DPP v Farquharson (Ruling no 10)
[2007] VSC 464
•19 September 2007
IN THE SUPREME COURT OF VICTORIA
CRIMINAL DIVISION
No. 1419 of 2006
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ROBERT DONALD WILLIAM FARQUHARSON |
Ruling No. 10
JUDGE: | CUMMINS J | |
WHERE HELD: | Melbourne | |
DATE OF RULING: | 19 September 2007 | |
CASE MAY BE CITED AS: | DPP v Farquharson (Ruling No. 10) | |
MEDIUM NEUTRAL CITATION: | [2007] VSC 464 | |
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Criminal law and procedure – murder – jury trial – submission of no case to answer at conclusion of prosecution evidence – ruling thereon.
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Mr J Rapke QC Ms A Forrester | Office of Public Prosecutions |
| For the Accused | Mr P Morrissey Mr C Mylonas | Victoria Legal Aid |
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HIS HONOUR:
Learned leading counsel Mr Morrissey for the accused has submitted that there is no case for the accused to answer on the three charges of murder preferred against him. Mr Morrissey submits that without the evidence of the three steering inputs of Acting Sergeant Urquhart, an engineering witness, there is an absence of any objective evidence that the accused was conscious when the vehicle entered the dam. Mr Morrissey submits that the evidence of the three steering inputs is unacceptable, and thus the evidence in this circumstantial case is incapable of establishing a prima facie case. One commences, as one should, with the presumption of innocence – which, as I have previously said to Mr Morrissey, is not the same as a presumption of unconsciousness.
The accused Mr Robert Farquharson is charged with the murders at Winchelsea on 4 September 2005 of his three children, Jai aged ten, Tyler aged seven, and Bailey aged two. It is undoubted that the three children were in Mr Farquharson's vehicle. He had been driving along the Princes Highway from Geelong to Winchelsea on the evening of 4 September 2005 and either he drove, or he blacked out and the car proceeded, off the highway to the right and into a dam 6.5 kilometres east of Winchelsea where the vehicle went 28 metres across the dam and down 7.4 metres to its resting point. The three children drowned and Mr Farquharson escaped.
In the normal case where a vehicle goes off a road, particularly in the country, a number of factors might be looked to. One is if there were high speed involved and the car went off the road by reason of centrifugal force. Another is that there might have been an impediment on the roadway by a kangaroo or a wombat or something of that sort, and the vehicle sought to avoid it. None of that here arises. A sadly familiar entity in the country is people going to sleep at the wheel through fatigue; or being under the influence of alcohol and drugs and leaving the road, or through inattention or texting or other such matters. None of that here arises. A further area of causation in an incident such as this is if there were a tyre blow out or a brake or steering failure, or axle or suspension flaw. None of that here arises. That short list articulates that this case involves a very precise issue.
Has the prosecution proved to the requisite standard that the course of the vehicle into the dam, which directly caused the death of the three children, was a conscious, voluntary and deliberate action by the accused, or has it failed to do so? The accused has said that he had a coughing fit and blacked out and that the car proceeded whilst he was unconscious and he awoke in the water in the dam. The particularity of the issue becomes is thus apparent. Of course the accused has no burden of proof either now or at any time during the trial.
If one looks to the evidence that is open to the jury properly instructed to act upon – the jury will decide whether it accepts the evidence or not – that evidence in brief summary is as follows.
When the accused first spoke to the first of two persons who came to the scene, Mr Shane Atkinson, the accused said he had either had a coughing fit or had done a wheel bearing (p.361), and two minutes later asked for a smoke. In cross-examination, (p.380), Mr Atkinson said that the accused said, "I must have had a coughing fit and passed out. I woke up in the water", which statement was not made at the commencement of the conversation but during its progress. To the other person who first arrived, Mr Tony McClelland, the accused said (p.396), "It must have been a wheel bearing". Then shortly after that he said, "I must have had a coughing fit. I woke up in the water and I couldn't get the kids out". To the first police officer who arrived, Senior Constable Harmon, at 8.10 p.m. from Geelong Uniform, the accused said (p.885), "I've had a chest pain and I just blacked out of the bridge and the car went into the dam". The accused did not mention anything to the first police officer at the scene about a coughing fit. The accused said to a number of persons attending the scene, notably the first two, Mr Atkinson and Mr McClelland, "It's too late" in response to the young men offering to dive into the dam to seek the children. The accused in his interview, Exhibit L, by the Homicide Squad on 6 September, at question 100 said that he thought "If I can wave someone down they might be able to come and help me". At Question 103 he said "I swam to the road and walked back to the road and tried to wave people down to stop and help me". At Question 418 he said "I went and swam to the road to get people to help me". The accused did not ask for help to the persons who first came to the scene. Rather, the statements by the accused at the scene were "It's too late". Indeed to Mr Atkinson, "It's too late. No, don't go down there" – referring to the dam. Further, the accused refused the offer of telephoning 000. No person who attended the scene observed the accused attempt to rescue the children.
