The Crown was also using against Carol Matthey the fact that she had been hospitalised for undiagnosed medical episodes – possibly seizures – after which she lost consciousness. The prosecution’s submission was that these medical incidents were relevant to their case as they somehow exemplified her attention-seeking behaviour, in an attempt to gain Stephen’s attentiveness as a result of their ‘unstable relationship’. However, the Crown failed to admit any evidence in support of their assertion that Carol had faked these events in an effort to secure her husband’s devotion. The medical notes associated with them did not indicate that the doctors thought she was pretending. This evidence was deemed inadmissible by Judge Coldrey.
Again, to try and undermine Carol Matthey’s character in the mind of the jury and strengthen their argument that her actions were driven by her trying to get her husband’s attention, the prosecution claimed that a fire at the Mattheys’ home in 1998 had been started by Carol Matthey. This is unfounded, as the original firefighter’s report gave the cause as a newly installed central heating unit. This was later contested, but nonetheless the house insurance company paid out on the claim, and before the accusation that she had murdered her children no one had ever accused her of arson. The Crown, again, also failed to offer evidence to support this hypothesis – simply basing their proposition that Carol was involved on the fact that the event took place. Again, Judge Coldrey ruled that this had no probative value as part of what the Crown alleged was some sort of behavioural trend.
A REVIEW OF THE FORENSIC EVIDENCE
The Crown sought to challenge the conclusion drawn by the forensic pathologists who undertook the post-mortems on the Matthey children, seeking experts that were willing to offer alternative opinions. They found these experts at the interstate level, and even overseas in one case. Justice Coldrey was very conscious of not letting the expert witnesses step outside their areas of expertise or rely on matters that were extraneous to their proficiency. The defence also called into question the admissibility of some of the Crown witnesses’ evidence.
One of the prosecution witnesses was Dr Susan Beal, a consultant pediatrician and SIDS researcher (but not a pathologist) who reviewed the findings of each of the Matthey children’s post-mortems. Dr Beal agreed that Jacob’s death was most suitably attributable to SIDS, adding however that the life-threatening episode Jacob experienced around five weeks before his death increased the likelihood that he had suffered non-accidental injury. In relation to Chloe’s death, Dr Beal stated that the fact that the infant was found in the supine position (face up) raised the possibility that the mother had killed the child. To explain Joshua’s death she gave the cause as ‘undetermined’ – as she did not regard the final event of his death as being consistent with either SIDS or from a Klebsiella infection or an accident. She went further, implying that despite the complete lack of any evidence, Carol Matthey may have played a part in the post-surgical cardiac arrest Joshua suffered in hospital. I find this difficult to reconcile with the fact that the child had been in an ICU and was surrounded by medical personnel, none of whom reported anything suspicious or untoward. She also stated that filicide was the most likely cause of death in Joshua’s case. Finally, in relation to Shania’s death, Beal denounced Carol’s claim that the child held her breath when she became distressed as a ‘faint possibility’. Beal listed Shania’s death as occurring as a result of an undetermined cause, most damningly concluding her report by stating that ‘all the evidence points to all the children having been killed by non-accidental suffocation’.13
I was most surprised by this comment from the court documents:
Dr Beal’s reasoning appeared to be as follows. Whilst Shania’s death had to be called undetermined, having ruled out to her satisfaction accident, infection or unrecognized congenital malformation, she was prepared to find non-accidental suffocation. Having done so, Dr Beal reasoned backwards to a probability that the other three children had died by non-accidental suffocation.13
I find this extraordinary, as the leap from poor parenting to multiple filicide is huge. Nonetheless, to support these claims the Crown was relying on Dr Beal, the medical witness who had prepared some sort of psychological profile for Carol Matthey – and had reached the conclusion that she was a child-killer.
