Kathleen Folbigg v R [2007] NSWCCA 128

This version of the judgment has been prepared by: Dr Robert N Moles and Bibi Sangha
Underlining where it occurs is for editorial emphasis]

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16 May 2007 Application to re-open appeal allowed

McClellan CJ at CL

The issue before the court is whether it has jurisdiction to reopen Kathleen Folbigg’s appeal which was previously determined by the court. Kathleen Folbigg was tried for 4 counts of murder and 1 count of maliciously inflicting grievous bodily harm with intent. On 21 May 2003 a jury returned verdicts of guilty in respect of 3 counts of murder, 1 count of manslaughter and 1 count of maliciously inflicting grievous bodily harm. On 24 October 2003 Folbigg was sentenced to imprisonment for 40 years with a non-parole period of 30 years.

A notice of appeal against conviction and sentence was filed on 8 July 2004. The appeal was heard in this Court on 26 November 2004 when judgment was reserved. On 17 February 2005 the court delivered judgment. The appeal against conviction was dismissed but the appeal against sentence allowed and Folbigg resentenced to a total period of imprisonment of 30 years with a non-parole period of 25 years.

On 18 February 2005 a solicitor employed by the Legal Aid Commission, who has had the carriage of Folbigg’s matter, became aware of information concerning a possible irregularity in the consideration of the matter by the jury. He informed the Director of Public Prosecutions of the potential problem on 1 March 2005. The matter was then referred to the Office of the Sheriff and an investigation was conducted. The Sheriff prepared a report which was provided to the Supreme Court.

By letter dated 1 May 2006 the Prothonotary of the Supreme Court wrote to the solicitor for Folbigg. In that letter he said: “I am directed to inform you that at this stage there may be evidence of procedural irregularity. I am not at liberty to disclose to you or the Crown the contents of the Sheriff’s report at this stage. The Court appears to be functus in this matter. You may recall that in R v K (2003) 59 NSWLR 431 and R v Skaf (2004) 60 NSWLR 86, the allegations in those trials were raised whilst an appeal was pending. It may be appropriate for your client to make an application under s 474D of the Crimes Act 1900 to further progress the investigation.”

It will be necessary for me to trace the history of the matter in greater detail. However, it was not until 31 July 2006 that an application was made to reopen the appeal. There is evidence before this Court which suggests that the orders of the Court of Criminal Appeal may have been entered on 5 July 2006. Upon the assumption that this occurred the Crown submitted that there is no jurisdiction in this Court to entertain an application to reopen the appeal. It was submitted that Folbigg should be confined to any remedy which may be available pursuant to s 474D of the Crimes Act 1900 (now s 78 Crimes (Appeal and Review) Act 2001 No 120).

Folbigg’s position is that this Court could not find that the order was entered on 5 July and indeed could not be satisfied that it was entered before the application which was made on 31 July 2006. Accordingly, it is submitted that, even if thereafter the order was perfected, this Court has jurisdiction to consider a further ground of appeal (see Regina v Lapa (No 2) (1995) 80 A Crim R 398; R v Reardon (No 2) (2004) 60 NSWLR 454).

Relevant provisions of the Criminal Appeal Rules

The Criminal Appeal rules provide for the determination of appeals and the entry of the orders. Rules 50A to 54 are in the following terms:

50A Determination of appeal or application
An appeal or application for leave to appeal is determined on the making of orders disposing of the appeal or application.

NOTIFYING RESULTS OF APPEAL
51 Notice of determination of appeal etc
The Registrar shall send a notice (Forms Nos XI and XII) of the determination of any appeal, or of any application incidental thereto, to the appellant, if he was not present when the matter was determined, to the proper office of the Court of Trial, to the Director-General of Corrective Services and to the Sheriff, if the appeal is against a conviction involving a sentence of death or is against a sentence of death.

52 Notice of orders or directions by Court
The Registrar shall also notify the proper officer of the Court of Trial of any orders or directions made or given by the Court in relation to such appeal.

53 Records of Court of Trial to be noted
(1) Such proper officer shall thereupon enter the particulars of such notification on the records of the Court of Trial.

(2) Such entry shall be made in conformity with the administration of the Court of Trial on:
(a) the indictment,
(b) the appropriate Court file, or
(c) the appropriate computer record.

54 Depositions etc to be returned
After the final determination of any appeal, or the final refusal of any application for leave to appeal, the Registrar shall, subject to any order made by the Court, return to the officer from whom he received them all depositions, pleadings, inquisitions or other documents relating to such matter.”

The “Proper Officer of the Court of Trial” is defined by r1 to mean “the officer who has the custody of the records of the Court of Trial.” The “Court of Trial” is the trial court from whom the appeal was brought (s 2 of the Criminal Appeal Act 1912). The Court of Trial in the present matter was the Supreme Court. Accordingly, the orders of this Court were perfected when the particulars of a Notification made to the Prothonotary were entered on the records of the Supreme Court. Pursuant to r 53(2) the entry could have been made on the indictment, the appropriate court file, or the appropriate computer record. However, the evidence indicates that the relevant administrative practice of the Supreme Court has been to attach the orders of this Court to the trial indictment. Accordingly, the date on which this occurred is the issue which this Court must presently resolve.

