Dr Bob Moles
Yesterday (June 1, 2021) it was announced by the High Court that Kathleen Folbigg has lodged an application for special leave to appeal. As a legal commentator and academic I am discussing with my students the significance of this course of action as follows: A concern is that this action might well delay Ms Folbigg’s release from prison by over a year.
The appeal concerns a decision by a Board of Inquiry set up to determine if she should be allowed to appeal her conviction to the appeal court in NSW. The Inquiry determined that the appeal should not proceed, and that decision was in turn affirmed by the appeal court.
For reasons which we don’t need to go into here, I am of the opinion that the Inquiry failed to consider properly the evidence which was provided to it, and that the appeal court was wrong in affirming that decision. This would mean that the appeal to the High Court would have every chance of being successful. However, that raises another interesting question as to whether that appeal should proceed.
The problem is that since the evidentiary hearing of the Inquiry concluded, further scientific evidence emerged to clearly demonstrate that the case put by the prosecution at Ms Folbigg’s trial was incorrect. The new scientific evidence, supported by 90 of the world’s leading experts, stated that it had been discovered that the deaths of at least two of Ms Folbigg’s children had been caused by a genetic defect. That meant that there were not four unexplained deaths as had been alleged at her trial.
The significance of that new and compelling evidence is twofold. First, it renders the findings of the inquiry irrelevant, as it had proceeded on the basis of an understanding of the science which was incomplete.
Secondly, it provides a totally compelling basis upon which the conviction of Ms Folbigg should be overturned. There cannot be any possible doubt that an appeal court, when presented with this new scientific evidence, would immediately conclude that the conviction was unsafe and should be set aside.
Faced with that situation, a further application to the Attorney-General or to the Chief Justice, setting out this new scientific evidence should be quite sufficient to trigger an immediate reference of the case to the appeal court and for the conviction to be overturned. In a properly working appellate system, that process can be completed within a matter of a day or two as happened with Mr Farah Jama’s case in Victoria.
However, if the redundant Inquiry decision is appealed to the High Court it might take several months for leave to be granted by the High Court – several more moths before the appeal is heard – and then even more months before a decision is handed down. After a year or more, if the appeal is successful, all the High Court can do is to declare that the Inquiry decision was wrong and set it aside. That would leave Ms Folbigg in exactly the same situation as she is today. It would not advance the cause of her freedom by a single step.
However, if in the intervening period, the Attorney-General or the Chief Justice were asked to refer the matter to the appeal court on the basis of the new scientific evidence, as they are entitled to do, they might respond by saying that as the matter is before the High Court they ought to await the outcome of those proceedings.
It seems to me that the sensible course of action would be to focus on the fresh and compelling evidence which has emerged since the Inquiry concluded and use that as a basis upon which to proceed to a further and urgent consideration of the case by the appeal court.
Given the overwhelming and unprecedented nature of this new evidence, it might well be worth asking the Director of Public Prosecutions whether the Crown would oppose such an appeal. In the UK the DPP has conceded that an appeal should be allowed in over 20 cases where the evidence has been far less compelling than that in Ms Folbigg’s case. A joint application by the Crown and the defence in such a case would be both an honourable and expeditious way to proceed.