A group of senior legal academics from New South Wales and Victoria have written to the NSW attorney-general, urging him to immediately release Kathleen Folbigg from prison.
Key points:
- Last month, new scientific evidence was accepted at a judicial inquiry as grounds for reasonable doubt over Kathleen Folbigg’s convictions
- Folbigg remains in prison pending a final report from Commissioner Tom Bathurst
- Folbigg has served 20 years of her 25-year sentence
The letter comes just weeks after an inquiry into the case found there is now reasonable doubt in relation to each of Folbigg’s convictions.
The NSW woman has spent 20 years in jail after being found guilty of murdering her four children, Caleb, Patrick, Sarah, and Laura, who died separately between 1989 and 1999. They were all under the age of two.
In their letter to Attorney-General Michael Daley, the signatories say “there is substantial agreement … that the expert evidence supports a finding of natural causes for the children’s death.”
Associate professor in the faculty of law and justice at UNSW, Mehera San Roque, is one of the co-authors of the letter to Mr Daley.
“It was very clear from the closing submissions from the counsel assisting and, in particular, from the director of public prosecutions that it was now very much open to the inquirer, Commissioner [Tom] Bathurst, to make a finding that there was reasonable doubt in relation to the convictions,” she told 7.30.
Retired chief justice Tom Bathurst KC is preparing a final report but the academics say there is precedent in Australia for releasing a prisoner once significant evidence of an unsound conviction has emerged.
During the inquiry, scientific evidence of a rare genetic condition affecting two of the children was accepted by the director of public prosecutions as grounds for reasonable doubt over Folbigg’s convictions.
In addition, new psychiatric evidence found that diary entries made by Folbigg about her children, originally used to secure the prosecution against her, had been misinterpreted.
“The inquiry heard from a range of experts who were able to contextualise those diaries, contextualise the way that she was speaking to make it clear that these were within the range of … what one might call ordinary or normal reactions, given her circumstances, which were obviously extraordinary,” Dr San Roque told 7.30.
Legal precedent
“Obviously, the most probably prominent example or precedent for that would be Lindy Chamberlain,” Dr San Roque said.
In 1986, Lindy Chamberlain was immediately released after a matinee jacket belonging to her child Azaria was found at Uluru, undermining the basis of her conviction.
Dr San Roque said the inquiry into Ms Chamberlain’s full exoneration only occurred in 1988.
“She was released immediately upon the discovery of that evidence, but her actual proceedings, the final quashing of her convictions didn’t really occur until several years later.”
Now 55, Folbigg has been serving a 25-year sentence on three counts of murder and one of manslaughter. She has always maintained her innocence.
In their letter to the NSW attorney-general, the academics cite concerns over her safety in jail.
Dr San Roque says Folbigg has been held in protective custody.
“Our understanding is that she’s being held in sort of quite restrictive conditions, protective custody. And essentially there has (sic) been incidents where she’s been assaulted in prison. And so to that extent … her personal safety continues to be at risk.”
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