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Key points
- Upper house MPs will debate a motion on Wednesday calling on Attorney-General Michael Daley to act swiftly to release Kathleen Folbigg from prison.
- A series of Coalition and crossbench MPs have spoken in support of Folbigg, who was convicted in 2003 over the deaths of her four young children.
- The Director of Public Prosecutions and counsel assisting a landmark inquiry into Folbigg’s convictions have already accepted it is open to the inquiry to find reasonable doubt about her guilt.
Attorney-General Michael Daley is under mounting political pressure to free Kathleen Folbigg from prison after the state’s top prosecutor accepted there is reasonable doubt about her convictions over the deaths of her four children.
Folbigg, 55, remains behind bars despite a landmark inquiry hearing credible evidence her children may have died of natural causes. She has served 20 years of a minimum 25-year prison sentence.
Upper house Greens MP Sue Higginson is urging the attorney-general to release Kathleen Folbigg from prison.Credit: Dion Georgopoulos
Coalition and crossbench MPs have voiced their support for Folbigg, while Greens MP Sue Higginson, a trained public interest lawyer and experienced litigator, will move to debate a notice of motion in the upper house on Wednesday calling on Daley to act.
“There’s a woman who is literally in prison wrongly right now,” Higginson said.
“I don’t believe I have the luxury to just stop, put this to the back of my mind and wait. Wrongful imprisonment is an offence to all notions of justice, and it concerns every one of us.”
Daley has the power independent of the inquiry to recommend the governor grant Folbigg either a pardon, paving the way for her unconditional release from prison, or grant her conditional release on parole pending the inquiry’s final report.
Attorney-General Michael Daley, right, with Governor Margaret Beazley.Credit: Dion Georgopoulos
Deputy NSW Nationals leader Bronnie Taylor, the former minister for mental health and women, said the fact that both counsel assisting the inquiry and the Director of Public Prosecutions, Sally Dowling, SC, had agreed there was reasonable doubt about Folbigg’s convictions was “profound”.
Taylor, also an upper house MP, stopped short of calling for Daley to take steps to free Folbigg now, but said she hoped Daley was “getting advice so he can act swiftly” once the inquiry report was released.
Upper house MP Jeremy Buckingham, of the Legalise Cannabis Party, said he was concerned about the “open-ended nature of the inquiry”.
“There’s a woman who is literally in prison wrongly right now.”
“Before we vote on a motion, I think it’s incumbent on the attorney-general to draw a line under when this inquiry will report,” Buckingham said.
He said he would support the motion and Folbigg’s release on parole if the inquiry’s report was not imminent.
“A day in jail for someone who is wrongly convicted is a day too long,” Buckingham said. “I don’t think there’s enormous risk to the community having her on parole.”
Animal Justice Party MP Emma Hurst said she would support the motion.
“A criminal case has to be proved beyond reasonable doubt. In light of new evidence, that simply hasn’t been met,” Hurst said.
A younger Kathleen Folbigg and her children (clockwise): Patrick, Sarah, Caleb and Laura.Credit: AAP, Supplied
“It is devastating to think that someone could lose four children and be sent to jail for murder while innocent. Any further delay in action is unjustified.”
The head of the Folbigg inquiry, former NSW chief justice Tom Bathurst, KC, said at the final hearing a month ago that “there is a significant body of evidence now to suggest reasonable possibilities of identifiable natural causes of death”. Bathurst is working on his final report for the governor.
Higginson said it was a “politically and legally untenable position for [Daley] … not to take action right now” to free Folbigg from prison.
“We have received advice from Kathleen’s lawyer that Kathleen is really, really not doing well at all,” Higginson said.
Former NSW chief justice Tom Bathurst, KC, headed an inquiry into Kathleen Folbigg’s convictions.Credit: James Alcock
“It’s hard to imagine she would be feeling anything other than the deepest and gravest injustice.”
Higginson said Daley was “the only person in the country right now that stands between justice and the gravest of injustice”.
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 the inquiry, led by Sophie Callan, SC, and the DPP submitted last month that it was open to Bathurst to find reasonable doubt about Folbigg’s convictions in light of new evidence.
Counsel assisting said in written submissions that “the weight of the evidence tends to suggest that Ms Folbigg was in general, a loving and caring mother towards her children”.
Expert evidence before the inquiry suggested a novel genetic variant shared by Folbigg and her daughters, discovered after her trial, might cause cardiac arrhythmias and sudden unexpected death.
The inquiry also heard evidence Patrick might have died as a result of an underlying neurogenetic disorder such as epilepsy.
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.
Higginson said the submissions of counsel assisting, who work closely with the head of an inquiry, are “not merely the submissions of an advocate” and “furthermore, the DPP has agreed with the submissions”.
“It is highly, highly unlikely that Tom Bathurst would find inconsistently to counsel assisting,” she said.
Taylor said that “as former minister for mental health and women, I find it interesting that reading Kathleen’s diaries in 2023 is taken in a very different lens to when they were first read at trial in 2003”.
“Now, 20 years on as a society, we are much more open to maternal grief, post-traumatic stress disorder and depression. I know there is still a stigma about these issues and they certainly weren’t talked about in great detail 20 years ago,” Taylor said.
“We also now know [that just] because a mother doesn’t cry openly, doesn’t mean she isn’t grieving.
“It was very telling in the submission made by counsel assisting, Sophie Callan, SC, when she said the weight of the evidence shows Kathleen Folbigg was a loving and caring mother.”
Deputy NSW Nationals leader Bronnie Taylor said the fact counsel assisting the Folbigg inquiry and the DPP agreed there was reasonable doubt about her convictions was “profound”.Credit: Steven Siewert
Sydney barrister Felicity Graham, an experienced human rights and criminal law advocate and member of The Wigs legal podcasting team, wrote to Daley this month and urged him to act now, saying “the release of Kathleen Folbigg is now inevitable”.
“I write to call upon you to immediately exercise the important powers you have and to act to ensure her speedy release,” Graham wrote.
“Your tenure as Attorney General will be marred if you fail to do so, but more importantly a person will remain incarcerated whose guilt cannot be proved to the criminal standard.”
Daley’s office reiterated that he was awaiting Bathurst’s final report.
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