R v Folbigg [2002] NSWSC 1127 | Case summary

Supreme Court of NSW|2002-11-29|Before: Wood CJ

BACKGROUND 3 The Crown opposes the application, and seeks to rely on the evidence relating to the deaths of each child, and the apparent life-threatening event ("ALTE") concerning Patrick, which preceded his death, as being admissible in relation to each count. In this regard it has served tendency and coincidence notices. It has also made it clear that it relies on this evidence, in conjunction with extracts from the diaries of the accused, and evidence from her husband, as being relevant to her relationship with, and attitude towards, the deceased children during their lifetimes. 4 The substantial issue in the trial, obviously, is whether the accused was responsible for the death of each child, and for the ALTE involving Patrick which preceded his death, it being the Crown case that she deliberately asphyxiated each of them, thereby occasioning their deaths, as well as the grievous bodily harm, which Patrick had earlier suffered. 5 As the medical reports, to which I will later refer, make clear, there are, in cases such as the present, two broad possibilities to be considered, namely, whether all 4 deaths, and the ALTE were:

(a) The result of natural causes, either being different causes, or the same cause repeated in each instance, the latter of which might require a consideration of the possibility of a congenital anomaly of internal metabolism, which went undiagnosed during the life time of the children, and was also missed post mortem; or were,

(b) Associated with some form of induced or imposed airway obstruction leading to cerebral hypoxemia, as the Crown contends. 6 The matter is complicated, to the extent that in relation to 2 deaths, the cause of death was originally ascribed, following autopsy, to Sudden Infant Death Syndrome (SIDS), and that in relation to the earlier deaths, the post mortem examinations were not as exhaustive as might have been the case had homicide been suspected. 7 As I understand the expression SIDS, it is traditionally reserved for a death where no pathology, or possible cause for the death, of an infant has been found, following appropriate post mortem examination. As such, the death is regarded as occurring due to natural causes. Where however, pathology is found which may provide a possible, although not definitive reason for death, then the practice of pathologists is to give the cause of death as "not ascertained". As I understand the reports of experts who have been qualified by the Crown and by the Defence, none of them would now specify SIDS as the cause of death for any of the children.

The Deaths and ALTE 8 It is convenient briefly to summarise, in a chronological way, certain facts in relation to the deaths, and to Patrick's ALTE, which seem not to be in issue, at least upon the material available at this stage of the proceedings. Caleb Gibson (i) He was born 1 February 1989; (ii) He was born healthy, but he had some difficulty breathing and feeding simultaneously, and he had been diagnosed with transient tachnypnoea prior to his discharge from hospital; (iii) He died on 20 February 1989, aged 19 days; (iv) He was fed by the accused at 1 am, on 20 February 1989; (v) He was found by the accused in his bassinette at 2.50 am, cyanosed and not breathing - the accused was screaming, and this awoke the father, who was asleep; (vi) Caleb was found to be pale, and warm to the touch when seen by ambulance officers; (vii) Post mortem and other medical reports showed: · Laryngeal or inspiratory stridor (floppy or lazy larynx) · No inherent metabolic problems or external signs of injury · Haemosiderin within the lungs which on the medical evidence was not necessarily specific for asphyxia, although it was consistent with it · mottling on the pleural surfaces and congestion in places showing incomplete aeration. (viii) Dr Cummings' autopsy opinion was that death was due to SIDS.

(i) He was born on 3 June 1990; (ii) He was discharged home in good health and appeared to sleep and feed well; (iii) A sleep study at the Mater Hospital, on 14/15 June 1990, was normal; (iv) On 18 October 1990, while aged 4 months, at 3.30 am, the accused's screams woke the father who was asleep - Patrick, then aged 4 months, appeared pale and limp, his breathing was faint and laboured, but he responded to oxygen given by ambulance officers; (v) While in hospital on the following evening he developed a generalised seizure. A CT scan demonstrated hypodense areas in the temporal and occipital lobes and a possible diagnosis of viral encephalitis was mentioned; (vi) He was later diagnosed to be suffering from a major form of epilepsy, a neurological deficit caused by near asphyxiation, and was also found to have cortical blindness; (vii) The accused threatened to leave her husband and Patrick following this event; (viii) The initial hospitalisation was followed by further admissions in relation to seizures, a bout of gastroenteritis, and an oculogyric crisis (that is, an involuntary tonic spasm of extraocular muscles); (ix) Patrick died on 13 February 2001, aged 8 months, that is, within 4 months of the ALTE; (x) At 10 am the accused rang her husband at work and said, " it's happened again"; (xi) Patrick was found in his cot by ambulance officers, with peripheral cyanosis, and without vital signs, although he was still warm to the touch; (xii) A death certificate was issued showing the cause of death to be asphyxia due to airway obstruction and epileptic fits; (xiii) Post mortem examination showed: · Old infarcts and gliosis in the parieto-occipital areas (both cerebral hemispheres) which Dr Bishop and Professor Berry both thought to be secondary to the earlier cardio respiratory arrest; · Hepatic congestion, congested postero-basal dependant segments in both lungs, and enlarged thymus; · No congenital metabolic problems.

(i) She was born on 14 October 1992, and was generally a well child, who was said to have been a very loud snorer, who had suffered some apnoea while asleep; (ii) A sleep apnoea blanket was used to monitor her sleeping and to provide an alarm if breathing stopped; (iii) She died on 30 August 1993, aged 10 ½ months; (iv) On 28 August 1993, the accused had moved her to the main bedroom, and had discontinued the use of the sleep apnoea blanket; (v) On the night of 29 August 1993, the accused was angry when Sarah would not settle and at one stage she dumped the child in her husband's lap - eventually Sarah was put to bed by her father in the main bedroom at 10 to 10.30 pm; (vi) At about 1.10 am the father noticed that Sarah and the accused were not in the room; (vii) At 1.30 am the father was awoken by the accused's screams - Sarah was in her cot, cyanosed, with mucus and vomit in her mouth; she was asystolic, and still warm to the touch; (viii) Professor Hilton's opinion, following a post mortem examination, was that the cause of death was SIDS; (ix) Sarah had been treated with antibiotics for a cold; (x) The post mortem examination showed: · Pulmonary congestion and oedema; · Some internal petechiae on the pleura, epicardium and thymus; · No morbid anatomical cause; · Some bacteria (staphylococcus aureus) in the airways; · Uvula unusually congested or possibly haemorrhagic lying anterior to epiglottis.

(i) She was born on 7 August 1997; (ii) Laura's sleep and breathing patterns were monitored - A corometrics device being used to monitor her vital statistics, and other data, including room temperature and ventilation; (iii) The monitoring was reduced in August 1998, when Laura was aged 12 months; (iv) In August 1998, the accused threatened to leave home, and gave a letter to her husband advising that the only thing keeping them together was Laura; (v) On 1 March 1999, the accused became angry at about 7 am when Laura was crying, and her husband was about to go to work. This led to an argument; (vi) Laura died on 1 March 1999, aged 19 months; (vii) At 10.30 am on 1 March 1999, the accused took Laura to her husband's place of work, and then home at about 11.00 am; (viii) At 12.05 pm the accused phoned 000 and reported that Laura was not breathing; (ix) Ambulance staff found that Laura was not breathing, in a state of bradycardia, before becoming asystole; cyanosis was evident, and she was warm to the touch. She was taken to hospital but pronounced dead at 12.45 pm; (x) Laura had a recent upper respitory tract infection; (xi) The post mortem examination by Dr Cala showed: · Clear fluid around the nostrils · Some inflammatory changes in the heart consistent with myocarditis, of probably viral origin; · Petechial haemorrhages on the anterior aspect of the suprasternal thymus gland; · Focal haemorrhagic and collapsed lungs; · No congenital metabolic abnormality. (xii) Dr Cala could not determine the cause of death, but excluded SIDS.

