Law professor speaks out on eve of Folbigg court date

A former law professor at University of Newcastle, Ray Waterson, has described Kathleen Folbigg’s convictions as standing among the “most contentious and troublesome in Australian history, alongside those of Lindy and Michael Chamberlain”.

In an article he has written for The Newcastle Herald, Waterson notes that on April Fool’s Day 2003, Mark Tedeschi QC, the state’s most senior public prosecutor, “representing the community of NSW”, opened the trial against Kathleen, alleging she had deliberately killed all four of her infant children.

“By the end of the trial, 29 days later, Tedeschi had convinced the jury of her guilt,” he adds. “The Upper Hunter’s Kathleen Folbigg was convicted and sentenced to 40 years jail over the deaths of her four infant children in the decade from 1989. Caleb at 19 days, Patrick at 8 months, Sarah at 10-and-a-half months and Laura at 19 months.”

Next week, the NSW Court of Appeal will begin hearing an application by lawyers on Kathleen’s behalf, 32 years after the death of her first born child.

In October 2020, Kathleen was been granted the right to continue her fight for justice in the NSW Court of Criminal Appeal. On February 15, her lawyers will attend a four-day hearing with three judges presiding.

The decision followed former NSW District Court chief judge Reginald Blanch QC finding in 2019 that evidence presented to a judicial inquiry reinforced that she was responsible for the deaths of her four children. However, her lawyers will argue that Blanch did not ‘come to grips’ with evidence that proves her innocence and showed apprehended bias against her.

The lawyers have also complained about the way Blanch conducted the inquiry, including that he allowed her to be questioned by her former husband’s barrister, and that he failed to give adequate reasons for his findings. 

“In the absence of clear-cut medical evidence about the causes of the children’s deaths, the prosecution relied heavily on selected extracts from diaries kept by Kathleen Folbigg to make out its case that she had smothered them all,” Waterson writes.

“None of the diary extracts relied on by the prosecution were actual admissions of guilt by Kathleen Folbigg for the smothering deaths of any of her children. The prosecution claimed, however, that the extracts contained ‘virtual’ admissions of her smothering guilt.

“At the inquiry Kathleen Folbigg was pressed to give explanations for the meaning of diary entries that were shown to her. Blanch dismissed her explanations as ‘simply unbelievable’ and unreservedly supported the trial’s guilty verdicts.”

He also says that if the Court of Appeal finds against the inquiry, consequential proceedings “will likely see Kathleen Folbigg walk free from jail”.

“The Folbigg case would then be added to Australia’s record of infamous convictions, alongside the Chamberlain case,” he writes. “Deeper questions might then be raised, about the competence and integrity of our criminal justice system. A more searching spotlight might be turned on key players in the justice game, including the police, prosecutors, lawyers and judges.”

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