Chapter 24

A Sign

On 15 March 2010, Detective Sergeant Clanchy drove to Winchelsea to take Cindy’s second statement. With him came several members of the prosecution team, all keen to meet Cindy and her family.

Cindy was anxious about meeting them and was chain-smoking to calm her nerves. Watching the strangers arriving made everything horribly real again.

‘Hi, Cindy – I’m Andrew Tinney,’ said the Crown’s new senior counsel, shaking her hand warmly. He introduced his colleagues Mark Pitcher and Amanda Forrester.

Mr Tinney settled himself in a chair, and a black cat leapt from nowhere into his lap. ‘Who is this?’ he asked. It was Tyler’s much-loved cat Sampson. He wasn’t usually friendly to strangers, but now he was purring noisily and dribbling on this prominent barrister’s knee. It’s a sign, Cindy thought, suddenly feeling more positive.

Stephen sat outside chatting to the legal team while Gerard Clanchy accompanied Cindy into the dining room to take a new statement.

‘This will be very hard for Cindy,’ Stephen warned the lawyers.

Mr Tinney was reassuring. ‘She won’t be doing this on her own,’ he said.

In the dining room, Cindy braced herself. ‘Where do I start?’ she asked. When she’d made her initial statement, she’d felt Rob was in enough trouble without her making matters worse by dragging up stuff from their marriage – damaging things that might help police build their case against an innocent man. So she hadn’t mentioned his teasing of the older children or how he’d stalked her after their breakup. But since the last trial, his continued refusal to see her had hurt and angered her. With each rejection, her niggling doubts grew stronger. Now she could see how relevant that information was.

Cindy told Clanchy about Rob’s anger, his threats and his teasing. She elaborated on her earlier statement that he never smacked the children. ‘I want to add that he also said he was scared he’d go overboard if he did.’ She said Rob had been so depressed during their phone conversation the Wednesday before Father’s Day that she’d been worried he might harm himself, and that she’d told Stephen’s mother of her concern.

Finally, she said: ‘I wish to add that I no longer believe what I had stated in the last line of my first statement’ – her comment that she believed her children’s deaths were an accident, and that their father wouldn’t have hurt a hair on their heads.

Detective Sergeant Clanchy put the signed statement in a folder at 5 p.m. and thanked Cindy for her co-operation.

The rest of the team were still chatting with Stephen when Cindy reappeared, more anxious than ever. ‘How am I going to get through this?’ she asked, breaking down in tears.

Amanda Forrester leant across the table and squeezed her hand. ‘Cindy, you’re a strong person – we’re going to get you through this together,’ she said. ‘We’re going to get you on that stand.’

‘I was in denial last time,’ Cindy said apologetically.

‘I know,’ Amanda replied.

Anne O’Brien, the victim support worker, greeted Cindy with a friendly smile when she arrived at the Office of Public Prosecutions with her parents and Stephen for a pre-trial briefing.

‘Come in, Cindy,’ said Mr Tinney, smiling broadly. Gerard Clanchy was there along with Anne, Amanda Forrester and Mark Pitcher, the solicitor who had been working behind the scenes.

Cindy sat beside Stephen, her heart thumping, as the lawyers explained how they would run the new case.

Cindy left feeling encouraged by the team’s support. They’d promised to keep her updated by phone, and they were as good as their word. They even took the time to drive down to Winchelsea again for an informal catch-up before the trial.

‘There are days when I feel so scared about how I’ll cope that I can’t even get out of bed,’ Cindy told them. ‘And there are days when I’m so angry I feel really strong.’

The team urged her to hold that thought. With 5 May now set as the date for the retrial on the Supreme Court’s criminal listings, she’d need all the strength she could muster.

Stephen was relieved to see that Cindy seemed clearer than she had in five years. Dr Singh had prescribed her a higher dose of the anti-anxiety drug Clonazepam, and she appeared more focused, though she was sleeping less. It was as if she was drawing on every reserve she had. She was a woman with a new purpose.

‘It’s as if God is pulling me along,’ she told Stephen. He understood.

As the days blurred into months, Cindy had been hearing stories about Rob’s activities. Friends mentioned seeing him in the weeks leading up to the second trial. They said he always seemed to be sitting in front of the pokies.

People had seen Rob in Buckley’s, a hotel in Geelong, aimlessly playing the machines. A mate told Stephen he’d seen him in Pakington Street at another gaming venue. The man’s partner had dragged him away because he’d threatened to punch Rob, and she was afraid he’d do it.

On both occasions, Rob had apparently been so focused on the pokies that he hadn’t noticed the locals sizing him up. Perhaps Cindy wasn’t the only one trying to fill a big black hole with addictive behaviour.

