R v Folbigg - [2005] NSWCCA 23

No judgment structure available for this case.

Reported Decision:
152 A Crim R 35

New South Wales

Court of Criminal Appeal

CITATION:
Regina v Folbigg [2005] NSWCCA 23

HEARING DATE(S): 26 November 2004

JUDGMENT DATE:

17 February 2005

JUDGMENT OF:
Sully J at 1; Dunford J at 192; Hidden J at 193

DECISION:
Extension of time granted to permit of hearing of present appeal and application; Appeal against convictions dismissed; Leave granted to appeal against sentence; sentences passed at first instance on Counts 4 and 5 quashed and appellant re-sentenced on those counts as follows; On Count 4 to imprisonment for 20 years to commence on 22 April 2008 and to expire on 21 April 2028; no non-parole period set because of the overall structure of the appellant's re-sentencing; On Count 5 to imprisonment for 22 years to commence on 22 April 2011 and to expire on 21 April 2033 with a non-parole period of 17 years to expire on 21 April 2028.

LEGISLATION CITED:

Evidence Act 1995 (NSW)
Criminal Appeal Act 1912 (NSW)

CASES CITED:
GK (2001) 53 NSWLR 317
Makin v Attorney General of New South Wales [1894] A C 57 at 65
Reg v Boardman [1975] A C 421 at 456E
Harris v Director of Public Prosecutions [1952] A C 694
Reg v Cannings [2004] 1 WLR 2067
M v The Queen (1994) 181 CLR 487 at 493
Jones v The Queen (1997) 191 CLR 439
MFA v The Queen (2002) 213 CLR 606
R v Ellis (2003) 58 NSWLR 700
Director of Public Prosecutions v P [1991] 2 A C 447
Pearce v The Queen (1989) 194 CLR 610
Veen (No. 2) (1988) 164 CLR 465
Wong v The Queen (2001) 207 CLR 584

PARTIES:
Regina
Kathleen Megan FOLBIGG

FILE NUMBER(S):
CCA 2004/1814

COUNSEL:
M. Sexton SC/J. Girdham/A. Mitchelmore - Crown
D. Jackson QC/P. Zahra SC - Appellant

SOLICITORS:
S. Kavanagh - Crown
S. O'Connor - Appellant

LOWER COURT JURISDICTION:
Supreme Court

LOWER COURT FILE NUMBER(S):
70046/02

LOWER COURT JUDICIAL OFFICER:
Barr J

2004/1814

SULLY J
DUNFORD J
HIDDEN J
17 February 2005

RE5GINA v Kathleen Megan FOLBIGG

Judgment

SULLY J:

Introduction

1 Between 1 April 2003 and 21 May 2003 the appellant, Mrs. Folbigg, stood trial in the Supreme Court, and before Barr J and a jury, upon an indictment containing five counts.

2 Count 1 charged the appellant with having murdered, on 20 February 1989, Caleb Gibson Folbigg.

3 Count 2 charged the appellant with having maliciously inflicted, on 18 October 1990, grievous bodily harm upon Patrick Allen Folbigg with intent to do grievous bodily harm.

4 Count 3 charged the appellant with having murdered, on 13 February 1991, Patrick Allen Folbigg.

5 Count 4 charged the appellant with having murdered, on 30 August 1993, Sarah Kathleen Folbigg.

6 Count 5 charged the appellant with having murdered, on 1 March 1999, Laura Elizabeth Folbigg.

7 On 21 May 2003 the jury found the appellant guilty as charged in each of Counts 2, 3, 4 and 5. Upon Count 1 the jury found the appellant not guilty of murder but guilty of manslaughter. On 24 October 2003 Barr J sentenced the appellant to various terms of imprisonment. The sentences were partially cumulated so as to produce an overall result of imprisonment for 40 years with a non-parole period of 30 years.

8 The appellant now appeals against all five of her convictions and she applies for leave to appeal against each of the five sentences passed upon her. The Notice of Appeal which has been copied in the Appeal Book shows a filing date of 8 July 2004. This suggests that the appellant requires an extension of time in which to appeal against her convictions and to seek leave to appeal against the sentences passed upon her. I shall propose in due course, and for more abundant caution, an order formally granting any necessary extension of time.

9 Four grounds of appeal against the convictions were notified and argued. It will be convenient to deal with them in the order in which they were argued.

The Crown Case at Trial

10 The appellant was married in September 1987 to Craig Folbigg. They had four children: Caleb, Patrick, Sarah and Laura. Each child died in infancy; died suddenly and unexpectedly; and died before the birth of the next child. In the case of each death the mechanism of death was the cessation of breathing; the post-mortem examination failed to establish exactly what had caused the cessation of breathing.

11 The appellant was the primary carer for each child. Her husband, following the unexplained death of Caleb and the subsequent birth of Patrick, left his then employment and spent a period of three months actively assisting the appellant in Patrick’s day-to-day care. Apart from that one interlude, Mr. Folbigg was at all material times in full-time employment, and the appellant was the parent responsible for the day-to-day care of the children. It was particularly significant to the Crown case that Mr. Folbigg was a very heavy sleeper, and that it was the appellant who attended to the needs of the children during the late night and early morning hours.

12 Caleb was born on 1 February 1989. He was a healthy and full-term baby; but it was early noticed that he tended to breath noisily and to stop breathing in order to feed. A specialist paediatrician diagnosed laryngomalacia, a condition that is described in more colloquial language as a “floppy larynx”. The diagnosis was that the condition was mild and that the baby would grow out of it.

13 On 20 February 1989 the appellant put Caleb to bed in a bassinette in a room adjacent to the bedroom used by her and Mr. Folbigg; and they both of them went to bed. It appeared from a record kept by the appellant of the pattern of Caleb’s sleeping and feeding that Caleb had had an unsettled night, being awake from mid-night until 2.00 a.m.

14 At some time shortly before 3.00 a.m. Mr. Folbigg was awoken by what he described as “screamed words”. He ran into the adjoining room and found the appellant standing at the end of the bassinette. She was screaming: “My baby, there’s something wrong with my baby”.

15 Caleb was lying on his back in the bassinette. He was wrapped in a rug. Mr. Folbigg picked the baby up and noted that he was warm to the touch but did not appear to be breathing. He told the appellant to call an ambulance, and himself attempted to perform CPR on the baby. Ambulance officers arrived at 2.55 a.m. but Caleb was then already dead.

16 There was nothing known at the time that was indicative of Caleb’s death having been other than natural. In due course a diagnosis of sudden infant death syndrome, (SIDS), was made; such a diagnosis being normal when a baby aged, usually, somewhere between 2 months and 6 months, dies suddenly and unexpectedly and there is no reason to suspect that the death resulted from unnatural causes.

17 It was the Crown case that the appellant had smothered Caleb.

18 Patrick was born on 3 June 1990. He, too, appeared to be a healthy baby. He slept normally in a cot in a bedroom off the dining room. As previously noted, Mr. Folbigg took 3 months off work in order to help in caring for the new baby.

19 Three days after Mr. Folbigg had resumed full-time employment he was awoken by the sound of the appellant screaming. He ran into the bedroom and found the appellant standing at the end of the cot. Mr. Folbigg at once lifted Patrick out of the cot and performed CPR, noting that Patrick was warm to the touch. Ambulance officers attended at 4.41 a.m. and took Patrick to hospital. They noted that Patrick was in respiratory distress and gave him oxygen.

20 Patrick was aged at this time 4-1/2 months. In hospital he appeared to improve; but 2 days after the initial incident he had a sudden epileptiform seizure.

21 The appellant gave Patrick’s treating doctor a history of having gone into Patrick’s room at about 3.00 a.m. in order to see why he was coughing. He seemed to be alright and she went back to bed. At about 4.30 a.m. she heard Patrick gasping. When she attended him she found that he was blue around the lips, listless and floppy but making minimal respiratory efforts and giving off a high-pitched cry.

22 A battery of diagnostic tests was performed on Patrick, but the cause of the apparent life-threatening event, (ALTE), was never formally determined. A paediatric neurologist diagnosed epilepsy and cortical blindness.

23 In the aftermath of this the appellant showed signs of an inability to cope with the situation. She displayed frequently anger and frustration. She began to leave Patrick with Mr. Folbigg’s sister, Mrs. Carol Newitt, and one of their neighbours, so that they could baby-sit and she herself could just get away from things for a time. At one stage during this period Mr. Folbigg found a diary which the appellant had been keeping, and in which she had written that she was not coping, and that Patrick and his father would both be better off if she left them, which she was intending to do if she could. This discovery led to an increase in Mrs. Newitt’s involvement in Patrick’s day-to-day care.

24 At about 10.00 a.m. on 13 February 1991 Mr. Folbigg received at work a telephone call from the appellant. She screamed: “It’s happened again”. Mr. Folbigg at once went home. He arrived home at the same time as an ambulance which the appellant had called. Mrs. Newitt was already there, having been called by the appellant. Mrs. Newitt had found upon her arrival that Patrick was lying on his back in his cot; but the appellant, who was crying, would not allow her to lift Patrick out of the cot.

25 Mr. Folbigg found Patrick still lying on his back in his cot. He picked Patrick up and performed CPR, noting that Patrick’s lips were blue. Patrick and his parents were transported by the ambulance officers to hospital where Patrick shortly thereafter died.

26 A hospital physician determined that Patrick had suffered a cardiac arrest, but could assign no cause for it. A subsequent post-mortem examination could detect no cause of death.

27 The Crown case was, once again, that the appellant had smothered her baby.

28 The appellant appeared to recover relatively quickly from Patrick’s death, just as she had done after Caleb’s death. She and Mr. Folbigg relocated to the Hunter Valley; and the appellant began to press Mr. Folbigg to have another child. He eventually agreed to do so, but only on condition that SIDS specialists should be actively involved in any new baby’s care.

29 Sarah was born on 14 October 1992. She slept in a bed in her parents’ bedroom. She manifested during her first three weeks of life some sleep apnoea, but not to any abnormal degree; and the SIDS consultants provided a sleep apnoea monitoring blanket. The monitor frequently returned false alarms. The appellant wanted to abandon the use of the blanket; and it was part of the Crown case that this showed an understanding on the appellant’s part that the baby was at no risk of spontaneous death. The use of the blanket was in fact discontinued two or three days before Sarah’s death.

30 The appellant was frequently bad tempered with Sarah, and markedly so on the night before her death when Sarah was unwell and difficult to settle down for the night. The appellant showed marked signs of frustration, and it was left to Mr. Folbigg to calm the baby and to put her to bed in her cot at the end of the matrimonial bed.

