I had ignorantly imagined the second trial proper, when it opened on 3 May 2010, as a canter across old territory, with a few shifts of emphasis, a fresh angle here and there—an up-dated production of a modern tragedy whose characters and plot and poetry were so familiar to me that it had lost its power to devastate. But from the first moment the very air in the court felt different. There was grit in it. The benign courtesies, the comradely sharing of the crowded space were no more. In the jostling for seats in the body of the court that day, in the banishing of Farquharson’s supporters to the upstairs gallery, in the hostile glances and ostentatious turning of backs, my usual morning nod to the lawyers was rebuffed at the defence end of the bar table by a clutch of belligerently blank faces. It dawned on me that I was being sent to Coventry by Mr Morrissey and his whole team. Without my gap-year girl I was a shag on a rock. I backed away, hurt, to a seat remote from the action. A court in a long trial is a desert island. We are all castaways. Why make enemies?
But soon I would find my new spot to be an excellent one, so close to the dock and the glass-paned rear doors that, as witnesses were dismissed and headed out of court, mine was the last face they saw before they reached the exit—except for Farquharson’s, which most of them avoided looking at. In their relief at being off the hook they would shoot me a secret beam of fellow-feeling. One of the medical witnesses, forbiddingly severe on the stand, sent me, on his way out, a tiny smile that sparkled with ironic self-deprecation. In the strained atmosphere of a court the merest glance from a stranger carries serious psychic freight. I had been declared a non-person by the defence, but for the first time I felt that I belonged in that room, that I had earned the right to be there.
I tried to be the first stranger each day to step into the high, white space of Court Eleven. Its tranquil order moved and comforted me. Everything gently shone. Counsel’s chairs and microphones waited in rows down the long table. Cool air streamed in from some mysterious source. The tall flasks of water, each encircled by a cluster of polished glasses, stood ready on blue mats.
‘Nice in here, isn’t it,’ I said to the tipstaff.
‘Think so?’ He surveyed his handiwork with a pleased smile. ‘Yep. It’s nice. That is’—he threw out one hand towards the bar table—‘until all this starts.’
…
Morrissey fought to have the judge exile Gambino and her parents to the perspex-screened gallery upstairs, where Farquharson’s family now sat; he wanted to protect the jury from the ‘pageant’ of suffering he said she was likely to present. Justice Lasry was working like a Trojan not to load the dice against the accused, but he would not come at this. So, when the new jury filed in, pale with dismay that their lives were to be put on hold for at least eight weeks, Morrissey in his opening address gave them fair warning: in cross-examination, even if she was distraught, he was going to take Gambino on. The point was not to beat her up. It was to get answers that would help the jury in their deliberations. When he pressed her on certain questions, he said, they would need to be quite strong in their role. Only a wooden-hearted person would not feel sympathy for Gambino, and he did. But this was not the Oprah Winfrey show. His job was to ask questions, and that’s what he was going to do.
…
It was the Friday morning of the retrial’s first week when Cindy Gambino was called. As she passed me on her way to the witness stand I saw that she had run a purple rinse through her long brown hair, and that she was not the only person in the room wearing purple. Meaningful dabs of it shone here and there, scarves, jackets, blouses. Even the Homicide detective’s tie had a purple stripe. I whipped off my faded lavender cardigan and stuffed it into my bag.
The calm that Gambino showed seemed natural, not the effect of medication. Once or twice she flicked a glance at Farquharson. Asked if he was the natural father of the three boys, she bared her side teeth at him in a quick snarl. The unspoken things that had shadowed her original version of their relationship and his character she now brought to prominence in a most unflattering light.
Even at the time of their marriage, she said, when they already had two children, she knew in her heart that she did not really love him. She had to fight past his reluctance to have a third child. Farquharson was very protective, very possessive, but he never called her or their kids by their Christian names. His nicknames for the boys were Wobber, Bruiser, Bub. Cindy herself he addressed as Big Mama or Fat Mama; he would grab her by her private parts. As Jai and Tyler grew bigger, Farquharson used to get into play fights with them; he would stir them up till they got angry and lashed out at him. Yet he left the disciplining of the children to her. He would not smack them: he said that if he got really angry, he did not know how far he might go. He whinged and moaned a lot, she said, always complaining that he was tired. She was not physically attracted to him. Their intimacy faded and died. She was drawn to Stephen Moules, but despite Farquharson’s suspicions she was not having an affair with him. The marriage went downhill fast. She ended it in November 2004 and he went back to live with his father. During an argument at her house after their separation, Farquharson pushed her hard against a wall. She locked herself in her bedroom and called the police. Later he came over and apologised, but she did not forget it.
Football was the main conduit between Farquharson and the boys. In the first trial this was painted as something hyper-paternal, a passionate commitment on Farquharson’s part that he had boasted of and worn as a badge of virtue. Now Gambino shrugged it off as ‘his thing’. She had never denied his request to take the boys over to his father’s house, but added a stinging detail: ‘He never really asked to have them that often, and the children never ever asked, “Can I go and see Dad?”’
After she ended the marriage, Gambino said, Farquharson started to call the boys by their proper first names, and stopped the tormenting play. She quoted her favourite aphorism: ‘You don’t know what you’ve got till it’s gone.’
On the Wednesday evening before Father’s Day, Farquharson phoned Gambino after tea. They spoke for twenty minutes. It was a conversation that Gambino was no longer permitted to say had made her fear that he was suicidal. He was very down and out, very ‘woe is me’, very ‘glass half empty’. He hated living at his father’s. He wanted their unfinished house to be sold so he could buy himself a place to live, and a new car. He would never get ahead while he had to keep paying maintenance. He said he was looking at starting some sort of business in Queensland. Gambino told him he could not do that—he could not leave his kids.
…
The story of the night at the dam belonged to Gambino by right. Led by the new prosecutor, Mr Tinney, she launched on it in a clear voice, spreading her well-kept hands in expressive gestures. At the first trial she had dragged it out of herself with a raw, agonised restraint, and people in the court wept with horror and pity. Now, like her hair, the story was coloured by an element of self-consciousness. Her account had become a recital, with the rhetorical figures and grace notes of a tale polished by many a telling. How could it have been otherwise? No narrative can remain pure. Often she spoke with a simple directness. Her tears, when they fell, were sincere. But in spite of Justice Lasry’s hint that the prosecutor might ‘slightly increase his degree of control’, Tinney gave her the green light, and she enriched her account with the sort of emotional detail that causes judges to scowl and journalists to bend to their notebooks. While she ran up and down the paddock in the dark, she said, she was screaming hysterically, ‘Please, God, not my babies, please don’t take my babies, please, God.’ Until that night, Stephen Moules had never ‘admitted any feelings’ for her, but when he reached the dam and ran to her, he took her in his arms and said, ‘Baby, it will be all right.’ And she characterised Farquharson’s demeanour, as he stood watching the rescue attempts with his arms folded on his chest, in a phrase that curdled with contempt: ‘like he’d lost his pushbike’.
