The case of Kathleen Folbigg: medical expert testimony, a system failure

Did Kathleen Folbigg, who was convicted of the murder of her four children in 2003, actually kill her children?

It is a question that has exercised the minds of many legal academics and lawyers.

What we do know is that Folbigg was convicted in the NSW Supreme Court without any substantial evidence.  The case was based on the circumstances that Folbigg was the mother of four children and all the children died.   The medical evidence relating to the cause of the deaths of her four children at her trial was not conclusive and, at best, circumstantial.   The deaths of Folbigg’s four children were originally labelled as ‘sudden infant death syndrome’.

The case was based by implication on the now discredited theory of British paediatrician, Professor Sir Roy Meadow, who promoted himself as a child abuse expert.  He gave evidence in child abuse or infant death cases in the United Kingdom and Australia and edited The ABC of Child Abuse. In 2005, when questioned during professional misconduct hearings, Meadow stated that he did not hold himself out as an expert on child abuse and rejected suggestions he was a guru on the subject.

Meadow’s hypothesis is that in multiple unexplained cot deaths in the same family: one (infant) death is a tragedy, two is suspicious and three is murder.  Meadow’s rule relied upon an untested hypothesis by two American pathologists, Dominick and Vincent Di Maio, who referred to it as ‘the rule of three.’  In Buchanan v State of Nevada 69 P.3d 694 (2003) (‘Buchanan’) Dr Di Maio testified that he did not accept that sudden infant deaths recur in a single family.  In Buchanan, Dr Vincent Di Maio explained:

when you get a first case that appears to be sudden infant death syndrome (‘SIDS’) … treat it as SIDS … [i]n the second case, we know that in all probability it's not a SIDS.  It's a homicide … you always give them the benefit of the doubt … than to falsely accuse them … [i]t's when you get to the third one, then you've gone beyond reasonable doubts and you have to call it a homicide.

What we do know now is that Meadow’s child abuse hypotheses have been discredited and rejected in a number of court cases. His testimony, based on his hypotheses, in multiple civil and criminal proceedings, has been demonstrated to lack any evidentiary basis.

Meadow’s ‘rule of three’ hypothesis was criticised and discredited by the UK Court of Appeal in cases such as R  v Cannings [2004] EWCA Crim 1 (‘Cannings’), R v Anthony [2005] EWCA Crim 952 [81] (Anthony), R v Kai-Whitewind [2005] EWCA Crim 1092 (‘Kai-Whitewind’) and Clark [2003] EWCA Crim 1020.  The hypothesiswas rejected when it was used by implication in the Australian cases of R v KJF (Unreported, New South Wales Supreme Court,October 2007and Matthey [2007] VSC 398,and the USA case of Shabree Ward 138 S.W. 3d 245 (Tenn, 2003).

In the UK case of Cannings, their Honours stated ‘if that is the fashion, it must now cease.’  The ‘rule of three’ hypothesis is without scientific backing.

A leading Australian case concerning the admissibility of expert evidence, Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 (‘Makita’),states that an expert’s opinion requires demonstration or examination of the scientific evidence or other intellectual basis for its conclusions. If the opinion fails such examination, then it fails to be expert evidence and should be ruled inadmissible.  Further, speculative medical expert evidence was ruled inadmissible by the NSW Supreme Court in R v Phillips [1999] NSWSC 1175 [58] (‘Phillips’)and in Straker v The Queen (1977) 51 ALJR 690 (‘Straker’), where Jacobs J said ‘[t]he jury may be invited to draw inferences from the evidence but not to join an expert witness in speculation on possibilities adverse to the accused.’

Meadow’s hypothesis fails those tests.  It is unreliable and speculative.  Further, Meadow was not qualified to give such an opinion. It is concerning because legal academics argue that there is a tendency to allow trained professionals to testify in areas beyond their actual expertise or beyond the collective ability of any recognisable field or identifiable sub-discipline.

So, the fact is we have an unreliable and speculative theory dominating the Folbigg case and being used by implication.  It should not have been allowed.  But, the question remains: what may have caused the deaths of the children, or at least one or two of the children?

Perhaps we need to consider whether overwhelming bacterial infection caused the deaths of some of the Folbigg children.  It has been known that bacterial infection can contribute to the sudden and unexpected deaths of infants since the original Folbigg trial in 2003 and the appeal in 2004.

Cot death expert Professor Paul Goldwater writes that studies show that bacteriological findings at autopsy have been found in cases of ‘sudden infant death syndrome’.   Professor Goldwater states serious consideration should be given to recognised pathogens, especially Staphylococcus aureus, found in normally sterile sites, which may have a contributory role to an infant’s death.  Professor Goldwater says there is now a strong view that if an infant dies unexpectedly, it is more likely to be carrying pathogenic bacteria than a healthy baby.

Bacterial infection was accepted by superior courts to quash murder convictions around the time of the Folbigg hearings from April to August 2003 and the judgment in October 2003.  The role of infection was accepted in Sally Clark’s second appeal in 2003 where the court heard from Professor James Morris, an expert in the role of bacteria and bacterial toxins in SIDS.  Professor Morris stated that one of the Clark children, Harry, died from natural causes, and it was difficult to avoid the conclusion that the bacteria had contributed to the death.  The court noted Professor Morris’ conclusion that ‘overwhelming staphylococcal infection was the most likely cause of death’; and therefore, the conviction relating to Harry’s death was ‘unsafe’ and needed to be ‘quashed.’

I asked microbiology expert Professor Caroline Blackwell and Professor Goldwater to review the autopsy reports on Folbigg’s children and other material from the case that I obtained from the NSW Supreme Court.

Professor Blackwell noted that there was evidence of infections in two of the Folbigg children: Sarah and Laura.  The autopsy report concerning Sarah Folbigg showed petechial haemorrhage in lungs, pericardium and thymus.  Professor Blackwell said these findings in Sarah were consistent with sudden unexplained death in infancy (SUDI).  Sarah also had copious numbers of coliforms in the lungs, along with alpha haemolytic streptococci and some Staphylococcus aureus.

This view that Sarah’s death is consistent with a SUDI rather than suffocation is supported by the peer reviewed publications of Professors Goldwater et al and Weber et alon the role of infection in SUDI.

Professor Blackwell stated that Laura had increased lymphocytes in the lungs and plentiful numbers of coliforms in the lungs and the spleen, profuse numbers of alpha haemolytic streptococci and moderate numbers of Staphylococcus aureus. The increased numbers of lymphocytes in the lungs and spleen indicate that Laura had mounted an inflammatory response.

Professor Blackwell considers that infectious illness cannot be ignored as a potential cause of death of either Sarah or Laura.

Further, the post mortem report for Patrick Folbigg did not provide any evidence to support a finding of an unnatural death according to Professor Goldwater.  He said the autopsy findings for Patrick, who died aged eight months, were compatible with SUDI.

It was curious, as Professor Goldwater points out, that there was no attempt made to interpret the brain findings in Patrick’s post mortem.  He refers to the key findings that Patrick had a larger than normal brain for his age, including abnormal brain grooves along with cystic degeneration. Professor Goldwater says this is compatible with pathology often found in cerebral palsy: therefore a diagnosis of cerebral palsy could have been put forward.  Such a diagnosis for Patrick was not mentioned in any of the Folbigg judgments.

These expert opinions have never been presented to a court.  Perhaps they should be, and an injustice corrected.