Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Folbigg v R [2023] NSWCCA 325 Hearing dates: 16 and 24 November 2023 (Written Submissions) Date of orders: 14 December 2023 Decision date: 14 December 2023 Before: Bell CJ; Ward P; Harrison CJ at CL Decision: 1. Quash the convictions of Kathleen Megan Folbigg entered on 21 May 2003 for the following offences: (1) the manslaughter of Caleb Folbigg on 20 February 1989; (2) maliciously inflicting grievous bodily harm upon Patrick Folbigg on 18 October 1990, with intent to do grievous bodily harm; (3) the murder of Patrick Folbigg on 13 February 1991; (4) the murder of Sarah Folbigg on 30 August 1993; and (5) the murder of Laura Folbigg on 1 March 1999. 2. Pursuant to s 6(2) of the Criminal Appeal Act 1912 (NSW), enter verdicts of acquittal in favour of Kathleen Mary Folbigg in respect of the charges for which she had previously been convicted. Catchwords: CRIME – appeal and review – post-conviction inquiry ordered pursuant to s 77(1)(a) of the Crimes (Appeal and Review) Act 2001 (NSW) – where judicial officer formed the opinion that there is reasonable doubt as to the guilt of the Applicant – where matter referred to the Court of Criminal Appeal pursuant to s 82(2) for consideration of whether the Applicant's convictions should be quashed Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW) ss 77, 82, 84, 85, 88 Criminal Appeal Act 1912 (NSW) s 6 Cases Cited: Armstrong v R [2021] NSWCCA 311; (2021) 294 A Crim R 54 Attorney-General (Cth) v Huynh [2023] HCA 13; (2023) 97 ALJR 298 R v Folbigg [2003] NSWSC 895 R v O'Connor (1995) 80 A Crim R 214 R v Robinson [1999] NSWCCA 186 Category: Principal judgment Parties: Ms Kathleen Mary Folbigg (Applicant) The Crown (Respondent) Representation: Counsel: Dr G D Woods KC with Dr R Cavanagh (Applicant) Mr D Jordan SC with Ms V Garrity and Ms E Nicholson (Crown) Solicitors: Rhanee Rego & Associates (Applicant) Office of the Director of Public Prosecutions (NSW) (Respondent) File Number(s): 2006/5504 Publication restriction: N/A Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law - Criminal Date of Decision: 21 May 2003 Before: Barr J File Number(s): 70046/02 (Legacy number); 2002/2304 (JusticeLink number) JUDGMENT 1. THE COURT: On 21 May 2003, Kathleen Megan Folbigg (Ms Folbigg) was convicted of the following offences: 1. the manslaughter of Caleb Folbigg on 20 February 1989; 2. maliciously inflicting grievous bodily harm upon Patrick Folbigg on 18 October 1990, with intent to do grievous bodily harm; 3. the murder of Patrick Folbigg on 13 February 1991; 4. the murder of Sarah Folbigg on 30 August 1993; and 5. the murder of Laura Folbigg on 1 March 1999. 1. On 24 October 2003, Ms Folbigg was sentenced to a term of imprisonment of 40 years with a non-parole period of 30 years. [1] 2. Almost exactly 19 years after her conviction, on 18 May 2022, pursuant to s 77(1)(a) of the Crimes (Appeal and Review) Act 2001 (NSW) (the CAR Act), Her Excellency the Honourable Margaret Beazley AC KC, Governor of New South Wales (the Governor), directed the Honourable T F Bathurst AC KC (Mr Bathurst), a "judicial officer" within the meaning of the CAR Act, to conduct an inquiry (the Inquiry) into these convictions. 3. On or about 8 November 2023, Mr Bathurst completed his report (the Report) and delivered a copy of it, including a transcript of the depositions given in the course of the Inquiry, to the Governor pursuant to s 82(1)(a) of the CAR Act. [2] 4. The Report runs to some 415 pages, not including a Glossary of Terms or substantial appendices of transcript relating to various topics explored in the Inquiry. 5. Mr Bathurst formed the opinion that there is reasonable doubt as to the guilt of Ms Folbigg for the offences of which she has been convicted. He had conveyed this conclusion in a memorandum sent to the Attorney General, the Honourable Michael Daley MP, on 1 June 2023 and the Report, which was prepared subsequent to that time, sets out Mr Bathurst's detailed reasons for reaching that view. In short, they were formed by reference to scientific evidence which was not available at the time of Ms Folbigg's trial. 6. In his Report, Mr Bathurst confirmed that he adhered to the conclusion he had conveyed to the Attorney General on 1 June 2023. [3] 7. Following Mr Bathurst's memorandum of 1 June 2023, Ms Folbigg was pardoned by Her Excellency, the Governor, and was released from prison, having served more than 20 years of her sentence. That exercise of the prerogative of mercy did not, however, have the effect of quashing the convictions that were the subject of the Inquiry. [4] Section 82(2)(a) of the CAR Act provides that if the judicial officer appointed by the Governor forms the opinion that there is a reasonable doubt as to the guilt of the convicted person, he or she may refer the matter, together with a copy of the Report, to the Court of Criminal Appeal (CCA). 