This case has created a lot of controversy, and of all the scenarios in this book, it causes me the most concern in terms of whether an innocent woman is in jail for crimes she has not committed.
Was there anything in Folbigg’s early life to suggest she was predisposed to harming her children? Or were there problems in her married life that might have led to her suffering a post-natal psychological condition? What of the circumstances around each child’s birth, life and, finally, death? When you review all the publicly avail able information about the investigations that took place, and go through the transcripts from the trial, is there any evidence that could raise probable doubt in Kathleen’s case?
Perhaps most interesting to me in this case are Kathleen’s diaries – considered by some to express what were tantamount to admissions of harming her children. However, I am going to consider Kathleen innocent until the evidence points me solidly in the other direction. The majority of the material that forms this chapter is taken from the original trial documents in 20031 or from court documents around the appeals in 2005 and 2007,2 and entries from Kathleen’s diaries, which are integral to understanding Kathleen’s psychological state during her marriage.
Like Lindy Chamberlain, Folbigg has exhausted her avenues for appeal through the courts. It appears that her fate is sealed and she will remain in prison for her full minimum term; in isolation at Sydney’s Silverwater Women’s Correctional Centre. But, again as with Lindy, the tide of opinion is slowly turning in Kathleen’s favour. This really began in 2011, when Emma Cunliffe began researching Kathleen’s case for her PhD; this became the basis for a book entitled Murder, Medicine and Motherhood, in which Cunliffe concluded Folbigg was wrongly convicted. It’s a very informative read, and I would recommend it highly to anyone interested in Kathleen’s story, as well as to anyone who wants to gain a better understanding of the legal process. Then, in 2013, a number of articles were written in various newspapers, questioning the reliability of the prosecution and calling for a judicial review. The calls for a review gained momentum when influential radio host Alan Jones waded in, saying the evidence against her has been discredited.3
Since that time the University of Newcastle’s Legal Centre has taken up Kathleen’s cause4 and at the time of writing was seeking a judicial inquiry into her convictions for killing her four children, seeing parallels with the Lindy Chamberlain case. The centre will lodge a submission with the New South Wales Governor and Attorney-General in 2014. For now, it’s a case of watch this space.
THE SCENARIO
Born Kathleen Megan Donovan in 1967, Kathleen did not have an easy start to life. She lived with her birth parents until she was eighteen months old, although she appears to have spent prolonged periods with her mother’s sister and her husband (Mrs and Mr Platt); her own mother seems to have spent little time looking after her. At one stage, the Platts tried to take full-time custody, and Kathleen’s mother even signed the requisite forms, but later withdrew consent. On 8 January 1969, Kathleen’s father murdered her mother, stabbing her twenty-four times, a crime for which he spent twelve years in prison before being deported to the UK. Kathleen was made a ward of the state and placed in the care of the Platts.
Although the Platts tried to cope, Kathleen was a disturbed child and when she was three she was referred to the Yagoona Early Childhood Health Centre for assessment by Dr Spencer. In her report dated 12 June 1970, Dr Spencer wrote that Mrs Platt described Kathleen as virtually uncontrollable, and that she was having a disrupting influence on the Platts’ marriage. Kathleen is also said to have indulged in excessive sex play and masturbation, which led Dr Spencer to conclude that Kathleen had been sexually abused by her father. Later that same month, Mrs Platt said that Kathleen’s behaviour was deteriorating; by July they couldn’t cope any more and Kathleen was sent to Bidura Children’s Home. In September Kathleen was adopted by the Marlboroughs, a family who lived in Kotara, a south-western suburb of Newcastle, about 160 kilometres north of Sydney. She left school at fifteen, after which she took several low-paying jobs. Her relationship with Mr and Mrs Marlborough deteriorated, until the final straw came after an argument about a boyfriend when Kathleen was seventeen, and as a result Kathleen left home. The following year she started dating and later married twenty-five-year-old Craig Folbigg, a steel worker. They decided to settle in Newcastle.
