by Helen Garner
Without a struggle, Tinney got Dr Gordon to acknowledge that many of Farquharson’s actions on the night were ‘at the unusual end of the spectrum for a person in a traumatic situation’—for example: that within minutes of the crash he had accepted and resigned himself to the deaths of his children; that he had left his children in the dam and departed the scene; that he had refused offers of help or the use of a telephone; that he took no interest in the rescue attempts and gave no help to the rescuers regarding the likely whereabouts of his car in the water; and that at Emergency, without making even cursory inquiries about the fate of his children, he pressed police for information about what would happen to him.
But when Tinney took the next step, and began to ask Dr Gordon to give his opinion on such odd behaviours if they had been seen in a person who had not had an accident, but who had deliberately driven into the dam with intent to kill, Justice Lasry pulled him up short, and sent the jury out with the tipstaff. In their absence, Tinney dug in. Lasry challenged him. Morrissey fought him. In the end Lasry, in a thoughtful (and, I sensed, reluctant) ex tempore ruling, decided against Tinney: he was not to pursue this line of questioning.
Dr Gordon was flying to the Middle East that very afternoon and had to be at the airport by two; it was getting on for one o’clock and he was still waiting outside in the hall. But before he could be dismissed, the tipstaff re-entered the court and formally handed up to the judge a scrap of translucent paper. It was a message from the exiled jury. Lasry scanned it. He could not suppress a smile. He read it out. It contained the very questions that he had just denied Tinney permission to put to the psychologist. The jurors had sensed the drift of the argument and were determined not to be shut out.
‘Your Honour,’ said Mr Tinney drily, ‘I can only say that they are the two best jury questions I’ve ever heard.’
There was not much humour in this retrial, but for once the whole court burst out laughing.
Dr Gordon was called back. Justice Lasry put the questions to him: ‘1. Can trauma exist regardless of whether an event is intentional or unintentional? 2. If yes to question one, is there any distinct behavioural difference between someone who has had an accident as opposed to someone who has planned the event?’
‘It would be hard,’ said Dr Gordon, ‘to predict exactly what behavioural differences there would be. But the structure of the trauma will be different. In the first case—an accident—the trauma is the tragedy that’s happened. In the second case—intentional—the trauma will be, “This is what I’ve done.”’
And while a large chunk of cliff with a man on it peeled off behind him, away went the psychologist, in his dark-green suit, to catch a plane to Israel.
…
I found it easy to believe that Farquharson had no clear memory of the two men who found him on the roadside, of the police interview in Emergency, of many of the things that happened or that he did after he crawled out of the dam. But listening to Dr Gordon’s clear explanation of the brain under terrible stress, I recalled from the first trial a discussion, in the absence of the jury, when Farquharson’s Colac psychologist, Peter Popko, was about to take the stand. Judge and counsel had to work out a way to introduce certain material that had sprung from intercepted phone calls between Popko and Farquharson, after the crash. Farquharson had expressed to the psychologist a strong fear that the police investigation might ‘push him into a nervous breakdown’. The particular focus of his fear was the looming lie-detector test that he had volunteered to take, despite the fact that these tests are not admissible in Australian courts. His insistence on subjecting himself to a test seemed a sign of his transparency. But if he knew that he was innocent, I had thought then, why would he be racked with such terror? Now it hit me. It was not that he feared being found out in a lie. What he dreaded, what drove him half-demented with fear, was that the polygraph machine, with its nasty electrodes and its computer power immune to all human appeal, might reveal to him the truth of what he had done that night on the road, the facts that he had blotted out, or convinced himself he did not know, or genuinely did not remember. And he was right to fear the test, for he failed it.
…
The Crown produced again, and lavishly garlanded, its expert witness from the first trial, Professor Matthew Naughton from the Alfred Hospital. Naughton had never seen with his own eyes an attack of cough syncope. He attested to its extreme rarity with a high-level physiological expertise that seemed, the longer he spoke, to become more and more remote from coarse, solid, grassroots experience.
To counter this professor in what the defence made out to be his ivory tower, Morrissey called again the physician Dr Christopher Steinfort, Farquharson’s treating doctor and the keeper of a database of cough syncope sufferers. It seemed that Steinfort was building himself a cough syncope empire down in Geelong. People from the community, hearing of Farquharson’s successful appeal against his first conviction, had approached Legal Aid with stories of their own coughing fits and blackouts, and had been referred to Dr Steinfort. One of these, an intelligent and articulate middle-aged man, took the stand and gave an account of the frequent fits of hard coughing that rendered him briefly unconscious. His wife described the blackouts as she had witnessed them. Their testimony was unnervingly convincing. The authority of this personal testimony arrested Farquharson’s downward slide for several breathless minutes. But then Morrissey delved further into the witness’s medical history—no doubt to keep Tinney away from it—and revealed that, when doctors investigated a stroke the man had suffered, it was found that he had a hole in his heart, thought to have been undiagnosed since childhood. How on earth could a jury be expected to evaluate a medical case so complex?
