Sofronoff the empathic judge who does no ‘unnecessary harm’ – next task in Tasmania?

“Walter Sofronoff is an extraordinary man, and an extraordinary judge, one whose empathy other judges should seek to emulate,” writes legal columnist HUGH SELBY in Canberra City News, as he reveals how often the legal profession falls short of that quality, in PART 1 of three consecutive columns in early June 2023. Selby quotes the treatment of Meaghan Vass in the Sue Neill-Fraser appeal as an example of a failure of empathy. In PART 2 he argues that her courage still matters and in PART 3 he suggests that Walter Sofronoff KC would be ideal to lead a wide ranging public inquiry into the case of Sue Neill-Fraser. 

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.

PART 2

COMMISSIONER Walter Sofronoff KC conducted several Queensland inquiries before his current ACT assignment. The most recent was his 2022 inquiry into DNA forensic testing.  His report can be found here.

Very early in his report he writes: “I have found that serious problems have existed within the laboratory for many years, some of them amounting to grave maladministration involving dishonesty.”

It would be nice to emphatically state that the Queensland laboratory was the “odd one out”.  Sadly, that ain’t necessarily so.

His “DNA Forensic Testing” inquiry raised issues of the proper use of forensic science, the applied science discipline that takes and analyses samples recovered from crime scenes by crime-scene examiners.

Within forensic science there are specialties, such as the well-known fields of fingerprinting, forensic document examination, DNA analysis, toolmark comparison (of which ballistics is a sub-specialty), and the identification of trace materials.

These days, there are university degrees in forensic science and graduate research programs.  There are current controversies among practitioners such as how to express the level of confidence in their results, the proper use of Bayesian statistical methods, and recognising and responding to unconscious biases that may adversely affect dispassionate, objective science.

Australian forensic scientists have a professional body which has published a Code of Professional Practice.  You can find the current version (from 2014) here.

Included within that code is this provision:

2.1  Forensic practitioners must… not knowingly provide misleading… opinions or evidence, nor knowingly mispresent a situation.

Members of the body are also bound by the Australia-wide courts’ code of conduct for expert witnesses. The first principle in that code is that the expert witness’s primary, overriding obligation is to the court, not the party that has called them to give evidence.

The breaching of these provisions may bring injustice. People are wrongly convicted. Innocent people spend years in jail. Guilty people remain free. What follows is a current example, not from Queensland, but from the Apple Isle.

The simple facts

It was the police case theory, accepted by the jury, that the accused, Sue, killed her partner Bob on their yacht, lowered his body into the yacht’s dinghy and then went somewhere to dispose of the body which has never been found.

The accused denied being on the yacht, and denied any involvement in her partner’s disappearance.

No murder weapon was found.

Therefore, the case needed forensic evidence to support it.

Following long-established practice, the forensic team carefully examined the dinghy for traces that would support the case theory.

That examination included applying luminol to the dinghy surfaces.

Luminol is a preliminary test.  It reacts with blood.  However, because it reacts with some 100 substances, including the vegetable broccoli and bleach, any reaction to it must then be confirmed by later testing (there are several appropriate tests) as to the source of the reaction.

The luminol reacted with “something” at multiple sites on the dinghy interior. A luminol reaction is impressive: a bright fluoresce.

The forensic team then did numerous tests for blood. The test results were initialled by forensic officers. Every test was negative for blood.  There was no blood found in that dinghy.

The forensic team collected all the results and provided them in a lengthy forensic report to the prosecutions office (ODPP) who provided a copy to the defence team.

So far, everything was done “according to Hoyle”.  From thereon it wasn’t, not by anyone.

There is no evidence that the advocates on either side understood the forensic report. Neither of them raised any questions at the trial with anyone about the meaning and import of the multiple negative test results.

The jury was shown a photo of luminol reacting ever so brightly in the dinghy – an egregious error as it had no relevance to any fact in dispute; however, it was very prejudicial to the accused.

