Kathleen Folbigg

The words that helped wrongly convict Kathleen Folbigg

Retrieved on: 
Wednesday, November 8, 2023
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Key Points: 
  • […]

    Prosecutor: In relation to Laura […] her cause of death was consistent with smothering?

  • Prosecutor: And that she probably died from an acute catastrophic asphyxiating event of unknown causes?
  • 746-48)
    Prosecutor: Are you able to say whether or not Caleb died from a catastrophic asphyxiating event of unknown causes?
  • But there are good reasons for forensic medicine practitioners and advocates to rethink their understanding – and use – of these words.
  • Read more:
    How 'witch-hunts' and 'Stockholm syndrome' became part of political language (and what it has to do with wrestling)

The semantic journey of asphyxia

  • Predictably, this meaning “stoppage of pulse” then sprouted the meaning “stoppage of respiration” – a lack of breath is a salient sign of lifelessness.
  • Subsequently, the path has been rocky, and it is now understood variously by forensic doctors around the world.
  • What is agreed, however, is that “asphyxia” is not a diagnosis; it is not a condition that can be pointed at or diagnosed.

More murkiness

  • As used by experts, this is synonymous with “may or may not mean”.
  • Research shows, however, that people without expert knowledge hear the phrase as strong confirmation of the proposed connection.
  • Clearly, we can’t assume people today would automatically understand “consistent with” as simply a way of saying what is proposed is possible.

Bad meanings drive out good

  • The meanings we carry around in our heads seem so natural we fail to realise other people can have quite different understandings.
  • And the more unusual a word is, the more its meanings will vary because we aren’t given the same opportunities to refine our hypotheses.
  • All three meanings are out there, and different dictionaries favour different ones.

Asphyxia permeated Kathleen Folbigg’s trial

  • (Two pinpoint scratches on Sarah’s lower lip were agreed to be of no significance).
  • This was probably heard by the jury as indicating no injuries meant an “asphyxial event” had occurred – in other words, the children had been strangled or smothered.
  • Known as Meadows Law, this inference stalked Kathleen Folbigg’s trial and her subsequent appeals relentlessly.
  • All of this is medically incoherent and incapable of establishing anything of significance – but probably had a powerful effect on the jury.

'The wisdom of the crowd’

  • In forensic pathology, it encompasses a number of concepts and is used variously by pathologists – and these uses are out of alignment with common lay usage.
  • The jury system relies on “the wisdom of the crowd”.


Professor Cordner was an expert witness at both Commissions of Inquiry into the convictions of Kathleen Folbigg. Kate Burridge does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.

Kathleen Folbigg pardon shows Australia needs a dedicated body to investigate wrongful convictions

Retrieved on: 
Monday, June 5, 2023
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At trial, the prosecution had relied on the statistical improbability of so many of her children dying accidentally.

Key Points: 
  • At trial, the prosecution had relied on the statistical improbability of so many of her children dying accidentally.
  • However, at the second inquiry, this reasoning was called into question by fresh scientific evidence pointing to possible medical causes of the deaths.
  • The Folbigg case is yet another demonstration that Australia needs a Criminal Cases Review Commission (CCRC) – a statutory body working at arm’s length to investigate claims of wrongful conviction.
  • Preferably, it would be a single federal body covering all jurisdictions, or failing that, one for each jurisdiction.

Wrongful convictions

    • In the last decade, Jason Roberts in Victoria was acquitted in a retrial after serving two decades in prison for the murder of two police officers.
    • Scott Austic in WA was acquitted in retrial after serving 12 years for the murder of his partner who was pregnant with his child.
    • How common are wrongful convictions?

Systemic solution

    • This goal is pursued through principles such as the presumption of innocence and the requirement of proof beyond reasonable doubt.
    • They will not necessarily be corrected on appeal, where the defendant is no longer presumed innocent and weight is given to the “finality principle”.
    • This means the jury verdict is ordinarily considered final, for the sake of efficiency and to provide the parties and society with closure.
    • The systemic risk of wrongful conviction demands a systemic solution.
    • And the Sydney Institute of Criminology is currently calling on governments to take steps to establish an Australian CCRC.