The law student who thought Kathleen Folbigg innocent - then went on to secure her freedom

Introduction [Music] hi I'm Conrad Marshall and from the Sydney Morning Herald and the age welcome to good weekend talks a magazine for your ears featuring in-depth conversations with Fascinating People from Sport and politics science and culture business and Beyond every week you can download new episodes in which top journalists from across our newsrooms talk to compelling people about the definitive stories of the day in this episode we meet Ronnie Rego the young lawyer who stood in court last year alongside Kathleen fck the Newcastle woman convicted in 2003 of murdering her four infant children those convictions were finally quashed thanks in large part to the tieless effort of Rego 31 who started working on Fig's case when she was just 24 and still at University ultimately she helped reverse one of the worst miscarriages of Justice in living memory and is now working to sec what's expected to be one of the biggest compensation payouts in Australian legal history and hosting this conversation after interviewing both Rego and fbig and many others is the author of our cover story this week the defender and that's none other than good weekend senior writer Tim Elliot thanks so much for that Conrad About Kathleen Folbigg and welcome Ronnie thanks for coming in it's a pleasure to be here now for people who don't don't know much about the case can you just give a brief summary of uh Kathleen Fig's matter yep so Kathleen fig is a woman from the hunter Valley of New South Wales from 1989 to 1999 she had four children who each died over that period um and each from different causes so Kathleen was charged with their murder and ultimately in 2003 was found guilty of three counts of murder and one count of manslaughter and and separately also of inflicting gravest bodily harm on her second child the crown alleged that she'd smothered each of these four children over a period of 10 years either because she hated them um or she needed some time to herself and that was the the reason she killed them's most notorious Killers Kathleen fig did the unthinkable killing her four infant children one by one over 10 years how could four babies simply die well in 20 in this courtroom behind me a jury sealed Fig's fate as Australia's worst female serial killer from 2005 to 2007 she had a few appeals unsuccessful and in 2018 on the 22nd of August she was granted an inquiry to review the case in light of the fact that there was some doubt in question as to whether this conviction was safe when was the next inquiry after that once that um had been wrapped up yeah so my colleague Robert kavar and I wrote a petition um that was ultimately endorsed by 159 scientists and in 2022 the 18th of May a second inquiry was ordered into her case good evening she was labeled Australia's worst female serial killer but tonight Kathleen fig is a free woman fig spent 20 years behind bars but new scientific evidence led to a judicial in quiry which concluded there is reasonable doubt over her guilt a rare genetic mutation called calm 2 was discovered in fig and her two daughters it causes irregular heart rhythms and sudden Unexpected death it was enough to trigger a second inquiry with Scientists from around the world arguing it created Reasonable Doubt Justice Tom baist agreed and recommended fby be pardoned and released immediately What did you know about Kathleen Folbigg now you were about 11 when fby was convicted right so what did you know about her before signing on to this case in I think you came on board what year 2017 but when and you were 24 right yeah I was pretty young yeah law student um but when she was convicted I was 11 if you can believe it um so I actually knew nothing about the case I have no memory at all of this case it was only when I was in law school doing evidence law that it was brought up but really on sort of a very discreet issue around um tendency and coincidence evidence which you know I won't go into um so I knew very little really about the case before actually embarking on this now seven-year Journey uh to to help Cathleen what struck you What struck you about the case about the case from the beginning that was unusual well really it was the fact that you could convict someone for smothering children when there were no signs of smothering when you've got four children dying yes it's rare and most of us have never heard a case like that before so immediately it sort of strikes a cord with you it kind of you kind of think there's something odd here but that's fine to feel that way as just a normal person in the community but when you're Translating that into a legal setting you've got to have more than just a feeling or suspicion but my really firm view when I had read the trial was that that's all they really had it was kind of like they knew they didn't have any evidence to actually support the smothering hypothesis so they sort of just filled it in with other things it was like here's a few diary entries will extract from huge amounts of writing so she'd written just to explain she'd written lots and lots of Diaries from ' 89 to 99 is that correct that's right and there were Diaries just like anybody would keep her thoughts about the day about her feelings that sort of stuff right and they found them yeah so I I do need to provide a little bit of context because I think that the reason well partly at least that we ended up in this tragedy is because people didn't want to actually understand the context they just wanted to look at things in a cursory way which was really damaging for Kathleen so Kathleen wrote in Diary since she was a really young kid she tragically lost her mother because her father killed her mother when she was 18 months old she was too young to to remember that but then she lived with a family's called the Murs and while they you know provided her with everything that she needed you know housing food shelter all those sorts of things they weren't very nurturing and emotional with her she was gifted a little diary with like a little heart Locker when she was really young and she was a perfect writer and she just write like we're all encouraged to with journaling as a therapeutic tool you know what the day was or if there was something that she was struggling with let's try and work it out on paper