BACKGROUND
Almost every adult Australian will no doubt be familiar with the tragic case of Kathleen Folbigg. The now 53-year-old Australian was convicted of three counts of murder and one count of manslaughter for the deaths of her four young children. Whilst she is presently imprisoned and sentenced to 30 years behind bars, Folbigg has maintained her innocence and insisted that all four of her children died of natural causes. Since her case was concluded in October 2003 new scientific and medical research has been claimed to suggest the daughters may have died of natural causes was rejected in court in 2019. Subsequent research published in 2020 has led ninety prominent Australian scientists and medical professionals, in March 2021, to petition the NSW Governor to pardon Folbigg (a process which does not involve the courts), alleging all the deaths may be explained with genetics.
THE TRIAL: GUILTY VERDICT
Folbigg’s trial lasted approximately seven weeks and was run on the theory that she had murdered her four children during periods of stress and frustration. Principally, the prosecution relied on the improbability that four children could die of natural causes in a short span of time. Additionally, the jury was allowed to watch Folbigg’s police interview where she attempted the flee from Court.
Finally, the prosecution called witnesses which testified they did not see any prodromal (early-warning) symptoms in any of the children. Despite this, Folbigg’s lawyers were able to suggest that there could have been various medical explanations for the children’s passing. More specifically, the evidence centred around Laura (the youngest) and the possibility she suffered from myocarditis.
PROVING A CHARGE OF MURDER OR MANSLAUGHTER
In NSW, there are several forms of ‘homicide’. These can be broken down into ‘murder’ and ‘manslaughter’. Murder is the act of killing another human being where there has been an intention to kill. On the other hand, the crime of ‘manslaughter’ exists where a killing has occurred, but the accused does not possess the requisite mens rea (guilty mind) to satisfy an intention to kill in order to substantiate a murder charge. Section 18 of the Crimes Act 1900 (NSW) requires:
1) Murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years;
Every other punishable homicide shall be taken to be manslaughter:
(2) No act or omission which was not malicious, or for which the accused had lawful cause or excuse, shall be within this section;
No punishment or forfeiture shall be incurred by any person who kills another by misfortune only.
In order to be found guilty of Murder, the prosecution must therefore prove each of the following beyond reasonable doubt:
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- That you did an act or failed to do an act;
- That the act, or failure to act, resulted in the death of another person; and
- Intended to kill the person.
THE CASE FOR FOLBIGG’S RELEASE
The Australian Academy of Science fellows and scientists have recently argued that there are medical and scientific explanations for the death of each child which did not occur as a result of any act or failure to act by Kathleen Folbigg. The research presented by the fellows shows that two of Folbigg’s daughters carried an undiscovered variant gene likely to cause sudden unexpected death. The researchers also said Ms Folbigg’s two sons carried a rare genetic defect known to cause fatal epilepsy in mice.
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At National Criminal Lawyers®, our team of specialist criminal defence lawyers are equipped with expert knowledge to assist those charged with especially serious crimes. If you or someone you know is facing a charge of murder or manslaughter, contact us now to ensure your case is heard in accordance with the fair application of the law.
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