The wrongful conviction of Kathleen Folbigg, who spent over 20 years in custody, is unarguably one of Australia’s worst, acknowledged, miscarriages of justice. A special edition of Current Issues in Criminal Justice (by Mehera San Roque & Emma Cunliffe, May 4, 2026) brings together several academics to examine the implications of the case for the legal system. The following is an extract from the section titled ‘Implications of the case for criminal legal system reform’.
Many of the papers in this volume raise real questions about whether our adversarial system is fit for purpose. The papers by Pascale Chifflet and Meribah Rose, and David Hamer consider the potential for reforms to systems of review to address and correct wrongful convictions. As Chin and others in this volume note, a robust or trustworthy system needs to be able to identify and correct errors. Chifflet and Rose consider views on the desirability and efficacy of adding a ‘second’ appeal to the existing appellate review process.
Taking as their case study the recent introduction of this new option for appellate review in Victoria, their paper investigates the views of participants in the system. Their paper notes that while participants welcomed the reform, the barriers or threshold conditions for accessing a second appeal are likely to be too restrictive. The limited recourse to this second right (documented by Hamer (Citation2026)) confirms their view (see also Sangha, Citation2025). In his article in this volume, David Hamer offers a comparative account of the current rates of review and success in terms of correcting a wrongful conviction.
He considers the sufficiency of conventional appellate processes as well as ad hoc Inquiries (such as the Folbigg Inquiries) when it comes to identifying and correcting error.
Concluding that the current procedures in Australia remain inadequate (including noting the limitations of the existing ‘second appeal’ provisions), his paper strengthens the evidence base supporting calls for the establishment of a national Criminal Cases Review Commission (CCRC)* in Australia (see also Cordner & Breen, Citation2023; Rego, Citation2025).
Establishing a CCRC is not a panacea or without its problems. As Hamer notes, these institutions, where they exist, are under pressure and cannot guarantee that all wrongful convictions will be corrected. But one of the clear lessons to be drawn from the Folbigg case is that to rely on conventional adversarial and appellate processes, supplemented by costly and exceptional ad hoc Inquiries, is insufficient. Importantly, a CCRC can operate independently of the executive and thus avoid the political risks, real or perceived, attendant on a government being seen to be soft on crime or lacking in sympathy for ‘victims’ (Cordner & Breen, Citation2023; Folbigg & Chapman, Citation2025; Lane et al., Citation2025).
In cases such as Folbigg’s, these political or populist pressures will be especially problematic. As Parkes and Cunliffe point out, women are more likely to be wrongfully convicted in situations where no crime has in fact been committed at all (Parkes & Cunliffe, Citation2015). And such circumstantial cases, especially when the convictions rely on gendered reasoning accompanied by equivocal medical or expert evidence, could be both particularly susceptible to the narrative overreach present in Folbigg, and less amenable to conventional appellate review (Lane et al., Citation2025; p. 557, see also Edmond, Citation1998; Mahase, Citation2025).
Finally, the point has been made that establishing a CCRC could open up access to review to those who may lack powerful advocates. While Folbigg’s case has been celebrated by legal and political actors as proof that our legal system, as currently configured, is able to deliver justice (DOJ, Citation2023) this narrative actively conceals the truly exceptional, and chronically un(der)funded, advocacy that was required to bring about this long overdue result.
Tracy Chapman, and others have spoken powerfully about the individual and collective cost(s) of advocacy, and in particular the challenges faced by advocates working in the liminal spaces located in the shadow of the formal legal system (Chapman, Citation2023; Rego, Citation2025). All the papers in this special issue point to the need for a reconsideration of the performance of our current processes and our criminal legal system more broadly. An independent, national CCRC will not be able to address all the wider implications and problems raised by the Folbigg case, but establishing such a review body would offer a more principled institutional response than the complacency that persisted for so long about Folbigg’s convictions and continues to deflect deeper systemic consideration of the lessons that can be learned from this case.
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A large number of medical experts gave evidence at trial, but none were able to point to any positive evidence that Ms Folbigg had smothered or otherwise inflicted physical harm to any child.
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Ultimately, Kathleen Folbigg’s conviction relied on a combination of medical conjecture, circumstantial evidence, and what was characterised as confessional evidence.
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The inculpatory interpretations of specific passages, and omissions, in the diaries were contextualised within a broader prosecution narrative, led by Crown Prosecutor Mark Tedeschi, that characterised Folbigg as a volatile, self-centred and reluctant mother, refusing to uphold her side of the parenting bargain she had struck with her husband, resentful of the intrusions and the demands of her children on her social life, failing to appropriately subordinate her desires to the needs of her children and the family; she did not act in way(s) that we would expect either a truly loving, or a grieving mother to behave.
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When framing the improbability of four unexplained infant deaths happening by ‘chance’, the prosecution narrative operated in the shadow of the inappropriately labelled ‘Meadows Law’—an unsubstantiated medical dogma that held that one infant death in a family is a tragedy, two suspicious and three is murder unless proven otherwise—and of the unfounded statistics associated with Sir Roy Meadow and the prosecution of Sally Clark (Clark, Citation2003; McDermott, Citation2025). While the prosecution at trial was not permitted to rely explicitly on statistical formulations, during the committal hearings at least one of the potential expert witnesses proffered opinion evidence that explicitly relied on both ‘Meadows Law’ and expressed her evidence in the form of the statistical improbability of four deaths from natural causes as high as one in a trillion (Cunliffe, Citation2011, p. 172). Significantly, this evidence was reported in local media at the time of the committal and remained available online during the trial. The availability of this reporting, as well as other background information about Ms Folbigg online, becomes salient when we know that at least one member of the jury was conducting their own internet research during the trial, and that inadmissible evidence was discussed among the jurors during their deliberations.
But prosecutor Tedeschi, who skirted around the prohibition of Meadows Law, was not asked to provide evidence that four child murders in one family were any more likely.
FOOTNOTE:
Andrew L. Urban
NSW Attorney General Michael Daley goes so far as to claim (should that be shamefacedly?) that the re-evaluation of the evidence and the eventual vindication of Kathleen Folbigg is evidence of the system’s ability to provide justice. Hey, it only took 20 years and extensive, unrelenting efforts, with little enthusiasm from the legal system. As several of the articles in this collection point to the missed opportunities to intervene and correct the errors attendant on the wrongful conviction.
*A national, not to be confused with Federal, CCRC is the model wrongful convictions report has championed for years See articles in the CCRC section, found in the menu at right of this page.
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We dug around this very same topic in December 2023 – the answer in our headline remains NO.
Will the legal system learn from Folbigg, have the guts for reform?