On the evening of Sunday, September 4, 2005, Father's Day in Australia, Robert Farquharson's three sons died near the town of Winchelsea, in Victoria. They had spent the afternoon with him under an arrangement with their mother, his estranged wife, and he was due to return them to her in the town that night. He survived. The boys did not.
Farquharson was in his mid-thirties. He had lived in or around Winchelsea his whole life, and he had no criminal record. From the first hours he insisted that the deaths were an accident, and he has never moved from that position. Detectives from the Victoria Police Homicide Squad came to a different view, and in late 2005 he was charged with three counts of murder. Over the next eight years the case passed through every level of the Australian criminal courts: a jury trial in the Supreme Court of Victoria in 2007, a successful appeal in 2009, a retrial in 2010 that ended in the same verdicts, a second appeal that failed in 2012 and a refused application to the High Court of Australia in 2013. He was sentenced to three terms of life imprisonment, with a minimum of 33 years before he can be considered for parole.
The question at the center of both trials never changed. The Court of Appeal put it plainly in 2012: whether the deaths were deliberate, with the intention of killing the children, or accidental. Twice a jury decided that the prosecution had proved the first beyond reasonable doubt.
Robert Donald William Farquharson grew up in Winchelsea, went to school there and in Geelong, and left after Year 11. At about 17 he went to work for the Shire of Winchelsea, the local council, where he stayed from 1987 to 1995. He later held other jobs in the district. Within the town he was known through the football club, and especially through junior football.
He married in August 2000; the couple had three sons.
In November 2004 the marriage ended, and he moved out. The evidence at the retrial showed that he was upset and angry that his family seemed to be falling apart.
Through all of this, the evidence also showed, Farquharson's relationship with his three boys stayed good, and he made an effort to keep it that way through the divorce he knew was coming. The defense would point to that love at both trials. The prosecution relied on the break-up and its effect on him; on his fear that his wife's new partner would replace him as the father figure in the boys' lives; on financial pressure; and on his anger at a recent notice that he would have to pay more in child support.
During 2005 he told several people that he was unhappy with how his life had turned out. One witness at the retrial said he told her he was going to take the children from their mother, and that when she asked whether he meant he would seek custody, he only shrugged. At the retrial he said he did not remember the conversation.
The most contested evidence in the case came from a friend. The two men had worked together at the Shire of Winchelsea and played in the same local football team. In June or July 2005, about two or three months before Father's Day, they spoke outside a fish and chip shop in Winchelsea.
Farquharson never denied that the conversation took place. Nor did he deny that during it he said he intended to "pay her back big time," meaning his former wife. What he denied was the meaning the prosecution gave those words. The friend's account at both trials went much further. He testified that Farquharson blamed his wife for everything, complained that she was likely to marry her new partner, and then, when asked how he would pay her back, said he would take from her the thing most precious to her, the children, by killing them, and that it would happen on Father's Day in a way that would look like an accident. In the courts this came to be called the "extreme" version of the conversation.
The friend did not take the remark seriously at the time. After the deaths he agreed to help the Homicide Squad, and in September and October 2005 he recorded two conversations with Farquharson for the police. He first set the extreme version down in a written statement on December 19, 2005, about three months after the deaths, and he gave evidence in the same terms at the committal hearing on August 14, 2006.
That evening all three boys died just outside Winchelsea.
He gave police his own account in a record of interview, and from the start his position was that the deaths were an accident. That remained his defense at both trials. In the weeks that followed, detectives built a circumstantial case against him. It drew on medical evidence, on engineering evidence, and on the friend's account of the conversation in June. After an investigation by the Homicide Squad he was charged with three counts of murder, one for each son. He denied all three.
Committal proceedings were held in 2006, and he was committed to stand trial in the Supreme Court of Victoria. He was allowed bail and remained free until his first trial began.