31 According to Mr. Folbigg, he awoke briefly at about 1.10 a.m. on the morning of Sarah’s death. There was a light coming from around the bedroom door, but neither mother nor baby was in the bedroom. Mr. Folbigg went back to sleep from which he was aroused by the screaming of the appellant. He saw the appellant standing at the bedroom door. Sarah was lying on her bed. She was floppy and warm but not breathing. Mr. Folbigg, and subsequently ambulance officers, performed CPR, but unsuccessfully.

32 A subsequent post-mortem examination noted small abrasions near Sarah’s mouth. Her lungs showed petechial haemorrhage, minor congestion and oedema, all of them phenomena consistent with death by asphyxiation caused by the application of mild force. A displaced uvula was noted and eliminated as a cause of death. The formal finding was one of death due to unknown natural causes.

33 The Crown case was that the appellant had taken Sarah out of the bedroom in order to attend to her in some way; but had in fact smothered the baby, and had placed her dead body back in the bed, pretending to have found her in that condition. A note in the appellant’s hand-writing was subsequently discovered on a calendar. The note read: “Sarah left us at 1.00 a.m.”.

34 In the wake of Sarah’s death the appellant seemed to become despondent and aimless. She would not depart from her version of having found Sarah already dead. Her relationship with Mr. Folbigg deteriorated to the point of a number of separations and reconciliations; but by early 1996 the appellant and her husband were once again living together. The appellant pressed, once again, for another child.

35 Laura was born on 7 August 1997. Extensive testing showed mild apnoea, but no genetic, biochemical or metabolic disorders. Arrangements were made for the installation of a special type of sleep monitor which stored information that was subsequently down-loaded by telephone to a Sister Margaret Tanner of Westmead Children’s Hospital.

36 This monitor regularly returned false alarms. Mr. Folbigg, suspicious that the appellant was not using the monitor, confronted her on that topic, and was assured by the appellant that she was watchful of Laura, and that the machine was driving her mad.

37 Mr. Folbigg continued to be suspicious about the appellant’s correct using of the monitor; and over time their relationship again deteriorated. The appellant came increasingly to spend her days at a gymnasium and her nights with friends.

38 On the day two days prior to the day of Laura’s death, and again on the morning of the latter day, there were disturbing instances of anger and frustration on the appellant’s part, boiling over into physical violence towards Laura.

39 On 1 March, the day of Laura’s death, the appellant took Laura to Mr. Folbigg’s place of work after her morning gym class. The appellant and Laura left for home at about 11.30 a.m. At about 12.14 p.m. an ambulance arrived at the home in answer to a call. The ambulance officers found the appellant crying and performing CPR on Laura who was lying on the breakfast bar. Laura was warm to the touch, but she was not breathing, and she had no pulse. The ambulance officers tried unsuccessfully to resuscitate her.

40 A subsequent post-mortem was conducted. It detected, but eliminated as a cause of death, a mild inflammatory condition of the heart. The formal finding was one of undetermined cause(s).

41 Laura’s death left her father distraught, and he and the appellant separated. While Mr. Folbigg was tidying up the home in connection with that separation he discovered some diaries of the appellant. He read them; and what he read so disconcerted him that he contacted the police. Police investigations subsequently located a further diary in the appellant’s possession. The police investigations culminated in the charging of the appellant.

42 In the case of Laura, as in the case of her siblings, the Crown case was that the appellant had smothered the child.

43 The Crown case at trial accepted that the evidence available to the Crown in each individual case was insufficient to establish in connection with that individual case guilt beyond reasonable doubt. The Crown contended that to deal separately with each case would be unjustly artificial, and that all matters charged against the appellant should be tried on one indictment and at one trial. There were unsuccessful interlocutory attempts by the appellant to bar a joint trial. The propriety of a joint trial is the focus of Ground 1 of the convictions appeal grounds.

44 The Crown case at trial depended heavily upon the contents of the appellant’s diaries. It was the Crown case that this diary material contained virtual admissions of guilt of the deaths of Caleb, of Patrick and of Sarah; and admissions by the appellant that she appreciated that she was at risk of causing, similarly, the death of Laura. Whether this is a reasonable reading of the material is an important aspect of Ground 2 of the convictions appeal grounds.

45 The Crown led at trial evidence from a number of witnesses who were presented as qualified to give professional expert opinion evidence to the effect that they knew of no previous recorded case in which three or more babies in one family had died suddenly and for reasons not explicable by proper professional diagnosis. The admissibility of this evidence is the focus of Ground 3 of the conviction appeals grounds.

46 The Crown case at trial relied in part upon coincidence and tendency evidence. The correctness of the learned trial Judge’s directions to the jury on those topics is the focus of Ground 4 of the convictions appeal grounds.

The Appellant’s Case at Trial

47 The appellant did not give evidence at her trial. Her case rested in part upon the cross-examination of Crown witnesses; and in part upon evidence called in her case from five witnesses, three of whom were lay witnesses, and the other two of whom were medical experts. The general cast of the appellant’s case at trial is summarised helpfully, and as follows, in part A of the written Crown submissions:

“The appellant did not kill her children or harm Patrick. She specifically denied this in her ERISP interview. She did not think Craig was responsible for their deaths. The Crown case had to be analysed extremely carefully to see if the Crown’s assertions that she lost her temper with the children in fact matched the evidence. There were natural explanations for the events, such as Sudden Infant Death Syndrome and, in the case of Laura’s death, myocarditis. The appellant in fact was a caring mother, who, for example, always kept her children clean and tidy and was attentive to their appointments with doctors. Many of her diary entries in fact showed that she was concerned as a parent and enjoyed being a parent, something that was noticed by Craig and other witnesses at various times and passed on to the police during their investigations. There was no direct statement of responsibility for a death and it is understandable how a mother would blame herself in the appellant’s situation, even though she was not responsible. There was no ‘failure to thrive’ by the children, apart from Patrick’s difficulties with epilepsy and blindness, and they were well-nourished and cared for. The appellant appeared to be utterly distraught when the ambulance officers, the former police officer Mr. Saunders and others came to the house after the deaths of the children.” [Footnotes omitted]

48 It will be necessary, when dealing later herein with Ground 2 of the conviction appeals grounds, to consider in more detail the evidence in both the Crown and the defence cases.

The Convictions Appeal : Ground 3

49 The Ground is:

“The trials of the appellant miscarried as a result of evidence being led from prosecution experts to the effect that they were unaware of any previous case in medical history where three or more infants in one family died suddenly as a result of disease processes.”

50 The ground refers to “prosecution experts”; but in fact expert opinion evidence relevant to the ground was given by four witnesses, three of whom: Professor Herdson, Professor Berry and Dr. Beal, were called in the Crown case; and one of whom: Professor Bayard, was called in the defence case.

51 It will be necessary to consider presently the way in which the trial Judge ruled upon objections taken by Senior Counsel for the appellant at trial to the admission of this body of evidence in the Crown case. (It is convenient to note here, and not to repeat constantly hereafter, that the appellant was represented at trial by Mr. Zahra SC, the Senior Public Defender, who is particularly experienced in the conduct on behalf of accused persons of major criminal trials. Mr. Zahra appeared as second leading counsel for the appellant before this Court.)

52 Before doing that it is necessary to say something about some of the evidence which the Crown sought to lead at trial from Dr. Allan Cala, a very experienced forensic pathologist, who performed the post-mortem examination of the child, Laura.

53 The Crown sought to lead from Dr. Cala evidence to the following effect:

[1] That Dr. Cala was not aware from his own experience or from reading medical literature that any child has ever died from a floppy larynx, a condition from which Caleb suffered.

[2] That no cause of Caleb’s death had been found.

[3] That in the light of the evidence of Dr. Wikinson, Patrick’s ALTE was consistent with his having suffered from a catastrophic asphyxiation event deriving from unknown causes; and that no cause of Patrick’s death could be found.

[4] That it was inappropriate for Professor Hilton to call Sarah’s death a SIDS death.

[5] That no cause could be assigned for Laura’s death.

[6] That he could not think of any single natural cause that would account for all four deaths.

[7] That there was in his view an unnatural cause which could account for all the deaths, namely smothering.
[8] (Possibly) that each of the four children died from an unexpected catastrophic asphyxiation event of unknown origin.

54 Objection was taken to the leading of evidence directed to the fourth and seventh of the foregoing items. In a reserved judgment published on 16 April 2003 his Honour disallowed evidence directed to those two propositions. In doing so, his Honour made a number of observations which seem to me to be pertinent to Ground 3. His Honour said:

“(Dr. Cala) used to be employed as a pathologist in the New South Wales Institute of Forensic Medicine in Sydney, and in that capacity carried out an autopsy on the body of the child Laura, and provided a report for the Coroner. In his report he stated his inability to determine the cause of Laura’s death.

Such a conclusion is to be distinguished from one that a death is a SIDS death. The acronym SIDS is made up from the initial letters of the words Sudden Infant Death Syndrome. Having heard a number of expert witnesses give evidence about its meaning, I have the impression that it means no more than this, that the epithet is assigned to the death of a child of appropriate age who is believed to have died of a natural cause or natural causes, which cause or causes cannot be identified.

According to Dr. Cala, the difference between the two conclusions is that a death should not be described as a SIDS death if unnatural causes, which for present purposes means deliberate or accidental trauma, cannot be excluded.

55 On the day following the publication of this judgment, his Honour had to deal with objections to the proposed evidence of Professors Herdson and Berry and Dr. Beal. His Honour heard a deal of argument from the Crown Prosecutor and from Mr. Zahra SC, and reserved until 24 April his ruling on the objections.

56 On 24 April 2003 the Crown Prosecutor told his Honour this:

“We have been in communication with Dr. Beal, Dr. Berry and Dr. Herdson since the matter was last raised with your Honour. We have prepared a document that sets out in question and answer form the sort of questions that we would intend asking them in much more admissible form than their reports. Certainly there are parts of their reports which are admissible, as your Honour has provisionally indicated, but there are other parts which we would seek to lead in a form which is closer to the form that was used with Dr. Cala. I have a copy to hand up to your Honour of those and my friend received that some days ago, I think, Tuesday. I don’t know at this stage that we need the judgment from your Honour, unless my friend has some area that he wishes to raise.”

57 Some brief discussion ensued; and his Honour indicated that he would give at once his ruling on the evidence of Professor Herdson and Professor Berry. There followed immediately this interchange:

“HIS HONOUR: ………………. Before I do, I take it, Mr. Zahra, if Dr. Beal’s evidence is dealt with in the way that Dr. Cala’s was, you would not be raising any objection.

ZAHRA: Yes. I wouldn’t cavil with your Honour’s previous judgment on that.”