The Diaries 9 The Crown seeks to rely upon various diary entries made by the accused, particularly those which were made following the death of Sarah. They related principally to the period when the accused was contemplating having a fourth child, and also to the period following the birth of that child (Laura). 10 The Crown submits that they are potentially of significant probative value, in so far as they would appear, on their face, to demonstrate an admission by the accused of her responsibility for the deaths of Caleb & Patrick and, most particularly that of Sarah, occurring at times when she was tired and in a black mood, or stressed. 11 An earlier entry of 3 June 1990 is also said to have significance, being an entry made on the date that Patrick was born, that is, 15 months after Caleb's death, in so far as the accused wrote: " I had mixed feelings this day. Whether or not I was going to cope as a mother or whether I was going to get stressed out like I did last time . I often regret Caleb & Patrick, only because your life changes so much, and maybe I'm not a Person that likes change. But we will see?" 12 After the death of Sarah, the accused and her husband separated for 4 months between January and April 1995, at which point they were reconciled. 13 During the period when the accused was contemplating a fifth pregnancy, and later awaiting the birth of Laura, the following entries seem to have particular probative value: " 18th June 96 - Tues - 10.21am. I'm ready this time. And I know Ill have help & support this time When I think I'm going to loose control like last times Ill just hand baby over to someone else. Not feel so totally alone. getting back into my exercise after will help my state of mind & sleeping wherever possible as well. I have learnt my lesson this time. … 8-9-96 - Sunday - avo. Feel now is a time for us to have another baby. Have finally realised is the right time for me. I have Craig & he wants a child. That I can give him. And I have enough friends now, not to loose it like before . … 30-10-96 - Wednesday 5am I worry that my next child will, suffer my physicological mood swings like the others did . I pray I'm prepared & ready mind wise for this next one. Maybe nature has decided I never will be & it will nevr happen. … 4-12-96 - Thurs - 4.30am I'm ready this time. But have already decided if I get any feelings of jealousy or anger to much I will leave Craig & baby, rather than answer being as before . Silly but will be the only way I will cope. I think support, & not being afraid to ask for it will be a major plus. Also - I have & will change my attitude & try earnestly not to let anything stress me to the max . I will do things to pamper myself regularly & just deal with things. If I have a clingy baby, then so be it. A cat napper so be it. That will be when I will ask help & sleep whenever I can. To keep myself in a decent mood. I know now that battling wills & sleep depravaision were the causes last time . Fish I've got help - they are relaxing to watch its quite funny. … 1-1-97 9.30 pm Wednesday Another year gone & what a year to come. I have a baby on the way, which means major personal sacrifice for both of us. But I feel confident about it all going well this time. I am going to call for help this time & not attempt to do everything myself any more - I know that that was the main Reason for all my stress before & stress made me do terrible things . … 4.2.97 - Tues morn, 3.30am Still can't sleep. Seem to be thinking of Patrick & Sarah & Caleb. Makes me seriously wonder wether I'm stupid or doing the right thing by having this baby. My guilt of how responsible I feel for them all, haunts me , my fear of it happening again, haunts me. My fear of Craig & I surviving if it did, haunts me as well. I wonder wether having this one, wasn't just a determination on my behalf to get it right & not be defeated by me total inadequate feelings about myself. What sort of mother am I, have I been - a terrible one, that's what it boils down too - that's how I feel & that is what I think I'm trying to conquer with this baby. To prove that there is nothing rong with me, if other women can do it, so can I. Is that a wrong reason to have a baby. Yes I think so, but its too late to realise now. I'm sure with the support I'm going to ask for I'll get through. What scares me most will be when I'm alone with baby. How do I overcome that? Defeat that? … 17-2-97 - Monday 9.50am

[Craig] he should be for me, forever, just because a baby is entering our life makes no difference really, one day it will leave. The others did , but this ones not going in the same fashion . This time I'm prepared & know what signals to watch out for in myself. Changes in mood etc. Help I will get if need be 16-5-97 - Fri morn 2am [Mel] I think that she will be a great help in Preventing me from stressing out as much as I've done in the past. Night time & early mornings such as these will be the worst for me, that's when wishing someone else was awake with me will happen. Purely because of what happened before. Craig says he will stress & worry, but he still seems to sleep okay every night & did with Sarah. I really needed him to wake that morning & take over from me. This time I've already decided If I ever feel that way again Im going to wake him up . … 6.7.97 - Fri Nite. 9.30pm [Life with Craig] Maybe then he will see when, stress of it all is getting to be too much & save me from ever feeling like I did before, during my dark moods . Hopefully preparing myself will mean the end of my dark moods, or at least the ability to see it coming & say to him or someone hey, help I'm getting overwhelmed here, help me out. That will be the key to this babies survival. It surely will. But, enough dwelling, things are different this time, It will all work out for sure." 14 Following the birth of Laura, the accused made further entries, which the Crown suggests are of significant probative value in relation to her involvement in the deaths of the other children. The first of these was written within weeks of the birth of this child: "25.8.97 - Monday nite 8.30pm Scary feelings, I've realised I actually love her & have bonded with her, wish to protect her etc. Maternal instinct, is what they call it. I now know I never had it with the others . Monitor is a good idea. Nothing can happen without the monitor knowing & since I'm not game enough to not plug it in, because theyd want to know why I hadn't, Everything will be fine this time." 15 It was followed by other entries which appear to repeat the theme of the earlier entries concerning the earlier deaths, but which the Crown relies on as showing an increase in her irritability, resentment of the child, in so far as she was required to give up her gymnasium attendances, and anger directed towards the child herself. Of particular relevance are the following entries: " 20.9.97 - Sat morn 3.15am Sleep, who needs it. Yes I'm getting a little irritable now… Am getting very stressed , because I can't depend on Craig for any real help or support… [Craig] How dare he complain to me about lack of sleep - what the fuck would he know. Think he'll have to sleep in other room. Just so He's not disturbed - selfish prick. Well now I know where I stand. … 25.10.97 10pm - Sat nite Just watched video of Sarah, little upsetting, but she did some funny things…I think I am more patient with Laura. I take the time to figure out what is rong now instead of just snapping my cog …Looking at the video, Sarah was boyish looking. Laura has definite feminine features, they are chalk & cheese. And truthfully just as well. Wouldn't of handled another one like Sarah. She saved her life by being different. … 3.11.97 - Monday avo - 6pm Why is it when I'm so tired I'm feeling sick - shitty I can't sleep very depressed with myself at the moment. Feeling deprived of my freedom… Someone's awake got to go, Lost it with her earlier. Left her crying in our bedroom & had to walk out - that feeling was happening . And I think it was because I had to clear my head & prioritise. As I've done in here now. I love her I really do I don't want anything to happen . … 8th Nov- 97 - Monday nite 10pm Had a bad day today. Lost it with Laura a couple of times. She cried most of the day. Why do I do that. I must learn to read her better. She's pretty straight forward. She either wants to sleep or doesn't. Got to stop placing so much importance on myself. Much try to release my stress somehow. I'm starting to take it out on her . Bad move. Bad things & thoughts happen when that happen . It will never happen again . … 9.11.97 - Sunday nite 8.45pm Craig was pretty drunk Friday nite; In his drunken stupor he admitted that he's not really happy. There's a problem with his security level with me & he has a morbid fear about Laura - he well I know theres nothing wrong with her. Nothing out of ordinary any way . Because it was me not them. Think I handle her fits of crying better than I did with Sarah - I've learnt to .ace getting to me, to walk away & breath in for a while myself. It helps me cope & figure out how to help her. With Sarah all I wanted was her to shut up. And one day she did . … 31.12.97 11pm Getting Laura to be next year ought to be fun. She'll realise a Party is going on. And that will be it. Wonder if the battle of the wills will start with her & I then . We'll actually get to see. She's a fairly good natured baby - Thank goodness, it has saved her from the fate of her siblings. I think she was warned.

… 20.1.97 (Sic) [should be 1998] - Tuesday 8am The gym was a pivotal part of me, And now because I can't go without taking Laura its put a damper on everything. I've had my one & only escape taken away from me. … 28.1.98 - Wednesday 5.30pm Very depressed with myself, angry & upset. I've done it. I lost it with her . I yelled at her so angrily that it scared her, she hasn't stopped crying. Got so bad I nearly (poss) purposely dropped her on the floor & left her. I restrained enough to put her on the floor & walk away. Went to my room & left her to cry. Was gone probably only 5 mins but it seemed like a lifetime. I feel like the worst mother on this earth. Scared that she'll leave me now. Like Sarah did. I knew I was short tempered & cruel sometimes to her & she left. With a bit of help. I don't want that to ever happen again. I actually seem to have a bond with Laura. It can't happen again . I'm ashamed of myself. I can't tell Craig about it because he'll worry about leaving her with me. Only seems to happen if I'm too tired her moaning, bored, wingy sound, drives me up the wall. I truly can't wait until she's old enough to tell me what she wants. … Friday Nite 6/3/98 - 10pm Laura not well, really got on my nerves today, snapped & got really angry, but not nearly as bad as I used to get. " 16 The emphasis in the passages extracted from these diaries, has been added, to indicate matters which would appear to be capable of giving rise to admissions in relation to the earlier deaths, and to a build up of stress before the death of Laura. They are said to derive further potential support from the evidence of Craig Folbigg, whose statement speaks of the accused's tendency to become stressed, and to lose her temper and control with her children. The diary entires, it is submitted, support the inference that it was this circumstance which led to their demise, that the accused was aware that she had been personally responsible for their deaths, and that, during the last pregnancy, and after the birth of Laura, she was concerned that these moods would re-emerge, and endanger Laura.

The expert evidence 17 It is next convenient to refer, in a summary way, to the expert evidence, which the Crown and the accused seek to tender in the trial, so far as that is disclosed, at this stage, in the reports which have been tendered. The parties are prepared to allow the application to be determined, at this stage, upon the face of the reports, having regard to the number of witnesses who are to be called, and to the fact that some of them are drawn from overseas. As a consequence, their opinions are yet to be tested in cross examination. I do not, however, see that as an obstacle to a determination of the application by way of a preliminary hearing. 18 In one critical respect they are unanimous, namely that it is extremely unusual, if not totally unprecedented, to have 4 deaths, and one ALTE, of infant siblings occurring in the same family, in succession, over a period of 8 years. As they all appear to recognise, the fact of sequential deaths, and of an ALTE, of this kind, within the one family, must inevitably give rise to a real concern, in the absence of some inherited abnormality (none being suggested to be present in this case) that they involved acts of deliberate homicide. 19 The Crown has foreshadowed an intention to call, in respect of this part of its case, a number of expert witnesses, as well as the pathologists who carried out the individual post mortem examinations and the various medical practitioners who attended the infants. The experts include Professor Berry, Dr Cala, Dr Ophoven, Professor Herdson, Professor Ouvrier, and Dr Beal, whose reports have been served. 20 The defence proposes calling 2 witnesses, Professors Byard and Busutill, whose reports have been served and to refer to the evidence which Professor Berry gave in another trial, having a similarity to the present. 21 The substance of the opinions which emerge from the reports may next be noted, individually in relation to each child, and then generally.