The trial was held in the Supreme Court at Melbourne in 2007 before a judge and jury, as case No. 1419 of 2006, Director of Public Prosecutions v Farquharson. When the trial began his bail was revoked, although nothing he had done had caused that. Farquharson pleaded not guilty and did not give evidence.
The Crown case was that the deaths were not an accident but the result of a conscious, voluntary and deliberate act by a man who wanted to punish his former wife for the end of the marriage, and that Father's Day had been chosen so that she would remember the loss for the rest of her life. That case rested on three strands. The first was medical evidence about how rare the condition he described was and how unlikely it was that he had suffered it. The Crown called three medical experts, among them a specialist thoracic physician who said it was very unlikely that Farquharson had suffered the episode he described. The defense called a thoracic specialist of its own. The second strand was engineering evidence from a police expert. The third was the friend's account of the June conversation.
The jury found him guilty on all three counts. At the plea hearing on October 26, 2007, the prosecution asked that no minimum term be set. On November 16, 2007, in DPP v Farquharson (sentence) [2007] VSC 469, the trial judge sentenced him to life imprisonment on each count of murder and declined to fix any minimum term, which is a most exceptional course. Farquharson was 38. He had already served 105 days in custody.
Farquharson applied to the Court of Appeal of the Supreme Court of Victoria for leave to appeal against both conviction and sentence. The case, No. 889 of 2007, was heard on June 1 and 2, 2009, by a bench of three: the Chief Justice of Victoria and two Justices of Appeal. Victoria Legal Aid in Geelong acted for him, as it did throughout.
The notice of appeal listed 30 grounds. Some were abandoned before or during argument, and the court dealt with the 24 that remained. They challenged the admission of the medical opinion, the scope of the engineering evidence and the way the judge summed it up, the prosecution's disclosure, the use of the two recorded conversations, and the safety of the verdicts as a whole.
Judgment was delivered on December 17, 2009, in R v Farquharson [2009] VSCA 307, later reported at (2009) 26 VR 410. On the medical evidence the court found no error: the physician's opinion was not inadmissible in the way it had been expressed, and the trial judge had not been shown to be wrong in refusing to exclude it. The court also rejected the complaints it considered about the engineering evidence. On the broadest ground, that the verdicts were unsafe and unsatisfactory, the court held that it had been open to a jury acting reasonably to be satisfied of guilt beyond reasonable doubt. This was not, the court said, a case in which each piece of evidence was a link in a chain; the circumstances supported one another.
Farquharson succeeded on other grounds, and they all concerned the friend. The first was disclosure. In August 2006, after the committal, the friend had himself become involved in an incident that led to criminal charges. The prosecution knew before the trial, at least from May 28, 2007, that he might be charged with an indictable offense, and police were prepared to support him, and later did, when he was sentenced. None of this was disclosed to the defense before the verdicts. The friend was later placed on a 12-month good behavior bond without conviction and fined $750. The court held that the information was rationally probative and should have been disclosed: it would have let the defense suggest that the witness had a reason to keep police on side. The ground was made out.
The second concerned the way the jury had been told to use the recorded conversations. The Crown had relied on things Farquharson said to the friend after the deaths, asking him not to mention parts of the earlier conversation, as evidence of a consciousness of guilt. The court held that the jury should have been directed that they had to be satisfied of what was actually said outside the fish and chip shop before they could reason in that way, and that an Edwards direction, adjusted to cover concealment, was needed in relation to the whole of the taped conversations. The court found a further error in the reminders to the jury of the friend's answer under cross-examination, "Why would I lie?", an error under the High Court's decision in Palmer v The Queen.
The court's conclusion read: "We would grant the application for leave to appeal, determine the appeal instanter, allow the appeal and order that there be a retrial." The convictions were quashed. Farquharson's lawyer said outside court that he had not expected the result. He was then granted bail, and he stayed on bail, without objection and complying with every condition, until the second jury returned its verdicts.
