Clarke and Military Rehabilitation and Compensation Commission (Compensation)

[2016] AATA 697

Clarke and Military Rehabilitation and Compensation Commission (Compensation) [2016] AATA 697 (9 September 2016)

Division	VETERANS' APPEALS DIVISION
File Number(s)	2011/4178
Re	Lionel Clarke
APPLICANT
And	Military Rehabilitation and Compensation Commission
RESPONDENT

DECISION

Tribunal	Senior Member Cunningham & Member Walters
Date	Friday 9 September 2016
Place	Hobart

The Tribunal affirms the decision under review.

........................................................................

Ms A F Cunningham, Senior Member

CATCHWORDS

Compensation - Safety Rehabilitation and Compensation Act 1988 - claim for psychological disability caused by sexual and other abuse at HMAS Leeuwin – weight of medical evidence confirmed diagnosis of bipolar affective disorder, (cyclothymic personality) – constitutional in nature and cannot be connected with service – decision under review affirmed

LEGISLATION

Safety Rehabilitation and Compensation Act 1988
Administrative Appeals Tribunal Act 1975
Naval Discipline Act 1957

CASES

REASONS FOR DECISION

Senior Member Cunningham & Member Walters

1. The Applicant, Lionel Clarke lodged a claim on 7 April 2010 for compensation in respect of a “psychological disability” which he attributed to incidents and treatment that he experienced during his naval service at HMAS Leeuwin. Mr Clarke’s claim for compensation was disallowed by a delegate of the Military Rehabilitation and Compensation Commission (MRCC) which decision was affirmed on review. The Review Officer considered that the available evidence did not support Mr Clarke’s claims and nor was there medical evidence to confirm his claimed condition of post-traumatic stress disorder (PTSD). Mr Clarke now seeks a review of the decision by the Administrative Appeals Tribunal (the Tribunal).

2. Mr Clarke’s application for review by the Tribunal was filed on 29 September 2011. The matter has had a protracted history since that time. The application was listed for hearing on three separate dates which were vacated at the request of Mr Clarke. The hearing of evidence commenced on 16 and 17 March 2016 and continued on 4 May 2016. Final submissions were made by the parties on 13 July 2016.

3. Mr Clarke appeared on his own behalf. He gave oral evidence and tendered documentation in support of his claim. Dr Jacob George, Consultant Psychiatrist was called to give evidence on behalf of Mr Clarke. Kathy Dowsett, Counsel appeared on behalf of the Respondent. The Respondent called Dr Ian Sale, Consultant Psychiatrist. The T-documents were tendered pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 and other documentation in support of the Respondent’s case.

   ISSUES AND LEGISLATION

4. Mr Clarke’s claim is made under the provisions of the Safety Rehabilitation and Compensation Act 1988 (the SRC Act).

5. The circumstances in which compensation is payable under the SRC Act are provided in S 14 which reads:

   ... “(1)Subject to the Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.”

6. The definition of “injury” is provided in S5A as:

   … .     “(a)      a disease suffered by an employee; or

   (b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or

   (c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arouse out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment.”

7. The definition of “disease” is provided in S5B as:

   …..     “(a) an ailment suffered by an employee; or

   (b) an aggravation of such an ailment;

   that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.

8. An “ailment” is defined in S 4 as “means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development”.

9. The psychological disability in respect of which compensation is claimed was identified by Mr Clarke as “post-traumatic stress disorder”.

10. The issues for the Tribunal to determine are:

    ·Did Mr Clarke suffer from an ailment for the purposes of the SRC Act, specifically, a psychological condition which is outside the boundaries of normal mental functioning and behaviour?

    ·If yes, what is the correct diagnosis of that ailment?

    ·When did Mr Clarke first suffer from that ailment?

    ·Was the ailment contributed to, to the degree required by the legislation applicable at the date when Mr Clarke first suffered from the ailment, by his naval service.

    CONTENTIONS

11. It is Mr Clarke’s contention that he suffers from PTSD as a consequence of sexual and other abuse that he experienced during his period of service at HMAS Leeuwin. Mr Clarke contends that there is a wealth of documentary evidence which corroborates his claim of sexual abuse. In particular he refers to previous enquiries namely the Daft Report, the Rapkey Report and his own documented accounts of the abuse and its consequences upon him. He relies on the medical diagnosis of the condition made by Dr George.

