Folbigg v Attorney General of New South Wales - [2021] NSWCA 44 - NSWCA 2021 case summary — Zoe

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Folbigg v Attorney General of New South Wales

[2021] NSWCA 44

Court of Appeal (NSW)|2021-02-16|Before: Basten JA, Leeming JA, Brereton JA, Dominick J, Eur Heart J

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At a glance

Source facts

Court

Court of Appeal (NSW)

Decision date

2021-02-16

Before

Basten JA, Leeming JA, Brereton JA, Dominick J, Eur Heart J

Catchwords

384 ALR 474 Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353
[1949] HCA 26 Buck v Bavone (1976) 135 CLR 110
[1976] HCA 24 Craig v State of South Australia (1995) 184 CLR 163
385 ALR 158 Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123

Source

Original judgment source is linked above.

Catchwords

384 ALR 474 Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353[1949] HCA 26 Buck v Bavone (1976) 135 CLR 110[1976] HCA 24 Craig v State of South Australia (1995) 184 CLR 163385 ALR 158 Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123[2018] HCA 34 Mallard v The Queen (2005) 224 CLR 125[2005] HCA 68 Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421[2019] HCA 3 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611152 A Crim R 35 Re Refugee Review TribunalEx parte Aala (2000) 204 CLR 82[2000] HCA 57 Shepherd v The Queen (1990) 170 CLR 573[1990] HCA 56 Solomons v District Court (NSW) (2002) 211 CLR 119[2002] HCA 47 The King v ConnellEx parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407

Judgment (21 paragraphs)

[1]

[2]

(a) first child - Caleb

Caleb was born on 1 February 1989. He died 19 days later on 20 February 1989. The cause of death was, in effect, identified as unknown by the entry on the death certificate "SIDS", namely sudden infant death syndrome. As explained by Duncan and Byard the term: "… refers to death in a seemingly healthy infant younger than 1 year of age whose death remains unexplained after a thorough case investigation including a complete autopsy, review of medical and clinical history, and death scene investigation. SIDS is typically associated with a sleep period with death presumed to have occurred during sleep itself or in the transition between sleep and waking. … Furthermore, while the definition is inclusive of infants up to 1 year of age, approximately 95% of SIDS deaths occur in the first 6 months of life with a peak incidence in infants aged between 2 to 4 months. While there are distinctive features associated with the syndrome there are no diagnostic features that can be attributed to a SIDS death. Indeed, application of the term relies on a process of elimination and when no known cause of death or contributing factors can be determined, the term SIDS is usually applied. Thus, while the debate continues regarding the definition and use of the term SIDS, and no one definition has been universally accepted, one certainty persists, and that is that SIDS still remains a diagnosis of exclusion." [53]
This terminology indicates that death was sudden in the sense that there were no known material pre-existing illnesses or natural events causally connected to the death, and that there was no evidence of unnatural events, such as smothering. Because it is "a diagnosis of exclusion", any medically accepted explanation takes the death out of the category. The incidence of such diagnoses reduced following a public "Back to Sleep" campaign, and should continue to reduce incrementally as the rate of affirmative diagnoses improves. [54]
The Report recorded the following medical history: [55] "7 Dr Barry Springthorpe, consultant paediatrician, saw Caleb twice, first on 2 February 1989 when Caleb was 14 hours old. He gave evidence at trial that when he first examined Caleb, he had developed respiratory distress which required some oxygen through the night. This 'stridor', or noisy breathing, was a common occurrence in newborn children. A chest x-ray was clear, and Caleb's condition improved over the next two days. 8 At the second examination on 17 February 1989, Caleb still had a 'mild inspiratory stridor with a little recession which was most marked when he was upset or lying flat on his back'. In his oral evidence at trial, Dr Springthorpe said that the stridor was 'very, very mild'. He diagnosed laryngomalacia, or a 'floppy larynx', meaning that the cartilage in the larynx was soft and could collapse on inspiration. It was not apparent when Caleb was at rest but would have been exacerbated when Caleb was unsettled. Dr Springthorpe was informed by Mr and Ms Folbigg that it did not interfere with Caleb's feeding or sleeping, although in a letter noted that it caused some feeding difficulties."
Two days later he was found dead in his cot by the applicant. She later told police that she had fed him at 1:00am and put him back in his cot. A diary entry at about 2:00am identified that he was "finally asleep!!". She checked him at about 2:50am and found him cold and lifeless. When the first ambulance officers arrived at 2:59am, he was unconscious, not breathing and pulseless. The officer noted that Caleb was warm to touch and pale around the mouth and lips.
A forensic pathologist examined Caleb within 12 hours of his death and found no external signs of injury and no evidence of abnormality. A toxicology report was negative. An examination of the lungs noted: "Lungs - are congested in places and show incomplete aeration. In other sections their alveoli contain extravasated red blood cells and a small amount of eosinophilic exudate." In summary, both lungs were described as "moderately moist" but no other unusual features were identified.
The evidence at trial was, in broad terms, that the condition of "floppy larynx" or laryngomalacia, was not a recognised cause of death, many of the medical experts not having heard of a child who had died from such a condition. The treating paediatrician, Dr Springthorpe, gave evidence that stridor, noisy breathing, had nothing to do with Caleb's death.
There was further consideration of the medical evidence at the inquiry, but without any definitive result. It appears to have been largely accepted that accidental asphyxiation was excluded but that deliberate asphyxiation was not. Whether any natural cause of death rose to the level of a reasonable possibility was a matter for evaluative judgment. A finding that there was no possible natural cause raised by the expert evidence was reasonably open.

[3]

(b) second child - Patrick

Patrick was born at full term with normal weight on 3 June 1990. Because of Caleb's death, a "sleep study" was conducted at one and half weeks: the results were normal. On 18 October 1990 (at age four months and 15 days) Patrick suffered an apparent life-threatening event. The applicant found Patrick in his cot at around 4:30am "because she heard Patrick gasping." She said he was blue around the lips, lifeless and floppy and making minimal respiratory effort. Soon after, Patrick gave "a high pitched cry."
The ambulance officers arrived at 4:41am. They described him as in "respiratory distress", with very laboured breathing. He was administered oxygen and taken to hospital. The applicant told the officers that "Patrick had had a cold for two days but was normally happy and dynamic." The report recorded Patrick's skin temperature as hot. The treating doctor at the hospital noted that he was lethargic, cyanosed and responsive only to painful stimuli on arrival, but after the administration of oxygen for 15 minutes he became more alert and remained pink. The doctor concluded that his condition "was not likely to be due to a respiratory problem." The Report further noted: [56] "124 There were no signs to suggest other serious illness, or of trauma or injuries. There were also no signs of upper airway obstruction or aspiration which might have accounted for the history Ms Folbigg gave Dr Dezordi, that Patrick had been gasping and that he was barely breathing. 125 By 6:00am on 18 October 1990, preliminary test results were available. The blood tests showed no abnormality. However, a urine test returned a high level of glucose, which was unexpected and which Dr Dezordi said in his oral evidence before the jury tended to suggest 'a fairly catastrophic event, such as an asphyxiating event, or a prolonged seizure.'"
Some 36 hours later, his temperature went up and he was vomiting and commenced having fits that evening. He remained in hospital until 29 October, when he was discharged, and was then readmitted on 4 November with a seizure. An electroencephalogram (EEG) on 5 November revealed abnormalities.
Dr Dezordi said that the damage to Patrick's brain "definitely" could have been caused by asphyxiation. [57] The Report's summary of the evidence at trial continued: "146 Because Patrick had a sibling who had died, all the tests available in 1990 were conducted when Patrick was admitted following the ALTE, to look for inherited diseases that might have brought about neurological abnormalities. Dr Wilkinson described the system of testing that the doctors did as 'extremely exhaustive', looking at a number of markers in the body for abnormalities of biochemical pathways, including chemicals in the urine, a rectal biopsy and staining of white cells to look for occlusions. No abnormalities were found. The doctors never had any absolute explanation for how Patrick suffered the damage to his brain."
Patrick died on 13 February 1991. At 10:00am that morning, the applicant telephoned Mr Folbigg at work and screamed down the phone, "it's happened again" and "I need you. Come home." He drove home quickly, raced into Patrick's room, scooped up Patrick from the cot and took him to the lounge and commenced CPR. He described him as "floppy, warm, with blue lips." Ambulance officers arrived at the house at 10:10am. The final autopsy report included the following passages: "Clinical Diagnosis: * Encephalopathic disorder leading to intractable seizures. The underlying cause of encephalopathy not determined on investigation. * Asystolic cardiac arrest at home leading to death. Final Diagnosis * Normally formed male infant of approximately eight months of age. * Old infarcts and gliosis in the parieto-occipital area (both cerebral hemispheres), which are probably secondary to cardio-respiratory suffered at about five months of age."
The body of medical evidence was that the initial life-threatening event was a "catastrophic asphyxiating event" which could have been caused by deliberate smothering or by some unknown cause. At the inquiry, Professor Ryan identified various potentially causative diagnoses, including conditions possibly associated with epilepsy and fluctuating neurologic symptoms not excluded by previous testing.
The judicial officer reviewed a considerable body of medical evidence, resulting in the following conclusions: "306 There have been two material changes since the 2003 trial in relation to diagnosis of any medical cause of Patrick's ALTE. First, genetic testing has been completed in relation to Patrick and no genetic variant which is pathogenic or likely pathogenic has been identified to account for the ALTE. Secondly, more recent research on SIDS that maternal smoking and sleeping position pose the highest risks relevantly reduces any assessment of Patrick's risk of SIDS or ALTE. 307 Medical evidence in the Inquiry, including evidence adduced at trial, and including both clinical and expert evidence, did not identify any natural cause of Patrick's ALTE as a reasonable possibility. However, on the basis of evidence in the Inquiry, the following conditions are excluded as a possible cause of the ALTE: a encephalitis; and b genetic conditions which were the subject of testing in the Inquiry (as set out in Chapter 7); 308 Having regard to the medical (including genetic) evidence in the Inquiry the following conditions are not excluded as having caused the ALTE, however I find that it is not reasonably possible that any of them caused the ALTE: a epilepsy, or an initial seizure; b an unidentified genetic or metabolic condition; c an unidentified degenerative brain condition or neurological disease or condition; d infection or virus (including particularly pneumonia, meningitis, septicaemia, meningococcal and bronchiolitis) other than encephalitis; and e a SIDS-type event."
The judicial officer, after expressing caution in accepting Prof Ryan's evidence, particularly in relation to the possibility of genetic disorders which he considered had been the subject of extensive inquiry and rejection, [58] concluded: "321 I find that expert opinion evidence supports a single asphyxial event having occurred on 18 October 1990, with a cause other than one attributable to a respiratory or a recognised neurological condition. For clarity, by 'asphyxial', I mean an event leading to obstruction of his airways. Further, medical evidence does not exclude that deliberate smothering of Patrick caused the ALTE."
With respect to his death, the judicial officer made the following finding: "332 I find on the available medical evidence that it is possible that the cause of Patrick's death on 13 February 1991 was a seizure or similar event related to encephalopathy in his brain. I find further on the available medical evidence that it is reasonably possible that his death was caused by an asphyxiating event, meaning an event leading to obstruction of his airways and which includes deliberate smothering. The answer to the question of which of these it was lies not in the medical evidence in relation to Patrick, but in a consideration of a number of different aspects of the evidence in this case."

