This House of Grief: The Story of a Murder Trial

by Helen Garner

  Now Rapke sharpened the focus. He asked Professor Naughton to imagine himself clinically faced with a man aged about thirty-seven, moderately overweight, a smoker who said he went through a packet roughly every three days. He was generally in robust health, but had been suffering for about three weeks from an infection which commenced in the upper respiratory tract, then developed lower down, and was being treated with antibiotics. An ECG taken ‘after a certain incident’ revealed no heart abnormality, a systolic reading of 140, and a rapid pulse. Seen immediately after the incident by paramedics and doctors at a hospital, he was not observed to be coughing. He had taken fluids within two hours of the incident. At the time of the incident, which he said occurred while he was driving, he was in a seated position. After the incident he was generally coherent and seemed to be lucid. He had been immersed in cold water, but had got himself out of the water, waved down a car and conversed with its occupants.

  Morrissey jumped to his feet. To say that the man was coherent and lucid, but not that he was also delirious and a babbling mess, was misrepresenting the true situation!

  ‘I won’t intervene,’ said the judge. ‘Go on.’

  No underlying medical illness was known or detected, Rapke continued smoothly. Blood tests showed no alcohol or drugs in his system. The patient claimed that as he was driving on a cool, even cold night, he had a coughing fit at the wheel of his car, and blacked out. Based on these facts, what was Professor Naughton’s professional opinion of the likelihood that the driver of that car had suffered an episode of cough syncope?

  The professor hardly allowed a pause. ‘Extremely unlikely.’ From Rapke’s description, the man’s heart and lungs were in reasonably good health. He did not appear to be disabled by breathlessness. He was plainly not dehydrated. A dehydrated person who coughs would be more likely to experience changes in the pressure inside his chest—maybe not a blackout, but a dizziness that doctors call pre-syncopal.

  Naughton was quiet and lucid. Rapke stood still and let him go on uninterrupted.

  The interior of the car, said Naughton, where the hypothetical man said the coughing fit had overwhelmed him, would have been much warmer than the air outside. Cold can often trigger coughing, but this man did not cough after the event, although he was exposed to cold air and wearing wet clothing. Also, at the time he claimed he had started to cough, he was seated. A lot of our blood volume is in our abdomen and legs: cough syncope is more likely to occur if someone is fully upright.

  Certainly he had a common-or-garden variety respiratory-tract infection. These happen every day in society, yet people with colds are not having cough syncope on a day-to-day basis. A single episode of cough syncope in a relatively warm environment, and one that was not replicated, struck the professor as highly unusual.

  What if this hypothetical man, two days before the crash, asked Rapke, had been observed to have a severe coughing fit while on his feet? If he had gone red in the face, but had recovered once he was invited to sit down?

  The fact that man had not passed out only consolidated the professor’s opinion. All of us in this room, he said, could cough to the point at which the colour of our facial skin changed.

  He would expect a person with cough syncope to recover consciousness within seconds. He might feel confused for a few moments. Naughton had read reports of people becoming ‘flaccid’ when they lose consciousness: he let his head and shoulders droop forward, and flopped his hands apart, palms up, on the rail of the witness stand.

  ‘In that period,’ asked Rapke, ‘would the person be capable of any purposeful movement?’

  ‘Not if he was unconscious!’

  What did it mean to say that the diagnosis—even a provisional one—of cough syncope is done ‘on history’?

  ‘We’re dealing,’ said Naughton, ‘with an extremely rare condition. Ideally we like to have a collateral history—at least one observer who witnessed the person cough and black out. But there is no definitive test that confirms or refutes cough syncope, apart from a classic description.’

  ‘The accuracy of the diagnosis is, then, solely dependent on the history?’

  ‘A hundred per cent,’ said Naughton.

  ‘But,’ said Rapke, ‘if you’ve got only the patient saying it happened, how does one test the diagnosis?’

  ‘It’s impossible to test. It relies on the individual providing an accurate history of what went on.’

  …

  Mr Morrissey himself was still struggling with spasms of harsh, dry barking that threatened to overwhelm him, but he was soon roughing up Professor Naughton with skill and gusto.

  ‘You’re not an expert in cough syncope? Did you tell the prosecutors, when they came to you for an opinion, that you’ve never seen it, never written about it, never diagnosed it, and didn’t know the way an episode would unfold if it happened? Yet they still called you as a witness?’

  Naughton protested. ‘I’ve completed a training in respiratory disease where these conditions are discussed.’

  But Morrissey made him out to have swotted up on cough syncope very recently and shallowly. Had he not read only one textbook and one article on the condition? Did he even know how to take a history of a cough syncope episode?

  Naughton bristled. ‘I am educated about cough syncope,’ he snapped. ‘I do take a history of cough syncope when it’s presented to me. Because of its rarity, I don’t profess to be an expert in it.’

  Well, had he read the list of cough syncope case studies that the defence had provided him with?

  ‘I did my best,’ said Naughton, ‘but they’re often not electronically available, and they take some time to locate. A lot of that data is many, many years old.’

