This House of Grief: The Story of a Murder Trial (15 page)

Even so, said Morrissey, didn’t the data contain case histories of people without
chronic airways disease who had been diagnosed with cough syncope while driving cars?
Didn’t Naughton read the study of the four heavy-goods-vehicle drivers who had been
involved in fatal crashes? They didn’t have chronic airways disease, but doctors
were prepared to diagnose cough syncope on the histories they had provided. Didn’t
this show that it
was
possible for a man without such a disease to have a coughing
fit while driving and black out?

Naughton was beginning to gnaw and purse his lips, but he maintained steady eye contact
with Morrissey. ‘I would rephrase that,’ he said. ‘I would say it is possible for
someone to
provide a history
of having had cough syncope in the absence of chronic
lung disease.’

What about the provisional diagnosis of cough syncope made by the
Emergency Staff Specialist at Geelong hospital on the night of the crash? Wasn’t
Dr Bartley, who unlike Professor Naughton had the benefit of being on the spot and
taking a history from Farquharson
face to face, fully entitled to make that diagnosis?

‘That’s his call,’ said Naughton.

What if a bloke came to Naughton and said, ‘Look, I’m twenty-eight. I don’t smoke.
I play football. I’m a legend. But
I’ve
had an attack of coughing and blacked out’?

Naughton shrugged. He couldn’t exclude the possibility, but he would be very surprised
indeed to hear of such an unlikely thing.

But Morrissey ushered Naughton down a fire escape of unlikelihood, step by step.
‘Since it could be possible, though extremely unlikely, with a person who’s twenty-eight
and has no health problems, you’d agree with me that it’s less unlikely if he were
a smoker? Even less unlikely if he were thirty-seven rather than twenty-eight? Even
less unlikely if he’d had an acute respiratory-tract illness for three weeks? Even
less unlikely if he’d suffered from paroxysms of coughing during those three weeks?
And less unlikely still if he’d been witnessed to have a bad gripping coughing attack
where the watcher thought he was going to have a stroke and told him to sit down?’

Naughton assented in a wary, affectless tone to each step.

But then Morrissey got down to what he riskily called ‘an actual episode’. On the
Thursday before the crash, Farquharson had reported to his friend Darren Bushell,
a Winchelsea shearer known to everyone as DB, that he had had a coughing fit in his
car a few days earlier. He told DB he had blacked out at the wheel of his car outside
the Winchelsea roadhouse; when he came to, he found his car had driven twenty metres
further towards some rocks.

Mr Rapke sprang to his feet. ‘That is based on an assertion, not a witnessed event!’

Morrissey pulled his horns in. Had Naughton not noticed this report of Mr Bushell’s
in the documentation he had been provided with? No? Still, if this incident were
accepted as a proved fact, wouldn’t it have a massive impact on Naughton’s opinion?

‘It would have an impact,’ said Naughton.

And had the prosecution told the professor that, three weeks after Farquharson’s
car went into the dam, a man called Zane Lewis had come forward saying, ‘I had one
of these’?

‘Bloke down our way,’ whispered the reporter from the
Geelong Advertiser
. ‘Ran his
car into a fence and said he’d had a coughing fit.’

‘I object!’ said Rapke. ‘That’s not fact at all. There’s no evidentiary basis for
that whatsoever.’

‘
Had
one of
these
?’ said Justice Cummins, picking up the words in tweezers. ‘It’s
not something you get off the supermarket counter. Is he an expert in neurology?
Or an expert like this professor? Or is he a layperson? Is he expressing a medical
diagnosis? What are you talking about?’

‘Would it have been of interest to you, Professor,’ said Morrissey, corrected, ‘in
your consideration of the nature and scope and existence of cough syncope, to meet
someone who said he had a coughing fit and drove off the road after blacking out?’

‘Yes,’ said Naughton politely. ‘That would be of interest.’

…

Court rose for a short break. Some of us stayed in our places, updating our notes.
Mr Morrissey’s junior, Con Mylonas, got out of his chair and wandered along the bar
table towards the press box. He
was a small, dark man with pouty lips, who wore his
wig low on his forehead. The word among the journalists was that he had been a brain
surgeon before he came to the law, and had been taken under Morrissey’s wing. He
stopped in front of me. I looked up nervously.

‘What’s your take on this guy?’ he said in a confidential tone.