It did not take Kathleen long to fall pregnant with their first child, a son, Caleb, born 1 February 1989. At birth, Caleb was described as full-term and healthy, but he did have some difficulty breathing and eating at the same time, and before he left hospital he was diagnosed as having transient tachypnoea.5 His breathing problem did not resolve itself within a few days as expected, and one morning while Kathleen was feeding Caleb she noticed he was having problems breathing, so she took him back to the hospital for a check-up. This time he was diagnosed with having a lazy larynx,6 a congenital (meaning, present from birth) softening of the voice box above the vocal cords, which makes it hard for the child to breathe. It’s a condition most children grow out of by their first birthday. Caleb was sent home, although it was noted that in addition to the whistling noise caused by his medical condition, he needed to stop breathing while feeding.
At 8 pm on 19 February, Kathleen put Caleb down in his bassinette for the night in the room adjacent to the bedroom Kathleen and Craig shared. The couple then went to bed. In a sleeping diary kept by Kathleen, she noted that Caleb had a poor night, and was awake from 12 am until 2 am on 20 February. Just a short time afterwards, at around 2.50 am, Craig Folbigg was woken by his wife’s screams. He ran into the adjoining room and found Kathleen standing over Caleb’s bassinette screaming that there was something wrong with the baby. Caleb was lying on his back in his bed, wrapped in a rug. Craig picked Caleb up, noticing that he was warm to the touch, but was blue (cyanotic) and was not breathing. Craig told Kathleen to call the ambulance and attempted CPR until the ambulance arrived at 2.55 am. Sadly, at just nineteen days old, Caleb Folbigg died.
Apart from Caleb’s lazy larynx, no medical or metabolic problems were diagnosed at post-mortem, and there were no external injuries noted. However, inside Caleb’s lungs there was evidence of hemosiderin, an iron-storage molecule that often forms after bleeding into a tissue and is consistent with asphyxia7 (one form of suffocation). There was also mottling on the pleural surfaces of the lungs and congestion in some places, showing that some areas did not receive enough oxygen. Again, this would be consistent with asphyxia. Dr Cummins, the local pathologist who performed the autopsy on Caleb, determined that death was due to Sudden Infant Death Syndrome (SIDS). This is the common diagnosis when a child under twelve months dies unexpectedly and when, even after post-mortem examination and death scene analysis, it is not possible to determine a specific cause but there is no reason to suspect anything other than a natural death.8 Consequently, no police investigation was initiated at this time, and the pathologist and coroner were satisfied that the baby’s death was natural.
Keen to have another child, just seven months later Kathleen fell pregnant again, giving birth to Patrick on 3 June 1990. As a result of Caleb’s death, Craig Folbigg decided to take some time off work to help care for Patrick. Patrick was discharged home and appeared to be a healthy baby. A sleep study undertaken on Patrick at Mater Hospital, Sydney, between 14 and 15 June 1990 was normal. When Patrick was just over four months old Craig returned to full-time work. Three days later, on 18 October, Kathleen put Patrick to bed in a cot in a bedroom off the dining room. Craig checked on him at 10 pm, when he appeared to be sleeping peacefully. Kathleen later told Patrick’s doctor that she had heard him coughing and had gone into his room at around 3 am (now 19 October), but he seemed fine, so she went back to bed. However, thirty minutes later she heard him gasping, so she rushed back to his room where she found he was blue around his lips and was limp. Kathleen panicked and started screaming, a sound that woke Craig, who ran into Patrick’s room and started giving him CPR until th
e ambulance crew arrived. The ambulance crew noted that Patrick’s breathing was faint but he responded well to the oxygen they administered.
Patrick was taken to hospital, where he seemed to improve. However, on the following evening in hospital he had a sudden seizure. A CT scan revealed hypodense (less dense) regions in his brain, indicating areas of softening of the brain tissue, and viral encephalitis (inflammation of the brain caused by a virus) was suggested as the possible cause. Patrick was subjected to a large number of tests, but the cause of his apparently life-threatening episode was never definitively determined. Patrick regained consciousness, but was later diagnosed by a paediatric neurologist as suffering a major form of epilepsy, a neurological problem caused by near asphyxiation, as well as cortical blindness.9 Patrick was admitted to hospital on a number of other occasions as a result of his seizures, as well as for treatment for gastroenteritis and an oculogyric crisis.10
Kathleen struggled emotionally when she brought Patrick home from hospital; she suffered from frequent mood swings and was often angry and frustrated. To escape, she started leaving Patrick with Craig’s sister, Carol Newitt, as well as with one of their neighbours. Craig knew she was finding it hard to cope, as he had found a diary in which Kathleen had said she was struggling and that Craig and Patrick would be better off if she left them.
