Australia is a country that places great emphasis on the rule of law and human rights, and the thresholds for establishing murder and manslaughter are extremely strict. Yet even within such a rigorous judicial system, miscarriages of justice still occur. The case we are introducing today is regarded as the greatest miscarriage of justice in Australian legal history: R v Folbigg [2003] NSWSC 895.

In May 2023, Ms Folbigg was granted a pardon by the Governor of New South Wales and walked free from prison — nearly twenty years after the NSW Supreme Court convicted her of three counts of murder and one count of manslaughter and sentenced her to thirty years’ imprisonment. Some may ask how a person convicted of such serious offences could later be pardoned by the Governor. Before exploring the reasons, let us turn the clock back to 1999.

Four Infants Pronounced Dead

In 1999, Ms Folbigg’s 18-month-old daughter Laura was found unresponsive at home. Ms Folbigg immediately called 000, and an ambulance arrived within nine minutes and transported Laura to hospital. However, during transit Laura stopped breathing and her heart stopped, and she was pronounced dead. Before Laura, Ms Folbigg had already had three other infants pronounced dead from SIDS (Sudden Infant Death Syndrome), and Laura was the fourth.

Charged with Murder

In 2003, the prosecution charged Ms Folbigg with the murder of her four infants on the basis of two main grounds.

1. The then well-known “one-two-three” theory of the eminent English paediatrician Sir Roy Meadow: one SIDS death is a tragedy, two is suspicious, and three is murder unless proven otherwise. At trial, the prosecution also called an American paediatric forensic pathologist who opined that the probability of four children from one family all dying of SIDS was less than one in a hundred million — in other words, virtually impossible.

2. Ms Folbigg’s personal diaries (on which the prosecution relied heavily at trial). The prosecution argued that she had felt frustrated in raising her children, had become extremely stressed, and had lost her temper with each of them while exerting a strong need to control them — and that she therefore had a powerful motive to suffocate her children.

However, none of these four charges (three counts of murder and one count of manslaughter) were supported by substantive scientific evidence, and there was no direct forensic pathological evidence to prove that the four infants had been killed.

At trial, Ms Folbigg maintained that she had not killed her four infants, and defence counsel pointed out that her personal diaries contained no direct admission that she had killed them, and that there was no substantive scientific or forensic pathological evidence linking their deaths to her — and that she should therefore be acquitted.

Even in the absence of substantive, direct scientific evidence, in May 2003 the jury in the NSW Supreme Court found Ms Folbigg guilty of three counts of murder, one count of manslaughter, and one count of grievous bodily harm. The judge sentenced her to forty years’ imprisonment with a non-parole period of thirty years. Although the NSW Court of Criminal Appeal reduced her sentence in 2005, she was still subject to thirty years’ imprisonment with a non-parole period of twenty-five years.

Petition & Reopened Inquiry

By 2015, after Ms Folbigg had served eight years of her sentence, her legal team submitted a formal petition that included a report by Professor Stephen Cordner. In his report, Professor Cordner concluded that all four children had died of natural causes, and that one of the deaths was a textbook case of SIDS. He therefore considered that the forensic pathological conclusion — that the four children had been killed — was wrong.

In 2018, the NSW Attorney General announced an inquiry into Ms Folbigg’s convictions. At the same time, her legal team contacted Dr Carola Garcia de Vinuesa, an immunologist at the Australian National University, to examine the genetic sequences of the four deceased infants. Dr Vinuesa discovered that all four deceased infants had a mutation in a particular gene, and that this mutation was strongly associated with their sudden deaths — providing strong evidence that the four deceased infants had most likely died of natural causes rather than being killed by Ms Folbigg. Regrettably, even with scientific evidence suggesting that the four deaths may not have been caused by Ms Folbigg, both of her judicial reviews were dismissed. It was not until June 2023, when the Governor of NSW granted her an unconditional pardon, that she was finally able to walk out of prison.

Final Thoughts

In Australia, criminal cases are more complex than most people imagine — particularly those involving murder and manslaughter — and it takes the relentless pursuit of the truth by lawyers to safeguard the rights of those involved. In this case, although Ms Folbigg consistently maintained her innocence, the erroneous conclusions reached by a jury at a time when science had its limitations meant she suffered a grave injustice and cast a long shadow over the cause of justice. If you are charged with murder or manslaughter and need professional assistance and advice from a lawyer, please feel free to contact us at NS Legal — our experienced solicitors are here to provide you with prompt and effective legal services.