8. As Mr Bathurst noted in the penultimate paragraph of the Report: "Notwithstanding that Ms Folbigg has been pardoned, I will, as required by s 82 of the CAR Act, furnish my Report to the Governor. I will also, as requested by Ms Folbigg, refer the matter with a copy of the Report to the Court of Criminal Appeal, pursuant to s 82(2) of the CAR Act for consideration of the question of whether the convictions should be quashed." [5] 1. Pursuant to s 88 of the CAR Act, upon receiving a reference under s 82(2)(a), the Court is to deal with the matter so referred in the same way as if an application had been made to the Court under s 84(3). Section 84(3) provides that "an application for the quashing of the conviction may be made to the Court by the person to whom [a] pardon has been granted or by another person on behalf of that person." 2. Section 85 of the CAR Act relevantly provides: "85 Procedure on application for quashing of conviction (1) In any proceedings on an application under section 84— (a) the Crown has the right of appearance, and (b) the Court is to consider— (i) the report on the matter that is prepared by the judicial officer under section 82, and (ii) … (iii) any submissions on any such report that are made by the Crown or by the convicted person to whom the proceedings relate, and (c) no other evidence is to be admitted or considered except with the leave of the Court. (2) The rules governing the admissibility of evidence do not apply to any such proceedings. (3) For the purpose of enabling the convicted person to make submissions with respect to a report referred to in subsection (1), the convicted person is entitled to receive a copy of the report. (4) The provisions of Parts 3 and 4 of the Criminal Appeal Act 1912 relating to proceedings on an appeal under section 5 (1) of that Act apply to proceedings on an application under section 84, as if— (a) any reference to an appeal were a reference to proceedings on such an application, and (b) any reference to an appellant were a reference to the convicted person." 1. It follows that this Court may quash Ms Folbigg's convictions on the usual basis on which it may allow an appeal against conviction under s 6(1) of the Criminal Appeal Act 1912 (NSW) (Criminal Appeal Act). [6] Section 6(1) of the Criminal Appeal Act provides: "The court on any appeal under section 5(1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred." 1. In the context of the present case, the reference in s 6(1) to "having regard to the evidence" is a reference to the Report and submissions, neither party having otherwise sought to have any other evidence admitted. 2. The exercise which this Court must undertake is to satisfy itself that the jury's verdict should be set aside. It is not simply a matter of adopting or deferring to the Report, although it is by reference to the Report (which relevantly, together with the submissions, constitutes the evidence) that this Court must act. The Court is not bound by any reasonable doubt as to the guilt of the convicted person expressed by the judicial officer who made the Report. [7] 3. In accordance with s 85(1)(b)(iii) of the CAR Act, the Registrar of the CCA invited submissions from the Crown and Ms Folbigg in relation to the Report. The Crown and Ms Folbigg were also asked to indicate whether they sought an oral hearing in relation to the question of whether the convictions should be quashed. 4. Submissions were received on behalf of Ms Folbigg on 16 November 2023 and by the Crown on 24 November 2023. 5. Neither Ms Folbigg nor the Crown sought an oral hearing to supplement their written submissions, although the Crown properly pointed out the importance of the principle of open justice. In this context, we note that the only other evidence before the Court, namely the Report, is a publicly available document, accessible on the internet, and that the hearing before Mr Bathurst that resulted in the Report was largely conducted in public and live streamed. The current application differs from other applications to quash a conviction following a review such as O'Connor where there was a controversy between the convicted person and the Crown as to whether there should be a new trial or a verdict of acquittal entered in the event that the convictions were quashed. 6. In light of the written submissions filed on behalf of both Ms Folbigg and the Crown which are referred to below, there was no purpose to be served in proceeding to have an oral hearing although, in recognition of the importance of open justice and indeed the importance of this case to Ms Folbigg and the wide public interest in it, these reasons (and not just the orders of the Court) are being delivered orally in open court. 7. In their written submissions, counsel on behalf of Ms Folbigg endorsed and adopted the reasoning and conclusions in the Report of Mr Bathurst, describing it as "authoritative, extensive, detailed and persuasive". 