The relevant events

The Prothonotary of the Supreme Court, Mr Riznyczok, is the Registrar of the Common Law Division of the Court to which the criminal list had been assigned. He gave evidence that he received a report from the Sheriff concerning an investigation into an alleged irregularity in the trial of Folbigg. He says that he drew this possible irregularity to the attention of both the Legal Aid Commission and the Director of Public Prosecutions. Apparently the parties were already aware of the issue but the matter was formally brought to their attention by letter from the Prothonotary dated 1 May 2006. I have already referred to the letter written to Folbigg’s solicitor. The allegation was that a member of the jury may have researched the appellant’s personal and family history on the internet during the course of the trial.

On 19 June 2006 Folbigg’s solicitor wrote to the Prothonotary indicating that his client may wish to make an application to reopen the appeal. The solicitor questioned whether the order of the Court of Criminal Appeal had been perfected. He said: “I would request that you enquire as to whether or not the order or judgment of the CCA has been perfected in the Court of Trial in accordance with the rules. I would request that forward (sic) to me a copy of the appropriate record which is said to perfect the order or judgment if that has happened.

Given the consequences of this particular matter I would request that if the order has not been perfected that you do not take any action to perfect the order until you notify myself and further submissions are considered.”

Thereafter the Prothonotary took steps to locate the court file and the indictment and made enquiries as to whether the orders of the Court of Criminal Appeal had been entered. The Prothonotary recognised the importance of the issue and directed the relevant officer, Mr Lacey, to “have somebody inspect the file and indictment to check whether a copy of the CCA result has been filed with either file.” The Prothonotary was told by Mr Lacey: “It’s unlikely we have entered the results. We haven’t had the resources to do that for some time now as we have been focused on getting the appeal books up to date. There have been a number of staff changes and we have a number of office temps who aren’t up to speed yet.”

The Prothonotary said to Mr Lacey: “This is an important issue as it will determine whether Ms Folbigg will need to proceed by way of 474 or whether she can reopen her appeal. Somebody will have to inspect the file. If the orders haven’t entered, then they must not be entered until this is resolved.”

A search was made and it was reported to the Prothonotary that although results had been found for an interlocutory appeal the ultimate appeal “results” had not been found for the “last appeal.”

The Prothonotary took steps to have these findings confirmed. He went himself to the office of the Court of Criminal Appeal Registrar but could not find anything which indicated the entry of the Court of Criminal Appeal orders in the final appeal. He also spoke to another officer, Mr Godfrey, and asked him to check the computer system to determine whether the Court of Criminal Appeal orders had been entered on the record of the trial. The Prothonotary satisfied himself that they had not been entered. The Prothonotary also satisfied himself that no entry had been made on the CourtNet system which was then being used to record details of criminal cases.

Ultimately the Prothonotary came to the conclusion that the orders of the Court of Criminal Appeal had not been entered into the records of the Supreme Court. The Prothonotary wrote to the solicitor for the appellant on 14 July 2006 in the following terms: “…A search of the court file reveals that a copy of the notification from the Court of Criminal Appeal has not been attached to either the indictment or placed in the trial file for Ms Folbigg. I also understand that a notation of the Court of Criminal Appeal’s order has not been made on the Court’s computer system either. At this stage, I am unable to confirm that the particulars of the determination of the Court of Criminal Appeal have been entered on the Supreme Court’s trial file.

On the assumption that the determination has not been entered, no steps have been taken to enter it at this stage. I will cause the particulars to entered (sic) after a suitable period of time should your client not proceed with an application to reopen the appeal, or should your client intend to proceed with a section 474D instead. I will give you notice before I do so, so that you may make any necessary application.” Mr Lacey also gave evidence. In his affidavit he said that he received an email from the Prothonotary on 28 June 2006 asking that he extract the Folbigg trial file and the folder containing Folbigg’s indictment. He said that the Prothonotary asked Mr Lacey to place these documents in the office of the Court of Criminal Appeal Registrar.

Mr Lacey complied with the request and said that in early July he looked through the file and noticed that the trial indictment was still on it. However, there was no notification of the Court of Criminal Appeal orders on the file. He also checked the lever arch folders in which the court kept trial indictments but could not locate a copy of the indictment relating to Folbigg. Sometime in early July 2006, but after he had inspected Folbigg’s file, Mr Lacey directed Mr Byron, who was a clerk in the court registry, to process orders of the Court of Criminal Appeal and ensure they were attached to the relevant trial indictments. There is no evidence that he gave Mr Byron particular instructions in relation to Folbigg’s matter.

Mr Byron also gave evidence. He said that sometime in July 2006 Mr Lacey directed him to print out “Notifications of the Court of Criminal Appeal matters and attach them to the Supreme Court indictment to which they related.” Mr Lacey also advised him to stamp each of the notifications and sign them. Mr Byron was given 5 lever arch folders each of which contained a number of indictments in plastic sleeves. They were collected by calendar year. He was advised to commence with the most recent notifications and proceed backwards. Mr Byron said that some of the folders contained indictments with notifications already stamped, signed and attached, but there were many without notifications attached. Some notifications were held loosely in the back cover of the folder. Some of these were already stamped but were not signed. Others were neither stamped or signed. For some matters a notification had not been printed and accordingly Mr Byron was required to find the notification on the computer system and print it out. He said that he first undertook this task before attaching the notifications to the indictments.

