The legal system justifies broad judicial discretion on the basis that sentencing must account for the unique circumstances of each offence and offender. While discretion can produce inconsistent outcomes, safeguards exist:

• Sentencing legislation and guidelines limit arbitrary decision‑making.

• Appeal rights allow review of excessive or unfair sentences and convictions.

• Judges must provide detailed reasons, enabling scrutiny and accountability.

These mechanisms aim to balance flexibility with fairness.

How Did the Law Balance the Rights of Victims, Offenders and Society?

The Rights of Victims

In murder cases, victims cannot be compensated, but the justice system seeks to uphold their rights by uncovering the truth and holding offenders accountable. This applies regardless of the victim’s age or background.

The Rights of Society

Criminal proceedings must balance the accused’s privacy with society’s interest in transparency. The Folbigg case attracted intense media attention, which compromised her privacy and may have influenced public perceptions of her guilt, particularly through the publication of her diaries and traumatic personal history.

Open justice is essential to maintaining public confidence in the legal system. However, society also played a role in correcting the miscarriage of justice. The petitions signed by scientists and members of the public demonstrated that reconsidering Folbigg’s conviction was in the community’s interest. The Governor’s decision to initiate an inquiry reflected society’s evolving expectations and the importance of incorporating new scientific knowledge.

The Rights of the Accused

Folbigg’s right to a fair trial and presumption of innocence were challenged by:

• intense media scrutiny

• the unusual and tragic nature of four infant deaths in one family

• public speculation influenced by her personal history (including her father’s murder of her mother)

Protective orders were made to reduce prejudicial publicity and safeguard her from extrajudicial punishment.

The principle often attributed to Blackstone: “It is better that ten guilty persons escape than one innocent suffer”, underpins the Australian criminal justice system. The Folbigg case has since been described as “one of the gravest miscarriages of justice in Australia’s history,” illustrating the profound harm caused when this principle is not upheld

Folbigg spent 20 years in prison before her pardon. Without the scientific petitions and subsequent inquiry, she may have served her full sentence, highlighting the importance of both legal and non‑legal mechanisms in correcting wrongful convictions.

Sentencing and Punishment

Initial Sentence (2003)

Following Folbigg’s conviction in 2003, Justice Graham Barr imposed a total sentence of 40 years’ imprisonment with a 30‑year non‑parole period. His sentencing remarks identified several key purposes of sentencing that he considered most relevant:

• Rehabilitation: “Because of the intractability of her condition, the offender’s prospects of rehabilitation are negligible.”

• Denunciation and community condemnation: “The need for the sentences to reflect the outrage of the community calls for… an unusually long non‑parole period.”

• General deterrence: “So does the need generally to deter persons from committing crimes like these, which are so difficult to detect.”

These statements show that denunciation, general deterrence, and community protection were the dominant purposes of sentencing. Rehabilitation was considered irrelevant because Justice Barr believed Folbigg’s prospects were extremely low.

Sentencing Guidelines and Mitigating Factors

Justice Barr also addressed how sentencing guidelines applied:

• “Her offences fell into the worst category of cases, calling for the imposition of the maximum penalty.”

• “The offender’s dysfunctional childhood provides… significant mitigation of her criminality.”

• “She was throughout these events depressed and suffering from a severe personality disorder.”

• “Gaol…will be particularly dangerous for the offender… she will serve her sentences the harder and is entitled to consideration.

Under NSW law, a judge may impose the maximum penalty only if the offence falls within the “worst category of cases.” In Folbigg’s case, the killing of four infants was held to meet this threshold. Justice Barr used the maximum penalty as a starting point, then applied mitigating factors (her mental health, childhood trauma, and vulnerability in custody) to arrive at the final sentence of 40 years.

Sentence on Appeal (2005)

On appeal, the NSW Court of Criminal Appeal reduced Folbigg’s sentence to 30 years’ imprisonment with a 25‑year non‑parole period. Justice Sully identified two key errors in the original sentence:

• The sentence was “so crushingly discouraging as to put at risk any incentive that she might have to apply herself to her rehabilitation.”

• The sentence was “a life sentence by a different name,” warranting appellate intervention

Unlike Justice Barr, Justice Sully placed greater weight on rehabilitation, finding that the original sentence effectively removed any realistic prospect of future reintegration

This contrast illustrates how judicial discretion can produce significantly different outcomes even when judges are applying the same legal principles.

Legal and Non‑Legal Measures

Legal Measures

Appeals

Folbigg pursued three appeals:

• one challenging the decision to hear all four charges in a single trial

• two challenging her conviction and sentence

The appeal system exists to correct errors of law, procedure, or fact. However, all of Folbigg’s appeals, (except the appeal against sentence), failed because they were based on the same assumption that guided the trial: that no genetic or medical explanation existed for the children’s deaths. At that time, scientific knowledge had not advanced enough to identify the rare genetic variants later discovered.

This shows how a central feature of the justice system can also limit its ability to reach accurate outcomes. Courts make decisions using only the evidence available during the proceedings, and when scientific or technological understanding has not yet developed enough to reveal the significance of that evidence, important facts may remain unknown until later advances occur.

Judicial Inquiry

Judicial inquiries allow a judicial officer to investigate potential errors of fact or law in a conviction. They differ from appeals because they require a petition to the Governor or an application to the Supreme Court. The 2019 inquiry upheld Folbigg’s convictions. The 2021 inquiry, prompted by new scientific evidence and a petition from experts, ultimately found that reasonable doubt existed.