58 His Honour then gave judgment. It is a brief judgment and it is convenient to reproduce it in full:

“1. HIS HONOUR: Objection is taken to the tender of evidence from Dr. Berry to this effect:

Sudden death of four infants in the same family who were previously well (in the case of Patrick before his initial collapse) due to natural disease is unprecedented in my experience, and I know of no substantial examples in the literature. Nevertheless, it is important to explore this possibility.

….

The sudden and unexpected death of three children in the same family without evidence of a natural cause is extraordinary. I am unable to rule out that Caleb, Patrick, Sarah and possibly Laura Folbigg were suffocated by the person who found them lifeless, and I believe that it is probable that this was the case.

2. Objection has also been taken to passages from Professor Herdson’s report, but the only one now in dispute is this:

I am unaware that there had ever been three or more thoroughly investigated infant deaths in one family from sudden infant death syndrome.

3. As I understand it, the defence does not object to the qualifications of Dr. Berry and Professor Herdson as highly experienced medical practitioners in the field of infant death and its causes.

Evidence Act

5. For the most part I disagree with that submission. It seems to me that both witnesses can give evidence based upon their experience, both on their own account and from their knowledge from communication with other experts in their field of the incidence of unexplained infant deaths. It seems to me to be permissible for Dr. Berry to give evidence that the sudden death of four infants in the same family who were previously well due to natural disease is unprecedented, and he can make that statement of opinion from his own experience. He can also say that he knows of no substantiated examples from the literature.

6. So long as he deals with the cases individually and does not rely on the kind of coincidence reasoning against which I ruled in considering Dr. Cala’s evidence, it seems to me also that Dr. Berry is entitled to say that he is unable to rule out that Caleb, Patrick, Sarah and possibly Laura were suffocated.

7. It would not be permissible, however, for him to continue to say that he could not rule out that they were suffocated by the person who found them lifeless, because although in one sense unexceptionable, that is a piece of loaded evidence and liable to be misunderstood by the jury. He should not, in any case, say that he thinks that it is probable that that was the case.

8. Conformably with my decision about Dr. Berry’s challenged evidence, I think it permissible for Professor Herdson to say that he is unaware that there have ever been three or more thoroughly investigated infant deaths in one family from sudden infant death syndrome.”

59 When one looks carefully at the wording of Ground 3, it is unclear whether the nub of the ground is a proposition that the foregoing preliminary rulings of Barr J were incorrect; or is, rather, a proposition that the rulings were correct, but were overtaken in fact by the actual evidence as led before the jury; or is a combination of those two propositions. Given that ambiguity, it is necessary to cover both of the putative individual propositions. That entails a need to examine the evidence that the Crown witnesses gave before the jury.

60 The first of the three to be called was Professor Herdson, who had very impressive credentials as a pathologist, and as a consultant forensic pathologist.

61 Professor Herdson expressed opinions based upon “a large dossier of material containing medical records for the four children, including their post-mortem reports ………(and) ……… a number of pathological slides that were taken during or shortly after the post-mortem examinations, ….. (and) ….. a certain amount of research in the literature”.

62 The Crown Prosecutor led Professor Herdson’s evidence-in-chief by taking him to the individual case of each in turn of the four children. As to each child, Professor Herdson agreed with a proposition, put to him by the Crown Prosecutor, that the child had died “from a sudden catastrophic asphyxiating event of unknown causes”. In the case of Patrick, Professor Herdson expressed the additional opinion that the ALTE had arisen from that type of event.

63 Professor Herdson said, as to each child, that the post-mortem findings were consistent with death by smothering. He thought that other observed phenomena: e.g. Caleb’s “floppy” larynx, Laura’s myocarditis, and Sarah’s displaced uvula, were not of significance as possible causes of death. Asked whether he could “think of any disease, illness or condition that could have accounted for the deaths of all these children”, Professor Herdson said, simply, that he could not.

64 Professor Herdson accepted a proposition, put to him by way of summary by the Crown Prosecutor, that “…………death from SIDS is a diagnosis of death from some unknown natural cause, whereas death from undetermined causes implies a death from some unknown natural or unnatural cause”. He thought that Sarah’s case, looked at in isolation, came closest to satisfying the generally accepted diagnostic criteria for SIDS; but that, generally speaking, he could not “distinguish between SIDS and suffocation”.

65 In re-examination, Professor Herdson gave, over objection, this additional evidence:

“Q. Are you aware, from your own experience, from contact with your colleagues and from the medical literature, whether there have ever been three or more, thoroughly investigated, infant deaths from sudden infant death syndrome in the one family?

A. I am not aware of such a finding.”

66 Evidence was then taken from Professor Berry, a highly qualified and experienced paediatric pathologist. He, too, had examined the relevant medical records, post-mortem reports and microscopic slides.

67 It suffices for the moment to say that Professor Berry’s evidence, although obviously different in particular expression, accorded in substance with the evidence of Professor Herdson, taking each of the cases of the four children individually and in isolation from the other cases. Professor Berry gave in the concluding passages of his examination-in-chief the following evidence:

“Q. Professor, are you aware of any substantiated case where there have been three or more SIDS deaths in the one family?

A. There are some reports many years ago which now no longer stand scrutiny, but I am unaware of any families with – I think you said – three or more deaths from SIDS in what I might call the contemporary literature and up-to-date literature, nor have I encountered any in my practice or research.

Q. Putting aside the congenital or familial or genetic tests that were conducted on these children, are you aware of any case in which there have been three or more children who have died unexpectedly and suddenly from some other illness other than SIDS.

I think that question is a bit unclear.

A. I think I understand it. I’m personally not aware of any kindreds where there have been sudden deaths of previously fit children due to another medical condition that has affected three or more children. That’s not to say they don’t exist, but I’m personally unaware of any in the literature.

Q. Does that mean that you have not had any yourself, you are unaware of any of your colleagues having come across any and reported them to you, and you are not aware of any in the medical literature?

A. That’s correct. My experience, knowledge of disease, is that fatal diseases are not 100 per cent instantly fatal in every case. So, some of the genetic conditions, for example, that were excluded, have very clear presentations. They don’t, in fact, present with sudden death of a previously well child.

I could elaborate if you wish me to, but I will leave it there if you don’t.

Q. I would ask you to elaborate, doctor.

OBJECTION

ZAHRA: As I understood what Professor Barry was saying, I think his first answer was that there was no research that he was aware of. I’m unsure as to whether the question relates merely to his own experience or whether he has excluded – in other words, that he has excluded all other research; in other words, whether he has researched the literature to exclude multiple natural causes.

HIS HONOUR: That is a matter that can be investigated. I will permit the question.

CROWN PROSECUTOR: Q. You offered to elaborate on your last comment, and I would ask you to elaborate.

A. I wonder if you can help me if there has been discussion of emCAD in this Court, or not?

Q. No, we have not.

HIS HONOUR: Yes, there has been.

A. Just, as an example of a genetic condition that might run in a family that causes sudden death, there is something called emCAD. We do not need to go into it. It has been excluded, as I understand it, in this case. But those children do not present, generally speaking, as SIDS; they nearly always have a prodromal, an illness preceding their death, which is very characteristic. Two times out of three I can diagnose emCAD before I start the post-mortem from the history alone. So, what I am trying to say is that most illnesses have a period of illness before the child dies. The death is not instantaneous.

Q. Is that what you meant when you said “prodromal”?

A. Yes, a period of illness beforehand, so children do not just drop dead, as it were, of diseases and produce kindreds with multiple SIDS-like deaths. So, in this case, one of my anxieties is that there don’t appear to be significant illnesses before these children’s collapses.”

68 Later, and in re-examination, Professor Berry added this evidence:

“Q. What sort of a search have you made of the literature prior to coming to Australia to give evidence in this case?

A. This is a database called Mediline, which essentially contains references to all the medical articles that have been written since the 1960s, and you can select articles by putting in particular words, and so one might put in “sudden infant death” as one search criterion, and then you would put “multiple”, to pull up any paper that is indexed under “multiple infant deaths”, and some papers do come up, as you will – Dr. Susan Beal, for example, has written on this subject, and I am sure you will hear from her. A paper by Professor John Emery. There are other papers on this subject. But diseases that really cause sudden death, without preceding symptoms and without leaving traces from which you can make a diagnosis at post-mortem, three different ones in the same family, I am unaware of that.

Q. And the Mediline database that you have spoken about, is that one which is used by medical practitioners around the world?

A. Yes. It is the standard database.

Q. And it is universally recognised as the best medical database in the world?

A. I think that’s true. There are other medical databases, and one can look in others, but it is the absolute standard one that everybody uses, yes.”

69 Before Dr. Beal was called, there was extensive discussion in the absence of the jury about precisely what evidence, if any, she should be permitted to give. Before his Honour was a document containing what were described as “model questions”. The so-called model questions had been asked of Dr. Beal in an out-of-Court setting, and her answers, also recorded in the document, indicated what the Crown expected that she would say if examined in-chief in the terms of the model questions.

70 The discussion in the absence of the jury extends over some 24 pages of trial transcript. It is, with respect to those concerned, not always easy to fathom from what has been recorded in the transcript what points and objections were being agitated at any particular point. It is impossible to compress the 24 pages of material into a crisp paragraph or two. Perhaps the fairest way of proceeding is to note the opening submissions of Mr. Zahra SC. They are, as recorded:

“Your Honour, this witness will go further than any other expert and that would include Professor Berry and Professor Herdson. If I can just put it simply at this stage. We have a witness who will go further and who has not read the post-mortem reports. This is the essential foundation of the bases upon which this evidence is given. So we know that confidently because that is what the witness said in the voir dire. So it is a logical exercise to then ask one’s self well, what is it that she relies upon to say these things? When we go through the detail of the statements and we go through the evidence on the voir dire, it becomes apparent that in fact it is either on a statistical basis or either on a premise that if the child was not prone and had no heart lesions, then it would be homicide or, reliance on the mantra. In other words, taking into account the history of the others.

Your Honour, the danger is that my friend will lead from this evidence extensively her background and experience. Her qualifications, your Honour, are immense and are likely to persuade the jury about her opinion.

It is not to say that her field of study and her researches and her papers have not had a significant effect on the understanding of SIDS in the past and it is not to say that the basis of her research is in fact not meritorious. However, your Honour it is largely based on an examination of patterns, to use her expression “patterns” in relation to a number of cases that she has specifically looked at.

This has been an objection that we have obviously made more than once in relation to the use of statistical evidence as a foundation for opinion.”

71 As the interchanges between Barr J and Mr. Zahra SC proceeded, his Honour asked Mr. Zahra to clarify what he meant by a reference which he had previously made to a “reverse onus”. I cannot find a clear answer to that question; but I take Mr. Zahra to have had in mind a proposition that is advanced as follows in paragraph 111 of the appellant’s written submissions:

“111. The evidence also had the effect of impliedly reversing the onus of proof. It is likely that the Jury would have thought that the appellant had to in some way demonstrate that her case was indeed unique in medical history. If it weren’t then the Jury would have to convict her.”

