Herron v HarperCollins Publishers Australia Pty Ltd (No 3)
[2020] FCA 1687
•25 November 2020
FEDERAL COURT OF AUSTRALIA
Herron v HarperCollins Publishers Australia Pty Ltd (No 3) [2020] FCA 1687
File numbers: NSD 1620 of 2017
NSD 1621 of 2017Judgment of: JAGOT J Date of judgment: 25 November 2020 Catchwords: DEFAMATION – alleged defamations arising from chapter in second respondent’s book published by first respondent – where imputations relate to applicants’ conduct in respect of the administration of deep sleep therapy at Chelmsford Private Hospital – where imputations based on findings of Royal Commission – whether defences of justification, qualified privilege, contextual truth and fair report/fair summary apply – defences applied to conveyed imputations – applications dismissed Legislation: Defamation Act 2005 (NSW) ss 8, 25, 26, 28, 28(1)(b), 28(4), 29, 29(1), 29(4), 30, 30(1)(a), 30(1)(b), 30(1)(c), 30(3), 30(3)(a), 30(3)(b), 30(3)(c), 30(3)(d), 30(3)(e), 30(3)(f), 30(3)(g), 30(3)(h), 30(30)(i), 30(3)(j), 30(4)
Evidence Act 1995 (Cth) s 135
Private Hospitals Act 1908 (NSW)
Registration of Births, Deaths and Marriages Act 1973 (NSW) s 57(4)
Cases cited: Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158
Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354
Australian Broadcasting Corporation v Chau Chak Wing [2019] FCAFC 125; (2019) 271 FCR 632
Australian Broadcasting Corporation v McBride [2001] NSWCA 322; (2001) 53 NSWLR 430
Boyd v Mirror Newspapers Ltd [1980] 2 NSWLR 449
Burchett v Kane [1980] 2 NSWLR 266
Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37; (1998) 193 CLR 519
Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335; (2010) 278 ALR 232
Chau v Fairfax Media Publications Pty Ltd [2019] FCA 185
Cook v Alexander [1974] 1 QB 279
DIF III – Global Co-Investment Fund LP v Babcock & Brown International Pty Limited [2019] NSWSC 527
Director of Public Prosecutions v Gill [1993] NSWCA 84
Ellis v Wallsend District Hospital (1989) 17 NSWLR 553
Fairfax Digital Australia & New Zealand Pty Ltd v Kazal [2018] NSWCA 77; (2018) 97 NSWLR 547
Fairfax Media Publications Pty Ltd v Chau [2020] FCAFC 48
Fairfax Media Publications Pty Ltd v Kermode [2011] NSWCA 174; (2011) 81 NSWLR 157
Farquhar v Bottom [1980] 2 NSWLR 380
Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 79 ALJR 1716
Feldman v Nationwide News Pty Ltd [2020] NSWSC 26
Gill v Walton (1991) 25 NSWLR 190
Goody v Odhams Press Ltd [1967] 1 QB 333
Greek Herald Pty Ltd v Nikolopoulos [2002] NSWCA 41; (2002) 54 NSWLR 165
Holt v TCN Channel Nine Pty Ltd [2014] NSWCA 90; (2014) 86 NSWLR 96
Hart v Herron (1984) Aust Torts Reports 80-201
Herron v McGregor (1986) 6 NSWLR 246
Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652; (2015) 237 FCR 33
Horrocks v Lowe [1975] AC 135
John Fairfax Publications Pty Ltd v Zunter [2006] NSWCA 227
Junius v Messenger Press [1999] SASC 99
Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520
Lewis v Daily Telegraph Ltd [1964] AC 234 (HL)
Macquarie Radio Network Pty Ltd v Dent [2007] NSWCA 261
McIntyre v R [2009] NSWCCA 305; (2009) 198 A Crim R 549
Mirror Newspapers Ltd v Harrison [1982] HCA 50; (1982) 149 CLR 293
Mirror Newspapers v World Hosts [1979] HCA 3; (1979) 141 CLR 632
Morgan v John Fairfax & Sons Ltd (No 2) (1991) 23 NSWLR 374
Nationwide News Pty Ltd v Moodie [2003] WASCA 273; (2003) 28 WAR 314
Nationwide News Pty Ltd v Rogers [2002] NSWCA 71
Pamplin v Express Newspapers Ltd [1988] 1 WLR 116 (CA)
R v Knight (1988) 35 A Crim R 314
Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16; (2009) 238 CLR 460
Readers Digest Services Pty Limited v Lamb [1982] HCA 4; (1982) 150 CLR 500
Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1
Rogers v Nationwide News Pty Ltd [2003] HCA 52; (2003) 216 CLR 327
Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496
Sands v Channel Seven Adelaide Pty Ltd & Anor [2010] SASC 202
Secretary, Department of Health and Community Services v JWB and SMB [Marion’s Case] [1992] HCA 15; (1992) 175 CLR 218
Singleton v John Fairfax & Sons Ltd (No 1) [1983] 2 NSWLR 722
TCN Channel Nine Pty Ltd v Pahuja [2019] NSWCA 166
Thom v Associated Newspapers Ltd (1964) 64 SR (NSW) 376
Trkulja v Google LLC [2018] HCA 25; (2018) 263 CLR 149
Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58
Division: General Division Registry: New South Wales National Practice Area: Other Federal Jurisdiction Number of paragraphs: 915 Dates of hearing: 1–5, 9–12, 15–19, 22–26, 29 and 30 June, 1–3, 6–8, 22 and 29 July, 3, 4, 6, 10, 12, 13, 26–28 August 2020 Counsel for the Applicants: S Chrysanthou SC with B Dean Solicitor for the Applicants: Company Giles Pty Ltd Counsel for the Respondents: T Blackburn SC with A d’Arville Solicitor for the Respondents: Banki Haddock Fiora ORDERS
NSD 1620 of 2017 BETWEEN: JOHN HERRON
Applicant
AND: HARPERCOLLINS PUBLISHERS AUSTRALIA PTY LTD ACN 009 913 517
First Respondent
STEVE CANNANE
Second Respondent
order made by:
JAGOT J
DATE OF ORDER:
25 NOVEMBER 2020
THE COURT ORDERS THAT:
1.The originating application be dismissed.