Caleb 22 Dr Ophoven, a paediatric forensic pathologist said, in her report: " It is my opinion to a reasonable degree of medical certainty [an expression which she equated to proof beyond reasonable doubt] that Caleb Folbigg did not die of the condition known as Sudden Infant Death Syndrome. It is also my opinion that Caleb's death is most consistent with death by suffocation ." 23 Professor Peter Berry, a Professor of Paediatric Pathology, noted: " Faced with a similar case [as Caleb Folbigg's death] today, I would not give the cause of death as SIDS because of the finding of haemosiderin in the lungs. " 24 Professor Peter Herdson, a Professor of Pathology, said: " In my opinion, [in relation to Caleb Folbigg's death], the findings taken in isolation leave the cause of death undetermined, but apparently consistent with Sudden Infant Death Syndrome ." 25 Professor Busuttil, a Professor of Forensic Medicine and consultant Pathologist, said in relation to Caleb's death: " 5.9 IN SUMMARY v This death should not have been attributed to SIDS. v There was a congenital clinically-diagnosed but not pathologically confirmed condition which could have led to upper airways obstruction. v The presence of some HAEMOSIDERIN in the lungs of this child raises the possibility of imposed airways obstruction. v Imposed airways obstruction cannot be completely excluded. v No other metabolic congenital anomaly was found in this child".

Patrick 26 Dr Ophoven said: " Patrick's sudden, profound and irreversible brain damage is consistent with and diagnosed as a hypoxic episode. Hypoxia in this case is synonymous with asphyxia and unfortunately heralds the fatal event in retrospect. No natural disease or process has been identified to explain this event, nor was there a recurrence of an acute life threatening event observed by anyone except his mother. In my opinion, the cause of Patrick's cardio-respiratory arrest is the same process that killed him… In my opinion the cause of death should be listed as…suffocation." 27 Professor Berry said: " Patrick's initial collapse was never explained. Such 'near-miss' events resulting in brain damage are a cause for concern because the window of opportunity to find a child in extremis and affect the resuscitation is very short, probably a matter of only a few minutes. This raises the question that the person who finds the baby may have been present when the collapse occurred and may have been in its cause. Such 'acute life threatening events' are not part of the usual natural history of SIDS… Taking this case in isolation I would have given the cause of death as 'not ascertained', ascribing it to brain damage following an unexplained collapse, also noting that the child's mother found him both on that occasion and when he subsequently died." 28 Professor Herdson observed: " In my opinion, [in relation to Patrick Folbigg's death], the history of a life threatening episode with subsequent abnormalities would be most unusual for a death to be due to so-called Sudden Infant Death Syndrome and the cause of death in this case is more accurately undetermined." 29 Professor Busuttil's opinion, in summary, was as follows: " v This death should not have been attributed to SIDS. v It should not have been attributed to asphyxia in the absence of typical asphyxial signs at autopsy. v There was a brain condition, which could have given rise to serious life-threatening convulsions, and death could have occurred in the course of these convulsions. v The diffuse generalised focal brain damage present could have been the result of a viral infection of the brain, which has healed and it would be almost impossible to specifically identify this cause weeks later - an (sic) encephalitis. This disseminated brain damage could also have resulted from depletion of the oxygen supply to the brain, and therefore imposed upper airways obstruction lasting for a period of minutes. v It is unlikely that this brain damage resulted from a shaking injury. v No congenital metabolic problem was conclusively shows (sic) to be present in this child." 30 Professor Ouvrier, a paediatric neurologist, provided a report in which he stated: "The clinical history and findings at admission (18 October) coupled with the early onset of seizures which became intractable would be in keeping with encephalopathy due most likely, in my opinion, to an asphyxial episode… The subsequent evolution of the case with episodic tonic upgaze, seizures and decrease in visual attention would have been consistent with brain damage suffered during the event leading to the (October) admission. The most plausible explanation of the series of events is that there was an acute asphyxial event on the morning of 18/10/1990. Such an event could have been a 'near miss' SIDS (ALTE) or could have been due to deliberate suffocation of the infant."

"The pathological findings at autopsy would have been consistent with damage due to a serious hypoxic event suffered at the age of 4 months but I cannot exclude the possibility that the findings could have possibly been caused by shaking or trauma since this may sometimes cause apnoea… The final event appears to have been a further asphyxial episode without clear explanation."

Sarah 31 Dr Ophoven said: " Although the classic classification of SIDS includes children under 1 year of age, this is not the age range accepted by most forensic pathologists and a sudden unexpected infant death, greater than 6 months from the SIDS condition would be considered atypical and by essentially 1 year of age would be excluded. It is my opinion that Sarah's death is most consistent with death by suffocation." 32 Professor Berry observed: " Taken in isolation, the death of Sarah may be ascribed to the 'Sudden death syndrome'. The post-mortem findings were consistent with that diagnosis. However, at 10 months of age she was older than most SIDS, the majority having occurred by 6 months of age. That alone is reason for closely scrutinizing the circumstances. I would probably give the cause of death in isolation as SIDS, with misgivings." 33 Professor Herdson noted: "[In relation to Sarah Folbigg's death], I concur with…Associate Professor John MN Hilton…where the findings taken in isolation could be diagnosed as Sudden Infant Death Syndrome, and assessment of the subsequent analysis provided by Professor Peter Jeremy Berry… and Dr Janice Jean Ophoven." 34 Professor Byard was unsure of the significance of the congested uvula, and said: " Given the above points, with no abnormal findings present at autopsy, I would have to label the cause of death as 'undetermined', with an autopsy finding of narrowing of the upper airway".

35 Professor Busuttil's opinion, in summary, was: " v No anatomical or other cause of death was found. v This death approximates most of the four death being reviewed, a typical death from SIDS. v The presence of the congested uvula may have produced some upper airway obstruction.

Laura 36 Dr Ophoven said: " It is my opinion to a reasonable degree of medical certainty [that is, beyond reasonable doubt] that Laura Folbigg did not die of the condition known as Sudden Infant Death Syndrome. In my opinion, she does not fall within the age range associated with SIDS and would not be considered for the diagnosis of SIDS for that reason in and of itself. It is my opinion that Laura's death is most consistent with death by suffocation." 37 Professor Berry said: " [In respect of Laura Folbigg], it is recognised that an inflammatory infiltrate in the heart muscle is also quite commonly found in those who die of other causes, for example in road traffic accidents. It has been described as an incidental finding in suffocation. An inflammatory infiltrate in the heart must therefore be quite common in the general population and probably accompanies some common childhood illnesses. The finding of an inflammatory infiltrate in the heart [as was found in Laura's heart] does not necessarily mean it was responsible for death."

He also stated: " Nevertheless, taken in isolation I would have ascribed this death to myocarditis recognising that although the infiltrate was quite extensive, I could not see actual damage to the heart and muscle." 38 Dr Alan Cala, a Forensic Pathologist, who conducted the post-mortem examination of Laura Folbigg made the following statement: " Non-accidental asphyxia in the form of deliberate smothering must be considered as a possible cause of death for Laura Folbigg, and as possible cause of death for the other Folbigg children as well. I remain very suspicious that all four Folbigg children may have died as a result of a deliberate smothering. The medical evidence, however, does not allow me to take this any higher than a suspicion of deliberate smothering."

The inflammatory infiltrate in the heart, consistent with myocarditis, he said, " may represent an incidental finding ". 39 Professor Herdson added: " I concur with…Dr Allan D Cala… where the cause of [Laura Folbigg's] death was undetermined… and I further agree with Dr Cala that his finding of myocarditis is consistent with Laura's recent illness and is probably incidental." 40 Professor Busuttil said, in summary: " v This death should not have been classified as SIDS. v There is a myocarditits which although may be completely incidental could also have caused serious heart problems and even death acutely and unexpectedly. v This condition could not have been induced by imposed airways obstructions of this child either recently prior to death or previously." 41 Professor Byard stated: " Given the finding of extensive myocardial inflammation with no abnormalities present I would have attributed the death to myocarditis. An identical conclusion would be drawn by most pathologists according to Professor Berry. " 42 It can be seen from the foregoing, that these opinions depended on an assessment of the post mortem findings and pathology considered individually in each case. I next turn to the overall assessment of the expert witnesses. 43 Dr Ophoven observed: " It is well recognized that the SIDS [Sudden Infant Death Syndrome] process is not a hereditary problem and the statistical probability that 4 children in one sibship could die from SIDS would be infinitesimally small." 44 Professor Berry's view was as follows: " The sudden and unexpected death of three children in the same family without evidence of a natural cause is extraordinary. I am unable to rule out that Caleb, Patrick, Sarah and possibly Laura Folbigg were suffocated by the person who found them lifeless, and I believe that it is probable that this was the case." 45 Dr Cala concurred with the following statement from the American Academy of Pediatrics [Pediatrics, Vol. 94 Number 1, July 1994, pp 124 to 126]: "There is a small subset of infants who die unexpectedly, whose deaths are attributed to SIDS, but who may have been smothered or poisoned. Autopsy cannot distinguish death by SIDS from death by suffocation. A study of infants suffocated by their parents indicates that certain features should raise the possibility of suffocation. These include previous episodes of apnoea (cessation of breathing) in the presence of the same person, previous unexplained medical disorders such as seizures, age at death older than 6 months and previous unexpected or unexplained deaths of one or more siblings or the previous death of infants under the care of the same, unrelated person. "

