Folbigg v Attorney General of New South Wales

[2021] NSWCA 44

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Folbigg v Attorney General of New South Wales [2021] NSWCA 44

Hearing dates:

15, 16 February 2021

Decision date:

24 March 2021

Before:

Basten JA; Leeming JA; Brereton JA

Decision:

(1)   Dismiss the further amended summons seeking judicial review of the report of the judicial officer.

(2)   Order that the applicant pay the Attorney’s costs of the proceedings in this Court.

Catchwords:

ADMINISTRATIVE LAW – judicial review – inquiry into criminal convictions – challenge to opinion that no reasonable doubt attended the convictions – whether opinion arbitrary, capricious or irrational – whether relevant material disregarded

ADMINISTRATIVE LAW – procedural fairness – improperly rejecting evidence – test of relevance for purposes of inquiry – failure to consider submissions – failure to consider good character evidence – failing to reopen inquiry

CRIMINAL LAW – post-appeal review – petition to Governor – doubt or question as to person’s guilt – judicial officer appointed to conduct inquiry – legal test to be applied by judicial officer – “reasonable doubt as to guilt of convicted person” – Crimes (Appeal and Review) Act 2001 (NSW), s 82(2)(a)

JUDICIAL REVIEW – justiciability – challenge to opinion of judicial officer holding inquiry under Crimes (Appeal and Review) Act 2001 (NSW), Pt 7 – whether exercise of prerogative of mercy – whether decisions of intermediate courts of appeal should be followed – whether procedure under Criminal Code (Qld), s 672A, distinguishable

Legislation Cited:

Crimes (Appeal and Review) Act 2001 (NSW), ss 76, 77, 82, 114; Pt 7

Criminal Code (Qld), s 672A

Judicial Review Act 1991 (Qld), s 4

Judiciary Act 1903 (Cth), s 68

Sentencing Act 1994 (WA), s 140

Stronger Communities Legislation Amendment (Courts and Civil) Act 2020 (NSW), Sch 1.13[1]

Supreme Court Act 1970 (NSW), s 69

Cases Cited:

AAI Ltd t/as AAMI v Chan [2021] NSWCA 19

Attorney-General (Cth) v Ogawa [2020] FCAFC 180; 384 ALR 474

Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353; [1949] HCA 26

Buck v Bavone (1976) 135 CLR 110; [1976] HCA 24

Craig v State of South Australia (1995) 184 CLR 163; [1995] HCA 58

Folbigg v R [2007] NSWCCA 371

Folbigg v The Queen [2005] HCATrans 657

Holzinger v Attorney-General of Queensland [2020] QCA 165; 385 ALR 158

Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34

Mallard v The Queen (2005) 224 CLR 125; [2005] HCA 68

Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21

R v Cannings [2004] EWCA Crim 1

R v Clark [2003] EWCA Crim 1020

R v Folbigg [2002] NSWSC 1127

R v Folbigg [2003] NSWCCA 17

Regina v Folbigg [2005] NSWCCA 23; 152 A Crim R 35

Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57

Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56

Solomons v District Court (NSW) (2002) 211 CLR 119; [2002] HCA 47

The King v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407; [1944] HCA 42

Texts Cited:

Dominick J DiMaio and Vincent V J DiMaio, Forensic Pathology (CRC Press, 1st ed, 1989) 503

Jhodie R Duncan and Roger W Byard eds, SIDS – Sudden Infant and Early Childhood Death: The Past, the Present and the Future (Univ of Adelaide Press, 2018), Ch 2, Duncan and Byard, “Sudden Infant Death Syndrome: An Overview”

Crotti L et al, Calmodulin Mutations Associated with Recurrent Cardiac Arrest in Infants”, Circulation 2013: 127(9): 1009-1017

Crotti L et al, Calmodulin mutations and life-threatening cardiac arrythmias: Insights from the International Calmodulinopathy Registry Eur Heart J 2019; 40, 2964-75

Report of the Inquiry into the Convictions of Kathleen Megan Folbigg, July 2019

Report of the Inquiry into the Convictions of Timothy Edward Anderson, Paul Shawn Alister and Ross Anthony Dunn (14 May 1985)

Roy Meadow (ed), ABC of Child Abuse (BMJ Publishing, 3rd ed, 1997)

Category:

Principal judgment

Parties:

Kathleen Megan Folbigg (Applicant)
Attorney General of New South Wales (First Respondent)
The Hon Reginald Oliver Blanch AM QC (Second Respondent)

Representation:

Counsel:
Mr J Morris SC / Mr T Ower (Applicant)
Mr S Free SC / Mr B Lim (First Respondent)

Solicitors:
Cardillo Gray Partners (Applicant)
Crown Solicitor’s Office (First and Second Respondents)

File Number(s):

2019/329579

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant was convicted and sentenced in 2003 for the manslaughter of her first child, the murder of her next three children, and the infliction of grievous bodily harm upon her second child. In 2018, the applicant petitioned the Governor seeking an inquiry into her convictions, on the basis that there was material which raised a reasonable doubt as to her guilt. The Governor arranged for an inquiry to be conducted by the Hon R O Blanch AM QC, who compiled a report which was delivered to the Governor on 22 July 2019.

The primary focus of the inquiry was the investigation of fresh medical evidence, including genetic and immunological evidence which, it was submitted, suggested plausible natural causes of death in each of the children. It was also submitted that this evidence, viewed in conjunction with the discrediting of “Meadow’s law” and with a plausible innocent reading of the applicant’s diaries, showed a reasonable doubt as to the guilt of the applicant. The inquiry concluded that there was no reasonable doubt as to her guilt.

The applicant commenced proceedings seeking judicial review of this determination. The issues on appeal before this Court were whether:

1. the judicial officer had failed to apply the correct legal test; and

whether any of the following procedural steps involved a denial of procedural fairness:

1. failing to receive into evidence parts of listening device transcripts of conversations between the applicant and her husband;

2. failing to receive into evidence a report of Prof Goldwater without redactions;

3. failing to receive into evidence a report of Prof Clancy without redactions;

4. redacting the listening device transcripts and the reports of Profs Goldwater and Clancy before receiving them into evidence;

5. failing to reopen the inquiry after receipt of material after the evidence had closed from Profs Vinuesa and Schwartz;

6. failing to consider a submission by Prof Clancy;

7. failing to consider evidence as to the good character of the plaintiff contained in (i) statements by lay witnesses and (ii) the report of Dr Diamond;

8. failing to address the applicant’s submissions as to the interpretation of her diaries;

9. constraining the admission of evidence of context in relation to the diaries; and

10. the process for redacting documentary evidence.

The Court held:

Issue (1) – application of the correct legal test

1. The judicial officer correctly identified that the function of the inquiry was different from that of a judge and jury in a criminal retrial, and was to consider the evidence at the trial and the conduct of the trial, in light of the further evidence and submissions received in the inquiry, in order to determine whether, overall, there was a reasonable doubt as to the applicant’s guilt or as to any matter that may have affected the nature or severity of her sentence: [96]-[98].

2. No error of law was demonstrated by the manner in which the judicial officer assessed the evidence in order to consider whether he was satisfied there was reasonable doubt as to the guilt of the applicant in respect of any of the convictions: [101]-[104].

Shepherd v The Queen (1990) 170 CLR 573 at 579; [1990] HCA 56 applied

In holding that none of issues (2)-(11) involved a denial of procedural fairness:

Issue (2) – failing to accept listening device transcripts

1. The proceeding before the judicial officer was an inquiry, not a trial, and the rules of evidence were not applicable. The transcript of the conversation between the applicant and her husband revealed him saying how he could have killed the children. The redactions reflected a conclusion as to relevance. The redacted material could only have been relevant to support a possible inference that the children were murdered not by the applicant but by her husband, which was not reasonably available from the transcript as a whole and was not put forward by any party to the inquiry: [106]-[109].

Issues (3) and (4) – failing to accept the tender of the unredacted reports of Profs Goldwater and Clancy

1. The unredacted reports were never tendered and so were not rejected. The applicant had the opportunity to challenge the redactions during the inquiry, or tender further parts of the reports, but did neither. In the absence of evidence that no application to tender the redacted material would have been entertained, there was no denial of procedural fairness: [113]; [114]-[116].

Issue (5) – redacting reports by Profs Goldwater and Clancy prior to accepting their tender

1. This ground was effectively a complaint about the process for tendering evidence adopted by counsel assisting. No such complaint was raised with the judicial officer and it provided no basis for asserting procedural unfairness: [115]; [117].

Issue (6) – failing to reopen the inquiry after receipt of late material from Profs Vinuesa and Schwartz

1. The inquiry was reopened after receiving additional evidence from Prof Vinuesa (which included a letter to her from Prof Schwartz), all of which was considered, as was further material supplied by her and further submissions obtained from both parties. The judicial officer considered whether it was appropriate to have a further oral hearing and determined that it was not. Procedural fairness did not require that there be a further hearing at which witnesses would be recalled: [132]; [134]-[136].

Issue (7) – failing to consider the submission of Prof Clancy

1. The judicial officer was entitled to establish procedures for dealing with the significant volume of expert evidence which needed to be addressed. Prof Clancy was not a party to the inquiry, and therefore had no right to expect that an unsolicited “submission” would be considered: [140]; [141].

2. Absent a grant of leave to a party to file a document otherwise than in accordance with the judicial officer’s directions, there was no unfairness in disregarding the document, if that is what happened: [140]; [143].

Issue (8) – failing to consider evidence as to the good character of the plaintiff contained in (i) statements by lay witnesses and (ii) the report of Dr Diamond

1. The applicant’s submissions did not identify the good character evidence, nor did they refer to any submissions made to the inquiry as to good character evidence. However, the Report contained summaries of the evidence given by members of the family, neighbours and friends, much of which was either neutral or favourable to the applicant: [148].

2. The report of Dr Diamond was extensively considered by the judicial officer; the Report contained references to it in at least a dozen paragraphs and numerous footnotes: [144]; [145].

3. As the factual propositions underlying this ground were without foundation, this ground was not established: [149].

Issue (9) – failing to address the applicant’s submissions as to the interpretation of her diaries

1. Express reference was made in the Report to Ms Folbigg’s sworn evidence about the interpretation of the diaries, and a complaint that she had been denied the opportunity to provide “context” evidence was specifically addressed and rejected with reasons given: [153]; [154].

2. If counsel assisting did not tender all the material which the applicant thought relevant, the applicant could and did, seek and obtain the inclusion of further material. If other material had been rejected, she could have raised the issue at the inquiry and proffered further material. Neither step was taken: [153].

Issue (10) – constraining the admission of evidence of context in relation to the diaries

1. This was an issue raised at the inquiry and expressly dealt with in the Report under the heading “Findings regarding procedural fairness”. The written submissions for the applicant did not address these passages in the Report, and in the absence of any submission that they were inaccurate, this ground could not be sustained: [155]; [156].