Five months after Rob’s release from prison, a local policeman, Gary Miller, arrived at Cindy’s home with bewildering news. Someone had desecrated her children’s headstone – the headstone she’d carefully chosen and paid for. It had been inscribed: ‘Much loved and cherished children of Robert and Cindy’, with a photograph of each boy next to his name, but now, Robert’s name had been crudely chiselled off.

Cindy was distraught when she discovered what had happened, and the police officer tried to calm her down. Just a couple of weeks earlier, Miller had found Cindy sitting beside her children’s grave at 3 a.m. after an argument at home. She’d told him how desperately she needed to speak to Rob in jail. Miller was sympathetic and now her obvious distress made it clear she’d known nothing about the desecration.

Cindy did wonder if perhaps some mate of Jai’s, now a testosterone-loaded teenager, had been so upset by news of Robert’s release from prison that he’d decided to trash his name in a show of disgust.

In April 2010, Cindy was one of several witnesses who appeared before the Supreme Court in a pre-trial hearing, known in legal terms as a voire dire. The hearing, before Justice Lex Lasry, was to allow new evidence to be aired and challenged ahead of the trial, to determine what evidence the jury would hear.

The defence probed Cindy about her new police statement and her change of heart on the question of Farquharson’s innocence. After being allowed time to take instructions on what he claimed was ‘substantial new material’, Mr Morrissey asked Cindy about her previous media interviews. Hadn’t she told the Geelong Advertiser after Robert’s first trial, ‘Rob would cop a lot off me and he wouldn’t fight back’?

‘Yes,’ she conceded.

Mr Morrissey asked pointedly, ‘Did you ever hit him?’

Cindy replied, ‘No.’

‘Did you ever shout at him and abuse him?’

‘Yes. If there was a person between the two of us, I was the one that would yell. He wouldn’t yell back.’

So why, Mr Morrissey asked, did she now believe Robert guilty of murder? He said, ‘The truth of what actually happened has not changed in that time, it’s merely your perception that has changed – do you agree with that?’

‘No,’ Cindy replied emphatically.

Mr Morrissey wanted to know how she’d learnt about the statement made by the Crown’s new witness, Mrs Dawn Waite – the motorist who had followed Robert along the highway shortly before the car veered off the road. Had the police shown it to her?

‘No,’ Cindy insisted, but she added, ‘Winchelsea is a small town.’ She said Clanchy had outlined the gist of Mrs Waite’s statement about how she’d overtaken Robert’s car that night as he returned to Winchelsea.

Cindy said she knew Dawn Waite ‘didn’t describe any coughing’, and that she’d seen Rob’s headlights as he left the road, though the car’s lights were turned off when the vehicle was found.

Mr Morrissey asked, ‘And why did you see that as being evidence against Mr Farquharson rather than in his favour?’

Cindy replied sharply, ‘He knew where that dam was.’

The defence suggested that public criticisms had put Cindy under great pressure and influenced her turnaround on the issue of Robert’s guilt.

Mr Morrissey asked, ‘You were criticised for believing in Robert weren’t you?’

‘Yeah – and I took it,’ Cindy responded. She said she’d received ‘all sorts of disgusting hate mail’ over her defence of Rob. ‘Even a woman on 60 Minutes said, “Wake up – you’re in denial.”’

Mr Morrissey turned his attention to an article that appeared in the Age in November 2008, in which journalist Karen Kissane had interviewed the retiring Director of Public Prosecutions, Jeremy Rapke, about some of the high-profile cases he’d prosecuted during his career.

Mr Rapke had reflected on his impassioned plea for three life sentences without parole for Robert Farquharson. The article quoted Mr Rapke as saying, ‘I was speaking on behalf of three little children who couldn’t speak for themselves, and they had a mother who wouldn’t speak for them either.’

‘What?’ said Cindy, looking stunned. This was the first she’d heard of Mr Rapke’s comment.

‘Well, I’m just reading that to you. Do you recall that?’ asked Mr Morrissey.

‘No,’ she replied in a low voice.

Mr Morrissey continued, ‘These are issues that you had to face when you were supporting Rob – of being made to feel like an idiot when you met with the prosecutors?’

He reminded her of her initial meeting with Mr Rapke ahead of Rob’s first trial. Had she complained afterwards that the prosecutor had made her feel ‘stupid’ for supporting her former husband?

‘Yes,’ Cindy conceded.

Mr Morrissey read from Gerard Clanchy’s notes of the conversation, where she was quoted as saying, ‘I felt like they were making me say something I didn’t mean, that I’m not telling the truth. Possibly negligent but not murder. Jeremy was pushing to prove him guilty.’

