Folbigg Submission on Coincidence

In the Petition for Pardon of Kathleen Folbigg dated 2 March 2021, reference is made to Ms Folbigg’s convictions having been based ‘on the prosecution’s theory that she smothered all four children.’[i] This submission is made in support of the Petition, by focusing the fundamental errors that occurred at trial and on appeal regarding coincidence and tendency evidence.   

PART A

I          Introduction

Coincidence and tendency evidence allowed the death of each child to be joined and heard as one trial. The four cases could not have been proved beyond reasonable doubt if they had been tried separately.[ii] Each court (starting from the pre-trial hearing in 2002) unreservedly promoted the proposition that three deaths in a family is extraordinary, so much so it was considered impossible.[iii] In appeals to the Court of Criminal Appeal and the special leave application to the High Court, the judicial officers adopted this reasoning to support the dismissal of Ms Folbigg’s appeals.

The rarity of three or more SIDS deaths in the one family was the starting point for whether coincidence and tendency evidence could be used to prove all four children were smothered.[iv] This dangerous fiction set the foundation that effectively reversed onus of proof; Ms Folbigg was required to prove her innocence because the baseline proposition was that murder was the only reasonable explanation for the four infant deaths.[v] This was so despite a natural cause of death given for each child following autopsy.

There is often difficulty identifying a natural cause of death when an infant dies suddenly and unexpectedly.[vi] This does not mean, however, that a default position of murder should be, by inference, promoted by the prosecution.[vii] At trial, the proposition was that smothering could not be excluded, therefore the evidence demonstrated the commission of the offences. The hypothesis of smothering at trial was designed to encourage speculation by the jury rather than focusing on whether there was any evidence to support the contention that the Folbigg children were intentionally smothered. The Crown case theory that Ms Folbigg smothered her four children, without any direct evidence of smothering, should never have been advanced.[viii]

Death by unnatural causes was never ascribed by any of the experts who conducted the autopsies on the children, nor by those forensic pathologists who subsequently reviewed the post-mortems. It should be noted that this is not (and never has been) a case of four SIDS deaths. Only Caleb and Sarah were identified as SIDS deaths. In Ms Folbigg’s case, there are numerous examples in which experts, prosecutors and judges have appeared to have proceeded on the basis of a binary case – that it must be all SIDS deaths or all murder – despite identifiable causes given for Patrick and Laura Folbigg at trial. To require that the Folbigg children all have a unifying cause of death (or even a common genetic mutation), or the alternative is suffocation, defies logic and is plainly wrong.

Betts and Goodman-Delahunty have accurately summarised the erroneous reasoning which occurred at Ms Folbigg’s trial: ‘If autopsy investigations have not yielded physical evidence of external trauma or suffocation, there is no physiological or pathological basis for a medical expert to concede or to raise the possibility of inflicted suffocation. In Folbigg, however, this is precisely what a number of medical experts conceded or raised in the absence of external physical evidence of inflicted suffocation for each of the four Folbigg children. Further, as inflicted death or murder is less common than any known medical cause of death in infants, and this statistical difference was not rigorously pursued by the defence, there is a real risk that undue weight was given by the medical experts and jurors to the explanation of inflicted death.’[ix]

At trial, a lack of reported cases on three or more SIDS deaths in the same family was elevated to a status of objective truth despite data published reporting multiple infant deaths in one family, well before the trial in 2003.[x]  The blatant inaccuracy of this speculation was the foundation for the Crown’s coincidence and tendency evidence, and was used as a substitute for the lack of medical evidence of suffocation.[xi] The 2019 Inquiry acknowledged that literature (14 papers) existed before the trial which reported instances of three or more infant deaths in a family from natural causes.[xii]

Propositions or theories relating to the unlikelihood of multiple natural deaths in one family is another way of expressing the discredited ‘Meadow’s Law’: that one infant death is a tragedy, two is suspicious and third is murder until proven otherwise.[xiii] This creates a virtually irrefutable position that four infant deaths in the one family from natural causes is so impossible that murder is only reasonable conclusion. This blatantly incorrect reasoning was rejected in the successful appeal by Sally Clark[xiv] in the United Kingdom in April 2003 (and in other cases) and was criticised heavily by the British Royal Statistical Society in 2001.[xv] Despite the discrediting of the approach before Ms Folbigg’s trial commenced, Crown experts referenced Meadow’s Law for support when they offered suffocation as the cause of death or claimed that the deaths ‘were consistent with smothering.’ [xvi]

It should be noted that Dr Beal, Crown witness at trial, gave testimony 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.[xvii] Relevantly, she was co-author of an article in 1988 entitled ‘Recurrence 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.[xviii] 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.[xix] On this basis it can be assumed that that Dr Beal was in fact aware of instances of three or more infant deaths in the one family from natural causes, at trial. 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);[xx] however, Dr Beal does not provide explanations of what she instead thought the deaths were due to. Virtually the same evidence was given by Dr Beal in the case of Carol Matthey in Victoria (Matthey also was accused of murdering her four infants). Justice Coldrey found that Dr Beal ‘reasoned backwards to a probability that the other three children died by a non-accidental suffocation’ which he found to be wrong.[xxi]

Dr Beal quotes Meadow’s Law reasoning, verbatim, in her statement of 9 December 1999 in relation to the deaths of the Folbigg children.[xxii] She admitted she was “absolutely” influenced by Meadow’s Law in coming to the opinion that the Folbigg children had been smothered.[xxiii] Professors Herdson and Berry (Crown witnesses at trial) also gave evidence that they had never heard of a case of three or more infant deaths from the one family from SIDS, in their experience or in the literature. It can be reasonably assumed that Meadow’s Law also influenced their opinions in the Folbigg case. The opinions of Janice Ophoven were received at committal[xxiv] and used by appeal courts.[xxv] 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, which did not progress to trial. Justice Coldrey was critical of their evidence, which 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.[xxvi]

Below is an illustration of the incorrect reasoning adopted by judicial officers throughout Ms Folbigg’s case history:

II         Pre-trial – 2002/2003

1. Separate trials application

Prior to the trial commencing, Ms Folbigg applied to the Supreme Court to separate the counts on the indictment and thus have separate trials where a jury would be required to consider the evidence against her in relation to each death only. Wood CJ at CL dismissed the application for separate trials, citing ‘the infrequent incidence of SIDS’ and ‘the rarity of repeat incidents of SIDS and of unexplained infant deaths or ALTE’s within one family.’[xxvii] This evidence came directly from untested reports from Crown witnesses Professor Berry, Dr Cala, Dr Ophoven, Professor Herdson, Professor Ouvrier and Dr Beal.[xxviii] Wood CJ at CL held that expert witnesses should be permitted to give evidence relating to ‘multiple SIDS deaths and/or multiple unexplained deaths or ALTEs involving infants within any one family are even more infrequent.’[xxix] Unfortunately, the experts were wrong and the risk of recurrent SIDS increases with the first SIDS death.[xxx]

According to Wood CJ at CL, the untested reports of those experts who failed to identify known cases of three or more infant deaths in the one family from natural causes formed the ‘plank’ upon which the evidence was ultimately admitted. He identified the case as being circumstantial where medical evidence established the basis upon which other evidence could be considered. He stated:

‘The only point I am making is this really, as I understand it, is truly a circumstantial case where the medical evidence establishes a sufficient plank, as the Crown would submit, then look at remaining evidence, particularly the diaries.’[xxxi]

Wood’s identified that the Crown had to exclude natural causes of death, or other possible conditions, in order to achieve a conviction.[xxxii] From the above quote, it is clear that Wood’s considered the “medical evidence” (as advanced by the experts as to infrequency of SIDS) as fundamental to the consideration of whether or not coincidence and tendency evidence should be admitted. Without cogent medical evidence, the coincidence and tendency evidence would not have passed the significant probative value test, at least as applied by his Honour. Plainly, if the expert evidence which was the basis for the advancement of the cases was wrong, then Wood’s assessment of the admissibility of coincidence and tendency evidence was also wrong.