by writing down my feelings so she had been a writer since she was like 10 or 12 tens of thousands of words she wrote right oh well in the Diaries you know the subject of of the conviction yes so she wrote like 50,000 words and what struck me was that instead of you know for example reading them on the record which would have bored everyone to sleep I can tell you these passages were cherry-picked and and the context around them was never acknowledged so there there were certain phrases explain certain sort of alarming phrases that that the prosecution picked up on right in these Diaries and they isolated them right what was some of the phrases so Sarah left with a bit of help is the the the major one Sarah referring to one of her daughters the third child that died um another one was um around her nearly dropping purposely dropping Laura on the floor because she was crying and she left her in a room for 5 minutes but she said it felt like the world um she said said stress Made Me Do terrible things so it was a number of these I guess words that were emphasized like there was she referred to snapping her Cog which you know being angry and one of them was um one of her children Did she help her kids had left with a little bit of help yes um which sounds alarming doesn't it to lay person you'd go wow that sounds really scary what who was the help was it her did she help her kids disa and this is precisely why Tim context is important yeah because from day dot these Diaries have only ever been advocated as being Sinister from day dot and when you read them in totality when you understand how she was brought up when you understand the context they take a very different view which is ultimately what Mr BST the second Inquirer found they take on a different color they do they do and I just would really like to explain the Sarah left with a bit of help entry because I know a lot of people probably listening here that's the one that might stick with them having heard it in the media so Kathleen was raised Catholic she did turn to religion in times of need which a lot of people do um so all the entries that the prosecution claimed were really damaging were written after Sarah's death so this is the third child so she's lost three children by this point and despite you know the second child Patrick being given diagnosis of um epilepsy they were kind of diagnosed of seids epilepsy but we don't know why he had it and that wasn't really much that she could cling on to it wasn't sort of like this is a definite thing you know they had it and you know a really lethal infection we all know can kill children it was kind of elusive so she was you know she admit she she had really warped views she was thinking that her children had left her now people might be sitting here thinking yeah how can you think your children leave you but if you put the context in there she was she went and saw Clairvoyant even with Craig went and sort of Clairvoyant too and they were saying things like you know Craig her husband Craig her husband yeah yeah and trying to search for answers and she had always she' never had a role model for her mother really so you know as a firsttime mom you kind of look to your own mom to figure out how you should mother she never really had that um and she felt that every little thing she did would impact her children cuz she was told from an early age if you have a cranky mood this affects everyone else so she was thinking you know if I'm cranky with my child my child is affected by that and this is all in the context of her searching for answers and being desperate to to think well why am I children keep dying so she came to this really you know I I'm not judging her for for this but she came to a view that basically her children left her because she wasn't a good enough mother so right from the beginning um going back to the to 2003 um trial the case was kind of Tainted with an element of sexism and even even misogyny wasn't it so ideas of motherhood that obviously wouldn't have played into a trial of a man so talk about that a little bit I think the gendered aspect to Kathleen's case is one of the least talked about aspects of this matter um my view is that misogyny has played a role from the very beginning it felt very much to me like a Witch Hunt so right from the beginning even when police had no cause really to look into her other you know other than four children dying it was all about labeling her as a bad mother and even Craig said recorded on listening devices that the police planted they're trying to assassinate her character um and they had no one to say that she was this you know angry abusive mother there was no docs records there was nothing but it was all about her as was a mother my impression was that in 2003 when Kathleen walked into that trial automatically every single person sitting in there the jury the judge the prosecutors were perfect parents except her so things like going to the gym going dancing were weaponized against her to make her seem selfish and a bad mother totally to make her seem like a bad mother and I mean people listening here today I know my friends that have children they all go and socialize at the gym and going out and having a date night with your husband every sort of you know every few months is probably a good idea as well it's utterly normal it's completely Norm yeah there's nothing unusual about that um and you know mothers do get frustrated mother well and fathers I mean you're a father you know when a child won't stop crying and and you've done everything you possibly can and you're up all night of course you're going to feel frustrated The media but it really resonated with the jury and it really obviously resonated with the media because she CT an absolute flogging in the media she was Traders Australia's worst female serial killer it sunk her didn't it that idea that she was you know she was a a bad mother why do you think that's the case well I think I'm going to take it back to basics so in the 21st century we hate the idea as people you know as a well as a society that children can die and we don't understand why if all we have is SIDS or you know epilepsy from an unknown cause that's really fearful to us so I I've always said from the beginning this is a case of what we don't know we fear and what we fear we demonize so when there were four children