‘I don’t recall that,’ Cindy replied.

Cindy said the public criticism hadn’t influenced her new belief that Robert was guilty of murder. There were other reasons, she insisted.

‘I gave up supporting him when he broke his promise to see me,’ she said firmly.

Mr Morrissey asked her about the marriage breakup. Hadn’t she told the previous trial that the separation was amicable? Was that true?

It was a question that had increasingly preoccupied Cindy. In recent months especially, she’d been reflecting on a disturbing conversation she had with Andy Price, a local electrician who was working on the shed at Bennett Street after the first trial.

Price had told her, ‘I know you feel that Rob is innocent, but there are things that I know.’ He hadn’t elaborated then, but he raised the subject again when she ran into him in Winch a couple of weeks later. Price claimed that after she and Rob separated, Rob had asked if he could arrange to have Stephen ‘done over’.

Rob had previously mentioned knowing some unsavoury types, and she knew Price used to socialise with those people. She guessed he would have known how to organise a bashing if he’d felt inclined to help Rob. Her conversation with Price alarmed Cindy, but it wasn’t enough to shake her faith in Rob’s innocence at the time.

Then, over the summer just gone, Price had told her that he’d be giving evidence at Rob’s new trial, supporting Greg’s account of the fish-and-chip shop conversation, because he’d overheard the end of it. The revelation made her think again about that earlier conversation. It seemed she hadn’t realised how much malevolence Rob harboured towards her and Stephen.

So when Mr Morrissey challenged her about whether the separation had been amicable, Cindy said she no longer believed it to be true. ‘I think there was an underlying bitterness that I didn’t know about,’ she said.

The defence went on to ask her about Gregory King. She agreed that King had turned up at her home ahead of Robert’s first trial and read his police statement to her.

‘Did you call him a liar?’ asked Mr Morrissey.

‘No,’ said Cindy.

‘What did you say to him?’

‘I just kept saying, “Are you sure? Are you sure?” . . . and he felt very, very guilty for not coming to me prior to the night my children died.’

After giving her evidence, Cindy left the court mulling over the reasons for her change of heart. In Robert’s first trial, she must have been a dream witness for the defence, she thought crossly. But this time around, her eyes were open and she was shaping up to be a defence barrister’s nightmare.

Two weeks before Farquharson’s trial was due to begin, Cindy had a request for her family and friends.

‘I want everyone who attends court to wear something purple,’ she instructed.

A week before the trial, Andrew Tinney’s wife, Anita, handed each member of the prosecution team a purple ribbon with three knots in honour of three little lost lives.

While court protocol prevented the barristers from sporting these ribbons on their gowns or collars, Andrew Tinney slipped his ribbon into his trouser pocket, while Amanda put hers in her handbag. Mark Pitcher and Detective Sergeant Clanchy popped theirs into their jacket pockets, where they would remain for the duration of the eleven-week trial.

On 5 May 2010, Robert Donald William Farquharson, 41, was arraigned again at the Supreme Court of Victoria in Melbourne. For the second time in three years he pleaded not guilty to three counts of murdering his sons on Father’s Day 2005, then he sat with his eyes downcast, clutching his hands in the way he did when he was nervous.

Cindy, who would be one of the first witnesses called by the Crown, flicked her rubber band, telling herself again: ‘You can do this.’

While this second trial would take much the same course as Robert’s earlier trial, there were three crucial differences. First, the prosecution had a new witness with vital evidence they said would contradict the defendant’s claims of a blackout or coughing fit. Secondly, though Cindy didn’t know it, Rob himself would take the stand. And, finally, Cindy would give her evidence unburdened by the crippling denial that had influenced her testimony first time around. Since the last trial, she’d performed an astonishing ‘about-turn’, making it clear she no longer believed her ex-husband’s story.

The trial, in front of Justice Lex Lasry, began with a jury of fourteen men and women, whose number would later be reduced by two.

Mr Tinney SC rose to his feet and outlined the Crown’s case in a clear, even voice. In a nutshell, he said, this innocent-looking father had consciously and deliberately driven his car into a dam and drowned his three little boys to pay their mother back for ending their relationship.

Farquharson and Cindy Gambino had been ‘unhappily separated’ for eight months at the time of the crime. The defence would argue that the separation had been amicable, but the evidence would prove this was ‘nonsense’.

Farquharson was bitter about the split and irked by his financial situation. Witnesses would tell the court that the anger and resentment he harboured towards his estranged wife ‘persisted and bubbled away into 2005 as Father’s Day approached’.

