Real Life

Kathleen Folbigg exonerated as appeal court quashes convictions

Kathleen Folbigg's 20 year fight for justice has ended with NSW's top appeal court quashing her convictions.
Loading the player...

After fighting to clear her name for 20 years, the woman once described as “Australia’s worst female serial killer” has been exonerated as the NSW Court of Criminal Appeal quashed all of her convictions relating to the deaths of her four children. Kathleen Folbigg cried as the verdict was delivered on Thursday and embraced her supporters who have helped her fight for justice. Applause filled the court as NSW Chief Justice Andrew Bell handed down the historic decision.

In 2003, Kathleen Folbigg was jailed for murdering three of her infant children, and the manslaughter of a fourth. In 2021, more than 90 of the world’s leading scientists called for the case to be re-examined to take into account new evidence the Folbigg children might have died of natural causes.

A review was commissioned and in June, former Chief Justice of the Supreme Court, Tom Bathurst AC KC said he was “unable to accept … the proposition that Ms Folbigg was anything but a caring mother to her children.”
She was unconditionally pardoned and released from prison, but faced an anxious wait for the courts to decide whether to overturn her convictions. Today, that happened.

In 2021 The Weekly reported on the fight to clear Kathleen’s name in a deep investigation. Here is her story.

(This article was first published in the May 2021 issue of the magazine.)

Professor Carola Garcia de Vinuesa is among the scientists insisting new evidence should free killer Kathleen Folbigg.

On New Year’s Day 2021, there was an attack in the high security women’s wing of Australia’s biggest prison. An inmate busted into a cell where another prisoner with tired, hazel eyes and greying hair, was lying on her bunk, resting. After 18 years in protected custody, Kathleen Folbigg was being integrated in with the main population at the Clarence Correctional Centre, and some of her new cellmates were not happy about sharing their quarters with a convicted baby killer. The inmate seized Kathleen and beat her until she bled, warning that her friends would be targeted too if she didn’t leave. With bruises and a black eye, the 53-year-old was returned to protected custody, where her meagre freedoms were curtailed.

“But I’m safe (as I can be). So are my friends and that’s what really matters,” she wrote of the incident.

It had been almost two decades since Kathleen Folbigg was convicted of killing her four infant children, Caleb, Patrick, Sarah and Laura, and the hatred for her still ran deep. Though, as her letter states, she was not friendless. Kathleen has always had a group of devoted allies who believe she is innocent, and now some of the finest scientific minds in the world have added their voices to the chorus of support.

Rhanee Rego, one of the lawyers who has worked unpaid on the Folbigg case for five years, puts it simply: “It’s the worst miscarriage of justice in Australian history.”

Kathleen Folbigg walks to court in 2003.

“Kathleen never stood a chance. When all of this was said, and she couldn’t then prove her innocence, which was never her job anyway, she was doomed. And the courts kept applying the same reasoning time and time again,” Ms Rego tells The Weekly.

Kathleen’s backers say there is significant new evidence that the Folbigg babies died of natural causes, not the murder and manslaughter charges that put Kathleen behind bars. In a sensational development last month, 90 preeminent scientists sent a petition to the NSW Governor calling for Kathleen to be pardoned and freed. Two Nobel Laureates and three former Australians of the Year signed the document that says Kathleen Folbigg is suffering with psychological trauma and being physically abused while in prison on evidence that is “entirely circumstantial”.

“She has endured the death of her four children and has been wrongfully incarcerated because the justice system has failed her,” the petition says. “Ms Folbigg should be granted a pardon.”

They say genetic mutations identified in the Folbigg daughters likely caused their deaths. The Folbigg sons had a different genetic mutation that is not yet fully understood, in addition to medical conditions that pointed to natural deaths.

But the law disagrees. On March 24 — 22 days after the petition was filed — the NSW Court of Appeal handed down a ruling saying there was no doubt of Kathleen’s guilt. Kathleen’s pro bono lawyers had asked the appeal court to review the 2019 inquiry conducted by Justice Reginald Blanch, who concluded the inquiry reinforced the original verdict.

“The evidence which has emerged at the inquiry … makes her guilt of these offences even more certain,” Justice Blanch said. The appeal court agreed.

This provoked an unprecedented response from the Australian Academy of Science, which put out a statement saying: “There are medical and scientific explanations for the death of each of Kathleen Folbigg’s children.”

Kathleen outside court in 2003, the year she was convicted.