…
Morrissey glided into his cross-examination with a pair of recorded telephone calls. These had been captured, several weeks after the children drowned, by a bug that the police had put on Farquharson’s phone. Gambino would have to listen, before a roomful of strangers, to two deeply revealing conversations of which she had no memory. Perhaps it was the intimacy of the exchanges that made her pull the faces she did, at first, while the tapes rolled: the grimaces of a woman who has been married to a man she did not respect, a man who needed a mother more than a wife.
She calls Farquharson at nine o’clock one morning, a fortnight after Father’s Day, and asks him what he remembers of the accident. Her voice is quiet and matter-of-fact, but Farquharson has surely been dreading such a call, for his tone is put-upon, and the high-quality audio registers the fact that he is lightly panting: his heart rate is up. He rattles out the account he has told to everybody: the coughing fit, waking up in the dam, Jai opening the door, the water coming in, his efforts to ‘go round the other side’.
‘Jai opened the door,’ muses Gambino. ‘Shit.’ She must be sedated, she is so slow and thoughtful, like someone hearing for the first time an interesting but only vaguely surprising fact. ‘How did the kids get out of the seatbelts, do you know?’
‘Not all of them would have had their seatbelts off.’
Would have? How come he didn’t already know? Hadn’t he asked?
‘They all did,’ says Gambino. ‘I asked Gerard Clanchy.’
‘What?’ Farquharson’s voice rises. ‘They must’ve undone Bailey or something.’
‘Yep. So I reckon Tyler’s undone Bailey.’
Starting to panic, he shifts oddly into the present tense. ‘Because how can—how can I reach him from where I am?’
Dully she soothes him. ‘I know, I know, I know it wasn’t you, they know it wasn’t you. I think the kids have undone their seatbelts and tried to get out.’
‘Oh no.’ He breaks into racking sobs.
For the first time it hit me that he must have fantasised their dying as instant and total annihilation—boom, gone—as in a cartoon or a dream.
She tries to keep talking, in her rational, unexcited voice, but he weeps on. In the far wifely reaches of herself, she begins to lose patience with him. ‘Come on, don’t get upset. I just need to know what you remember.’
He gets a grip, he sniffs, he sighs, but his voice trembles and he bursts out crying again. ‘How am I gonna get through all this?’
‘You’ll get through it, Rob, you will.’
‘They were the love of my life. I never, ever could hurt them.’
‘You know how much I wanted them,’ she says, with a flare of rivalry.
‘I’d never, ever hurt them.’
‘I know that!’ she snaps. ‘You don’t have to keep saying that!’
‘I feel like I’ve gotta try and justify myself to everyone,’ he says, breathing hard. ‘To the police. I’ve got this feeling they want to put me away.’
She asks him further questions that he struggles with and fails to answer. After each burst of his revved-up gabble she emits a short, soft hum of attention, or lets a pensive silence fall. This must be worse for him than if she were sobbing or raging: she sounds authoritative, like someone to whom he owes but cannot give an explanation. He protests that her questions are traumatising him.
‘But there are things I need to know,’ she says mildly. ‘As their mother.’
They agree that the two young blokes who picked Farquharson up on the roadside should have tried to get the boys out instead of driving him to her place. Why hadn’t they stayed with the car? This suggestion—so frightful and unjust—that the outsiders, Shane Atkinson and Tony McClelland, are to blame seems for a moment to soothe something in both of them. Then Gambino cuts it off with a brisk realism. ‘But it doesn’t matter. There’s no point in talking like that now.’
Listening from her seat, Gambino darted one desperate look at Farquharson. Journalists corkscrewed to stare at him. While the technician cued the second tape, jurors put their heads together and compared notes, muttering.
…
Ten days later, Farquharson calls her late in the afternoon, ‘just to say g’day.’
Somewhere outside a rooster is crowing. A dog barks. She can’t talk properly, she says. The medication has made her tongue swell. He speaks at length, entirely about himself. Anything she says, in her thick, drawling voice, he tops, or appropriates. She’s had a bad week? So has he. She has to make a statement to the police? Imagine what he’s had to do. She has calm days and then really shitty days? That’s like him. Her mum’s been having panic attacks, can’t face going back to work? That makes it hard on him. All those things affect him, ’cause he’s affected everyone’s lives and it’s on his shoulders too. How much more torture are they going to put him through? It rips his guts out that people would think he’d ever in his wildest dreams do something like this. It fuckin’ hurts big-time and he suffers. Anyone knows he wouldn’t do it.
How was it, she asks with a dreamy curiosity, that the car’s headlights came to be turned off? He stammers and fumbles. He doesn’t know. He doesn’t remember anything. Probably when it first happened he thought he was in a ditch. So he stopped the car, just in case it was a fire.
‘A fire?’ I said to the Age reporter beside me. ‘That’s new.’
‘I came across a bad car crash once,’ she whispered. ‘I was the first person there. There were people in the car, they were unconscious, and the motor was still running. The first thing I did was reach in and turn off the ignition. I didn’t think. It was automatic.’
Outside the house the rooster is squalling. They pay it no attention. Each of them confesses to thoughts of suicide. They don’t use the word. They call it ‘giving up’. But people tell them the kids would be beside themselves if they knew. She assures him that there is no evidence, that they have nothing on him. They compare griefs. He can’t smile, he says; he can’t laugh. If she laughs she feels guilty in seconds. She defers to him: his suffering, she says, is tenfold of hers. She has lost three children, but unlike him she doesn’t have that guilt behind it—not that she’s saying he should…
Gambino in the court got a fingertip grip on the gold cross round her neck, and cried in great gaping silent sobs. Tinney and Forrester flashed her glances of anxious inquiry. The tall blonde woman from Victim Support shifted to a seat behind her, watchful, ready to move.
But the voices on the tape slide into the dull, rambling familiarity of two people who have once been husband and wife, parents together. Farquharson tells her he has a new phone. They marvel that the SIM card of the one that went into the dam still works. Many pauses fall. Their silences are more comfortable than speech. Neither of them seems ready to break the contact. Perhaps, I thought, the children can still exist as long as their parents are in each other’s company.
Then she tells him that, though it has hurt them, she has left her parents’ house and gone to be with Stephen Moules. She used to be confident, but she has turned into a ‘timid, mild, insecure little being’ who doesn’t want to be left alone. Stephen is now her security.
At the mention of his victorious rival, Farquharson slips back into a doleful, guilt-tripping mode: ‘And I gotta ride this stuff out on my own.’
Still, she draws the conversation to an end with something like tenderness: ‘I know in my heart of hearts you would never harm those boys.’
‘Ohhh, no way known.’
‘You got to keep on fighting for the boys’ sake.’
‘I keep thinking of you,’ he says.
‘I think of you, too. I defend you. I do defend you.’
…
Morrissey rose. Gambino sat regarding him with narrowed eyes, her jaw set hard.
‘Are you very angry with Robert Farquharson?’
‘Yes.’
‘Did you bare your teeth at him?’
‘Possibly.’
‘For the state you’re now in, do you blame Robert Farquharson?’
‘Correct.’
‘You hate him?’
A pause.
‘I hate him for what he’s done to my life.’
‘And it’s your wish that he be convicted of murder?’
A long, long pause.
‘Correct.’
At that moment the audio-visual technician who was trying to cue Gambino’s 60 Minutes interview hit the wrong key. Tinkling music rang out and on the high screen we saw the three little boys naked in their bath, moving and smiling in clean water. Gambino let out a stricken cry. I saw Amanda Forrester drop her head into her hands. Justice Lasry’s face went very long and grey.
