BACKGROUND: "Kathleen Folbigg’s complex new appeal will be heard in February, challenging both the conviction and the recent Blanch enquiry. The 2003 trial was based on the circumstances that Folbigg was the mother of four children and all the children died. The medical evidence relating to the causes of the deaths of her four children at her trial was inconclusive. The Crown’s case was based by implication on the now discredited theory of British paediatrician, Professor Sir Roy Meadow. There is now compelling new evidence of genetic defects in respect of two babies not previously available and which has been peer reviewed by over twenty international experts in the field." (Andrew L. Urban: Wrongful Convictions Report).
https://wrongfulconvictionsreport.org/2020/12/17/new-year-hopes-for-old-injustices/
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PASSAGE OF THE DAY: "The NSW Court of Appeal will begin hearing an application to review Blanch's inquiry and report. Lawyers for Kathleen Folbigg will ask the court to declare that Blanch's findings are legally Flawed and to set aside his report, on a number of grounds. They will argue, amongst other things, that Blanch failed to come to terms with ground-breaking and compelling expert evidence providing genetic causes of Sarah and Laura's deaths. They will also argue that Blanch wrongly excluded crucial evidence about her diaries. Kathleen Folbigg's lawyers will argue that evidence excluded by Blanch was capable of providing entirely innocent meanings for her diary entries and that Blanch misread the entries as being "virtual" admissions of smothering. If the Court of Appeal finds against the inquiry, consequential proceedings will likely see Kathleen Folbigg walk free from jail".
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COMMENTARY: "Contentious convictions," by reporter Ray Watterson, published by The Newcastle Herald on Feb. 11, 2021. (Ray Watterson is a retired law professor (associate professor University of Newcastle and adjunct professor La Trobe University). His special areas were, and remain, public interest advocacy, inquests, inquiries and commissions, and Australian media law. Aided by research undertaken by Newcastle law students, Watterson assisted Michael Chamberlain, Lindy Creighton-Chamberlain and Stuart Tipple, their long-time lawyer, to secure the finding from the Northern Territory Coroner in June 2012 that the cause of Azaria's death "was as a result of being attacked and taken by a dingo" on 17 August 1980 at Uluru.
SUB-HEADING: "Ray Watterson takes a look at Kathleen Folbigg's upcoming hearing in the NSW Court of Appeal
GIST: On April Fool's Day 2003, the murder trial for what the national media would call Australia's worst matricidal murder, with Kathleen Folbigg in the dock, began.
Mark Tedeschi QC, the state's most senior public prosecutor, "representing the community of NSW" (New South Wales), opened the trial against Folbigg, alleging she had deliberately killed all four of her infant children.
By the end of the trial, 29 days later, Tedeschi had convinced the jury of her guilt. The Upper Hunter's Kathleen Folbigg was convicted and sentenced to 40 years jail over the deaths of her four infant children in the decade from 1989. Caleb at 19 days, Patrick at 8 months, Sarah at 10-and-a-half months and Laura at 19 months.
The Folbigg convictions stand among the most contentious and troublesome in Australian history, alongside those of Lindy and Michael Chamberlain.
Like Lindy Chamberlain, Kathleen Folbigg has always maintained her innocence and has steadfastly pursued every legal avenue to have her convictions set aside.
Like Lindy Chamberlain, all Kathleen Folbigg's appeals, including to the High Court, failed.
It took 32 years for the Australian legal system to find that a dingo, and not Lindy Chamberlain, was responsible for the death of her baby daughter Azaria at Uluru in 1980.
First a Royal Commission inquiry in 1987, and finally, an inquest by Northern Territory Coroner, Elizabeth Morris, in 2012.
Next week, 32 years after the death of the first born Folbigg child, the NSW Court of Appeal will begin hearing an application by lawyers on Kathleen Folbigg's behalf that could see her troublesome convictions finally resolved.
