Legal centre in push for judicial inquiry

CONVICTED child killer Kathleen Folbigg will seek a judicial inquiry into her case by late this year or early 2014 with the support of the University of Newcastle Legal Centre.

An extensive submission will argue there is ‘‘serious disquiet’’ about her 2003 convictions for the manslaughter of one of her  children, and the murder of another three babies at Singleton between 1989 and 1999.

Legal Centre director Shaun McCarthy, who has met with Folbigg in jail, said it was ‘‘an appropriate case for the Legal Centre to be working on’’.

‘‘It’s restating our commitment to public interest advocacy,’’ explained Mr McCarthy.

The Legal Centre became involved after academic lawyer Emma Cunliffe concluded Folbigg had been wrongly convicted of killing her children in a thesis that became the 2011 book, Murder, Medicine and Motherhood.

It also followed Newcastle Herald articles in which Helen Cummings, the daughter of former Newcastle lord mayor Joy Cummings, confirmed that she had written to NSW Attorney-General Greg Smith seeking a judicial inquiry after regularly visiting with Folbigg, pictured, in Silverwater prison.

Legal centre stages fight for Folbigg

THE University of Newcastle Legal Centre will seek a judicial inquiry into Kathleen Folbigg’s convictions for killing her four children in a case that ‘‘may well have parallels with the Lindy Chamberlain case’’.

The centre will lodge a submission with NSW Governor Marie Bashir and Attorney-General Greg Smith either late this year or early in 2014 seeking a judicial inquiry after ‘‘serious disquiet’’ over the 2003 convictions.

The centre has acted for Folbigg since July.

Director Shaun McCarthy, who has met with Folbigg in jail and communicated with her by letter, said it was ‘‘an appropriate case for the Legal Centre to be working on’’.

‘‘It’s restating our commitment to public interest advocacy,’’ he said.

Folbigg was sentenced to 30 years’ jail for the manslaughter of her first child Caleb, 19 days, and the murder of Patrick, eight months, Sarah, 10 months, and Laura, 19 months, at Singleton between 1989 and 1999, but has always maintained her innocence.

‘‘I have been misquoted, my diaries misunderstood and inferred incorrectly, my personality and demeanour savagely attacked, thus my character assumed to be anything other than what I really am,’’ she wrote in a letter to a newspaper immediately after her sentence in 2003.

Despite losing appeals including leave to appeal to the High Court, Folbigg’s questioning of her convictions gained support after a 2011 thesis by Australian academic lawyer Emma Cunliffe.

She concluded Folbigg had been wrongly convicted of killing her children because of the lack of proof beyond reasonable doubt, and despite real expert disagreement at trial about the cause of death in each of the Folbigg children.

One of Australia’s leading forensic science legal experts, Gary Edmond, supported a  review, saying Folbigg’s case was tainted by unreliable, misleading and outdated medical evidence.

Early this year Newcastle woman Helen Cummings confirmed she had appealed to Attorney-General Greg Smith about Folbigg’s case after visiting her in jail over a lengthy period.

The daughter of former Newcastle lord mayor Joy Cummings, and the first wife of a man who went on to kill his second wife, child and himself, compared Folbigg’s case with the wrongful jailing of Lindy Chamberlain over her daughter Azaria’s death in 1980.

‘‘I always had an uncomfortable feeling during Kathleen’s trial that it was actually her mothering that was on trial,’’ Ms Cummings said.

On Thursday Mr McCarthy, who is acting as Folbigg’s instructing solicitor, said the Legal Centre was ‘‘a fair way advanced’’ on the submission seeking a judicial review.

‘‘I’ve met with her in jail and I spoke to her at length, and we’ve communicated by letter,’’ Mr McCarthy said.

‘‘She’s thankful the Legal Centre is assisting her in the case and we’re pursuing a judicial inquiry.’’

The centre is supported by three Newcastle barristers providing unpaid assistance to compile the submission.

Fourth year Newcastle University law students have undertaken detailed research on scientific and medical advances since the 2003 trial, supporting concerns raised about the reliability of the original evidence.

‘‘The students are in their fourth year of a five-year combined degree and are heavily involved,’’ Mr McCarthy said.

‘‘This is a public interest case they’re working on, a miscarriage of justice case, and an opportunity for students to work on a very high profile case while completing their studies.’’

Public interest advocacy cases are taken on by law clinics at major universities around the world such as Harvard.

The final submission will include extensive reports from both Australian and international experts. If the case for a judicial review is accepted by the NSW Governor a NSW Supreme Court judge will be appointed to undertake the review.

Mr McCarthy said judicial reviews were rare and took time, but he believed the Folbigg case had ‘‘reasonable prospects’’ of success.

‘‘This case may well have parallels with the Lindy Chamberlain case,’’ he said.

‘‘It really goes to the heart of the rule of law.

‘‘The Legal Centre takes the view it’s the human right of every person to have their day in court if there is fresh evidence which casts doubt over the original convictions.

‘‘The Legal Centre believes this case has reasonable prospects of gaining a judicial review.’’

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