12. The Respondent submits that the evidence does not support a diagnosis of PTSD but that Mr Clarke suffers from bipolar affective disorder and has done since the early 1990s. Bipolar affective disorder is a constitutional condition which was not contributed to in a material degree by Mr Clarke’s naval service. The Respondent further contends that the weight of the evidence is insufficient to satisfy the Tribunal that the incidents alleged by Mr Clarke in fact occurred.  Even if these incidents had occurred, there is no evidence that they contributed to Mr Clarke’s bipolar affective disorder.

    MEDICAL EVIDENCE

13. In a medical report dated 27/03/95 completed by Dr Braganza he reported a diagnosis of “bipolar affective disorder – rapid cycle “noting the date of onset “for the past three years”. Dr Braganza described the clinical features for the condition which included episodes of hypomania when the patient is very active and his mind races, inability to concentrate, difficulty sleeping, depressive episodes with low mood, lethargy, feelings of unworthiness and withdrawal. (T 37 page 127). Mr Clarke was approved for a Disability Support Pension on account of his bipolar disorder.

14. Dr Haigh completed a Centrelink Medical Assessment Report on 30/09/99 (T 38) in which he reported a condition of bipolar disorder (cyclothymic personality) and noted the significant features as “rapid cycling, symptoms unchanged over  past 4 years, stopped medication (Zoloft and lithium) – 7 years ago. Has not seen psychiatrist in 3 years. Examination - seems a little agitated/elevated, slight pressure of speech, “ranting” about the government, Centrelink, unemployment benefits etc.”

15. In an undated report from Dr Haigh (T 38 page 141) date stamped as received by Health Services Australia on 28 September 1999, she notes that Mr Clarke had not been on medication for this condition for the past 3 years and had not seen a psychiatrist for at least this period. Dr Haigh stated that “on examination he appeared agitated, possibly slightly elevated in mood, talking constantly about the government, how he can’t cope with looking for work and wants to remain on the pension.”  In Dr Haigh’s opinion, Mr Clarke required psychiatric assessment.  She noted that the last report from Mr Clarke’s psychiatrist stated that he has bipolar disorder of a rapid cycling nature.

16. At Dr Haigh’s request Mr Clarke was examined by Dr Wilfred Lopes, Consultant Psychiatrist on 20/10/99. Dr Lopes opined that Mr Clarke was a man of average intelligence who has an underlying cyclothymic personality and had smoked marijuana from the age of 15 until three months ago. Dr Lopes stated that “there is no psychiatric contraindication to his taking full-time employment” but that “his past record of inability to persevere in any one job may prove somewhat problematic because of his cyclothymic personality - there is no indication for any treatment at the moment.”

17. On 12 August 2002 Dr Ian Sale, Consultant Psychiatrist noted a history of psychiatric difficulties from 1995. Dr Sale opined that Mr Clarke’s presentation was consistent with hypomania, a manifestation of bipolar affective disorder. He noted that Mr Clarke makes no claim of psychiatric difficulties, appears to have little insight into his difficulties and was not then receiving treatment for mental disorder. Dr Sale opined that if Mr Clarke was agreeable to treatment a mood stabiliser (such as sodium valproate) and an antipsychotic drug (such as olanzapine) was required.

18. In a subsequent report dated 17 August 2012, Dr Sale noted that Mr Clarke claims to suffer from bipolar affective disorder and that he agreed with this diagnosis. Dr Sale reported that Mr Clarke first suffered from the condition from at least 1991 but possibly longer. He noted that bipolar affective disorder is a condition which is constitutional in origin and that he saw no connection between Mr Clarke’s period of service at HMAS Leeuwin and the presence of this illness. Dr Sale stated that “the condition is believed to reflect an underlying biological process that may be genetically determined. Adverse events and personal stress can precipitate individual episodes of illness, but is not considered to be causal for the underlying and inherently recurrent condition. There is no cure, but there are a number of treatments that can reduce the risk of episodes of illness or reduce severity of those episodes.”