The case against Kathleen Folbigg has always been entirely circumstantial.
According to the prosecution there were only two possibilities: all the children died of natural causes or they were all smothered to death by their mother. None of the medical evidence at the trial established that any of the children were smothered.
The medical evidence was unable to unequivocally identify natural causes for the deaths of the first three children-Caleb, Patrick, and Sarah. Some medical experts attributed the death of the fourth child, Laura, to a natural cause, myocarditis, but other experts disputed this.
In the absence of clear-cut medical evidence about the causes of the children's deaths, the prosecution relied heavily on selected extracts from diaries kept by Kathleen Folbigg to make out its case that she had smothered them all. None of the diary extracts relied on by the prosecution were actual admissions of guilt by Kathleen Folbigg for the smothering deaths of any of her children. The prosecution claimed, however, that the extracts contained "virtual" admissions of her smothering guilt.
The jury returned a verdict of manslaughter for Caleb's death and murder for the deaths of Patrick, Sarah and Laura.
In 2015, a petition on Kathleen Folbigg's behalf by the University of Newcastle Legal Centre, raised doubts about the evidence that convicted her.Kathleen Folbigg's diary entries. At the inquiry Kathleen Folbigg was pressed to give explanations for the meaning of diary entries that were shown to her.
NSW Attorney-General, Mark Speakman, established an inquiry into the convictions, "to ensure public con dence in the administration of justice".
In 2018 Reginald Blanch, a former prosecutor and retired District Court Judge, was appointed to conduct the inquiry.
Blanch's inquiry reviewed the trial evidence and considered new evidence, including some ground-breaking genetic evidence about natural causes of the children's deaths.
In his report, handed down in July 2019, Blanch concluded that the medical evidence "neither proved nor disproved" that Kathleen Folbigg smothered any of her children to death.
In the absence of conclusive medical evidence about the deaths of the children, Blanch's fndings about Kathleen Folbigg's guilt, like the prosecution's case at the trial, relied heavily on drawing incriminating conclusions from extracted portions of Kathleen Folbigg's diary entries. At the inquiry Kathleen Folbigg was pressed to give explanations for the meaning of diary entries that were shown to her.
Blanch dismissed her explanations as "simply unbelievable" and unreservedly supported the trial's guilty verdicts.
For Blanch, the evidence that had emerged at his inquiry, "particularly her own explanations and behaviour in respect of her diaries", made Kathleen Folbigg's guilt for the smothering deaths of her children "even more certain".
The NSW Court of Appeal will begin hearing an application to review Blanch's inquiry and report. Lawyers for Kathleen Folbigg will ask the court to declare that Blanch's findings are legally Flawed and to set aside his report, on a number of grounds.
They will argue, amongst other things, that Blanch failed to come to terms with ground-breaking and compelling expert evidence providing genetic causes of Sarah and Laura's deaths.
They will also argue that Blanch wrongly excluded crucial evidence about her diaries.Kathleen Folbigg's lawyers will argue that evidence excluded by Blanch was capable of providing entirely innocent meanings for her diary entries and that Blanch misread the entries as being "virtual" admissions of smothering.
If the Court of Appeal finds against the inquiry, consequential proceedings will likely see Kathleen Folbigg walk free from jail.
The Folbigg case would then be added to Australia's record of infamous convictions, alongside the Chamberlain case. Deeper questions might then be raised, about the competence and integrity of our criminal justice system. A more searching spotlight might be turned on key players in the justice game, including the police, prosecutors, lawyers and judges."
The entire Commentary can be read at:
http://netk.net.au/Folbigg/Folbigg17.pdf
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Check out the important array of resources on the Folbigg case on the 'Networked knowledge' Folbigg home page at:
http://netk.net.au/FolbiggHome.asp
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Check out the Justice for Kathleen Folbigg home page at:
https://justiceforkathleenfolbigg.com
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PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy: Publisher: The Charles Smith Blog;
