Robert Farquharson

Case record: Robert Farquharson

Background

Robert Donald William Farquharson (born 1969) was an Australian father convicted of murdering his three sons on Father’s Day in 2005.

Farquharson met his future wife, Cindy Gambino, in February 1990. He bought a lawn-mowing franchise servicing his local area after taking a redundancy package from his employer in 1996; the venture lost him AUD 40,000. Farquharson married Gambino in 2000 and they had three children by 2002. The pair separated amicably in 2004.

Farquharson suffered bouts of depression and sought assistance of a psychologist and later a psychiatrist to deal with the separation. He was prescribed the antidepressants Zoloft and later Avanza.

The offence

About 7 pm on 4 September 2005, as Farquharson was returning his children to their mother after a Father’s Day access visit, his white 1989 VN Commodore vehicle veered across the Princes Highway between Winchelsea and Geelong, crashed through a fence, and came to rest in a farm dam. The dam filled with water and submerged the vehicle. Farquharson’s three children—Jai (10), Tyler (7), and Bailey (2)—were unable to free themselves and drowned.

Farquharson managed to escape and alerted another driver who took him to nearby Winchelsea. Police divers recovered the boys’ bodies about 2 am the next day. The boys were still inside the vehicle and unrestrained by seatbelts.

Investigation

After a three-month investigation, police prepared murder charges against Farquharson and went to his Winchelsea home on 14 December 2005. He was not there at the time but presented himself at the Geelong police station in the presence of his lawyer.

He was arrested and charged with three counts of murder. He previously requested and undertook a lie detector test; the results were inadmissible in court.

Arrest

On 14 December 2005, Farquharson presented himself at the Geelong police station in the presence of his lawyer and was arrested and charged with three counts of murder.

Trial

Supreme Court of Victoria (first trial)

Farquharson’s trial for the murder of his sons began in the Supreme Court of Victoria before Justice Philip Cummins on 21 August 2007. A total of 49 witnesses appeared during the six-week trial.

Prosecution evidence included testimony from Prosecution Sergeant Glen Urquhart. Urquhart said the steering wheel of Farquharson’s vehicle would require a 220-degree turn to veer as it did on the highway to leave the road. Urquhart gave evidence that there was no evidence of braking before the car entered the dam. Urquhart also gave evidence that the vehicle’s headlights, heater, and ignition system were all in the off position. Urquhart stated that the body of the oldest child, Jai, was found protruding half way out of the vehicle’s front door, and that the other boys were discovered in the back seat.

Police video re-enactments of the crime scene played before the court showed the car veering left instead of right towards the dam at the exact position on the highway the accident happened. Farquharson’s car was found to pull slightly to the right, though not to the degree that would counteract the left-veering force according to Urquhart.

Greg King testified that he recalled a conversation with Farquharson two months before the incident outside a fish and chip shop. King said Farquharson spoke of seeking revenge on his former wife and of wanting to “take away the things that mean the most to her”, meaning the children. King recalled Farquharson complaining about his wife taking the newer of the two cars. King’s wife could not recall her husband relaying this conversation to her that day.

Another witness, Shane Atkinson, who discovered Farquharson on the side of the road, said Farquharson twice refused to call the 000 emergency number, preferring instead to travel to Winchelsea to tell his wife of his children’s fate. The court transcript revealed that Atkinson had to borrow a mobile phone to call police from the Winchelsea police station, which was closed for the night. This supported evidence given at the committal hearing that no mobile phone was available.

Matthew Naughton, an associate professor and specialist in sleep and respiratory medicine, told the jury that it was highly unlikely Farquharson had suffered a coughing fit in the moments before the accident. Naughton testified that coughing to the point of blacking out was an extremely rare condition known as cough syncope, and that Farquharson was unlikely to have suffered such an attack while driving given the warmth of his vehicle. Naughton later conceded that he had never seen cough syncope, would not know how to take a history to determine it, and was sceptical even of its existence, a consideration not backed up by others in the same sphere of medicine.