The Crown also relied on the expertise of Dr Alan Cala, a forensic pathologist who also reviewed each of the post-mortem findings. Dr Cala generally agreed with Dr Beal, although he also thought Jacob’s death was unexplained, as opposed to resulting from SIDS. Dr Cala continued in the same vein as his comments in the Folbigg case (detailed in Chapter 3) when reviewing Chloe Matthey’s death, which he did not agree could be attributed to SIDS either. His reasoning, as highlighted in the court documents, drew on occurrences beyond the child’s death. In particular, the court file contains the following comment:
I do not agree with Dr Campbell when he says ‘there is no evidence for the latter [non-accidental injury]’. Perhaps he has formed this view based on the autopsies findings alone, without consideration given to the circumstances surrounding the death, in particular Jacob’s death.15
As a result of this reasoning, he returned a finding of ‘undetermined’ cause of death for Chloe. Dr Cala accepted that the cardiac arrest Joshua Matthey suffered in hospital was the result of the administration of intravenous morphine; however, he supported Beal’s unsubstantiated allegation that Carol Matthey was somehow involved in this event. Dr Cala refuted Dr Burke’s diagnosis that Joshua died of a Klebsiella septicemia infection, disputing that this could have killed the child, as he did not show any clinical signs of infection on the day he died. Again, he proffered ‘undetermined’ as the cause of death. The worst was yet to come. When Dr Cala reviewed photographs and histology slides from Shania Matthey’s post-mortem he allegedly found several areas of recent injury to her nose and mouth, which he said had not occurred as a result of the attempted resuscitation. He stated that Dr Ranson had failed to describe these in his post-mortem report, and gave the cause of death as ‘smothering’. Both Drs Beal and Cala had been unaware of the examinations by the three forensic odontologists, none of whom had found any of the facial injuries described by Cala from his assessment of post-mortem photographs. Dr Cala suffered under cross-examination, and had to admit on numerous occasions that photographs were not the ideal medium for making diagnoses. Nonetheless, he maintained in reexamination that there was no identifiable natural cause of death for any of the four Matthey children, and that the deaths were in fact consistent with smothering.
The final witness for the Crown was Dr Janice Ophoven, a pediatric forensic pathologist, who was also employed by the prosecution in the Folbigg case. She began her report with a general summary of the Matthey family history, as she had in Folbigg’s case, although judge Coldrey noted that not all of the information Ophoven offered was relevant. The pathologist then went on to review the post-mortem findings for each of the four children. Unsurprisingly, Ophoven came to the conclusion that Jacob’s death was consistent with intentional suffocation, not SIDS. In relation to Chloe’s death, Ophoven again did not agree with the original post-mortem’s findings and diagnosis, instead offering the opinion that the cause of Chloe’s death was ‘un determined’, even though she conceded that the medical conditions that were present were all found in SIDS deaths. Ophoven stated that Chloe’s death was a case of ‘obvious homicidal violence’ and the death consistent with suffocation. In regard to Joshua’s death, Ophoven considered the diagnosis of Klebsiella septicemia infection as inconsistent with the child’s clinical history, and the cause of death in Joshua’s case as ‘homicidal suffocation’. More importantly, Ophoven repeatedly relied on circumstantial evidence when reaching her diagnoses of cause of death for the four children – namely, that other siblings from the same family had died and that Carol Matthey had been caring for the children at the time of their deaths.
Drs Beal, Cala and Ophoven had been involved in the successful prosecution
of Kathleen Folbigg in 2003. One of the quotes from Dr Beal that struck me during that case was this:
As far as I am aware there has never been three or more deaths from SIDS in the one family anywhere in the world.14
This publication by Pollanen in 200515 really puts to rest any argument that multiple unexplained natural child deaths cannot occur in one family:
It is possible for circumstantial or other non-medical history to suggest or confirm deliberate suffocation, though this is extremely rare and not the concern of the pathologist. A caution must be offered about maternal confessions of smothering … a number of families are reported where three or even four siblings have died inexplicably.