As soon as Gambino had got herself in hand, Morrissey hauled his gown on to his shoulders and opened fire.
He invited Gambino to list the psychiatric and medical conditions for which she was being treated—severe major depressive disorder, chronic adjustment disorder, chronic anxiety, heart palpitations, calcified shoulder, neck and back pain caused by stress—and the medications she had been prescribed: Effexor, Clonazepam and, for her physical pain, the Codalgin Forte on which she had accidentally overdosed when Stephen Moules was away. Quoting page after page of transcript, he forced her to contrast her statements at the first trial with things she was now alleging. She had changed her evidence, hadn’t she? Did she not tell Woman’s Day in 2007 that she didn’t blame Farquharson? Was she not now deliberately exaggerating the bad things about her marriage, putting a bad spin on things which in the past she had viewed as perfectly innocent? The way she described him at the dam, for example—that was just a deliberate piece of spite, was it not?
Gambino squared up to him. She answered with rudeness and aggression. She drew heavy, affronted sighs. She widened her eyes and sarcastically wobbled her head. She frowned, glared, muttered under her breath as if cursing. The judge sent her out for a moment’s break. When she returned, he leaned forward and said to her gently, ‘You must grapple with what’s put to you.’ Chastened, she replied, ‘I’ll do my best, Your Honour.’
Next Morrissey announced that he would play something horrific: the audiotape of the 000 calls that Gambino had made from the water’s edge. It was heart-breaking, he said, it was highly destructive and dangerous to the witness. But it had to be done, to show her unreliable state of mind when she accused Farquharson at the dam of behaving like someone who had lost his pushbike. Justice Lasry urged Gambino to leave the court while the tape was played to the jury. She rebuffed his concern and insisted she would stay and hear it. Morrissey flashed Lasry a look that said I told you so.
Frightful screams, hoarse babbling. Gambino chokes and shrieks: Ambulance! Police! Three ks out of Winchelsea! I can’t see a thing! The operator’s deep male voice: Where are you? I’m sorry, I don’t understand the problem. Where are you? In the background Farquharson is jabbering at her: he blacked out, he woke up in water, he doesn’t know where the car went in. And all the while, behind her in the dark, Moules’s boy Zach is shrilly piping, his voice thin and sharp as a piccolo.
Farquharson’s face, in the dock, was fat with horror. Gambino sat hunched with her hanky over her mouth, uttering a high, weak whimpering sound. When they helped her to the door at the end of the tape she staggered along, bowed over, clutching herself with both arms like someone who had been shot in the belly. Court rose.
Outside in the courtyard, with his father, Stephen Moules, the little boy Hezekiah was rolling on the ground with a dummy in his mouth, laughing and playing, bored, waiting for his mother, while she huddled in a side hall, surrounded by attendants, letting out long cries of pain.
…
By four o’clock Gambino’s turnaround was on the news. I got myself to the bar where I had arranged to meet a magazine editor I worked for. He chattered away gaily, not noticing that I sat there mute. I longed to tell someone, anyone, about the 000 tape; but a line had been crossed in court that day. I had heard something obscene, something it would have been indecent to speak of: a grown man gabbling like a child who, in a fit of angry spite, has broken a thing precious beyond price and, panicking now, has led his mother to the wreckage to show her what he has done.
…
‘For what purpose,’ texted my gallant old barrister friend next morning, ‘is Mr Morrissey so hard on Ms Gambino? Should not he be gentle with her? I cannot believe what I am reading.’
Gentle? Gambino was a woman so crazed with loss and pain that she was beyond caring. Cross-examination was trauma, said Morrissey to the judge next morning, but it was the only weapon his client had—and Morrissey was fed up, he said, with being constantly reminded that he was dealing with a grieving mother. Yet Morrissey was no sadist. Behind the lachrymose tabloid drama queen he sensed—and, I thought, respected—not only his client’s nemesis but a wild and worthy adversary who was spoiling for a fight. He gave her both barrels. She crawled away wounded, came back head high and faced him again. He goaded her and she bit.
It was under pressure that she had changed her position, was it not? Pressure from the police? And her family? And her psychiatrist? People who kept telling her she would never recover from her grief until she admitted she was ‘in denial’?
‘I have a mind of my own,’ she ground out. ‘I am a very intelligent person. I can make up my own mind.’
Hadn’t she and Farquharson, after the accident, worn twin lockets containing the children’s pictures?
He bought them. She no longer wore hers because she no longer believed in him.
Morrissey depicted Farquharson on the dark bank of the dam as an isolated, forlorn and rejected figure, bereft of consolation. Had she offered him a single word of kindness, or a blanket for his shoulders? Invited him to sit in the car with her? Did he not approach Gambino to offer comfort? Did she not push him away?
‘Why wouldn’t I?’ she snapped. ‘He’d just drowned my kids.’
And how come she didn’t jump into the water? Did anyone attack her on the night? Tick her off for not jumping in? Tell her she was weak for not diving down after her kids? Rob was attacked for having left the accident and gone straight to her—but who was the first person she called? Her new partner, Stephen Moules! And Moules’ parents!
He ranged more widely. Was she not the boss of the marriage?
‘The boss? Huh. If I didn’t do a lot of what I did in our relationship there wouldn’t be much done. Controlling the bills, controlling the groceries, controlling the children.’
Who got their way?
‘I did.’
When she said Farquharson had left the disciplining of the kids to her, why didn’t she say what her techniques of discipline were? Didn’t she ever go over the top? Did she not hit them with the wooden spoon? Did she ever slap any of the boys to the head?
‘My children had respect for me,’ she said sharply. ‘I would count to three, and if I got to three then consequences would happen. I would be lucky to get to two.’ In a couple of vivid sentences that made me look at her with fresh regard, she described a clash with a rebellious and destructive Jai, and demonstrated the three-fingered slap to the cheek she had given him to jolt him out of his insolence.
Morrissey wheeled in the heavy artillery. What did she have to say about her role, if any, in the chiselling of Farquharson’s name off the children’s granite headstone?
She exploded in a passion of sobs: ‘You disgust me. My children’s resting place! I paid for that headstone! He owes me money for that headstone! How dare you!’
He showed her a press photo of herself and Farquharson at the church door, weeping in each other’s arms as the pallbearers carried the three white coffins out to the hearse. She hissed like a snake, made as if to hurl the photo at Morrissey, then screwed it up and dashed it to the floor. He held it up to the judge, a trophy. When Lasry told her she must identify it, she refused to touch it. Later, in the absence of the jury, Morrissey insisted on tendering the crumpled page as an exhibit. Lasry ruled against him: it would only remind the jurors of her emotional outburst.
The battle swept this way and that. The court air thrummed with the trauma of it, as if people longed to shout, or even to barrack, but sat wincing, tight-lipped, swinging their heads in unison.
And in the end, exhausted, backed into a corner, Gambino flung at Morrissey the reason she had turned against Farquharson. It was because he had refused to let her visit him in prison. It was the ‘pathetic letter’ she had received in response to her pleas. It was the promise he made two years ago, to see her after Jai’s fourteenth birthday—the promise he broke when, once again, he changed his mind.
