Kathleen Folbigg to seek record compensation payout after convictions quashed

The state’s top criminal appeal court has quashed Kathleen Folbigg’s 20-year-old convictions over the deaths of her four young children, in a historic decision that opens the door to seeking a record compensation payout.

The Court of Criminal Appeal, led by Chief Justice Andrew Bell, delivered the judgment on Thursday in the ceremonial Banco Court in Sydney.

Kathleen Folbigg, centre, and her lawyer Rhanee Rego, right, outside the NSW Supreme Court in Sydney on Thursday.Credit: Kate Geraghty

Folbigg sat in the front corner of the courtroom as the judgment was delivered, in a bright purple shirt and navy pants, clutching the hand of her childhood friend and staunch advocate, Tracy Chapman. Behind her sat two rows of supporters, many of whom were wearing shirts that read “Justice for Kathleen Folbigg”.

Chapman, Folbigg, and her long-time lawyer Rhanee Rego cried and embraced each other after the decision was delivered, as supporters stood and clapped.

Outside court, an emotional Folbigg told journalists she had faced “disbelief and hostility” for almost a quarter of a century, “suffering abuse in all its forms”.

“The system preferred to blame me rather than accept that, sometimes, children can and do die suddenly, unexpectedly, and heartbreakingly,” she said. “I think the system and society needs to think before they blame a parent of hurting their children.”

She said her diary entries, a key plank of the prosecution’s case against her in her 2003 trial, had been taken out of context.

“Those books contained my private feelings, which I wrote to myself,” she said.

“No one expects those types of things to be read by strangers, let alone opinionated on … They accused me of something I never wrote about, never did and would never do.”

Rego confirmed her client would be seeking compensation, adding: “I’m not prepared to put a figure on it, but it will be bigger than any substantial payment that has been made before.”

Lindy Chamberlain and her then-husband Michael were pardoned in 1987 over the death of their daughter, Azaria, who was taken by a dingo at Uluru, and their convictions were quashed in 1988. They received $1.3 million in compensation in 1992.

Kathleen Folbigg, centre, Tracy Chapman, left, and her lawyer Rhanee Rego outside the NSW Supreme Court in Sydney.Credit: Kate Geraghty

Chapman welcomed the historic decision and told The Sydney Morning Herald she was excited to see Folbigg have “her agency back”.

“I’m also looking forward to her living her best life, I really am,” Chapman said. “Just go out there and live, girl. I always wanted the best for her.”

Chapman said she wanted to ensure “no one else has to go through this”. She called for a trauma-informed justice system and a new independent post-conviction review body to investigate potential miscarriages of justice, modelled on the UK Criminal Cases Review Commission.

‘The system preferred to blame me rather than accept that, sometimes, children can and do die suddenly, unexpectedly, and heartbreakingly.’

Kathleen Folbigg

She believed that if mental health in the context of complex grief had been examined at the time of Folbigg’s 2003 trial, “we’d have had a very different approach”.

Rego said Folbigg had shown courage and resilience in her fight for justice, but there were lessons to be learnt about how she spent two decades in prison.

“It exemplifies broader problems in our legal system: a poorly designed review system that is incapable of timely identification and rectification of miscarriages of justice,” Rego said.

“If we really want to make some good and something to come from this tragedy, NSW will evaluate, critically, their system of post-conviction review.”

The head of a landmark inquiry into Folbigg’s convictions, former NSW chief justice Tom Bathurst, KC, released his final report last month and referred the case to the court to consider quashing the convictions.

Folbigg, 56, was granted an unconditional pardon by NSW Governor Margaret Beazley and released from prison in June after Bathurst indicated ahead of his final report that he would conclude there was reasonable doubt about her guilt.

The NSW Director of Public Prosecutions had accepted in April that there was reasonable doubt in light of new material, including genetic evidence, which was examined at the second inquiry into her convictions.

The Court of Criminal Appeal said on Thursday its task did not simply involve adopting, or deferring to, Bathurst’s report. However, Bell said that in light of submissions filed by Folbigg and the Crown, there was no purpose in having a hearing before it made its decision.

“The Crown described the report as comprehensive and thorough,” Bell said. It said the report pointed to a body of scientific evidence that was not known, and could not have been known, at the time of her trial, and it was open to Bathurst to make the findings.

A younger Kathleen Folbigg and her children (clockwise): Patrick, Sarah, Caleb and Laura.Credit: AAP, Supplied

The court had arrived at the same conclusion as the report, Bell said. “There is now reasonable doubt as to Ms Folbigg’s guilt,” he said.

Chapman said Folbigg’s life post-prison was effectively “starting from ground zero”, including taking driving lessons and applying for a tax file number and a bank account.

“It was a full-time job for a very long time,” she said.

Bathurst’s findings marked the Folbigg case as one of the biggest miscarriages of justice in Australian legal history.

He said he did not regard Folbigg’s diaries as containing reliable admissions of guilt and “the evidence before the inquiry, at most, demonstrates that Ms Folbigg was a loving and caring mother who occasionally became angry and frustrated with her children”.

“That provides no support for the proposition that she killed her four children,” Bathurst said.

It would be open to the NSW government to make an ex gratia or “act of grace” payment to Folbigg now that her convictions have been quashed. The way in which such payments are calculated is opaque.

Folbigg 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 children were aged between 19 days and 19 months.

The Crown case that Folbigg smothered her children without leaving any physical trace was circumstantial and relied heavily on her diary entries, which were alleged to contain admissions. But the inquiry heard for the first time expert psychological and psychiatric evidence that did not support this interpretation.

The inquiry also heard expert evidence that a genetic variant Folbigg shared with her daughters might cause cardiac arrhythmias – irregular heart rhythms – and sudden unexpected death. It also heard Patrick might have died as a result of an underlying neurogenetic disorder such as epilepsy. The genetic variant was discovered after Folbigg’s trial.

Bathurst said he had concluded there was an identifiable natural cause of death for Patrick, Sarah and Laura, and that “once that conclusion is reached, any probative force of the coincidence and tendency evidence [in relation to Caleb’s death] is substantially diminished”.

A spokesperson for NSW Attorney-General Michael Daley said it was “impossible not to feel great sympathy for all involved”.

“No Australian jurisdiction has established a Criminal Cases Review Commission, but … [the] attorney-general has previously indicated that he is open to considering this issue.”

Asked whether compensation would be paid to Folbigg, they said: “The government will carefully consider any submission that Ms Folbigg or her representatives put forward.”

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