by Helen Garner
…
A pub brawl in Winchelsea? That peaceful village full of law-abiding citizens? Eventually I saw the charge sheet. After a ‘heated discussion’, in the presence of wives and children celebrating Christmas Eve, two men set upon two others, and half a dozen more joined in. It sounded like the sort of free-for-all where blokes run across pool tables to get amongst it. The investigating police officer observed that the assault followed a series of earlier incidents between two feuding groups of locals, in which the victim had played no part. He was not known to his assailants; his mistake, while he consumed ‘approximately five cans of Jack Daniels and Coke’, was to be seen talking to the wrong man at the bar. He was punched and headbutted, even after he had run from the building. ‘It would appear,’ wrote the police officer fastidiously, ‘that a pack mentality prevailed.’ Under the heading ‘Reasons’, one of the arrested assailants told police that he had been trying to find his thong. Another said ‘I just jumped on top.’ Greg King, charged with having punched the victim in the stomach, said, ‘I did the wrong thing.’
King had no prior convictions. When he came before a Geelong magistrate on a charge of unlawful assault on 20 November 2007, a few days after Farquharson got his life sentence, the police handed up a letter recognising his cooperation in the Farquharson case. The magistrate, declaring that this letter had had no effect on his decision, sent King home with a twelve-month good behaviour bond and a $750 fine.
…
Cindy Gambino was by now a public figure. During 2008 and 2009 I followed her fortunes at a distance. She drifted through Woman’s Day and New Idea, dull-eyed and overweight, helplessly acting out her grief. Her interviews were reported in the tabloid language that can reduce the purest human anguish to a pulp.
Any woman could see that in her stubborn refusal to condemn Farquharson she was fighting to hold back an avalanche of misplaced guilt that no mother would survive. The people who loved her must have had to tiptoe around her, muffle their own emotions, cradle her in her protective delusion. How long could she hold out?
I understood now what her mother, Bev, had told me outside court one day—an image that at the time had seemed to me topsy-turvy: ‘You’ve got this mask all over you. You get up. You drive to work. You take the mask off and do what’s expected of you. Then you drive home and on the way the mask comes back, so you can handle everything that’s happening there.’
But the cracks in Gambino’s carapace were beginning to show.
As long as she clung to her belief that the crash had been an accident, she could not claim Victims of Crime compensation. She lodged, and settled for an undisclosed sum, a damages claim against the Transport Accident Commission for severe psychiatric injury. Then she turned to Farquharson’s assets. These amounted to a mere $66,000, but on 14 May 2009, in a Supreme Court decision, Justice Cummins ordered him, under the Sentencing Act, to pay her $225,000 in compensation for her pain and suffering.
…
On 1 June 2009 I climbed the steep stairs from Lonsdale Street to the old Court of Appeal. In the vestibule Mr Morrissey smiled at me. His big face was waxen.
‘You must be very tired,’ I said.
He made a wordless sound and closed his eyes.
‘Are you in despair?’
‘Not despair,’ he said hastily. ‘No. But look—it’s like the ancient myth. Orpheus, having to go back down to the underworld. That’s what it’s like. And I lack the musical talents of Orpheus.’
I followed him through the big doors. Green Court was a higher class of room than Supreme Court Three, recently refurbished with thick green carpet and tilting seats of green leather, and subtly lit by elegant wall-mounted lamps.
Farquharson hobbled in on crutches. A journalist told me he had had a coughing fit in prison and fainted. He had fallen off a chair and fractured a bone.
The appeal hearing had been slated for two days. Compared with the smoothly confident Mr Rapke and his junior, Douglas Trapnell SC, Morrissey was as jumpy as a student undergoing an oral exam. Three judges sat in a row above him, in scarlet robes with huge white fur cuffs. Their wigs were not the grey, dead-rat ones of the lower court, but foaming and globular, as pale as raw cauliflower, with a texture reminiscent of brain tissue. Their voices rang crisply, and their questions were challenging, pointed, and at times impatient. They gave no quarter. The quality of their listening was ferocious. There were no witnesses: the whole thing was a blast of argument and analysis, awe-inspiring in its thoroughness.
On the second day, Morrissey hit his stride. He was less flustered, more calmly forceful, much more in command of the content and tone of his discourse. Late that afternoon, long after I had lost my grip on the technical details of the argument, I began to be aware of a mysterious movement in the room, a fluid shift. At first I thought I was imagining it. I did not discern it with my intellect, but sensed it along my nerves. It was a slow, submarine surge, like the turning of a tide.