2.The applicant pay the respondents’ costs as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
ORDERS
NSD 1621 of 2017 BETWEEN: JOHN GILL
Applicant
AND: HARPERCOLLINS PUBLISHERS AUSTRALIA PTY LTD ACN 009 913 517
First Respondent
STEVE CANNANE
Second Respondent
order made by:
JAGOT J
DATE OF ORDER:
25 NOVEMBER 2020
THE COURT ORDERS THAT:
1.The originating application be dismissed.
2.The applicant pay the respondents’ costs as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
TABLE OF CONTENTS
1 INTRODUCTION
[1]
2 THE BOOK
[7]
3 THE IMPUTATIONS AND DEFENCES
[16]
4 THE LAY WITNESSES
[21]
4.1 The applicants
[21]
4.1.1 Dr Gill
[24]
4.1.2 Mr Herron
[28]
4.2 Chelmsford nurses
[43]
4.2.1 Jan Reid
[44]
4.2.2 Julie Bothman
[59]
4.2.3 Noelene Brasche
[89]
4.2.4 Marcia Fawdry
[99]
4.3 Former patients and their relatives
[109]
4.3.1 CO
[109]
4.3.2 John Finn
[114]
4.3.3 GW
[121]
4.3.4 CW
[130]
4.3.5 Ernest Nam
[139]
4.3.6 General
[144]
4.4 Reputation witnesses for Dr Gill and Mr Herron
[146]
4.4.1 Virginia Gill
[146]
4.4.2 Margaret North
[150]
4.4.3 Roger Wilkinson
[152]
4.4.4 Richelle Herron
[155]
4.4.5 Brendon Herron
[158]
4.5 Stephen Cannane
[161]
4.5.1 Background
[161]
4.5.2 Writing the Book
[164]
4.5.3 Other evidence
[167]
4.5.4 The imputations
[174]
4.5.5 Discussion
[204]
5 DST AND ECT AT CHELMSFORD
[208]
5.1 The doctors
[210]
5.2 The standard procedure
[212]
6 EXPERT EVIDENCE
[222]
6.1 Dr Richard Clark
[222]
6.2 Professor Ian Whyte
[227]
6.3 Dr John Sydney Smith
[246]
6.4 Professor Gordon Parker
[277]
6.5 Dr Jonathan Phillips
[300]
6.6 Professor Ian Hickie
[340]
6.7 Professor Patrick McGorry
[390]
7 SLEEP THERAPY AND DST
[410]
7.1 Applicants’ submissions
[410]
7.2 Psychiatry
[411]
7.3 History and use of deep sleep therapy
[421]
7.4 Dr Gill
[482]
7.5 Deaths at Chelmsford
[490]
7.5.1 Audrey Francis
[503]
7.5.2 John Adams
[514]
7.5.3 Peter Clarke
[523]
7.5.4 Miriam Podio
[531]
7.5.5 Janice Nam
[545]
7.5.6 Other patients
[547]
7.6 Barry Hart
[548]
8 DEFAMATORY MEANING
[586]
8.1 Principles
[586]
8.2 Discussion
[594]
9 JUSTIFICATION
[633]
9.1 Imputation A
[642]
9.2 Imputation B
[647]
9.3 Imputation C
[652]
9.4 Imputation D
[657]
9.5 Imputation I
[662]
9.6 Imputation N
[668]
9.7 Imputation E
[676]
9.8 Imputation F
[683]
9.9 Imputation G
[690]
9.10 Imputation H
[714]
9.11 Imputation J
[729]
9.12 Imputation K
[733]
9.13 Imputation L
[738]
9.14 Imputation M
[750]
9.15 Conclusion
[757]
10 QUALIFIED PRIVILEGE
[758]
10.1 Principles
[758]
10.2 Discussion
[773]
10.2.1 General
[773]
10.2.2 Section 30(3) factors
[776]
10.2.3 Respondents’ response to criticisms of Mr Cannane
[790]
10.2.4 Applicants’ submission about Mr Cannane
[805]
11 CONTEXTUAL TRUTH
[849]
11.1 Mr Herron
[850]
11.2 Dr Gill
[858]
12 FAIR REPORT/FAIR SUMMARY
[860]
12.1 Principles
[860]
12.2 Competing submissions
[874]
12.3 Discussion
[892]
13 DAMAGES
[898]
REASONS FOR JUDGMENT
JAGOT J:
1. INTRODUCTION
These reasons for judgment concern the applicants’ claims for defamation arising from a chapter in a book titled Fair Game: The Incredible Untold Story of Scientology in Australia (HarperCollins Publishers Australia Pty Limited, 2016) (the Book). The first respondent (HarperCollins) is the publisher and the second respondent (Mr Cannane) is the author of the Book. The background to Chapter 14 titled “Deep Sleep” (the Chapter) is the Royal Commission conducted by Acting Justice Slattery between 1987 and 1989 (Royal Commission into Deep Sleep Therapy) and the resulting multi-volume Royal Commission report. Mr Cannane’s thesis, which the Chapter explores, is that the Royal Commission did not expose the role of the Church of Scientology in bringing to light the abuse of patients in the administration to them of so-called deep sleep therapy (DST) and electro-convulsive therapy (ECT) at Chelmsford Private Hospital (Chelmsford). The applicants are referred to in the Chapter as two of the four doctors involved in DST at Chelmsford.