The retrial opened in the Supreme Court at Melbourne in May 2010 before a different judge, as case No. 1524 of 2006, The Queen v Farquharson. The prosecution again ran a circumstantial case built on the same three strands, but it put the case to the jury on the footing that a guilty verdict did not depend on the jury accepting that the June conversation had happened in the terms the friend described. This time Farquharson gave evidence in his own defense and denied killing his children.
On July 22, 2010, after a trial of about 10 weeks, the jury found him guilty of all three counts of murder.
The plea hearing was held on September 16, 2010. The prosecution again submitted that no minimum term should be fixed; his counsel asked for one. Farquharson's family supported him throughout, and both of his sisters gave evidence in the case.
The judge delivered sentence on October 15, 2010, in R v Farquharson [2010] VSC 462. Before fixing the penalty he had to decide which disputed facts he could use against Farquharson. Facts adverse to an offender have to be proved beyond reasonable doubt before a judge may rely on them at sentence, and on that standard the judge was not satisfied that the June conversation had happened in the extreme form the friend described. He did not find the friend deliberately dishonest; he found him an unreliable witness, sure in his own mind of what he remembered. He gave four reasons. The friend's wife had no memory of him passing on anything alarming at the time. In the two recorded conversations he had never put that version to Farquharson. He wrote it down only three months after the deaths, after giving different versions. And the judge had watched him in the witness box.
That finding left the judge unable to say when the decision to kill had been made. He was satisfied there had been a degree of contemplation and planning, but not of its extent or its timing. He was also satisfied that the motive was connected with the separation of November 2004: that Farquharson continued to believe his financial and emotional position had been damaged by it, and that he particularly resented his wife's new relationship.
He sentenced Farquharson to life imprisonment on each of the three counts of murder. On the question of a minimum term he reached a different conclusion from the first trial judge. Under section 11 of the Sentencing Act 1991 a court must fix a period during which the offender is not eligible for parole, unless the nature of the offense or the offender's past history makes that inappropriate. The judge noted that Farquharson had no prior convictions, that it was common ground he was not a danger to the community, and that at 41 a life sentence without parole might mean another 40 years or more in custody. He directed that Farquharson serve a minimum of 33 years before becoming eligible for release on parole. On counts 2 and 3 he was sentenced as a serious violent offender under section 6C of the Act, which made protection of the community the principal purpose of the sentence under section 6D. The judge declared 958 days of pre-sentence detention, counted to and including the day of sentence. Defense counsel said outside court that an appeal would be lodged.
The second appeal, Farquharson v The Queen, No. SAPCR 2010 0395, was heard on May 24, 2012, by the President of the Court of Appeal and two Justices of Appeal. It ran on three grounds. The first was that the verdicts were unreasonable or could not be supported on the evidence. The second was that the judge should have directed the jury that, before convicting, they had to be satisfied beyond reasonable doubt of what was said in the June conversation, or should have taken the extreme version away from them. The third, raised for the first time on appeal, was that the jury should have been offered an alternative verdict of manslaughter by criminal negligence.
Judgment was delivered on December 7, 2012, in [2012] VSCA 296. The court granted leave to appeal on grounds 1 and 2, but not 3, and dismissed the appeal.
On the first ground the court applied the settled test: whether, on the whole of the evidence, it was open to the jury to be satisfied of guilt beyond reasonable doubt, paying full regard to the fact that the jury is the body entrusted with deciding guilt and had seen and heard the witnesses. The defense argued that the idea of a father killing his children was so improbable that it should have left the jury with a doubt. The court accepted that the submission had obvious force, but held that it had to confront formidable difficulties in the evidence, and that the questions it raised were "quintessential jury questions." On the second ground the court held that no part of the circumstantial case could be separated from the rest, or have its use by the jury limited in the way the defense now proposed.
