Mothers Who Murder (24 page)

After reviewing all of the medical evidence that the Crown wanted to put forward to trial, Coldrey turned his attention to issues of admissibility. This may sound technical, but actually this is one of the most important parts of a fair criminal justice process, as pre-trial is the time when the judge decides what evidence the Crown will be allowed to put before the jury for consideration when trying to prove their case beyond reasonable doubt. There are very stringent rules involved in this process, as it could be very damaging if the prosecution were allowed to put anything they felt might help their case before the jury, regardless of whether it was completely unsubstantiated. Admissibility of expert evidence is in essence broken down into two interconnected but separate issues: 1) is the person who is giving the evidence an expert in that field; and 2) is the evidence reliable? For each and every expert the judge has to examine both aspects and decide if their evidence can be included in the trial; and, if so, whether there are any restrictions that should be placed on what the expert can give evidence on. In simple terms, a forensic pathologist should not be asked about the defendant’s psychological condition. This is not to say the pathologist is not an expert in the medical sense, but that their testimony has to be limited to that which is covered by the expertise. This is complicated, and sometimes hard for the judge to assess, but critical for a fair trial.

That obviously raises issues with the evidence in this case, as the medical experts employed by the Crown entered their
conclusions as to Carol Matthey’s intentions. They said she intentionally killed her children, a conclusion they reached not as a result of the medical evidence – which is the only aspect on which they are qualified to comment – but because they were suspicious that all four died when she was the only adult in attendance. As protested by the defence, this also treads on the jury’s toes, as it is their job to determine if the Crown had proved to the required legal standard that Matthey deliberately suffocated her children. The Crown’s experts simply cannot say that she is guilty in their minds; this is extremely prejudicial against the accused.

COMPARATIVE CASES

There really was no alternative suspect to consider here, as the case against Carol Matthey was dropped due to lack of evidence. In the pre-trial medical hearing reviewing the admissibility and veracity of the medical evidence Justice Coldrey deemed much of it inadmissible. The case against Matthey was purely circumstantial, based simply on the number and pattern of the children’s deaths.

The defence drew some comparisons of its own, and relied on the judge’s decision in the British case of Angela Cannings (detailed in
Chapter 3
). This case, although occurring on the other side of the world, was a good proxy for the Matthey situation, as Cannings was accused of murdering two of her children, and the attempted murder of a third who survived a life-threatening episode, by intentional suffocation. As with Matthey, Cannings denied hurting any of her children and there was no physical evidence to support the hypothesis of murder. There were simply the multiple occurrences of deaths and her allegedly ‘suspicious behaviour’ – including her calling her
husband before the emergency services – which according to the prosecution formed part of an overall pattern. Cannings’ defence was simple: she had not harmed any of the children; they had simply, sadly, died natural and currently unexplainable deaths. The leading expert for the Crown, Sir Roy Meadow, concluded that three deaths led to an inevitable conclusion of murder. The defence experts disagreed and suggested SIDS as the cause, and submitted evidence which demonstrated that genetic predisposition to death from SIDS cannot be ignored in cases of this nature. In fact, both sides of Cannings’ family had a history of SIDS, so Cannings may have been carrying a predisposing gene or genes. In Cannings’ case, as there was no physical evidence to support the Crown’s assertion that her children had died from unnatural causes, other than medically unsubstantiated inferences that the prosecution’s expert witnesses were willing to draw, the three Supreme Court of Appeal judges concluded:

The case of Angela Cannings, though sad in itself as she was found guilty of heinous crimes before the truth
came out and she was released on appeal, is serving to help protect other parents as it is being used by the defence as a legal precedent in many cases of alleged filicide. The suggestion being made is that where there is a genuine conflict of opinion between experts, the prosecution should not be allowed to proceed, or the prosecution experts’ evidence should be deemed inadmissible, as the case against the accused is unsafe.

