Has she been found Not Guilty?
No. She has been Pardoned, meaning she has received the benefit of the Royal Prerogative of Mercy
The Royal Prerogative of Mercy, relevantly, is as it sounds, a process that leads to mercy given to a person previously convicted of serious crime. It is a discretionary power and not a right. Technically, the prerogative is exercised by the Governor of New South Wales – representing the King of England, on the advice of the Executive Council [Government of NSW] as a matter of common law and is preserved by section 7 of the Australia Act 1986 (Commonwealth), the Australia Act 1986 (United Kingdom), and Part 2A of the Constitution Act (NSW) 1902.
The Attorney General, as the Minister principally concerned with the administration of justice, is the Minister responsible for providing advice to the Governor in Council. There are no restrictions as to the matters the Attorney General may take into account when advising the Governor whether or not to exercise the prerogative.
The exercise of the power is very rarely used.
Can she claim Compensation?
The short answer, is not at this time. Why not?
Because she has not been acquitted, that is, she has not had her convictions for multiple murders [of her children] overturned.
There is momentum behind a push for her convictions to be quashed and in effect, for her to be declared “innocent” of the murder of her children. If her convictions are quashed on the basis that they were in effect “wrong”, she would then be entitled to seek compensation because, she could point to a “miscarriage of justice”.
Clearly, after spending 20 years in prison, any compensation would be very substantial and in the realm of millions of dollars.
Why has she been Pardoned?
The former NSW chief justice Tom Bathurst KC, headed an Inquiry into the evidence surrounding Ms Folbigg’s convictions and concluded that new scientific evidence cast doubt over her guilt.
Mr Bathurst said 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”.
A 2021 scientific report suggested at least two of the babies, Laura and Sarah, died from a rare genetic variant known as CALM2 G114R – believed to be linked to long QT syndrome, a heart-signalling disorder that can cause fast, chaotic heartbeats or arrhythmias.
This genetic mutation was not discovered by medical scientists until years after the deaths and would not have been investigated at the time, the Inquiry was told.
The girls might have carried the fatal genetic mutation, or could have been affected by other conditions, Mr Bathurst found.
Mr Bathurst said he was “unable to accept … the proposition that Ms Folbigg was anything but a caring mother for her children”.
What does this say about the Criminal Justice System in NSW?
The state Attorney General said that the Pardon shows are our criminal justice system is working. Really?
The facts are these:
- Although not formally confirmed [yet], Ms Folbigg was wrongfully convicted
- She has spent the last 20 years of her life in prison.
- Not only was her life “destroyed”, what about her loved ones?
- No amount of money [if she gets any] will compensate for what she has been through
- An appeal to the Court of Criminal Appeal many years ago was rejected
- There have been prior failed attempts to get a Pardon off the ground
- The “science” upon which Mr Bathurst KC relied has been known for many years – it is not new
- Far from getting a pat on the back for the effectiveness of the criminal justice system, from any reasonable perspective, after 20 years, the Pardon demonstrates that our criminal justice system is very fallible