Patrick survived for just four more months. At 10 am on 13 February 1991 Kathleen called Craig at work, stating, ‘It’s happened again’. Patrick was found in his cot by the ambulance crew, and though he was still warm to the touch, he was showing signs of peripheral cyanosis, had no pulse and was not breathing. He was taken to hospital, but died shortly afterwards, aged eight months. His death occurred within four months of the life-threatening event that first saw him hospitalised. Patrick’s death certificate showed his cause of death as asphyxia due to obstruction of his airway consequent to an epileptic fit. A post-mortem examination showed evidence of scarring, as well as damage to his liver and lungs, and an enlarged thymus gland. No congenital metabolic problems were discovered. Again, no police investigation was initiated and the death was not considered suspicious.
Following Patrick’s death, the Folbiggs moved to Thornton, a town around 25 kilometres north-west of Newcastle, hoping for a new start. Kathleen wanted to have another baby and a year later she fell pregnant for the third time, giving birth to Sarah on 14 October 1992. Sarah, a generally healthy child, showed signs of sleep apnoea,11 and was described as being a very loud snorer. Her condition was not considered abnormal, and the Folbiggs were given a sleep apnoea-monitoring blanket, which sets off an alarm if the child stops breathing. However, it frequently gave false alarms and its use was abandoned a few days before Sarah died.
Kathleen’s mood swings continued and she often showed signs of frustration and anger with Sarah, a situation that was exacerbated when Sarah, at just over ten months old, caught a cold (for which Kathleen had been treating her with antibiotics) and started having trouble sleeping. On 28 August, two days before Sarah’s death, Kathleen moved her sleeping cot into the main bedroom and stopped using the sleep apnoea blanket. On 29 August, Kathleen was exasperated when Sarah would not settle for sleep and passed the baby to Craig, who put her to bed between 10 and 10.30 pm. At around 1.30 am on 30 August 1993, the morning of Sarah’s death, Kathleen’s screams woke Craig who rushed to check on Sarah; he found her lying on her cot, blue, with vomit and mucus in her mouth. She had no pulse or other vital signs, but was still warm to the touch. Craig tried to revive her, as did the ambulance crew, but their efforts failed. Sarah died, aged ten and a half months.
Professor Hilton, the senior pathologist at the New South Wales forensic pathology laboratory, performed the post-mortem examination on Sarah. His report showed that Sarah had a build-up of fluid in her lungs, which could have made it hard for her to breathe. She also showed signs of minor haemorrhages (or petechiae) on the heart, lungs and thymus. Her uvula, the bell-shaped projection at the back of the throat, was unusually swollen or haemorrhagic. Both of these symptoms can be signs of the Streptococcus germ, which causes numerous infections, chiefly of the respiratory tract; this bacterium was found in Sarah’s airways and was noted on post-mortem. Sarah’s post-mortem report revealed also that she died of myocarditis12 and the cause of death was officially registered as SIDS. For the third time, no investigation was initiated and the coroner’s finding of natural death accepted.
