This House of Grief: The Story of a Murder Trial (24 page)

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.