19. In early 2010 Mr Clarke was referred to Dr Jacob George with respect to his application for compensation. Dr George provided a report dated 2 February 2010. Dr George reported that he did not find any evidence of depression or thought disorder and was unable to confirm a diagnosis at that time. On 12 April 2012 Dr George reported that he found no evidence of hypomania or thought disorder at that time and would review Mr Clarke in four weeks time. Dr George reported on 2 February 2010 that Mr Clarke had seen Dr Braganza in 1995 who diagnosed bipolar affective disorder and Dr Sheehan in 2003.  It was his oral evidence to the Tribunal that he had not sighted the medical reports of Dr Braganza, Dr Sheehan, Dr Haigh or Dr Lopes.

20. Dr George was asked by Mr Clarke’s then solicitors to provide a psychiatric report in relation to Mr Clarke’s application for review which he did so on 10 October 2014. In the report Dr George included Mr Clarke’s account of his physical and sexual abuse as a junior recruit in 1970 with the Navy.  Dr George reported that Mr Clarke had told him that he was experiencing flashbacks of the sexual and physical abuse he had suffered, had difficulty sleeping and that marijuana helped him to relax. Dr George stated that he could not find any signs or symptoms of bipolar affective disorder and noted that Mr Clarke was not then on medication. Dr George stated “from the history I gathered from Mr Clarke, I am of the opinion that Mr Clarke suffered from post-traumatic stress disorder as a result of physical and sexual abuse whilst he was in the Navy.” Dr George further stated “in 2010, I diagnosed post-traumatic stress disorder from the history given to me by Mr Clarke.”

21. The only other reference from a medical practitioner of a diagnosis of PTSD appears in the notes from Mr Clarke’s general practitioner, Dr Adriane Hebblewhite. She reports the following conditions under past medical history: bipolar affective disorder, psychotic episode and on 25 May 2010 post-traumatic stress disorder. The notes however do not contain any basis for the diagnoses.

22. Under cross-examination Dr George said that whilst he had come to a conclusion in November 2013 that Mr Clarke suffered from PTSD through his treatment in the Navy, he had not recorded the basis for his diagnosis in his medical notes. Dr George agreed that it was not until December 2013 that Mr Clarke referred to flashbacks associated with PTSD. Dr George said that he had taken a history from Mr Clarke with respect to the diagnostic criteria for PTSD, however none of the history is recorded in his notes. It was Dr George’s evidence that he had not diagnosed Mr Clarke’s PTSD until late 2013.  It was pointed out to him that in a letter to Adam Gregory in 2014 he had stated at paragraph 5, “in 2010 I diagnosed post-traumatic stress disorder.” Dr George said that this was “a wrong report” but that on looking back, he should have diagnosed Mr Clarke’s PTSD in 2012. Dr George explained that he had been concentrating on the bipolar affective disorder which he could not confirm. Dr George agreed that in making his diagnosis of PTSD he relied mainly on the information provided to him by Mr Clarke and the history of alleged sexual assault. Dr George agreed that it would be relevant to his diagnosis if any of Mr Clarke’s accounts had not actually taken place. For instance, that he was not in solitary confinement or repeatedly sexually abused or had not stolen the chickens in the manner described by Mr Clarke. Dr George agreed that if these incidents had not taken place, they could not have led to PTSD.

23. Dr George explained that Mr Clarke’s account of his symptoms in the form of intrusive thoughts, intrusive feelings and anxiety feelings were described in more detail in 2014 than when he saw him in 2010. Dr George had recorded in November 2013 “… claims that he suffered from PTSD while in the Navy.” Dr George agreed that this was a claim made by Mr Clarke in November 2013 rather than his own diagnosis.

24. Dr George stated in evidence that the reason he had not diagnosed bipolar disorder was because Mr Clarke was still maintaining his life in the community, had three labouring jobs and other employment and was not on medication for bipolar affective disorder. Dr George agreed that bipolar disorder is a neurochemical or constitutional condition and not one that develops following the experience of a traumatic event. Dr George accepted that a person with cyclothymic disorder may not necessarily need medication in order to function within the community. Dr George had reported that Mr Clarke had been consulting with him at regular intervals since April 2012 and always presented with high levels of anxiety and agitation.

25. Dr Sale described bipolar disorder as a condition by its nature that “comes and goes”. Whilst it is inherently recurrent, the pattern of recurrence varies widely between individuals and people with bipolar affective disorder can have sustained periods when they are free of symptoms. Dr Sale commented that bipolar disorder is not a condition that usually disappears but is a lifelong condition varying in its pattern of recurrence. Whilst the symptoms were not present when Dr Sale saw Mr Clarke in August 2012, he respected the opinion of Dr Braganza who had made a diagnosis of bipolar disorder. Dr Sale had concluded that the symptoms were not active at the time when he saw him. Dr Sale confirmed that on the three occasions that he had met with Mr Clarke, he had not exhibited any symptoms to suggest that he suffered from PTSD.  Dr Sale described cyclothymic condition as one of the milder manifestations of bipolar disorder which has a vast range of patterns and severity.