An earlier British case – that of Sally Clark – also requires mention here, as for me many of the miscarriages of justice that have occurred around the SIDS vs. murder issue started there. It is the ground zero for filicide cases as we know them today, if you like. Sally Clark was a solicitor who was successfully prosecuted in 1999 for the murder of her two sons, one eight weeks and the other eleven weeks old at the time of their deaths. The case is now regarded as an infamous miscarriage of justice. Clark was released following two appeals into her conviction, but only after she had served over three years in prison. As in the Matthey case, the Crown used a team of expert medical witnesses who arguably went beyond the scope of their expertise and drew inferences about the medical evidence from what they knew of the family history. One of these is the now discredited Sir Roy Meadow, a then eminent paediatrician. As part of the Crown case, the prosecutor highlighted a number of similarities in the death history of Clark’s sons, which the Crown alleged went far beyond coincidence. They were following the old adage of ‘lightning doesn’t strike twice’. Except we know that lightning does strike twice, if you’re unlucky enough. But losing children to SIDS isn’t just about bad luck, as unexplained deaths occur due to a complex mixture of
external, environmental stresses and the child’s underlying vulnerability and genetic predisposing factors, the full picture of which is far from clear right now. So the flaws in the Crown’s argument were apparent from the outset. Nevertheless, the prosecution went on to suggest that in such circumstances where there is no evidence in each case to support the hypothesis that the child died of natural causes, then the implication is that the death was the result of an act performed by the person in whose care the child was when they died. In the Clark case, for both boys, that was Sally.

When looking at Matthey’s situation it is also impossible to ignore the similarities with Kathleen Folbigg’s circumstances, and indeed Justice Coldrey noted that
R v. Folbigg
([2003] NSWSC 895) is the leading authority in terms of Australian legal precedent for cases of this nature. Folbigg’s case went to the Court of Appeal twice, both times unsuccessfully. Coldrey included a discussion of this case, as although a lot of the argument at Folbigg’s appeals focused on evidential legal requirements in New South Wales for coincidence and tendency evidence, Coldrey noted that some features of the Folbigg ruling were pertinent to the issues in Matthey’s case. Coldrey concluded that in his opinion the court in the Folbigg case took the view that Kathleen Folbigg’s diary entries provided the evidence that was missing in Matthey’s case, in that those entries were in themselves compelling material evidence that supported the Crown’s case. That material evidence, taken with the unexplained nature of the children’s deaths, was enough to support the jury’s conclusion that the children’s deaths were not unexplained but were deliberate acts of child maltreatment and murder perpetrated by their
mother. The appeal judges agreed. It is true that there are significant differences between the Folbigg and Matthey cases. Specifically, Folbigg’s psychological state cannot be ignored; she was, in my opinion, obviously suffering from severe post-natal depression or even psychosis. There is no evidence that Carol Matthey was psychologically unstable; she was only showing signs of understandable depression at the loss of her children. But surely Kathleen Folbigg’s psychological condition, and the subsequent emotional outpourings in her diary, can be viewed in the same light?

CASE CLOSED

At the conclusion of the pre-trial proceedings, Justice Coldrey had to assess each of the experts and their evidence in turn, to decide what would be heard by the jury. The Crown indicated at this time that Dr Beal’s psychological profiling of mothers who intentionally kill their children would not be given, nor would Dr Ophoven’s suspicions, including her notion of ‘homicidal assault’ or ‘homicidal suffocation’. In general, the prosecution recanted any intention to put forward evidence of suspicion or anything that went beyond expressions of medical opinion by their medical experts. The judge decided to follow the approach taken at Cannings’ appeal; namely, that the unusual occurrence of four unexplained and unexpected child deaths in one family cannot, of itself, provide a cause of death.

Justice Coldrey wouldn’t allow much of the remaining prosecution experts’ evidence in his court – and that which he would allow was very limited. In his conclusion, Coldrey stated that he had excluded a lot of the evidence and that which he had allowed was of arguably limited probative value and would probably be subject to subse
quent exclusionary rulings, were the Crown to persist with the case. In light of this, together with the limitations that the Crown imposed on their own medical experts’ evidence, Coldrey suggested that the Crown ‘reassesses the viability of this prosecution’. Damning indeed. Following Justice Coldrey’s pre-trial review of the evidence and the subsequent decision to disallow much of the Crown’s submissions, the acting Director of Public Prosecutions, Jeremy Rapke QC, made a public statement in which he said that there was no reasonable prospect of a conviction being recorded against Carol Matthey and the case was dropped.