Did he mean Farquharson? Why the hell was he asking me? I stared at him in alarm.
But he jerked his head at the witness stand that Professor Naughton had just vacated.

‘I don’t know.’ I blurted out the first thing that came into my head. ‘He’s biting
his lips a lot. What do you think?’

He smiled genially, and strolled away. Baffled, I turned to Louise; but she and the
young journalist from Geelong were doubled over like schoolgirls in a fit of silent
hysterics.

…

For the rest of that afternoon Morrissey hammered away at Naughton. Hadn’t he jumped
too early? Offered his opinion before he had properly informed himself? Wasn’t he
now too proud or vain to admit he had been wrong?

Naughton rolled with the punches, continuing to work his lips and teeth. Eventually
he got a grip. For twenty years, he said, he had regularly attended conferences.
Some of these were focused purely on cough. Cough syncope had not been included as
a condition that respiratory physicians should be routinely aware of. He kept a close
eye on the medical literature as it came through. In the last fifteen or twenty years
he hadn’t seen anything on cough syncope. References
he had found were from the 1980s.
He was yet to be convinced that there were physiological reasons to explain cough
syncope in an otherwise healthy person who does not have any chronic lung, heart
or brain disorder.

He offered a brief, clear lecture on the four levels of evidence in medicine. ‘As
I read the data here,’ he said, ‘we’re running on the lowest, most anecdotal level
to support a diagnosis of cough syncope. I’m not saying it doesn’t exist. I’m just
saying it’s rare, it’s poorly defined, and most of the time the episodes are not
witnessed.’

‘So in short,’ said Morrissey with a light scorn, ‘you’ll believe it when you see
it? You’re as good as the scenario you’re given?’

‘Absolutely.’

‘Rare conditions do happen, though? It’s not much use to a person when they get a
rare form of cancer to be told, “It’s all right—it’s rare”? The fact that it’s rare
doesn’t tell you it can’t happen? Just that it’s unlikely to happen?’

Louise, who had been studying the jurors with a pale concentration, leaned over
and whispered, ‘Even when he wins a point, he does it in such a way that the jury
doesn’t seem to notice.’

There was no imaginable resolution. Barrister and witness would prowl on forever,
in this debate. Neither would be able to land a knockout blow. Again, in the dying
fall of the cross-examination, the glaring fact presented itself: no one but Farquharson
knew what had happened in the car that night, and, by now, perhaps not even he knew.

…

In a few deft strokes Rapke drew everything back into shape. While the bruised Naughton
reasserted his professional integrity, Morrissey swung sideways in his chair and
turned his face towards the jury, histrionically suppressing a sceptical smile.

Morrissey set great store by the vivid phrase ‘babbling mess’, describing Farquharson’s
state when he flagged down the two young men on the roadside and begged them to take
him to his ex-wife, but Rapke drained it of power: when it was traced back through
the transcript, it was found to have originated not from the mouths of Shane Atkinson
or Tony McClelland, but in a question that had been put to them by Farquharson’s
counsel at the committal hearing in Geelong.

Lastly, Rapke dispatched the defence’s case study of four heavy-goods-vehicle drivers
who were on the record as having experienced cough syncope immediately before they
were involved in fatal smashes. Naughton pointed out that the truckies had each given
‘a classic description’ of cough syncope; that none of them had had prior episodes
of it; and that all four episodes were unwitnessed.

And were those four fatal smashes the subject of police investigation?

They were.

‘Thank you,’ said the prosecutor, and sat down.

These casual coups that Rapke pulled off made the spectator in me want to stand up
and cheer. At the same time a chill ran over me. While Morrissey slugged away with
a big heart on his sleeve, Rapke sat hunched in his chair, unruffled, peering up
at an angle into an invisible light that seemed too strong for his eyes.

…

I went to my local shopping centre to buy some vegetables. The friendly woman who
ran the greengrocery asked me what I was working on. My answer upset her. She covered
her mouth and her eyes filled with tears. I stood at the counter while she wiped
them away. Then she told me something that surprised me.

‘My husband,’ she said, ‘had a coughing fit once and went off the road.’

She called his name and he emerged from the storage area. He was the sort of man
Morrissey might have described as ‘a barrel-chested individual’: in his forties,
thickset, carrying a bit of weight, used to long days of physical labour. His wife
told him what I wanted to know. He looked at me narrowly.

