by Helen Garner
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 she 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.’
‘But she didn’t go to the police for five years! How could you not go to the police?’
‘She gave reasons. I thought they were convincing.’
‘Oh, bullshit. So she had cancer. If one of my legs had been amputated I would have crawled in to make a statement! And how could she have seen into his car, the way she claimed?’
I tried to describe how I thought cross-examination worked.
‘The whole point of it is to make the witness’s story look shaky, to pepper the jury with doubt. So you get a grip on her basic observations, and you chop away and chop away, and squeeze and shout and pull her here and push her there, you cast aspersions on her memory and her good faith and her intelligence till you make her hesitate or stumble. She starts to feel self-conscious, then she gets an urge to add things and buttress and emphasise and maybe embroider, because she knows what she saw and she wants to be believed; but she’s not allowed to tell it her way. You’re in charge. All she can do is answer your questions. And then you slide away from the central thing she’s come forward with, and you try to catch her out on the peripheral stuff—“Did you see his chin?”—then she starts to get rattled, and you provoke her with a smart crack—“Are you sure it wasn’t a football?” She tries to put her foot down—“Oh, don’t be ridiculous”—and the judge gives her a dirty look and she sees she’s gone too far, so she tries to recoup, she tries to get back to the place she started from, where she really does remember seeing something and knows what she saw—but that place of certainty no longer exists, because you’ve destroyed it. And now she’s floating in the abyss with her legs dangling and everyone can see the lace on her knickers, and the next thing you put to her she’ll agree to, just to stop the torture. And then you thank her politely and sit down, and she’s dismissed, and she staggers out of the building and she can’t stop howling, and the cameras shoot her with her hair in a mess and her jewellery hanging crooked, and then next day there she is on the front page looking like something the cat dragged in—like a liar who’s been sprung, or a flake who makes things up just to get herself into the limelight. Is it any wonder people don’t want to come forward?’
I was hot in the face, almost panting. My friend deflated somewhat and sat down.
‘It doesn’t matter what she looks like in the street, though, does it,’ she said at last. ‘All that matters is how she seems to the jury.’
A long, thoughtful silence.
‘I read in Who magazine once,’ I said, ‘about a woman up in New South Wales. She lived in a flat that overlooked a big park with a bushy path running through it. One day she’s having a cup of tea on her balcony when she sees a young girl walking along the path. A bloke in a tracksuit comes jogging after her. The woman on the balcony actually sees him knock the girl down, rape her and strangle her, drag her body into the bushes and run away. And even she didn’t go to the police. She said she didn’t want to get involved.’
We ate the fish and the potatoes. We drank some wine.
‘I’ve never been on a jury,’ said my friend. ‘Have you?’
‘No. Never been called. But I’ve heard stories and read books. And I’ve seen Twelve Angry Men about a hundred times.’
‘How about you boil Waite’s evidence right down,’ she said. ‘Just say you leave out all the iffy stuff about headlight angles and tinted windows. What do you get?’
‘You get,’ I said, ‘that she saw his car behaving weirdly, well before it went up the overpass and got to where he says he started coughing. You get that his car was doing sixty, moving side to side in the left lane.’
‘You get that he was distracted,’ she said, ‘in another space—wouldn’t look at her, probably didn’t even notice she was there.’
‘And you get that he wasn’t coughing. That part I belie
ve, tint or no tint. He’s never said he started coughing before the overpass. Maybe he was just dawdling? Waiting for there to be no traffic on the road?’
‘Or maybe you get that something was going on in his mind,’ she said. ‘Some sort of struggle. Two parts of him slugging it out.’
‘Yes! And she saw him right on the cusp of it. The face in the back must have been Tyler, the middle boy. She was the last person to see him alive.’