In 2004, Professor Stephen Cordner was asked by the Director of Public Prosecutions to review the information available and provide an opinion on the four Matthey children’s deaths. Professor Cordner, an undisputed world leader in the field of forensic medicine, has been the Director of the Victorian Institute of Forensic Medicine for twenty-five years, during which time the Institute has become widely renowned in forensic medicine and science. His report, dated 28 January 2005, stated that Cordner found that the cause of death diagnosed as a result of each of the children’s post-mortems was compatible with natural causes, and that he did not disagree with any of the pathologists involved in the original classifications on any major point. He indicated that each of the pathologists that undertook the original post-mortems were advantaged over those who tried to review the information from case files alone, and that they had been bound to report their findings in such a way that another pathologist could reach their own conclusion as to cause of death. Professor Cordner was particularly critical of Ophoven’s ‘homicidal smothering’ hypothesis, stating that it was ‘flawed in its assumptions, reasoning and conclusions’. This is about as damning an appraisal as one expert will level at another professional, and speaks to the level of disagreement that Cordner felt towards Ophoven’s comments.
Professor Cordner drew attention to the fact the Shania in particular showed no evidence of any trauma inside her mouth, which might be expected had she been intentionally suffocated. One of the key statements Professor Cordner made, which I hope will influence other cases of this nature and prevent further damaging evidence being heard against innocent mothers, was this:
Forensic pathologists do not get into a consideration of circumstances of a psycho-social kind … or that might indicate personal suspicion (that Ms Matthey was the last person to see the children alive) where those circumstances are unrelated to the autopsy findings16 or medical history … In addition, they are probably not matters of expertise, and if that is so, pathologists are no better able to evaluate them than anyone else.17
While the New South Wales courts had accepted these same experts with the same line of reasoning in the Crown’s case against Kathleen Folbigg in 2003,18 in Victoria Justice Coldrey was scathing. He noted how Dr Cala said one of the deaths was not SIDS simply because there had been earlier deaths in the family. Asked if he had a medical reason for not calling it SIDS, Dr Cala replied: ‘No, I don’t.’ Beal, famous for having been the first to publicly tell mothers to sleep babies on their backs, found the causes of death of two of Matthey’s children to be undetermined and that another was SIDS. But the fourth child was too old for SIDS, therefore ‘murder should be considered’. She then took a surprising leap in logic, concluding ‘all the evidence points to all the children having been killed by non-accidental suffocation’.
Dr Ophoven didn’t escape Justice Coldrey’s disapproval either. While the judge accepted that there was the possibility that the Matthey children died of manual asphyxiation, and that their mother intentionally killed them, he did not accept that a pathologist was in a position to reach this determination based on the information available to them in this case. He commented that prosecutors and courts may not like coincidences of this nature, where multiple unexplained deaths occur in one family, but that should not affect judgements; and he remained open-minded that medical conditions which are currently not well understood or easy to diagnose may have been the cause of the Matthey children’s deaths.
Coldrey concluded that while suffocation could not be excluded from the medical findings at autopsy, he relied on Professor Cordner’s comment that ‘if this case is to result in prosecution, I want to clearly state that there is no pathological basis for concluding homicide’.19 Powerful stuff. None of the Crown’s three key medical expert witnesses – Beal, Cala or Ophoven – had examined any of the children post-mortem; they based their evidence solely on photographs and post-mortem reports.
Carol Matthey’s mental state was called into question. This would have to be part of the Crown’s case as people who are of balanced mind do not intentionally suffocate four of their children. The medical evidence indicated that during the period in which the children died, Matthey was not suffering from post-natal depression. Carol was clinically depressed at times during the relevant four years and four months, as she was diagnosed and treated by a general practitioner in mid-September 2002. However, as this was two months after Joshua’s death, Justice Coldrey suggested that this was in response to the loss of her children, as opposed to having an influence on their deaths. There was nothing in Matthey’s medical history that suggested any psychiatric illness at any time.