ANU Professor Carola Vinuesa, who has analysed the Folbigg infants’ DNA, went even further. “The conclusions were wrong. They were just inaccurate. All of them,” she said of the court’s ruling. “It’s not just about Kathleen Folbigg. It’s about: how can the court assess and tell what is credible and reliable evidence?” The stakes could not be higher.

On a farm in Glenreagh, NSW, one of Kathleen’s oldest friends and most steadfast supporters, Tracy Chapman, spent March 22 fielding calls from the media wanting to hear Kathleen’s response to the court’s decision. “It only strengthens our resolve to keep going until the truth is self-evident,” she said.

“People say to me, ‘Are you deluded?’ but I’ve always said to Kath, if I really thought you were guilty, I couldn’t be doing what I’m doing. A lot of people have accused me of supporting a killer but I don’t believe that for one second. Then, when you back that up with the evidence that says, ‘no evidence of smothering,’ they’re just going on circumstantial evidence and journaling,” Tracy tells The Weekly.

Kathleen’s story

Kathleen’s life had been tough from the start. In December 1969, when she was not yet two, her fathered stabbed her mother to death and Kathleen was declared a ward of the state. A doctor said it was likely Kathleen had been abused by her father. She was placed in the care of her mother’s sister, but her aunt complained that the small child was “virtually uncontrollable” and she was sent to a children’s home. When she was three, she was adopted by a Mrs and Mr Marlborough who ran a strict but harmonious household.

At school Kathleen formed close friendships with Tracy Chapman and Megan Donegan, who shared a love of motocross. She completed Year 12, but never sat her final exams after her life was disrupted by the discovery of the truth about her past.

WATCH: Has Kathleen Folbigg been wrongly convicted? Story continues after video.

Loading the player...

“It was music class. She was a little late,” Megan recalls. Kathleen had always thought she’d been adopted, but now finally the Marlboroughs had told her: “‘Oh no, we never adopted you. You’re a ward of the state and your father murdered your mother, which is why we’ve got you.’ I didn’t know what to say to her. She was never offered counselling. It wasn’t the done thing back then. It was the early to mid-’80s.”

Kathleen moved out of home. In 1985 she met a handsome man who she called her “knight in shining armour”. His name was Craig Folbigg. Within a few years they had bought a home in Newcastle, married and conceived their first child.

“When she made the decision to marry him, she was so happy. She’s got a family unit, potentially. He wants all the things she wants. They want the house. They want a big family. Family was so important to her,” Tracy says.

Caleb Folbigg was born pink and healthy on February 1, 1989. According to Craig’s court testimony, Kathleen was happy to be a mother. He described her as comfortable, calm and diligent. Around 1am on February 20, 1989, Kathleen fed Caleb and then put him down for the night. Craig was a heavy sleeper who worked full-time, and so left the night time care of their son to his wife. About 3am, he was awoken by a scream. Craig ran into Caleb’s room and found Kathleen standing at the end of the bassinet screaming. There was a small amount of blood and froth around Caleb’s mouth. Craig performed CPR until the ambulance arrived and took Caleb to Newcastle hospital, where he was declared dead. The cause of death was listed as SIDS.

Kathleen is escorted into a police vehicle.

On Caleb’s birthday, Craig wrote a letter to his son. “My love, I miss you terribly and love you deeply and will until my dying day.” His sadness and loss leaked onto the page. But by now they had a second child, Patrick, on the way. Like his brother before him, Patrick was born healthy, and Craig recalled that both he and Kathleen were “euphoric”. In October 1990, Kathleen again woke her husband in the middle of the night with a scream. Patrick survived a life-threatening incident after Craig performed CPR, but from that point on he suffered from seizures. He died on February 13, 1991. His death certificate said he died of asphyxiation caused by an epileptic fit.

Both Craig and Kathleen were devastated, but they grieved in different ways, which created tension in their marriage. By the end of 1991, Kathleen said she wanted to try to have another baby. Sarah was born in October 1992. In the months before the birth, Kathleen reconnected with her old friend Megan Donegan, who was also pregnant.

“We went to the same obstetrician. We had our appointments straight after each other,” Megan says. “Because we couldn’t reach our shoes, we’d tie each other’s shoes up.” After Sarah and Megan’s son Alex were born, their babies played together on the floor while the friends chatted.

“Kath found baby antics hysterical and she’s got the biggest, loudest laugh. I never saw her angry at the babies,” Megan says. She asked Kathleen and Craig to be Alex’s godparents. The two families often got together for barbecues.