26. In response to questions from Mr Clarke, Dr Sale said that Mr Clarke had presented with the appearance of someone who suffered from long-standing mental health problems and not a typical mental health state of PTSD.  Dr Sale said that there are a number of people in the community with bipolar disorder who are not on medication and that this would largely depend on their personal circumstances including their living and employment arrangements.

27. In response to a question from Mr Clarke that if his claims of abuse in the Navy were true, would it be possible to conclude that he suffered post-traumatic stress disorder as a result, Dr Sale stated:

    “I would say that if you had been subject to the abuse that you claimed, it would be possible, maybe even edge towards probably, that you would suffer from symptoms of post-traumatic stress disorder. However, I have not seen it in you in the three occasions that I’ve met you.”

28. Dr Sale explained that Mr Clarke had not manifested a mental state that is consistent with PTSD.  Mr Clarke had presented with symptoms of hypomania when he saw him in 2002 and that his admissions to the Emergency Department at the Royal Hobart Hospital were strongly suggestive of someone who had become psychotic which occurs with bipolar illness. Dr Sale said that it is his practice to record a comprehensive history and description of symptoms with specific findings against the DSM IV-V criteria for PTSD.

29. The issue for the Tribunal to determine is the nature of the ailment from which Mr Clarke suffers. The medical evidence is that if the diagnosis is bipolar affective disorder, this condition is constitutional in origin and could not have been contributed to by Mr Clarke’s service with the Navy. On the other hand, if the Tribunal accepts a diagnosis of PTSD, it is necessary to consider the date of onset in order to determine the applicable legislation.

30. Dr George was the only psychiatrist to diagnose Mr Clarke with PTSD but agreed that if the history as related to him by Mr Clarke regarding his sexual and other abuse during his service with the Navy had not in fact occurred, then the diagnosis could not be relied upon. Dr Sale said in his oral evidence that if the Tribunal was satisfied that Mr Clarke had been subjected to the abuse as claimed, “it would be possible, maybe even edge towards probably,” that he suffered from symptoms of PTSD although he went on to state that he had not observed the symptoms on the three occasions that he had seen Mr Clarke.

    SERVICE HISTORY

31. Mr Clarke enlisted in the Royal Australian Navy (the Navy) as a junior recruit on 11 July 1970 and within a few days was posted to HMAS Leeuwin.

32. It is contended by the Respondent that Mr Clarke was discharged from the Navy on 10 March 1971. The Respondent relies on evidence that Mr Clarke applied for a “free discharge” from the Navy in about early 1971 which was not recommended. (T4 pages 24, 25; T5 pages 30-32).  Approval was then sought to discharge Mr Clarke on the basis of unsuitability for further training at HMAS Leeuwin (T5 page 31) which was approved on 5 March 1971 (T5 page 35).

33. Mr Clarke contends that he was not discharged but that his employment was terminated on 25/5/2010. Mr Clarke relies on a Department of the Navy document at T 70 where the word “TERMINATED” is stamped alongside an entry that is dated 25/5/10. Mr Clarke maintains that this signifies that his employment was terminated on that date. Mr Clarke also referred to his Sailor’s Service Record at T5 page 29 which does not include a date of discharge. It was Mr Clarke’s evidence that he remained in the employ of the Navy and undertook secret security duties for the Commonwealth onshore which he was not permitted to disclose as he was subject to the provisions of the Official Secrets Act. It was his evidence that this employment was to continue until 5 June 2037 but he was unable to provide any corroborating evidence. Mr Clarke said that he did not receive any form of remuneration for the work.

34. Included in the T-documents was a Response to a Request for Research Document (T75 pages 337 – 340) regarding Mr Clarke’s date of discharge and information contained in the Department of the Navy documents (at T70) which was identified as the file cover of Mr Clarke’s personnel file. The advice contained in the Response was that the file would have been kept in the Defence Central File Repository area, and the notations in the left hand column referred to those officers who had accessed the file to finalise separation administration paperwork. The “TERMINATED” stamp was noted as a record sentencing action prior to transferring the file to National Archives and indicated that the member was no longer serving and thus there was no reason for Defence to retain the record.

