laura, you have already told us that your diagnosis was
that her cause of death was undetermined?
Q. That it was consistent with smothering?
Q. Including deliberate smothering?
Q. And that she probably died from an acute catastrophic asphyxiating
event of unknown causes?
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?
Q. That they all died in circumstances consistent with deliberate
Q. And that they all possibly died from an acute and catastrophic
asphyxiating event of unknown causes?
Q. Is there any natural cause of death that could account for all
those four deaths and the ALTE?
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
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.”
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
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 was suffering
from around the time of her death.
Q. Did you write to a Detective Ryan on 19 June 2001?
Q. And did you answer a number of questions?
Q. And did you say this on the second page of that letter:
“If I examined the body of Laura in isolation, I might give the cause
of death as myocarditis.”
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
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.”
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:
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”
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
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
“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
Q. Looking at all the findings of pathology of Laura in isolation, is
there any finding or symptom which could amount to proof of
A. No, no, there is not.”
cross-examination Professor Byard gave this evidence:
“Q. Now, do
you agree that Laura’s myocarditis could be incidental to her death?
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?
Q. And do you agree that that is a distinct possibility in this case?
A. I think that is a possibility.”
after a body of evidence directed to a publication of Professor
“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
Q. Professor, you have given evidence that it is possible in this case
that all four of these children died from suffocation?
Q. And I take it that you also agree that it is possible that
Patrick’s ALTE was caused by suffocation?
Q. And by suffocation you would include deliberate suffocation by an
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.”
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
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.
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.
pertinent to add the following evidence taken from the
cross-examination of the leading defence expert, Professor Byard:
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 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
Q. In this case; each of these children died or had an ALTE suddently?
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?
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
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
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.”
There is to be
added to that material the evidence of the relevant contents of KF’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 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.
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.
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
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.
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.
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.
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.
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.
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.
1997: Bit nervous tonight. Laura $ I are by ourselves tonight.”
[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.”
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.”
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
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.”
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 KF.
only to consider the English decision in Cannings, upon which
the submissions made for KF place great store in the context of Ground
2. 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
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 -
, 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.”
sound warnings which are as appropriate to the present appellant’s
case as they were to the case of Mrs. Cannings.
is a case-specific decision, and it has features that are quite
different from the features of KF’s case.
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 KF’s trial.
The Court of
Appeal in Cannings received at the hearing of the appeal a body
of fresh scientific evidence. This fresh evidence is described 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.
The Court of
Appeal discusses 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
The Court of
Appeal emphasises 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
KF’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
differences between KF’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 KF’s convictions.
In the present
case there was, in my opinion, ample evidence at trial to justify
these findings, reached beyond reasonable doubt:
None of the
four deaths, or Patrick’s ALTE, was caused by an identified natural
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 KF’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
reasonably open, therefore, only the conclusion that somebody had
killed the children, and that smothering was the obvious method.
In that event,
the evidence pointed to nobody other than KF 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.
of KF miscarried as a result of the five charges in the indictment
being heard jointly.”
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.”
construction and application of section 101(2) were considered by a
specially convened five Judge Bench of this Court, in R v Ellis (2003)
58 NSWLR 700.
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’.” Those statements of principle have
been subsequently approved by the High Court of Australia: Ellis v The
Queen  HCA Trans. 488 (1 December 2004).
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.”
law apart, I do not agree with that reasoning.
It seems to me
that the four deaths and Patrick’s ALTE satisfy every relevant part 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. The admissibility, when
considering any one of those events, of evidence respecting all four
other events depended, therefore, upon the 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
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”; 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,
I can see no
persuasive argument that would have rendered the proposed coincidence
evidence inadmissible. There is, as it happens, authority which seems
to me to support the foregoing reasoning.
In my opinion
no one of the grounds of appeal has been made good; and I would,
therefore, dismiss the convictions appeal.
The other judges agreed with Sully J.