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RUBY:

From Schwartz Media I’m Ruby Jones, this is 7am.

Kathleen Folbigg was once known as Australia’s worst female serial killer. Now she’s been freed after being pardoned.

Archival tape -- Kathleen Folbigg:

“Hello, it's Kathleen… I am extremely humbled and extremely grateful to be pardoned…and released from prison.”

RUBY:

A big part of the reason is new scientific evidence – but there are other issues that drove the media and the justice system’s condemnation of Folbigg.

Archival tape -- Kathleen Folbigg:

“Today is a victory for science… and especially truth. And For the last 20 years… I have been in prison, I have forever and will always think of my children, grieve for my children, and have missed them and loved them terribly.”

RUBY:

The way her psychological state, her grief and her reliability were questioned speak to how women are treated when the charge against them is murder.

Today, Contributor to The Saturday Paper Wendy Bacon, on the fight for Kathleen Folbigg’s pardon and why it points to more unjust convictions within our justice system.

It’s Wednesday, June 21.

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RUBY:

So Wendy, Kathleen Folbigg spent 20 years in jail – accused and convicted of killing her four children. Then just a couple of weeks ago, she was pardoned and released. Her fortune completely turned around. So tell me about that moment, the moment that she was freed.

Archival tape -- Sunrise News:

“We’ve just had the car pull up and this looks like Kathleen Folbigg’s lawyer, there’s Tracy Chapman there... the friend that stood by her all these years, for 20 years. We’ll let let them speak.”

Archival tape -- Tracy Chapman:

“So I guess you all want to know what Kath’s doing right now….”

WENDY:

Well, I think it's impossible to get into the mind of what it must have felt like to be Kathleen, at that moment. I mean, 22 years of hell. The loss of four children, the suffering in prison. And then suddenly, at that moment, it's all over. Of course, it's not all over, because recovering from that would take years. Even the strongest person, she's undoubtedly a very strong person, is going to experience a lot of just readjusting, absorbing what has happened, all that sort of thing. So I can't really speak to that. But except to say enormous relief.

Archival tape -- Tracy Chapman:

“She said it was the first time she’s been able to sleep properly in 20 years even though it was brief last night because we were all on adrenaline… she was able to turn over in her bed… and not wake herself up.”

WENDY:

And also for her supporters, if you get involved in a case like this, it takes hours of every week. You know, it's with you all the time. You know for them also just the feeling that it actually was all worthwhile. So I think for a lot of people, that moment would have been absolutely huge.

RUBY:

And so we now know that Kathleen Folbigg was wrongfully convicted, so let's talk about how that happened. Can you take me back to her trial in 2003 and the evidence that was presented that ultimately convinced the court that she was guilty of these killings?

WENDY:

Well, there was no evidence that she smothered any of her children, no physical evidence of any kind at all. But I really think the key factor in persuading the jury must've been her diaries of 40,000 words. 3000 words were raised as providing a motive for why she killed her children. So she didn't give evidence at her trial. She was probably advised that the cross-examination would be very, very severe. So she didn't go into the witness box. But Mark Tedeschi, who is a very experienced senior counsel prosecutor, presented the diaries and repeated phrases from them over and over again to the jury. And there were words in the diaries, should, isolated on their own, are disturbing. One example is ‘I did a terrible thing’. Now a mother who is hypercritical of herself and guilty and feeling a failure might think a terrible thing is simply raising their voice. But a terrible thing could be a murder. So these words were isolated and repeated again and again.

RUBY:

Can you tell me a bit more about the reaction to her conviction at the time? What was the sort of tone of the news stories in the media and the way the public viewed her as a woman and as a mother after she was convicted?

WENDY:

One of the things about reporting on trials and you would know this is that, you know, you have to give what is called a sort of fair balance. The prosecution case tends to get more reporting, but the defence case must be reported, too. But from the moment that legal fact of the jury's guilty verdict becomes the decision, that then becomes the story.

Archival tape -- News reporter 1:

“And Australia's worst female serial killer has been repeatedly accused of smothering her babies by the...”