As the respondents submitted, the reference to DST as involving “sleep” and “therapy”, on the evidence in this case, is a misleading euphemism. The evidence is clear. The patients at Chelmsford subjected to DST were dosed with barbiturates to a level of deep unconsciousness, sufficient so that they had to be fed by a naso-gastric tube and were routinely incontinent. When they became rousable at the end of the period of a dose, they were dosed again to maintain them in a general state of unconsciousness for extended periods (such as for 10 days). The barbiturates used involved a small gap between sedating and fatal levels. There was no doctor routinely involved in the administration of the drugs to the patients or in their observation. Nurses were left with the responsibility to decide when and how much of the drugs to administer in a range specified on a pro-forma treatment sheet signed by one of the doctors involved in the use of DST – Dr Bailey, Dr (now Mr, given his deregistration as a medical practitioner for conduct unrelated to Chelmsford) Herron, and Dr Gill who was also a part owner of Chelmsford. While under DST the patients were given ECT. Oxygen, muscle relaxants and anaesthetic were not routinely given to patients being administered ECT despite these being standard requirements at the time.
As the respondents submitted, leaving aside the views of the applicants, the expert evidence in this proceeding is unanimous. DST was a dangerous experimental treatment with no medical justification by the 1960s and 1970s when it was being administered at Chelmsford. The way in which ECT was given at Chelmsford, without oxygen, muscle relaxants and anaesthetics, also did not meet the appropriate standards at the time. Further, it should be inferred from the evidence that none of the patients were informed about the dangers associated with DST and thus were not in a position to give informed consent to the treatment. A significant number of patients died while under or immediately after the administration of DST in circumstances where it should be inferred from the evidence that DST caused their deaths. Mr Herron and Dr Gill continued to administer DST despite knowing of the deaths and took none of the steps that would have been necessary at the time to investigate the cause of death and suspend or cease the treatment if the cause could not be mitigated. On the evidence in this case, the unavoidable conclusion is that the dangers of DST were so great the cause of death could not be mitigated if DST continued. The conclusion which must be drawn on the evidence is that DST should never have been performed at all at Chelmsford. To subject patients to it as occurred at Chelmsford in the 1960s and 1970s was unethical, grossly negligent and involved sustained medical malpractice by reference to the applicable standards at the time.
As the respondents submitted, due to the Royal Commission and its findings, these matters form a notorious part of the medical and social history of New South Wales. The applicants have sought to use the vehicle of this litigation, in effect, to prove that the Royal Commission did them a serious injustice by accepting a “Scientology version of events”. The reality is that the expert evidence called by the respondents and the otherwise admissible evidence from experts who were involved in the Royal Commission leaves room for only one credible version of events – that at the time it was administered it should have been obvious to those doctors with knowledge of its details (including the applicants) that DST was a dangerous experimental treatment for which there was no medical indication for any patient subjected to it at Chelmsford. However, the applicants’ evidence and submissions are fixated on a single objective – to have the findings in this proceeding rewrite history and vindicate their conduct despite the overwhelming evidence to the contrary and the lack of any cogent evidence to support them. As the respondents put it:
Instead of expert evidence, the Applicants wave vaguely in the direction of ‘literature’ which it is said may have supported the treatment being provided at Chelmsford. But that literature describes something very different to what occurred at Chelmsford.
…
There is not a skerrick of evidence to justify what was done at Chelmsford. It was a treatment that put patients at a significant risk of death, which risk came home on numerous occasions.
The applicants’ submissions create their own difficulties. They contain material which appears to be of marginal relevance. They are, in large part, highly selective and tendentious. The view they present of the evidence is distorted, as if the evidence were being evaluated through the lens of the individual applicants and their unshakeable views that DST was an appropriate treatment and that the applicants were unfairly condemned by the public and the Royal Commission who were in turn hoodwinked into accepting a “Church of Scientology version of events”. The deaths of patients under DST are presented as an acceptable consequence of some perverse risk-benefit analysis (in which the risk is not disclosed to the patient and the benefit merely assumed). Deaths under and as a result of DST (a supposed treatment) are compared to deaths of all psychiatric patients from all causes over time as if this could provide some justification for DST. Patients who survived and ultimately complained and sued are characterised as liars and troublemakers who should have been grateful for having received DST. The applicants’ submissions consistently identify any discrepancy in a person’s version of events over time as evidence that the person is a liar or fantasist, explain away evidence as a result of the adverse influence of publicity and the Chelmsford Victims Action Group, and otherwise mischaracterise any material that does not fit with the applicants’ worldview of a false narrative (the so-called “Scientology version of events”) unfairly perpetrated on them over decades. The fact that honest witnesses may give an honest core of evidence but nevertheless make mistakes about details (even numerous details), particularly involving traumatic events or events decades in the past, seems to have escaped the applicants. Mistakes about details are not a necessary indicator of unreliability, let alone conscious dishonesty. Nor is the fact that the witnesses were unwilling to give evidence at one time and later willing to give more details about their trauma or their experience over time a sign of lying. A person’s perspective on what has happened to them may change over time with no dishonesty involved. I had the benefit of seeing the witnesses give evidence (excluding the evidence by way of hearsay notices). The applicants’ repeated accusations of dishonesty against witnesses called by the respondents are simply unsustainable in the face of their evidence, viewed fairly and as a whole.
I have concluded that a number of the pleaded defamatory imputations are not conveyed by the matter complained of. To the extent that defamatory imputations are conveyed, I am also satisfied that they are substantially true so the respondents have the benefit of the defence of justification in s 25 of the Defamation Act 2005 (NSW) (the Act). The respondents are also entitled to the defence of qualified privilege for the publication of defamatory matter as provided for in s 30 of the Act. As a result, the proceedings must both be dismissed with costs.
2. THE BOOK
HarperCollins published the Book in 2016. Over 8,500 copies were sold. Chapter 14 is headed “Deep Sleep”. It focuses on the role that the Church of Scientology played in exposing the abuses at Chelmsford and ensuring that the Royal Commission was held.
