How science freed Kathleen Folbigg

Sam Hawley: Hi I’m Sam Hawley, coming to you from Gadigal land. This is ABC News Daily. She was once dubbed Australia’s worst serial killer after the deaths of her four children, but now Kathleen Folbigg is a free woman, after spending two decades in jail. In a miscarriage of justice case reminiscent of the wrongful conviction of Lindy Chamberlain, the NSW Attorney-General has pardoned the 55-year-old after new scientific evidence emerged. Today, ABC Background Briefing reporter Rachael Brown on Kathleen Folbigg’s freedom, and what it says about the judicial system.

Reporter: Today, 20 years after being found guilty of killing her four children, Kathleen Folbigg is pardoned and has been released from jail….

Sam Hawley: Rachael, this is an extraordinary decision by the New South Wales Attorney General, Michael Daley. He’s pardoned Kathleen Folbigg and she was released from jail immediately as soon as he made that decision.

Rachael Brown: Momentous decision.

Michael Daley, NSW Attorney-General: Good morning everybody…

Rachael Brown: I found out about the press conference half an hour before it happened. I texted Tracy Chapman, who is Kathleen Folbigg’s best friend. Tracy Chapman said that she didn’t even know about the press conference.

Michael Daley, NSW Attorney-General: This morning at 9:30, I met with the Governor. I recommended that the Governor should exercise the royal prerogative of mercy and grant Ms Folbigg an unconditional pardon. The governor agreed. Ms Folbigg has now been pardoned…

Sam Hawley: Tracy Chapman, she’s really important in this story, isn’t she? Because she is one of the people that fought for Kathleen over these 20 years she spent behind bars, she’s been trying to free her?

Rachael Brown: Yeah. Tracy Chapman is Kathleen’s oldest… One of Kathleen Folbigg’s, longest, oldest friends.

Tracy Chapman, Kathleen Folbigg’s friend: We’ve known each other since we were in primary school. I suppose we were around five and a half, maybe six. That’s kind of when I remember… And just going down to her place because she was across….

Rachael Brown: Tracy has been campaigning for decades for her friend, and may even know more about the machinations outside than Kathleen does on the inside, to be honest. But Tracy Chapman has been working with lawyers, with parliamentarians, just trying to educate the public about this case and what she sees as, you know, a massive miscarriage of justice.

Rachael Brown: Do you remember the guilty verdict? Are you in the room?

Tracy Chapman, Kathleen Folbigg’s friend: No, I wasn’t in the room, but I just…. I remember just crying. I couldn’t believe it.

Rachael Brown: There was not a flicker of doubt that she didn’t do it?

Tracy Chapman, Kathleen Folbigg’s friend: No. I just couldn’t imagine Kath doing what they said.

Sam Hawley: Okay. So, Rachael, I know you’ve done a lot of work reporting on Kathleen Folbigg’s case. So before we look further into why she’s been pardoned, why she’s walked out of jail yesterday, let’s look back at why she was jailed in the first place. And this relates, of course, to the death of four of her children.

Rachael Brown: That’s right, she was convicted in 2003. The first one died at 19 days, the eldest made it to 19 months, but there were four deaths within a decade. And it was put to the jury that, perhaps, the only way that that could have happened was at Kathleen’s own hand. Now, that was largely based on an old British tenet, ‘Meadow’s law’, that follows that one child death in a family is a tragedy, two is suspicious, and three or more must be murder unless proven otherwise. So, that was a tenet that pervaded the tone of that trial: that because the prosecution couldn’t come up with any other reason why these children died, it must have been murder, even though there was no evidence to suggest that… There was no signs of smothering, there was no sign of violence.

Sam Hawley: And during that trial, her diaries were a key part, weren’t they?

Rachael Brown: Correct. Her diaries were said to be, by the judge, virtual admissions of guilt.

Reporter: The Supreme Court heard today how a woman accused of smothering her four children kept a diary detailing her dark moods….

