FOLBIGG v R

FOLBIGG v R - [2007] NSWCCA 371 - NSWCCA 2007 case summary — Zoe

[17]

The jury irregularities 5 On 1 March 2005, Mr Krisenthal, solicitor of the Legal Aid Commission, who had carriage of the appellant's matter since 2002, wrote to the Director of Public Prosecutions to raise concerns about a possible irregularity in the conduct of the appellant's trial. The matter had been brought to the attention of Mr Krisenthal by Ms Smyth, a solicitor who at the time of the appellant's trial was a law student undertaking her practical legal training. She was assisting Mr Krisenthal in the preparation of some matters in the trial. Ms Smyth emailed Mr Krisenthal on 17 February 2005 stating that one of the jurors, whom Ms Smyth knew, had told her "during the trial one of the jurors had researched Kathy's history etc on the internet". On 2 March 2005, the DPP wrote to the Sheriff. 6 On 20 April 2005, the Sheriff wrote to the Court seeking instructions as to whether investigations should proceed. By letter dated 22 April 2005, the Court directed the Sheriff to carry out investigations relating to the allegations of irregularity in the jury trial of the appellant. 7 On 31 March 2006 the Sheriff provided a report of the investigations. The report concluded that there were two instances of potential irregularity in the conduct of the jury trial. 8 At the hearing of this appeal the parties agreed the facts which were relevant to the determination of the appeal. They were as follows: " Agreed Fact 1 5. During the course of the trial several of the jurors became aware of the fact that the appellant's father had murdered her mother when the appellant was a young child. One particular juror did a general search of the internet under Ms Folbigg's name and found several related sites. It was as a result of this search the juror obtained the information. This juror then told other jurors. Agreed Fact 2 17. Inquiries were made by a juror or jurors concerning the length of time a body remains warm after death. There was discussion between jurors regarding information from a friend of one of the jurors who was a nurse. The effect of the information, which gained some currency amongst jurors, was that a body would go cold after an appreciable period of time." 9 The admissibility of evidence relating to the conduct of a jury and its deliberations has been considered on many occasions (R v K (2003) NSWCCA 406; 59 NSWLR 431; Burrell v R [2007] NSWCCA 65). R v K was concerned with internet searches by some jurors in which they had discovered that the accused, who was on trial for the murder of his first wife, had previously been tried, but acquitted, for the murder of his second wife. After a detailed review of the authorities Wood CJ at CL concluded that the fact of the internet searches and the information which had been gathered by the three jurors who made the search should be received in evidence. His Honour's conclusion was that the evidence should be received: at [54] "Upon balance, I have reached the conclusion that evidence concerning the fact of the internet searches and the nature of the information which had been gathered by the three jurors who had made the search, should be received, by analogy with the cases where evidence has been received to the effect that documents, which were not in evidence in the trial, had found their way to the jury room. In this regard, the information was potentially prejudicial, in so far as it risked inviting an application of tendency and/or coincidence reasoning, or risked raising bad character in circumstances in which that kind of evidence would not have been admissible, and in which no occasion had arisen for the kind of jury instructions which would have been required." 10 I am satisfied that a similar approach is appropriate in the present case and for that reason the agreed facts should be received in evidence.

[18]