My friend asked if I had Gambino’s 60 Minutes interview on tape. Grateful for company, I dug it out and we settled on the couch. The boys played in the bath, shyly smiling at the camera. Moules and Gambino sat on the grass beside a creek, declaring their love and talking about a ‘summer wedding’. And there was Gambino competently handling Bailey, the heavy-headed newborn, tiny enough to be swaddled in a single nappy. I turned to tell my friend that, at the time the children drowned, Bailey was still being breastfed once a day, that the symbiotic bond between mother and infant had not yet been broken. But my guest’s head had dropped towards her chest. Cradling a cushion in both arms, she was sound asleep.
Once I would have jostled her, shouted, ‘Wake up! Pay attention!’—but I had been learning, during the second trial, that the desire for sleep does not betray only boredom or fatigue. In these weeks of long, slow trauma interspersed with bloody skirmishes, I had found that suddenly falling asleep was a way of defending oneself against the unbearable.
I turned down the volume and watched the rest of the interview on my own. My friend woke in time to see its final moments—Gambino in her crushed pink blouse, her cheeks glossy with tears, saying, ‘I’ve got so many anniversaries throughout the year. It’s always there. I’m never gonna be that person who used to have three children fed, bathed, showered, and bouncing out the door at 8.30 in the morning—I’m never gonna be that person again.’
‘You’ve got to, darling,’ murmured my friend, pressing the cushion against her belly. ‘Somehow you’ve got to find a way.’
…
The mysterious child’s face that Dawn Waite said she saw pressed to the side window, making her think that all three children had been riding in the back seat, caused a brief flurry. Justice Lasry sent the jury out, and Dr Michael Burke, the pathologist who had performed the autopsies, was recalled and asked to account for two small bruises that had been noticed on Jai’s shoulders, at the point where the collarbone reached the shoulder joint. Was it possible that Jai had been sitting not in the front passenger seat but in the centre of the back seat? That, at impact, he had been vaulted forward between the two front seats, bruising his shoulder tips, before his head hit the dashboard and incurred the injuries to his forehead and left cheek? By the time Dr Burke came to give his evidence before the jury—when he spoke more frankly about the distressing surgical processes of post mortem than he had at the first trial—the only new suggestion that surfaced was that Jai might not have been restrained by a seatbelt at the moment of impact. Waite’s observation that the children had all been squashed in the back could not be validated. But it left a residue of confusion, a little jet of fresh sorrow.
…
In the three years since the first trial, Shane Atkinson and Tony McClelland, the young men whom Farquharson flagged down on the road and persuaded to drive him to Gambino, had lost their wild beauty, and perhaps their youth. They looked haggard: paler, thinner, more lined. McClelland had got his carpenter’s ticket, and had done something to the colour of his hair. Atkinson, the mill-worker, was still, or again, unemployed; his baby, whose birth they had been on their way to celebrate that Father’s Day, must be nearly old enough to start school. I could not tell if the two men were still friends, but surely the experience they had shared that night would link them for the rest of their lives, whether they wanted it to or not.
Mr Morrissey was gentle with Atkinson. ‘I’m wrong and you’re right,’ he said at one point, and Atkinson replied patiently, ‘Thank you.’ But when pressed too hard, Atkinson’s hackles went up. ‘I think you were here last time,’ he said to Morrissey, ‘puttin’ words in me mouth.’ A soft laugh flew along the bar table and up to the bench. I heard it as affectionate, but the witness’s face darkened and I saw the humiliated schoolboy behind the country battler he had become. He raised his eyes to the judge, and stretched his long back. Then, for a few minutes, I must have nodded off. When I came to, both he and McClelland had been dismissed, and I never saw them again.
…
Across the road near the coffee cart I came upon Bob and Bev Gambino sitting on a cold metal bench. They shuffled along to make room. Bob wanted to show me a photo he had taken of the defaced headstone on the children’s grave. Morrissey’s suggestion that it could have been their daughter’s doing, or done at her behest, filled Bev with fury.
‘Steve reckons it was a shotgun blast,’ said Bob, ‘but that can’t be right. Too dangerous to the shooter. More likely done with a hammer and chisel.’