‘And that,’ she said, her lips stiff with loathing, ‘was when I decided I was no longer supporting him.’
It was exactly what Morrissey was after: a deeply ‘feminine’ shift, inspired not by reason but by wifely grievance and the bitter desire to settle a score. He stood and let it radiate its static. Then he thanked her for her patience, and sat down.
…
Out on Lonsdale Street I bumped into another barrister I had known in the Carlton pubs of our youth. I sketched the day’s wild carnage. He let out a little moan of commiseration.
‘That sounds disastrous. Disastrous. I hesitate to take on a woman. Especially one as wounded as she is. Three kids! Beyond comprehension. When a wounded man’s in the box, he’ll cower. But a woman’—he bared his teeth and clawed with one hand—‘a woman’ll come back at you.’
…
I texted my old barrister friend. ‘Does it matter what Cindy feels towards Farquharson? In the end it doesn’t prove anything, does it?’
‘My very thought,’ he replied, ‘at first. But I see the wisdom in Mr Morrissey’s approach. The strongest evidence that would put paid to the coughing fit theory would be that of MOTIVE. Gambino’s new slant provides motive loosely defined, id est, reasons consistent with wanting to offend. Mr Morrissey has no option but to meet it head on.’
…
In the third week a new witness, a woman in her forties, entered the court, wearing very high heels and a chic black skirt-suit that showed discreet cleavage. In her hand she pressed a neatly folded pad of tissues. Her face was broad and pleasant, ready to smile. When she spoke she revealed a clear New Zealand accent. This was Dawn Waite, an accounts manager and dairy farmer from the Western District, down Warrnambool way. She had an important story to tell and some hard explaining to do about why she had only now, at the retrial, come forward to tell it.
She had spent the weekend of Father’s Day 2005 in Melbourne, shopping with her teenage daughter and the daughter’s friend. Soon after dark on the Sunday evening, carrying gifts for the girls’ respective fathers, they were flying along the Princes Highway west of Geelong, sitting on a hundred, nearly halfway home. There was hardly any traffic on the road, and Waite had the lights of her Falcon on high beam.
Just before they approached the long run-up to the railway overpass, a few kilometres short of Winchelsea, Waite became aware of a car some distance ahead of her that was behaving oddly—moving slowly, its brake lights going on and off, and wandering from side to side in the left lane.
She came up behind the car, a light-coloured Commodore, and had to slow right down to about sixty. She disengaged her cruise control and for a few moments rolled along about a car’s length behind the Commodore, trying to figure out what it was doing. She flicked her headlights a few times, to let the driver know she needed to pass. No response. She did not want to pull out—what if it swerved towards the centre again and pushed her across the white lines? Once more she flicked her lights. Still it crawled along at sixty, moving vaguely to left and right.
Now she was getting cranky. Next time the Commodore moved to the left she put her indicator on, pulled out, and drove alongside it for several seconds, looking into the car.
The driver was a man, dark-haired, clean-shaven. He was facing straight ahead, ignoring her, except that every now and then he would slightly turn his head and glance out to the right. She did not know this stretch of road well, or the landscape it crossed. She thought he must have been looking for a turn-off, or a gate. She could see several children in the back seat—three, she thought, and squashed in, since one of them, a fair-headed boy of seven or eight, was leaning right up against the driver’s-side window, with his face against the glass.
She made an irritable gesture at the driver, the sort that means What are you doing? He paid her no attention, and gave her no eye contact. Finally she planted her foot and surged past him. She sailed up and over the long rise and down the Winchelsea side. Just as she reached the flat, having regained highway speed, she took a quick look in her rear-vision mirror and saw a set of headlights pop over the crest behind them. The lights headed down the slope, then suddenly veered across the road to the right, and were lost to her view.
‘Well,’ she said to the girls, ‘I guess that guy found what he was looking for.’
The following evening, Monday, just after she had finished the milking, she came inside to cook the tea. The TV news was on. While she worked, she looked up briefly at the screen and saw a pale Commodore being pulled out of what looked like a lake. She called to her daughter, ‘That’s the car! That’s the car!’ Sleepless during the night that followed, she got up at 2 a.m. and made a few notes of what she remembered of the incident.
Astonishingly, Dawn Waite did not report to any authority her troubling encounter with the Commodore and its driver. She simply went about her business. For four years neither the prosecution nor the defence had any idea that someone had observed Farquharson on the road that night.
During Preliminary Argument, before the jury for the retrial was empanelled, Waite had been closely questioned before Justice Lasry about her long delay in approaching the police. She had tried earnestly to explain her failure to act. She knew that she should have come forward; she felt strongly that she ought to have. She had always been the sort of person who wanted to do the right thing. But she had a number of reasons.
She and her family had migrated to Australia only six months before the Father’s Day crash. She was dealing every day with a three-hundred-strong dairy herd as well as holding down a job.
In New Zealand, she said, if you saw someone driving dangerously, it was the done thing to take down the offender’s numberplate and give it to the police. She and her husband had done it plenty of times. Back in the nineties a young man ran a stoplight and cut them off. They reported him and charges were laid. But before they were called to give evidence in court, the poor lad killed himself. This deeply shocked the couple, for Waite’s brother-in-law had also taken his own life. They had never got over the horrible sense of being partly responsible for the young driver’s death.
For a good year before Father’s Day 2005, Waite said, she had been mysteriously unwell, fatigued, lacking in energy. No doctor could find out what was wrong with her. It was not until 2008 that she was at last diagnosed with a lymphoma, well advanced, and had to undergo chemotherapy. During the nausea and weakness of her treatment a friend had come over to do some housework for her, and in clearing out her office she had inadvertently thrown away the note pad on which Waite had scribbled down her memories of the incident near the overpass.
The two years leading up to 2005 had been traumatic for the Waite family in other ways: in quick succession her father, her father-in-law, and her beloved mother-in-law had passed away. Here her voice weakened and she wept. The day after the third funeral they had tried to have a little birthday party for their daughter Jessica. The very next day, Jessica’s close friend was killed in a car crash.
‘We buried her, and then we moved countries. I just couldn’t, I could not put my daughter through something like that again. I wasn’t strong enough.
‘So,’ she said in a trembling voice, ‘forgive me for not coming forward at that time.’
But, on 17 December 2009, when the success of Farquharson’s appeal was reported on the news, Waite’s husband said to her, ‘Really, now, you must go forward.’ On 23 December 2009, Dawn Waite walked into the Warrnambool police station.
…
Morrissey came down like a wolf on the fold.
