Request to the NSW State Coroner for a Coronial Inquest into the Deaths of Caleb, Patrick, Sarah and Laura Folbigg

Summary of the Case

 From 1989 to 1999, Kathleen Folbigg’s four children – Caleb, Patrick, Sarah and Laura – all died at different ages.[1] In 1989, Caleb died at 19 days old and it was recorded as Sudden Infant Death Syndrome (SIDS). Prior to his death he was diagnosed with laryngomalacia (otherwise known as a ‘floppy larynx’). In 1991, Patrick, at four months old, suffered what was diagnosed then as an ‘Apparent/Acute Life-Threatening Event’ (ALTE) which led to cortical blindness and left him having seizures during the four months until his death. His death was recorded as asphyxia due to airways obstruction caused by epileptic fits, encephalopathic disorder (underlying cause not determined on investigation). In 1993, Sarah died at 10 months old; her death was recorded as SIDS and occurred after seeing her general practitioner for a croupy cough and being started on antibiotics. In 1999, Laura died at 18 months old, days after being treated with paracetamol and pseudoephedrine for a respiratory infection. Her death was recorded as ‘undetermined’ and myocarditis (heart infection) was found at autopsy; the recording of ‘undetermined’ was heavily influenced by the deaths of her three siblings despite strong pathology evidence of myocarditis. The pathologist, Dr Allan Cala, who recorded the death as ‘undetermined’ has since given evidence that he cannot exclude myocarditis as the cause of Laura’s death.^[2]

Despite no signs of murder detected at autopsy, the prosecution claimed Ms Folbigg smothered them all. Selected entries from Ms Folbigg’s private diaries/journals were cited to establish her guilt. Ms Folbigg was convicted in 2003 of the manslaughter of Caleb, of inflicting grievous bodily harm on Patrick, and the murder of Patrick, Sarah and Laura.

At an inquiry in 2019 to review Ms Folbigg’s convictions, evidence was presented based on the genetic sequencing of DNA from Ms Folbigg and her children. Ms Folbigg and her two daughters had a genetic mutation/variant[3] affecting heart rhythm which is associated with sudden death. The Inquiry also heard from experts in other areas – forensic pathology, immunology and infection, neurology, and cardiology. The Commissioner, Reginald Blanch, concluded he had no reasonable doubt about Ms Folbigg’s convictions, based largely on selected entries from diaries/journals written by Ms Folbigg and the evidence she gave about them.

In November 2020, fresh genetic evidence became available through functional validation of the data presented to the 2019 Inquiry in relation to the mutation identified in Ms Folbigg and her two daughters. A study conducted by 27 scientists from several countries was published in the prestigious Oxford University journal, EP Europace. The study concluded that CALM2 G114R is pathogenic, and thus there is a >99% certainty^[4] that the mutation was responsible for the death of both Sarah and Laura.^[5]

On 3 March 2021, a petition was sent to the New South Wales (NSW) Governor and the Attorney General requesting that Ms Folbigg be pardoned based on the absence of any evidence of smothering and only evidence of natural causes of death for all children. This was strongly supported by the new studies that provided a genetic basis for the cause of death for Sarah and Laura. The NSW Attorney General has still not provided advice to the Governor about how the petition should be determined.

 Why a Coronial Inquest Should be Held

Although the prosecution’s case was that Ms Folbigg smothered each of her children, none of the forensic pathologists who conducted the autopsies or assessed the autopsy findings reported any evidence that indicated that the children had been smothered. The forensic and medical evidence underlying the diagnosis was overshadowed by ancillary matters. In particular, the discredited ‘Meadow’s Law’[6] influenced directly the case put forward by the prosecution.

In the case of Sarah and Laura, their diagnoses are further supported by new genetic analyses. When determining cause of death of the Folbigg children, the focus should be on the science and medicine – the forensic pathology and genetic evidence. Based on the current medical and scientific expert opinion, the diagnoses are:

1. Caleb: Sudden Infant Death Syndrome (Category II).
2. Patrick: Asphyxia due to airways obstruction caused by epileptic fits, encephalopathic disorder (underlying cause not determined on investigation).
3. Sarah: Sudden unexpected death caused by calmodulinopathy due to a CALM2 G114R mutation, with the lethal cardiac arrest potentially precipitated by her concurrent infection.
4. Laura: Sudden unexpected death caused by calmodulinopathy due to a CALM2 G114R mutation, with the lethal cardiac arrest likely precipitated by her myocarditis or exposure to pseudoephedrine (which can be a trigger of cardiac arrest for people with CALM variants).

We provide the evidence and precise citations for these diagnoses in Chapter IV Cause of Death below at pages 12-16.

Professor Stephen Cordner, Australia’s leading forensic pathologist, undertook a comprehensive review of the pathology of all four children. In 2015 he produced a 120-page report in which he concluded: ‘[u]ltimately, and simply, there is no forensic pathology support for the contention that any or all of these children have been killed, let alone smothered.’[7]

We place reliance on Professor Cordner’s 2015 report because it is the most comprehensive expert report prepared in this case; furthermore, it correctly anticipated the genetic developments. It provides detailed analyses of the cause of death for all four children and deals with general issues in forensic pathology to assist non-experts. Professor Cordner has been described by Coldrey J in R v Matthey as ‘[b]y any standards Professor Cordner is a world-class authority in his field.’[8] Professor Johan Duflou, Professor John Hilton and Professor Michael Pollanen, eminent forensic pathologists, agreed with the conclusions of Professor Cordner about the causes of death. They were in consensus that in all cases a conclusion of homicide is unsupported by forensic pathology.[9]

The new genetic studies published in November 2020 provided additional evidence for cause of death to support the report given by Professor Cordner in 2015. Prior to the new genetic analyses, Sarah’s cause of death was recorded by Professor Cordner as SIDS (Category II) and for Laura as myocarditis. With the discovery and functional validation of the CALM2 G114R mutation, Professor Cordner and Professor Duflou have provided updated reports indicating their diagnoses have changed to reflect the new genetic analyses (see Annexures 7 and 6, respectively). The fresh genetic evidence has not been considered by any court or inquiry to date; a coronial inquest would be the first forum to examine this new, important evidence.

A coronial fact-finding exercise to determine cause and manner of the Folbigg children’s deaths is required. The new compelling genetic evidence indicates the official causes of death for Sarah and Laura are now outdated, and an official finding is required so that the death certificates can properly reflect how they died. In the case of Caleb and Patrick, the 2019 Inquiry failed to appreciate the evidence given by three leading forensic pathologists all of whom concluded Caleb died from SIDS and Patrick from an epileptic/encephalopathic disorder.

It is also in the interest of the administration of justice that an inquest be held into the children’s deaths to determine objectively, based on scientific and medical data, how the children died. In Musumeci v Attorney General of NSW & Anor, Ipp JA with whom Beazley JA agreed, noted that an inquest was a hybrid process involving inquisitorial and adversarial elements, the exercise of judicial power and the administration of justice.^[10]

Kathleen Folbigg has been convicted of killing her four children. Because of this, the administration of justice element of the Coroner’s Court comes into stark relief. The common law and statutory duties of a coroner require a determination of cause of death in circumstances as specified in the Coroners Act 2009 (NSW). Most strikingly, Laura’s death has been officially recorded as ‘undetermined’ and remains so; however, assessment of the autopsy data by four leading forensic pathologists found the cause as myocarditis.[11]

The discovery of the CALM2 G114R mutation in Ms Folbigg and her two daughters has also provided data to support strongly a genetic cause of death for Sarah and Laura. The updated diagnoses are contrary to the official death certificate for Sarah. One does not exist for Laura.

The Law

Relevant Statute

The coronial system’s governing act is the Coroners Act 2009 (NSW) (the Act) which allows for an inquest be held into the deaths of the Folbigg children. A fact-finding effort specifically designed to identify cause and manner of the deaths of any of Kathleen Folbigg’s four children, let alone all of them, has not occurred to date.[12] Such an exercise is required considering the wealth of the fresh evidence now available. An inquest should focus on the scientific and medical evidence available, not the criminal responsibility of Ms Folbigg.

The objects of the Coroners Act 2009 (NSW) summarise what has been the objects under common law and statute. In Kathleen Folbigg’s case, the relevant objectives are: 3(c) ‘manner and cause of their deaths’ and (e) ‘to enable coroners to make recommendations’. The emphasis on manner and cause of death as primary functions of a coroner has not changed since the 13^th Century.[13]

Section 27(1)(d) of the Act provides the jurisdiction for an inquest to be held: ‘if it appears to the coroner concerned that the manner and cause of the person’s death have not been sufficiently disclosed’. The fresh evidence and the analysis of the existing evidence provided in these submissions offers necessary and sufficient reasons to enliven the coronial jurisdiction.

Section 28 of the Act allows the State Coroner or Minister to direct an inquest be held. In this case, because the Attorney General is responsible for the current petition requesting Ms Folbigg’s pardon (which could present a conflict), the State Coroner might want to direct an inquest be held and engage the service of a person from interstate.[14]

The deaths of Caleb, Patrick, Sarah and Laura Folbigg are all reportable deaths in that they died, according to those who prosecuted Ms Folbigg, ‘under suspicious or unusual circumstances’, and in the case of Laura with ‘a sudden death the cause of which is unknown’. The causes of death can be regarded as ‘unknown’ pursuant to the Act given that the official death certificates (except in the case of Laura who does not have one) are based on outdated expert opinion. Knowledge about the mechanisms and interactions between genetic and environmental factors precipitating sudden death in infancy has advanced considerably since 2003. This is exemplified by the discovery of CALM2 G114R and the determination that it is pathogenic. Deaths that need to be reported are found in section 6 of the Act with subsections (b) and (c) being applicable. The relevant section state:

6   Meaning of “reportable death”

(1)  For the purposes of this Act, a person’s death is a reportable death if the death occurs in any of the following circumstances—

(b)  the person died a sudden death the cause of which is unknown,

(c)  the person died under suspicious or unusual circumstances…

As a reportable death, the jurisdiction to inquire into the deaths is conferred by ss 17(a) and 21(1)(a) of the Act. All the deaths occurred in New South Wales; s 18(1)(a) provides the jurisdiction for the forum.

Section 21 of the Act provides further detail of jurisdiction that is applicable. Subsection 21(1)(a) allows for a reportable death and subsection (b) ‘a medical practitioner has not given (or there is reasonable cause to suspect that a medical practitioner has not given) a certificate as to the cause of death’. There can be no doubt that the deaths are reportable. Only in the case of Patrick Folbigg did a medical practitioner provide a death certificate. In the case of Sarah the death certificate can now be regarded as outdated given the new genetic analyses. In the case of Laura, a death certificate should be issued to reflect the most up to date expert opinion (the new genetic evidence). The death certificate in the case of Caleb records his death as Sudden Infant Death Syndrome, which should be updated to SIDS (Category II) to reflect the contemporary standards of SIDS diagnoses consistent with the evidence given by Professor Cordner.

We are asking for findings of natural causes of death for each child. The scientific and medical evidence supports coronial findings of natural causes of death for Caleb, Patrick, Sarah and Laura. If the Coroner is satisfied that the relevant written expert opinions as referred to in this submission are sufficient without oral elaboration, then an inquest hearing can be dispensed with. Section 25 of the Act states:

25   Coroner may dispense with inquest unless inquest required

(1)  A coroner who has jurisdiction to hold an inquest concerning the death or suspected death of a person may dispense with the inquest unless an inquest is required to be held under this Part.

(2)  Without limiting subsection (1), a coroner who has jurisdiction to hold an inquest concerning the death of a person may dispense with the inquest if the coroner is satisfied (after obtaining relevant advice from police officers and medical practitioners and consulting with a senior next of kin of the deceased person and any other person that the coroner considers appropriate) that—

(a)  the deceased person died of natural causes (whether or not the precise cause of death is known), and

(b)  a senior next of kin of the deceased person has indicated to the coroner that it is not the wish of the deceased person’s family that a post mortem examination be conducted on the deceased to determine the precise cause of the deceased’s death.

(3)  A coroner who has previously dispensed with the holding of an inquest concerning a death or suspected death may subsequently hold an inquest concerning the death or suspected death if the coroner is of the opinion that the discovery of new evidence or facts makes it necessary or desirable in the interests of justice to hold the inquest.

If there is any concern about making findings of natural causes of death based on the expert opinions provided through these submissions, then an inquest should be held to hear from the experts. We assume that the case will be referred to the Chief Forensic Pathologist or a senior forensic pathologist for review prior to determining if an inquest should be held.

An inquest is sought by the next-of-kin, Kathleen Folbigg. Section 26 requires, upon request, written reasons to be given for dispensing with an inquest. It states:

26   Reasons to be given for dispensing with inquest

(1)  A coroner who dispenses with an inquest must, on request by any of the following persons, give the person the coroner’s written reasons for dispensing with an inquest—

(a)  the State Coroner,

(b)  the Minister,

(c)  any person who, in the opinion of the coroner, has a sufficient interest of any kind in the circumstances of the death or suspected death.

(2)  A coroner who refuses a request to give reasons because the person making it does not, in the opinion of the coroner, have a sufficient interest of any kind in the circumstances of the death or suspected death, is required, at the written request of the person, to give the person the reasons for the refusal.

Public Health Necessity for an Inquest

One of the objects of the Act is to enable coroners to make recommendations that will improve public health or safety and help prevent future deaths of a similar kind: s 3(e). In this case, the latest findings about CALM2 mutations gives rise to, inter alia, the following issues: genetic testing when sudden unexplained deaths occur; genetic testing if an unexplained death has occurred in a family to help prevent future deaths; preventing sudden cardiac deaths by medical interventions to stop arrythmias and deaths in both parents and children who possess pathogenic mutations. Recommendations resulting from a coronial process could assist in publicising this important public health information.

The prevention of deaths is an increasingly important function of a coroner as noted in the case of People First of Ontario v Niagara (Regional Coroner).^[15] In this case the Court found that the public interest required a greater emphasis on the recommendation function. The Court stated:

“The public interest in Ontario inquests has become more and more important in recent years. The traditional investigative function of the inquest to determine how, where, and by what means the deceased came to her death, is no longer the predominant feature of every inquest.  That narrow investigative function, to lay out the essential facts surrounding an individual death, is still vital to the families of the deceased and those who are directly involved in the death.

A separate and wider function is becoming increasingly significant; the vindication of the public interest in the prevention of death by the public exposure of conditions that threaten life. The separate role of the jury in recommending systemic changes to prevent death has become more and more important. The social and preventative function of the inquest which focuses on the public interest has become, in some cases, just as important as the distinctly separate function of investigating the individual facts of individual deaths and the personal roles of individuals involved in the death.”^[16]

The Judicial Commission states that a factor to be taken into consideration when the Coroner orders an autopsy is the revealing of any genetic abnormality which might affect family members, and also to aid the medical profession in the diagnosis and treatment of patients in the future.[17] The need for an inquest into the Folbigg children’s deaths raises these same factors for consideration given the new classification of the CALM2 G114R as pathogenic.

Recommendations would also be useful to reinforce that police and pathologists must exhaust all reasonable avenues of inquiry before suspecting criminal responsibility in circumstances in which the cause of infant death is natural, albeit from unidentified causes. This will give the coronial jurisdiction more certainty, expend fewer public resources by dispensing with inquests and give parents of children who died suddenly more answers to the question, “why did my child die?”. Section 82(2)(a) of the Act allows the Coroner to make recommendations with respect to ‘public health’.[18]

Cause of Death

Forensic Pathology

 Caleb, Patrick and Sarah have a death certificate, but Laura does not:

Caleb Folbigg: The death certificate records the cause of death as “Sudden Infant Death Syndrome”. The certificate also shows that an inquest was dispensed with.[19]

Patrick Folbigg: The death certificate records the cause of death and duration of last illness as:

1. asphxia due to airway obstruction 1 hour
2. epileptic fits 4 months[20]

There is no indication if an inquest was dispensed with or not, but it is assumed it was.

Sarah Folbigg: The death certificate records the cause of death as “Sudden Infant Death Syndrome”. The certificate also shows that an inquest was dispensed with.[21]

Laura Folbigg:  Laura does not appear to have a death certificate. The pathologist recorded Laura’s death as ‘undetermined’ but found myocarditis present at autopsy. [22] 

A review of the pathology for all children by Professor Cordner in his 2015 report reinforces the existence of natural cause of death diagnoses; these are outlined below.

Caleb Gibson Folbigg

Born: 1 February 1989

Died: 20 February 1989

Age at death: 19 days old

Professor Cordner at pages 8-9 gives a summary of Caleb’s birth and life. Noteworthy is that Caleb was diagnosed with laryngomalacia (floppy larynx) prior to death. He had trouble breathing and swallowing simultaneously.

