The NSW Court of Criminal Appeal quashed her convictions on Thursday morning before applause filled the court.
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00:00 On the 21st of May 2003, Kathleen Megan Folbig was convicted of the following offences.
00:11 One, the manslaughter of Caleb Folbig on 20 February 1989.
00:14 Two, maliciously inflicting grievous bodily harm upon Patrick Folbig on 18 October 1990
00:20 with intent to do grievous bodily harm.
00:22 Three, the murder of Patrick Folbig on 13 February 1991.
00:26 Four, the murder of Sarah Folbig on 30 August 1993.
00:30 And five, the murder of Laura Folbig on 1 March 1999.
00:36 On 24 October 2003, Ms Folbig was sentenced to a term of imprisonment of 40 years with
00:42 a non-parole period of 30 years.
00:45 Almost exactly 19 years after her conviction on 18 May 2022, pursuant to section 77(1)(a)
00:53 of the Crimes, Appeal and Review Act 2001, Her Excellency the Honourable Margaret Beazley,
01:00 ACKC Governor of New South Wales, directed the Honourable T.F.
01:04 Bathurst, ACKC, a judicial officer within the meaning of the Crimes, Appeal and Review
01:10 Act, to conduct an inquiry into these convictions.
01:15 On or about 8 November 2023, Mr Bathurst completed his report and delivered a copy of it in the
01:23 evening, including a transcript of the depositions given in the course of the inquiry to the
01:27 Governor pursuant to section 82(1)(a) of the Crimes, Appeal and Review Act.
01:33 The report runs to some 415 pages, not including a glossary of terms or substantial appendices
01:39 of transcript relating to various topics explored in the inquiry.
01:46 Mr Bathurst formed the opinion that there is a reasonable doubt as to the guilt of Ms
01:50 Folby for the offences of which she has been convicted.
01:53 He had conveyed this conclusion in a memorandum sent to the Attorney-General, the Honourable
01:58 Michael Daley MP, on 1 June 2023, and the report, which was prepared subsequent to that
02:05 time, sets out Mr Bathurst's detailed reasons for reaching that view.
02:11 In short, they were formed by reference to scientific evidence which was not available
02:15 at the time of Ms Folby's trial.
02:18 In his report, Mr Bathurst confirmed that he adhered to the conclusion he had conveyed
02:22 to the Attorney-General on 1 June 2023.
02:28 Following Mr Bathurst's memorandum of 1 June 2023, Ms Folby was pardoned by Her Excellency
02:33 the Governor and was released from prison, having served more than 20 years of her sentence.
02:39 That exercise of the prerogative of mercy did not, however, have the effect of quashing
02:44 the convictions that were the subject of the inquiry.
02:48 Section 2(a) of the Crimes, Appeal and Review Act provides that if the judicial officer
02:56 appointed by the Governor forms the opinion that there is a reasonable doubt as to the
03:01 guilt of the convicted person, he or she may refer the matter, together with a copy of
03:06 the report, to the Court of Criminal Appeal.
03:10 As Mr Bathurst noted in the penultimate paragraph of the report, "Notwithstanding that Ms Folby
03:16 has been pardoned, I will, as required by Section 82 of the Crimes, Appeal and Review
03:21 Act, furnish my report to the Governor.
03:23 I will also, as requested by Ms Folby, refer the matter, with a copy of the report, to
03:28 the Court of Criminal Appeal, pursuant to Section 82(2) of the Crimes, Appeal and Review
03:33 Act, for consideration of the question whether the convictions should be quashed."
03:39 Pursuant to Section 88 of the Crimes, Appeal and Review Act, upon receiving a reference
03:43 under Section 82, subsection 2 to the lay, the Court is to deal with the matter so referred
03:49 in the same way as if an application had been made to the Court under Section 84(3).
03:55 Section 84(3) provides that, and I quote, "An application for the quashing of the conviction
04:00 may be made to the Court by the person to whom a pardon has been granted, or by another
04:05 person on behalf of that person."
04:09 Section 85 of the Crimes, Appeal and Review Act relevantly provides for the procedure
04:17 on an application for the quashing of a conviction.