Surrounded by ignorance, a forensic officer from Tasmania Police, who had made notations on, or initialled, some of the “negative” test results, shared with the jury her opinion, based – she said – on her experience, that the luminol results (seen in that photo) were “signs of blood”.

If ever one needed to explain the phrase, “a nod is as good as a wink”, this is the perfect example.

Just why she chose to ignore her primary duty to the court and instead give answers she knew to be contrary to the test results is unknown. If she was asked why she did it, and if she answered, that record has been buried deep in a Hobart police vault in which horrible mistakes are secured.

She knowingly provided misleading opinions and knowingly mispresented the facts as she knew them.

Her colleagues who had initialled other negative test results, or done some of the testing, gave evidence about other forensic evidence.  No one asked them questions about those tests for blood in the dinghy.

The jury was not so much misled as deliberately tricked by a person presented as an expert.

Keep it buried

For more than a decade it has been the unshakeable position of Tasmanian authorities and decision makers in Tasmanian mainstream media that none of this matters.

In 2021 the state attorney-general declined to intervene in an appeal at which this issue ought to have been raised but wasn’t.

Relevant analyses of a series of investigative shortcomings have been tabled in the Tasmanian Upper House. See them here.

Though that “tabling” provides “protection” to those who could light up the extent of this travesty the only sign of unity is a determination to bury it.

This is an environment with which Walter Sofronoff KC is familiar.  He, and Queensland, were blessed with journalists who are rather more proactive than their Tassie colleagues.

He wrote: “The professional skill and determination of Mr (Hedley) Thomas (a senior journalist with ‘The Australian’) ensured that there was not the slightest chance that the issues would subside. The scientists’ voices had been suppressed for years and, but for Mr Thomas’s tenacious agitation of senior political figures, it is possible that even (police) Inspector Neville’s efforts might not have been enough.”(paragraph 11).

Readers will recall (above) that I acknowledged Ms Meaghan Vass’s courage.

Teenager Ms Vass lied, but adult Ms Vass tried to make amends

It’s not just that she tried to share the truth. It is important that everyone understands that various people, supposedly committed to justice, gave incorrect evidence, made fallacious submissions, failed to disclose relevant material (which will be discussed in the next article), or have condoned that being done for more than a decade.

That condonation has not been passive silence. They have taken active steps to suppress the truth.

Teenager Ms Vass lied, but adult Ms Vass tried to make amends. She was failed by those supposedly committed to justice. It’s time that others came forward and demanded that Walter Sofronoff KC and his team be brought to Tasmania for an inquiry into Tasmania’s criminal injustice system.

Ms Vass’s evidence of being on the yacht (including her DNA sample on the deck), is so much stronger than the evidence that Sue was on it. There is no evidence of blood in the yacht’s dinghy, no evidence that Sue with Bob’s body was in that dinghy either.

And, yes, there is – alas – more to come.

PART 3

THE “Moller Report” included an executive summary that ACT superintendent Scott Moller prepared during the police investigation of the allegations of Brittany Higgins. The ACT director of public prosecutions didn’t want to share it with the defence. He didn’t want to disclose it despite the police being quite happy to do so.

This article is about another instance of a prosecutor failing to disclose something from police, but this time with awful consequences for Sue, to whom you have been introduced in the previous two articles (links below).

Dinghies figure prominently in Sue’s saga because, apart from swimming, they are a good way to get to and from a moored yacht.

In the previous article you learned how a forensic expert threw aside her science and instead provided the prosecution with opinion evidence that she knew to be wrong about signs of blood in the dinghy that belonged to Sue and Bob.

That dinghy was an 11.5 feet long, white and blue trimmed Zodiac with an outboard motor (and with the prominent words “Quicksilver” along the side).

Responding to a police call on radio for information, Mr Peter Lorraine phoned and told them what he had seen from the riverside mid-afternoon on Australia Day.  The police officer made notes.

That handwritten note states: “Small cockle boat, 5’ tender, yellow/white, Not Zodiac, No motor”.