His Honour Wood combined the following:

1. ‘the considerable qualifications of the experts, whose views are to be tendered’;
2. the ‘context in which the deaths occurred’ meaning the coincidence particulars (as outlined below);
3. the ‘thought processes disclosed by the accused in her diaries’ where stress is revealed; and
4. the husband’s evidence

These points in combination allowed for the admission of the evidence.[xxxiii] In his view, the combination was required to give substantial probative value such that the prejudicial effect of the evidence could be overcome. The logical consequence of this approach is that in the event of the failure of any one of the elements he listed as requirements for admissibility, the threshold was not met. The expert evidence was extremely flawed and the particulars of the deaths were nothing more than ordinary and often misstated. In these circumstances alone, leaving aside the diaries and evidence of Craig Folbigg, the coincidence and tendency evidence should have never been admitted.

A. Appeal to Court of Criminal Appeal against dismissal of separate trials application

The Court of Criminal Appeal (CCA) dismissed Ms Folbigg’s separate trial appeal in 2003. Hodgson JA (with Sully and Buddin JJ agreeing) cited the same reasons as Wood CJ at CL in support of the dismissal. He stated:

‘Furthermore, my own view is that, on following that course in relation to each count, there would be a deficiency of proof of guilty in relation to each count without evidence concerning the other children, but that the additional evidence concerning the other children would leave no rational view consistent with innocence in relation to the particular count being considered.  I say so essentially for the reasons given by the primary judge, especially the extreme improbability of four such deaths and one ALTE occurring to children in the immediate care of their mother, with asphyxiation being a substantial possibility and no other cause of death being anything more than a substantial possibility, without the mother having contributed to any of those deaths, particularly in the light of the diary entries referred to by the primary judge.’[xxxiv] (emphasis added)

Yet again, we see Meadow’s Law reasoning informing judicial opinion (see above emphasis). The court acknowledged that the Crown could not prove each case beyond reasonable doubt without the use of coincidence and tendency evidence. In effect, the CCA adopted the reasoning of Wood CJ at CL to allow coincidence and tendency evidence through a generalised proposition from some medical experts.

B. Application for special leave to the High Court

In 2003, the High Court heard a special leave application for a stay over the refusal of the CCA to grant separate trials. Justice McHugh was the only judge to hear the leave application and he relied on the decision of the CCA to deny the stay application.[xxxv]

III       The Trial – 2003

Ms Folbigg’s trial commenced before Barr J. His Honour ruled that medical experts who had relevant practical and research experience were permitted to give evidence of their knowledge of there not having been any case of three or more deaths attributed to SIDS within the same family reported in the literature or observed in their own experience.[xxxvi] He expressly permitted the evidence of Professor Berry who had stated he had no knowledge of four deaths in the same family due to natural causes, and that it was unprecedented.[xxxvii]

Crown prosecutor, Mark Tedeschi, conceded that he needed to meet every conceivable possibility as to cause of death.  He stated:

‘As we have stated in our written submissions, we have to meet every conceivable possibility, namely that all four children were SIDS or that each of them died from natural causes that have been identified. The other four conditions: floppy larynx, myocarditis, epilepsy and uvula, and encephalitis for that matter – the five conditions – plus SID’s, and any combination thereof.’[xxxviii]

Tedeschi instead of negativing natural causes for each of the children used coincidence reasoning as a substitute to invite the jury to conclude that all four children had been smothered. [xxxix]

The first part of the reasoning required doctors to decide whether there could be more than three deaths in a family even if they had not been involved in determining cause of death in any of the cases. In every case in which a death occurs, at least in Australia, the treating doctor or a forensic pathologist, determines the cause of death. In the Folbigg case, the court relied upon experts who, except for Dr Cala and Professor Hilton, had not examined or treated the deceased children at any time.

The Crown was not able to prove that the deaths were not the result of natural causes. It relied on speculation by its expert witnesses and improper submissions to the jury.[xl] The approach is most clearly shown by Tedeschi, who when referring to natural causes of death stated in his closing address: ‘Well, yes, ladies and gentlemen, I can’t disprove anything of that, but one day some piglets might be born from a sow, and the piglets might come out of the sow with wings on their back, and the next morning Farmer Joe might look out a kitchen window and see these piglets flying out of his farm. I can’t disprove that either. I can’t disprove that one day that some piglets might be born with wings and that they might fly.’[xli] The Crown was aware he could not prove each child died from manual suffocation, so he instead relied on the improbability of the four deaths together. He was in fact required to negate natural causes in order to prove his case beyond reasonable doubt,[xlii] which he earlier acknowledged. He did not prove the case beyond reasonable doubt.

IV        Court of Criminal Appeal – 2005

In 2005 the CCA considered a number of grounds of appeal including ‘the learned trial Judge erred in his directions as to the use the Jury could make of coincidence and tendency evidence.’[xliii]This point of appeal did consider whether coincidence and tendency evidence should have been admitted. The court found that the jury had been properly instructed.[xliv]

Sully J (with Dunford and Hidden JJ agreeing) stated their understanding of why the coincidence and tendency evidence was admitted:

‘…the whole point of both the tendency and coincidence evidence was, precisely, to help show that each death was not an accident; and to help, as well, to show that, if the jury was satisfied that the appellant had in fact caused a particular death, then any such causative death had been accompanied by the intent appropriate to the crime of murder.’[xlv]

The defence never raised the possibility of an accident in any of the cases. The use of coincidence and tendency evidence was simply to allow the jury to reason from one death to the next if they determined any one of them had been manually suffocated by Ms Folbigg. Evidence of this type is clearly highly prejudicial in every case in which it is used; particularly so when there is no pathological evidence to suggest manual smothering and instead only a generalised proposition that four infant deaths in the one family from natural causes is too rare to be possible.

V         High Court – 2005

 Following the CCA decision in 2005, a special leave application was made to the High Court. There were three judges hearing the leave application and it was refused. McHugh ACJ made some observations about the cogency of the similar facts surrounding the deaths of the four children:

‘You have to look at the positive similarities.  Two deaths occurred during the day, two deaths and the acute life-threatening event occurred in the early hours of the morning.  In each case the applicant was alone with the child, the child ceased breathing, the husband was either absent or asleep and there was no clear, natural cause of death and all the children showed signs that were consistent with smothering with a pillow.’[xlvi]  

It should be noted that there was no evidence that suggested that the children were smothered by a pillow (or smothered, at all).

