Top NSW court to consider quashing Folbigg’s convictions

Kathleen Folbigg may be a step closer to receiving compensation for the 20 years she spent behind bars over the deaths of her four young children after a landmark inquiry referred her case to the state’s top appeal court.

On Wednesday, the head of the inquiry into Folbigg’s convictions, former NSW chief justice Tom Bathurst, KC, released his final report and referred the case to the Court of Criminal Appeal to consider quashing her convictions.

Kathleen Folbigg following her release from prison in June.

“I have concluded that the relationship Ms Folbigg had with her children does not support the inference that she killed them,” Bathurst said.

He said he did not regard Folbigg’s diaries, a key plank of the prosecution’s case against her in her 2003 trial, as containing reliable admissions of guilt.

“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 after the court process concludes, although the inquiry did not need to consider this question. The way in which such payments are calculated is opaque.

‘The evidence … at most, demonstrates that Ms Folbigg was a loving and caring mother who occasionally became angry and frustrated.’

Former NSW chief justice Tom Bathurst, KC

Lindy and Michael Chamberlain were pardoned in 1987 over the death of their daughter Azaria and their convictions quashed in 1988. They received an ex gratia payment of $1.3 million from the Northern Territory government in 1992.

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

Douglas Harry Rendell, convicted in 1980 of the shooting murder of his partner Yvonne Kendall in Broken Hill, was pardoned in July 1989 after an inquiry concluded his conviction was unsafe. He received a modest ex gratia payment of $100,000 from the NSW government.

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

The finding marked the Folbigg case as one of the biggest miscarriages of justice in Australian legal history.

In his final report, Bathurst said submissions made on behalf of Folbigg’s ex-husband Craig, who testified against her in the 2003 trial, “do not persuade me that there is not reasonable doubt that Ms Folbigg was guilty of the crimes for which she was convicted”.

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 of the diaries.

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”.

He said the reasonable possibility that Caleb “died of unknown natural causes has not been excluded”, and “in a circumstantial case, for there to be a finding of guilt, all reasonable hypotheses inconsistent with guilt must be excluded”.

Folbigg’s solicitor, Rhanee Rego, said in a statement that the release of the final report was “another significant positive milestone on Kathleen’s 24-year journey to clear her name”.

“Today, and every day, Kathleen’s thoughts are with her children. Mr Bathurst found in the report that Ms Folbigg was ‘a loving and caring mother’.

“This finding reinforces a personal truth that Kathleen has held in her heart for more than two decades.

“We look forward to standing with Ms Folbigg in the Court of Criminal Appeal in due course.”

A spokesperson for NSW Attorney-General Michael Daley said Bathurst had delivered his report to the governor on Tuesday, ahead of its public release on Wednesday.

“As Mr Bathurst has referred Ms Folbigg’s matter to the Court of Criminal Appeal, it would be inappropriate for the Attorney General to comment further,” the spokesperson said.

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