PASSAGE OF THE DAY: "Mr Morris said in a telephone intercept that was redacted, Mr Folbigg had given “evidence of a potential motive” and method for killing the children. But Justice Paul Brereton said the recording, and the notion that Mr Folbigg could have been the killer, “was never part of the trial, never a real issue”.
Mr Morris said in determining “whether there’s a reasonable doubt about the guilt of the accused” that such evidence “would need to be excluded” by the inquiry and should have been considered. “But it was, it was,” Justice Basten said. “The judicial officer read the material and excluded it. “He said ‘this is a red herring’, turned it over and said ‘I don’t want red herrings’.”
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STORY: "Mr. Folbigg had 'potential motive' as alternative baby killer, lawyer tells court," by reporter Jenny Noyes, published by The Sydney Morning Herald on February 16, 2021.
GIST: "The lawyer for convicted baby killer Kathleen Folbigg has raised the possibility that her husband could have been responsible for the deaths of their four children.
But the argument was slapped down as a “red herring” by Supreme Court Justice John Basten on Tuesday.
Folbigg, 53, is seeking to quash the outcome of the 2019 judicial inquiry by the Honourable Reginald Blanch AM, QC, which reinforced her guilt for the murders of Patrick, Sarah and Laura, and the manslaughter of Caleb, who were all aged between 19 days and 18 months old when they died between 1989 and 1999.
The inquiry, which was launched in 2018 after persistent petitioning from Folbigg’s supporters, found there was no natural explanation for the children’s deaths, and reinforced Folbigg’s guilt.”
Folbigg’s barrister, Jeremy Morris SC, told a Supreme Court appeal hearing before Justices John Basten, Paul Brereton and Mark Leeming on Tuesday that Mr Blanch should have considered evidence that pointed to the possibility that Folbigg’s husband, Craig Folbigg, could have killed the children.
Mr Morris said in a telephone intercept that was redacted, Mr Folbigg had given “evidence of a potential motive” and method for killing the children.
But Justice Paul Brereton said the recording, and the notion that Mr Folbigg could have been the killer, “was never part of the trial, never a real issue”.
Mr Morris said in determining “whether there’s a reasonable doubt about the guilt of the accused” that such evidence “would need to be excluded” by the inquiry and should have been considered.
“But it was, it was,” Justice Basten said. “The judicial officer read the material and excluded it.
“He said ‘this is a red herring’, turned it over and said ‘I don’t want red herrings’.”
Justice Basten told Mr Morris that in any case the hypothesis that Mr Folbigg may have killed his children was “entirely inconsistent” with his case that the medical evidence raised doubts that the children were murdered.
Mr Morris said he did not accept that. “What we say is, look at the motive. If you accept the deaths were caused by smothering, then the question is identity.”
Justice Basten said if that was part of his case, “show me the submission”.
“If I’m wrong, and I’ve lost my track,” he said, lifting the stack of lever-arch folders on the bench, “because there is so much confusion and repetition in it, I am happy to be corrected.”
Stephen Free, the legal representative for the Crown, said no one had “ever suggested” Mr Folbigg was a subject for investigation, and called the notion of him being a reasonable alternative killer “far fetched”.
The content of the phone call in question was “clearly Mr Folbigg describing… what he considered to be a ridiculous theory,” Mr Free said.
If Folbigg wanted the inquiry to look at that evidence, she should have made a submission to expand its scope, he said. “She never did.”
Mr Morris told the court he did not suggest the theory was “the sole point upon which this report should be quashed” but rather “another element which contributes, we submit, to a concern about whether an appropriate reasoning process was undertaken.”
However, a central platform of Folbigg’s appeal case – a claim of apprehended bias – was abandoned on Tuesday afternoon.
Hearings for the appeal have now concluded, and the judgment will be delivered at a later date."
The entire story can be read at:
