The Australian | Kathleen Folbigg case the mother of all injustices?

See the original article by Quentin McDermott and published in the Australian on October 9, 2021 here.

The very diaries that helped convict child killer Kathleen Folbigg may now hold the key to overturning her convictions.

Four leading experts have come forward to contradict the long-held view that the diaries were a “virtual” admission by Folbigg of guilt to murdering her children, Patrick, Sarah, Laura, and for the manslaughter of her firstborn, Caleb, who died between 1989 and 1999.

Folbigg – who is now in her 19th year behind bars – has always protested her innocence.

At her trial, senior Crown prosecutor Mark Tedeschi QC argued her diaries were “the strongest evidence the jury could possibly have for Ms Folbigg having murdered her four children”.

More recently, former District Court chief judge Reginald Blanch, who headed an inquiry into Folbigg’s convictions in 2019, said the evidence he had heard, including her own explanations of what the diary entries meant, “reinforces Folbigg’s guilt”.

Now four leading experts who analysed Folbigg’s diaries have formally submitted their opinions to NSW Governor Margaret Beazley AC QC, and to NSW Attorney-General Mark Speakman, as part of a petition originally lodged in March – and which has now been backed by 150 eminent scientists, science advocates and medical experts from around the world – calling for Folbigg to be pardoned and released.

“I am comfortable in describing Ms Folbigg as having been a very loving and attentive mother … ,” psychotherapist Dr Kamal Touma said.

“After reading and analysing the minute particulars of Ms Folbigg’s diaries, and having met her for five analytical psychotherapy sessions, I cannot see anything in the diaries or from my sessions with Ms Folbigg to indicate that she harmed her children.”

Dr Touma, who had five audiovisual consultations with Folbigg, concludes that she is suffering from primary and secondary “dissociation” following traumas she endured in her childhood, including the death of her mother at the hands of her father, when she was 18 months old.

When it came to her own children dying, Dr Touma said: “The painful aloneness of being dissociated with and from her feelings is illustrated by this simple heartbreaking entry in her diary the day her daughter Sarah died: MONDAY 30: SARAH LEFT US.”

But Dr Touma rejects the notion that she may have killed her children in severe dissociative, fugue-like states.

“Her dissociation is nowhere near the severity of a dissociative disorder that one would expect to observe with such phenomena,” he said. “Nowhere in the diaries nor in my conversation with Ms Folbigg was this observable. I can comfortably exclude this hypothesis.”

When Dr Touma spoke to Folbigg, he was struck by how she spoke about her children.

“A written transcript cannot reflect what we may call the ‘musicality’ of the moment where, immersed in associative thinking, she talked about her children. This is the true memories she keeps of her children and wasn’t since losing them able to access to express. This is not how a murderous mother would ever talk about her children,” he said.

‘Not a better mother’

A second expert, US-based psychologist and textual analyst, Professor James W. Pennebaker, who has helped the FBI and CIA understand the language of kidnappers, terrorists and violent criminals, said: “I see absolutely no evidence to suggest that these were premeditated murders.

“I see no evidence that Kathleen Folbigg’s language … exhibited any signs of deception or attempts to cover anything up.

“I also see no sign that Folbigg is mentally unstable or is someone harbouring buried hostility or rage.”

A third expert, consultant psychiatrist Associate Professor Janine Stevenson, said: “Nowhere in her journals does she use agency verbs, such as ‘I hurt her’ … Throughout the journal Ms Folbigg is detailing all the steps she took to ensure the safety of her children.

“There is no anger, no aggression, only self-doubt.”

And a fourth expert, associate professor of linguistics Professor David Butt, said: “There is a likelihood that the courts and inquiry have misinterpreted the feelings of responsibility for not being a better mother as admissions of agency in the deaths of the children.”

Experts dismissed

Folbigg’s legal team has also resubmitted a report from clinical psychiatrist Dr Michael Diamond, who met Folbigg and assessed her before writing a report for the 2019 inquiry, in which he said: “I found no evidence to support a view that Ms Folbigg has suffered from psychotic illness, severe mood disorder consistent with homicidal conduct or any other brain injury that might affect her conduct so as to carry out homicidal acts.”

