Isabella Newton and Alyssa Pugoy Conejar

COURT PROCESS, EVIDENCE & PROOF – MID-TERM ASSIGNMENT T2 2021

COURT PROCESS,
EVIDENCE & PROOF
– MID-TERM
ASSIGNMENT T2
2021
INTERVIEW WITH PROFESSOR CHARLOTTE
HYBEL

What makes a mother good? What happens law don’t apply, the tactics used by the lawyers
when the law has to decide what is good?  are the same tactics that would be used in court. 

There are two competing case theories at play

These are questions that Professor Charlotte
and nowhere is this clearer than the questioning
Hybel considers in her recent publication
of Cunneen SC that discredits Folbigg based on
‘Motherhood on Trial’ (UNSW Press). Sylvia
her behaviour and use of language. In
Roscommon interviews Hybel regarding the
comparison, Morris SC’s questioning on the final
recent inquiry into the conviction of Kathleen
day seeks to regain credibility, by framing her as
Folbigg.
a good mother that has suffered a terrible
Roscommon: Charlotte, you argue in your book
tragedy. 
that the fundamental question for the inquiry
Cunning SC attempts to discredit Folbigg by
was whether her account of her competency as a
comparing her behaviour to a fictional ‘good
“good mother” could be believed over what had
mother.’ The case theory proposed by Cunneen,
been put forward by the prosecution that she
is set out by her on pages 714-715 of the
had killed her four children. Why is this the
transcript1 and she uses ‘propositional, singular
fundamental question?
and simple questions’2 of yes/no, to outline the
Hybel: The question frames the inquiry: Which 1
Transcript of Proceedings, Inquiry into the Convictions
account do the triers of fact believe? Whilst this of Kathleen Megan Folbigg (Forensic Medicine and
Coroner’s Court, Blanch J, 30 April 2019), 714-715.
was an inquiry and the normal rules of evidence 2
Jill Hunter et al, The Trial: Principles, Process and
Evidence (Federation Press, 2nd ed, 2021), 216.
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 Isabella Newton and Alyssa Pugoy Conejar
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theory that Folbigg failed as a mother and when as “Wouldn’t you say that it is very unlikely that
‘stressed to the max’3 would kill. a parent who has, in years not long before this,
lost three children (...)”. The question is rightly
Now this tactic of relying on ‘normative
objected to, if in court likely under section 41 of
assumptions of motherhood’4 which equates a
the Evidence Act11 for being meaningless, in that
mother who isn’t compliant with societal norms
it requires Folbigg to predict how the reasonable
about motherhood with culpability, was
parent would act in light of the loss of their
employed successfully by the prosecution in
children. Cunneen frames Folbigg as not a good
20035 and has been covered extensively by
mother and therefore as not credible.
feminist academics.6 Similar to assumptions
about how a ‘real’ victim of rape behaves, 7 Roscommon: And you describe a second tactic
people typically have preconceived employed by Cunneen to diminish credibility,
understandings of what a good mother should that of attacking how Folbigg uses language in
do.  her diaries?

