New prosecutors in the Kathleen Folbigg case don’t know if she killed her four children, but she’s been in jail for 20 years

Kathleen Folbigg. Photo: JusticeForKathleenFolbigg

Prosecutors acknowledged Wednesday in a government inquiry that new scientific and genetic evidence left reasonable doubt that an Australian mother deliberately killed her four children 20 years after being convicted of doing so.

A retired judge is listening to the final submissions on whether Kathleen Folbigg, now 55, should be pardoned for the murder and manslaughter convictions handed down by a jury in 2003. The children died separately for a decade, between 19 days and 19 months of ageand her mother insisted their deaths were from natural causes.

NSW State Public Prosecutor Sally Dowling made a written submission to the inquiry saying that was possible.

Dowling wrote that “Based on the evidence now available, it is open to the investigation to conclude that there is a reasonable doubt as to the guilt of Ms. Folbigg”.

The lawyer appointed to assist former judge Tom Bathurst in the investigation, Sophie Callan, said she had also concluded that, based on scientific and medical evidence heard since November, Folbigg was not guilty beyond a reasonable doubt of three counts of murder and one count of manslaughter.

Kathleen Folbigg
Kathleen Folbigg with her husband and one of their children. Photo: JusticeForKathleenFolbigg

“In the entire body of evidence prior to this investigation, there is a reasonable doubt as to Ms. Folbigg’s guilt,” Callan said.

The investigation has been postponed until Thursday. If Bathurst finds reasonable doubt about Folbigg’s guilt, she could recommend that the state governor pardon her and she could inform the Court of Criminal Appeals to consider quashing her convictions.

The former New South Wales government ordered the Bathurst inquiry a year ago when it rejected Folbigg’s plea for clemency.

That petition said that he was “based on significant positive evidence for natural causes of death” and signed by 90 scientists, physicians, and related professionals.

Folbigg is serving a 30-year prison sentence that expires in 2033. He will be eligible for parole in 2028.

Kathleen Folbigg
Folbigg and her babies. Photo: JusticeForKathleenFolbigg

Their first son, Caleb, was born in 1989 and died 19 days later in what a jury found to be misdemeanor manslaughter. Her second child, Patrick, was 8 months old when he died in 1991. Two years later, Sarah died at 10 months old. In 1999, Folbigg’s fourth daughter, Laura, died at 19 months.

Evidence discovered in 2018 that both daughters carried a rare CALM2 gene variant was one of the reasons why the investigation was called.

Callan said evidence from experts in the fields of cardiology and genetics indicated that the CALM2-G114R genetic variant “is a reasonably possible cause” of the daughters’ sudden deaths.

Myocarditis, an inflammation of the heart, was also a “reasonably possible cause” of Laura’s death, Callan said.

For Patrick, Callan said there was “persuasive expert evidence that, as a matter of reasonable possibility, an underlying neurogenetic disorder” caused his sudden death.

Kathleen Folbigg
Folbigg was the only one home or awake when the young children died. She said she discovered three of the deaths while she was going to the bathroom and one while she was checking on a child (Photo: JusticeForKathleenFolbigg)

The scientific evidence raised doubts that Folbigg killed the three children and undermined the argument made in Caleb’s case that the deaths of four children were an unlikely coincidence, Callan said.

Prosecutors had told the jury at his trial that the similarities between the deaths made coincidence an unlikely explanation.

Folbigg was the only one home or awake when the young children died. She said she discovered three of the deaths during trips to the bathroom and one while checking on a child’s well-being.

Prosecutors had also told the jury that Folbigg’s journals contained guilty admissions.

Her ex-husband, Craig Folbigg, said in submissions to the inquiry that the implausibility of that four children in a family died of natural causes before the age of 2 was compelling reason for continuing to treat the diary entries as admissions of his ex-wife’s guilt.

Kathleen Folbigg
Evidence discovered in 2018 that both daughters carried a rare CALM2 genetic variant was one reason the investigation was called in. Photo: JusticeForKathleenFolbigg

But Callan said that psychologists and psychiatrists gave evidence that it would be “unreliable to interpret the inputs in this way.”

Folbigg had been suffering from major depressive disorder and “maternal grief” when she made the notes, Callan said.

“This casts Ms. Folbigg’s expressions of guilt and responsibility for the deaths of her children in her diary entries in a much different light,” Callan said.

Folbigg made 545 pages of final submissions urging Bathurst to find a reasonable doubt of guilt and a “great probability of innocence,” Callan said.

(with information from AP)

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