Irregularity and miscarriage of justice 11 Section 6(1) of the Criminal Appeal Act requires the court to consider two questions. Firstly, whether on any ground there was a miscarriage of justice. If the answer to that question is in the negative the court will dismiss the appeal. However, if the court is of the opinion that the point or points raised in the appeal might be decided in favour of the appellant it may nevertheless dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred. 12 In MG v R [2007] NSWCCA 57, this Court said: "It is fundamental to our legal system that an accused person is entitled to a fair trial according to law: see Jago v District Court (NSW) (1989) 168 CLR 23 at 56. As Deane J, in Jago, recognised the notion of fairness "which has inspired much of the traditional criminal law of this country defies analytical definition." Although relevant general propositions may be formulated and examples from past experience identified, an " essentially intuitive judgment " is involved… 13 In Mraz v The Queen (1955) 93 CLR 493 at 514, Fullagar J said: "[E]very accused person is entitled to a trial in which the relevant law is correctly explained to the jury and the rules of procedure and evidence are strictly followed. If there is any failure in any of these respects, and the appellant may thereby have lost a chance which was fairly open to him of being acquitted, there is, in the eye of the law, a miscarriage of justice. Justice has miscarried in such cases, because the appellant has not had what the law says that he shall have, and justice is justice according to law." 14 (See also TKWJ v The Queen (2002) 212 CLR 124 at [65] per McHugh J; Nudd v The Queen (2006) 162 A Crim R 301 at [6] per Gleeson CJ). 15 The High Court in Davies v The King (1937) 57 CLR 170, to which Gleeson CJ referred in Nudd at [4], said: "From the beginning, [the English Court of Criminal Appeal] has acted upon no narrow view of the cases covered by its duty to quash a conviction when it thinks that on any ground there was a miscarriage of justice, a duty also imposed upon the Supreme Court of Victoria ... It has consistently regarded that duty as covering not only cases where there is affirmative reason to suppose that the appellant is innocent, but also cases of quite another description. For it will set aside a conviction whenever it appears unjust or unsafe to allow the verdict to stand because some failure has occurred in observing the conditions which, in the court's view, are essential to a satisfactory trial, or because there is some feature of the case raising a substantial possibility that, either in the conclusion itself, or in the manner in which it has been reached, the jury may have been mistaken or misled ." (at 180 per Latham CJ, Rich, Dixon, Evatt, McTiernan JJ; emphases added ) 16 If the court concludes that a material irregularity has occurred, it must determine whether there is a significant possibility that the irregularity affected the outcome of the trial (TKWJ v The Queen (2002) 212 CLR 124 at [97] per McHugh J). Not every departure from the relevant laws and procedures for proper conduct of a criminal trial may "prejudice or colour the overall trial so as to affect the verdict" and may not constitute a miscarriage of justice (TKWJ v The Queen (2002) 212 CLR 124 at [67] per McHugh J). 17 In R v Forbes (2005) 160 A Crim R 1 Spigelman CJ (with whom McClellan CJ at CL and Hall J agreed) said at [26]-[30]: [26] The occurrence of an irregularity in a criminal trial, including an irregularity involving the jury, invokes the overriding principle of a fair trial. As Lord Devlin put it in Connelly v Director of Public Prosecutions (UK) [1964] AC 1254 at 1347: [N]early the whole of the English criminal law of procedure and evidence has been made by the exercise of the judges of their powers to see what was fair and just was done between prosecutors and accused. [27] The issue before this Court is, as is usually the case: ... whether something that was done or said in the course of the trial ... resulted in the accused being deprived of a fair trial and led to a miscarriage of justice. ( Dietrich v The Queen (1992) 177 CLR 292 at 300, 64 A Crim R 176 at 179 per Mason CJ and McHugh J, see also Toohey J at 353; 220) [28] The reference to "miscarriage of justice" invokes the traditional formulation found in this State in s 6 of the Criminal Appeal Act 1912 NSW. Clearly not every irregularity can constitute a miscarriage of justice. It is often said that the irregularity must be a "material irregularity" . (See eg R v Minarowska (1995) 83 A Crim R 78 at 87-89) [29] The test for determining the materiality of an irregularity has been variously stated. The test applied in this State is that set out by Gleeson CJ, with whom Lee CJ at CL and Hunt J agreed, in R v Marsland (unreported, Court of Criminal Appeal, NSW, No 60263 of 1990, 17 July 1991) : ... [T]he question we must ask ourselves is whether we can be satisfied that the irregularity has not affected the verdicts, and that the jury would have returned the same verdicts if the irregularity had not occurred. ( emphases added ) 18 The test in Marsland was applied in R v K (2003) 59 NSWLR 431 at [68]-[70] and recently in Qing An v Regina [2007] NSWCCA 53 at [21] per Beazley JA (with whom Hislop J agreed). It requires consideration of the irregularity; the relevance of the irregularity to the issues before the jury; whether the material arising from the irregularity was prejudicial; and the extent of the prejudice (Qing An at [25]). 19 In recent years there have been occasions when jurors have engaged in inappropriate conduct with the potential to compromise the trial. In R v K (2003) 59 NSWLR 431 this Court set aside a conviction after it became apparent that some jurors had accessed the internet and discovered information which was both inadmissible at any trial and prejudicial to the accused (at [75]-[79]). Commenting on the issue in R v Skaf [2004] NSWCCA 37, (2004) 60 NSWLR 86 this Court said "there must be a new trial unless this Court can be satisfied that the irregularity has not affected the verdict and that the jury would have returned the same verdict if the irregularity had not occurred" (at [242]).