The tactic diminishes Folbigg’s credibility in that Hybel: Yes, it is quite ironic considering how
her actions are compared against the fictional highly the trial has historically valued oral
‘good mother’. For example, Cunneen attacks evidence over written evidence,12 that so much in
Folbigg’s credibility on page 702, 8 when she asks this inquiry turns on written evidence and
Folbigg that a mother who had lost a child Folbigg’s ability to explain what she wrote.
naturally would know that they had “not failed Folbigg characterised her diary as “a private
as a mother”9 and why then would Folbigg thought”,13 and Cunneen explicitly states on
record guilt in her diary, the implication being page 72114 that she is trying to understand her
that the good mother would not feel guilt. This lexicon. The infamous phrase “she left with a
assumption of who is a good mother is repeated little help”15 leads to an exchange between
on page 745,10 when Cunneen frames a question Folbigg and Cunneen debating what that phrase
3
Above n 1, 715. could mean.16 Cunneen allowed to ask leading
4
Sion Jenkins, ‘Murder, Medicine and Motherhood by
Emma Cunliffe’ (2012) 39(3) Journal of Law and Society,
478, 478.
5
Ibid 480. 8
Above n 1, 702.
6
Emma Cunliffe, Murder Medicine and Motherhood 9
Ibid.
(Oxford: Hart Publishing, 2011), Belinda Morrissey, When 10
Above n 1, 745.
Women Kill: Questions of Agency and Subjectivity 11
Evidence Act 1995 (NSW), s 41.
(Routledge, 1st ed, 2003). 12
Above n 2, 174.
7
Joseph Briggs and Russ Scott, ‘Rape Myths’ and a 13
Above n 1, 704.
‘Reasonable Belief’ of Consent: R v Lazarus [2017] 14
Ibid 721.
NSWCCA 279’ (2020) 27(5) Psychiatry, Psychology and 15
Above n 1, 769.
Law, 750, 765-766. 16
Above n 1, 767-770.
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questions17 employs them throughout this Hybel: Whilst the inquiry is inquisitorial rather
section,18 introducing them with “you were not than adversarial, there are definitely two sides
saying”, “you mean” and “you didn’t” until competing against one another. Not beholden to
finally she has Folbigg admit that she only had a section 32,24 Morris SC presents his own case
‘maternal instinct’ with Laura. Cunneen theory to give credibility to Folbigg by using her
successfully demonstrates how cross- diaries to demonstrate that she conforms to the
examination can be used to suit a prosecutor’s ‘good mother’ ideal. On page 777, 25 he lays out
case theory and how it can be weaponized how Folbigg kept meticulous records on the state
against defendants.  of Caleb’s health. On page 781,26 he draws

For those in the legal profession, this should attention to her future plans for Patrick.

force us to consider the role of cross- Similarly on page 778,27 Morris, whilst

examination with vulnerable witnesses, characterising these diary entries as only

particularly in light of Louise Milligan’s scathing ‘peripherally relevant’,28 he demonstrates that

assessment19 of how lawyers treat them. Whilst their relevance to a fact in issue namely that

Folbigg is a ‘competent witness’, 20 she is a Folbigg kept notes on her children’s health

woman who did not complete high school and is demonstrating her maternal instinct and

asked 39 questions over a twelve-minute period. responsibilities. The subtext is that her

The traditional perception of cross-examination testimony was true, she loved her children and

as the ideal tool for discovering truth is her account is credible, she couldn’t have killed
her children. 
challenged in practice.21 For instance, consider
Kemp’s research into the failing of memory. 22 Ultimately, Morris fails to successfully combat
The phrase “Come now Madam”23 sounds like Cunneen’s argument that Folbigg was guilty. He
something you direct to a naughty child rather fails to attribute credibility to her. I would argue
than a fifty-two-year-old woman and exemplifies
20
Evidence Act 1995 (NSW), s 13.
how this lawyer views vulnerable defendants.  21
Fox v Percy [2003] 214 CLR 118, 31 (Gleeson CJ,
Gummow and Kirby JJ)
Roscommon: How then does Morris SC counter 22
Monds, Lauren et al, ‘The Effects of Perceived Memory
Ability on Memory Conformity for an Event’ (2019) 26(4)
this case theory about Folbigg’s culpability? Psychiatry, Psychology and Law, 580, 588.
23
Above n 1, 740.
24
Evidence Act (1995) NSW, s 32.
25
Transcript of Proceedings, Inquiry into the Convictions
of Kathleen Megan Folbigg (Forensic Medicine and
17
If in a trial, as per Evidence Act 1995 (NSW), s 42. Coroner’s Court, Blanch J, 1 May 2019), 777.
18
Above n 1, 768-770. 26
Ibid, 781.
19
Louise Milligan, Witness (Hachette Australia, 1st ed, 27
Above n 25, 778.
2020). 28
Ibid.
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that this demonstrates how powerful the myth of Professor Hybel’s book Motherhood on Trial is
the good mother is in our society.  available from all reputable bookstores. 