On the third ground the court held that the authorities the defense relied on concerned lesser offenses whose elements were also elements of the crime charged. In this case the Crown had to prove the absence of the medical condition Farquharson described, while manslaughter by criminal negligence would have required its presence. Neither side had asked for such a direction, and the judge would have been wrong to give one.
Farquharson then applied to the High Court of Australia for special leave to appeal against his conviction. On Friday, August 16, 2013, the High Court refused special leave. He was 43. That decision exhausted the ordinary appeal process.
On November 15, 2019, the Victorian Parliament passed legislation creating a new right of appeal for people convicted of indictable offenses who had already used up their existing appeal rights. Under it, a further appeal is open only if fresh and compelling evidence emerges that the court considers warrants an appeal, and the court then decides whether there has been a substantial miscarriage of justice and whether the prisoner should be released or retried. The government presented the right as one available only in exceptional circumstances, under strict legal criteria.
The provisions sit in the Criminal Procedure Act 2009. Section 326C sets out when evidence counts as fresh and when it counts as compelling. The Supreme Court's Practice Note SC CA 4, issued on December 4, 2019, governs every second or subsequent application for leave to appeal against conviction filed on or after that date. Leave is required in every case. The applicant must file a notice of application, an affidavit setting out the evidence said to be fresh and compelling within the meaning of section 326C, a written case of no more than 10 pages, and a list of authorities, and the written case must argue that there is fresh and compelling evidence that should, in the interests of justice, be considered on an appeal.
In May 2024 Farquharson's lawyer confirmed that he intended to bring a new appeal under the 2019 provisions, saying it would be filed in the coming months. In June 2024 Farquharson was serving his sentence in a Victorian prison.
Farquharson has never admitted the killings. He maintained his innocence through both trials, gave evidence at the second, and was still pursuing a further appeal in 2024. The convictions are final under the ordinary appeal process, but the 2019 provisions leave open the possibility of a further application if fresh and compelling evidence is put forward.
The exact terms of the June 2005 conversation were never settled. Farquharson admitted saying he would pay his wife back. The first trial judge accepted the friend's fuller account, while the retrial judge, applying the criminal standard at sentence, was not satisfied that the extreme version had been said. The second jury had been told its verdict did not depend on that version, and the 2012 appeal court held that the jury did not have to be satisfied of it beyond reasonable doubt before convicting.
When Farquharson decided to act is not established. The retrial judge found a degree of planning but could not say when it began or how long it lasted.
1987 to 1995: Works for the Shire of Winchelsea.
August 2000: Marries.
November 2004: The marriage ends.
June or July 2005: The conversation with a friend in Winchelsea.
September 4, 2005 (Father's Day): His three sons die near Winchelsea.
September and October 2005: The friend records two conversations with him for police.
December 19, 2005: The friend's written statement setting out the fuller account.
Late 2005: Charged with three counts of murder after a Homicide Squad investigation.
August 14, 2006: The friend gives evidence at the committal hearing.
2007: First trial, Supreme Court of Victoria; guilty on all three counts.
November 16, 2007: Life imprisonment on each count, no minimum term ([2007] VSC 469).
June 1 and 2, 2009: Court of Appeal hearing.
December 17, 2009: Appeal allowed, convictions quashed, retrial ordered ([2009] VSCA 307); bail granted soon afterward.
May 2010: Retrial opens; he gives evidence.
July 22, 2010: Guilty on all three counts of murder.
October 15, 2010: Life imprisonment on each count, 33-year non-parole period ([2010] VSC 462).
May 24, 2012: Second Court of Appeal hearing.
December 7, 2012: Appeal dismissed ([2012] VSCA 296).
August 16, 2013: High Court of Australia refuses special leave.
November 15, 2019: Victorian Parliament passes the second or subsequent appeal law.
December 4, 2019: Practice Note SC CA 4 issued.
May 2024: His lawyer announces a planned appeal under the 2019 law.
June 2024: Serving his sentence in Victoria.