Issue (11) – the method of redacting documentary evidence

1. Any concern that the process of redaction adopted by counsel assisting was procedurally unfair was a matter which should have been raised with the judicial officer during the course of the inquiry. The applicant was not deprived of any opportunity to raise the completeness of the evidence with the judicial officer and obtain rulings as she or her legal representatives thought appropriate: [158]; [159].

Judgment

1. THE COURT: The applicant, Kathleen Megan Folbigg, was convicted of offences with respect to the deaths of her four children. With respect to the first, Caleb, she was convicted of manslaughter. With respect to the next three children, Patrick, Sarah and Laura, she was convicted of the murder of each child. Further, with respect to Patrick, who, in the weeks before his death suffered an “apparent life-threatening event” (ALTE) the applicant was convicted of assault causing grievous bodily harm. She was duly sentenced to imprisonment and appealed against both her convictions and sentence. The appeal against the convictions was dismissed; the appeal against sentence was allowed and her sentence was reduced to imprisonment with a non-parole period of 25 years and an overall sentence of 30 years. [1] An application for special leave to appeal to the High Court was dismissed. [2]

   1. Regina v Folbigg [2005] NSWCCA 23; 152 A Crim R 35.

   2. Folbigg v The Queen [2005] HCATrans 657.

2. In 2018, the applicant petitioned the Governor seeking an inquiry into her convictions and her sentence. She said there was material which raised a reasonable doubt as to her guilt and as to the appropriateness of the sentence. The petition was made under s 76 of the Crimes (Appeal and Review) Act 2001 (NSW) (“Appeal and Review Act”). Having considered the petition, the Governor arranged for the Hon R O Blanch AM QC, a former judge of this Court and former Chief Judge of the District Court, to conduct an inquiry into the matters raised by the petition. (Adopting the terminology of the Appeal and Review Act, it is convenient to refer to him as “the judicial officer”.)

3. On 22 July 2019, the judicial officer sent his Report to the Governor in accordance with s 82(1)(a) of the Appeal and Review Act. The Report stated that he had not formed an opinion that there was a reasonable doubt as to the guilt of the applicant, nor as to any matter that may have affected the nature or severity of the applicant’s sentence.

4. On 21 October 2019 solicitors for the applicant filed a summons in the Common Law Division seeking review of the determination of the judicial officer in the supervisory jurisdiction of the Court under s 69 of the Supreme Court Act 1970 (NSW). At the time the summons was filed, the review jurisdiction conferred on the Court of Appeal depended on the decision-maker being, relevantly for present purposes, a judge. The judicial officer was a former judge. However, between the time the summons was filed and the hearing, the Supreme Court Act was amended so that the jurisdiction was conferred upon the Court of Appeal with respect to former judges. [3] The parties accepted that the summons should be transferred to this Court. It was listed before the Court of Appeal for hearing commencing on Monday, 15 February 2021.

   3. Stronger Communities Legislation Amendment (Courts and Civil) Act 2020 (NSW), Sch 1.13[1].

5. It is now some 18 years since her conviction and the applicant has served two-thirds of her non-parole period. It is, of course, desirable that the proceedings in this Court be disposed of with expedition. However, some explanation should be given of the significant lapse of time since her conviction. It is not the fault of any party or institution involved in the case. Rather, it is the result of a system of review which may be engaged at any time where doubts arise as to the soundness of a criminal conviction or sentence. The Governor’s Direction to the judicial officer identified the convictions and stated that the “doubt or question concerns evidence as to the incidence of reported deaths of three or more infants in the same family attributed to unidentified natural causes”. [4] That concern arose in large part as a result of medical and scientific developments post-dating the applicant’s trial.

   4. Report of the Inquiry into the convictions of Kathleen Megan Folbigg, July 2019 (“Report”), Annexure A.

6. Although the applicant’s legal advisors had been able to obtain some material supporting the petition, further expert opinions were sought subsequent to the giving of the direction in August 2018 and reports were obtained by the Crown Solicitor’s Office (assisting the inquiry) from nine medical and scientific experts. The applicant obtained reports from 10 experts. Many of the experts gave evidence at the inquiry, as did the applicant. Directions as to the scope of the inquiry and procedural steps to be taken occurred on four occasions between 25 October 2018 and 11 February 2019. At the first directions hearing, counsel assisting submitted that the scope of the inquiry should be expanded to include:

(a)   any new research or advances in medical science relevant to the causes of death of each child and the cause of the apparent or acute life threatening event (“ALTE”) in respect of Patrick;

(b)   expert medical opinion as to the causes of death of each child and the cause of the ALTE in respect of Patrick in light of any relevant new research or advances in medical science;

(c)   any new research or literature concerning the incidence of reported deaths of three or more infants in the same family attributed to unidentified natural causes; and

(d)   any other related expert medical evidence. [5]

5. Report, Ch 1, par 21.

7. The judicial officer held hearings between 18 March 2019 and 1 May 2019 when the evidence concluded. Some six weeks after the conclusion of the evidence, the applicant sought to reopen the inquiry to tender further expert evidence. The final document provided to the inquiry was supplied on 28 June 2019. The basis of the reopening application will be dealt with below. It is a great credit to those responsible for conducting the inquiry that by 22 July 2019 the Report, the substance of which exceeded 500 pages, was able to be presented to the Governor.

Nature of judicial review proceeding

8. The circumstances involving the deaths of four children and the imprisonment of their mother, in three cases having been convicted of their murders, were undoubtedly tragic and apt to arouse a high level of interest in the community. Roughly contemporaneously, there were two cases in the United Kingdom involving mothers convicted in respect of the deaths of children in which the convictions were set aside on the basis that expert evidence thought to have weighed heavily with the jury was either doubted or shown to be wrong. [6] There was an understandable concern that a similar injustice may have been done to the applicant.

   6. R v Clark [2003] EWCA Crim 1020; R v Cannings [2004] EWCA Crim 1; see also cases referred to in the Report, Ch 4, pars 244-261.

9. The thoroughness of the inquiry undertaken in 2018-2019 was attested to by the careful and comprehensive Report which resulted. The conclusion of the Report was that there had been no miscarriage of justice in this case. That conclusion cannot be overturned by this Court unless it was attended by legal error. The function of this Court is to ensure that the proper boundaries of the process were not exceeded and that the inquiry did not misconceive or otherwise fail to carry out the obligation of investigation and inquiry to the limits required by the law. The nature of the legal errors asserted by the applicant and the proper limits of judicial review will be considered further below. However, unless a relevant and material legal error could be identified, this Court is neither required nor permitted to intervene. It is no part of this Court’s function of review to form its own opinion as to whether a reasonable doubt attended the convictions of the applicant, and even if it were to form such a view it would not be entitled to give effect to it. The limited scope of this Court’s function is reflected in the fact that the review of the extensive inquiry was completed in two days of oral argument. Although there were both written submissions and oral submissions, it is apparent that the Court was not taken through each page of the Report, let alone the underlying evidential material. Rather, counsel for both the applicant and the Attorney General, correctly focused upon what could demonstrate legal error on the part of the judicial officer. Nevertheless, the Court has had the opportunity to read and consider the whole of the Report. For reasons explained below, the application must be dismissed.

Issues for consideration

Nature of judicial officer’s function

10. The grounds upon which this Court can undertake judicial review depend in part upon the nature of the function being exercised by the decision-maker. Thus, review of decisions made by a court may be more constrained than review of administrative decisions, because a judge exercising judicial power will have jurisdiction to decide legal issues necessary for the determination of a case. That is not necessarily true with respect to other decision-makers.

11. For present purposes, it is not necessary to characterise the functions exercised by the judicial officer conducting the inquiry as either “judicial” or “administrative”: that dichotomy is probably inappropriate in this context. [7]

    7. Craig v State of South Australia (1995) 184 CLR 163, 179; [1995] HCA 58.

Grounds of review

12. The supervisory jurisdiction of this Court under s 69 of the Supreme Court Act is available to correct jurisdictional error, or error of law on the face of the record; it is not available to review exercises in fact-finding, or exercises of discretion vested by statute in the judicial officer, except to the extent that error in one of the two categories identified above is established. [8]

    8. AAI Ltd t/as AAMI v Chan [2021] NSWCA 19 at [47] (Leeming JA).

13. There is no precise definition of what may constitute jurisdictional error. It depends upon the identification of the boundaries of the statutory power conferred on the decision-maker. [9]

    9. Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 at [23]-[31] (Kiefel CJ, Gageler and Keane JJ).

14. The second category of grounds, error of law on the face of the record, involves two components. The concept of legal error again may be separated into two parts. One part reflects the concept of jurisdictional error, namely identification of the boundaries of the power conferred. Such an error is reviewable regardless of whether or not it appears “on the face of the record”. However, especially with inferior courts, there is a second component. Whereas a court will be acting within jurisdiction in determining legal issues, if it mistakes the law it is applying, there will be an error of law within jurisdiction. Such an error, so long as it appears “on the face of the record”, will be amenable to review in the supervisory jurisdiction of this Court. Under the general law, the record was limited, in most cases, to the documents which engaged the jurisdiction of the tribunal and its formal order disposing of the matter before it. [10] At least in the case of tribunals and courts, s 69(4) of the Supreme Court Act extends the record to include reasons given by the tribunal for its order. It was common ground between the parties that the Report prepared by the judicial officer was part of the record and could be examined to determine if it demonstrated error of law. While inquiry before the judicial officer was not a proceeding in a court, it was accepted that he formed a “tribunal” for the purposes of s 69(4). However, it should also be assumed that the judicial officer had no authority to resolve legal questions erroneously. Thus, any material legal error is likely to be a jurisdictional error and is reviewable by this Court.

    10. Craig at 180-182.

Subject of review

15. There was a degree of ambivalence on the part of the applicant as to what precisely was the determination or decision to be reviewed. The summons seeking judicial review sought an order “quashing the report” and, in the alternative, a declaration that “the findings contained in the report” were legally flawed.

16. Section 82 of the Appeal and Review Act requires that, on completion of an inquiry, the judicial officer must “cause a report on the results of the inquiry” to be sent to the Governor. No doubt, if the judicial officer failed to take the step of sending a report to the Governor, a mandatory injunction could be obtained directing the officer to take that step. Further, the language of s 82(1) may be understood as implying that a written document must be prepared in the form of a “report”. If no such document is prepared, again it may be possible to obtain a mandatory order that it be prepared. Neither of those issues arises in the present case. There is no suggestion that the document in fact delivered to the Governor was not a “report” satisfying the requirements of s 82(1).

17. There are two possible ways of understanding the nature of the relief sought in the present proceeding. At a higher level of generality, it may be understood as a claim that the judicial officer has not completed an inquiry in accordance with law, so that the purported report does not satisfy the terms of s 82(1) as a report prepared on completion of a valid inquiry. Alternatively, and more precisely having regard to the consequences for the applicant, the relief sought is directed to the opinion expressed by the judicial officer that he was not satisfied that there was a reasonable doubt as to the guilt of the applicant. Indeed, it is that conclusion, and the intermediate findings and the reasoning of the judicial officer on which the opinion is based, that constitute the gravamen of the challenge. The latter, more particular, understanding of the nature of the claim is to be preferred, because it allows the review to focus on the scope of the available challenges.

