by Leigh Sales
At the NSW Coroner’s Court, a wonderful, sensible young woman named Jane Gladman is on staff full-time to liaise with the families of the deceased. She helps with anything they need, on one occasion rifling through human waste in the morgue to find a placenta that a grieving mother wanted. At the time of writing, Jane is lobbying to have a dog allowed into the court building: research shows that animals can be a source of comfort to troubled souls, and Jane thinks it’s worth trying.
Therapeutic jurisprudence is not an uncontroversial idea and not everyone in the legal profession subscribes to it. Why should courts be bothered with any of this? Isn’t that the job of psychologists and social workers? A court’s mission is to dispense justice, not to fret about the emotional lives of participants and interested parties. The law values dispassionate reason above all else; it is the realm of fact, logic and intellect, not emotion, instinct and subjectivity. Asking judges to consider the mental health of witnesses and families, and to perhaps even change court processes to better accommodate them, is surely asking for trouble.
Yet for all the law’s emphasis on reason, the tales that play out in front of judges frequently have at their core some of the most irrational passions imaginable – rage, jealousy, lust, grief. Courts are places where humanity is distilled to its most raw. The idea that the law can exist in an emotionless vacuum is patently nonsense. If we believe that courts exist to preserve our society’s values and to protect all of us, then surely caring for the wellbeing of those who pass through their doors – or at least avoiding further harm to them – is part of the law’s obligation.
Critics of therapeutic jurisprudence do raise valid concerns, especially the potential compromise to the ability of judges to remain impartial once their minds are open to considerations beyond the law. Many legal officers are confronted with death, often in horrific circumstances, on a daily basis, and they need to ensure that their emotions don’t undermine reasoned judgement. It can be hard to maintain the necessary detachment once you start putting yourself in somebody else’s shoes. It’s one of the reasons the NSW Coroner’s Court employs Jane Gladman. She deals closely with the families and their needs so the coroner can remain at arm’s length.
Cases of suicide are known to cause judges to struggle against their personal feelings. Several Australian and British studies have found that coroners will generally resist declaring a death a suicide unless they absolutely must. The research shows that this is partly because coroners are aware that many people still strongly believe there’s a stigma around suicide. Certain religions consider it shameful. Moreover a lot of suicides, such as those by drug overdose or drowning, also lend themselves to uncertainty. You may think, Well, what harm does it do if a coroner resists labelling a death a suicide if that will comfort the family involved? Potentially quite a bit of harm, is the answer. Governments make policy decisions and allocate resources based on official statistics. Under-reporting of suicides affects the amount of attention given to the problem. Australian authorities already know that suicide is a serious epidemic, but disturbingly, it’s almost certainly worse than the numbers reveal, due to under-reporting.
Even noting the potential downside of therapeutic jurisprudence, it’s hard to see how its goal is not a good one. Courts regularly come in for heavy criticism in the media, sometimes justly, often unfairly: they’re supposedly biased in favour of criminals, sentences are too lenient, the proceedings are insufficiently transparent, judges are activists . . . This emphasis on the negative causes some in the community to feel cynical about the justice system, even though our society would crumble if we lost respect for the law and faith in the institutions that uphold it. If citizens see that courts are making an effort to meet the personal needs of those who walk through their doors, then surely it can only build public confidence.
In Juliet Darling’s experience, the principles of therapeutic jurisprudence and their sensitive application by Jane Mowll at the morgue helped her come to terms with her terrible experience in a way that nothing else had. Combined with the personal kindness of the priest and the detective, it was instrumental in her eventual recovery. What made the difference to Juliet was that the professionals all viewed her first and foremost as a fellow human being, not just a case number.
Three years after Nick Waterlow was murdered, Juliet Darling suffered another truly shattering blow: her 26-year-old son, George, died on a building site in remote bushland. After lifting a heavy beam into a roof vault, he lay down, let out a sigh and then his heart stopped. An autopsy couldn’t find any apparent cause for his heart failure.