[4]

Sarah was born at full term on 14 October 1992. As with Patrick, Sarah was the subject of a sleep study carried out at three weeks of age. Dr Cooper, who had also undertaken the study with Patrick, considered the results to be normal for her age. A general practitioner who saw Sarah four times believed her to be a normal healthy infant. She had suffered from a flu or cold virus for which medication had been prescribed on 18 August 1993, with the final dosage taken on 26 or 27 August, three days before her death.
At the time of death she was in a single bed in her parents' bedroom. She was reported to have been snoring when her parents went to bed at 9:30 or 10:00pm. The applicant told police that she had got up at 1:30am, and, not hearing Sarah breathing, had turned on the light and saw she had turned blue and noted a discharge from the nose.
At autopsy, two puncture abrasions were noted on her bottom lip, together with a scratch on her upper arm. Her uvula (the piece of tissue at the back of the throat which prevents food and liquid entering the nose) was reddened, a condition consistent with a mild infection or with snoring. The summary in the Report continued: "362 Microscopic examination showed areas of inflammation consistent with mild respiratory infection, which may have helped explain the reddened uvula. There was no evidence of any viral infection, but profuse growth of streptococcus might indicate a streptococcal infection which would help explain the reddening of the uvula and perhaps the light inflammation of the larynx (voice box). Such inflammation would not normally be expected to have contributed significantly to death. Otherwise, the findings said nothing about cause of death. 363 Dr Beal noted that the inflamed and displaced uvula showed probable throat infection. Professor Herdson doubted that Sarah's reddened uvula was significant in her death; it could have been caused during resuscitation. Professor Berry had never heard of a child dying of a swollen uvula. Professor Byard in his report referred to Professor Hilton's comments on an unusually congested uvula, and said in evidence that while he was unsure of the significance of the displaced uvula, he considered that it could not be excluded as having played a role in Sarah's death. Professor Busuttil, forensic pathologist, considered that the presence of the congested uvula may have given rise to some upper airway obstruction."
Professor Hilton, who conducted the autopsy, listed the cause of death as SIDS.
In chapter 5 of the Report, the judicial officer made the following findings: "414 Two material changes since the 2003 trial relevant to Sarah's death are first, that genetic testing has been completed and no genetic variant which is pathogenic or likely pathogenic has been identified to account for Sarah's death. Secondly, more recent research on SIDS that maternal smoking and sleeping position pose the highest risks relevantly lowers, in retrospect, the risk posed to Sarah of SIDS. 415 Ultimately there remains no identified natural cause of Sarah's death. 416 Forensic pathology evidence does not identify as a reasonable possibility any natural cause. Sarah's uvula having been found at autopsy to overlap the epiglottis, forensic pathology evidence is to the effect that this 'could have' caused death or is 'not excluded' as a cause. … … 418 In relation to SIDS, similarly for the reasons I have recorded in relation to Caleb above at [102], particularly with low risk factors, 'SIDS' (and particularly 'Category 2 SIDS') is far from complete as an explanation for Sarah's death. It leaves open the possibility of an identifiable (but not identified) natural or unnatural cause. Sarah had a low risk of SIDS, noting that SIDS itself is a rare occurrence. She was outside the age range in which SIDS most commonly occurs. Her sleep study was essentially normal. … 429 I find on the available medical evidence that it is only conjecture that Sarah's death on 30 August 1993 was naturally caused by obstruction of her airways associated with her uvula. I find further on the available medical evidence that it is reasonably possible that her death was caused by an event leading to obstruction of her airways by some other cause, which includes deliberate smothering."
This, as the applicant noted, was not the final form of the intermediate finding of fact as to the possibility of a natural cause for Sarah's death. That finding was to be found in the Addendum to the Report, which took account of information supplied some weeks after the hearings were completed on 1 May 2019. However, that matter concerned genetic information and a particular genic variation common to the applicant and the two girls, Sarah and Laura.
In order to understand the significance of particular findings it is necessary to have regard to the structure of the Report. Chapter 4 was headed "Sudden Infant Death Syndrome and Recurrence". The medical evidence in Ch 5 dealt with what was, in effect, a series of forensic pathology reports, followed by evidence as to smothering. That in turn was followed by Ch 6, dealing with the role of infection in SIDS, and Ch 7 dealing with genetics. Findings were made at the end of each chapter in relation to the children. An alternative structure might have addressed changes in different elements of the medicine before providing a global assessment of how those changes might affect each of the children. The purpose of identifying genetic variations which might have pathological consequences was to identify a natural causal explanation of one or more of the deaths. The structure which was adopted, on the other hand, gave rise to a cumulative process of assessment and reassessment at particular stages of the analysis. However, no complaint was made as to the structure of the Report (except with respect to the Addendum) and it is by no means clear that any plausible challenge could have been raised on this basis. It is sufficient to note that none of the findings outlined above was treated as final, or even as an intermediate, finding of fact, although as can be seen from the last set of findings regarding Sarah, reference to the genetic testing was taken into account before Ch 7, where the genetics evidence was set out.

[5]

(d) fourth child - Laura

Laura was born at full term on 7 August 1997. A sleep study undertaken 12 days post-partum showed mild central apnoea, which was identified as "totally normal" by February 1998. The sleep study also identified no bradycardia in response to the earlier apnoea nor, by February 1998 were there any cardiac problems.
Laura died around midday on 1 March 1999, aged 18 months. She was found by the applicant, who called the ambulance service. Ambulance officers arrived at 12:14pm and found that Laura was not breathing and had no pulse. There was no blood, vomit or foreign object in her mouth. Her skin was warm to the touch and cyanosis was present around the lips and face. A record of her immediate history indicated that she had had a cold in the last 24 hours, had been administered Demazin two days earlier on 27 February and had been last fed at 7am on 1 March. She had been put down to sleep and was on her back when she was found. There was nothing covering her head. Given her age, she did not fit within the usual criteria for SIDS and, together with her age, the testing and monitoring led to her being considered to be at extremely low risk for SIDS. [59]
Dr Cala, who performed the autopsy found there was "an inflammatory infiltrate in the heart consistent with myocarditis". [60] However, having watched a video of her playing taken on 28 February 1999 (the day before her death), Dr Cala considered she appeared to be in good health and considered that the myocarditis "played no role whatsoever in her death". [61] There were a number of further medical expert reports prepared with respect to Laura, based on the more comprehensive material that was available relating to her death, as compared with the deaths of the other children. This material was considered at length by the judicial officer who was satisfied that, based on the medical evidence received at the inquiry, "the myocarditis found in Laura's heart at autopsy could have been incidental to her death, or it could have been fatal." [62] He also noted that deaths of children from myocarditis are rare and there was about one death each year in New South Wales. Sudden and unexpected deaths are fewer again and more frequent in young babies than in the age range of one to four years. He also accepted that "[n]o forensic pathologist has excluded the possibility of an unnatural cause of Laura's death", [63] concluding that it was "also reasonably possible that her death was caused by an event leading to obstruction of her airways, which includes deliberate smothering." [64]

[7]