Defence evidence included Farquharson’s reliance on losing consciousness due to a coughing fit. He told police that he woke up in the dam and said the car began to submerge when his son Jai tried to free himself by opening the passenger door.

Cam Everett, the owner of the property where the dam was located, told the court that a total of seven vehicles had crashed through his farm fence in eight years. Everett said no vehicles other than Farquharson’s had ended up in the dam in that time.

Former police superintendent David Axup, who had not been a policeman for over 20 years, contradicted aspects of the prosecution’s arguments about the path and steering of the car as it left the road. Axup believed it had probably traveled on a 53-degree arc. Axup said this could be explained by the right camber of the road towards the dam and by the fact that the car had poor wheel alignment, meaning it would move uncontrolled to the right.

Farquharson’s thoracic medicine specialist, Chris Steinfort, concluded it was “highly likely” that his patient had suffered from cough syncope on the night. The account described Steinfort as having seen cases of cough syncope and believed the symptoms suffered by Farquharson were a “classic” example.

The day before the verdict came in, Farquharson arranged for flowers (three red tulips) to be laid at the grave of his children. A card reading “Dear Jai, Thinking of you on your birthday. Love you, Dad.” was attached. Jai would have turned 13 that day.

After three days of deliberations, the jury found Farquharson guilty on 5 October 2007. Gambino broke down in court when the verdict was announced; her mother collapsed and was taken to hospital by ambulance. Justice Cummins allowed a recess of 15 minutes for the court to compose itself before proceedings resumed.

On 16 November 2007, Farquharson was sentenced to three terms of life imprisonment without parole. He announced he intended to appeal his convictions.

Appeal, bail and retrial

On 17 December 2009, Farquharson’s conviction was unanimously overturned by three appeal judges. The judges were critical of the trial judge, the prosecution, and the evidence of key prosecution witness Greg King. On 21 December 2009 he was granted bail and released into the care of one of his sisters with AUD 200,000 surety.

The retrial commenced on 4 May 2010 before Justice Lex Lasry QC. The jury retired to consider their verdict on 19 July 2010 after hearing 11 weeks of evidence and argument. On 22 July 2010, after three days of deliberation, the second jury again found Farquharson guilty of murder.

Sentencing

On 15 October 2010, Farquharson was sentenced to life imprisonment with a 33 year minimum.

He was later described as being sentenced to three consecutive life terms with a minimum of 33 years in jail.

During the hearing in October 2010, the boys’ mother, Cindy Gambino, fought back tears. Outside the court she told reporters the sentence was never going to be enough: “I have a life sentence, so should he,” she said.

The sentence hearing included a statement attributed to Justice Lex Lasry that Farquharson had planned a horrendous crime and deliberately killed his vulnerable children. Justice Lasry told the court the boys were subjected to a terrifying death, which traumatised their mother for life.

Solicitor Simon Northeast said Farquharson was innocent: “In due course we will be lodging an appeal,” he said. Ann Irwin read a statement on behalf of Robert Farquharson’s family, friends and supporters outside the court. The statement included:

“We as his family and supporters are not so blinded by love or sympathy that we would maintain his innocence if there was any evidence of guilt,”
“Rob is a broken man, a traumatised and deeply grieving parent who loves his children. He finds it difficult to accept the deaths of his boys and will carry this grief with him forever.”

The statement also included:

“Ms Irwin says those who have not experienced what he has cannot judge him. “Despite the fact that it is hard to accept, this was an accident. We are both devastated and outraged at the verdict,” she said. “The justice system has failed three young boys and their loving father and we are horrified that Rob is now faced with further trauma, grief and loss of liberty as a result.”

The sentence was delayed by about 90 minutes because Cindy Gambino was unable to make it to court on time because of bad weather.