72 Finally, in connection with Dr. Beal’s evidence as pertinent to Ground 3, the following interchanges occurred:

“HIS HONOUR: I understand that there are difficulties for you in the conduct of the defence of this case; just as there are for the Crown in the prosecution of it, and for me in doing what I have to do, and I sympathise with those difficulties; but should I stop a witness giving evidence because of those difficulties?

ZAHRA: Your Honour does have discretions to exclude the evidence, based on a prejudicial probative effect. Prejudicial effect here is really quite immense because coming back to my first statement, that we have a witness here who is going to give an opinion more so than any other witness, that in the sense that this is a likely suffocation.

HIS HONOUR: So you are applying for me to reject all the evidence, are you?

ZAHRA: Yes, insofar as that it goes outside general statements and it applies to the application of her expertise in the given case, so far as reaching a diagnosis.

HIS HONOUR: And what is the test? It is not admissible unless the probative value outweighs the risk of impermissible prejudice?

ZAHRA: Yes. I can only go back to my starting point that really we look at this as an exercise of logic that this witness in a voir dire was preferring these same opinions without looking at the post-mortem reports and indicating, your Honour, in her own statement, the first statement of 8 December that these macroscopic and microscopic examination is rarely helpful, so this is where this witness has started from, and it is just as an exercise in logic. She preferred these opinions each without reading the post-mortem reports.

HIS HONOUR: I am of the opinion that the probative value of the evidence outweighs any risk of unfair prejudice.

ZAHRA: If your Honour pleases.

HIS HONOUR: And I will give reasons later on, if appropriate.”

73 I cannot locate in the Appeal Book any subsequently published written reasons.

74 After all of the foregoing discussion had run its course, Dr. Beal was called. She gave evidence that she had been for some 35 years a paediatrician at the Women’s and Children’s Hospital in Adelaide; and an epidemiologist: that is, one who “looks at the patterns of diseases to see if they can find out more about what causes them, how to treat them, how to prevent them from occurring …………… “; and that she had made, for more than 30 years, a specialised study of SIDS. Dr. Beal was, otherwise, highly qualified, by both learning and experience, in her professional specialties.

75 Dr. Beal gave evidence to much the same effect as Professors Herdson and Berry when she spoke of each child’s case taken individually and in isolation from the other cases. Dr. Beal gave, as well, this evidence:

“Q. Now, doctor, as at the present time has there been accepted in the medical community, to your knowledge, that there have been any families that you are aware of, either from your own experience or the experience of your colleagues or from the medical literature, in which there have been three or more children who have died from SIDS?

A. No.”

“Q. Can you think of any natural cause, that has not been excluded in these children, by the tests they had during their lifetimes and afterwards, can you think of a natural cause that would account for their deaths?

A. No, excluding that natural disasters, like a plane crash or something, no.

Q. In your experience, and in the experience of your colleagues that have been related to you and in the medical literature that you have read over the years, have you ever come across a family in any of that experience or any of that reading or research, a single family in which there have been three or more children who have died suddenly from natural causes in the way that these children died?

A. No.”

76 The whole of the foregoing analysis seems to me to show: first, that there was no difference of substance between the evidence as foreshadowed by the Crown in connection with preliminary objections and rulings; and the evidence as actually led; and secondly, that Ground 3 should be understood as challenging the correctness in law of Barr J’s rulings that permitted the Crown to lead the evidence before the jury.

77 Three questions arise.

78 First, was the evidence to which Ground 3 refers, relevant in the sense contemplated by section 55 of the Evidence Act 1995 (NSW)?

79 In my opinion the correct answer to that question is: yes.

80 The Crown case was a circumstantial one. It posited the circumstances:

[1] That it was not a reasonable possibility that Caleb’s death had been caused by his defective larynx;

[2] That it was not a reasonable possibility that Patrick’s ALTE had resulted from either encephalitis or a spontaneous epileptic episode;

[3] That it was not a reasonable possibility that Patrick’s death had been caused by an epileptic episode causing him to stop breathing suddenly and for long enough to die;

[4] That it was not a reasonable possibility that Sarah’s death had been caused by a displaced uvula;

[5] That it was not a reasonable possibility that Laura’s death had been caused by myocarditis;

[6] That it was not a reasonable possibility that there was, in any individual case, some other natural cause of death;

[7] That, absent a natural cause of death in any one of four successive infant deaths in a single family, the only inference rationally available was that the deaths had been caused in some unnatural way;

[8] That the only rational inference as to the nature of the unnatural cause was that each of the children had been suffocated by somebody; and

81 The parts of the evidence of Professors Herdson and Berry, and of Dr. Beal, relevant to Ground 3, constituted evidence tending to prove, in the section 55 sense, the matters itemised above as [6], [7] and [8].

82 Secondly, ought the evidence to have been excluded because its probative value was outweighed by the danger of unfair prejudice to the appellant in that the jury would misuse the evidence by reversing the onus of proof in the sense propounded in paragraph 111 of the appellant’s written submissions?

83 In my opinion the answer to that question is that there was no reason for Barr J to be apprehensive of any such danger, provided only that his Honour made clear to the jury that it was from first to last the burden of the Crown to prove its case; and that it was not in any respect the burden of the appellant to prove anything. It suffices for present purposes to say that his Honour gave clear and correct directions on this all-important principle; and did so both in writing and orally.

84 Thirdly, ought the evidence to have been excluded because its probative value was outweighed by the danger of unfair prejudice to the appellant in that the jury would misuse the evidence in some other way?

85 In my opinion the correct answer to that question is: no.

86 The appellant submits, in paragraph 110 of the appellant’s written submissions, that “(t)he proposition that a combination of events is entirely without precedent in medical history is not far removed from the expression of the odds of such a combination of events occurring innocently in terms of a statistic”. This entails, it is submitted, inherent “…….. vice analogous to that identified in such cases as GK (2001) 53 NSWLR 317”.

87 I do not accept these submissions. First, GK, and most of the decisions which are cited in it on the point, was a case involving the use of statistical probabilities in cases of DNA profiling. The expression of those probabilities was quite precise: 220,000 : 1 and 99.9995% in the case of one expert witness; and 147,005 : 1 and 99.9993% in the case of another. Any analogy between opinion evidence expressed in that fashion and opinion evidence as expressed by Professors Herdson and Berry and Dr. Beal, is inexact as the appellant’s submissions do in fact acknowledge.

88 Secondly, the judgment of Mason P in GK discusses helpfully what is often called, in DNA profiling cases, “The Prosecutor’s Fallacy”. Mason P illustrates, at paragraph 33 of his Honour’s judgment, how the fallacy operates. The illustration separates out two different propositions, denominated as A and B, and explains that the fallacy is occasioned by “(t)he slide from Propositon A to Proposition B”.

89 The two propositions are:

“A. The probability or chance of C’s father being a person selected at random rather than being GK is 147,005 : 1 against.

B. It is 147,005 times more likely than not that GK is C’s father.”

90 As Mason P explains, in paragraphs 47 – 54 inclusive of his Honour’s judgment, the correct extension of proposition A is to consider how many groups of 147,005 people there are in the relevant population. The number of such groups is what provides the relevant statistic for proposition B.

91 The challenged evidence of Professors Herdson and Berry and of Dr. Beal does not really fit into the Prosecutor’s fallacy template. That evidence does no more than to establish, - if accepted, a matter entirely for the jury, - that reputable and apparently reliable expert opinion cannot identify another known case where four infants in one family have died successively from unknown natural causes. That fact is no more than a piece of circumstantial evidence of which the Crown case argues that, when added to all other known facts and circumstances concerning the four deaths, there is left open no other reasonable hypothesis than that the four deaths were unnatural.

92 For all of the foregoing reasons I would not uphold Ground 3.

The Convictions Appeal : Ground 4

93 The Ground is:

“The learned trial Judge erred in his directions as to the use the Jury could make of coincidence and tendency evidence.”

94 This is the first occasion on which the adequacy of some part of the summing-up is challenged by the appellant. It is expedient to make at once two observations about the summing-up. First, the summing-up is carefully structured. It was supported by some appropriate written instructions, and by the use of various documents then in the hands of the jurors. Secondly, Barr J paused repeatedly throughout the summing-up and invited counsel to indicate any corrections that they might respectively require. On each such occasion both the Crown Prosecutor and Mr. Zahra SC responded unhesitatingly with any desired application. The record of what was said on those occasions seems to me to indicate that both counsel followed the summing-up alertly, and were astute to take promptly any point which seemed to them, respectively, to need clarification by Barr J.

95 The objections now made in Ground 4 were not taken at trial.

96 Barr J explained to the jury at a very early point in the summing-up that the Crown case on each of the five counts was a circumstantial case. His Honour directed the jury to “carefully examine the evidence and decide whether it is reliable before you draw conclusions from it”, adding: “in deciding whether you should draw the conclusions the Crown asks you to draw you must also consider all the evidence pointed to by the accused and give proper weight to the submissions made on both sides”.

97 A little later his Honour told the jury:

“The fundamental issue that arises out of each of the five events giving rise to the charges is whether that event happened naturally or by human intervention. It has not been suggested that any of the deaths, or Patrick’s ALTE, could have happened in any other way, for example by accidental suffocation. The evidence permits only one conclusion or the other. If any event happened by human intervention the person who intervened could only have been the accused because she was the only person in the vicinity on each occasion and there could be no suggestion that any other person was responsible.

I shall outline for you in due course the circumstances surrounding each of the events giving rise to the charges but, quite apart from the circumstances immediately surrounding the events giving rise to any charge you are considering, you are entitled, when deciding whether the Crown has proved its case on that charge, to take into account the events giving rise to the other charges as well.”

98 Those comments introduced the directions, of which the appellant now complains, concerning coincidence evidence. Those directions were:

“The Crown case is that there was a remarkable degree of similarity in the five events. They were so similar, the Crown submits, that it would be unreasonable to conclude that the deaths and Patrick’s ALTE, or any of them, happened naturally.

The law is that sometimes there may be such a striking similarity between different events that a jury may safely conclude that they did not all happen by coincidence. Putting it another way, the circumstances of the events are so remarkably similar that it would be an affront to common sense to conclude that they all happened naturally and coincidentally.

If, having considered the submissions of the Crown and the defence, you come to the view that the five events, or any number of them, are so strikingly similar that they cannot all have happened naturally, you are entitled to take that conclusion into account in considering whether the Crown has proved its case on the charge you are considering.

