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Kathleen Folbigg has been pardoned and released from custody, after serving 20 years in jail of a minimum 25-year sentence over the deaths of her four children.

This significant development has arisen following a decision by the New South Wales Attorney General, Michael Daley which is based upon summary findings prepared by the Honourable Thomas Frederick Bathurst AC KC who led a recent inquiry into Folbigg’s convictions.

Folbigg was originally convicted of three counts of murder (Laura, Patrick, and Sarah) and one of manslaughter (Caleb) in 2003, with the Crown’s case being that she smothered the children.

The children were aged between 19 days and 19 months at their deaths, which occurred between 1989 and 1999 in the New South Wales Hunter Valley.

The recent inquiry into the matter ultimately concluded with the Director of Public Prosecutions accepting Sophie Callan SC’s analysis that new evidence gives rise to reasonable doubt regarding Folbigg’s guilt.

The summary findings prepared by Bathurst relayed to the Attorney General detailed that he had reached: “a firm view that there was reasonable doubt as to the guilt of Ms Folbigg for each of the offences for which she was originally tried.”

This led to Daley immediately recommending to the NSW Governor General that Folbigg should be unconditionally pardoned and released immediately.

She has now been released from Clarence Correctional Centre, shortly after 11am on 5 June 2023.

Whilst he did not comment on whether he believed Folbigg was innocent, Daley noted: “we’ve got four little bubbas who are dead. We have a husband and wife who lost each other, a woman who spent 20 years in jail and a family that never had a chance… You’d not be human if you didn’t feel something about that.”

In this findings, Bathurst found that there was a reasonable possibility that three of the children died of natural causes.

In the cases of Laura and Sarah, there was a reasonable possibility that their deaths were caused by a genetic mutation known as CALM2-G114R which impacts calcium-binding calmodulin protein and can lead to cardiac arrythmias and sudden unexpected death in young children.

It was also noted that there was evidence that Patrick may have died after an epileptic seizure.

In light of these findings, when considering Folbigg’s conviction of manslaughter over Caleb’s death, Bathurst found that: “the coincidence and tendency evidence which was central to the (2003) Crown case falls away.”

Ultimately, he was “unable to accept … the proposition that Ms Folbigg was anything but a caring mother for her children.”

In relation to Folbigg’s diaries, which were deemed central to her 2003 convictions, Bathurst now characterised their contents as written by a grieving mother who blamed herself for the deaths of her children, rather than admissions that she had harmed them.

A final report will now be prepared by Bathurst, with it estimated to be released within weeks.

Whilst her supporters have celebrated this outcome, further steps to be taken have been identified.

Notably, the unconditional pardon does not take away her convictions. It essentially means that she is not required to serve the remainder of a sentence.

In order for the convictions to be formally quashed, Bathurst will need to refer the matter to the Court of Criminal Appeal in his final report. If this is done, the matter will then become subject to appeal proceedings before this Court.

A further consideration which NSW Greens’ justice spokesperson, Sue Higginson has identified that Folbigg will be pursuing is compensation.

“All strength to Kathleen as she seeks compensation, as she seeks as ex-gratia payment of some sort, as she walks out after 20 years and a week-and-a-half since she was thrown into prison,” commented Higginson.

In Australia, a person who is wrongfully convicted of a crime is not automatically entitled to compensation, unlike in many jurisdictions overseas.

Options available include launching a civil action and suing the government or police in the intentional torts of negligence, false imprisonment, or malicious prosecution.

However, it has been identified that a more likely outcome in this circumstance may be an ‘ex-gratia payment’ from the New South Wales government.

This has commonly been identified as an ‘easier’ route, due to the notoriously difficult process in proving a tortious claim.

In this case, an ‘ex-gratia payment’ is a one-off payment for someone affected by a wrongful conviction, which a state or territory government may choose to provide on its own accord or as a result of a request by a party.

Such a payment is made purely at the discretion of the territory or state Attorney General, and a decision to refuse to make a payment is not reviewable in any way.

There is no exact guideline for determining how much such a payment may be, with a broad ambit of discretion afforded.

In Australia, a notable case in which an ex-gratia payment was awarded is that of Lindy and Michael Chamberlain who received $1.3 million from the Northern Territory government in 1992, over their wrongful convictions related to the death of their nine-week-old baby Azaria.

Lindy Chamberlain was convicted of murder, whereas Michael was found guilty of being an accessory after the fact in 1982.

Following appeal attempts and a Royal Commission, the Chamberlains were formally pardoned in 1987. Their convictions were then overturned by the NT Court of Criminal Appeal in 1988.

Over the course of the proceedings, Lindy was imprisoned for approximately four years, and she ultimately received $900,000 whereas Michael received $400,000 as ex gratia payments.

Whilst Daley was questioned over what compensation Folbigg may receive, he ultimately noted that any comments on this topic would be “getting well in advance of today’s story.”

Published on 12/06/2023

AUTHOR Poppy Morandin

Poppy Morandin is the managing law clerk and an integral part of the team of criminal lawyers at Criminal Defence Lawyers Australia . She's also a part of CDLA's content article production team. Poppy is passionate about law reform and criminal justice.

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