VI        Inquiry – 2019  

Reginald Blanch, Commissioner of the 2019 Inquiry, made the following findings in respect of the medical evidence about the death of the children:

1. Caleb: ‘Taking into account all the medical evidence available to me, there remains no identified natural (including genetic) cause of Caleb’s death. Death from unnatural causes cannot be excluded. Most medical experts considered that the death could have been the result of an asphyxiating event. No medical expert has excluded asphyxia or smothering as a possible cause of Caleb’s death.’[xlvii]
2. Patrick: ‘I find on the available medical evidence that it is possible that the cause of Patrick’s death on 13 February 1991 was a seizure or similar event related to encephalopathy in his brain. I find further on the available medical evidence that it is reasonably possible that his death was caused by an asphyxiating event, meaning an event leading to obstruction of his airways and which includes deliberate smothering. The answer to the question of which of these it was lies not in the medical evidence in relation to Patrick, but in a consideration of a number of different aspects of the evidence in this case.’[xlviii]
3. Sarah: ‘I find on the available medical evidence that it is only conjecture that Sarah’s death on 30 August 1993 was naturally caused by obstruction of her airways associated with her uvula. I find further on the available medical evidence that it is reasonably possible that her death was caused by an event leading to obstruction of her airways by some other cause, which includes deliberate smothering.’[xlix]
4. Laura: ‘I find on the available medical evidence that myocarditis was a possible cause of Laura’s death. On the available medical evidence it is also reasonably possible that her death was caused by an event leading to obstruction of her airways, which includes deliberate smothering.’[l]

Commissioner Blanch does not make a finding in respect of the causes of death. Albeit framed another way, Commissioner Blanch adopts the same position as the courts in Ms Folbigg’s case history: smothering cannot be excluded, ergo it is smothering. The above conclusions in respect of each of the children are particularly concerning given Professors Cordner, Hilton and Dulfou were in consensus about natural causes of death of the children. They gave an identifiable, medical natural cause of death for each child.  Commissioner Blanch stated: ‘the stronger a reliable opinion in this regard [on natural causes of death], the more likely there will be an inference consistent with innocence reasonably open on the evidence.’[li] This statement must mean that Commissioner Blanch does not consider the evidence of Australia’s leading forensic pathologists, Professors Cordner, Hilton and Duflou, to be reliable.

As has recently been reaffirmed in the High Court in Pell v the Queen,[lii] the prosecution must exclude the reasonable possibility that the accused did not commit the offences. The Crown at trial, and the Commissioner of the 2019 Inquiry, could not exclude reasonable natural causes of death. The Commissioner does not provide any reasons for the rejection of reliable forensic and medical opinion. His lack of conclusions about the cause of death of each child should be ignored in preference to qualified experts who can identify a natural cause of death for each child.

PART B

 I          Coincidence Evidence

Coincidence evidence is an exception to the general principle at common law that evidence of other alleged criminal offending cannot be introduced in a trial.[liii] Coincidence evidence is now governed by a number of sections of the Evidence Act 1995 (NSW) (‘the Act’). Section 98 of the Act makes it inadmissible for two or more events to be used to prove a particular act or state of mind unless certain conditions are met. The first significant requirement is that the evidence be relevant.[liv] Relevance is a fundamental requirement for the admissibility of any evidence in a criminal trial; it must be capable of effecting a fact in issue going to one of the elements of the offence. Of greater significance in determining the admissibility is s 98(1)(b) of the Act which states: ‘the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.’ This is the same test for tendency evidence.[lv] The trial judge needs to make an assessment of the probative value based on the assumption that the jury will accept the evidence.[lvi]

In Ms Folbigg’s case, the assumption was that the jury would accept the 18 particulars (listed below) in order to arrive at the overarching reasoning as proposed by the Crown (see i-iv below). In fact, all the courts which dealt with Ms Folbigg’s case in relation to admissibility, went beyond the requirement of the section and included matters beyond its scope. For example, the particulars listed in the schedule of the coincidence notice need to be related to the respective similarities in the alleged offending in which to place the crimes beyond a coincidence, and point to the identity of the offender. In Ms Folbigg’s case, the notice listed a number of similarities which are apparently common to the deaths of all four of the children (albeit some are incorrect; see below). The coincidence particulars, however, do not incorporate the general position that it is extremely rare to have four natural deaths in the one family. This could never form part of a coincidence notice because it is imprecise and not case specific. Nevertheless, this was a focus of Ms Folbigg’s trial and the Crown invited the jury to make findings using this evidence (see quote about pigs flying above). Appeal judges also fell into error and used this same reasoning to permit the admissibility of coincidence and tendency evidence. Cherry picked diary entries were also used to place the four deaths beyond a coincidence; however, these diary entries were not listed in the coincidence notice. 

The final step in determining the admissibility of coincidence and tendency evidence is the application of s 101 of the Act that required (at the time) that the evidence be excluded unless the probative value substantially outweighed the prejudicial effect on the defendant.[lvii] The evidence of rarity of three or more deaths in one family was only admissible if the trials were joined. The prejudicial effect of allowing evidence of expert’s knowledge/experience of three or more deaths in one family from natural causes effectively created a default position that murder was the only cause because the other alternative has never been seen or heard of before anywhere in the world. There was no substantial probative value in this evidence because asking very few experts to opine on whether they had seen three or more deaths in the one family from SIDS was flawed on the following basis: 

1. Experience: Asking experts if they have ever seen a case of three or more deaths in one family from SIDS is meaningless because they do not see the world’s representation of cases, or even that which is representative of their state in Australia. It cannot be concluded on the basis of this evidence that there are no known cases of three or more deaths in one family from SIDS or other natural causes.
2. Literature: It is now accepted that the experts who opined on the absence of known cases of three or more deaths in one family from SIDS in the literature were wrong.[lviii]

Section 101(2), as it existed at the time of trial, required the probative value substantially outweigh any prejudicial effect to the defendant. The current wording of 101(2) is: ‘tendency evidence about a defendant or, coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence outweighs the danger of unfair prejudice to the defendant’ (equivalent of s 137 of the Act). It is clear that the evidence about three or more deaths in the one family from SIDS as given by the experts at trial caused unfair prejudice to Ms Folbigg; the gravity of such being far worse since the Inquiry in 2019 acknowleged that this evidence was wrong. in In R v Suteski[lix] Wood CJ at CL (with Sully and Howie JJ agreeing) said the following about the meaning of unfair prejudice:

 As is now well established, the prejudice to the defendant of which each of s 135 and s 137 speak is not the simple fact that the evidence may advance the Crown case or weaken the defence case. Rather it means damage to the defence case in some unacceptable way, for example by provoking some irrational, emotional or illogical response, or by giving the evidence more weight than it truly deserves: R v Lisoff [1999] NSWCCA 364; and see also R v Lockyer (1996) 89 A Crim R 457 at 460, Papakosmas v The Queen (1999) 196 CLR 297 at para 91 and R v Serratore (1999) 48 NSWLR 101 (at 109). Dunford J there said that evidence is of this character, where it “.. has only a slight probative value, but which carries with it a probability that it will be misused by the tribunal of fact in a way logically unconnected with the issues in the case”.[lx]

