Kathleen Folbigg is anxious and confused as to why she remains in prison, her lawyer says, as pressure mounts on the New South Wales attorney general to release her.
Folbigg, who has always maintained her innocence, has spent 20 years of a 25-year sentence in prison since she was convicted in 2003 of murdering three of her children, and the manslaughter of one child.
The final hearing into Folbigg’s convictions last month heard there was enough evidence to suggest her children had died of natural causes.
“Kathleen is anxious and confused as to why she is being left in prison,” her lawyer, Rhanee Rego, said. “It’s also compounding her complex grief and trauma. Jail is a dangerous place, and Kathleen is now an even more high-profile inmate.”
The former NSW chief justice Tom Bathurst KC, who is head of the inquiry, is preparing a report for the governor on whether to exercise mercy.
But pressure is building on the attorney general, Michael Daley, to advise the governor to pardon Folbigg or release her conditionally on parole before publication of the report, as the Greens plan to issue a motion calling for her release.
“Right now, the attorney general has the power to release Kathleen Folbigg,” said the Greens’ justice spokesperson, Sue Higginson, who will put the motion for debate in the upper house on Wednesday.
“The evidence is compelling and the counsel assisting the inquiry drew the conclusions on the evidence and made the submission that on the whole there is reasonable doubt as to Kathleen Folbigg’s guilt, therefore she’s currently being held contrary to law.”
Human rights and criminal law barrister Felicity Graham, who is not involved in Folbigg’s case, told reporters on Wednesday she felt compelled to speak out and write to the attorney general to act on his power to release Folbigg.
“No respected lawyer thinks that the delay in action by the attorney general is justified,” she said.
The inquiry was triggered after doubt was cast over her conviction following the findings that Folbigg and her two daughters – Laura and Sarah – were found to carry a rare genetic variation, known as CALM2-G114R, which affects the calcium-binding calmodulin protein.
The council assisting the inquiry, Sophie Callan SC, said there was “persuasive expert evidence” that one of Folbigg’s sons, Patrick, may have died from an underlying neurogenetic disorder such as epilepsy. But the cause of her son Caleb’s death, who died aged 19 days, remains undetermined.
“At heart of it, we’ve got a woman who has lost her children: not one, not two, but four,” Rego said.
“She’s been ostracised by society and has been labelled our nation’s worst female serial killer. She’s been thrown in jail, with nothing to do but wait until the truth is finally revealed. She’s done that for 20 years.
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“We’ve always known that there was an innocent woman sitting in prison. We are thankful and excited that people are starting to see that now.”
Folbigg’s longtime friend and advocate Tracy Chapman said Australians should be outraged that Folbigg remains in prison.
“I sat in court a month ago and I heard the words reasonable doubt and have hung onto those words, waiting, waiting,” she told reporters. “She should have been let out the day after that was announced.”
The upper house Animal Justice party MP, Emma Hurst, said she would back the Greens motion due to what she called “an enormous miscarriage of justice”.
“A criminal case has to be proved beyond reasonable doubt. In light of new evidence, that simply hasn’t been met,” she said. “No wrongfully convicted person should remain in our prisons. It is imperative that the NSW government seek to release Ms Folbigg as soon as possible.
“This can happen via the inquiry process, but there is significant uncertainty about how soon that can happen, and reports say that Ms Folbigg is not coping in incarceration.”
The independent upper house MP Jeremy Buckingham said his support was dependent on when the report would be released. He called on the attorney general to advise the parliament on the timeline.
“I wouldn’t want parliament to interfere in the judicial process unnecessarily because I think it’s important to retain the separation of powers,” he said.
“If the report is imminent then I think the motion is unnecessary, but if it’s many months away then I’m inclined to support the motion.”