1. The Tribunal accepts this evidence as a plausible explanation of the substantive meaning of the document and rejects Mr Clarke’s contention that the “TERMINATED” stamp, which appeared alongside the “K Guthrie” entry on 25/5/10, reflected his date of discharge from the Navy.

2. At T16 page 89 a document records a shore posting date for Mr Clarke on 3.10.1997. The Response Request states that this was an error and that it is unknown how it occurred. Reference is made to “Movements” which indicates that there were no movements with respect to Mr Clarke after 10 March 1971 and “Discharges” which states that the member separated on 10 March 1971. On the basis of this evidence the Tribunal is satisfied that Mr Clarke’s service with the Navy was from 11 July 1970 until 10 March 1971.

3. Mr Clarke’s affidavit which was tendered in evidence and dated 3 October 2014, contains evidence regarding his alleged physical, sexual and other abuse suffered during his service with the Navy. Mr Clarke also relies on accounts by him recorded in “My Story” at (T9), “Officer in White” (at T28), “Free at Last” (T32), “Happy Birthday Sweet Sixteen” by L J Clarke (A13).

4. In his affidavit Mr Clarke describes his experiences as a junior recruit at HMAS Leeuwin. He contends that he was singled out for unfair treatment by Able Seaman Double (A S Double). He stated that A S Double had a particular disdain for “mummy’s boys” and “bed-wetters”. Mr Clarke contended that he was also subjected to bullying on account of being a Canadian citizen. Mr Clarke described incidents of physical and sexual abuse committed on other junior recruits and himself.

5. Mr Clarke identifies the particular dates of some of the incidents in his affidavit. He states that:

   “in around the early afternoon of 29 September 1970, I was resting on my bunk when I was awoken by a roommate kneeling over me and rubbing his penis on my lips.”

   He records that a scuffle subsequently broke out between them and that he decided to lodge a report in relation to the incident which he did on about 30 September 1970 with the divisional staff member on duty, A S Double.  Mr Clarke claims that A S Double assured him that the matter would be taken care of at the divisional disciplinary level. However the following evening, being 1 October 1970, A S Double entered the sleeping quarters which Mr Clarke shared with the junior recruit who was responsible for the sexual assault. Mr Clarke states that both he and the perpetrator were ordered to stand to attention. A S Double then directed the perpetrator to pull down his underpants and masturbate which Mr Clarke was forced to observe.

6. Mr Clarke states that on the evening of Saturday, 9 January 1971 following a physical interaction between himself and another junior recruit, he was informed that there would be “retaliation for my actions”. He was subsequently locked in the downstairs office of Walton Division for several hours by the Able Seaman. Later in the evening A S Double returned to the office and subsequently raped him. He then returned with several other junior recruits.  It was Mr Clarke’s evidence that he was then gang raped. He recalls being carried to his bunk in the early hours of the following morning and was unable to walk again for several weeks. He states that he collapsed in Walton Division and was removed by stretcher to the Hollywood Repatriation Hospital where he was bedridden and kept in isolation under military police guard. He states that he was there until his return to HMAS Leeuwin on about 19 February 1971.

7. Mr Clarke goes on to state in his affidavit that it was on or about 19 February 1971, on a Friday, when he was being returned to the Walton Division accommodation block by the military police following his stay at the Hollywood Repatriation Hospital that he decided to do whatever it took to remove himself from HMAS Leeuwin. He had been informed that if a junior recruit committed an offence such as theft, he would be discharged from the Navy. Because his request for a free discharge had been earlier refused, he decided to commit an act of theft to ensure his discharge. Mr Clarke went to the galley and removed cooked chickens which he took back to the Walton Division. He states that shortly thereafter the crime was detected and he was sent to his bunk to await the arrival of the military police. He said that it was at 1:26 PM on Friday, 19 February 1971 that he “was sitting on my bunk at Walton Division and surrendered to the two Commonwealth Police Officers.” Mr Clarke goes on to state at paragraphs 114, 115 and 116:

   “I recall a document being produced and dated and the time of 1:26 PM was detailed. I was escorted to the waiting lock-up Military Police vehicle and taken to the guardhouse also known as “the Brigg.

