by Helen Garner
But among their fellow members I sensed a growing anguish. A third of the way through the trial there occurred an unexplained change of foreperson: the tough-looking older man who relinquished the job moved along one seat and was replaced by an imposing woman of forty or so, swathed in an elegant ruby shawl, who had previously struck me as reticent and rather solitary. A visiting barrister sitting beside me whispered, ‘Maybe a personality clash? There’s a few mothers up there.’ The new forewoman took the seat in the front corner of the box, nearest the judge, pale but determined.
…
It was winter, and in this courtroom coughing was what one did. Every morning when Justice Lasry entered, exactly halfway between the door and the bench he would clear his throat in a spasm that caused his long cheeks to puff out. At any given moment half a dozen people would be trying to stifle their coughs in scarves or handfuls of tissues. But Farquharson’s was the worst. Whenever it took hold of him and a guard had to bring him water, the jurors would slide their eyes in his direction. What if he had an attack of cough syncope here, right in front of everyone? Would it end the trial at once? Could we all go home? One day his hacking got so bad that a lowly member of the defence team had to take him out at lunchtime to get a throat spray from a chemist. He reappeared at two o’clock wearing a huge charcoal suit jacket over his usual shirt-sleeves and tie. It must have belonged to Morrissey: its shoulders were too wide, its sleeves too long. Child-like pathos was Farquharson’s default mode.
…
From the day Farquharson’s imminent second trial was reported in the media, poignant scraps and echoes had come to light from here and there to expand and illuminate the story or simply add to it a dab of colour. Men from Winchelsea and its environs surprised their mates by bursting into tears in back sheds and relating incidents they had not previously thought worthy of mention. Some of these fragments made it into the retrial. Others were scotched in Preliminary Argument as hearsay or fantasy.
But two of them that did surface in court, sad and ironic, stuck to my mind like burrs.
At four o’clock on Father’s Day, before he hit the road to Geelong with his boys, Farquharson stopped off at the house of Michael Hart. Hart had made no appearance in the first trial. He was a carpenter who had done some work on the Farquharsons’ unfinished house in Daintree Drive. He was also a single father involved in the boys’ football club. Farquharson invited him and his son to come along on the drive, but Hart was not in a mood to go anywhere, and said no. To Morrissey, intent upon demolishing the Crown’s scenario of a planned crime, Farquharson’s invitation showed that he could not possibly have been intending to drive into the dam on the way home that night. To anyone interested in psychological states, however, it added one more rock to the burden of loneliness that Farquharson was dragging.
The role of the reluctant friend in this brief incident echoed a bigger knockback that Farquharson had had to swallow the year before. His friend Darren Bushell, the shearer nicknamed DB, broke up with his wife a few months before Gambino gave Farquharson his marching orders. Newly cut loose, Farquharson went round to DB’s place and said he was looking for somewhere to live. ‘He was hinting to move in with me and share,’ said DB to the police in his statement. ‘But I had just gone through all that myself and I didn’t want it again. So I never offered.’
…
The experience of repetition was very disagreeable for some of the people who took the stand. One uniformed officer who had been among the first at the dam seemed to be in a bad way. He clasped his hands and relaxed his shoulders into the stance of endurance that police are trained in; but his distress was manifest, his voice muffled, his cheeks hollow and dark. The older members of Major Collision, lined and limping, gave their evidence again with the low, guarded burn of men who have had a gutful.
Cindy Gambino’s change of heart must have rolled like a tide through the Surf Coast region; other returning witnesses took a less cooperative tone, no matter how Morrissey tried to jolly them along. More often, though, they seemed less hostile than simply weary, their testimony a trek across a distant plain—for by now almost five years had passed since the night at the dam, and in the onward rush of life outside the Farquharson and Gambino families, the reality of Jai, Tyler and Bailey, as with all people who have died, had grown threadbare and dim.
But Morrissey declared that his cross-examination of Senior Constable Glen Urquhart, the tall young civil engineer and reconstructionist from Major Collision, would turn ‘a giant witness’ into a much lesser one.
Morrissey worked his way with slashing skill through the errors and equipment failures and self-corrections of the police investigation. The famous police mistakes he hung round Urquhart’s neck like an albatross. He derided the competence of several less experienced officers who had helped him at the dam. He took him apart for having changed his opinion about which of Sergeant Exton’s yellow paint marks was supposed to pinpoint which wheel of Farquharson’s car. He rubbed Urquhart’s nose in the awkward fact that the Commodore he had used in his video road tests turned out not to have had the preparatory wheel alignment that Urquhart believed it had.