Craig told the court that, around this time, he noticed a change in his wife. She was a “rigid, regimented type of person,” he said, and with Sarah “she just got sort of like harder about things”. Bedtime became a source of conflict, with Craig describing it as World War II every time Kathleen tried to put Sarah down to sleep. He recalled the night of August 30, 1993, when he heard Kathleen growling at Sarah as she tried to settle her. She told him to “f–k off” when he went in to check on them. He said, at Kathleen’s trial, that she came out of the room and “threw” Sarah at him, saying “you f***ing deal with her”. He said he’d never seen her behave like that before.

Craig was awoken in the middle of the night by a scream. He went into Sarah’s room and grabbed his daughter who was “all floppy” and warm, but not breathing. He started CPR and told Kathleen to call an ambulance. She sat outside the door screaming and crying. It was too late. Sarah’s cause of death was recorded as SIDS.

Four years passed. Laura was born on August 7, 1997. A few weeks later, Kathleen wrote in her journal about her new baby. “Scary feelings, I’ve realised I actually love her and have bonded with her, wish to protect her etc,. Maternal instinct is what they call it. I now know I never had it with the others.”

Kathleen in a polic interview room in 1997.

When Laura turned one, Craig and Kathleen threw a huge party. In February, Kathleen described feeling “constant worry about Laura”. Laura died on March 1, 1999.

“People always say that Kath never showed any emotion. Well, there was a wake at their house after Laura’s funeral and she asked me to go with her into Laura’s bedroom because she couldn’t cry in front of everyone,” Megan says. “I ended up a blubbering mess as well.

“No one can judge someone on how they grieve. It’s such a personal thing. She wasn’t cold, she was numb.”

The case against Kathleen

The cause of Laura’s death was listed as undetermined. Detective Constable Bernard Ryan attended the hospital and questioned Kathleen and Craig. Listening devices were planted in their home. Craig found a journal that he said made him want to vomit. He delivered it to the police who soon formed the view that Kathleen had systematically killed each of her children by smothering them. She was arrested and charged. Her now notorious diary entries became a key part of the prosecution case against her.

When she was trying to conceive Laura, Kathleen had written that she was feeling inadequate. “Feel as though its my fault. Think its deserved. After everything that’s happened. I suppose deserve to never have kids again.” A few days later she made the comment: “Obviously I am my father’s daughter.”

WATCH: Kathleen Folbigg Inquiry Recommended Over Children’s Deaths. Story continues after video.

Loading the player...

In January 1997 she wrote: “stress made me do terrible things”. And the following month she wrote: “My guilt of how responsible I feel for them all haunts me, my fear it will happen again haunts me. What sort of mother am I have I been — a terrible one, that’s what it boils down too – that’s how I feel and that is what I think I’m trying to conquer with this baby. To prove that there is nothing wrong with me, if other women can do it so can I.”

Kathleen’s foster sister, Lea Brown, told the court she saw Kathleen display “over the top” anger with Laura.

The jury found Kathleen guilty of three counts of murder, one count of manslaughter and one count of inflicting grievous bodily harm. As the verdict was read, Kathleen collapsed in the dock. “She sobbed and sobbed and protested her innocence. She kept saying, ‘I’m innocent, I’m not guilty,'” court chaplain Joyce Harmer told The Weekly in 2003.

Justice Graham Barr said Kathleen was psychologically damaged and “unable to shrug off the irritations of unwell, wilful and disobedient children” before jailing her for 40 years.

She became one of the most hated women in Australia, but her friends went to work to clear her name. Their arguments were that too much emphasis had been placed on the diaries, that there was no evidence of smothering, that pathologist Allan Cala had erred in listing Laura’s death as undetermined when there was evidence of myocarditis — inflammation of the heart. (He later told the 2019 inquiry that he couldn’t exclude that as the cause of death.)

“I believe in my heart we’ve got this wrong,” Tracy insists. “You can say I’m a naïve friend but I’ve done my research.” She says the writing that helped convict Kathleen was part of her journey of grief. “That’s what the counsellor told her to do. They just become a grief management tool. The ‘brain dump’, she used to call them, because she was told ‘better out than in’. In journalling you’re not supposed to think about it. You’re just meant to spill it out.”

Groundbreaking new evidence

The year Kathleen was jailed was the same year the human genome project was completed. When the NSW Government opened an inquiry into the Folbigg baby deaths in 2019, the four babies’ genomes were sequenced, and the results cast fresh doubt on the verdict. Caleb and Patrick had rare variants in a gene known as BSN which, when defective in mice, can cause lethal epilepsy. Sarah and Laura had a novel genetic mutation in the CALM2 gene.

