In February 2010 I was invited to give a talk about non-fiction writing at the Wheeler Centre in the State Library. Someone in the audience asked my opinion of the Farquharson verdict. I did not think it was the moment to talk about it. I confined myself to the observation that the only person who knew the truth wasn’t talking, and changed the subject.
The retrial was scheduled for May 2010. I heard around the traps that Mr Morrissey might not appear for Farquharson this time. Everyone at the criminal bar liked Morrissey. They were worried about the effect on him of this long ordeal. ‘Oh, I don’t envy him,’ said one barrister I knew. ‘Defending such an unpopular client—it’s the worst of the worst.’ ‘He should run a million miles,’ said another, ‘but I bet he won’t.’
On 10 March 2010, when I walked into Supreme Court Eleven to listen to Preliminary Argument, the first person I saw, looming over his junior, Con Mylonas, was Peter Morrissey, his forehead shining, his wig tilted to the back of his head. At the other end of the bar table sat the new prosecutor, Andrew Tinney SC, a wiry, silver-haired man with a solemn address. A journalist told me he was to be seen on Lonsdale Street clad in lycra and cleated cycling shoes, and that he coped with his work worries by riding to Frankston and back before breakfast. Beside him he had the combat-toughened Amanda Forrester, Rapke’s junior from the first trial.
The man on the bench was Justice Lex Lasry, a tall, rangy fellow in his early sixties who had been a judge for barely two years. I had once watched him, when he was at the criminal bar, coolly dismantle a murder charge against a young woman whom a whole city had believed to be guilty. He was widely admired for his work as a QC in international human rights, and liked for the fact that he played drums in an amateur band.
These preliminary sittings of the court took place well before a jury was empanelled. New witnesses were carefully questioned and the rules of engagement were negotiated. Farquharson listened intently between his guards, chin up, eyelids fluttering. Morrissey came out swinging. Justice Lasry ruled in his favour to exclude any evidence in which Farquharson was heard to express intentions of suicide or self-harm. The Crown case, said Lasry, was not that the events of Father’s Day amounted to a failed murder-suicide; it was that the accused had meant the children to drown while he survived. Lasry agreed, too, to scour the evidence of a term that had freely besprinkled the first trial: depression, a medical condition about which, he said, many people in the community know a lot less than they think they do. What he feared, if he should admit evidence from lay witnesses about depression, was that the jury might take it upon themselves to speculate about an imagined link between depression and motive for murder. Speculation of any kind was anathema.
Justice Lasry proposed to say to the jury, once it was empanelled, ‘Any gaps in the evidence are not to be filled with guesswork.’ Fat chance, I thought. Still, judge and counsel worked together to draw out of the story, without rucking up its texture, the long black thread of Farquharson’s ‘depression’.
…
At lunchtime one day Mr Morrissey asked me for a word. He ushered me into a little interview room off the vestibule, and gestured to a chair. We sat facing each other across a table. He did not remove his wig.
‘Someone’s sent me,’ he said with an ominously charming smile, ‘the video of a talk you gave at the State Library.’
My heart went boom. ‘Did I drop a clanger?’
‘You did. You said, “Only one person knows what happened in the car that night, and he’s not talking.”’ He leaned forward on both elbows and subjected me to a power-darkened look. ‘Our case is that my client doesn’t know what happened in the car that night. Because he was unconscious. By offering that opinion in a public forum you were undermining my client’s right to silence. I think you might be in contempt of court.’
Contempt of court? Me? I broke into a cold sweat.
If I did not get that video off the internet within two hours, Morrissey went on, still forcefully holding my gaze, he would go to the judge and get a court order. He might even use my smart crack to support an argument for adjournment, on the grounds that adverse publicity would deprive his client of any hope of a fair trial.
Of course I was not responsible for posting the video, and I had no idea how to get it down. Galled most of all by the thought that Justice Lasry might think me an idiot, I ran out of the building, red-faced, phone in hand. The Wheeler Centre people had it sorted in thirty minutes. Still shaking, I texted my old barrister. He replied at once: ‘My dear. You were in contempt only on the most pedantic interpretation of your words. It’s a nothing. A trifle. You merely said something unfavourable to Mr Morrissey’s case.’
So Morrissey had bullied me, and I fell for it. The chips must be down.
And soon the word flashed among the journalists: Gambino had changed her mind. She had withdrawn her original witness statement and made a new one. Only when I watched judge and counsel nervously planning tactics for handling her before the jury did I realise, with a thrill of dread, how wild she must have become, how terrifying—what havoc she might wreak upon the court’s delicate edifice of reason.