Kathleen Folbigg exonerated after 20 years: Quentin McDermott Pt.2

and honest, just like the people I talk to. Some of the content and language might be confronting. That's because no one who comes into contact with crime is left unchanged. Join me now as I take you into this world. This is Part two of my chat with Quintin McDermott. Quentin is the author of a book called Meadows Law, which is about the death of Kathleen Folbig's four children, Calib, Patrick, Sarah,

and Laura. In Part one, spoke about Kathleen's conviction for the manslaughter of Calib and the murders of the other three children. In Part two, we talk about the fight that led to Kathleen being released from prison and her pardon. I think you'll be shocked by what you learn about one of the most controversial criminal cases in Australian history. Quentin, Welcome back, Thanks Gary, it's good to be here, have a bit of a break, refreshed our refreshed our brains

on this matter. And yeah, it is complex and I think it's something that we talk about this case, that's one of the most controversial, high profile cases we've had in the country. And I don't think that's overstating that the stakes were very high and the hopefully lessons are learned from what occurred and things can be improved. We left part one and we got in our own inevitable way. We explained how it got to the point where Kathleen Fobbick was charged with the murder of four children. The

trial trial rent for seven weeks. It resulved in her being convicted for murder of the three children, yes, and manslaughter of the Caleb, the first child. Do you want to tell us the trial, your view and the trial that occurred.

Now this was a really remarkable revelation. He had a kind of private conversation following a law conference seminar with a clinical psychologist, Char Milerbett's doctor, Char Milibets, where she said to him, you know, mister Tsara, clearly this was a horrible miscarriage of justice. I'm paraphrasing, and she said, you wouldn't think that if you'd read the diaries. So that's that's, you know, that's that's one remarkable aspect I think of the trial.

to explain what the diaries were about? Because in isolation, a lot of people and you touch on the fact that even her defense might have drawn some strong inferences from the diary. Do you think it would have served a better to get in there and explain what the diary was all about.

that she hadn't given evidence. My kind of primary beef, if you like, with the defense is that they didn't cast the net wide enough to find psychological and psychiatric experts who could have given evidence about the diaries and given an entirely different interpretation to the interpretation given by

the prosecution. So, for example, in one case, in relation to one diary entry, mister again I'm paraphrasing, but mister Tedesky essentially said, what could she possibly mean by this other than I killed children or I killed this child. Now Never, at any point in any of her diary entries anywhere did she ever admit to any agency in killing harming, let alone killing any of the children. She

never admitted in her diaries to harming the children physically. Okay, I think that would have had a big effect on the jury. And I just don't believe, to be frank that Peter Zara hit back hard enough on this, and I think that one of the reasons for that, as I say, is because deep down they actually believed that the diaries were damning.

goes into play play there. So the stakes were very high. The trial went for seven weeks, she was convicted. I think she was sentenced to initially forty years thirty years on the bottom. They appealed the sentencing and I think it was reduced to thirty years twenty five years on the bottom. That was where we're at. Can you take up the case from there, because for all intents and purposes, that could have been the last that we heard of Kathleen. She would stay in jail, But that's so far from

the case. What were the things that started to turn it round where people believed believed her innocence and people started fighting for the justice.

an infant without leaving any physical trace. And kind of bizarrely, in my opinion, and this all relates to Meadows law, that if there is no physical trace of smothering, which there wasn't certainly no definite traces of physical smothering in any of the four cases, that is of itself or of any other means of killing them, that is, of itself evidence that they were smothered. Now to me, that is almost Kafkai esque, but that essentially was what happened in the trial.

physical traits, and therefore she smothered them. Now, Mark Tadesky at the trial gave various kind of scenarios as to why she might have or how she might why she might have smothered them. One of them was that she might have smothered each of them in turn. She might have suffocated each of them in turn in order to get them to go to sleep, okay, as opposed to killing them in a rage. That was another alternative scenario, that she flew into a rage on each occasion and

she smothered them. And I think, I mean they knew about a case in the United States there of a babysitter who would use this suff vocation technique, allegedly in hundreds of cases where she was babysitting children and she would smother, she would suffocate them, you know, temporarily to put them to sleep. And then most unfortunately, she had actually killed a couple of children, and she confessed to this and was charged, And so that was one scenario.