[21]

The death of P 23 At the time P was 4½ months old there was an episode of an apparent life-threatening event ('ALTE'), when Mr Folbigg was awoken in the early hours of the morning by the appellant's scream. He ran into P's bedroom and saw the appellant standing at the end of the cot. He lifted P out of the cot and performed CPR. He noted that P was warm to the touch. Ambulance officers took P to hospital where he was treated for respiratory difficulties. P regained consciousness several hours later. During P's stay in hospital, he had an epileptic-like seizure. Further tests were carried out to ascertain the cause of the apparent life-threatening event. He was subsequently diagnosed with epilepsy and cortical blindness. 24 The appellant had given the doctor, who treated P, a brief history of the events, which had occurred immediately prior to P's respiratory problems at home. She had said that she went into P's room at about 3am to see why he was coughing but did not notice anything wrong and went back to sleep. At about 4.30am, the appellant heard P gasping and saw that he was blue around the lips. She found him listless and floppy but making minimal respiratory efforts and making a high-pitched cry. 25 In the days following this event, the appellant found it difficult to cope with the care of P, as she "would lose her temper a bit", become frustrated, "growl" and was generally in an angry state, according to Mr Folbigg's evidence. As a result, arrangements were made for Mr Folbigg's sister, Mrs Newitt, to help the appellant look after P. 26 On 13 February 1991, Mr Folbigg who was at work received a phone call from the appellant at about 10am. She screamed, "It's happened again." He left his work immediately for home. Mrs Newitt was the first to arrive. She saw P lying on his back in the cot. She tried to pick P up from the cot but was prevented from doing so by the appellant. Mr Folbigg arrived at the same time as the ambulance, which the appellant had called. He, too, found P still lying on his back in the cot and his lips blue. He picked P up from the cot and attempted to perform CPR. The ambulance officers took over and transported P to hospital, where he died shortly thereafter. 27 The doctor attending P at the hospital determined that P had suffered a cardiac arrest, but could not identify the cause. A subsequent post-mortem did not reveal the cause of death.

[23]

The death of L 32 From the time of L's birth, a "corometric monitor" was attached to the baby, especially during her sleeping period, to monitor her vital signs. The information stored was downloaded and conveyed by telephone to Sister Tanner at Westmead Children's Hospital. However, when L was about 2 or 3 months old, the appellant was not using the monitor and recording the necessary information. 33 Thereafter, the appellant's indifference and lack of interest or diligence became more apparent, so much so that Mr Folbigg wrote a letter to Sister Tanner expressing his concerns, including "[the appellant] finds it all tedious and frustrating and would probably rather not use it at all, merely entrusting [L's] survival to fate! You would think that after all she had been through as a mother she of all people would be more diligent with the monitoring". 34 During the two days preceding L's death, the appellant showed disturbing levels of angers and frustration at L. At one point, because L was whinging and moaning, the appellant "lost it" with L, spun her around, knocked her over and screamed at her. 35 On 1 March 1999, as Mr Folbigg was having his breakfast and preparing himself to go to work, L became upset and was not eating her breakfast. The appellant lost her patience with L and the appellant heard her growl at the child. Mr Folbigg complained at the appellant's hysterical behaviour but the appellant told him to "Fuck off" and accused him of spoiling the child. 36 Later that morning at about 8:30am, the appellant rang her husband to apologise for losing her temper and appeared to be in a much better mood. After her morning gym class, the appellant took L to Mr Folbigg's workplace for a visit. They then left at about 11.30am to return home. 37 Close to noon, Mr Folbigg was alerted to an emergency at home and told to go immediately to the hospital. The ambulance had been called to the home and arrived at about 12.14pm. The ambulance officers found the appellant crying and performing CPR on L, who was lying on the breakfast bar. According to one of the ambulance officers, L was warm to the touch but was not breathing and had no pulse. Attempts to resuscitate L were unsuccessful. 38 Following a post-mortem, a mild inflammatory condition of the heart was detected but was dismissed as a cause of death. There was collapse and haemorrhaging of the lungs, consistent with asphyxiation or with other causes. The formal finding was one of undetermined cause. SIDS at 20 months of age was considered to be highly unusual, since most deaths from SIDS occur when the child is between two and five months old.