After losing yet another child, Kathleen became despairing. Her relationship with Craig deteriorated and they went through a number of separations and reconciliations. To try and escape their sad history, the Folbiggs again relocated, this time to Singleton in the beautiful Hunter Valley, 8o kilometres northwest of Newcastle. The couple lived in this popular wine-growing region for two years before Kathleen again fell pregnant. She gave birth to their second daughter, Laura, on 7 August 1997. Laura was subject to a number of tests, one of which showed that she was suffering from mild sleep apnoea, but there was no evidence of any genetic, metabolic or biochemical problems. As a further precaution, due to the family history, Laura’s sleeping and breathing patterns were observed, using a corometric machine that monitors the baby’s vital signs as well as environmental factors such as the room temperature and ventilation. The device was also able to store information that was then downloaded to the Children’s Hospital at Westmead, Sydney, for analysis. Just like Sarah’s sleep monitor, Laura’s regularly gave off false alarms. By the time she was almost a year old, monitoring was therefore reduced as she was considered outside the high-risk period for SIDS (between one and six months), although Kathleen assured Craig that she was vigilant over the child. Kathleen’s promises did little to put Craig’s mind at rest. Over time their relationship again deteriorated, and in August 1998 Kathleen wrote to Craig saying that Laura was the only thing keeping them together. The Crown would later use this against her, but Kathleen was clearly struggling emotionally at this time. She was increasingly choosing to spend her days at the gym and evenings with friends, as she saw these activities as her escape.
Laura’s mild sleep apnoea did not present any significant problems until she was nineteen months old, when she caught a cold. At around 7 am on the day of her death, 1 March 1999, Kathleen had become angry because Laura was crying. Craig was about to leave for work and the couple had an argument. Later that morning, Kathleen took Laura to see Craig at work, leaving him at 11 am. Just over an hour later, at 12.05 pm, Kathleen called 000 and reported that Laura had stopped breathing. Two ambulance crews arrived to find Kathleen administering CPR on Laura on the breakfast bar. The medics examined Laura and found she was not breathing and was blue; on initial examination her heart was beating, but only very slowly, before it stopped beating completely. Laura was taken to hospital, but was pronounced dead at 12.45 pm.
The post-mortem, performed by Dr Alan Cala at the central mortuary in Sydney, showed that Laura had clear fluid around her nostrils and some inflammatory changes in her heart consistent with a mild infection, probably viral. Laura had petechial haemorrhages on her thymus gland, as well as haemorrhages on her lungs restricted to a particular main region. Her lungs had also collapsed. Dr Cala was unable to determine the cause of death, but ruled out SIDS. The coroner recorded Laura’s death as ‘undetermined’ and ordered a police investigation. Craig was distraught following Laura’s death and he and Kathleen separated – the stress of losing four children proving too much for this young family.
THE INVESTIGATION AND THE EVIDENCE
Quite correctly, when Detective Sergeant Bernard Ryan was assigned to the Folbigg case, he took nothing for granted. He did not presume this was another case of SIDS, but instead kept an open mind and considered all possibilities. However, his suspicions were raised when he discovered that Laura was the fourth child the Folbiggs had lost in a similar manner.
As a result of the couple’s separation, Kathleen had moved out of the family home, and it was while Craig was tidying up her remaining posse
ssions that the case took an unexpected and – superficially – sinister turn. In a bedside drawer Craig found diaries, written by Kathleen, the contents of which shocked him as they appeared to indicate that Kathleen hurt the children intentionally. The Crown relied heavily on these diaries throughout the initial prosecution, particularly those entries made following Sarah’s death, when Kathleen was thinking of having another child, as well as those from the period just after Laura’s birth. The prosecution felt they were of significant probative value, meaning they helped prove the Crown’s case that Kathleen had intentionally smothered all four of her children. The prosecution considered the diaries so important because – as they said to the jury – some entries were virtual admissions by Kathleen that she was responsible for the deaths of Caleb, Patrick and Sarah. Of particular note was an entry made on 3 June 1990, the day Patrick was born and fifteen months after Caleb’s death:
03/06/1990:
I had mixed feelings this day. Whether or not I was going to cope as a mother or whether I was going to get stressed out like I did last time. I often regret Caleb & Patrick, only because your life changes so much, and maybe I’m not a Person that likes change. But we will see?
The words obviously show a woman of mixed emotions. She admits that she is frightened she may not cope with another baby. But the question I asked when reading these entries is whether these words were clearly those of a woman who has already murdered one child.
Kathleen wrote about huge mood swings and her emotional problems dealing with the transition from being pregnant to having a baby. Her diaries also detailed marriage problems – her fears that Craig would leave her, possibly for another woman – as well as personal insecurities. But it was comments about her feelings towards her children that really set suspicions racing – entries like:
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