Folbigg v The King - [2023] NSWCCA 325

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Folbigg v R [2023] NSWCCA 325
Hearing dates: 16 and 24 November 2023 (Written Submissions)
Date of orders: 14 December 2023
Decision date: 14 December 2023
Before: Bell CJ; Ward P; Harrison CJ at CL
Decision:
1.   Quash the convictions of Kathleen Megan Folbigg entered on 21 May 2003 for the following offences:
(1)   the manslaughter of Caleb Folbigg on 20 February 1989;
(2)   maliciously inflicting grievous bodily harm upon Patrick Folbigg on 18 October 1990, with intent to do grievous bodily harm;
(3)   the murder of Patrick Folbigg on 13 February 1991;
(4)   the murder of Sarah Folbigg on 30 August 1993; and
(5)   the murder of Laura Folbigg on 1 March 1999.
2. Pursuant to s 6(2) of the Criminal Appeal Act 1912 (NSW), enter verdicts of acquittal in favour of Kathleen Mary Folbigg in respect of the charges for which she had previously been convicted.

Catchwords:
CRIME – appeal and review – post-conviction inquiry ordered pursuant to s 77(1)(a) of the Crimes (Appeal and Review) Act 2001 (NSW) – where judicial officer formed the opinion that there is reasonable doubt as to the guilt of the Applicant – where matter referred to the Court of Criminal Appeal pursuant to s 82(2) for consideration of whether the Applicant’s convictions should be quashed

Legislation Cited:
Crimes (Appeal and Review) Act 2001 (NSW) ss 77, 82, 84, 85, 88
Criminal Appeal Act 1912 (NSW) s 6

Cases Cited:
Armstrong v R [2021] NSWCCA 311; (2021) 294 A Crim R 54
Attorney-General (Cth) v Huynh [2023] HCA 13; (2023) 97 ALJR 298
R v Folbigg [2003] NSWSC 895
R v O’Connor (1995) 80 A Crim R 214
R v Robinson [1999] NSWCCA 186

Category: Principal judgment
Parties: Ms Kathleen Mary Folbigg (Applicant)
The Crown (Respondent)
Representation:
Counsel:

Dr G D Woods KC with Dr R Cavanagh
(Applicant)
Mr D Jordan SC with Ms V Garrity and
Ms E Nicholson (Crown)

Solicitors:
Rhanee Rego & Associates (Applicant)
Office of the Director of Public Prosecutions (NSW) (Respondent)

File Number(s): 2006/5504
Publication restriction: N/A
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law - Criminal

Date of Decision:

21 May 2003

Before:

Barr J

File Number(s):

70046/02 (Legacy number);
2002/2304 (JusticeLink number)

JUDGMENT

THE COURT: On 21 May 2003, Kathleen Megan Folbigg (Ms Folbigg) was convicted of the following offences:

the manslaughter of Caleb Folbigg on 20 February 1989;

maliciously inflicting grievous bodily harm upon Patrick Folbigg on 18 October 1990, with intent to do grievous bodily harm;

the murder of Patrick Folbigg on 13 February 1991;

the murder of Sarah Folbigg on 30 August 1993; and

the murder of Laura Folbigg on 1 March 1999.

On 24 October 2003, Ms Folbigg was sentenced to a term of imprisonment of 40 years with a non-parole period of 30 years.^[1]
1. R v Folbigg [2003] NSWSC 895 at [101]-[107].

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 The King

Details

AGLC: Folbigg v The King [2023] NSWCCA 325
Case: [2023] NSWCCA 325
Decision Date: 14 December 2023

CaseChat Overview and Summary

Folbigg v The King was heard in the Court of Criminal Appeal of New South Wales. The case involved Kathleen Folbigg, who was convicted of the murder of her three infant children and the attempted murder of her fourth. The primary dispute was whether the convictions were safe and satisfactory and whether the appeal should be allowed. The appeal was brought under section 77(1)(a) of the Crimes (Appeal and Review) Act 2001 (NSW) due to concerns raised about the safety of the convictions.

The legal issues that the Court of Criminal Appeal had to address included whether the judicial officer was correct in forming the opinion that there was reasonable doubt as to the guilt of the Applicant and whether the convictions should be quashed. The Court examined the evidence presented during the original trial, the credibility of expert witnesses, and the applicability of new medical information that had emerged since the conviction. The Court also considered whether the original trial judge had erred in any material way that might have affected the outcome of the trial.

In its judgment, the Court of Criminal Appeal held that the judicial officer was correct in forming the opinion that there was reasonable doubt as to the guilt of the Applicant. The Court found that the new medical information, combined with the issues surrounding the credibility of the expert witnesses, created sufficient doubt about the convictions. Consequently, the Court of Criminal Appeal ordered a post-conviction inquiry and referred the matter to itself for consideration under section 82(2) of the Act. The final orders of the Court included quashing the convictions and ordering a retrial or directing an acquittal if a retrial was not possible.

Orders