Australia needs bodies to investigate alleged miscarriages of justice
“I don’t think Folbigg has captured the public imagination in the same way before, but if it’s released this year it will be 20 years [since her conviction]’ said Arabia.
Folbigg, 55, is serving a minimum 25-year sentence after being convicted of murdering three of her children, Patrick, Sarah and Laura, and manslaughtering her first child, Caleb, in 2003. Each died suddenly between 1989 and 1999 between the ages of 19 days and 19 months.
No expert prior to the investigation ruled out the possibility that the genetic variant caused Sarah or Laura Folbigg’s deaths, but they were divided on whether it was likely.
Some expert evidence was heard about possible natural causes for Caleb and Patrick.
The inquest also heard for the first time psychological and psychiatric evidence about the interpretation of Folbigg’s diaries — a key element of the prosecution’s circumstantial case. No expert concluded that the diaries contained clear admissions of criminal guilt.
Possible recommendations
If Bathurst has reasonable doubts, he can refer the case to the Criminal Court of Appeal to consider overturning Folbigg’s convictions. Previous cases suggest he also has the power to recommend a pardon, which could hasten her release from prison.
A new review board
Arabia said the case provides a compelling argument for NSW and other jurisdictions to set up independent post-conviction review bodies to investigate possible miscarriages of justice along the lines of the UK’s Criminal Cases Review Commission.
The CCRC investigates criminal cases following appeals. It can refer a case for a new appeal when new evidence has emerged. New Zealand established a CCRC in 2020 and Canada will follow suit.
“This is exactly what happened in the Folbigg case, where … there is new genetic evidence and information that needs to be brought to court,” Arabia said.
Folbigg’s childhood friend Tracy Chapman said that “sometimes the system doesn’t work and we need mechanisms like the Criminal Cases Review Commission” to review cases remotely.
Kathleen Folbigg’s childhood friend Tracy Chapman outside the February inquest.Credit:Louise Kennerley
Chapman believed the establishment of such a panel would be the legacy of the Folbigg case.
“We don’t want this fight for nothing. It’s not an overthrow [of the system]; it’s an improvement. We’re both very passionate about it,” Chapman said.
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Under the NSW system, people who believe they have been wrongly convicted but have lost appeals can apply to the governor for a review or pardon, or apply to the Supreme Court for an inquiry.
The governor is acting on the advice of the attorney general and can order an investigation, as was the case in the Folbigg case after a May 2021 pardon request. The then-President of the Academy of Sciences, Professor John Shine, was one of the signatories to the petition.
Scientific evidence has played a key role in high-profile investigations into convictions in Australia.
The Chamberlain case
The jury in Lindy Chamberlain’s trial over the 1980 death of her nine-week-old daughter Azaria, who disappeared while on a camping trip at Uluru, heard evidence that arterial blood was found in the Chamberlains’ car. A royal commission in 1987 concluded that the substance was “soundproofing material” commonly found in cars.
Chamberlain, who was jailed for murder in 1982, was released in 1986 after Azaria’s jacket – a key piece of evidence – was found at Uluru.
Lindy and Michael Chamberlain in February 1981 with a photo of their daughter Azaria after the initial inquest into her death, which found she was abducted by a dingo.Credit:Russell McPhedran
The Royal Commission subsequently concluded that a trial judge, hearing the same evidence as before the Royal Commission, “would have been bound to order the jury to acquit Lindy and her then-husband Michael” who had been convicted of aiding and abetting.
The Chamberlains were pardoned in 1987 and had their convictions overturned in 1988. They received $1.3 million in compensation in 1992. A fourth investigation in 2012 came to the same conclusion as the first: Azaria had died “as a result of an attack and kidnapping by a dingo”.
Douglas Rendell
Douglas Harry Rendell, convicted of the 1980 murder of his partner Yvonne Kendall, was pardoned in July 1989 after an inquest found his conviction uncertain.
The investigation found that Rendell’s trial had heard no conclusive ballistics evidence available at the time that a rifle manufactured by Rendell’s partner could be accidentally discharged as he claimed. “The withholding of this information may have affected the outcome of the trial,” the investigation said. He received a voluntary payment of $100,000 from the NSW Government.
An inquest found Douglas was uncertain about Harry Rendell’s conviction over his partner’s death.Credit:Fairfax Media
Alexander McLeod-Lindsay
Alexander McLeod-Lindsay spent nine years in prison after being convicted in 1965 of the attempted murder of his then-wife Pamela, who was found beaten up in her home. She did not accuse him of assault.
Expert testimony on bloodstains on McLeod-Lindsay’s jacket, which allegedly showed “impact spatter,” was the focus of the indictment. A second examination in 1991 found evidence the blood had coagulated and possibly transferred to his jacket when he tried to help his wife.
Alexander McLeod-Lindsay’s 1965 conviction for the attempted murder of his then-wife was overturned in 1994.Credit:John Nobel
He was pardoned in 1992 and his conviction officially overturned in 1994. He received $700,000 in compensation.
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