[24]

The appellant's diaries 39 The Crown case relied, in part, on the contents of the appellant's diaries. It was submitted that the diaries contained virtual admissions of guilt of the deaths of C, P and S and admissions that she realised that she was at risk of causing the death of L. The diary entries record descriptions of her state of mind from time to time, her feelings of tiredness and frustration, her feelings of guilt for having mistreated her children. Examples of relevant extracts include (emphases added): Difficulties with caring for the children "…And I know I'll have help and support this time. When I think I'm going to lose control like last time I'll just hand baby over to someone else…" (18 June 1996) "…But I think losing my temper stage & being frustrated with everything has passed. I now just let things happen and go with the flow. An attitude I should have had with all my children if given the chance I'll have with the next one…" (14 October 1996) "…maybe then he will see when stress of it all is getting to be too much & save me from ever feeling like like I did before, during my dark moods. Hopefully preparing myself will mean the end of my dark moods, or at least the ability to see it coming & say to him or someone hey, help I'm getting overwhelmed here, help me out. That will be the key to his babies survival…" (6 June 1997) "…very depressed and angry 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 and walk away…" (28 January 1998) Admissions "…I think I am more patient with [L]. I take the time to figure what is rong now instead of just snapping my cog … Wouldn't of handled another like [S]. She's saved her life by being different …" (25 October 1997) "…[Craig] has a morbid fear about [L] … well I know theres nothing wrong with her . Nothing out of ordinary any way. Because it was me not them … With [S] all I wanted was her to shut up. And one day she did…" (9 November 1997) "…She's a fairly good natured baby - Thank goodness, it has saved her from the fate of her siblings . I think she was warned…" (31 December 1997) "…Went to my room and left [L] to cry. Was gone probably 5 minutes but it seemed like a lifetime. I feel like the worst mother on earth. Sacred that she'll leave me know. Like [S] did. I know 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 [L]. It can't happen. 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…" (28 January 1998)

[28]

Submissions in the present appeal 43 The appellant submitted that the evidence which was now available to this Court confirmed that the trial was defective in two respects. There had been (i) a departure from the rules of evidence and (ii) "a form of infringement of audi alteram partem". 44 It was submitted that the material procured by the jurors was prejudicial to the appellant and contrary to the requirement that the jury should be confined to evidence properly before them. In the case of the knowledge that the father had killed the appellant's mother, it was submitted that there was a substantial risk that the jury would engage in a chain of impermissible reasoning based on some family trait or an "illegitimate inherited propensity." 45 The appellant submitted that the evidence of a juror speaking to a friend who was a nurse to obtain information bearing upon the length of time an infant's body is likely to remain warm to the touch after death, demonstrated the jurors' preparedness to engage in their own enquiries in defiance of specific directions given by the trial judge. The trial judge had told the jury "not to discuss the case with anybody other than your fellow jurors from now until the trial is over" although "you will be tempted to discuss the matter with your family and friends, but it is important that you do not do so, because anything they may say will not be based on the evidence". 46 It was submitted that the detriment to the appellant from the information obtained by the juror was that it may add to the Crown case of unacceptable or incredible coincidence in that, in each case, the appellant discovered her children shortly after they had stopped breathing. It was submitted that the information was "calculated to enhance rather than cast doubt upon" the Crown case that these events were no mere coincidences. 47 The appellant submitted that the 'audi alteram partem' rule entitles the parties to be heard on the materials subject to forensic presentation before the Court. Particularly in respect of the information about the appellant's father having killed her mother, given the appellant was on trial for the murder of her own children, she was deprived of her right to resist such material ever going to the jury. Likewise, in relation to the information about the cooling of a dead body, the appellant was denied the opportunity to test both its admissibility according to the Evidence Act and the reliability of the information. 48 The appellant submitted that the irregularities under both grounds of appeal constitute "a departure from the basal norms of a fair trial". The relevant policy of the law, although not embodied in legislation at the time of the trial, has since been given statutory expression by the introduction of s 68C of the Jury Act 1977 which commenced on 15 December 2004 and established a statutory offence if jurors undertake their own inquiries to obtain information from persons other than the Court or fellow jurors about the accused or any matters relevant to the trial. 49 Although the Crown acknowledged the irregularities which had occurred it was submitted that there had been no miscarriage of justice. It was submitted that the information, obtained by a juror conducting research on the internet, that the appellant's father had killed her mother was not prejudicial to the appellant. Instead it was submitted that knowledge that her father had killed her mother would tend to engage the jury's sympathy for the difficulties which she obviously suffered during her upbringing. 50 In relation to the information from the nurse it was submitted that the knowledge that bodies remain warm for an appreciable time after death tended to assist the appellant by leaving open the possibility that she found each child and raised the alarm some time after they had stopped breathing. If the information had been that the bodies would remain warm for only a short time it would be more likely that the appellant had caused their deaths at about the same time as she raised the alarm.