Waite was quite a newcomer to this case, wasn’t she? She would hardly deny, would she, that by not coming forward for five years she had failed to help the accused man through his trial, his imprisonment, his appeal? And that, when she finally did come forward, it was with the aim not of helping the accused but of assisting the police? He insinuated that she was a prim-lipped, officious Kiwi who enjoyed jotting down numberplates and dobbing in other drivers. And wasn’t she exaggerating her unwellness? She can’t have been feeling all that bad if she could drive from Warrnambool to Melbourne to shop, go out to dinner, stay a night somewhere and then drive home, a three-hour drive each way, on top of working, so she said, seven days a week, twelve hours a day, on her farm, trying to make a quid? As a driver, even if she had had an unblemished licence since the age of fifteen, she did not set much of an example for her young daughter, did she? Didn’t she pass that Commodore in a bad temper, at a very fast clip? Yelling at the driver? Calling him a lunatic and a dickhead and giving him two fingers as she went by? Putting her daughter and her daughter’s friend in the lane with a weaving lunatic? Oh, so she went past slowly? It took two seconds? She drove beside him for two whole seconds with her left-hand wheels crammed into the lunatic’s lane? Wasn’t that a ridiculously negligent and dangerous thing to do? And to pass with her lights on full beam—wouldn’t that risk dazzling the other driver in his mirror? If there was a word of truth in what she was saying, wasn’t that insanely dangerous driving? She was making all this up, wasn’t she?
Waite fought to keep a clear head. At every mention of her bad temper at the wheel she would smile. Sometimes she deflected Morrissey’s salvos with a soft, disarming laugh. When he pressed her for precise distances she would shrug and calmly stonewall him, taking the old-fashioned female prerogative. Women jurors registered with visible pleasure her firm replies. She did not strain to persuade. She acknowledged that, though she believed there had been three children in the back seat, she might have been mistaken. Perhaps there had been bags in the back and that was why the boy she had clearly seen with his face against the window had looked so tightly ‘squished’. But Morrissey suggested that she had transposed on to her idea of the car’s back seat the photo of the kids she had seen on the TV news: the famous shot of the three Farquharson boys lined up on a couch with the little one in the middle.
Waite was tiring. ‘I just remember they looked squashed,’ she kept repeating. ‘They were squashy.’
So she was sticking by the blond child at the window behind the driver, correct? With its face pressed against glass? Eyes open or closed? Ears visible? Mouth open? Remember anything about the clothes? How did she know it wasn’t a girl? Or was she sure she didn’t just see a football?
Waite spat the dummy. ‘Oh, don’t be ridiculous. It was a child with fair hair. I have said a boy.’
Smiles flashed among the younger jurors. They liked to see a harried witness get bolshie with counsel. Waite had manners. She drew on them for patience.
‘I was there,’ she said. ‘I saw these things. I’m not making them up.’
But when it came to the angle of her headlights, to what she claimed to have seen inside the other car—three children crammed into the back seat, nobody in the passenger seat beside the driver—Morrissey got her in a full nelson. Even the judge weighed in once or twice on this point.
What exactly could she see, asked Morrissey, inside the Commodore into which she claimed to have had such a clear view? She really couldn’t make out anything at all about the so-called dark-haired clean-shaven Caucasian driver, could she? Was his mouth open? Was he talking? Could she see his nose? His chin, did she see his chin? His ears? Were his eyes open? Were his hands gripping the steering wheel? Did she see his hands on the steering wheel? Oh! She merely presumed his hands were on the wheel, did she, because she didn’t actually see them! Was he coughing? Hadn’t she said earlier, on the voir dire, that she knew he wasn’t coughing because he was not bending forward and his face was not red? What colour was his face? How could she be sure his face was not red? She had trouble distinguishing one colour from another, did she not? Hadn’t she thought the Commodore was grey or pale blue? And anyway how could she see the driver’s face at all? What was the source of the light by which she saw his face? She didn’t have rabbit-spotting lights mounted on the side of her Falcon, did she? Where were her headlights pointing? If she was passing him, if she was driving parallel with his car, surely her lights would have been pointing straight ahead rather than into the other car? What? Was she saying she could see his face by the light coming off his dashboard? Did she notice that the Commodore’s side and rear windows were significantly darkened? Surely she would agree that tinted windows considerably reduce visibility, especially on a country road at night? Were there any louvres on the rear window of the car? No? Look at this photo, please—its rear window had louvres! Which somehow she had managed not to notice! She had also failed to observe that the front seats had headrests, which would surely have blocked her view of the driver’s head movements and of whoever was in the front passenger seat. The conditions that night for her to see anything at all in the other car were absolutely pitiful, were they not?
Strafing, blitzing, he got her to acknowledge that in the two-second look she shot into the car, she simply could not rule out that the driver was coughing at that very moment.
…
That evening a friend came to my house for dinner. She had seen the news report of Dawn Waite’s evidence, and questioned me keenly. She must have been expecting me to dump on Waite, for when I described her as a very good witness, stable, intelligent and, at the core of her testimony, credible, she stood up and shouted at me.
‘Are you telling me you believed her?’
‘Yes, I did, and I bet you would have too, if you’d seen her.’
‘But she didn’t go to the police for five years! How could you not go to the police?’
‘She gave reasons. I thought they were convincing.’
‘Oh, bullshit. So she had cancer. If one of my legs had been amputated I would have crawled in to make a statement! And how could she have seen into his car, the way she claimed?’
I tried to describe how I thought cross-examination worked.
‘The whole point of it is to make the witness’s story look shaky, to pepper the jury with doubt. So you get a grip on her basic observations, and you chop away and chop away, and squeeze and shout and pull her here and push her there, you cast aspersions on her memory and her good faith and her intelligence till you make her hesitate or stumble. She starts to feel self-conscious, then she gets an urge to add things and buttress and emphasise and maybe embroider, because she knows what she saw and she wants to be believed; but she’s not allowed to tell it her way. You’re in charge. All she can do is answer your questions. And then you slide away from the central thing she’s come forward with, and you try to catch her out on the peripheral stuff—“Did you see his chin?”—then she starts to get rattled, and you provoke her with a smart crack—“Are you sure it wasn’t a football?” She tries to put her foot down—“Oh, don’t be ridiculous”—and the judge gives her a dirty look and she sees she’s gone too far, so she tries to recoup, she tries to get back to the place she started from, where she really does remember seeing something and knows what she saw—but that place of certainty no longer exists, because you’ve destroyed it. And now she’s floating in the abyss with her legs dangling and everyone can see the lace on her knickers, and the next thing you put to her she’ll agree to, just to stop the torture. And then you thank her politely and sit down, and she’s dismissed, and she staggers out of the building and she can’t stop howling, and the cameras shoot her with her hair in a mess and her jewellery hanging crooked, and then next day there she is on the front page looking like something the cat dragged in—like a liar who’s been sprung, or a flake who makes things up just to get herself into the limelight. Is it any wonder people don’t want to come forward?’
I was hot in the face, almost panting. My friend deflated somewhat and sat down.
‘It doesn’t matter what she looks like in the street, though, does it,’ she said at last. ‘All that matters is how she seems to the jury.’
A long, thoughtful silence.
‘I read in Who magazine once,’ I said, ‘about a woman up in New South Wales. She lived in a flat that overlooked a big park with a bushy path running through it. One day she’s having a cup of tea on her balcony when she sees a young girl walking along the path. A bloke in a tracksuit comes jogging after her. The woman on the balcony actually sees him knock the girl down, rape her and strangle her, drag her body into the bushes and run away. And even she didn’t go to the police. She said she didn’t want to get involved.’
We ate the fish and the potatoes. We drank some wine.
‘I’ve never been on a jury,’ said my friend. ‘Have you?’
‘No. Never been called. But I’ve heard stories and read books. And I’ve seen Twelve Angry Men about a hundred times.’
