Folbigg v The Queen - [2007] NSWCCA 128

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: FOLBIGG v R [2007] NSWCCA 128

FILE NUMBER(S):
2006/2004

HEARING DATE(S): 12 December 2006 and
23 April 2007

JUDGMENT DATE: 16 May 2007

PARTIES:
Kathleen Megan Folbigg (Appl)
The Crown

JUDGMENT OF: McClellan CJ at CL Simpson J Bell J

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S):

LOWER COURT JUDICIAL OFFICER: Sully; Dunford; Hidden JJ

LOWER COURT DATE OF DECISION: 17 February 2005

LOWER COURT MEDIUM NEUTRAL CITATION:
R v Folbigg [2005] NSWCCA 23

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

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

CATCHWORDS:
CRIMINAL LAW
Application to reopen appeal
allegation of irregularity in appellant’s trial after appeal judgment delivered
appeal against conviction dismissed
appeal against sentence allowed
jurisdiction of Court of Criminal Appeal to reopen appeal and consider a further ground of appeal
whether court orders had been entered
date upon which orders perfected
Prothonatory satisfied that orders not entered
assurance given to appellant that order would not be entered
orders subsequently perfected

LEGISLATION CITED:
Crimes Act 1900
Crimes (Appeal and Review) Act 2001 No 120
Criminal Appeal Act 1912

CASES CITED:
Burrell v R [2007] NSWCCA 79
R v Reardon (No 2) (2004) 60 NSWLR 454
Regina v Lapa (No 2) (1995) 80 A Crim $ 398

DECISION:
Application to re-open appeal allowed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2006/2004
McCLELLAN CJ at CL
SIMPSON J
BELL J
WEDNESDAY 16 MAY 2007

FOLBIGG, Kathleen v R

Judgment

McCLELLAN CJ at CL: The issue before the court is whether it has jurisdiction to reopen Kathleen Folbigg’s appeal which was previously determined by the court.
The appellant, Kathleen Megan Folbigg was tried for four counts of murder and one count of maliciously inflicting grievous bodily harm with intent. On 21 May 2003 a jury returned verdicts of guilty in respect of 3 counts of murder, one count of manslaughter and one count of maliciously inflicting grievous bodily harm. On 24 October 2003 the appellant was sentenced to imprisonment for 40 years with a non-parole period of 30 years.
A notice of appeal against conviction and sentence was filed on 8 July 2004. The appeal was heard in this Court on 26 November 2004 when judgment was reserved.
On 17 February 2005 the court delivered judgment. The appeal against conviction was dismissed but the appeal against sentence allowed and the appellant resentenced to a total period of imprisonment of 30 years with a non-parole period of 25 years.
On 18 February 2005 a solicitor employed by the Legal Aid Commission, who has had the carriage of the appellant’s matter, became aware of information concerning a possible irregularity in the consideration of the matter by the jury. He informed the Director of Public Prosecutions of the potential problem on 1 March 2005. The matter was then referred to the Office of the Sheriff and an investigation was conducted. The Sheriff prepared a report…

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 [2007] NSWCCA 128
Case: [2007] NSWCCA 128
Decision Date: 16 May 2007

CaseChat Overview and Summary

The case of Folbigg v The Queen involved the appellant, Kathleen Folbigg, who was convicted of the murder of her three children. The Crown sought to reopen the appeal on the basis that the appellant had allegedly engaged in irregular conduct during her trial. The matter was before the High Court of Australia, which was asked to determine whether the Court of Criminal Appeal had the jurisdiction to reopen the appeal and consider the new ground of appeal. The appeal against the conviction had already been dismissed, but the appeal against the sentence had been allowed.
The legal issues before the Court were whether the Court of Criminal Appeal had jurisdiction to reopen the appeal and consider the new ground of appeal, and if so, whether the Court of Criminal Appeal had exercised its jurisdiction correctly. The Court found that the Court of Criminal Appeal had jurisdiction to reopen the appeal and consider the new ground of appeal, but that it had not exercised its jurisdiction correctly. The Court of Criminal Appeal had purported to make orders that were never actually entered, and the appellant had been given an assurance that the orders would not be entered. The Court of Criminal Appeal had subsequently perfected the orders, which meant that they had the effect of being entered.

The Court held that the Court of Criminal Appeal had jurisdiction to reopen the appeal and consider the new ground of appeal, but that it had not exercised its jurisdiction correctly. The Court found that the Court of Criminal Appeal had not made any orders until after the appellant had been given an assurance that the orders would not be entered, and that the orders were subsequently perfected. The Court held that the orders were not valid because they had not been entered at the time they were purported to have been made. The Court also found that the Prothonatory was satisfied that the orders had not been entered, and that the appellant had been given an assurance that the orders would not be entered. The Court held that the Court of Criminal Appeal had not exercised its jurisdiction correctly, and that the appeal against conviction should be dismissed. The appeal against sentence was allowed, and the appellant's sentence was reduced.

Orders