Mothers Who Murder (8 page)

Looking back at Kathleen’s troubled history, it is possible to see that she may have been a candidate for post-natal problems, as they can be brought on or made worse by psychological factors (the loss of her babies) and a difficult childhood. At Kathleen’s trial in 2003, the court had heard the extent of her childhood trauma. In 1984, when Kathleen was around seventeen, she learnt that her father had murdered her mother, which was described as having a profound effect on her. Kathleen
was assessed by three psychiatrists, one of whom, Dr Giuffrida, came to the conclusion after speaking to Kathleen, reading her diaries, and seeing the documentation from her early years, that something very disturbing happened to Kathleen at around eighteen months old. Dr Giuffrida noted that he thought Kathleen was neglected and subjected to emotional and physical abusive. He thought it likely that her father abused her mother and that Kathleen was exposed to that violence. Dr Giuffrida also thought Kathleen may have been victimised, possibly sexually, by her father. At three years old, Mrs Platt had stated that Kathleen was hyper-sexualised, a sign now recognised as potentially indicating the child has been sexually abused.

There seems to be clear evidence from her diaries that Kathleen was suffering psychologically, although she would probably be unaware of how seriously ill she was. Craig certainly didn’t know. This is not surprising, as our understanding of post-natal depression and psychosis was much less developed back in the early 2000s. Kathleen appears to have felt isolated, lacking friends and a support network. Numerous entries before Laura’s birth comment on how stressed Kathleen felt when she had children to care for previously, and how this time she planned to cope by asking for help:

We know that if post-natal psychosis is untreated, there is a risk to the life of both the mother and the baby if the
symptoms are severe enough; however, with appropriate help, women suffering from this condition recover fully. Kathleen was never treated and it is one suggestion that Kathleen had been suffering from post-natal depression that developed into post-natal psychosis over time. It’s also recognised that post-natal depression, if not treated before the next child is born, can get worse. So the cycle of the four births, the post-natal depression or psychosis, and the four deaths would have been a terrible psychological strain on an already troubled woman.

Although Kathleen was almost an adult before she learnt the truth about her parents, it clearly affected her on some level, as one of her entries said: ‘Obviously I am my father’s daughter’. Perhaps this statement indicates why she felt she didn’t bond with her first three children, as evidenced by this diary entry, made shortly after Laura’s birth:

Again, anyone who has researched post-natal depression and psychosis would not be shocked by the feelings Kathleen expressed, as they are common with these disorders. Either way, as Kathleen was primarily the children’s main carer, it is not at all surprising that their loss would cause her feelings of guilt and depression. Kathleen had kept diaries nearly all her life, most of which she had discarded. But why keep these particular diaries? Some people thought she had simply overlooked them, but that seems extremely unlikely when she must have gone through the bedside drawers when she moved out. Considering the
highly emotional nature of the content, it is hard to believe she simply ‘forgot’ about them. Most people keep diaries just for themselves and I believe that they were initially a source of outpouring for Kathleen, somewhere to express her deepest darkest thoughts. But I also think that she kept these specific diaries and left them behind because she wanted someone, probably Craig, to understand how she felt. There are a couple of entries that I think support my hypothesis, for example:

And this:

I think the other, more emotional entries are aimed at telling Craig how she feels, but these two demonstrate that she is conscious that some day someone may read them. This applies especially to the quote from mid-January 1998, as we know that by August 1998 Kathleen and Craig’s relationship had deteriorated to the point where she was telling him Laura was the only thing keeping them together.

THE TRIAL

In April 2001, Kathleen Folbigg was charged on five counts: four of murder (Caleb, Patrick, Sarah and Laura) as well as one count of maliciously inflicting grievous bodily harm with intent, against Patrick, four months before his death. She was indicted to stand trial on all five counts in the Supreme Court of New South Wales in Darlinghurst, beginning in early 2003 and lasting for nine weeks. The process of prosecuting Kathleen Folbigg was presided over by Justice Graham Barr,
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with the usual pre-trial discussion to determine what evidence would be heard by the jury. The Crown case was that Kathleen had intentionally suffocated or smothered each of the children.

Kathleen’s defence submitted a request that the counts relating to Caleb’s, Sarah’s and Laura’s alleged murders be heard individually and separately to the counts relating to Patrick’s death. The Crown had insisted that Kathleen Folbigg should be tried in one indictment and at one trial, as the prosecution’s case relied on the evidence of one charge to support the additional charges. Therefore they objected to the defence’s request, saying that they wanted all of the charges heard together. Although the prosecution accepted at the trial that the evidence on each count, in isolation, would not justify finding Kathleen guilty, the Crown prosecutor asserted that to look at each death separately would be misleading. Kathleen’s defence application was dismissed on 29 November 2002; she sought leave to appeal that decision but that request was denied.

A significant part of the prosecution’s case was Kathleen’s diaries, as well as evidence from Craig, as these were considered relevant to her attitude to and relationship with her children. The Crown also entered medical evidence from
a number of experts, who basically all said that none of the Folbigg children’s deaths should have been classified as SIDS, because of medical findings or the child’s age at death being outside the 0–6 months range, which Dr Ophoven, a forensic pathologist for the Crown, asserted was the range accepted by most forensic pathologists.
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According to Dr Ophoven, an infant’s sudden and unexpected death at an age over six months would be considered atypical, and by one year that cause of death would be excluded entirely.