117 There must be more than a hypothetical risk of it being unfairly prejudicial in this way – the risk must be a real one: R v GK (2001) 53 NSWLR 317 at 324.[lxi]

 The Crown asked the jury to reason in an unacceptable and illogical way; that Ms Folbigg smothered her children because the alternative (four natural deaths) has never been recorded anywhere. The incorrect introduction of this meaningless evidence also likely encouraged emotive reasoning on the part of the jury because of the gravity of the allegation of a mother killing her four children. It will never be known what the jury ultimately was persuaded by, but the unfair prejudice is patently clear. The human, emotive reaction (as referred to in the above quote) to this evidence by the jury could not be overcome by standard directions by the trial judge, no matter how clear or how well worded. [lxii] As was referenced in Sokolwski v Regina, it is likely that ‘the jury have so proceeded subconsciously [to take into account prejudicial evidence], even accepting that they would have tried to follow the directions given to them.’[lxiii]

II         Why the Coincidence and Tendency Evidence is Flawed

The tendency notice pursuant to s 97 of the Act stated ‘the substance of the “tendency” evidence which Prosecution intends to adduce is that the accused had a tendency to become stressed and lose her temper and control with each of her four children and then to asphyxiate them.’[lxiv] The prosecution relied on some evidence by Craig Folbigg and some cherry-picked diary entries to support the proposition. The judges who considered admissibility focused on coincidence evidence rather than tendency evidence; there is little judicial reasoning on this point.

The Crown relied on the coincidence evidence and provided a notice detailing that which they relied on.[lxv] There were 18 particulars accepted by courts as being those that demonstrate to the jury that the four deaths were incapable of being a coincidence. The prosecution asked the jury to conclude that the common feature surrounding the deaths of all four children was Ms Folbigg, and because of that, she must have smothered them all; however, the coincidence particulars and reasoning lack foundation. Each particular has been bolded and immediately underneath we provide our responses to demonstrate a lack of significant probative value.

III       Coincidence Reasoning Relied upon by the Crown at Trial

1. that each of the accused’s children died/had an ALTE (Apparent Life Threatening Event) in a similar way.
2. that each of the accused’s children died/had an ALTE from the same cause.
3. that the accused killed/caused an ALTE to each of the four children by asphyxiating them with the intent to kill or do GBH [grievous bodily harm] to them.
4. that the accused’s four children did not die from Sudden Infant Death Syndrome or any other illness, disease or syndrome.[lxvi]

The four points above are made on the proposition that the mechanism of murder was via smothering (in i. “similar way” in ii. “same cause” in iii. “asphyxiating them” in iv. “did not die from SIDS” meaning, smothering).

IV        Particulars Relied upon by the Crown at Trial

The first particular contained in the notice was in fact that the children were those of Kathleen and Craig Folbigg. Obviously this fact was not considered as particularly interesting.

The first particular identified by the courts to be probative was:

1. each child was under 2 years of age at the time of death or ALTE (and it may be noted, additionally, that three such deaths and one ALTE occurred in the first year of life).

This is a statement of fact and nothing more.

1.  Each death occurred at a time which is unusual for a SIDS event.

This particular is meaningless and wrong. The children all died at different times of the day/night:

• Caleb died at night (early hours of the morning; around 2.50am as recorded by Ms Folbigg; ambulance officers arrived at 2.59am).[lxvii]
• Patrick died in the morning (10.40am according to Dr Christopher Walker).[lxviii]
• Sarah died at night (early hours of the morning; around 1am according to Craig Folbigg’s evidence at trial; ambulance officers arrived at 1.30am).[lxix]
• Laura died in the day (ambulance officers arrived at 12.14pm).[lxx]

Patrick’s cause of death was attributed to asphyxia due to airway obstruction due to epileptic fits from an encephalopathic disorder of unknown cause (associated with blindness), as reported in his death certificate.[lxxi] Laura’s death has been attributed to florid myocarditis,^[lxxii] and further investigation have identified that Laura carried the likely pathogenic CALM2 mutation.^[lxxiii] Caleb and Sarah’s cause of death has been given by forensic pathologists as SIDS category 2,[lxxiv] although the latest evidence regarding Sarah as at November 2020 is that she died from a lethal cardiac arrhythmia due to having the CALM2 mutation.[lxxv] Caleb and Sarah died at night (early hours of the morning) which is within the timeframe common for SIDS.

2. Each death occurred in the child’s own cot or bed. AND

3. Each death or ALTE occurred during a sleep period.

Leading experts, Jhodie R Duncan and Roger W Byard, authors of SIDS – Sudden Infant and Early Childhood Death: The Past, the Present and the Future,[lxxvi] state the following:

‘The majority of SIDS deaths occur in association with a sleep period, with infants most often found dead in their cots.[lxxvii] There is, however, no association with any particular sleep period, with deaths attributed to SIDS occurring at any time of the day.’[lxxviii]

Again, at trial, the court was dealing with two SIDS deaths – Caleb and Sarah. Their deaths, at night during a sleep period and found in their cot, was well within what was known about SIDS deaths.

Additionally, these were young children who died at a time when they would normally be in a cot or bed. There is nothing unusual about children sleeping in their own beds. The particular also ignores the fact the children were infants and cared for at home by Kathleen Folbigg.

 4. Each child was last seen alive by the accused.

This is unremarkable because Kathleen Folbigg was the primary caregiver of the children. Craig Folbigg did not assist with the care of the children, particularly at night.

As noted by Coldrey J in the case of Carol Matthey he said: ‘As was made clear in Clark’s case, children of a young age will almost inevitably be in the presence of their mother as the principal carer. Consequently, this fact cannot, of itself, have any relevance or probative weight in determining a cause of death.’[lxxix]

5. Each child was found not breathing by the accused, and in relation to those who died in the night, she claimed to have observed from a distance, and in the dark, that they had stopped breathing.

 As above, this is unremarkable because Kathleen Folbigg was the primary caregiver of the children.

6. Only the accused was awake or present at the time when each child was found dead or not breathing.

Again, Kathleen Folbigg was the primary caregiver of the children and her finding the children dead is unremarkable.

7. there was, in each case, a short interval between the time when the child was last claimed to have been seen alive by the accused, and the time when he or she was found lifeless or not breathing properly.

The time interval in each case varies. In the case of Caleb, Ms Folbigg was keeping a meticulous record of Caleb’s feeding and sleeping (during the 19 days of his life). On the day of his death, he had an unsettled night being awake from midnight until 2am.[lxxx] Shortly after 3am, Mr Folbigg was awoken by Kathleen Folbigg screaming ‘my baby, there’s something wrong with my baby.’[lxxxi] The evidence is unclear on the time interval between when Ms Folbigg last saw Patrick, Sarah and Laura alive before they were found lifeless. After having lost one child, the fact that Ms Folbigg often checked on her children was not suspicious but rather commendable and indicative of a caring mother.

8.  in relation to the children who died in their cots or had an ALTE in the night, the accused had got up to go to the toilet, and in some cases had returned to bed, before getting up again and sounding the alarm.

This particular is both misleading and mischievous.

