- Science has overturned Australia’s greatest miscarriage of justice.
- Kathleen Folbigg has been unconditionally pardoned for her wrongful convictions in 2003 after killing her four children.
- An unconditional pardon is where new evidence has resulted in reasonable doubt or question as to the person’s guilt.
- While a pardon has allowed her to walk free from prison, the Court of Criminal Appeal needs to quash her convictions before she can receive compensation for serving 20 years in prison for her wrongful convictions.
A miscarriage of justice occurs when an innocent person is wrongfully convicted or imprisoned. In 2003, Kathleen Folbigg was found guilty of killing her four infant children between 1989 to 1999. After serving 20 years of her 30-year imprisonment, Ms Folbigg has been granted conditional pardon by the NSW Governor and is now a free woman. In this article, we will attempt to break down the charges, the elements of the offence, the pardon process and why she was granted an unconditional pardon.
Ms Folbigg was charged with 3 counts of murder and 1 count of manslaughter under Section 18 of the Crimes Act 1900. Defined under s 18(1)(a) of the Crimes Act 1900, murder is a person’s voluntary act or omission that causes the death of the deceased with the intention of inflicting grievous bodily harm, killing and reckless indifference to human life. Whereas manslaughter is every other punishable homicide.
To establish the offence, the Crown needs to prove the below elements beyond a reasonable doubt:
- The accused did a deliberate act which caused the death of the deceased, and
- The accused had an intention to kill or inflict grievous bodily harm on the decreased or the act which caused death was done with reckless indifference to human life.
In 1999, Kathleen Folbigg’s now ex-husband, Mr Folbigg, became suspicious of Ms Folbigg following the separate deaths of their four children, who were all under the age of 2 years old. The Crown’s case against Ms Folbigg indicated that she had smothered her children in a fit of anger, resentment or hatred against her children either intending to kill them or to render them to sleep.
The jury found Ms Kathleen Folbigg guilty on the grounds of the Crown’s allegation that the coincidence of four children dying from natural causes, such as sudden infant death syndrome or any other illness, disease or syndrome, would be ‘fundamentally implausible’. Ms Folbigg described how the “guilt haunted her” which was used as an admission. Despite this, there was no physical evidence that the children died from asphyxiation or injuries which would indicate that they were smothered.
Ms Folbigg was sentenced to 40 years imprisonment, with a non-parole period of 30 years. On appeal, her sentence was reduced to 30 years, with a non-parole period of 25 years. She maintained her innocence while she served her sentence.
The Pardon Process
As the Crown case was entirely circumstantial and lacked physical evidence, the University of Newcastle Legal Centre petitioned the Governor of NSW on behalf of Ms Folbigg for a review of her conviction under Section 76 of the Crimes (Appeal and Review) Act 2001 in 2015.
In 2018, the Attorney General recommended that the Governor conduct an inquiry into Ms Folbigg’s convictions as the petition raised reasonable doubt as to the evidence of the Crown case, pursuant to section 77(2) of the Crimes (Appeal and Review) Act.
In 2019, the inquiry furnished by Mr Blanch found evidence reinforcing her guilt and claimed that there was no new evidence which raised reasonable doubt regarding Ms Folbigg’s. An application was further filed in the Supreme Court for judicial review.
During the 2019 inquiry, the genomes of Ms Folbigg’s children were sequenced and found that Sarah and Laura had novel mutations in the CALM2 gene which may cause cardiac arrhythmia and sudden unexpected death.
On 3 March 2021, a petition regarding the new evidence was received by the Governor’s office. The petition requested that the Governor pardon Ms Folbigg in consideration of Section 76 of the Crimes (Appeal and Review) Act 2001.
Why Was She Granted an Unconditional Pardon?
On 5 June 2023, the NSW Governor accepted the Attorney General’s recommendation and “firm view” that the new scientific evidence had cast “reasonable doubt as to the guilt of Ms Folbigg for each of the offences for which she was originally tried” and granted an unconditional pardon to Ms Folbigg. Further, she was freed from Clarence Correctional Centre near Grafton in Northern NSW that morning.
The Next Step in Terms of Potential Compensation
According to Article 14(6) of the International Covenant on Civil and Political Rights, a person is entitled to be paid compensation for the suffered consequences of a wrongful conviction if their conviction has been reversed or pardoned on the grounds that newly discovered facts saw that there had been a miscarriage of justice.
While Ms Folbigg does not have common law or statutory right to compensation for being wrongfully convicted and imprisoned, the NSW Government may choose to make an ex-gratia payment on its own accord or at the request of Ms Folbigg for the financial and/or detrimental loss suffered.
However, before she can commence this, her original convictions need to be quashed and deemed invalid by the Court of Criminal Appeal.
ABOUT LARA MENON:
Lara Menon joined the Coutts Lawyers & Conveyancers team in August 2018, working within our Criminal and Family Law teams. Her swift advancement from Paralegal, Law Graduate, Lawyer, Senior Lawyer and most recently, Senior Associate in February 2022, is a testament to her astute legal skills and commitment to client service excellence.
Earlier in 2019, Lara was selected by the NSW Law Society to undertake an internship with the NSW Coroner’s Court, working as a Judge’s Associate for the Deputy State Coroner.
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