After reviewing all of the medical evidence that the Crown wanted to put forward to trial, Coldrey turned his attention to issues of admissibility. This may sound technical, but actually this is one of the most important parts of a fair criminal justice process, as pre-trial is the time when the judge decides what evidence the Crown will be allowed to put before the jury for consideration when trying to prove their case beyond reasonable doubt. There are very stringent rules involved in this process, as it could be very damaging if the prosecution were allowed to put anything they felt might help their case before the jury, regardless of whether it was completely unsubstantiated. Admissibility of expert evidence is in essence broken down into two interconnected but separate issues: 1) is the person who is giving the evidence an expert in that field; and 2) is the evidence reliable? For each and every expert the judge has to examine both aspects and decide if their evidence can be included in the trial; and, if so, whether there are any restrictions that should be placed on what the expert can give evidence on. In simple terms, a forensic pathologist should not be asked about the defendant’s psychological condition. This is not to say the pathologist is not an expert in the medical sense, but that their testimony has to be limited to that which is covered by the expertise. This is complicated, and sometimes hard for the judge to assess, but critical for a fair trial.
That obviously raises issues with the evidence in this case, as the medical experts employed by the Crown entered their conclusions as to Carol Matthey’s intentions. They said she intentionally killed her children, a conclusion they reached not as a result of the medical evidence – which is the only aspect on which they are qualified to comment – but because they were suspicious that all four died when she was the only adult in attendance. As protested by the defence, this also treads on the jury’s toes, as it is their job to determine if the Crown had proved to the required legal standard that Matthey deliberately suffocated her children. The Crown’s experts simply cannot say that she is guilty in their minds; this is extremely prejudicial against the accused.
COMPARATIVE CASES
There really was no alternative suspect to consider here, as the case against Carol Matthey was dropped due to lack of evidence. In the pre-trial medical hearing reviewing the admissibility and veracity of the medical evidence Justice Coldrey deemed much of it inadmissible. The case against Matthey was purely circumstantial, based simply on the number and pattern of the children’s deaths.
The defence drew some comparisons of its own, and relied on the judge’s decision in the British case of Angela Cannings (detailed in Chapter 3). This case, although occurring on the other side of the world, was a go
od proxy for the Matthey situation, as Cannings was accused of murdering two of her children, and the attempted murder of a third who survived a life-threatening episode, by intentional suffocation. As with Matthey, Cannings denied hurting any of her children and there was no physical evidence to support the hypothesis of murder. There were simply the multiple occurrences of deaths and her allegedly ‘suspicious behaviour’ – including her calling her husband before the emergency services – which according to the prosecution formed part of an overall pattern. Cannings’ defence was simple: she had not harmed any of the children; they had simply, sadly, died natural and currently unexplainable deaths. The leading expert for the Crown, Sir Roy Meadow, concluded that three deaths led to an inevitable conclusion of murder. The defence experts disagreed and suggested SIDS as the cause, and submitted evidence which demonstrated that genetic predisposition to death from SIDS cannot be ignored in cases of this nature. In fact, both sides of Cannings’ family had a history of SIDS, so Cannings may have been carrying a predisposing gene or genes. In Cannings’ case, as there was no physical evidence to support the Crown’s assertion that her children had died from unnatural causes, other than medically unsubstantiated inferences that the prosecution’s expert witnesses were willing to draw, the three Supreme Court of Appeal judges concluded:
… Throughout the process great care must be taken not to allow the rarity of these sad events, standing on their own, to be subsumed into an assumption or virtual assumption that the dead infants were deliberately killed, or consciously or unconsciously to regard the inability of the defendant to produce some convincing explanation for these deaths as providing a measure of support for the Prosecution’s case. If on examination of all the evidence every possible known cause has been excluded, the cause remains unknown.20
Mothers Who Murder Page 19