Chapter 22

Second Chance

When Robert Farquharson’s appeal was heard on 1 June 2009, it made front-page news all over again.

Farquharson’s lawyers told the Victorian Court of Appeal that the guilty verdicts and life sentences should be immediately overturned. Peter Morrissey complained that the Crown had withheld crucial information at the trial.

Greg King, Mr Morrissey claimed, was ‘a violent, drunken bully who hunted with a pack’ and had struck a deal to testify against Farquharson in return for a lesser sentence when he faced criminal charges himself. In exchange for King’s damning evidence, the police had provided him with a letter of support when he faced Geelong Magistrates Court in December.

And because the defence had been unaware of the pending charges, which were heard after Farquharson was found guilty, they had been denied the chance to question King about his character.

Mr Morrissey reminded the hearing that the Crown’s case relied on the question: why would this witness lie?

‘There is a very easy answer to that question,’ Mr Morrissey said. The witness had lied because it had been in his interests.

The defence also launched a stinging attack on the original trial judge, Justice Philip Cummins, and several expert witnesses. They contended that Justice Cummins had failed to properly direct the jury on key pieces of evidence, including the police reconstruction of how the car ploughed into the dam.

Mr Morrissey said that the ‘heart and soul’ of the defence case was the information about the car’s movements, and if Justice Cummins had told the jury the reconstruction tests were ‘hopeless’, it would have been a ‘knock-out punch’ in the defence’s favour.

Throughout the hearing, Robert Farquharson sat silently between two security guards while about twenty of his supporters – including Bob and Bev – listened to the proceedings. The crowd could only view the back of Farquharson’s head through a thick glass window, but the appellant himself stared ahead at the three justices who he hoped would quash his murder convictions.

After a hearing lasting several days, Chief Justice Marilyn Warren and Justices Geoffrey Nettle and Robert Redlich adjourned the case. They would announce their judgment at a later date.

Rob was returned to his cell, hobbling on crutches. Cindy’s father told her his shin had been broken during a fall in prison.

Cindy was now glowing in the second trimester of her pregnancy. Her family were pleased to see her looking happy, busying herself shopping for her new arrival, who she decided wouldn’t be getting hand-me-downs. All her concerns about not being able to care for another child had vanished.

Hezekiah, sensing his mother’s newfound peace, jumped all over her for cuddles and revelled in the new, happier woman who now found time to sing with him, to watch television and play games.

His favourite place was a small memorial garden that Cindy had created in her back yard, looking out towards Barwon Park.

‘Mummy’s special garden,’ he’d tell visitors. Fetching his miniature watering can, he’d pretend to water the assortment of colourful bedding plants and roses his mother had planted among the stone angel statues honouring the three brothers he’d never known.

‘Jai, Tyler and Bailey,’ he said, innocently pointing at the garden.

With the new baby due the first week in October, Cindy was nesting again. During the eighteen-week scan, the parents-to-be again indicated they didn’t want to know the sex of their child, but Cindy was convinced she was having another boy and had picked the name Isaiah, meaning ‘God gives strength’.

Cindy’s instinct proved right. Her baby son was born on 30 October 2009, two weeks late.

‘Do you want to deliver the baby?’ the midwife asked Stephen. Having delivered his other children, he knew the drill.

‘Move over,’ he said confidently. Within seconds his baby son lay on his mother’s stomach.

Cindy’s bonding with Isaiah was instinctive and natural. The calm she had felt towards the end of her pregnancy now swept through her. If grief had prevented her from bonding with Hezekiah, she had no such problem with this baby.

Stephen was awash with relief watching the new mum. The love that poured out of Cindy as she held Isaiah brought tears to both their eyes. With Isaiah in her arms, Cindy felt connected.

This beautiful little boy with his dimples reminded her so much of Bailey. His mother refused to let him go to the nursery, holding him tightly. She couldn’t get enough of this baby. God was right, she thought. She was certainly ready to be a mother again.

In early November, a very different mum brought her newborn baby home and smothered him with love.

This time, Cindy was determined she’d be the one feeding her new son and comforting him if he cried. When Isaiah was just a few weeks old, feeling more confident than she’d done in years, she packed him into the car and went shopping on her own. In her old life, she’d thought nothing of taking babies and toddlers shopping, but with Isaiah it was a huge deal, and she was determined to savour it.