Rachael Brown: Now, she had passages in the diary like ‘I snapped my cog’, as in she got angry at one of the children, or ‘Sarah left with a bit of help’. Now, she has since said that that ‘bit of help’ was she meant God, because she was a spiritual woman, not that she did it.

Kathleen Folbigg: And I didn’t kill my children. And these diaries are a record of just how depressed and how much struggle I was having and all of the issues that go with that….

Rachael Brown: A judge decided, ‘I know how to interpret these diaries as, I think, a 77-year-old man’. He didn’t want expert evidence into those diaries. He said, ‘no, I know how to interpret them’. And he interpreted them as virtual admissions.

Sam Hawley: She went to trial, and she was convicted of the murder of three of the children, and the manslaughter of the fourth child, and sentenced to 25 years in jail. And since that initial trial, there were inquiries, weren’t there? There were appeals… She had tried, before, to be released?

Rachael Brown: She’s always maintained her innocence, and she did have appeals.

Lawyer: What are you responsible for? The death of Kyla?

Kathleen Folbigg: No.

Lawyer: Are you responsible for the death of Patrick?

Kathleen Folbigg: No. No.

Lawyer: Are you responsible for the death of Sarah?

Kathleen Folbigg: No.

Lawyer: Are you responsible for the death of Laura?

Kathleen Folbigg: No.

Rachael Brown: And weirdly, unfortunately for Kathleen, she had all these appeals. And so by the time new evidence came to light, new scientific evidence, which, you know, we can dig into, she’d already exhausted her appeals processes. And in Australia, there’s no real mechanism to reopen a case, even with new evidence, if you have already exhausted your appeals. So she was in a really tricky position.

Sam Hawley: Okay. So she’s failed, in these previous appeals. She’s bombed out in those, and she remains in jail. So what did spark the latest rethink? What, then, has happened since those appeals?

Rachael Brown: Science moves a lot faster than the law. So, a team of researchers were looking at a genetic mutation in the CALM2 gene. Now, that’s a gene that modulates the flow of protein to the heart, and can cause cardiac arrhythmias. Now, the scientists, the scientists looked into this, and they did give evidence at an earlier inquiry in 2019, but the research wasn’t finished yet. So the judge, as I understand it, didn’t take it with the weight that perhaps it probably should have been taken, back then. That research was then published, I think nine months later, in Europace. But that research found that this gene mutation could lead to cardiac arrhythmia.

Sam Hawley: Okay. So these scientists seem to suggest that Kathleen Folbigg might have passed on some sort of mutation to these children?

Rachael Brown: That’s correct. She has the mutation, and they thought that she might have passed it on to her two daughters. So, based on that science, when after it was published, a second inquiry was ordered, and that was headed up by Tom Bathurst.

Kathleen Folbigg supporters: What do we want justice for? Kathleen Folbigg! When do we want it? Now! What do we want? A fair inquiry. When do we want it? Now!

Rachael Brown: And this is interesting because it was, largely, at the push and behest of scientists. Now, scientists rarely agree on anything, but here we have a group of more than 150 scientists, including three Nobel laureates, who’ve signed a petition saying, ‘We think you need to look at this because this genetic mutation most likely killed Kathleen Folbigg’s two daughters. Therefore, the crown case, which followed that four deaths must have been four murders that collapses like Skittles’.

Tracy Chapman, Kathleen Folbigg’s friend: We have justice on our side. We have truth on our side. We have 155 of the world’s best science and medical experts also on our side.

Sam Hawley: Wow, okay. How amazing. Right. So there’s another inquiry, and it’s now considering this evidence from these scientists. So what’s that inquiry now found? Where are we up to now?

Rachael Brown: So the scientists told the inquiry that that gene mutation has a, I think, a 95% lethality. So if you’ve got the mutation, it will almost certainly kill you.

Sam Hawley: That latest investigation, Rach as well, the… The diaries, they came back up again, didn’t they?

