For 20 years, infamous baby killer Kathleen Folbigg maintained she did not kill her children.
The mother-of-four was convicted in 2003 of the murder of three of her children and the manslaughter of a fourth child between 1989 and 1999, and sentenced to 30 years in prison.
Ms Folbigg, 55, continued to maintain she didn’t kill or harm her children; Patrick, Sarah, Laura and Caleb, who each died suddenly between the ages of 19 days and 18 months during their short lives.
On Monday, she walked out the door of Clarence Correctional Centre a free woman, after being granted a pardon following a bombshell inquiry that turned the case against her on its head. She was not eligible for parole until 2028.
A key scientific breakthrough proved the crucial step to freeing Ms Folbigg, with expert testimony at an inquiry into her convictions helping recast her from killer to grieving mother.
The Australian Academy of Science’s chief executive Anna-Maria Arabia said the independent body was crucial in getting the second inquiry off the ground after it petitioned the NSW Government to launch a second inquiry.
The decision came after new medical research had become available about the genetic mutations of the Folbigg girls since the first inquiry in 2019.
“It was the only avenue available to us to have this case brought to an inquiry because there was no other legal route to have the new science to be heard,” Ms Arabia said.
“Kathleen Folbigg had exhausted all avenues of appeal.
Ms Arabia said the Academy found experts who were then called by the Former NSW chief justice Tom Bathurst KC to provide their insight and unique knowledge of the science behind the new found evidence.
Mr Bathurst spent months hearing evidence while leading the lengthy inquiry into Ms Folbigg’s convictions and said there was reasonable doubt as to her guilt.
The inquiry heard evidence from experts about new scientific developments that could potentially prove some of her children died as a result of a genetic mutation, while the others died of natural causes liked to medical issues.
On Monday, NSW Attorney-General Michael Daley said he had received an advanced copy of Mr Bathurst’s findings, and had met with the Governor-General.
It was agreed Ms Folbigg be given an unconditional pardon.
Under the pardon, her convictions are not quashed, but she will not have to serve the rest of her sentence.
“The convictions are not quashed. The only body that can do that is the Court of Criminal Appeal,” Mr Daly said.
Ms Folbigg’s ex-husband and the father of her children, Craig Folbigg, continues to believe his children were killed by their mother.
“The science does not say that she’s a victim, she has not been acquitted of those convictions,” his lawyer, Danny Eid, told reporters on Monday.
Eid said there had been no criticism of the trials that Kathleen Folbigg faced and “nobody suggested that the trial process was unfair to Ms Folbigg, or to Mr Folbigg for that matter”.
Craig Folbigg refused to be involved in the second inquiry.
He had originally provided diaries written by Ms Folbigg during the time of their children’s deaths to police after he discovered them hidden in their home.
Prosecutors had won their case against Ms Folbigg in 2003 based on the argument she had smothered her children, despite there never being any physical evidence showing that’s what caused their deaths.
Folbigg’s diaries were also used as evidence against her, claiming she had confessed to the children’s deaths through her writings.
But Mr Bathurst instead found the diaries were “the writings of a grieving and possibly depressed mother, blaming herself for the death of each child”.
Medical discoveries lead to pardon
A 2021 scientific report suggested at least the deaths of Laura, who died at 18 months, and her older sister Sarah, who previously died at 10 months, were linked to a rare genetic variant.
Medical experts during the inquiry discussed the possibility the two girls had the rare genetic mutations CALM2G114R – believed to be linked to long QT syndrome, a heart-signalling disorder that can cause fast, chaotic heartbeats or arrhythmias.
Some experts believed Ms Folbigg shared the same genetic mutation as her daughters.
This fatal genetic mutation was not discovered by medical scientists until years after the deaths and would not have been investigated at the time, the inquiry was told.
Ms Arabia said the experts called were some of the “most qualified and very best to the world” to give evidence.
“That was excellent because (the scientists) could test all of the grey area,” Ms Arabia said.
“Counsel assisting (the Commissioner) was able to explore the science and range of views in order to draw a conclusion.
“I saw a high level of engagement, I didn’t see an adversarial courtroom where science is not best presented in that context.
“We saw an exemplary example of science being presented rather than a scientist being placed in a boxing ring and feeling like they’re being put in a corner, where they often feel they’re unable to share their knowledge.”
The inquiry was also told the girls’ deaths might be linked to catecholaminergic polymorphic ventricular tachycardia (CPVT), a condition characterised by an abnormal heart rhythm or arrhythmia.
The inquiry was told Patrick had been taken to hospital on October 18, 1990, after his parents had found him struggling to breathe.
The then four-month-old boy was also reportedly blue in colour when he was rushed to hospital.