(b) Genetics

Of more importance to the outcome of the inquiry was the discussion of "Genetics evidence" in Ch 7. In so far as the evidence established a particular natural cause as a reasonable possibility in relation to the death of each child, taken separately the likelihood of such natural causes, each in itself a rare event, in four consecutive children in one family was vanishingly small. The conclusion would, of course, be quite different were there a real possibility of a common cause. The common cause might, in theory, be environmental or genetic. In practical terms the question was whether there was evidence to support a common genetic link.
There was no doubt that there had been significant advances in the field of genetics since the trial in 2003. There was available to the inquiry material taken from each of the children, from which DNA could be extracted. In December 2018 the applicant provided a sample for genetic testing. The inquiry engaged a multi-disciplinary panel of experts which undertook further genetic sequencing and analysis. Two experts based in Canberra were retained for the applicant. It is convenient to deal with the evidence addressed in Chapters 6 and 7 when dealing with the specific particulars of review directed to their evidence.
However, before dealing with the more detailed issues, some further general observations are in order. First, although the discovery of a plausible cause of death in any of the children would in theory reduce the degree of improbability of four deaths occurring naturally in one family, unless the causal hypothesis for a natural cause in one case was strong, it would have limited effect. Similarly, different indications in each of the four cases, lacking strong causal links, would have limited effect. However, the identification of a common genetic factor providing a possible explanation as to why more than one death occurred in the one family, would be, subject to the other evidence, an important step in demonstrating a reasonable doubt as to the applicant having caused those deaths.
Secondly, despite extensive investigations, no common genetic element has been identified as present in all four children. What was identified, after the trial, was a variant in the CALM2 gene associated with certain cardiac conditions, the genetic variant being common to the girls (Laura and Sarah) and the applicant. As will be noted below, the causal significance of this was contestable.
Thirdly, the identification of a relevant genetic factor associated with disease or illness and hence death will depend upon whether there is evidence in the clinical condition of the child or person (the phenotype) consistent with such known conditions. The clinical information relating to all four children included (i) the absence of pregnancy related complications; (ii) the absence of congenital malformations; (iii) newborn screening reported as normal; (iv) development normal for age for each child prior to death or the ALTE at four months for Patrick; (v) none had a surgical procedure, or was admitted to hospital with a significant medical problem (excluding Patrick's ALTE); (vi) none was on continuous medication or had more than eight documented respiratory infections a year and (vii) all had autopsy examinations with no medical cause of death determined. [66] These circumstances largely dictated the basis of the trial in 2003. The hypothesised natural causes of death were individual for each of the children, namely laryngomalacia (floppy larynx) (Caleb), infection (Patrick), uvulitis / laryngospasm (Sarah) and myocarditis (Laura).
Fourthly, as to genetics, in 2013 it was reported in the medical literature that genetic perturbations in CALM1, 2 and 3 which encoded for a particular protein, calmodulin, were associated with early occurrence of life-threatening cardiac arrhythmias in infancy and early childhood, particularly in long QT syndrome (LQTS [67] ) phenotypes, and less frequently in catecholaminergic polymorphic ventricular tachycardia (CPVT), idiopathic ventricular fibrillation (IVF) and sudden unexplained deaths (SUD) in young individuals' phenotypes. [68] Thereafter, the authors of the report set up an international calmodulinopathy registry which collected demographic, clinical and genetic information in relation to patients suffering from LLQTS and CPVT. In April 2019 a paper was published relating to 74 subjects from 51 different families. [69] The significance of the 2019 paper (which became available after the evidence to the inquiry was completed but before the Report was released) lay in its identification of infant deaths associated with a variant in CALM3 which encoded the same protein as the CALM2 variant found in the applicant, Sarah and Laura . Prior to publication of the 2019 paper, the experts who gave evidence to the inquiry were generally not persuaded that this variant was likely to be pathogenic, although Professor Vinuesa stated that she "would not feel comfortable with excluding its potential for pathogenicity". [70] The later publication led to further medical evidence and an addendum to the Report. The significance of the material was that it provided a common genetic link associated with pathogenicity in the two female children. However, the males were not affected. There therefore remained at least three separate causes, as there was no common link between the deaths of the boys.

[8]

It is important to identify the contents of Ch 8, entitled "The Non-Medical Evidence including Ms Folbigg's Diaries". That evidence covered (i) the content of the diaries; (ii) attempts to conceal the existence of the diaries; (iii) her statements to the police in relation to the content of the diaries; (iv) her evidence to the inquiry as to the content of the diaries, and (v) evidence before the inquiry as to her attempts to dispose of the diaries. The evidence of Mr Craig Folbigg together with some brief evidence from other members of the family and other lay witnesses, including neighbours and friends, was also addressed in this chapter. It is sufficient for present purposes to note their evidence in relation to the diaries. At trial the prosecution asserted that various entries in the diaries contained "virtual admissions" by the applicant of her guilt for the deaths of three children with admissions that she was at risk of acting in the same way in relation to Laura.
There was no dispute as to the authenticity of the diaries, nor that the entries were made by the applicant. The sole question was how particular entries should be understood. If they were to be understood as referring to the applicant having killed her children, directly, and were not delusional, they constituted powerful evidence of guilt which could not readily be overcome by medical evidence as to a possibility that each child died of natural causes. The judicial officer accepted, as a matter of fact, after hearing evidence from the applicant who had not given evidence at her trial, that the diaries should be read as including "virtual admissions" as to causing the deaths. This finding significantly contributed to the conclusion that he was left with no reasonable doubt as to her guilt of the five crimes for which she was convicted.
An important element of the applicant's case in this Court was that a different reading of the diary entries was available and, indeed, was the only reading reasonably available if one approached them with the knowledge that there was indeed a reasonable possibility that each death resulted from natural causes. Counsel submitted that, it being a circumstantial case, the judicial officer "had to exclude any available alternative interpretation that may be consistent with innocence in order to use the diary contents as a virtual admission." [71] This was because the inferences drawn from the diary entries were "more akin to a link in the chain" than to a strand in a cable. [72]
Before addressing this submission, it is necessary to identify briefly the subject matter under consideration, namely particular entries in the diary.
Several significant diary entries commence in June 1996, some three years after Sarah's death and a little over a year before Laura's birth. "18 June 1996: Baby plans still on the go … I'm ready this time. And I'll have help & support this time. When I think I'm going to loose [sic] control like last times, I'll just hand baby over to someone else. Not feel so totally alone. Getting back into my exercise after will help my state of mind & sleeping wherever possible as well. I have learnt my lesson this time. 14 October 1996: ... But I think loosing my temper stage & being frustrated with everything has passed. I now just let things happen & go with the flow. An attitude I should have had with all my children if given the chance. I'll have it with the next one. 4 December 1996: ... I'm ready this time. But have already decided if I get any feelings of jealousy or anger to [sic] much I will leave Craig & baby, rather than answer being as before. Silly but will be the only way I will cope. I think support & not being afraid to ask for it will be a major plus. Also - I have & will change my attitude & try earnestly not to let anything stress me to the max. I will do things to pamper myself & just deal with things. … To keep myself in a decent mood. I know now that battling wills & sleep depravaision [sic] were the causes last time. 1 January 1997: ... I have a baby on the way, which means major personal sacrifice for both of us. But I feel confident about it all going well this time. I am going to call for help this time & not attempt to do everything myself any more. I know that that was the main reason for all my stress before & stress made me do terrible things. 4 February 1997: Still can't sleep. Seem to be thinking of Patrick & Sarah & Caleb. Makes me generally wonder wether [sic] I am stupid or doing the right thing by having this baby. My guilt of how responsible I feel for them all, haunts me, my fear of it happening again haunts me. … I'm sure with the support I'm going to ask for I'll get through. What scares me most will be when I'm alone with baby. How do I overcome that? Defeat that? 17 February 1997: … Found out he's jealous already of Bub. He says he only has 6 mths left to be with me and for me. Hopefully I've explained, thats not true, he should be for me forever, just because a baby is entering our life makes no difference really. One day it will leave. The others did, but this one's not going in the same fashion. This time I'm prepared and know what signals to watch out for in myself. Changes in mood etc. Help I will get if need be. I also know that my lethargy & tiredness & continued rejection of him had a bad effect. [Laura was born on 7 August 1997.] 25 October 1997: [After watching a video of Sarah.] I think I am more patient with Laura. I take the time to figure what is rong [sic] now instead of just snapping my cog. Also she is a far more agreeable child & easily flows most of the time. … Looking at the video, Sarah was boyish looking. Laura has definite feminine features, they are chalk & cheese. And truthfully just as well. Wouldn't of handled another one like Sarah. She saved her life by being different. 29 October 1997: Felt a little angry towards Laura today. It was because I am & was very tired. … Wonder if Craig was serious about trip to Melbourne. Would be great to see Lea's face, but also scary, because it's a little to similar to what we did with Sarah. But Laura's different. Totally she doesn't push my Button anywhere near the extent she did. Which is good for her is all I can say. 3 November 1997: Why is it when I'm so tired I'm feeling sick - shitty I cant [sic] sleep. Very depressed with myself at the moment. Feeling deprived of my freedom. I know that's the price that you pay for having a baby … … Someone's awake got to go. Lost it with her earlier. Left her crying in our bedroom & had to walk out - that feeling was happening. And I think it was because I had to clear my head & priotise [sic]. As I've done in here now. I love her I really do I don't want anything to happen. 9 November 1997: Craig was pretty drunk Friday nite; In his drunken stupor he admitted that he's not really happy. There's a problem with his security level with me & he has a morbid fear about Laura - me well I know theres nothing wrong with her. Nothing out of ordinary any way. Because it was me not them. Think I handle her fits of crying better than I did with Sarah - I've learnt to … getting to me, to walk away & breath in for a while myself. It helps me cope & figure out how to help her. With Sarah all I wanted was her to shut up. And one day she did. 8 [December] 1997: Had a bad day today. Lost it with Laura a couple of times. She cried most of the day. Why do I do that. I must learn to read her better. She's pretty straight forward. She either wants to sleep or doesn't. Got to stop placing so much importance on myself. … Much [sic] try to release my stress somehow. I'm starting to take it out on her. Bad move. Bad things & thoughts happen when that happen. It will never happen again. 31 December 1997: Getting Laura to be next year ought to be fun. She'll realise a Party is going on. And that will be it. Wonder if the battle of the wills will start with her & I then. We'll actually get to see. She's a fairly good natured baby - Thank goodness, it has saved her from the fate of her siblings. I think she was warned. 4 January 1998: Sarah's missed. We watched her video. Made me realise how much I love Laura & cherish her like I never did the others. I don't take her for granted. 28 January 1998: Very depressed with myself, angry & upset. I've done it. I lost it with her. I yelled at her so angrily that it scared her, she hasn't stopped crying. Got so bad I nearly purposely dropped her on the floor & left her. I restrained enough to put her on the floor & walk away. Went to my room & left her to cry. Was gone probably only 5 mins but it seemed like a lifetime. I feel like the worst mother on this earth. Scared that she'll leave me now. Like Sarah did. I knew I was short tempered & cruel sometimes to her & she left. With a bit of help. I don't want that to ever happen again. I actually seem to have a bond with Laura. It can't happen again. I'm ashamed of myself. I can't tell Craig about it because he'll worry about leaving her with me. Only seems to happen if I'm too tired her moaning, bored, wingy sound, drives me up the wall. I truly can't wait until she's old enough to tell me what she wants."
A significant aspect of the applicant's case was that these entries could all be read as regretting things she did not do, rather than as a record of things she did do. It was submitted that the judicial officer failed to give proper consideration to the omission/commission distinction.

