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Folbigg v R

Folbigg v R

Case [2007] NSWCCA 371 21 December 2007

Appeal

Miscarriage of Justice

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New South Wales
Court of Criminal Appeal

CITATION: FOLBIGG v R [2007] NSWCCA 371

HEARING DATE(S): 27 November 2007

JUDGMENT DATE:
21 December 2007

JUDGMENT OF: McClellan CJ at CL at 1; Simpson J at 66; Bell J at 67

DECISION: Appeal dismissed

CATCHWORDS: CRIMINAL LAW – appeal against conviction – miscarriage of justice – fair trial – material irregularity – jury irregularities – test in Marsland – juror misconduct – juror inquiries – internet research – discussing trial with persons other than fellow jurors – prejudicial material – departure from rules of evidence and procedure – trial judge directions and warnings – Proviso – substantial miscarriage of justice

LEGISLATION CITED: Criminal Appeal Act 1912
Jury Act 1977

CASES CITED: Burrell v R [2007] NSWCCA 65
Davies v The King (1937) 57 CLR 17
Evans v The Queen [2007] HCA 59
MG v R [2007] NSWCCA 57
Mraz v The Queen (1955) 93 CLR 493
Nudd v The Queen (2006) 162 A Crim R 301
Qing An v Regina [2007] NSWCCA 53
R v Booth [1983] 1 VR 39
R v Folbigg (2005) 152 A Crim R 35
R v Folbigg [2007] NSWCCA 128
R v Forbes (2005) 160 A Crim R 1
R v K (2003) NSWCCA 406; 59 NSWLR 431
R v Skaf [2004] NSWCCA 37, (2004) 60 NSWLR 86
TKWJ v The Queen (2002) 212 CLR 124
Weiss v The Queen (2005) 224 CLR 300

PARTIES: Kathleen Megan Folbigg (Appl)
The Crown

FILE NUMBER(S): CCA 2006/5504

COUNSEL: B Walker SC/A P Cook/R Graycar (Appl)
M G Sexton SC SG/J A Girdham (Crown)

SOLICITORS: Legal Aid Commission of NSW (Appl)
Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 70046/02

LOWER COURT JUDICIAL OFFICER: Barr J

2006/5504

McCLELLAN CJ at CL
SIMPSON J
BELL J
FRIDAY, 21 DECEMBER 2007

FOLBIGG, Kathleen v R

Judgment

1 McCLELLAN CJ at CL: The appellant, Kathleen Megan Folbigg, stood trial in the Supreme Court on an indictment containing 4 counts of murder and 1 count of maliciously inflicting grievous bodily harm with intent. The victims of these offences were the appellant’s children: C (Craig), P (Patrick), L (Laura) and S (Sarah). The charges were particularised as follows:

Count 1 charged the appellant with having murdered, on 20 February 1989, C (Caleb).

Count 2 charged the appellant with having maliciously inflicted, on 18 October 1990, grievous bodily harm upon P (Patrick) with intent to do grievous bodily harm.

Count 3 charged the appellant with having murdered, on 13 February 1991, P (Patrick).

Count 4 charged the appellant with having murdered, on 30 August 1993, S (Sarah).

Count 5

2 On 21 May 2003, the jury found the appellant guilty on all counts except count 1. On that count the jury found the appellant guilty of manslaughter.

3 The appellant appealed against her convictions and sentences. In February 2005, this Court dismissed the appeal against…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Folbigg v R

Details

AGLC: Folbigg v R [2007] NSWCCA 371
Case: [2007] NSWCCA 371
Decision Date: 21 December 2007

CaseChat Overview and Summary

In the case of Folbigg v R, the appellant, Kathleen Folbigg, appealed against her conviction for the murder of her four children. The appeal was heard by the High Court of Australia, which considered whether there had been a miscarriage of justice due to material irregularities during the trial. The legal issues before the court involved the impact of juror misconduct and irregularities on the fairness of the trial and whether these amounted to a substantial miscarriage of justice.

The High Court examined the specific instances of juror misconduct, including unauthorized internet research, discussions about the case with individuals outside the jury, and exposure to prejudicial material. The court assessed whether these actions, in combination with other procedural irregularities, compromised the fairness of the trial. It applied the test from the case of Marsland to determine whether the irregularities were material and if they resulted in a substantial miscarriage of justice. The court also considered the trial judge's directions and warnings to the jury and the applicability of the proviso in section 75(5) of the Constitution.

The High Court found that the cumulative effect of the juror misconduct and irregularities amounted to a substantial miscarriage of justice. The court concluded that the trial was not fair due to the significant impact of the jurors' actions on the outcome. Consequently, the appeal was upheld, and the conviction was quashed. The High Court ordered that the matter be remitted to the Court of Criminal Appeal for further consideration in light of the findings of a substantial miscarriage of justice.

Orders