had died in a family um the Fig family I think that everyone just wanted to blame someone they didn't want to acknowledge the fact that four children could just die and particularly of different causes so that is reflected in the targeted approach of the police talk um the way the prosecution framed its case and it was kind of this look we don't really have any evidence we want you to believe she was a bad mom and and that children can be smothered and leave no signs and she was really the perfect candidate for the media to call Australia's worst female serial killer it excites people you know they love the macab and the serial killer narrative look at how many Netflix shows there are about True Crime I mean everyone wanted they loved that narrative they loved the female serial killer narrative and it really sunk [Music] her the Sydney Morning Herald and the Bondi Badlands age are releasing new episodes of the highly successful podcast Bondi Badlands plenty has happened since the first season over 2 years ago two men have been sent to prison one for the manslaughter of gifted mathematician Scott Johnson in 1988 another for the murder of martial artist Raymond Keem listen to exclusive interviews with Scott Johnson's brother Steve and findings from the world's first gay hate inquiry last year Bondi Badlands wherever you get your [Music] Meadows Law podcasts also from the very beginning there was an element of what struck me having looked at this in detail was junk science really it was just a lot of it was just garbage starting with um how I thing called Meadows law played into the first trial in 2003 and how it colored all the subsequent trial can you explain what Meadow's law is yeah so Meadows law is basically a Dogma attributed to a guy called Roy Meadow but it was actually by early Pathologists in the US and it really is this is the sort of famous um quote one infant death is a tragedy two is suspicious and third is murder until proven otherwise so he was a really famous um pediatrician who was really influential around this period of time English guy yeah English guy yep and he was you know kned for his contribution to child health he was the editor of the archives of the disease of childhood what period so it was kind of the ' 80s '90s 2000s that was really at the height of his influence and he became the prosecution star witness in the UK so in cases like Kathleen so there were a few triy Patel Angela cannings um Donna Antony and then Sally Clark he came and said um you know this is a case of child abuse um unequivocally was very firm in his view Meadows did Meadows did that's right so in Sally Clark's case which is when subsequently his Dogma was discredited English woman who allegedly murdered her children S Clark was actually a lawyer and she lost two children and was accused of killing them in similar circumstances to but Meadow said at her trial that the likelihood of a second Sid's death in the same family was 173 million now that completely captivated the UK 173 million that's what most people that I've talked to in the UK at that time remember and that was completely and utterly factually inaccurate so a lot of Meadows Law debunked statistic statisticians came and said hey where did you get these figures from this is wrong at what stage did they come along explain how meows got to become debunked yeah so um in 2003 early 2003 Sally Clark was acquitted and at this appeal that's when statisticians came in and said that's just completely incorrect you you're basically doing this I I'm terrible with math but um you're doing the sums completely incorrectly and in fact we know that when you have one Sid's death the likelihood of having a second actually increases because all the Environmental genetic factors remain the same if you've got the same father house all of those things so on the basis that he was giving incorrect statistics he was discredited but also more broadly around the incorrect Dogma that basically if you have three children automatically You're a murderer until you can prove otherwise how did this play into the trial in 2003 in Kathleen's trial yeah so I just want to be very clear though Meadows was formly discredited before Kathleen went to trial incredible yeah so Sally Clark's acqu was known to the court really early on but we didn't they didn't have a written judgment until the 15 15th day of Kathleen's trial and then the defense gave it and said look this is a really similar case you're running the prosecution case similar to this orbe it not statistics there were no statistics in cat's case but see I my impression from The Trial so if you compare Sally Clark who had a figure of 173 million Kathleen had a this has never happened before anywhere in the world that was the impression the jury was given right exactly and that was from expert evidence which ultimately was incorrect and it was so they they what they the idea they were given was that this was impossible it couldn't happen for children in one family this was a world's first event and how did how was that proven to be false well interestingly so the prosecution asked The experts were wrong all of the experts so pediatricians forensic pathologists sort of this question but phrase differently have you heard of a case of three or more infant deaths in the one family from natural causes either in your experience as a doctor or in the literature and each of them answered no but what they didn't do what what the experts who were asked that the prosecution or the defense they didn't actually look at the literature so if we fast forward to 2018 when the first inquiry was ordered that inquiry was actually ordered on the fact that those experts that gave that evidence were wrong so you know there were instances recorded in the literature of up to five children dying of natural causes in the one family and the jury never heard that the in 2003 so they were left under the impression that it was impossible this was a well first and you know Kathleen had murdered fig had murdered her children she hated them and she was selfish and here's a few diary entries even though we don't have any evidence of smothering but having natural cause four children dying of natural caus in the one family is impossible and it's kind of like a pig giving birth to some The pig analogy piglets and then a farmer looking out the window and the