Daley has the power, independent of the inquiry, to recommend that the governor grant Folbigg either a pardon, paving the way for her unconditional release from prison, or conditional release on parole pending the inquiry’s final report.
Lindy Chamberlain, who had been jailed for the murder of her daughter Azaria in 1982, was released in 1986 after Azaria’s matinee jacket – a key piece of evidence – was found at Uluru.
This was before a royal commission into her conviction concluded that a judge hearing the same evidence as was before the royal commission “would have been obliged to direct the jury to acquit” Lindy and her then-husband Michael, who had been convicted as an accessory.
The Chamberlains were pardoned in 1987 and their convictions quashed in 1988. They received $1.3 million in compensation in 1992. A fourth inquest in 2012 reached the same finding as the first: Azaria had died “as the result of being attacked and taken by a dingo”.
Higginson moved to debate a notice of motion in the upper house on Wednesday calling on Daley to act immediately to free Folbigg from prison, which was watered down by the Minns government with the support of the opposition and One Nation.
The motion passed in its amended form and called on the government to act appropriately “as soon as practicable”.
Shooters, Fishers and Farmers Party leader Robert Borsak supported Higginson’s motion as originally drafted.
“I urge all of those in this place to consider the growing scientific evidence and the bleeding obvious: that Kathleen Folbigg may have been wrongly convicted,” Borsak said.
“The director of public prosecutions has said it is open for Mr Bathurst to find reasonable doubt. This is a huge moment. No longer does this state’s top prosecutor maintain that Kathleen Folbigg is guilty.
“It’s time for the attorney-general to act. I think it’s also appropriate to draw a comparison here to the Lindy Chamberlain case.”
Counsel assisting and the DPP accepting there was reasonable doubt was “Kathleen Folbigg’s matinee jacket moment”, Borsak said and, while Chamberlain was released “within a week” of that evidence being found, “Folbigg remains in jail”.
Animal Justice Party MP Emma Hurst spoke in support of Folbigg’s immediate release from prison, while deputy NSW Nationals leader Bronnie Taylor spoke in support of Folbigg while stopping short of calling for Daley to act immediately.
Labor MP Stephen Lawrence, an experienced criminal law barrister, supported the government’s amendments but said he could “hardly underestimate the significance of this issue”.
“In my opinion, it is the most significant development in the criminal justice system in NSW living memory,” Lawrence said.
He noted that Chamberlain was released from prison before the royal commission had started and before her ultimate pardoning and the quashing of her conviction.
Folbigg, 55, was convicted in 2003 of the murder of three of her children, Patrick, Sarah, and Laura, and the manslaughter of her first child, Caleb. She was also found guilty of intentionally inflicting grievous bodily harm upon Patrick. Each child died suddenly between 1989 and 1999, aged between 19 days and 19 months.
Counsel assisting said expert evidence about potential natural causes of death for Patrick, Sarah and Laura undermined tendency and coincidence reasoning that formed part of the case against Folbigg over the death of Caleb.
The inquiry also heard for the first time psychological and psychiatric evidence about the interpretation of Folbigg’s diaries, which concluded they did not contain clear admissions of criminal guilt.
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