Andrew L. Urban
A decision by the NSW Attorney-General that should have been made four years ago by his predecessor has seen Kathleen Folbigg freed this morning on being granted a pardon by the Governor, on the recommendation of the Attorney-General, Michael Daly.
The release follows a summary of findings by Thomas Bathurst AC KC who led this second inquiry into her convictions. In a memorandum outlining his findings, Bathurst stated he had reached “a firm view that there was reasonable doubt as to the guilt of Ms Folbigg for each of the offences for which she was originally tried.”
Bathurst was “unable to accept… the proposition that Ms Folbigg was anything but a caring mother for her children.”
Bathurst advised that due to the volume of submissions and evidence, it would take some time for the formal report to be finalised.
The pardon has allowed Folbigg to be freed; she will need to appear before the Court of Criminal Appeal to have the conviction quashed, which would allow her to seek compensation.
“The result today is confirmation that our judicial system is capable of delivering justice, and demonstrates that the rule of law is an important underpinning of our democratic system.” As recently as last week, Daley resisted calls from MPs to free Kathleen, 55, immediately from prison after the state’s top prosecutor conceded new evidence had created reasonable doubt about her convictions over the deaths of her children.
And in November 2021, While acknowledging the need to hold a fresh inquiry, then NSW Attorney-General Mark Speakman had commented: “I can well understand why members of the public may shake their heads and roll their eyes in disbelief about the number of chances Ms Folbigg has had to clear her name, and why does the justice system allow someone who has been convicted of multiple homicides get another go.”
‘Get another go…?’ Because it seems the first ‘go’ ignored the new scientific evidence that cast reasonable doubt over the conviction.
In 2019, the inquiry’s Commissioner Blanch dismissed the suggestion that experts could help him understand Folbigg’s diaries. “I would not be assisted at all in this inquiry by a psychiatrist who wanted to come along and tell me a) what the words of the diary mean, or b) about the fact that a mother who had lost her babies would be upset and emotional and so on,” he declared.
But today, Bathurst’s summary stated that “In relation to Ms Folbigg’s diary entries, evidence suggests they were the writings of a grieving and possibly depressed mother, blaming herself for the death of each child, as distinct from admissions that she murdered or otherwise harmed them.”