Archival tape -- News reporter 2:

“Folbigg has long been described as Australia's Worst female Serial killer.”

Archival tape -- News reporter 3:

“The judge said Folbigg disturbed childhood provided an insight into her behaviour.”

WENDY:

And then a person is transformed from the accused person into what was Australia's worst female serial killer.

Archival tape -- News reporter 3:

“As a result, she was unable to form a normal, loving relationship with her own children.”

WENDY:

And so that became the story. Her diaries became the diaries of a monster, literally.

Archival tape -- News reporter 3:

“Kathleen Folbigg had killed three of her children and was pregnant with her fourth when she wrote in her diary about the day her memories would come to the surface.”

WENDY:

So that narrative becomes a narrative.

Archival tape -- News reporter 3:

“That will be the day to lock me up and throw away the key, she wrote. Something I'm sure will happen one day.”

WENDY:

And so all the various media can then sort of do their features highlight the words in the diary. So it becomes a very powerful narrative. And this is not like just in Kathleen Folbigg’s case. This has been documented in other cases. And in fact, women who are convicted of homicide are right outside the conventions of femininity and all that sort of thing. The coverage of women killers has been shown through research to be more savage and more condemning. So Kathleen suffered all of that. This was a typical case of that. Not worse, probably not better, but just a typical case of that sort of coverage.

So I imagine, you know, those early years were very, very lonely, desperate years for Kathleen in prison, feeling very deserted. But she stuck to her account of what had happened and survived that period. But when I say survived, she did get bashed, constantly abused. And because the prisoner in that situation is at risk, they have to be isolated. So she was in a prison cell for up to 22 hours a day on her own with, of course, her own thoughts. So one can only just imagine what that must be like.

RUBY:

So can you tell me then, when the push that ultimately led to Folbigg’s freedom began and how this campaign for her case to be reconsidered and the scientific evidence which ultimately helped her?

WENDY:

Well, of course, the legal team, the original legal team was going through a series of appeals, all of which were not successful. But one key friend was an old school friend called Tracy Chapman, who was in contact with Kathleen. Absolutely believed her story, hearing from her one to one. And she was then approaching other lawyers.

Archival tape -- ABC News:

“More than a decade ago in the New South Wales Supreme Court. Kathleen Folbigg was found guilty of killing her four children. She's serving a long sentence but has always maintained her innocence.”

WENDY:

So a team of lawyers worked on the case and represented her. And that, of course, was a critical thing.

Archival tape -- ABC News:

“The Newcastle Legal Centre is preparing a petition for a judicial review of her case.”

WENDY:

By 2015 Robert Kavanagh had got together a massive petition. Now this isn't just like a petition. We think of a petition. You have a couple of hundred words. This is a major document and attached to this document was a 150 page report by Professor Stephen Cordner, who is a forensic pathologist in Melbourne, explaining the deaths and providing evidence of natural causes. And that was a very important document. Now that petition went in and then nothing at all happened for three years until 2018. And at that point, the ex-director of Public Prosecutions, Nick Cowdery, who actually didn't believe in her case particularly, but he did see the delay was completely unacceptable. So he began speaking out and then Australian Story on the ABC, Quentin McDermott did a powerful report, picking up on points in this petition. So finally there was an inquiry was announced by the then Attorney-General Mark Speakman, and the retired District Court Judge Reg Blanch was appointed to sit on that. So that hearing took place in 2018. In 2019, the report of that inquiry came out.

Archival tape -- Mark Speakman:

“Ms. Folbigg was represented by senior counsel at the inquiry. There were 16 expert witnesses who gave evidence and 40 expert reports were tendered.”

WENDY:

That was absolutely devastating.

Archival tape -- Mark Speakman:

“All that was taken into account by the inquirer and he has decided that there is no reasonable doubt of Ms. Folbigg guilt. And in fact, he says that his decision or his conviction, his determination that that's the right outcome has been reinforced by the evidence that's been given in this inquiry in particular, Mr. Dalby.”