The Crown placed particular significance on Kathleen Folbigg going to the toilet when she found each child dead. He stated:

‘Now what the doctors will say is that, in the vast majority of cases where the SIDs deaths have been discovered by a parent, it is discovered in the morning because the window of opportunity to find a child moribund is so short between the cessation of breathing and the onset of death that we are talking about a matter of just a few minutes in the course of a whole night.  The coincidence, we would say, of the accused getting up to go to the toilet just at around the time or shortly after that time is such that the jury would conclude that it is not just a coincidence, but is a fact that supports the Crown case that these were homicides.’[lxxxii]

It is not a coincidence that Kathleen Folbigg would get up to go to the toilet at night. It is a common human experience. Ms Folbigg found only Caleb and Sarah at night. There is not any coincidence in going to the toilet on two occasions. It is not a coincidence that when she went to the toilet, she would check on the children, especially in circumstances where she had previously lost a child. It would be perfectly natural for her to check on her children.

9. The accused had failed to pick up or attempt to resuscitate any of the children after the discovery of his or her death or cessation of breathing (subject to her claim to have done so in relation to Laura).

This point is simply wrong and misleading, and no attempt should have been made to include it. The proviso added in respect of the resuscitation of Laura is contemptuous. The evidence that Ms Folbigg was attempting to resuscitate Laura comes from an ambulance officer.[lxxxiii] In the cases of Caleb, Patrick and Sarah, Mr Folbigg performed CPR on the children and told Kathleen Folbigg to call an ambulance.

Kathleen Folbigg rendered assistance by calling her husband in each case. Her husband then rendered assistance to the children to the extent he was able. It is quite clear that in that emergency, she deferred to him.

10. when each child was found he or she was warm to the touch.

This is incorrect. In the case of Caleb, there was disagreement between officers whether Caleb was warm or cold to the touch.[lxxxiv] This particular, therefore, cannot be claimed to apply to all the children.
Additionally, Professor Johan Duflou gave evidence to indicate that assessment of body temperature on the basis of feel is very unhelpful.[lxxxv]

11. There were no signs of any injury found on any child.

This is an important point because it supports Kathleen Folbigg’s position that she never harmed any of her children and did not kill them. The Crown position was that she had lost control and killed her children, so a lack of any injury does not lend logical support to the proposition that she smothered them. It is strikingly inconsistent with the claim of tendency that she would get stressed and lose her temper and control.

12. No major illness preceded the death or the ALTE in any of the cases.

Sudden and unexplained death is such by virtue that there are no major indications of illness before death.

The following illnesses/medical conditions preceded the death of the children:

1. Caleb had a diagnosis of laryngomalacia.[lxxxvi]
2. Patrick had epilepsy, brain damage and cortical blindness.[lxxxvii]
3. Sarah, four days before her death saw a general practitioner for a croupy cough and started a course of antibiotics (flucloxacillin).[lxxxviii]
4. Laura, two days before her death was treated for a respiratory infection with paracetamol and pseudoephedrine (a medication known to trigger cardiac arrhythmias).[lxxxix]

This particular is wrong.

12. Each of Caleb, Sarah and Laura gave every appearance of being normal and healthy before his or her death, as had Patrick before his ALTE.

See immediately above for details of the children’s health prior to death. This particular is wrong because they were not healthy prior to death. For example, Sarah and Laura’s treatments are a known trigger for cardiac arrhythmia in infants who possess the CALM2 mutation.[xc]

13. The sleep studies for each child were normal (save for Caleb, who by reason of being the first born was not the subject of any such study).

The sleep studies reflect the theory at the time that SIDS was caused by some respiratory anomaly that could be identified and treated. The evidence at the 2019 Inquiry demonstrated that scientific knowledge has advanced since that time and that respiration is only one possible factor that can trigger sudden death in infancy. As such, normal sleep results do not link the children in a coincidence way and are not applicable to Caleb Folbigg as he did not have a sleep study.

In addition, Patrick’s sleep studies were referred to as ‘simplistic’ using ‘primitive’ equipment.^[xci]

14. the tests for any inherited and/or biochemical disorder or metabolic abnormality were negative in each case.

Evidence at the 2019 Inquiry established that in about one third of cases a genetic cause cannot be found, even with the latest knowledge and technology.[xcii] This, however, does not mean there is not an underlying genetic cause. This is exemplified in the case of Sarah and Laura; it is now accepted that they have the CALM2 mutation which is a reasonable and likely cause of their deaths. The fact that no inherited and/or biochemical disorder or metabolic abnormality could be found at trial is not reflective of medical and scientific knowledge in 2003 and now.

This particular should not be relied upon as it is outdated and inaccurate. 

15.  the death or ALTE in each case, arose from an hypoxic event; the sleep monitors, which had been provided following the earlier deaths and ALTE, were not in use at the time of death in the case of Sarah and Laura.

When people die they suffer a hypoxic event. Hypoxia means a lack of sufficient oxygen to the body.[xciii] This is not remarkable and should never have been included as a particular supporting the proposition that Ms Folbigg smothered her children.

The hypoxic events were also linked to the use of the word ‘asphyxia’. In each case, the Crown attempted to equate asphyxiation with smothering as they did with the use of the word ‘hypoxic.’ This approach was heavily criticised by Professor Stephen Cordner, Australia’s leading forensic pathologist and a ‘world-class authority in his field.’[xciv] He stated ‘asphyxia is not a helpful word in forensic pathology, is not understood in a uniform way, is not a diagnosis, and is not diagnoseable. Yet the word is at the core of the main question asked by the Prosecution: did this / these children suffer “an acute catastrophic asphyxiating event?” If this question was intended to be a technical question in forensic pathology, it had no content and it 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.’[xcv]

16. The accused had shown acute irritation in relation to each child, or appeared to have been in a condition of stress, before the death or ALTE.[xcvi]

This is particularly important because the whole Crown case theory was that she became stressed and killed her children as a result. This is reflected in the tendency particularisation: Ms Folbigg would ‘become stressed and lose her temper and control with each of her four children, and then to asphyxiate them.’[xcvii]

Affidavits of Megan Donegan and Karren Hall were obtained by those representing Ms Folbigg at the 2019 Inquiry. These were provided to Counsel Assisting, Gail Furness, yet were not tendered. Ms Furness was responsible for the tender of all documentation at the Inquiry (further reinforced by unilateral redactions of material provided by Ms Folbigg’s representatives to Crown Solicitor, Amber Richards). These affidavits provided contemporaneous observations of Ms Folbigg at the time her children were alive and also after they died. They report Ms Folbigg being a loving mother, and also being deeply distressed when they died. The affidavits contradict the Crown position that she was prone to temper with the children and was unfeeling in her attitude towards the deaths of the children. Clearly, Ms Folbigg’s character was attacked at the trial and the 2019 Inquiry in her evidence over the course of three days. Observations by her friends at the relevant time to counter the suggestion she was prone to stress and temper and capable of murder. On this basis they should have been relevant to the Inquiry, as it had to be interested at arriving at the truth.

