Folbigg v Attorney General of New South Wales

The applicant, Kathleen Folbigg, sought judicial review of the report of a judicial officer appointed to conduct an inquiry into her criminal convictions for the deaths of her four children. The Attorney General of New South Wales was the respondent. The core of the dispute concerned the judicial officer's opinion that no reasonable doubt attended Ms Folbigg's convictions, a finding made pursuant to s 82(2)(a) of the *Crimes (Appeal and Review) Act 2001* (NSW).

The legal issues before the Court of Appeal of New South Wales included whether the judicial officer's opinion was vitiated by irrationality, capriciousness, or arbitrariness, and whether the judicial officer had unlawfully disregarded relevant material. Further, the Court considered whether the judicial officer had breached procedural fairness by improperly rejecting evidence, failing to consider submissions, and neglecting to consider evidence of good character, as well as whether the inquiry should have been reopened. The justiciability of the challenge to the judicial officer's opinion, particularly in relation to the exercise of the prerogative of mercy and the distinction from similar procedures in other jurisdictions, was also a central question.

The Court of Appeal reasoned that the judicial officer's task was to determine whether there was a reasonable doubt as to Ms Folbigg's guilt, applying the correct legal test under s 82(2)(a) of the *Crimes (Appeal and Review) Act 2001* (NSW). The Court found that the judicial officer had correctly understood and applied this test, and that the opinion reached was not arbitrary, capricious, or irrational. The Court also concluded that the judicial officer had not breached procedural fairness, having considered the evidence and submissions presented, and that the rejection of certain evidence was not improper. The Court distinguished the present case from the Queensland procedure under s 672A of the *Criminal Code* and affirmed the justiciability of the judicial review.

The Court of Appeal dismissed the further amended summons seeking judicial review of the report and ordered that the applicant pay the Attorney General's costs of the proceedings.