[9]

(a) application of correct legal test

The first four issues identified for determination by the Court involved the application of the correct legal test of "reasonable doubt" in relation to the evidence. It may be accepted that a material error in the application of the law would constitute a reviewable error which could lead to the quashing of the final conclusion. The problem is to identify the nature of the correct legal test: the concept of reasonable doubt is not readily open to further definition.
There is no challenge to the articulation by the judicial officer of the proper approach to his function in carrying out an inquiry under Pt 7 of the Appeal and Review Act. In formulating the approach adopted, the judicial officer relied for each of the propositions contained in the following passage on statements in reports of earlier inquiries, and particularly on those of Wood J in an inquiry conducted in 1985. [73] The relevant passages in the reasoning of the judicial officer were as follows: [74] "63 Pursuant to s 77(2) of the CAR Act, a direction for an inquiry may be predicated upon the existence of a doubt or question as to the guilt of the convicted person. Consistently with the approach taken in previous inquiries of this nature, including under predecessor legislation, however, I do not consider that the Direction involves a revival of the presumption of innocence in favour of the convicted person. 64 Nor is such an inquiry a retrial on the basis of the evidence before it. It does not impose any onus on the Crown to produce evidence to remove the doubt that gave rise to the inquiry and re-establish guilt. Similarly, it does not impose any onus on the convicted person to establish that the conviction was wrongly procured. 65 It is the convictions which are the subject of an inquiry. Therefore, an inquiry must commence with the fact that a conviction has been recorded and that questions or doubts have been raised sufficient to justify the Governor directing a judicial officer to conduct an inquiry, and to summon and examine on oath all persons likely to give material information. As such, I do not consider my role to be akin to that of a judge and jury in a retrial. 66 An inquiry is not confined to an investigation of the questions or doubts raised in a petition, or to an investigation of new evidence. It may re-examine evidence in the trial including any matters previously dealt with on appeal. Further, an inquiry may consider any information that may throw light on the convicted person's guilt, whether that information is favourable or unfavourable to the convicted person. It is not fettered by tactical or forensic decisions at trial, or by the way the Crown or defence cases were conducted. 67 My overall task is therefore to consider the evidence at the trial and the conduct of the trial, in light of the further evidence and submissions received in the Inquiry, in order to determine whether, overall, there is a reasonable doubt as to Ms Folbigg's guilt or as to any matter that may have affected the nature or severity of her sentence. 68 It is on this basis that the Inquiry was conducted and that this report is made."
What was required of the judicial officer was essentially an exercise in fact-finding. That was the exercise undertaken. The purpose and subject matter of the Report were reflected in the consideration of extensive evidence as to whether there was a real possibility that one or more of the deaths had resulted from natural causes, so as to provide a factual basis for a finding of reasonable doubt as to the applicant's guilt with respect to one or any of the charges. The application of the standard of "reasonable doubt", as found in s 82(2)(a) of the Appeal and Review Act, was to inform the process of reasoning, and to form the basis of the final conclusions. Reading the Report as a whole permits no inference that the judicial officer deviated from that function.
In oral argument, senior counsel for the applicant focused upon two propositions. The first submission was that "the medical evidence established a potential natural cause of death for each of the children that needed to be excluded if there was to be a finding that there was no reasonable doubt about the guilt of Ms Folbigg for the purposes of the Act." [75] There followed an acknowledgment that the judicial officer had excluded those reasonable possibilities, on the basis of the diary entries, based on their implicit admissions. However, counsel submitted that those entries were themselves open to a reasonable innocent explanation, so that they could not have justified dismissal of the reasonable possibility of natural causes established by the medical evidence. That in turn led to a consideration as to whether each was in the nature of a link in a chain, or rather comprised strands in a cable, to adopt the metaphor used in Wigmore on Evidence, as explained by Dawson J in Shepherd v The Queen. [76]
The second, related, submission was that the judicial officer needed to consider the entries in the diary from a neutral position as to whether the children died naturally or were murdered. The submission continued: [77] "The judicial officer, we say, did not undertake that exercise of looking at it neutrally and the judicial officer accepted in the addendum that both Sarah and Laura may have died of a natural cause and he used his interpretation of the diaries to extinguish any reasonable doubt, but we say there was a circularity in his Honour's reasoning that to the extent that there was a natural cause of death he could use the diaries to extinguish any doubt about it and of course because of the diaries there was no natural cause of death, and we say that was in error. We say that the diaries had to be interpreted against a backdrop of the possibility of four natural deaths to determine whether they are consistent with guilt or can be interpreted in a manner consistent with innocence and to that extent we say there was a fundamental error in the exercise of logic."
It is true that the metaphor of a chain or a cable identifies an important distinction in the way circumstantial evidence may operate. However, the metaphor has limitations. Similarly, there would, of course, be an element of circularity in adopting a reading of the diary entries based upon an assumption that no natural cause had been established for any of the deaths. However, neither of these critiques of the reasoning can be accepted.
Both ways in which the applicant's case was put (links in a chain and circularity) involved an assumption that there was a staged process in assessing pieces of evidence. That assumption was inapt in the circumstances. The process was nuanced and involved weighing of all the evidence. There were many factors involved. For example, there was no single standard of "reasonable possibility" in considering possible natural causes. The rarity of certain occurrences could not be ignored. The likelihood of a particular cause arising in a specific case required an evaluative judgment, based on an assessment of differing medical opinions.
Similarly, an understanding of the meaning of the diary entries was not to be undertaken on a day by day basis, but having regard to knowledge of the applicant and her personal history and circumstances, and the explanations of them advanced by the applicant in her oral evidence to the inquiry.
No error of law was demonstrated by the manner in which the judicial officer assessed the evidence in order to reach the negative conclusion that he was not satisfied there was reasonable doubt as to the guilt of the applicant in respect of any of the convictions. The concept of "reasonable doubt" was not a legal standard: if it called for a particular form of reasoning, it was a holistic approach to the evidence. The staged approach based on independent assumptions proposed by the applicant was inappropriate: the judicial officer's conclusion depended upon a synthesis of competing and complicated factors.
Of course, that was far removed from the exercise required of the medical experts: each properly gave evidence from the standpoint of his or her particular expertise. Each properly expressed views as to possible causes of death. It was not within their role to reach a conclusion as to whether reasonable doubt attended the convictions. Indeed, for them to have done so would have undermined their professional objectivity and might have diminished the force of their opinions. While the judicial officer was conscious of the disparate functions, he did not identify lack of objectivity affecting the expert witnesses at the inquiry.

[10]

(b) failure to accept listening device transcripts

This, and a number of other grounds, were formulated as if the inquiry had been a trial in which admissible evidence had been wrongly rejected, giving rise to a miscarriage of justice. These grounds paid insufficient attention to the facts that (i) this was not a trial but an inquiry conducted under Pt 7 of the Appeal and Review Act, (ii) the rules of evidence were not applicable and (iii) any challenge to the procedure adopted by the judicial officer needed to be formulated in appropriate terms. An appropriate ground therefore needed to identify a relevant issue raised by the terms of the inquiry and then to identify evidence relating to an essential element of the inquiry, the rejection of which would demonstrate a constructive failure on the part of the judicial officer to carry out his proper function according to law.
The particular error was said to be a failure to accept the tender of a transcript of a recording by a listening device placed in the lounge room of the Folbiggs' home in July 1999. The listening device had been placed there pursuant to a warrant obtained by police in the course of investigating the deaths of the children. The conversation between the applicant and her husband concerned a possible response to the stress being caused by the police investigation. Mr Folbigg began an explanation of how he could have killed the children. The applicant interrupted at one point to say "ridiculous". Mr Folbigg responded: "It's not ridiculous. It's as feasible as what they're trying [to] say about you." At the end of the exchange, Mr Folbigg said, "I don't want him going after you for something you didn't do. You and I know, I know you didn't do it like you know I didn't do it."
The fact that the judicial officer accepted only a redacted version of this transcript as part of the evidence at the inquiry reflected a conclusion that the redacted part was irrelevant. It could only have been relevant to support an inference that the children were in fact murdered, not by the applicant but by her husband. Reading the whole transcript it is not possible to conclude that Mr Folbigg was purporting to claim actual responsibility for the deaths. Nor was it proposed by any party to the inquiry that such a finding should be made. In considering suggestions of procedural unfairness, the judicial officer recorded that there was no application by the applicant, "or indeed anyone else, to have Mr Folbigg called as a witness in the inquiry. In any event, this was beyond the scope of the inquiry and there was no application to extend the scope in this way." [78] In final conclusions the judicial officer stated: [79] "It remains that the only conclusion reasonably open is that somebody intentionally caused harm to the children, and smothering was the obvious method. The evidence pointed to no person other than Ms Folbigg."
This ground of challenge must be rejected: no error of law, nor indeed any other kind of error, has been established in relation to the redaction of the listening device transcripts.

[11]

The report in question was prepared by Professor Paul Goldwater and dated 29 March 2019. The applicant's written submissions referred in three brief paragraphs to the fact that redactions had been made by the Crown Solicitor's Office, "in spite of the [applicant's] solicitor raising concerns with the Crown Solicitor about the proposed redactions." The submissions identified five such redactions, each of which contained criticism of a report by an expert who had given evidence, those reports being annexures to a report of Professor Blackwell of 5 March 2019 which the solicitors for the applicant had supplied to Professor Goldwater. The applicant's written submissions stated that the redacted portions "went to the credibility and accuracy of professional expertise of evidence given at trial and postulated natural causes of death for three of the children." [80] The rejection of the evidence was said to amount to "procedural unfairness, and a practical injustice to the plaintiff."
The history of the redactions was explained by the Attorney in his written submissions in this Court, none of which was disputed by the applicant in reply or orally. The Goldwater report had been served on 29 March 2019, after the scheduled timetable and after experts to whom Prof Goldwater was responding had already given evidence.
Counsel for the Attorney submitted that there could be no procedural unfairness because there was an opportunity for the applicant to have raised the issue of redaction before the judicial officer and seek to tender the additional material. In her reply, the applicant submitted that "the tender was complete", and "[t]he direction was deficient to enable a revisitation as suggested." [81] The submissions further stated that the redactions were made "unilaterally, without reasons and without invitation for argument before the judicial officer." [82]
The only available inference is that the applicant's solicitors chose not to pursue the issue before the judicial officer. There may have been good reason why that was so: the report contained what might have been considered tendentious comments on the conduct of the trial and the expertise of witnesses, and the suggestion that parts of the evidence were "irrational". These opinions would not obviously have assisted the judicial officer. In any event, in the absence of evidence that no application to tender the additional material would have been entertained, there was no breach of procedural fairness.