18. The fact that the case turns on a review of an opinion formed by the judicial officer has two consequences. First, it provides a basis for identifying the legal limits which constrain the formation of such an opinion; secondly, this Court has no power to form such an opinion for itself. The opinion-forming function is vested by statute in the judicial officer appointed to conduct the inquiry, and no one else.

19. The legal constraints on powers to form opinions were helpfully identified by Latham CJ in The King v Connell; Ex parte Hetton Bellbird Collieries Ltd in the following terms: [11]

“[W]here the existence of a particular opinion is made a condition of the exercise of power, legislation conferring the power is treated as referring to an opinion which is such that it can be formed by a reasonable man who correctly understands the meaning of the law under which he acts. If it is shown that the opinion actually formed is not an opinion of this character, then the necessary opinion does not exist.

…

It should be emphasised that the application of the principle now under discussion does not mean that the court substitutes its opinion for the opinion of the person or authority in question. What the court does do is to inquire whether the opinion required by the relevant legislative provision has really been formed. If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed. In that event the basis for the exercise of power is absent, just as if it were shown that the opinion was arbitrary, capricious, irrational, or not bona fide.”

11. (1944) 69 CLR 407 at 430, 432; [1944] HCA 42.

20. These passages were relied on as forming the basis of the supervisory jurisdiction with respect to the review of powers conditioned upon the formation of an opinion by the decision-maker by Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu. [12] Three propositions may be derived from this analysis.

    12. (1999) 197 CLR 611; [1999] HCA 21 at [133].

21. First, the decision-maker must identify the legal principle to be applied. If the relevant principle has been wrongly stated in a material respect, the court may intervene; if the principle has been correctly identified, as in the present case, it will be necessary to establish that the principle in fact applied was not that correctly identified. That may be apparent from the reasoning of the decision-maker, or may be the only proper inference from the decision itself in the light of the evidence available to the decision-maker. [13]

    13. Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360 (Dixon J); [1949] HCA 26.

22. Secondly, implicit in the proposition that the statute cannot have intended that the opinion be arbitrary, capricious or irrational, is the conclusion that it must be reached as a result of fair procedures. That approach was made explicit by the High Court in Re Refugee Review Tribunal; Ex parte Aala. [14]

    14. (2000) 204 CLR 82; [2000] HCA 57.

23. Thirdly, if it is possible, on the basis of the material available to the decision-maker to characterise the opinion in fact formed as arbitrary or capricious, or manifestly unreasonable, then the opinion may be held to be beyond power. Although Latham CJ did not use the language of unreasonableness, as opposed to irrationality, Gibbs J in Buck v Bavone [15] stated that the decision could be set aside if it appeared to the court to be “so unreasonable that no reasonable authority could properly have arrived at it.” One way of looking at that test is to infer, consistently with the second limb of the first proposition set out above, that the correct principles cannot have been applied.

    15. (1976) 135 CLR 110 at 118; [1976] HCA 24.

24. With those general principles in mind, it is convenient to identify the grounds alleged by the applicant as the basis for challenging the validity of the Report and the findings underpinning the judicial officer’s conclusion. So far as they could be distilled from the summons seeking judicial review, the grounds fell into two categories. First, it was alleged that the judicial officer failed to apply “the correct legal test”. This ground constituted the focus of the argument presented in this Court. The form the argument took will be identified below.

25. The second set of issues was divided into the categories of “jurisdictional error” and denial of “procedural fairness”. The division was unnecessary: not only is procedural unfairness a category of jurisdictional error, but all of the errors alleged were in effect procedural errors. Further, there were various amendments made to the list of errors both prior to and in the course of the hearing. A convenient course is to list the procedural errors ultimately relied upon, putting to one side the form of the document provided to the Court:

1. failing to accept the tender of the listening device transcripts of Craig Folbigg;

2. failing to accept the tender of the Goldwater report unredacted;

3. failing to accept the tender of the Prof Clancy report unredacted;

4. redacting parts of all the documents referred to in paragraphs (i) – (iii) above prior to accepting their tender;

5. failing to re-open the inquiry after the receipt of further material from Prof Schwartz and Prof Vinuesa;

6. failing to reconsider the whole of the genetics evidence after the receipt of the further material from Prof Schwartz and Prof Vinuesa;

7. alternatively, rather than reconsidering the whole of the genetics evidence after the receipt of the further material from Prof Schwartz and Prof Vinuesa, proceeding to publish his findings that were formulated prior to the receipt of that material and publishing an addendum purporting to address that evidence;

8. failing to consider the submission of Prof Clancy provided to the inquiry;

9. failing to consider evidence as to the good character of the applicant including that admitted in the form of lay witness statements and that of Dr Diamond;

10. limiting the scope of Ms Folbigg’s evidence, and failing to address submissions for Ms Folbigg as to the interpretation of her diaries;

11. failing to accord procedural fairness in unilaterally redacting documentary evidence without consultation with those parties given leave to appeal in the inquiry;

12. failing to accord procedural fairness in redacting documentary evidence that was relevant to the statutory function of inquiry.

26. Even this restatement of the issues may be misleading in two respects. First, in identifying each as involving jurisdictional error, it was far from clear why, taken individually, any of the supposed errors would have demonstrated the invalidity of the final opinion, or the inquiry as a whole. [16] Secondly, each of the errors reads as the ground of an appeal from a trial judgment, where rulings have been made on the admissibility of evidence. This factor raises an aspect of the applicant’s case which will need to be addressed in some detail. Central to this issue, and the question of the application of the correct legal test, was a fundamental proposition that the inquiry had to be conducted as an inquiry into the guilt of the applicant by applying the principles governing a criminal trial, but without any constraint on the evidential material.

    16. See further at [160] below.

27. There was a similar related issue which arose in the course of the hearing. The applicant relied in her summons (and her list of issues) on an allegation that the complaints as to the conduct of the inquiry demonstrated “predetermination or apprehended bias” on the part of the judicial officer. This ground was problematic in more than one respect and was abandoned in the course of the hearing. However, the basis of the ground was that the judicial officer had started with the assumption of guilt, because that was the finding of the jury, which was upheld in the Court of Criminal Appeal, and then asked whether he was satisfied by further material that there was a reasonable doubt as to the applicant’s guilt. Although not properly characterised as prejudgment or apprehended bias (or indeed actual bias) the underlying complaint remained alive as part of the legal question as to the correct approach to be applied by the judicial officer in the conduct of the inquiry.

Justiciability

28. The Attorney took no issue with the jurisdiction of this Court to review the determination of the judicial officer made at the completion of the inquiry. Nevertheless the Court should be satisfied that it has the relevant jurisdiction. Whilst this matter was pending in the Court decisions of the Queensland Court of Appeal and the Full Court of the Federal Court of Australia reached a different conclusion with respect to an equivalent Queensland provision. It is, therefore appropriate to state why the Court is content to accept the Attorney’s submission that it has jurisdiction.

29. The first of the two cases, being a judgment handed down on 12 August 2020 by the Queensland Court of Appeal, was Holzinger v Attorney-General of Queensland. [17] The application in Holzinger was made pursuant to s 672A of the Criminal Code (Qld), which provides:

672A   Pardoning power preserved

Nothing in sections 668 to 672 shall affect the pardoning power of the Governor on behalf of Her Majesty, but the Crown Law Officer, on the consideration of any petition for the exercise of the pardoning power having reference to the conviction of any person or to any sentence passed on a convicted person, may—

(a)   refer the whole case to the Court, and the case shall be heard and determined by the Court as in the case of an appeal by a person convicted; or

(b)   if the Crown Law Officer desires the assistance of the Court on any point arising in the case with a view to the determination of the petition, refer that point to the Court for its opinion thereon, and the Court shall consider the point so referred and furnish the Crown Law Officer with its opinion thereon accordingly.

17. [2020] QCA 165; 385 ALR 158 (Sofronoff P, Morrison and Mullins JJA): the application for judicial review was removed into the Court of Appeal – there was no judgment of a single judge.

30. Mr Holzinger’s petition sought a pardon or, alternatively, a referral of his petition to the Court of Appeal. There were two decisions in response to the petition, namely (i) a determination by the Governor not to pardon him, and (ii) a decision by the Attorney-General not to refer his petition to the Court of Appeal. It was the latter decision which was the subject of the application for judicial review. [18]

    18. Holzinger at [13].

31. There are three matters to be addressed in respect of this case. First, although the application was made only under the Judicial Review Act 1991 (Qld), nothing seems to have turned on the question whether a decision not to refer a case was a decision of an administrative character made under an enactment. [19]

    19. Judicial Review Act, s 4; Holzinger at [12].

32. Secondly, the conclusion that the decision of the Attorney-General was not amenable to review was supported on two bases. The first was that a power conferred on the Attorney-General “to commence litigation” was not amenable to judicial review. [20] That reasoning concluded:

“[60]   The real position is not that the Attorney-General must refer a case if it is reasonably arguable; it is that the Attorney-General must not refer a case unless she is satisfied that it is reasonably arguable.”

20. Holzinger at [40] and [58].

33. The second basis of rejection was that the statutory power to refer a case to the Court of Criminal Appeal was an incident of the pardoning power, the exercise of which was itself not amenable to judicial review. [21]

    21. Holzinger at [84], [121].

34. The second case was Attorney-General (Cth) v Ogawa,[22] judgment being delivered by the Full Court of the Federal Court on 28 October 2020. Dr Ogawa, having been convicted in Queensland of offences under the Criminal Code Act 1995 (Cth), invoked the procedures available under s 672A of the Criminal Code (Qld). It was accepted that the powers to be exercised were those of the Governor General and the Commonwealth Attorney General. (It appears to have been assumed that s 68 of the Judiciary Act 1903 (Cth) operated to confer on Commonwealth officers powers to deal with a petition arising under the Queensland Criminal Code. [23] ) Given that the decision in Ogawa on appeal post-dated the Queensland Court of Appeal decision in Holzinger, the Full Court considered itself bound to follow Holzinger with respect to the operation of the Queensland statute. [24]

    22. [2020] FCAFC 180; 384 ALR 474 (Allsop CJ, Flick and Griffiths JJ).

    23. Cf Solomons v District Court (NSW) (2002) 211 CLR 119; [2002] HCA 47 at [23].

    24. Ogawa at [80].

35. There are three aspects of these cases which remove any obligation for this Court to apply them so as to deny jurisdiction to review the determination of the judicial officer. First, the statutory scheme under the Appeal and Review Act is similar to, but not identical with, that found in s 672A of the Criminal Code (Qld). The Queensland section refers to a “petition for the exercise of the pardoning power”, as do equivalent provisions elsewhere in Australia). Rather, s 76 of the Appeal and Review Act, dealing with petitions to the Governor, is in the following terms:

76   Petitions to Governor

A petition for a review of a conviction or sentence or the exercise of the Governor’s pardoning power may be made to the Governor by the convicted person or by another person on behalf of the convicted person.

