‘Fried noodles #23’: Witness’s new detail raises crucial question in Farquharson case

A key witness in the case against convicted triple-murderer Robert Farquharson has provided new information that casts serious doubt on the evidence she gave in the Victorian man’s second trial.

Dawn Waite, whose evidence was considered “uncontested” by the Court of Appeal in the case, has provided a timeline to the Trial by Water podcast that makes it impossible for her to have seen the events to which she testified.

Dawn Waite (centre) is helped by friends leaving court after an emotional afternoon giving evidence in 2010.Credit: Justin McManus

Waite’s evidence became one of six “strands of the rope” of evidence that resulted in Farquharson being found guilty of triple murder in the second of his two trials after he drove his three sons into a dam on the night of Father’s Day in 2005. He escaped the car, but Jai, 10, Tyler, 7, and Bailey, 2, drowned.

Farquharson was charged, tried and found guilty in 2007. But the Court of Appeal returned the case for a retrial over problems with a different witness’s evidence.

Then, in December 2009, more than four years after the dam crash, Waite came forward to police to report that she had seen a light coloured Holden Commodore driving erratically and slowly a few kilometres before the fatal dam.

At the trial, Waite gave evidence that, on her way back from a shopping trip to Melbourne with her 16-year-old daughter and her friend, she had seen a man through the car’s rear window and then through the side window as she overtook. She described a clean-shaven Caucasian man in his 30s, looking well and not coughing – she could tell because his face was not red.

He was looking out to the right of the car, and a number of children were squashed in the back seat, she told the court. The prosecution invited the jury to believe that Waite had identified Farquharson as he was looking for the exit from the road to the dam as part of his plot to murder his three children.

She then said that, after passing the car, she had seen it in her rear vision mirror veering off the road to the right as it came down the overpass, presumably on its way into the water. She says that at the time she thought the man and his boys might have been heading off the road looking for foxes.

The defence questioned what she could have seen because the night was dark and moonless.

But Waite’s evidence was critical in the second trial. After hearing it, the police changed key aspects of their own traffic reconstruction evidence describing how the car had moved from the road to the dam.

The prosecution also questioned the other, until-then uncontested evidence about where the children had been sitting in the car because she gave evidence that she had seen all of them in the back seat.

In her book on the case, This House of Grief, the author Helen Garner described Waite as a “very good witness, stable, intelligent and … credible”.

When this masthead recently questioned Waite about her recollections of the night, she said she had been at the noodle shop in Colac – about 30 minutes further down the road from the dam – about the time Farquharson entered the dam.

“We stopped in Colac, and I can even tell you what I ordered that night for dinner. Exactly what we ordered,” Waite told Trial by Water, in the series’ third episode, released today, which looks at the witness evidence in the case.

“I ordered the fried noodles number 23. And the kids had a vegetarian noodle box.”

Waite said she remembered the time they ordered because she had “kept the receipt for years”. The time on the receipt was 7.15pm, she said.

However, Farquharson and his boys did not reach the dam until about 7.15pm – a 30-minute drive from where Waite said she was.

There was no contest at the trial about the time of Farquharson’s trip because a cash register docket from Kmart in the Geelong suburb of Belmont proved he bought a cricket ball and a video for his boys at 6.37pm.

From there he travelled the 15 minutes to his sister’s house and stayed there a few minutes – evidence at his trial suggested it was about 10 minutes – chatting with his brother-in-law.

Then he got back in the car and drove the approximately 10 minutes to the dam about 15 kilometres away. The evidence, confirmed by police, is that he could not have been at the dam any earlier than 7pm, and more likely 7.15pm.

Waite’s new information, if correct, that she was in Colac at that time would make it impossible for her to have been on the approach to the dam when Farquharson was. Farquharson’s evidence was that he did not see anyone overtaking at that point.

Asked if she agreed there was a discrepancy in the timing, Waite told Trial by Water: “Yeah, that’s true … Anyway, yeah, I can’t change the time. That’s exactly what it was … [and] I did have the proof.”

She said she had kept the receipt for 10 years but had since thrown it out. And she said the police, who took her statement and used her as a witness for the prosecution, had not asked her to provide the receipt to them.

“I’m pretty sure I told them [about it],” she said, before backtracking slightly and saying, “I’m not sure to be honest ... I can’t remember.”

Waite’s evidence is part of the case against Farquharson that has been called into question by scientists, including the chief executive of the Australian Academy of Science, Anna-Maria Arabia.

“There were two witnesses who provided memory evidence in the Farquharson case. In one case, it was provided four years after the event,” Arabia told Trial by Water and 60 Minutes. “Scientifically, we know that memory evidence is not reliable almost immediately, after a case let alone for years later.”

Waite prides herself on her memory.

“I have had that ability my whole life,” she said. “I don’t know why, but I’ve always had a very, very good memory.”

However, told in a text message after the conversation that Trial by Water would be playing her on-the-record interview in the podcast, Waite responded: “Best not to. I am unsure now about the time … I have looked for the receipt and can’t find it. I’m doubted [sic] myself.” This masthead is in no way suggesting Waite deliberately gave false evidence, only that one of her versions of events may be mistaken.

Waite’s evidence at Farquharson’s trial was crucial in its own right. But it also had a big impact on Farquharson’s estranged wife, Cindy Gambino, the mother of the three children. After more than four years supporting Farquharson, she turned against him publicly and in the court. She later described Waite’s evidence as “the clincher”.

Police were also excited when Waite came forward. Brad Peters, one of the major collision investigation unit officers who worked on the case said in 2017 that it “corroborated [the police] analysis of the scene and corroborated everything that we alleged about the inputs to the steering wheel, the whole thing. It just all fit ... That was a pretty special moment.”

Police have declined to answer questions about the case, saying only that Victoria Police “stands behind the rigorous investigation” in the case, and “consider this matter finalised”. Asked to comment specifically this week about Waite’s comments, they reiterated their earlier statement.

The judge in the case, Lex Lasry, cited Waite’s evidence in his sentencing remarks.

Addressing Farquharson, he said it was “an inevitable consequence of the jury’s verdict that they were satisfied that at this point you were preparing to drive your car into the dam”.

The Court of Appeal described Waite’s evidence as “essentially uncontradicted”.

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