[30]

Ground one 52 With respect to the knowledge that the appellant's father killed her mother it is apparent that the juror obtained the information from the internet, at the latest, during the second week of the trial. The jury had been warned at the beginning of the trial against making their own enquires. They had been told by the trial judge on several occasions that they were to confine their considerations to the evidence tendered at the trial. The knowledge gained from the internet preceded the evidence in the trial which occupied 14 hearing days. 53 The occasions on which the trial judge reminded the jurors that they were not to discuss the case with persons other than fellow jurors or be influenced by extraneous materials were Day 2 of week 1 (T137.37-45, 2/4/03), Day 3 of week 1 (T211.46-54, 3/4/03), Day 5 of week 2 (T333.5-17, 8/4/03), Day 10 of week 4 (T664.10-42, 15/4/03), Day 11 of week 4 (T824.1-12, 16/4/03), Day 22 of week 7 (T1292.57-T1293.10, 8/5/03). Typical of those directions were his Honour's remarks on day 11 of the trial on 16 April 2003 when he said: "Will you forgive me if I remind you of that thing I have said to you now on a number of occasions. You now know, having heard a good part of the evidence and a good part of the cross-examination of the Crown witnesses, what issues are likely to arise for your decision and now that you know so much more about the case you are, I hope you appreciate, so much more vulnerable to persuasion if you happen to talk to anybody who is not concerned with this case. You must not discuss the evidence at all, except when you are present in the jury room with all your fellow jurors. So please take that to heart." 54 Although, as in K, a juror obtained information by internet searches, the knowledge gained in the present case was fundamentally different to that obtained in K. In K, the applicant was convicted of the murder of his first wife. The information obtained by the juror related to a charge (of which he was acquitted) that he had murdered his second wife. In the present case, the information related to the criminal history of the appellant's father and not of the appellant. Even if the information had been about the appellant's criminal history, whether this will be significant requires careful consideration. In R v Booth [1983] 1 VR 39 Lush J (with whom Young CJ and Gray J agreed) said at 44: "[T]he mere possession by a juror of knowledge of prior convictions or of bad character which has been acquired from sources outside the trial will not provide ground for quashing a conviction. The relevant authorities are R v Thompson (1961) 46 Cr App R 72 … where the foreman had a list of prior convictions; R v Box … and R v Hood [1968] 1 WLR 773, where the juror's knowledge came from acquaintance with the mother of the prisoner's wife. In R v Hood the ratio decidendi may have been that the evidence was so strong that there was no miscarriage of justice, but it is clear that the Court of Appeal took the view that the conviction was not to be quashed merely by reason of the existence of this knowledge." 55 It was submitted that with the knowledge that the appellant's father had killed her mother the jury may have engaged in impermissible coincidence or tendency reasoning. To my mind the submission should be rejected. Even though the appellant was the child of a person who killed another I do not believe there was any likelihood that a juror would reason that it was more likely that the appellant would kill her own children. The killing of a spouse may tragically occur in circumstances of the break down of a relationship or be occasioned by temporary loss of control accompanied by a violent and fatal act. The circumstances and motive for the killing are likely to be quite different from those which will exist if a mother has killed her own children. There could be no suggestion that the killing of the appellant's mother by her father indicated any tendency in the appellant to kill her own children. In my judgment the knowledge obtained by the juror did not lead to a miscarriage of justice.

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