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[This edited version of the report has been prepared by Dr Robert N Moles]

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Kathleen Folbigg v R [2007] NSWCCA 128
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On 12 December Janet Fife-Yeomans of the Sydney Morning Herald reported that Kathleen Folbigg was fighting for a new trial after it was revealed one of the jurors researched the child killer's history on the Internet. Apparently, the court was told that Folbigg wants her case reopened on the ground that she was denied procedural fairness.

In February last year Folbigg lost her appeal against her convictions in 2003 over the murder of three of her babies between 1991 and 1999, and the manslaughter of another in 1989. However, her 40-year jail term was cut by 10 years. Today the Court of Criminal Appeal heard that on the day the court handed down its decision refusing her appeal against her convictions, her lawyers received an email that revealed the possibility a jury member had researched Folbigg's history on the Internet during the trial.

"That was naturally contrary to express warnings and admonitions by the trial judge, Justice Barr, to the jury," Folbigg's barrister Bret Walker QC said. Apparently, the email was passed on to the Office of the Director of Public Prosecutions and following a subsequent investigation by the Sheriff's Office, Folbigg's lawyers were told "there may be evidence of procedural irregularity". However, Mr Walker said that was all they knew about the matter. This morning he asked the court to order the reopening of Folbigg's case and also for an order that would reveal the contents of the Sheriff's report. However, Folbigg faces the problem that by the time her lawyers applied to the court earlier this year the case may have been officially finalised. The argument this morning turned on whether the official notification that her case was closed was filed correctly with the court on July 5 this year.

Her lawyers had already signalled their intention to seek that the case be reopened but did not officially notify the court until July 31.  Mr Walker said that the court document also had the wrong stamp. It was stamped that it had been received by the Court of Criminal Appeal but it was attached to Folbigg's Supreme Court file. Solicitor-General Michael Sexton QC, for the Crown, said there would be an argument as to whether it was all the one court. He has offered to call one of the clerks from the court registry to explain the procedures.

Source: Janet Fife-Yeomans Murder mum wants new trial
December 12, 2006 12:00

On December 13 Geesche Jacobsen of the Sydney Morning Herald reports that Kathleen Folbigg who was sentenced to 30 years' jail for killing her 4 children, is trying to reopen the appeal against her conviction, saying a juror acted improperly during her trial. It is apparently alleged that the jury member did an internet search on Folbigg's background after the judge had instructed the jury not to. Details emerged in an email from a law student who had been training with Folbigg's Legal Aid solicitor, Peter Krisenthal, at the time of the trial.

The student is reported to have emailed Krisenthal on 17 February last year, the day Folbigg's appeal against her conviction was dismissed. On the fifth day of Folbigg's trial, in 2003, it had been revealed that the student knew one of the jury members, leading to an unsuccessful application by the defence for the jury to be discharged.

In her email, tendered in a court document and reported to have been seen by the Herald, the student says: "… at some later stage after I had left Legal Aid (and I can't remember exactly when) the jury member mentioned to me that during the trial one of the other jurors had researched Kathy's history etc on the internet".

This is reminiscent of the case of Bilal Skaf and another man. In that case a lawyer was told by a member of that jury at a barbecue that two other jurors had inspected the scene where a 16-year-old girl was raped. She reported the matter and a retrial was ordered.

Subsequently, judges were ordered to give more specific directions to juries not to conduct research or experiments.

Folbigg's solicitor, Mr Krisenthal, advised the Director of Public Prosecutions of the allegations after receiving the student's email. He later wrote to the Court of Criminal Appeal to ask if the appeal decision had been formalised.

The court must now consider when the appeal was formalised and the way in which this must be done to be legally valid to decide if Folbigg's case can be reopened. The Crown has conceded the defence may have another legal reason to have the case considered. IT is reported that the case will continue with further evidence next year.

Source: Folbigg out to reopen appeal over net search Geesche Jacobsen December 13, 2006

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