Folbigg Against the Queen (of Proof): 'confessions' from the Supreme Court

This article critically reviews the reception and treatment of the diary evidence in the case against Kathleen Folbigg. It explains why the diary evidence was always of limited probative value, and how the manner in which it was presented by prosecutors and treated by judges - as an admission of guilt - was biased in ways that made the trial and many appeals substantially unfair. Through detailed examination of judicial representations of the diary evidence we can observe how many members of the Supreme Court of New South Wales were apparently unable to recognise fundamental problems with the ways the diary evidence was interpreted, represented and irrationally combined with 'other' evidence. The article explains why the case against Folbigg was misunderstood from the very beginning and was always much weaker than suggested by prosecutors and judges. In the process it problematises recourse to 'fresh' evidence, conventional explanations for wrongful convictions, and opens the epistemic competence of our legal institutions to question.