Kathleen Folbigg should receive the biggest compensation payout in Australian history after being acquitted of killing her four children, according to legal experts who say no other wrongful conviction has caused as much harm.
Folbigg’s legal team confirmed they would seek a payout from the New South Wales government after the state’s court of criminal appeal on Thursday ruled her convictions should be overturned.
Her lawyer Rhanee Rego on Thursday would not put a figure on it but suggested it would be “bigger than any substantial payment that has been made before”.
Folbigg spent two decades behind bars after being convicted in 2003 and ordered to serve a minimum 25-year sentence for the suffocation murders of three of her children and manslaughter of a fourth.
She was granted an unconditional pardon and released from prison in June following an independent inquiry which heard new scientific evidence that indicated her children may have died from natural causes or a genetic mutation.
On Thursday, the appeals court upheld the inquiry’s findings to formally overturn her convictions and clear her name.
Her children – Caleb, Patrick, Sarah and Laura – died between 1989 and 1999 at ages ranging from 19 days to 18 months.
Prof Gary Edmond from the University of NSW’s school of law said Folbigg’s compensation payout “would have to be” the largest ever in Australia.
“What would rival it? People are suing others for millions of dollars for damage to their reputations as we speak,” he said.
“This woman’s been in prison for decades. It’s incommensurable.”
Edmond said Thursday’s court decision was “uncharitable” in that it offered no apology to Folbigg and “no accountability”.
“We need preventive procedural changes and probably the most important one here is that people don’t give expert evidence unless they’re giving demonstrably reliable evidence,” he said.
The largest compensation payout for a wrongful conviction in Australian history was the $7.02m David Eastman received from the ACT government in 2019.
Eastman, a former public servant, spent almost 19 years behind bars for the 1989 shooting murder of federal police assistant commissioner Colin Winchester.
He was found not guilty at a retrial in 2018.
In 2018, Henry Keogh won a $2.5m payout from the South Australian government after spending 21 years in prison for the wrongful conviction of murdering his fiance based on what a court of appeal later found was flawed forensic evidence.
Lindy Chamberlain received $1.3m in compensation after she had her own wrongful murder conviction overturned.
In one of the most publicised cases in Australian history, Chamberlain was convicted of murdering her baby, Azaria, who disappeared from a tent near Uluru in the Northern Territory in 1980. Her husband, Michael, was convicted of helping to cover up the crime.
The Chamberlains had their convictions quashed in 1988 and received their payout in 1992.
Dr Emma Cunliffe, an Australian legal professor who teaches at the University of British Columbia, said the Chamberlains’ payout would be worth about $3m today but Folbigg deserved more.
“As great as the harms to Lindy Chamberlain were, she spent a much shorter period of time in prison and her wrongful conviction was for the death of one child,” Cunliffe said.
“You can’t put a price on it, but [Folbigg’s case] clearly exceeds any other wrongful conviction in Australian history.”
Cunliffe, who published a book about Folbigg and unexplained infant deaths in 2011, said the NSW legal system had been “intransigent” in Folbigg’s case.
“If it hadn’t been for the Australian Academy of Science’s persistence that the system take another look at the scientific evidence, she would still be behind bars,” Cunliffe said.
“It’s important that that be factored in into any compensation payout she receives.”
The NSW attorney general, Michael Daley, said the government would “carefully” consider any compensation requests.
“After all that has happened over the past 20 years, it is impossible not to feel great sympathy for all involved,” he said.
The NSW Greens justice spokesperson, Sue Higginson, said: “The state owes Kath, but it can never give back what it wrongly took from her.”
–With additional reporting by Tamsin Rose
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