When she arrived home, Stephen was asleep in bed with Hezekiah beside him. Not wishing to disturb the sleeping pair, she snuggled with Isaiah on the couch for his feed. Later, she wrapped him tightly in a blanket and crept with him into Hezekiah’s bed, holding the sleeping infant close.

That night, for the first time since her children died, she slept soundly without the aid of sleeping tablets. She woke the following morning to find her lips and her cheek pressed against the infant’s downy head and Stephen watching them both.

Her connection to this new baby was a bright light in all their lives. Stephen remained grateful for the second chance God had given them, and Zach and Luke too could sense the shift in Cindy since Isaiah’s birth.

‘This year we’re going to have a real family Christmas,’ Cindy announced. Hezekiah was old enough to understand what Santa was all about, and she wanted to make sure this Christmas was special. It would be the first Christmas she’d really felt a part of in five years.

But Cindy wasn’t the only one who was about to be given a second chance that Christmas.

On 17 December, Stephen took a call from Cindy’s mother outside the Victorian Court of Appeal.

‘Rob’s been granted another trial,’ Bev told him breathlessly. ‘His murder convictions have just been overturned. He’s going to apply for bail on Monday – he’ll be free in time for Christmas.’

Stephen put down the phone and turned to Cindy, not knowing how to tell her the news.

Bob and Bev Gambino had made sure they were in court that Thursday for the judgment on their former son-in-law’s appeal. Rob himself didn’t attend, but Bob and Bev listened closely as the three judges unanimously upheld his appeal, overturning his murder convictions and life sentences and ordering a new trial.

Farquharson’s lawyers had eventually appealed on 24 different grounds, and the court upheld five of them. All the successful grounds of appeal related in one way or another to the key witness, Greg King.

Chief Justice Marilyn Warren said part of the difficulty in the case was that King had given three statements to police, each progressively more damning in what he claimed Farquharson had said outside the fish-and-chip shop. By his final statement, what began as a general threat to pay Cindy back ‘big time’ had become a direct threat to kill the children in an accident involving a dam on Father’s Day. This ‘extreme’ allegation was the version the Crown had relied upon when King gave evidence in the trial.

But in his secretly taped conversations with Farquharson, which took place before he made his final statement to police, King hadn’t raised the specific threat contained in the later ‘extreme’ allegation. The appeal court ruled that the trial judge should have pointed this out to the jury and should have instructed them more fully on the differences between the statements. Unfortunately, they ruled, ‘His Honour did not direct the jury that they had to be satisfied that the terms of the fish-and-chip shop conversation…were the extreme allegation version which the Crown alleged them to be.’

The justices also said the Crown should have disclosed the fact that King was facing criminal charges himself. The prosecution had observed that the matter wasn’t settled at the time of the trial. Although Detective Sergeant Clanchy had been told on 28 May 2007 that King was under investigation over a pub brawl, it was not clear if charges would be laid, let alone that they would be deferred until after he’d given his evidence. The Crown claimed the information about King’s situation was not ‘sufficiently relevant an issue’ in the Farquharson case and that he’d made all his statements before the incident took place.

But the defence pointed out that the information could have been used to challenge King’s credibility as a witness. Faced with the possibility of criminal charges, he had a greater incentive to maintain the ‘extreme’ version of the fish-and-chip shop conversation in the hope of attracting a more lenient sentence. Mr Morrissey insisted that the Crown’s failure to disclose this information ‘illicitly bolstered’ King’s credit as a witness and put the defence at a disadvantage.

On this issue, the court was satisfied that error had been shown. Chief Justice Warren said the information was ‘rationally probative and should have been disclosed’. But she added that the information ‘might have been of limited value’, because King had made his final statement before he committed any offence and had maintained the same position ever since.

The appeal court rejected the other arguments for appeal. It said that the trial judge had been right in his decision to allow Dr Naughton’s opinions about cough syncope and the police evidence relating to the steering movements of the car. On this and other matters, the judge had summarised the position fairly in his directions to the jury.

Mr Morrissey had urged the court to acquit his client of the charges because the verdicts were ‘unsafe and unsatisfactory’. But the appeal justices rejected this too. They ruled, ‘The criticisms advanced of the Crown case do not individually or collectively preclude the conclusion that the evidence was sufficient to establish the applicant’s guilt beyond reasonable doubt…That is to say it was open to a jury acting reasonably to be satisfied of guilt to the requisite standard.’ There was sufficient evidence to justify a new trial.

