On 1 April 2008 I heard that Farquharson had lodged an appeal against his conviction. I picked up the phone and called Mr Morrissey. He was in a fluster, halfway through another trial, but boomed in his matey, rackety voice that he had come up with fifty-one grounds. The judge had definitely made errors in his charge to the jury. Plus, what about the violent brawl Greg King had got into, at a Winchelsea pub, in the December before Rob’s trial? This would have reflected on King’s credibility as a witness—but the coppers had delayed charging him for ten months, until the Farquharson trial was over. I mean come on, ten months’ delay in hearing a pub brawl? And by the way, who was that really clever-looking fair-haired girl who sat beside me at the trial? Gap year! She was smarter than the whole bloody jury put together. If she ever wanted to do work experience she should give his office a call.
…
A pub brawl in Winchelsea? That peaceful village full of law-abiding citizens? Eventually I saw the charge sheet. After a ‘heated discussion’, in the presence of wives and children celebrating Christmas Eve, two men set upon two others, and half a dozen more joined in. It sounded like the sort of free-for-all where blokes run across pool tables to get amongst it. The investigating police officer observed that the assault followed a series of earlier incidents between two feuding groups of locals, in which the victim had played no part. He was not known to his assailants; his mistake, while he consumed ‘approximately five cans of Jack Daniels and Coke’, was to be seen talking to the wrong man at the bar. He was punched and headbutted, even after he had run from the building. ‘It would appear,’ wrote the police officer fastidiously, ‘that a pack mentality prevailed.’ Under the heading ‘Reasons’, one of the arrested assailants told police that he had been trying to find his thong. Another said ‘I just jumped on top.’ Greg King, charged with having punched the victim in the stomach, said, ‘I did the wrong thing.’
King had no prior convictions. When he came before a Geelong magistrate on a charge of unlawful assault on 20 November 2007, a few days after Farquharson got his life sentence, the police handed up a letter recognising his cooperation in the Farquharson case. The magistrate, declaring that this letter had had no effect on his decision, sent King home with a twelve-month good behaviour bond and a $750 fine.
…
Cindy Gambino was by now a public figure. During 2008 and 2009 I followed her fortunes at a distance. She drifted through Woman’s Day and New Idea, dull-eyed and overweight, helplessly acting out her grief. Her interviews were reported in the tabloid language that can reduce the purest human anguish to a pulp.
Any woman could see that in her stubborn refusal to condemn Farquharson she was fighting to hold back an avalanche of misplaced guilt that no mother would survive. The people who loved her must have had to tiptoe around her, muffle their own emotions, cradle her in her protective delusion. How long could she hold out?
I understood now what her mother, Bev, had told me outside court one day—an image that at the time had seemed to me topsy-turvy: ‘You’ve got this mask all over you. You get up. You drive to work. You take the mask off and do what’s expected of you. Then you drive home and on the way the mask comes back, so you can handle everything that’s happening there.’
But the cracks in Gambino’s carapace were beginning to show.
As long as she clung to her belief that the crash had been an accident, she could not claim Victims of Crime compensation. She lodged, and settled for an undisclosed sum, a damages claim against the Transport Accident Commission for severe psychiatric injury. Then she turned to Farquharson’s assets. These amounted to a mere $66,000, but on 14 May 2009, in a Supreme Court decision, Justice Cummins ordered him, under the Sentencing Act, to pay her $225,000 in compensation for her pain and suffering.
…
On 1 June 2009 I climbed the steep stairs from Lonsdale Street to the old Court of Appeal. In the vestibule Mr Morrissey smiled at me. His big face was waxen.
‘You must be very tired,’ I said.
He made a wordless sound and closed his eyes.
‘Are you in despair?’
‘Not despair,’ he said hastily. ‘No. But look—it’s like the ancient myth. Orpheus, having to go back down to the underworld. That’s what it’s like. And I lack the musical talents of Orpheus.’
I followed him through the big doors. Green Court was a higher class of room than Supreme Court Three, recently refurbished with thick green carpet and tilting seats of green leather, and subtly lit by elegant wall-mounted lamps.
Farquharson hobbled in on crutches. A journalist told me he had had a coughing fit in prison and fainted. He had fallen off a chair and fractured a bone.