Summary of Professor Cordner’s opinion as to cause of death:

“Caleb’s death was diagnosed at the time as SIDS…According to approach of Krous et al (2004), the correct diagnosis for Caleb’s death would be: Sudden Infant Death Syndrome (Category ll). This is because of the age of death was being 19 days. Had Caleb died 2 days later, his death by contemporary standards would have been properly diagnosed as SIDS (Category IB) because of the incomplete level of investigation/documentation according to today’s standards.”[23]

Caleb’s Cause of Death: 

Sudden Infant Death Syndrome (Category II)

Patrick Allen Folbigg

Born: 3 June 1990

Died: 13 February 1991

Age at death: 8 months 10 days

Professor Cordner at pages 10-12 gives a summary of Patrick’s birth and life, including circumstances around the first seizure he had on 18 October 1990. Patrick suffered various illnesses during his life which included mild viral infections. After his first seizure on 18 October 1990, he suffered cortical blindness and continued to have seizures for the four months to his death.

Regarding Patrick’s death, Professor Cordner opined:

“It will be recalled that Patrick suffered from difficult to control seizures as a consequence of hypoxic ischaemic encephalopathy following his ALTE….The point to be made here is that Patrick’s death has been considered by all participants in the trial, it seems to me, as an event quite independent of the ALTE. However, once he had suffered the ALTE, is perfectly understandable as being from the delayed effects of the ALTE. This, it seems to me, is a non-controversial, ordinary thought.”[24]

Patrick’s Cause of Death:

Asphyxia due to airways obstruction caused by epileptic fits, encephalopathic disorder (underlying cause not determined on investigation)

Sarah Kathleen Folbigg

Born: 14 October 1992

Died: 30 August 1993

Age at death: 10 months 16 days

Professor Cordner at pages 14-17 gives a summary of Sarah’s birth and life. Sarah had a cold like illness prior to her death which was being treated by flucloxacillin (antibiotic) and four days prior to her death was seen for a croupy cough. It was reported by Craig Folbigg (father) that Sarah had a ‘cold like illness’ the day before she died.

The diagnosis of ‘Sudden Infant Death Syndrome’ given by Professor Hilton at autopsy has been supported by Professors Stephen Cordner, Johan Duflou and Michael Pollanen. Professor Cordner in his review gave the diagnosis as SIDS (Category II) based on updated standards of SIDS classifications since the time of autopsy.

Professor Cordner noted that ‘[s]ince the time of Sarah’s death, if the same situation was to present itself today, there would be thorough cardio-genetic investigations of possible inherited arrhythmias.’[25] Professor Cordner gave evidence at the 2019 Inquiry; however, he was not invited to attend when the genetic evidence was heard and discussed. He and the other pathologists were not invited to comment on the CALM2 G114R mutation identified in Sarah and Laura.

Professors Cordner and Duflou, however have, provided an updated report which diagnoses Sarah’s death as due to the CALM2 G114R mutation.[26]

Professor Cordner in a report dated 1 March 2022 said:

“In the ordinary course of events, in Sarah’s case, a history of a cold (or some form of a respiratory infection) around the time of her death, plus her sudden death would amount to a clinically relevant phenotype entitling the presumption, even the conclusion, that her death was the result of the pathogenic CALM2 mutation.”[27]

Sarah’s Cause of Death

Ia Sudden unexpected death in an infant with a novel functional calmodulin variant (G114R) and evidence of a respiratory infection

Laura Elizabeth Folbigg

Born: 7 August 1997

Died: 1 March 1999

Age at death: 18 months 22 days

Professor Cordner at pages 19-21 gives a summary of Laura’s birth and life. Laura had illness during her life including vomiting and diarrhoea, croup, and flu like symptoms. On the day Laura died she was suffering from a runny nose and congestion in her chest. Laura was given Demazin for the symptoms, with the last being taken approximately three days before her death. 

Professor Cordner concluded that Laura’s cause of death was myocarditis. Ten forensic pathology consultants at the Victorian Institute of Forensic Medicine who independently assessed photomicrographs of Laura’s heart agreed with this diagnosis.[28]

Professor Cordner said of Laura’s death:

“I believe the middle of the road conclusion in relation to Laura’s death is that considered alone, most forensic pathologists would be comfortable ascribing the death in similar circumstances to Laura’s as being due to myocarditis. This is indeed my own view.”[29]

He commented on the initial autopsy diagnosis of ‘undetermined’ by Dr Allan Cala:

“Thus, I do think Dr Cala could have justified the cause of death as he gave it: Undetermined. He was incorrect to argue that there were medical and pathology reasons for excluding myocarditis. He could simply have said that, as this was the fourth infant/childhood death in the family, he was worried about smothering (but see below) or other natural causes having played a part. He could have accepted that death might have been due to myocarditis – and he does accept this as a minor theoretical possibility – but the circumstantial information – four deaths in one family – concerned him. And simply left it at that. To the extent that he says that death could not be due to myocarditis, I disagree, and the evidence from the NCIS is against Dr Cala’s view. Laura could very well have died from myocarditis, and it is my view that a clear preponderance of forensic pathologists would so conclude if Laura’s was an isolated case.”[30]

Professors Johan Duflou, John Hilton and Michael Pollanen also agreed with the cause of death diagnosis of myocarditis.[31]

Professor Cordner gave evidence at the 2019 Inquiry; however, he was not invited to attend when the genetic evidence was heard and discussed. He and the other pathologists were not invited to comment on the CALM2 G114R mutation identified in Sarah and Laura.

Professors Cordner and Duflou have, however, provided an updated reports which diagnose Laura’s death as due to the CALM2 G114R mutation.[32]

Professor Cordner in a report dated 1 March 2022 said:

“In Laura’s case, a history of a viral illness around the time of death with proven myocarditis and the sudden death itself amount to a clinically relevant phenotype entitling the conclusion that her death was the result of, or significantly contributed to by, the pathogenic CALM2 mutation. An apparent witnessed history of previous sudden loss of consciousness (seen by someone outside the immediate family) only strengthens this conclusion. These are true statements on their own.”[33]

Laura’s Cause of Death

Ia Myocarditis in an 18 month old girl with a novel functional calmodulin variant (G114R)

Neurology

It was thought that Patrick suffered an ‘Apparent/Acute Life-Threatening Event’ (ALTE) at four months of age. Investigation of the ALTE yielded no conclusive answer about the origin. Some experts contended that the ALTE was isolated from his death from epilepsy four months later. Ms Folbigg was convicted of inflicting grievous bodily harm on Patrick for the ALTE; the prosecution alleged this was a failed smothering attempt.

Professor Monique Ryan, paediatric neurologist who provided evidence at the Inquiry in 2019, concluded she thought that Patrick’s episode on 18 October 1990 might have been an undiagnosed first epileptic seizure which had an underlying currently unknown genetic cause. She said in her report:

“I have reviewed the clinical file provided regarding this case. I am not convinced that Patrick’s clinical history is consistent with him having neurologic deficits resulting from a single hypoxic-ischaemic episode occurring on October 18, 1990.

On that date, when Patrick was first brought to the ED, he was pale and lethargic, but had some back arching. He was hypothermic, tachycardia and tachypnoeic. He was therefore very unwell at the time of presentation. On the same day, however, a head ultrasound and EEG were normal, and within a few hours of admission he was described in the nursing notes as feeding well. Had Patrick sustained a severe hypoxic-ischaemic insult on the morning on 18.10-1990- one sufficiently severe to cause the changes seen on his subsequent imaging and his post-mortem examination- it is difficult to imagine that he would have been able to feed well that day, and that his EEG could have been entirely normal.”[34]

Patrick was found to have suffered cortical blindness after the episode on 18 October 1990. Professor Ryan explains:

“The major finding was his visual loss. Isolated visual loss is not a common finding after hypoxic brain injury. On a physiotherapy review some time (but necessarily less than one month) later, Patrick’s vision was felt to be much better than had previously been the case. This suggests that he had a fluctuating picture- potentially more consistent with a metabolic or other encephalopathy- rather than a fixed neurologic deficit related to a static hypoxic-ischaemic injury sustained some months earlier.”

In respect of the underlying cause of the epilepsy, she said:

“There are a number of alternative diagnoses potentially causative of Patrick’s neurological condition which have not been excluded by his previous testing. These conditions include but are not limited to disorders of creatine metabolism, alternating hemiplegia of childhood, neurotransmitter disorders, and genetic channelopathies causing infantile encephalopathies and cardiac arrhythmias. All of these conditions can cause progressive neurologic deficit in infancy, can be associated with epilepsy or seizure-like episodes, and can result in the premature death of affected children. Further testing for these conditions would best be accomplished by whole genome sequencing.”[35]

In a report dated 1 March 2022, Professor Cordner said:

“In light of genetic mutations in cardiac genes in Sara and Laura, this opinion from Professor Ryan should give further pause in adopting the view that Patrick’s ALTE was a failed smothering attempt. Her interpretation of Patrick’s illness, that it shows signs of not being the hypoxic ischaemic cerebral event it would have been had smothering been the cause of his ALTE, means there is a basis for a clinical phenotype of a possible genetic variant yet to be identified.”[36]

The Coroner should regard the event Patrick suffered on 18 October 1990 as connected to his death from an encephalopathic disorder of a currently unknown geneticorigin. Genetic testing in future might identify a cause. It cannot be concluded it was a failed smothering attempt in the absence of any evidence to support this.

 Genetics

CALM2 G114R – Sarah and Laura

At the 2019 Inquiry, a cardiac mutation known as CALM2 G114R, was identified in Kathleen Folbigg and Sarah and Laura Folbigg (inherited from Kathleen Folbigg). The father, Craig Folbigg, declined to provide his DNA for the purpose of genetic investigation. No explanation for his refusal has been provided to the authors knowledge.

Professor Peter Schwartz, the world leading expert in the genetics of cardiac arrhythmia, advised the 2019 Inquiry that a nearly identical calmodulin mutation was responsible for the death/cardiac arrest of two children in the European Union (EU). This meant, at the time of the Inquiry, the Folbigg mutation was considered ‘likely pathogenic’ based on its almost identical nature with the EU family mutation. The Folbigg mutation has since been upgraded to ‘pathogenic’ through further research published in November 2020.[37] CALM2 G114R is now considered a lethal mutation and has been recorded on the international public archive of reports of the relationships among human variations and phenotypes, ClinVar.[38]

On one occasion, Laura fell unconscious when she was in the care of Ms Folbigg’s friend, Karren Hall.[39] In 2021, Professor Peter Schwartz provided a report in which he stated that this could have been ‘the first life-threatening event, 95% caused by a cardiac arrhythmia’.[40] This report has not formed part of any legal process to date.  Attached as Annexure 17 is the affidavit of Karren Hall dated 28 February 2019 describing the incident of Laura falling unconscious.

What is a CALM Mutation?

The CALM2 gene belongs to the family of calmodulin genes which encode for the protein calmodulin. Calmodulin controls the opening and closing of calcium channels in heart cells required for rhythmic heart beats. The calmodulin protein is encoded by three different genes, CALM1, CALM2 and CALM3 and humans have two copies of these three genes, one inherited from each parent. These genes encode the identical protein, calmodulin, which is somewhat unusual: rarely more than one gene encodes a specific protein. In such instances in which there are multiple copies of the same gene in the genome, the genetic changes affecting the different copy are considered identical. The calmodulin protein consists of 149 amino acids (‘amino acid residues’), these are the building blocks of a protein. They are labelled 1 to 149 according to the order in which they appear in the protein chain. The normal amino acid (or residue) at position 114 is a glycine (abbreviated as G or Gly). For Kathleen, Sarah and Laura, the amino acid Gly at position 114 is substituted with arginine (R, Arg).

CALM2 G114R in the Folbigg Family and CALM3 G114W in the EU Family

The amino acid glycine at position 114 in the calmodulin protein (G114) is mutated (i.e. changed) in the Folbigg family and in the EU family that had two cardiac events (death/cardiac arrest). Although the mutations occurred in different calmodulin genes (CALM2 and CALM3 respectively in each family), this difference is of no real consequence because the end-result is a mutation in the DNA affecting G114 of the calmodulin protein. These are mutations that change the amino acid in the same location (residue or amino acid position) of the protein. Glycine (G) is replaced with an arginine (R, Arg) by the Folbigg mutation; therefore, it is labelled G114R. In the EU family, the glycine at residue 114 is replaced by tryptophan (W, Try); therefore, it is labelled G114W.

When a newly described mutation leads to changes of the same residue as a previously ascertained pathogenic mutation, this is a piece of evidence arguing in favour of pathogenicity, as they often have the same functional consequence (American College Medical Genetics (ACMG) guidelines criterion “PM5”). ^[41] The “PM5” criterion is defined as ‘[n]ovel missense change at an amino acid residue where a different missense change determined to be pathogenic has been seen before’.

As at the time of the 2019 Inquiry, the Folbigg G114R mutation in calmodulin met the ACMG “PM5” criterion because it affects the same amino acid G114 as the identified G114W mutation in the EU family, and this mutation had previously been interpreted as pathogenic. Given they affect the same amino acid (G114) in calmodulin, they are very likely to have the same level of pathogenicity (disease-causing potential). 

This assumption made by the ACMG “PM5” criterion was later confirmed by the published experimental evidence in the 2020 Europace article. This article has been viewed about 15,500 times and downloaded 1,301 times – without any opposition to the content by the international scientific community.[42] Further to this, the evidence presented in this article related to the functional consequence of the CALM2 G114R variant being equivalent to that of known and well-established calmodulin pathogenic variants added another pathogenicity criterion, “PS3”. This criterion is defined as ‘[w]ell-established in vitro or in vivo functional studies supportive of a damaging effect on the gene or gene product’.[43]

In summary, the article confirming the pathogenicity and lethality of the EU G114W calmodulin mutation was published in early June 2019[44] and allowed the use of the “PM5” pathogenicity criterion in the interpretation of the Folbigg G114R calmodulin mutation. Accordingly, the Folbigg G114R calmodulin mutation was upgraded from a previously contested ‘variant of uncertain significance’ (Class 3) to a ‘likely pathogenic variant’ (Class 4). The article published in Europace in 2020 confirmed the functional consequence of G114R and allowed further reclassification of the variant to ‘pathogenic’ (Class 5).[45] The variant is now reported as pathogenic in ClinVar (ClinVar variation ID 1327459).[46]

Why Did the 2019 Inquiry Conclude the CALM2 G114R Mutation Did Not Kill Sarah and Laura?

Two ‘teams’ of geneticists gave evidence at the 2019 Inquiry: ‘Team Canberra’ comprised Professor Carola Vinuesa, Professor Matthew Cook and Dr Todor Arsov. Professor Vinuesa and Dr Arsov were engaged by Ms Folbigg’s representatives, whereas Professor Cook was initially engaged by the Crown Solicitor on behalf of the Inquiry, but it was decided by Counsel Assisting that he would contribute to the analysis as part of ‘Team Canberra’. ‘Team Sydney’ comprised Dr Allison Colley, Dr Michael Buckley and Professor Edwin Kirk engaged by the Inquiry, with input from paediatric cardiologist Professor Jonathan Skinner (also engaged by the Inquiry).

Team Sydney opined that the CALM2 G114R mutation was a ‘variant of uncertain significance’, yet Team Canberra opined it was ‘likely pathogenic’ (this was prior to the publication of the Europace article in November 2020). Team Sydney claimed that the CALM2 G114R mutation was not disease-causing, but Team Canberra said there was a very high probability it could be. This classification was based on the ACMG criteria for assessment of the pathogenicity of genetic variants, which Team Sydney insisted to be used as the framework for variant interpretation and classification by the Inquiry. The interpretation of the CALM2 G114R variant as ‘likely pathogenic’ was described by Professors Vinuesa, Cook, Schwartz, Toft Overgaard and Dr Arsov in their report to the 2019 Inquiry.^[47]

The only final point of disagreement between Teams Sydney and Canberra about the pathogenicity of the mutation, and the reason the Sydney Team resiled from the classification of ‘likely pathogenic’ was what they described as ‘exceptional clinical scenario’. They based their opinions on incorrect conclusions by Professor Skinner who stated that CALM mutations did not kill young children while asleep. Professor Skinner, who is not an expert in the molecular genetics of CALM mutations nor in calmodulinopathies as a clinical problem, was unaware of the data in the International Calmodulinpathy Registry (ICalmR) and his evidence suggests he failed to consult the Registry when he was alerted to its existence. Team Sydney and Commissioner Blanch were all presented with the facts from the ICalmR but failed to understand the scientific and clinical significance of the data. Commissioner Blanch stated he gave no weight to this crucial scientific evidence and preferred the evidence of the Sydney Team,[48] thus concluding that the Folbigg deaths were outliers.

