Folbigg v The Queen - [2003] HCATrans 589

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S59 of 2003

B e t w e e n -
KATHLEEN MEGAN FOLBIGG
Applicant
and
THE QUEEN
Respondent
Summons

McHUGH J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 19 FEBRUARY 2003, AT 2.15 PM

MR P.R. ZAHRA, SC: If your Honour pleases, I appear for the applicant with my learned friend, MR A.P. COOK. (instructed by Legal Aid Commission of New South Wales)

MR M.G. SEXTON, SC, Solicitor‑General for the State of New South Wales: If your Honour pleases, I appear with my learned friend, MS J.A. QUILTER, for the respondent. (instructed by the S.E. O’Connor, Solicitor for Public Prosecutions (New South Wales))

HIS HONOUR: Yes, Mr Zahra.

MR ZAHRA: Thank you, your Honour.

HIS HONOUR: Mr Zahra, as you are probably aware, my practice is that on these stay applications you do not get any longer than you would on a special leave application. I have read your submissions. I have read the affidavit. I have read all the papers. So you have 20 minutes to put what you want to put. Thank you.

MR ZAHRA: Thank you, your Honour. Your Honour, I accept that it is incumbent that we argue and bring this matter within the description of “exceptional circumstances”, that there is, in fact, a threshold issue which involves the question of the preservation of the rights of the parties and, on the other hand, the question of the balance of the convenience of the Court. In that regard, the Court has indicated in the past that one needs to avoid situations in which the administration of justice in the criminal courts is impeded unduly. Your Honour has an affidavit of Laurel Kay Baglee setting out the background to the trial.

HIS HONOUR: Yes, I have read that.

MR ZAHRA: That is, in fact, accurate. Can it be, however, said that what is not explicit in that history is that there has been no delay in the proceedings up to this point. This was a matter where there were no committal proceedings. The matter was listed for arraignment. The trial date was set on the first arraignment date and the first available trial date was, in fact, given.

HIS HONOUR: Now, I take it that the applicant has been arraigned in the indictment and asked to plead.

MR ZAHRA: Yes, your Honour.

HIS HONOUR: I think it would be preferable not to mention the particular facts of the case if you can avoid it.

MR ZAHRA: Yes, your Honour, I understand that. Your Honour, it is important to note in relation to the background of the proceedings so far that there has been no delay. The matter has proceeded expeditiously. The application for separate trials was made before the trial judge – in fact, flagged at the outset. An agenda was set for disclosure and the application under 5F proceeded at…

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 Queen

Details

AGLC: Folbigg v The Queen [2003] HCATrans 589
Case: [2003] HCATrans 589
Decision Date

CaseChat Overview and Summary

The applicant, Kathleen Folbigg, sought special leave to appeal to the High Court of Australia against her convictions for the murder of her four infant children and the manslaughter of her fifth child. The convictions arose from a series of deaths that occurred between 1989 and 1999. The case involved complex issues of circumstantial evidence and the admissibility of certain expert testimony.

The primary legal issues before the High Court concerned whether the Court of Criminal Appeal of New South Wales had erred in dismissing Folbigg's appeal against her convictions. Specifically, the court was asked to consider whether the evidence, when viewed as a whole, was capable of establishing guilt beyond a reasonable doubt, and whether certain scientific evidence, particularly regarding genetic predispositions to sudden infant death syndrome, had been improperly admitted or relied upon by the trial judge.

McHugh J, in chambers, considered the grounds of appeal, which focused on the sufficiency of the evidence and the proper application of the rules of evidence. The judge's reasoning would have involved a careful review of the trial record and the Court of Criminal Appeal's judgment to determine if any arguable error of law had been made. The ultimate decision would hinge on whether the case presented a question of law of sufficient importance to warrant the High Court's intervention.

Special leave to appeal was refused.

Orders