The appeal hearing had been slated for two days. Compared with the smoothly confident Mr Rapke and his junior, Douglas Trapnell SC, Morrissey was as jumpy as a student undergoing an oral exam. Three judges sat in a row above him, in scarlet robes with huge white fur cuffs. Their wigs were not the grey, dead-rat ones of the lower court, but foaming and globular, as pale as raw cauliflower, with a texture reminiscent of brain tissue. Their voices rang crisply, and their questions were challenging, pointed, and at times impatient. They gave no quarter. The quality of their listening was ferocious. There were no witnesses: the whole thing was a blast of argument and analysis, awe-inspiring in its thoroughness.
On the second day, Morrissey hit his stride. He was less flustered, more calmly forceful, much more in command of the content and tone of his discourse. Late that afternoon, long after I had lost my grip on the technical details of the argument, I began to be aware of a mysterious movement in the room, a fluid shift. At first I thought I was imagining it. I did not discern it with my intellect, but sensed it along my nerves. It was a slow, submarine surge, like the turning of a tide.
It would take the judges months to publish their decision.
…
A couple of weeks after Farquharson’s appeal was heard, Woman’s Day ran a three-page ‘news exclusive’ on Gambino, in which she ominously raised the stakes.
She told her faithful journalist that she had written several times to her ex-husband in prison and begged him to accept a visit from her. A photo of one of her letters, in a hand as unformed as a teenager’s, appeared beside the interview. She could not understand why he would not want to see the only person on earth who understood his pain. What had he been thinking on the day of the accident, and in the months before it? Was all this her fault because they had separated? She prayed that she had not made him hate her that much. She had defended him to the world. Didn’t she deserve answers to her questions? Why wouldn’t he see her?
Farquharson had agreed, through his sister Kerri, to see her after what would have been Jai’s fourteenth birthday; but when the time came, he said he was not ready.
A reply came at last, she said, but not from Farquharson. It was written by his counsellor, Gregory Roberts, the social worker who had given evidence for the defence about the new concept of ‘traumatic grief ’. Farquharson, he wrote, was missing Cindy’s cooking and struggling with prison life. Roberts offered a stark account of Farquharson’s horror in the sinking car, his agonised scream when he could not free his boys. But the counsellor was adamant that Gambino would not be able to see Farquharson. He was in a fragile emotional state. A visit from her would be too damaging and destabilising.
Gambino was incredulous. What did Farquharson imagine life was like for her, out in the real world, where practically every day she had to drive past the children’s school, or the dam? How was she supposed to mother her two-year-old son, and the new child she would soon give birth to? She had not changed her mind—Farquharson was not a killer. But she needed to ask him face to face why he had not given evidence at his trial, why he had not seized his only chance to tell everyone what really happened. All she wanted was to look him in the eye.
Her face in the magazine was a vision of ruin: its doughy pallor, its heavy-lidded eyes and expression of sullen entreaty. From the dock during the trial Farquharson had silently implored his former wife to look at him. Now it seemed that the counsellor, in his helpless empathy, was doing everything in his power to shield Farquharson from the challenge of that gaze.
Around this time, I received through my publisher a letter from a stranger. She wanted to tell me that her daughter’s small children had been burnt to death in a house fire, after their parents’ ugly divorce. Suspicion hung over the former husband, she said, but the coroner had returned an open finding. The grandmother, in her anguish, might have been speaking for Gambino:
‘What’s worse?—living with suspicions and various possibilities and never knowing the truth, or living with the truth of something too horrible to contemplate?’
…
On 17 December 2009, six months after the hearing, the Court of Appeal handed down its decision. The judges had sieved Mr Morrissey’s fifty-one grounds down to a mere handful. They found, most importantly, that Justice Cummins had erred in his directions to the jury, in particular about how they were entitled to evaluate the complex layers of Greg King’s testimony. Also, by failing to disclose King’s pending assault charge from the pub brawl and the fact that the police intended to provide a letter of support for him, the Crown had deprived Farquharson’s defence of a chance to discredit King as a witness.
The Appeal judges laid out in one careful page the circumstantial evidence against Farquharson. They made it clear that it had been open to the jury to find him guilty beyond reasonable doubt. Still, the errors had deprived him of a fair trial. The Court set aside his conviction and ordered a retrial.
Four days before Christmas 2009, Robert Farquharson was released on bail.
…
How would it feel to be out of prison, back under your big sister’s roof, on a beautiful summer night? I imagined Farquharson roaming barefoot through the Mount Moriac house, taking a beer out of the fridge, maybe sitting on the back doorstep and listening to the crickets. At bedtime he would stretch out to rest between fresh cotton sheets, and lay his head on a clean pillow.
Meanwhile, his sons were lying in their own little beds, in a couple of scrubby acres on the outskirts of Winchelsea.