Appeals / Outcome (post-2010 appeal described)

It was stated that Farquharson would spend the next 30 years in jail after losing an appeal against his murder convictions for killing his three sons. Court of Appeal president Chris Maxell and justices Peter Buchanan and David Harper rejected the appeal, finding it was open to the jury to find him guilty on the evidence.

Farquharson appealed the convictions from his second trial, submitting that the jury’s verdict was unsafe and unsatisfactory, and that a key piece of evidence—a conversation Farquharson had with a man at the local fish and chip shop—was unreliable.

Outside the Victorian Court of Appeal, the boys’ mother, Cindy Gambino, said:

“It’s all over. Thank God its all over.”

It was also stated that Farquharson was first convicted of the murders in 2007 and sentenced for three life terms, then in 2009 successfully appealed and was ordered to face another trial, and after the second jury’s guilty verdict in 2010 he was again found guilty.

Aftermath

Relationship and public accounts

Media reported that Harpo Productions, the company of American talk show host Oprah Winfrey, offered Gambino $1 million to appear on the program and tell her story. Gambino told her story to Australian magazine Woman’s Day, saying that she did not believe Farquharson had killed their children, but had since changed her mind.

On 23 June 2010, during the retrial, it was reported that Farquharson denied telling a former friend what to say to police. The report stated that he admitted that after the boys drowned he told the man, who was wearing a police wire, to tell investigators that he was a “good bloke” who was often seen around town taking the boys on bike rides and to the football, and that he was not feeding him lines or trying to avoid police scrutiny.

Court testimony from Cindy Gambino (during first trial proceedings)

Gambino told the court that she did not believe Farquharson intended to kill their children deliberately, saying: “I believe with all my heart that this was just an accident and that he would not have hurt a hair on their heads. I don’t believe this is murder.”

Father’s Day access and last words described

During May 2010 retrial proceedings, it was reported that Gambino described saying goodbye to her sons before her estranged husband drove them into a dam and that her testimony included:

“The biggest regret of my life is asking that question,”
“Bailey’s last words to me where “cuddle mum” and I cuddled him and I left and that was the last time I saw them alive.”

Defence themes in the retrial

During the retrial, Farquharson was described as claiming he had blacked out from a coughing fit when the car veered off the road and plunged into the dam near Winchelsea. It was stated that he walked away uninjured.

During the hearing, prosecutor Andrew Tinney, SC, told the court that Farquharson’s resentment and anger toward his ex-wife “drove him to commit an almost unspeakable act of vengeance’”. It was also stated that Tinney said that after murdering the children Farquharson had the “delicious reward’” of telling Ms Gambino about the deaths. Tinney said:

“In this case, in the end, your head, members of the jury, will clearly and strongly tell you something that your heart may not want to believe,”
“It is that the accused really did murder those three defenceless children; it is that a human being really can sink to such depths. ”
“You should find him guilty on all three counts of murder.”

Farquharson’s barrister Peter Morrissey, SC, said:

“What you could find is that the evidence proves to absolute certainty that it did happen,”

Statements by supporters and friends (as described)

Friends and supporters were described as insisting Farquharson did not mean to kill his sons. A supporter Michael Hart was quoted as telling ABC 1’s Australian Story:

“Rob had come into my lounge room asking me to go out to dinner with him because it’s Father's Day,”
“I wasn't feeling too good and I looked at Rob and he was not looking good and he'd been coughing and splattering in the shed. ”
“I said, you are not well. You probably shouldn't be driving.”

It was also stated that Hart said:

“I know there was no plot,” he said.
“He wouldn't have told Greg. He would have told me. He told me everything.”

A childhood friend of Gambino, Wendy Kennedy, was described as maintaining Farquharson was innocent, and Kennedy was quoted:

“I don’t know what happened to Cindy, how she came to think that Rob was guilty, or if that's really what she believes,”
“She's living with Stephen. Stephen's been on television. He's said clearly that he smelt a rat and words to that effect.”
“Cindy and I aren't talking now because I won't accept Stephen, so that's where the barriers come in there. That's why I can't explain where her head space is at the moment.”