I must give you a special warning, however, about taking into account when considering any particular charge the facts which give rise to the other charges. You must not say that simply because the accused killed a particular child or caused Patrick’s ALTE she must have killed all the children and caused Patrick’s ALTE. Putting it another way, if you are satisfied beyond reasonable doubt that the accused is guilty of any of the charges, you may not say that she is therefore automatically guilty of them all. That is an unfair way of approaching the matter and you must not use it.”

99 His Honour then gave some general directions about expert opinion evidence and continued:

“When you come to consider whether the accused smothered any child, you are entitled to take into account far more than the doctors were in coming to their opinions. You are entitled to take into account, as they were not, the unexpected deaths of the other three children, and Patrick’s ALTE, and all the circumstances surrounding those deaths and that ALTE. You are also entitled to take into account all the other evidence in the case, particularly the entries made by the accused in her diaries from time to time, and any meaning that you attribute to those entries.”

100 The summing-up proceeded to deal with matters concerning causation. In that connection His Honour said, without objection from counsel:

“There are four possible causes of death of Caleb and of any of the other children. They are: identified natural causes, unidentified natural causes, accidental suffocation, and deliberate suffocation. Just those four. There seems to be no other available in logic.”

101 The summing-up then turned particularly to the death of Caleb. There was a careful examination of the evidence going to the question whether the death had been caused by some act of the appellant. That examination brought Barr J back to the topic of coincidence evidence, and more particularly to a document marked for identification 41. MFI 41 was a document listing similarities relied upon by the Crown to disprove mere coincidence. There were ten items in the list. Barr J went through the list, item by item, summarising the Crown and defence submissions. The summary was clear, and no objection was taken to it. Barr J used the same method when dealing, later in the summing-up, with the two counts concerning Patrick.

102 The appellant’s present complaint is put as follows in paragraph 114 of the appellant’s written submissions:

“114. This direction does not clearly identify for the Jury the logical process by which the “similar fact” evidence may be used in coming to a conclusion about any of the given counts. It is not sufficient to simply tell a Jury that they may “take that conclusion” into account.”

103 I disagree with this criticism. The jury was instructed, and correctly so in my opinion, that in considering each individual count of murder there were effectively three possibilities open on the evidence: identified natural causes; unidentified natural causes; and deliberate suffocation. The jury was instructed, clearly and correctly, that if, in any particular case, it remained open as a reasonable possibility that the death had been caused by some natural cause that could be identified, then there must be an acquittal on that count. What had to be explained correctly was that if, in any particular case, the jury did not regard it as remaining open as a reasonable possibility that death had been caused by an identified natural cause, then, in considering whether it remained open as a reasonable possibility that the cause of death had been some, albeit unidentified, natural cause, it was permissible to have regard to the whole of the context in which the particular death had occurred including, where appropriate, that part of the context was some other death or deaths similarly unexplained but so strikingly similar to the particular death then being considered by the jury as to cause the jury to infer that it was not open as a reasonable possibility that the particular death had been caused by some unidentified natural cause.

104 In my opinion a fair reading of the now challenged passages of the summing-up in the context which I have earlier summarised does not establish that Barr J erred in his Honour’s directions about coincidence evidence.

105 Barr J first came to deal with tendency evidence in the concluding portion of the summing-up. His Honour canvassed in clear and careful detail the competing cases; told the jury that he had now said “… virtually all I want to say to you about the matter”; and then added the directions that are now challenged. Once again, context is important. The entirety of the relevant directions is:

“You should, as Mr. Zahra has submitted, look very carefully at the detail of the circumstances attending each of the five events. You should also, as the Crown has submitted to you, look at the picture overall, as shown by the other events and as explained, if you think that they do provide explanation, by the diary entries.

Now, the Crown has submitted to you that the evidence shows that the accused had a tendency to become stressed and lose her temper and control with each of the children and to react to it by smothering. I won’t summarise for you again the evidence upon which the Crown makes that submission, but I want to give you a direction about how you can use evidence of what is called tendency. Both counsel have referred to this during their addresses to you.

If you are satisfied beyond reasonable doubt that on any of the five occasions giving rise to the charges the accused became stressed, lost her temper and control and smothered her child, then provided certain conditions are fulfilled you may take that conduct into account when you consider whether she is guilty on any other count.

I said provided certain circumstances are fulfilled, because you need to take care in employing this kind of reasoning. Inherent in the Crown submission is the proposition that if a person behaves in a particular way in a given set of circumstances on one occasion the person will tend to behave in the same way if similar circumstances exist on another occasion.

First, and obviously, you have to be satisfied about the features and circumstances of the accused’s behaviour on the first occasion that you are thinking about. That does not need to be the occasion giving rise to the first charge in time. It can be the occasion of any of the events, but you need to have a clear understanding of exactly what circumstances the accused was in and exactly how she behaved.

Secondly, you need to be sure that the circumstances repeated themselves on the occasion of the events giving rise to any other charge. You need to be satisfied that on such an occasion, there is a similarity of circumstances, a similarity of pattern of behaviour.

When considering this kind of evidence you are entitled to give consideration to the extent, if any, to which the relevant conduct may have been unusual or unique, since that may reinforce the inference contended for by the Crown, and you need to apply your common sense, because the mere fact that a person has behaved in a particular way on one occasion does not necessarily mean that they will repeat that conduct if the surrounding circumstances are replicated.

So it is important for you to take into account the nature of any prior behaviour relied on by the Crown, the frequency of its repetition and the extent of its similarity to or dissimilarity from the facts with which you are comparing it. This is the only way in which you can use evidence of any tendency that you find the accused had. You may not say just because you are satisfied that she smothered one of her babies she must or is likely to have smothered the others.”

106 As soon as he had concluded those directions, his Honour invited submissions from counsel. There were some submissions from both counsel, but not in any way touching upon the tendency directions.

107 The appellant’s written submissions propound two particular criticisms. They are:

“116. His Honour then went on to list for the Jury certain conditions which had to be fulfilled in part of that process of reasoning. Those directions are at pp 114 – 115. It is submitted that the direction did not identify the legitimate use to which the tendency evidence could be put. It was not sufficient to tell the Jury that they could simply ‘take that conduct into account’.

119. The directions by the Judge effectively cast an onus on the accused to demonstrate an innocent explanation for each of the deaths. This was an erroneous approach. The Jury should have been warned that it was not necessary for them to find that any of the children died of natural causes in order for them to acquit. The case was about whether the Prosecution had proven beyond reasonable doubt that the appellant had smothered her children. It was not for the appellant to demonstrate that they had died naturally.”

108 As to the submission in paragraph 116, it is convenient to take as a starting point the second limb of the well known statement made about tendency or propensity evidence by Lord Herschell in Makin v Attorney General of New South Wales [1894] A C 57 at 65:

“It is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. On the other hand, the mere fact that the evidence adduced tends to show the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused.”

109 Speaking of the second limb of Lord Herschell’s statement, Lord Hailsham said in Reg v Boardman [1975] A C 421 at 456E:

“The second of Lord Herschell’s rules in Makin is not capable of codification into a series of tight propositions or categories of case. Each case must be looked at in the light of all the circumstances and of the sentence containing the rule and of the observations upon it of Lord du Parcq in Noor Mohamed v The King [1949] A C 182 and Lord Simon in Harris v Director of Public Prosecutions [1952] A C 694, and of the ordinary rules of logic and common sense.”

110 The reference to Lord Simon is a reference to the following extract from his Lordship’s judgment in Harris at 706:

“Lord Herschell’s statement that evidence of ‘similar facts may sometimes be admissible as bearing on the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental’ deserves close analysis. Sometimes the purpose properly served by such evidence is to help to show that what happened was not an accident; if it was, the accused had nothing to do with it. Sometimes the purpose is to help to show what was the intention with which the accused did the act which he is proved to have done. In a proper case, and subject to the safeguards which Lord Herschell indicates, either purpose is legitimate. ……………… Sometimes the two purposes are served by the same evidence.”

111 It is, of course, the case that Barr J’s tendency directions do not tell the jury in terms that the legitimate use of tendency evidence, if the jury finds tendency in fact, is “to help show that what happened was not an accident” or “to help to show what was the intention with which the accused did the act which he is proved to have done”.

112 It seems to me, however, that a fair reading of the relevant extracts from the summing-up in the context of the summing-up as a whole justifies a conclusion that by the time the summing-up concluded, it had been made quite clear to the jury that the whole point of both the tendency and the coincidence evidence was, precisely, to help show that each death was not an accident; and to help, as well, to show that, if the jury was satisfied that the appellant had in fact caused a particular death, then any such causative act had been accompanied by the intent appropriate to the crime of murder.

113 As to the proposition advanced in paragraph 119, I repeat that in my opinion the jury could not sensibly have understood from anything said by Barr J that the appellant bore any onus of proof upon any aspect of the proof beyond reasonable doubt of any of the essential elements of any of the crimes charged.

114 For the whole of the foregoing reasons I would not uphold Ground 4.

The Convictions Appeal : Ground 2

115 The Ground is:

“The verdicts of guilty are unreasonable and cannot be supported having regard to the evidence.”

116 Paragraph 107 of the appellant’s written submissions summarises the appellant’s case on this ground:

“The simple point made by the appellant in this case is that the exclusion by the Prosecution of any definitive known cause of death for the children did not establish a deliberate killing by the appellant. The deaths remained, it is submitted, unknown in their origin.”

117 The written submissions rely significantly upon things said in the judgment of the English Court of Appeal in Reg v Cannings [2004] 1 WLR 2067, a decision to which it will be necessary to return.

118 Before doing that it is appropriate to note that the definitive statements of principle by which this Court must be guided in dealing with Ground 2 are contained in the joint judgment of Mason CJ and Deane, Dawson and Toohey JJ in M v The Queen (1994) 181 CLR 487 at 493. Those statements of principle are now well-known and need not now be repeated at length. They have been reaffirmed by the High Court in Jones v The Queen (1997) 191 CLR 439; and in MFAv The Queen (2002) 213 CLR 606.

119 In applying these principles to the evidence at the appellant’s trial it is useful to have in mind an overview of the relevant chronology. The Crown provided one, which became Exhibit A at trial, and it is reproduced hereunder. The material in parenthesis is the age, respectively of each child at the date of that child’s death and, in the case of Patrick, his age, also, as at the date of his ALTE.

