In 2023 Kathleen Folbigg was pardoned and released after 20 years of wrongful imprisonment; soon after, her convictions were quashed by the NSW Court of Criminal Appeal. There remain two further actions before this sorry saga can be declared closed: (a) the awarding of proper compensation and (b) a full inquiry, best done by a Royal Commission, into what really went wrong. Folbigg’s legal team is pursuing compensation. On what has been made public so far, there is little likelihood of a full inquiry and so yet again the criminal justice system will not learn from its mistakes.
In regard to compensation, the serious harm done to innocent people held in prison for many years is not widely appreciated. These harms are now well-documented and include damage to the exoneree’s mental and physical health and family relationships as well as harm from stigmatisation. The last interferes in matters such as obtaining employment and housing and thereby fully re-entering society. Adding to stigmatisation is the fact that criminal records may not be automatically expunged, thus creating further problems.
In 2004, British forensic psychiatrist, Dr Adrian Grounds, reported his detailed assessments of 18 wrongfully convicted men whom he had evaluated over 10 years. As part of his assessments, he interviewed wives, other family members and friends of the released men. Dr Grounds was clearly surprised at his findings (“wholly unexpected” were his words) as he had not anticipated the degree of harm he observed.
Of the 18 men he assessed, 15 had been wrongly convicted of murder and 10 had served more than 10 years in prison. Four of the men were part of the “Birmingham Six” and one was part of the “Guildford Four”, two instances of wrongful convictions that shocked the British public and led to the formation in 1997 of the first Criminal Cases Review Commission. In summary, Grounds found 14 men were suffering from the recognised condition of “enduring personality change following catastrophic experiences”; 12 had PTSD; most had mood and anxiety disorders; and most experienced serious psychological and social adjustment difficulties upon release, particularly apparent as they sought to be re-integrated with their families. Most worrying of all was Grounds’ anticipation that the psychological damage was probably irreversible.
The features of enduring personality change that he described included mistrust of the world, social withdrawal, feelings of emptiness or hopelessness, and persistent feelings of threat and of estrangement. Of those with PTSD, common symptoms included nightmares of assault in prison, panic attacks on hearing a police siren, and being constantly on edge. Most of the 18 men reported difficulty sleeping, moodiness, and being difficult to live with, as well as chronic feelings of bitterness and unresolved feelings of loss. They were acutely aware of major events they had missed such as the funerals of parents and family weddings and felt that a significant part of their lives had been taken from them.
In his paper, Grounds drew attention to these totally unprepared people being suddenly released when their convictions were quashed. He also emphasised the difficulties they encountered in coping with the altered world they found and in the task of re-socialising. Many had, through their conviction, previously achieved (unwanted) notoriety and this, too, hindered their re-entry to their local communities.
Grounds also reported extensively on his interviews with family members. They remarked on the major change in personality of their relative and as a consequence successful re-establishment of a happy family life was infrequent. Family members described the stigmatisation and ostracism they experienced while their relative was in prison as well as the emotional trauma of regular visits to the prison. The emotional trauma was reciprocally perceived by the imprisoned who sometimes chose to reject these visits because they found them too distressing.
Recent research has revealed an additional consequence of wrongful convictions: viz. a negative impact on life expectancy. A 2023 US study, using data drawn from the National Registry of Exonerations and from national life expectancy data, concluded that life expectancy for wrongfully convicted persons was reduced by an average of 18 years. The authors, aware that the incarceration of guilty persons also reduced life expectancy, estimated that the wrongfully convicted person on average lost an additional five years of life.
Other recent research reinforces and extends the impact of Dr Grounds’ observations. Much of this research is from Canada. A study by Esti Azizi published in 2021 focused on the factors within prisons that adversely affected the well-being of innocent convicted persons. A complex story emerged of risks of physical harm and strategies adopted by custodians to minimise that harm, as well as the risk of psychological harm that flowed from one of those strategies; viz. segregation or isolation. Additional problems experienced by these prisoners were obstacles to communication with their lawyers and obstacles to visits from family. While good behaviour can lead to earlier parole, this path is not open to those wrongly convicted as access to parole generally requires admission of guilt.
For prison authorities, a serious matter was where should certain prisoners be housed, especially those convicted of crimes against children. For their own protection, these prisoners were often segregated from the main prison population and hence suffered additionally from the absence of daily social interactions. Segregation or isolation can be associated with visual or auditory hallucinations, memory loss and problems with concentration. Azizi declared that “the prison environment is the perfect breeding ground for mental illness, particularly for the wrongfully convicted”; unsurprisingly, depression and attempted suicide are common occurrences.
While these harms are now well-documented, wrongfully convicted people infrequently receive compensation in Australia, despite our obligation as a signatory to the 1980 International Covenant on Civil and Political Rights. Article 14(6) of the ICCPR provides: “When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.” However, in becoming a signatory, Australia recorded the following reservation; viz. “provision of compensation for miscarriage of justice in the circumstances contemplated in paragraph 6 of article 14 may be by administrative procedures rather than pursuant to specific legal provision”. In the years since, these “administrative procedures” have never been defined and so (with the exception of the ACT) Australian exonerees continue to depend for compensation on an arbitrary mechanism of ex-gratia payments.
As well as being arbitrary, this mechanism is unpredictable, opaque, and not open to either provision of reasons nor of a means of appeal. It is claimed that the more highly publicised the wrongful conviction, the more likely that compensation result. Because the awarding of ex-gratia payments requires a complicated application process with uncertain outcomes, many exonerees do not apply.
Given the psychological and physical harms and the loss of liberty, income and status incurred through incarceration, as well as the legal costs involved in pursuit of justice, and range of obstacles that are encountered in re-entry to society, how then should adequate compensation be decided? We suggest that in determining the quantum of compensation, the dominant principle should be to restore the person (as far as is possible) to the status the person enjoyed before the incarceration, in the same manner by which civil claims for personal injury are settled. To achieve such restoration, compensation would need to be paid for non-financial losses (loss of liberty, loss of reputation and loss of family or personal relationships) as well as for financial losses (loss of earnings including future earnings and loss of property or other financial losses).
Previous compensation payments may give some guide at to what Folbigg will receive. For example, in the case of his wrongful conviction for murder in 1995, for which he spent 19 years in prison, David Eastman was offered an ex-gratia payment of $3 million by the ACT Government. He pursued a claim under the Human Rights Act and in 2019 was awarded $7.02 million. In South Australia, Henry Keogh, also imprisoned for 19 years for murder, received an ex-gratia payment of $2.57 million. Given that Folbigg for many years was declared by the Australian media to be our “worst female serial killer” and “most hated woman”, her compensation is likely to be much bigger. In addition, her reparation and restitution would be enhanced by a public apology and a declaration of innocence, gestures that if made might save the NSW Government money.
Kerry Breen AO is a retired physician whose career spanned roles in clinical medicine, medical ethics, regulation of the medical profession and the health of doctors. His long-term interest in medical ethics is reflected in his 2018 publication, Memoir of an Accidental Ethicist.
Stephen Cordner AM is emeritus professor of forensic medicine at Monash University and was the founding director of the Victorian Institute of Forensic Medicine. He is co-author with Kerry Breen of Wrongful Convictions in Australia: Addressing issues in the criminal justice system (2023).