Father Steve Sinn celebrated the funeral Mass. The front of the program for the service shows a white horse, saddled, its head bowed as it munches grass under the vast branches of an old tree. A dear little boy, perhaps ten or eleven, sits on the horse, but not on the saddle. He perches on the flank, his arms folded nonchalantly, facing backwards with his legs dangling amongst the tail. He gazes directly into the camera. He’s not smiling, but nor does he look challenging or defiant. He looks simply as if he’s declaring, I am.
Juliet delivered the eulogy. She spoke of what a free spirit George was, how even at a very young age he had no difficulty with the concept of letting go. Juliet recalled an event from long before, when she and George visited Atlanta.
‘An old black man came up out of the darkness and gave George a yellow flower. George took it as graciously as if it were a gift. Then, when the old man demanded money, George, with the gentlest of smiles, took a step forward and offered it back, letting it go with the same grace and ease he had in receiving it. That’s how he lived. He took things as they came and he let them be,’ Juliet told the gathered mourners.
Life has forced Juliet to learn to let go too. After the agony of losing Nick, it was beyond painful to say goodbye to George.
‘I remember someone saying, “Juliet, people die all the time,” ’ she tells me as she starts to cry. ‘Yes, but not everyone in your whole life who you’ve loved.’
‘With your son dying so soon after Nick, has the grief been different?’ I ask her. I feel quite loathsome putting these questions but I know that even though it hurts, she doesn’t mind answering. If she hadn’t made that explicitly clear from the start, I wouldn’t ask.
‘The pain is similar. My son was so happy and such a joyful person, so much at peace with himself, that he just seemed like he was taken. I feel him inside me more. Nick is a different person, so I feel more bereft and empty and alone by his departure. Somehow, my son has been enfolded into me and I can hear him saying, “Come on Mum, you’ll love again.” ’
I tell Juliet how upset I was to learn that her son had died. ‘I know this is a form of magical thinking, but when you emailed me that your son had died, I just felt, Oh no, that’s so unfair because Juliet has already had her one, big, awful thing happen. Why has another big, awful thing happened to her? I felt indignant, even though I know rationally that Nick dying could not protect you from other bad things happening.’
‘Yes,’ Juliet replies simply.
I blather on like a fool for a while because it’s so sad, and unlike Steve or Graham, I have nothing useful or comforting to say. Finally I deliver the wrecked cake from the freezer and attempt to slice it. It hasn’t set as I’d hoped and so it slowly oozes all over Juliet’s plate like my clumsy words are gushing all over the room.
‘I’m a very sceptical person now,’ Juliet says. ‘Death, for me, has really thrown me into this new, much more sceptical, but I hope not cynical, state.’
‘What are you sceptical of?’ I ask.
‘Sceptical of ideas like “things will work out for the best if you’re a good person”. The reality is, some things do and some things don’t.’
‘All those truisms – like hard work pays off? Not really,’ I say.
‘No, you can work really hard and go bust. Someone who doesn’t work very hard at all wins the lottery or is given an inheritance out of the blue from a friend.�
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‘How about “What doesn’t kill me makes me stronger”? Does it?’ I ask.
‘Not necessarily,’ she says. ‘It might really mean you can’t leave the house. They are ideas that are contemptuous somehow of the real world and the facts. Before I experienced the death of somebody I truly loved, I thought certain things had to happen or would happen for a reason. Like a plot. But I see now that there are no plots. I feel that I’ve been plunged into the truth of existence with all its contradictions and surprises.’
We eat our cake and drink more tea. Like Walter, Juliet is not an angry or bitter person in spite of the incredible weight of grief and loss she carries.
‘You’ve trusted me by telling me your story,’ I say. ‘What do you hope somebody reading it would take away?’
Juliet thinks for a moment. What she says has echoes of Michael Spence’s experience.
‘That in pain, there’s also joy. You can’t be in the presence of just one thought, that life is good, or life is bad, or life is sad. There’s all these things. And there are so many good people in the world, actually, so much kindness. It’s everywhere.’