WENDY:

Because not only did he dismiss the application and confirm her guilt, but he found the case had got stronger than ever.

Archival tape -- Mark Speakman:

“In particular, Ms. Folbigg gave oral evidence at the inquiry. She didn't give evidence at her trial and he found that that evidence was basically a pack of lies and a pack of obfuscation, trying to disguise the real truth that she had killed her four children.”

WENDY:

You know, I think most people would have thought that was the end of it at that point. A very low point.

RUBY:

We’ll be back after this.

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RUBY:

Wendy, can you tell me more about these 2018 hearing into Kathleen Folbigg’s case, and the evidence that she gave. What did she say, and how was it that her words had the opposite intended effect, with a judge ultimately confirming her guilt at the end of that hearing, rather than exonerating her?

Archival tape -- Inquiry:

“Would you tell the inquiry your full name?”

Archival tape -- Kathleen Folbigg:

“Kathleen Megan Folbigg.”

Archival tape -- Inquiry:

“Thank you. Thank you.”

WENDY:

Well, I think it's important to say Kathleen Folbigg herself went into the witness box at the Blanch Inquiry. She hadn't done so before the jury and she was cross-examined for days.

Archival tape -- Counsel assisting:

“So is it the case that the time that you were the most scared about was when you're alone with the baby?”

Archival tape -- Kathleen Folbigg:

“Yes. And that's purely because when I found the children, I was always alone.”

Archival tape -- Counsel assisting:

“Well, were you?”

Archival tape -- Kathleen Folbigg:

“I felt I was.”

WENDY:

One barrister alone for 6 hours just hammering her and saying this means this, these words in a diary means this.

Archival tape -- Counsel assisting:

“What you're saying is that the time of greatest danger to the baby is when you were with them. That's what you're saying, isn't it?”

Archival tape -- Kathleen Folbigg:

“No.”

Archival tape -- Counsel assisting:

“because you’d snap a cog.”

Archival tape -- Kathleen Folbigg:

“No.”

Archival tape -- Counsel assisting:

“And because that's what you'd done before, when you're alone with the babies that had already died. Isn't that correct?”

Archival tape -- Kathleen Folbigg:

“No.”

Archival tape -- Counsel assisting:

“And isn't that the thought you're expressing in that diary at that point?”

Archival tape -- Kathleen Folbigg:

“No.”

WENDY:

She broke down eventually, but never, ever resolved from her evidence.

Archival tape -- Kathleen Folbigg:

“I'm expressing my fear. That's all it is.”

Archival tape -- Counsel assisting:

“You're expressing a fear of being alone with the baby. Is what you’re frightened of.”

Archival tape -- Kathleen Folbigg:

“Expressing the fear that I was scared to death of finding my child not alive.”

WENDY:

Now, her lawyers wanted to call psychiatric and psychologist expert evidence to show that there was another interpretation of the diaries. But Blanch said he didn't need that. And he also rejected very significantly some genetic evidence that linked Kathleen Folbigg with the deaths of two of her daughters. Now, all of that is very complex, of course, but Blanch rejected that. Now, that really caused a very unusual reaction amongst a lot of the scientists involved, some of whom are very serious international experts. And they really felt an injustice had been done and felt sort of they had been dismissed, their evidence treated without proper seriousness. And so they then got together and again, the legal team obviously involved in this process. And initially, I think it was 90, and that grew over time to 150. Scientists signed a petition calling for her immediate pardon and release as it was a miscarriage of justice. And that went to the governor. And it's important, I think, for people to understand at that point that at any point along the process, a prisoner can be either released on parole. And that has happened in other cases before. A miscarriage of justice has been found or you can be pardoned by the governor. That's an independent process. Now, that didn't happen. In fact, a petition just sat there for a year and then more pressure came on. The Academy of Science wrote to the Attorney-General directly. And finally the new inquiry was announced and that was by then it was 2022, it was a big delay and no one really understands why that delay happened. And of course the problem is that if it is a miscarriage of justice, as many people thought by that stage, every day a person stays in prison is a denial of their human rights and should be regarded seriously in itself, not just let's sit here, let her sit there for another year while we sort it out where we can get a judge from.

