Shortly after 10am on Friday November 26, 2004 a hush descended over the packed courtroom 13A at Sydney Supreme Court when 3 ermine-robed judges entered the room. Justices Brian Sully, Peter Hidden and John Dunford were assigned to hear legal argument in the appeal hearing of Kathleen Megan Folbigg against conviction and 40-year sentence for the deaths of her 4 children.
The three judges faced an onerous task in legally deciding whether Kathleen Folbigg was Australia’s worst child serial killer as depicted by the Sydney media or if she was an innocent mother wrongfully imprisoned for crimes she had not committed? It seemed ironical that 20 years ago a similar murder trial was played out in the Northern Territory with the same media onslaught that crucified Lindy Chamberlain for the death of baby Azaria. Was history repeating itself?
I looked around the packed courtroom and tried to read the faces. Were they there to see justice done or were they just spectators witnessing the closing chapter of a woman’s life who was destined to die inside a NSW prison? A woman confined in protective custody and isolated to a cell 23 hours each day for fear that other prisoners would kill her because she was a "rock spider" - a child killer.
Was Kathleen Folbigg the callous killer portrayed by the prosecution and deserving of the punishment? Or was it possible that the Folbigg children had died from Sudden Infant Death Syndrome (SIDS) as she claimed throughout her trial? The damning expert medical testimony delivered at the trial relied upon statistical evidence to convince the jury that it was an impossible one in a trillion chance for four SIDs related deaths to occur in the one family. It was a compelling argument that hammered a final nail into Kathleen Folbigg’s legal coffin.
The soft spoken voice of David Jackson QC, the lawyer assigned to challenge Folbigg’s conviction and sentence, shattered my contemplative mood when he began his legal address to the presiding judges.
Jackson argued that Folbigg’s trial had been disadvantaged because all the indictments were heard together in one trial and there should have been separate trials for each death. Having the four murder indictments heard together made it easier for the jury to deliver a guilty verdict, because the similarities between each death made it less likely for a jury to consider the possibility of SIDS, as Folbigg had claimed in her defence.
“You don’t submit the evidence of the other deaths was inadmissible as coincidence evidence?” Justice Dunford asked from the Bench.
“Well, we do Your Honour,” Mr Jackson replied.
Crown Prosecutor Michael Sexton, SC, countered that argument by claiming once it was ruled that evidence of each death could be used in the trial of their siblings there was no point in having separate trials for each child’s death.
As the verbal cut and thrust of legal argument was parried back and forth in the packed courtroom Jackson referred to the statistical evidence offered by medical experts in the British case of Angela Cannings. My instinct told me that another dimension to the Folbigg case had just developed. I looked over at the media bench to see if any other journalist had picked up on the significance of the Cannings case. My inquisitiveness was met with blank stares. There was no flurried notebook scribbling. Mention of the Cannings case and its significance to Australian jurisprudence had faded into obscurity inside courtroom 13A.
Angela Cannings, 40, a former shop assistant from Wiltshire, England, was jailed for life on April 16, 2002 for the murder of 7-week-old Jason in 1991 and 18-week-old Matthew in 1999.
Like Kathleen Folbigg, Angela Cannings denied murdering the boys, claiming they were victims of SIDS. Her subsequent appeal was based on several factors but principally that the expert evidence relating to SIDS was misleading. The British Court of Criminal Appeal agreed and overturned her conviction on December 10, 2003 and she was set free.
When Ms Cannings was convicted, the jury was told that the deaths of her children could not have been caused by a genetic defect because there was no evidence of other infant deaths in her close relatives. It was later revealed that her great-grandmother and grandmother had also lost babies in unexplained circumstances. SIDS was also recorded as the cause of death after Ms Cannings' first child, Gemma, died at the age of 13 weeks in 1989.
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