[14]

(f) failure to reopen the inquiry after receipt of a late material from Professors Schwartz and Vinuesa

On 21 June 2019, weeks after the closing of evidence and submissions, Professor Vinuesa sent the inquiry a further statement, attaching an advance copy of a 2019 paper by Lia Crotti et al. [84] Also attached to Prof Vinuesa's statement was a letter to her from one of the authors of the Crotti paper, Professor Peter Schwartz.
As has been noted, two main reports on genetic analysis were provided to the inquiry, one by those known as the "Sydney team" and one by the "Canberra team", the latter being Professors Vinuesa and Cook. The latter were nominated by the applicant's lawyers. The subject-matter of the late material concerned a specific issue relevant to the girls, the background to which should be explained.
Where there is more than one case of SIDS in a particular family, one may suspect genetic factors at work. The research has tended to focus on genes relating to metabolic disorders, cardiac disorders, serotonin production (which regulates breathing among other functions), inflammatory responses to infection, development of the autonomic nervous system and seizures. As the judicial officer recorded, [85] neither the Sydney nor the Canberra team found variants in genes which were assessed as pathogenic or likely pathogenic in all four children so as to explain their sudden deaths. The genetic evidence in the present inquiry focused particularly on variants of genes associated with cardiac disorders. One target of investigation was the gene known as CALM2. The Report noted in Ch 7: [86] "103 CALM2 was present in Sarah, Laura and Ms Folbigg and not present in Caleb and Patrick. The clinical presentation most commonly associated with the gene is a severe form of long QT syndrome. Long QT syndrome is a heart rhythm disorder indicated by a long QT interval measured on ECG tests. The condition can cause sudden syncope (loss of consciousness), sudden cardiac arrest and sudden death. In very rare instances the clinical presentation of catecholaminergic polymorphic ventricular tachycardia ('CPVT') has been observed. CPVT may not be indicated on resting ECG tests, but rather on exercise ECG tests. [87] 104 Professor Kirk gave the following evidence: WITNESS KIRK: ... there are some situations [in families reporting CPVT] where there are parents who are either affected in a minor way or who are healthy but have abnormalities on stress testing or on other, other provocative testing. In those families, the age of onset of symptoms is much later and the earliest death, I think, is at about four years for any of those, and most of the deaths have been in the range of 10 to 16 years. So, for those - for those particular ones, it's, it's a different condition. It's still a severe condition, but not as severe as the, the more commonly seen situation. So, I think that's an important difference because we would expect that if someone had a condition that was severe enough to cause death in the first months or in the first year or two of life that that would be one of the more severe manifestations. That's certainly the universal experience in the literature so far. Whereas, if someone were surviving longer term, they could conceivably have the less severe form but we would not expect death in infancy ... … 105 Professor Vinuesa's evidence at its highest was that she 'would not feel comfortable with excluding its potential for pathogenicity' on the basis that it is 'conceivable' that the mutation in Ms Folbigg was non-penetrant. 106 Professor Skinner considered it to be 'stretching credibility' that the CALM2 variant identified in the Folbigg family could be pathogenic. He gave the following evidence: 'Yes, of course Professor Vinuesa is correct, that all of these inherited heart conditions have variable penetrance and sometimes expression. But the [penetrance] issue really is covered quite well with the literature on this gene. It's - degree of [penetrance], its likelihood of causing disease has been in the literature to date related very much in the way that Dr Kirk said, if it's a de novo mutation you have severe disease which might cause a lethal outcome in the first year or two. If you have familial disease, there's not a single case of a sudden death under the age of two. All of the deaths produced in the literature have been over the age of two and the majority of those are in teenagers or above during exercise, while awake, not while asleep. So not only is the phenotype wrong, but the penetrance issue I think really is covered by the literature so far. Is it possible that there would be some - that this particular variant might behave differently? It's stretching credibility but I imagine it's not impossible, but it doesn't follow the pattern of disease established to date.' 107 Professor Skinner gave a further reason for not assigning this variant as being likely pathogenic: that it has not appeared in any study of SIDS victims. 108 On the basis of the results of exercise testing conducted on Ms Folbigg and received after the oral evidence, Professor Skinner concluded he was confident Ms Folbigg does not have CPVT and found no evidence of long QT syndrome or significant ventricular arrhythmia."
Prof Schwartz noted in his 20 June 2019 letter that the report he had seen (being the report prepared by the Canberra team) "only linked the CALM2 variant to a long QT syndrome phenotype, ignoring the possibility that phenotype could be CPVT. He noted that without an exercise stress test of Ms Folbigg, a diagnosis of CPVT was still 'fully on the table'." Although Professors Vinuesa and Cook had apparently not considered expression of CALM2 in CPVT, it is clear from the material set out above that the inquiry had evidence before it which did consider that possibility. The evidence was also that the applicant had undergone an exercise stress test: Prof Skinner had formed the view that she did not have CPVT.
The CALM2 variant detected in Sarah, Laura and the applicant encoded for the amino acid at the site glycine 114, known as Gly114. The significance of the Crotti paper, according to Prof Schwartz, was that the study group included "a family with an asymptomatic mother carrying a variant in the CALM3 gene affecting the same amino acid as was identified in the applicant, Sarah and Laura, namely Gly114, in which one child died at age five from a cardiac arrest while playing, and another died suddenly at age four".." [88]
On receipt of Prof Vinuesa's further statement, counsel assisting provided the Sydney team with a copy and asked for a response. A short supplementary report was provided on 5 July 2019. The supplementary report agreed that the three CALM genes encoded an identical protein and that there was an increasing likelihood that the variant found in Sarah and Laura might be relevant to their deaths. [89] It concluded that if the clinical information were not taken into account, the variant would now be classified as "likely pathogenic", meaning that there was a greater than 90% chance of it being disease-causing. On the basis of the clinical information, however, they concluded that "the fact Ms Folbigg is alive (at age 52), has never had a cardiac arrest, and produced exercise test results within normal limits are strongly against a hypothesis of concealed CPVT." [90] The authors considered that the CALM2 variant remained "of uncertain significance, due to the conflict between the clinical and genetic evidence." [91]
Because the applicant contended that the fresh evidence should have been sufficient to persuade the judicial officer to reopen the whole inquiry, it is desirable to identify aspects of the response provided by Professor Kirk, Dr Buckley and Professor Skinner which supported the view that a high level of uncertainty remained as to whether the discovery of the CALM2 variant in the applicant and her daughters was of any causative significance.
First, they addressed the nature of the variants: "1.5 It is important to understand that almost all of the previously reported disease-associated variants in the three CALM genes, CALM1, CALM2, CALM3 (all three of which code for an identical protein) involve amino acids located within two specific regions ('domains') of the protein. These are called EF-hand III and EF-hand IV. Only three amino acids outside those two domains had been associated with disease prior to the new report from Crotti et al. Those three are in a different part of the protein from the location of the Gly114 amino acid. In other words, there had never been a report of a change in the protein in the vicinity of Gly114 that was disease-associated."
Secondly, they noted the significance of the variants in the Folbigg family being inherited: "1.7 Where there is information about the parents of a person affected by a CALM-related condition, it is almost always found not to have been inherited from a healthy parent. Crotti et al state that where parents have been tested, the variant is almost always de novo (neither parent has the change, ie it is new in a child) or is inherited from a parent with gonadal mosaicism (ie where the change is present in ovaries or testes but not in the rest of the body). For 27 of 29 cases where the phenotype was long QT, the variant was de novo, and for the other two there was gonadal mosaicism. For 7 of 9 with CPVT the variant arose de novo. Thus, it is very unusual for a pathogenic variant in these genes to be inherited from a parent, particularly an unaffected parent."
Thirdly, they referred to the significance of the children being found deceased during a sleep period: "1.8 … To our knowledge, variants in calmodulin have still not been reported as a cause of sudden infant death syndrome, being death of an infant during sleep. Their young age is also not typical for calmodulinopathies. The median age of sudden cardiac death in the registry was 5.7 years, and most of the youngest deaths were associated with the long QT phenotype - which was never seen in a child of a parent carrying a non-mosaic variant."
Whilst the authors accepted that the variant could be pathogenic and could be either the sole cause of death for Sarah and Laura or a contributing cause, they also noted the possibility that the variant was benign, stating: "3.4 There are numerous examples of situations in which one change to an amino acid is pathogenic whereas another, at the same residue, is benign. Even within the CALM genes, there is evidence for an example of this; the change of asparagine 138 to lysine has been reported in association with the very severe Long QT phenotype, where as a change of the same amino acid to a different amino acid, serine, has been reported in a healthy population control. In the case reported by Crotti et al, the glycine at position 114 changed to tryptophan; in the Folbigg family the change is to arginine, which is chemically very different from tryptophan. Thus, it is possible that the Gly114Arg variant is benign."
The Report noted that counsel assisting had been provided with an opportunity to file further written submissions, which they did on 8 July 2019. Counsel assisting contended that the correct finding remained that "there is no reasonable possibility that the death of any of the Folbigg children or Patrick's ALTE was caused by a recognised genetic variant." [92]
The applicant's representatives were given an opportunity to file submissions in reply and filed both a further written submission and a letter said to have been drafted by Professor Vinuesa and Dr Arsov with assistance from Professors Schwartz, Cook and Overgaard. The letter stated, apparently for the first time, that the registry of calmodulinopathies referred to in Crotti et al recorded "five cases of sudden death/cardiac arrest while asleep caused by CALM1/2/3 mutation." However, the judicial officer noted that the letter did not suggest that any of those cases involved an infant. [93] After setting out more of the submissions for both parties, the judicial officer dealt at some length with the further information in making findings with respect to the CALM2 variant. He accepted "the opinion in the letter from Professor Vinuesa that the CALM2 variant identified in Ms Folbigg and Sarah and Laura 'is likely to cause a cardiac condition amidst the CPVT/LQTS/IVF spectrum'." [94] He further observed: "50 These findings demonstrate not only the extreme rarity of pathogenic calmodulin variants, but the even more extreme rarity of sudden cardiac deaths during sleep caused by such variants in previously asymptomatic carriers. 51 I note Sarah and Laura each died aged under two years, during a period of sleep and had not been symptomatic for any cardiac condition."
His dispositive reasoning on this material was as follows: "57 This understanding creates for consideration a possible cause of death in the same way as the evidence of the pathologists' evidence created a possible cause of death for Laura, namely myocarditis. Such possibilities should be evaluated in the same way, namely together with all the other evidence in the Inquiry. 58 In relation to Sarah, taking into account additionally the diary entries made by Ms Folbigg and her lies and obfuscation, the evidence of Mr Folbigg indicating Ms Folbigg's fraught relationship with Sarah, and the tendency and coincidence evidence, I remain of the view that the only conclusion reasonably open is that Ms Folbigg smothered Sarah. 59 In relation to Laura, taking into account additionally the rarity of myocarditis as a cause of death in children of Laura's age, the non-medical evidence including the diary entries made by Ms Folbigg and her lies and obfuscation, the evidence of Mr Folbigg indicating the difficulties Ms Folbigg was having with Laura, and the tendency and coincidence evidence, I remain of the view that the only conclusion reasonably open is that Ms Folbigg smothered Laura. 60 Even on the basis of accepting the opinion of Professor Vinuesa that it is now plausible that Sarah and Laura Folbigg may have had a cardiac condition, and that that raises a possibility it caused their deaths, I do not consider the Inquiry should be re-opened for the purpose of holding further hearings about the CALM2 variant identified in Sarah and Laura. For the reasons above, the further information received since the close of the evidence and submissions does not raise in my mind any reasonable doubt of Ms Folbigg's guilt of these offences."
Returning to the complaints raised by the applicant based on this material, it is not correct to say that the inquiry was not "reopened" after receipt of the material from Prof Vinuesa on 28 June 2019. It was reopened; the material was all considered, as was further material supplied by her and further submissions obtained from both parties. The judicial officer considered whether it was appropriate to have a further oral hearing and determined that it was not.
The written submissions for the applicant stated that procedural fairness required that she have the opportunity to test the further opinion provided by the Sydney team, which "may have affected their earlier evidence." The submission further stated that the judicial officer "failed to reconsider his findings and conclusions that formed the main body of his report". [95]
None of these propositions should be accepted. Procedural fairness did not require that there be a hearing at which witnesses would be recalled: the judicial officer was entitled to call a halt to the inquiry, without being obliged to reopen the inquiry because the applicant had located fresh scientific information. Relevantly, the judicial officer considered the possibility of a further hearing: he noted that the "conflict in views and the debate it generates will no doubt continue, however, it is not necessary for it to be resolved in order for me to decide if the Inquiry should be reopened." [96] He was also satisfied that no further genetic testing would materially affect the available information. [97]
There was no submission (nor could there have been) that the procedural approach adopted by the judicial officer was manifestly unreasonable in the legal sense.
The further suggestion that the judicial officer should have reconsidered the whole of the genetic evidence and the non-medical evidence in the light of the new material is without foundation. The judicial officer, fully cognizant of the findings which had already been made (and which were adverted to in the addendum), identified the significance of the further material, varied the finding to which it was specifically relevant, but expressed satisfaction that the result did not affect the outcome of the weighing of all the material which had already been undertaken. It is not possible to discern legal error in that approach.