Part of the focus of the Chapter is on a patient, Barry Hart. Mr Hart went to see Mr Herron as he was suffering from anxiety brought on by what Mr Hart believed to be botched plastic surgery. As well as being a gym owner, he was a part-time model and an actor and believed his modelling and acting career were over. According to the Chapter, after arriving at Chelmsford he was asked to sign a form which he quickly scanned and noticed that it contained a disclaimer giving permission to perform electric shock treatment. Wanting nothing to do with shock treatment, Mr Hart refused to sign the form. When admitting that he was nervous, the Chapter states that Mr Hart was then given a pill to calm his nerves. The Chapter continues at p 177:
[f]or ten days Barry Hart was sedated with near-fatal doses of barbiturates, and while in a drug-induced coma, was given electric shock treatment on six occasions without his consent. His respiratory rate rose from 16 breaths per minute to 150. His temperature peaked at 39.9 [degrees Celsius]. He became incontinent, cyanosed and went into shock.
After “emerging from an enforced 10-day coma”, the Chapter states, Mr Hart called his parents who arranged for another doctor to visit Chelmsford and assess him. When out of hospital, Mr Hart realised his “brain was damaged, his anxiety was far worse, and he was suffering from post-traumatic stress”: p 179. The Chapter then states that two years after Mr Hart “nearly died at Chelmsford” his solicitor was able to access his medical records. The Chapter states at p 180:
…[w]hen they arrived, what was missing was just as critical as what was there: there was no signed consent form for shock treatment, and the bottom part of the admission slip had been cut off.
The files reinforced what Barry knew was the truth: he had not consented to being sedated and given shock treatment.
Mr Hart’s experience as detailed in the Chapter is one of a number of experiences of Chelmsford patients that are collectively described as “a catalogue of psychiatric abuse and malpractice”:p 184.
The person responsible for introducing DST to Chelmsford is identified, Dr Harry Bailey. It is said that Dr Bailey’s experiments with DST at Chelmsford began in 1963. He used it for a wide variety of disorders claiming an 85% success rate with no credible evidence to back up this claim. He ignored the fact that other psychiatrists had rejected his theories and that a trial of DST at Parramatta had been discontinued as too dangerous. The treatment involved a mortality rate of 1% to 3% and had a well-documented set of potentially serious complications but Dr Bailey ignored the safeguards used by Dr Sargant, whose work had inspired Dr Bailey’s experiments at Chelmsford. The Chapter records that these warnings did not deter Dr Bailey and his fellow Chelmsford doctors, John Herron, John Gill and Ian Gardiner. Nor did “the death toll mounting before their eyes”: p 179. Details of some of the deaths at Chelmsford are then given.
The story then returns to Mr Hart and his attempts to obtain legal redress for what he was subjected to at Chelmsford.
The Chapter moves then to a consideration of the hitherto unknown role of Rosa Nicholson, a nurse, in exposing the events at Chelmsford in conjunction with the Church of Scientology.
Ultimately, as the Chapter contends, the role of Scientology in the “exposure of psychiatric abuses inside Chelmsford was arguably Scientology’s finest moment in Australia”: p 198. This culminated in the announcement by the NSW Government in 1988 that there would be a Royal Commission into DST. As the Chapter explains (p 192), the Royal Commission ran for close to two years. Nearly 300 witnesses gave evidence including patients, nurses, the surviving Chelmsford doctors (Dr Bailey having committed suicide in 1985), senior bureaucrats and former Ministers. The final Royal Commission report ran close to two million words. It revealed that 24 DST patients had died at Chelmsford between 1963 and 1979 with another 24 committing suicide within a year of release. It found that Dr Bailey had falsified as many as 17 death certificates and many patients received the treatment without their consent. The Department of Health was criticised for neglecting to carry out proper checks at Chelmsford and for failing to properly investigate the deaths.
The Chapter observes that while the Royal Commission report exposed the truth about DST at Chelmsford it did not get to the bottom of the role of the Church of Scientology and Ms Nicholson in that exposure: p 192. The balance of the Chapter focuses on the work of Ms Nicholson, in conjunction with the Church of Scientology, in exposing the practice of DST at Chelmsford. The Chapter ends by observing that Ms Nicholson’s achievements in exposing Chelmsford had been overlooked both during her life and at the time of her death in 2015.
3. THE IMPUTATIONS AND DEFENCES
The applicants allege that the Chapter conveys the following defamatory imputations:
Imputation Statement of Claim paragraph Accept carried or not Pages of the Book A. The applicant’s gross negligence as a psychiatrist nearly killed his patient Barry Hart Herron 4(a) Yes T2765.19-21 5, 176, 177, 180, 185, 188 B. The applicant, a psychiatrist, falsely imprisoned his patient Barry Hart Herron 4(b) Yes [27] R’s Subs 176, 177, 188, 189 C. The applicant, a psychiatrist, caused his patient Barry Hart to deteriorate, in ten days, from a fit 37-year old man in peak physical condition to a person in agony and distress, vomiting blood and unable to move his limbs Herron 4(c) Yes T2765.19-21 5, 176, 177, 178 D. The applicant, a psychiatrist, caused his patient Barry Hart to be sedated and given electric shock treatment on six occasions without Mr Hart’s consent Herron 4(d) Yes T2765.19-21 5, 177, 180, 188, 189, 194 E. The applicant, a psychiatrist, used deep sleep treatment on his patients, despite trials by other doctors deeming the practice too dangerous* Herron 4(e)
Gill 4(a)No [31] R’s Subs 5, 178, 179, 190, 192, 194, 196, 198, 200 F. The applicant, a psychiatrist, continued to use deep sleep treatment on his patients despite the number of deaths it caused* Herron 4(f)
Gill 4(b)No [34] R’s Subs
[Subsequently changed to Yes]5, 177, 178, 179, 180, 190, 194, 196, 198, 200, 201 G. The applicant, a psychiatrist, falsified death certificates* Herron 4(g)
Gill 4(c)No [36] R’s Subs 179, 190 H. The applicant, a psychiatrist, lied to his patients’ families about how ill the patients were and denied those families visitation* Herron 4(h)
Gill 4(d)No [38] R’s Subs 179, 190, 192, 194, 196, 198, 200, 201 I. The applicant’s gross negligence as a psychiatrist caused his patient Barry Hart to suffer brain damage and post traumatic stress Herron 4(i) Yes T2765.19-21 5, 177, 179 J. The applicant’s gross negligence as a psychiatrist caused the death of many of his patients* Herron 4(j)
Gill 4(e)No [41], [43] R’s Subs 5, 177-181, 184, 190, 192, 194, 196, 198, 200, 201 K. The applicant, a psychiatrist, engaged in sustained medical malpractice and abuse of his patients* Herron 4(k)
Gill 4(f)No [47] R’s Subs 5, 177-182, 184, 190, 192, 194, 196, 198, 200, 201 L. The applicant, a psychiatrist, defrauded his patients’ health funds* Herron 4(l)
Gill 4(g)No [49] R’s Subs 183, 184, 190, 192 M. The applicant, a psychiatrist, traumatised many of his patients by giving them deep sleep therapy without their consent* Herron 4(m)
Gill 4(h)No [51] R’s Subs 5, 177, 184, 190, 192, 194, 196, 198, 200, 201 N. The applicant, a psychiatrist, assaulted and battered his patient Barry Hart Herron 4(n) Yes T2765.19-21 175, 177, 189
As will be apparent, all imputations concern Mr Herron. Only imputations E, F, G, H, J, K, L, and M (shaded in the table above) concern Dr Gill.
