This House of Grief: The Story of a Murder Trial

by Helen Garner

  ‘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 sh
e 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.’