Name	Birth	Event	Death
Caleb FOLBIGG	1 February 1989	20 February 1989 (19 days old)
Patrick FOLBIGG	3 June 1990	18 October 1990 – near miss (4-1/2 months)	13 February 1991 (8 months 10 days)
Sarah FOLBIGG	14 October 1992	30 August 1993 (10-1/2 months)
Laura FOLBIGG	7 August 1997	1 March 1999 (1 year 7 months)

120 The Crown case, as finally presented to the jury, was a circumstantial case depending upon the combined effect of bodies of evidence respecting, in the case of each child:

[1] The circumstances of that child’s death, including in Patrick’s case the circumstances of his previous ALTE;

[2] The similarities, said by the Crown to be striking, between those circumstances and the comparable circumstances in each of the cases of the other three children;

[3] The results of the various medical examinations, and post-mortem examinations, carried out on that particular child;

[4] The results of the various expert medical reviews of the deaths of the four children; and

121 What has been written previously in this judgment deals with items [1] and [2], and with much of the items [3] and [4]; but it is necessary to look further at how the medical evidence stood at the conclusion of the whole of the trial evidence.

122 As to Caleb:

[1] Dr. Springthorpe, a consultant paediatrician, gave evidence of having diagnosed the condition, previously herein described, of “floppy larynx” . He had discussed Caleb’s case with Dr. Cummings, who had died prior to the trial, and who had carried out the post-mortem examination of Caleb. Dr. Springthorpe was firm in the view that the “floppy larynx” had nothing to do with Caleb’s death.

“With Caleb, I would say the cause of death was undetermined and the reasons for that, there are several, one is that I don’t have the death scene examination. The second is that the brain wasn’t examined, so I don’t really know whether there was any pathology in the brain. And thirdly, there is an issue of his voice box, he was said to have a floppy voice box.”

Professor Byard did not agree with Dr. Springthorpe’s conclusions, principally because Caleb’s larynx itself had not been microscopically examined. He was not aware of any case in which it had been reliably established that a child had died as a result of having a floppy larynx; and so he regarded that condition “as a potential, but a very rare cause of unexpected death” .

His own diagnosis on the available evidence would be “an undetermined cause of death” . His reasoning to that end would be: “because we don’t have sufficient information. We have the death scene undescribed. We don’t have histology of the brain, and we have got this history of him having problems with his breathing, with a diagnosis of floppy larynx”.

Professor Byard was of the opinion that there were no positive medical or pathological signs of suffocation. To say that the cause of Caleb’s death was undetermined did not imply that SIDS was excluded as a possible cause.

“Q. Is this the case : That in this case you can’t say what the cause of death was other than as to it was undetermined for each of these children?

A. That’s correct.

Q. And when you say that the cause of death was undetermined, that includes death from natural, death from natural causes and death from unnatural causes?

A. That’s correct.

Q. And unnatural causes includes deliberate suffocation?

A. That’s correct.

Q. In your view is one of the possibilities in this case that all of the deaths and the ALTE were caused by deliberate suffocation?

A. I think that is a possibility. The difficulty is of course that the pathology doesn’t really help us.”

“Q. Do you agree that it is highly unlikely that the floppy larynx had anything to do with the death of the child at all?

A. Yes.

Q. Have you yourself ever had an autopsy in which you have found the floppy larynx to be the cause of death?

A. No, no, I haven’t.

Q. Have any of your colleagues in South Australia, to your knowledge, had a case of floppy larynx being a cause of death?

A. Not to my knowledge, no.

Q. And have you ever, yourself, read in any of the medical literature of a death being caused by a floppy larynx?

A. No. No, I haven’t.

Q. So it would be fair to say this; that if this child had died from a floppy larynx, so far as you are aware, it would be the first time – it would be a world first, insofar as being reported?

A. I believe so, yes.:

“Q. So would I be correct in saying that the presence of haemosiderin in this child tends to indicate that there was a previous episode of asphyxiation or attempted asphyxiation?

A. I think it would – that would be one possibility.

Q. Is that the thing that is the most likely cause of the haemosiderin, over and above other possible causes?

A. I am just trying to consider the study that I did. Probably, in the absence of documented trauma.”

123 In my opinion it was clearly open to the jury to accept the evidence of the Crown witnesses, and to prefer that evidence to the contrary evidence of Professor Byard. In that event it was clearly open to the jury to accept that the evidence did not leave open as a reasonable possibility that Caleb had died from an identified natural cause.

124 As to Patrick’s ALTE:

[1] Patrick was first seen upon admission to hospital by Dr. Joseph Dezordi who was at the time on duty as the paediatrics night resident at the hospital. At the time he gave his evidence Dr. Dezordi was a neo-natal Fellow at Townsville Hospital doing “advanced training in research projects in paediatrics” , and specifically in the case of new-born babies.

Patrick was observed to be afebrile and unresponsive to stimuli. There was no blockage of his airways. There was no evidence found upon testing and examination of illnesses, of injury, or of trauma. There was an “unexpected” discovery of a high level of glucose in Patrick’s urine; and, since Patrick did not present as diabetic, this level of glucose suggested to Dr. Dezordi “a fairly catastrophic event such as an asphyxiating event or a prolonged seizure” .

In the following days testing continued. A CAT scan was carried out; and it showed abnormalities in Patrick’s occipital and temporal lobes, but his lumbar fluid was clear. Dr. Dezordi was strongly doubtful about a possibility that Patrick may have had encephalitis. His ultimate conclusion was one of some unknown cause or causes for Patrick’s seizures.

“Q. My friend asked you questions about looking at the condition of Patrick with your expertise as it was back in 1990 and you indicated that you had the advantage of intervening years of experience. With those intervening years of experience, can you say what caused the seizures in Patrick?

A. I cannot say beyond a doubt what caused the seizures in Patrick. All I can do is make conclusions.

Q. And with the advantage of the intervening years of experience, what do you conclude caused the seizures in Patrick?

A. My experience over the years has embraced quite a lot of babies who have had asphyxia and hypoxia, that is, lack of oxygen to the brain. I have seen many babies since that time and also quite a number of babies with meningitis and encephalitis and I have no doubt that the whole scenario, as I said yesterday, is most consistent with some catastrophic event that caused the lack of oxygen to the child’s brain on the morning of October 18.

Q. And did you find a medical cause for that catastrophic asphyxiating event?

A. No, I did not find any medical cause.”

“We also had white cells stained for a similar process, to see if there were what we called occlusions. Again, that was all negative.

We did all those tests that were available in 1990 at our disposal to look for inherited diseases that might have brought about neurological abnormalities.

Q. Did you find any inherited diseases?

A. No, we found absolutely none.

Q Did you ever find out how Patrick suffered that damage to his brain?

A. We never had any absolute explanation for that.

Q. Was that damage to Patrick’s brain consistent with him having suffered from a catastrophic asphyxiating event from unknown causes?

A. Absolutely.

Q. If there is such damage to the brain, can that damage in turn cause seizures to develop within a few days?

A. Yes. It’s a very typical sort of story that a child, who’s suffered some asphyxial damage to the brain, may then, over the next few days and weeks, develop progressive change within the brain that produces seizures. So, it is quite common that, although the child having suffered such an event and survived, it may not have seizures initially. It’s quite common to find that further down the road they may have seizures.

In Patrick’s case it became apparent, further down the line, that he had lost visual function. That is, again, something I have seen in a number of situations, where children have suffered various asphyxial events and subsequently developed visual problems. I believe that is because the visual part of the brain is extraordinarily sensitive to lack of oxygen. It is one part of the brain that, following oxygen deprivation, may show malfunction – perhaps even in an isolated fashion.

Subsequently, development of his seizures and the progressive changes on the EEG, electroencephalogram, and the changes on the CAT scan, which became progressive over time too – I think that was all quite in keeping with his having suffered an asphyxial event at the beginning of that, and then evolved over time.”

“Q. And it is also possible, isn’t it, that prior to his admission to hospital on 18 October 1990, that is the first admission, he had encephalitis?

A. I think it is absolutely impossible.

Q. Have you ever considered that it was possible?

A. Yes, I did certainly so when I realised it had been raised as an issue. I examined all the detail and I believe it is impossible, him having encephalitis.

Q. In relation to Patrick and the facts and circumstances surrounding him, has it always been your opinion that it is impossible that he suffered from encephalitis?

A. Not always. At the time of his first admission that was an issue that was a possibility. During that first admission as the evidence, clinical evidence and the investigations unfolded it became progressively clear it was not encephalitis.”

Dr. Wilkinson never thereafter departed from that view. In his re-examination he re-affirmed his opinion with special reference to a document which he had prepared and in which he had itemised comprehensively the reasons which had led him to dismiss encephalitis as the cause of the ALTE. That part of Dr. Wilkinson’s re-examination concluded thus:

“Q. Putting all of those together, are you able now to exclude encephalitis as a possible cause of Patrick’s admission when he first came into hospital?

A. Yes, I can.

Q. And what do you say now is the most likely cause of the first admission to hospital?

A. I think the most likely cause was asphyxia.

Q. And what does asphyxia mean?

A. Asphyxia is a situation where the end result is that the blood cannot deliver oxygen to the tissues and that may be as a result of a number of issues. It would be as a result of just obstructing the passage of air and oxygen into the lungs, it can be other situations, carbon monoxide poisoning where the oxygen can’t be carried, but I think asphyxia most commonly is the result of oxygen not getting into the body.”

[3] Dr. Christopher Marley saw Patrick, as a General Practitioner, on five occasions for routine childhood illnesses and to administer routine childhood treatment. Despite his epilepsy and his cortical blindness Patrick was “progressing well and growing well” . Dr. Marley observed no life-threatening conditions in Patrick apart from his seizure disorder.

[4] Associate Professor David Cooper gave evidence as a specialist in paediatric respiratory and sleep medicine. He had conducted sleep studies on Patrick at the age of about 1-1/2 weeks; and the studies showed no signs of any episode of apnoea. The study results were entirely normal.

96. This was a matter where, in essence, the Crown case disclosed five events which were, at their highest from the point of view of the Crown, undetermined in their origins. Without such a proven event the approach of the Crown in its endeavours to use the subject evidence had an element of circularity about it. It is suggested that this defect had not been resolved by the close of addresses and the conclusion of his Honour’s summing-up. The circularity is that it rested upon an impermissible assumption that each event (considered individually) was relevant in the sense required by the Evidence Act in that it was a non-accidental death.”

150 Relevant case law apart, I do not agree with that reasoning.

151 It seems to me that the four deaths and Patrick’s ALTE satisfy every relevant part of section 98 of the Evidence Act, the section dealing generally with coincidence evidence. The five events were substantially and relevantly similar. The circumstances in which they occurred were, plainly I should have thought, substantially similar. The five events were, therefore, “related events” in the statutory sense established by section 98. The admissibility, when considering any one of those events, of evidence respecting all four other events depended, therefore, upon the section 98(1)(b) test: Does the Court which is asked to admit the coincidence evidence “think” that the particular evidence has “either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence”, what the section describes as “significant probative value”?

