by Helen Garner
…
Soon after the boys’ funeral, when the miserable Greg King visited Farquharson with a voice recorder down the front of his pants, Farquharson told him a garbled tale about a secret business plan he had been discussing with his mate Mark in Lorne: a yogurt-distributing outfit worth $300,000 a year. I had thought of ‘Mark’ as a figment, a name Farquharson had pulled out of the air in a moment of panic. But now this phantom walked into court and took the stand: a big, shy, agreeable-looking fellow of forty or so in a short-sleeved blue shirt. Mark Barrett was a self-employed window cleaner from Aireys Inlet who used to work with Farquharson at the Cumberland Resort and knew how he adored his kids. Barrett liked working there, but the money was so bad that he had to leave. As for the yogurt, it was the Greek sort, called Evia, made in a big factory in Sydney by Mark’s brother-in-law’s brother-in-law, and it was selling so well that they couldn’t keep up with the demand. They were looking for a distributor along the Surf Coast. Barrett didn’t want to take it on himself so he told Farquharson about it, because he knew Farquharson ‘wanted to start new roots’. But, as far as Barrett knew, Farquharson had never made any moves towards investigating the opportunity. It was never, he said, anything more than talk.
Gary Davis, a houseman at the Cumberland, was a thin, stooped, haunted-looking man with long arms and big hands. He had always been surprised that Farquharson took every second Sunday off work. ‘Sunday is where you make your money, you know. That’s where the money is. It’s a low-paid job.’ He mimicked his own amazement when he found out that Farquharson had been taking his boys to play football at Auskick and working the Monday instead, for much less pay. About a fortnight before the children died, Davis was wheeling a trolley back to Housekeeping at the Cumberland when he came across Farquharson hunched over the steel grate of a stormwater drain. ‘He had his hands on top of his kneecaps, and his whole face was just like a tomato, cheeks blown out—he was coughing violently non-stop into the grate. You could see like spit spray coming out. I thought it was a virus and I didn’t want to go near him so I went round him and waited for it to end.’
…
On my way home I went to the shopping strip near the station. The greengrocer who had told me about his own blackout on the freeway said he could not get past the evidence of the car’s path into the dam. I asked whether he thought Farquharson might have wanted to kill himself as well. The greengrocer would not wear this. ‘If he’d tried that, he’d be more of a mess now. He looked really healthy in the photo I saw. He didn’t look like a man whose three children were dead.’
But what is a man supposed to look like when all his children are dead?
…
On the last day of the defence case, Farquharson’s sister, Carmen Ross, in a soft grey cardigan with pearl buttons, gave a vivid and convincing description of the blackout her brother had suffered at her house halfway through the retrial. When he started coughing, she was in the kitchen cooking the tea and he was in the lounge room with his back to her. He made a sound like ‘shhhhh’, and ‘dropped like a sack of spuds’. By the time she had turned off the hotplates and got to him, he was sitting half upright on the floor, wedged between the chair and the drinks cabinet. His eyes were open and he was staring at her, but without recognition or response. She could not feel a pulse. He was clammy and pale. She shook him and called his name. His hands began to twitch and his head to move from side to side. Then his eyes blinked. She helped him up on to his hands and knees, and into a chair. He mumbled, but was not aware of his surroundings until he had sat still for a good minute.
As I listened to this pleasant-faced woman, I thought that many a murderer must have plausible, decent siblings. What did it mean, that I believed her account and yet still thought that her brother had been conscious when he drove into the dam? It struck me for the first time that the two propositions were not mutually exclusive. And once again I was overwhelmed by a sense that vast quantities of the evidence in this case were beside the point. Mighty barrages of fanatical detail had gone rushing and chattering past like a river after heavy rain. Battered by the apparatus of so-called reason I would feel my dark sense of Farquharson’s guilt tremble and falter. But as soon as a momentary quiet fell, the same little worm would wriggle to the surface: None of this proves anything either way about what happened on the night.
What was the point? What was the truth? Whatever it was, it seemed to reside in some far-off, shadowy realm of anguish, beyond the reach of words and resistant to the striving of the intellect.
CHAPTER 18
The two closing addresses, gruelling in their detail, took up exactly a week.
On the Thursday afternoon, stunned by mental exertion, I thought I heard a faint scratch or bump near the ceiling. I glanced up. High in the court’s western wall, a narrow stick about the size of a ruler swept back and forth across the outer surface of a windowpane. It was a squeegee. If Farquharson had looked up, he would have seen his own ghost, already at work.
When Justice Lasry began his charge to the jury, he announced, in a tone that could have been either reassuring or apologetic, ‘I won’t imitate the flourish and invective of counsel.’ At first he stuck to his declaration. He droned dutifully through Mr Tinney’s closing address for three and a half mortal days. He read out hunks of it with samely intonation. He commando-crawled, he scrub-bashed his way through it. The jury fought their boredom. Faithfully they kept their faces turned to the judge, faithfully they took notes. Every time I glanced at Farquharson sitting in the dock, ugly and white with tension, his knotted brow straining up into his hairline, I pitied him simply for the fact that he had to sit there and endure it all again. Sometimes he blew out air through loosened lips, or flapped the sides of his shirt as if to let his sweat evaporate. Every now and then he drew a great, tearing sigh.
