Kathleen Folbigg has spent 14 years in jail for killing her babies, but experts say there's real doubt over her conviction

But as Folbigg starts her 15^th year in jail, and nears her 50^th birthday in June, NSW Attorney General Mark Speakman is considering a brief of evidence arguing an alternative scenario – that she is at the centre of an extraordinary miscarriage of justice requiring a judicial review.

Key to the petition for a review submitted in June, 2015 by three Newcastle barristers is what has been described as an “overwhelming weight” of forensic pathology evidence to say the Folbigg babies died of natural causes or sudden infant death syndrome.

“In the media she has been portrayed as a monster but what this evidence shows is that there is reasonable doubt about her conviction,” said Tracy Chapman, who first met Folbigg when the two started school at Kotara Public School 44 years ago and still speaks to her in jail several times a week.

Ms Chapman is calling on Mr Speakman to make a decision.  

“What is needed is for the community to understand that although we can have faith in our justice system, sometimes it can stuff up. When it does, and there’s reasonable doubt about a conviction, then we have a mechanism to seek a review.

“Technically she can be left in jail to serve out her full sentence but is it fair, is it just, when there are experts casting real doubt? I don’t think so, and I hope we get the opportunity to have it looked at again rather than the government just sit it out and wait for it to become someone else’s problem.”

The petition includes the view of internationally respected Monash University forensic pathologist Professor Stephen Cordner, that there is ‘‘no forensic pathology support for the contention that any or all of these children have been killed’’.

‘‘If the convictions in this case are to stand, I want to clearly state there is no pathological or medical basis for concluding homicide,’’ Professor Cordner said.

Folbigg was sentenced to 30 years' jail in 2003 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.

Central to the Crown case in 2003 was evidence that there were no known cases in the world of three or more children in the same family dying of sudden infant death syndrome (SIDS).

The evidence was not only wrong, but would have left the jury discounting SIDS, and “leaving multiple homicides as the only explanation”, leading United Kingdom statistician and professor of mathematics Ray Hill said in a review of the Folbigg case that forms part of the Newcastle petition.

A large American study in 1987 included two families where four babies had died of SIDS and related conditions, and later British 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, they found.

In a 120-page report Professor Cordner, who is also head of international programs at the Victorian Institute of Forensic Medicine, found much of the forensic pathology discussed at the trial was ‘‘misconceived’’.

He found the default diagnosis of murder was ‘‘wrong’’ and there was no forensic pathology support for the Crown case that Kathleen Folbigg smothered her four children.

‘‘It seems not to have been explicitly stated in the trial, but there is no forensic pathology evidence, no signs in or on the bodies, to positively suggest that the Folbigg children were smothered, or killed by any means,’’ Professor Cordner said in his report.

The petition will also include a psychological report challenging the suggestion Folbigg’s personal diaries included admissions of guilt about killing her children. 

A clinical psychologist found Folbigg’s diary entries were consistent with psychological literature of the thoughts and feelings of mothers whose children had died, and maternal grief reactions.

There was no attempt by Folbigg to conceal her private writings, the petition said.

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," led 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 UK women being dropped.

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.

Newcastle barristers Robert Cavanagh, Isabel Reed and Nicolas Moir, and University of Newcastle Legal Centre director Shaun McCarthy, sent the petition to NSW Governor David Hurley in June 2015, seeking a judicial review, after serious concerns about the convictions were first raised by legal academic Dr Emma Cunliffe in her 2011 book,  Murder, Medicine and Motherhood.

The petition was with the Crown Solicitor’s office until August 2016 because the lawyer providing advice on the case was appointed a District Court judge. It has been with the Attorney General’s office since August. Mr Speakman has had the case since taking up the Attorney General’s position at the end of January. 

A spokesperson for Mr Speakman said “A petition has been made that is being considered in accordance with Section 77 Crimes (Appeal and Review) Act 2001.”

Under the section the matter can be referred for a judicial review “if it appears that there is a doubt or question as to the convicted person’s guilt”.

After a Newcastle Herald article in 2013 first raised the issue of a possible review, Folbigg’s former husband Craig consented to his brother, John, making it clear the Folbigg family, including Craig, did not support a review.

‘‘Where Craig stands is that nothing was wrong with the trial or what happened in the first place,” John Folbigg said.

‘‘It gave the family answers and the chance to move on.’’

John Folbigg said while he did not support a review, the family respected legal process and would accept a review if the need for one was established.

Ms Chapman said the Folbigg case stirred up strong emotions in people because four babies had died.

But people who argued that Folbigg was convicted after a trial in a system where the standard is beyond reasonable doubt, also had to accept that where there was real doubt about that conviction, the system provided a mechanism for a judicial review, she said.

“I know it’s going to be very hard and it worries me greatly, but the reality is the evidence is stacked up against the previous conviction and this is just like the Lindy Chamberlain case,” Ms Chapman said.

“These things do happen. The system does get things wrong and we know that. I would say to the NSW Government that it’s time. Could we please make a decision.”