‘It will be the Crown case in this trial that the accused deliberately drove his children into that dam in a wicked and malevolent act of multiple murder,’ said Mr Tinney, gesturing to the defendant, who was screwing up his eyes, shaking his head and muttering under his breath in the dock.

Farquharson had known perfectly well his three boys had no chance of escape, because the doors were locked and a child safety lock was on. The children were trapped inside as the vehicle sank to the bottom.

The children had attempted to unbuckle their seatbelts and free themselves from the sinking car. ‘All of the boys had managed to undo their restraints, either alone or with the help of one of their brothers,’ he said. But their father made no attempt to save even one of them, and simply swam away from the sinking vehicle, leaving his children to die.

‘They met their terrifying deaths in the dark, confined space of that motor car at the bottom of the dam,’ he said. Later, while others searched for the submerged car, the defendant stood by and did nothing.

Mr Tinney handed the jury a booklet with 97 photographs of the crime scene, assuring them there would be no photographs of the drowned children. The only photo of the children was one of them during their lifetime. It was the very first photograph in the booklet.

Mr Tinney then ran briefly through the evidence some of the witnesses would give. Among them was a new witness – a woman motorist – who would tell how she had noticed the accused ‘behaving very strangely’ just moments before the tragedy as she drove behind him along the empty stretch of road from Geelong to Winchelsea.

Andrew Tinney warned the jury that emotion, sympathy and prejudice should play no part in this trial, which was about evidence alone. This was ‘a one-issue trial’ – the central issue being whether the accused had deliberately, consciously and voluntarily driven his car into the dam and left his children to die. The Crown would prove beyond reasonable doubt that he had.

In a counter-offensive, Farquharson’s defence barrister, Peter Morrissey SC, told the court that the defence would show that the case against the accused was based entirely on circumstantial evidence, which would be strongly challenged over the coming weeks.

Mr Morrissey went on, ‘Robert has been slaughtered, as you all know, in the media for a long, long time.’ He had no doubt everyone would have heard something about this case. They may have heard people say, ‘That bastard – I’d have saved those kids!’ But while it was tempting to imagine you’d be a hero, ‘everyone makes mistakes’.

‘There’s human frailty in this case,’ he warned. The jury would have to consider whether the accused really had intended to murder the children, ‘who according to the prosecution he hated’, or whether this was a terrible accident.

Mr Morrissey told the jury he would respond briefly to the prosecution’s case to ‘guide you where the battlefield is’. He said the accused’s account of events was ‘fragmentary, distressed, jumping around’ because it had been pieced together from the accounts of many people to ‘whom he says a little bit’.

The ‘only person on the planet’ to claim Robert had expressed hatred for his children was the Crown’s star witness, Greg King, but the defence would show that King’s evidence was riddled with inconsistencies. The credibility of this mate who claimed he’d been told about the supposed murder plan would be a major issue in the trial.

The defence would prove other evidence unreliable. The motorist who saw Farquharson on the road that night could have been mistaken. The defence would argue this important witness may not have had any idea what was going on in the moments before Farquharson’s car veered off the road.

The defence would also call expert witnesses to support their argument that this was an unfortunate freak accident caused by a rare medical condition called cough syncope, which had been the cause of the coughing fit that caused the defendant to lose consciousness.

It was the jury’s job to consider whether the defendant was ‘a lying sneak’ or an innocent father, said Mr Morrissey. In the coming trial, he warned the jury to remain strong when they heard evidence from the boys’ mother and to allow him to do his job by pressing her on important issues. ‘You need to say, “Look – I’m listening to the answer, I’m not on the Oprah Winfrey Show.” I do feel sympathy for her – you would be a wooden-hearted person if you didn’t, we all do – but you must listen to the evidence,’ Mr Morrissey urged.

Throughout both addresses, the defendant wrung his hands, frowning and avoiding eye contact with his former parents-in-law.

There was silence in court as Farquharson’s recorded interviews with police were played. The court heard his evasive answers and his bizarre rationale for being unable to save even one of his children. ‘I’ve got two arms, two legs. I can’t save three. How was I supposed to do it?’

In a brief extract of his interview with police at Geelong Hospital, before the car was found, there was no hint of panic, no trace of emotion in his voice. He repeatedly asked the officers what was going to happen to him, but didn’t ask once about the fate of his children.

The opening of this second long-awaited trial was all over the television news by the end of the day, and was headlines again the next morning. ‘Wicked’ screamed the headline in the Geelong Advertiser on Thursday, 6 May, underneath a photograph of the accused father entering court flanked by his defence lawyers.

The jury was now driven to Winchelsea by coach to examine the scene of what Andrew Tinney would later describe as ‘an act of unspeakable revenge’.