Mr Lorraine, concerned citizen, had no useful evidence.

Nevertheless, shortly thereafter Mr Lorraine was asked to meet with police and sign a prepared statement.  In that statement he does see Bob on the yacht, and Sue and Bob’s dinghy.

Apart from the falseness of what he was signing, this police conduct is also a worrying sign of an investigation going south only days after it started.

The following year at the trial Mr Lorraine adopted his signed statement as his evidence. I can assure all readers that Mr Lorraine is thoroughly decent. I do not criticise him.

Mr Lorraine was a credible, independent witness. Sue’s defence team had to choose between her denial to having been on the yacht that afternoon, and Mr Lorraine’s claim to have seen the dinghy at the stern of the yacht – an acceptance that meant they disbelieved their client.

While the Office of the Director of Public Prosecutions (ODPP) did have the handwritten note taken when Mr Lorraine first contacted police, the director (who ran the trial) was not told about it.

During the trial a police officer emailed one of the ODPP team about the note. That team member failed to give both the handwritten note and the “in trial email” to either the director or to the defence.

Had there been immediate disclosure, as required, then Mr Lorraine would have been asked more questions, by both the director and the defence. Then everyone in that courtroom would have understood that there was no evidence that the yacht’s Zodiac dinghy was at the yacht that Australia Day afternoon.

Some years later, the ODPP team member and the current director were contacted, seeking to have them come clean about this serious error in the conduct of the trial.  That’s what being a “Minister of Justice” requires of prosecutors.

The response was threats of court action for “contempt of court”. The irony of this choice of a litigation pathway should be clear to all readers: was it those who were determined to keep past misconduct in court under wraps, or someone trying to bring it out into the open, who damaged the reputation of a State Supreme Court?

The issue was then raised with others in the ruling elite. That elicited nothing, save for a letter that arrived on beautiful, thick paper, embossed with a special seal.

Dear Mr Selby, …. “I will not take any action as a result of receiving your letter.”

I have kept this letter as a memento of how easy it is to maintain injustice.

Several years later I received another letter, same quality paper and seal, instructing me, “not to write again”.

I have followed that instruction, choosing instead to write to you.

Unlike the jury, you now know that Sue and Bob’s Zodiac dinghy was not at their yacht that Australia Day afternoon, that no signs of blood were found in that dinghy, and that Ms Meaghan Vass went to the yacht that afternoon with two males and that she left her DNA on the deck.

Lot of doubt about Sue’s guilt isn’t there? I have shared with you only some of the police and prosecution problems. Rather more are set out in the papers tabled in the Legislative Council in August 2021.

You now know that the determination to do nothing was, and is, embedded at the top.

To get to the bottom of all this there must be a wide-ranging public inquiry conducted by a proven team.

Together, in Canberra, we have seen and heard Walter Sofronoff KC and his team in action. They are winners and they make us winners, too.

Their 2022 Queensland inquiry into DNA forensic testing, and the 2023 ACT inquiry into prosecution and police, have shown their proficiency in investigating police, prosecution and expert evidence. That is what is required in Tasmania.

Tasmanians need their help. To bring that about send your short email now to their lower and upper Houses of Parliament,  assembly@parliament.tas.gov.au;  council@parliament.tas.gov.au

All you need to get across is that Tasmania needs Walter Sofronoff KC and his team.

If enough readers play their part, then the payoff is the guaranteed “you have got to be kidding me, but I am hooked” livestream of another Sofronoff and team inquiry.

I’ll be reporting on all the action to you day by day.

Walter Sofronoff KC’s report is due to be delivered to the ACT Chief Minister, Andrew Barr MLA and Attorney-General Shane Rattenbury, on July 31, 2023.

 

Hugh Selby’s free podcasts on “Witness Essentials” and “Advocacy in court: preparation and performance” can be heard on the best known podcast sites.

Hugh Selby is a retired barrister. His legal affairs commentary (where these articles were first published) can be found at citynews.com.au by typing hugh selby into the search space.