V         Conclusion as to Particulars

The whole purpose of the coincidence evidence as affirmed by Sully J[xcviii] was to show that Kathleen Folbigg intentionally murdered her children. Not one of the particulars, individually or taken together, could remotely support that contention. Therefore, the particulars above do not have significant probative value and could not have met the threshold requirement contained in s 98(1)(b) of the Act. It is noteworthy that the judges tasked with determining the admissibility of coincidence evidence did not consider each particular and how it, even regarding other evidence, they showed significant probative value. For example, the fact that Ms Folbigg (only caregiver) was the last to see the children alive.

The requirement for consideration of significant probative value includes evaluation of alternative explanations for the evidence other than that being sought to be adduced by the Crown. In DSJ v R; NS v R[xcix] Whealy JA made clear that:

‘…If the coincidence evidence, either by itself or having regard to other evidence in the Crown case, positively and forcefully suggested an explanation consistent with innocence, then the coincidence evidence could scarcely be regarded as important or of consequence in proving the fact or facts in issue. What is required is this: the trial Judge must ask whether the possibility of such an alternative explanation substantially alters his (or her) view as to the significant capacity of the Crown evidence, if accepted, to establish the fact in issue. Does the alternative possibility, in the Judge’s view, rob the evidence of its otherwise cogent capacity to prove the Crown’s case? If it does not, the trial judge may safely conclude that the evidence has significant probative value.’[c]

In Kathleen Folbigg’s case, the alternative explanation for the majority of the particulars is that she was the mother with sole caring responsibilities for the children. The remaining particulars are either wrong or inconsequential (as outlined above). The “other evidence” (to which regard was had) relating to three or more SIDS deaths in the one family has already been exhaustively covered in this submission. The cherry-picked diary entries added to the Crown narrative of smothering and were used to promote the proposition that the coincidence evidence had significant probative value. Taken alone, the diary entries could never have resulted in a conviction. Read as a whole, the diaries are nothing more than private writings of a woman who had experienced trauma and self-loathing; none of these point to, let alone prove, that she smothered Caleb, Patrick, Sarah and Laura over a 10 year period. There is no indication that any of the judicial officers read all the diary and journal entries, therefore they were not in a position to properly evaluate whether the diaries were relevant, had significant probative value or were unfairly prejudicial.

VI        Submission Conclusion

As is illustrated above, the coincidence and tendency evidence advanced by the Crown at trial, and subsequently approved in appeals, was flawed. This caused substantial prejudice to Ms Folbigg: she was required to prove her innocence because four deaths in one family from natural causes is so rare, it ought to be regarded as impossible. Ms Folbigg should never have had this onus placed on her and it poisoned every appeal and review of this case to date.

Dr Robert Cavanagh                                     Rhanee Rego

Barrister-at-law                                            Solicitor

3 August 2021

[i] Page 3.

[ii] ‘In the light of the circumstances mentioned, this is not a case dependant entirely upon the medical evidence.  Were it otherwise, then there could well have been a very real difficulty for the Crown in excluding natural causes, whether it be SIDS or the presence or the progression, of some physical defect or disease process, as a rational cause of death or of Patrick’s ALTE.’: R v Folbigg [2002] NSWSC 1127 [108] (Wood CJ at CL).

[iii] Examples discussed below starting from ‘II Pre-trial – 2002/2003’. At trial, Crown prosecutor Mark Tedeschi, asked expert witnesses if they had knowledge of three or more deaths in one family from SIDS either from the literature or their experience. The response was ‘no’ from Crown witnesses Dr Beal (at 5 May 2003 T1143.52-1144.2), Professor Herdson (at 1 May 2003 T1049.51-56, T1080.5-33, T1081.27-1082.21), Professor Berry (at 1 May 2003 T1066.36-1067.11), as well as defence experts Professor Byard (7 May 2003 T1222.42-46) and Professor Busuttil (at Exhibit H, Forensic pathology tender bundle, Report of Professor Anthony Busuttil (6 November 2002) p 5.). In the similar case of Angela Cannings (‘Cannings’) the Court cautioned: ‘We recognise that the occurrence of three sudden and unexpected infant deaths in the same family is very rare, or very rare indeed, and therefore demands an investigation into their causes. Nevertheless the fact that such deaths have occurred does not identify, let alone prescribe, the deliberate infliction of harm as the cause of death. Throughout the process great care must be taken not to allow the rarity of these sad events, standing on their own, to be subsumed into an assumption or virtual assumption that the dead infants were deliberately killed, or consciously or unconsciously to regard the inability of the defendant to provide some convincing explanation for these deaths as providing a measure of support for the prosecution’s case. If on examination of all the evidence every possible known cause has been excluded, the cause remains unknown.’: R v Cannings [2004] 1 WLR 2607, 2652–3 [177]–[179].

[iv] The decision to allow the counts to be heard in one trial has been described by Betts and Goodman-Delahunty the following way: ‘The legal decision to admit evidence regarding four deaths forced medical experts to consider the meaning of these events in one family. The medical experts conceded that they had not seen, nor could they find in the literature, a case documenting four deaths without a medical or natural cause. This hypothesis does not entertain the real possibility that separate, non-inflicted mechanisms were involved (such as subtle breathing/airway/apnoea issues, premature birth). It is not logically necessary to conclude that because a medical or natural account is unavailable, the cause must be inflicted death.’: Sharmila Betts and Jane Goodman-Delahunty ‘The case of Kathleen Folbigg: How did justice and medicine fare?’ (2007) 38 Australian Journal of Forensic Sciences 1, 20. Note that this passage was discussed by Coldrey J in R v Matthey [2007] 17 VR 222, 254.

[v] Tedeschi submitted that ‘it has never been recorded that the same person has been hit by lightning four times’: 13 May 2003 T1364.43-44. Trial judge, Barr J, said ‘SIDS deaths are rare in the community. There is no authenticated record of three or more such deaths in a single family. This does not mean, of course, that such events are impossible. It is an illustration of the rarity of deaths diagnosed as SIDS’ (emphasis added): 19 May 2003 T24-25. Tedeschi and Barr J clearly considered the evidence of three or more SIDS deaths from one family to be a focal point of the evidence.

[vi] The Court in Cannings cautioned that ‘What may be unexplained today may be perfectly well understood tomorrow. Until then, any tendency to dogmatise [that an absent natural explanation should be assumed unnatural] should be met with an answering challenge.’: R v Cannings [2004] 1 WLR 2607, 2613-14 [22].

[vii] Dr Rushton (consultant paediatric and peri-natal pathologist) in Cannings said ‘…current dogma is that an unnatural cause has been established unless it is possible to demonstrate an alternative natural explanation for these events’ was held by the court to be an ‘erroneous approach’: R v Cannings [2004] 1 WLR 2607, 2613 [18]. 

[viii] As the Court in Cannings cautioned: ‘If murder cannot be proved, the conviction cannot be safe. In a criminal case, it is simply not enough to be able to establish even a high probability of guilt.’: R v Cannings [2004] 1 WLR 2607, 2652–3 [177]–[179]. 

[ix] Sharmila Betts and Jane Goodman-Delahunty ‘The case of Kathleen Folbigg: How did justice and medicine fare?’ (2007) 38 Australian Journal of Forensic Sciences, 1, 14. Note that this passage was discussed by Coldrey J in R v Matthey [2007] 17 VR 222, 254.