Another citizen who had come forward when he read about Farquharson’s troubles, and had been sent to Dr Steinfort in Geelong, was a sixty-one-year-old security guard with a red face, popping eyes and a blustery manner—formerly a heavy smoker, who had suffered from asthma and had also been diagnosed with emphysema and high blood pressure. He reported, over several years, up to a dozen blackouts after coughing. His first witnessed fit of cough syncope had been brought on at home by his laughter at a Billy Connolly DVD. His next attack, unwitnessed, was not so funny. Driving home one morning from a night shift at the Melbourne Stock Exchange, he blacked out on the Western Ring Road, veered across the carriageway, and was collected by a semi-trailer. At first he and the attending police thought he must have fallen asleep at the wheel. A charge of dangerous driving was dismissed when he remembered he had been coughing before he passed out.
But Morrissey really shot himself in the foot by screening, twice, a grotesque little video of an elderly gentleman, wheelchair-bound with lung disease, his head sprouting electrodes, who demonstrated that he was able to cough himself unconscious at will. At a signal he gave three determined croaks and went limp. His false teeth flew out and were deftly caught in one hand by a plump, exuberant nurse. In a few moments he came to. He uttered word-like sounds, replaced his teeth, and was given a cup of tea.
Thus, for all the eminence and the conflicting hands-on experience of the medical experts, for all Tinney’s long, battering cross-examination of Dr Steinfort—under which that excellent witness lost his temper and got defensive and poured out torrents of technical explanation that made the jurors’ eyes go dull and their heads droop left and right—the cough syncope eviden
ce hung once more in a balance that neither side could weight to its advantage.
Later, in his charge to the jury, the judge would lay down their duty very clearly: ‘If you can’t resolve the conflict between expert witnesses, the benefit of the doubt must go to the accused.’ I wondered what chance there was that this would happen.
…
Leona Daniel was the social worker and grief counsellor whose name Farquharson had mentioned many times—the person who first suggested to him the word ‘pressure’. Now she took the stand. She was a woman of mature years, with a dry, warm, deeply appealing manner and a face that opened when she smiled. At ten o’clock on the night of the crash, she had walked into the Geelong Emergency ward and found Farquharson thrashing about in his bed. He was tremendously flushed, she said, sweating, at one point coughing, rolling his head from side to side, and very dishevelled: ‘the bedclothes were everywhere’. He was ‘clearly in great anguish about his children’. Her role was not to challenge or question him about what had happened. She simply accepted what he said at face value. She placed her hands on his forearms and spoke to him gently. He was not Superman, she told him. He would not have been able to open the doors because the water pressure would have been so great. The car would have sunk quickly. There was nothing more he could have done. She even told him that his children might be ‘up in heaven with his mum’. But nothing could comfort him. He kept saying that he shouldn’t be there. He wanted to go home. He wanted to go for a long walk. Everyone would blame him, he said, and he blamed himself. He said, ‘I should have done something. I should have done more. I should be with them.’
Several times, without interpreting them, Leona Daniel quoted his words. ‘I shouldn’t be here. I should be with them. I shouldn’t be here.’
…
A bunch of eager young men and women, friends of the fiancé of Farquharson’s niece, had recently gone to the overpass and shot amateur videos of each other driving four ordinary sedans down the slope. ‘Drive-by, rough-and-ready experiments’, as Morrissey called this volunteer contribution, would clearly show that the crossfall of the road, unmeasured by Major Collision in its lapse of attention, did cause vehicles to drift to the right, instead of moving to the left or maintaining a straight line as Senior Constable Urquhart’s own video tests had demonstrated. Justice Lasry seemed to be humouring Morrissey when he allowed these new videos to be shown, with their faint, giggling soundtracks and rain-spattered windscreens. But it was true: the cars did appear to diverge slightly to the right. The crossfall did have meaning. The police were shown to have been remiss in not measuring it.
Farquharson watched all this with his head tilted back, his little eyes glaring. Once he glanced at the jury with his chin out, as if to say, ‘See that?’
The defence expert witness on this matter was David Axup, the former member of Victoria Police who now ran his own private traffic consultancy. In the original trial, Mr Rapke had skilfully backed the gravel-voiced, Kiplingesque oldtimer into a corner: he was obliged to acknowledge that in order to have left the rolling prints between the gravel and the dam’s edge, the car’s trajectory must have included three ‘steering inputs’—a term that Morrissey had gradually beaten back to the more neutral ‘changes of direction’. But Axup’s concession had drastically weakened the possibility that Farquharson could have been unconscious at the wheel.
