This House of Grief: The Story of a Murder Trial (27 page)

Just before they approached the long run-up to the railway overpass, a few kilometres
short of Winchelsea, Waite became aware of a car some distance ahead of her that
was behaving oddly—moving slowly, its brake lights going on and off, and wandering
from side to side in the left lane.

She came up behind the car, a light-coloured Commodore, and had to slow right down
to about sixty. She disengaged her cruise control and for a few moments rolled along
about a car’s length behind the Commodore, trying to figure out what it was doing.
She flicked her headlights a few times, to let the driver know she needed to pass.
No response. She did not want to pull out—what if it swerved towards the centre again
and pushed her across the white lines? Once more she flicked her lights. Still it
crawled along at sixty, moving vaguely to left and right.

Now she was getting cranky. Next time the Commodore moved to the left she put her
indicator on, pulled out, and drove alongside it for several seconds, looking into
the car.

The driver was a man, dark-haired, clean-shaven. He was facing straight ahead, ignoring
her, except that every now and then he would slightly turn his head and glance out
to the right. She did not know this stretch of road well, or the landscape it crossed.
She thought he must have been looking for a turn-off, or a gate. She could see several
children in the back seat—three, she thought, and squashed in, since one of them,
a fair-headed boy of seven or eight, was leaning right up against the driver’s-side
window, with his face against the glass.

She made an irritable gesture at the driver, the sort that means
What are you doing?
He paid her no attention, and gave her no eye contact. Finally she planted her foot
and surged past him. She sailed up and over the long rise and down the Winchelsea
side. Just as she reached the flat, having regained highway speed, she took a quick
look in her rear-vision mirror and saw a set of headlights pop over the crest behind
them. The lights headed down the slope, then suddenly
veered across the road to the
right, and were lost to her view.

‘Well,’ she said to the girls, ‘I guess that guy found what he was looking for.’

The following evening, Monday, just after she had finished the milking, she came
inside to cook the tea. The TV news was on. While she worked, she looked up briefly
at the screen and saw a pale Commodore being pulled out of what looked like a lake.
She called to her daughter, ‘That’s the car! That’s the car!’ Sleepless during the
night that followed, she got up at 2 a.m. and made a few notes of what she remembered
of the incident.

Astonishingly, Dawn Waite did not report to any authority her troubling encounter
with the Commodore and its driver. She simply went about her business. For four years
neither the prosecution nor the defence had any idea that someone had observed Farquharson
on the road that night.

During Preliminary Argument, before the jury for the retrial was empanelled, Waite
had been closely questioned before Justice Lasry about her long delay in approaching
the police. She had tried earnestly to explain her failure to act. She knew that
she should have come forward; she felt strongly that she ought to have. She had always
been the sort of person who wanted to do the right thing. But she had a number of
reasons.

She and her family had migrated to Australia only six months before the Father’s
Day crash. She was dealing every day with a three-hundred-strong dairy herd as well
as holding down a job.

In New Zealand, she said, if you saw someone driving dangerously, it was the done
thing to take down the offender’s numberplate and give it to the police. She and
her husband had done it plenty of
times. Back in the nineties a young man ran a stoplight
and cut them off. They reported him and charges were laid. But before they were called
to give evidence in court, the poor lad killed himself. This deeply shocked the couple,
for Waite’s brother-in-law had also taken his own life. They had never got over the
horrible sense of being partly responsible for the young driver’s death.

For a good year before Father’s Day 2005, Waite said, she had been mysteriously unwell,
fatigued, lacking in energy. No doctor could find out what was wrong with her. It
was not until 2008 that she was at last diagnosed with a lymphoma, well advanced,
and had to undergo chemotherapy. During the nausea and weakness of her treatment
a friend had come over to do some housework for her, and in clearing out her office
she had inadvertently thrown away the note pad on which Waite had scribbled down
her memories of the incident near the overpass.

The two years leading up to 2005 had been traumatic for the Waite family in other
ways: in quick succession her father, her father-in-law, and her beloved mother-in-law
had passed away. Here her voice weakened and she wept. The day after the third funeral
they had tried to have a little birthday party for their daughter Jessica. The very
next day, Jessica’s close friend was killed in a car crash.

‘We buried her, and then we moved countries. I just couldn’t, I could not put my
daughter through something like that again. I wasn’t strong enough.

‘So,’ she said in a trembling voice, ‘forgive me for not coming forward at that time.’

But, on 17 December 2009, when the success of Farquharson’s appeal was reported on
the news, Waite’s husband said to her, ‘Really,
now, you must go forward.’ On 23
December 2009, Dawn Waite walked into the Warrnambool police station.

…

Morrissey came down like a wolf on the fold.

Waite was quite a newcomer to this case, wasn’t she? She would hardly deny, would
she, that by not coming forward for five years she had failed to help the accused
man through his trial, his imprisonment, his appeal? And that, when she finally
did come forward, it was with the aim not of helping the accused but of
assisting
the police
? He insinuated that she was a prim-lipped, officious Kiwi who enjoyed
jotting down numberplates and dobbing in other drivers. And wasn’t she exaggerating
her unwellness? She can’t have been feeling all that bad if she could drive from
Warrnambool to Melbourne to shop, go out to dinner, stay a night somewhere and then
drive home, a three-hour drive each way, on top of working, so she said, seven days
a week, twelve hours a day, on her farm, trying to make a quid? As a driver, even
if she had had an unblemished licence since the age of fifteen, she did not set much
of an example for her young daughter, did she? Didn’t she pass that Commodore in
a bad temper, at a very fast clip? Yelling at the driver? Calling him a lunatic and
a dickhead and giving him two fingers as she went by? Putting her daughter and her
daughter’s friend in the lane with a weaving lunatic? Oh, so she went past slowly?
It took two seconds? She drove beside him for two whole seconds with her left-hand
wheels crammed into the lunatic’s lane? Wasn’t that a ridiculously negligent and
dangerous thing to do? And to pass with her lights on full beam—wouldn’t that risk
dazzling the other driver in his mirror? If there was a word of truth in what she
was saying, wasn’t that insanely dangerous driving? She was making all this up, wasn’t
she?

Waite fought to keep a clear head. At every mention of her bad temper at the wheel
she would smile. Sometimes she deflected Morrissey’s salvos with a soft, disarming
laugh. When he pressed her for precise distances she would shrug and calmly stonewall
him, taking the old-fashioned female prerogative. Women jurors registered with visible
pleasure her firm replies. She did not strain to persuade. She acknowledged that,
though she believed there had been three children in the back seat, she might have
been mistaken. Perhaps there had been bags in the back and that was why the boy she
had clearly seen with his face against the window had looked so tightly ‘squished’.
But Morrissey suggested that she had transposed on to her idea of the car’s back
seat the photo of the kids she had seen on the TV news: the famous shot of the three
Farquharson boys lined up on a couch with the little one in the middle.

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?’