Kathleen Folbigg pardoned by the governor and released from prison

The investigation paved the way for Folbigg’s release from prison and potentially millions of dollars in compensation, either after a civil lawsuit or through a voluntary payment from the government.

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But Daley said on Monday any potential compensation was “clearly ahead of today’s story”.

Bathurst could ultimately refer the case to the Criminal Court of Appeal to consider formally overturning the convictions, but the pardon hastened Folbigg’s unconditional release from prison without further trial.

Daley informed Folbigg’s ex-husband Craig, who testified against her at the 2003 trial, of the pardon and said he “is thinking of him today; it was going to be a rough day for him.” When contacted last month about his ex-wife’s pending release, Craig Folbigg declined to comment. He didn’t answer calls Monday.

In March, Chapman said she wants to push for an independent commission to review criminal convictions after appeals if Folbigg is released. New Zealand introduced such a system in 2020 and Canada will follow suit. “[It] Depends on an attorney general,” Chapman said. “It’s political.”

Her call was backed Monday by Emma Cunliffe, an Australian law professor currently in Canada. She was the first to publicly argue in her 2011 book that Folbigg was wrongly convicted. Murder, Medicine and Motherhood.

Cunliffe said NSW urgently needs to comply with international jurisdictions and reform its post-conviction processes to make them accessible and to override any perceptions of political interference. Currently, she said, “the minister calls the inquiry, the minister chooses who will chair and has a strong voice in deciding who will be the counsel.”

Jackie Schmidt, Wood’s sister, who was convicted by a jury of the murder of his model girlfriend Caroline Byrne but acquitted by the NSW Criminal Court of Appeals, which found the evidence was insufficient beyond a reasonable doubt, also backed the claim.

“Almost without exception, the justice system must be dragged by an army of volunteers and determined legal visionaries to a point where it is impossible to continue to deny the fact that a miscarriage of justice has occurred,” she said.

Human rights and criminal justice lawyer Felicity Graham, who wrote to Daley last month calling for Folbigg’s release, said Australia needs to reform its laws to deal with possible miscarriages of justice.

The current system has good points, including the ability for any convicted person to request an investigation after their legal avenues have been exhausted, Graham said, but a key problem is the lack of a clear mechanism to identify miscarriages of justice and respond with urgency and resources.

“A well-resourced, independent criminal case review commission can identify systemic problems, conduct investigations, and refer cases back to the courts for retrial,” she said. “Ms Folbigg’s lawyers and supporters have done a great job but it should have been easier to achieve this outcome and it should have been possible for her to be released much sooner.”

Arlie Loughman, a law professor at the University of Sydney, also said that review commissions in England and Wales “have matters like this dealt with by a permanent body, thereby avoiding the need for an ad hoc inquiry”.

Daley said he’s open to the idea. “I think we need to look at this case and all the material that has been presented to Mr Bathurst, everything that’s ahead of us now, to work on it or possibly change the law,” he said.

Opposition leader Mark Speakman, who ordered two inquests into Folbigg’s conviction — one in 2018 by former district judge Reginald Blanch, who admitted Folbigg was guilty, and the Bathurst inquest that resulted in the pardon — when he was attorney general, he said didn’t think a review board would have made a difference.

“[Blanch is] a respected jurist who heard all the evidence and came to that conclusion,” he said. “The same thing happened here. So I don’t know if the outcome would have been different or if the outcome would have been earlier if there had been an independent permanent review board.”

He said it was a day “when there are no winners.” There are no winners in this story. It’s a horrific tale of the whole lost life of a grieving father and a woman who was imprisoned for 20 years when she shouldn’t have been.”

The NSW Bar Association welcomed the decision. A statement said the NSW Appeal and Review Rules ensured Folbigg would still have legal avenues to challenge as science advanced and new evidence became available.

Folbigg’s existing non-parole period was scheduled to expire on April 21, 2028.

Lindy Chamberlain, who was convicted of murdering her baby daughter Azaria in October 1982 and spent three years in prison before being released before a royal commission, declined to comment.

Her then-husband, Michael, was convicted of aiding and abetting but did not serve a sentence.

The Chamberlains were pardoned in 1987 after the Royal Commission considered new evidence, and their convictions were officially overturned in 1988. In 1992, they received $1.3 million in compensation.

Investigating Folbigg’s convictions has gathered expert evidence that a genetic variant shared by Kathleen, Sarah and Laura Folbigg could cause cardiac arrhythmias – irregular heart rhythms – and sudden unexpected death.

The investigation also revealed that Patrick may have died as a result of an underlying neurogenetic disorder such as epilepsy.

Bathurst said in his memorandum to Daley that “there is a reasonable possibility that three of the children died of natural causes,” meaning that bias and incidental evidence related to the death of Folbigg’s first child “is eliminated.”

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