[x] See, eg, John L Emery, ‘Families in which two or more cot deaths have occurred’, (1986) The Lancet 313; Eugene Diamond, ‘Sudden Infant Death In Five Consecutive Siblings’ (1986) 170(1) Illinios Medical Journal 33; Joseph Oren et al, ‘Familial Occurrence of Sudden Infant Death Syndrome and Apnea of Infancy’ (1987) 80(3) Pediatrics 355. See also the 14 papers reported in the Report of the Inquiry into the Convictions of Kathleen Megan Folbigg July 2019 (‘Inquiry Report’) pages 131-140.

[xi] Above n 2.

[xii] Inquiry Report pages 131-140. 

[xiii] Named after paediatrician, Sir Roy Meadow. He made famous the proposition (originally by DiMao and DiMao) ‘one infant death is a tragedy, two is suspicious and three is murder until proven otherwise.’ ‘Meadow’s Law’ was discredited in the successful UK appeal by Sally Clark, which quashed her conviction for murdering her two sons. Sir Roy Meadow’s statistical testimony regarding the low probability of Sally Clark’s sons having died of Sudden Infant Death Syndrome (SIDS) was held to be misleading (see General Medical Council v Meadow [2006] EWCA Civ 1390). Professor Philip Dawid’s expert statistical report for the appeal provides a concise explanation as to the flaws in Meadow’s Law style reasoning: see http://www.statslab.cam.ac.uk/~apd/. Other ways of expressing ‘Meadow’s Law’ is labelling four deaths in one family to be so rare to be virtually impossible, or an undue focus on rarity of recurrent infant deaths in the one family.

[xiv] R v Clark [2003] EWCA Crim 1020.

[xv] See Royal Statistical Society ‘Royal Statistical Society concerned by issues raised in Sally Clark case’ (News Release, 23 October 2001).

[xvi] See, eg, Report of Dr Janice Ophoven dated 1 December 2002 (starting at page 259) where she refers to Roy Meadow’s literature numerous times in support of her opinion that the Folbigg children had been smothered (Exhibit H – Forensic Pathology Tender Bundle on Inquiry website). See also Report of Dr Robert Ouvrier dated 4 November 2002 on page 287 in which he attaches an article from Roy Meadows (Exhibit H – Forensic Pathology Tender Bundle on Inquiry website). In a statement dated 8 December 1999 Dr Beal states: ‘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’(Exhibit H – Forensic Pathology Tender Bundle on Inquiry website).

[xvii] See Statement of Susan Mitchell Beal dated 8 December 1999, page 5: ‘As far as I am aware there never been three or more deaths from SIDS in the one family anywhere in the world…’. See also oral evidence: 5 May 2003 T1136.50-56.

[xviii] 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.

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

[xx] Counsel Assisting the Inquiry, ‘Submissions dated 17 May 2019: Chapter 6: Recurrence’ https://www.folbigginquiry.justice.nsw.gov.au/Documents/Counsel%20assisting%20Part%202%20Chapter%206.pdf [140]-[141]. See 4 Trial Exhibit C (VD), Facsimile from Dr Susan Beal to ODPP (24 April 2003).

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

[xxii] ‘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.

[xxiii] 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 transcript 28 April 2003 T986.54-987.24: Counsel Assisting the Inquiry (n 20) [141].

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

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

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

[xxvii] R v Folbigg [2002] NSWSC 1127 [107]; Contrary to this, it is known that the risk of recurrence of SIDS in a family increases tenfold after the first SIDS death, see, eg, Joanna J Garstang et al, ‘Recurrent sudden unexpected death in infancy: a case series of sibling deaths’ (2020) 105 Archives of Diseases in Childhood 945.

[xxviii] Again, the expert testimony given relating to no known instances of three or more reported cases of SIDS from the one family has proven to be wrong: see Inquiry Report Chapter 4.

[xxix] R v Folbigg [2002] NSWSC 1127 [88]-[91], [142].

[xxx] See, eg, Ray Hill, ‘Multiple sudden infant deaths – coincidence or beyond coincidence? (2004) 18 Paediatric and Perinatal Epidemiology 320.

[xxxi] 22 November 2002 T12.45.

[xxxii] ‘The Crown does have to prove in each case, I would have thought, that the death was not due to natural causes or, indeed, to any other possible conditions which have been identified’: 22 November 2002 T10.5 (Wood CJ at CL).

[xxxiii] R v Folbigg [2002] NSWSC 1127 [1130].

[xxxiv] R v Folbigg [2003] NSWCCA 17 [32].

[xxxv] Folbigg v The Queen [2003] HCATrans 589.

[xxxvi] Inquiry Report page 57 paragraph 47.

[xxxvii] Judgment on admissibility of evidence of Professor Berry and Professor Herdson: R v Folbigg (Supreme Court of New South Wales, Barr J, 24 April 2003) [1].

[xxxviii] 22 November 2002 T24.30.

[xxxix] 22 November 2002 T25.15.

[xl] Crown witnesses Professor Peter Herdson, Dr Susan Beal and Professor Peter Berry were asked by Tedeschi if they knew of a case of three or more SIDS deaths in the one family either in their experience or from the literature. They all gave evidence to say they had not. The 2019 Inquiry acknowledged this evidence was wrong, as there was literature existent prior to trial in which documented multiple cases of death from the one family, see Inquiry Report Chapter 4.

[xli] 13 May 2003 T1375.20.

[xlii] Pell v The Queen (2020) 268 CLR 123.

[xliii] R v Folbigg [2005] NSWCCA 23 [93].

[xliv] Ibid [103].

[xlv] Ibid [112].

[xlvi] Folbigg v The Queen [2005] HCATans 657, 661.

[xlvii] 2019 Inquiry Report page 186 paragraph 105.

[xlviii] 2019 Inquiry Report page 229 paragraph 332.

[xlix] 2019 Inquiry Report page 244 paragraph 429.

[l] 2019 Inquiry Report page 272 paragraph 604.

[li] 2019 Inquiry Report page 279 paragraph 645.

[lii] Pell v The Queen (2020) 268 CLR 123 [42].

[liii] Makin v The Attorney General for New South Wales [1894] AC 57.

[liv] Evidence Act 1995 (NSW) s 55; Smith v R 206 CLR 650.

[lv] Evidence Act 1995 (NSW) s 97(1)(b).

[lvi] Lodhi v R [2007] NSWCCA 360 [174]-[177]; R v Mundine [2008] NSWCCA 55 [33].

[lvii] Evidence Act 1995 (NSW) s 101(2) (as at 2003).

[lviii] Inquiry Report pages 131-140. 

[lix] [2002] NSWCCA 509.

[lx] R v Suteski [2002] NSWCCA 509 [116].

[lxi] Ibid [117].

[lxii] See Sokolowskyj v Regina [2014] NSWCCA 55 [53]; see also [55] citing Patel v The Queen [2012] HCA 29; 247 CLR 531 (French CJ, Hayne, Kiefel and Bell JJ): ‘Despite the fact that the trial judge gave careful and succinct directions as to some of the most prejudicial evidence, such as evidence of errors in surgery, it cannot be concluded that the directions were sufficient to overcome the prejudicial effects of the evidence, individually and collectively, upon the jury…’ ‘…The miscarriage of justice was grounded in the nature, significance and extent of the evidence to which the jury had been exposed.’