   The Brigg was a stand-alone building on the base. It was guarded by men who I believe were military police and all the guards carried rifles. I was to remain at the Brigg whilst awaiting my trial at the Captain’s or Commodore’s Table, which was set for 22 February 1971.

   Between 19 February and 22 February 1971 I was kept in solitary confinement in a small concrete room with one steel- barred window, a steel toilet with no seat, one steel bed and a steel barred door which faced the internal courtyard.”

8. Mr Clarke claims that he was convicted of the crime of theft and sentenced to imprisonment in the Brigg cells.  He states at paragraphs 124, 125 and 126 that:

   “The six hour schedule of rape continued for approximately three days. I recall my cell door was left open sometimes and I would drink water from the fountain in the courtyard as if I was an animal. I was not offered any food following my initial refusal.

   Sometime thereafter I was taken into the internal courtyard to face an officer who was dressed in white. I believe the officer was Commander Johnstone but I did not look at him directly in the face.

   I was told to kneel before my commanding officer or I would be shot. By this time I had not spoken for several days, but I now said words to the effect of “I will not do as you say and if you are going to shoot me, then you will have to shoot me in the back like an animal.” I turned my back on the officer and the guards and walked back into my cell, expecting to be shot at any moment.”

9. Mr Clarke goes on to state that it was on the evening of 17 March 1971 that he was removed from the Brigg by two Commonwealth police officers and escorted to the Perth Airport. He was then accompanied on a civilian aircraft destined for Sydney and was released from the Navy warehouse near the Sydney docks.

10. Mr Clarke referred to T70 page 326 as the document that was initialled by the Commonwealth Police Officers who had escorted him on the civilian aircraft from Perth to Sydney. It was his evidence that he had asked the Commonwealth Police Officers to initial the document on 17 March 2017 so that he had a record of their names although they were only prepared to supply their initials.

11. Mr Clarke also referred to the document at T70 page 320 which he contends contains details of his movements. Mr Clarke maintained that the initials “HPB PO” is an abbreviation for ‘Harbour Police Brigg - Petty Officer’ and that the initials in brackets “SR” and “ME” refer to the officers involved. Further, Mr Clarke claimed that the reference to “1.24” on the document at T70 page 321 was the civilian time when he surrendered to the Commonwealth Police. He said that he had a clear recollection of seeing this document when detained in the cells.

    CONSIDERATION AND FINDINGS

12. In addition to his own account of the abuse that Mr Clarke claims he was subjected to during his service, Mr Clarke relies on the contents of the DART Report which he contends corroborates his evidence. Mr Clarke said that he had given evidence at the Enquiry and had been awarded compensation. The DART Report was tendered in evidence unopposed by the Respondent. Mr Clarke was however, unable to identify within the body of the Report any account of the evidence that he had provided.

13. Mr Clarke made an application for a reparation payment under the Defence Abuse Reparation Scheme (DART) and was awarded monetary compensation. Ms Dowsett submitted that the Tribunal should not rely on this evidence as corroboration of Mr Clarke’s claims of abuse because the DART Report applied the causation test of “plausibility” meaning that the Applicant’s allegations were accepted on the basis of a lower threshold test of “reasonableness”. The standard of proof that is applicable in this case is the balance of probabilities.

14. The Tribunal accepts the submissions of Ms Dowsett that the Tribunal should not rely on the findings and conclusions of the DART Report to support the claims of Mr Clarke. This Tribunal must make findings with respect to Mr Clarke’s claims of abuse on the balance of probabilities, that is, whether it is more probable than not, that the events described by him did in fact occur. The Tribunal considers that the relevance of the contents of the DART Report is that it indicates a culture of bastardisation, harassment, physical and sexual abuse of the junior recruits at HMAS Leeuwin.

15. It was Mr Clarke’s evidence that he had not disclosed details of the abuse that he suffered as a junior recruit at HMAS Leeuwin until he decided to record the details in a written account that he titled “My Story” written during the winter of 2009. In this written account Mr Clarke referred to the sexual rape by A S Double but did not describe the subsequent gang rape that he recounted in his written affidavit.

