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Supreme Court 29 November 2002

R v Folbigg

[2002] NSWSC 1127

Homicide
CRIMINAL LAW PLEA OF NOT GUILTY TENDENCY AND COINCIDENCE EVIDENCE.

Citation: R v Folbigg [2002] NSWSC 1127 revised - 30/05/2003
Court: Supreme Court of New South Wales, Common Law Division
Date: 29 November 2002
Judge(s): Wood CJ at CL

Background

The accused was charged with the murder of four of her infant children (Caleb, Patrick, Sarah and Laura) and with maliciously inflicting grievous bodily harm on one of them, Patrick, in connection with a life-threatening event that occurred approximately four months before his death. The Crown's case was that she had deliberately asphyxiated each child, causing their deaths and Patrick's earlier near-fatal episode. Each death had occurred when only the accused and the child were present, and two of the deaths had originally been attributed to Sudden Infant Death Syndrome (SIDS) at the time of autopsy.

The defence filed a motion seeking separate trials for the counts relating to Caleb, Sarah and Laura, to be heard apart from the counts relating to Patrick. The Crown opposed this, seeking to rely on evidence of all four deaths and the life-threatening event together as tendency and coincidence evidence, alongside diary extracts and evidence from the accused's husband regarding her relationship with and attitude toward the children.

The central factual question for trial was whether the deaths and the near-fatal event resulted from natural causes, including a possible undiagnosed congenital metabolic condition, or from induced airway obstruction causing cerebral oxygen deprivation, as the Crown alleged.

  • Whether the counts should be severed and tried separately, or heard together in a single joint trial
  • Whether tendency and coincidence evidence relating to each child's death and the life-threatening event was admissible in relation to the other counts
  • The extent to which expert medical evidence could be used to establish induced asphyxiation as the cause of death, and how far that expert evidence could be taken at this stage
  • Whether the provisions relating to infanticide under s 22A of the Crimes Act 1900 had any potential relevance to the proceedings

Decision

Wood CJ at CL refused the application for separate trials. His Honour found that the evidence relating to all four deaths and the near-fatal episode was sufficiently interconnected that severance would be inappropriate. The similarities across the events were considered to have significant probative value when weighed against the potential for prejudice to the accused.

Tendency and coincidence evidence was ruled admissible, but only on a limited basis. The expert medical evidence could be used to establish that induced asphyxiation was a possible and consistent cause of each death and the life-threatening episode. However, His Honour declined to permit the Crown to go further at this stage and assert that asphyxiation was definitively the cause of death to the exclusion of any other rational possibility. That ultimate question was one for the jury to determine, and would depend on more than the medical evidence alone. If the Crown wished to advance the expert evidence in that stronger form, further argument would be required.

His Honour also noted, without either party having raised it, the potential relevance of the infanticide provision in s 22A of the Crimes Act 1900. If applicable to one or more of the deaths of Caleb, Patrick or Sarah, any wilful act by the accused in relation to those children could be treated as manslaughter rather than murder. The occurrence of infanticide in relation to earlier deaths could also have significant probative relevance to questions of diminished responsibility or substantial impairment by abnormality of mind in relation to the later charges. His Honour expressly stated that this consideration had not been taken into account in deciding the severance application, but observed that such questions would almost certainly require the counts to be tried together in any event.

His Honour also directed that the reasons not be published until further order, given the sensitivity of the proceedings.

Orders Made

  • Application for separate trials refused
  • Tendency and coincidence evidence ruled admissible on a limited basis (to establish induced asphyxiation as a possible and consistent cause, not as the definitive cause to the exclusion of all other rational possibilities)
  • Publication of the reasons suppressed until further order

Key Takeaways

  • Tendency and coincidence evidence in a multi-count homicide trial is not automatically admissible in its fullest form; the Supreme Court here confined expert medical evidence to establishing possibility and consistency rather than definitively excluding all other causes, leaving the ultimate causal question for the jury.
  • A severance application will not succeed merely because the charges are serious or numerous; the court assessed the probative value of the interconnected evidence across all counts and found it sufficient to justify a joint trial.
  • Where deaths were originally attributed to SIDS and later re-examined under a homicide hypothesis, the original classification does not foreclose subsequent expert evidence that induced asphyxiation was a consistent cause, provided the evidence is appropriately qualified.
  • The infanticide provision in s 22A of the Crimes Act 1900 may carry significant implications in prosecutions involving the deaths of infants, including potential relevance to the characterisation of offences and to partial defences such as substantial impairment by abnormality of mind.
  • Expert evidence in cases of this kind must be carefully framed in accordance with the principles discussed in Makita (Australia) Pty Limited (2001) 52 NSWLR 705, and questions of causation must ultimately be left to the jury consistently with R v Puckeridge [2000] NSWCCA 193.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), including s 22A (infanticide)
- Evidence Act 1995 (NSW)

Cases:
- DPP v P [1991] 2 AC 443
- Gipp v The Queen (1998) 194 CLR 106
- Hoch v The Queen (1988) 165 CLR 292
- KRM v The Queen (2001) CLR 211
- Makita (Australia) Pty Limited (2001) 52 NSWLR 705
- Perry v The Queen (1982) 150 CLR 580
- Pfennig v The Queen (1995) 182 CLR 46
- R v ACK NSWCCA 22 April 1996
- R v AH (1997) 98 A Crim R 71
- R v Bell [2002] NSWCCA 2
- R v Benecke (1999) 106 A Crim R 282
- R v Chamilos NSWCCA 24 October 1983
- R v Clark [2000] EWCA 54
- R v Colby [1999] NSWCCA 261
- R v GK [2001] NSWCCA 413
- R v Jackson [2001] NSWCCA 387
- R v Joiner [2002] NSWCCA 354
- R v Lisoff [1999] NSWCCA 364
- R v Lock (1997) 91 A Crim R 356
- R v Lockyer (1996) 89 A Crim R 457
- R v Martin [2000] NSWCCA 332
- R v Phillips [1999] NSWSC 115
- R v Puckeridge [2000] NSWCCA 193
- R v Serratore (1999) 48 NSWLR 101
- R v Singh-Bal (1997) 92 A Crim R 397
- R v Straffen [1952] 2 QB 911
- R v Verma (1987) 30 A Crim R 441
- R v WRC [2002] NSWCCA 210
- R v Zappala NSWCCA 4 November 1991
- Shepherd v The Queen (1990) 170 CLR 573
- Sutton v The Queen (1984) 153 CLR 528
- Thompson v The Queen (1989) 169 CLR 1
- Wilson v The Queen (1970) 123 CLR 334