Kathleen Folbigg had her convictions for killing her four children quashed by the NSW Court of Criminal Appeal in 2023. She had been found guilty of causing the deaths in the Hunter region of her babies between 1989 and 1999.

Folbigg maintained her innocence through 20 years of imprisonment and was finally released after a Special Commission of Inquiry run by former chief justice Tom Bathurst found reasonable doubt over her guilt due to the emergence of new medical evidence, leading to a quashing of the convictions by the CCA.

So far so awful: the common law can be assumed to have a view on women whose children die in unusual circumstances: see Lindy Chamberlain and now Kathleen Folbigg.

After the quashing of her conviction Folbigg said:

“The system preferred to blame me rather than accept that sometimes children can and do die suddenly, unexpectedly.

I hoped and prayed that one day I would be able to stand here with my name cleared. I am grateful that updated science and genetics has given me answers as to how our children died. However, even in 1999, we had legal answers to prove my innocence. They were ignored and dismissed.”

What is to be done after such an appalling miscarriage of justice?

Our legal system knows only of monetary compensation, but we appear not to have any coherent scheme for the moments when these disasters arrive, and they arrive with monotonous frequency – sometimes with more sinister involvement from the agents of the State than the mere brushing aside of scientific evidence in Folbigg’s case.

See for example the brutal beating handed out to Ray Mickelberg by Don Hancock (the Silver Fox), head of the WA CID with a view to obtaining a confession in the Perth Mint swindle, or the salting in the victims’ garden of cartridge casings from a rifle belonging to Mr Thomas by NZ police with a view to his conviction for murder.

Thomas was at least decently compensated by the NZ government in the 1980s when the truth emerged. The two surviving Mickelberg brothers were offered a paltry $500,000 each in 2008 for respectively six and eight years in chokey.

Meanwhile, back in present day NSW, Premier Minns announced an ex gratia payment of $2 million for Ms Folbigg, saying that that was all that the State could afford. He explained:

“This was the most amount of money that we believed we could allocate to this circumstance and this situation without pulling it away from other important programs. It’s the taxpayers of New South Wales’s money and it doesn’t come from a magic pot.”

This is the moment to note the difference between an ex gratia payment and “compensation” calculated by a court according to accepted principles of tort law.

As the South Australian Court of Appeal put it in Hegarty v Keogh [2023] SASCA 30 at [225], in response to the lawyer appellant’s claim that he and the respondent had agreed that fees should be paid out of any compensation the respondent received after the appellant got him out:

“The respondent did not receive any ‘compensation’ from anyone. He received an ex gratia payment from the State Government. The evidence shows that this was made on the basis of an express denial by the State of any liability for any entitlement of the respondent to compensation. The respondent’s payment was not made ex debito justitiae but ‘out of grace’. That is the sine qua non of an ex gratia payment, which avoids any implication that there has been any admission of liability upon which an entitlement to the payment of compensation might be based.”

 Premier Minns has at least not made acceptance of the paltry ex gratia conditional on a full and final acceptance clause, as was the case with the Mickelbergs, or the rather murkier Keogh case ($2.6 million ex gratia), in which he did 19.5 years of porridge but finally had his conviction overturned because the then South Australian pathologist, Dr Colin Mannock, had muddied the waters at trial with his obsession over the “brides in the baths” cases.

The NSW Premier said Ms Folbigg and her lawyers were free to pursue legal action if they wanted to seek further compensation.

Now well through her 50s and recovering from two decades in The Big House, it’s questionable that Ms Folbigg, or anyone, would have the endurance, let alone the money, to take on the might of the State, the one which has no more money for an ex gratia payment, but would spend a motza to defeat any litigious approach from Folbigg.

Litigation would involve establishing wrongful imprisonment or malicious prosecution, both presenting extremely high and likely impossible hurdles.

People involved in Folbigg’s case have spoken up. Professor Emma Cunliffe, an early proponent of Folbigg’s scientific case and now at British Columbia Law School, compared other Australian cases as showing that the amount offered to Ms Folbigg is inadequate.

“David Eastman … received something in the order of $7 million for his 19 years in custody, Lindy Chamberlain received $1.3 million for three years in custody, and, of course, that is 30 years ago now.

I would suggest something more in the order of $8-to-10 million would be in the reasonable range.”

The real issue is of course, not just the inadequacy of the quantum, but the lack of a systematic and transparent system for allocating compensation for occasions of seriously monstrous State behaviour.

To that end, Upper Hunter State MP Dave Layzell has backed calls for an inquiry into how the NSW government arrived at its decision:

“To allow everyone to have some transparency in this government and their decision, that is really important.

What she has been through, the trauma of losing her children, the trauma of going through the court system, the trauma of being in jail over that time.”

NSW has in fact produced a written screed on how ex gratia payments will work:

Treasury Circular 22-01 being the latest iteration.

After a heading: Ministers have a statutory power under the Government Sector Finance Act 2018 to make act of grace payments, the circular trumpets:

Circumstances for Statutory Act of Grace Payments  

Statutory Act of Grace Payments must be made using money that is lawfully available.

It is for the Minister, or Minister’s delegate, to determine whether the particular circumstances before them are “special circumstances” which warrant the making of a Statutory Act of Grace Payment, having regard to the legal test for “special circumstances.”

The circumstances in which a Minister, or Minister’s delegate, may be warranted in finding that “special circumstances” exist may include where:

1. 1. • a person, or persons, have suffered financial or other detriment as a result of the workings of government, or
      • a person, or persons, have suffered financial or other detriment as a result of significant natural, health, or other disasters requiring an emergency government response; and
      • the State has no present legal obligation to compensate the person or persons for that detriment, but it is nonetheless morally justifiable for the State to make a payment in the circumstances.

The above matters are set out for the purposes of guidance only and are not an exhaustive list.

Try your luck with claiming on a “special circumstance” resulting from “the workings of government”, with no machinery provided for calculating quantum, no detail as to what workings of government might mean.

This is merely a fig leaf to provide for the lawful distribution of public moneys. It does not provide for a systematic machinery addressing compensation for injury inflicted by the operation of the criminal law.

It cannot be beyond the wit of governments to develop a compensation board, perhaps staffed by retired judges, armed with parameters of comparison across Australasian jurisdictions and a table of factors such as how complicit the State was in causing the injury (ranging from falsifying evidence to merely deflecting the use of scientific materials at trial) to allow for transparent compensation recommendations to be made on a basis sounder than the current length of the Treasurer’s foot.