Folbigg lawyer raises husband as alternative killer16th February 2021
Folbigg’s barrister, Jeremy Morris SC, told an appeal hearing in the NSW Supreme Court on Tuesday that Mr Blanch should have considered evidence that pointed to the possibility that Folbigg’s husband, Craig Folbigg, could have killed the children.
Mr Morris said in a telephone intercept that was redacted, Mr Folbigg had given “evidence of a potential motive” and method for killing the children.
But Justice Paul Brereton said the recording, and the notion that Mr Folbigg could have been the killer, “was never part of the trial, never a real issue”.
Mr Morris said in determining “whether there’s a reasonable doubt about the guilt of the accused” that such evidence “would need to be excluded” by the inquiry and should have been considered.
“But it was, it was,” Justice Basten said. “The judicial officer read the material and excluded it.
“He said ‘this is a red herring’, turned it over and said ‘I don’t want red herrings’.”
Mr Morris said “we are not putting it up as the sole point upon which this report should be quashed” but “as another element which contributes, we submit, to a concern about whether an appropriate reasoning process was undertaken.”
Justice Basten told Mr Morris that in any case the hypothesis that Mr Folbigg may have killed his children was “entirely inconsistent” with his case that the medical evidence raised doubts that the children were murdered.
Mr Morris said he did not accept that. “What we say is, look at the motive. If you accept the deaths were caused by smothering, then the question is identity.”
Justice Basten said if that was part of his case, “show me the submission”.
“If I’m wrong, and I’ve lost my track,” he said, lifting the stack of lever-arch folders on the bench, “because there is so much confusion and repetition in it, I am happy to be corrected.”
The hearing continues.
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Jenny Noyes is a journalist at the Sydney Morning Herald.