What is a pardon in Australia? The Case of Kathleen Folbigg

Renewed calls have been ignited for Kathleen Folbigg, the women once branded ‘Australia’s worst female serial killer’, to be released following the Director of Public Prosecutions accepting new evidence which casts doubt on her guilt.

Folbigg was found guilty of killing her four children, Patrick, Laura, Caleb, and Sarah Folbigg.

She was 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.

Folbigg, now 55-years-old, has five years remaining of her non-parole period which expires on 21 April 2028. She was originally sentenced to a maximum of 40 years imprisonment with a 30-year non-parole period.

The reduction in sentence occurred after Folbigg appealed her convictions to the Court of Criminal Appeal. The Court of Criminal Appeal rejected her appeal against the convictions, however reduced the sentence.

Originally, an inquiry was ordered by the NSW Governor in 2018 into Folbigg’s convictions.

However, this inquiry concluded that the evidence as a whole reinforced her guilt.

NSW District Court Chief Judge Reg Blanch, KC noted at the time: “the only conclusion reasonably open is that somebody intentionally caused harm to the children, and smothering was the obvious method. The evidence pointed to no person other than Ms Folbigg.”

A second inquiry was ordered in May 2022, which was set to specifically examine: ‘evidence that a genetic variant … identified in DNA samples from Sarah Folbigg and Laura Folbigg has biophysical and functional consequences that may cause cardiac arrythmias and sudden unexpected death in young children.’

This was due to new research, published in March 2021, which was after the previous inquiry’s conclusion.

The new evidence presented was regarding a rare genetic variant, ‘CALM2-G114R’, which was found in Folbigg and her two daughters, Sarah and Laura.

Cardiology and genetic experts have found that Sarah and Laura’s deaths may have been caused by this genetic variant, which impacts calcium-binding calmodulin protein.

Researchers have determined that this gene mutation leads to sudden death in infants, due to how it causes arrhythmias (irregular heart rhythms).

Evidence was also heard at the inquiry, by Federal independent MP Monique Ryan, a senior paediatric neurologist, that Patrick Folbigg likely died after an epileptic seizure.

It was also submitted that the expert evidence regarding the potential natural causes which may have led to the deaths of Patrick, Laura and Sarah may also seek to under Folbigg’s conviction with respect to Caleb’s death.

This was due to the Crown largely utilising tendency and coincidence reasoning with respect to the three other children, in the case against Folbigg over the death of Caleb.

Counsel assisting the second inquiry, led by Sophie Callan SC, ultimately found that the evidence gives rise to reasonable doubt regarding Folbigg’s guilt.

In response, the DPP have also confirmed that they accept counsel’s analysis.

Dean Jordan SC, who appeared as counsel for the DPP, said that the discovery of the gene mutation: “fundamentally changes our understanding of the circumstances leading to the deaths of the girls.”

A report will now be prepared by the Honourable Thomas Frederick Bathurst AC KC which will provide advice to the Governor regarding whether the royal prerogative of mercy should be exercised.

The Attorney-General has declined to comment to media at this stage, stating that the recommendations will be considered once the final report has been submitted.

Discussions have now arisen whether, if ordered, this should be in the form of a free pardon, or an early release on parole.

The inquiries have been ordered by Her Excellency, the Governor of New South Wales, in accordance with section 77 (1)(a) of the Crimes (Appeal and Review) Act 2001 (NSW).

Notably, if Bathurst finds reasonable doubt, he may also refer the case again to the Court of Criminal Appeal to consider whether to quash Folbigg’s convictions.

These processes, being referral to the Court of Criminal Appeal or ordering the royal prerogative of mercy, may occur simultaneously, with counsel assisting the inquiry, Callan SC, ultimately noting how “the processes inherently are different.”

Notably, the royal prerogative of mercy is not a formal recognition of formal innocence or acquittal.

It essentially relieves the effects (i.e., sentence) associated with a conviction, without removing the conviction itself.

What is the Royal Prerogative of Mercy?

The royal prerogative of mercy may take one of four forms being:

1. An unconditional pardon,
2. Commutation (reducing the sentence a less severe one) or a conditional pardon substituting one form of punishment for another,
3. Remission (reducing the length of a sentence without changing its character),
4. Early release on parole.

The ability for the Governor to make a parole order in respect of an offender, when exercising the prerogative of mercy, is now legislated within section 160AD of the Crimes (Administration Of Sentences) Act 1999 (NSW).

This provides that a parole order may be made whether or not the offender is eligible for release on parole.

The royal prerogative of mercy is a measure rarely ordered, coming with stringent conditions to its use, so that such an order does not unduly interfere with the decisions of judicial officers who have previously dealt with the matter.

It is an ‘executive’ action exercisable by the Governor acting on the advice of the Executive Council and the Attorney General, rather then the ‘judiciary’.