That provision differentiates between a “review of a conviction or sentence” and “the exercise of the Governor’s pardoning power”. It is clear from the structure and content of Pt 7 of the Appeal and Review Act that this distinction is one of substance. There is, in effect, no control or regulation of the pardoning power in circumstances where an inquiry is not under consideration. That is consistent with the preservation of the “prerogative of mercy” by s 114 of the Appeal and Review Act. However, the steps (including the direction of an inquiry) provided under s 77(1) are constrained by the need for a doubt or question as to the person’s guilt: s 77(2). The statutory scheme is thus materially different from that considered in Holzinger and Ogawa. It follows that constraints which would operate to deny that the pardoning power is amenable to judicial review do not apply with respect to the holding of an inquiry.

36. Secondly, Holzinger and Ogawa were directed to a decision not to refer a case to the Court (there being no statutory power to require an inquiry); the closest analogy under the Appeal and Review Act would be a decision not to direct an inquiry by a judicial officer under s 77(1)(a). That step having been taken in the present case, in accordance with the applicant’s request, the exercise of that power is not in issue.

37. Thirdly, reliance on authorities which deny the availability of the supervisory jurisdiction with respect to decisions to initiate prosecutions against a person have no obvious application to a decision by a government officer to exercise a power to permit an inquiry at the behest of the convicted person. The statute creates in the Governor and the Minister functions of a gateway to the operation of the statutory scheme. That is, they can allow a convicted person an inquiry to review his or her conviction, a function which is the antithesis of prosecuting the person for the purpose of obtaining a conviction.

38. Those reasons are sufficient to preclude reliance on the cases referred to as authority to deny jurisdiction in this Court to review an inquiry which has in fact been held.

39. There is in fact authority which would support the amenability of the inquiry to judicial review. Section 140 of the Sentencing Act 1994 (WA) contained a provision in similar terms to s 672A of the Queensland Criminal Code. Mallard v The Queen [25] involved an appeal from a case referred to the Court of Appeal under that provision. The Court of Appeal had dismissed the petition. It might be thought curious that a petitioner could enforce in the High Court his legal right to a proper consideration of his petition by the Court of Appeal, but could not have reviewed the refusal of the Attorney General to refer the matter to the Court of Appeal. In any event, Mallard tends to support the view that, having obtained a direction that a judicial officer hold an inquiry, the applicant was entitled to invoke the supervisory jurisdiction of this Court to ensure that the inquiry was properly conducted in accordance with the statute.

    25. (2005) 224 CLR 125; [2005] HCA 68.

40. The Court may be comfortably satisfied it has jurisdiction to consider the present application.

Recurrent infant deaths in one family

41. Before identifying, by way of background, the circumstances of the children’s deaths, it is convenient to note a submission which never descended into detail, except as a matter of history, but which has been raised at various stages of the judicial hearings, the inquiry and the present application for review. Thus, in the written submissions in this Court it was said that the petition which gave rise to the Governor’s direction and the inquiry claimed that a doubt arose as to the applicant’s convictions because of “[t]he application of the now discredited Meadow’s Law”. [26] Further, the submissions stated that it was “clear from a close examination of the Inquiry report that the method of reasoning deployed in the consideration of the medical and scientific evidence closely followed the judgment of Justice Sully [in the Court of Criminal Appeal rejecting the appeal against convictions in 2005].” [27] After setting out a passage from the conclusions in that judgment, the submission continued, stating that the judicial officer “failed to grapple … [with] [t]he debunking of ‘Meadows Law’ ….” [28]

    26. Written submissions filed 24 May 2020, par 6. (The petition was not in evidence before the inquiry, nor in this Court.)

    27. Written submissions at par 20.

    28. Written submissions, par 21.

42. Chapter 4 of the Report contained a lengthy discussion under the heading “Recurrence”, introduced by the following statements:

“62   The doubt or question that gave rise to this Inquiry was in relation to evidence adduced at Ms Folbigg’s trial as to the incidence of reported deaths of three or more infants in the same family attributed to unidentified natural causes. That evidence was given by a number of medical experts who said they had never experienced or read about three or more such instances.

63   That evidence gave rise to the submission to the jury by the Crown prosecutor that ‘it has never been recorded that the same person has been hit by lightning four times’ [29] and ‘I can’t disprove that one day some piglets might be born with wings and that they might fly. Is that a reasonable doubt?’ [30]

64   The trial judge dealt with those submissions by directing the jury as follows:

‘SIDS deaths are rare in the community. There is no authenticated record of three or more such deaths in a single family. This does not mean, of course, that such events are impossible. It is an illustration of the rarity of deaths diagnosed as SIDS. [31] ’

29. Trial tcpt, 13/05/2003, p 1364(43)-(44).

30. Trial tcpt, 13/05/2003, p 1375(27)-(30).

31. Trial tcpt, 19/05/2003, pp 24-25.

43. Sir Roy Meadow was a British paediatrician; his “law” was explained in the following passage in Ch 4:

“140   British paediatrician Sir Roy Meadow proposed a maxim to be applied when considering multiple infant deaths in a single family which came to be known as ‘Meadow’s law’. Meadow’s law suggested that ‘one cot death is a tragedy, two cot deaths is suspicious, and until the contrary is proved, three cot deaths is murder.’ [32] Although attributed to Meadow, the maxim first arose in DiMaio and DiMaio (1989):

‘While a second SIDS death from a mother is improbable, it is possible and she should be given the benefit of the doubt. A third case, in our opinion is not possible and is a case of homicide. [33] ’

141   Meadow’s law was based on the belief that three infant deaths in a family is so statistically improbable that the only reasonable explanation for the deaths is murder. The use of such reasoning has now been widely discredited, including in the Goudge Inquiry which inquired into paediatric forensic pathology in Ontario in 2008, and in R v Cannings. [34] ”

32. Roy Meadow (ed), ABC of Child Abuse (BMJ Publishing, 3rd ed, 1997) 27-29.

33. Dominick J DiMaio and Vincent V J DiMaio, Forensic Pathology (CRC Press, 1st ed, 1989) 503.

34. Stephen T Goudge, Report of the Inquiry into Paediatric Forensic Pathology in Ontario (Ontario Ministry of the Attorney-General, 1 October 2008); R v Cannings [2004] EWCA Crim 1, [177].

44. In the history of the trial proceedings, this form of reasoning appeared to be adopted by the prosecution in resisting an application for separate trials with respect to each death. It relied in part on the evidence of Dr Janice Ophoven, an American paediatrician, who gave evidence in the following terms: [35]

“It is well recognised that the SIDS process is not a hereditary problem and the statistical probability that 4 children in one sibship could die from SIDS would be infinitesimally small.”

35. R v Folbigg, [2002] NSWSC 1127 at [43] (Wood CJ at CL); R v Folbigg, [2003] NSWCCA 17 at [9].

45. Although this Court was not taken to evidence as to the basis of such a statistical calculation, it presumably operated on an assumption that each of the deaths was an independent event. Such reasoning would not only have been wrong but incoherent. The support for an unnatural cause relied upon the element of common parentage; the possibility of a genetic cause arose from precisely the same common element.

46. Counsel for the applicant before the Court of Criminal Appeal in 2003 (the appeal from the rejection of the separate trials application) was alert to the problem. He expressly objected to reliance upon the views of medical experts “on matters of probability and statistics”, noting that similar reasoning had resulted in the English Court of Criminal Appeal overturning a conviction in the matter of Sally Clark. The judgment in that case was apparently not then available, and he invited the Court to withhold judgment in the matter before it until the report was available. [36]

    36. R v Folbigg, [2003] NSWCCA 17 at [20].

47. The invitation to delay was not accepted, Hodgson JA (with the agreement of Sully and Buddin JJ) considered that the primary judge (Wood CJ at CL) “was careful to base his decision only on so much of the medical evidence as was not in any way affected by statistical considerations in such a way as to be liable to be rendered inadmissible.” [37]

    37. Ibid at [29].

48. At the trial, which occurred between 1 April 2003 and 21 May 2003, the prosecution did not adduce the opinions of Dr Ophoven in evidence.

49. The Report set out the evidence given at the trial relevant to this issue. [38] The Report then set out both the investigations conducted by research scientists for the inquiry, and evidence given by clinicians at the inquiry. [39] The Report recorded in some detail a history of the recurrence of such deaths in the literature, both prior to 2003 and subsequent to that date. As noted above, the Report observed that the reasoning of Professor Meadow “has now been widely discredited” and referred to the case of R v Cannings. [40] That decision of the English Court of Criminal Appeal followed the decision in R v Clark.

    38. Report, Ch 4, pars 66-76.

    39. Report, Ch 4, pars 77-90.

    40. [2004] EWCA Crim 1.

50. Cannings had been decided prior to the applicant’s appeal against her convictions and was discussed in the judgment of the Court of Criminal Appeal in 2005. [41]

    41. Regina v Folbigg [2005] NSWCCA 23 at [133]-[156].

51. The inquiry dealt further with later cases, both in England and Victoria. Submissions by counsel assisting in the following terms were then set out:

“269   Counsel assisting submitted that reasoning on the basis of Meadow’s law, as was relied on by Professor Herdson in his report and Dr Beal on the voir dire, should not be accepted or adopted by the Inquiry. [42]

270   Counsel assisting also submitted that on the basis of the evidence given by the expert witnesses at trial, it would have been open to the jury to conclude that there had never been recorded a family where four children had died from natural causes. In fact, at the time of the trial there had been reported cases of three or more infants in the same family attributed to unidentified natural causes, or at least not established as attributable to unnatural causes. [43]

271   However, counsel assisting submitted that given:

a   the weight of the evidence is that any increased risk of recurrence in a sibling is affected by genetic and environmental factors;

b   there has been no genetic factor identified in the Folbigg family; and

c   relevant environmental factors in respect of each child gave rise to a low risk of sudden unexplained infant death, [44]

the observation by the trial judge that such events are not impossible and that they are rare reflected the knowledge as it stood then and remains the case today. Therefore, counsel assisting submitted there is no basis to assert there was a miscarriage of justice or irregularity that would give rise to a reasonable doubt as to Ms Folbigg’s guilt. [45] ”

42. Submissions of counsel assisting the Inquiry (17 May 2019) Chapter 6, [141].

43. Submissions of counsel assisting the Inquiry (17 May 2019) Chapter 6, [172].

44. Submissions of counsel assisting the Inquiry (17 May 2019) Chapter 6, [173].

45. Submissions of counsel assisting the Inquiry (17 May 2019) Chapter 6, [174].

52. The final conclusions of the inquiry were expressed as follows:

“282   It is accepted that it is clear from the work of the Inquiry that before 2003 there had been reported cases involving the deaths of three or more infants in the same family attributed to unidentified natural causes, or at least not established as attributable to unnatural causes. To the extent that the Crown case as left to the jury asserted or invited otherwise, that was incorrect.