8. The Crown described the Report as "comprehensive and thorough", noting that it "explains the substantial and extensive body of new scientific evidence that was unknown and could not have been known at the time of [Ms Folbigg's] trial, twenty years ago." 9. The gist of Mr Bathurst's analysis, which led him to conclude that there was reasonable doubt as to Ms Folbigg's guilt, was contained in the Report as follows: "At the risk of repetition, I have concluded that there is an identifiable cause of the death of Patrick, Sarah and Laura, and that it was more likely that Patrick's ALTE [acute life threatening event] was caused by a neurogenetic disorder rather than suffocation. Once that conclusion is reached, any probative force of the coincidence and tendency evidence is substantially diminished. Further, I have concluded that the relationship Ms Folbigg had with her children does not support the inference that she killed them. Finally, I do not regard the diaries as containing reliable admissions of guilt." [8] 1. The reference in this passage to "the diaries" was a reference to diaries which Ms Folbigg kept at the time of the deaths of her children. These had featured prominently in the original trial. In the Inquiry before Mr Bathurst, they were the subject of expert psychiatric and psychological evidence. Mr Bathurst noted that "none of the psychiatrists or psychologists, who expressed opinions for the purpose of the Inquiry, were prepared to accept that the entries could be treated as reliable admissions of guilt." [9] Mr Bathurst reached the same conclusion, having closely considered particular entries which had previously been said to constitute admissions of guilt in the context of considering the diaries as a whole. [10] He considered the diary entries to be neutral in determining whether Ms Folbigg was or was not guilty of the offences for which she was convicted. [11] 2. The Crown expressly accepted in its submissions before this Court that "on all of the evidence that was available to the Inquiry, it was open to [Mr Bathurst] to make the findings set out in the Report." This statement broadly reflects the position that the Crown had taken in final submissions before Mr Bathurst. 3. The Crown also submitted that if, upon the Court's own independent assessment of the Report, it finds that there is now reasonable doubt as to Ms Folbigg's guilt, the appropriate relief is to quash each of the convictions and enter verdicts of acquittal pursuant to s 6(2) of the Criminal Appeal Act. 4. Having ourselves reviewed the Report, we do so find, for similar reasons that led Mr Bathurst to the same conclusion. 5. First and most significantly, the "substantial and extensive body of new scientific evidence" to which the Crown referred in written submissions and which was before Mr Bathurst and considered in the Report substantially diminished any probative force of what had been relied on at the original trial as powerful coincidence and tendency evidence. 6. Secondly, in relation to the diary entries, it may readily be understood how certain entries, viewed in isolation, had a powerful influence on the original jury in a manner adverse to Ms Folbigg. Viewed in their full context, however, as they must be, and informed by the expert psychological and psychiatric expert evidence referred to extensively in the Report and which was not before the jury, we agree with Mr Bathurst's conclusion that the diary entries were not reliable admissions of guilt. 7. Thus, while the verdicts at trial were reasonably open on the evidence then available, there is now reasonable doubt as to Ms Folbigg's guilt. 8. In these circumstances and as a consequence, it is appropriate that Ms Folbigg's convictions for: 1. the manslaughter of Caleb Folbigg on 20 February 1989; 2. maliciously inflicting grievous bodily harm upon Patrick Folbigg on 18 October 1990, with intent to do grievous bodily harm; 3. the murder of Patrick Folbigg on 13 February 1991; 4. the murder of Sarah Folbigg on 30 August 1993; and 5. the murder of Laura Folbigg on 1 March 1999 be quashed. 1. The Court so orders, and directs the entry of verdicts of acquittal pursuant to s 6(2) of the Criminal Appeal Act 1912 (NSW). ********** Endnotes 1. R v Folbigg [2003] NSWSC 895 at [101]-[107]. 2. The Report is available at https://2022folbigginquiry.dcj.nsw.gov.au/content/dam/dcj/2022-folbigg-inquiry/documents/Report_of_the_2022_Inquiry_into_the_convictions_of_Kathleen_Megan_Folbigg.pdf. 3. At [1974]. 4. See CAR Act, s 84(2); see also Attorney-General (Cth) v Huynh [2023] HCA 13; (2023) 97 ALJR 298 (Huynh) at [120], [130]; Armstrong v R [2021] NSWCCA 311; (2021) 294 A Crim R 54 (Armstrong) at [13]-[18]. 5. At [1977]. 6. Huynh at [120]-[121]. 7. R v Robinson [1999] NSWCCA 186 at [5]; R v O'Connor (1995) 80 A Crim R 214 (O'Connor) at 222; Armstrong at [40]. 8. At [1975]. 9. At [1957]. 10. At [1958]. 11. At [1962]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 December 2023