46 He also said: " If homicidal acts have been committed, it is most likely these acts have been in the form of deliberate smothering, whether deliberately or accidentally inflicted may leave no trace. There are no specific post-mortem findings for smothering." 47 Professor Herdson, when taking all 4 deaths into account, said: " I am unaware that there have ever been three or more thoroughly investigated infant deaths in one family from Sudden Infant Death Syndrome. Based on all the material that I have reviewed relating to these four infant deaths, in my opinion all four infants probably died from intentional suffocation. · In drawing this conclusion, apart from my comments above, I would draw attention to the wide age range of the children at the time of the initial observed events or deaths, twenty days for Caleb to approximately nineteen months for Laura. · The fact that two infants, Patrick on 18.10.90 and Laura on 1.3.99, were found moribund rather than dead is not the pattern associated with Sudden Infant Death Syndrome" 48 Dr Susan Beal, a paediatrician, made the following statement: " Based on the records I have examined in regards to the family Folbigg, I have no hesitation in saying I believe that all four siblings were murdered… As far as I am aware there has never been three or more deaths from SIDS in the one family anywhere in the world, although some families, later proved to have murdered their infants had infants who were originally classified as SIDS." 49 Professor Busutill observed: " 9.3 As far as one can ascertain, there was no congenital metabolic abnormality demonstrated in any or all of these children that could have caused them to die suddenly and unexpectedly. 9.4 These deaths are not all due to SIDS, and with exception of the third death other conditions, which could [be] life-threatening, were present and should have been taken into consideration by the pathologist and by the Coroner in coming to an eventual cause of death. 9.5 It certainly cannot be said, indeed beyond reasonable doubt, that these deaths were irrefutably due to imposed or induced airways obstruction, as by suffocation. 9.6 In three of these deaths such a possibility should have carefully considered on pathological grounds in the differential diagnosis as one possibility among many; it certainly is not the only possible explanation for these deaths because of the presence of other physical disease which could have caused sudden unexpected death." 50 Professor Byard, a specialist Forensic Pathologist and Consultant Paedeiatric Forensic Pathologist observed: " The autopsy findings, [in relation to each child] cannot be taken in isolation and with the occurrence of 4 deaths within the same family and police concerns I would list the causes of death as follows:

Caleb: Undetermined, with laryngomalacia;
Patrick: Undetermined, cannot exclude epilepsy;
Sarah: Undetermined, with narrowing of the upper airway ;
Laura: Undetermined, cannot exclude Myocarditis. In my view the critical issue in the pathology of these cases is the presence of underlying conditions which are known to cause sudden death in young children and babies. I am certainly concerned that there may have been inflicted suffocation but could not state unequivocally that this had occurred, and could not agree that their autopsies have failed to 'identify any known natural disease or disease processes that could explain the sudden deaths', as has been stated by Dr Ophoven. Although these cases are discussed in several of the expert reports as SIDS deaths they cannot, by definition, be regarded as such, either on their own or together. Thus, comments on the significance of the presence or absence of SIDS risk factors and use of statistics derived from SIDS deaths are not applicable. The unusual background of this family with many issues of concern does not negate the fact that potentially significant organic illness was present in these children. Upper airway narrowing, epilepsy and myocarditis may have been coincidental to their deaths, but alternatively may have been causative or contributory; unfortunately this issue cannot be clarified from the autopsy records. Given the information that I have been provided with I simply cannot see how the significance of these conditions can be down-played as potential causes of death, no matter how worrying the circumstances are." The issues 51 As stated by the Crown, the central issues in the case are:

(i) can the Crown positively exclude death by natural causes (including SIDS, cardiomyopathy and epilepsy) leaving death by deliberate suffocation as the only reasonable inference;

(ii) can the Crown prove the possibility that each child's death was due to asphyxia, and then, with the other evidence, prove beyond reasonable doubt that such event was deliberately induced by the accused? 52 Clearly the application for severance of the counts is inextricably linked to the question whether the matters asserted to be coincidence and tendency/relationship evidence should be admitted at the trial: R v Verma (1987) 30 A Crim R 441; Hoch v The Queen (1988) 165 CLR 292; R v Bell [2002] NSWCCA 2; and R v Jackson [2001] NSWCCA 387. If it is not admissible, then I would accept that severance should be ordered, although admittedly that could give rise to a difficulty with the diaries, since they are not confined to any one child, and are relied upon by the Crown as showing that the accused was responsible for the death of each of her children.

DIRECT EVIDENCE 53 The Crown submits that the evidence concerning the deaths of each child, and concerning the ALTE involving Patrick, is admissible in relation to each count, not just as coincidence evidence, but also as direct evidence to prove that the medical cause for those events was an act of deliberate suffocation carried out by the accused. Its case is dependant, not only upon the evidence relating to each death and the ALTE, but also, upon the circumstantial evidence concerning the accused's irritability and anger in relation to the children, the diary entries, the fact that it was she who was with the children alone at the time of their deaths, and the fact that, in the case of Patrick and Laura, they were still alive, although in extreme difficulties, when her screams alerted her husband. In that regard, it points also to the medical evidence as to the very short time frame which can exist between the onset of an ALTE and the finding of a child while moribund, being a matter of only minutes. 54 The Crown accepts that the medical evidence, in relation to each death or ALTE, if considered individually, and without reference to the other evidence, or to the context of the accused's relationship with, and attitude to the children, could not by itself exclude a reasonable possibility, or hypothesis, that such death was due to a cause other than deliberate suffocation. 55 However, it submits, for similar reasons to those which found favour in R v Clark [2000] EWCA Crim 54, that the similarity of the circumstances of the deaths and of the ALTE would make it an affront to common sense to conclude that it was simply an unfortunate coincidence for history to repeat itself four or five times, or to ignore the entire history involving all of the deaths and the ALTE. 56 Upon that basis, it was submitted that it was entirely proper and consistent with legal principle, that the medical experts and jury be permitted to consider the entire history of each of the cases together, and that it would be contrary to commonsense to confine them to a consideration of any one case, in isolation from the others. 57 It offered, by way of an analogy, in order to demonstrate the cogency of such a proposition, the following scenario: " (i.) a person is admitted to a hospital suffering from a mysterious respiratory disease of unexplained origin. The treating doctor is unable to determine the source or nature of the disease, and when the patient subsequently dies, in the absence of further information, the doctor ascribes the death to pneumonia. (ii.) Shortly after the first patient's admission, three other people are admitted to other hospitals suffering from a similar unknown respiratory disease. They also die. A medical expert witness then reviews all four cases and discovers that they all had similar symptoms, and had all visited the same shopping centre within 24 hours prior to the onset of their disease. (iii.) A subsequent examination of the air-conditioning system at the shopping centre reveals the presence of the micro organism that causes Legionnaires Disease. (iv.) On a further review of all four deaths, and considering medical literature and research from around the world, the medical expert witness forms the view that in all probability the four deaths were from Legionnaires Disease." 58 In this analogy it would obviously be quite artificial to require the medical expert witness to diagnose the cause of the disease for the first deceased person, in the absence of what happened to the subsequent three victims, that is, without knowledge of the additional fact (iii.). It was upon that basis that it was submitted that the evidence concerning the deaths of all four children was admissible as direct evidence to establish the cause of death of each one of them. 59 So far as such evidence would provide additional diagnostic material enabling the formulation of a conclusion as to the cause of death, or of Patrick's ALTE, then it would have a relevance under s 56 of the Evidence Act, being evidence that could rationally affect the assessment of the probability of the existence of the central fact in issue in relation to each count (s 55 Evidence Act), that is, the cause of death or ALTE of the subject child. 60 There is some force in this proposition, but it seems to me to be subsumed more relevantly in the argument for the tender of the evidence in accordance with the coincidence rule. Moreover, the suggested analogy does have an additional feature in the presence of an established possible cause in the known exposure of each victim to the bacterium which causes Legionnaire's disease.

COINCIDENCE EVIDENCE 61 The coincidence notice served by the Crown is in the following terms: " Notice is given that the Prosecution presently intends to adduce 'coincidence' evidence pursuant to the coincidence rule in sub-section 98(1) of the Evidence Act 1995, ie. Evidence that 2 or more related events occurred to prove that, because of the improbability of the events occurring coincidentally, a person did a particular act or had a particular state of mind. 1. The 'person' referred to in the proceeding (sic) paragraph is Kathleen Megan FOLBIGG. 2. The substance of evidence of the occurrence of the related events is contained within the following documents which previously have been served upon you. The Crown alleges that the coincidence evidence establishes: (i) that each of the accused's children died/had an ALTE (Apparent Life Threatening Event) in a similar way (ii) that each of the accused's children died/had an ALTE from the same cause (iii) that the accused killed/caused an ALTE to each of the four children by asphyxiating them with the intent to kill or do GRIEVOUS BODILY HARM to them. (iv) that the accused's four children did not die from Sudden Infant Death Syndrome or any other illness, disease or syndrome."