  Even so, said Morrissey, didn’t the data contain case histories of people without chronic airways disease who had been diagnosed with cough syncope while driving cars? Didn’t Naughton read the study of the four heavy-goods-vehicle drivers who had been involved in fatal crashes? They didn’t have chronic airways disease, but doctors were prepared to diagnose cough syncope on the histories they had provided. Didn’t this show that it was possible for a man without such a disease to have a coughing fit while driving and black out?

  Naughton was beginning to gnaw and purse his lips, but he maintained steady eye contact with Morrissey. ‘I would rephrase that,’ he said. ‘I would say it is possible for someone to provide a history of having had cough syncope in the absence of chronic lung disease.’

  What about the provisional diagnosis of cough syncope made by the Emergency Staff Specialist at Geelong hospital on the night of the crash? Wasn’t Dr Bartley, who unlike Professor Naughton had the benefit of being on the spot and taking a history from Farquharson face to face, fully entitled to make that diagnosis?

  ‘That’s his call,’ said Naughton.

  What if a bloke came to Naughton and said, ‘Look, I’m twenty-eight. I don’t smoke. I play football. I’m a legend. But I’ve had an attack of coughing and blacked out’?

  Naughton shrugged. He couldn’t exclude the possibility, but he would be very surprised indeed to hear of such an unlikely thing.

  But Morrissey ushered Naughton down a fire escape of unlikelihood, step by step. ‘Since it could be possible,
though extremely unlikely, with a person who’s twenty-eight and has no health problems, you’d agree with me that it’s less unlikely if he were a smoker? Even less unlikely if he were thirty-seven rather than twenty-eight? Even less unlikely if he’d had an acute respiratory-tract illness for three weeks? Even less unlikely if he’d suffered from paroxysms of coughing during those three weeks? And less unlikely still if he’d been witnessed to have a bad gripping coughing attack where the watcher thought he was going to have a stroke and told him to sit down?’

  Naughton assented in a wary, affectless tone to each step.

  But then Morrissey got down to what he riskily called ‘an actual episode’. On the Thursday before the crash, Farquharson had reported to his friend Darren Bushell, a Winchelsea shearer known to everyone as DB, that he had had a coughing fit in his car a few days earlier. He told DB he had blacked out at the wheel of his car outside the Winchelsea roadhouse; when he came to, he found his car had driven twenty metres further towards some rocks.

  Mr Rapke sprang to his feet. ‘That is based on an assertion, not a witnessed event!’

  Morrissey pulled his horns in. Had Naughton not noticed this report of Mr Bushell’s in the documentation he had been provided with? No? Still, if this incident were accepted as a proved fact, wouldn’t it have a massive impact on Naughton’s opinion?

  ‘It would have an impact,’ said Naughton.

  And had the prosecution told the professor that, three weeks after Farquharson’s car went into the dam, a man called Zane Lewis had come forward saying, ‘I had one of these’?

  ‘Bloke down our way,’ whispered the reporter from the Geelong Advertiser. ‘Ran his car into a fence and said he’d had a coughing fit.’

  ‘I object!’ said Rapke. ‘That’s not fact at all. There’s no evidentiary basis for that whatsoever.’

  ‘Had one of these?’ said Justice Cummins, picking up the words in tweezers. ‘It’s not something you get off the supermarket counter. Is he an expert in neurology? Or an expert like this professor? Or is he a layperson? Is he expressing a medical diagnosis? What are you talking about?’

  ‘Would it have been of interest to you, Professor,’ said Morrissey, corrected, ‘in your consideration of the nature and scope and existence of cough syncope, to meet someone who said he had a coughing fit and drove off the road after blacking out?’

  ‘Yes,’ said Naughton politely. ‘That would be of interest.’

  …

  Court rose for a short break. Some of us stayed in our places, updating our notes. Mr Morrissey’s junior, Con Mylonas, got out of his chair and wandered along the bar table towards the press box. He was a small, dark man with pouty lips, who wore his wig low on his forehead. The word among the journalists was that he had been a brain surgeon before he came to the law, and had been taken under Morrissey’s wing. He stopped in front of me. I looked up nervously.

  ‘What’s your take on this guy?’ he said in a confidential tone.

  Did he mean Farquharson? Why the hell was he asking me? I stared at him in alarm. But he jerked his head at the witness stand that Professor Naughton had just vacated.

  ‘I don’t know.’ I blurted out the first thing that came into my head. ‘He’s biting his lips a lot. What do you think?’

  He smiled genially, and strolled away. Baffled, I turned to Louise; but she and the young journalist from Geelong were doubled over like schoolgirls in a fit of silent hysterics.

  …

  For the rest of that afternoon Morrissey hammered away at Naughton. Hadn’t he jumped too early? Offered his opinion before he had properly informed himself? Wasn’t he now too proud or vain to admit he had been wrong?

