Farquharson claimsa coughing fit caused him to black out,resulting in his car veering off the road and into the dam. Separate juries in 2007 and 2010 found Farquharson guilty of murdering his children.
He appealed against his first conviction in 2007 because police had not disclosed relevant information about a key witness against him. The court ordered a retrial before he was found guilty again by a jury in 2010. He was denied the chance to appeal against his second conviction at the High Court in 2013.
Robert Farquharson leaving the Supreme Court in 2010.Credit:John Woudstra
Farquharson is currentlyserving 33 years jail in Barwon Prison’s protection unit.
When asked why there should be another appeal after two trials,two appeals and the High Court rejecting an application to hear the case,McMahon said:“There are countless examples of miscarriages of justice where people have exhausted their appeals. Appeal courts are generally not a favourable place to find justice for people who’ve been wrongly convicted.”
Geelong respiratory physician Dr Christopher Steinfort,who gave evidence for Farquharson at both his trials,diagnosed him with “classic cough syncope”. But the police produced another expert,sleep and respiratory physician Professor Matthew Naughton,who convinced the juries the condition was “incredibly rare”.
At Farquharson’s 2010 trial,Justice Lex Lasry said the jury had rejected Farquharson’s coughing fit defence and found he had deliberately murdered his children as revenge against his former wife,Cindy Gambino,for finding a new partner and making his life difficult financially.
Tyler,Bailey and Jai drowned after their father drove into a dam near Winchelsea.Credit:
Lasry also said:“The jury’s verdict makes it plain that they are satisfied beyond reasonable doubt that when you left the vehicle,you did so with the knowledge and intention that your three children would be drowned and they were. For them,it must have been a terrifying death.”
Gambino,who had two more sons with her new partner,Stephen Moules,died aged 50 in 2022. Moules told this masthead he did not want to get involved in anything further to do with the case.
“As far as I’m concerned,it’s a closed chapter. It’s done and dusted,” he said. “And I’m not the judge. You know,humans make mistakes all the time when it comes to judging people and convicting them. If he’s innocent,so be it. If he’s guilty,so be it. It’s not for me to judge.”
Greg Roberts,a counsellor and social worker who visits Farquharson in prison,said he was “feeling hopeful and yet also really anxious,and stressed” about the appeal.
Cindy Gambino and Stephen Moules outside the Supreme Court in 2010.Credit:Rebecca Hallas
“[Farquharson is] in a mixed place of trying to be hopeful,but mindful of what this means because of the media and what will happen. The stress and anxiety are prevalent. If his hopes get up and are dashed again,he’ll be worse off,” Roberts said.
Farquharson was also aware of the impact it would have on others,including Gambino’s family,Roberts added. “He’s always been mindful of that. I think also,though,that he is exhausted by trying to get across to people that this wasn’t a deliberate act,and he’s not the person that he’s been painted to be.”
The 2019 reforms were prompted by the findings of two Victorian inquiries revealing misconduct in the criminal justice system involving Victoria Police:one was the case of accused police killer Jason Roberts and the other was former barrister turned police informant Nicola Gobbo.
Roberts was the first person to make an appeal under the legislation,following an Independent Broad-based Anti-corruption Commission investigation into police misconduct. In 2022,following a retrial of almost four months,Roberts was found not guilty of the 1998 murders of Victoria Police officers Sergeant Gary Silk and Senior Constable Rodney Miller.
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