A bath and a steak: Kathleen Folbigg’s first night free after 20 years

Kathleen Folbigg’s supporters want NSW to create a new body to ensure no one else spends 20 years waiting for justice, as the woman once branded a serial killer of her own children was freed from prison on Monday with a governor’s pardon.

NSW Attorney-General Michael Daley said he was open to the idea of establishing an independent conviction review commission. The idea is backed by the family of Gordon Wood – who was acquitted of murder by the Criminal Court of Appeal in 2012 due to lack of evidence – and by lawyers and academics who said the NSW system was too reliant on ad-hoc inquiries and political intervention.

Folbigg, who was convicted 20 years ago over the deaths of her four young children, was granted an unconditional pardon by Governor Margaret Beazley on Monday on Daley’s recommendation, after a landmark inquiry concluded there was reasonable doubt about her guilt. The decision marks the Folbigg case as one of the biggest miscarriages of justice in Australian legal history.

Soon after the pardon, a white prison van drove Folbigg from Clarence Correctional Centre in Grafton to a Mid North Coast farm, where she was swept into the arms of her long-time supporter and school friend Tracy Chapman.

Folbigg will live on Chapman’s animal therapy farm as she adjusts to life outside prison. Close friends said she was looking forward to a bath and a steak. “I’m in shock,” said supporter Megan Donegan, in the moments after she heard the decision. “I stood and sobbed as I watched the television.”

Daley said the head of the inquiry, former NSW chief justice Tom Bathurst, KC, had handed his preliminary findings over on Friday, indicating Bathurst’s firm view there was reasonable doubt over Folbigg’s convictions. The decision was driven in part by new science showing three of the children could have died of natural causes.

In a memorandum to Daley, released publicly on Monday, Bathurst said “there was no physical evidence that the children were smothered” and he was “unable to accept the proposition that the evidence establishes that Ms Folbigg was anything but a caring mother for her children”.

Folbigg, 55, served 20 years of a minimum 25-year prison sentence after being convicted in 2003 of the murder of three of her children, Patrick, Sarah, and Laura, and the manslaughter of her first child, Caleb, at the family’s homes.

The inquiry paved the way for Folbigg’s release from prison and potentially millions of dollars in compensation, either after a civil suit or by way of an ex gratia payment by the government.

But Daley said on Monday that potential compensation was “getting well in advance of today’s story”.

Bathurst may ultimately refer the case to the Court of Criminal Appeal to consider formally quashing the convictions, but the pardon expedited Folbigg’s unconditional release from prison without any further court process.

Daley notified Folbigg’s ex-husband Craig, who testified against her in the 2003 trial, of the pardon and said he was “thinking of him today as well; it would be a tough day for him”. When contacted last month about his former wife’s pending release, Craig Folbigg declined to comment. He did not return calls on Monday.

In March, Chapman said she intended to push for an independent commission to review criminal convictions after appeals if Folbigg was released. New Zealand established one in 2020 and Canada is set to follow suit. “[It] comes down to an attorney-general,” Chapman said. “That’s political.”

Her call was supported on Monday by Emma Cunliffe, an Australian law professor now in Canada, who was the first to argue publicly that Folbigg had been wrongly convicted in her 2011 book, Murder, Medicine and Motherhood.

Cunliffe said NSW urgently needed to follow international jurisdictions and reform its post-conviction processes to make them accessible and above any perception of political interference. At present, she said, “the minister calls the inquiry, the minister chooses who presides over it, and has a strong voice in who counsel assisting will be”.

Jackie Schmidt, the sister of Wood, who was convicted by a jury for killing his model girlfriend Caroline Byrne but acquitted by the NSW Criminal Court of Appeal which found there had been insufficient evidence beyond reasonable doubt, also backed the call.

“Almost without exception, the judicial system must be dragged kicking and screaming by an army of volunteers and determined legal visionaries to a point where it is impossible to continue to deny the fact that a miscarriage of justice has occurred,” she said.

Human rights and criminal law barrister Felicity Graham, who wrote to Daley last month urging Folbigg’s release, said Australia needed to reform its laws dealing with potential miscarriages of justice.

The present system had good aspects, including that any convicted person could appeal for an inquiry after exhausting their legal options, Graham said, but a key problem was the lack of a clear mechanism for identifying miscarriages of justice and responding with urgency and resources.

“A well-resourced independent criminal cases review commission can identify systemic issues, carry out investigations and refer appropriate cases back to courts for fresh appeals,” she said. “Ms Folbigg’s lawyers and supporters have done an amazing job but it should have been easier to achieve this result, and it should have been possible to see her freed much earlier.”

Sydney University Law Professor Arlie Loughman also said the review commissions in England and Wales allowed “matters such as this to be dealt with by a standing body, avoiding the need for the creation of an ad hoc inquiry”.

Daley said he was open to the idea. “I think we have to look at this case and all of the material that’s been put before Mr Bathurst, all that’s gone before us now to work on it, or to amend the law, if need be,” he said.

Opposition Leader Mark Speakman, who ordered two inquiries into Folbigg’s conviction - one in 2018 by former district court chief judge Reginald Blanch, which agreed Folbigg was guilty, and the Bathurst inquiry, which prompted the pardon - when he was attorney-general, said he did not think a review commission would have made any difference.

“[Blanch is] a distinguished jurist who heard all the evidence and reached the conclusion,” he said. “The same thing has happened here. So I don’t know that if there had been an independent standing review commission, there would have been any different result or that the result would have occurred any sooner.”

Craig Folbigg, Kathleen Folbigg’s former husband.Credit: Dallas Kilponen

He said it was a day “in which there are no winners. There are no winners from this story. It’s a terrible story of the full lives lost of a grieving father and a woman who’s been incarcerated when she shouldn’t have been for 20 years.”

The NSW Bar Association welcomed the decision. In a statement, it said the NSW appeal and review provisions ensured legal avenues of challenge had remained available to Folbigg as science advanced and new evidence became available.

Folbigg’s existing non-parole period was set to expire on April 21, 2028.

Lindy Chamberlain, who was convicted in October 1982 of murdering her infant daughter Azaria and spent three years in prison before being released ahead of a royal commission, declined to comment.

Her then-husband Michael was convicted as an accessory but did not serve time behind bars.

The Chamberlains were pardoned in 1987 after the royal commission examined new evidence, and their convictions were formally quashed in 1988. They received $1.3 million in compensation in 1992.

The inquiry into Folbigg’s convictions heard expert evidence that a genetic variant shared by Kathleen, Sarah and Laura Folbigg might cause cardiac arrhythmias – irregular heart rhythms – and sudden unexpected death.

The inquiry also heard that Patrick might have died as a result of an underlying neurogenetic disorder such as epilepsy.

Bathurst said in his memorandum to Daley that “there is a reasonable possibility that three of the children died of natural causes”, which meant tendency and coincidence evidence in relation to the death of Folbigg’s first child “falls away”.

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