‘Come out the back. We can sit down.’

We picked our way between crates and bags to a battered formica table. He listened
while I outlined, in the most neutral terms possible, Farquharson’s account of his
crash.

‘I can tell you what happened to me,’ he said. ‘It was about four years ago. I was
driving my HiAce van—it’s a manual—along the south-eastern freeway in the middle
of the afternoon. My daughter was with me. She was about thirteen. Quiet time of
day. Not much traffic. Four lanes going each way.

‘I remember starting to cough. I remember slowing down to about sixty or seventy.
I cut left across two lanes, to pull into the emergency lane, and I blacked out before
the impact. After that I don’t remember anything till I heard my daughter saying,
“Dad!” I came to slumped over to my left side, towards her. I only knew
there’d been
an impact because she was saying, “You hit the rails!” She’d grabbed the wheel and
the car had swerved back to the right, across four lanes, and ended up in the median
strip.

‘As I was coming to, I could hear sounds but I couldn’t see. You know when you’re
on top of a hill and you can hear traffic far away? It was like that. I reckon I
would have blacked out for about a minute. The vehicle would have been out of control.
I wouldn’t have been able to brake or accelerate. And I came out of it
slowly
. My
daughter shook me. I could hear her voice, miles away. It got clearer and clearer.
She was saying, “We hit the rail!” and I was saying, “No, no, we couldn’t have.”
Then I got out on to the median strip and had a look. I saw the damage. That’s the
first time I believed what she was telling me. The front left indicator had got sideswiped
against the guardrail of the emergency lane.’

He stared past me.

‘I’m trying,’ he said, ‘to picture this bloke shutting his kids’ door. Saying, “We’ll
be right, mate”. Jumping out. Nah. This guy should’ve drowned. No way could he have
got out, if he’d just been unconscious. I remember waking up and needing a few minutes
to focus. To be in a mental state to make a decision—like with this bloke, to pull
the door shut—I dunno—and I had my daughter shaking me.’

I asked him what his state of health had been. He said he had had flu in the preceding
week. He had no lung disease and had not smoked for eighteen years.

‘One thing I remember clearly,’ he said, ‘is that when I started coughing and couldn’t
stop, my very first thought was to get off the road—because of my daughter. My utmost
concern was my daughter beside me. That’s why I pulled to the left—to get off the
road.’

He expressed incredulity that Farquharson had got out of the car and left his boys
in it. ‘You’d stay with them, wouldn’t you? You’d fight to get them out? You’d go
down fighting to get them out?’

I told him about the police evidence that there had been a thirty-degree turn of
the steering wheel. He pulled towards him a crushed sheet of paper with a list scribbled
on it: chillies, cucumber. Impatiently he turned it sideways. He drew a rough circle
and marked ninety degrees at three o’clock.

‘He couldn’t have been doing a hundred,’ he said. ‘In a turn that sharp, the tail
would swing out. It would have skidded, or even rolled, when it hit the drain. He
must have been going much slower than a hundred when he turned the wheel.’

He drew a diagram of his own vehicle’s progress, circled the point in the emergency
lane where it had struck the guardrail, and said firmly, ‘I have no recollection
whatsoever of this. The GP told me the coughing puts pressure on the blood vessels
in your chest, and that cuts off the oxygen to your brain.’

We sat in silence, looking at his sketch on the scarred tabletop.

‘The insurance paid up,’ he said.

Then he breathed out sharply through his nose, and threw down his pencil.

‘One thing I know for sure,’ he said, getting to his feet. ‘My van slowed down. The
van. Slowed. Down.’

…

At my early morning Pilates class someone asked me how the trial was going. I said
it was swinging this way and that. I told them about
the fathers I had met who stated
categorically that in Farquharson’s position they would have gone to the bottom and
drowned with their kids. The four of us agreed in very low voices that this could
only be a fantasy. As we worked with our pink and yellow weights, an unpleasant
forty-year-old memory came to me. I was walking along a street in Werribee with one
of my year-twelve students when a savage dog leapt over a gate and rushed at us.
Next thing I knew, I was standing behind my student, clinging to her back, while
the owner dragged the dog away. In a second of primal terror, of which I have no
memory, I must have pushed the girl between me and the danger.