283   However, the current descriptions in literature and in evidence by experts emphasise the low nature or rarity of recurrence risk, a point which was accurately reflected in the directions of the trial judge. It is also clear that the mere fact of the recurrence of the sudden unexpected death of an infant cannot, by itself, prove beyond a reasonable doubt that the cause was homicide, even in the case of multiple deaths. That is so because our current understanding of the causes of such natural deaths cannot be said to be complete. It is also not helpful to attempt to ascribe a statistical value to the possibility of a recurrence of such an event.

284   I do not accept Ms Folbigg’s submission that an analogy can be drawn with Mraz, a case where the trial judge misdirected the jury that they could find the accused guilty of manslaughter in circumstances where there should have been a finding of murder or an acquittal. This misdirection created a ‘fundamental confusion in the minds of the jury as to what constitutes the crime’. [46]

285   I note also that the decision of the Court of Criminal Appeal in the present case in 2005 referred to the decision of Cannings in the English Court of Appeal in 2004 in which three infant deaths and an ALTE were considered. [47] The Court of Criminal Appeal was thus aware of the existence of such a case when there had been three deaths in the one family but held that the Crown prosecutor’s submission that such a case had never been heard of was simply a piece of circumstantial evidence to be added to the other circumstances. I agree with that description. A review of the literature indicates that repeat SIDS deaths are rare.

286   In light of the above, I am satisfied that the treatment of the issue of recurrence at trial has not resulted in a miscarriage of justice or irregularity that gives rise to a reasonable doubt as to Ms Folbigg’s guilt.”

46. Submissions of Ms Folbigg to the Inquiry (7 June 2019) Part A, [199], [206], citing Mraz v R (1955) 93 CLR 493, 515.

47. Regina v Folbigg [2005] NSWCCA 23, [117], [133]-[144], citing R v Cannings [2004] EWCA Crim 1.

53. In the course of oral submissions in this Court, senior counsel for the applicant accepted that the judicial officer had described the reasoning as “discredited” and did not adopt it: no error was identified, as appears from the following exchange between the bench and senior counsel (Mr Morris SC). After taking the Court to a letter written by Professor Meadow in January 1989, stating that “it is important to recognise that a small proportion of children labelled ‘SIDS’ are killed by their parents, usually their mother”, counsel continued: [48]

    48. CA Tcpt 16/02/21, p 76(15).

“MORRIS: The judge--

BASTEN JA: --judicial officer appears to say that the reasoning’s [been]--

MORRIS: Overturned.

BASTEN JA: --discredited, I think you told us a few moments ago that he didn't adopt it.

MORRIS: That's right.

BASTEN JA: So, I'm just trying to understand why we're going there.

MORRIS: I'm just trying to clarify a point, your Honour, okay.

LEEMING JA: Sorry, what point?

MORRIS: The - the point is the reasoning - it was the probabilistic or - or the over much statistical use of statistics to try to illustrate rarity. We accept rarity, but one needs to be careful to avoid a Meadow’s Law type interpretation, and that was simply to answer and inquiry from the bench yesterday where we discussed--

BASTEN JA: I think the question was where the judicial officer went wrong in adopting the Meadow’s type--

MORRIS: No, he didn't--

BASTEN JA: --error.

MORRIS: --we were debating - we were debating the issue about whether rarity can be taken into account, we sa[y] rarity can be taken into account, but it needs to be exercised with caution.

BASTEN JA: Doesn't sound like the beginning of a legal error to me.

MORRIS: No, but the - the issue that we - the issue that we come back to is the - the use of the diaries in the - in the assessment of the medical evidence to resolve the medical evidence adversely.”

54. It is apparent that the judicial officer did not accept or adopt Prof Meadow’s discredited approach. At trial the prosecutor adopted a more nuanced approach, and the Court of Criminal Appeal in 2003 and 2005 also eschewed the discredited approach.

Background

55. Because the challenge mounted by the applicant drew heavily on the manner in which the judicial officer had dealt with the medical and scientific evidence in relation to the deaths of each child, it is necessary to provide some factual background with respect to those deaths. The background may be succinctly stated as it is set out in significant detail, not only in the Report (which is publicly available) but also in decisions of the Supreme Court with respect to an application for separate trials in respect of each death, [49] the appeal against that decision, [50] the first appeal from the verdict [51] and the reopened appeal judgment. [52]

    49. R v Folbigg [2002] NSWSC 1127.

    50. R v Folbigg [2003] NSWCCA 17.

    51. Regina v Folbigg [2005] NSWCCA 23.

    52. Folbigg v R [2007] NSWCCA 371.

(a)   first child – Caleb

56. Caleb was born on 1 February 1989. He died 19 days later on 20 February 1989. The cause of death was, in effect, identified as unknown by the entry on the death certificate “SIDS”, namely sudden infant death syndrome. As explained by Duncan and Byard the term:

“… refers to death in a seemingly healthy infant younger than 1 year of age whose death remains unexplained after a thorough case investigation including a complete autopsy, review of medical and clinical history, and death scene investigation. SIDS is typically associated with a sleep period with death presumed to have occurred during sleep itself or in the transition between sleep and waking. … Furthermore, while the definition is inclusive of infants up to 1 year of age, approximately 95% of SIDS deaths occur in the first 6 months of life with a peak incidence in infants aged between 2 to 4 months. While there are distinctive features associated with the syndrome there are no diagnostic features that can be attributed to a SIDS death. Indeed, application of the term relies on a process of elimination and when no known cause of death or contributing factors can be determined, the term SIDS is usually applied. Thus, while the debate continues regarding the definition and use of the term SIDS, and no one definition has been universally accepted, one certainty persists, and that is that SIDS still remains a diagnosis of exclusion.” [53]

53. Jhodie R Duncan and Roger W Byard eds, SIDS – Sudden Infant and Early Childhood Death: The Past, the Present and the Future (Univ of Adelaide Press, 2018), Ch 2, Duncan and Byard, “Sudden Infant Death Syndrome: An Overview”, pp 15-16.

57. This terminology indicates that death was sudden in the sense that there were no known material pre-existing illnesses or natural events causally connected to the death, and that there was no evidence of unnatural events, such as smothering. Because it is “a diagnosis of exclusion”, any medically accepted explanation takes the death out of the category. The incidence of such diagnoses reduced following a public “Back to Sleep” campaign, and should continue to reduce incrementally as the rate of affirmative diagnoses improves. [54]

    54. Ibid, p 23.

58. The Report recorded the following medical history: [55]

“7   Dr Barry Springthorpe, consultant paediatrician, saw Caleb twice, first on 2 February 1989 when Caleb was 14 hours old. He gave evidence at trial that when he first examined Caleb, he had developed respiratory distress which required some oxygen through the night. This ‘stridor’, or noisy breathing, was a common occurrence in newborn children. A chest x-ray was clear, and Caleb’s condition improved over the next two days.

8   At the second examination on 17 February 1989, Caleb still had a ‘mild inspiratory stridor with a little recession which was most marked when he was upset or lying flat on his back’. In his oral evidence at trial, Dr Springthorpe said that the stridor was ‘very, very mild’. He diagnosed laryngomalacia, or a ‘floppy larynx’, meaning that the cartilage in the larynx was soft and could collapse on inspiration. It was not apparent when Caleb was at rest but would have been exacerbated when Caleb was unsettled. Dr Springthorpe was informed by Mr and Ms Folbigg that it did not interfere with Caleb’s feeding or sleeping, although in a letter noted that it caused some feeding difficulties.”

55. Report, Ch 5, p 167-168.

59. Two days later he was found dead in his cot by the applicant. She later told police that she had fed him at 1:00am and put him back in his cot. A diary entry at about 2:00am identified that he was “finally asleep!!”. She checked him at about 2:50am and found him cold and lifeless. When the first ambulance officers arrived at 2:59am, he was unconscious, not breathing and pulseless. The officer noted that Caleb was warm to touch and pale around the mouth and lips.

60. A forensic pathologist examined Caleb within 12 hours of his death and found no external signs of injury and no evidence of abnormality. A toxicology report was negative. An examination of the lungs noted:

“Lungs – are congested in places and show incomplete aeration. In other sections their alveoli contain extravasated red blood cells and a small amount of eosinophilic exudate.”

In summary, both lungs were described as “moderately moist” but no other unusual features were identified.

61. The evidence at trial was, in broad terms, that the condition of “floppy larynx” or laryngomalacia, was not a recognised cause of death, many of the medical experts not having heard of a child who had died from such a condition. The treating paediatrician, Dr Springthorpe, gave evidence that stridor, noisy breathing, had nothing to do with Caleb’s death.

62. There was further consideration of the medical evidence at the inquiry, but without any definitive result. It appears to have been largely accepted that accidental asphyxiation was excluded but that deliberate asphyxiation was not. Whether any natural cause of death rose to the level of a reasonable possibility was a matter for evaluative judgment. A finding that there was no possible natural cause raised by the expert evidence was reasonably open.

(b)   second child – Patrick

63. Patrick was born at full term with normal weight on 3 June 1990. Because of Caleb’s death, a “sleep study” was conducted at one and half weeks: the results were normal. On 18 October 1990 (at age four months and 15 days) Patrick suffered an apparent life-threatening event. The applicant found Patrick in his cot at around 4:30am “because she heard Patrick gasping.” She said he was blue around the lips, lifeless and floppy and making minimal respiratory effort. Soon after, Patrick gave “a high pitched cry.”

64. The ambulance officers arrived at 4:41am. They described him as in “respiratory distress”, with very laboured breathing. He was administered oxygen and taken to hospital. The applicant told the officers that “Patrick had had a cold for two days but was normally happy and dynamic.” The report recorded Patrick’s skin temperature as hot. The treating doctor at the hospital noted that he was lethargic, cyanosed and responsive only to painful stimuli on arrival, but after the administration of oxygen for 15 minutes he became more alert and remained pink. The doctor concluded that his condition “was not likely to be due to a respiratory problem.” The Report further noted: [56]

“124   There were no signs to suggest other serious illness, or of trauma or injuries. There were also no signs of upper airway obstruction or aspiration which might have accounted for the history Ms Folbigg gave Dr Dezordi, that Patrick had been gasping and that he was barely breathing.

125   By 6:00am on 18 October 1990, preliminary test results were available. The blood tests showed no abnormality. However, a urine test returned a high level of glucose, which was unexpected and which Dr Dezordi said in his oral evidence before the jury tended to suggest ‘a fairly catastrophic event, such as an asphyxiating event, or a prolonged seizure.’”

56. Report, Ch 5, p 191.

65. Some 36 hours later, his temperature went up and he was vomiting and commenced having fits that evening. He remained in hospital until 29 October, when he was discharged, and was then readmitted on 4 November with a seizure. An electroencephalogram (EEG) on 5 November revealed abnormalities.

