Kathleen Folbigg inquiry: Every possible outcome explained
It’s the question on everyone’s lips- what’s next for Kathleen Folbigg? A top legal expert answers your questions here.
NSW
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How significant is it that the NSW Director of Public Prosecutions has agreed there is ‘reasonable doubt’ regarding Kathleen Folbigg’s guilt?
Sam Macedone: “When your opposition agrees with you, that goes a long way to help the person who makes the decision, to say the conviction may have been unreasonable - and therefore choose to acquit. It’s not often the DPP agrees with you in these circumstances. If the DPP agrees there is a possibility of an injustice - that’s 90% of the way towards getting what you want.”
What is the likelihood that Kathleen Folbigg is going to walk free?
“She is more likely to be released now than she was the day before yesterday. The likelihood of her remaining convicted is very low.”
What could happen now?
“Now it’s up to the former NSW chief justice Tom Bathurst KC to decide. He could recommend the matter goes back to the Court of Criminal Appeal, with a recommendation to acquit. He could also say ‘in my opinion, despite everyone being in agreement, I don’t believe there is reasonable doubt’ and leave things as they are. But that would be surprising. Given the evidence from the experts, it’s quite clear there is a possibility Kathleen Folbigg may not be guilty of murder. That takes things away from the realm of beyond reasonable doubt.”
NOTE: The chief justice could also refer it to the Governor, who could can issue a pardon which would mean she walks from jail as soon as it is issued. That does not mean she is cleared but has been pardoned for her crimes. The Court of Criminal Appeal could quash her conviction.
If Kathleen Folbigg is released, will she be released as an innocent woman who was wrongfully imprisoned for 20 years, or will she be released as a convicted killer?
“She’d walk out as an innocent person, because the conviction will be quashed.”
Does Kathleen Folbigg need a pardon?
“If the conviction is quashed, she doesn’t need a pardon.”
Could Kathleen Folbigg sue the state if she walks free?
“She can, but I don’t think she’d be successful because the evidence at the time was the best available, and the jury made their decision based on that evidence. To get compensation you’d have to prove the prosecution was malicious or a conviction was made without evidence, but I think at that time in 2003 there was good evidence based on technology at that time. You can’t judge the state based on a decision made by a jury 20 years ago, on evidence available at that time.”
Sam Macedone is the principal of Macedone Legal and an Accredited Specialist in Criminal Law, with 50 years experience across all aspects of the law.
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