After handing down the judgment, Chief Justice Warren took the unusual step of addressing the courtroom. ‘The issues in this case are complex and emotive and readily capable of being misunderstood,’ she said. ‘Since we have now ordered that the appellant be retried, it is vital that those problems not be exacerbated by inappropriate public discussion or publication, including expressions of personal opinions in the case.’

Robert Farquharson would stand trial again next year, but he was innocent until proven guilty. He would appear before the Supreme Court again in two days time, when he’d be able to apply for bail and leave the precinct a free man. He’d be home to spend Christmas with his family.

Like Cindy, Rob had been given a second chance. But it wasn’t the outcome she’d imagined. When Stephen told her what had happened, she sat rocking in the chair.

‘What am I going to do now?’ she wailed, handing her baby back to his father. Her fleeting Christmas joy had evaporated. There would now be a whole new trial where she’d have to relive her nightmare again.

Cindy had assumed that Rob’s appeal would go one of three ways: it would be dismissed and he’d return to jail without parole; his sentence might be modified to include a parole term, allowing him some hope of future release; or the appeal court would acknowledge that mistakes had been made and overturn the jury’s decisions, leaving him free to get on with the rest of his life. Whatever the outcome, it would be the end for everyone.

But the unforeseen prospect of a second lengthy trial now hung over Cindy’s Christmas like a bough of dead holly, casting a shadow over the happiness she’d experienced since Isaiah’s birth. The baby sleeping in his father’s arms was the latest victim of a tragedy with no ending.

For Cindy in that moment, it was as if her children had died all over again. Before the last trial, she couldn’t have envisaged the pain that lay waiting. But this time around, she knew all too well how public her life would become.

Cindy rang Karen, her SIDS and Kids counsellor, to tell her about the new trial.

‘Don’t go there,’ Karen warned. ‘You can’t torment yourself with worry over it. You have to focus on yourself and your family. Torturing yourself isn’t going to help you.’ She had some advice for Cindy. ‘Find a rubber band and put it around your wrist,’ she said. ‘Flick it every time you find yourself thinking about the trial, to remind yourself not to go there.’

But not even the constant stinging of a rubber band was enough to keep her fear at bay.

The Court of Appeal’s ruling made front-page news the next day, with headlines across the country announcing that the ‘Dam Deaths Dad’ was to be retried.

The Geelong Advertiser asked Bob Gambino how his daughter had taken the news. ‘She’s not too good,’ Bob replied. He said the family could only wait for the next move. ‘It’s out of our hands – there’s nothing we can do about it…We are not excited over what happened.’

But if Cindy and her family weren’t excited, Rob’s supporters were over the moon. When his sisters arrived at the Victorian Supreme Court on Monday 21 December for Rob’s bail hearing, the badges they wore spoke volumes. Carmen’s bore the slogan ‘In Rob We Trust’ and Kerri’s said ‘Fact Before Theory’. The media noted the absence of Cindy Gambino, who had vocally supported her ex-husband after the original verdict in 2007.

The bail hearing was a formality. Farquharson appeared in the dock, dressed in faded blue jeans and a T-shirt, to hear Chief Justice Marilyn Warren announce that there were exceptional circumstances warranting his release.

The prosecution and defence teams had agreed on the terms of his bail ahead of the application. Chief Justice Warren released Farquharson on a $200,000 surety under a number of conditions, including that he’d live at a nominated address, report to police every Monday and Friday and not communicate with any witnesses except his sister and her husband. A mention hearing had already been listed before the Supreme Court on 28 January, when a new trial date would be set.

Farquharson looked visibly relieved. Ninety minutes later, he stepped into the sunshine outside the court wearing a blue shirt and tie. Looking straight ahead, he ignored a barrage of questions from the media as he walked to a waiting car.

Again the story was front-page news. ‘Alleged Killer out on $200,000 Bail,’ said the Herald Sun. The story quoted a friend who was only identified by her first name, Liz: ‘He’s been through hell,’ she said. ‘We’re supporting him 100 per cent.’

While Rob and his family celebrated, his former wife sat bleakly at home. Cindy’s plans for a proper family Christmas disappeared the moment Rob’s sentences were overturned.

It was an ironic situation. The court had finally agreed with her contention that there had been a miscarriage of justice at Rob’s trial. So why was she unhappy?

Though she’d refused to admit it to herself, Rob’s failure to communicate with her had left her with growing doubts. What if the police had been right all along?

Whatever the outcome of the new trial, the result for Cindy would be the same. She’d received a life sentence no court could overturn.