66. Dr Dezordi said that the damage to Patrick’s brain “definitely” could have been caused by asphyxiation. [57] The Report’s summary of the evidence at trial continued:

“146   Because Patrick had a sibling who had died, all the tests available in 1990 were conducted when Patrick was admitted following the ALTE, to look for inherited diseases that might have brought about neurological abnormalities. Dr Wilkinson described the system of testing that the doctors did as ‘extremely exhaustive’, looking at a number of markers in the body for abnormalities of biochemical pathways, including chemicals in the urine, a rectal biopsy and staining of white cells to look for occlusions. No abnormalities were found. The doctors never had any absolute explanation for how Patrick suffered the damage to his brain.”

57. Report, Ch 5, par 137.

67. Patrick died on 13 February 1991. At 10:00am that morning, the applicant telephoned Mr Folbigg at work and screamed down the phone, “it’s happened again” and “I need you. Come home.” He drove home quickly, raced into Patrick’s room, scooped up Patrick from the cot and took him to the lounge and commenced CPR. He described him as “floppy, warm, with blue lips.” Ambulance officers arrived at the house at 10:10am. The final autopsy report included the following passages:

“Clinical Diagnosis:

*   Encephalopathic disorder leading to intractable seizures. The underlying cause of encephalopathy not determined on investigation.

*   Asystolic cardiac arrest at home leading to death.

Final Diagnosis

*   Normally formed male infant of approximately eight months of age.

*   Old infarcts and gliosis in the parieto-occipital area (both cerebral hemispheres), which are probably secondary to cardio-respiratory suffered at about five months of age.”

68. The body of medical evidence was that the initial life-threatening event was a “catastrophic asphyxiating event” which could have been caused by deliberate smothering or by some unknown cause. At the inquiry, Professor Ryan identified various potentially causative diagnoses, including conditions possibly associated with epilepsy and fluctuating neurologic symptoms not excluded by previous testing.

69. The judicial officer reviewed a considerable body of medical evidence, resulting in the following conclusions:

“306   There have been two material changes since the 2003 trial in relation to diagnosis of any medical cause of Patrick’s ALTE. First, genetic testing has been completed in relation to Patrick and no genetic variant which is pathogenic or likely pathogenic has been identified to account for the ALTE. Secondly, more recent research on SIDS that maternal smoking and sleeping position pose the highest risks relevantly reduces any assessment of Patrick’s risk of SIDS or ALTE.

307   Medical evidence in the Inquiry, including evidence adduced at trial, and including both clinical and expert evidence, did not identify any natural cause of Patrick’s ALTE as a reasonable possibility. However, on the basis of evidence in the Inquiry, the following conditions are excluded as a possible cause of the ALTE:

a   encephalitis; and

b   genetic conditions which were the subject of testing in the Inquiry (as set out in Chapter 7);

308   Having regard to the medical (including genetic) evidence in the Inquiry the following conditions are not excluded as having caused the ALTE, however I find that it is not reasonably possible that any of them caused the ALTE:

a   epilepsy, or an initial seizure;

b   an unidentified genetic or metabolic condition;

c   an unidentified degenerative brain condition or neurological disease or condition;

d   infection or virus (including particularly pneumonia, meningitis, septicaemia, meningococcal and bronchiolitis) other than encephalitis; and

e   a SIDS-type event.”

70. The judicial officer, after expressing caution in accepting Prof Ryan’s evidence, particularly in relation to the possibility of genetic disorders which he considered had been the subject of extensive inquiry and rejection, [58] concluded:

“321   I find that expert opinion evidence supports a single asphyxial event having occurred on 18 October 1990, with a cause other than one attributable to a respiratory or a recognised neurological condition. For clarity, by ‘asphyxial’, I mean an event leading to obstruction of his airways. Further, medical evidence does not exclude that deliberate smothering of Patrick caused the ALTE.”

58. Report, Ch 5, par 317.

71. With respect to his death, the judicial officer made the following finding:

“332   I find on the available medical evidence that it is possible that the cause of Patrick’s death on 13 February 1991 was a seizure or similar event related to encephalopathy in his brain. I find further on the available medical evidence that it is reasonably possible that his death was caused by an asphyxiating event, meaning an event leading to obstruction of his airways and which includes deliberate smothering. The answer to the question of which of these it was lies not in the medical evidence in relation to Patrick, but in a consideration of a number of different aspects of the evidence in this case.”

(c)   third child – Sarah

72. Sarah was born at full term on 14 October 1992. As with Patrick, Sarah was the subject of a sleep study carried out at three weeks of age. Dr Cooper, who had also undertaken the study with Patrick, considered the results to be normal for her age. A general practitioner who saw Sarah four times believed her to be a normal healthy infant. She had suffered from a flu or cold virus for which medication had been prescribed on 18 August 1993, with the final dosage taken on 26 or 27 August, three days before her death.

73. At the time of death she was in a single bed in her parents’ bedroom. She was reported to have been snoring when her parents went to bed at 9:30 or 10:00pm. The applicant told police that she had got up at 1:30am, and, not hearing Sarah breathing, had turned on the light and saw she had turned blue and noted a discharge from the nose.

74. At autopsy, two puncture abrasions were noted on her bottom lip, together with a scratch on her upper arm. Her uvula (the piece of tissue at the back of the throat which prevents food and liquid entering the nose) was reddened, a condition consistent with a mild infection or with snoring. The summary in the Report continued:

“362   Microscopic examination showed areas of inflammation consistent with mild respiratory infection, which may have helped explain the reddened uvula. There was no evidence of any viral infection, but profuse growth of streptococcus might indicate a streptococcal infection which would help explain the reddening of the uvula and perhaps the light inflammation of the larynx (voice box). Such inflammation would not normally be expected to have contributed significantly to death. Otherwise, the findings said nothing about cause of death.

363   Dr Beal noted that the inflamed and displaced uvula showed probable throat infection. Professor Herdson doubted that Sarah's reddened uvula was significant in her death; it could have been caused during resuscitation. Professor Berry had never heard of a child dying of a swollen uvula. Professor Byard in his report referred to Professor Hilton's comments on an unusually congested uvula, and said in evidence that while he was unsure of the significance of the displaced uvula, he considered that it could not be excluded as having played a role in Sarah's death. Professor Busuttil, forensic pathologist, considered that the presence of the congested uvula may have given rise to some upper airway obstruction.”

75. Professor Hilton, who conducted the autopsy, listed the cause of death as SIDS.

76. In chapter 5 of the Report, the judicial officer made the following findings:

“414   Two material changes since the 2003 trial relevant to Sarah's death are first, that genetic testing has been completed and no genetic variant which is pathogenic or likely pathogenic has been identified to account for Sarah's death. Secondly, more recent research on SIDS that maternal smoking and sleeping position pose the highest risks relevantly lowers, in retrospect, the risk posed to Sarah of SIDS.

415   Ultimately there remains no identified natural cause of Sarah's death.

416   Forensic pathology evidence does not identify as a reasonable possibility any natural cause. Sarah's uvula having been found at autopsy to overlap the epiglottis, forensic pathology evidence is to the effect that this ‘could have’ caused death or is ‘not excluded’ as a cause. …

…

418   In relation to SIDS, similarly for the reasons I have recorded in relation to Caleb above at [102], particularly with low risk factors, ‘SIDS’ (and particularly ‘Category 2 SIDS’) is far from complete as an explanation for Sarah's death. It leaves open the possibility of an identifiable (but not identified) natural or unnatural cause. Sarah had a low risk of SIDS, noting that SIDS itself is a rare occurrence. She was outside the age range in which SIDS most commonly occurs. Her sleep study was essentially normal.

…

429   I find on the available medical evidence that it is only conjecture that Sarah's death on 30 August 1993 was naturally caused by obstruction of her airways associated with her uvula. I find further on the available medical evidence that it is reasonably possible that her death was caused by an event leading to obstruction of her airways by some other cause, which includes deliberate smothering.”

77. This, as the applicant noted, was not the final form of the intermediate finding of fact as to the possibility of a natural cause for Sarah’s death. That finding was to be found in the Addendum to the Report, which took account of information supplied some weeks after the hearings were completed on 1 May 2019. However, that matter concerned genetic information and a particular genic variation common to the applicant and the two girls, Sarah and Laura.

78. In order to understand the significance of particular findings it is necessary to have regard to the structure of the Report. Chapter 4 was headed “Sudden Infant Death Syndrome and Recurrence”. The medical evidence in Ch 5 dealt with what was, in effect, a series of forensic pathology reports, followed by evidence as to smothering. That in turn was followed by Ch 6, dealing with the role of infection in SIDS, and Ch 7 dealing with genetics. Findings were made at the end of each chapter in relation to the children. An alternative structure might have addressed changes in different elements of the medicine before providing a global assessment of how those changes might affect each of the children. The purpose of identifying genetic variations which might have pathological consequences was to identify a natural causal explanation of one or more of the deaths. The structure which was adopted, on the other hand, gave rise to a cumulative process of assessment and reassessment at particular stages of the analysis. However, no complaint was made as to the structure of the Report (except with respect to the Addendum) and it is by no means clear that any plausible challenge could have been raised on this basis. It is sufficient to note that none of the findings outlined above was treated as final, or even as an intermediate, finding of fact, although as can be seen from the last set of findings regarding Sarah, reference to the genetic testing was taken into account before Ch 7, where the genetics evidence was set out.

(d)   fourth child – Laura

79. Laura was born at full term on 7 August 1997. A sleep study undertaken 12 days post-partum showed mild central apnoea, which was identified as “totally normal” by February 1998. The sleep study also identified no bradycardia in response to the earlier apnoea nor, by February 1998 were there any cardiac problems.

80. Laura died around midday on 1 March 1999, aged 18 months. She was found by the applicant, who called the ambulance service. Ambulance officers arrived at 12:14pm and found that Laura was not breathing and had no pulse. There was no blood, vomit or foreign object in her mouth. Her skin was warm to the touch and cyanosis was present around the lips and face. A record of her immediate history indicated that she had had a cold in the last 24 hours, had been administered Demazin two days earlier on 27 February and had been last fed at 7am on 1 March. She had been put down to sleep and was on her back when she was found. There was nothing covering her head. Given her age, she did not fit within the usual criteria for SIDS and, together with her age, the testing and monitoring led to her being considered to be at extremely low risk for SIDS. [59]

    59. Report, Ch 5, par 477.

81. Dr Cala, who performed the autopsy found there was “an inflammatory infiltrate in the heart consistent with myocarditis”. [60] However, having watched a video of her playing taken on 28 February 1999 (the day before her death), Dr Cala considered she appeared to be in good health and considered that the myocarditis “played no role whatsoever in her death”. [61] There were a number of further medical expert reports prepared with respect to Laura, based on the more comprehensive material that was available relating to her death, as compared with the deaths of the other children. This material was considered at length by the judicial officer who was satisfied that, based on the medical evidence received at the inquiry, “the myocarditis found in Laura’s heart at autopsy could have been incidental to her death, or it could have been fatal.” [62] He also noted that deaths of children from myocarditis are rare and there was about one death each year in New South Wales. Sudden and unexpected deaths are fewer again and more frequent in young babies than in the age range of one to four years. He also accepted that “[n]o forensic pathologist has excluded the possibility of an unnatural cause of Laura’s death”, [63] concluding that it was “also reasonably possible that her death was caused by an event leading to obstruction of her airways, which includes deliberate smothering.” [64]

Other evidence concerning causes of death

60. Report, Ch 5, par 459.

61. Report, Ch 5, par 490.

62. Report, Ch 5, par 591.

63. Report, Ch 5, par 601.

64. Report, Ch 5, par 604.

(a)   Immunology

82. Chapter 6 of the Report was headed “Immunology”. It addressed evidence from microbiologists suggesting that infection may have played a role in the deaths of one or more of the children, and evidence concerning research suggesting that “slight infection” was a “risk factor” associated with SIDS. The question for the immunologists was whether infection may have played a role in the deaths of any or all of the children. They also considered whether, in cases of SIDS, a genetic factor, such as a pathogenic genetic variant in genes associated with immunological responses, may have increased the risk of an otherwise apparently minor infection triggering a fatal outcome.