62 The material relied upon by the Crown as coincidence evidence is that which relates to similarities in the circumstances concerning the death or ALTE of each child, as identified in a chart prepared by it, namely that: (i) each child was under 2 years of age at the time of death or ALTE (and it may be noted, additionally, that three such deaths and one ALTE occurred in the first year of life);

(ii) each death occurred at a time which is unusual for a SIDS event;

(iii) each death occurred in the child's own cot or bed;

(iv) each death or ALTE occurred during a sleep period;

(vi) each child was found not breathing by the accused, and in relation to those who died in the night, she claimed to have observed from a distance, and in the dark, that they had stopped breathing;

(vii) only the accused was awake or present at the time when each child was found dead or not breathing;

(viii) there was, in each case, a short interval between the time when the child was last claimed to have been seen alive by the accused, and the time when he or she was found lifeless or not breathing properly;

(ix) in relation to the children who died in their cots or had an ALTE in the night, the accused had got up to go to the toilet, and in some cases had returned to bed, before getting up again and sounding the alarm;

(x) the accused had failed to pick up or attempt to resuscitate any of the children after the discovery of his or her death or cessation of breathing (subject to her claim to have done so in relation to Laura);

(xi) when each child was found he or she was warm to the touch;

(xii) there were no signs of any injury found on any child;

(xiii) no major illness preceded the death or the ALTE in any of the cases;

(xiv) each of Caleb, Sarah and Laura gave every appearance of being normal and healthy before his or her death, as had Patrick before his ALTE;

(xv) the sleep studies for each child were normal (save for Caleb, who by reason of being the first born was not the subject of any such study);

(xvi) the tests for any inherited and/or biochemical disorder or metabolic abnormality were negative in each case;

(xvii) the death or ALTE in each case, arose from an hypoxic event;

(xviii) the sleep monitors, which had been provided following the earlier deaths and ALTE, were not in use at the time of death in the case of Sarah and Laura; and

(xix) the accused had shown acute irritation in relation to each child, or appeared to have been in a condition of stress, before the death or ALTE. 63 The Crown submits that the relevant similarity of these events is so substantial and remarkable, that when taken in conjunction with the remaining evidence, including the expert medical evidence, the only reasonable hypothesis left open is that each death or ALTE was caused by deliberate asphyxiation. It relies, in this regard, on the diary entires and the evidence of Mr Folbigg, including his denial of any culpability, that it was the accused who had deliberately asphyxiated each child. 64 Before turning to the principles relating to coincidence evidence, four preliminary observations may be made. 65 First, the Crown does not invite an assumption of the guilt of the accused, in relation to any one of the deaths or of the ALTE, in order to make the evidence admissible. Had it sought to do so, then that would have involved an error of the kind exposed in Perry v The Queen (1982) 150 CLR 580 at 589/590 per Gibbs CJ and in Sutton v The Queen (1984) 152 CLR 528. 66 Secondly, it does not suggest that this is a case of the kind considered in R v Straffen [1952] 2 QB 911, or of the kind mentioned by Lee AJ in R v Zappala NSWCCA 4 November 1991 or similar to that seen in Thompson v The Queen (1989) 169 CLR 1, where there is evidence of an accused having committed a crime in a unique or unusual manner, which was then replicated in the offences giving rise to the further charges, or where the Crown relies on other proven homicidal acts on his or her part to strengthen its case. 67 Thirdly, the present case is one where the evidence goes not to the identity of the person who has committed a proven criminal offence, of the kind considered in Sutton and Zappala, but rather, it is one where the evidence goes to the question whether any crime has been committed at all, that is, whether the deaths and the ALTE were due to an unlawful act. 68 It is not, however, a case where, in relation to the assessment of the probative value of the relevant evidence, any question of concoction arises for consideration, of the kind examined in R v Colby [1999] NSWCCA 261 and in R v ACK NSWCCA 22 April 1996; and see also the reasoning in R v Lock (1997) 91 A Crim R 356, a case involving tendency evidence, but which would appear equally relevant to a case of coincidence evidence, so far as it is necessary to assess the probative force of the evidence. 69 In substance, it is a case where the similar factual circumstances of each death, taken in conjunction, in particular, with the presence of hypoxia, and the absence of any genetic abnormality, or clear medical reason for the occurrence of an ALTE or sudden death, in an otherwise healthy child, and in conjunction with the remaining circumstantial evidence, are said to establish that each child died of induced asphyxia. 70 The coincidence rule is now enshrined in s 98 of the Evidence Act, which provides, relevantly (notice having been given), as follows: " 98 (1) Evidence that 2 or more related events occurred is not admissible to prove that, because of the improbability of the events occurring coincidentally, a person did a particular act or had a particular state of mind if: (a) … (b) the court thinks that the evidence would not, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. (2) For the purposes of subsection (1), 2 or more events are taken to be related events if and only if: (a) they are substantially and relevantly similar, and (b) the circumstances in which they occurred are substantially similar." 71 If this test is passed, then before the evidence can be led it must also pass through the hurdle of s 101(2) as well as that contained respectively in s135 and s137 of the Act. S 101(2) requires that its probative value (to a fact in issue) "substantially outweighs any prejudicial effect it may have on the defendant." 72 Under s 135, the Court has a general discretion to refuse to admit the evidence: "if its probative value is substantially outweighed by the danger that the evidence might: (a) be unfairly prejudicial to a party, or (b) be misleading or confusing, or (c) cause or result in undue waste of time;"

