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R v Folbigg

R v Folbigg

Case [2003] NSWCCA 17 13 February 2003

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CITATION: R. v. Folbigg [2003] NSWCCA 17 revised - 30/05/2003

HEARING DATE(S): 6 February 2003

JUDGMENT DATE:
13 February 2003

JUDGMENT OF: Hodgson JA at 1; Sully J at 36; Buddin J at 37

DECISION: 1. Application dismissed. 2. The fact of the application and the result may be published, but ordered that the reasons not be published until further order.

CATCHWORDS: CRIMINAL LAW - EVIDENCE - Accused charged with murder of four children - Plea of not guilty - Defence application for separate trials - Coincidence evidence

LEGISLATION CITED: Evidence Act ss.97, 98, 101, 135, 137

CASES CITED: Makin v. Attorney-General for NSW [1894] AC 57
Perry v. The Queen (1982) 150 CLR 580
Pfennig v. the Queen (1995) 182 CLR 461
R v. Geering (1849) 18 LJMC 215
R v. Grills (1954) 73 WN(NSW) 303
R v. Joiner [2002] NSWCCA 354
R v. Le [2000] NSWCCA 49
R v. Leask [1999] NSWCCA 33
R v. OGD (222) 50 NSWLR 443
R v. Phillips [1999] NSWSC 1175
R v. Smith (1915) 11 Cr.App.Rep 229
R v. WRC [2000] NSWCCA 210
Shepherd v. The Queen (1990) 170 CLR 573
Sutton v. The Queen (1983-4) 152 CLR 528
Thompson v. The Queen (1989) 169 CLR 1
W v. The Queen [2001] FCA 1648

PARTIES :
Regina
Kathleen Megan Folbigg - applicant

FILE NUMBER(S): CCA 60496/02

COUNSEL: Mr. M. Sexton SC with Dr. J. Quilter for Crown
Mr. P. Zahra SC with Mr. A. Cook for applicant

SOLICITORS: S.E. O'Connor for Crown
D.J. Humphries for applicant

LOWER COURTJURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): SC 70046/02

LOWER COURT
JUDICIAL OFFICER : Wood CJ at CL

CCA 60496/02

SC 70046/02

HODGSON JA
SULLY J
BUDDIN J
Thursday 13 February 2003

REGINA v. Kathleen Megan FOLBIGG

Judgment

1 HODGSON JA: The applicant Kathleen Megan Folbigg has been charged with the murder of four of her infant children, namely Caleb, Patrick, Sarah and Laura, and with maliciously inflicting grievous bodily harm to Patrick with intent to do him grievous bodily harm, some four months before his death.

2 The applicant applied for an order that the counts relating to the alleged murders of Caleb, Sarah and Laura be heard individually and separately from the counts relating to Patrick. That application was dismissed by Wood CJ at CL on 29 November 2002.

3 The applicant seeks leave to appeal from that decision.

PRIMARY JUDGE’S DECISION

4 Before the primary judge, the Crown opposed the application, on the basis that evidence relating to the deaths of each child, and an apparent life-threatening event (referred to by the primary judge as an ALTE) concerning Patrick, was admissible in relation to each count as tendency evidence under s.97 of the Evidence Act and co-incidence evidence under s.98 of the Act. Appropriate notices complying with s.99 of the Act had been served. The primary judge accepted that contention of the Crown, and it was for that reason that he rejected the application. The applicant contends that the primary judge was…

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 [2003] NSWCCA 17
Case: [2003] NSWCCA 17
Decision Date: 13 February 2003

CaseChat Overview and Summary

In the case of R v Folbigg, the accused was charged with the murder of her four children. The accused pleaded not guilty, and the court was tasked with considering a defence application for separate trials, as well as the admissibility of coincidence evidence. The trial took place in the Supreme Court of New South Wales, where the accused was represented by counsel, and the prosecution was conducted by the Director of Public Prosecutions.

The legal issues before the court included whether the defence application for separate trials should be granted and whether the coincidence evidence should be admitted. The defence argued that separate trials would be more just and fair for the accused, as the evidence of the deaths of the four children was similar and could lead to confusion and prejudice against the accused. The prosecution opposed the application for separate trials and argued that the coincidence evidence was relevant and admissible to prove the accused's identity as the perpetrator of the murders. The court was required to balance the competing considerations of fairness and the probative value of the evidence.

The court considered the relevant legal principles and authorities and concluded that the application for separate trials should be refused. The court found that the evidence of the deaths of the four children was not so similar as to make it difficult to consider each case separately, and that the probative value of the coincidence evidence outweighed any potential prejudice to the accused. The court also found that the coincidence evidence was relevant to prove the accused's identity as the perpetrator of the murders, as it established a pattern of behaviour that was consistent with the accused's guilt. The court admitted the coincidence evidence and denied the defence application for separate trials.

The final orders of the court were that the application for separate trials was refused, and that the coincidence evidence was admissible. The trial proceeded with all four charges being heard together.

Orders