Kathleen Folbigg case review bid challenges SIDS evidence

ANOTHER LOOK:  Kathleen Folbigg (left),  Professor Ray Hill (top right), and Shaun McCarthy.
ANOTHER LOOK: Kathleen Folbigg (left), Professor Ray Hill (top right), and Shaun McCarthy.

THE jury that convicted Kathleen Folbigg of killing her four children was ‘‘almost certainly misled’’ about the rarity of multiple sudden infant death syndrome cases in families, a submission seeking a judicial review of her case will say.

Evidence that there were no known cases of three or more SIDS deaths in a family was not only wrong, but would have left the jury in 2003 discounting SIDS, and ‘‘leaving multiple homicides as the only explanation’’, leading United Kingdom statistician and professor of mathematics Ray Hill has said in a review of the Folbigg case.

‘‘The message that these jurors were receiving was that three or more cases of SIDS in one family simply never happen,’’ Professor Hill wrote.

But a large American study in 1987 included two families where four babies had died of SIDS and related conditions, and later United Kingdom and Norwegian studies of SIDS included a number of families where three babies had died.

The studies concluded that babies born in families where one child had already died of SIDS were up to 10 times more likely to become SIDS victims. The ‘‘risk of adverse outcomes [was] significantly greater’’ for babies where two or more previous siblings had died of SIDS, or the  now more commonly used term sudden unexpected death in infancy, the American study found.

The studies were not raised in the Folbigg trial. One medical expert said he had searched a medical database for evidence about multiple SIDS deaths but found none.

Professor Hill’s review of the statistical evidence at the Folbigg trial forms part of a University of Newcastle Legal Centre submission to the NSW Governor and NSW Attorney-General, seeking a judicial review of the Folbigg case. All other appeal avenues have been exhausted.

The submission could be lodged before year’s end.

Folbigg was sentenced to 30 years’ jail for the manslaughter of her first child Caleb, 19 days old, and the murder of her three children Patrick, eight months, Sarah, 10 months, and Laura, 19 months, at Singleton between 1989 and 1999, but has always maintained her innocence.

A 2005 appeal to the NSW Court of Criminal Appeal noted that each child died suddenly and unexpectedly because of ‘‘cessation of breathing’’, although post-mortems failed to establish exactly what had caused the cessation of breathing.

Newcastle University Legal Centre director Shaun McCarthy visited Folbigg in jail on  September 30. The discussion included Professor Hill’s criticism of medical evidence given at the trial, repeated by the judge in his summing-up to the jury, that there was ‘‘no authenticated record of three or more such deaths [SIDS] in a single family’’.

In his review, Professor Hill said flawed statistical evidence about the probability of multiple SIDS deaths in families had led to serious miscarriages of justice in four United Kingdom cases where, in the past decade or so, women were charged with murder after three SIDS deaths in their families. A medical expert’s 1989 report that stated, ‘‘one sudden infant death is a tragedy, two is suspicious and three is murder until proved otherwise,’’ lead to the UK women being charged despite significant evidence about the increased likelihood of SIDS deaths in families after one SIDS death.

Challenges to that report from statisticians, including Professor Hill, played a significant part in the cases against the women being dropped.

But Professor Hill said he had no idea how widespread the ‘‘three is murder until proved otherwise’’ view was among pathologists and paediatricians worldwide, until he was asked to review the Folbigg case by Newcastle University Legal Centre.

In a 2005 decision rejecting Folbigg’s appeal, the NSW Court of Criminal Appeal considered diary entries by Folbigg in the context of the medical evidence.

‘‘The picture painted by the diaries was one which gave terrible credibility and persuasion to the inference, suggested by the overwhelming weight of the medical evidence, that the ... incidents had been anything but extraordinary coincidences unrelated to acts done by the appellant [Folbigg],’’ the court said.

The judicial review will include a forensic review of the Folbigg babies’ health.

The review process was prompted by Australian academic lawyer Emma Cunliffe’s 2011 thesis, which concluded Folbigg had been wrongly convicted because of the lack of proof beyond reasonable doubt, and despite real expert disagreement about the cause of death.

Leading forensic science legal experts, Gary Edmond, supported a review, saying Folbigg’s case was tainted by unreliable, misleading and outdated medical evidence.

Mr McCarthy said judicial reviews were rare but he believed the Folbigg case had ‘‘reasonable prospects’’ of success.