16. The evidence led by the Respondent was that Barry John Double joined the Navy on 10 February 1966 and was posted to HMAS Leeuwin on 13 October 1969. There was documentary evidence at T64 and T65 confirming that on 26 October 1970 Mr Double was posted to HMAS Penguin. It was Mr Clarke’s evidence that that the assault by A B Double occurred in January 1971. When the evidence in relation to Mr Double’s posting was put to Mr Clarke in cross-examination, he said that he may have been mistaken as to the identity of the person who had committed the rape upon him.

17. Mr Clarke had also contended in a letter to Mr David Wilson, of the Australian Government Solicitor’s Office dated 4 January 2012 (T48), that following his theft of the chickens, he was charged with a crime by summary trial on 22 February 1971 and as a result was “awarded ‘cells’ as punishment under the Naval Discipline Act 1957” and that Commander Johnstone had informed him at the time that his was a test case. Mr Clarke went on to state that:

    “Notably Commander Johnstone was court-martialled as a result of this action. The summary trial of my person taking place on 22 February 1971, followed by the mutany (sic) by all officers and ranks on the same day precipitating (sic) the armed invasion of HMAS Leeuwin by Australian Army forces at 3:00pm of the same day.

    I witnessed a surrender of Commander Johnstone on the 24^th February 1971 at 11:00am in front of the Brigg before 300 Army soldiers. Commander Johnstone surrendered his side-arm whilst saluting the Army Colonel, he was then driven away under guard in an jeep (sic).

    I was standing at the Brigg gates, Commander Johnstone in front of my person at this time.  I then returned to my cell.

    I note that eight weeks later, on 13 April 1971, Commander Johnstone’s trial is on hold whilst British Parliament sat and amended the Naval Discipline Act 1957, amendments to Summary trial for Naval Offences, also, amendment to ensubordination (sic) and disobedience by Officers to lawfull (sic) commands.

    This, described by Judge Advocate Royal Navy as, extraordinary power of Summary Trial exercised by Captains of Her Majesty’s Shore Establishments were by an act of parliament relieved of the said power of summary trial on the 13 April 1971.

    Commander Johnstone was held at Holsworthy Army Prison NSW and eventually charged with reckless endangerment.

    It is interesting to note that the amendments to the Naval Discipline Act 1957 occurred on the 13 April 1971, this being the final sitting of the Rapke enquiry on board HMAS Leeuwin.”

18. The Respondent referred to documentary evidence contained in the T documents submitting that there is no evidence of a Commander Johnstone being at HMAS Leeuwin in 1971, although the records refer to a Lieutenant Commander Johnson (LCDR). Further, that the “Report of Proceedings - Quarter ending 31 March 1971” contains no reference to the alleged mutiny, imprisonment or surrender of Commander Johnstone. The records indicate that Judge Rapke interviewed LCDR Johnson on 11 May 1971 with respect to the investigation into allegations of initiation practices, physical violence and bullying at HMAS Leeuwin. There is documentary evidence in the T-documents that LCDR Johnson received an MBE on 1 January 1972 “for loyalty and devoted service in the junior recruit training establishment”.

19. All of the above documentary evidence is inconsistent with Mr Clarke’s written account in his letter to Mr Wilson as detailed above. There is no documented record of Mr Clarke’s summary trial, conviction or sentence of imprisonment as alleged by him for the crime of stealing chickens. In fact Mr Clarke’s service records at T4 record on 5/2/71 state: “Applicant for Free Discharge.   Currently in trouble for being an accessory to the crime of stealing chickens from the galley. Says all did was to see the chickens and did not say anything about it although he knew where’d they’d come from. Says he didn’t eat any (D. O. thinks he was part of scouting or look-out party involved in the crime).  Has had a lot of divisional charges, dirty clothes and bed. Also was charged with leaving the camp at Garden Island (case dismissed) and for tattooing”.

20. The Tribunal considers that this letter to Mr Wilson, as outlined above, is a grandiose and delusionary account by Mr Clarke of events that did not occur in the manner described, as is his account of the termination of his service employment and suspicion and lack of trust regarding his service records. Mr Clarke maintains that he was never discharged from the Navy but continued to be employed onshore undertaking secret classified work until his employment was “terminated” as recorded at T70 page 320.

21. Nor is there any documented evidence of Mr Clarke’s hospitalisation at the Hollywood Repatriation Hospital as alleged. His medical records only refer to treatment for “rubella” on 5 December 1970. There is no medical service record for any other admission to sick quarters/sickbay.