Like Juliet, everyone who experiences a sudden tragedy must adapt to a new normal, to use Graham Norris’s expression. A major crisis forces a person to reassess their beliefs about how the world works against the reality of what has happened, and the original views won’t always survive. It’s no simple thing to mentally and emotionally accommodate a life-changing blindside. Why do some people seem to recover better than others?
Few people have had their attitude to life tested as sharply as Stuart Diver, one of the most famous disaster survivors in Australia. In 1997, he was the only person to be pulled alive from a massive landslide at Thredbo in the Snowy Mountains. Eighteen people, including his wife Sally, died when two ski lodges were destroyed. Stuart spent sixty-five hours underground, on the brink of death himself, until his rescue. The experience was so harrowing that it’s tempting to once again embrace magical thinking and assume that Thredbo must have fulfilled Stuart’s lifetime allotment of suffering. Sadly, as for Louisa and Juliet, life had another breathtaking twist in store. In 2015, Stuart’s second wife, Rosanna, died from breast cancer, leaving him alone with their four-year-old daughter Alessia.
‘I know people think this,’ Stuart tells me when we meet, ‘they haven’t said it right to me, but they think, Who’s going to sign up to be the third Mrs Diver? I think the same. God, this next person who comes along, they have to deal with all this.’
Stuart is forty-seven, a strikingly good-looking man with wavy grey hair, a trim physique, and a tanned face that suggests a lot of time spent outdoors. He puts on the jug when I arrive at his cottage in Thredbo and we share tea in his living room. Alessia is outside playing with her cousin but every inch of the house shouts her presence – toys, sneakers, drawings, and other little-girl tchotchkes are scattered everywhere.
When you read just now that Stuart Diver had lost two wives, did you for a split second think some variation of, He must be jinxed? If so, that’s your brain humming away involuntarily, trying to impose cause and effect. It’s also yet another example of the way the mind misleads. Stuart Diver is not jinxed, although he has undoubtedly been unlucky. Stuart lost one wife in an incredibly rare, freak event, something for which nobody could possibly blame Stuart Diver himself. Once the landslide was in his past and he remarried, his odds of becoming a widower reset. Unfortunately, Stuart then had the misfortune to lose his second wife to something comparatively common, breast cancer. For women aged 45–54, breast cancer is the number-one killer, annually claiming one life in 4066 in Australia. It was unusual for Stuart Diver to lose his first wife in a landslide but it was sadly ordinary to lose his second to cancer.
You might be thinking, Hang on, I still reckon losing two wives by the age of forty-four is pretty weird. Well, you’re right about that, it is unlucky to be twice widowed by that age. In the 2011 census of the Australian population (the most current at the time of writing), there were more than 8 million adult men. Among them, only 6239 men of Stuart’s age or younger were widowers. Being widowed twice by age forty-four is a little like flipping a coin. The loss of Stuart’s first wife neither reduced nor increased his chance of losing his second, in the same way that tossing ten heads does not reduce or increase the chances of tossing a head the eleventh time. From the moment you throw the eleventh coin in the air, the odds of heads are fifty-fifty. Ten heads in a row does not cause a tail to arrive next. The loss of Sally and the loss of Rosanna were their own, discrete events with no causal link between them, certainly not the tie to Stuart Diver. Nonetheless, like the tossing of ten heads, the more of the same result in a row, the rarer the experience.
Let’s think about the future now and assume that next year, Stuart will meet and marry the third Mrs Diver. We already know that his background is no shield against the poison darts of fate; a happily-ever-after ending is not guaranteed. We also know that a tragic past does not make him more susceptible to a tragic future. The third Mrs Diver will be on her own path, independent of Stuart’s history, and so she need not have any special fear because of her association with him.