‘How about you boil Waite’s evidence right down,’ she said. ‘Just say you leave out all the iffy stuff about headlight angles and tinted windows. What do you get?’
‘You get,’ I said, ‘that she saw his car behaving weirdly, well before it went up the overpass and got to where he says he started coughing. You get that his car was doing sixty, moving side to side in the left lane.’
‘You get that he was distracted,’ she said, ‘in another space—wouldn’t look at her, probably didn’t even notice she was there.’
‘And you get that he wasn’t coughing. That part I believe, tint or no tint. He’s never said he started coughing before the overpass. Maybe he was just dawdling? Waiting for there to be no traffic on the road?’
‘Or maybe you get that something was going on in his mind,’ she said. ‘Some sort of struggle. Two parts of him slugging it out.’
‘Yes! And she saw him right on the cusp of it. The face in the back must have been Tyler, the middle boy. She was the last person to see him alive.’
My friend asked if I had Gambino’s 60 Minutes interview on tape. Grateful for company, I dug it out and we settled on the couch. The boys played in the bath, shyly smiling at the camera. Moules and Gambino sat on the grass beside a creek, declaring their love and talking about a ‘summer wedding’. And there was Gambino competently handling Bailey, the heavy-headed newborn, tiny enough to be swaddled in a single nappy. I turned to tell my friend that, at the time the children drowned, Bailey was still being breastfed once a day, that the symbiotic bond between mother and infant had not yet been broken. But my guest’s head had dropped towards her chest. Cradling a cushion in both arms, she was sound asleep.
Once I would have jostled her, shouted, ‘Wake up! Pay attention!’—but I had been learning, during the second trial, that the desire for sleep does not betray only boredom or fatigue. In these weeks of long, slow trauma interspersed with bloody skirmishes, I had found that suddenly falling asleep was a way of defending oneself against the unbearable.
I turned down the volume and watched the rest of the interview on my own. My friend woke in time to see its final moments—Gambino in her crushed pink blouse, her cheeks glossy with tears, saying, ‘I’ve got so many anniversaries throughout the year. It’s always there. I’m never gonna be that person who used to have three children fed, bathed, showered, and bouncing out the door at 8.30 in the morning—I’m never gonna be that person again.’
‘You’ve got to, darling,’ murmured my friend, pressing the cushion against her belly. ‘Somehow you’ve got to find a way.’
…
The mysterious child’s face that Dawn Waite said she saw pressed to the side window, making her think that all three children had been riding in the back seat, caused a brief flurry. Justice Lasry sent the jury out, and Dr Michael Burke, the pathologist who had performed the autopsies, was recalled and asked to account for two small bruises that had been noticed on Jai’s shoulders, at the point where the collarbone reached the shoulder joint. Was it possible that Jai had been sitting not in the front passenger seat but in the centre of the back seat? That, at impact, he had been vaulted forward between the two front seats, bruising his shoulder tips, before his head hit the dashboard and incurred the injuries to his forehead and left cheek? By the time Dr Burke came to give his evidence before the jury—when he spoke more frankly about the distressing surgical processes of post mortem than he had at the first trial—the only new suggestion that surfaced was that Jai might not have been restrained by a seatbelt at the moment of impact. Waite’s observation that the children had all been squashed in the back could not be validated. But it left a residue of confusion, a little jet of fresh sorrow.
…
In the three years since the first trial, Shane Atkinson and Tony McClelland, the young men whom Farquharson flagged down on the road and persuaded to drive him to Gambino, had lost their wild beauty, and perhaps their youth. They looked haggard: paler, thinner, more lined. McClelland had got his carpenter’s ticket, and had done something to the colour of his hair. Atkinson, the mill-worker, was still, or again, unemployed; his baby, whose birth they had been on their way to celebrate that Father’s Day, must be nearly old enough to start school. I could not tell if the two men were still friends, but surely the experience they had shared that night would link them for the rest of their lives, whether they wanted it to or not.
Mr Morrissey was gentle with Atkinson. ‘I’m wrong and you’re right,’ he said at one point, and Atkinson replied patiently, ‘Thank you.’ But when pressed too hard, Atkinson’s hackles went up. ‘I think you were here last time,’ he said to Morrissey, ‘puttin’ words in me mouth.’ A soft laugh flew along the bar table and up to the bench. I heard it as affectionate, but the witness’s face darkened and I saw the humiliated schoolboy behind the country battler he had become. He raised his eyes to the judge, and stretched his long back. Then, for a few minutes, I must have nodded off. When I came to, both he and McClelland had been dismissed, and I never saw them again.
…
Across the road near the coffee cart I came upon Bob and Bev Gambino sitting on a cold metal bench. They shuffled along to make room. Bob wanted to show me a photo he had taken of the defaced headstone on the children’s grave. Morrissey’s suggestion that it could have been their daughter’s doing, or done at her behest, filled Bev with fury.
‘Steve reckons it was a shotgun blast,’ said Bob, ‘but that can’t be right. Too dangerous to the shooter. More likely done with a hammer and chisel.’
He held out his phone to me. On the tiny screen I saw a closeup of the name ‘Farquharson’. Below it, where the dead children’s parents were named, the surface of the shining granite was pitted by a splatter of matte white nicks: a rectangle of assault on the word ‘Robert’.
…
While Mr Rapke in the original trial had been content to let the Crown case float between two alternative versions of murder—either a head of steam that suddenly exploded, or a carefully planned and coolly carried-out act of revenge—the Crown now plumped for the latter theory, and Mr Tinney drove it hard, to the point of suggesting that the sight of Gambino’s face when Farquharson personally brought her the bad news would have been his ‘delicious reward’.
My private doubts about this gothic detail were not shared by the young journalist who had sat beside me while the telephone intercepts were being played. When Gambino told Farquharson that all the children’s seatbelts were found to be undone, when he burst into shocked sobs both on the tape and in the dock, the journalist glanced up from the game he was playing on his phone and scribbled in my notebook, ‘Did you see his crocodile tears?’
One day, when court rose for lunch, I took my sandwich to the Flagstaff Gardens and lay on the grass under a tree. Why had Farquharson, during the first trial, flashed outraged grimaces and vehement head-shakings at his sisters whenever the word ‘suicide’ was mentioned? Was there a moral register on which suicide was more disgraceful than murder? Perhaps the most shaming thing of all, a failure of nerve that no ‘Anglo-Saxon country bloke’ could possibly admit to, would be to launch a murder-suicide and not complete the act. I recalled a famous Sydney story about a man who threw himself off the Gap and was caught before he hit the rocks by a huge and timely wave. The coastguard vessel picked him up unhurt. ‘The minute your feet leave the ground,’ the saved man said, ‘you change your mind.’ An American mother I read about drove her car full of children into a river; she drowned and so did all her kids except the eldest, a ten-year-old, who fought his way across her lap and out through a part-open window. He told police that as the car began to sink his mother had cried out, ‘I made a mistake. I made a mistake.’
Was the core of the whole phenomenon a failure of imagination, an inability to see any further forward than the fantasy of one clean stroke that would put an end to humiliation and pain?
