DPP accepts reasonable doubts about Kathleen Folbigg’s guilt, the inquest said
Expert evidence before the investigation suggested the variant, discovered after Folbigg’s 2003 trial, could cause cardiac arrhythmia – irregular heart rhythms – and sudden unexpected death.
No experts before the investigation ruled out the possibility that the genetic variant caused Sarah or Laura Folbigg’s deaths, but they were divided on whether it was likely.
Some expert evidence was heard about possible natural causes for Caleb and Patrick.
Callan said that “in our submission, the weight of expert evidence in the disciplines of cardiology and genetics is that … genetic variant is a reasonably possible cause of the sudden deaths of Sarah Folbigg and Laura Folbigg.”
Additionally, Callan said myocarditis, or inflammation of the heart muscle, was “a reasonably possible cause” of Laura’s death.
“Regarding Patrick Folbigg, there is compelling expert evidence that there is a reasonable likelihood that there is an underlying neurogenetic disorder [such as] … Epilepsy was the cause of Patrick’s apparent life-threatening event and subsequent death.
“These three allegations lead to a fourth, namely that this casts doubt on Ms Folbigg’s guilt in relation to the aggravated assault of Patrick and the deaths of Patrick, Sarah and Laura Folbigg.
“It also severely undermines the tendency versus chance argument and casts doubt on Ms Folbigg’s guilt in relation to her first baby, Caleb Folbigg.”
The inquest learned for the first time psychological and psychiatric evidence about the interpretation of Folbigg’s diaries — a key element in the prosecution’s circumstantial case that she smothered the children. No expert concluded that the diaries contained clear admissions of criminal guilt.
Callan said that “certain entries could be interpreted as admissions to killing her four children.”
“However, the expert evidence in the disciplines of psychology and psychiatry … consistently indicates that interpreting the diaries in this way would be unreliable.”
Callan said that at the time of writing the diaries, Folbigg was suffering from a major depressive disorder and was expected to show grief after the deaths of her children.
“This sheds a very different light on Ms. Folbigg’s declarations of guilt and responsibility for the deaths of her children in her journal and journal entries,” Callan said.
“Overall that [expert] Evidence undermines the probative value of the entries in the diaries and journals and tends to make them neutral, that is, neither incriminating nor exonerating.”
Callan said Folbigg’s attorneys wrote in writing that the evidence before the inquest suggested a “strong likelihood of innocence.” She said that although Folbigg’s submissions differed in some respects from those of the counsel counsel, there were “key points of agreement” about the meaning of the new evidence before the inquest and the conclusions drawn from it.
Lawyers for Folbigg’s ex-husband Craig had argued that “the predominant feature that remains in this case is the fundamental implausibility of the hypothesis that four children in a family died of natural causes before they reached the age of two,” Callan said .
His lawyers contended that there were “compelling reasons to continue to treat the diary entries as Ms Folbigg’s admissions of guilt”.
If Bathurst has reasonable doubts, he can refer the case to the Criminal Court of Appeal to consider overturning Folbigg’s convictions. Previous cases suggest he also has the power to recommend a pardon, which could hasten her release from prison.
Callan argued that “the mere fact of the coincidence of four unexplained infant deaths is not absolute proof of guilt.
“That would mean applying the discredited Meadow’s Law, and in our view such an argument logically fails.”
Meadow’s Law, named after British pediatrician Sir Roy Meadow, referred to an argument that cot deaths in a family were a tragedy, two suspects and three murders until proven otherwise.
“To put it colloquially, what’s the probability of a family having four different cases of SIDS?” Callan said.
The analysis risks “an error in considering whether there is reasonable doubt and would risk shifting the burden of proof,” Callan said.
Callan said the inquiry must determine whether “the body of evidence makes homicide the only rational hypothesis.”
“Following our submission, the additional evidence presented to this investigation has altered the balance of the trial in a number of important respects.”