The respondents accepted that imputations A, B, C, D, I and N are conveyed but contended that imputations E, F, G, H, J, K, L and M are not conveyed.
The respondents relied on the following defences:
(a)Truth: Any imputations which are conveyed are substantially true (section 25 of ... the Act);
(b)Contextual Truth: Further imputations are conveyed by the matter complained of which are substantially true, such that any imputations which the Applicants prove were carried did not further harm the reputation of the Applicants (section 26 of the Act);
(c)Fair Report: The relevant portions of Chapter 14 amounted to a fair report of proceedings of public concern, being the Royal Commission into Deep Sleep Therapy presided over by the Honourable Mr Acting Justice J.P. Slattery A.O. (section 29 of the Act);
(d)Fair Summary: The relevant portions of Chapter 14 amounted to a fair summary of a public document, being the Report of that Royal Commission (section 28 of the Act);
(e)Statutory Qualified Privilege: Chapter 14 was published under circumstance of qualified privilege (section 30 of the Act).
The applicants stressed that as the imputations concern misconduct of the most serious kind they cannot be proved by inexact proofs, indefinite testimony or indirect inferences: s 140(2) Evidence Act 1995 (Cth); Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361. Clear, cogent and strict proof is required to prove the truth of the imputations: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170 at 172 per Mason CJ, Brennan, Deane and Gaudron JJ. This may be accepted. I have kept this principle in mind in assessing the evidence. However, the principle does not mean that the evidence on which the respondents relied was inherently suspect, nor that the evidence on which the applicants relied was inherently reliable.
4. THE LAY WITNESSES
4.1 The applicants
Although Dr Gill is and Mr Herron was a medical practitioner (as noted, he was deregistered in the late 1990s in relation to events unconnected with Chelmsford) the majority of their evidence concerned issues of fact rather than opinion and it is convenient to deal with their evidence immediately.
From the whole of the evidence I formed strong impressions of Dr Gill and Mr Herron. They plainly believed that they had been the victims of a serious injustice wrought upon them by the Church of Scientology, their former patients, and the Royal Commission. They were unable to accept criticisms of their treatment of their patients and patients generally in Chelmsford who were administered DST and ECT. They appeared powerfully motivated by a need to see themselves vindicated from the serious adverse findings made by the Royal Commission against them. Their entire approach to their conduct was self-justificatory and self-exculpatory. Any person who maintained that DST was a dangerous experimental treatment without any medical justification which caused the deaths of some patients and did serious harm to other patients was seen to be peddling a “Scientology version of events” irrespective of the overwhelming evidence that DST was indeed a dangerous experimental treatment without any medical justification which caused the deaths of some patients and did serious harm to other patients. Their evidence was driven by their need for vindication. In my view, this need coloured the whole of their evidence and made it generally unreliable unless supported by other objective contemporaneous evidence.
The applicants’ approach to the evidence in submissions was also implausible. Any inconsistency in the applicants’ evidence is explained away as a benign product of their age or the passage of time. Any inconsistency in the evidence of any other lay witness, however, is seized upon as a lie, a recent invention or a false narrative. It may be accepted that the passage of time has affected the quality of the contemporaneous lay evidence. But that does not mean that the evidence is unreliable. In particular, the applicants repeatedly used inconsistency about details as a means to undermine the credit of witnesses. The approach in the applicants’ submissions to the evidence is unrealistic. The submissions fail to recognise the overwhelming interest of the applicants in vindicating themselves from what they perceive as serious past injustices. They fail to recognise the lack of interest of any of the other lay witnesses to do other than tell the truth as best as they are able to do given the passage of time. They fail to recognise that the fact of the passage of time may be accepted but that the general effect of evidence (even if in the wrong sequence or incorrect as to details) may nevertheless be accurate. They fail to recognise that the experience of trauma may cause some details to recede in the memory but the central traumatic experience to be clearly recollected and relived.
4.1.1Dr Gill
Dr Gill’s unreliability as a witness is evident from the examples on which the respondents relied as follows, which I accept:
(a)Dr Gill’s evidence was that he did not accept that his patients were given deep sleep therapy and that he gave his patient John Adams ‘light’ sedation. That is contrary to what Dr Gill told the Royal Commission where he clearly stated his involvement in ‘Deep Sleep Therapy’ and set out his reasons: Ex. 12, tab 2, pg. 4. It is also contrary to the actual regime of drugs given to John Adams, which involved the maximum number of drugs with the minimum amount of time between doses: Gill XXN [cross-examination] at T269.6-10.
(b)Dr Gill’s evidence about ‘light’ sedation was also flatly contradicted by nurses’ notes. For example, in respect of patient MA, Dr Gill insisted that she was given ‘light’ sedation: Gill XXN at T283.9-10. But the nurses’ notes record that ‘Deep Sedation commenced at 10:10am’: Ex. 12, tab 4, pg. 68. The Court should accept that if Dr Gill had instructed the nurses to carry out anything other than ‘deep’ sedation, it would have been recorded here. Dr Gill’s attempted reconciliation of the note with his own evidence was nonsensical.