RUBY:

And in terms of the scientific evidence that ultimately exonerated Kathleen Folbigg, can you explain it to me and what we now know about what is likely to have happened to her children?

WENDY:

Well, if you read now the story of the deaths of each of those four children, there were sort of explanations for at least two of the four at the time that were very credible. Now, one of them was the last baby who died and that was Laura. Laura was initially, if you could say, diagnosed or found to have died due to myocarditis. But when the pathologist was told about the unlikelihood of four deaths happening, he resiled from that like he moved away from that has being a definitive finding. So what happened is Kathleen Folbigg’s DNA was taken and matched with her two daughters. And this genetic mutation is linked with the likelihood of death by myocarditis, which is an inflammation of the heart. But ultimately, Blanch did not accept that. But in the meantime, that evidence has only extended. So when it came to the second inquiry, which was the hearings for that at the end of 22, and beginning of 23, that evidence, in fact, two international experts have come from Denmark and given the latest evidence. And another thing that happened is that the Academy of Science had been able to assist this second judge, Tom Bathurst, who's the ex-chief justice of New South Wales, have been able to assist him in sorting through this massive amount of scientific evidence now and reach the proper conclusions. And that's what Blanch didn't have. And I think it does raise questions about how expert evidence is presented in criminal trials.

RUBY:

And I suppose the other thing to consider is that if this is something that could happen to Kathleen Folbigg, it is something that could happen to other people, people who might still be in jail now.

WENDY:

At the moment of the women held in New South Wales prisons, a third of those women are First Nations women, that is itself a terrible thing. And, you know, amongst all those women, it's very likely indeed. And in fact the ex high court judge, Justice Kirby has recently said that he believes there are innocent people in prisons in Australia. So every innocent person in prison is a really serious matter.

One of the things that I think is an additional important thing to note is that the magistrate in the committal proceeding at the end of the hearing said we should be very careful of this case. We could potentially have another Lindy Chamberlain. You know, probably the most famous female miscarriage of justice that there's been in Australia. You know, we may have and we need to be very careful about the diaries and the way they're used.

Because it's not as if this is a new idea for decades. There's been feminist criminology scholarship which has shown the way that stereotypes about women are used to construct an idea of, for example, in this case, the murderous mother. So what I found very disturbing is the fact that so many judges and the Director of Public Prosecutions didn't. So just take a step back and think, could these words be the words of a mother who has experienced grief and guilt? And I would like to see some review of why that didn't happen.

We'd hoped to see that there will be some sort of a criminal law review commission. They exist in New Zealand and the UK which can get onto these cases much earlier and have a range of people. Just look into them to see what the likelihood of a miscarriage of justice is. You know, it shouldn't depend on you being able to get that barrister who will drop everything or solicitor to prepare a petition without any compensation at all. So I hope this some reforms come out of this.

RUBY:

Wendy, thank you so much for your time.

WENDY:

Thank you, Ruby.

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RUBY:

Also in the news today…

Independent senator Lidia Thorpe has announced that she will support the No campaign against an Indigenous Voice to Parliament.

Senator Thorpe had previously expressed reservations about the No camp, saying it had begun to look more and more like, quote: “a white-supremacy campaign.”

But yesterday, Thorpe revealed negotiations with the government to implement the recommendations of the Aboriginal Deaths in Custody Royal Commission and the Bringing Them Home report had forced her to back the No campaign.

And…

The Reserve Bank appears to have acknowledged that corporate profiteering is at least partially to blame for ongoing inflation problems.

Yesterday, the RBA released minutes from its last meeting, when it once again raised interest rates, and in them it is revealed that the Bank is concerned about the way companies are indexing price rises – and the bank acknowledges this as a challenge to reducing inflation.

I’m Ruby Jones, this is 7am. See you tomorrow.

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