Folbigg v The Queen

[2005] HCATrans 657

[2005] HCATrans 657

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S94 of 2005

B e t w e e n -

KATHLEEN MEGAN FOLBIGG

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH ACJ
KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 2 SEPTEMBER 2005, AT 9.29 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friend, MR A.P. COOK, for the applicant.  (instructed by Legal Aid Commission of New South Wales)

MR M.G. SEXTON, SC, Solicitor‑General for the State of New South Wales:   If the Court pleases, I appear with my learned friend, MS A.M. MITCHELMORE, for the respondent.  (instructed by Solicitor for Public Prosecutions (New South Wales))

McHUGH ACJ:   Yes, Mr Jackson.

MR JACKSON:   Thank you, your Honours.  May I deal with matters in this order:  first, with the question that I might call tendency and coincidence evidence; secondly, with probability evidence of the medical practitioners; and, third, with our responses to two matters in the Crown’s submissions. 

Your Honours, if I could turn to the first of those matters.  The applicant was found guilty of five offences in relation to her four children, one of manslaughter, three of murder and one of grievous bodily harm to a child who was later the victim of one of the counts of murder.  Your Honours will see that recited in paragraphs 1 to 7 of the Court of Criminal Appeal at page 190. 

It was accepted at the trial that the evidence on each count, considered individually, would not justify a verdict of guilty.  Your Honours will see that referred to at page 197, paragraph 43.  That is in the Court of Criminal Appeal.  We have given the trial reference in our written submissions at page 292, paragraph 53. 

Your Honours, the evidence of the deaths, if I can put them collectively in that way, to put it shortly, of the other children, was relied on in respect of each count as evidence which the jury might take into account as leading to an inference of guilt on that charge.  In other words, the others could be taken into account as leading to an inference of guilt on that charge.  That takes one to the provisions of the Evidence Act dealing with tendency and coincidence evidence, namely sections 97, 98 and 101 and I will go back to sections 55 and 56 in just a moment. 

Your Honours, it is probably sufficient to refer to the position as to coincidence evidence as distinct from tendency because there are somewhat similar considerations.  Under section 98, evidence that two or more related events occurred is not admissible to prove that because of the improbability of their occurring coincidentally a person did a particular act or had a particular state of mind unless some of the conditions of the remainder of the provision are satisfied.

One is, your Honours, subsection (2) and that is that they are taken to be related events, which goes back to the opening words of section 98(1), “if and only if” and your Honours will see the two criteria there set out.  There is, your Honours, in criminal proceedings the further requirement of section 101 to be made out, and section 101 provides that the evidence, evidence on either tendency or coincidence that is adduced cannot be used unless the probative value “substantially outweighs any prejudicial effect”, to put it shortly.

If I could return to section 98, what your Honours, will see is that it is a rule which excludes evidence of a particular kind unless certain criteria are met.

McHUGH ACJ:   But is not the difficulty that you have to face up to the words that I will say are in parentheses in section 98(1)(b), “or having regard to other evidence adduced”, and is not the difficulty facing you, Mr Jackson, that the diary entries lend very cogent weight to what inferences can be drawn from the unexplained deaths?  You have a diary entry to say:

Wouldn’t of handled another like Sarah.  She’s saved her life by being different.

Diary entries saying:

My guilt . . . haunts me, my fear of it happening again haunts me . . . 

if ever feel that way again I’m going to wake –

up her husband.  Why, when the coincidence evidence is read in the light of those diary entries, was it not open to a court to think that the evidence was of significant probative value?

MR JACKSON:   Your Honour, can I come to that in just a moment because I do intend to go to that.

McHUGH ACJ:   Yes.

MR JACKSON:   What I want to do really is to go, if I may, just to one stage anterior to that as well and I need to go back to section 98 for that end.  Your Honours will see that if one goes to section 98, it excludes evidence of a particular kind unless certain criteria are met.  It is a rule which excludes evidence.  The anterior question, in a way, is how does the evidence otherwise get in and that takes one back to the test for relevance which is found in section 56 which provides two things.  One is in section 56(1), that evidence that is relevant is admissible, and the second is that evidence that is not relevant is not admissible.

Your Honours, what one sees then is that one has to decide what is the evidence that is relevant and your Honours will see that referred to in section 55 and section 55 is that:

The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue –

Now, your Honours, that is where, in our submission, one comes to the applicability in deciding that question of the approaches adopted in the reasoning in Perry v The Queen (1982) 150 CLR 580 and if I could go to that for just a moment. I wanted to go, very briefly, to three passages in the judgments starting with Justice Murphy, at page 594 ‑ ‑ ‑

HEYDON J:   Dissenting.