Cindy Gambino had observed that Farquharson had become a better father after their break-up. Perhaps a hard-working husband is screened from his children by the domestically powerful and emotionally competent presence of his wife. When the marriage ends and access visits begin, he has to deal with the kids on his own. He is shocked at first, finds his new duties exhausting and difficult and often tedious; but gradually, by virtue of this unmediated contact, the children’s reality penetrates his armour and flows into his nerves, his blood. Now that he knows them, and knows their love, his exile from their daily life causes him a sharper suffering. To a man who is emotionally immature, bereft of intellectual equipment and concepts, lacking in sustaining friendships outside his family, his children may appear to be not only the locus of his pain, but also the source and cause of it. If only he could put an end to it—amputate or obliterate this wounded part of him that will not stop aching! As the judge in the first trial put it in his sentencing, he forms a dark contemplation…
I watched the thought, to see what it would do. It firmed up, like a jelly setting. And there it sat, quivering, filling all the available space.
…
As the retrial established its own momentum, as Justice Lasry bent over backwards and tied himself in knots to make it fair, efficient and appeal-proof, my respect for Mr Morrissey grew. He was on the ropes, but he fought gamely on. Again and again he had to be pulled up by the judge for referring to his client as ‘Rob’ instead of ‘Mr Farquharson’. It embarrassed him but he could not seem to help it.
The new jury looked as sceptical of his submissions as the first one had, but its style was different. Among the ranks of the serious, the mature and the anxious sat a scattering of student-like young people whose demeanour was relaxed to the point of irreverence. One would lower his chin to the desk in front of him, stretch out a bare arm along his cheek, and blatantly doodle on his notebook or let his yellow biro dangle from his lips. He and another languid youth became inseparable. They entered and left the court together, exchanging whispered comments and muffling their amusement. It was a bromance. Much later, when the journalists were herded into their dismal office so the deliberating jurors could take the air, these two romped together in the sunny yard like puppies.
But among their fellow members I sensed a growing anguish. A third of the way through the trial there occurred an unexplained change of foreperson: the tough-looking older man who relinquished the job moved along one seat and was replaced by an imposing woman of forty or so, swathed in an elegant ruby shawl, who had previously struck me as reticent and rather solitary. A visiting barrister sitting beside me whispered, ‘Maybe a personality clash? There’s a few mothers up there.’ The new forewoman took the seat in the front corner of the box, nearest the judge, pale but determined.
…
It was winter, and in this courtroom coughing was what one did. Every morning when Justice Lasry entered, exactly halfway between the door and the bench he would clear his throat in a spasm that caused his long cheeks to puff out. At any given moment half a dozen people would be trying to stifle their coughs in scarves or handfuls of tissues. But Farquharson’s was the worst. Whenever it took hold of him and a guard had to bring him water, the jurors would slide their eyes in his direction. What if he had an attack of cough syncope here, right in front of everyone? Would it end the trial at once? Could we all go home? One day his hacking got so bad that a lowly member of the defence team had to take him out at lunchtime to get a throat spray from a chemist. He reappeared at two o’clock wearing a huge charcoal suit jacket over his usual shirt-sleeves and tie. It must have belonged to Morrissey: its shoulders were too wide, its sleeves too long. Child-like pathos was Farquharson’s default mode.
…
From the day Farquharson’s imminent second trial was reported in the media, poignant scraps and echoes had come to light from here and there to expand and illuminate the story or simply add to it a dab of colour. Men from Winchelsea and its environs surprised their mates by bursting into tears in back sheds and relating incidents they had not previously thought worthy of mention. Some of these fragments made it into the retrial. Others were scotched in Preliminary Argument as hearsay or fantasy.
But two of them that did surface in court, sad and ironic, stuck to my mind like burrs.
At four o’clock on Father’s Day, before he hit the road to Geelong with his boys, Farquharson stopped off at the house of Michael Hart. Hart had made no appearance in the first trial. He was a carpenter who had done some work on the Farquharsons’ unfinished house in Daintree Drive. He was also a single father involved in the boys’ football club. Farquharson invited him and his son to come along on the drive, but Hart was not in a mood to go anywhere, and said no. To Morrissey, intent upon demolishing the Crown’s scenario of a planned crime, Farquharson’s invitation showed that he could not possibly have been intending to drive into the dam on the way home that night. To anyone interested in psychological states, however, it added one more rock to the burden of loneliness that Farquharson was dragging.
The role of the reluctant friend in this brief incident echoed a bigger knockback that Farquharson had had to swallow the year before. His friend Darren Bushell, the shearer nicknamed DB, broke up with his wife a few months before Gambino gave Farquharson his marching orders. Newly cut loose, Farquharson went round to DB’s place and said he was looking for somewhere to live. ‘He was hinting to move in with me and share,’ said DB to the police in his statement. ‘But I had just gone through all that myself and I didn’t want it again. So I never offered.’
…
The experience of repetition was very disagreeable for some of the people who took the stand. One uniformed officer who had been among the first at the dam seemed to be in a bad way. He clasped his hands and relaxed his shoulders into the stance of endurance that police are trained in; but his distress was manifest, his voice muffled, his cheeks hollow and dark. The older members of Major Collision, lined and limping, gave their evidence again with the low, guarded burn of men who have had a gutful.
Cindy Gambino’s change of heart must have rolled like a tide through the Surf Coast region; other returning witnesses took a less cooperative tone, no matter how Morrissey tried to jolly them along. More often, though, they seemed less hostile than simply weary, their testimony a trek across a distant plain—for by now almost five years had passed since the night at the dam, and in the onward rush of life outside the Farquharson and Gambino families, the reality of Jai, Tyler and Bailey, as with all people who have died, had grown threadbare and dim.
But Morrissey declared that his cross-examination of Senior Constable Glen Urquhart, the tall young civil engineer and reconstructionist from Major Collision, would turn ‘a giant witness’ into a much lesser one.
Morrissey worked his way with slashing skill through the errors and equipment failures and self-corrections of the police investigation. The famous police mistakes he hung round Urquhart’s neck like an albatross. He derided the competence of several less experienced officers who had helped him at the dam. He took him apart for having changed his opinion about which of Sergeant Exton’s yellow paint marks was supposed to pinpoint which wheel of Farquharson’s car. He rubbed Urquhart’s nose in the awkward fact that the Commodore he had used in his video road tests turned out not to have had the preparatory wheel alignment that Urquhart believed it had.
To us listeners, without access to the photo booklets that the jury was studying, the argument was only a flood of talk, but I saw how Urquhart suffered on the stand. His jaw was clenched with mortification, and he kept raising his chin and stretching his neck as if his collar were too tight. It ran counter to one’s sense of fairness that he was not allowed to explain in his own words (or what Morrissey called ‘make excuses for’) how things in his testimony had come to be as they were. The repeated order ‘Just answer the question’ came to sound insultingly tyrannical, like a gag or a bridle. How crude, how primitive were the words ‘yes’ and ‘no’ in the face of questions on which so much hung! Yet although his brow was sometimes beaded with sweat and his mouth flattened with suppressed anger, somehow Urquhart continued to answer neutrally, readily, politely. He would not make a statement on the matter of exactly where Farquharson’s car had started its rightward drift out of the left lane. It cost him something to acknowledge that he could not say, but there was no evidence for it, and on this he held his ground.
