My heart clenched yesterday when the NSW Attorney General Mark Speakman said he would be making an announcement about Kathleen Folbigg at 1.45pm.
There were so many ways the announcement could have gone. Earlier this month, journalist Quentin McDermott noted in The Daily Telegraph that Kathleen could possibly face five potential outcomes arising from the petition, although her legal team considered there was only one outcome supported by the evidence: a pardon.
However, Speakman has announced another inquiry into her case.
It follows a petition to the Governor of NSW that called for Kathleen Folbigg’s immediate pardon and release.
The petition was endorsed by the Australian Academy of Science and supported by more than 150 scientists, including Nobel laureates professors Elizabeth Blackburn and Peter Doherty. It argued that fresh genetic evidence showed that ‘has been wrongfully incarcerated because the justice system has failed her’.
In his statement yesterday Speakman apologized for the grief he was causing Kathy’s ex husband.
He noted: “I have also again spoken with their father Craig Folbigg to inform him about today’s decision; I am deeply sorry that yet again he and his family will have to re-visit their nightmare.”
(I have added the full statement at the end of this blog post.)
I heard from school friend Tracy late last night. She spoke to Kathy yesterday and told me: “Kath lives with the grief of loosing her four children every day – just as her ex husband does.
“She thinks about her children constantly and the loss is further compounded daily by the reality that she’s a maximum security prisoner because in the eyes of the law she’s been convicted of the worst crimes imaginable.
“The fact there is another inquiry shows how compelling the new scientific and diary related evidence is.”
Here is Speakman’s full statement:
On my recommendation, Her Excellency, the Hon Margaret Beazley AC QC, Governor of NSW, has directed a second inquiry into the convictions of Ms Kathleen Megan Folbigg.
The Governor has appointed recently retired Chief Justice, the Hon Thomas Bathurst AC QC, to conduct the inquiry.
In 2003, Ms Folbigg was convicted of the homicides of her children Caleb, Patrick, Sarah and Laura following a trial by jury. On appeal, the Court of Criminal Appeal imposed a total sentence of 30 years’ imprisonment with a non-parole period of 25 years.
In addition, this matter has seen several unsuccessful appeals to the Court of Criminal Appeal, a number of applications to the High Court, the 2018-2019 inquiry, and in relation to that inquiry’s findings, a discontinued application for special leave to the High Court following a judicial review by the Court of Appeal.
The deaths of Caleb, Patrick, Sarah and Laura have caused immeasurable and continuing grief to their family and the community. I have written to Ms Folbigg’s legal representatives to advise them of the decision. I have also again spoken with their father Craig Folbigg to inform him about today’s decision; I am deeply sorry that yet again he and his family will have to re-visit their nightmare.
Since the inquiry in 2018-2019 conducted by the Hon Reginald Blanch AM QC, a fresh petition has sought the exercise of the Royal prerogative of mercy to grant Ms Folbigg a pardon.
The petition refers to developments in genetic science in respect of the CALM2 genetic mutation found in Sarah and Laura Folbigg. Among other grounds, the petition argues this has provided an updated cause of death for both Sarah and Laura.
Although the original 2018-2019 inquiry was aware of the mutation, there was no completed study as to the functional effects of that mutation at that time. Such a study has now been completed. Notwithstanding that Ms Folbigg has already had numerous attempts to clear her name, this new evidence, and its widespread endorsement by scientists, cannot be ignored.
However, I declined to recommend to Her Excellency that she pardon Ms Folbigg. Ms Folbigg’s representatives contend that the new scientific evidence is compelling. However Ms Folbigg has been unsuccessful in numerous public proceedings to date and there is a need for fairness and transparency to all. Against that backdrop, it would not be appropriate for the Governor now simply to grant a pardon, or (for example) for the Governor or me to receive private briefings from experts with a view to considering granting a pardon, without that evidence being scrutinised independently in a public forum. Only a transparent, public and fair inquiry can provide a just resolution of the doubt or question raised by that new evidence.
I thank Mr Tim Game SC, Ms Joanna Davidson and Ms Kathleen Heath for their advice and assistance in this matter.
Ms Folbigg continues to serve her sentence of imprisonment. At the conclusion of the inquiry, Mr Bathurst will prepare a report. If he is of the opinion that there is a reasonable doubt as to Ms Folbigg’s guilt, Mr Bathurst may refer the matter to the Court of Criminal Appeal for further consideration.
Given this matter will now be the subject of an independent judicial inquiry, I do not propose to provide any further comment at this time.