83. The judicial officer considered that “[t]he evidence of the microbiologists goes no further than to speculate that infection may have played a part in some of the Folbigg children’s deaths.” [65]

    65. Report, Ch 6, par 122.

(b)   Genetics

84. Of more importance to the outcome of the inquiry was the discussion of “Genetics evidence” in Ch 7. In so far as the evidence established a particular natural cause as a reasonable possibility in relation to the death of each child, taken separately the likelihood of such natural causes, each in itself a rare event, in four consecutive children in one family was vanishingly small. The conclusion would, of course, be quite different were there a real possibility of a common cause. The common cause might, in theory, be environmental or genetic. In practical terms the question was whether there was evidence to support a common genetic link.

85. There was no doubt that there had been significant advances in the field of genetics since the trial in 2003. There was available to the inquiry material taken from each of the children, from which DNA could be extracted. In December 2018 the applicant provided a sample for genetic testing. The inquiry engaged a multi-disciplinary panel of experts which undertook further genetic sequencing and analysis. Two experts based in Canberra were retained for the applicant. It is convenient to deal with the evidence addressed in Chapters 6 and 7 when dealing with the specific particulars of review directed to their evidence.

127. Thirdly, they referred to the significance of the children being found deceased during a sleep period:

“1.8   … To our knowledge, variants in calmodulin have still not been reported as a cause of sudden infant death syndrome, being death of an infant during sleep. Their young age is also not typical for calmodulinopathies. The median age of sudden cardiac death in the registry was 5.7 years, and most of the youngest deaths were associated with the long QT phenotype – which was never seen in a child of a parent carrying a non-mosaic variant.”

128. Whilst the authors accepted that the variant could be pathogenic and could be either the sole cause of death for Sarah and Laura or a contributing cause, they also noted the possibility that the variant was benign, stating:

“3.4   There are numerous examples of situations in which one change to an amino acid is pathogenic whereas another, at the same residue, is benign. Even within the CALM genes, there is evidence for an example of this; the change of asparagine 138 to lysine has been reported in association with the very severe Long QT phenotype, where as a change of the same amino acid to a different amino acid, serine, has been reported in a healthy population control. In the case reported by Crotti et al, the glycine at position 114 changed to tryptophan; in the Folbigg family the change is to arginine, which is chemically very different from tryptophan. Thus, it is possible that the Gly114Arg variant is benign.”

129. The Report noted that counsel assisting had been provided with an opportunity to file further written submissions, which they did on 8 July 2019. Counsel assisting contended that the correct finding remained that “there is no reasonable possibility that the death of any of the Folbigg children or Patrick’s ALTE was caused by a recognised genetic variant.” [92]

     92. Report, Addendum, par 19.

130. The applicant’s representatives were given an opportunity to file submissions in reply and filed both a further written submission and a letter said to have been drafted by Professor Vinuesa and Dr Arsov with assistance from Professors Schwartz, Cook and Overgaard. The letter stated, apparently for the first time, that the registry of calmodulinopathies referred to in Crotti et al recorded “five cases of sudden death/cardiac arrest while asleep caused by CALM1/2/3 mutation.” However, the judicial officer noted that the letter did not suggest that any of those cases involved an infant. [93] After setting out more of the submissions for both parties, the judicial officer dealt at some length with the further information in making findings with respect to the CALM2 variant. He accepted “the opinion in the letter from Professor Vinuesa that the CALM2 variant identified in Ms Folbigg and Sarah and Laura ‘is likely to cause a cardiac condition amidst the CPVT/LQTS/IVF spectrum’.” [94] He further observed:

“50   These findings demonstrate not only the extreme rarity of pathogenic calmodulin variants, but the even more extreme rarity of sudden cardiac deaths during sleep caused by such variants in previously asymptomatic carriers.

51   I note Sarah and Laura each died aged under two years, during a period of sleep and had not been symptomatic for any cardiac condition.”

93. Report, Addendum, par 31.

94. Report, Addendum, par 47: as noted above, IVF refers to idiopathic ventricular fibrillation.

131. His dispositive reasoning on this material was as follows:

“57   This understanding creates for consideration a possible cause of death in the same way as the evidence of the pathologists' evidence created a possible cause of death for Laura, namely myocarditis. Such possibilities should be evaluated in the same way, namely together with all the other evidence in the Inquiry.

58   In relation to Sarah, taking into account additionally the diary entries made by Ms Folbigg and her lies and obfuscation, the evidence of Mr Folbigg indicating Ms Folbigg's fraught relationship with Sarah, and the tendency and coincidence evidence, I remain of the view that the only conclusion reasonably open is that Ms Folbigg smothered Sarah.

59   In relation to Laura, taking into account additionally the rarity of myocarditis as a cause of death in children of Laura's age, the non-medical evidence including the diary entries made by Ms Folbigg and her lies and obfuscation, the evidence of Mr Folbigg indicating the difficulties Ms Folbigg was having with Laura, and the tendency and coincidence evidence, I remain of the view that the only conclusion reasonably open is that Ms Folbigg smothered Laura.

60   Even on the basis of accepting the opinion of Professor Vinuesa that it is now plausible that Sarah and Laura Folbigg may have had a cardiac condition, and that that raises a possibility it caused their deaths, I do not consider the Inquiry should be re-opened for the purpose of holding further hearings about the CALM2 variant identified in Sarah and Laura. For the reasons above, the further information received since the close of the evidence and submissions does not raise in my mind any reasonable doubt of Ms Folbigg's guilt of these offences.”

132. Returning to the complaints raised by the applicant based on this material, it is not correct to say that the inquiry was not “reopened” after receipt of the material from Prof Vinuesa on 28 June 2019. It was reopened; the material was all considered, as was further material supplied by her and further submissions obtained from both parties. The judicial officer considered whether it was appropriate to have a further oral hearing and determined that it was not.

133. The written submissions for the applicant stated that procedural fairness required that she have the opportunity to test the further opinion provided by the Sydney team, which “may have affected their earlier evidence.” The submission further stated that the judicial officer “failed to reconsider his findings and conclusions that formed the main body of his report”. [95]

     95. Applicant’s written submissions, par 144.

134. None of these propositions should be accepted. Procedural fairness did not require that there be a hearing at which witnesses would be recalled: the judicial officer was entitled to call a halt to the inquiry, without being obliged to reopen the inquiry because the applicant had located fresh scientific information. Relevantly, the judicial officer considered the possibility of a further hearing: he noted that the “conflict in views and the debate it generates will no doubt continue, however, it is not necessary for it to be resolved in order for me to decide if the Inquiry should be reopened.” [96] He was also satisfied that no further genetic testing would materially affect the available information. [97]

     96. Report, Addendum, par 55.

     97. Report, Addendum, par 54.

135. There was no submission (nor could there have been) that the procedural approach adopted by the judicial officer was manifestly unreasonable in the legal sense.

136. The further suggestion that the judicial officer should have reconsidered the whole of the genetic evidence and the non-medical evidence in the light of the new material is without foundation. The judicial officer, fully cognizant of the findings which had already been made (and which were adverted to in the addendum), identified the significance of the further material, varied the finding to which it was specifically relevant, but expressed satisfaction that the result did not affect the outcome of the weighing of all the material which had already been undertaken. It is not possible to discern legal error in that approach.

(g)   failure to consider the submission of Prof Clancy

137. On 27 June 2019, the solicitor for the applicant provided to Prof Clancy a copy of the material provided to the inquiry by Prof Vinuesa on 21 June. On 28 June 2019 Prof Clancy sent to the inquiry an unsigned document described as a “Submission to the Inquiry”. In it he stated:

“The findings by Professor Schwartz are extremely important, and as a result, markedly enhances [sic] the likelihood that the deaths of Sarah and Laura are due to natural causes.”

138. Somewhat stridently, the applicant’s written submissions stated:

“Whether properly characterised as a submission, or further opinion evidence, this material was not mentioned in the Inquiry Report and was not considered by the Judicial Officer. There is no explanation why this submission was ignored.

…

... Failure to consider Prof Clancy’s submissions was to deny the Plaintiff procedural fairness and cause a miscarriage in the process of fact-finding.” [98]

98. Applicant’s written submissions, pars 157 and 159.

139. It was also stated that the failure to address this material “demonstrated unwillingness by the Judicial Officer to be impartial and review matters upon which he had already had [sic] a concluded view.” [99] A separate ground relating to bias was withdrawn in the course of the hearing: it is assumed that this last unfounded submission must also have been withdrawn, as it properly should have been.

     99. Applicant’s written submissions, par 158.

140. Whilst the inquiry was not a judicial process, the judicial officer was entitled, if not obliged, to establish procedures for dealing with the significant volume of expert evidence which needed to be addressed. Prof Clancy was not a party to the inquiry: he had no right to expect that an unsolicited “submission” would be taken into account. That the submission went from him directly to the inquiry may be inferred from the content of the email which he sent to the solicitor for the applicant on the same day, namely Friday, 28 June 2019 which simply stated:

“I have sent submission, Robert”.

The submission was apparently attached. There is no evidence that it was provided to the judicial officer. Absent a grant of leave to a party to file a document otherwise than in accordance with the judicial officer’s directions, there was no unfairness in disregarding the document, if that is what happened, a matter which was not the subject of any evidence in this Court.

141. If the applicant sought to draw some support from the document, her legal representatives should have sought leave to rely upon it. In truth, it is likely that Prof Clancy thought that his expertise (though his acknowledged speciality was immunology, not genetics) was intended to give weight to the opinions expressed in the submission. It was therefore further evidence and one can understand why there was no attempt to tender it. On 12 July 2019 the applicant’s solicitor filed a last submission headed “Addendum” which referred to the submission by Prof Clancy of 27 June 2019 in a footnote.

142. It may be noted that Dr Cala and Professor Hilton made submissions on 14 June and 18 June respectively, which appear not to have been directly addressed by the judicial officer. They, however, had been given leave to appear before the inquiry.