But again it's the whole basis for this was that you can smother an infant without leaving any physical evidence, and therefore that the means by which she killed them must have been smothering. Now, in the case of Laura, that was in fact highly unlikely because once a child of Laura's age is attacked in this way, they are going to struggle, and they have teeth, and the teeth are going to leave marks, almost certainly on the inside of the mouth. And in Laura's case, at her autopsy,

doctor Carla found no evidence of this. He found no evidence that she had been smothered or that there were teeth marks inside her mouth indicating a struggle. So really the active evidence, if you like, for smothering was non existent, so that in effect reversed the burden of proof to make it incumbent on the defense to prove that they had died from natural causes.

were still married at the time of the trial. So Craig had turned against her, and really the only person she had on her side was this Salvation Army major who Joyce Harmer, who was amazing, and Joyce's husband, Hilton, who took care of her during the trial, and I think shielded her from the worst of the media. But so she was kind of bereft and then for various reasons, certainly her two closest friends were unable to attend the trial, and so she was literally on her own apart from

Joyce Harmer's support. And then after the trial, really it was Tracy Chapman and Meghan Donoghan and you know, one or two other close friends who were kind of there to support her.

During the trial, this infamous or famous line she wrote. Obviously I am my father's daughter was ruled in admissible, but when Craig was giving evidence, whether intentionally or unintentionally, he dropped into his evidence the fact that he had read this line in her diary. It was a kind of egregious, you know, flouting of the ruling of it inadmissibility.

the guilty verdict. And then after the trial, after she she had been convicted, of course, the media went wild. They were finally allowed to report this line that she had written in her diary, and and and the media I think universally interpreted the line she had written as being a kind of an admission that she had killed her children. She of course, later gave a very different

explanation for why she'd written it. She said, Look, all I was saying there essentially was, you know, my dad was a loser, and you know my life has kind of gone to shit basically, and you know I've turned out to be a loser as well. You know, that was her explanation for it. But for the second appeal, this was one of the grounds of appeal that that that there'd been a clear breach of the rules by a member of the jury and therefore essentially that there

should be a retrial. And I think what was interesting, what I found interesting was that the appeal the Crown argued that you know, when this information went back into the jury room, it would have elicited sympathy from the other members of the jury.

to Canada. She started looking at this case. She was actually I think looking at the case of Linda Chamberlain at the time, but as she describes it, she realized when she started researching Lindy's case, in Kathleen's case, that there were all these other mothers in the UK in particular, who had been convicted on largely on the basis of Meadows law or to a great extent on the basis of Meadow's law, but who had since been acquitted, and the only mother who had not been acquitted or on

appeal was Kathy. Okay, So she started looking at the case, and she's quite clear in conceding that she started off with the view that Kathleen Folbey had.

convinced she became that Kathleen was innocent. And so she wrote this book, which was a kind of seminal book really about the case which was published in twenty eleven Murder, Medicine and Motherhood that was read by, amongst other people, a close friend of Kathy's, Helen Cummings in Newcastle, and.

you know, calling for a judicial inquiry into her case. Now, one of the key aspects of that petition, in my opinion, the most crucial aspect of it, the most crucial element of it was an enormous report which was written by the esteemed forensic pathologists, Professor Stephen Cordner, and he'd spent over a year reviewing the forensic evidence in the case, and his very clear conclusion was that there were natural cause of death for all four children, and there was

no evidence whatsoever that she had been smothered, and not only that, there was actually robust evidence that Laura had not been smothered because she didn't have any injuries exactly exactly. So this was presented in I think it was may Or June twenty fifteen, to the then Governor of New South Wales, and then passed on to the Attorney General, gabrielle Upton, and then Mark Speakman, her successor as Attorney General,

came on board. And then following on from that, in twenty seventeen, I became involved in well, I should in fairness, I should add that after Emma Cunliffe's book was published, sixty Minutes did a store about her case, and they interviewed Emma Cunliffe, and you know, bravoed sixty Minutes, who actually followed the case right the way through pretty much to the very end, and consistently argued that there were

reasons to doubt her guilt. So they did that. But then in twenty eighteen I was working at Australian Story and I produced a story, an episode, a long longer than usual episode for Australian Story about Kathy's case, and one of the things I guess there were two important

elements of that story. One of them was that I decided, after reading as much of the evidence as I could, that there was a clear conflict between what Professor Cordener had said, which was that there was no forensic evidence to suggest that they'd been murdered, and what doctor Alan Carla had said, which was supporting the view that awful

children had indeed been smothered. And I was able entirely independent forensic pathologist called Dr Matthew ord who incidentally was based in Canada along along with Emma Cunliffe, was suggested to us as someone to approach, and I approached him and I said, look, would you be prepared to do two things to kind of review Stephen Cordner's report, And he doctor ord had nothing whatsoever to do with the case prior to that, which I thought was a good thing.