(c)Dr Gill denied that his initial treatment of John Adams used the same regime of drugs as Dr Bailey: Gill XXN at T215.14-16. It clearly did: the same pre-printed standard treatment sheet was used. He used the same treatment sheet for patient MA. What’s more, Dr Gill’s own evidence was that his use of sedation therapy was based on discussions with Dr Bailey: Gill 2 [90(a)] (CB2 AFF000B, pg. 15).
(d)Dr Gill could not explain the stark contrast between his evidence to the inquest of John Adams that he was ‘absolutely satisfied’ with the level of nursing care and his evidence to the Royal Commission that the monitoring of patients in the DST ward was not good enough on that occasion. Had Dr Gill come clean and admitted that he was concealing the truth from the Coroner, one might have more reason to believe his current evidence. Dr Gill could not bring himself to make that obvious admission: Gill XXN at T292.19-293.8.
(e)Dr Gill stated that in respect of pages 176-177 of the Book, he did not consider ‘any of these first two pages as being – being factual’: Gill XXN at T67.3-4. When given the chance to clarify that statement Dr Gill stated that he considered those pages to be ‘totally irreconcilable with the events reported in the hospital records’: Gill XXN at T67.12.13. Yet many of the matters set out in those pages are not controversial and are clearly recorded in the hospital documents.
(f)Dr Gill’s evidence was that he could not provide any observations about the level of sedation used for Dr Bailey and Dr Herron’s patients: Gill XXN at T227.17-23. Yet he told the Royal Commission in 1989 that the means by which he learnt about DST was by “talking to the doctors involved and observing the way it was administered at CPH”: Ex. 12, Tab 2, pg. 24.
(g)Dr Gill wrote and signed a letter which said ‘This is to put in writing our verbal discussions…’: Ex. 12, Tab 14. Dr Gill sought to suggest that this could have referred to a discussion with someone other than himself: Gill XXN at T313. That is a speculative reading of the plain meaning of the words of the letter that Dr Gill wrote. It is an example of Dr Gill seeking to avoid obvious conclusions which do not work in his favour.
(Footnotes omitted).
Further:
(1)Dr Gill gave evidence that Ms Nicholson had never worked in the DST ward (“I am quite satisfied that Ms Nicholson did not work in the sedation ward. She was a trainee nurse and replaced an [assistant] trainee nurse outside the sedation ward” so anything she said must be the “Scientology version of events”): this was incorrect and Dr Gill sought to explain away his error when confronted by it by maintaining that Ms Nicholson did not work in the DST ward on 8 November 1972;
(2)Dr Gill gave evidence that he had never been called to the hospital because of a health department inspection (“Never was I called when there was an inspection of the health department”): the evidence was to the contrary;
(3)Dr Gill denied ordering that medical records be removed to the matron’s flat but then admitted he merely had no recollection of doing so;
(4)Dr Gill said he believed he had never used Dr Bailey’s pro-forma treatment sheet: but when the evidence proved to the contrary his positon had to change;
(5)Dr Gill said that he did not think he had one more DST patient after the death of John Adams: but the evidence shows that he administered DST to Barry Green the following month; and
(6)Dr Gill said his understanding was that DST as administered at Chelmsford was still being conducted in other parts of the world: when there is no evidence to support this assertion and the weight of the evidence is overwhelming to indicate to the contrary that even when being administered at Chelmsford DST was an experimental treatment not being conducted in the same form anywhere else.
As the respondents also submitted, Dr Gill’s evidence must be assessed in light of his previous conduct to thwart attempts to scrutinise the conduct at Chelmsford. He moved Chelmsford documents to a squash court near Newcastle in which one of his companies had an interest so as to avoid them being obtained via a search warrant: T151.27-32. He recorded a conversation between Mr Herron and Marcia Fawdry without her knowledge or consent: T85.4-5.
The applicants’ submissions about Dr Gill’s evidence fail to recognise his overwhelming self-interest in having the Court accept a version of events which suits Dr Gill’s perceptions of having suffered a serious injustice at the hands of the Royal Commission.
4.1.2Mr Herron
I accept the respondents’ submission that it is apparent that:
Mr Herron’s approach to these proceedings was also to seek to defend DST as practised at Chelmsford at all costs and without regard to documents, previous evidence or objective likelihoods.
As the respondents said, the unreality of Mr Herron’s evidence is apparent in his insistence that Audrey Francis demanded to be treated with DST having “read all the literature regarding sedation therapy” and that she “did not care” about the particular risks to her from DST arising from her conditions and weight: affidavit of John Herron dated 31 January 2020 (Herron 2) [104], (Court Book (CB) 2 AFF000F, p 21. However, as the respondents observed:
Mr Herron gave evidence about this consultation at an inquest into Ms Francis’ death. Before the Coroner, Mr Herron regarded it as appropriate to provide a history of Ms Francis’ problems and provide the Coroner with as much information as he could on the subject. Yet nowhere in Mr Herron’s evidence before the Coroner is there any reference to Ms Francis insisting on having deep sleep treatment, knowing of the drugs that were proposed to be administered to her or having said that she had done research or read literature about sleep therapy: Herron XXN at T374.5-15. Rather, Mr Herron’s evidence before the inquest was the following:
Q. Do you consider it is normally entirely safe to put a woman of her age, 66, to sleep for a lengthy period?
A. This is a judgement that has to be taken. She was in a very acute state of agitation. She was at least on the information doing things which put her at great risk and in confusion. One can do many things. She did have a history that recently during episodes of confusion, falling, hurting herself to the degree that it should be suspected that she could have a subdural haematoma. The reasons then of the treatment program and my considered opinion at the time was, this was the best treatment available to her at that time and what risk there was should be taken.
(Footnotes omitted).