The Sydney Team’s conclusion as to pathogenicity of CALM2 G114R is now irrelevant in light of the Europace article (see below). The Commissioner’s conclusion that no genetic mutation killed Sarah and Laura is, therefore, contrary to fact supported by irrefutable scientific evidence of the highest available standard.

Note: other incorrect assumptions found by the Commissioner of the 2019 Inquiry are addressed in a letter of Professor Peter Schwartz to the Australian Academy of Science dated 8 June 2021.[49]

Europace – November 2020

An article entitled ‘Infanticide vs. inherited cardiac arrhythmias’ was published in November 2020 by 27 authors, including the two leading world experts in the genetics of cardiac arrhythmias and calmodulinopathies, Professor Peter Schwartz and Professor Michael Toft Overgaard. They concluded:

“A novel functional calmodulin variant (G114R) predicted to cause idiopathic ventricular fibrillation, catecholaminergic polymorphic ventricular tachycardia, or mild long QT syndrome was present in two children. A fatal arrhythmic event may have been triggered by their intercurrent infections. Thus, calmodulinopathy emerges as a reasonable explanation for a natural cause of their deaths.”[50]

Whole exome sequencing (WES) and/or whole genome sequencing (WGS) of the Folbigg family’s DNA was performed and analysed. Both daughters were found to have a mutation in the CALM2 gene inherited from the mother. Both daughters died in the context of respiratory and/or heart infections, and they were receiving treatment for infection and/or fever. The mutation affected the 114^th residue (glycine, G) of calmodulin, causing the glycine to be substituted by an arginine (R) (G114R). The three calmodulin genes CALM1, CALM2 and CALM3 encode for an identical calmodulin protein and missense mutations in these genes are well-established causes of sudden unexpected death in childhood. A very similar mutation also affecting residue G114 had also been found (resulting in the substitution of Glycine, G with Tryptophan, W: G114W) in an EU family. The G114W mutation was also inherited by two siblings from a healthy mother. One child died suddenly and the sibling suffered from a cardiac arrest and the mutation had been therefore classified as pathogenic.

Results from functional validation of the G114R mutation established a loss of normal calmodulin function and this high-level scientific evidence confirmed the variant to be pathogenic i.e., arrhythmogenic and/or causative of cardiac arrhythmias and/or cardiac death.

The Functional Validation Process Used

Experts in Denmark, Canada and the United States investigated how the G114R mutated version of the calmodulin protein behaves in a range of well-established assays (tests) that several groups around the world have used before to determine how mutations in calmodulin genes affect the calmodulin protein and its ability to control the function of the cardiac calcium channels responsible for rhythmic contractions. It has been previously scientifically demonstrated that there is a very good correlation between the results of these assays and the type and clinical severity of the cardiac arrhythmias caused by calmodulin mutations. As a control, the researchers included the normal version of the calmodulin protein and two calmodulin mutations known to be pathogenic: G114W and N98S calmodulin variants. The G114W affects the same amino acid as the Folbigg mutation and was found in the EU family with history of two children dying or suffering a cardiac arrest from cardiac events. The N98S is a very well-studied calmodulin mutation found to cause several different types of cardiac arrhythmias (IVF, LQTS, CPVT and sudden unexpected death in childhood) in 10 unrelated individuals. This N98S mutation is associated with cardiac arrests and/or deaths in children as young as 2 years old, both while awake and during periods of sleep as seen in the Folbigg daughters. This is contrary to the ‘outlier’ opinion of Professor Skinner which was unfortunately adopted by Commissioner Blanch.

Experts in calmodulin protein chemistry engineered calmodulin proteins that were either intact or carried the mutations of interest.

These assays specifically examined:

1. The calcium-binding strength of calmodulin’s C domain. This domain binds to two calcium ions, and it contains the N98 and G114 amino acids. The G114R mutation reduced the calcium binding strength, with a similar magnitude of effect to that observed with the known arrhythmia-causing mutations G114W and N98S.
2. The binding of calmodulin to the two critical calcium channels (Cav1.2 and RyR2).  This is responsible for rhythmic cardiac contractility. It was monitored by fluorescence anisotropy of labelled peptides. Both G114R and G114W mutations impaired the binding of calmodulin to these two channels, to levels comparable to the pathogenic N98S mutation.
3. The timing of the cardiac voltage gated calcium channel (Cav1.2) opening and calmodulin-dependent closure.  This was determined by electrophysiological patch-clamp recordings. The timing is critical to set the correct channel activation threshold for normal heart rhythm. The different mutant proteins were introduced into a human cell line with the different channel receptor subunits. Both G114R and G114W mutations caused comparable delayed closure of calcium channels.
4. The activation and termination threshold of the calmodulin dependent opening and closing of the cardiac sarcoplasmic reticulum calcium release channel, commonly referred to as the ryanodine receptor (RyR2).  This was determined by a store-overload induced calcium release (SOICR) assay. RyR2 is a key component in cardiac excitation–contraction coupling responsible for the release of calcium from the sarcoplasmic reticulum which is critical for normal heart rhythm. Both G114R and G114W significantly altered the termination threshold and fractional calcium released during an open event, potentially leading to an arrhythmogenic enhanced intracellular calcium level.

These results established the Folbigg G114R mutation was arrhythmogenic, and it was as severe as the other two known pathogenic mutations tested in these assays (G114W and N98S). When a pathogenic mutation is identified in a child with a compatible diagnosis, i.e., in this case sudden unexpected death in childhood (SUDC), the mutated gene can be ascribed as the cause of death.

The Criteria Used to Classify Variants

The American College of Medical Genetics and Genomics and the Association for Molecular Pathology Criteria

The ACMG criteria[51] are used to classify genetic variants in terms of their potential to cause disease. The resulting classifications are:

1. Class 1.
2. Class 2. Likely benign.
3. Class 3. Uncertain significance.
4. Class 4. Likely pathogenic.
5. Class 5.

As the knowledge of human genetics continues to grow and as genomic sequencing allows for large scale sequencing of the human genome containing a total of about six billion “letters”, it is not possible to assess the clinical implication of every genetic variant (or mutation) with absolute certainty.[52] To help harmonise the assessment of the pathogenicity of the genetic variants, the ACMG criteria provide guidance and standards to assess the pathogenicity (the disease-causing potential) of genetic variants. Based on fulfilling certain criteria a genetic variant will be classified in one of 5 classes ranging from ‘Class 1’ (or ‘benign’: almost certainly not causing disease) to ‘Class 5’ (‘pathogenic’: almost certainly causing the disease). Each of the 5 classes is linked to a specific probability or certainty that the variant is benign or pathogenic. For example, when a genetic variant is interpreted as ‘pathogenic’ this means that the geneticists are more than 99% certain that the genetic variant is causing the disease in the tested patient, a ‘likely pathogenic’ variant means certainty of over 90%.[53] These two classes are considered clinically and used to make clinical decisions for the patient in terms of risk surveillance and management (for example recommending cancer risk-reducing strategies, or implantation of implantable cardioverters / defibrillators in patients with genetic arrhythmogenic cardiopathy). In addition, this level of certainty in the pathogenicity of the genetic mutation allows for reproductive genetic counselling in the family and discussions of  reproductive options such as gamete or embryo donation, preimplantation genetic diagnosis (PGD) associated with IVF procedures and/or prenatal diagnosis  associated with termination of pregnancy.[54] 

The ACMG criteria provide guidance to predict certainty that a mutation causes disease:

At the 2019 Inquiry, CALM2 G114R was classified as ‘likely pathogenic’ because it met the ACMG criteria:

1. PM2: Absent from controls.
2. PM5: Missense change at a residue previously reported as pathogenic.
3. PP2: Low rate of benign missense variation at amino acid 114 in CALM2 (dn/ds at this residue is 0.05, which is highly intolerant to missense substitution).
4. PP3: In silico prediction deleterious.
5. PP4: Phenotype specific for disease.

‘PM5’ refers to the known pathogenicity of the G114W calmodulin mutation. Because both mutations affect the same residue of the gene, applying the ACMG criteria leads to an upgrade of the classification of the former to ‘likely pathogenic’ (see above discussion).

The functional testing of CALM2 G114R reported in the Europace article upgraded the classification to ‘pathogenic’, meaning that there is >99% certainty that the mutation is causative of the clinical disease, in this case the cardiac death in the female Folbigg children. This reclassification is based on the CALM2 G114R genetic variant meeting an additional ACMG pathogenicity criterion ‘PS3’:

1. PS3: Well-established in vitro or in vivo functional studies supportive of a damaging effect on the gene or gene product.
2. PM2: Absent from controls.
3. PM5: Missense change at residue previously reported as pathogenic.
4. PP2: Low rate of benign missense variation.
5. PP3: In silico deleterious.
6. PP4: Phenotype specific for disease.

In summary, the CALM2 G114R mutation is now classified as ‘Class 5’ ‘pathogenic’ based on the ACMG criteria listed above.

What this also means is that Kathleen Folbigg who also possesses CALM2 G114R is at risk of cardiac events and possibly death. This is consistent with her medical history of fainting and nearly drowning in a swimming pool as a high school student, repeated fainting episodes while pregnant and repeated episodes of fainting in the shower accompanied with head injuries while showering in the prison (documented in her prison medical records). Accordingly, it would be advisable that Kathleen Folbigg undergoes clinical assessment by a cardiologist and clinical geneticist to discuss her options for managing the cardiac risk posed by the CALM2 G114R pathogenic mutation she carries. To clarify, in autosomal dominant conditions, such as calmodulinopathies and other genetic cardiac conditions, it is almost a rule that the condition may manifest in very different ways in different family members who carry the same pathogenic mutation; this is known in clinical genetics as ‘variable clinical expressivity’. Sometimes the condition may not manifest at all in a family member who carries the same pathogenic mutation, a phenomenon known in clinical genetics as ‘reduced penetrance’.

Consequently, it is appropriate that the cause of death for Sarah and Laura be classified as:

Sarah

Sudden unexpected death caused by calmodulinopathy due to a CALM2 G114R mutation, with the lethal cardiac arrest potentially precipitated by her concurrent infection.

 Laura

Sudden unexpected death caused by calmodulinopathy due to a CALM2 G114R mutation, with the lethal cardiac arrest likely precipitated by her myocarditis or exposure to pseudoephedrine (which can be a trigger of cardiac arrest for people with CALM variants).

 Summary of Causes of Death

The Process of Determining a Cause of Death

When determining cause of death, it is appropriate to exclude other causes before reaching a conclusion. If cause of death has been satisfactorily identified, then other causes have been excluded; if they have not been excluded then the death should be recorded as undetermined.

Laura’s death was the only one recorded as undetermined. It was subsequently changed to myocarditis by three eminent forensic pathologists in consensus at the 2019 Inquiry. Her cause of death has changed again since the Inquiry to: sudden unexpected death caused by calmodulinopathy due to a CALM2 G114R mutation, with the lethal cardiac arrest likely precipitated by her myocarditis or exposure to pseudoephedrine. This cause has been confirmed by forensic pathologists, scientists and medical practitioners. Having finally come to an acceptable cause of death by those who have the responsibility to determine such matters, smothering has been excluded and goes into the realm where it always belonged, that of suspicion and speculation.

The same applies in Sarah Folbigg’s case where the cause of death has now been determined as: sudden unexpected death caused by calmodulinopathy due to a CALM2 G114R mutation, with the lethal cardiac arrest likely precipitated by her concurrent infection.

Caleb’s current diagnoses is SIDS (Category II) which is a diagnosis of unidentified natural causes. Patrick’s diagnosis is related to epilepsy, an identifiable and diagnosable cause.

Exclusion by Reasoning

 Assuming smothering is relevant and going to a fact in issue in the Kathleen Folbigg trial, the first thing that should be noted is that all other causes of death that could not be excluded are also equally relevant. A short but by my no means a comprehensive list includes:

1. Vagal Inhibition or Reflex Cardiac Arrest.
2. Myocarditis in the case of Laura.
3. Epilepsy in the case of Patrick
4. Genetic variants in all cases.

The first was not promoted by the prosecution as a cause of death. The reason for leaving it out remains unexplained. It may simply have been that too many possibilities would weaken their case. Items 2 and 3 above were raised primarily by the defence but were obviously dismissed by the jury because of the influence of Meadow’s Law.^[55] Item 4 was raised but obviously dismissed by the jury, but it is now overwhelmingly relevant, probative and confirms causes of death in the two girls.

The issue though is not simply whether something is relevant; most things in a criminal trial are relevant, including the name of the person being accused. The issue forced on Kathleen Folbigg now is whether smothering as a cause of death can be excluded. In her case, the suggestion of smothering simply has no probative value and can and should have been excluded because there is no evidence of smothering and there is evidence of natural causes of death. To do otherwise allows unfair prejudice.^[56] The evidence of possibilities should never have been allowed because it was misleading, confusing, unfairly prejudicial and a waste of time.^[57] If the evidence had been excluded the prosecution could not have been able to advance smothering as a cause.

This is not a case in which there is no body and, without a confession, the cause cannot be known. It is not a case in which the body is so degraded that the cause of death cannot be identified. In each case post-mortems were conducted and no evidence of smothering found; Dr Allan Cala even carefully dissected Laura’s face looking for signs of smothering, yet found nothing. Now there is strong evidence of natural causes of death for Caleb, Patrick, Sarah and Laura; therefore, smothering can be excluded in all cases.

Applying inferential reasoning, the absence of evidence properly allows the inference to be drawn that smothering could be excluded; this is especially true for circumstances in which such evidence would be expected to be found, as in the case of Laura Folbigg who was 18 months old.

Based on the scientific and medical evidence now available, the following are the appropriate cause of death diagnoses for the Folbigg children:

1. Caleb: Sudden Infant Death Syndrome (Category II).
2.  Patrick: Asphyxia due to airways obstruction caused by epileptic fits, encephalopathic disorder (underlying cause not determined on investigation).
3.  Sarah: Sudden unexpected death caused by calmodulinopathy due to a CALM2 G114R mutation, with the lethal cardiac arrest potentially precipitated by her concurrent infection.
4.  Laura: Sudden unexpected death caused by calmodulinopathy due to a CALM2 G114R mutation, with the lethal cardiac arrest likely precipitated by her myocarditis or exposure to pseudoephedrine (which can be a trigger of cardiac arrest for people with CALM variants).

We submit the Coroner needs to focus primarily on the medical and scientific information for all four children. Based on the verifiable medical and scientific facts given by leading experts, each child died of natural causes and such a finding should be made by the Coroner.

Other Matters

Manner of Death

 Professor Cordner, in a report dated 1 March 2022, makes an important observation:

“The only clues about the smotherings provided by the prosecution go to the intensity with which they were allegedly carried out. The prosecutor described them as follows:

1. 1. the mother “intended to kill them during a flash of anger, resentment and hatred against her children, or alternatively…. she deliberately sought to render them unconscious in an attempt to put them to sleep”
   2. Of Sarah’s death, the Prosecutor said in his final address: (In relation to the diary entry about Sarah) “that’s only consistent in our submission with one interpretation and that is that night she, yet again, lost her cool. She lost her cool with Sarah because she wanted Sarah to shut up and she wouldn’t, so she made sure she shut up by smothering her”
   3. And also, in relation to all the deaths, towards the end of his final address, a description evoking violence: “What we suggest is that she became enraged, she became consumed with stress, hatred, resentment, anger and suddenly smothered her children to death” ¹²

These do not sound like gentle episodes of putting a pillow over the face of the baby to ease its passing. They sound more like hateful, angry – even out of control or violent – smotherings. It might be smothering by aggressively or forcefully pushing the palm, or part of it (eg the heel of the hand), over the mouth and nose, or using the fingers and thumb(s) to forcefully pinch the lips and nostrils together, or a combination of both those means; or vigorously using a pillow or other thing such as a toy or a cloth, with compressive pressure over the face. These actions, taken while enraged, could be expected to leave some injuries injuries when replicated five times in four children, let alone the general signs of mechanical obstruction of the external airways.[58]

And with the possible exception of Caleb, these actions would have taken place against resistance from the babies which may have been quite significant, and certainly so in the case of Laura. Coping with such resistance (necessary to achieve the alleged desired outcome) might have involved using forearms and/or elbows over the chest/shoulders/trunk/arms to stop the babies/toddlers squirming, possibly resulting in small injuries in those areas too.

In contrast to the repeated, non-specific assertion that smothering may leave no signs, as far as I can see, on no occasion during the trial was any doctor asked whether the smotherings as actually envisaged by the prosecution, undertaken in rage and hatred and as such probably involving some degree of force and overcoming of resistance of the children, might be expected to leave any signs. Likewise at the Inquiry, no questions were asked in relation to this either.

