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R v Folbigg

R v Folbigg

Case [2005] NSWCCA 23 17 February 2005

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Folbigg

Details

AGLC: R v Folbigg [2005] NSWCCA 23
Case: [2005] NSWCCA 23
Decision Date: 17 February 2005

CaseChat Overview and Summary

Kathleen Megan Folbigg was convicted in the Supreme Court of five charges of murder and manslaughter. The charges related to the deaths of her four children. Folbigg appealed against her convictions and sentences. The Court of Criminal Appeal dismissed the appeal against convictions and granted leave to appeal against sentence. The Court quashed the sentences passed on two of the murder charges and re-sentenced the appellant. The Court held that the sentences passed by the trial judge were excessive. The Court noted that the appellant's objective criminality was very serious, but her subjective profile was heavily mitigated by serious, deep-seated psychological damage. The Court found that the sentences passed by the trial judge were so crushing as to manifest covert error. The Court re-sentenced the appellant on two of the murder charges to terms of imprisonment with non-parole periods.

Orders