Of all the comments summarised in the revised case documents
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there is a remark by Dr Alan Cala, another forensic pathologist, I find very concerning. Dr Cala conducted the post-mortem examination on Laura Folbigg, after which he made the following statement:

What I find most confronting about his statement is that in reality the medical evidence is inconclusive. Each child had certainly suffered medical problems in their lives prior to their deaths. This remark by Dr Cala appears to be based entirely in conjecture, and the potential influence of the diaries on his assessment cannot be overlooked. This comment by Dr Ophoven is, in my opinion, just as worrying:

As clearly stated in a 2011 paper,
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genetic risk factors have been shown to play a role in sudden unexpected infant death – either as a cause of death or as a predisposing factor for SIDS. It is most likely that a genetic predisposition to sudden infant death, comprising a polygenic inheritance pattern leading to sudden death, combines with other developmental risk factors, in addition to environmental risk factors – such as an infant suffering from the common cold or a baby sleeping on its stomach – to increase the likelihood a child will die of SIDS. In light of this, I find Dr Ophoven’s statement both concerning and confusing, as SIDS research has, for some time, indicated a number of potential causal factors. Also, since the early 2000s and the debacle over Sally Clark’s wrongful imprisonment, the forensic community has been well aware of the fallacy that there is no genetic predisposition at play. Apparently the Crown’s experts were not aware of this in 2003, even though Kathleen’s defence applied, unsuccessfully, to have the trial stayed until after Clark’s appeal was concluded, as they were aware that SIDS as a complex, multifaceted cause of unexplained death in infants was just beginning to be acknowledged. Although Justice Barr prevented the flawed statistical evidence that was entered at Folbigg’s pre-trial hearing from going forward to be heard by the jury, it seems that the Crown experts may have been working from this perspective.

The Crown’s case was presented by Prosecutor Mark Tedeschi, who painted Kathleen as a woman preoccupied with her looks, and more interested in going to the gym
and having nights out than caring for her own children. Focusing on largely the same evidence as that given at the bail hearing, Tedeschi claimed that Kathleen had murdered her four children over a ten-year period by smothering them. The motive – Kathleen’s low stress threshold. The prosecutor criticised Professor Hilton, the forensic pathologist who had performed Sarah’s post-mortem, saying that her death should not have been attributed to SIDS as he should have considered the family history. Tedeschi also told the jury that the chance of Laura dying of SIDS was extremely low as she was extensively monitored and was out of the ‘danger period’ – that is, the magic cut-off at six months of age.

The defence was led by Peter Zahra, who refuted the claim that Kathleen had murdered the children, reiterating the statement made during the bail hearing that the children had all been ill. Professor Roger Byard, a specialist forensic pathologist and consultant paediatric forensic pathologist and the only expert called by the defence, was called to give evidence on cot deaths. Byard told the court that it was possible the children died from suffocation as a complication of other medical problems, so each death could be explained in isolation as natural. Regardless of which side called him, in my opinion Professor Byard presented the most balanced summary. Professor Byard listed the causes of death, in his opinion, as:

1. Caleb: Undetermined, with laryngomalacia.
   
2. Patrick: Undetermined, cannot exclude epilepsy.
   
3. Sarah: Undetermined, with narrowing of the upper airway.
   
4. Laura: Undetermined, cannot exclude myocarditis.
   

In addition, Professor Byard went on to say:

On 21 May 2003, the jury found Kathleen guilty on four of the five counts; on the fifth count – that of murdering Caleb – she was found guilty of manslaughter.

THE APPEALS

Kathleen Folbigg appealed against her conviction and sentence. The first appeal against her conviction was made on the grounds that the jury’s verdicts were unreasonable.
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This appeal was decided on 17 February 2005
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and was unsuccessful. However, her appeal against her sentence did have a positive outcome in that it was reduced from thirty years non-parole to twenty-five years. Folbigg’s defence sought special leave to appeal the conviction decision, a request denied by the High Court of Australia. Folbigg remained convicted of multiple murders.

Even though the appeal was dismissed, just one day later, a solicitor employed by the Legal Aid Commission (who were tasked with representing Folbigg during the appeal process), raised concerns about an irregularity in the conduct of one or more members of the jury at
Kathleen’s original trial in 2003. The solicitor had been told by a jury member that one member of the jury had done some of their own investigation on the Internet during the course of the trial, researching Kathleen’s family and personal history from pre-trial reports, and another had talked to a friend who was a nurse, asking about the time it would take a child’s body to lose heat after death. In March 2005 this potential problem was raised with the Director of Public Prosecutions, who then referred the situation to the Office of the Sheriff who wrote to the court asking whether the court thought the proceedings should continue. The court then directed the Sheriff to investigate the irregularities and report back to the Supreme Court. The Sheriff’s report stated that there were two examples of ‘potential’ irregularity when looking at the jury’s conduct. The Supreme Court then told Folbigg’s solicitor to inform their client of the potential irregularities.