Again I refer to one of Professor Cordner’s comments, included in the court documents, because it is particularly pertinent to the discussion of fairness. Cordner emphasised that:

Although Matthey was never found guilty of any wrongdoing and has never spent time in prison, I wanted to include this case because she was accused of murdering her children and the case got as far as a pre-trial hearing. In another state, the ending may have been different; some of the evidence that was excluded may have been accepted and Carol Matthey could have ended up in prison. Sally Clark, one of the British women wrongly imprisoned for filicide, never recovered when she was eventually released
on appeal. Her life was ruined and she died shortly after regaining her freedom. In Australia, is the chance of prosecution a postcode lottery of the most serious kind – with people’s lives on the line?

Every week in England and Wales one child is killed at the hands of another person, and one baby is killed every 20 days.
¹

Who couldn’t help but be shocked when they see statistics like that? The focus of this book is Australian women accused of murdering their children, but clearly, child abuse, neglect and murder is not just an Australian occurrence. Every year in the United Kingdom approximately eighty children die as a result of child maltreatment, including intentional deaths and negligence related incidents. Perhaps more shocking to most people is the fact that every ten days in England and Wales one child dies at the hands of their parent,
²
and in 67 per cent of all cases where a child has been killed by another person, the parent is the principal suspect.
³
UK data suggests that in 2012 (the most recent year for which information was available at the time of writing), only 9 per cent of all neonatal and infant deaths required a coroner’s inquest, because nearly all die in hospital. This is coupled with the fact that infant deaths can be certified as occurring due to sudden infant
death syndrome (SIDS) without being subject to inquest.
⁴

The murder statistics are just the ones we know about, and there is always the possibility that some of the deaths attributed to SIDS were in fact the result of intentional harm. The international death figures have remained relatively constant over the last thirty years, so there is a lot of casework to examine when reviewing how the British criminal justice system deals with cases of alleged filicide. Of those cases, a few crash into the collective social consciousness in such a way that they will never be forgotten. They scar us all.

That’s across the water in the United Kingdom, and you might wonder why this has relevance to Australian jurisprudence. Well, as the Australian legal system is based on the British common law system, when considering legal precedence in one common law country, the influence of other territories cannot be ignored. Cases that occur in England could have an effect in the US or Australia, especially when it comes to the admissibility of expert evidence – a complex and often contentious part of criminal trials. Cases of alleged filicide are high on the list of contentious cases for experts, as often the medical evidence is the
only
forensic evidence. When the experts for the Crown and defence don’t agree on the meaning of the autopsy results, this can make it very hard for the judge to decide in the pre-trial hearing what evidence should be heard by the jury, while serving justice for the dead child. As a result, I thought it would be useful to look at some of the other cases that have been heard in Britain and elsewhere. The World Health Organization (WHO) collects data on all deaths recorded in different countries, but drawing direct international comparisons can be
problematic, as inter national laws and practice on how violent and accidental deaths are investigated and registered vary significantly. Nonetheless, a comparison between the similar legal jurisdictions of the United Kingdom and Australia is possible.
⁵
This appraisal is useful in order to get a picture of how significant an international problem intentional child murder is and also to help us understand the social implications of not addressing this problem on a global scale.

SAD CASES FROM THE UNITED KINGDOM

During the 1990s and 2000s there were a number of key cases of filicide in the United Kingdom in which women were unjustly accused and some spent years in prison as a result of misleading evidence and witness prejudice. The results were not only devastating for the families of the women involved, but the entire British criminal justice system was rocked when the miscarriages of justice came to light. These instances have inevitably affected the way future cases have been heard. In the early 2000s when I first became aware of the scenarios (predominantly those of Clark and Cannings, and the prosecution evidence given by Meadow detailed in
Chapter 3
) I wondered if one of the outcomes would be that the Crown Prosecution Service – the British equivalent to the Department of Public Prosecution in Australia – would be reluctant to prosecute women whose children had died, even where there was overwhelming evidence of non-accidental injury as a cause or contributor of the child’s death. Now, over ten years later, it’s time for me to test the theory. It’s hard to tell from the official documents as there is no single source of data for the number of children who are killed by another person in the UK, so instead I turned to the court
cases, to see what types of scenarios are being prosecuted and have reached the public through the mass media since the infamous Clark/Meadow fiasco of the early 2000s.

