Kathleen Folbigg has been pardoned over the deaths of her four children, after spending two decades in prison.
She was released from a Grafton jail on Monday after a decision of the New South Wales attorney general, Michael Daley.
Folbigg has always maintained her innocence. She served 20 years of a 25-year sentence after being convicted in 2003 of the murder of three of her children and the manslaughter of a fourth child.
Why has Kathleen Folbigg been released now, after so long?
There have been two inquiries into Folbigg’s convictions since she was first sentenced in May 2003. The most recent was conducted by former chief justice Tom Bathurst.
That inquiry examined evidence after new scientific developments that experts told Bathurst presented reason to believe that three of the children could have died of natural causes.
In the cases of Sarah and Laura Folbigg, there was a reasonable possibility that a genetic mutation, known as CALM2 G114R, led to their deaths.
The council assisting the inquiry, Sophie Callan SC, had earlier said there was “persuasive expert evidence” that one of Folbigg’s sons, Patrick, may have died from an underlying neurogenetic disorder, such as epilepsy.
In relation to the death of a fourth child, Caleb, Bathurst found that “the coincidence and tendency evidence which was central to the [2003] Crown case falls away”.
While he is yet to finalise his report, Bathurst contacted Daley late last week to advise him that he had reached “a firm view that there was reasonable doubt as to the guilt of Ms Folbigg for each of the offences for which she was originally tried”.
Daley then spoke with the crown solicitor before recommending to the governor that Folbigg be pardoned and released.
What happens next?
Bathurst still needs to complete his final report, which Daley on Monday said he believed would take “weeks, not months”.
Within that report, Bathurst could refer the matter to the court of criminal appeal to assess whether the convictions should be quashed.
As it stands, the convictions have not been quashed, as the court of criminal appeal is the only body that can do so. The pardon means Folbigg is not required to serve the remainder of her sentence.
Is Folbigg entitled to compensation?
Daley explained it is up to Folbigg’s legal team to initiate proceedings to claim compensation after Bathurst has finalised his report and if the matter was then referred to the criminal appeals court.
“If that was to happen, it would be open to Ms Folbigg to initiate civil proceedings against the state of NSW for compensation,” Daley said.
“The only other avenue for compensation or the like would be for her to make an application to the government for an ex gratia payment.”
Friend and supporter Peter Yates said he would expect any compensation to be “very, very significant”.
How has Kathleen Folbigg reacted?
Folbigg has not spoken publicly since her release at about 11am Monday, but friends and supporters say she is happy to be out.
She is expected to release a statement in coming days, once she has had a chance to speak with her legal team and loved ones, who plan to address the media on Tuesday morning.
Supporters confirmed Folbigg was expected to spend the night with lifelong friend and advocate Tracy Chapman, who had a room ready and waiting for her.
Chapman said the Folbigg children are “all missed every day”.
“I know the past 20 years have been horrific for Kathleen, not least for the pain and suffering she has had to endure following the loss of her four children,” she said on Monday.
“They were gorgeous children.”
The NSW Greens’ justice spokesperson, Sue Higginson, was jubilant that Folbigg had been released and said it had only happened after years of “influence and agitation”.
“She’s walking, she’s outside, she’s in the sunshine … justice has been done,” she said.
Will there be any legal changes in NSW as a result of this case?
Daley has said he is open to any necessary changes in the state’s judicial system to ensure nothing like this happens again.
Folbigg’s lawyer, Rhanee Rego, said her client hoped her case would see the legal system will “thoroughly investigate sudden infant deaths before seeking to blame parents without good reason to do so”.
She also hoped the case would see the role of science in the law examined by attorneys general across the country.
“This decision highlights the need for Australia to consider seriously implementing an independent body for reviewing miscarriages of justice,” she said.
The Australian Academy of Science acted as an independent scientific adviser to the second inquiry, and its chief executive, Anna-Maria Arabia, said the government needs to consider what mechanisms are required within the law to review cases in light of new scientific advice.
“This case has implications for the justice systems of every Australian state and territory,” Arabia said.
“There is a critical role for independent scientific advice in the justice system, particularly where there is complex and emerging science.”