22. Mr Clarke answered “no” to the question “do you suffer from any disabilities at present” in his medical statement for discharge on 11^th of February 1971. The discharge medical examination undertaken on 12 February 1971 records Mr Clarke’s “emotional stability” and “mental capacity” as “normal”. He was assessed as “fit” with a recommended rating of category “A”.

23. It was put to and accepted by Dr George that if the Tribunal finds that the accounts of abuse alleged by Mr Clarke did not in fact take place, then the basis for his diagnosis of PTSD could be in doubt. In particular, Dr George agreed that if Mr Clarke’s accounts of having been repeatedly sexually abused, and solitary confinement had not occurred and  that he had not stolen the chickens in the manner described, then his diagnosis of PTSD would have little support.

24. Apart from Dr Hebblewhite who recorded PTSD in her notes of 25 May 2010, Dr George is the only other medical practitioner who diagnosed PTSD in late 2013 after having concluded in April 2012 that Mr Clarke did not suffer from a psychiatric illness. Although Mr Clarke first consulted Dr George in early 2010, it wasn’t until November 2013 that Mr Clarke referred to symptoms of flashbacks. Dr George’s diagnosis was reliant on Mr Clarke’s own account of his symptoms and history of physical and sexual abuse. There is no evidence or any documented record of an assessment by Dr George in accordance with the DSM IV –V criteria for PTSD.

25. The Tribunal finds Dr George’s evidence inconsistent and unreliable. Dr George had reported that in 2010 he diagnosed PTSD from the history given to him by Mr Clarke but said in evidence to the Tribunal that this was incorrect and that it should have been diagnosed in 2012.

26. Whilst Dr George was unable to confirm a diagnosis of bipolar affective disorder on the basis of the symptoms observed in Mr Clarke, a number of other specialists had made such a diagnosis. Dr Braganza first diagnosed bipolar disorder in 1995 which was accepted by Centrelink for a disability support pension. Dr Haigh supported the diagnosis and noted a cyclothymic personality which Dr Sale said was a milder form of bipolar affective disorder. Dr Sale noted that a person with this condition can manage to function in the community with little or no medication and manifest symptoms periodically. The Tribunal accepts Dr George’s evidence that on the occasions when Mr Clarke consulted him, he did not present with the symptoms of bipolar disorder such that Dr George could make such a diagnosis.

27. The incidents of abuse which include physical and sexual assault, being charged and sentenced to solitary confinement for stealing chickens, were alleged by Mr Clarke to have taken place almost 30 years prior to his first written account in the form of “My Story” in 2009. Much of Mr Clarke’s evidence to the Tribunal both in oral and documented form constituted a fanciful account of events that he may believe took place but which  the Tribunal does not, on the balance of probabilities accept. Such accounts are consistent with the nature of the ailment from which he suffers namely bipolar affective disorder.  For the reasons outlined above, the Tribunal does not find that Mr Clarke’s account of the physical and sexual abuse that he sustained at HMAS Leeuwin is reliable.

28. The Tribunal accepts that Mr Clarke suffered from bipolar disorder, in the form of a cyclothymic personality and not PTSD for the reasons outlined above. Bipolar disorder is constitutional in nature and has no connection with experiences of traumatic events and therefore could not be related to Mr Clarke’s service or employment. The Tribunal accepts Dr Braganza’s opinion as stated in his report dated 27 March 1995, that Mr Clarke suffered from bipolar affective disorder from around 1992. The accepted medical evidence is that this condition is episodic in nature such that the symptoms are not always evident which is consistent with the history of Mr Clarke’s presentation.

29. The Tribunal is satisfied that Mr Clarke suffers from an ailment in the form of a disease, the nature of his ailment, being bipolar affective disorder. As such, it cannot have been contributed to, to a significant degree by the employee’s employment as required under the provisions of the SRC Act 1988. Accordingly, the decision of the Tribunal is to affirm the decision under review.

I certify that the preceding 63 (sixty -three) paragraphs are a true copy of the reasons for the decision herein of Senior Member Cunningham & Member Walters

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Administrative Assistant

Dated

Date(s) of hearing	15 March 2016, 17 March 2016, 4 May 2016, 13 July 2016
Applicant	In person
Counsel for the Respondent	Ms C Dowsett
Solicitors for the Respondent	Mr D Wilson, Australian Government Solicitor