  Naughton rolled with the punches, continuing to work his lips and teeth. Eventually he got a grip. For twenty years, he said, he had regularly attended conferences. Some of these were focused purely on cough. Cough syncope had not been included as a condition that respiratory physicians should be routinely aware of. He kept a close eye on the medical literature as it came through. In the last fifteen or twenty years he hadn’t seen anything on cough syncope. References he had found were from the 1980s. He was yet to be convinced that there were physiological reasons to explain cough syncope in an otherwise healthy person who does not have any chronic lung, heart or brain disorder.

  He offered a brief, clear lecture on the four levels of evidence in medicine. ‘As I read the data here,’ he said, ‘we’re running on the lowest, most anecdotal level to support a diagnosis of cough syncope. I’m not saying it doesn’t exist. I’m just saying it’s rare, it’s poorly defined, and most of the time the episodes are not witnessed.’

  ‘So in short,’ said Morrissey with a light scorn, ‘you’ll believe it when you see it? You’re as good as the scenario you’re given?’

  ‘Absolutely.’

  ‘Rare conditions do happen, though? It’s not much use to a person when they get a rare form of cancer to be told, “It’s all right—it’s rare”? The fact that it’s rare doesn’t tell you it can’t happen? Just that it’s unlikely to happen?’

  Louise, who had been studying the jurors with a pale concentration, leaned over and whispered, ‘Even when he wins a point, he does it in such a way that the jury doesn’t seem to notice.’

  There was no imaginable resolution. Barrister and witness would prowl on forever, in this debate. Neither would be able to land a knockout blow. Again, in the dying fall of the cross-examination, the glaring fact presented itself: no one but Farquharson knew what had happened in the car that night, and, by now, perhaps not even he knew.

  …

  In a few deft strokes Rapke drew everything back into shape. While the bruised Naughton reasserted his professional integrity, Morrissey swung sideways in his chair and turned his face towards the jury, histrionically suppressing a sceptical smile.

  Morrissey set great store by the vivid phrase ‘babbling mess’, describing Farquharson’s state when he flagged down the two young men on the roadside and begged them to take him to his ex-wife, but Rapke drained it of power: when it was traced back through the transcript, it was found to have originated not from the mouths of Shane Atkinson or Tony McClelland, but in a question that had been put to them by Farquharson’s counsel at the committal hearing in Geelong.

  Lastly, Rapke dispatched the defence’s case study of four heavy-goods-vehicle drivers who were on the record as having experienced cough syncope immediately before they were involved in fatal smashes. Naughton pointed out that the truckies had each given ‘a classic description’ of cough syncope; that none of them had had prior episodes of it; and that all four episodes were unwitnessed.

  And were those four fatal smashes the subject of police investigation?

  They were.

  ‘Thank you,’ said the prosecutor, and sat down.

  These casual coups that Rapke pulled off made the spectator in me want to stand up and cheer. At the same time a chill ran over me. While Morrissey slugged away with a big heart on his sleeve, Rapke sat hunched in his chair, unruffled, peering up at an angle into an invisible light that seemed too strong for his eyes.

  …

  I went to my local shopping centre to buy some vegetables. The frien
dly woman who ran the greengrocery asked me what I was working on. My answer upset her. She covered her mouth and her eyes filled with tears. I stood at the counter while she wiped them away. Then she told me something that surprised me.

  ‘My husband,’ she said, ‘had a coughing fit once and went off the road.’

  She called his name and he emerged from the storage area. He was the sort of man Morrissey might have described as ‘a barrel-chested individual’: in his forties, thickset, carrying a bit of weight, used to long days of physical labour. His wife told him what I wanted to know. He looked at me narrowly.

  ‘Come out the back. We can sit down.’

  We picked our way between crates and bags to a battered formica table. He listened while I outlined, in the most neutral terms possible, Farquharson’s account of his crash.

  ‘I can tell you what happened to me,’ he said. ‘It was about four years ago. I was driving my HiAce van—it’s a manual—along the south-eastern freeway in the middle of the afternoon. My daughter was with me. She was about thirteen. Quiet time of day. Not much traffic. Four lanes going each way.

  ‘I remember starting to cough. I remember slowing down to about sixty or seventy. I cut left across two lanes, to pull into the emergency lane, and I blacked out before the impact. After that I don’t remember anything till I heard my daughter saying, “Dad!” I came to slumped over to my left side, towards her. I only knew there’d been an impact because she was saying, “You hit the rails!” She’d grabbed the wheel and the car had swerved back to the right, across four lanes, and ended up in the median strip.

  ‘As I was coming to, I could hear sounds but I couldn’t see. You know when you’re on top of a hill and you can hear traffic far away? It was like that. I reckon I would have blacked out for about a minute. The vehicle would have been out of control. I wouldn’t have been able to brake or accelerate. And I came out of it slowly. My daughter shook me. I could hear her voice, miles away. It got clearer and clearer. She was saying, “We hit the rail!” and I was saying, “No, no, we couldn’t have.” Then I got out on to the median strip and had a look. I saw the damage. That’s the first time I believed what she was telling me. The front left indicator had got sideswiped against the guardrail of the emergency lane.’