In the retrial Mr Morrissey concentrated on what Axup’s crossfall diagrams showed about terrain. Just about everything Axup had measured at the scene showed, he said, that a car rolling down that slope without a conscious driver would have had a tendency to bear right. The middle section of the rolling prints in the grass, as Axup saw them, lay in a curve, not a straight line as Urquhart had claimed. And this time Axup asserted that there had been not merely three changes of direction or steering inputs, but an unknown number of much lesser ones, due to something called ‘bump steer’: small changes of angle when the front wheels of the car had encountered objects on the rough terrain—tussocks, the fence, invisible grooves perhaps left in the dirt by tractors or livestock and disguised by grass.
When Axup was asked to use the Smart Board, I slipped out of my side seat and into the centre row. From there, seen full face instead of in profile, he looked markedly older and more fragile than he had seemed three years ago. Often now he had to ask counsel to repeat a question. Sometimes, under cross-examination by Amanda Forrester, his whole person radiated alarm: his head would rear back, and he would show white all round his irises like a startled horse. Later I noticed with a sharp pang the hearing aid on the arm of his spectacles.
Forrester took him on with a leisurely, teasing confidence. She was completely at ease in the territory of arcs, radii, percentages and degrees. Axup addressed her as ‘Ma’am’, but it must have been galling to be roughed up by a woman young enough to be his daughter. Each time he threw in a technical correction or a piece of jargon, she would pause to let him think he had got the upper hand, then tilt her head and, with a twinkling smile that showed her white teeth and swelled her rosy cheeks, scoop up his point and enlist it into her larger argument. At every coup, the faces of the younger women in the jury would flicker with what I read as relief—or perhaps it was a version of the general exhilaration outside the court in those same weeks of June 2010, when the country’s first female prime minister took office: the heartening spectacle of a woman who was not afraid, who was out there in her natural sphere where she would proceed to kick arse as she pleased.
In Forrester’s hands the confusing mists of the defence case dissipated and left a prospect of clean, dry lines. If the car was not being steered, then it would follow the lie of the land. Thus, the car could not have gone down the slope as Axup had measured it and still have followed the arc of the rolling prints through the grass to the dam unless some leftward pressure had been exerted against the rightward drop of the terrain.
Was this, at last, the nub of the matter?
…
In a slow cascade of pathos, the defence case narrowed down to a handful of witnesses with personal knowledge of Robert Farquharson at work and at home.
One of these was Wendy Kennedy from Birregurra, a housewife and part-time receptionist in her thirties with a clear brow and dark curly hair. On her way past the dock she flashed Farquharson a warm smile. She had been friends with him and Gambino when they were a couple. Her son was close to Tyler, and she had spent a lot of time at their house. She had delivered the eulogy at the boys’ funeral.
Rob was angry about the separation, yes. Upset, yes. But like other defence witnesses Kennedy seemed to sidestep the word ‘angry’. When pressed on this point, she let fall a nervous silence, as if she had been told to downplay it. Frustrated, she said at last. Gutted, maybe. Like, venting. Frustrated and hurt. This was as far as she wanted to go. She had to be urged to tell the court the word she had heard Farquharson use about Moules: ‘Should I say it here?’
‘You can speak,’ said counsel. ‘Whatever it is, you can say it in court.’
She whispered it, with a girlish laugh and a rising intonation: ‘Dickhead?’
Still, when people criticised Cindy, Rob would always stick up for her: ‘She’s a good mum. It’s just a patch she’s going through. She’ll settle down.’ And he certainly did not want to go for custody. Rob worried, though, about the effect on his k
ids of the comparative looseness of Gambino’s domestic life with Moules. When Rob and Cindy were together the kids had routine. They went to bed at a regular time. But in their new household things ran…differently. For Rob ‘it wasn’t good enough’.
What was Farquharson’s daily routine, asked Morrissey, when he and Gambino were still a couple? What contribution did he make to the running of the household?
Kennedy outlined the extra hard work that Farquharson faithfully did, full-time and part-time, both before and after the separation, and his determination to put aside money for Jai to go to university. Then she sketched in an artless way what she called a routine person: ‘That’s Rob. He just does the same thing, really. Get up in the morning, go down the hallway, shut the sliding door. Get ready for work, go to work, come home from work. As soon as he walked in, he would put his lunchbox down and unpack everything. He used to take his own bowl and cup and spoon even though there was a kitchen at work—it’s just Rob. Then he would usually take the kids to kick the footy, come back in, feed the cats. Cindy would cook the tea, Rob would do the dishes. One of them would run the bath, one of them would bath the kids, the other one would dry the kids. Then put the kids to bed and then after the kids were in bed you would see Robert come out, and if you were sitting on the corner of the couch you would have to move across because he laid his work clothes, like the trousers and the jumper, over the corner of the couch. And then he would sit down.’
Farquharson listened to this with his brows high, keeping his eyes on her face and blinking fast. Morrissey had wanted a picture of an industrious, well-organised husband and father, and it pleased Kennedy to provide one, but inadvertently she had played right into the classic paradigm of a man whose sense of domestic order and personal control is wrested from him when his wife breaks up their marriage.