04:22 It provides that in any proceedings on an application under Section 84, the Crown has
04:26 the right of appearance and the Court is to consider the report on the matter that is
04:30 prepared by the judicial officer under Section 82 and any submissions on any such report
04:35 that are made by the Crown or by the convicted person to whom the proceedings relate, and
04:40 no other evidence is to be admitted or considered except with the leave of the Court.
04:45 The rules governing the admissibility of evidence do not apply to any such proceeding, and for
04:50 the purpose of enabling the convicted person to make submissions with respect to a report,
04:55 the convicted person is entitled to receive a copy of the report and the provisions of
04:59 Parts 3 and 4 of the Criminal Appeal Act 1912 relating to proceedings on an appeal under
05:05 Section 51 of that Act apply to proceedings on an application under Section 84 as if any
05:12 reference to an appeal were a reference to proceedings on such an application and any
05:16 reference to an appellant were a reference to the convicted person.
05:21 It follows that this Court may quash Ms Falby's convictions on the usual basis on which it
05:25 may allow an appeal under Section 61 of the Criminal Appeal Act.
05:31 Section 61 of that Act provides, and I quote, that the Court on any appeal under Section
05:37 51 against conviction shall allow the appeal if it is of opinion that the verdict of the
05:42 jury should be set aside on the ground that it is unreasonable or cannot be supported
05:46 having regard to the evidence or that the judgment of the court of trial should be set
05:52 aside on the ground of the wrong decision of any question of law or that on any other
05:56 ground whatsoever there was a miscarriage of justice and in any other case shall dismiss
06:01 the appeal provided that the court may, notwithstanding that it is of the opinion that the point or
06:06 points raised by the appeal might be decided in favour of the appellant, dismiss the appeal
06:11 if it considers that no substantial miscarriage of justice has actually occurred.
06:17 In the context of the present case, the reference in Section 61 to, quote, having regard to
06:23 the evidence, unquote, is a reference to the report and submissions, neither party having
06:29 otherwise sought to have any other evidence admitted before this Court on this application.
06:36 The exercise which this Court must undertake is to satisfy itself that the jury's verdict
06:41 should be set aside.
06:43 It is not simply a matter of adopting or deferring to the report, although it is by
06:47 reference to the report which relevantly, together with the submissions, constitutes
06:52 the evidence that this Court must act.
06:55 The Court is not bound by any reasonable doubt as to the guilt of the convicted person expressed
07:00 by the judicial officer who made the report.
07:03 In accordance with Section 85(1)(b)(iii) of the Crimes, Appeal and Review Act, the Registrar
07:09 of the Court of Criminal Appeal invited submissions from the Crown and Ms Folbig in relation to
07:14 the report.
07:15 The Crown and Ms Folbig were also asked to indicate whether they sought an oral hearing
07:20 in relation to the question of whether the convictions should be quashed.
07:25 Submissions were received on behalf of Ms Folbig on 16 November 2023 and by the Crown
07:29 on 24 November 2023.
07:33 Neither Ms Folbig nor the Crown sought an oral hearing to supplement their written submissions,
07:38 although the Crown properly pointed out the importance of the principle of open justice.
07:43 In this context, we note that the only other evidence before the Court, namely the report,
07:49 is a publicly available document accessible on the internet and that the hearing before
07:53 Mr Bathurst that resulted in the report was largely conducted in public and live-streamed.
08:00 The current application differs from other applications to quash a conviction following
08:04 a review, such as O'Connor's case, where there was a controversy between the convicted person
08:10 and the Crown as to whether there should be a new trial or a verdict of acquittal entered
08:14 in the event that the convictions were quashed.
08:18 In light of the written submissions filed on behalf of both Ms Folbig and the Crown,
08:22 which are referred to below or later in these reasons, there was no purpose to be served
08:27 in proceeding to have an oral hearing, although in recognition of the importance of open justice
08:32 and indeed the importance of this case to Ms Folbig and the wide public interest in
08:37 it, these reasons, and not just the orders of the Court, are being delivered orally in
08:43 open court.
08:45 In their written submissions, counsel on behalf of Ms Folbig endorsed and adopted the reasoning
08:49 and conclusions in the report of Mr Bathurst, describing it as authoritative, extensive,
08:54 detailed and persuasive.