In my original report, I discussed the evidence that was available in 2014 about signs left by smothering¹³. Smothering can, perhaps often, leave signs. It must be regarded as remarkable that, in the light of the description of the intensity with which the four alleged smotherings occurred, that no signs were seen. In Laura’s case at least, because of her age and the fact that she had teeth, meaning that pressure against the mouth with force would be expected to leave signs on the delicate inside of her mouth, and/or bruising around the upper and/or lower frenulum, the absence of and signs weighs very, very heavily against smothering having occurred.[59]

The Circumstances in Which the Folbigg Death Occurred  

Caleb, at 19 days old, died suddenly and unexpectedly at home in the early hours of the morning. His mother, Kathleen Folbigg, fed him at 1am on 20 February 1989 and put him to bed in an adjoining room. He was found lifeless and cold by Ms Folbigg at approximately 2.53am. Craig Folbigg, the father, attempted CPR until the ambulance officers arrived.

Patrick, at four months old, suffered what was diagnosed then as an ‘Apparent/Acute Life-Threatening Event’ (ALTE) which left him blind and having seizures for the four months until his death. At 8 months old, Patrick died suddenly at home in daylight hours. Ms Folbigg put him down to sleep at 7.30am on 13 February 1991. He was found not breathing by Ms Folbigg at around 9.30-10am. Mr Folbigg attempted CPR and the ambulance was called.

Sarah, at 10 months, died suddenly and unexpectedly at home in the evening. She was ill prior to her death with a respiratory illness treated with flucloxacillin. Ms Folbigg put Sarah to bed at around 5.30pm on 29 August 1993. She was sleeping in a single bed in her parents’ room at the time. Mr and Mrs Folbigg went to bed some hours later, they noticed Sarah was snoring. Ms Folbigg rose at around 1.30am to go to the bathroom.[60] She could not hear Sarah breathing and turned on the light to check on her and discovered that Sarah was not breathing. The skin on her face was blue and there was discharge from her nose. Mr Folbigg attempted CPR and the ambulance was called.

Laura, at 18 months, died suddenly and unexpectedly at home in the daylight hours. She was suffering flu/cold symptoms which she had for the preceding seven days (runny nose and congestion of her chest). She was given demazin (pseudoephedrine – a medication known to trigger cardiac arrhythmias). On 1 March 1999, Laura woke and played with her father before his leaving for work. Ms Folbigg and Laura visited Mr Folbigg at his place of work at around 11am. They returned home and Ms Folbigg put Laura to bed as she had fallen asleep in the car. Approximately half an hour to an hour later, Ms Folbigg heard Laura coughing. She then went into check on Laura approximately five minutes later and discovered Laura laying on her back and her face was pale. Ms Folbigg recalls Laura not breathing. She picked Laura up and took her to the breakfast table and commenced CPR and phoned the ambulance.

The Trial

At Ms Folbigg’s trial, the prosecution used her private diary/journal entries to suggest she confessed to murder. There are no confessions of murder in Ms Folbigg’s writings. In fact, much of what she wrote is positive about her children. She was their primary caregiver and had little to no help from her husband, Craig Folbigg.

For Caleb, Ms Folbigg meticulously recorded on a calendar when she fed, bathed, changed his nappy, if he was restless or vomited. She recorded multiple entries a day for the entire 19 days of his life. This sort of recording does not suggest she intended to smother Caleb and certainly does not remotely record her confessing to it. It does not indicate that she harboured hostility towards him. It reflected the experience of a first-time mother who attended to all of her child’s needs and was cautious to ensure her baby was developing well.  

The finding by the jury of manslaughter in respect of Caleb clearly indicated that jury members were convinced that the prosecution had not proven its case beyond reasonable doubt for intentionally causing serious harm by way of smothering.

In the case of Patrick, he suffered disability after he had what was then diagnosed as an ALTE at four months of age. Ms Folbigg cared for him intently; she took him to multiple medical appointments and stayed in hospital by his side when he was admitted. There is no evidence from entries in her diaries/journals relevant to Patrick which suggested she harmed him, and they certainly do not in any way record her confessing to murder or that she was in a rage/stress like state to smother her own child.

The prosecution relied on ambiguous entries to suggest Ms Folbigg disliked Sarah and, therefore, wanted her dead. There are no confessions of murder and only attempts by Ms Folbigg to make sense of the loss she faced due to the deaths of her children. The prosecution also cited the diaries/journals to establish she killed Laura. There are no confessions of murder or other evidence to suggest buried hostility or rage towards Laura.

The prosecution put forward spurious propositions that Ms Folbigg liked going dancing and to the gym, and somehow this was suggestive that a mother would kill her own children. Such unsupported and misogynistic propositions would not be acceptable in 2022. All that the diary/journal entries reveal is a loving mother who was close, attentive, and worried about each child’s survival. It also reveals a traumatised woman who was struggling to make sense of her existence.

 Asphyxiation: Not a Cause of Death Diagnosis in Forensic Pathology and the Danger with the Use of the Phrase ‘Consistent With’

Key points:

1. Asphyxia (and corresponding terms) are not cause of death diagnoses in forensic pathology.
2. The phrase ‘consistent with’ has been used incorrectly in the Folbigg case.
3. There are no signs of smothering on the Folbigg children.

 We outline below the problems with the prosecution using asphyxiation/an acute catastrophic asphyxial event/asphyxia as a diagnosis. The reason why we do this is:

1. The prosecutor at trial used asphyxia as a diagnosis.[61]
2. Reginald Blanch, Commissioner of the 2019 Inquiry, reasoned that asphyxia was a diagnosis and wrongly stated that asphyxia includes smothering.[62]

We have identified the number of times at trial and the 2019 Inquiry the following terms were used:

The problems with the use of the term asphyxia (and corresponding terms) are simply put by Professor Cordner:

In my view, much of the forensic pathology discussed at the trial is misconceived, based as it is on a flawed understanding of asphyxia. Asphyxia is not a helpful word in forensic pathology, is not understood in a uniform way, is not a diagnosis and is not diagnosable. Yet the word is at the core of the main question asked repeatedly by the Prosecution: Did this child/these children suffer “an acute catastrophic asphyxiating event”? If this question was intended to be a technical question in forensic pathology, it has no content and is not capable of an answer. Ultimately, and simply, there is no forensic pathology support for the contention that any or all of these children have been killed, let alone smothered.[63]

‘Asphyxia’ in Forensic Pathology

Professor Stephen Cordner dedicated a whole chapter of his report to this issue (see Chapter VI, pages 40-59). Some of the key aspects of his discussion are replicated below.

 Professor Cordner stated:

“The misconception is that expert forensic pathology can tell whether a person has died because they stopped breathing, as opposed to having died because their heart stopped, or died from more complicated mechanisms. Forensic pathology cannot distinguish between, or identify or diagnose any of them. Forensic pathology cannot, by its work in the mortuary, point to the pathophysiological mechanisms leading to death, except perhaps in those cases where an obvious lesion is present which is incompatible with life. Even in these cases (massive haemorrhage, decapitation, ruptured heart, cerebral haemorrhage) the subsequent pathophysiological events are inferred from the incompatibility with life of the observed pathology, not concluded directly because of post-mortem findings in or on the body.[64] 

Professor Cordner replicates the passages from expert evidence at trial in which the prosecutor uses an ‘an acute catastrophic asphyxiating event’ to ascertain a cause of death. He says the following about the use of that term:[65]

“[T]he prosecutor asks [pathologists repeatedly] whether the Folbigg children died of “an acute catastrophic asphyxiating event”, meaning an acute catastrophic failure to breathe (albeit, of unknown causes). Forensic pathology as a matter of expertise cannot say; it cannot say in general, and it cannot say in these cases.”[66]

To begin unwrapping all of this and to understand the Prosecutor, Dr Cala and others’ use of the phrase “acute catastrophic asphyxiating event”, we need to untangle the difficult use and meaning of the word “asphyxia”. Furthermore, not only has the word been misused here, it is loosely used throughout the trial. In my view, this is a serious problem in a case such as this.  And if the word is equated with “failure to breathe”, and the word was intended to convey the primary or precipitating event which led to death, then it needs to be understood that this is an undiagnosable entity in forensic pathology. Forensic pathology cannot tell if the heart stops first, or breathing stops first, or they both fade away together, or some other pathophysiological cascade leads to death in any particular case.[67]

There are different general definitions of asphyxia used in medicine and by lay people.[68] Relevant here is the use of the term in forensic pathology for the purpose of cause of death.

Professor Cordner cautioned:

1. Asphyxia is not a useful term in forensic medicine.
2. It is only useful when it is further particularized – and when this is done, there is no contribution from the word asphyxia.
3. If it is thought that it might loosely correspond with mechanical means of interfering with respiration, it is still of little or no technical use as there are many ways this can occur, and these different ways cause death by different mechanisms.
4. There is no contribution from the term ‘mechanical asphyxia’ except as a time honoured term beneath which a variety of circumstances and/or conditions are collected.
5. Asphyxia is not a diagnosis, mechanical asphyxia is not a diagnosis and neither is diagnosable.
6. Asphyxia is a non specific term for a number of entities of different kinds historically collected together (and likewise for mechanical asphyxia).[69]

He went on to say:

“Asphyxia is not a medical condition. There is no such thing as a medical diagnosis of asphyxia. There is no constellation of findings that leads to a meaningful conclusion that a person has died of asphyxia, or even mechanical asphyxia. There are diagnoses of compression of the neck (ligature strangulation, manual strangulation, hanging), smothering, and traumatic asphyxia.[70]

The central issue in the Folbigg case was: did Ms Folbigg smother the children as alleged by the prosecution? No child was found to have been smothered at autopsy (a valid diagnosis in forensic pathology, see quote immediately above). In order to prove its case, the prosecution put forward asphyxia as a diagnosis. It is unknown if the prosecutor was aware that asphyxia is not a diagnosable term; his questioning certainly caused confusion about what is capable of being diagnosed and what this meant for the diagnoses of the Folbigg children.[71] Professor John Hilton also stated that such a term as a ‘catastrophic asphyxia event’ cannot be used to demonstrate an unnatural death: ‘…to necessarily equate that term with a non-natural mechanism is demonstrably not tenable.’[72] Professor Johan Duflou also said about this term: ‘I hold similar views [to Professor Cordner] in relation to the phrase “catastrophic asphyxiation event” and variations on that term, which I have similarly not been able to identify as a cause of death except when used in the context of the Folbigg Trial – the term is not one which is used by the medical fraternity to describe a cause of death.’[73] He also said: ‘variations such as “catastrophic asphyxiation event” are meaningless from a forensic pathology perspective and are potentially pejorative. This term has no place in forensic pathology practice.’[74]

Professor Cordner notes that no pathologist in New South Wales or Victoria used the term asphyxia (or corresponding terms outlined on page 47-48 of his report)[75] in a cause of death diagnosis in an autopsy report from 2000 to 2014. Forensic pathologists do not use this term as a diagnosis. 

Smothering Has Been Equated with Asphyxia, but They Are Not the Same

Along with the prosecutor at trial, Commissioner Blanch at the 2019 Inquiry suggested repeatedly in his report that no expert could exclude smothering; however, smothering can result in general and specific signs. In this regard Professor Cordner observed:

“There is repeated mention throughout the trial transcripts that fatal smothering may leave no signs. While this is true, the converse is also true, which is that smothering can result in general and specific signs in infants and adults. Neither general nor specific signs were seen in any of four cases where death, on the homicide hypothesis, was due to smothering; and nor on a fifth occasion, where it is alleged an attempted homicidal smothering occurred, Patrick’s ALTE.”[76]

In effect what the Commissioner was doing was reversing the onus of proof, the same thing that occurred at Ms Folbigg’s trial in 2003. As a commissioner considering reasonable doubt, he clearly failed to apply the appropriate standard of proof by requiring something be ‘ruled out’ as opposed to analysing the medical evidence as it stood – the diagnosis of natural causes for each child. These are the Commissioner’s findings:

Caleb:

“I find that on the basis of the medical evidence in isolation, both “undetermined” and SIDS can apply to Caleb’s death. Both descriptors leave open the possibility of an unidentified natural cause, or unidentified unnatural cause, of death. Expert evidence was consistent in both the trial and the Inquiry that it can be very difficult, indeed virtually impossible, to distinguish between SIDS and suffocation at autopsy.”[77]

Patrick:

“When considering the medical evidence in isolation, in respect of Patrick’s death I find that it is possible, on the basis of forensic pathology opinions in the Inquiry, that this was attributable to encephalopathy in his brain. While this identifies a possible cause, it does not explain how the encephalopathy caused death. On the basis of the opinions of Professors Duflou, Hilton and Cordner, and that no relevant medical expert either at trial or in the Inquiry ruled out the possibility of a seizure, it is possible that the encephalopathy caused a seizure, which caused death. I note, however, evidence in the Inquiry of the rarity of SUDEP.”[78]

Sarah:

“As with Caleb, Sarah’s risk of SIDS was low given her mother did not smoke and she was found supine, but I find that SIDS could apply to Sarah’s death. That leaves open the possibility, on the medical evidence in isolation, of an unidentified natural cause, or unidentified unnatural cause. It is also reasonably possible that her death was caused by an asphyxial event”.[79]

Laura:

“The evidence given in the Inquiry is not significantly different from the evidence given at trial where Professor Berry said most forensic pathologists would say myocarditis was the cause of death of Laura. That is clearly because from the point of view of a forensic pathologist, myocarditis is the only possible observable cause of Laura’s death. Having regard to the medical evidence in isolation, it is a reasonable possibility that the myocarditis found in Laura’s heart at autopsy was either incidental to her death, or that it was fatal.”

I accept that deaths of children from myocarditis are rare, and that deaths of children from myocarditis which are sudden and unexpected are even fewer. However, this is simply one circumstance to take into account. It is a separate consideration from whether Laura’s myocarditis was sufficient to kill; I have accepted that most forensic pathologists would say that it was.

It is also reasonably possible on the medical evidence that Laura’s death was caused by an asphyxial event.[80]

The Commissioner stated several times that he found it reasonable that the children died of natural causes (supported by expert evidence at the Inquiry), but also stated that Kathleen Folbigg might have smothered the children (unsupported by any medical or scientific evidence and contrary to it). Although no expert concluded that the pathology indicated smothering as a cause of death, the Commissioner ultimately concluded that ‘the only reasonable conclusion open to him’ was that Ms Folbigg smothered the children. He took an extraordinary approach to assigning criminal responsibility which is unsupported by the diagnoses as to cause of death. Professor Cordner explained above, smothering can leave signs and the absence of signs in all four children is evidence in favour of natural causes and it weighs heavily against a conclusion of smothering.

A coroner considering this case would not be concerned with proof beyond reasonable doubt when determining cause and manner of death. The central task is to look forensically at what the medical and scientific evidence indicates happened to the children.

No Signs of Smothering in the Folbigg Children

 Professor Cordner wrote:

“Vanezis (1989) formally reviewed the general signs of many of the forms of mechanical  asphyxia in his well regarded text, bearing the fruits of his MD research. The signs he regarded as relevant are: facial and conjunctival petechiae; skin petechiae above the level of a neck compression; cyanosis above the level of a neck compression. In relation to smothering, the relevant ones of these are facial and conjunctival petechiae.”

“In none of the four deaths is there any suggestion of the presence of any of these signs. In particular there is no suggestion of the presence of petechial haemorrhages: facial, post auricular (behind the ears), gingival (inner aspect of the lips), periorbital (around the eyes), conjunctival or epiglottic petechial haemorrhages. Neither am I aware of any material suggesting that any petechial haemorrhages were present in Patrick following the ALTE.”[81]

Facial petechia can be a sign of smothering. In relation to the Folbigg case, Professor Cordner pointed out:

“[H]ad [facial petechia] been present they would almost certainly have been pointed to by Dr Cala and others as evidence in favour of smothering. Their absence therefore weighs on the other side of the balance, especially as these allegedly represent four cases of smothering (or five events of smothering if you include the ALTE suffered by Patrick). In addition, Laura is no longer an infant and the chance of facial petechiae occurring in her age group with smothering is, probably, somewhat greater. Their absence is a relevant negative tending particularly to weigh against the diagnosis in her case.”[82]

A lack of facial injuries in all children and injuries inside Laura’s mouth are evidence against smothering.[83]

Professor Cordner concluded:

“[i]t seems not to have been explicitly stated in the trial, but there is no forensic pathology evidence, no signs in or on the bodies, to positively suggest that the Folbigg children were smothered, or killed by any means.”[84]

Professor Johan Duflou also said in this regard:

“I am of the opinion that a diagnosis of death due to smothering can only be made in the setting of a negative autopsy in the presence of a positive history of it having taken place (for example a verified confession, eye witness evidence, or video footage of the act), or where there is autopsy evidence of external obstruction of the airway such as the presence of facial or conjunctival petechiae, injuries to the lips, the frenula, bruising to the mouth and face, injuries to the nose, and injuries to the chin of a type which would be expected in compressive force applied to that part of the body.