Rachael Brown: They did. And this was, interestingly, the first time that experts were able to give their opinion to an inquiry, or to the court, as to what these scribblings in these diaries might have meant. And so initially, the jury was told, you know, they were virtual admissions of guilt, you know, and now this year, we have experts telling the court, well, this is just normal motherhood trauma. She’s lost four children. You know, this is the place where she tries to pour out some of that confusion, some of the trauma, and her saying, ‘I feel like I’ve been a bad mother’ is not saying, you know, is not a confession, that she murdered them, just that she felt on some level she must have done something wrong, for the world to have taken away her four children.

Kathleen Folbigg: I felt that I deserved whatever bad things were happening in my life because of how much of a failure….

Sam Hawley: Okay. So the New South Wales Attorney General, Michael Daley, he’s now granted Kathleen Folbigg a pardon, in one of the most significant cases since Lindy Chamberlain. What’s he said, Rach, what has he found?

Rachael Brown: Yeah. So he has been presented with a summary, I understand, of Tom Bathurst’s findings, and that summary says, I’ll just read it to you: ‘I’ve reached the view that there is reasonable doubt as to the guilt of Ms Folbigg for each of these offences’.

Michael Daley, NSW Attorney-General: And so considering Mr Bathurst’s conclusion that he is firmly of the view that there is reasonable doubt as to Ms Folbigg’s guilt, I consider that his reasons establish exceptional circumstances of the kind that weigh heavily in favour of the grant of a free pardon…

Rachael Brown: And Sam, this is truly… And I mean this… This is one of the cases, in my 21 years as a journalist, that has fascinated me. How did we get here? You know, and I think a lot of Australians will have to do a lot of soul searching about this. There are parallels with this case, and the Lindy Chamberlain case, that women, if they don’t grieve in a particular way, society assumes that they must be guilty. You know, and we saw it with Chamberlain, we’ve seen it with Folbigg. Chamberlain only had a few years in jail, Kathleen Folbigg: 20 years in jail, and she’s been saying the whole time that she didn’t do it, so it’ll be interesting to see the discussions that Australia will have to have, that the legal fraternity will have to have and what’s what options are available to her now. You know, she’s a middle aged woman, she doesn’t have a job, she’ll be living with her best friend. You know, this has hung over her for most of her life.

Sam Hawley: Yeah, and not to mention that she lost her four children. As you say, Lindy Chamberlain spent about three years in jail. Just to put that into perspective, she still has a battle to go if she wants to quash the conviction, doesn’t she? And then there’s that matter of compensation. So it’s certainly not over, is it, for Kathleen Folbigg?

Rachael Brown: No. Officially, it needs to go back to the Court of Appeal for any convictions to be quashed. That’s not something, as I understand, that the Attorney General can do. And then, it’ll be interesting to see what kinds of options are available to her for compensation. But as you said, she was a woman, she was a mother, who was convicted in 2003. And not only did she have to grieve for her four children in jail, but she also had the country and some of the press label her as ‘Australia’s worst serial killer’. I also think it’ll be hard coming out, you know, into society. And I know, I’ve spoken to Tracy Chapman about this, and how they manage that, you know, reintegration, and coming to terms with who she is now, as a person in the world.

Tracy Chapman, Kathleen Folbigg’s friend: I asked her what she wanted, and she wanted a T-Bone steak. So she wants roast vegetables. She wants to have a bath – she hasn’t had a bath for 20 years. And she really wants to wear a proper pair of pyjamas. So we just can’t wait to try and be normal.

Sam Hawley: Rachael Brown is a reporter with background briefing you can listen to her investigation into Kathleen Folbigg’s case on the ABC listen app from March the 20th last year. It’s now up to inquiry head, Tom Bathurst, to refer the case to the Court of Criminal Appeal to consider whether the convictions should be quashed. Kathleen Folbigg could then sue the state of NSW for compensation or seek a payment. This episode was produced by Veronica Apap, Flint Duxfield and Sam Dunn, who also did the mix. Supervising producer is Stephen Smiley. I’m Sam Hawley. To get in touch with the team, email us on [email protected]. Thanks for listening.