Leading neurologist and federal MP Monique Ryan testified at the inquiry Patrick had likely died due to a brain injury suffered during the medical episode.
“He had an uncontrolled epileptic seizure which more likely than not caused his death,” she told the inquiry.
“Sometimes when babies have seizures they can be relatively subtle, but they (the parents) would recognise the babies were having unusual events, even if they didn’t recognise them to be a seizure.”
The inquiry was unable to determine the exact cause of death of Caleb, Ms Folbigg’s eldest child who died just 19 days after his birth in 1989, but it is likely he also died of natural causes.
Caleb had reportedly not been able to swallow and breathe at the same time following a respiratory issue he developed during birth.
Kathleen Folbigg released after pardon
In a memorandum outlining his findings, Mr Bathurst said he had reached “a firm view that there was reasonable doubt as to the guilt of Ms Folbigg for each of the offences for which she was originally tried.”
He found there was “reasonable possibility that three of the children died of natural causes”, and a reasonable possibility Sarah and Laura’s deaths were the result of a genetic mutation known as CALM2-G114R.
In the case of Ms Folbigg’s fourth child, Mr Bathurst found “the coincidence and tendency evidence which was central to the (2003) Crown case falls away”.
Mr Bathurst said he was “unable to accept … the proposition that Ms Folbigg was anything but a caring mother for her children”.
Push for science to have a better place in the justice system
Ms Arabia said the Folbigg inquiry proved just how important the role of science is in the justice system.
“This is a demonstration case for how we can play a science-based justice system. Everyone benefited,” she said.
“I appreciate the resources of the Academy of Science and the nature of this case are unique but there are many cases where emerging science would be of benefit to the justice system if presented by the right people in a clear and comprehensive way.”
Ms Arabia said the Academy would be advocating for Australia to introduce a criminal case review commission or something similar to the independent bodies found in the UK, Norway or New Zealand.
“It‘s opportunity to reform how we select expert witnesses, especially when they’re in a science based area,” she said.
“The other thing this demonstrates is the Academy took the actions it did because there were no other appeals available to Ms Folbigg.
“It was essential for this science to be heard.
“A post appeals mechanism I believe is essential in Australia.”
The Academy estimates if a criminal case review commission was established, about 15 to 20 cases per year would be eligible for review based on population in each state and territory.
Ms Arabia said she wouldn’t expect every case to go through this process but it was essential state and territory governments, and even the federal government, consider adopting such a body.
“There have been in the UK 35 cases referred back to their justice system,” she said.
“It’s not a flood of cases we’re talking about but if (the Folbigg inquiry) doesn’t trigger (for reform). I don’t know what will.
“The magnitude of injustice here is at another level.”
Ms Folbigg’s lawyer Rhanee Rego told reporters on Tuesday her client’s “long and painful journey” was an example of a broader problem within the legal system.
“If Australia really wants to make some good from a tragic story, they will seriously consider reviewing their post-conviction review system,” she said.
A new chapter for Kathleen Folbigg
For the first time in 20 years, Ms Folbigg is now enjoying waking up in a bedroom rather than a prison cell.
“I’m extremely humbled and extremely grateful for being unconditionally pardoned and released from prison,” Ms Folbigg shared in a video message on Tuesday.
“My eternal gratitude goes to my friends and family, especially Tracy (Chapman) and all of her family, and I wouldn’t have survived this whole ideal without them.”
“Today is a victory for science and especially truth.”
Ms Folbigg said every day she spent in jail she had thought of her four children.
“And for the last 20 years I’ve been in prison, I have forever and will always think of my children, grieve for my children and I miss them and love them terribly,” she said.
She spent her first night of freedom on Monday with friends and family on the Far North Coast, celebrating with pizza washed down with kahlua and coke.
By her side, as always, was her high school friend and biggest supporter Tracy Chapman.
Ms Chapman told the media on Tuesday Ms Folbigg was able to “sleep properly” for the first time in 20 years.
She also revealed Ms Folbigg had marvelled at the change in common technology over the past two decades.
“She was saying, ‘Oh my god, look at the television, it has so many capabilities’,” Ms Chapman said, as Ms Folbigg discovered streaming platforms for the first time.
“She’s made a cup of tea with a real cup and real crockery, which probably sounds pretty basic … but she’s grateful.”
Ms Rego said while it was “a bit too early” to discuss compensation, the priority was to work towards having Ms Folbigg’s convictions quashed in the Court of Criminal Appeal.
It is estimated that she could eventually claim damages of up to $20m.
Ms Rego confirmed her team had requested Mr Bathurst to refer the matter directly to the Court of Criminal Appeal.
“If Mr Bathurst does not refer it, we will be asking the Governor to refer it because she has that power,” Ms Rego said.
“Failing that, we will be making an application to the Court of Criminal Appeal.”