and, under s 137, it is bound to refuse to admit the evidence if " its probative value is outweighed by the danger of unfair prejudice to the defendant". 73 The "probative value" of evidence is defined in the Dictionary to the Act as "…the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue" - here the probability that the death of each child, and of Patrick's ALTE, was due to asphyxiation. The inclusion of the word "rationally", in the definition, is of importance, having regard to the need for consideration to be given, both to the force of the evidence, and to the question of unfairness associated with any risk of it being used in a way that is not logically connected with the relevant issue, or of it being given undue weight in the resolution of that issue: R v Lockyer (1996) 89 A Crim R 457 at 460, and R v Colby [1999] NSWCCA 261. 74 In R v Lockyer, Hunt CJ at CL (at 459) held that the expression "significant" when used in conjunction with the expression "probative value" meant "something more than mere relevance but something less than a 'substantial' degree of relevance". I would respectfully adopt the observation of Ireland AJ in R v Martin [2000] NSWCCA 332 (at para 67) that its use, in s 98 and also in s 97 (tendency evidence) mandates that the evidence be of importance, or of consequence. 75 At common law, evidence falling within the umbrella of coincidence evidence, there referred to as similar fact evidence, was admissible if it possessed "a particular probative value or cogency such that, if accepted, it bears no reasonable explanation other than the inculpation of the accused in the offence charged" per Mason CJ, Wilson and Gaudron JJ in Hoch v The Queen (1988) 165 CLR 292 at 294. Their Honours went on to say, at 294-5: " Assuming similar fact evidence to be relevant to some issue in the trial, the criterion of its admissibility is the strength of its probative force: see Perry v The Queen; Sutton v The Queen; Reg v Boardman. That strength lies in the fact that the evidence reveals 'striking similarities', 'unusual features', 'underlying unity', 'system' or 'pattern' such that it raises, as a matter of common sense and experience, the objective improbability of some event having occurred other than as alleged by the prosecution." (Citations supplied). 76 In Pfennig v The Queen (1995) 182 CLR 461, a case concerned principally with propensity evidence, but equally applicable to coincidence evidence, Mason CJ, Deane and Dawson JJ, after referring to Hoch, went on to say, in relation to the passage last cited, (at 482): " This passage should not be understood as asserting that 'striking similarities' or the other characteristics mentioned in relation to propensity or similar fact evidence are essential prerequisites of its admissibility in every case. An important distinction is to be drawn between cases such as the present case in which the 'similar facts' are not in dispute and cases in which such facts are in dispute. Thus, their Honours said [in Hoch]: 'Where the happening of the matters said to constitute similar facts is not in dispute and there is evidence to connect the accused person with one or more of the happenings, evidence of those similar facts may render it objectively improbable that a person other than the accused committed the act in question, that the relevant act was unintended, or that it occurred innocently or fortuitously. The similar fact evidence is then admissible as evidence relevant to that issue.'" 77 This has a relevance for the present case in that, so far as I can see, the matters said to constitute similar facts are not themselves in dispute to any extent, if at all, as distinct from the conclusions to be drawn from them. 78 Additionally their Honours said, in relation to the question of the potential prejudicial effect of the evidence of this kind (at 482): " the prejudicial effect that the law is concerned to guard against is the possibility that the jury will treat the similar facts as establishing an inference of guilt where neither logic nor experience would necessitate the conclusion that it clearly points to the guilt of the accused." 79 In carrying out the weighing of the probative force of the evidence, against its prejudicial effect, they observed that (at 483): " the trial judge must apply the same test as a jury must apply in dealing with circumstantial evidence and ask whether there is a rational view of the evidence that is consistent with the innocence of the accused. Here 'rational' must be taken to mean 'reasonable' and the trial judge must ask himself or herself the question in the context of the prosecution case; that is to say, he or she must regard the evidence as a step in the proof of that case. Only if there is no such view can one safely conclude that the probative force of the evidence outweighs its prejudicial effect." 80 In R v WRC [2002] NSWCCA 210, Hodgson JA said, in relation to this passage, again in a case involving tendency evidence, but of equal relevance for coincidence evidence: " 27. Plainly, that passage does not mean that the judge must look at the propensity evidence in isolation, and not admit it unless there is no reasonable view of the evidence so considered that is consistent with the innocence of the accused of the offence with which the accused stands charged. That approach would be quite inconsistent with the correct approach for considering circumstantial evidence, as explained in Shepherd v The Queen (1990) 170 CLR 573; and the quoted passage proceeds by reference to the character of propensity evidence as circumstantial evidence. 28. On the other hand, nor can it mean that the judge must look at all the evidence in the case, including the propensity evidence, and admit the propensity evidence if and only if there is no reasonable view of all the evidence that is consistent with the innocence of the accused: that approach would disregard altogether the need for some special probative value of propensity evidence. 29. In my opinion, what it must mean is that, if it first be assumed that all the other evidence in the case left the jury with a reasonable doubt about the guilt of the accused, the propensity evidence must be such that, when it is considered along with the other evidence, there will then be no reasonable view that is consistent with the innocence of the accused. That is, the propensity evidence must be such that, when it is added to the other evidence, it would eliminate any reasonable doubt which might be left by the other evidence." 81 To those observations his Honour adhered in R v Joiner [2002] NSWCCA 354 at para 37. Reference may also be made to Pfennig, Lock and R v AH (1997) 98 A Crim R 71 at 78, in support of the proposition that the evidence must be excluded unless, when taken in conjunction with the remaining evidence, the only rational explanation is the inculpation of the accused for the offence in question. 82 It is next convenient to apply these principles to the evidence which the Crown expects to lead. As I currently understand that evidence, it will be the expert opinion of each of Drs Ophoven and Beal, and of Professors Berry and Herdson, that each child died of intentional suffocation. Drs Ophoven and Beal reach that conclusion without qualification, while Professors Berry and Herdson express that view as a probability. 83 The other experts, including Dr Cala, and Professors Byard and Busutill fall somewhat short of this, although they accept that deliberate smothering or induced asphyxia, cannot be excluded in any one of the 4 deaths or in Patrick's ALTE. What all experts do appear to exclude, in the light of what is now known, however, as a cause of any of the deaths or of Patrick's ALTE, is SIDS, or any underlying congenital metabolic abnormality. Moreover, while some other possible medical conditions have been identified, none of the experts are prepared to ascribe, as the cause of death or of the ALTE, any natural disease process, to the exclusion of other possible causes, including smothering. 84 The defence submitted that the Crown faced a logical difficulty in that it has to rely upon a concatenation of events, in order to prove the cause of death in each case, being unable to show positively by reference to the evidence concerning any one death, that it was due to induced asphyxia. If it could do so then, as I understand the defence position, it would accept that the argument for calling the evidence, in relation to all counts, would be that much stronger, since it would then be capable of excluding mere coincidence or accidental death. 85 The answer to that submission, in my view, lies in the approach taken in R v Clark, and in R v WRC, elsewhere mentioned in these reasons, bearing in mind, in particular, that this aspect of the Crown case, although very important for proof of the accused's guilt, is but one circumstance in a circumstantial case. 86 The associated defence submission to the effect that coincidence evidence is only admissible if it is sufficient in itself to prove beyond reasonable doubt that the accused is guilty is, in my view, misconceived. For the reasons stated in WRC (at para 29) and in Joiner (at para 37) cited earlier, it overstates the requirement for admissibility, since it is necessary that the coincidence evidence be considered in the light of all the remaining evidence. 87 Mr Zahra SC also submitted that there was a danger in relation to the medical evidence, if it be the case that the experts had formed their ultimate opinion by reference to a mantra expressed in the terms of one death equals SIDS, two deaths equals unascertained cause and three deaths equals homicide, unless otherwise explained. 88 Clearly, any such reasoning, or any reasoning based only upon an exercise of statistical probability, would be potentially misleading and capable of weakening the probative force of their evidence. However, that would not, in my view, prevent the experts from giving evidence to the effect that SIDS is a relatively infrequent event, and that multiple SIDS deaths and/or multiple unexplained deaths or ALTE's involving infants within any one family are even more infrequent. 89 Subject to appropriate qualification as to what is included, and what is not included in the medical literature upon this topic, I would see no objection to reference being made to it concerning the occurrence of SIDS. Similarly I would see no objection to the experts expressing an opinion, subject to the same qualification, as to the improbable occurrence of multiple deaths of infants or of ALTE's, within the same family, of unexplained causes, that is, absent some common genetic disorder. 90 I would not however regard it as appropriate for the likelihood of any such occurrence to be expressed in the terms of statistical odds, since that could give rise to a risk of those odds being misused in a way similar to the Prosecutor's fallacy which has been exposed, in relation to DNA evidence. 91 It was accepted by Mr Zahra SC that the ultimate issue rule of the common law, having been repealed by s 80 of the Evidence Act, does not preclude the medical experts from offering their opinions as to the causes of each death. Clearly that is so in relation to an opinion offered for example that it was due to an hypoxic event, or was one which was consistent with asphyxia. However, what they cannot do is to take the next step, which is properly one of fact for the jury, and not one dependent upon the medical or scientific expertise which each clearly has, to offer the view that it was the accused who induced that event, or that the death amounted to homicide. The final step is one which relies upon circumstantial proof from the factors previously identified. 92 This may require some modification of the opinion as to the ultimate issue offered in particular by Dr Beal and Professor Ophoven. It would not, however, limit their evidence as to any or all of the deaths as being consistent with, and as possibly or even probably due to induced asphyxia. 93 Considerable reliance was placed by the defence upon the decision of Bell J in R v Phillips [1999] NSWSC 1175. That was a case in which the accused was charged with the murder of one of her children, and in which the Crown sought to tender evidence concerning the deaths of two other children who had been born to her, and of a number of ALTE's relating to all three children. It was a case where four matters were said to demonstrate that there was a substantial and relevant similarity between the deaths and ALTEs, namely, that each child was a natural child of the accused; in each case it was she who had located the child, at a time when the child was either not breathing or experiencing breathing difficulties; in each case it had been she who had arranged to take the child to hospital; and in each case the de facto partner of the accused had been "unavailable" in the context of a background of domestic friction. The second and fourth of these matters was not conceded, and Bell J expressed strong reservations as to whether either could be established on the available evidence. 94 The present case is, in my view, distinguishable, since there are here many more matters relied upon as showing a substantial and relevant similarity. Moreover, it is a case where, unlike Phillips, there is independent evidence in the form of the diaries, and Mr Folbigg's evidence, and it is one where, some of the experts expressed their opinions as to the cause of death in far more positive terms than those expressed by the witnesses in Phillips. 95 In this regard Bell J observed (at para 64): "I did not understand any of the witnesses who gave evidence in the proceedings before me to be of a view other than that the family history of ALTE, and the deaths of the 3 children was highly suspicious". 96 Later her Honour observed that the difficulty which stood in the way of a finding that no rational explanation existed for the deaths and ALTE's, other than that the accused had deliberately induced each incident, was the fact that "none of the expert witnesses was prepared to go so far." 97 The present case differs in this respect. The critical circumstance in this case, and where it seems to me to differ from Phillips, is that it is sufficient for the Crown to point, in each case, to the evidence of each expert which would exclude SIDS as a cause; which would identify the improbability of the various incidental medical conditions which were observed post mortem as the cause of death or of the ALTE's, and which would then identify asphyxia, as a possible or probable cause of death. It appears to me to be enough, in a circumstantial case, for the Crown to establish that asphyxia was a possible cause of death, and that the findings on post mortem examination are, in the opinion of the experts following their independent review, consistent with that having been the causative mechanism. 98 Moreover, so far as it is submitted that Professor Herdson and Dr Ophoven based their opinions upon no more than an assessment of the probability of four deaths within the one family occurring by a mechanism other than the deliberate act of a parent, or by reference to a statistical probability exercise of the kind that met with disfavour in R v Clark, then this seems to me to involve an unjustified attack on the detailed analysis which they brought to each case. 99 I am similarly unconvinced that their opinions are based on any misapprehension of the facts of each matter, or that the process of reasoning foreshadowed by the Crown depends upon the simple proposition that if all four deaths were not SIDS deaths, then they must have amounted to murder. Clearly, any such line of reasoning would be erroneous, because the Crown would still need to exclude, as a reasonable hypothesis, in respect of each count, that the event was not due to some medical condition, or cause other than the deliberate act of the accused. 100 I do not understand the Crown to approach the case on the simple basis suggested, or to suggest that the circumstances giving rise to each death should be considered other than carefully in isolation as well as collectively, and in the light of the remaining circumstantial evidence. 101 Upon my assessment of the evidence which the Crown intends to call, the present case has a close similarity to that of R v Clark [2000] EWCA Crim 54, where the Court upheld the decision of the trial judge, in not severing an indictment charging a mother with the murder of two of her infant children, and in allowing the evidence in relation to each child to be received as part of the Crown case concerning the two counts. 102 It was a case where six principal similarities were relied upon, namely that the two babies had been about the same age at the time of death; they were each found unconscious by the appellant in the same room; they were found at about the same time, shortly after being fed; the appellant had been alone with them when they were discovered lifeless; in each case their father was either away, or about to go away; and in each case there was evidence (although this was, admittedly, contentious) of previous abuse or of deliberate injury. 103 The central issue for each count was whether the Crown could exclude death by natural causes. Similarly to the present case, the effect of the medical evidence as a whole was that neither baby had been the subject of a SIDS death, and there was a consensus, as the lowest common denominator, that each death was unexplained, but was consistent with an unnatural death. 104 Again, similarly to the present case, the medical evidence was not regarded as standing alone so far as there were matters of potential significance in relation to the credibility of the evidence of the parents. The Court concluded, after an analysis of the evidence (at 89): " The Prosecution's case against the appellant depended on a large number of pieces of circumstantial evidence, including not only the medical evidence concerning each baby but also evidence going to the credibility of the appellant and her husband. In that context the various similarities referred to by the judge could properly be relied on as supporting the Prosecution case and as tending to prove the appellant's guilt on each of the counts. They made an explanation based on coincidence very much less plausible, if not an affront to commonsense. In any event it would have been an affront to commonsense to require the jury to consider only one of these deaths in isolation from the other. The overall circumstances of the two deaths were plainly relevant to the assessment of guilt in respect of each of them". 105 In the course of its reasons, the Court rejected the proposition that even if the evidence on one count was admissible upon the other, it could only become admissible once the jury had concluded that the first death was unnatural upon the evidence relating to that count alone - holding (at para 90) that the decision of the House of Lords in DPP v P [1991] 2 AC 447 did not lay down such a high hurdle. Their Lordships went on to say (at 90): " such evidence can have sufficient probative force to make it just to admit it even though, taken by itself, it would not be sufficient to prove guilt. Proof of guilt depends on the combination of the evidence admitted on grounds of similarity and the other evidence in the case."

