The Appeal Court’s Reasoning for Quashing Kathleen Folbigg’s Criminal Convictions

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By Paul Gregoire and Ugur Nedim

NSW Supreme Court Justice Graham Barr sentenced Newcastle woman Kathleen Folbigg to 40 years imprisonment, with non-parole set at 30 years, on 21 May 2003, in relation to the murder of three of her young children and the manslaughter of another.

Folbigg became known as the nation’s “worst female serial killer” over her having allegedly killed her kids. Yet, on 14 December this year, Folbigg, who had always maintained her innocence, was acquitted of her crimes, after she’d received a pardon in June due to preliminary inquiry findings.

Carried out by former NSW Chief Justice Tom Bathurst, the final version of the 2022 Inquiry into the Convictions of Kathleen Megan Folbigg was completed in early November. And it concluded there was a reasonable doubt regarding Folbigg’s guilt.

Bathurst conveyed these doubts to NSW attorney general Michael Daley via a memorandum in June. And the former Chief Justice’s reasons were set out in his final report, which explains that a question regarding Folbigg’s guilt arises as a result of new scientific evidence not available two decades ago.

So, Folbigg was released from gaol in June, after having served decades for crimes it has since been found she didn’t commit. 

But her convictions stood. So, Folbigg had to return to the NSW Court of Criminal Appeal (NSWCCA) in November for a final appeal, in light of the new scientific evidence.

Falsely convicted

Folbigg was found guilty of killing her children in May 2003, which included the manslaughter of Caleb Folbigg on 20 February 1989, the murder of Patrick Folbigg on 13 February 1991, the murder of her daughter Sarah on 30 August 1993 and the murder of Laura Folbigg on 1 March 1999.

Section 18 of the Crimes Act 1900 (NSW) contains the offence of murder, which carries a maximum penalty of life imprisonment. And contained in the same section, manslaughter differs from murder as it doesn’t involve premeditation or intent, and it carries a maximum of 25 years imprisonment.

The innocent woman was also convicted on one count of maliciously inflicting grievous bodily harm with intent upon her son Patrick in October 1990, which involved his having an acute life-threatening event, and that crime falls under section 54 of the Act and carries up to 2 years imprisonment.

The prosecution had argued that Folbigg had a bad temper and when she lost it with one of her kids, she had a tendency to asphyxiate them, while the defence put it to the court that all four children had died of sudden infant death syndrome.

In 2005, an appeal against her convictions to the NSWCCA failed. However, she also appealed her sentence, which saw it reduced to a head sentence of 30 years, with a non-parole period of 25 years. And a subsequent 2007 appeal of her convictions was also unsuccessful.

Former Chief Judge of the NSW District Court Reginald Blanch was appointed to carry out a 2019 inquiry into the alleged crimes of Kathleen Folbigg, which found that there was no reasonable doubt regarding her convictions, as the deaths couldn’t be explained away by infection or genetic disorder.

Unfinished business

Following the unsuccessful 2019 appeal, a scientific paper, Infanticide versus Inherited Cardiac Arrhythmias, was published in November 2020, which involved a group of researchers considering whether the deaths of the Folbigg children were due to genetics.

The paper concluded that calmodulinopathy or a genetic mutation-related disease emerged “as a reasonable explanation for a natural cause of” the deaths. And this then raised a reasonable doubt as to guilt, while the standard of criminal proof requires guilt being beyond reasonable doubt.

The publication of the new scientific evidence was followed by a petition signed by scientists and medical practitioners presented to the NSW governor calling for Folbigg to be pardoned in March, and this was subsequently followed by the state calling on Bathurst to investigate the case again.

In summing up his report, Bathurst said he’d concluded that there was “an identifiable cause of the death of Patrick, Sarah and Laura” and he found this too in regard to Patrick’s acute life-threatening event the year prior to death, which were all “more likely… caused by a neurogenetic disorder”.

“Once that conclusion is reached, any probative force of the coincidence and tendency evidence is substantially diminished,” the ex-Chief Justice continued, pointing to the proposition that Folbigg had a habit of asphyxiating her children when she was angry, which the prosecution had argued.

“Further, I have concluded that the relationship Ms Folbigg had with her children does not support the inference that she killed them,” Bathurst added. “Finally, I do not regard the diaries as containing reliable admissions of guilt.”

A two decade long injustice

A three justice panel of the NSWCCA heard the case over two days in November this year. The bench consisted of Justices Andrew Bell and Julie Ward, as well as NSW Chief Justice at Common Law Ian Harrison.

Their Honours noted that the diaries that Bathurst had referred to were those belonging to Folbigg, which she kept over the period of her children’s unexplained deaths. Vague statements from these documents were relied upon to suggest guilt during her original trial.

However, Bathurst noted that none of the expert psychologists and psychiatrists that appeared before the court going back two decades ago were then prepared to suggest that the diaries were proof of guilt. And the former Chief Justice came to the same conclusion on scrutinising them.

The Crown submitted to the court that with all of the evidence that was available to Bathurst on conducting his inquiry, he was right to find reasonable doubt was established, and the NSWCCA justices also came to the same conclusion.

Their Honours gave two reasons for coming to this finding. The first was the “substantial and extensive body of new scientific evidence” and the second being that while certain diary entries may appear incriminating by themselves, when taken in the broader context, they no longer suggest this.

“While the verdicts at trial were reasonably open on the evidence then available, there is now reasonable doubt as to Ms Folbigg’s guilt,” their Honours found, and on 14 December, the NSWCCA ordered that the five serious convictions against Folbigg’s name be quashed.

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