It would take the judges months to publish their decision.
…
A couple of weeks after Farquharson’s appeal was heard, Woman’s Day ran a three-page ‘news exclusive’ on Gambino, in which she ominously raised the stakes.
She told her faithful journalist that she had written several times to her ex-husband in prison and begged him to accept a visit from her. A photo of one of her letters, in a hand as unformed as a teenager’s, appeared beside the interview. She could not understand why he would not want to see the only person on earth who understood his pain. What had he been thinking on the day of the accident, and in the months before it? Was all this her fault because they had separated? She prayed that she had not made him hate her that much. She had defended him to the world. Didn’t she deserve answers to her questions? Why wouldn’t he see her?
Farquharson had agreed, through his sister Kerri, to see her after what would have been Jai’s fourteenth birthday; but when the time came, he said he was not ready.
A reply came at last, she said, but not from Farquharson. It was written by his counsellor, Gregory Roberts, the social worker who had given evidence for the defence about the new concept of ‘traumatic grief ’. Farquharson, he wrote, was missing Cindy’s cooking and struggling with prison life. Roberts offered a stark account of Farquharson’s horror in the sinking car, his agonised scream when he could not free his boys. But the counsellor was adamant that Gambino would not be able to see Farquharson. He was in a fragile emotional state. A visit from her would be too damaging and destabilising.
Gambino was incredulous. What did Farquharson imagine life was like for her, out in the real world, where practically every day she had to drive past the children’s school, or the dam? How was she supposed to mother her two-year-old son, and the new child she would soon give birth to? She had not changed her mind—Farquharson was not a killer. But she needed to ask him face to face why he had not given evidence at his trial, why he had not seized his only chance to tell everyone what really happened. All she wanted was to look him in the eye.
Her face in the magazine was a vision of ruin: its doughy pallor, its heavy-lidded eyes and expression of sullen entreaty. From the dock during the trial Farquharson had silently implored his former wife to look at him. Now it seemed that the counsellor, in his helpless empathy, was doing
everything in his power to shield Farquharson from the challenge of that gaze.
Around this time, I received through my publisher a letter from a stranger. She wanted to tell me that her daughter’s small children had been burnt to death in a house fire, after their parents’ ugly divorce. Suspicion hung over the former husband, she said, but the coroner had returned an open finding. The grandmother, in her anguish, might have been speaking for Gambino:
‘What’s worse?—living with suspicions and various possibilities and never knowing the truth, or living with the truth of something too horrible to contemplate?’
…
On 17 December 2009, six months after the hearing, the Court of Appeal handed down its decision. The judges had sieved Mr Morrissey’s fifty-one grounds down to a mere handful. They found, most importantly, that Justice Cummins had erred in his directions to the jury, in particular about how they were entitled to evaluate the complex layers of Greg King’s testimony. Also, by failing to disclose King’s pending assault charge from the pub brawl and the fact that the police intended to provide a letter of support for him, the Crown had deprived Farquharson’s defence of a chance to discredit King as a witness.
The Appeal judges laid out in one careful page the circumstantial evidence against Farquharson. They made it clear that it had been open to the jury to find him guilty beyond reasonable doubt. Still, the errors had deprived him of a fair trial. The Court set aside his conviction and ordered a retrial.
Four days before Christmas 2009, Robert Farquharson was released on bail.
…
How would it feel to be out of prison, back under your big sister’s roof, on a beautiful summer night? I imagined Farquharson roaming barefoot through the Mount Moriac house, taking a beer out of the fridge, maybe sitting on the back doorstep and listening to the crickets. At bedtime he would stretch out to rest between fresh cotton sheets, and lay his head on a clean pillow.
Meanwhile, his sons were lying in their own little beds, in a couple of scrubby acres on the outskirts of Winchelsea.
CHAPTER 14
In February 2010 I was invited to give a talk about non-fiction writing at the Wheeler Centre in the State Library. Someone in the audience asked my opinion of the Farquharson verdict. I did not think it was the moment to talk about it. I confined myself to the observation that the only person who knew the truth wasn’t talking, and changed the subject.