In the case of the four Folbigg children, I emphasise that no such injuries of any type are seen in any of the children, and as such I am of the opinion that a diagnosis of smothering cannot be reasonably suggested by the expert in court proceedings.”[85]

Danger with the Use of the Phrase ‘Consistent with’

At trial, the prosecution introduced in its opening address a general proposition about smothering, which it later used to suggest an absence of signs of smothering should be regarded as evidence to support the conclusion:

It is extremely easy for an adult to deliberately smother a young child, a baby, and to leave no trace of any external injury whatsoever, such as bruising. This is especially so if a pillow or other soft object is used, or even a hand.^[86]

There is little doubt that an adult could easily deliberately smother a young child, at least physically. Leaving no trace is another matter, and in the case of Laura Folbigg, because she was older it could reasonably be assumed there might be some signs, particularly in circumstances as alleged by the prosecution, that she was smothered in a fit of rage/stress by Ms Folbigg. It is for the prosecution to advance its case, and it decided that a pillow, other soft object or even a hand could have been the mechanism to achieve it. It, however, advanced those propositions without a scintilla of evidence that any of these objects were used.

The prosecution advanced its case without evidence of smothering, so it needed to rely on a negative to prove a positive: because smothering can sometimes leave no signs, and that there were no signs in this case, should be regarded as positive evidence of smothering. It did this through the use of expert witnesses who were asked if the absence of evidence was ‘consistent with’ smothering (‘consistent with’ was used approximately 178 times at trial); like the incorrect use of the word ‘asphyxia’ or ‘asphyxiation’ as a cause of death. This approach allowed for speculation and suspicion to flourish and by the end of the case overwhelmed the only task the jury had – to determine whether the prosecution had proved its case beyond reasonable doubt.

The use of the term ‘consistent with’ smothering by the prosecution to promote the idea that the children were smothered not only invited the jury to speculate, but also it invited confusion and whittled away a number of fundamental legal principles. The most obvious principles that were under attack were the onus and standard of proof. At the very least the prosecution was required to bring relevant probative evidence of guilt. Asserting that the absence of evidence of smothering was consistent with smothering did not provide relevant, probative evidence of smothering. This is like asserting an absence of an accused’s DNA a murder weapon means that it was present, just not found.

Professor Cordner explains how the phrase ‘consistent with’ is dangerous and how it has been used incorrectly in the Folbigg trial.[87] Professor John Hilton[88] and Professor Michael Pollanen[89] concur with what Professor Cordner said in this regard.

Professor Cordner provided an example of the use of ‘consistent with’:

       “A simple way of thinking of the issue is to consider the following:

1. 1. Consistent with A, but inconsistent with B
   2. Consistent with A, but also consistent with B

In giving evidence on a particular point, one of these versions is usually meant, but most often the second half of the couplet is left unsaid. For example, ‘all the findings are consistent with deliberate smothering’ is not, as far as I can see, accompanied by what the findings might also be consistent with, or what they are inconsistent with. This omission may be a significant contributor to the problem with this phrase generally, and in this case in particular.”[90]

Professor Cordner quoted the Report of the Inquiry into Pediatric Forensic Pathology in Ontario, Justice Goudge:

“… lawyers usually interpret “consistent with” as meaning “reasonably strongly supporting”, while scientists use it in its strict logical and neutral meaning. When a pathologist says that certain injuries are consistent with a road accident there is no implication about whether or not there has been a road accident”.[91]

Simply, because no signs of smothering were detected on the Folbigg children (and some children can be smothered and leave no signs) cannot be regarded as evidence of smothering. 

Recurrent Natural Death and ‘Meadow’s Law’: Multiple Deaths in a Family from Natural Causes Is Known

It has been implied throughout the Folbigg case history that there must be a single cause of death for all children, and if there is not, then they must have been murdered. This emanates from the dangerous proposition led by the prosecution at trial that there were no known cases of three or more natural infant deaths in the same family. This was demonstrated to be false at the 2019 Inquiry; there were cases of multiple deaths published before 2003.[92]

Another misconception was that the Folbigg case was a case of four SIDS deaths. It was not. At trial, the deaths of Caleb and Sarah were classified as SIDS but Patrick had an identifiable natural cause of death and Laura’s death was ‘undetermined’ with a finding of myocarditis. It has since been accepted by the pathologist who undertook Laura’s autopsy, Dr Allan Cala, that myocarditis is a possible cause of death for Laura.

Meadow’s Law

 ‘Meadow’s Law’ is the name given to a dogma that was attributed to Sir Roy Meadow, a once prominent British paediatrician, who hypothesised that ‘one infant death is a tragedy, two is suspicious and a third is murder until proven otherwise.’^[93] This doctrine came to prominence in the United Kingdom in the 1990s after Meadow gave evidence in several trials in which mothers were accused of killing their children.^[94] Mostly notably, Meadow gave evidence at the trial of Sally Clark in which he incorrectly stated the chance of two children with a diagnosis of SIDS in the same family was 1 in 73 million. Clark’s successful appeal was in part due to Meadow’s evidence being demonstrated to be incorrect.^[95]

Although the prosecution in Ms Folbigg’s trial did not cite Meadow’s Law verbatim, it nevertheless informed the approach of the prosecution and the evidence given by some experts who were influenced by this dogma. The prosecution case revolved around a key proposition: four natural infant deaths in one family had never been reported or observed before; therefore, it was impossible to have happened in this case.

Dr Susan Beal, prosecution witness at trial, gave evidence to indicate she was not aware of three or more infant deaths in the same family either in her experience or in the literature, anywhere in the world.^[96] Relevantly, she was co-author of an article in 1988 entitled ‘[r]ecurrence incidence of sudden infant death syndrome’ in which she refers in her results section to a family who had three infants who died from SIDS.^[97] Additionally, in an article co-authored by Dr Beal in 1993, she referenced an article written in 1986 by E Diamond. In Diamond’s article he reports a case of five sibling deaths in one family from natural causes.^[98] On this basis it can be assumed that that at the time of the trial, Dr Beal was in fact aware of at least one case of three or more infant deaths in one family from natural causes.[99]

Virtually the same evidence was given by Dr Beal in the case of Carol Matthey in Victoria; Matthey was also accused of murdering her infants. Justice Coldrey found that Dr Beal ‘reasoned backwards to a probability that the other three children died by a non-accidental suffocation’.^[100] Dr Beal quotes Meadow’s Law reasoning, verbatim, in her statement of 9 December 1999 in relation to the deaths of the Folbigg children.^[101] She admitted she was ‘absolutely’ influenced by Meadow’s Law in coming to the opinion that the Folbigg children had been smothered.^[102]

Professors Herdson and Berry (prosecution witnesses at trial) also gave evidence that they had never heard of a case of three or more infant deaths in the one family attributed to SIDS, in their experience or in the literature. It might be reasonably assumed that Meadow’s Law also influenced their opinions in the Folbigg case.

The opinions of Dr Janice Ophoven were received at committal^[103] and used by appeal courts.^[104] She was a staunch supporter of Meadow’s Law and put the statistical likelihood of four deaths from SIDS in one family as 1 in a trillion, a claim she later retracted. It should be noted that Dr Beal and Dr Ophoven gave evidence in the case of Carol Matthey but her case did not progress to trial. Justice Coldrey was critical of their evidence; it was strikingly similar to the evidence given at Ms Folbigg’s committal proceedings, and in the evidence of Dr Beal at Ms Folbigg’s trial.^[105]

Absence of Pathological Evidence of Smothering has been Used as Evidence of Smothering

No pathologist at trial could point to positive signs of smothering (such as those discussed above in Professor Stephen Cordner’s report). On this point, Justice Goudge in Canada made the following observation:

Pathologists should be entitled to express their opinions if the science permits them to do so as to whether explanations given for the deceased’s injuries or condition can be excluded, or conversely are supported by the pathology evidence … But that is very different from allowing the absence of a credible explanation to serve as a substitute for pathology evidence sufficient to support a cause of death.[106]

 This is what unfortunately occurred in Kathleen Folbigg’s case. The absence of pathological signs of smothering was taken as evidence in favour that she did in fact smother her children.[107] It is contrary to reason and is exemplified by the evidence given to the Goudge Inquiry in Canada by Professor Michael Pollanen:

“For example, in pathology in general, when someone goes to a surgeon with a lump…a tumour, and the pathologist is given a biopsy of the tumour, and when we look at the section under the microscope and we’re uncertain if it’s cancer or not, we don’t say “in the absence of evidence to the contrary this is cancer”; what we say is that the findings of the histology are not sufficient to come to a diagnosis; re-biopsy, do more investigations to find out”.[108]

Murder vs Natural Death

The rarity of multiple infant deaths in the one family was the central focus Ms Folbigg’s trial, and one in which many doctors and forensic pathologists based their conclusion as to cause of death. In this regard Professor Cordner said:

“Essentially, when stripped of its trappings, the forensic pathologists’ – and other doctors’ – conclusion at the trial that supported the homicide hypothesis is based on the coincidence of four deaths, an apparent lack of identifiable causes of death, and an ALTE in one family. If police, prosecutors and the courts do not like coincidences, or believe there are other grounds for concluding that crimes have been committed in relation to the deaths of the Folbigg children, that is entirely a matter for them. I would like to make as clear as I can that there is no forensic pathology basis for concluding that these children have been killed. In my view, any conclusion that the Folbigg children have been killed should be reached in the knowledge that such conclusion has no forensic pathology basis or support, and indeed there is, in my view, forensic pathology evidence against such a conclusion”.[109]

The prosecutor at trial asked experts ‘is there any natural cause of death that could account for all these four deaths and the ALTE?’ This made plain that the prosecutor treated all deaths as one phenomenon as opposed to treating the deaths as four separate incidents.[110] The treatment of the case as one ‘incident’ suggested a common cause: human interference. This was wrong in the circumstances in which there were natural causes diagnosed and no evidence of smothering. This effectively amounted to a default position of murder because a single unifying cause of death for all four could not be identified. No one seemed to appreciate the reverse could also be done – the murder of four children in one family is perishingly small,[111] they must have died of natural causes. That conclusion is now supported by the fresh evidence in this case. 

Sudden Infant Death Syndrome

SIDs remains an enigma, even in the 21^st Century. In 2004, Opdal and Rognum foreshadowed developments in SIDS knowledge to include the discovery of new genetic inheritances:

“It is unlikely that one mutation or polymorphism is the predisposing factor in all SIDS cases. However, it is likely that there are “SIDS genes” operating as a polygenic inheritance predisposing infants to sudden infant death, in combination with environmental risk factors … In the future, some of the cases now diagnosed as SIDS will probably be diagnosed as, for instance, metabolic or cardiac disease based on a better knowledge of the genetic basis of these and other diseases.”[112]

SIDS is generally described as ‘[t]he sudden unexpected death of an infant <1 year of age, with onset of the fatal episode apparently occurring in sleep, that remains unexplained after a thorough investigation, including performance of a complete autopsy and review of the circumstances of death and the clinical history.’[113] Many cases of infant death go without explanation; this does not mean that there was human interference in the death. Professor Roger Byard notes that SIDS ‘remains the most common cause of unexpected death in infants aged between one week and one year of life in Western countries.’[114]

Professor Cordner noted in 2015, ‘[s]ince the Folbigg infant and childhood deaths were investigated, strong evidence has emerged of genetically determined cardiac arrhythmias capable of causing deaths indistinguishable from SIDS.’[115] This is precisely what occurred in relation to Sarah and Laura Folbigg; the discovery of the CALM2 G114R mutation only occurred in 2019 and it was only established as pathogenic in November 2020.

The latest research on recurrent sudden unexpected death in infancy is from Joanna Garstang and colleagues. This involved the UK’s Care of Next Infant (CONI) programme in which the authors examined the clinical case records of infants who died suddenly and unexpectedly over a 15-year period. The authors published the article entitled ‘[r]ecurrent sudden unexpected death in infancy: a case series of sibling deaths’ in 2020. They conclude: ‘[t]he SUDI rate for siblings is 10 times higher than the current UK SUDI rate. Homicide presenting as recurrent SUDI is very rare.’[116]

The authors also examined cases of infant homicide: ‘[t]here were suspicions of deliberate asphyxia of three infants who died in the care of the same parent. All three had marked pulmonary haemorrhage on post-mortem examination, with two infants dying in apparently safe sleep environments. There were long-standing child protection concerns with this family…’[117] There are no signs of smothering in any of the Folbigg infants. Nor were there any child protection concerns with any of the children over the 10-year period, even with Laura who was the fourth child who survived for 18 months.

We provide this information to clarify that SIDS/SUDI is a diagnosis of a presumed natural cause of death, albeit an unidentifiable one. Caleb and Sarah’s deaths were treated as suspicious by investigating police who were seeking a prosecution, despite having SIDS recorded as their cause of death. This was wrong.

This case raises the importance of the Coroner to make recommendations about new genetic discoveries which will enable better identification of the reasons for sudden and unexpected death in infancy in Australia. It is clear that genetics provides a new basis for understanding cases which otherwise would be diagnosed as SIDS/SUDI. The Coroner could also play a vital role in informing the community about this ground-breaking development in knowledge and assisting the medical profession in identifying and treating patients who present with lethal calmodulin mutations.

Diaries

 Entries in Folbigg’s diaries/journals were invoked by the prosecution at trial as evidence of confessions of murder. The diaries were also raised the 2019 Inquiry and Ms Folbigg gave evidence in relation to them. It was suggested that selected entries were inculpatory based on (1) what was in the diaries, (2) what should have been in the diaries, and (3) the allegation that she disposed of some of her diaries.[118]

The entries used at trial from the corpus of Ms Folbigg’s writings were selected by police psychologist Rozalinda Garbutt in a report she prepared for the officer in charge, Detective Bernie Ryan.[119] She said: ‘[m]y opinion is dependent upon the elimination of natural causes to explain the death of the four Folbigg children.’^[120] Her opinion was that Ms Folbigg ‘became angry and frustrated with her childrens’ crying and need for constant attention to a point where it overwhelmed her and she lost control and consciously ended the lives of each.’[121]

Some of the entries cited in favour of her guilt are below. Ms Folbigg’s explanation and expert opinion is provided to explain the correct interpretation.

1. ‘Children thing still isn’t happening. Thinking of forgetting the idea. Nature, fate & the man upstairs have decided I don’t get the 4th chance. And rightly so I suppose. I would like to make all my mistakes & terrible thinking be corrected and mean something though. Plus, I’m ready to continue my family time now. Obviously, I’m my father’s daughter. But I think losing my temper stage & being frustrated with everything has passed. I now just let things happen & go with the flow. An attitude I should have had with all my children if given the chance. I’ll have it with the next one’ 14 October 1996 (emphasis added)

Inculpatory interpretation: ‘my mistakes & terrible thinking’ has been interpreted as expressing guilt of murder. ‘Obviously, I’m my father’s daughter’ has been interpreted to mean: my father killed my mother and I am like him because I killed my children.

Ms Folbigg’s explanations: ‘I believed and thought at the time that my father’s actions ruined my life and my life never seemed to go right from there. And it was a thought of, along the lines of sins of the father being on the daughter. Was I paying the price?… I believed at the time… writing these diaries in preparation for Laura, everything was very dark and every thought was very dark and I blamed my father a lot for most of my life just going wrong.’[122]

 Expert comment: The above entry demonstrates Ms Folbigg’s feelings of inadequacy as a mother[123] rather than admitting to murder, consistent with the explanations Ms Folbigg gave in evidence at the 2019 Inquiry. The following comments are made by experts:

Dr Kamal Touma (analytical psychotherapist) said Ms Folbigg’s diaries/journals are riddled with self-hatred and she genuinely believed she was a bad mother, even a cruel one. He notes, however, that this is not supported in her writing nor in the conversations he had with Ms Folbigg.[124]

Dr Sharmila Betts (clinical psychologist) explained ‘[s]he appears to interpret her feelings of stress, irritability and exhaustion in caring for her infants as evidence of poor mothering and possibly equates her psychological reactions to motherhood as the reason for their deaths.’[125]

2. ‘If I have a clingy baby, then so be it. A cat napper so be it. That will be when I will ask help & sleep whenever I can. To keep myself in a decent mood. I know now that battling wills & sleep depravaision [sic] were the causes last time.’ 4 December 1996 (emphasis added)

Inculpatory interpretation: ‘were the causes last time’ has been interpreted as Ms Folbigg expressing guilt of murder. The prosecution alleged that the children were causing her too much stress and frustration, which they say led to her smothering her children in a state of rage/stress.