152 The concept of “significant probative value” is meaningless unless it is related to the fact or facts in issue towards the proof of which the coincidence evidence is being tendered at all. The fact or facts in issue is or are those facts described in section 98(1) itself:

“…………………………….. Because of the impossibility of the …. (related) ….. events occurring coincidentally, …… (the accused person) …….. did a particular act or had a particular state of mind.”

153 Had any one of the five counts charged in the present case been severed and tried separately, there must have been a Crown application to lead as coincidence evidence, evidence that the event central to the severed count was not, in truth, an isolated event at all; but was, rather, but one in a chain of events that were “related events” in the section 98 sense; that whole chain of events having occurred in such an overall context, of which the diary entries were a most cogent feature, as to negate any reasonable possibility of mere, albeit somewhat astonishing, coincidence.

154 I can see no persuasive argument that would have rendered the proposed coincidence evidence inadmissible, except, of course, for the possible operation of section 101, or of section 137 of the Evidence Act; - (and perhaps sections 135 and 136, although I would myself have thought that those sections were, as a practical matter, academic in a case of the0 present kind).

155 For the foregoing reasons, I would not be persuaded that, absent binding authority to the contrary, there was any miscarriage by reason of the joint trial of all five counts in the indictment. There is, as it happens, authority which seems to me to support the foregoing reasoning.

156 It is convenient to begin that canvass by referring back to part of the contents of paragraph 12, previously herein quoted, of the judgment of the English Court of Appeal in Cannings. The judgment of a differently constituted Bench of the Court of Appeal which dealt with the interlocutory application of which paragraph 12 speaks, was made available to this Court. That judgment takes as its starting point the decision, earlier herein mentioned, of Makin. There follows a detailed and helpful canvass of subsequent English authority. The conclusion reached upon the basis of that canvass is put as follows in paragraph 31 of the judgment:

“In our judgment, it would be, in the words used in the authorities, ‘an affront to common sense’ if the evidence in relation to the deaths and ALTEs of each of these children was not admissible in relation to the deaths referred to in the indictment. As we have said, we do not accept that it is a necessary prerequisite to the admission of such evidence that, when viewed in isolation in relation to each child, it gives rise to a prima facie case. Whether or not there is, in relation to either count in the indictment, a prima facie case, is a matter, of course, determinable at the close of the prosecution case at trial. But, in our judgment, when fairness to the prosecution, as well as fairness to the defence, are considered, there is nothing either wrong in law or unfair in the evidence in relation to each of these children being admitted, in relation to the death of the others. It follows that, in our judgment, the judge was correct to rule in relation to admissibility as she did and to rule that severance was inappropriate.”

157 Of the authorities which are canvassed by that interlocutory judgment of the Court of Appeal there is one, Director of Public Prosecutions v P [1991] 2 AC 447, in which the Lord Chancellor, Lord Mackay of Clashfern, states a number of propositions which are, I think, helpful to the present discussion.

158 At 460D – 461A his Lordship says:

“As this matter has been left in Reg v Boardman I am of opinion that it is not appropriate to single out ‘striking similarity’ as an essential element in every case in allowing evidence of an offence against one victim to be heard in connection with an allegation against another. Obviously, in cases where the identity of the offender is an issue, evidence of a character sufficiently special reasonably to identify the perpetrator is required and the discussion which follows in Lord Salmon’s speech on the passage which I have quoted indicates that he had that type of case in mind.

From all that was said by the House in Reg v Boardman I would deduce the essential feature of evidence which is to be admitted is that its probative force in support of the allegation that an accused person committed a crime is sufficiently great to make it just to admit the evidence, notwithstanding that it is prejudicial to the accused intending to show that he was guilty of another crime. Such probative force may be derived from striking similarities in the evidence about the manner in which the crime was committed ……………… . But restricting the circumstances in which there is sufficient probative force to overcome prejudice of evidence relating to another crime to cases in which there is some striking similarity between them is to restrict the operation of the principle in a way which gives too much effect to a particular manner of stating it, and is not justified in principle.”

159 And 462D – G:

“When a question of the kind raised in this case arises I consider that the judge must first decide whether there is material upon which the jury would be entitled to conclude that the evidence of one victim, about what occurred to that victim, is so related to the evidence given by another victim, about what happened to that other victim, that the evidence of the first victim provides strong enough support for the evidence of the second victim to make it just to admit it notwithstanding the prejudicial effect of admitting the evidence. This relationship, from which support is derived, may take many forms and while these forms may include ‘striking similarity’ in the manner in which the crime is committed, consisting of unusual characteristics in its execution the necessary relationship is by no means confined to such circumstances. Relationships in time and circumstances other than these may well be important relationships in this connection. Where the identity of the perpetrator is in issue, and evidence of this kind is important in that connection, obviously something in the nature of what has been called in the course of the argument a signature or other special feature will be necessary. To transpose this requirement to other situations where the question is whether a crime has been committed, rather than who did commit it, is to impose an unnecessary and improper restriction upon the application of the principle.”

160 For the whole of the foregoing reasons I am, therefore, of the opinion that Ground 1 has not been made good.

The Convictions Appeal : Conclusion

161 In my opinion no one of the grounds of appeal has been made good; and I would, therefore, dismiss the convictions appeal.

The Sentence Application

162 As previously herein noted Barr J passed sentences structured so as to produce an overall head sentence of imprisonment for 40 years and a non-parole period of 30 years.

163 The practical structure of the sentences was:

[1] Count 1 – imprisonment for a term of 10 years to commence on 22 April 2003 and to expire on 21 April 2013;

[2] Count 2 – imprisonment for a term of 14 years to commence on 22 April 2005 and to expire on 21 April 2019;

[3] Count 3 – imprisonment for a term of 18 years to commence on 22 April 2006 and to expire on 21 April 2024;

[4] Count 4 – imprisonment for a term of 20 years to commence on 22 April 2013 and to expire on 21 April 2033; and

164 Three matters are at once apparent.

165 First, Barr J correctly fixed a distinct sentence for each distinct offence. This conformed to what is required by the decision of the High Court of Australia in Pearce v The Queen (1998) 194 CLR 610.

166 Secondly, his Honour made each sentence in the sentencing sequence incrementally larger than the preceding sentence in that sequence. I see no error of principle on that account. His Honour was dealing, after all, with five distinct offences separated by not insignificant periods of time.

167 Thirdly, his Honour built in to the sentencing structure a measure of cumulation. As a matter of broad sentencing principle there was, in my respectful opinion, no manifest error in that approach.

168 The appellant submits that the end result achieved by Barr J is manifestly excessive. It is submitted that the degree of cumulation as between the sentences passed in connection with Counts 1 and 4, a cumulation of 10 years, which is the entire term of the Count 1 sentence; and as between Counts 1 and 5, a cumulation of 18 years; is itself indicative of error. It is submitted, as well, that the sentences do not allow adequately, if indeed at all, for the unusual personal and psychological profiles of the appellant; and, further, that the sentences do not allow for the special features of the harshness of the custodial regime to which the appellant is, and is likely to remain, subject.

169 There can be no gainsaying, in my opinion, that the objective criminality of the five offences was, overall, very serious indeed. On this topic Barr J made these findings:

“The stresses on the offender of looking after a young child were greater than those which would operate on an ordinary person because she was psychologically damaged and barely coping. Her condition, which I think she did not fully understand, left her unable to ask for any systematic help or remove the danger she recognised by walking away from her child. She could confide in nobody. She told only her diary. Even when her diary was discovered and her feelings realised she was persuaded to stay with Patrick. I think that the condition that gave rise to her fears and anxieties prevented her from refusing the well-intentioned offer.

The attacks were not premeditated but took place when she was pushed beyond her capacity to manage. Her behaviour after each attack contained elements of falsity and truth. She falsely pretended the unexpected discovery of an accident and falsely maintained her innocence. That, I think, was because she could not bring herself to admit her failure to anyone but herself. However, her attempts to get help, including what I think was a genuine attempt to perform cardio-pulmonary resuscitation on Laura, were genuine and made out of an immediate regret of what she had done. Her anger cooled as fast as it had arisen.

However, even with these mitigating features one would not hesitate, without the evidence of the events of the offender’s childhood and their eventual effect on her behaviour as an adult, to say that, taken together, her offences fell into the worst category of cases, calling for the imposition of the maximum penalty. As the Crown said in its written submissions, the real issue that arises is whether the offender’s dysfunctional childhood provides any significant mitigation of her criminality.

I think that it does. I think that notwithstanding the stable family environments afforded by the Platt and Marlborough families and by Mr. Folbigg the effects on the offender of the traumatic events of her childhood operated unabated. She was throughout these events depressed and suffering from a severe personality disorder. I accept the evidence of Dr. Westmore that her capacity to control her behaviour was severely impaired.

I accept that throughout her marriage the offender was affected by the abuse perpetrated upon her during the first eighteen months of life. The effects included an inability to form a normal, loving and forbearing relationship with her children. Although she realised that shortcoming she lacked the resources to remedy it. She was unable to confide in Mr. Folbigg. He never knew that she was at the end of her tether. The result was that he continued to leave everything to her and her fear of the consequences became settled. Her depression went unrelieved and on occasions turned itself into anger. The offender was not by inclination a cruel mother. She did not systematically abuse her children. She generally looked after them well, fed and clothed them and had them appropriately attended to by medical practitioners. Her condition and her anxiety about it left her unable to shrug off the irritations of unwell, wilful and disobedient children. She was not fully equipped to cope.

On occasions she appeared cool, detached, self-interested and unaffected by the fate of the children. In truth, she suffered remorse which she could not express.”

170 All of these findings were, in my respectful opinion, amply open to his Honour upon the whole of the evidence, but particularly the evidence of Drs. Giuffrida and Westmore, that was put to his Honour during the proceedings on sentence.

171 I add, because the matter is very important in the present context, that the psychological damage to which Barr J refers in paragraph 91 as quoted above, was not trifling or peripheral damage, but was serious, deep-seated damage caused over a period of some years commencing when the appellant was a baby. The details make sad and shocking reading. It is unnecessary to rehearse now all of the ugly and distressing particulars.

172 The appellant was born on 14 June 1967. She was aged, therefore, a little more than 36 years when she stood for sentence. Her subjective profile was shaped in large part by the psychological damage to which I have previously referred. The just balancing of the appellant’s objective criminality, as found by Barr J, and her subjective profile, posed three particular questions for his Honour.