But when it came to his one-hour account of Morrissey’s closing, Justice Lasry’s demeanour underwent a startling transformation. No doubt the fact that the last word in a murder trial goes to the defence is testament to the tremendous power of the state; but I was shocked by the gusts of vitality that swept through his discourse. His tone brightened. He freely varied his emphasis and tempo. It was true that Morrissey’s address had been much warmer than Tinney’s, slangier, more direct and spontaneous. Delivering his précis of it, Lasry could not resist imitating the rhythms of forceful speech. Surely he could not have been conscious that his voice was suddenly full of expressive vigour? Despite his disclaimer, he was using barrister’s flourishes. He invested Morrissey’s arguments with the life they had had in their original delivery. He made them sound more persuasive than they were when Morrissey himself uttered them. He even cracked one of Morrissey’s jokes. His intonation was so tuneful that he sounded as if he were giving voice to his own thoughts. He allowed himself the odd hand gesture. He shook his head for emphasis; the double queue of his wig bounced in the air behind his neck. He kept looking up from his text and engaging the jurors’ eyes. Were they registering this extraordinary change of tone? I could hardly believe what I was witnessing. Suddenly I felt sure that Farquharson would be acquitted.
At last Justice Lasry sent the jury out to deliberate. He stood the court down, bowed, and swept grandly through the heavy timber door behind the bench, holding a pink foolscap exercise book against his chest with both arms, as if to comfort himself.
…
I left the court with the media people.
‘What do you reckon?’ I said to one of the young women.
She gave me a bleak look. ‘I think there’s a good chance he’ll get off. I think he did it, but I don’t think they’ve proved it.’
That evening I turned on the radio and heard a Sydney criminal barrister being interviewed on Radio National’s Background Briefing about a high-profile case he had just won.
‘Can you say with certainty,’ asked the journalist, ‘that your client is innocent?’
‘It’s none of my business,’ said the barrister in a harsh, grating voice. ‘I am a lawyer conducting his case. Whether he’s guilty or not is none of my concern, and I’ve never conducted a case in which the result has been of any concern to me.’
At such a jarring moment I could not help recalling a remark I had once seen quoted from a speech by Lord Bingham, a former Lord Chief Justice of England and Wales. He was robustly in favour of the appointment of lay magistrates, he said, because they were free of ‘the habits of thought, speech and bearing which characterise professional lawyers and which most people find to a greater or lesser extent repellent’.
Years later, though, in the Age death notices one morning, I read column after column of tributes to a member of the Victorian criminal bar who had died in his forties of an aggressive cancer. He was held by countless people in the highest and most tender regard. In lofty phrases or stumbling clichés they tried to express their sorrow. One simple message moved me more than all the rest: I am free today because of you.
…
The jury was out. I hung around the yard with the journalists, or wandered off by myself into the building’s distant corners. A weird, glassy spell hung over the corridors. Once I fancied I heard faint piano chords issuing from the depths of an empty hallway.
The defence team when they passed looked remarkably merry. Several of them greeted me with cheerful smiles, as if their three-month snub had occurred only in my imagination. One afternoon, through the lace curtains of the empty, fluoro-lit pressroom, I watched the jury file into the yard, fan out into its bluestone spaces, and begin to pace around it, exactly like prisoners. Someone had heard raised voices from their room.
‘Hung jury, or they’ll acquit,’ said an ABC reporter.
Three days passed.
Wandering the streets at lunchtime on day four, I ran into Bev Gambino outside a kitchenware shop near Southern Cross station.
‘It’s Tyler’s birthday,’ she said, with her sad smile. ‘He would have been twelve today.’
‘What sort of a boy was he, Bev? I hear about the others, but not about Tyler.’
‘Oh,’ she said, ‘a very loving boy. Quiet. Lots of hugs.’
We stood together on the footpath. It was a coldish day, with a misty drizzle. I would have liked to take her arm.
‘I just drift around,’ she said. ‘I see things, but they don’t sink in.’
…
At a quarter to five that day the jury came back. In the thick silence, even the judge’s breathing was audible.
Three times guilty.
They say it is a terrible thing to see a man go down, but I had never seen a face as stark, staring white as that of Peter Morrissey.
Farquharson’s sisters and his person of comfort sat in a row with their hands covering their eyes like visors. Only their mouths were visible, quivering with shock and pain. Later, on the radio, I would hear that Farquharson ‘trembled, looked astonished and annoyed, and mouthed the word “What?”’ But all I saw was the back of him when they took him to the cells, a guard on either side: his slumped shoulders, his short neck with its recent, harsh haircut that left a band of pale skin above his collar.
