The following lecture notes relate to a presentation give to ‘the floor’ of the Sir Owen Dixon Chambers by Dr Robert Cavanagh.
The presentation used the case of Kathleen Folbigg as a case example to examine the limitations of the criminal appeal process in Australia as it relates to victims of injustice and to propose an alternative approach – creating a Criminal Case Review Commission.
A judicial enquiry into the conviction of Kathleen Folbigg was held in August 2018. The audio recordings for most of the hearings located below.
The most important requirement in all criminal trials is that the onus of establishing guilt is to the standard of beyond reasonable doubt. This standard of proof stays immovably with the prosecution throughout a trial. In Kathleen Folbigg’s case an essential element that needed to be proved beyond reasonable doubt was that she intended to kill or cause grievous bodily harm to her children.
The prosecution said that she smothered them, but failed to prove this was the case.
Mark Basa has been at the Villawood Detention Centre for several years. Without warning and in the middle of the night, he was recently taken from Villawood to Perth where he stayed for a number of weeks. Then, again in the middle of the night and without warning, he was taken in chains to Christmas Island.
In colonial times the emphasis was on controlling convicts, eliminating bushrangers, and expropriating Aboriginal land by force frequently involving murder. These activities paid little, if any, attention to due legal processes or fundamental legal rights.
60 Minutes presents the scientific data and opinion that proves there are real medical explanations for the death of Kathleen’s children. Kathleen’s conviction can’t possibly be beyond reasonable doubt.
Kathleen Folbigg’s legal team has launched a request for a coronial inquest into the deaths of her children.
An inquest should identify the medical evidence that supports the contention that the children died of natural causes.