But what about Stuart himself: what are his chances of being widowed a third time? Is having another relationship worth the risk? Let’s assume that Stuart marries somebody the same age as him. Of every hundred Australian women aged forty-seven right now, 2.1 of them will die during the next decade, mostly likely from breast cancer, suicide or lung cancer. Even if we add some assumptions about the risks to the third Mrs Diver’s longevity based specifically on being married to Stuart – she may have an elevated chance of dying in a skiing accident compared to the average Australian woman; she may have a higher chance of dying in a car or plane accident, because Stuart enjoys frequent travel and she’s likely to travel with him – she still does not have an elevated risk of dying simply because his first two wives died. There is no jinx. In fact, the next person most likely to be bereaved in the Diver household would be the third Mrs Diver herself, because the average Australian woman lives a couple of years longer than the average Australian man. The odds favour Stuart dying before his third wife.
Probability and statistics being complicated matters, it took me more than two weeks to crunch the numbers given above, with the help of Michael Wilson at the Australian Bureau of Statistics. When I finally wrote those paragraphs in a way that seemed to make sense, I emailed them to him to check.
‘That is a perfect piece of logic,’ Michael replied, ‘but even with all that work, I bet people will read it and go, Yeah, well, I still think Stuart Diver’s jinxed.’
Annoyingly, he’s probably right. Perhaps the explanation that somebody is doomed, as silly as that is, is simpler for our brain to handle than a complex calculation involving many steps of logic.
Stuart has his own rational explanation of why the idea that he’s jinxed is nonsense.
‘If you try to read too much into a tragedy, and you think, I’m jinxed, or, This is bad karma, or whatever, then you’re reading way too much into yourself. You’re making yourself way more important than you are,’ Stuart says. He tells me that he’s ‘just a fortunate guy in that building that the eight thousand tonnes fell down on, and every heavy bit missed me. That’s it. There’s nothing else to be read into it. Then I’m the most fortunate guy in the world because I met Rosanna, I got to share sixteen years of my life with her, we had an unbelievable time. She got cancer, as a lot of people do, and she tragically died. But that’s got nothing to do with me. That’s just what happens in life.’
There would be few Australians old enough to have watched television in 1997 who don’t remember Stuart Diver’s extraordinary survival after the Thredbo landslide. It was one of the first rolling news broadcasts on Australian TV. In 1997 Stuart was a 27-year-old-ski instructor working and living at Thredbo with his wife Sally. At around 11.30 pm on 30 July, they were woken when their apartment started moving and shaking.
Everything was crashing down; the windows smashed inwards, showering them with glass in their bed. As they sat up in shock, the walls and roof caved in as well. Sally was screaming that she couldn’t move and that she had no feeling from her waist down. Stuart had fared better and had a bit of wiggle room.
Stuart and Sally didn’t know it at the time of course, but what had caused their building to crumble was the collapse of the Alpine Way, the main road through Thredbo. Heavy rain, melting snow and unstable terrain underneath the road had fatally weakened it. Two thousand square metres of liquefied soil and a massive torrent of water took seconds to ram two ski lodges together, including the one in which Stuart and Sally lived.
As the couple tried to get their bearings in the dark, the cavern in which they were trapped began to fill with freezing, filthy water. Both began to scream in pain and terror. I can’t capture the horror of what happened next any more graphically than Stuart does himself in his own book:
I’m holding Sally’s face. I can’t shift the bedhead off her; it’s not budging; I’m trying, oh god, I’m trying to move it. The water’s absolutely freezing – it takes my breath away. The water keeps rising. I put my hand over Sal’s mouth. I’ve got to stop the water getting in. It’s rising, rising. It’s useless. I can feel the water seeping between my fingers, filling her mouth. I’ve got to stop the water. Please, I’ve got to stop the water. It floods in, I can’t stop it. She’s gurgling, drowning as her lungs fill up. My hand is still over her mouth. I can feel her face, contorted. The screaming has stopped . . . I feel the life drain out of my wife’s body . . . she goes limp. I can’t see her face but I know it’s a mask of sheer terror . . . I take my hand away.