He said: “The practice I followed was to access the sub directory called ‘notifications’ in the computer system for the matter for which I located an indictment in the relevant folder. Once I located the relevant Notification, I then printed the Notification out. At the time I attached the notification to each indictment, I would then stamp it with the stamp I was provided, bearing the date I attached it to the indictment, and sign it. I would then staple it to the indictment. On some occasions I did the process with one indictment from start to finish -- that is I printed, signed, stamped and attached the notification to an indictment in the one episode. On other occasions, I printed a number of notifications, then signed and stamped each one in that group, and then attached them to the relevant indictments. In some instances, there was a delay of several days between the various steps in the process I have described.

I have viewed the folder marked 2003, containing a number of blue indictments. In that folder, there are 25 indictments bearing Notifications stamped ‘5 July 2006’ and signed by me. I stapled each of the Notifications to these indictments. The trial indictment in Folbigg is one of the indictments with the notification attached in that folder. It is the 15th indictment with such notification attached, stamped and signed by me in that folder.”

Mr Byron has no recollection of dealing with Folbigg’s indictment. However, he says of the process which he undertook: “On most occasions, I would attach, stamp and sign the notifications to the indictments at the same time. However, on some occasions there was a delay of several days between the step of printing, signing, stamping and attaching. For example, I may have stamped the notification, but then had to attend to other tasks, or had a day off, and attached the notification to the indictment on another day after that. When I say in some instances there was a delay of several days between various steps, from my estimate, it would not have been any more than about a week from the time the notification was stamped to the time I attached it to the indictment.”

Although Folbigg carries the burden of persuading the court to reopen her appeal it is the Crown which asserts that the application is barred by reason of the perfection of the order. Accordingly, the Crown carries the onus of proving that the order was perfected before the application was made. In my opinion that onus has not been discharged. Although the stamp on the notification of the court’s determination of the application for Folbigg bears the date 5 July 2006, this cannot be the date on which the orders were entered. The evidence of the Prothonotary indicates that the notification had not been attached to the indictment by 14 July. Although Mr Byron said it was usual for him to attach the notification to the indictment within about a week as I have indicated he does not recall processing Folbigg’s indictment. It must be remembered that the file had been placed in the office of the Court of Criminal Appeal Registrar with orders from the Prothonotary that judgment not be entered until the matter was resolved. There is no reason to conclude that his instructions were not carried out with the consequence that the orders would not have been entered until after the application to reopen had been filed. In these circumstances I could not find that the order of the Court of Criminal Appeal was attached to Folbigg’s indictment before she filed her application to reopen the appeal on 31 July 2006.

In these circumstances I am satisfied that this Court has jurisdiction to entertain Folbigg’s application. Although the order has subsequently been perfected this is not a bar to the making of the application. In Lapa Clarke JA said: “For my part there are two considerations which lead me to conclude that, accepting that the power of the court to vary a judgment cannot be enlivened, absent any relevant rule, after the judgment has been perfected it does have power to remedy an oversight where application is made before that has occurred, notwithstanding that the judgment is perfected while the court is considering the matter. The fundamental consideration which should determine whether a court of criminal appeal should reconsider its judgment is whether the failure to do so might lead to a miscarriage of justice. To put it another way, the application should be determined upon the interests of justice, giving full weight to the principle of finality.”

Folbigg also submitted that even if the orders had been perfected this Court has jurisdiction to reopen the appeal. That jurisdiction was said to be founded upon the power of the court to ensure that its intentions, as expressed by the Prothonotary, were given effect to. In the alternative it was submitted that the residual discretion recognised in Lapa and acknowledged in Burrell v R [2007] NSWCCA 79 permits this Court, in the circumstances of the present case, to reopen the appeal.

Although Folbigg acknowledged the significance of the principle of finality, it was submitted that the circumstances of the present case are such that this Court would be careful to ensure that an injustice was not occasioned to the appellant. The possible necessity for an application was identified well before the court’s order was perfected, whatever be the date upon which that occurred. At a time when the prospect of such an application was imminent Folbigg’s solicitor was informed that the order had not been perfected and no further step towards perfection would be taken until Folbigg had an opportunity to finally consider the matter. If, as the Crown submitted, that opportunity was lost it was not occasioned by any fault on the part of the appellant but by a failure within the court whereby the Prothonotary’s directive that the order not be entered was not carried out.

It is unnecessary to resolve these arguments. However, I would be reluctant to accept that where the court has undertaken to a party that it will not take a step which could extinguish that party’s right to seek leave to reopen an appeal without further notice and that undertaking is breached, that party is precluded from seeking relief from this Court. I am satisfied that this Court may proceed to hear the appellant’s substantial application and directions should now be made for the further conduct of the matter.

Simpson J:

I agree with McClellan CJ at CL.

Bell J

I agree with McClellan CJ at CL

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