MR JACKSON:   Yes, your Honour, not I think in relation to the general principle.  I was going to refer also to Chief Justice Gibbs and Justice Wilson.  Page 594, the passage to which I wish to refer is that commencing under the heading at the bottom of the page, “Circular reasoning”, and your Honours will see that in that passage, which I will not read out, particularly the passage at the bottom of the page and at the top of the next page and the passage that goes through the whole of that paragraph. 

One goes then to Justice Wilson, at page 612, in a passage of reasoning about halfway down the page:

To seek to prove a fact in issue by a chain of reasoning which assumes the truth of that fact is, of course, a fallacy, repugnant alike to logic and to the practical processes of criminal courts.

Also, Chief Justice Gibbs, at page 587, in a passage which commences, I think, clearly on principle and also at page 589 ‑ ‑ ‑

KIRBY J:   Where does this lead in your submission.  Assume that there have been 10 children who have died in a very similar way, there must be a point at which it has to be left, in our system, to the jury to evaluate these things so long as the jury is properly instructed.

MR JACKSON:   Your Honour, I accept that generally speaking, if I may say so, but in circumstances where – I would say two things about it.  The first, and your Honours this is not a direct response to what your Honour put to me, I accept - that really goes to the second point I wanted to seek and that is about medical evidence of doctors being given of the improbability of this occurring.  But, if I could leave that aside and go back to a more direct answer, your Honours, the point we would seek to make is really that, if you have circumstances where one is dealing with the decision in Makin, what your Honours will see is that in that and other cases where evidence of this kind has been admitted, there is evidence which makes the happening of the event itself suspicious.

That case, which is one relied on by our learned friends, is one where you had people who were in the pattern of the day described as baby farmers who took in children, many bodies were found afterwards, but it was not just that.  What it was was a case where, at the time when they were taken in – this is a point made in the judgment, page 68 in that case – that they had taken them in in circumstances where the money was obviously, inadequate, three guineas to keep them for the whole of their childhood, in effect, and where, I think, what was also found was they had declined offers of clothing for the children so one had circumstances of submission, circumstances raising a suspicious case in the first place.  Once one makes the assumption here, which was accepted, that if you looked at the deaths themselves there was nothing to indicate one way or the other.

KIRBY J:   But, as in that case, it is said that in this case there is that additional powerful evidence from the diary, which the Court of Criminal Appeal, I think, described as chilling.

MR JACKSON:   Your Honour, that is perhaps one view.  Could I say in relation to that that what they were, of course – this has been referred to in a number of the cases in the United Kingdom dealing with the deaths of a number of children – they really are capable of description as the reflections of a grieving mother with a range of emotions which include guilt for the death of a child, self-blame, feelings of responsibility and that is particularly so in circumstances where the deaths would appear to be quite mysterious to her and they are by no means unequivocal statements of her guilt in relation to them.

McHUGH ACJ:   You have to look at the positive similarities.  Two deaths occurred during the day, two deaths and the acute life-threatening event occurred in the early hours of the morning.  In each case the applicant was alone with the child, the child ceased breathing, the husband was either absent or asleep and there was no clear, natural cause of death and all the children showed signs that were consistent with smothering with a pillow.  When you add the diary entries to those facts, why was it not open to the jury to conclude that the applicant had murdered the children?  When you have things like, “Wouldn’t of handled another like Sarah”, talking about the last child, “She’s saved her life by being different”, and, “my fear of it happening again haunts me”, and I am going to get my husband if I feel like this again.

MR JACKSON:   Your Honour, all those things, “my fear of it happening again haunts me” is exactly the sort of thing one would say by any mother who had had that number of children die.

McHUGH ACJ:   Why would she say, in front of those remarks about the “haunt”:

My guilt of how responsible I feel for them all, haunts me ‑ ‑ ‑

MR JACKSON:   Any mother who has had a number of children die, your Honour, would say something like that and one could hardly expect the most rational things to be said, the most rational things considered in a courtroom afterwards.  The point we would seek to make about it, your Honour, is that really the starting point of what your Honour put to me is, in a sense, where the difficulty in the matter lies because what you do have is something that may be consistent with smothering in the sense that smothering does not really leave traces of it, as it were, but deaths that are unexplained do not leave traces of it either.  Your Honours, that is the point we would seek to make, if I may, that we would derive a little from the decision of the English Court of Appeal in Cannings – I think the copy your Honours may have may be [2004] 1 All ER 725.

KIRBY J:   Yes, we have looked at that.

