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Court of Criminal Appeal 21 December 2007

FOLBIGG v R

[2007] NSWCCA 371

Homicide
CRIMINAL LAW APPEAL AGAINST CONVICTION MISCARRIAGE OF JUSTICE FAIR TRIAL MATERIAL IRREGULARITY JURY IRREGULARITIES

Citation: Folbigg v R [2007] NSWCCA 371
Court: New South Wales Court of Criminal Appeal
Date: 21 December 2007
Judges: McClellan CJ at CL, Simpson J, Bell J

Background

The appellant had been convicted in the Supreme Court on four counts of murder and one count of maliciously inflicting grievous bodily harm, in connection with the deaths of her four children between 1989 and 1999. A jury returned those verdicts on 21 May 2003, finding the appellant guilty of manslaughter on one count and murder on the remaining three. An initial appeal against conviction was dismissed by the Court of Criminal Appeal in February 2005.

In March 2005, information emerged suggesting that one or more jurors had engaged in external research during the trial. The Court granted leave to reopen the conviction appeal in May 2007, and the matter proceeded on two discrete grounds of alleged jury irregularity.

The parties agreed a set of relevant facts: one juror had conducted an internet search and discovered that the appellant's father had murdered her mother when the appellant was a child, and then shared that information with other jurors. Separately, a juror had obtained information from a nurse acquaintance about how long an infant's body remains warm after death, and that information circulated among the jury.

  • Whether the trial miscarried by reason of jurors obtaining prejudicial information from the internet, specifically that the appellant's father had killed her mother.
  • Whether the trial miscarried because a juror or jurors obtained external information from a nurse about the length of time an infant's body remains warm after death.
  • Whether, even if a miscarriage of justice was established, the proviso under s 6(1) of the Criminal Appeal Act 1912 applied to preclude a retrial on the basis that no substantial miscarriage of justice had actually occurred.

Decision

McClellan CJ at CL (with whom Simpson J and Bell J agreed) applied the test from Mraz v The Queen (1955) 93 CLR 493: a miscarriage of justice occurs where an irregularity may have deprived an accused of a chance of acquittal that was fairly open to them. The threshold question was whether each irregularity was "material" in that sense.

On the internet research ground, the court accepted that the discovery of the appellant's family history was prejudicial information that should not have reached the jury. However, applying the test from R v Marsland (as discussed in the broader body of case law referenced), the court was not satisfied that this information was material. The jury's careful deliberation was evident from its differentiated verdicts, including a manslaughter finding on count one rather than murder, and numerous notes sent to the trial judge demonstrating active engagement with the evidence. The court was satisfied the irregularity did not affect the outcome.

On the nurse's information about body temperature, the court reached a firm conclusion that the information, if it had any impact at all, would have assisted the appellant rather than prejudiced her. The reasoning was that a longer period of warmth after death increased the plausibility that the appellant had discovered each child some time after death and then raised the alarm, which aligned with her account of events. No miscarriage of justice arose from this irregularity.

Turning to the proviso, the court conducted a review of the whole of the evidence as required by Weiss v The Queen (2005) 224 CLR 300 and confirmed that the Crown case was overwhelming. Even proceeding on the assumption that a miscarriage had technically occurred, the court was entirely satisfied that no substantial miscarriage of justice had actually taken place, and the appeal was dismissed.

Orders Made

  • The appeal against conviction was dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that agreed facts concerning jury conduct, including the fact and content of internet searches, are receivable in evidence on appeal by analogy with cases where documents not in evidence have found their way to the jury room.
  • A miscarriage of justice requires that the irregularity may have deprived the accused of a chance of acquittal fairly open to them; an irregularity that did not affect, or could not have materially affected, the verdict does not meet that threshold.
  • Where external information obtained by a juror would, on any rational analysis, have assisted rather than harmed the accused, the court will not characterise it as giving rise to a miscarriage of justice.
  • Differentiated jury verdicts, such as returning manslaughter rather than murder on one count, can serve as evidence that the jury engaged carefully and independently with the evidence, weighing against a finding that irregular conduct infected deliberations.
  • In applying the proviso under s 6(1) of the Criminal Appeal Act 1912, the court is required to review the whole of the evidence; where the Crown case is overwhelming, the proviso may be applied even if a technical miscarriage is assumed.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Jury Act 1977 (NSW)

Cases
- Weiss v The Queen (2005) 224 CLR 300
- Mraz v The Queen (1955) 93 CLR 493
- Evans v The Queen [2007] HCA 59
- TKWJ v The Queen (2002) 212 CLR 124
- Davies v The King (1937) 57 CLR 17
- R v K (2003) NSWCCA 406; 59 NSWLR 431
- R v Skaf [2004] NSWCCA 37; (2004) 60 NSWLR 86
- Burrell v R [2007] NSWCCA 65
- MG v R [2007] NSWCCA 57
- Nudd v The Queen (2006) 162 A Crim R 301
- Qing An v Regina [2007] NSWCCA 53
- R v Forbes (2005) 160 A Crim R 1
- R v Booth [1983] 1 VR 39
- R v Folbigg (2005) 152 A Crim R 35
- R v Folbigg [2007] NSWCCA 128