143. If the applicant complains that there was procedural unfairness to her in the judicial officer not expressly referring to the reasons of Prof Clancy, relied on by her in a footnote to a late submission, without quotation and without further explanation, then the submission must be rejected.

(h)   failing to consider evidence as to the good character of the plaintiff contained in (i) statements by lay witnesses and (ii) the report of Dr Diamond

144. A particular of challenge to the Report which was not pressed alleged that there had been a failure to consider the evidence of Dr Diamond in relation to the review of the applicant’s convictions. That particular was properly withdrawn: it could not have been drafted by a person who had read the Report. There were at least a dozen paragraphs and numerous footnotes referring expressly to the psychiatric report of Dr Diamond. Further, Ch 2 of the Report, entitled “Overview of the Folbigg Family”, contained much material favourable to the applicant which was sourced to Dr Diamond’s report, which is referred to in some 50 footnotes.

145. Dr Diamond’s report was also referred to in considering how the diaries should be understood, in Ch 8 dealing with “non-medical evidence”. That, perhaps, should not be understood as a form of good character evidence, but one would not normally expect a professional report of a forensic psychiatrist to be considered as character evidence in relation to the subject of the report.

146. The applicant’s written submissions commenced with the statement that “[g]ood character can be a consideration in criminal proceedings.” That is true, if an accused person seeks to adduce character evidence. The submission continued: [100]

“Therefore, the failure to consider relevant good character evidence from lay witnesses and that evidence as to character from Dr Diamond meant that the Judicial Officer did not properly assess the diary evidence given by the Plaintiff.”

100. Applicant’s written submissions, par 171.

147. The applicant’s submissions did not identify the good character evidence, nor did they refer to any submissions made to the inquiry as to good character evidence. The Attorney inferred that the intended reference was to three affidavits which had been provided prior to the hearing, but which were not tendered. No response was made to that suggestion in the applicant’s submissions in reply.

148. It should be noted, however, that the Report contained summaries of the evidence given by members of the family, neighbours and friends, much of which was either neutral or favourable to the applicant. What was sought to be made of this material by the applicant, if anything, was not identified in this Court.

149. The precise nature of the error relied upon was not specified in the written submissions: however, the ground need not be considered further because the factual propositions underlying it are not established.

1. failing to address the applicant’s submissions as to the interpretation of her diaries

150. The content of the submissions which were said not to have been addressed by the judicial officer were not identified in this Court. However, the written submissions said to relate to this ground appeared to have two propositions underlying them. One appeared in the following statement: [101]

“The exercise of examining and interpreting the diaries on the assumption that the children had died of natural causes was still necessary as a matter of logic, procedural fairness, and the discharge of the statutory function.”

101. Applicant’s written submissions, par 179.

151. This submission relied upon the proposition discussed above and rejected, that the judicial officer was bound to form a view that there was a reasonable alternative inference available from the diaries which was exculpatory, or neutral, rather than inculpatory, because the premise was an assumption of innocence.

152. The second proposition appeared in the following passage: [102]

“As the interpretation of the Plaintiff’s diary entries were [sic] supposedly one of the foci of the Inquiry, it was legally unreasonable to simply allow into evidence those entries that were potentially prejudicial to the Plaintiff without placing them in the broader context of the diary entries as a whole, and having regard to the mental health of the Plaintiff at the time writing.”

102. Applicant’s written submissions, par 174.

153. The factual premise for this complaint was that relevant diary entries, and other evidence as to her state of mind, were excluded from the evidence taken at the inquiry. That premise was not made good. If the proposition was that counsel assisting did not tender all the material which the applicant thought relevant, then it was a matter for the applicant to take up at the hearing and proffer further material. However, as noted by the Attorney in his submissions, a 1992 diary identified by senior counsel for the applicant as relevant, which counsel assisting did not consider relevant, was in fact included in the bundle. [103] The applicant’s submissions in reply did not cavil with that proposition.

     103. Inquiry Tcpt, 29/04/19, p 620(19)-(27).

154. In Ch 8 of the Report, express reference was made to Ms Folbigg’s sworn evidence about the interpretation of the diaries; [104] the submissions were summarised, [105] a complaint that she had been denied the opportunity to provide “context” evidence was specifically addressed, [106] and rejected, with explanation, as “without merit”. [107] The judicial officer’s construction of the diaries was set out in some detail. [108] That discussion expressly addressed proposed interpretations, suggestions made in her evidence and the various innocent explanations provided for specific phraseology. The factual proposition underlying this ground is without any foundation. The ground need not be entertained further.

     104. Report, Ch 8, pars 254-264.

     105. Report, Ch 8, pars 366-375 and 409-425.

     106. Report, Ch 8, pars 446-459.

     107. Report, Ch 8, pars 447.

     108. Report, Ch 8, pars 460-494.

(j)   constraining the admission of evidence of context in relation to the diaries

155. As noted in relation to the previous matter, this was an issue raised before the inquiry and expressly dealt with in the Report under the heading “Findings regarding procedural fairness”. [109] The judicial officer found:

     109. Report, Ch 8, pars 446-449.

“448   The ‘context’ evidence foreshadowed in the application on behalf of Ms Folbigg before the commencement of her evidence comprised how the diaries were generated, the nature of her relationship with her adoptive family and her husband, and ‘some of the issues that were going on at the time’ of the diary entries.

449   In her submissions Ms Folbigg acknowledged that ‘some (but not all) of the context in which the diaries were written’ was in material before the Inquiry. She went on to refer at length to the context in which the entries had been written, her belief system, and her emotional or likely emotional state, as summarised above. The submissions were silent as to what other context-related material or evidence Ms Folbigg said should and could have been before the Inquiry.

450   It is plain that the Inquiry received extensive evidence about each area of context raised on her behalf before her evidence and in the written submissions.

451   First, Ms Folbigg gave extensive evidence of context in response to examination by counsel assisting the Inquiry, and cross-examination by counsel for the DPP and counsel for Mr Folbigg. She also gave evidence of context in response to questions by her counsel. Her own evidence covered her belief system, her emotional state at the time of writing the diary entries, and her relationships with her biological and adoptive families, and her husband.

452   Secondly, the Inquiry received into evidence context evidence from the trial in the form of non-medical evidence such as Mr Folbigg’s testimony about Ms Folbigg’s behaviour and attitudes towards the children and her response to their deaths, and letters between Ms Folbigg and Mr Folbigg which she was asked questions about by her counsel in the Inquiry. The transcript of trial evidence before the jury was tendered in the Inquiry on 12 January 2018. Parts of the trial transcript, and trial exhibits, were relied upon as relevant context evidence in the submissions on behalf of Ms Folbigg.

453   Thirdly, the Inquiry also received into evidence context evidence in the form of the psychiatric assessment report prepared by Dr Diamond at the request of Ms Folbigg’s representatives in 2019, as well as reports prepared by other psychiatrists at the time of Ms Folbigg’s sentence in 2003.

…

455   The suggestion that evidence of context was excluded as a result of the ruling is wrong. Ms Folbigg was provided with reasonable notice of the evidence to be received in the Inquiry and a reasonable opportunity to present her case, including context evidence. She did so both orally in her evidence, and in writing in her submissions.”

156. The written submissions for the applicant did not address these passages in the Report. In the absence of any submission that the statements contained in these paragraphs are inaccurate, the ground need not be entertained further.

(k)   method of redacting documentary evidence

157. Finally, the applicant maintained her reliance upon two allegations of procedural unfairness, namely the unilateral redaction of documentary evidence without consultation with parties given leave to appear, and “redacting documentary evidence that was relevant to the statutory function of the [judicial officer to inquire].”

158. In substance, the question of redaction has been addressed in dealing with the matters identified under grounds (c), (d) and (e) above. Any concern that the process of redaction adopted by counsel assisting was procedurally unfair was a matter which should have been raised with the judicial officer in the course of the inquiry. It is the denial of an opportunity to raise an issue which is the gravamen of any complaint of procedural unfairness.

159. In written submissions filed on behalf of the applicant it was said that the redactions “precluded the Plaintiff making submissions about those matters. This was an egregious denial of procedural fairness.” The colourful language does not overcome the absence of substance in the submission. It was then said that relevant documents had not been disclosed to the applicant, a claim unrelated to the ground. In fact it was not submitted that any document was withheld from the applicant: the redactions were all apparent on the face of documents which were tendered. In some circumstances it appears that the applicant took issue with the redactions, sometimes unsuccessfully; in other circumstances she did not. The ground is not an objection to rulings of the judicial officer, nor to the failure of counsel assisting to disclose documents which should have been disclosed. The fact that counsel assisting considered it appropriate to redact passages from particular documents involved no element of procedural unfairness. The applicant was not deprived of any opportunity to raise the completeness of the evidence with the judicial officer and obtain rulings as she or her legal representatives thought appropriate. The ground must be rejected.

Conclusions

160. Had any of the plethora of specific complaints had been upheld, but others not, there would have been difficult questions as to the consequence of such rulings. Issues as to materiality of specific errors with respect to the operative opinion would have arisen. As the High Court held in Minister for Immigration and Border Protection v SZMTA [110] “[a] breach is material to a decision only if compliance could realistically have resulted in a different decision.” [111] None of this was addressed in submissions. As it is, each of the grounds pressed by the applicant and identified in the further amended list of issues handed up at the hearing, must be rejected.

     110. (2019) 264 CLR 421; [2019] HCA 3.

     111. Ibid at [45] (Bell, Gageler and Keane JJ); see also Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 at [30] (Kiefel CJ, Gageler and Keane JJ).

161. This was not a case in which the judicial officer’s conclusion was at odds with the scientific evidence. The scientific evidence raised a theoretical possibility that there were innocent explanations for the deaths of the two girls. However, the judicial officer was required to consider evidence that, although the CALM2 abnormality in Ms Folbigg and the two girls involved a change in an amino acid in the vicinity of Gly114, their circumstances departed from the reported cases of deaths associated with CALM abnormalities. In particular, (i) the change in the affected amino acid was not the same, (ii) the change in the Folbiggs’ genome was hereditary and not de novo, (iii) the girls died at younger ages, (iv) the girls apparently died suddenly when asleep and not during exertion, (v) there was an absence of prior symptomatology, and (vi) Ms Folbigg did not have LQTS or CPVT, being cardiac manifestations commonly associated with it. The girls’ deaths were thus “outliers” when compared with those reported in the literature. Further, the boys’ genomes provided no common cause. When these matters were weighed with the inculpatory inferences derived from Ms Folbigg’s diary entries and her evidence in seeking to present innocent explanations of them, there was an ample basis, consistent with the scientific evidence, for the judicial officer to conclude that there was no reasonable doubt as to Ms Folbigg’s guilt.

162. The Court makes the following orders:

1. Dismiss the further amended summons seeking judicial review of the Report of the judicial officer.

2. Order that the applicant pay the Attorney’s costs of the proceedings in this Court.

**********

Endnotes

Decision last updated: 24 March 2021