KATHLEEN Folbigg glimpsed freedom on a drive to Cessnock jail a year ago – back to the region where her four babies died and she became one of the most hated women in Australia.
After 14 years in a Sydney jail following her conviction as their killer, Folbigg laughed, cried and was confronted by memories as she recognised familiar Hunter scenes.
“I recognise my home area from drives all those ages ago. Trembling. Missing so hard. So much heartache,” she wrote to friend and former Newcastle school classmate Tracy Chapman.
Next Monday she will sit in Cessnock jail and watch her story on television, more than three years after University of Newcastle Legal Centre handed a petition to the NSW Governor seeking a judicial review of her 2003 conviction.
Barrister Isabel Reed, one of a number of lawyers who have worked on the review, said the decision to raise Folbigg’s case on Australian Story was not made lightly. But it was time for NSW Attorney-General Mark Speakman to make a decision about a formal inquiry into the Folbigg case, Ms Reed said.
“I’ve been emailing and ringing that office every few weeks for the past two years and the response is always ‘We’re working on it’,” she said.
The lack of a response was “unacceptable, unreasonable and unconscionable”, she said, in a case where an internationally renowned expert says there is no evidence to conclude the babies were killed, and where other experts, including criminologist Xanthe Mallett, have found “significant problems” with the convictions.
Seven years after Australian academic Emma Cunliffe first raised serious doubts about the Folbigg conviction in her book Murder, Medicine and Motherhood, it was time to start speaking in public about whether a serious miscarriage of justice had occurred in the Hunter case that shocked the nation, Ms Reed said.
I’ve been emailing and ringing that office every few weeks for the past two years and the response is always ‘We’re working on it'.Barrister Isabel Reed.
“When Australian Story first started talking about doing this (about six months ago) I didn’t think for one second that we would still be waiting for a decision to be made when it aired,” she said.
“I don’t know whether public pressure is a thing that might help with a decision. At one point I was cagey about any media but it’s now been two years with the Attorney-General. I’m hoping he’ll watch and at least not be able to sleep comfortably on Monday night.
“We don’t want her released from prison. We just want an inquiry to look at the evidence and consider: has there been a miscarriage of justice here? I didn’t think when we started this that that was a big ask.”
Folbigg was sentenced to 40 years' jail in 2003 – later reduced on appeal to 30 years – for the manslaughter of her first child Caleb, 19 days old, and the murder of her three children Patrick, eight months, Sarah, 10 months, and Laura, 19 months, at Singleton between 1989 and 1999.
Each child died suddenly and unexpectedly because of “cessation of breathing”, although post-mortems failed to establish the reason. Diary entries in which Folbigg said she was “short tempered and cruel” to her babies – including one where she said her daughter Sarah “left. With a bit of help” – were damning.
They led one High Court judge to ask, “When you add the diary entries to those facts, why was it not open to the jury to conclude (Folbigg) had murdered the children?”, before rejecting her application to seek special leave to appeal her conviction.
But University of Newcastle criminologist Xanthe Mallett supported an expert whose submission to the Attorney-General is that the diary entries reflected the guilt of a woman struggling to cope with the deaths of her babies.
“The diary entries may have been damaging circumstantial evidence at trial, but that does not equal forensic or physical evidence that Folbigg harmed any of her children,” Dr Mallett said.
The petition for a judicial review includes the opinion of internationally respected Monash University forensic pathologist Professor Stephen Cordner that there is ‘‘no forensic pathology support for the contention that any or all of these children have been killed’’.
‘‘If the convictions in this case are to stand, I want to clearly state there is no pathological or medical basis for concluding homicide,’’ Professor Cordner said.
In a 120-page report he found much of the forensic pathology discussed at the trial was ‘‘misconceived’’ and the default diagnosis of murder was ‘‘wrong’’ because there was no forensic pathology support for the Crown case that Kathleen Folbigg smothered her four children.
Also concerning was a judge’s summing-up for the jury that there was “no authenticated record of three or more such deaths in a single family”, says the case for a judicial review.
The evidence was not only wrong, but would have left the jury discounting SIDS, and “leaving multiple homicides as the only explanation”, leading United Kingdom statistician and professor of mathematics Ray Hill said in a review of the Folbigg case that forms part of the Newcastle petition.
A large American study in 1987 included two families where four babies had died of SIDS and related conditions, and a Victorian judge dismissed murder charges against a woman alleged to have killed her four children as the case proceeded against Folbigg.
Newcastle woman Helen Cummings, who has supported Folbigg in jail since 2011, said the case challenged the legal system because “it would be a big admission if the decision was overturned because it was found she was wrongly convicted”.
“Lindy Chamberlain was only two years in jail. Kathleen has been in jail for 15 years. In her case a High Court judge said there was strong evidence the babies were smothered by a pillow but an expert has said there was no evidence,” Ms Cummings said.
“Sometimes the justice system can get it wrong. Kathleen is a Hunter Valley woman. We owe it to her to talk about this and seek this review.”
Ms Chapman speaks to Folbigg every day by phone in calls restricted to six minutes. She hopes a national focus on Australian Story will get people thinking and lead to a decision by Mr Speakman.
“The law says he doesn’t have to do anything but is that right? Is it fair when there are so many questions about how Kath was convicted?” she said.
In her letter to Ms Chapman, Folbigg said the drive to Cessnock jail where she could smell freedom ended when she “had to connect myself with the bleak dull future I now had”.
“It was time to remind myself I was a prisoner, not Kathleen driving in a car. One day I shall be that woman, someone, once again. Till then that trip sustains me, keeps me in touch with who I was and still can be,” Folbigg wrote.
“The future is never set and always, anything is possible. That’s worth a smile.”
Attorney-General Mark Speakman said the Folbigg petition “raises complex questions to which I am giving appropriate consideration and have taken extensive advice”.
“I hope to be in a position to make an announcement in the near future,” he said.