And secondly, if we can arrange for the slides of Laura's heart tissue to be delivered to you, will you examine them and kind of tell us what you think? And I didn't know what his conclusions would be. He might have he might have said he agreed to do this. But he might have said, look, I don't agree with Professor Cordner's report, and I think that the myo choditis that Laura was suffering from that I agree with Carla that it was only patche and mild. He might have

said that. In the event, he said that broadly, he agreed with everything Professor Corden had written in his report, and he thought that there was a very clear case of my arcaditis which could have caused Laura's death. The phrase he used at one point he qualified it. He said that didn't that didn't prevent the possibility that she might have killed Laura. But he said that in his opinion, this was, to quote, an eminently fatal case of my acaditis.

Now I was kind of, at one level stunned by this, because I thought, well, my god, you know, if this entirely independent forensic pathologist is saying this is an eminently fatal case of my arcaditis, why was she ever convicted?

And after he said this, I came back and I spoke to I interviewed Nicholas Cowdrey, who was, of course the Director of Public Prosecutions when Kathleen was put on trial, and interestingly, he said a couple of things in relation to the pigs might fly quote he said, well, you know, that's not what I would that's not how I would

have presented it. But in relation to this, he said, well, you know, even if this went to the Quarter of Criminal Appeal and she was found not guilty, she was acquitted of her conviction of murdering Laura, that wouldn't necessarily mean that the other convictions couldn't stand. And I found that absurd. I'm sorry as well, because it was the coincidence evidence that helped drink and case. So so we then put this story to air in August twenty eighteen, and I.

as well as in investigations and so on. Timing is everything, so you know, I pay tribute, as I say, to sixty minutes, and there were one or two other great journalists who had written articles and so on prior to twenty eighteen, saying you know, there are questions need to be raised about this case, but I think the timing of this was critical of our Australian story and one of the other things that Nicholas Cowdrey said on camera was he said that he believed that the delay in

deciding on the petition, which by then was more than three years, was an inordinate delay, some exceptional. And nine days later Mark Speakman got up and said, okay, we're going to have an inquiry into her convictions. And it's interesting that the key point that he said the inquiry would consider was this whole question of whether there had ever been other cases of three or more deaths of

infants in a family, you know, from natural causes. And all of the medical experts who gave evidence at her trial, at Cathy's trial, had said they'd never heard of a case like that, and then you know, Mark Tdeski himself had kind of emphasized that by saying pigs might fly,

and so the jury it became very, very apparent. And Emma Cunliffe pointed this out in her book that there were of course other cases where three or more children had died from natural causes, and so this was one of the one of the one of the points that we raised on Australian Story, and it was one of the one of the probably the key point that Mark Speakman raised and announcing this first inquiry.

me this was a kind of epiphany. And essentially what he said was that you know, while the chances of four children in a family dying from natural causes made you know it's a rare event, the chances of all four children being killed is much rarer. And he actually produced some statistics. He said that his own rough estimates, which he had published in a paper, was that single cot deaths outweigh single infant murders by seventeen to one.

Double cot deaths outweigh double infant murders by about nine to one, and triple cot death that way, triple murders by about two to one. So you know, the whole basis really for the kind of for meadows law and for the prejudice. If you like that I have three or more children die in a family, it has to be homicide. Was based on a faulty statistical assumption.

comment on the basis of doctor Carla's evidence. And I recall when you said information was passed on, passed on to another expert when you were doing the research, and you were very careful not to provide too much information. I just read this out there. They'll open up some

discussion there. Doctor Cunliffe made this assessment. Cognitive science, she explained, shows that when someone believes that there is a likely explanation of a phenomenon that they are observing, they are more likely than evidence that supports that conclusion and less likely to notice evidence that can test their conclusion. That is what leads to the definition of confirmation bias. I've always had, and I'm talking in a general sense here,

issues and concerns when it might be the prosecutor. We go to an expert, an independent expert, because they're a medical person or a scientist or whatever, and they can be totally objective. But we say, we've got all this information, can you test this and provide this information and give us a report back. I think there's contamination time and time again when experts are providing providing their expert expert

opinion based on what information have provided to them. Okay, the first inquiry always evidence that we've explained and contained in your book, the overwhelming evidence that you would think would carry carry some favor at the inquiry, which was headed up by Justice Blanche I believe that's right, but that was rejected.

