Any move for compensation for newly-released Kathleen Folbigg after 20 years in jail could hit a roadblock due to one legal issue, experts say.
Kathleen Folbigg releases statement video after prison release
Justin Quill, partner at major law firm Thomson Geer, said “you can’t apply 2023 knowledge to 2003 decisions”, with the scientific breakthroughs which led to reasonable doubt over whether she had been responsible for the death of her four children not a factor two decades ago.
“If Folbigg is required to sue, one of her biggest problems is that while she has been in jail, science has developed and the DNA evidence that ultimately led to a finding of reasonable doubt, simply wasn’t available when the deaths occurred and she was convicted,” he said.
“Therefore, it’s going to be harder for her to prove there was some sort of malfeasance, negligence, or inappropriate process which saw her locked up. You can only judge the process and the behaviours of those people in the process on the state of knowledge at the time.”
Kathleen Folbigg was pardoned and released from prison after 20 years on Monday.
Sam Macedone, senior partner at Macedone Legal, said even if the convictions were quashed, getting compensation would be difficult, saying “there was no such evidence in 2003 that led to her being pardoned in 2023”.
“You can’t blame the system (for not applying) the law as it was back then, unless you can show she was wrongly convicted without the evidence,” he said.
Kathleen Folbigg outside court in 2001.
Kathleen Folbigg (right) hugs her longtime friend Tracy Chapman at a Glenreagh property on Monday. Picture: 7 News
Attorney-General Michael Daley, when he announced Ms Folbigg’s pardoning on Monday, highlighted the move didn’t mean she had been acquitted or her convictions had been quashed.
Mr Daley said she could only have a case for compensation if Tom Bathurst KC, who has headed the latest inquiry into Ms Folbigg’s convictions, recommended in his final report the matter be referred to the Court of Criminal Appeal.
If the convictions were quashed there, Ms Folbigg would have an avenue to start proceedings against the state of NSW for compensation.
Ms Folbigg’s lawyer Rhanee Rego on Tuesday said “it‘s too early right now” to speak of compensation, saying “Kathleen is still having a cup of tea acquainting herself to normal life”.
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Even if the convictions were overturned, Ms Folbigg still had to navigate a legal system with no compensation system in place for people who have been wrongly incarcerated.
Greg Barns SC, the national criminal justice spokesman for the Australian Lawyers Alliance, said there was “little guidance” on compensation in cases like Folbigg’s.
“There is no entitlement to compensation for wrongful conviction and the Australian Lawyers Alliance thinks this should be rectified,” he said.
“(She) has lost 20 years of her life, including employment opportunities. She has been jailed and consequently her mental and physical health have suffered. She should be provided with compensation from the NSW government that takes all that into account.”
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It comes as details of how Ms Folbigg spent her first night and full day free were revealed by her longtime friend and supporter, Tracy Chapman.
Ms Folbigg is staying at Ms Chapman’s farm, near Coffs Harbour, following her release, with Ms Chapman saying her friend enjoyed pizza, garlic bread and a Kahlua and Coke on her first night on the outside.
In the morning, she went out and saw Ms Chapman’s horses on the 50 acre property, ate breakfast using “real crockery”, while video released of Ms Folbigg also showed her playing with a dog, lounging by a pool and placing a bouquet of flowers into a vase.
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