Dr Diamond diagnosed Folbigg with complex post-traumatic stress disorder. Dissociation is frequently observed with those who suffer from c-PTSD.

A sixth expert report, submitted by clinical psychologist Dr Sharmila Betts, questioned how the diaries could be “tantamount to confessions” as asserted by the Crown.

“(That assertion) is misleading and unsupported by my reading of the diaries or the psychological literature on maternal adjustment, in both bereaved and non-bereaved mothers … In my opinion, the diaries do not contain any clear admission of guilt or confession of homicide,” Dr Betts said.

Instead, she writes: “Ms Folbigg’s entries suggest periods of depression but largely her beliefs consist of unremitting self-blame.”

Dr Betts’ report was originally submitted as part of an earlier petition on Folbigg’s behalf in 2015 and has since been updated.

In 2019, the inquiry’s Commissioner Blanch dismissed the suggestion that experts could help him understand Folbigg’s diaries.

“I would not be assisted at all in this inquiry by a psychiatrist who wanted to come along and tell me a) what the words of the diary mean, or b) about the fact that a mother who had lost her babies would be upset and emotional and so on,” he declared.

Instead, he said: “I am satisfied that the plain meaning interpretation of the diary entries carries the character contended by the Crown at the trial, of virtual admissions of guilt.”

He added: “Even making every allowance for her deep-seated psychological subjective experiences and childhood trauma, and any emotional state she may have been in at the time of writing the various entries, it is impossible to give the diary entries any meaning other than their ordinary English meaning.”

Doubts over diaries

But the experts offer a different insight into Folbigg’s mind through examining her diaries.

Macquarie University Professor Butt said the 175 pages of Folbigg’s diaries – which he studied – “do not at all convince me that the claim of a single plain meaning is sound”, and contends that the diaries could be “cherry-picked” to focus only on “those wordings that permitted some possibility of an interpretation of guilt”.

“It is not reasonable to claim that the diaries of Kathleen Folbigg support only one ‘damning’ interpretation,” he said.

None of the fresh expert opinions supports the view that the diaries reveal an intent on Folbigg’s part to harm or murder her children, or that they carry any admission that she did so.

“At first I did find some of her diary entries troubling but, when taken in the context of her mindset, that she basically hated herself and everything she did, they are a lot less troubling,” Assoc Prof Stevenson said.

“It is not possible for a therapist, let alone a lay person, to interpret the meaning of writings in a diary. They are personal, idiosyncratic, expressing fleeting feelings, imaginings, and very influenced by the emotions of the minute … The ‘meaning’ one day could be different the next, or there could be no meaning at all,” she said.

‘Convictions untenable’

Based on Assoc Prof Stevenson’s opinion, Folbigg’s lawyers argue that “this makes the inculpatory interpretation of guilt by judges (and presumably the jurors at trial) highly likely to be wrong”.

In a direct challenge to the inquiry’s Commissioner Blanch, the lawyers argue he should have sought expert opinion to assist him instead of “discounting Folbigg’s explanations without the benefit of context”.

“It is clear that the courts and inquiry have misinterpreted Ms Folbigg’s words. Nowhere in the diaries/journals are there confessions of murder and they should stop being used to suggest this,” they said.

Solicitor Rhanee Rego and barrister Robert Cavanagh, who prepared the petition, said this week: “Experts now say that the diaries cannot be taken as confessions of murder or harm to any of her children.

“The only consideration is reasonable doubt.

“Every argument that has been used to suggest the guilt of Ms Folbigg has now been overcome and her convictions are untenable.

“Now no reasonable person can conclude that Ms Folbigg’s guilt is established beyond reasonable doubt,” they said.

“It’s time for Mark Speakman to recommend to the Governor that Kathleen Folbigg be released.”

In a statement, the Attorney-General said: “These materials are voluminous and complex. They will be subject to thorough consideration.

“It would be inappropriate to provide further comment at this stage.”