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Court of Criminal Appeal 14 December 2023

Folbigg v R

[2023] NSWCCA 325

Homicide
CRIME APPEAL AND REVIEW POST

Citation: Folbigg v R [2023] NSWCCA 325
Court: NSW Court of Criminal Appeal
Date: 14 December 2023
Judges: Bell CJ; Ward P; Harrison CJ at CL

Background

In May 2003, Kathleen Megan Folbigg was convicted in the NSW Supreme Court of the manslaughter of one child, maliciously inflicting grievous bodily harm on a second child, and the murder of three children. She was sentenced to 40 years imprisonment with a non-parole period of 30 years.

Almost 19 years after her conviction, the Governor of NSW directed the Honourable TF Bathurst AC KC to conduct a post-conviction inquiry under the Crimes (Appeal and Review) Act 2001 (NSW). Mr Bathurst completed his 415-page report in November 2023, concluding that new scientific evidence not available at the time of trial created reasonable doubt as to the convicted person's guilt. Following a memorandum conveying that conclusion in June 2023, the Governor granted a pardon and the convicted person was released from prison after serving more than 20 years. The pardon alone did not quash the convictions.

Mr Bathurst referred the matter to the Court of Criminal Appeal pursuant to s 82(2) of the Crimes (Appeal and Review) Act, at the request of the convicted person, so that the question of whether the convictions should be formally quashed could be considered.

  • Whether the Court of Criminal Appeal, having received the inquiry report under s 82(2) of the Crimes (Appeal and Review) Act 2001 (NSW), was satisfied that the jury's verdicts should be set aside under s 6(1) of the Criminal Appeal Act 1912 (NSW)
  • Whether the new scientific evidence and re-contextualised diary entries created reasonable doubt as to guilt sufficient to warrant quashing the convictions
  • Whether the Court was bound by the inquiry officer's conclusion of reasonable doubt, or was required to conduct its own assessment

Decision

The Court confirmed that its task was not simply to defer to Mr Bathurst's conclusions. Under s 88 of the Crimes (Appeal and Review) Act, the matter was to be dealt with as if an application had been made under s 84(3), which in turn engaged the procedure in s 85 and the standard appeal powers in s 6(1) of the Criminal Appeal Act 1912. The Court was required to satisfy itself independently that the jury's verdicts should be set aside.

Both the Crown and the convicted person filed written submissions. Neither sought an oral hearing, though the Court delivered its reasons orally in open court in recognition of the principle of open justice and the significant public interest in the matter. The Crown described the inquiry report as "comprehensive and thorough" and acknowledged the "substantial and extensive body of new scientific evidence" it contained. Counsel for the convicted person endorsed the report as "authoritative, extensive, detailed and persuasive."

The Court identified two principal reasons for quashing the convictions. First, the new scientific evidence substantially diminished the probative force of what had been presented at trial as powerful coincidence and tendency evidence. The inquiry had found identifiable neurogenetic causes for the deaths of three of the children. Second, diary entries that had powerfully influenced the original jury, when viewed in full context and informed by expert psychological and psychiatric evidence that was not before the jury, were found not to be reliable admissions of guilt.

The Court concluded that while the original verdicts were reasonably open on the evidence then available, the new scientific and expert evidence now created reasonable doubt as to the convicted person's guilt. The Court ordered all five convictions quashed and directed the entry of verdicts of acquittal under s 6(2) of the Criminal Appeal Act 1912.

Orders Made

  • All five convictions (manslaughter of Caleb Folbigg; maliciously inflicting grievous bodily harm on Patrick Folbigg; murder of Patrick Folbigg; murder of Sarah Folbigg; murder of Laura Folbigg) quashed
  • Verdicts of acquittal entered pursuant to s 6(2) of the Criminal Appeal Act 1912 (NSW)

Key Takeaways

  • The Court of Criminal Appeal confirmed that, on a reference under s 82(2) of the Crimes (Appeal and Review) Act 2001 (NSW), the Court must conduct its own independent assessment of whether convictions should be quashed; it is not bound by the inquiry officer's conclusion of reasonable doubt.
  • A pardon granted under the prerogative of mercy does not quash a conviction; a separate court order is required to achieve that outcome.
  • New scientific evidence that was unavailable at the time of trial can, where it substantially diminishes the probative force of evidence relied upon at trial, provide the basis for setting aside jury verdicts that were otherwise reasonably open on the evidence then presented.
  • Under s 85 of the Crimes (Appeal and Review) Act, the inquiry report constitutes the primary evidence before the Court on an application to quash; no additional evidence may be admitted without leave, and the usual rules of admissibility do not apply.
  • Recognising the principle of open justice, the Court of Criminal Appeal delivered detailed reasons in open court rather than only announcing its orders, reflecting the significance of the proceeding to the individual and the wider public.

Legislation and Cases Referenced

Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), ss 77, 82, 84, 85, 88
- Criminal Appeal Act 1912 (NSW), s 6

Cases:
- 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