173 First, to what extent was the appellant, now and in the foreseeable future, a continuing danger to the well-being of the community. Barr J concluded:

“Dr. Guiuffrida and Dr. Westmore agree that the offender’s condition is for the most part untreatable. Her chronic depression may respond to medication. Her feelings of vulnerability and failure may respond to psychotherapy, though there may be doubt whether it will be possible to offer her the fortnightly services that Dr. Westmore considers necessary for that purpose. She will always be a danger if give the responsibility of caring for a child. That must never happen. She is not a dangerous person generally, however, and her dangerousness towards children does not disentitle her to eventual release upon parole on conditions which will enable risks to be managed.”

174 I respectfully agree with those conclusions, but subject to a note of caution in connection with the proposition that the appellant: “will always be a danger if given the responsibility of caring for a child. That must never happen.”. I think, with all due respect to his Honour, that such an assessment is unacceptably speculative insofar as it treats of distant future probabilities. There is also, I think, a risk that such a cut-and-dried look into the far distant, and in truth unknowable, future will introduce into the sentencing process an impermissible element of mere preventative detention which punishes the appellant, not for the crimes that she has undoubtedly committed, but for crimes which it is feared, in an incohate general sense, that she might commit in that future: cf Veen (No. 2) (1988) 164 CLR 465 per Mason CJ, Brennan, Dawson and Toohey JJ at 473.5 – 474.2.

175 Allied to that question is the issue of general, as well as personal, deterrence. It is submitted for the appellant that an offender with the appellant’s damaged psychological profile is not a suitable vehicle for the provision of general deterrence. If that submission means that in the case of such an offender the factor of general deterrence will not have in the nature of things the importance that it would have in the case of an offender whose objective criminality was not so mitigated, then I would accept the submission as being both sound in logic and consistent with relevant authority. It the submission means, however, that there is no room in such a case for a measure of general deterrence, then I would not accept the submission. A theme of much of contemporary social behaviour is “stressing out” and then lashing out. To say that “stressing out” should have a sensibly mitigating effect upon objective criminality, and upon the accompanying subjective factors, is one thing. It is quite a different thing to encourage any view in any segment of society that “stressing out” is some sort of licence to commit criminal offences; and a fortiori the criminal offences of manslaughter and murder.

176 Secondly, to what extent did the appellant have prospects of rehabilitation? Barr J dealt with this topic thus:

“………….. She is not a dangerous person generally, however, and her dangerousness towards children does not disentitle her to eventual release upon parole on conditions which will enable risks to be managed.

Because of the intractability of her condition, the offender’s prospects of rehabilitation are negligible. She is remorseful but unlikely ever to acknowledge her offences to anyone other than herself. If she does she may very well commit suicide. Such an end will always be a risk in any event.”

177 I see no error in these findings and opinions. I do see a need to make sensible allowance for the fact that no Court which now deals with this appellant can really foresee how she will develop in decades from now, should she be given humane, professional treatment and support.

178 Thirdly, what needs to be done about the likely circumstances of this appellant’s imprisonment?

179 Barr J describes these circumstances simply, clearly and graphically thus:

“Gaol is a dangerous environment for any serving prisoner. It will be particularly dangerous for the offender. In order to protect her from the danger of murder by other inmates the authorities will have to keep her closely confined for the whole of her time in custody. The number of people with whom she will have contact will be limited. So far she has been locked up for twenty-two hours in every twenty-four and the indications are that some such regime will obtain indefinitely. For these reasons she will serve her sentences the harder and is entitled to consideration.”

180 I see no error in any of those findings or in that assessment.

181 The foregoing questions apart, Barr J speaks of the perceived need to accommodate “the outrage of the community”. This is, I apprehend, a fairly conventional notion in the context of sentencing; but it seems to me to need some carefully discriminating application in particular cases. The concept itself cannot mean, surely, outrage that is seen and assessed through the normally distorted prism of the coverage given to high-profile criminal cases in the mass media of social communication. The concept must entail, surely, a notion of the outrage that would be reflected in a properly informed, sensible and thoughtful community consensus.

182 I apprehend that the appellant’s crimes would be regarded by any person who was properly informed, sensible and thoughtful, as terrible crimes, not only on account of their substance, but also on account of the tragic background which explains to some extent, although it does not excuse to any extent, how the crimes came to be committed. I apprehend that any such person would understand readily enough the need which arises when punishing such crimes, not unthinkingly, (and to borrow from the oral submissions of Mr. Jackson QC), to treat the appellant as somebody “to be locked up and the key thrown away”.

183 When this Court comes, in adjudicating an appeal against sentence, to consider whether there has been any error at first instance, it is important, in my opinion, that the Court not depart either insouciantly or idiosyncratically, from the findings and conclusions of the sentencing Judge, and particularly in the present case when the sentencing exercise was so extraordinarily difficult. As has been said many times in the cases, sentencing is an art and not a science. “That is”, to quote from the joint judgment of Gaudron, Gummow and Hayne JJ in Wong v The Queen (2001) 207 CLR 584 at 611, “what is meant by saying that the task is to arrive at an ‘instinctive synthesis’. This expression is used, not as might be supposed, to cloak the task of the sentencer in some mystery, but to make plain that the sentencer is called on to reach a single sentence which, in the case of an offence like the one now under discussion, balances many different and conflicting features”.

184 I have considered anxiously the particular question now posed for this Court, that is to say, whether some other and more lenient sentence is warranted in law: see section 6(3), Criminal Appeal Act 1912 (NSW). I can see no proper answer other than an affirmative one.

185 First, I think that there is an identifiable particular error in Barr J’s method of cumulation. That some cumulation was warranted is, in my opinion, plainly correct. But the structuring of the sentences passed in connection with Counts 4 and 5 entails that the sentence on Count 4, a heavy sentence in any event, does not commence until 7 years after the commencement of the sentence on Count 3, and 10 years after the commencement of the sentence on Count 1; while the sentence on Count 5, an even heavier sentence, does not commence until 8 years after the commencement of the sentence on Count 4, and 18 years after the commencement of the sentence on Count 1.

186 These are quite extraordinary cumulations. The prospect that they offer the appellant is so crushingly discouraging as to put at risk any incentive that she might have to apply herself to her rehabilitation. That seems to me to indicate, without more, error.

187 Secondly, I am of the opinion, with every proper respect to Barr J, that the overall results of a head sentence of 40 years and a non-parole period of 30 years are so crushing as to manifest covert error.

188 The written submissions of the appellant draw attention to a number of cases which are said to indicate, at least in a broadly helpful way, a pattern of sentencing that suggests such a covert error in the present case. The individual comparisons are necessarily inexact, as the appellant’s written submissions fairly acknowledge. But they do tend to strengthen my opinion that the overall results in the present case are simply too high.

189 As matters stand, the appellant cannot be paroled until she is aged 66 or thereabouts. She might well not be paroled until she is even older; and if political reaction to media pressure and to meretricious polling operates at that future time as it tends to operate now, she might well not be released until she is aged 76 or thereabouts. That is, it seems to me, a life sentence by a different name.

190 Barr J stopped short of passing a life-means-life sentence, and that for reasons with which I respectfully agree. An end sentencing result which does not have the same pedantic theoretical operation, but which is likely to have the same practical effect, is in my respectful opinion such as to warrant the section 6(3) intervention of this Court. In my opinion, justice would be done by an overall result entailing a head sentence of 30 years and a non-parole period of 25 years.

191 The non-parole period thus proposed is about 83 per cent of the proposed head sentence rather than the statutory norm of 75 per cent. I think, as did Barr J, and for the same reasons as his Honour, that a somewhat longer than normal non-parole period is justified in order to reflect the reasonable requirements overall of the appellant’s case.

Orders

[1] That there be granted any extension of time necessary to permit of the hearing of the present appeal and application;

[2] That the appeal against convictions be dismissed;

· On Count 4 to imprisonment for 20 years to commence on 22 April 2008 and to expire on 21 April 2028; no non-parole period being set because of the overall structure of the appellant’s re-sentencing;

· On Count 5 to imprisonment for 22 years to commence on 22 April 2011 and to expire on 21 April 2033. A non-parole period of 17 years, to expire on 21 April 2028, is set.

192 DUNFORD J: I agree with the orders proposed by Sully J and with his Honour’s reasons for such orders.

193 HIDDEN J: I agree with Sully J.

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Citations

R v Folbigg [2005] NSWCCA 23

Most Recent Citation

R v Fraser [2005] NSWCCA 77

Cases Citing This Decision

13

Folbigg v Attorney General of New South Wales [2020] NSWSC 1415

R v Tiwary [2009] NSWSC 1415

R v Bruce Allan Burrell [No 3] [2008] NSWSC 30

Cases Cited

13

Statutory Material Cited

2

R v GK [2001] NSWCCA 413

M v the Queen [1994] HCA 63

Morris v the Queen [1987] HCA 50

Cited Sections

CITATION:	Regina v Folbigg [2005] NSWCCA 23
HEARING DATE(S):	26 November 2004
JUDGMENT DATE:	17 February 2005
JUDGMENT OF:	Sully J at 1; Dunford J at 192; Hidden J at 193
DECISION:	Extension of time granted to permit of hearing of present appeal and application; Appeal against convictions dismissed; Leave granted to appeal against sentence; sentences passed at first instance on Counts 4 and 5 quashed and appellant re-sentenced on those counts as follows; On Count 4 to imprisonment for 20 years to commence on 22 April 2008 and to expire on 21 April 2028; no non-parole period set because of the overall structure of the appellant's re-sentencing; On Count 5 to imprisonment for 22 years to commence on 22 April 2011 and to expire on 21 April 2033 with a non-parole period of 17 years to expire on 21 April 2028.

LEGISLATION CITED:	Evidence Act 1995 (NSW) Criminal Appeal Act 1912 (NSW)
CASES CITED:	GK (2001) 53 NSWLR 317 Makin v Attorney General of New South Wales [1894] A C 57 at 65 Reg v Boardman [1975] A C 421 at 456E Harris v Director of Public Prosecutions [1952] A C 694 Reg v Cannings [2004] 1 WLR 2067 M v The Queen (1994) 181 CLR 487 at 493 Jones v The Queen (1997) 191 CLR 439 MFA v The Queen (2002) 213 CLR 606 R v Ellis (2003) 58 NSWLR 700 Director of Public Prosecutions v P [1991] 2 A C 447 Pearce v The Queen (1989) 194 CLR 610 Veen (No. 2) (1988) 164 CLR 465 Wong v The Queen (2001) 207 CLR 584
PARTIES:	Regina Kathleen Megan FOLBIGG
FILE NUMBER(S):	CCA 2004/1814
COUNSEL:	M. Sexton SC/J. Girdham/A. Mitchelmore - Crown D. Jackson QC/P. Zahra SC - Appellant
SOLICITORS:	S. Kavanagh - Crown S. O'Connor - Appellant

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	70046/02
LOWER COURT JUDICIAL OFFICER:	Barr J