[15]

(g) failure to consider the submission of Prof Clancy

On 27 June 2019, the solicitor for the applicant provided to Prof Clancy a copy of the material provided to the inquiry by Prof Vinuesa on 21 June. On 28 June 2019 Prof Clancy sent to the inquiry an unsigned document described as a "Submission to the Inquiry". In it he stated: "The findings by Professor Schwartz are extremely important, and as a result, markedly enhances [sic] the likelihood that the deaths of Sarah and Laura are due to natural causes."
Somewhat stridently, the applicant's written submissions stated: "Whether properly characterised as a submission, or further opinion evidence, this material was not mentioned in the Inquiry Report and was not considered by the Judicial Officer. There is no explanation why this submission was ignored. … ... Failure to consider Prof Clancy's submissions was to deny the Plaintiff procedural fairness and cause a miscarriage in the process of fact-finding." [98]
It was also stated that the failure to address this material "demonstrated unwillingness by the Judicial Officer to be impartial and review matters upon which he had already had [sic] a concluded view." [99] A separate ground relating to bias was withdrawn in the course of the hearing: it is assumed that this last unfounded submission must also have been withdrawn, as it properly should have been.
Whilst the inquiry was not a judicial process, the judicial officer was entitled, if not obliged, to establish procedures for dealing with the significant volume of expert evidence which needed to be addressed. Prof Clancy was not a party to the inquiry: he had no right to expect that an unsolicited "submission" would be taken into account. That the submission went from him directly to the inquiry may be inferred from the content of the email which he sent to the solicitor for the applicant on the same day, namely Friday, 28 June 2019 which simply stated: "I have sent submission, Robert". The submission was apparently attached. There is no evidence that it was provided to the judicial officer. Absent a grant of leave to a party to file a document otherwise than in accordance with the judicial officer's directions, there was no unfairness in disregarding the document, if that is what happened, a matter which was not the subject of any evidence in this Court.
If the applicant sought to draw some support from the document, her legal representatives should have sought leave to rely upon it. In truth, it is likely that Prof Clancy thought that his expertise (though his acknowledged speciality was immunology, not genetics) was intended to give weight to the opinions expressed in the submission. It was therefore further evidence and one can understand why there was no attempt to tender it. On 12 July 2019 the applicant's solicitor filed a last submission headed "Addendum" which referred to the submission by Prof Clancy of 27 June 2019 in a footnote.
It may be noted that Dr Cala and Professor Hilton made submissions on 14 June and 18 June respectively, which appear not to have been directly addressed by the judicial officer. They, however, had been given leave to appear before the inquiry.
If the applicant complains that there was procedural unfairness to her in the judicial officer not expressly referring to the reasons of Prof Clancy, relied on by her in a footnote to a late submission, without quotation and without further explanation, then the submission must be rejected.

[16]

(h) failing to consider evidence as to the good character of the plaintiff contained in (i) statements by lay witnesses and (ii) the report of Dr Diamond

A particular of challenge to the Report which was not pressed alleged that there had been a failure to consider the evidence of Dr Diamond in relation to the review of the applicant's convictions. That particular was properly withdrawn: it could not have been drafted by a person who had read the Report. There were at least a dozen paragraphs and numerous footnotes referring expressly to the psychiatric report of Dr Diamond. Further, Ch 2 of the Report, entitled "Overview of the Folbigg Family", contained much material favourable to the applicant which was sourced to Dr Diamond's report, which is referred to in some 50 footnotes.
Dr Diamond's report was also referred to in considering how the diaries should be understood, in Ch 8 dealing with "non-medical evidence". That, perhaps, should not be understood as a form of good character evidence, but one would not normally expect a professional report of a forensic psychiatrist to be considered as character evidence in relation to the subject of the report.
The applicant's written submissions commenced with the statement that "[g]ood character can be a consideration in criminal proceedings." That is true, if an accused person seeks to adduce character evidence. The submission continued: [100] "Therefore, the failure to consider relevant good character evidence from lay witnesses and that evidence as to character from Dr Diamond meant that the Judicial Officer did not properly assess the diary evidence given by the Plaintiff."
The applicant's submissions did not identify the good character evidence, nor did they refer to any submissions made to the inquiry as to good character evidence. The Attorney inferred that the intended reference was to three affidavits which had been provided prior to the hearing, but which were not tendered. No response was made to that suggestion in the applicant's submissions in reply.
It should be noted, however, that the Report contained summaries of the evidence given by members of the family, neighbours and friends, much of which was either neutral or favourable to the applicant. What was sought to be made of this material by the applicant, if anything, was not identified in this Court.
The precise nature of the error relied upon was not specified in the written submissions: however, the ground need not be considered further because the factual propositions underlying it are not established.

[17]

(i) failing to address the applicant's submissions as to the interpretation of her diaries

The content of the submissions which were said not to have been addressed by the judicial officer were not identified in this Court. However, the written submissions said to relate to this ground appeared to have two propositions underlying them. One appeared in the following statement: [101] "The exercise of examining and interpreting the diaries on the assumption that the children had died of natural causes was still necessary as a matter of logic, procedural fairness, and the discharge of the statutory function."
This submission relied upon the proposition discussed above and rejected, that the judicial officer was bound to form a view that there was a reasonable alternative inference available from the diaries which was exculpatory, or neutral, rather than inculpatory, because the premise was an assumption of innocence.
The second proposition appeared in the following passage: [102] "As the interpretation of the Plaintiff's diary entries were [sic] supposedly one of the foci of the Inquiry, it was legally unreasonable to simply allow into evidence those entries that were potentially prejudicial to the Plaintiff without placing them in the broader context of the diary entries as a whole, and having regard to the mental health of the Plaintiff at the time writing."
The factual premise for this complaint was that relevant diary entries, and other evidence as to her state of mind, were excluded from the evidence taken at the inquiry. That premise was not made good. If the proposition was that counsel assisting did not tender all the material which the applicant thought relevant, then it was a matter for the applicant to take up at the hearing and proffer further material. However, as noted by the Attorney in his submissions, a 1992 diary identified by senior counsel for the applicant as relevant, which counsel assisting did not consider relevant, was in fact included in the bundle. [103] The applicant's submissions in reply did not cavil with that proposition.
In Ch 8 of the Report, express reference was made to Ms Folbigg's sworn evidence about the interpretation of the diaries; [104] the submissions were summarised, [105] a complaint that she had been denied the opportunity to provide "context" evidence was specifically addressed, [106] and rejected, with explanation, as "without merit". [107] The judicial officer's construction of the diaries was set out in some detail. [108] That discussion expressly addressed proposed interpretations, suggestions made in her evidence and the various innocent explanations provided for specific phraseology. The factual proposition underlying this ground is without any foundation. The ground need not be entertained further.