He held out his phone to me. On the tiny screen I saw a closeup of the name ‘Farquharson’. Below it, where the dead children’s parents were named, the surface of the shining granite was pitted by a splatter of matte white nicks: a rectangle of assault on the word ‘Robert’.
…
While Mr Rapke in the original trial had been content to let the Crown case float between two alternative versions of murder—either a head of steam that suddenly exploded, or a carefully planned and coolly carried-out act of revenge—the Crown now plumped for the latter theory, and Mr Tinney drove it hard, to the point of suggesting that the sight of Gambino’s face when Farquharson personally brought her the bad news would have been his ‘delicious reward’.
My private doubts about this gothic detail were not shared by the young journalist who had sat beside me while the telephone intercepts were being played. When Gambino told Farquharson that all the children’s seatbelts were found to be undone, when he burst into shocked sobs both on the tape and in the dock, the journalist glanced up from the game he was playing on his phone and scribbled in my notebook, ‘Did you see his crocodile tears?’
One day, when court rose for lunch, I took my sandwich to the Flagstaff Gardens and lay on the grass under a tree. Why had Farquharson, during the first trial, flashed outraged grimaces and vehement head-shakings at his sisters whenever the word ‘suicide’ was mentioned? Was there a moral register on which suicide was more disgraceful than murder? Perhaps the most shaming thing of all, a failure of nerve that no ‘Anglo-Saxon country bloke’ could possibly admit to, would be to launch a murder-suicide and not complete the act. I recalled a famous Sydney story about a man who threw himself off the Gap and was caught before he hit the rocks by a huge and timely wave. The coastguard vessel picked him up unhurt. ‘The minute your feet leave the ground,’ the saved man said, ‘you change your mind.’ An American mother I read about drove her car full of children into a river; she drowned and so did all her kids except the eldest, a ten-year-old, who fought his way across her lap and out through a part-open window. He told police that as the car began to sink his mother had cried out, ‘I made a mistake. I made a mistake.’
Was the core of the whole phenomenon a failure of imagination, an inability to see any further forward than the fantasy of one clean stroke that would put an end to humiliation and pain?
Cindy Gambino had observe
d that Farquharson had become a better father after their break-up. Perhaps a hard-working husband is screened from his children by the domestically powerful and emotionally competent presence of his wife. When the marriage ends and access visits begin, he has to deal with the kids on his own. He is shocked at first, finds his new duties exhausting and difficult and often tedious; but gradually, by virtue of this unmediated contact, the children’s reality penetrates his armour and flows into his nerves, his blood. Now that he knows them, and knows their love, his exile from their daily life causes him a sharper suffering. To a man who is emotionally immature, bereft of intellectual equipment and concepts, lacking in sustaining friendships outside his family, his children may appear to be not only the locus of his pain, but also the source and cause of it. If only he could put an end to it—amputate or obliterate this wounded part of him that will not stop aching! As the judge in the first trial put it in his sentencing, he forms a dark contemplation…
I watched the thought, to see what it would do. It firmed up, like a jelly setting. And there it sat, quivering, filling all the available space.
…
As the retrial established its own momentum, as Justice Lasry bent over backwards and tied himself in knots to make it fair, efficient and appeal-proof, my respect for Mr Morrissey grew. He was on the ropes, but he fought gamely on. Again and again he had to be pulled up by the judge for referring to his client as ‘Rob’ instead of ‘Mr Farquharson’. It embarrassed him but he could not seem to help it.
The new jury looked as sceptical of his submissions as the first one had, but its style was different. Among the ranks of the serious, the mature and the anxious sat a scattering of student-like young people whose demeanour was relaxed to the point of irreverence. One would lower his chin to the desk in front of him, stretch out a bare arm along his cheek, and blatantly doodle on his notebook or let his yellow biro dangle from his lips. He and another languid youth became inseparable. They entered and left the court together, exchanging whispered comments and muffling their amusement. It was a bromance. Much later, when the journalists were herded into their dismal office so the deliberating jurors could take the air, these two romped together in the sunny yard like puppies.