Prof Charlotte Hybel

FRONT COVER ARTWORK CREATED BY CICI

HONG

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 Isabella Newton and Alyssa Pugoy Conejar
COURT PROCESS, EVIDENCE & PROOF – MID-TERM ASSIGNMENT T2 2021

II. VOIR DIRE

NOTE - This hypothetical voir dire occurred for the trial of Jason Courtney during the prosecution’s
cross-examination of the defence witness, the accused’s ex-girlfriend.

Background

Six months prior to the incident, the accused was driving with his ex-girlfriend (known as ‘G’). They
were pulled over by police. The following exchange is transcribed in a witness statement by Constable

A: Good evening...just a random breath test. Have any of you been drinking?
G: No sir. 
A (addresses Jason): Alright, breathe here…
Jason complies silently with the breath test.
Blood alcohol concentration: 0.07.
Another officer asks Jason to step out of the car to conduct a sobriety assessment.
A: Ma’am are you sure he didn’t have anything to drink?
G: No.
A: Look he’ll probably cop a fine and have his licence suspended for a few months as this is
an offence … do you understand?
G: Yes.
A: You’re not in trouble but would you mind telling me why you lied earlier?
G: Sorry. I panicked. I didn’t want him in trouble. He’s not drunk or an irresponsible
person.

Adams (‘A’):

The prosecution has requested that the witness statement and police report be admitted and submits
that the evidence is relevant to assessing G’s credibility, in particular, her motive to lie on behalf of the
accused. 

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 Isabella Newton and Alyssa Pugoy Conejar
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Is the evidence ‘credibility evidence’?

The prosecution has submitted:

(i) The evidence, temporally and substantially, does not relate any of the elements of the three
charges.
(ii) The evidence is not intended to prove the credibility, tendency, or otherwise of the accused.

 In other words, the purpose of the evidence is only relevant because it affects the assessment of G’s
credibility. The evidence is ‘credibility evidence’.29

When is credibility evidence ‘relevant’?

Evidence is not taken to be irrelevant only because it relates only to the credibility of a witness. 30
However, evidence cannot be relevant unless it could relate, at least indirectly, to a fact in issue (‘FII’).
According to Slack,31 credibility evidence is relevant to a FII insofar as it tends to “rationally and
logically weaken confidence”32 in the veracity of the witness.

The threshold test for relevance in Papakosmas,33 is whether there is a logical connection between the
evidence and a FII. The prosecution argued that a reasonable chain of reasoning connects the
evidence with a FII, namely:

(i) The evidence goes to G’s credibility, which would enable the jury to appropriately assess her
oral evidence. 
(ii) Her oral evidence is being tendered as ‘tendency evidence’. 34
(iii) Tendency evidence is intended to establish by inference that the accused’s behaviour earlier
that day establishes his tendency to act or have a particular state of mind similar to the
behaviour alleged at the hotel (FII).

Notably, it is not open for this court to determine what the jury is likely to conclude but rather what is
open for the jury to conclude.35 I am satisfied that the evidence, taken at its highest,36 is relevant.

29
Evidence Act 1995 (NSW), s 101A(1)(a).
30
Ibid, s 55(2)(a).
31
R v Slack (2003) 139 A Crim R 314, [31]-[34].
32
Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474 at 494.
33
Papakosmas v the Queen (1999) 196 CLR 297, [81].
34
Evidence Act 1995 (NSW), s 97(1).
35
R v Shamouil (2006) 66 NSWLR 228, [47]-[65].
36
Adam r the Queen (2001) 207 CLR 96 [22].
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The s 106 exception

Ordinarily, credibility evidence is inadmissible.37 The prosecution argues that the evidence is captured
by the s 106 exception.

To satisfy the exception, the prosecution in cross-examination must have:

(i) put the substance of the evidence to G;38 and

(ii) G must have denied, or did not admit or agree to, the substance of the evidence. 39

Since the evidence tends to prove that G “is biased or has a motive for being untruthful”, 40 it was
unnecessary for the prosecution to ask leave to put the substance of the evidence to G.

The relevant questioning is extracted below:

Prosecutor: What is your current relationship?

G: Our separation was amicable. We’re good friends.

Prosecutor: Would it be appropriate to say that his welfare is of your concern?

G: Yes.