Had Ms Francis insisted on DST irrespective of the risks (an inherently unlikely scenario), then Mr Herron would have informed the coroner to that effect. Yet he made it clear to the coroner that it was his recommendation (not Ms Francis’s insistence) that she be subjected to DST. It is also apparent that Mr Herron alone judged that the risks should be taken. There is no suggestion in his evidence to the coroner that he provided sufficient information to Ms Francis so that she might understand the serious risks involved in DST for any person, let alone a person of her age and in her condition. Further, the respondents noted that Mr Herron’s record of the consultation (MED00093.4 (Respondents’ Tender Bundle (RTB) 7)) said:
Chronic drug and alcohol abuse with superimposed mood disorder. At first treat with Hemineurin, I will be happy to follow her up at Chelmsford and arrange with relatives future care.
As the respondents put it:
That is far removed from the conversation described by Mr Herron. Mr Herron sought to explain this by saying that the Ryde consultation document ‘fulfils the request’ and Mr Herron did not ‘believe it was necessary’ to record the details of what Ms Francis told him about her research in that report: Herron XXN at T371.5-39. In circumstances where the consultation was (as Mr Herron accepted) ‘very much out of the ordinary’, Mr Herron’s lack of credible explanation for the conversation not appearing in those notes tells strongly against the idea that any such conversation happened.
(Footnotes omitted).
As the respondents also pointed out, Mr Herron’s evidence about ECT at Chelmsford was not supported by the evidence. He said that patients were not given a morning dose of sedation if they were to be given ECT but the records show numerous cases of such sedation being given before ECT. His evidence about lightening before ECT is also irreconcilable with his evidence that the reason he did not give anaesthetic to patients who were being given ECT was that it would be dangerous to do so given their level of sedation. The fact is sedation patients were not generally given anaesthetic before ECT at Chelmsford presumably because the view was taken that their level of sedation was equivalent to being anaesthetised (which the expert medical evidence in this case indicates is a reasonable description of the level of sedation likely to be achieved in DST). This, however, led to highly distressing experiences for some patients (who were not sufficiently sedated to be unaware of ECT being performed on them). The fact that Mr Herron performed ECT on sedated patients without the routine use of anaesthetic, muscle relaxants and oxygen, when these were standard requirements, immediately calls into serious question his medical and ethical judgment.
Mr Herron accepted during the Royal Commission that 26 people had died during or immediately after DST and that DST was a significant contributing factor to their deaths but, in this proceeding, said he had changed his mind and did not accept that DST was a cause of these patients’ deaths. It is difficult to imagine Mr Herron having made any concession at any time unless it was unavoidable on the evidence. No cogent reason for the change in position was apparent other than Mr Herron’s self-interest in this proceeding.
Mr Herron’s evidence over time about what happened to Mr Hart’s admission form was inconsistent and unbelievable. The admission form had a space for a consent to ECT. The bottom of the form was cut off and replaced by a photocopy of an X-ray form. In Hart v Herron (1984) Aust Torts Reports 80-201 (Hart v Herron) Mr Herron gave this evidence:
When did you first notice that the bottom had been cut off?
I first found out the bottom, I first noticed, I first saw that the bottom had been cut off when I saw these documents in my barristers [sic] rooms within a few days of the trial starting.
In the Royal Commission Mr Herron initially gave this evidence:
Q. When did you first become aware that Exhibit 196 [the Hart consent form] had been tampered with, on the bottom of the identification page?
A. It was in a conference with my solicitors, as I remember it, prior to Hart v. Herron.
This exchange later occurred in the Royal Commission:
Q. Yes. In those circumstances, have you ever made any enquiries about how this happened?
A. No, I haven’t.
Q. Have you any knowledge at all about how it happened?
A. Yes
Q. What is that knowledge?
A. After it had happened and I can’t really tell you the group of people, that someone as I remember it in the corridor of the hospital or a group of them said that they had solved all of my problems for me and they had cut off this bit of the document. I don’t know who it was that actually cut the piece off and my response at that stage was almost identical to the response in the discussion with the lawyers.
When it was pointed out to him that this was inconsistent with his evidence in Hart v Herron his explanation was that he had been asked the wrong question in that proceeding. This exchange occurred:
Q. Let me take you to another question and answer. The question was, and I will show you the whole passage in a moment so you can look at the context:
‘Q. You did not become conscious of it until your barrister drew your attention to it?
A. That is correct.’
Q. I would suggest to you that that was not an answer where you could say the wrong question was asked, that that’s an answer which was untrue. You will find it about two thirds of the way down the page?
A. I still believe that my comments in relation to the ‘When did you first notice that the bottom had been cut off’ and I believe that the interpretation that I made to the word ‘conscious’ was physical knowledge and that’s what I have answered the question to.”
The answer of Mr Herron is evasive and self-serving.
I accept also the respondents’ submission that the most significant reason for the Court to attribute little or no weight to Mr Herron’s evidence about controversial matters is his approach to the manifest dangers of DST. This exchange occurred in the evidence:
No. Well, certain it is that you kept on administering DST until 1979, didn’t you?---I did.
Yes. And that was in the face of, can I suggest to you, evidence – or overwhelming evidence about the serious dangers of DST?---The overwhelming evidence, if it could be called that – and I disagree with it being called that – was predominately due to the propaganda spread by the scientologists. There was – there is no real scientific basis to it. It had been practised in many countries and was still being practised in many countries.
This evidence is far from reality. The evidence about the dangers of DST is overwhelming and that fact ought to have been recognised as such by any reasonable medical practitioner with detailed knowledge of the treatment in the 1960s and 1970s. Mr Herron’s continued insistence to the contrary merely confirms his determination to be vindicated at any cost for what he perceives as the injustices wrought upon him by the Church of Scientology, his patients, and the Royal Commission.
It may be accepted that Mr Herron is now 87 and his evidence was adversely affected by a deterioration in his condition in the midst of his cross-examination (resulting in his hospitalisation). As will be apparent below, I have taken into account the impact on Mr Herron’s evidence caused by his hospitalisation. But nothing about these matters removes the fundamental issue about his evidence that it was manifestly directed to one end – vindication of his version of events about DST which had been rejected by the Royal Commission.