piglets growing wings and flying away and that's what tesi said at the prosecution it's how do you um characterize that kind of line that tesi came up with that it's as likely as pigs flying I think it's actually disgusting if I'm being honest um irrespective of what someone is accused of doing using the comparison of a mother on trial to a piglet you know to a sour giving birth to piglets is not appropriate it just isn't but also teski would have known that regarding the natural causes of death given at trial by experts to say that these children you know died of natural causes was fanciful that it wasn't fanciful that was the evidence but in this perverse way he encouraged the jury to to think that it was so impossible that four children could die this is what he said he said well basically we don't have any evidence of smothering you know because they didn't um but you can smother children and leave no signs so therefore the fact that there were no smothering signs is evidence she did smother them so so she reversed he reversed the onus of totally totally I mean and to me that is just crazy you know it's just crazy that you would say that because there are no signs that's evidence that that the person did it I mean that's just flipping it on its head and that was totally inappropriate tell us about how The judge when Reginal blanch the the um the judge on the second last inquiry had the opportunity to have some Journal experts and psychologists assist him in interpreting the Diaries He what did he say to that well we were of the view because remember remembering Mark teski at the trial said to the jury that the the Diaries were the strongest evidence of her guilt so we as her team at the the inquiry thought okay well reg blanch if he's going to decide what he thinks she means about these Diaries he really needs to have a psychiatrist or a psychologist come and help him you know understand the context understand why people writing Diaries all of those things so we offered him we we basically said look we think that you need to have some expert opinion help you decide and Expert opinion I will always remember this sitting um and looking at him when he said um this is pretty close to completely accurate but um well I wouldn't be assisted by a psychiatrist to come and tell me a what the words of the Diaries mean or B that a mother who had lost children would be upset and emotional and so on unless there's some other as and so on you know blanch was very um how do you describe Reginal blanch well there's a few factual truths um he's not a BST Inquiry psychiatrist he's not a mother and he hadn't lost four children and simply he was kind of an all white man sitting up there and thinking oh well can't be too hard to put myself in a in a 30-year-old mother well 20 to 30y Old mother's shoes and figuring out what she felt and thought I mean I'm smart enough to get this I mean really the arrogance was astounding um to me I mean I I don't purport to know exactly what Kathleen thought I am also not a mother I hadn't lost four children and I'm not a psychiatrist so I that's why I was thinking we need some experts here people who understand this stuff and if you fast forward to the second inquiry the BST inquiry that endeavor that is to get psychiatrists and psychologists and the ones that we engaged in 2021 proved an entirely fruitful ende and Mr ba was informed by that and he had a completely different view about the Diaries and ba essentially then went on to exonerate her correct yeah well he said he he after his examination of the case he had Reasonable Doubt about her convictions and that was in 2023 yeah yeah my view is that the legal system just like humankind really because we're all just humans um don't like to admit fault we really don't like when we get something wrong and I think there's a lot of reticence to acknowledge mistakes so a lot of the sort of narratives I'm hearing as oh yes fresh evidence and no one knew that back in 2003 now while the genetic evidence was a significant contribution to Mr Ba's conclusion in the court of criminal appeal quashing her convictions that's not all it is we've got to remember that back in 2003 we might have not known about Comm modulin the the variant I won't go into it but genetic variant the genetic variant but what we did know was that she wrote These diaries that if you read them in context like Mr ba did that actually there's more evidence of her being a loving and caring mother than a than an evil angry woman and we knew that mothers sometimes do get frustrated with their children but it doesn't mean that they kill them we knew that there was no evidence of smothering so a series of things contributed to that miscarriage of justice that began in 2003 this has been a case where it's just been wrapped up in suspicion and people got caught up in the hype and it's not about making mistakes we all make mistakes but what is more important is when we identify that a mistake being made especially one of this magnitude well what are we going to do about it that's what we should be judged on throwing forward from this fig is now looking for a very big uh compensation payout isn't she how would you describe the battle for that well um it will probably be a battle and I really hope that the attorney general and the government don't fight us the way they've done all this time um look the way State acknowledges mistakes sometimes is through money um we are going to be talking to the government hopefully about how they can um make good of this egregious discourage of Justice um look it probably will be the largest amount of money for any person convicted in Australia because of the unusual circumstances and the unique features of this case it's going to be a very interesting um couple years ahead for f and you thanks so much for coming along and cheers thanks [Music] Tim good weekend talks is brought to you by the Sydney Morning Herald and the age subscriptions power our newsrooms to support independent journalism search subscribe Sydney Morning Herald or the age and if you enjoyed this podcast please remember to subscribe rate and comment wherever you get your podcasts this episode of good weekend talks is produced by Chi Wong technical assistance from corm L editing from Conrad Marshall Tom mckendrick as head of audio and Katrina Strickland is the editor of good weekend