The report described that Gambino had changed her mind by the time of the retrial and withdrew her support for Farquharson.

Pre-trial and bail details

During the first trial process, it was reported that Farquharson appeared in the Geelong Magistrates Court, where he was remanded in custody and ordered to appear before the court on 7 April 2006.

He had been granted bail and released from custody to appear at his trial, which was scheduled to begin in August 2007.

It was also reported that Farquharson was released on bail on 21 December 2009 into the care of one of his sisters with AUD 200,000 surety.

Timeline

• 4 September 2005 — Farquharson drove his white 1989 VN Commodore off the Princes Highway between Winchelsea and Geelong into a farm dam; Jai (10), Tyler (7), and Bailey (2) drowned inside the submerged vehicle.
• 14 December 2005 — Police prepared murder charges against Farquharson and went to his Winchelsea home; he presented himself at the Geelong police station and was arrested and charged with three counts of murder.
• 21 August 2007 — Farquharson’s first murder trial began in the Supreme Court of Victoria before Justice Philip Cummins.
• 5 October 2007 — A jury found Farquharson guilty of murder.
• 16 November 2007 — Farquharson was sentenced to three terms of life imprisonment without parole.
• 17 December 2009 — Farquharson’s conviction was unanimously overturned; he was granted a right to a retrial.
• 21 December 2009 — Farquharson was granted bail and released into the care of one of his sisters with AUD 200,000 surety.
• 4 May 2010 — Retrial commenced in the Supreme Court of Victoria before Justice Lex Lasry QC.
• 19 July 2010 — The jury retired to consider their verdict after hearing 11 weeks of evidence and argument.
• 22 July 2010 — The second jury found Farquharson guilty of murder.
• 15 October 2010 — Farquharson was sentenced to life imprisonment with a 33 year minimum.

Other details

• Farquharson had previously requested and undertook a lie detector test; the results were inadmissible in court.
• It was described that Farquharson twice refused to call the 000 emergency number after being discovered on the side of the road.
• It was described that Farquharson earlier told a friend, Greg King, that he intended to kill his children to get back at his wife.
• It was stated that police alleged Farquharson was in control of the vehicle in the moments before it crashed into the dam.
• In the earlier and later accounts, it was described that Farquharson was said to have planned revenge after the breakdown of his relationship with Cindy Gambino.
• It was described that Farquharson was in the off position: vehicle’s headlights, heater, and ignition system.
• It was described that Jai was found protruding half way out of the vehicle’s front door and that the other boys were discovered in the back seat.
• It was described that the court heard Farquharson had a “love/hate” relationship with the children and that he resented Gambino “something badly” after separation in 2004.
• A timeline account stated: October 1994 — Jai Farquharson is born; July 1998 — Tyler Farquharson is born; 2000 — Farquharson and Ms Gambino get married; December 2002 — Bailey is born; November 2004 — Ms Gambino realises she does not love Farquharson any more and asks him to move out; about May or June 2005 — outside a local fish and chip shop Farquharson tells Greg King he will pay Ms Gambino back “big time” by “taking away the most important thing”; December 2005 — Farquharson is charged with murdering his three sons and appears in court where he is granted bail; August 2006 — Farquharson ordered to stand trial for the murder of his sons; October 2007 — after a six-week trial Farquharson is found guilty and the following month is sentenced to life in prison with no parole; November 2007 — Farquharson lodges appeal against conviction; December 2009 — Farquharson wins his appeal, his conviction is quashed and a new trial is ordered; May 2010 — retrial begins before Justice Lex Lasry; July 2010 — after an 11-week trial Farquharson is again convicted; October 15, 2010 — Farquharson is sentenced to life in prison with a minimum of 33 years.