Kathleen Folbigg: Fresh evidence raises questions about conviction

Fresh genetic evidence which raises new questions about the conviction of Kathleen Folbigg for killing all four of her children has been unveiled and could be used as the basis to spark a review of Folbigg’s conviction. Before explaining the significance of this discovery, however, it is important to understand the central role that medical expert evidence played in the case.

Overview of the Folbigg Case

In 2003, a jury in the New South Wales Supreme Court tried Kathleen Folbigg for the deaths of her four children over a 10-year period:

  • Caleb, aged 19 days in 1989;
  • Patrick, aged 8 months in 1991;
  • Sarah, aged 10.5 months in 1993; and
  • Laura, aged 19 months in 1999.

She was charged with the murder of Patrick, Sarah and Laura and the manslaughter of Caleb.  With respect to Patrick, she was also charged with malicious infliction of grievous bodily harm with intent for an acute life-threatening event (ALTE).

At least eight medical experts were either examined or proffered written testimony in this case. Apart from medical evidence, the case against Folbigg relied on the fact that she found her children after death while their bodies were still warm.

Although there was no direct evidence that Folbigg had killed or harmed her children, and denied killing her children, a jury found her guilty on all five charges. Folbigg has always maintained her innocence throughout the pre-trial submissions, trial, and subsequent appeals.

Sentencing of Folbigg

In October 2003, Justice Barr of the New South Wales Supreme Court sentenced Folbigg to prison for 10 years for the manslaughter of Caleb; 18, 20, and 22 years, respectively, for the murders of Patrick, Sarah, and Laura; and 14 years for grievous bodily harm with intent to Patrick.

The sentences were partially cumulated, with a total imprisonment term of 40 years and a non-parole period of 30 years.

In February 2005, the NSW Court of Criminal Appeal dismissed an appeal against the convictions but reduced the length of the sentences to 30 years with a non-parole period of 25 years, on the basis that the original sentences were too severe and discouraged rehabilitation.

Medical Evidence in the Folbigg Case

At trial, it was contended by defence counsel that the medical evidence relating to the cause of the deaths of her four children was not conclusive and, at best, circumstantial. This is also in light of the fact that the deaths of Folbigg’s four children were originally labelled as ‘sudden infant death syndrome’.

At the time of the Folbigg’s hearing, bacterial infection was accepted, by superior courts, to quash murder convictions, as accepted in the case of Sally Clark.

It has been noted by Professor Blackwell that there was evidence of infections in two of the Folbigg children: Sarah and Laura, consistent with sudden unexplained death in infancy (SUDI).

The autopsy findings for Patrick, who died aged eight months, were also compatible with SUDI.

Fresh genetic evidence in the Folbigg Case

The scientists say they have examined the presence of a novel, never-before reported, a genetic mutation in Folbigg’s children Sarah and Laura that they inherited from her. The mutation, known as the CALM2 G114R, is a  variant that is “likely pathogenic” and “likely” caused the girls’ deaths.

While not the focus of their analysis, the team has reported a different genetic mutation found in Folbigg’s two boys, Patrick and Caleb, that could explain their deaths too. The team found that both Folbigg boys carry two mutated copies of a gene which, when defective, causes early-onset lethal epilepsy in mice. Of importance, Folbigg’s second child, Patrick, had epilepsy for four months before he died. However, the investigations into the boys’ variants are still in the preliminary stages, unlike the variant in Sarah and Laura, which has now been studied in detail.

The new scientific findings lend weight to the theory that, for all four of Folbigg’s children, the underlying causes of death may lie in rare and hitherto undiscovered genetic variants or mutations.

These new genetic findings have been peer-reviewed and published in top international cardiology journal, Europace by an international team of 27 scientists from Australia, Denmark, Italy, Canada, the United States and France.

Inquiry into the Folbigg Conviction

In 2019, Former Chief Judge of the NSW District Court Reginald Blanch, headed the inquiry into the conviction of Folbigg, with this fresh evidence building on the medical and scientific evidence which presented at the judicial inquiry. Yet the Justice Blanch last year concluded the evidence he had heard “reinforces her guilt”, stating that upon review he did not have “any reasonable doubt” as to Folbigg’s guilt.

The Report of the Inquiry into the convictions of Kathleen Folbigg and the relevant findings of Inquiry can be found here.

It has been reported that later this month, a date will be set for a new hearing to review the findings made by Justice Blanch. Folbigg’s legal team is arguing that in relation to the evidence presented at her trial and uncovered since then, there is reasonable cause for doubt that she smothered (and murdered) her four children.

If you or someone you know needs legal advice or representation for a criminal law matter, contact the team at Hamilton Janke Lawyers 24/7 by calling 4038 1666.

Photo: Mick Tsikas/AAP

Written By
James Janke
James Janke

James Janke is founding partner at Hamilton Janke Lawyers, and has more then decade of experience as a Criminal Defence Lawyer. Admitted to both the Supreme Court of New South Wales and High Court of Australia

Reviewed By

Get Legal Advice