Ms Folbigg’s explanations: She denies that the ‘causes’ relate to her harming her children. She explained that she blamed herself and her inadequacy as a parent for the deaths of her children.[126] In relation to the reference to ‘cat napper’ and ‘decent mood’ Ms Folbigg said: ‘that goes back to my belief at the time that all of my emotions and moods, or anything at all, were affecting the people around me and my children… these diaries are me continually searching and asking and questioning. Statements such as those in them are me grasping and grappling with answers that I’m – that I’m trying to get. And when you take it from the point of view that I’m constantly blaming myself, yes, I had in my head a belief that my moods affected everything, they affected my children, my children then died and decided they didn’t wish to be with me anymore. It was quite a warped view as to how I was thinking and is evident in the diaries and to how I’m writing them.’[127]

Expert comment: Dr Katie Seidler (forensic psychologist specialising in violent offending) said ‘[t]here is no evidence in Ms. Folbigg’s writing that she wishes to harm Sarah or intends to harm Sarah however, I do note that in her writings around the time of her pregnancy with Laura and during Laura’s early life, Ms. Folbigg makes comments that suggest Sarah was a more difficult child and that tending to Sarah caused her some frustration and stress.’[128]

 Other experts also agree that there are no confessions of murder or harm to her children in any of her writings.[129]

3. ‘Another year gone & what a year to come. I have a baby on the way, which means major personal sacrifice for both of us. But I feel confident about it all going well this time. I am going to call for help this time & not attempt to do everything myself anymore. I know that that was the main reason for all my stress before & stress made me do terrible things.’ 1 January 1997 (emphasis added)

 Inculpatory interpretation: ‘stress made me do terrible things’ has been interpreted as Ms Folbigg confessing to murder.

Ms Folbigg’s explanation: in relation to the statement ‘made me do terrible things’ Ms Folbigg gave evidence that ‘goes back to me not differentiating between a slight frustration, an angry thought, anything along those lines. The doing terrible things part is I had such a, a belief that I’d got it all so wrong that it, it didn’t really matter if I was going to have a frustrative(as said) thought, that was a terrible thing. If, if I left my child to cry for a second it was a terrible thing. If I hadn’t met my child’s needs in some way, that was a terrible thing. It all meant exactly the same to me.’[130]

Expert comment: Dr Sediler said: ‘[t]here is no indication in comments made by Ms. Folbigg in her writings that she has engaged in any behaviour, such as violence, abuse or neglect, which would have directly harmed her children and brought about their deaths.’[131]

Experts comment that there are no descriptions of agency in anything Ms Folbigg writes in her diaries. Ambiguous statements such as ‘stress made me do terrible things’ should not be interpreted as admissions or confessions when the language used is not supportive of agency (e.g. “I killed my children”).[132]

4. ‘I think I am more patient with Laura. I take the time to figure what is rong [sic] now instead of just snapping my cog. Also she is a far more agreeable child & easily flows most of the time.’ ‘Looking at the video, Sarah was boyish looking. Laura has definite feminine features, they are chalk & cheese. And truthfully just as well. Wouldn’t of handled another one like Sarah. She saved her life by being different.’ 25 October 1997 (emphasis added)

 Inculpatory interpretation: ‘She saved her life by being different’ has been interpreted as Ms Folbigg confessing to murdering her children.   

Ms Folbigg’s explanation: in relation to the statement ‘saved her life by being different’ Ms Folbigg said: ‘[t]hat’s a mystical representation. That’s me reflecting on my beliefs as in karma and the children talking to each other and God and all of those sorts of beliefs that I had… At the time, when writing these because I was searching for questions so hard and always wanting to know why I had a belief that fate, karma, God, a spiritual thing going on that there was another reason as to why all this was happening. And when I went to a clairvoyant, which was mentioned in the last 24 hours, that clairvoyant gave me the peace that my children and Sarah were happy and it was a belief that just was ingrained in me; that there was other things going on beyond my control and all the answers that I was seeking all the time, “she saved her life by being different” is my hope and dream that Laura being different would have saved her life but in the end it didn’t.’[133]

 Expert comment: Dr Touma said: ‘she intermingled the negative attributes of self at the same time experiencing them as the deserved cause for the spiritual interventions though her strong belief of her responsibility, fault and deserving for her children to ‘leave’ her by their own will and volition, the will of ‘The man upstairs’ or “the elusive higher power”’[134] and ‘from my readings of the diaries and my conversations with Ms Folbigg, that what may have been “implicating” in her diary are in fact nothing but secondary to a distorted reality due to her spiritual belief acting to punish her for her negative attributes of self.’[135]

 A/Professor David Butt (linguist) explains how the questioning of Ms Folbigg around her spiritual beliefs led her responses to be left as being evidence of her being ‘weird’ or ‘eccentric’. Her comments about her children leaving her align with her discussions with her family about Laura’s soul not being her own, that her children can communicate with each other after death and her visit to the clairvoyant.[136] But he notes that her views are ‘no stranger than widely shared beliefs about souls (for instance, in forms of Buddhism), and they are not more strange than widely held Christian beliefs about miracles’[137]

5. ‘Craig was pretty drunk Friday nite; In his drunken stupor he admitted that he’s not really happy. There is a problem with his security level with me, and he has a morbid fear about Laura. He, well, I know there is nothing wrong with her, nothing out of the ordinary anyway, because it was me. Not them.’ 9 November 1997 (emphasis added)

 Inculpatory interpretation: ‘it was me. Not them’ has been interpreted as Ms Folbigg confessing to murder.

Ms Folbigg’s explanation: Ms Folbigg, throughout her diaries including in the entry cited above, blames herself for her children’s deaths. She explained: ‘[i] always constantly blamed myself for everything and took the responsibility and onus of responsibility on the fact that I’d lost the last three as my inability and failure as a mother.’[138]

 Expert comment: When asked to comment on the expression by Ms Folbigg ‘it was me, not them’, Dr Seidler responded with the following: ‘[s]pecifically, I interpret this that she is blaming herself for the children’s death due to what she perceives as being her inadequate mothering. There are numerous references in her writings to concerns that she is not good enough or will not measure up as a mother. These comments fit with Ms. Folbigg’s apparent perception that in being inadequate and insufficient as a mother, she is responsible for her children’s death, or as she comments, her children’s decision to leave her and reject her as their mother.’[139]

A/Professor Janine Stevenson said: ‘No where in her journals does she use agency verbs, such as ‘I hurt her’. The comment, ‘it was me’ suggests a passive acceptance of responsibility, not an active action. Throughout the journal Ms Folbigg is detailing all the steps she took to ensure the safety of her children. There is no anger, no aggression, only self doubt.’^[140]

This is supported by A/Professor David Butt when he explained ‘[the choice of wording by Ms Folbigg] does not suggest action the way a material verb might i.e., any verb that one expects in a confession: namely, ‘what I did…’[141] and also by Dr Touma opined ‘I cannot see anything in the diaries or from my sessions with Ms Folbigg to indicate that she harmed her children.’[142

6. ‘I feel like the worst mother on this earth, scared that she will leave me now, like Sarah did. I knew I was short tempered and cruel sometimes to her and she left, with a bit of help..’ 28 January 1998 (emphasis added)

 Inculpatory interpretation: ‘she left, with a bit of help’ has been interpreted as Ms Folbigg saying: I killed Sarah.

Ms Folbigg’s explanation: Ms Folbigg explained to the 2019 Inquiry: ‘I’m saying that God, higher power, or another decision, or even my children Sarah deciding that she didn’t want to stay [sic] was the bit of help, not me.’[143] She went on to say ‘it refers to my belief that and my belief that something else happened out of my control.’[144]

 Expert comment: See expert explanation under diary entry 4 above.

Kathleen Folbigg gave evidence at the 2019 Inquiry in relation to her diaries and in her ERISP interview. She rejected any assertion of smothering her children and explained her diary entries. Ms Folbigg’s writings do not contain any confessions, and there is no such thing as a ‘virtual admission’ as claimed in the 2019 Inquiry Report. Second, there are now available seven expert reports from psychiatrists, an analytical psychotherapist, a linguist and psychologists saying, amongst other things: Kathleen Folbigg does not have a mental health issue that could be used to support a finding of murder, manslaughter or that she otherwise hurt her children; her writings contain no confessions of criminal acts of any type; her diaries are rife with self-hatred and criticism which is linked to the trauma she suffered during her upbringing; she is suffering because of the loss of her children. Third, it was conceded by the judge who admitted the evidence and allowed the trials to be joined (and by some who were used as experts by the prosecution to develop its case) that if there were natural causes then the diaries should not be considered.

The speculative claim that Ms Folbigg’s diary/journal entries show admissions that she killed her children has now been dispelled by expert opinion for the first time in the history of this case. The following are some key points from the experts:

1. 1. Dr Michael Diamond (who provided a report for the 2019 Inquiry, although did not deal with the diaries/journals): ‘…I found no evidence to support a view that Ms Folbigg has suffered from psychotic illness, severe mood disorder consistent with homicidal conduct or any other brain injury that might affect her conduct so as to carry out homicidal acts.’^[145]
   2. Dr Sharmila Betts: ‘Mr Tedeschi’s assertion that the Crown was able to read the ‘truth’ behind the diary entries, which, according to the Crown, were tantamount to confessions, is misleading and unsupported by my reading of the diaries or the psychological literature on maternal adjustment, in both bereaved and non-bereaved mothers.’^[146]
   3. Professor James Pennebaker: ‘I see absolutely no evidence to suggest that these were premeditated murders. I see no evidence that Kathleen Folbigg’s language…exhibited any signs of deception or attempts to cover anything up. I also see no sign that Folbigg is mentally unstable or is someone harboring buried hostility or rage.’^[147]
   4. A/Professor Janine Stevenson: ‘No where in her journals does she use agency verbs, such as ‘I hurt her’. The comment, ‘it was me’ suggests a passive acceptance of responsibility, not an active action. Throughout the journal Ms Folbigg is detailing all the steps she took to ensure the safety of her children. There is no anger, no aggression, only self doubt.’^[148]
   5. A/Professor David Butt: ‘The inferential leap to an admission of agency in the deaths oversteps a reasonable application of ‘plain meaning’. The difference between responsibility and practical agency is crucial’^[149] … ‘[t]here is a likelihood that the courts and Inquiry have misinterpreted the feelings of responsibility for not being a better mother as admissions of agency in the deaths of the children.’^[150]
   6. Dr Kamal Touma: ‘…I am comfortable in describing Ms Folbigg as having been a very loving and attentive mother (despite her belief)’… ‘Following on all the above conclusions after reading and analysing the minute particulars of Ms Folbigg’s diaries and having met her for five Analytical psychotherapeutic sessions, I cannot see anything in the diaries or from my sessions with Ms Folbigg to indicate that she harmed her children.’^[151]
   7. Dr Katie Seidler: ‘Ms. Folbigg describes her children having left her. Does this suggest she took active steps to harm her children? No. This comment is passive in nature and suggests that the children left rather than suggesting that Ms. Folbigg was active in taking their lives or harming them in some way. I understand this comment more in the context of Ms. Folbigg’s perceived failures as a woman, wife and mother, as a result of which her children rejected her as their mother and chose to leave her. In this way, Ms. Folbigg is seeking to make psychological sense of the death of her children. As other experts have commented in this case, people try and make sense of experiences they have in reference to their existing frameworks of understanding. In a case like this, it seems that the only way Ms. Folbigg can make sense of her children dying is to suggest they chose to leave her because she believes she is inadequate. These are long held beliefs for her that have their foundation in Ms. Folbigg’s developmental experiences.’[152]

Because of the weight of scientific and medical opinion about the causes of death of the children, and the absence of any evidence of smothering, the Coroner should not regard the diaries/journals as probative.

Should the Coroner think the diaries/journals are relevant or probative, the following expert reports should be carefully reviewed:

1. Report of Dr Michael Diamond dated 16 April 2019 (Annexure 20).
2. Report of Dr Sharmila Betts dated 18 April 2021 (Annexure 21).
3. Report of Professor James Pennebaker dated 5 July 2021 (Annexure 22).
4. Report of Associate Professor Janine Stevenson dated 3 September 2021 (Annexure 23).
5. Report of Associate Professor David Butt dated 8 September 2021 (Annexure 24).
6. Report of Dr Kamal Touma dated 13 September 2021 (Annexure 25).
7. Report of Dr Katie Seidler dated 23 February 2022 (Annexure 26).

The following submissions prepared by Dr Robert Cavanagh (counsel) and Rhanee Rego (solicitor) in support of the petition for pardon on behalf of Kathleen Folbigg can also clarify the fact that the diary/journal entries have no probative value:

1. Submission on Diary/Journal Entries dated 7 July 2021 (Annexure 11).
2. Second Submission on Diary/Journal Entries dated 13 September 2021 (Annexure 12)
3. Final Submission dated 13 September 2021 (Annexure 15).
4. Grounds and Submissions Supporting Pardon Petition Kathleen Folbigg dated 5 November 2021 (Annexure 16).

Tendency and Coincidence

Tendency and coincidence evidence allowed the five counts on the indictment against Ms Folbigg to be heard in one trial. This enabled the prosecution to use the deaths of the children in totality as evidence that Ms Folbigg smothered all four. The weight of the speculation, particularly considering the prevailing Meadow’s Law dogma at the time, meant that the autopsy findings were outweighed by speculation. Despite no evidence of smothering, and only evidence of natural causes, the jury found Ms Folbigg guilty of murder of Patrick, Sarah and Laura and the manslaughter of Caleb.

If the Coroner has an interest in understanding the effect tendency and coincidence evidence had on the way in which the medical and scientific information was framed, the following submission is made available:

1. Submission on Coincidence and Tendency Evidence dated 3 August 2021 (Annexure 13).

The submission is useful for context, but not necessary to determine cause and manner of death given the weight of medical and scientific evidence pointing to a natural cause of death for each child.

The Principle of Finality

The principle of finality may be raised as a justification not to have the coronial jurisdiction enlivened. If this proposition is raised, the following is said:

1. The principle primarily applies to a person who has been acquitted of an offence to stop the State from continually bringing new prosecutions against that person.
2. Although it is said to apply to stop further appeals by convicted individuals, it has no place in the law in circumstances in which fresh and compelling evidence becomes available post-trial, or if there has been a miscarriage of justice. To say otherwise would be to endorse ongoing abuse of an innocent person and disentitle them to relief from the law which should be properly available.

In Ms Folbigg’s case, the fresh genetic and diary evidence is compelling and points to an innocent person having been convicted. The existence of this fresh evidence indicates the coronial system is the appropriate legal process to make findings about the cause and manner of death of the Folbigg children.

If it is claimed that an inquest has already been held then application for a new or fresh inquest is made pursuant to s 83 of the Act. Further submissions can be made in the unlikely event that this issue is raised.

Conclusion

This submission has demonstrated that natural causes of death exist for the four Folbigg children:

1. Caleb: Sudden Infant Death Syndrome (Category II).
2.  Patrick: Asphyxia due to airways obstruction caused by epileptic fits, Encephalopathic disorder (underlying cause not determined on investigation).
3.  Sarah: Sudden unexpected death caused by calmodulinopathy due to a CALM2 G114R mutation, with the lethal cardiac arrest potentially precipitated by her concurrent infection.
4.  Laura: Sudden unexpected death caused by calmodulinopathy due to a CALM2 G114R mutation, with the lethal cardiac arrest likely precipitated by her myocarditis or exposure to pseudoephedrine (which can be a trigger of cardiac arrest for people with CALM variants).

 The fact that the death certificates (except in the case of Laura who does not have one) do not reflect the new evidence now available, is sufficient to enliven the coronial jurisdiction. Of even greater significance is the requirement that next of kin and the community be guaranteed that every death has reliable findings as to cause and manner of death. It is, thus, imperative that a fact-finding exercise, based on the medical and scientific information including that which is fresh, be conducted into the Folbigg children’s deaths.