[18]

(j) constraining the admission of evidence of context in relation to the diaries

As noted in relation to the previous matter, this was an issue raised before the inquiry and expressly dealt with in the Report under the heading "Findings regarding procedural fairness". [109] The judicial officer found: "448 The 'context' evidence foreshadowed in the application on behalf of Ms Folbigg before the commencement of her evidence comprised how the diaries were generated, the nature of her relationship with her adoptive family and her husband, and 'some of the issues that were going on at the time' of the diary entries. 449 In her submissions Ms Folbigg acknowledged that 'some (but not all) of the context in which the diaries were written' was in material before the Inquiry. She went on to refer at length to the context in which the entries had been written, her belief system, and her emotional or likely emotional state, as summarised above. The submissions were silent as to what other context-related material or evidence Ms Folbigg said should and could have been before the Inquiry. 450 It is plain that the Inquiry received extensive evidence about each area of context raised on her behalf before her evidence and in the written submissions. 451 First, Ms Folbigg gave extensive evidence of context in response to examination by counsel assisting the Inquiry, and cross-examination by counsel for the DPP and counsel for Mr Folbigg. She also gave evidence of context in response to questions by her counsel. Her own evidence covered her belief system, her emotional state at the time of writing the diary entries, and her relationships with her biological and adoptive families, and her husband. 452 Secondly, the Inquiry received into evidence context evidence from the trial in the form of non-medical evidence such as Mr Folbigg's testimony about Ms Folbigg's behaviour and attitudes towards the children and her response to their deaths, and letters between Ms Folbigg and Mr Folbigg which she was asked questions about by her counsel in the Inquiry. The transcript of trial evidence before the jury was tendered in the Inquiry on 12 January 2018. Parts of the trial transcript, and trial exhibits, were relied upon as relevant context evidence in the submissions on behalf of Ms Folbigg. 453 Thirdly, the Inquiry also received into evidence context evidence in the form of the psychiatric assessment report prepared by Dr Diamond at the request of Ms Folbigg's representatives in 2019, as well as reports prepared by other psychiatrists at the time of Ms Folbigg's sentence in 2003. … 455 The suggestion that evidence of context was excluded as a result of the ruling is wrong. Ms Folbigg was provided with reasonable notice of the evidence to be received in the Inquiry and a reasonable opportunity to present her case, including context evidence. She did so both orally in her evidence, and in writing in her submissions."
The written submissions for the applicant did not address these passages in the Report. In the absence of any submission that the statements contained in these paragraphs are inaccurate, the ground need not be entertained further.

[19]

(k) method of redacting documentary evidence

Finally, the applicant maintained her reliance upon two allegations of procedural unfairness, namely the unilateral redaction of documentary evidence without consultation with parties given leave to appear, and "redacting documentary evidence that was relevant to the statutory function of the [judicial officer to inquire]."
In substance, the question of redaction has been addressed in dealing with the matters identified under grounds (c), (d) and (e) above. Any concern that the process of redaction adopted by counsel assisting was procedurally unfair was a matter which should have been raised with the judicial officer in the course of the inquiry. It is the denial of an opportunity to raise an issue which is the gravamen of any complaint of procedural unfairness.
In written submissions filed on behalf of the applicant it was said that the redactions "precluded the Plaintiff making submissions about those matters. This was an egregious denial of procedural fairness." The colourful language does not overcome the absence of substance in the submission. It was then said that relevant documents had not been disclosed to the applicant, a claim unrelated to the ground. In fact it was not submitted that any document was withheld from the applicant: the redactions were all apparent on the face of documents which were tendered. In some circumstances it appears that the applicant took issue with the redactions, sometimes unsuccessfully; in other circumstances she did not. The ground is not an objection to rulings of the judicial officer, nor to the failure of counsel assisting to disclose documents which should have been disclosed. The fact that counsel assisting considered it appropriate to redact passages from particular documents involved no element of procedural unfairness. The applicant was not deprived of any opportunity to raise the completeness of the evidence with the judicial officer and obtain rulings as she or her legal representatives thought appropriate. The ground must be rejected.

[20]

Conclusions

Had any of the plethora of specific complaints had been upheld, but others not, there would have been difficult questions as to the consequence of such rulings. Issues as to materiality of specific errors with respect to the operative opinion would have arisen. As the High Court held in Minister for Immigration and Border Protection v SZMTA [110] "[a] breach is material to a decision only if compliance could realistically have resulted in a different decision." [111] None of this was addressed in submissions. As it is, each of the grounds pressed by the applicant and identified in the further amended list of issues handed up at the hearing, must be rejected.
This was not a case in which the judicial officer's conclusion was at odds with the scientific evidence. The scientific evidence raised a theoretical possibility that there were innocent explanations for the deaths of the two girls. However, the judicial officer was required to consider evidence that, although the CALM2 abnormality in Ms Folbigg and the two girls involved a change in an amino acid in the vicinity of Gly114, their circumstances departed from the reported cases of deaths associated with CALM abnormalities. In particular, (i) the change in the affected amino acid was not the same, (ii) the change in the Folbiggs' genome was hereditary and not de novo, (iii) the girls died at younger ages, (iv) the girls apparently died suddenly when asleep and not during exertion, (v) there was an absence of prior symptomatology, and (vi) Ms Folbigg did not have LQTS or CPVT, being cardiac manifestations commonly associated with it. The girls' deaths were thus "outliers" when compared with those reported in the literature. Further, the boys' genomes provided no common cause. When these matters were weighed with the inculpatory inferences derived from Ms Folbigg's diary entries and her evidence in seeking to present innocent explanations of them, there was an ample basis, consistent with the scientific evidence, for the judicial officer to conclude that there was no reasonable doubt as to Ms Folbigg's guilt.
The Court makes the following orders: 1. Dismiss the further amended summons seeking judicial review of the Report of the judicial officer. 2. Order that the applicant pay the Attorney's costs of the proceedings in this Court.

[21]

Endnotes

Regina v Folbigg [2005] NSWCCA 23; 152 A Crim R 35.
Folbigg v The Queen [2005] HCATrans 657.
Stronger Communities Legislation Amendment (Courts and Civil) Act 2020 (NSW), Sch 1.13[1].
Report of the Inquiry into the convictions of Kathleen Megan Folbigg, July 2019 ("Report"), Annexure A.
Report, Ch 1, par 21.
R v Clark [2003] EWCA Crim 1020; R v Cannings [2004] EWCA Crim 1; see also cases referred to in the Report, Ch 4, pars 244-261.
Craig v State of South Australia (1995) 184 CLR 163, 179; [1995] HCA 58.
AAI Ltd t/as AAMI v Chan [2021] NSWCA 19 at [47] (Leeming JA).
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 at [23]-[31] (Kiefel CJ, Gageler and Keane JJ).
Craig at 180-182.
(1944) 69 CLR 407 at 430, 432; [1944] HCA 42.
(1999) 197 CLR 611; [1999] HCA 21 at [133].
Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360 (Dixon J); [1949] HCA 26.
(2000) 204 CLR 82; [2000] HCA 57.
(1976) 135 CLR 110 at 118; [1976] HCA 24.
See further at [160] below.
[2020] QCA 165; 385 ALR 158 (Sofronoff P, Morrison and Mullins JJA): the application for judicial review was removed into the Court of Appeal - there was no judgment of a single judge.
Holzinger at [13].
Judicial Review Act, s 4; Holzinger at [12].
Holzinger at [40] and [58].
Holzinger at [84], [121].
[2020] FCAFC 180; 384 ALR 474 (Allsop CJ, Flick and Griffiths JJ).
Cf Solomons v District Court (NSW) (2002) 211 CLR 119; [2002] HCA 47 at [23].
Ogawa at [80].
(2005) 224 CLR 125; [2005] HCA 68.
Written submissions filed 24 May 2020, par 6. (The petition was not in evidence before the inquiry, nor in this Court.)
Written submissions at par 20.
Written submissions, par 21.
Trial tcpt, 13/05/2003, p 1364(43)-(44).
Trial tcpt, 13/05/2003, p 1375(27)-(30).
Trial tcpt, 19/05/2003, pp 24-25.
Roy Meadow (ed), ABC of Child Abuse (BMJ Publishing, 3rd ed, 1997) 27-29.
Dominick J DiMaio and Vincent V J DiMaio, Forensic Pathology (CRC Press, 1st ed, 1989) 503.
Stephen T Goudge, Report of the Inquiry into Paediatric Forensic Pathology in Ontario (Ontario Ministry of the Attorney-General, 1 October 2008); R v Cannings [2004] EWCA Crim 1, [177].
R v Folbigg, [2002] NSWSC 1127 at [43] (Wood CJ at CL); R v Folbigg, [2003] NSWCCA 17 at [9].
R v Folbigg, [2003] NSWCCA 17 at [20].
Ibid at [29].
Report, Ch 4, pars 66-76.
Report, Ch 4, pars 77-90.
[2004] EWCA Crim 1.
Regina v Folbigg [2005] NSWCCA 23 at [133]-[156].
Submissions of counsel assisting the Inquiry (17 May 2019) Chapter 6, [141].
Submissions of counsel assisting the Inquiry (17 May 2019) Chapter 6, [172].
Submissions of counsel assisting the Inquiry (17 May 2019) Chapter 6, [173].
Submissions of counsel assisting the Inquiry (17 May 2019) Chapter 6, [174].
Submissions of Ms Folbigg to the Inquiry (7 June 2019) Part A, [199], [206], citing Mraz v R (1955) 93 CLR 493, 515.
Regina v Folbigg [2005] NSWCCA 23, [117], [133]-[144], citing R v Cannings [2004] EWCA Crim 1.
CA Tcpt 16/02/21, p 76(15).
R v Folbigg [2002] NSWSC 1127.
R v Folbigg [2003] NSWCCA 17.
Regina v Folbigg [2005] NSWCCA 23.
Folbigg v R [2007] NSWCCA 371.
Jhodie R Duncan and Roger W Byard eds, SIDS - Sudden Infant and Early Childhood Death: The Past, the Present and the Future (Univ of Adelaide Press, 2018), Ch 2, Duncan and Byard, "Sudden Infant Death Syndrome: An Overview", pp 15-16.
Ibid, p 23.
Report, Ch 5, p 167-168.
Report, Ch 5, p 191.
Report, Ch 5, par 137.
Report, Ch 5, par 317.
Report, Ch 5, par 477.
Report, Ch 5, par 459.
Report, Ch 5, par 490.
Report, Ch 5, par 591.
Report, Ch 5, par 601.
Report, Ch 5, par 604.
Report, Ch 6, par 122.
Summary from joint expert witness statement of Dr Buckley, Professor Edwin Kirk and Dr Colley, Ex Z, p 5.
On an electroencephalogram, the QT interval is the time from the beginning of the ventricular systole to the point where the heart recharges electrically. An extended interval is potentially dangerous.
Crotti L et al, Calmodulin mutations Associated with Recurrent Cardiac Arrest in Infants", Circulation 2013: 127(9): 1009-1017. This 2013 paper was not in evidence but was summarised in the 2019 paper in the next footnote.
Crotti L et al, Calmodulin mutations and life-threatening cardiac arrythmias: insights from the International Calmodulinopathy Registry, Eur Heart J 2019; 40, 2964-75.
Report, Ch 7, par 105.
CA Tcpt, 15/02/2021, p 6(15).
CA Tcpt, p 6(25).
Report of the Inquiry into the Convictions of Timothy Edward Anderson, Paul Shawn Alister and Ross Anthony Dunn (14 May 1985).
Report, Ch 1, pp 30-31.
CA Tcpt, p 6(2).
(1990) 170 CLR 573 at 579; [1990] HCA 56.
CA Tcpt, pp 8(44)-9(5).
Report, Ch 8, par 459.
Report, Ch 9, par 88.
Applicant's written submissions, par 132.
Applicant's written submissions in reply, 4 August 2020 at par 50.
Ibid, par 52.
Report of Robert Clancy, 27 March 2019, par 7.
Crotti L et al, Calmodulin mutations and life-threatening cardiac arrythmias: insights from the International Calmodulinopathy Registry Eur Heart J 2019; 40, 2964-75: Inquiry Ex BU.
Report, Ch 7, par 90.
Report, Ch 7, par 103.
Inquiry Tcpt, 15 April 2019, pp 393(24)-(30); 395(49)-396(1), 454(25)-(30).
Report, Addendum, pars 1, 3.
Report, Addendum, par 7.
Report, Addendum, par 9.
Report, Addendum, par 12.
Report, Addendum, par 19.
Report, Addendum, par 31.
Report, Addendum, par 47: as noted above, IVF refers to idiopathic ventricular fibrillation.
Applicant's written submissions, par 144.
Report, Addendum, par 55.
Report, Addendum, par 54.
Applicant's written submissions, pars 157 and 159.
Applicant's written submissions, par 158.
Applicant's written submissions, par 171.
Applicant's written submissions, par 179.
Applicant's written submissions, par 174.
Inquiry Tcpt, 29/04/19, p 620(19)-(27).
Report, Ch 8, pars 254-264.
Report, Ch 8, pars 366-375 and 409-425.
Report, Ch 8, pars 446-459.
Report, Ch 8, pars 447.
Report, Ch 8, pars 460-494.
Report, Ch 8, pars 446-449.
(2019) 264 CLR 421; [2019] HCA 3.
Ibid at [45] (Bell, Gageler and Keane JJ); see also Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 at [30] (Kiefel CJ, Gageler and Keane JJ). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 March 2021