106 When considered in the context of the remaining circumstantial evidence, and particularly the diary extracts, which I have highlighted, it is my view that the requirements of ss 98 and 101(2), as noted above, have been met in the present case. 107 What is critical, it seems to me, is that the medical evidence is part of a circumstantial case, in which the jury might properly take into account the following:

(b) The rarity of repeat incidents of SIDS and of unexplained infant deaths or ALTE's within one family;

(d) The fact that each was a healthy child and that such physical or medical conditions, as were observed post mortem, were unlikely causes of death;

(e) The absence of any sleeping abnormality in the three children who were tested and/or monitored;

(f) The fact that monitoring was provided but then ceased in relation to Sarah and Laura - a matter of some importance in view of the diary entry of 25 August 1997;

(g) The fact that two of the children were found by the accused within the very brief window between a child being found moribund and dead;

(h) The fact that all children were found by the accused while they were still warm, even though in four of the five relevant instances this occurred at night;

(i) The unexplained absence of Sarah and the accused at about 1 am, shortly before she was found dead;

(j) The unusual behaviour of the accused in getting up from bed, leaving the room, returning, and then getting up again only to discover, in the case of some of the children, that they were moribund or lifeless;

(k) The fact that she claimed to have observed, in the dark and from some distance away, that some of them were not breathing;

(l) The stress and anger which the accused had expressed toward the children;

(m) The fact that the accused would not nurse or endeavour to resuscitate the children when they were found; and

(n) The diary entries including, in particular, the sections which I have emphasised in the extracts set out earlier in these reasons, so far as they may reveal an absence of love for, or a bond with, the children, an acceptance by the accused of her hand in their deaths, her black moods and stress, her fears as to the way she behaved when stressed, and any resentment which she may have held in relation to the curtailment of her outside activities by reason of the need to care for Laura. 108 In the light of the circumstances mentioned, this is not a case dependant entirely upon the medical evidence. Were it otherwise, then there could well have been a very real difficulty for the Crown in excluding natural causes, whether it be SIDS or the presence or the progression, of some physical defect or disease process, as a rational cause of death or of Patrick's ALTE. 109 In summary, the facts which have been identified by the Crown in relation to each of the deaths appear to me to be substantially and relevantly similar when considered in the absence of any common metabolic abnormality, or outward sign of injury, or otherwise life threatening disease or medical condition. When further considered in the light of what appears, prima facie, to be significant admissions by the accused, in the diaries concerning the deaths of some of the children, as well as the evidence concerning her moods and irritation, proximate to their deaths, then I am left with the view that the test in WRC, Joiner, and Pfennig is satisfied. The evidence would, in combination, be such, if accepted, that no reasonable view would remain open that would be consistent with the innocence of the accused. 110 So long as the evidence of the experts is pressed upon the basis previously mentioned, then I am satisfied that their opinions concerning each death and ALTE is properly admissible. Taken in conjunction with the circumstantial evidence, the coincidence of the occurrences is such that it would be an affront to common sense to restrict the admission of the evidence in the way requested, or to sever the counts. In particular, it would require the jury to consider each case in a vacuum, isolated from what, on a prima facie basis, would appear to be facts of significant probative force as to the cause of the relevant death. 111 In coming to this conclusion I have given very careful consideration to the obvious prejudice attaching to the number of deaths and to the risk of an inference being drawn from that fact alone, that there was more than coincidence here involved. Nevertheless, when considered in the context of the remaining circumstantial evidence, the repetition of the events has its own significant probative value. 112 It is true, as Mr Zahra has submitted, that some of the so-called similarities are nothing other than the incidents attaching to any primary carer, and that as such they are not necessarily incriminatory. To some extent, but only to a limited extent, is that true. In particular the time at which the alarm was raised at night, being closely proximate to the occurrence of the ALTE, or death, and the way in which the accused claimed that she had discovered the problem, do not seem to fit into the expected pattern of conduct for a primary care giver. Moreover, they can properly be understood in the context of the opportunity presented by the fact that the accused had been up and about, and by the fact that her husband was a very deep sleeper, who was not easily roused. These are matters which are fit for the jury to assess, and they do not reduce the significance of the similarities. 113 In relation to s 101(2), I am accordingly satisfied that the evidence directly relevant to each death and ALTE has considerable probative force in relation to all counts, when considered in combination with the other matters. That is attributable, not only to the considerable qualifications of the experts, whose views are to be tendered, but also to the context in which the deaths occurred, including the thought processes disclosed by the accused in her diaries, and the husband's evidence. 114 I am also satisfied that suitable directions can be framed so as to ensure that the jury does not use the evidence in some illogical way, or give to it a weight which it does not deserve. 115 So far as the defence submission depends upon an assessment of the likely weight of the evidence to be called by the Crown, that in my view is a matter to be reserved for the jury, and is not a matter which should be determinative of the current application. Were it the case that the opinions offered by the experts were tenuous, or illogical, or plainly dubious on their face, then I accept that this would be a matter of relevance for the weighing exercise. 116 However, in circumstances where opinions are offered, by experts of the kind who are to be called, and who appear to be extremely well qualified in the fields of infant mortality, neurology, and forensic pathology, then any attempt by me to form a conclusion at this stage of the proceedings as to the weight which should be given to them would be inappropriate. 117 Rather, they should be accepted, on a prima facie basis, for the purposes of this application, as representing an assessment and/or opinion offered by a suitably qualified expert, which may then be explored at trial, and weighed, in due course, by a jury. 118 This is not to ignore the caution in Pfennig (at para 60) that the "probative value of disputed similar facts is less than the probative value those facts would have if they were not disputed". In this case it is not the underlying similar facts which are in dispute. Rather, the dispute goes to the cause of death in each case, the resolution of which turns upon a consideration of the similar facts and all of the remaining evidence. 119 Mr Zahra SC raised a question as to where the starting point of the jury might be, and in particular asked whether there might not be a risk of them being overwhelmed by the considerable body of evidence, and the apparent coincidence of the deaths, to the point of losing sight of the central issue in each case, as to the cause of death. 120 There is some force in that submission. However, that risk can, in my view, properly be overcome by focused closing addresses and by the way in which the summing up is framed. It may well be, as counsel have identified, that the case in relation to Sarah is the strongest, both by reason of the absence of any apparent medical cause for her demise, and the diary entries relating to her death, particularly the comment (28 January 1998) that it occurred "with a bit of help". It will however be a matter for the Crown whether it elects to advance a particular death as the one where its case of murder is the strongest, and to rely upon the coincidence rule, in conjunction with the evidence particular to the other deaths or ALTE, to invite the jury to exclude, in relation to these other events, all rational causes other than deliberately induced asphyxia. 121 Moreover, it should be assumed that the jury will be instructed, in explicit terms that before it can convict the accused upon any count, it must be satisfied, by reference to the whole of the evidence, that the relevant death or ALTE was caused by asphyxia, and that it was the accused whose act brought about that event. Each fact I would regard as an essential intermediate fact to be proved by the Crown beyond reasonable doubt. 122 For these reasons I am satisfied that the evidence is admissible as coincidence evidence and that, subject next to a consideration of s 135 and s 137 of the Evidence Act, the Crown should be allowed to call the evidence concerning each death, or ALTE, generally, that is, as evidence admissible in respect of each and every count. 123 The s 137 requirement to exclude evidence adduced by the Crown, where its probative value is outweighed by the danger of unfair prejudice to the defendant, comes into operation where there is a real risk of unfairness arising to the accused by reason of the admission of the evidence: R v Lisoff [1999] NSWCCA 364. 124 Consideration of the possibility of unfairness, for the purposes of this section is not materially different from that required in relation to s 101(2), that is, whether there is a risk of the jury misusing the evidence (for example on a basis logically unconnected with the fact in issue) or attaching to it a probative weight which is disproportionate to its real evidentiary value: R v Benecke (1999) 106 A Crim R 282. 125 It is not enough that the prejudice to the accused arises solely from the fact that the evidence may strengthen or even establish the prosecution case: R v Singh-Bal (1997) 92 A Crim R 397. The key to exclusion under this section is that of unfairness: R v GK [2001] NSWCCA 413. For the same reasons as those considered in relation to s 101(2), I am satisfied that the probative value of the evidence is not outweighed by any danger of unfair prejudice to the accused. 126 Section 135, unlike s 137, does involve a discretionary exclusion of evidence, in the presence of one or other of the circumstances identified. For the reasons already mentioned, I am not persuaded that the evidence would be unfairly prejudicial. 127 While the evidence of the experts concerning each death, is likely to be complex, and while there clearly will be differences of opinion between them, even significant differences, it can be safely assumed that their views will be carefully and exhaustively explored, and that such differences as persist will be presented to the jury, by the end of the trial, in a way which is understandable. I see no risk, in those circumstances, of this body of evidence being either misleading or confusing. 128 Additionally, since the cause of death is the central issue in each case, it could not be said that the evidence would cause or result in an undue waste of time, as might occur, for example, where it related to some peripheral issue. 129 For these reasons I am also satisfied that neither s 135 or s 137 require that the evidence concerning each death and ALTE be excluded from being available for consideration in relation to each count.