David Bennett AC QC       

5 Wentworth Chambers       

Dr Robert Cavanagh            

Sir Owen Dixon Chambers

Rhanee Rego

M.G.O’Callaghan & Associates

 3 March 2022

Annexures

1. Report of Professor Stephen Cordner (received in 2015).
2. Report of Professor Michael Pollanen dated 1 June 2015.
3. Report of Professor Johan Duflou dated 13 February 2019.
4. Report of Professor John Hilton dated 22 January 2019.
5. Affidavit of Professor John Hilton dated 13 November 2018.
6. Report of Professor Johan Duflou dated 9 February 2022.
7. Report of Professor Stephen Cordner dated 1 March 2022.
8. Report of Professor Monique Ryan dated 15 March 2019.
9. Malene Brohus et al, ‘Infanticide vs. inherited cardiac arrhythmias’ (2021) 23(3) EP Europace 44 (Europace article).
10. Petition to the Governor of NSW for exercise of the royal prerogative of mercy dated 2 March 2021.
11. Submission on Diary/Journal Entries in support of the Petition for Pardon of Kathleen Folbigg dated 2 March 2021, dated 7 July 2021.
12. Second Submission on Diary/Journal Entries in support of the Petition for Pardon of Kathleen Folbigg dated 2 March 2021, dated 13 September 2021.
13. Submission on Coincidence and Tendency Evidence in support of the Petition for Pardon of Kathleen Folbigg dated 2 March 2021, dated 3 August 2021.
14. Submission on evidence given by Craig Folbigg in support of the Petition for Pardon dated 2 March 2021, dated 8 September 2021.
15. Final Submission by Dr Robert Cavanagh and Rhanee Rego dated 13 September 2021.
16. Grounds and Submissions Supporting Pardon Petition Kathleen Folbigg dated 5 November 2021.
17. A Letter from Professor Peter Schwartz to Professor John Shine dated 8 June 2021.
18. Report of Professor Peter Schwartz regarding Laura Folbigg.
19. Affidavit of Karren Hall dated 28 February 2019.
20. Report of Dr Michael Diamond dated 16 April 2019.
21. Report of Dr Sharmila Betts dated 18 April 2021.
22. Report of Professor James Pennebaker dated 5 July 2021.
23. Report of Associate Professor Janine Stevenson dated 3 September 2021.
24. Report of Associate Professor David Butt dated 8 September 2021.
25. Report of Dr Kamal Touma dated 13 September 2021.
26. Report of Dr Katie Seidler dated 23 February 2022.
27. Report of Rozalinda Garbutt dated 4 February 2000.

References

[1] The children all had medical issues prior to their death, see: ‘supplementary data’: https://academic.oup.com/europace/article/23/3/441/5983835 (Annexure 9).The Forensic Pathology Tender Bundle on the 2019 Inquiry website also contains the relevant medical documentation, see: https://www.folbigginquiry.justice.nsw.gov.au/Documents/Exhibit%20H%20-%20Forensic%20Pathology%20Tender%20Bundle.pdf

[2] ‘I think, with Laura, there’s undoubtedly myocarditis and I’ve said I can’t exclude that as being the cause of death’, see 2019 Inquiry into the Convictions of Kathleen Megan Folbigg (‘the Inquiry’), Transcript 21 March 2019: https://www.folbigginquiry.justice.nsw.gov.au/Documents/FINAL%20-%20Transcript%20of%2021%20March%202019.pdf

[3] In this document, we use the terms mutation and variant interchangeably.

[4] A numeric figure of certainty accords with the classification of a variant as expressed by the American College of Medical Genetics and Genomics and the Association for Molecular Pathology (ACMG): https://www.nature.com/articles/gim201530. See also pages 24-26 of this submission for a discussion on the criteria for interpreting mutations.

[5] Malene Brohus et al, ‘Infanticide vs. inherited cardiac arrhythmias’ (2021) 23(3) EP Europace 44: https://academic.oup.com/europace/article/23/3/441/5983835 (‘Europace’) (Annexure 9). This article is in the top 0.02% most read papers in the history of the journal: https://oxfordjournals.altmetric.com/details/94509524

[6] See pages 39-41 of this submission for a discussion on ‘Meadow’s Law’.

[7] Report of Professor Stephen Cordner dated 2015 page 7 (Annexure 1).

[8] (2007) 17 VR 222, 238 [119].

[9] Professor Hilton undertook the autopsy on Sarah Folbigg. In his review of the pathology of the children for the 2019 Inquiry he maintains his diagnosis of SIDS for Sarah’s death, which was supported by Professors Cordner and Duflou (and also by Professor Pollanen although expressed in another way).

[10] [2003] NSWCA 77 [33]; 57 NSWLR 193. See also, R v South London Coroner, Ex Parte Thompson (1982) 126 SJ 625 (cited in Annetts v McCann (1990) 170 CLR 596, 616 by Toohey J); Fairfax Publications Pty Ltd v Abernethy [1999] NSWSC 826 (Adams J); Maksimovich v Walsh (1985) 4 NSWLR 318, 327-328 (Kirby P) and 337 (Samuels JA); Mirror Newspapers Limited v Waller (1985) 1 NSWLR 1, 6; Herron v Attorney General for NSW (1987) 8 NSWLR 601, 608 (Kirby P).

[11] Professor Stephen Cordner, Professor Johan Duflou, Professor John Hilton and Professor Michael Pollanen. See their reports available on the Inquiry website (Exhibit Q, Exhibit L, Exhibit O and P, Exhibit C, respectively): https://www.folbigginquiry.justice.nsw.gov.au/Pages/exhibits.aspx

[12] If it is claimed that an inquest has already been held then application for a new or fresh inquest is made pursuant to s 83 of the Act. Further submissions can be made in the unlikely event that this issue is raised.

[13] See ss 29(1)(c) Coroners Act 1960 (NSW) and 22(1)(c) Coroners Act 1980 (NSW).

[14] As was done in the case of David Eastman, for example.

[15] (1991) 85 DLR (4^th) 174.

[16] Ibid 183-184.

[17] See ‘[44-060] Autopsies and objections to them’: https://www.judcom.nsw.gov.au/publications/benchbks/local/coronial_matters.html

[18] 82   Coroner or jury may make recommendations

(1)  A coroner (whether or not there is a jury) or a jury may make such recommendations as the coroner or jury considers necessary or desirable to make in relation to any matter connected with the death, suspected death, fire or explosion with which an inquest or inquiry is concerned.

(2)  Without limiting subsection (1), the following are matters that can be the subject of a recommendation—

(a)  public health and safety,

[19] See ‘Death Certificate’ dated 18 January 2000: ‘Forensic Pathology Tender Bundle’ page 3: https://www.folbigginquiry.justice.nsw.gov.au/Documents/Exhibit%20H%20-%20Forensic%20Pathology%20Tender%20Bundle.pdf

[20] See ‘Death Certificate’ dated 17 January 2000: ‘Forensic Pathology Tender Bundle’ page 36 https://www.folbigginquiry.justice.nsw.gov.au/Documents/Exhibit%20H%20-%20Forensic%20Pathology%20Tender%20Bundle.pdf

[21] See ‘Death Certificate’ dated 17 January 2000: ‘Forensic Pathology Tender Bundle’ page 87 https://www.folbigginquiry.justice.nsw.gov.au/Documents/Exhibit%20H%20-%20Forensic%20Pathology%20Tender%20Bundle.pdf

[22] The authors could not locate a death certificate for Laura death in the comprehensive record of medical documents in the ‘Forensic Pathology Tender Bundle’. For the autopsy report, see ‘NSW Institute of Forensic Medicine Autopsy Report’ by Dr Allan Cala dated 13 December 1999: ‘Forensic Pathology Tender Bundle’ pages 166-177 https://www.folbigginquiry.justice.nsw.gov.au/Documents/Exhibit%20H%20-%20Forensic%20Pathology%20Tender%20Bundle.pdf

[23] Report of Professor Stephen Cordner dated 2015 page 83 (Annexure 1); see page 28 of Professor Cordner’s report for description of what constitutes SIDS (Category II).

[24] Report of Professor Stephen Cordner dated 2015 page 82 (Annexure 1).

[25] Report of Professor Stephen Cordner dated 2015 page 83 (Annexure 1).

[26] Report of Professor Stephen Cordner dated 1 March 2022 (Annexure 7); Report of Professor Johan Duflou dated 9 February 2022 (Annexure 6).

[27] Report of Professor Stephen Cordner dated 1 March 2022 page 2 (Annexure 7).

[28] Professor Cordner circulated the photomicrographs of Laura’s heart and provided the following description (he did not identify it was the Folbigg children): ‘This girl was 19 months old when she died. She had a runny nose for a couple of days. She was fed at 7 am, playing normally at about 11am. She then had a sleep and when her mother went to check on her around midday, she was not breathing. Pathologist gave the cause of death as unascertained. Apart from myocarditis, which the pathologist reported as being present, the autopsy was negative. I would be happy with myocarditis as the cause of death. Any comments on this, or on the myocarditis itself? Would appreciate feedback.’ See pages 76-77 of his 2015 report (Annexure 1).

[29] Report of Professor Stephen Cordner dated 2015 page 80 (Annexure 1).

[30] Report of Professor Stephen Cordner dated 2015 pages 80-81 (Annexure 1).

[31] Report of Professor Johan Duflou dated 13 February 2019 page 35 (Annexure 3); Report of Professor John Hilton dated 22 January 2019 page 2 (Annexure 4); Report of Professor Michael Pollanen 1 June 2015 page 5 (Annexure 2). 

[32] Report of Professor Stephen Cordner dated 1 March 2022 (Annexure 7); Report of Professor Johan Duflou dated 9 February 2022 (Annexure 6).

[33] Report of Professor Stephen Cordner dated 1 March 2022 page 2 (Annexure 7).

[34] Report of Professor Monique Ryan dated 15 March 2019 page 14 (Annexure 8).

[35] Report of Professor Monique Ryan dated 15 March 2019 page 15 (Annexure 8).

[36] Report of Professor Stephen Cordner dated 1 March 2022 page 6 (Annexure 7).

[37] Malene Brohus et al, ‘Infanticide vs. inherited cardiac arrhythmias’ (2021) 23(3) EP Europace 44: https://academic.oup.com/europace/article/23/3/441/5983835 (Annexure 9).

[38] Melissa J Landrum et al, ‘ClinVar: improving access to variant interpretations and supporting evidence’ (2018) 4(46) Nucleic Acids Research: https://pubmed.ncbi.nlm.nih.gov/29165669/

[39] See Annexure 19.

[40] See Annexure 18.

[41] Sue Richards et al, ‘Standards and guidelines for the interpretation of sequence variants: a joint consensus recommendation of the American College of Medical Genetics and Genomics and the Association for Molecular Pathology’ (2015) 17 Genetics in Medicine 405: https://doi.org/10.1038/gim.2015.30

[42]Malene Brohus et al, ‘Infanticide vs. inherited cardiac arrhythmias’ (2021) 23(3) EP Europace 44: https://academic.oup.com/europace/article/23/3/441/5983835 (Annexure 9).

[43]Sue Richards et al, ‘Standards and guidelines for the interpretation of sequence variants: a joint consensus recommendation of the American College of Medical Genetics and Genomics and the Association for Molecular Pathology’ (2015) 17 Genetics in Medicine 405: https://doi.org/10.1038/gim.2015.30

[44] Lia Crotti et al, ‘Calmodulin mutations and life-threatening cardiac arrhythmias: insights from the International Calmodulinopathy Registry’ (2019) 40(35) European Heart Journal 2964: https://www.folbigginquiry.justice.nsw.gov.au/Documents/Exhibit%20BU%20-%20Lia%20Crotti%20et%20al%20(2019).PDF

[45] Sue Richards et al, ‘Standards and guidelines for the interpretation of sequence variants: a joint consensus recommendation of the American College of Medical Genetics and Genomics and the Association for Molecular Pathology’ (2015) 17 Genetics in Medicine 405: https://doi.org/10.1038/gim.2015.30; Malene Brohus et al, ‘Infanticide vs. inherited cardiac arrhythmias’ (2021) 23(3) EP Europace 44: https://academic.oup.com/europace/article/23/3/441/5983835 (Annexure 9).

[46] See: https://www.ncbi.nlm.nih.gov/clinvar/variation/1327459/?new_evidence=true

[47] 2019 Inquiry ‘BW’ Exhibit: https://www.folbigginquiry.justice.nsw.gov.au/Documents/Exhibit%20BW%20-%20Response%20from%20Prof%20Vinuesa%20and%20Dr%20Arsov%20to%20supplementary%20report%20dated%2011%20July%202019.PDF

[48] ‘Of the three genetic variants the subject of differing conclusions as to classification between the Sydney and Canberra teams: a. In respect of the CALM2 variant found in Ms Folbigg, Sarah and Laura, I prefer the expertise and evidence of Professors Skinner and Kirk and Dr Buckley’: Inquiry Report page 340 [168]: https://www.folbigginquiry.justice.nsw.gov.au/Documents/Report%20of%20the%20Inquiry%20into%20the%20convictions%20of%20Kathleen%20Megan%20Folbigg.pdf

[49] Annexure 17.

[50] Malene Brohus et al, ‘Infanticide vs. inherited cardiac arrhythmias’ (2021) 23(3) EP Europace 44: https://academic.oup.com/europace/article/23/3/441/5983835 (Annexure 9).

[51] Sue Richards et al, ‘Standards and guidelines for the interpretation of sequence variants: a joint consensus recommendation of the American College of Medical Genetics and Genomics and the Association for Molecular Pathology’ (2015) 17 Genetics in Medicine 405: https://doi.org/10.1038/gim.2015.30

[52] Sue Richards et al, ‘Standards and guidelines for the interpretation of sequence variants: a joint consensus recommendation of the American College of Medical Genetics and Genomics and the Association for Molecular Pathology’ (2015) 17 Genetics in Medicine 405: https://doi.org/10.1038/gim.2015.30; Steven M Harrison and Heide L Rehm, ‘Is ‘likely pathogenic’ really 90% likely? Reclassification data in ClinVar’ (2019) 11(1) Genome Medicine: https://pubmed.ncbi.nlm.nih.gov/31752965/; Sian Ellard et al, ‘ACGS Best Practice Guidelines for Variant Classification in Rare Disease 2020’ (2020) Association for Clinical Genomic Science: https://www.acgs.uk.com/media/11631/uk-practice-guidelines-for-variant-classification-v4-01-2020.pdf; Alice Garrett et al, ‘Combining evidence for and against pathogenicity for variants in cancer susceptibility genes: CanVIG-UK consensus recommendations’ (2021) 58(5) Journal of Medical Genetics 297: https://pubmed.ncbi.nlm.nih.gov/33208383/; Sharon E Plon et al, ‘Sequence variant classification and reporting: recommendations for improving the interpretation of cancer susceptibility genetic test results’ (2008) 29(11) Human Mutation 1282: https://pubmed.ncbi.nlm.nih.gov/18951446/

[53] Sue Richards et al, ‘Standards and guidelines for the interpretation of sequence variants: a joint consensus recommendation of the American College of Medical Genetics and Genomics and the Association for Molecular Pathology’ (2015) 17 Genetics in Medicine 405: https://doi.org/10.1038/gim.2015.30; NSW Government, BRCA1 or BRCA2 – risk management (female): https://www.eviq.org.au/cancer-genetics/adult/risk-management/3814-brca1-or-brca2-risk-management-female; Nancie Petrucelli, Mary B Daly and Tuya Pal, ‘BRCA1- and BRCA2-Associated Hereditary Breast and Ovarian Cancer’: https://www.ncbi.nlm.nih.gov/books/NBK1247/; Sana M Al-Khatib et al, ‘2017 AHA/ACC/HRS Guideline for Management of Patients With Ventricular Arrhythmias and the Prevention of Sudden Cardiac Death: A Report of the American College of Cardiology/American Heart Association Task Force on Clinical Practice Guidelines and the Heart Rhythm Society’ (2018) 72(14) Journal of the American College of Cardiology 91: https://pubmed.ncbi.nlm.nih.gov/29097296/; Marielle Alders, Hennie Bikker and Imke Christiaans, ‘Long QT Syndrome’: https://www.ncbi.nlm.nih.gov/books/NBK1129/

[54] Sue Richards et al, ‘Standards and guidelines for the interpretation of sequence variants: a joint consensus recommendation of the American College of Medical Genetics and Genomics and the Association for Molecular Pathology’ (2015) 17 Genetics in Medicine 405: https://doi.org/10.1038/gim.2015.30; Andrew P Read and Dian Donnai, ‘What can be offered to couples at (possibly) increased genetic risk?’ (2012) 3(3) Journal of Community Genetics 167: https://pubmed.ncbi.nlm.nih.gov/22760671/

[55] The dogma that ‘one infant death is a tragedy, two is suspicious and the third death is murder unless proven otherwise’ see pages 42-44 of this document for a discussion on ‘Meadow’s Law’.

[56] Evidence Act 1995 (NSW)

137   Exclusion of prejudicial evidence in criminal proceedings

In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.

[57] Evidence Act 1995 (NSW)

135   General discretion to exclude evidence

The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might –

(a) be unfairly prejudicial to a party, or

(b) be misleading or confusing, or

(c) cause or result in undue waste of time.

See also section 136.

[58] Report of Professor Stephen Cordner dated 1 March 2022 page 4 (Annexure 7).

[59] Report of Professor Stephen Cordner dated 1 March 2022 page 5 (Annexure 7).