MARIE-THERESE KOUAO AND CARL MANNING 2000, UNITED KINGDOM

The first British case is the terrible story of Victoria Climbié, made infamous in the United Kingdom due to the horrendous suffering the child endured at the hands of her guardians, before she died of her injuries in 2000. Her death led to the production of numerous reports, which detail her short life and the circumstances around her demise. The majority of the information for this section relies on these official reports, which are available online.
⁶
An informative article published in the
Daily Telegraph
⁷
fills in the blanks left following review of the official documents.

Victoria was born on 2 November 1991, near Abidjan on the Ivory Coast. According to her mother and father, Berthe Amoissi and Francis Climbié, Victoria was healthy and happy during her early childhood with them. She went to school when she was six years old and did well. When Victoria was seven, her father’s aunt (Victoria’s great-aunt) Marie-Therese Kouao visited the family. Kouao had been living in France for some time and told Berthe and Francis that she was willing to take one of their seven children back to France with her. This situation was not unusual in Victoria’s parents’ society,
⁸
where large families (Victoria was the fifth of seven siblings born to the couple) often meant that children were entrusted to relatives in other parts of the world, including Europe, to provide them with opportunities they would
not get in their home country, including improved education and employment prospects. Victoria was chosen and travelled to France with her great-aunt where they lived for five months.

To start with, Kouao kept her word to the child’s parents and Victoria went to school in Villepinte (a town located around 18 kilometres north-east of Paris, France), but her attendance soon dwindled and by December 1998 her absenteeism was causing her school concern. As with many neglected and abused children, when she was in school Victoria routinely fell asleep and staff noticed she seemed unwell. This pattern continued, and by February 1999 the school was so worried about the child’s welfare that it issued a child at risk emergency notification. Sometime in spring (March–May) 1999, Kouao withdrew Victoria from the school and took her to London. She’d told the school she was taking Victoria to England for treatment, but the available documents do not specify what her great-aunt said was wrong with her.

Both travelled on Kouao’s passport, with the relationship falsely described as mother and daughter and Victoria named ‘Anna’ on the official paperwork. Kouao had possibly chosen this pseudonym for Victoria because it was the name of another child she had intended to take with her from the Ivory Coast but when that hadn’t worked out she had selected Victoria instead. Throughout the rest of the time Victoria was with Kouao she was called Anna. They arrived in London on 24 April and the next day contacted Ealing
⁹
Homeless Person’s Unit, looking for accommodation, as well as Ealing Social Services. Kouao also made contact with a distant relative, Esther Ackah, who was living in Hanwell, a town in the London borough
of Ealing. Esther would be the first person in the UK to be concerned about Victoria’s wellbeing, as a result of which she telephoned social services anonymously.

Kouao managed to find a job, and by June 1999 Victoria was spending a lot of her time with Priscilla Cameron, a child-minder. She would arrive at Cameron’s at about 7 am and was sometimes not collected until 10 pm. Cameron noticed that the child was quiet when her great-aunt (or mother, as Cameron was led to believe) was around, and she didn’t like the way Kouao treated and talked to Victoria. In June of that year, Kouao met a man, Carl John Manning, who drove a London bus and the couple became romantically involved. A month later, Kouao and Victoria moved into Manning’s flat in Somerset Gardens, Tottenham, an area of North London in the borough of Haringey. It was possible that having another adult around might have helped protect Victoria, but this did not turn out to be the case with evidence suggesting that the abuse actually increased at this time. Both Ms Ackah and Mrs Cameron saw marks on Victoria, which became more noticeable after she moved in with Manning.

The domestic situation appears to have deteriorated quickly, as on 13 July (only shortly after the pair moved in with Manning) Kouao asked if Cameron would keep Victoria on a permanent basis as Manning didn’t want the child living with them. Cameron was not in a position to agree but did keep Victoria with her overnight on that occasion. Victoria had a lot of facial injuries, which her great-aunt claimed were self-inflicted. They were serious enough that the next day Cameron’s adult daughter decided to take the child to Accident and Emergency at Central Middlesex Hospital. On examination the doctor thought
the injuries could well be the result of non-accidental injury, as Kouao had claimed, but that it was not a case of self-harm. Victoria was admitted and the police were called. In addition to her physical traumas, Victoria was also suffering from scabies.
¹⁰
Kouao collected Victoria from hospital the next morning, and went to Cameron’s home to collect her things. Mrs Cameron was never asked to child-sit again, and in fact only saw Victoria once again from a distance with Kouao.