It is not a general avenue of appeal, and it must only be exercised where it is necessary in the public interest. Here is more on appeals in NSW.

Each application for the royal prerogative of mercy is called a ‘petition’, with petitioners (whether that be the convicted person or a representative) required to demonstrate ‘rare and exceptional circumstances’ before they can seek for such an order to be made.

In most circumstances, the extraordinary circumstances are those which have occurred after sentencing – this is on the assumption that all matters prior to the sentence being imposed would have been considered by the court.

For those seeking an unconditional pardon, this may include wrongful convictions which have been founded upon unsound forensic or scientific evidence, with this uncovered by new evidence.

It may also include a crime where a third party has later confessed.

Considerations for its other forms include post-sentence assistance with law enforcement, or compassionate grounds including mental illness, disability or severe personal or financial hardship.

Such compassionate grounds must make the continuing imposition of the sentence severely disproportionate to the actual offence.

This power derives from the grant of power to the Executive in section 61 of the Commonwealth Constitution.

It originated in England and is traced back to the Monarch’s power to grant mercy to a convicted person, in an attempt to rectify a miscarriage of justice.

Generally, the process in obtaining the Royal Prerogative of Mercy is as follows:

A petitioner, or their representative, may submit a written petition to the Governor of New South Wales, which details why the royal prerogative of mercy should be exercised. This will include detailed information about the case, with all relevant information.

Government House will then refer the matter to the Attorney General to consider the petition.

The Attorney General will be assisted by the Department of Communities and Justice, and during this process, the petitioner may be asked to provide further information which may be verified with the Police or the Courts. It is also likely that the Attorney General will seek legal advice regarding the petition.

Notably, aside from verifying information contained in the petition, the Attorney General has no power or role in investigating issues raised.

At this stage, the Attorney General may advise a petitioner to pursue other avenues, if these options exist, including appeal avenues via the courts. This is because the prerogative is only available as a matter of last resort.

Once this has been considered, the Attorney General will make a recommendation to the Governor.

The Governor will then consider the provided recommendation and make their own decision, with the petitioner ultimately notified of the outcome.

Other options for review of a conviction or sentence?

Besides appeal mechanisms with the court, there is also a statutory (via legislation) power which also provides the Governor with powers to review a conviction or sentence.

In accordance with section 76 of the Crimes (Appeal and Review) Act 2001 (NSW), a person (or someone on their behalf) may petition the Governor to review their conviction or sentence.

As outlined in section 77, after consideration of a petition:

1. The Governor may direct that an inquiry be conducted by a judicial officer into the conviction or sentence,
2. The Attorney General may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912 (NSW), or
3. The Attorney General may request the Court of Criminal Appeal to give an opinion on any point arising in the case.

Such action will only be taken if the Governor deems that it appears that there is a doubt or question as to the convicted person’s guilt, with respect to any part of the evidence in the case or mitigating circumstances.

The Governor or the Attorney General may refuse to consider or otherwise deal with a petition.

This may be due to it being fully dealt with in the judicial proceedings (including within appeals), or where it has previously been dealt with under this mechanism or under the previous review provisions.

The Governor or the Attorney General must deem that they are not satisfied that there are special facts or special circumstances that justify the taking of further action beyond this.

They may also seek to delay consideration of a petition if the time within which an appeal may be made (including an application for leave to appeal) is yet to expire, the matter is currently the subject of appeal proceedings that are yet to be finally determined, or the petition fails to disclose sufficient information to enable the conviction or sentence to be properly considered.

The Attorney General must create a report to be given to the registrar of the Criminal Division of the Supreme Court as to any action taken by the Governor or the Attorney General.

If an inquiry is ordered, upon its completion, the judicial officer must write a report on its results (incorporating a transcript of the depositions given) to be sent to the Governor.

The Governor will then essentially deal with the matter as they see fit, deeming what is just.

The judicial officer may also refer the matter (together with a copy of the report) to the Court of Criminal Appeal for consideration regarding whether the conviction should be quashed, or the sentence reviewed.

However, this will only occur where the judicial officer is of the opinion that there is a reasonable doubt as to the guilt of the convicted person, or that there is a reasonable doubt as to any matter that may have affected the nature or severity of the sentence imposed.

Applications under section 76 of the Crimes (Appeal and Review) Act 2001 (NSW) are a remedy specific to NSW with each state having its own mechanism.

The Department of Communities and Justice publishes summaries of applications made for the royal prerogative of mercy or its statutory equivalent within section 76, each year in NSW.

In 2022, 10 petitions were declined, whereas 2 were granted for the purposes of a review.

One contained details which were unable to be published, whereas the other was the matter of Folbigg in which the Governor ordered the relevant second inquiry on 18 May 2022, upon the grounds submitted of ‘genetics evidence’ and the ‘entirety of the evidence’ being unsound.

In 2021, no reviews or petitions were granted.

By Poppy Morandin.

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