And the jury liked him. They felt for him. He was one of the witnesses they instinctively trusted. When he was pulled up by Morrissey for illustrating a point with hand gestures, and said good-humouredly, ‘Sorry! I’ll put my hands in my pockets’, two of the women jurors in the front row sent him open smiles of sympathy. There was something earnest and endearing in his demeanour that withstood Morrissey’s most ferociously detailed attacks. When Amanda Forrester rose, I saw again the miracle of redemption that an air-clearing re-examination can bring about.
As the American writer Janet Malcolm says in her magisterial work The Journalist and the Murderer, ‘Jurors sit there presumably weighing evidence but in actuality they are studying character.’
…
When Greg King was about to be called, to betray his mate for the third time, I would have been grateful to save myself by falling asleep.
But at that moment a bright-eyed, black-browed teenage boy strode boldly into the court and took the seat beside me. The laminated card on his lanyard gave his name as ‘Eggleston’. He was in year ten, he told me, at a certain eastern suburbs private school, and was doing work experience ‘in a lower court’. Taken by an urge to see ‘a manslaughter trial’, he had crossed Lonsdale Street and wandered into the Supreme Court. He had many resounding opinions on the law and the conduct of the courts, and outlined them for me with the airy aplomb of the school debater, but when Greg King sidled in, wearing jeans and a short-sleeved shirt, the boy’s bumptious monologue died on his lips.
Tinney wound up his witness and set him in motion like a mechanical toy. King threw himself at his story, pouring it out by heart in one unpunctuated trembling stream, gasping, sniffing, raking his forearms and sometimes his shins with his fingernails.
Could he explain, asked Tinney, why he had not put the full version of the fish-and-chip-shop conversation to Farquharson, on the two secret tapes? The version that included ‘hate’, and ‘kill’?
‘I didn’t have the heart to,’ said King. ‘I’ve known the Farquharson family, the Gambino family most of my life. I’ve worked with her parents. I’ve got to come between them and put in my best mate. I mean, I’ve got my own kids. It’s a small town. What are they going to think of me? I was fearing for my family and everyone.’ The tipstaff handed him a bunch of tissues and he bent forward, wiping his eyes.
The judge allowed the jury a short break and left the bench while King went outside to compose himself. I turned to Eggleston. ‘What do you make of this witness?’
‘He’s lying,’ he said at once.
‘How can you tell?’
‘Easy,’ he said. ‘While he was having the alleged conversation with Mr Farquharson outside the fish-and-chip shop, where were his children?’
‘Oh, they were inside the shop, waiting for the chips.’
‘Why did he leave them on their own?’ cried the boy in a triumphant tone. ‘He should have stayed there with them.’
An old court watcher doing a cryptic crossword behind us laughed under his breath and muttered, ‘What about somebody who leaves his kids in a dam?’
‘In my view,’ said the oblivious Eggleston, ‘he just read about the case in the newspapers and decided to make sure Farquharson’s found guilty.’
‘Why on earth would he do that?’
‘Any parent would. And,’ he went on smoothly, ‘I can tell that Farquharson hasn’t slept for six or seven nights. His eyes are all swollen.’
‘Hey,’ I said. ‘You should be a detective.’
He bridled. ‘Oh no. I’ve definitely decided to study law.’
Greg King, red-eyed, skulked back to the stand. He tried to reassert his manliness by giving cheek and striking cocky poses. He addressed Morrissey by his first name, and had to be put in his place. When Morrissey described Farquharson as ‘a peaceful, non-violent person’—not like King, who had shown himself to be a violent bully, had he not, in the Winchelsea pub brawl that the police delayed charging him for?—King squared his shoulders and put his hand on his hip with a defiant little swagger. Morrissey worked him over, hauling him through the transcript of his evidence in the first trial, setting traps for him big and small, but King was so literal-minded, so lacking in emotional vocabulary, that Morrissey’s ironic strokes were wasted on him, and we heard only the heavy whizzing of the sword. Flummoxed in the dreary acres of transcript, King spread his hands at last and said, ‘I’m lost.’
In a stage whisper Eggleston pointed out to me the admirable way in which Morrissey ‘made the witness think hard about his answer, in case he contradicted something he’d said before’. But the jurors’ mouths were set in firm lines. They did not like the clever barrister for running rings around this broken-hearted boofhead. And even the censorious grammar-school boy turned pale and silent when King choked up and said, in a flood of helpless tears, that he blamed himself for the children’s deaths because he had not taken seriously what Farquharson said to him outside the fish-and-chip shop.
There was no getting past this. It was the cross King had to bear, and his clumsy carrying of it endowed him, in the end, with a dignity that withstood the worst that the defence could throw at him.
…
I was not brave enough to face the police submergence videos again, but I watched the jury sit through them, with their hands over their mouths. The erstwhile foreman strained his chin so high that the lump in his throat moved visibly. In my memory of the first trial the videos were silent, but this time, at the point where the diver struggled to open the passenger-side door, I became aware of a series of muffled thumps, the sounds of adult effort, and then a horrible low gurgling and rushing. I risked a glance upwards at the yellow boiling of the water, its violent force and huge bubbles, and for the first time I allowed myself to accept the possibility that Jai never did open his door, as Farquharson had endlessly related. What about the reddish abrasions the pathologist found on Jai where his face hit the windscreen—one to the forehead, and a palm-sized one to his left cheek? Wouldn’t a child have been stunned by such a blow? Perhaps it was Tyler in the back, uninjured, who unbuckled his own belt and tried to get Bailey out of his harness? Could the whole thing have happened as the second video test suggested? The car crashes into the water and floats a moment, tilting. Farquharson scrambles out while the force of the water against his door is still weak enough to be overcome. As he swims away, the weight of the water clips his door shut behind him. The dark car fills fast while Jai—or Tyler—fights to unbuckle his brothers’ seatbelts. The rear doors are locked, the offside door handle broken. Jai goes for the driver’s door but the huge pressure from outside defeats him. Tyler’s and Bailey’s lungs are already full by the time the pressure equalises and Jai gets the door open. But he too has run out of air, and when the police diver gropes blindly up the side of the car, hours later, Jai is lying across the front seats with his head protruding through the wide-open driver’s door.
…
Farquharson’s silence about what had happened that night, his inability or his refusal to say how the car went into the dam, was throwing everyone around him into a state of agitation that was hard to bear. Even Justice Lasry, in the absence of the jury, made a slip as telling as the one that Morrissey claimed had put me in contempt: ‘Did the accused drive the vehicle deliberately, or, if he was unconscious, did he fall forward in a way that affected the steering wheel? No one knows except him.’
We, his fellow citizens, could not live in such a cloud of unknowing. The central fact of the matter would not let us rest. It tore at our hearts that inside the plunging car, while their father fled, three little boys had fought with their restraints, breathed filthy water, choked, thrashed and died.
There was something frantic about the way we danced attendance on the silent man, this ‘horrendous snorer’, this ‘sook’, this ‘good mate’ and ‘loving dad’ and ‘good provider’; this stump of a man with his low brow and puffy eyes, his slumped spine and man-boobs, his silent-movie grimaces and spasms of tears, his big clean ironed handkerchief.