08:56 The Crown described the report as comprehensive and thorough, noting that it "explains the
09:02 substantial and extensive body of new scientific evidence that was unknown and could not have
09:07 been known at the time of Ms Folbig's trial 20 years ago".
09:13 The gist of Mr Bathurst's analysis, which led him to conclude that there was reasonable
09:17 doubt as to Ms Folbig's guilt, was contained in the report as follows, and again I quote,
09:23 "At the risk of repetition, I have concluded that there is an identifiable cause of the
09:27 death of Patrick, Sarah and Laura, and that it was more likely that Patrick's acute life-threatening
09:33 event was caused by a neurogenetic disorder rather than suffocation.
09:38 Once that conclusion is reached, any probative force of the coincidence and tendency evidence
09:43 is substantially diminished.
09:44 Further, I have concluded that the relationship Ms Folbig had with her children does not support
09:49 the inference that she killed them.
09:51 Finally, I do not regard the diaries as containing reliable omissions of guilt."
09:57 The reference in this passage to the diaries was a reference to diaries which Ms Folbig
10:02 kept at the time of the deaths of her children.
10:06 These had featured prominently in the original trial.
10:09 In the inquiry before Mr Bathurst's, they were the subject of expert psychiatric and
10:13 psychological evidence.
10:15 Mr Bathurst noted that "none of the psychiatrists or psychologists who expressed opinions for
10:21 the purpose of the inquiry were required to accept that the entries could be treated as
10:26 reliable omissions of guilt."
10:29 Mr Bathurst reached the same conclusion, having closely considered particular entries which
10:33 had previously been said to constitute omissions of guilt in the context of considering the
10:39 diaries as a whole.
10:41 He considered the diary entries to be neutral in determining whether Ms Folbig was or was
10:44 not guilty of the offences for which she was convicted.
10:49 The Crown expressly accepted in its submissions before this Court that "on all of the evidence
10:56 that was available to the inquiry, it was open to Mr Bathurst to make the findings
11:00 set out in the report."
11:03 This statement broadly reflects the position that the Crown had taken in final submissions
11:07 before Mr Bathurst.
11:09 The Crown also submitted that if, upon the Court's own independent assessment of the
11:14 report, it finds that there is now reasonable doubt as to Ms Folbig's guilt, the appropriate
11:19 relief is to quash each of the convictions and enter verdicts of acquittal pursuant to
11:24 section 6(2) of the Criminal Appeal Act.
11:28 Having ourselves reviewed the report, we do so find, for similar reasons, that led Mr
11:32 Bathurst to the same conclusion.
11:35 First and most significantly, the substantial and extensive body of new scientific evidence
11:40 to which the Crown referred in written submissions, and which was before Mr Bathurst and considered
11:45 in the report, substantially diminished any probative force of what had been relied on
11:50 at the original trial as powerful coincidence and tendency evidence.
11:55 Secondly, in relation to the diary entries, it may readily be understood how certain entries
12:01 viewed in isolation had a powerful influence on the original jury in a manner adverse to
12:06 Ms Folbig.
12:08 Viewed in their full context, however, as they must be, and informed by the expert psychological
12:12 and psychiatric expert evidence referred to extensively in the report, and which was not
12:17 before the jury, we agree with Mr Bathurst's conclusion that the diary entries were not
12:22 reliable admissions of guilt.
12:24 Thus, while the verdicts at trial were reasonably open on the evidence then available, there
12:29 is now reasonable doubt as to Ms Folbig's guilt.
12:33 In these circumstances, and as a consequence, it is appropriate that Ms Folbig's conviction
12:39 for the manslaughter of Caleb Folbig, maliciously inflicting grievous bodily harm upon Patrick
12:45 Folbig with intent to do grievous bodily harm, the murder of Patrick Folbig, the murder of
12:50 Sarah Folbig, and the murder of Laura Folbig, be quashed.
12:54 The Court so orders and directs the entry of verdicts of acquittal pursuant to section
12:59 6(2) of the Criminal Appeal Act 1912.
13:03 The Court will now adjourn.
13:04 Thank you.
13:04 [Gavel]
13:05 [BLANK_AUDIO]