The retrial was scheduled for May 2010. I heard around the traps that Mr Morrissey might not appear for Farquharson this time. Everyone at the criminal bar liked Morrissey. They were worried about the effect on him of this long ordeal. ‘Oh, I don’t envy him,’ said one barrister I knew. ‘Defending such an unpopular client—it’s the worst of the worst.’ ‘He should run a million miles,’ said another, ‘but I bet he won’t.’
On 10 March 2010, when I walked into Supreme Court Eleven to listen to Preliminary Argument, the first person I saw, looming over his junior, Con Mylonas, was Peter Morrissey, his forehead shining, his wig tilted to the back of his head. At the other end of the bar table sat the new prosecutor, Andrew Tinney SC, a wiry, silver-haired man with a solemn address. A journalist told me he was to be seen on Lonsdale Street clad in lycra and cleated cycling shoes, and that he coped with his work worries by riding to Frankston and back before breakfast. Beside him he had the combat-toughened Amanda Forrester, Rapke’s junior from the first trial.
The man on the bench was Justice Lex Lasry, a tall, rangy fellow in his early sixties who had been a judge for barely two years. I had once watched him, when he was at the criminal bar, coolly dismantle a murder charge against a young woman whom a whole city had believed to be guilty. He was widely admired for his work as a QC in international human rights, and liked for the fact that he played drums in an amateur band.
These preliminary sittings of the court took place well before a jury was empanelled. New witnesses were carefully questioned and the rules of engagement were negotiated. Farquharson listened intently between his guards, chin up, eyelids fluttering. Morrissey came out swinging. Justice Lasry ruled in his favour to exclude any evidence in which Farquharson was heard to express intentions of suicide or self-harm. The Crown case, said Lasry, was not that the events of Father’s Day amounted to a failed murder-suicide; it was that the accused had meant the children to drown while he survived. Lasry agreed, too, to scour the evidence of a term that had freely besprinkled the first trial: depression, a medical condition about which, he said, many people in the community know a lot less than they think they do. What he feared, if he should admit evidence from lay witnesses about depression, was that the jury might take it upon themselves to speculate about an imagined link between depression and motive for murder. Speculation of any kind was anathema.
Justice Lasry proposed to say to the jury, once it was empanelled, ‘Any gaps in the evidence are not to be filled with guesswork.’ Fat chance, I thought. Still, judge and counsel worked together to draw out of the story, without rucking up its texture, the long black thread of Farquharson’s ‘depression’.
…
At lunchtime one day Mr Morrissey asked me for a word. He ushered me into a little interview room off the vestibule, and gestured to a chair. We sat facing each other across a table. He did not remove his wig.
‘Someone’s sent me,’ he said with an ominously charming smile, ‘the video of a talk you gave at the State Library.’
My heart went boom. ‘Did I drop a clanger?’
‘You did. You said, “Only one person knows what happened in the car that night, and he’s not talking.”’ He leaned forward on both elbows and subjected me to a power-darkened look. ‘Our case is that my client doesn’t know what happened in the car that night. Because he was unconscious. By offering that opinion in a public forum you were undermining my client’s right to silence. I think you might be in contempt of court.’
Contempt of court? Me? I broke into a cold sweat.
If I did not get that video off the internet within two hours, Morrissey went on, still forcefully holding my gaze, he would go to the judge and get a court order. He might even use my smart crack to support an argument for adjournment, on the grounds that adverse publicity would deprive his client of any hope of a fair trial.
Of course I was not responsible for posting the video, and I had no idea how to get it down. Galled most of all by the thought that Justice Lasry might think me an idiot, I ran out of the building, red-faced, phone in hand. The Wheeler Centre people had it sorted in thirty minutes. Still shaking, I texted my old barrister. He replied at once: ‘My dear. You were in contempt only on the most pedantic interpretation of your words. It’s a nothing. A trifle. You merely said something unfavourable to Mr Morrissey’s case.’
So Morrissey had bullied me, and I fell for it. The chips must be down.
And soon the word flashed among the journalists: Gambino had changed her mind. She had withdrawn her original witness statement and made a new one. Only when I watched judge and counsel nervously planning tactics for handling her before the jury did I realise, with a thrill of dread, how wild she must have become, how terrifying—what havoc she might wreak upon the court’s delicate edifice of reason.
CHAPTER 15
I had ignorantly imagined the second trial proper, when it opened on 3 May 2010, as a cante
r 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.