[60] There was some debate about the accuracy of when Ms Folbigg arose in the middle of the night, see Submission on Craig Folbigg’s evidence dated 8 September 2021 (Annexure 14).

[61] Commissioner Blanch in his report continually refers to his finding that the children could have died from ‘asphyxia’ or an ‘asphyxiating’ event which is couched in the form of a cause of death: https://www.folbigginquiry.justice.nsw.gov.au/Documents/Report%20of%20the%20Inquiry%20into%20the%20convictions%20of%20Kathleen%20Megan%20Folbigg.pdf

[62] For example, he said: ‘On the medical evidence in isolation, I find that it was possible that Patrick’s death was attributable to encephalopathy in his brain in the sense that the encephalopathy caused a seizure, which in turn caused death. I also find that it was reasonably possible that Patrick’s death was caused by an asphyxial event, by which I mean an event leading to obstruction of his airways, and which in context was some obstruction from a cause other than a seizure’: Inquiry Report page 478 [75]; ‘On the medical evidence in isolation, I find that it is reasonably possible that Sarah’s death was caused by an asphyxial event, by which I mean an event leading to obstruction of her airways, including smothering’: Inquiry Report page 479 [78]; ‘On the medical evidence in isolation, I find that it is a reasonable possibility the myocarditis found in Laura’s heart at autopsy was fatal. It is also reasonably possible that her death was caused by an asphyxial event, by which I mean an event leading to obstruction of her airways, including smothering’: Inquiry Report page 479 [81]: https://www.folbigginquiry.justice.nsw.gov.au/Documents/Report%20of%20the%20Inquiry%20into%20the%20convictions%20of%20Kathleen%20Megan%20Folbigg.pdf

[63] Report of Professor Stephen Cordner dated 2015 pages 6-7 (Annexure 1).

[64] Report of Professor Stephen Cordner dated 2015 page 40 (Annexure 1).

[65] Report of Professor Stephen Cordner dated 2015 pages 41-42 (Annexure 1).

[66] Report of Professor Stephen Cordner dated 2015 page 40 (Annexure 1).

[67] Report of Professor Stephen Cordner dated 2015 page 42 (Annexure 1).

[68] Report of Professor Stephen Cordner dated 2015 pages 42-45 (Annexure 1).

[69] Report of Professor Stephen Cordner dated 2015 page 47 (Annexure 1).

[70] Report of Professor Stephen Cordner dated 2015 page 46 (Annexure 1) (emphasis added).

[71] ‘The Prosecutor’s formulation, the one used in his questions, and accepted by Dr Cala, that each of the Folbigg children died of an “acute catastrophic asphyxiating event”, is a nullity. The prosecutor was using a technically meaningless phrase, and one used in questions to the other doctors as well’: Report of Professor Stephen Cordner dated 2015 page 48 (Annexure 1).

[72] Report of Professor John Hilton dated 22 January 2019 page 2 (Annexure 4).

[73] Report of Professor Johan Duflou dated 13 February 2019 page 38 (Annexure 3).

[74] Report of Professor Johan Duflou dated 13 February 2019 pages 42-43 (Annexure 3).

[75] “Catastrophic asphyxial event”; “catastrophic asphyxiating event”; “acute asphyxial event”;”acute asphyxiating event”; “asphyxial episode”; “asphyxiating episode”.

[76] Report of Professor Stephen Cordner dated 2015 page 51 (Annexure 1).

[77] Inquiry Report page 473 [28]: https://www.folbigginquiry.justice.nsw.gov.au/Documents/Report%20of%20the%20Inquiry%20into%20the%20convictions%20of%20Kathleen%20Megan%20Folbigg.pdf

[78] Inquiry Report page 474 [32]: https://www.folbigginquiry.justice.nsw.gov.au/Documents/Report%20of%20the%20Inquiry%20into%20the%20convictions%20of%20Kathleen%20Megan%20Folbigg.pdf

[79] Inquiry Report page 474-5 [38]: https://www.folbigginquiry.justice.nsw.gov.au/Documents/Report%20of%20the%20Inquiry%20into%20the%20convictions%20of%20Kathleen%20Megan%20Folbigg.pdf

[80] Inquiry Report page 475 [39] [40] [41]: https://www.folbigginquiry.justice.nsw.gov.au/Documents/Report%20of%20the%20Inquiry%20into%20the%20convictions%20of%20Kathleen%20Megan%20Folbigg.pdf

[81] Report of Professor Stephen Cordner dated 2015 page 49 (Annexure 1) (emphasis added).

[82] Report of Professor Stephen Cordner dated 2015 page 51 (Annexure 1).

[83] Report of Professor Stephen Cordner dated 2015 page 53 (Annexure 1).

[84] Report of Professor Stephen Cordner dated 2015 page 52 (Annexure 1).

[85] Report of Professor Johan Duflou dated 13 February 2019 page 38 (Annexure 3).

[86] Trial Transcript 1 April 2003 page 32: https://www.folbigginquiry.justice.nsw.gov.au/Documents/Amended%20Exhibit%20F.pdf

[87]Professor Michael Pollanen, forensic pathologist, in a review of Professor Cordner’s report states: ‘[i]n logic, if two sets of propositions are united and one set contains a proposition P and the other set contains a proposition not-P, then a contradiction arises. The united set is inconsistent If no contradiction emerges, then the two sets are “consistent with” each other. In forensic pathology, if “consistent with” is used in this manner (i.e., indicating the absence of a non-contradictory statement), then there is no problem. For example, “a negative autopsy is consistent with asphyxia” is true and “a negative autopsy is consistent with a natural death” is true. However, “consistent with” is frequently misunderstood by legal minds and jurors to imply: corroborative, supportive, or indicative. This is not necessarily correct. Thus, it is often best to avoid “consistent with’”, see page 2 of his report dated 1 June 2015 (Annexure 2). 

[88] Report of Professor John Hilton dated 22 January 2019 pages 1-2 (Annexure 4).

[89] Report of Professor Michael Pollanen dated 1 June 2015 (Annexure 2).

[90] Report of Professor Stephen Cordner dated 2015 page 57 (Annexure 1).

[91] Report of Professor Stephen Cordner dated 2015 page 58 (Annexure 1).

[92] Inquiry Report pages 131-140: https://www.folbigginquiry.justice.nsw.gov.au/Documents/Report%20of%20the%20Inquiry%20into%20the%20convictions%20of%20Kathleen%20Megan%20Folbigg.pdf

[93] This dogma is said to originally come from American pathologists Dominick DiMaio and Vincent DiMaio. The theory was stated by Meadow in his book ABC of Child Abuse (Wiley Publishing, 1997).

[94] Including the cases of Sally Clark and Angela Cannings in the United Kingdom.

[95] See General Medical Council v Meadow, [2006] EWCA Civ 1390. See also the report of Professor Philip Dawid in which he labelled the statistical evidence by Roy Meadows as ‘highly misleading and prejudicial’ in his report, Expert report for Sally Clark Appeal:  https://www.statslab.cam.ac.uk/~apd

[96]‘As far as I am aware there never been three or more deaths from SIDS in the one family anywhere in the world…’: statement of Susan Mitchell Beal dated 8 December 1999 page 5. See also oral evidence, Trial Transcript 5 May 2003 page 1136 lines 50-56: https://www.folbigginquiry.justice.nsw.gov.au/Documents/Amended%20Exhibit%20F.pdf

[97] See S M Beal and H K Blundell, ‘Recurrence incidence of sudden infant death syndrome’ (1988) 63(8) Archives of Diseases in Childhood 924, 927-928.

[98] Roger Byard and Susan Beal, ‘Munchausen Syndrome by Proxy: Repetitive Infantile Apnoea and Homicide’ (1993) 29 Journal of Paediatrics and Child Health 77.

[99] Gail Furness, Counsel Assisting the 2019 Inquiry, stated in a submission that Dr Beal did not believe the known cases of three or more deaths in the one family to which she referred, were SIDS deaths (presumably referring to in her paper in 1988) however, Dr Beal does not provide explanations of what she instead thought the deaths were due to. See, Counsel Assisting the Inquiry, ‘Submissions dated 17 May 2019: Chapter 6: Recurrence’ https://www.folbigginquiry.justice.nsw.gov.au/Documents/Counsel assisting Part 2 Chapter 6.pdf [140]-[141]. See 4 Trial Exhibit C (VD), Facsimile from Dr Susan Beal to ODPP (24 April 2003).

[100] R v Matthey [2007] 17 VR 222, 232 [69]. 

[101] ‘I would agree with the pathologist who said the first unexplained death in a family may be called SIDS, the second should be labelled undetermined, and the third is murder until proven otherwise’: Statement of Susan Mitchell Beal dated 8 December 1999 page 4.

[102] Statement of Susan Mitchell Beal dated 8 December 1999 page 4; Counsel Assisting records that Dr Beal ‘agreed that this formula [Meadow’s law] was “absolutely” a very significant part of her reasoning in the Folbigg case’ citing Trial Transcript 28 April 2003 page 986 line 54 to 987 line 24. ‘Submissions dated 17 May 2019: Chapter 6: Recurrence’ https://www.folbigginquiry.justice.nsw.gov.au/Documents/Counsel assisting Part 2 Chapter 6.pdf [141].

[103] Committal Proceedings 24 May 2002 (Magistrate Railton).

[104] R v Folbigg [2003] NSWCCA 17 [43].

[105] R v Matthey [2007] 17 VR 222.

[106] Inquiry into Pediatric Forensic Pathology in Ontario, Ministry of the Attorney General (2008) volume 3 page 415 (The Hon Stephen Goudge).

[107] Whenever a forensic pathologist in this case says it is possible that one or more of the Folbigg children was smothered, s/he must also say in the very same breath that

• there is nothing from a forensic pathology viewpoint to suggest that any of the children have been killed,
• it is surprising that in five alleged smothering events there are no signs of smothering,
• in Laura’s case there are good grounds for concluding that she was not smothered, and that
• from a medical viewpoint, there are identifiable natural causes of death for two of the children and natural causes – whether inherited or not, whether known or yet to be discovered- is a plausible explanation for the other two deaths and the ALTE. If the convictions are to stand, they must do so without the support of forensic pathology, and in Laura’s case at least, against the forensic pathology view’: Report of Professor Stephen Cordner dated 2015 page 91 (Annexure 1).

[108] Report of Professor Stephen Cordner dated 2015 page 59 (Annexure 1).

[109] Report of Professor Stephen Cordner dated 2015 page 68 (Annexure 1).

[110] See discussion on this point: Report of Professor Stephen Cordner dated 2015 page 68 (Annexure 1). See also Submission on Coincidence and Tendency Evidence in support of the Petition for Pardon of Kathleen Folbigg dated 2 March 2021, dated 3 August 2021 (Annexure 13).

[111] See discussion on the rate of SIDS v murder: Ray Hill, ‘Multiple sudden infant deaths – coincidence or beyond coincidence?’ (2004) 18(5) Paediatric Perinatal Epidemiology 320.

[112] Siri H Opdal and Torleiv O Rognum, ‘The Sudden Infant Death Syndrome Gene: Does it exist?’ (2004) 114(4) Paediatrics 506.

[113] Definition by Krous et al 2004 cited in Report of Professor Stephen Cordner dated 2015 page 27 (Annexure 1).

[114] Roger Byard, Sudden Death in the Young (Cambridge University Press, 2010) 560.

[115] Report of Professor Stephen Cordner dated 2015 page 32 (Annexure 1).

[116] Joanna J Garstang, ‘Recurrent sudden unexpected death in infancy: a case series of sibling deaths’ (2020) 105 Archives of Diseases in Childhood 945.

[117] Joanna J Garstang, ‘Recurrent sudden unexpected death in infancy: a case series of sibling deaths’ (2020) 105 Archives of Diseases in Childhood 945, 947.

[118] See report of Associate Professor David Butt dated 8 September 2021 (Annexure 24).

[119] Dr Michael Diamond in his report dated 16 April 2009 (Annexure  20) provides comments on this report at pages 24-26. He points out that Ms Garbutt’s report is devoid of context around Ms Folbigg’s trauma and was completed in the absence of a comprehensive psychological evaluation of Ms Folbigg. It also interprets the entries only as inculpatory in the absence of any consideration of alternate meanings.

[120] Report of Rozalinda Garbutt dated 4 February 2000 page 1 (Annexure 27).  

[121] Report of Rozalinda Garbutt dated 4 February 2000 page 1 (Annexure 27).

[122] Inquiry Transcript 29 April 2019 page 672 lines 35-45: https://www.folbigginquiry.justice.nsw.gov.au/Documents/FINAL%20-%20Transcript%20of%2029%20April%202019.pdf

[123] See Ms Folbigg’s evidence at the 2019 Inquiry in relation to her diaries on 29 and 30 April and 1 May 2019:  https://www.folbigginquiry.justice.nsw.gov.au/Pages/transcripts.aspx

[124] Report of Dr Kamal Touma dated 13 September pages 8-11 (Annexure 25).

[125] Report of Dr Sharmila Betts dated 18 April 2021 page 15 (Annexure 21).

[126] Inquiry Transcript 29 April 2019 pages 648-650: https://www.folbigginquiry.justice.nsw.gov.au/Documents/FINAL%20-%20Transcript%20of%2029%20April%202019.pdf 

[127] Inquiry Transcript 30 April 2019 page 716 lines 20-35: https://www.folbigginquiry.justice.nsw.gov.au/Documents/FINAL%20-%20Transcript%20of%2030%20April%202019.pdf

[128] Report of Dr Katie Seidler dated 23 February 2022 page 20 (Annexure 26).

[129] See expert reports 2-7 listed below on page 54.

[130] Inquiry Transcript 29 April 2019 page 654 line 40: https://www.folbigginquiry.justice.nsw.gov.au/Documents/FINAL%20-%20Transcript%20of%2029%20April%202019.pdf ; see also Inquiry Transcript of 30 April 2019: https://www.folbigginquiry.justice.nsw.gov.au/Documents/FINAL%20-%20Transcript%20of%2030%20April%202019.pdf

[131] Report of Dr Katie Seidler dated 23 February 2022 page 11 (Annexure 26). 

[132] See expert reports 2-7 listed below on page 54.

[133] Inquiry Transcript 30 April 2019 page 751 line 35, page 752 lines 15-25: https://www.folbigginquiry.justice.nsw.gov.au/Documents/FINAL%20-%20Transcript%20of%2030%20April%202019.pdf

[134] Report of Kamal Touma dated 13 September 2021 page 12 (Annexure 25).

[135] Report of Kamal Touma dated 13 September 2021 page 13 (Annexure 25).

[136] Report of Associate Professor David Butt dated 8 September 2021 page 5 (Annexure 24).

[137] Report of Associate Professor David Butt dated 8 September 2021 page 5 (Annexure 24).

[138] Inquiry Transcript 30 April 2019 page 757 line 10: https://www.folbigginquiry.justice.nsw.gov.au/Documents/FINAL%20-%20Transcript%20of%2030%20April%202019.pdf

[139] Report of Dr Katie Seidler dated 23 February 2022 page 11 (Annexure 26).

[140] Report of Associate Professor Janine Stevenson dated 3 September 2021 page 7 (Annexure 23).

[141] Report of Associate Professor David Butt dated 8 September 2021 page 4 (Annexure 24).

[142] Report of Kamal Touma dated 13 September 2021 page 15 (Annexure 25).

[143] Inquiry Transcript 29 April 2019 page 669: https://www.folbigginquiry.justice.nsw.gov.au/Documents/FINAL%20-%20Transcript%20of%2029%20April%202019.pdf; see also Inquiry Transcript 30 April 2019 pages 768-769: https://www.folbigginquiry.justice.nsw.gov.au/Documents/FINAL%20-%20Transcript%20of%2030%20April%202019.pdf

[144] Inquiry Transcript 30 April 2019 page 770 line 10: https://www.folbigginquiry.justice.nsw.gov.au/Documents/FINAL%20-%20Transcript%20of%2030%20April%202019.pdf

[145] Report of Dr Michael Diamond dated 16 April 2019 page 43 (Annexure 20).

[146] Report of Dr Sharmila Betts dated 18 April 2021 page 16 (Annexure 21).

[147] Report of Professor James Pennebaker dated 5 July 2021 page 11 (Annexure 22).

[148] Report of Associate Professor Janine Stevenson dated 3 September 2021 page 7 (Annexure 23).

[149] Report of Associate Professor David Butt dated 8 September 2021 page 4 (Annexure 24).

[150] Report of Associate Professor David Butt dated 8 September 2021 page 10 (Annexure 24).

[151] Report of Kamal Touma dated 13 September 2021 page 15 (Annexure 25).

[152] Report of Dr Katie Seidler dated 23 January 2022 page 14 (Annexure 26).