To us listeners, without access to the photo booklets that the jury was studying, the argument was only a flood of talk, but I saw how Urquhart suffered on the stand. His jaw was clenched with mortification, and he kept raising his chin and stretching his neck as if his collar were too tight. It ran counter to one’s sense of fairness that he was not allowed to explain in his own words (or what Morrissey called ‘make excuses for’) how things in his testimony had come to be as they were. The repeated order ‘Just answer the question’ came to sound insultingly tyrannical, like a gag or a bridle. How crude, how primitive were the words ‘yes’ and ‘no’ in the face of questions on which so much hung! Yet although his brow was sometimes beaded with sweat and his mouth flattened with suppressed anger, somehow Urquhart continued to answer neutrally, readily, politely. He would not make a statement on the matter of exactly where Farquharson’s car had started its rightward drift out of the left lane. It cost him something to acknowledge that he could not say, but there was no evidence for it, and on this he held his ground.
And the jury liked him. They felt for him. He was one of the witnesses they instinctively trusted. When he was pulled up by Morrissey for illustrating a point with hand gestures, and said good-humouredly, ‘Sorry! I’ll put my hands in my pockets’, two of the women jurors in the front row sent him open smiles of sympathy. There was something earnest and endearing in his demeanour that withstood Morrissey’s most ferociously detailed attacks. When Amanda Forrester rose, I saw again the miracle of redemption that an air-clearing re-examination can bring about.
As the American writer Janet Malcolm says in her magisterial work The Journalist and the Murderer, ‘Jurors sit there presumably weighing evidence but in actuality they are studying character.’
…
When Greg King was about to be called, to betray his mate for the third time, I would have been grateful to save myself by falling asleep.
But at that moment a bright-eyed, black-browed teenage boy strode boldly into the court and took the seat beside me. The laminated card on his lanyard gave his name as ‘Eggleston’. He was in year ten, he told me, at a certain eastern suburbs private school, and was doing work experience ‘in a lower court’. Taken b
y an urge to see ‘a manslaughter trial’, he had crossed Lonsdale Street and wandered into the Supreme Court. He had many resounding opinions on the law and the conduct of the courts, and outlined them for me with the airy aplomb of the school debater, but when Greg King sidled in, wearing jeans and a short-sleeved shirt, the boy’s bumptious monologue died on his lips.
Tinney wound up his witness and set him in motion like a mechanical toy. King threw himself at his story, pouring it out by heart in one unpunctuated trembling stream, gasping, sniffing, raking his forearms and sometimes his shins with his fingernails.
Could he explain, asked Tinney, why he had not put the full version of the fish-and-chip-shop conversation to Farquharson, on the two secret tapes? The version that included ‘hate’, and ‘kill’?
‘I didn’t have the heart to,’ said King. ‘I’ve known the Farquharson family, the Gambino family most of my life. I’ve worked with her parents. I’ve got to come between them and put in my best mate. I mean, I’ve got my own kids. It’s a small town. What are they going to think of me? I was fearing for my family and everyone.’ The tipstaff handed him a bunch of tissues and he bent forward, wiping his eyes.
The judge allowed the jury a short break and left the bench while King went outside to compose himself. I turned to Eggleston. ‘What do you make of this witness?’
‘He’s lying,’ he said at once.
‘How can you tell?’
‘Easy,’ he said. ‘While he was having the alleged conversation with Mr Farquharson outside the fish-and-chip shop, where were his children?’
‘Oh, they were inside the shop, waiting for the chips.’
‘Why did he leave them on their own?’ cried the boy in a triumphant tone. ‘He should have stayed there with them.’
An old court watcher doing a cryptic crossword behind us laughed under his breath and muttered, ‘What about somebody who leaves his kids in a dam?’
‘In my view,’ said the oblivious Eggleston, ‘he just read about the case in the newspapers and decided to make sure Farquharson’s found guilty.’
‘Why on earth would he do that?’
‘Any parent would. And,’ he went on smoothly, ‘I can tell that Farquharson hasn’t slept for six or seven nights. His eyes are all swollen.’
‘Hey,’ I said. ‘You should be a detective.’
He bridled. ‘Oh no. I’ve definitely decided to study law.’
Greg King, red-eyed, skulked back to the stand. He tried to reassert his manliness by giving cheek and striking cocky poses. He addressed Morrissey by his first name, and had to be put in his place. When Morrissey described Farquharson as ‘a peaceful, non-violent person’—not like King, who had shown himself to be a violent bully, had he not, in the Winchelsea pub brawl that the police delayed charging him for?—King squared his shoulders and put his hand on his hip with a defiant little swagger. Morrissey worked him over, hauling him through the transcript of his evidence in the first trial, setting traps for him big and small, but King was so literal-minded, so lacking in emotional vocabulary, that Morrissey’s ironic strokes were wasted on him, and we heard only the heavy whizzing of the sword. Flummoxed in the dreary acres of transcript, King spread his hands at last and said, ‘I’m lost.’
