The empathic judge who does no ‘unnecessary harm’

“Walter Sofronoff is an extraordinary man, and an extraordinary judge, one whose empathy other judges should seek to emulate,” writes legal columnist HUGH SELBY as he reveals how often the legal profession falls criminally short of that quality. This is the first in a series of three columns.   

I KNEW naught about Walter Sofronoff KC before I watched him on livestream for every day of the recent public hearings at the ACT inquiry into criminal justice.

Hence, I know nothing about whether his “judicial” empathy is a lifelong characteristic, or something that he acquired from his walking a road to Damascus.

“Empathy” means a feeling of awareness toward other people’s emotions and an attempt to understand how they feel.

His maxim is “do no unnecessary harm”. That’s an aspect of being empathic. As the commissioner he, and his team, followed that maxim.

So often during the hearings he offered both witnesses and advocates “face-saving” options. That they often failed to see, let alone grasp that branch, was not his fault.

Rather more direct illustrations of his empathy were that he called out the media early in the public hearings when they splashed gossip material about Ms Higgins; and he did it again when a photo invading ACT DPP Drumgold’s privacy at home was published in a broadsheet newspaper.

All in all, Sofronoff is an extraordinary man, and an extraordinary “judge”, one whose empathy other judges should seek to emulate.

Judges do not shed their “non-judicial” skin when they are appointed. They wear all those characteristics, good and bad, right under the black robe.

As an advocate, one gets to appreciate the judge who steers the case, and one or more advocates, away from fatal shores which the advocates – from a lack of experience or talent – cannot see.

As an advocate one never forgets the judge who gets a kick from humiliating an advocate, or worse, sabotaging their case. 

There are always bad apples, among judges, and among advocates. They shine on the shelf until their rotten core is laid bare.

Putting the mentor and the bully aside, it surprises that both judges and advocates are unable to deal with witness emotion in the courtroom. 

Gender seems to make no difference. What would be normal behaviour outside the courtroom disappears. Empathy vanishes at the courtroom door. 

When a witness breaks down the usual responses are embarrassed silence, the passing of a tissue, followed by, “Are you okay to continue (answering questions)?”.

Because the witness says: “I just want to get this over”, the questioning then restarts as though nothing has happened. Their words give away the level of distress, that something more is required of those who command the space. The witness needs privacy to recover, but doesn’t get it.

Why would any supposedly competent advocate want to cross-examine a distressed witness? Surely it is worse than kicking a sick dog?

By contrast, if an expert witness needs some time to check calculations or review material, the court will take a break so that the expert can go to a quiet room to do that work.

The tragedy of Meaghan Vass

I come not to bury this young woman (others have done that repeatedly), but to praise her for her courage. That’s why I have named her.

Life has not been kind to Ms Vass. Some people, and she is one, wear their hard life, long, long before it shows upon those of us with luckier wheels of fortune. 

As a teenager she went aboard a moored yacht on the Derwent, Hobart. It was Australia Day. She was not alone. She got there on a dinghy.

Bob, a middle-aged man, with no signs of suicidal intent, was working below deck. His partner, Sue, had left him there, going back to shore on the yacht’s dinghy.

Ms Vass has reported in a sworn statement – made years after these events – that there was a fight between Bob and the two males with her.

Bob has not been seen since, but Ms Vass left her DNA on the deck. 

Whether these events describe any criminal offence, beyond unlawful entry, is an unresolved question. Who assaulted whom and with what intent is unknown. How and why Bob vanished is also unknown. That it is unknown is because of police failure to properly investigate the bleeding obvious. 

They had reports of pilfering from yachts. They stopped that line of inquiry. They had Ms Vass’s DNA. They said then that her DNA got there by some unknown means, unconnected with her being on the yacht.

More recently, they allege that she broke into a shipyard, in the days after Bob’s disappearance, and left her DNA then. Oddly, despite her DNA, they have never charged her with this supposed break in.

What is known is that Sue was convicted of Bob’s murder. She was paroled last year after serving a baker’s dozen.

What is also on the public record is that Sue’s latest appeal in 2021 against her conviction failed. 

Ms Vass was the centrepiece to that appeal. It was the lack of empathy and adequate support for Ms Vass that cruelled Sue’s prospects. Ms Vass, a victim of her habitat, was “done over” by the system, our system, that she sought to help. 

The lack of any empathy

Ms Vass was called to the appellate court to give “new and fresh” evidence. Having said at the murder trial that she had not been on the yacht (giving credence to the police claim that her DNA got there by some other means), she now admitted to having been on the yacht.

But, wait, there’s more isn’t there? What did the police say to her, if anything, about this case? Whom was she with? Why was she there? What can she tell us about Bob’s fate? In short, what happened?

Simple enough if you’re prepared to be a dobber, to rat on your mates.

Anything but simple when you are being asked to upset immutable principles of your short life: do not trust police, avoid courts, make accommodations to survive, do not rat out those who are fellow denizens of your world.

Her situation demanded a trained support person with whom she had developed a rapport. What she got was a solicitor ill-equipped for the task, unable either to prepare her for the witness role or to support her when she was in the witness box.

Ms Vass needed someone with the experience, training and passion of Ms Heidi Yates, the ACT’s Victims of Crime Commissioner. Then justice might have been done.

Lacking that support she collapsed, unable to answer questions, able only to express a fervent wish to go home.

It’s not enough to write “collapsed”. We need to feel the depths of her trauma. If you have experienced, or seen someone close to you, dissolve into a retching, sobbing, shaking human form, water flowing from the eyes and choking gasps from the mouth, then you can comprehend, perhaps understand her collapse.

Empathy was too transient to be effective. Support likewise was on a break.

Instead, having watched her disintegrate, the lawyers who put her in the witness box abandoned her and abandoned her message. It was as though she was a passing chimera, an illusion.

Who was to blame? Assuredly not any of the lawyers, nor any of the judges, united in mute voice.

The appeal was over, and lost, in a couple of days. Empathy would have seen her properly prepared and properly supported. With empathy and professional support she was the key to exposing what happened that Australia Day.

The nature of her likely evidence was well known. The judges can hardly have been unaware of it.

If any one of them had had Walter Sofronoff’s abilities, then justice might have been done that day. It wasn’t.

Justice died that day, as surely as the condemned prisoner died in Oscar Wilde’s “Ballad of Reading Gaol”.

Recalling Wilde’s lament:

We were as men who through a fen
  Of filthy darkness grope:
We did not dare to breathe a prayer,
  Or give our anguish scope:
Something was dead in each of us,
  And what was dead was Hope.

But hope, despite the pessimists, springs eternal and follows the winters of our discontent.

Please come back to read more about why Ms Vass’s courage still matters.

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