And Cindy Gambino neither wailed nor wept. Instead, she drew her swooning mother’s head into the curve of her neck and kissed her on the temple. It was a moment of such intimacy, such unexpected grace, that I had to turn away.
…
Towards the end of Farquharson’s plea hearing on 16 September 2010, Mr Morrissey burst the bonds of his case. He was going against his client’s instructions, he said—his instructions were absolutely otherwise—but he urged, he pressed the judge to see Farquharson’s act for what it really was: ‘a suicidal driving off the road, taking the kids with him’. It was a wild, last-ditch claim for mercy. Justice Lasry’s face remained impassive, but Farquharson’s flushed, and twisted into a knot of anger.
…
The sentencing was scheduled for one month later, 15 October 2010. A crowd gathered early outside the locked door of Court Eleven. At 10.15 the tipstaff emerged. He went from group to group announcing in a whisper that the hearing was postponed for an hour. He gave no reason. People wandered off. I went into the Supreme Court Library and tried to read a newspaper. I returned at 11.15 and found the court doors open and everyone already inside, packed in their rows. I managed to grab a spot in the centre behind a line of five large Major Collision members. Silence. At 11.30 came the tipstaff ’s loud formal knock. Justice Lasry in wig and red robes swept in.
Mr Tinney rose. For unexplained reasons, he said, Ms Gambino and Mr Moules had left Winchelsea a bit late. They were now delayed by heavy traffic on the Westgate Bridge. Would His Honour consider holding proceedings a further ten minutes, until they could get there?
Lasry rocked back in his throne. He remained speechless for several seconds, with the expression that greets a manifestation of unusual gall. Ten minutes from the Westgate Bridge, he said, was not a realistic estimate. The sentencing was likely to take about half an hour. They would probably get there for the end of it. Morrissey said he did not object to the wait. The judge agreed to leave the bench for a short period, to give them a chance to make it.
Farquharson’s family sat massed in the side seats from which I had observed the majority of the trial. A hum of talk arose in the room. A journalist told me that Gambino and Moules had married five days ago, on the auspicious date 10/10/2010. While we waited, my eye accidentally caught that of Kerri Huntington. We held each other’s gaze for a second, without acknowledgment or expression, then looked away. I dashed a glance at Farquharson in the dock behind me. His hair was longer, his face puffier and older, his skin a creamy grey. Ten, twenty, thirty minutes passed. Then I heard a woman’s voice, low, with an edge on it: ‘Roll out the red carpet. The red carpet.’ Along the row of policemen’s backs I saw Gambino and Moules slide into the room. As they took their seats behind the bar table, Gambino whipped out a yellow comb and ran it through her purple hair from scalp to shoulders. I glanced at Huntington. Again our eyes met. Motionless under the springy perm, her face radiated hostility and disbelief.
Justice Lasry strode back to the bench. He read out his remarks in a vigorous, expressive tone. He deplored the crime, but said he did not accept the ‘extreme version’ of Greg King’s evidence and was not sentencing Farquharson on the basis of it. He said that Farquharson was not a risk to the public, and that before the murders of the children he had been of good character. He gave him three life sentences, with a minimum term of thirty-three years.
Before the crying could start I grabbed my things and bolted. Outside, the heavens had opened. I ran into a sandwich shop and gulped down
a hot pie. Back in Lonsdale Street, I encountered Bob and Bev Gambino charging away from the TV cameras under a big umbrella, hurrying towards shelter. They saw me and waved. Their faces looked more open and free than I had ever seen them. We called goodbye and kept going in opposite directions. I stumped home, my umbrella blown inside out, my trousers soaked to the knee.
…
Nobody knew, that day, how much longer this story would drag on.
A year and a half later, in May 2012, still represented by Mr Morrissey, Farquharson appealed again in the Victorian Supreme Court, and was rejected.
On 16 August 2013 he made application, in Melbourne, for special leave to take his case to the High Court in Canberra. This would be his last chance. Louise, my long-gone gap-year girl, turned up at the hearing without warning and slid into the seat beside me. She was a young woman now. It was six years since she had seen any of the story’s people. She was shocked by how much older and wearier they looked.
Before a trio of august High Court judges from the nation’s capital—a woman and two men—Morrissey was permitted twenty minutes on his feet. When he rose, his black robe flapped loose on a torso that had lost an alarming amount of its bulk. Justice Lasry, he argued, had failed to tell the jury that they could find Farquharson guilty of manslaughter rather than murder: Farquharson had known he suffered from a respiratory condition that could make him black out at short notice, thus he was a negligent driver who knowingly imperilled other road users, and risked the lives of his own children. The judges listened and questioned, cool, dry, polite. The twenty-minute limit was rigorously enforced: ‘Sunset time, Mr Morrissey,’ said the judge in the middle, with a regretful smile. The three of them got up and left the bench. In their absence three solemn young officials, like figures in a fairytale, stood motionless behind their empty chairs, holding the backs of them with formally placed hands. No one dared to speak. Four minutes later the judges surged back in and took their seats.