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R v Folbigg

R v Folbigg

Case [2002] NSWSC 1127 29 November 2002

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CITATION: R v Folbigg [2002] NSWSC 1127 revised - 30/05/2003

CURRENT JURISDICTION: Common Law Divsion

FILE NUMBER(S): SC 70046/02

HEARING DATE(S): 22/11/02

JUDGMENT DATE: 29 November 2002

PARTIES :

Regina
Kathleen Megan Folbigg

JUDGMENT OF: Wood CJatCL at 1

COUNSEL : M A G Tedeschi, QC (Crown)
P Zahra SC (Senior Public Defender)

SOLICITORS: S E O'Connor (Crown)
D J Humphreys (Legal Aid)

CATCHWORDS: CRIMINAL LAW - accused charged with murder of four children, and one attempted murder - plea of not guilty - defence application to have trials heard individually and separately - Tendency and coincidence evidence.

LEGISLATION CITED: Crimes Act 1900
Evidence Act 1995

CASES CITED: DPP v P [1991] 2 AC 443
Gipp v The Queen (1998) 194 CLR 106
Hoch v The Queen (1988) 165 CLR 292
KRM v The Queen (2001) CLR 211
Perry v The Queen (1982) 150 CLR 580
Pfennig v The Queen (1995) 182 CLR 46
R v ACK NSWCCA 22 April 1996
R v AH (1997) 98 A Crim R 71
R v Bell [2002] NSWCCA 2
R v Benecke (1999) 106 A Crim R 282
R v Chamilos NSWCCA 24 October 1983
R v Colby [1999] NSWCCA 261
R v Clark [2000] EWCA 54
R v GK [2001] NSWCCA 413
R v Jackson [2001] NSWCCA 387
R v Joiner [2002] NSWCCA 354
R v Lisoff [1999] NSWCCA 364
R v Lock (1997) 91 A Crim R 356
R v Lockyer (1996) 89 A Crim R 457
R v Martin [2000] NSWCCA 332
R v Phillips [1999] NSWSC 115
R v Serratore (1999) 48 NSWLR 101
R v Singh-Bal (1997) 92 A Crim R 397
R v Straffen [1952] 2 QB 911
R v Verma (1987) 30 A Crim R 441
R v WRC [2002] NSWCCA 210
R v Zappala NSWCCA 4 November 1991
Shepherd v The Queen (1990) 170 CLR 573
Sutton v The Queen (1984) 153 CLR 528
Thompson v The Queen (1989) 169 CLR 1
Wilson v The Queen (1970) 123 CLR 334

DECISION: Application for separate trials refused. Tendency and coincidence evidence admissible on a limited basis.

- 53 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

WOOD CJ at CL

Friday 29 November 2002

70046/02 Regina v Kathleen Megan Folbigg

JUDGMENT

1 HIS HONOUR: The accused has been arraigned, pursuant to an indictment charging her with the murder of four of her infant children, Caleb, Patrick, Sarah and Laura, and with an additional offence of maliciously inflicting grievous bodily harm to Patrick, with intent to do him grievous bodily harm, some 4 months before his death.

2 A notice of motion has been filed by the applicant, seeking that the counts relating to the murders of Caleb, Sarah and Laura each be heard individually and separately from the counts relating to Patrick. She does not object to the counts relating to that child being heard together.

BACKGROUND

3 The Crown opposes the application, and seeks to rely on the evidence relating…

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 R v Folbigg

Details

AGLC: R v Folbigg [2002] NSWSC 1127
Case: [2002] NSWSC 1127
Decision Date: 29 November 2002

CaseChat Overview and Summary

In the case of R v Folbigg, the defendant, Kathleen Folbigg, was charged with the murder of her four children and one count of attempted murder. Folbigg entered a plea of not guilty to all charges. The case was heard in the Supreme Court of New South Wales. The central issue before the court was whether the trials for the separate charges should be heard together or individually and separately. The defence argued for separate trials to prevent the jury from being overwhelmed by the volume of evidence and the potential for prejudice arising from the similarity of the charges.

The court examined the nature of the evidence and the potential impact on the fairness of the trial. The defence raised concerns about the use of tendency and coincidence evidence, which could unfairly prejudice the jury against the accused. The court considered the potential for prejudice and the necessity of ensuring a fair trial. Ultimately, the court found that the evidence was such that it could be managed within a single trial without causing undue prejudice. The court ruled that the trials should proceed together, but with appropriate measures to mitigate the risk of prejudice.

The court's reasoning was grounded in the need to balance the rights of the accused to a fair trial with the practicalities of managing a complex case involving multiple charges. The court acknowledged the potential for prejudice but concluded that the evidence could be managed within a single trial. The outcome was that the trials would proceed together, with measures in place to ensure the fairness of the process. The court's decision was that the trials would be heard together, but the court would take steps to manage the evidence and ensure the fairness of the trial.

Orders