RELATIONSHIP/TENDENCY EVIDENCE 130 The evidence in question relates to the attitude and conduct of the accused towards each child, as disclosed in the diaries, her husband's evidence, and her ERISP. In substance, it is the Crown submission that she had a tendency or propensity to become stressed and to lose her temper and control with each of the children, and then to asphyxiate them. As such it is relied upon as supporting a motive or reason why the accused would kill or harm her children, in a way which would normally be quite unexpected, and, in that way, to establish that this was a case which involved felonious conduct by the accused. 131 The Crown accepts, that before the evidence can be used as tendency evidence to establish the last step, the jury would need to be satisfied beyond reasonable doubt, in relation to any one of the children, that the accused had caused his or her ALTE or death. Once so satisfied, then it submits, the jury can use that conclusion and the remaining circumstantial evidence or tendency evidence to assist in deciding whether or not she was responsible for the other deaths or ALTE. In this sense it has a separate significance from that which might apply to its use as circumstantial evidence in support of the coincidence argument. 132 Before the evidence can be used upon this basis, the Crown must satisfy the requirements of s 97(1) of the Evidence Act which relevantly provides: " 97 (1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind if: (a) … (b) the court thinks that the evidence would not, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value." 133 Similar considerations to those relevant for the coincidence rule apply to the tendency rule, in relation to the meaning of the expression "significant probative value": R v Lockyer (1996) 89 A Crim R 457 and R v Lock (1997) 91 A Crim R 356; as well as in relation to the s101(2) weighing exercise, and to the possibility of exclusion under ss 135 or 137 of the Evidence Act. 134 It is doubtful whether reliance upon the evidence identified in the tendency notice would of itself materially advance the Crown case if, as I have held, it is also admissible in conjunction with the medical evidence, in relation to each count as coincidence evidence. However, subject to proof of the matter which the Crown accepts that it would need to establish, by reference to the entirety of the evidence, then I am similarly satisfied that the evidence identified in the notice would qualify as tendency evidence. For the same reasons as those applicable to admissibility under the coincidence rule, this evidence, when taken in conjunction with the remaining evidence, appears to me to have the necessary probative value, and to be such as to substantially outweigh any prejudicial value it has to the accused. 135 In that regard, I accept that evidence concerning the accused's stress, or anger, or attitude towards the children, has a significant potential probative force in so far as it would provide a reason for the wholly exceptional experience of a mother killing her own children. If the remaining evidence were considered in a vacuum, that is, without reference to these matters, then the jury would be left in a most artificial position, without the assistance which it would need to decide whether the deaths were deliberately caused, or whether they were accidental or resulted, as a matter of mere coincidence, from natural causes, or from the progression of some disease or physical condition. 136 Relationship evidence has an area of overlap with tendency evidence, depending upon the use to which it is put. It may be relevant and properly admissible as a matter going to motive, or so far as it may assist in a choice between accident and misadventure (Wilson v The Queen (1970) 123 CLR 334), or as providing a proper context for the consideration by the jury of the particular offence, as in R v Serratore (1999) 48 NSWLR 101. 137 It may also have a particular relevance in relation to sexual assault offences of the kind considered in R v Chamilos NSWCCA 24 October 1985, Gipp v The Queen (1998) 194 CLR 106 and KRM v The Queen (2001) 206 CLR 22`1. 138 Whether the evidence is relied upon, in conjunction with the remaining evidence, as relationship evidence, or as tendency evidence, does not appear to involve any practical difference of significance, in this case. 139 For the evidence to be admissible as relationship evidence, I would be minded, in the circumstances of this case, and having regard to sections 135 and 137, to impose a similar test for admissibility as that set by s 101(2). 140 Being satisfied that those tests have been met, I will allow the evidence of the accused's conduct and attitude, with and toward each child, to be admitted into evidence as tendency evidence, in relation to all counts. 141 By reason of these conclusions, I am satisfied that the application of the accused to sever the indictment should be dismissed. I so order. 142 In conclusion, as I have observed, it is sufficient for this application that the expert evidence be limited in the way outlined, that is, to show that induced asphyxia was a possible and consistent cause of each death and ALTE. I would need to be persuaded that the Crown could take the next step, at least having regard to the reports as they presently stand, that it was in fact the cause of death, to the exclusion of any other cause as a rational possibility. That is the ultimate issue for the jury which seems to me to depend upon more than the medical evidence. 143 If the Crown wishes to assert that the medical evidence should be permitted to be used in this more positive way, then it will be necessary to hear further argument on this question. I draw attention, in this regard, to the helpful observations of Heydon JA in Makita (Australia) Pty Limited (2001) 52 NSWLR 705, concerning the manner in which the expert evidence should be presented, and assessed, by the trier of fact, in a case such as the present. I also draw attention to the decision in R v Puckeridge [2000] NSWCCA 193, concerning the way in which causation will need to be left to the jury. 144 I also observe, although neither Counsel have made reference to it, that the case is one where, in relation to the deaths of each of Caleb, Patrick and Sarah, the provisions of s 22A of the Crimes Act (infanticide), may have a potential relevance. If applicable, then any wilful act of the accused concerning those children could potentially be dealt with and punished as if it were one of manslaughter rather than murder. Moreover, the occurrence of an act of infanticide, in relation to any one or more of the earlier deaths, might have considerable potential relevance in relation to questions of diminished responsibility (in relation to Caleb, Patrick and Sarah) or of substantial impairment by abnormality of mind (in relation to Laura), which would similarly reduce any relevant offence to one of manslaughter. 145 While I have expressly not taken this circumstance into account in deciding the present application, the similarity of occurrences could have very great probative relevance in relation to any issue or issues arising in this regard, such that any such question would almost certainly require joinder of the counts and tender of the evidence generally. 146 Having regard to the matters discussed in these reasons, and the need to ensure a fair trial, I make an order that these reasons not be published until further order. **********

Last Modified: 11/28/2007 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

CITATION : R v Folbigg [2002] NSWSC 1127 revised - 30/05/2003 CURRENT JURISDICTION: Common Law Divsion FILE NUMBER(S) : SC 70046/02 HEARING DATE(S) : 22/11/02 JUDGMENT DATE : 29 November 2002

COUNSEL : M A G Tedeschi, QC (Crown) P Zahra SC (Senior Public Defender) SOLICITORS : S E O'Connor (Crown) D J Humphreys (Legal Aid) CATCHWORDS : CRIMINAL LAW - accused charged with murder of four children, and one attempted murder - plea of not guilty - defence application to have trials heard individually and separately - Tendency and coincidence evidence. LEGISLATION CITED : Crimes Act 1900 Evidence Act 1995 DPP v P [1991] 2 AC 443 Gipp v The Queen (1998) 194 CLR 106 Hoch v The Queen (1988) 165 CLR 292 KRM v The Queen (2001) CLR 211 Perry v The Queen (1982) 150 CLR 580 Pfennig v The Queen (1995) 182 CLR 46 R v ACK NSWCCA 22 April 1996 R v AH (1997) 98 A Crim R 71 R v Bell [2002] NSWCCA 2 R v Benecke (1999) 106 A Crim R 282 R v Chamilos NSWCCA 24 October 1983 R v Colby [1999] NSWCCA 261 R v Clark [2000] EWCA 54 R v GK [2001] NSWCCA 413 R v Jackson [2001] NSWCCA 387 CASES CITED : R v Joiner [2002] NSWCCA 354 R v Lisoff [1999] NSWCCA 364 R v Lock (1997) 91 A Crim R 356 R v Lockyer (1996) 89 A Crim R 457 R v Martin [2000] NSWCCA 332 R v Phillips [1999] NSWSC 115 R v Serratore (1999) 48 NSWLR 101 R v Singh-Bal (1997) 92 A Crim R 397 R v Straffen [1952] 2 QB 911 R v Verma (1987) 30 A Crim R 441 R v WRC [2002] NSWCCA 210 R v Zappala NSWCCA 4 November 1991 Shepherd v The Queen (1990) 170 CLR 573 Sutton v The Queen (1984) 153 CLR 528 Thompson v The Queen (1989) 169 CLR 1 Wilson v The Queen (1970) 123 CLR 334 DECISION : Application for separate trials refused. Tendency and coincidence evidence admissible on a limited basis.

R v Folbigg

At a glance

Court

Decision date

Before

Source

Judgment (59 paragraphs)

Parties

Cases Cited (25)

Cited By (3)