took place. One of them was indeed, with four I think it was forensic pathologists, including doctor Carla and including Professor Cordner, where broadly speaking, the forensic pathologists all agreed that yes, there were plausible or possible natural cause of death for all four children. But Gail Finesse, who was the senior council assisting the inquiry, asked them, you know, you know, is it possible that these children, despite the fact that they may have died from natural course, is

it possible that these children were smothered? And of course each of them had to say, well, yes, it's conceivable. So that was one part of the evidence. And then a second part of the evidence was this extraordinary kind of revelation that there was fresh genetic evidence demonstrating that Kathleen Folbig and her two daughters, Sarah and Laura, were all suffering from a cardiac genetic mutation, which, in the view of the leading geneticists who uncovered this was potentially

faithal okay, that it was likely pathogenic. Now that there was an enormous argument. Essentially, at the inquiry about this, there were there were kind of clinicians on the other side who were deeply skeptical about this, But the geneticis the immunogeneticist, Professor Corolla of INUSA, who made this discovery, was equally clear that in her opinion, this you know, raised reasonable doubt about you know, her convictions, and that maybe they had maybe this genetic mutation had indeed triggered

the deaths of Sarah and Laura. And the basis on the theory that she was putting forward, essentially, if I can kind of put it crudely, is that both Sarah, who had an infection before she died, and Laura, who had my arcaditis, that this triggered this genetic mutation which essentially causes arrhythmias in the heart and can be fatal. But at that stage, at the first inquiry, it was still at a very theoretical point.

children had died from this genetic cause. And then the next element in the first inquiry, which was highly significant, was Kathy agreeing to give evidence herself about the diary entries she had written and what they meant.

with Tracy. A series of conversations actually, because as you know, obviously each conversation is cut off after six minutes, so a series of at least fifteen conversations in which during which she explained what she meant by some of these diary entries. So that was a kind of friendly exchange, friendly explanation. And then fast forward to twenty nineteen when she agreed for the first time to give evidence in a court about her diaries.

half days. And she was challenged sixty nine or seventy times during this cross examination to admit that she had killed one or more of the children, and every single time she denied it. So, you know, one absolutely fundamental point here is that Kathleen Folbig, you know, has never once intimated, let alone admitted that she has harmed any

of her children. And you know, again you you will know better than I do gary in many cases where people profess their innocence of murder charges and then and then they're convicted and they go to prison, you know, they finally fess up and they say, you know, have a lot.

it was relentless. Now interestingly, one of the psychologists who gave evidence of the Second Inquiry said, use the word brutal about was his that was his assessment of the cross examination which had taken place, and in my opinion, it acted almost as a substitute for what didn't happen during the trial.

couple of interesting things. First of all, there was an expert overseas a world expert in cardiology and genetics, called professor Peter Schwartz, who wrote to the inquiry. Once he heard about the case and the evidence, the genetic evidence, he wrote the inquiry and essentially said, you know, I can't make a judgment about this, but I think this calls her convictions into question, and essentially called for further

hearings to investigate the genetics ants further. That didn't happen, so the commissioner, Reginald Blanche, handed down his report and dealt with the fresh genetic evidence in an appendix. It wasn't even part of the Essentially, it wasn't even part of the main report, which I think a lot of people found quite troubling, and given that this was supposed to be an inquiry, not a trial. And he said his judgment was that the evidence that he had heard

reinforced Kathleen's guilt. I mean it was to many that was an astonishing I I.

evidence he had heard reinforced her guilt. And he said and that the only means possible by which they might have been killed was by smothering, and that there was no other person who might have done that. Now, again I found personally that shocking, because there was another person who could have killed the children.

from Newcastle. Newcastle University would contact me about it, and a friend, Xanthea Mallett, was a criminologist up there and we're friends, and she would quite often talk to me

about this case. And I began like I would just push back for the sake of pushing back, but she was adamant that there's been a miscarriage of miscarriage of justice, and even to the point when in discussion she'd say, well, okay, let's say and talking hypothetically here, make sure we clarify that that she was guilty, there still wasn't sufficient evidence for that person to be convicted at trial. And that sort of sat with me. I understood where she was

coming from. There. We're not talking about guilt or innocence here, we're talking about there wasn't enough evidence for this person to be convicted convicted at court. So that got me looking at a little bit further. Then you have done heading with reading your book, but where to from their first inquiry? And Blanche came back stronger than anyone would have anticipated. In his findings after the first inquiry, the commissioner from that inquiry, So what was the next move?

mutation was actually pathogenic or not. And again I'm kind of I'm paraphrasing, but essentially they came to the conclusion that yes, it was pathogenic and that it likely killed or triggered day of Sarah and Laura, and they wrote this up in a peer reviewed paper for a publication called EuroPace, which is published in Oxford in the UK.