That is the factual state of the evidence at the scene. The jury would be entitled to act upon the conduct of the accused as being so contrary to ordinary human behaviour, and especially so contrary to ordinary paternal behaviour, as to be capable with other material of founding an inference of guilt in this case.
The evidence proceeds (p.1380-1381) that the accused, according to Mr Gregory King, of Winchelsea, two to three months before the event in a fish and chip shop conversation in Winchelsea said, looking at the three children in the shop, that he wanted to take away the most important thing to his separated wife. Mr King replied, "What would that be, Robbie?" Mr Farquharson nodded his head towards the fish and chip shop window. Mr King said, "What, the kids?" Mr Farquharson said, "Yes". Mr King said, "What would you do, would you take them away or something?" Mr Farquharson then stared at Mr King and said, "Kill them". Mr King said, "Bullshit, it's her own flesh and blood, Robbie". Mr Farquharson said, "So I hate them". Mr King said, "You would go to gaol". Mr Farquharson said, "No, I won't, I'll kill myself before it gets to that". Mr King asked him, "How?" Mr Farquharson said, "It would be close by". Mr King said, "What?" Mr Farquharson said, "There'd be an accident involving a dam where I survive and the kids don't. It would be on a special day". Mr King said, "What kind of day?" Mr Farquharson said, "Something like Fathers’ Day so everyone would remember it when it was Fathers’ Day and I was the last one to have them for the last time, not her, then she looks up and for the rest of her life every Fathers’ Day". Mr King said, "You don't even dream of that stuff, Robbie". Two to three months later Mr Farquharson’s vehicle entered the dam and sank. The children drowned and Mr Farquharson survived. On Fathers’ Day.
Mr King was extensively and properly cross-examined by Mr Morrissey. Numerous matters were put to him including that much of the fish and chip conversation was the product of Mr King's own mental issues and had not come from the mouth of Mr Farquharson. However, Mr King did not resile from the essence of that conversation as stated in his evidence-in-chief. That evidence is open to the jury to accept.
Next, there is the medical evidence of Associate Professor Naughton, a highly qualified respiratory specialist, and Dr King, a neurologist, in essence that the medical entity of coughing syncope exists, that it involves a paroxysm of coughing followed by a brief period of loss of consciousness, often but not always involving a pre-syncopal episode or experience, and that the condition is extremely rare. The evidence, if accepted, shows that usually the condition is associated with pre-morbid other conditions which were not present here. The evidence, if accepted, is that it is all the rarer if there has been no history of the cough syncope. There is no history here, apart from what the accused himself said. There is no evidence from any witness that the accused had ever blacked out from coughing before. Indeed, if this can be treated as part of the body of knowledge although it was not formally proved by Mr Morrissey, the evidence of Dr C Steinfort put in cross-examination of Associate Professor Naughton of the number of patients on Dr Steinfort’s database, he being a person of specialty in the area, of 6573 of which there were 32 cases of syncope including about 14 of cough syncope, shows that on that database the condition is of the order of 0.003 per cent of that population and even less of the general population. Then one has a condition of the statistical rarity of 0.003 per cent or thereabouts, manifesting itself with no witnessed precedent on a 140 metre stretch of roadway out of 37,000 metres from Geelong to Winchelsea being about .05 per cent of that roadway, just opposite the dam. So one has a confluence of high statistical rarity.
None of that of course means that a blackout did not happen. What it does mean is that it is open to the jury to conclude that it did not happen.
That much is open on the evidence led in the prosecution case, without even starting on the evidence of the tyre marks and whether there was a 30 degree turn off the road and whether there was a third turn just before the tree to ensure that the vehicle went into the dam and whether there were three steering inputs, which I will not rehearse because we have been doing it for the last week.
When one puts it together, as a matter of law there is quite sufficient evidence in this circumstantial case for the prosecution to meet the appropriate standard at this juncture of the proceedings, the end of the prosecution case. Accordingly I rule that there is a case for the accused to answer on the three counts of murder of his children.
I say to the media, and I am sure you all know this, ladies and gentlemen, that this is a ruling in the absence of the jury which therefore should not be published during the course of the trial. I am sure you appreciate that.
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