ANU Professor Carola Vinuesa was part of one of two teams that analysed the DNA. “There were many characteristics of this mutation that were worrying and were suspicious,” she says of the CALM2 mutation.

The ANU scientists were up against a deadline. The information they were trying to decipher was highly specialised and the inquiry was drawing to a close. “We got the absolute world expert in the investigation of the Calmodulin mutations [the mutations of the CALM2 gene],” Professor Vinuesa says. “We asked for their facts. What are the deaths that have been described in the Calmodulin registry? What are the ages of the children who are dying?”

They found that the CALM2 mutation can cause sudden death in infants and children.

The hearings closed, and Justice Reginald Blanch retired to consider the evidence. The ANU team filed their report stating that there had been deaths in infants and children while asleep, and that this mutation could be inherited from seemingly healthy parents or parents with mild disease. “Kathleen did have some symptoms of mild disease,” Prof Vinuesa says.

“It’s true [the report] came relatively late in the day, because it was after the hearings had concluded, but it was before the judge had written his report and it was considered,” Prof Vinuesa explains.

In July 2019, Justice Blanch handed down a 550-page report in which he said Professor Vinuesa’s evidence did not, in his mind, “raise any reasonable doubt of Ms Folbigg’s guilt”. The genetic mutation had to be evaluated in the context of all the other evidence, he said.

Meanwhile, scientists continued to scrutinise the mutation. The following November, the world’s leading cardiac geneticist, Peter Schwartz, along with Professor Michael Toft Overgaard and Professor Vinuesa, published a study that demonstrated the Folbigg girls’ mutation was as severe as other mutations that are known to cause death in children.

“The genetic facts became even more black and white,” Professor Vinuesa says. “There was functional validation that this mutation was as severe as other CALM mutations that have caused death in children, including young infants while asleep.”

This study formed the basis for the petition to free Kathleen. Among the 90 who signed it are former Chief Scientist for Australia Emeritus Professor Ian Chubb and Australian Academy of Science President Professor John Shine. It was delivered to the NSW Governor before the appeal court decision, but is a separate matter. This remarkable petition now lies with NSW Attorney-General Mark Speakman.

Ms Rego says pardons are rare but the science is compelling. “Why bring in scientific experts to testify if you’re not going to listen to them?” she adds.

Justice divided

Professor Vinuesa insists “the genetic facts became even more black and white”.

A few days after the commotion of the appeal has died down, Tracy Chapman sits at home, with her rescue dogs lying at her feet, talking to The Weekly about her friend Kathleen. She talks about her children all the time, she say: “I talk to her most days and she’ll tell me, I’m not having a good day. I just thought about Caleb or I just thought about Sarah or Laura. There aren’t many months in a year when she doesn’t regress backwards emotionally because of the thoughts of the children being born or dying. There are not many moments when she gets to live quietly.”

Photos of the four Folbigg children are stuck up on the wall of Kathleen’s cell. The day of the appeal court ruling, Kathleen told Tracy all she could do was press on. “She’s saying: This is not my story. I am not a serial killer. I’m not all the things that they called me. This is the worst thing imaginable on top of losing the children.”

Since the trial, Craig has stayed out of the glare of the public eye to rebuild his life and navigate his grief. He has turned down lucrative offers to tell his story, remarried and had a son with his second wife. A rare interview after the 2006 birth offered a window into his world. “Every time he looks up at me with that little smile, I just melt. I keep thinking to myself, ‘Craig, it’s a miracle – you really are the luckiest man alive,'” he told The Sydney Morning Herald.

Likewise the rest of the Folbigg family prefers to maintain a dignified silence. The Weekly made contact with the family who politely declined to speak on the record. They have been trying to heal after a loss so devastating as to be almost incomprehensible. But they have publicly maintained their belief that Kathleen killed her babies.

All eyes are now on the Attorney-General. At one level, the petition is about the broad issue of how the justice system processes complex scientific evidence. But for those close to the case it could not be more personal. Contained within the thousands of pages of evidence in the Folbigg case is one of the saddest family stories imaginable. Four tiny babies dying, one after another, in three cases as their frantic father tried to breathe life back into their defenceless bodies. They left behind heart-broken aunts and uncles, and a shattered man who only ever wanted to be a dad. Then there’s the mother whose fate is still undecided. Under the law, as it stands, she remains what the newspapers dubbed her: Australia’s worst female serial killer. But if a pardon is granted and her crimes are expunged, she will become something else: A grieving mother who suffered the greatest injustice this country has ever seen.

This article originally appeared in the May 2021 issue of The Australian Women’s Weekly, before the official pardon.

Related stories