And so based on this that there was then a move to kerl or invite actually other scientists and science advocates to endorse a second petition on her behalf, which they did, and among the scientists who endorsed this petition after reading the EuroPace paper and considering all the evidence were two Nobel Laureates, so you know, which I believe is unique in the whole kind of history of cases like this around the world putting their name to that

and endorsing it. So that petition was then lodged with the Governor of New South Wales and with Mark Speakman,

who was still the Attorney channel. At the same time, Kathy's lawyers had launched an appeal essentially asking for Reginald Blanche's findings to be quashed from the first inquiry, and that appeal the hearing took place, and then the judgment came down very shortly after the second petition had been lodged and the appeal finding was negative, they refused to quash the findings, and indeed they essentially agreed the judges with Reginald Blanche on all the salient points that he

had made. But there was an enormous burst of publicity, which I go into in the book how it was organized and so on, surrounding the second petition, and I think what that did was I think it helped to move the dial of public opinion about Kathy's guilt or innocence. So by the time the second petition was lodged, I think public opinion was moving steadily more in Kathy's favor.

but it's an academic book. I don't think that kind of shifted the dial.

And what was happening here, and this relates to science versus the law, if you like, What was happening here was that the Australian Academy of Science had become involved, and there was there was something called Team Folbig, which was a kind of team of businessmen and philanthropists and others who had become very involved in behind the scenes in her case and in kind of pushing the science forward, and the Australian Academy of Science, their former president John Shine,

Professor Shine spoke out very strongly and repeatedly saying, you know, the evidence is in essentially scientifically, the evidence is in that there is a genetic cause for the deaths of two of the children. You know, why don't you referring to Mark speakman, why don't you recognize that please and pardon and release her? Because the request in the second petition was for Kathleen to be pardoned and released, and at any point from then on the Attorney General could

have made the decision. He had the power to do that. He had the power to recommend to the Governor of New South Wales that Kathy be pardoned and released, and he didn't do so. But eventually, about thirteen months later, he announced that there would be a second inquiry.

Let me ask you this question, Gary, is it right that Kathy was eventually pardoned and least only after you know, members of her legal team had worked thousands of hours pro bono, money had been raised kind of to help her defense by you know, philanthropists and senior businessman and you know, scientists like Professor Vuisa had given up hundreds and hundreds of hours of their own unpaid in order to further the science that eventually helped to release her.

Is it right that that you know that those factors came into play because without those factors, without that help, almost certainly she we would not be having this conversation.

right without that that important. I know the people I was speaking to, how passionate they were about Yeah, it was a wrongful conviction and we wouldn't have got to that point that these people didn't continue on the actual the process in which she was granted. So last where we were talking about it was back with Mark's speakman. Yes, second inquiry.

there were two kind of fresh elements I suppose. One was that there was the evidence given in particular by two Danish scientists who had conducted further research into the genetic mutation and found it to be pathogenic, and their very clear view was that the genetic mutation had triggered the deaths of Sarah and Laura. And then the next and highly significant part of the fresh evidence was the expert opinions of as you've said earlier.

her convictions. So there was the fresh genetic evidence, there was the fresh evidence about the diaries, and in the end, Sophie Callen, who was the council assisting Tom Bathurst, who was the former Chief Justice in charge of it, they both agreed that there was reasonable doubt. There were some scientists who were resisting this, but I think all but one said that there was a reasonable possibility that this

genetic mutation could have killed Sarah and Laura. And so in the end, really the new Attorney General decided on the recommendation of Tom Bathurst to pardon and release Kathleen, and that happened in June twenty twenty three, and then six months later in December following handing down his report, her case went to the Court of Criminal Appeal where she was acquitted formally acquitted of all five charges.

have been frankly absurd to suggest that. But the acquittal was absolutely key because it wasn't just a case of her being pardoned for what she had done and released. It wasn't just the criminal justice system saying, okay, you've kind of served your time, you've suffered enough, will release you. It was critical because under the eyes of the law now in the eyes of the law. She is now an innocent woman. She has been acquitted of all the charges.

of this case. There's no getting away from the fact that the broader Folbig family as well as her you know, lost for children, and that that tragedy may be kind of softened by time, but it certainly doesn't leave us all.

from the defense. There were so many complexities in there and subtle little things that you had to look at that I could imagine. It's yeah, broken a lot of people. Your book must have taken you a lot of time to prepare, but it certainly details the nuances of what happened with this matter. It's given me a greater understanding

of what's happened with this case. So when I do offer an opinion, now I can offer it with some informed opinion other than just taking nah it must be gildysh was convicted.