Prosecutor: Is it possible that your account of what happened is affected by that concern?

G: No.

Prosecutor: I put it to you that your account, owing to your concern for his welfare, may be
inaccurate.

G: No.

Prosecutor: Have you on any previous occasion lied or omitted the truth on behalf of the
accused?

G: Never.

Prosecutor: Your Honour, I request the jury leave the room. I have an evidentiary issue that
is required to be discussed in their absence.

37
Evidence Act 1995 (NSW), s 102.
38
Evidence Act 1995 (NSW), s 106(1)(a)(i).
39
Ibid, s 106(2)(a).
40
Ibid.
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I am unsatisfied that the evidence has been substantially put to G. While it has been broadly put to G
that she has a motive to lie based on her relationship with the accused which she has denied, the
particular substance of the evidence has not been put to her. G may have forgotten the incident, or in
her mind, she did not lie or at least not on behalf of the accused.  We do not know as she was not given
adequate opportunity to respond. The prosecution is not finished with cross-examination and may
still put it to the witness. 

Currently, I am unsatisfied the exception has been invoked.

Prejudice to the accused

The defence argues that while irrelevant to the charges, a low-range drink driving offence is likely to
create a prejudicial pre-judgment in the jury as to the accused’s character and therefore, this court
should refuse to admit the evidence41 since the danger of unfair prejudice outweighs its probative
value. I acknowledge that the degree of remoteness between the FII and the evidence limits its
probative value.

While the evidence is likely already captured by the credibility rule, the danger of prejudice
strengthens the reasons not to admit the evidence. 

Conclusion
On the balance of probabilities,42 I am satisfied that the evidence is inadmissible because of the
credibility rule. Further, while the prosecution may still put the substance of the evidence to the
witness, I still believe the evidence is inadmissible for these reasons:

1. The jury is capable of assessing the witness’s credibility and whether they choose to believe her
on the available evidence.
2. The evidence has a substantial degree of remoteness from the facts such that its admission is
likely to detract from the key issues and consequently result in undue waste of time and
resources of the court. 
3. The danger of the prejudice outweighs the limited probative value of the evidence and cannot
be overcome by a jury direction. 

41
Evidence Act 1995 (NSW) s 137.
42
Ibid, s 142(1)(a).
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 Isabella Newton and Alyssa Pugoy Conejar
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BIBLIOGRAPHY
Articles
Joseph Briggs and Russ Scott, ‘Rape Myths’ and a ‘Reasonable Belief’ of Consent: R v Lazarus [2017]
NSWCCA 279’ (2020) 27(5) Psychiatry, Psychology and Law, 750. 
Sion Jenkins, ‘Murder, Medicine and Motherhood by Emma Cunliffe’ (2012) 39(3) Journal of Law
and Society, 478. 
Lauren Monds, et al, ‘The Effects of Perceived Memory Ability on Memory Conformity for an Event’
(2019) 26(4) Psychiatry, Psychology and Law, 580, 588. 

Books
Emma Cunliffe, Murder Medicine and Motherhood (Oxford: Hart Publishing, 2011).
Jill Hunter, et al, The Trial: Principles, Process and Evidence (Federation Press, 2nd ed, 2021).
Belinda Morrissey, When Women Kill: Questions of Agency and Subjectivity (Routledge, 1 st ed,
2003). 
Louise Milligan, Witness (Hachette Australia, 1st ed, 2020). 

Cases, Inquires and Legislation

Adam v the Queen (2001) 207 CLR 96.
Evidence Act 1995 (NSW). 
Papakosmas v the Queen (1999) 196 CLR 297.
R v Shamouil (2006) 66 NSWLR 228.
R v Slack (2003) 139 A Crim R 314.
Transcript of Proceedings, Inquiry into the Convictions of Kathleen Megan Folbigg (Forensic
Medicine and Coroner’s Court, Blanch J, 30 April 2019). 

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 Isabella Newton and Alyssa Pugoy Conejar
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Transcript of Proceedings, Inquiry into the Convictions of Kathleen Megan Folbigg (Forensic
Medicine and Coroner’s Court, Blanch J, 1 May 2019).

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