The Big Folbigg Mistake

John Kerr

Description

Kathleen Folbigg was found guilty of killing her four children by opinions – medical, literary and her estranged husband’s opinion - nearly 20 years ago. There never was hard evidence of homicide in the infants’ deaths. This book traces her life story, the rise and fall of a medical mania that saw so-called ‘smother mothers’ imprisoned and then released as sound science replaced pseudo-scientific nonsense, and how her diaries were mis-read. The way the case against her was pursued will chill the blood of anyone who has ever gone out, fallen in love and considered having children, as that is all this woman did to get sentenced to 40 years. It explains in the language of the lay person why the finest minds in Australian science by the score joined in a petition - just let her out, fix your criminal justice system later – in a move without precedent anywhere. The scientific story is exciting, inspirational and a wake-up call. That Ms Folbigg is still behind bars today is a tale of pig-headedness, scientific illiteracy, poor judgement and perhaps implicit bias. Whatever, a good scrub won’t fix it; some reconstruction is needed. The strong woman at the core of this story has good friends and a legal team whose perseverance will replenish readers’ sense of what can be done. Among the expert witnesses are men and women whose commitment to the truth inspires. Their genetic and medical evidence is here made simple, digestible and compelling. The book lists some ideas for overdue legal reforms.

Sujets

• Droit privé
• Droit privé
• Droit privé
• Droit privé
• Criminal Law
• Droit et juridique
• Law
• Droit pénal
• droit pénal
• Droit pénal
• Droit pénal
• Droit pénal

Informations

• Publié par: Kerr Publishing
• Date de parution: 01 septembre 2022
• Nombre de lectures: 0
• EAN13: 9781875703531
• Langue: English

Extrait

First published 2022
Kerr Publishing Pty Ltd
Melbourne, Victoria
ABN 64 124 219 638
Copyright © 2022 John Kerr
This book is copyright. Unless stated otherwise, all images are included in the above copyright. Apart from fair dealing for the purpose of private study, research, criticism or review, or under the Copyright Agency Ltd rules of recording, no part may be reproduced by any means.
The moral right of the author has been asserted.
ISBN 978-1-875703-53-1 (eBook)
ISBN 978-1-875703-52-4 (print)
BIC Category: BG Biography general
BISAC Category 1: BIO02700 BIOGRAPHY/Biography/Women
BISAC Category 2: LAW026000LAW/Criminal law/General
BISAC Category 3: SCI02900/SCIENCE/Life sciences/Genetics & Genomics
BISAC Category 4: MED107000/MEDICAL/Genetics
BISAC Category 5: MED067000/MEDICAL/Pathology
Cover photograph: Joel Carrett/Australian Associated Press Net bank Photo
Cover and book design: Paul Taylder of Xigrafix Media & Design
Print Distribution: Woodslane Pty Ltd, Warriewood NSW 2102
National Library of Australia PrePublication Data Service:




Tracy Chapman, fun friend in fair weather,fierce friend in foul


Author’s Note
… it is better that 10 guilty persons escape than that one innocent suffer.
William Blackstone: Commentaries on English Law 1760s
A book of this kind demands a position st atement.
The only person who will ever know with absolute certainty if Kathleen Folbigg killed her children, is Kathleen Folbigg. Her then- husband Craig, either second or among those first on the death scenes, does not have that certainty, and nobody else does either. Kathleen has consistently maintained her in nocence.
There is universal agreement R v Folbigg was a circumstantial case. Criminal law seeks evidence beyond reasonable doubt in order to convict. I contend that this standard of proof has never been reached, and what was relied upon in courts and tribunals has been discredited, and that the hallowed Blackstone’s Ratio was breached from the start. I n R v Folbigg it is now the Crown that is in the dock, and it is charged with error, imbalance and ob stinacy.
I think, on the balance of probabilities , that Kathleen Folbigg is completely innocent, that there never was a crime. I think she went to a disco, fell in love with a man, had babies and genes did the rest at a medico-legal bad time for mothers of dead children with S I DS on the paperwork. That her convictions are unsafe and must be overturned is a position I am cer tain of.
Researching this book has taught me inspiring lessons about friendship. The diminutive Tracy Chapman at table, skipping eating herself while striving to get food energy into an orphaned possum joey and then standing up to reveal a T-shirt reading:
SC I ENCE
BECAUSE F I GUR I NG TH I NGS OUT I S ALWAYS
BETTER THAN MAK I NG SH I T UP
is a magic memory of this strong woman. She has been Kathleen’s friend since schooldays and friend, advocate, organiser and right arm on the outside during Kathy’s years inside. Her public stance brought out the bigots. She has been threatened with death, rape and a range of vileness, has known fear but plugged on. Other public supporters have experienced career setbacks and sneers.
I f, as looks likely, Ms Folbigg walks in the months after this book’s publication then the University of Newcastle Legal Centre and the lawyers on her pro bono legal team named herein will have earned the sort of laurels marathon runners get. When I asked Dr Robert Cavanagh if he was going to pass the baton to someone younger, he said ‘No’ and when I asked why, he said ‘Because it’s not finish ed yet.’
Likewise, the scientists and medics I have met or corresponded with, have shown they had the courage of their or their colleagues’ findings and took an admirable stance. Professor Carola Vinuesa is a busy high flyer in research who does not need a fight for the freedom of a woman she had not, then, met for a hobby, her c. v. or anything else, but she has been tireless. By no means unaided by colleagues and other scientists, she has made th Folbigg affair a national and internationa l issue.
When this book went to press, I had not met Ms Folbigg, though we had exchanged letters.
John Kerr
June 2022