[lxiii] Sokolowskyj v Regina [2014] NSWCCA 55 [57].

[lxiv] Tendency Notice 24 October 2002.

[lxv] Coincidence Notice 24 October 2002.

[lxvi] Coincidence Notice 24 October 2002.

[lxvii] Statement of David Hopkins (1 October 1999) p 2; Statement of Richard Baines (29 October 1999) p 2; 3 April 2003 T141.51-52 (Hopkins); T148.31-34 (Baines). 3 April 2003 T142.12-20. Available via Exhibit H Forensic Pathology Tender Bundle on Inquiry website.

[lxviii] 9 April 2003 T473.45-50; Report of Professor Robert Ouvrier (28 October 2002) p 4. 

[lxix] Statement of Deborah Martin (8 October 1999) p 2; 11 April 2003 T566.58-567.9. Available via Exhibit H Forensic Pathology Tender Bundle on Inquiry website.

[lxx] Statement of Brian Wadsworth (15 September 1999) p 1; Statement of Harold Picton (15 September 1999) p 1; 15 April 2003 T699.53-700.14. Available via Exhibit H Forensic Pathology Tender Bundle on Inquiry website.

[lxxi] Reports of Professor Cordner undated (Exhibit C); Report of Professor Duflou dated 13 February 2019 (Exhibit L); Report of Professor Hilton dated 22 January 2019 (Exhibit O); Affidavit of Professor Hilton dated 13 November 2018 (Exhibit P). See also evidence at the inquiry: Professor Cordner at page 161 line 49 (20.03.19); Professor Duflou at page 162 lines 30-35 (20.03.19); Professor Hilton at page 147 lines 12-22 (20.03.19), page 164 lines 12-22 (20.03.19). Reports of Professor Monique Ryan dated 15 March 2019 (Exhibit AJ) and Report of Associate Professor Michael Fahey dated 30 March 2019 (Exhibit AK).

[lxxii] Reports of Professor Cordner undated (Exhibit C); Report of Professor Duflou dated 13 February 2019 (Exhibit L); Report of Professor Hilton dated 22 January 2019 (Exhibit O). See also evidence at the inquiry: Professor Cordner at page 276 line 6 (21.03.19); Professor Duflou at page 276 line 3 and lines 30-35 (21.03.19); Professor Hilton at page 275 line 50 (21.03.19). See also Dr Cala: “I think, with Laura, there’s undoubtedly myocarditis and I’ve said I can’t exclude that as being the cause of death” see page 281 line 20 (21.03.19).

[lxxiii] Malene Brohus, Todor Arsov, David A. Wallace, Helene Halkjær Jensen, Mette Nyegaard, Lia Crotti, Marcin Adamski, Yafei Zhang, Matt A. Field, Vicki Athanasopoulos, Isabelle Baro, Barbara B. Ribeiro de Oliveira-Mendes, Richard Redon, Flavien Charpentier, Hariharan Raju, Deborah DiSilvestre, Jinhong Wei, Ruiwu Wang, Haloom Rafehi,, Antony Kaspi, Melanie Bahlo, Ivy E. Dick, Sui Rong Wayne Chen, Matthew C. Cook, Carola G. Vinuesa, Michael Toft Overgaard and Peter J. Schwartz, ‘Infanticide  vs. inherited cardiac arrhythmias’ (2020) Europace 1-10. Available at: https://academic.oup.com/europace/advance-article/doi/10.1093/europace/euaa272/5983835 (‘Brohus et al 2020’)

[lxxiv] Caleb: Reports of Professor Cordner undated (Exhibit C); Report of Professor Duflou dated 13 February 2019 (Exhibit L); Report of Professor Hilton dated 22 January 2019 (Exhibit O). See also evidence at the inquiry in relation to Caleb: Professor Cordner at page 130 lines 23-35, page 132 line 5 (19.03.19), page 278 lines 12-16 (21.03.19); Professor Duflou at page 130 lines 8-14 (19.03.19), page 245 lines 25-31 (21.03.19); Professor Hilton at page 130 lines 18-20 (19.03.19), page 244 lines 7-16 (21.03.19). Sarah: Reports of Professor Cordner undated (Exhibit C); Report of Professor Duflou dated 13 February 2019 (Exhibit L); Report of Professor Hilton dated 22 January 2019 (Exhibit O). See also evidence at the inquiry in relation to Sarah: Professor Cordner at page 179 line 25 (20.03.19), page 280 line 15 (21.03.19); Professor Duflou at pages 179-180 (in full) (20.03.19), page 280 line 3 (21.03.19); Professor Hilton at page 280 line 7 (21.03.19). See also Dr Cala at page 280 line 11 (21.03.19).

See also Brohus et al 2020 in relation to Sarah’s death.   

[lxxv] Brohus et al 2020.

[lxxvi] Note: the entire text was tendered at the 2019 Inquiry by Counsel Assisting the inquiry (Exhibit D).

[lxxvii] SJ Standfast, S Jereb, D Aliferis and DT Janerich, ‘Epidemiology of SIDS in upstate New York’ in JA Tildon, LM Roeder and A Steinschneider (eds), Sudden infant death syndrome (New York: Academic Press, 1983).

[lxxviii] DR Peterson DR, ‘The epidemiology of sudden infant death syndrome’ in JL Krous and RD Bendell (eds) Sudden infant death syndrome: Medical aspects and psychological management (London: Edward Arnold, 1989) p. 3-16.

[lxxix] R v Matthey (2007) 17 VR 222, 257 [193].

[lxxx] R v Folbigg [2005] NSWCCA 23, 13.

[lxxxi] R v Folbigg [2005] NSWCCA 23, 14.

[lxxxii] 22 November 2002 T24.25.

[lxxxiii] 15 April 2003 T700.25.

[lxxxiv] See Inquiry Report page 182 paragraph 84.

[lxxxv] Transcript of the Inquiry 19 March 2019 T142.4.

[lxxxvi] See footnote 74 for relevant evidence relating to Caleb’s death.

[lxxxvii] See footnote 71. 

[lxxxviii] See footnote 74 for relevant evidence relating to Sarah’s death.

[lxxxix] See footnotes 72 and 73.

[xc] Brohus et al 2020.

[xci] See Statement of Dr David Cooper (6 December 1999) p 1; 14 April 2003 T585.25-615.6. Available via Exhibit H Forensic Pathology Tender Bundle on Inquiry website.

[xcii] 17 April 2019 T583.47-584.08.

[xciii] ‘Hypoxia is a state in which oxygen is not available in sufficient amounts at the tissue level to maintain adequate homeostasis this can result from inadequate oxygen delivery to the tissues either due to low bloody supply or low oxygen content n the blood (hypoxemia)’: https://www.ncbi.nlm.nih.gov/books/NBK482316/

[xciv] R v Matthey [2007] 17 VR 222, 238 [119]. 

[xcv] Report of Professor Cordner (undated) pages 6-7 (Exhibit C).

[xcvi] R v Folbigg [2002] NSWSC 1127 [62].

[xcvii] Tendency Notice 24 October 2002.

[xcviii] See above at page 10.

[xcix] [2012] NSWCCA 9.

[c] Ibid [78].