Parties

Applicant/Plaintiff:

Folbigg

Respondent/Defendant:

Attorney General of New South Wales

Legislation Cited (7)

Sentencing Act 1994(WA)

Stronger Communities Legislation Amendment (Courts and Civil) Act 2020(NSW)

Crimes (Appeal and Review) Act 2001(NSW)

Judicial Review Act 1991(Qld)

Judiciary Act 1903(Cth)

Supreme Court Act 1970(NSW)

Criminal Code Act 1995(Cth)

Cases Cited (31)

HEADNOTE [This headnote is not to be read as part of the judgment] The applicant was convicted and sentenced in 2003 for the manslaughter of her first child, the murder of her next three children, and the infliction of grievous bodily harm upon her second child. In 2018, the applicant petitioned the Governor seeking an inquiry into her convictions, on the basis that there was material which raised a reasonable doubt as to her guilt. The Governor arranged for an inquiry to be conducted by the Hon R O Blanch AM QC, who compiled a report which was delivered to the Governor on 22 July 2019. The primary focus of the inquiry was the investigation of fresh medical evidence, including genetic and immunological evidence which, it was submitted, suggested plausible natural causes of death in each of the children. It was also submitted that this evidence, viewed in conjunction with the discrediting of "Meadow's law" and with a plausible innocent reading of the applicant's diaries, showed a reasonable doubt as to the guilt of the applicant. The inquiry concluded that there was no reasonable doubt as to her guilt. The applicant commenced proceedings seeking judicial review of this determination. The issues on appeal before this Court were whether: (1) the judicial officer had failed to apply the correct legal test; and whether any of the following procedural steps involved a denial of procedural fairness: (2) failing to receive into evidence parts of listening device transcripts of conversations between the applicant and her husband; (3) failing to receive into evidence a report of Prof Goldwater without redactions; (4) failing to receive into evidence a report of Prof Clancy without redactions; (5) redacting the listening device transcripts and the reports of Profs Goldwater and Clancy before receiving them into evidence; (6) failing to reopen the inquiry after receipt of material after the evidence had closed from Profs Vinuesa and Schwartz; (7) failing to consider a submission by Prof Clancy; (8) failing to consider evidence as to the good character of the plaintiff contained in (i) statements by lay witnesses and (ii) the report of Dr Diamond; (9) failing to address the applicant's submissions as to the interpretation of her diaries; (10) constraining the admission of evidence of context in relation to the diaries; and (11) the process for redacting documentary evidence. The Court held: Issue (1) - application of the correct legal test (1) The judicial officer correctly identified that the function of the inquiry was different from that of a judge and jury in a criminal retrial, and was to consider the evidence at the trial and the conduct of the trial, in light of the further evidence and submissions received in the inquiry, in order to determine whether, overall, there was a reasonable doubt as to the applicant's guilt or as to any matter that may have affected the nature or severity of her sentence: [96]-[98]. (2) No error of law was demonstrated by the manner in which the judicial officer assessed the evidence in order to consider whether he was satisfied there was reasonable doubt as to the guilt of the applicant in respect of any of the convictions: [101]-[104]. Shepherd v The Queen (1990) 170 CLR 573 at 579; [1990] HCA 56 applied In holding that none of issues (2)-(11) involved a denial of procedural fairness: Issue (2) - failing to accept listening device transcripts (3) The proceeding before the judicial officer was an inquiry, not a trial, and the rules of evidence were not applicable. The transcript of the conversation between the applicant and her husband revealed him saying how he could have killed the children. The redactions reflected a conclusion as to relevance. The redacted material could only have been relevant to support a possible inference that the children were murdered not by the applicant but by her husband, which was not reasonably available from the transcript as a whole and was not put forward by any party to the inquiry: [106]-[109]. Issues (3) and (4) - failing to accept the tender of the unredacted reports of Profs Goldwater and Clancy (4) The unredacted reports were never tendered and so were not rejected. The applicant had the opportunity to challenge the redactions during the inquiry, or tender further parts of the reports, but did neither. In the absence of evidence that no application to tender the redacted material would have been entertained, there was no denial of procedural fairness: [113]; [114]-[116]. Issue (5) - redacting reports by Profs Goldwater and Clancy prior to accepting their tender (5) This ground was effectively a complaint about the process for tendering evidence adopted by counsel assisting. No such complaint was raised with the judicial officer and it provided no basis for asserting procedural unfairness: [115]; [117]. Issue (6) - failing to reopen the inquiry after receipt of late material from Profs Vinuesa and Schwartz (6) The inquiry was reopened after receiving additional evidence from Prof Vinuesa (which included a letter to her from Prof Schwartz), all of which was considered, as was further material supplied by her and further submissions obtained from both parties. The judicial officer considered whether it was appropriate to have a further oral hearing and determined that it was not. Procedural fairness did not require that there be a further hearing at which witnesses would be recalled: [132]; [134]-[136]. Issue (7) - failing to consider the submission of Prof Clancy (7) The judicial officer was entitled to establish procedures for dealing with the significant volume of expert evidence which needed to be addressed. Prof Clancy was not a party to the inquiry, and therefore had no right to expect that an unsolicited "submission" would be considered: [140]; [141]. (8) Absent a grant of leave to a party to file a document otherwise than in accordance with the judicial officer's directions, there was no unfairness in disregarding the document, if that is what happened: [140]; [143]. Issue (8) - failing to consider evidence as to the good character of the plaintiff contained in (i) statements by lay witnesses and (ii) the report of Dr Diamond (9) The applicant's submissions did not identify the good character evidence, nor did they refer to any submissions made to the inquiry as to good character evidence. However, the Report contained summaries of the evidence given by members of the family, neighbours and friends, much of which was either neutral or favourable to the applicant: [148]. (10) The report of Dr Diamond was extensively considered by the judicial officer; the Report contained references to it in at least a dozen paragraphs and numerous footnotes: [144]; [145]. (11) As the factual propositions underlying this ground were without foundation, this ground was not established: [149]. Issue (9) - failing to address the applicant's submissions as to the interpretation of her diaries (12) Express reference was made in the Report to Ms Folbigg's sworn evidence about the interpretation of the diaries, and a complaint that she had been denied the opportunity to provide "context" evidence was specifically addressed and rejected with reasons given: [153]; [154]. (13) If counsel assisting did not tender all the material which the applicant thought relevant, the applicant could and did, seek and obtain the inclusion of further material. If other material had been rejected, she could have raised the issue at the inquiry and proffered further material. Neither step was taken: [153]. Issue (10) - constraining the admission of evidence of context in relation to the diaries (14) This was an issue raised at the inquiry and expressly dealt with in the Report under the heading "Findings regarding procedural fairness". The written submissions for the applicant did not address these passages in the Report, and in the absence of any submission that they were inaccurate, this ground could not be sustained: [155]; [156]. Issue (11) - the method of redacting documentary evidence (15) Any concern that the process of redaction adopted by counsel assisting was procedurally unfair was a matter which should have been raised with the judicial officer during the course of the inquiry. The applicant was not deprived of any opportunity to raise the completeness of the evidence with the judicial officer and obtain rulings as she or her legal representatives thought appropriate: [158]; [159].

[2005] HCATrans 657

[2020] QCA 165

[1999] HCA 21

(1949) 78 CLR 353

(1976) 135 CLR 110

(1995) 184 CLR 163

(2018) 264 CLR 123

(2005) 224 CLR 125

(2019) 264 CLR 421

(1999) 197 CLR 611

(2000) 204 CLR 82

(1990) 170 CLR 573