McHUGH ACJ:   Yes.

MR JACKSON:   Your Honours, the point that we would seek to make about it is that if one starts from the view that these things do not commonly happen, it is not much of a leap to say, therefore, someone did it.  If, on the other hand, one sees these are things for which there is no explanation – I am referring to paragraphs 10 and 13 ‑ ‑ ‑

McHUGH ACJ:   I know, but Cannings is a very different case.

MR JACKSON:   Your Honour, I accept that and I am not referring to it for the detail of it.  What I am seeking to say is if one looks at those paragraphs to see what is the right starting point, the right starting point, in our submission, is that you have, in respect of each of the events, the death or injury to a child which is unexplained and, in our submission, remains unexplained.

KIRBY J:   You have to be careful in the light of recent scientific knowledge, of which I am generally aware, about judging a reaction of the mother to the death of children in an entirely rational way.  People react to situations of this kind very differently but it is the combination of the coincidences which are collected by the prosecution submissions and the diary entries which seem to me to be very powerful in combination, in this case, and lifting the case above the Cannings Case and more like the Makin Case.

McHUGH ACJ:   Or Brides in the Bath.

MR JACKSON:   Your Honour, it becomes a question of the starting point really and the starting point argument does not reason very apposite to the Brides in the Bath Case which is a rather different thing altogether.

KIRBY J:   We do not have an appeal against the redetermination of sentence, do we, because that is the curious thing in this case, it seems to me, that, assuming that there was enough to go to the jury and the jury was properly instructed that any mother who would be in this position is almost, by definition, mentally disturbed ‑ ‑ ‑

MR JACKSON:   Your Honour, all I can say is that the best that I hoped could be done was done in the Court of Criminal Appeal which achieved some reduction from the sentence that I there submitted was barbarous.

KIRBY J:   It is 22 years, is it not, with no parole?

MR JACKSON:   Yes, very high.

KIRBY J:   It is still a very long sentence and that is a sentence which is appropriate to a person who has wilfully murdered this number of human beings but, in the whole context, it would seem to indicate some mental disturbance.

MR JACKSON:   Yes, your Honour.  Your Honours, could I go to the second point which we seek to raise and we put these things by themselves but also, to a degree, in combination.  This was the evidence given by the medical practitioners in relation to the question of probability.  Could I just indicate what the evidence was and your Honours will see that, if I can go briefly to page 205, there are three passages I want to go to.  At paragraph 65, your Honours will see the evidence that he gave.  I do not think I need to go to the other two passages but they can be seen in Berry, paragraphs 67 and 68 and Dr Beal, paragraph 75.

Your Honours, could we say the question that arose about this was, in a sense, its relative probative value and its prejudice.  As we have said in

our written submissions at page 292, paragraph 56, the evidence carried with it the implication that to find the applicant not guilty, the jury would have to find that the circumstances of the case were, in a sense, unique in medical history.

Allowing, in our submission, and I would refer again in that regard to the two passages from Cannings to which I referred earlier, could I just say your Honours that allowing that evidence of likelihood effectively, in our submission, as we have said in paragraph 65, reverses the burden of proof because one has to prove, one has to seek to persuade the jury, that what happened and was not known previously to happen was something that was quite, quite out of the ordinary.

KIRBY J:   But the standard directions on onus of proof and burden of proof were given by the trial judge.

MR JACKSON:   Yes, your Honour, I accept ‑ ‑ ‑

McHUGH ACJ:   When the trial judge dealt with at the bottom of 26 and 27, he said:

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.

MR JACKSON:   Your Honour, I accept that is what the judge said.

McHUGH ACJ:   I understand the point you are making.

MR JACKSON:   There was evidence, however, the evidence should not have been there, that is the point we are seeking to make, and that must have had a significant effect.  Your Honours, those are our submissions.

McHUGH ACJ:   Thank you.  We need not hear you, Mr Solicitor.

We are not convinced that error has been shown in the conclusions or the reasoning of the Court of Criminal Appeal of New South Wales such that it would warrant the grant of special leave to appeal to this Court.  Essentially, we think that this was a case for the decision of the jury on the coincidence or tendency evidence led against the applicant in this unusual case.  But apart from the coincidence evidence, there was other strong evidence, especially the diary entries made by the applicant, that was available to support the inferences that could be drawn from the tendency or coincidence evidence.  In addition, we can detect no relevant misdirection of the jury by the learned trial judge.  Nor are we convinced that there has been any miscarriage of justice in this case.  Accordingly, special leave to appeal must be refused.

AT 9.50 AM THE MATTER WAS CONCLUDED