Citation: R v Folbigg [2003] NSWCCA 17
Court: NSW Court of Criminal Appeal
Date: 13 February 2003
Judge(s): Hodgson JA, Sully J, Buddin J
Background
The accused was charged with the murder of four infant children (Caleb, Patrick, Sarah and Laura) and with maliciously inflicting grievous bodily harm on one of them, Patrick, arising from an apparent life-threatening event approximately four months before his death. Each child died while in the accused's sole care, and in each case the Crown's position was that the accused had asphyxiated the child. Medical evidence identified two possibilities in each instance: natural causes, or induced airway obstruction.
Two of the deaths had originally been classified as sudden infant death syndrome (SIDS) following autopsy. The primary judge at first instance was Wood CJ at CL. The Crown served appropriate notices and argued that evidence relating to each child's death was admissible on every count as both tendency evidence (under s 97 of the Evidence Act) and coincidence evidence (under s 98).
The accused applied for separate trials, seeking to have the counts relating to Caleb, Sarah and Laura heard separately from the counts relating to Patrick. Wood CJ at CL refused that application, accepting the Crown's admissibility arguments. The accused then sought leave to appeal to the Court of Criminal Appeal.
Legal Issues
- Whether evidence of the deaths of, or life-threatening event involving, each child was admissible as coincidence evidence under s 98 of the Evidence Act 1995 (NSW) in trials concerning the other children.
- Whether such evidence was admissible as tendency evidence under s 97 of the Act.
- Whether the probative value of the cross-count evidence substantially outweighed any prejudicial effect, as required by s 101, and whether exclusion was warranted under ss 135 or 137.
- Whether, given the admissibility findings, the primary judge was correct to refuse to order separate trials.
Decision
Hodgson JA (with whom Sully J and Buddin J agreed) dismissed the application. The central question under s 98 (coincidence evidence) was whether the evidence of multiple incidents could rationally affect the assessment of the probability of a fact in issue. His Honour concluded that the coincidence of four children dying or suffering life-threatening events while in the immediate care of the same person, with asphyxiation a substantial possibility in each case and no natural cause being more than a substantial possibility, made it highly improbable that the accused contributed to none of those incidents.
The court also considered the diary entries referred to by the primary judge as part of the contextual picture supporting admissibility. Hodgson JA noted that even if the accused's contribution amounted to manslaughter rather than murder, that would satisfy the Pfennig test, since manslaughter remained an available alternative verdict on a murder charge.
On the prejudice question under ss 101, 137 and 135, the court acknowledged a risk of juror confusion in how the evidence was used across counts. However, Hodgson JA outlined a structured approach by which the jury could first assess whether there was any reasonable possibility that all incidents occurred by natural causes without any contribution from the accused, and, only if they rejected that possibility, proceed to examine the individual counts separately. On that basis, the probative value of the coincidence evidence was found to substantially outweigh any prejudicial effect, satisfying the s 101 threshold.
Because admissibility as coincidence evidence was sufficient to justify refusing separate trials, the court did not need to determine whether the evidence was also admissible as tendency evidence under s 97. The application for leave to appeal was dismissed.
Orders Made
- Application for leave to appeal dismissed.
- Publication of the fact of the application and its result permitted; publication of the reasons suppressed until further order.
Key Takeaways
- The Court of Criminal Appeal confirmed that coincidence evidence under s 98 of the Evidence Act can, in appropriate circumstances, be cross-admissible across multiple counts concerning different victims, supporting the refusal of separate trials.
- Where multiple deaths or life-threatening events share a common context (same carer, same possible mechanism, no definitive natural cause), the cumulative improbability of coincidence can satisfy the admissibility threshold under s 98, even where each incident considered alone might not.
- Under s 101, the probative value of coincidence evidence must substantially outweigh its prejudicial effect. The court found that structured jury directions can mitigate the risk of confusion and reduce prejudice to a level that does not displace strong probative value.
- In dismissing the application, the court confirmed that it was unnecessary to resolve the tendency evidence question under s 97 once coincidence evidence admissibility was established as sufficient to justify joinder.
- The Pfennig test (requiring that there be no reasonable view of coincidence evidence consistent with innocence) was held to be capable of satisfaction where an accused's contribution, even if it amounted only to manslaughter rather than murder, remained a real possibility across multiple incidents.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 97, 98, 99, 101, 135, 137
Cases:
- Makin v Attorney-General for NSW [1894] AC 57
- Perry v The Queen (1982) 150 CLR 580
- Pfennig v The Queen (1995) 182 CLR 461
- R v Geering (1849) 18 LJMC 215
- R v Grills (1954) 73 WN(NSW) 303
- R v Joiner [2002] NSWCCA 354
- R v Le [2000] NSWCCA 49
- R v Leask [1999] NSWCCA 33
- R v OGD (2000) 50 NSWLR 443
- R v Phillips [1999] NSWSC 1175
- R v Smith (1915) 11 Cr App Rep 229
- R v WRC [2000] NSWCCA 210
- Shepherd v The Queen (1990) 170 CLR 573
- Sutton v The Queen (1983-84) 152 CLR 528
- Thompson v The Queen (1989) 169 CLR 1
- W v The Queen [2001] FCA 1648