After spending 20 years in prison, Kathleen Folbigg has been pardoned and released. However, the pardon falls short of a finding of innocence. Retired chief justice Tom Bathurst KC stated that he firmly believed there was reasonable doubt about her guilt. While this is a step in the right direction for Folbigg, her convictions have not been quashed yet. For that to happen, Bathurst needs to refer the case to the Court of Criminal Appeal. If this occurs, Folbigg could potentially sue the New South Wales government for millions of dollars in compensation or seek an ex-gratia payment.
Unfortunately, it is notoriously difficult in Australia to successfully sue the state for compensation over a wrongful conviction. Unlike other jurisdictions overseas, a person wrongly convicted does not have an automatic legal right to compensation. They do have the option of launching a civil action to sue the government or police for negligence, false imprisonment, or malicious prosecution. However, only a few have succeeded going down that avenue.
A more likely outcome may be an ex-gratia payment from the New South Wales government, which is a one-off payment applied for by someone affected by a wrongful conviction. In Australia, ex-gratia payments are made purely at the discretion of the state’s attorney-general. This option was famously used in 1992 when the Northern Territory government awarded Lindy and Michael Chamberlain an ex-gratia payment of $1.3 million for wrongful convictions over the death of their baby Azaria.
When asked about how much Folbigg could be compensated, Attorney-General Michael Daley said discussing the matter was “getting well in advance of today’s story.” For the time being, Folbigg is being cared for by her long-time supporters and friends. Greens MP and supporter Sue Higginson stated that Folbigg would first be enjoying her freedom. “She’s walking, she’s outside, she is in the sunshine,” Higginson said.
It is important to note that while Folbigg has been pardoned, she has not been found innocent. This means that there is still a possibility that she could be retried for the crimes she was convicted of. However, for now, Folbigg is free and able to start rebuilding her life.