Although the second inquiry was effective, it was slow and heavily dependent on external advocacy. In this sense, the process demonstrates the principle that justice delayed can be justice denied, particularly when a person remains incarcerated during the review.

Non‑Legal Measures

Non‑legal measures such as media coverage, documentaries, public advocacy, and scientific commentary all played a major role throughout the Folbigg case.

Positive Impacts

Public engagement was instrumental in Folbigg’s eventual release.

• Scientists conducted extensive research into genetic variants linked to sudden infant death.

• Media programs, including a 2021 60 Minutes episode, brought emerging scientific evidence to public attention.

• Petitions and campaigns mobilised public support and prompted the Governor to initiate the 2021 inquiry.

These actions demonstrate the media’s role in holding institutions accountable and ensuring that new evidence is not ignored.

Negative Impacts

Media coverage also caused significant prejudice:

• Folbigg’s diaries and traumatic family history were widely publicised.

• Sensational reporting undermined her presumption of innocence.

• Public hostility created a “mob mentality” that influenced perceptions long before trial

This dual impact shows that media involvement in criminal cases is a double‑edged sword. While it can expose injustice, it can also compromise fairness. This is why the presumption of innocence is so strongly protected in Australian law and why courts impose strict protocols to shield accused persons from prejudicial publicity.

Application of Rule of Law Principles

Fair and Prompt Trials

In Australia, all people are considered equal before the law, which means both defendants and complainants are entitled to fair and prompt trials. Although equality before the law is often discussed in relation to offenders, it applies equally to victims. In this case, the four deceased children were afforded the same justice processes as any other complainant, reflecting the principle that every person’s right to life is valued equally.

Fair decision‑making strengthens public confidence in the courts. When trials are delayed or conducted unfairly, confidence in the justice system is undermined. Prompt processes are also essential to prevent innocent people from experiencing unnecessary reputational harm or prolonged loss of liberty.

The Folbigg matter demonstrates the consequences of delay. After the 2015 petition, three years passed before the Governor decided in 2018 to order an inquiry, and several more months passed before the inquiry commenced in 2019. A similar delay occurred after the 2021 petition, with a year elapsing before the second inquiry was announced. During these periods, Folbigg remained imprisoned, even though her release might have happened 1–2 years earlier had the Petition been responded to promptly.

Presumption of Innocence

The presumption of innocence is often described as the “golden thread” of the criminal justice system. It requires that every accused person be treated as innocent until proven guilty, and places the burden on the prosecution to prove each element of the offence beyond reasonable doubt.

Several factors can weaken this presumption. Public commentary that implies guilt before trial can influence community attitudes and, in jury trials, may affect jurors’ perceptions. Extraordinary or highly emotive circumstances can also lead people to assume guilt, effectively reversing the burden of proof.

The Folbigg case illustrates both risks. Media coverage before the 2003 trial repeatedly labelled her a “baby killer” and “Australia’s most hated woman.” The media also released information that Folbigg’s father had murdered her mother and phrases ‘like father like daughter’ began to circulate.”

Although this information was inadmissible as evidence, some jurors accessed it online during the trial, compromising the presumption of innocence. This misconduct formed the basis of a 2007 appeal, which was ultimately dismissed.

The unusual nature of four infant deaths also contributed to assumptions of guilt. The prosecution relied on “Meadow’s Law,” which framed multiple unexplained infant deaths as inherently suspicious. This created pressure on the defence to prove innocence rather than requiring the Crown to prove guilt.

People Can Only Be Punished in Accordance with the Law

This principle ensures that punishment can only occur through lawful processes and according to clearly defined rules. A key safeguard is the rules of evidence, which determine what information can be presented to a jury.

The Evidence Act 1995 (NSW) sets strict rules for what evidence may be admitted at trial, including expert opinion evidence. At Folbigg’s trial, forensic pathologists and psychologists gave evidence for both the Crown and the defence, and their opinions were admitted because they were based on specialised knowledge.

Expert evidence is limited by the scientific understanding available at the time. This became significant in relation to Folbigg’s diary entries, which were treated at trial as admissions of guilt. Their meaning was contested, and later psychological evidence suggested that the entries were more likely expressions of grief and distress rather than confessions. Bathurst KC accepted this view in 2023, noting that the entries were:

The rules of evidence also require that highly prejudicial information be excluded. Details about Folbigg’s father murdering her mother were ruled inadmissible because of their potential to unfairly influence the jury. If the Crown had introduced this information, the jury would likely have been discharged and a new trial ordered.

Checks and Balances

Checks and balances operate to prevent abuses of power and to ensure that decisions remain consistent with legal standards and community expectations. Appeals are one of the main ways this safeguard functions because they allow a higher court to review the decisions of a lower court. However, appeals can only consider the evidence that was available at the time of the original proceedings.

In Folbigg’s case, the scientific evidence needed to support a natural cause of death had not yet been discovered, so the appeal process was unable to identify or correct the underlying factual error.

Conclusion

The Folbigg case highlights several important rule of law principles in practice. It demonstrates equality before the law, with justice processes applied consistently to both offenders and victims, including infants. It shows the value of checks and balances, which allow convictions to be revisited when new evidence emerges, even years later. It reinforces the importance of the presumption of innocence and the need for the prosecution to prove guilt beyond reasonable doubt, regardless of how unusual or emotive a case may be. Finally, it illustrates the complex role of media and public advocacy, which can both support and undermine justice for victims, offenders and society.