Today, the High Court will hear an application from Robert Farquharson, who was convicted in 2010 of murdering his three children by deliberately driving into a dam near Winchelsea, Victoria on Fathers’ Day 2005. The events at that dam continue to be of great interest to many Australians, but that is not a typical reason for a criminal defendant to get a full hearing before the national court. Rather, a federal statute specifies that the Court must consider whether the proceedings involve a ‘question of law’ of public interest (or where lower courts disagree) and whether further consideration of the case is required by ‘the interests of the administration of justice’.
Of the matters that Farquharson raised in his state appeal, arguably the best candidate for High Court scrutiny is his belated suggestion that his jury should have been instructed to consider whether his famous claim that he crashed due to a coughing fit meant that he was guilty of manslaughter. Victoria’s Court of Appeal observed that Farquharson’s argument was a ‘unique’ application of the High Court’s much criticised Pemble decision, which requires that jurors be instructed on all legal options available, whether or not they were raised by the prosecution or defence. The Victorian Court dismissed the appeal, holding that the manslaughter scenario was rejected by both sides’ evidence and that the jury was properly instructed and reached a safe verdict. The application for special leave to appeal will be heard before a bench of two or three judges in Melbourne this morning.