In a stage whisper Eggleston pointed out to me the admirable way in which Morrissey ‘made the witness think hard about his answer, in case he contradicted something he’d said before’. But the jurors’ mouths were set in firm lines. They did not like the clever barrister for running rings around this broken-hearted boofhead. And even the censorious grammar-school boy turned pale and silent when King choked up and said, in a flood of helpless tears, that he blamed himself for the children’s deaths because he had not taken seriously what Farquharson said to him outside the fish-and-chip shop.
There was no getting past this. It was the cross King had to bear, and his clumsy carrying of it endowed him, in the end, with a dignity that withstood the worst that the defence could throw at him.
…
I was not brave enough to face the police submergence videos again, but I watched the jury sit through them, with their hands over their mouths. The erstwhile foreman strained his chin so high that the lump in his throat moved visibly. In my memory of the first trial the videos were silent, but this time, at the point where the diver struggled to open the passenger-side door, I became aware of a series of muffled thumps, the sounds of adult effort, and then a horrible low gurgling and rushing. I risked a glance upwards at the yellow boiling of the water, its violent force and huge bubbles, and for the first time I allowed myself to accept the possibility that Jai never did open his door, as Farquharson had endlessly related. What about the reddish abrasions the pathologist found on Jai where his face hit the windscreen—one to the forehead, and a palm-sized one to his left cheek? Wouldn’t a child have been stunned by such a blow? Perhaps it was Tyler in the back, uninjured, who unbuckled his own belt and tried to get Bailey out of his harness? Could the whole thing have happened as the second video test suggested? The car crashes into the water and floats a moment, tilting. Farquharson scrambles out while the force of the water against his door is still weak enough to be overcome. As he swims away, the weight of the water clips his door shut behind him. The dark car fills fast while Jai—or Tyler—fights to unbuckle his brothers’ seatbelts. The rear doors are locked, the offside door handle broken. Jai goes for the driver’s door but the huge pressure from outside defeats him. Tyler’s and Bailey’s lungs are already full by the time the pressure equalises and Jai gets the door open. But he too has run out of air, and when the police diver gropes blindly up the side of the car, hours later, Jai is lying across the front seats with his head protruding through the wide-open driver’s door.
…
Farquharson’s silence about what had happened that night, his inability or his refusal to say how the car went into the dam, was throwing everyone around him into a state of agitation that was hard to bear. Even Justice Lasry, in the absence of the jury, made a slip as telling as the one that Morrissey claimed had put me in contempt: ‘Did the accused drive the vehicle deliberately, or, if he was unconscious, did he fall forward in a way that affected the steering wheel? No one knows except him.’
We, his fellow citizens, could not live in such a cloud of unknowing. The central fact of the matter would not let us rest. It tore at our hearts that inside the plunging car, while their father fled, three little boys had fought with their restraints, breathed filthy water, choked, thrashed and died.
There was something frantic about the way we danced attendance on the silent man, this ‘horrendous snorer’, this ‘sook’, this ‘good mate’ and ‘loving dad’ and ‘good provider’; this stump of a man with his low brow and puffy eyes, his slumped spine and man-boobs, his silent-movie grimaces and spasms of tears, his big clean ironed handkerchief.
CHAPTER 16
Every accused person has the right to remain silent. Juries are clearly instructed that they must not draw any adverse inference if the accused decides to exercise that right. An eminent barrister once told me he never put his clients in the witness box unless they insisted. It was too risky, he said. Lay people have no experience of what a skilful advocate can do and are not equipped to stand up to it; if you try to prepare them they lose all flexibility.
&nb
sp; The first witness Morrissey called for the defence was his client, Robert Farquharson.
His family and his supporters had been watching the trial from the upper gallery; but one of their cohort, a strikingly pretty, well-dressed and motherly-looking woman of sixty or so, was allowed by the judge to come down into the body of the court as a person of comfort while he gave evidence. I knew that her son was engaged to a niece of Farquharson’s, and that she and her clergyman husband were paying the rent on the serviced apartment in which Farquharson lodged for the duration of the trial. She herself was staying there with him during the court weeks, to console and support him. She was given a seat in a direct eye-line from the high witness box. She sat with her hands clasped in her lap and shone her attention straight into Farquharson’s face.
It was awful to see him out of the dock and exposed up there, in his tight collar and big stripy tie: such a pathetic figure to be carrying our terrible projections. Morrissey smiled at him, and took it slow. At first Farquharson spoke clearly, drawing the odd quivering sigh: yes, he used to be a window cleaner, but he had been unemployed since his release on appeal. When Morrissey began to talk about the boys’ football club, and then asked him about the presents his sons had brought to his house on the afternoon of Father’s Day, Farquharson’s voice splintered. Yeah, a really nice photo of the boys, he got. Some pots and pans from Cindy—and there were some other presents that he was supposed to get but didn’t until after they died. And what were these gifts? Farquharson covered his face with one hand and blew out air between his lips. He could hardly form the words.