Victoria did not stay out of hospital long. Just over one week later, on 24 July 1999, she was admitted for facial burns, which Kouao claimed Victoria had caused herself by putting her face under a hot water tap while it was running. The burns were so severe that she stayed in the paediatric unit of North Middlesex Hospital for thirteen nights. The burns caused the hospital staff concerns and the senior house officer contacted Haringey Social Services, in addition to which a referral was made by a social worker from Enfield who was based at the hospital. On 28 July, while Victoria was still in hospital recovering from her burns, her case was allocated to Lisa Arthurworrey, a social worker. It was noted by hospital staff that when Kouao or Manning visited Victoria on the ward she seemed scared of them. Regardless, Arthurworrey and a police constable visited the girl in hospital after which they decided she could go home with Kouao. Victoria was discharged to her great-aunt’s care on 6 August. She would only survive for another seven months.

The guardians of abused and neglected children often keep them hidden away from the rest of the world as in that way they can keep the child’s injuries and fear a secret. This was the case for Victoria. During those last
months of her life, she was only seen four times by professionals (twice by her social worker) and on two occasions by Tottenham Social Services when Kouao took her into their offices claiming the child had been sexually abused by Manning. Even though the allegations of abuse were very serious, no one from Tottenham Child and Family Centre ever met Victoria – even though she was referred to them by Haringey Social Services on 5 August. There is some doubt over whether Manning sexually abused Victoria; the reason behind the accusation may have been that Kouao was aware (having been informed by Arthurworrey) that only children considered at risk of immediate harm would be provided housing, which is what Kouao wanted.

On the day of the first accusation, 1 November 1999, when Kouao came in to see Arthurworrey to discuss the allegation against Manning for sexually assaulting Victoria, she brought the child and Manning to the Tottenham office with her. When the social worker first saw them they were sitting as a group in the waiting area, and Kouao and Manning appeared to be having a normal conversation. This shocked the social worker, considering Kouao had been almost hysterical when she had called earlier that morning claiming sexual abuse had taken place. Manning was asked to leave, and Kouao was subsequently interviewed by Arthurworrey and Ms Robertson (another social worker) while Victoria played elsewhere. During the interview Kouao alleged that Manning had sexually abused Victoria on three separate occasions, the first dating back to around 20 July when Kouao claimed she was in hospital and therefore Manning was looking after Victoria. Kouao told Arthurworrey that she now had significant doubts over her ability to ‘protect’ Victoria.
They then interviewed Victoria alone, not to obtain a disclosure statement about what had allegedly happened to her but simply to get an idea of how life was for her at home. They had barely got past the greeting stage when the child launched straight into a graphic description of one of the alleged sexual assault incidents described by Kouao. The social workers stopped the interview when Victoria started mimicking Kouao’s gestures when she was describing what had allegedly happened. They made a note in the file that Victoria’s (or ‘Anna’s, as they called her) statement seemed rehearsed. Ms Robertson accepted under oath at Kouao and Manning’s trial that just because the disclosure appeared staged did not mean that Manning had not sexually assaulted Victoria. She also acknowledged that even if the story had been concocted to help them obtain housing, then this in itself was evidence of abuse that should have been investigated.

Manning was told he would be interviewed by the police, but this interview never happened. Nor did the social workers organise an immediate meeting to determine how they were going to manage the case; that did not take place until 5 November 1999.
¹¹
This was the second strategy meeting about Victoria’s case, the first having taken place in July. A comprehensive list of tasks was identified, but many of these replicated those identified four months earlier. This raises questions regarding how far the case had been progressed in the preceding months. Among the fifteen items on the ‘to do’ list were the following: proof should be obtained that Victoria was in fact Kouao’s daughter; a full assessment of child neglect issues should be undertaken; a police statement was required about the allegations of sexual assault; and a complete check of
Victoria’s medical status should be performed. Two police officers were also in attendance at this second meeting, PC Jones and PC Ricketts. No review date was set to check on progress from this meeting either, and no home visit took place to check on Victoria’s safety.