Acknowledgements
I thank Sheelagh Mahon and Anne Norton for reading, comment, editing and proofing much of this book during writing and pro duction.
My long-time colleague Paul Taylder, this book’s designer, has gone that extra mile for which my special thanks.
For a host of reasons, I am indebted to the following people:Tracy Chapman, Andrew Farrell, Kathleen Folbigg, Susan Henderson, Alana House, Otis Kerley, Julie Luxton, Mike Lynskey, Quentin McDermott, Freya Mulvey, Trevor Paparella, I sabel Reed, Rhanee Rego and Catherine Warne; Doctors Todor Arsov, Kerry Breen, Robert Cavanagh and Emma Cunliffe; and Professors Nicholas Cowdery, Matthew Cook, Stephen Cordner, Ray Hill, Robert N Moles, Rick Sarre and Carola Vinuesa. There would be no book without these people.
Other people spoke off the record. You know who you are, and thanks.
Errors remain my own.





Caleb Gibson




Patrick Allen




Sarah Kathleen




Laura Elizabeth


Child
Birth
Life span
Death
Cause of death
Caleb
1 Feb 1989
19 days
20 Feb 1989
SIDS
Patrick
3 June 1990
8 months
13 Feb 1991
Asphyxia (Epilepsy)
Sarah
14 Oct 1992
10 months
30 Aug 1993
SIDS
Laura
7 Aug 1997
19 months
1 Mar 1999
Undetermined


PART 1
The Problem


1
Kathy’s Families
And if you think you’re ratbag free,
Then just shake your family tree
You’re bound to find a ratbag or three…
Barry Humphries, ‘The Ratbag Song’
Kathleen (Kathy) Megan was the youngest child in the Marlborough family. The woman she calls ‘Mum’, Deidre, ran a tight ship at home in suburban Kotara, Newcastle and her husband Neville was content to play second-in-command on it. He pulled in the money from doing the accounts at a wholesale food company, and Deidre’s job was to put it to good use. He was a ‘shadowy’ presence in Kathy’s life. When Kathy wrote ‘ I have lived my life knowing Right from Wrong since being brought up that way, it’s instilled’ 1 , it was Deidre’s upbringing she had in mind. By the time Kathy arrived son Russell was hitting 20, an infrequent but welcome visitor. Big sister Lea, although 16 years older than the new three-year-old, bonded with Kathy from the start; Lea had much wanted a sister, and Kathy wanted to be wanted. Later, big sister would defend little sister’s point of view or wish to their mother. The bond between them would evolve and mature, and for a long time they would always be there for each other, staunch and supportive. For a time, Deidre’s aged mother joined the household. There were dogs a nd cats.
Deidre and the essentially only child did not always see eye to eye. Kathy tried hard to please her, fearing criticism and rejection, but when discord loomed or broke out suddenly, the girl’s chest would tighten as she became upset, and she would try to block out the bad feeling, a reaction that has continued throughout her life so far. 2 Kathy found her mother ‘unpredictable and moody’, overly controlling, prone to slap her over the head or whack her with a feather-duster handle or belt, and liked her to be quiet. Kathy liked reading and quietly grew her way through Little Golden Books to Enid Blyton’s Famous Five. She had her own room and toys. She walked the dog in a nearby park, and explored the forbidden bushland creek on its edge, a kid’s special place. Holidays took her to new places in Australia a nd Asia.
Kathy cannot recall a time when she did not know she was a foster child. The Marlboroughs said she was ‘chosen’ and ‘saved’, and said they had been attracted by her prettiness and blonde curls, but whenever she expressed curiosity about her origins, it was like ‘brick walls in my face’, so she stopped asking, no big deal. She cannot remember a time when she did not have ‘trust issues’ either.
Schoolteachers found Kathy a disengaged, disconnected, distracted pupil, often pulling her from her obvious dreamy state to pay attention. Out of the classroom she was a bit of a ‘lone wolf’. I t was decided she should repeat Year 6, she did and became glad she did, even though she was a year older in Kotara High School. She rose to an average academic standard and played sport there. The lone wolf girl took on female friendships there that were to be lifelong, and would pass through fire like diamonds do, as hard, solid and sparkling as they were when they went in. At 15 she developed a warm rapport with ‘a science nerd’ who made her laugh and was undemanding, easy to be with. They would seek each other out at lunch and recess, sit and eat