Contrary to the submissions of the applicants, I do not see any support for the applicants’ positions in Director of Public Prosecutions v Gill [1993] NSWCA 84 and Herron v McGregor (1986) 6 NSWLR 246. It is one thing to succeed in the stay of criminal and disciplinary proceedings because of the passage of time and the effect that could have on the capacity to defend oneself. It is another to bring a proceeding alleging defamations relating to conduct from the 1960s and 1970s and to expect to benefit from favourable inferences given the exigencies of the circumstances.
4.2 Chelmsford nurses
While the nurses were capable of giving expert opinions about nursing care, for the reasons given below, I do not accept that they were qualified to understand the particular risks associated with DST (although some plainly had serious concerns and went so far as to challenge the doctors about their practice, without result). As such, their opinions about the adequacy or appropriateness of the medical care given to DST patients at Chelmsford (as opposed to the quality of the nursing care) cannot be relied upon. The nurses were not medically qualified and were not in a position to assess the propriety (or otherwise) of their involvement in DST. They were not able to assess the effect of the drugs on the patients other than by the crude method of observation. Contrary to the applicants’ thesis, the nurses’ experience in the DST ward did not make them capable of safely performing experiments in the titration of drugs on the patients. The fact is, unbeknownst to the nurses, they were in fact experimenting on the patients, albeit without the qualifications in anaesthesia which on the evidence would have been necessary to attempt to perform this role and without a detailed understanding of the fine line between sedation and death which the barbiturates used in DST involved. Accordingly, the applicants’ attempts to rely on the nurses’ evidence when it suited them concerning the quality of nursing care at Chelmsford cannot be accepted. The nurses were being asked to perform an impossible task – to try to safely administer a highly dangerous regime which a qualified anaesthetist in an intensive care unit would have had difficulty in managing. The fact that the nurses mostly did not recognise this at the time (although some certainly did) involves no criticism of them. They could not be expected to know what the doctors knew or should have known – that DST was an experimental and dangerous treatment for which there was no medical justification by the 1960s and 1970s. No amount of nursing care at Chelmsford could make the procedure safe and justifiable. The evidence of the nurses must be understood in this context.
4.2.1Jan Reid
Mrs Reid started working at Chelmsford as a nursing assistant in 1972. In the early 1960s she had done nursing training but had not sat her final exams. Her standard shifts were Thursday, Saturday and Sunday evenings from 9pm until 7am but from 1974 she only worked Thursday and Sunday nights.
She recalled the DST ward as having six beds. There were generally one registered nurse and two unregistered nurses (either nurse’s assistants or nurse’s aides) on duty. There was never a resident doctor on premises at Chelmsford. The registered nurse on duty was in charge of the hospital during the shifts.
She recalled that DST patients were generally naked, in beds, each with a Ryles tube inserted into one of their nostrils. Every four hours Mrs Reid and the other nurses would undertake a routine which was standard for all DST patients. This included cleaning the patients’ mouths, washing them and changing their sheets if they were incontinent, feeding them a mixture of Sustagen and eggs through the Ryles tube, and checking, and recording on an observation chart, each patient’s temperature, pulse, respiration and blood pressure.
When Mrs Reid was not involved in this routine she would sit in the door of the sedation ward and the nurses would take it in turns to walk and look around the other wards. Approximately every half an hour either Mrs Reid or the other unregistered nurse would walk through the sedation ward and look at each of the patients. Mrs Reid said that there was always at least one nurse sitting in the door of the sedation ward. If any patients were restless one of the nurses would go and check on them. As the patients were not catheterised if the nurses saw that a patient’s sheets were wet they would change them immediately. During this routine Mrs Reid recalls that the DST patients were also generally administered capsules of Tuinal (a barbiturate) through the Ryles tube by either herself or another unregistered nurse. Mrs Reid remembers that it was usually 400mg, being two tablets, of Tuinal. On occasions Mrs Reid does remember the registered nurse on duty deciding that only 200mg of Tuinal should be administered. Mrs Reid stated that patients in the sedation ward did not generally wake during DST and appeared to her to be in a coma because they would not respond to anything happening around them including the nurse talking and lights turning on and off. Dr Bailey had said that if the patients opened their bowels they were not sedated deeply enough. Generally, patients under DST did not open their bowels and they were given an enema when they were lightened out of sedation at the end of DST. To the best of her recollection Mrs Reid believes that DST patients were usually sedated for approximately 21 days. Mrs Reid does not recall seeing standard treatment sheets setting out a drug regime. Mrs Reid recalls that the sedation ward and Chelmsford generally had very little emergency equipment.
Mrs Reid remembers patients receiving DST developing complications from their treatment including elevated temperatures, seeing blood in urine, and patients displaying distended abdomens. Mrs Reid also remembers seeing Mr Herron administer ECT to the patients in the sedation wards. Mrs Reid never observed Mr Herron administer either a muscle relaxant or an anaesthetic to a patient prior to administering ECT. Mrs Reid would assist Mr Herron whilst he gave ECT to ensure the patient’s limbs did not bang against any hard surfaces and that the patient’s jaw was kept up so that the airway was clear. Mrs Reid recalls one occasion whilst assisting Mr Herron that a patient became cyanosed after receiving ECT and appeared to be suffering from respiratory or cardiac arrest. Mrs Reid said that Mr Herron resuscitated the patient and continued the DST treatment.
To Mrs Reid, DST seemed at the time to be a very bizarre treatment. She was shocked at the large amounts of drugs that were administered to DST patients and at the fact that the drugs were administered by a nurse without the supervision of a doctor. Mrs Reid assumed at the time that DST was a normal psychiatric practice and believed that her concerns were just naivety. Mrs Reid particularly recalls the admission of one lady in the middle of the night where the patient had to be escorted kicking, screaming and scratching from her car to the sedation ward. Mrs Reid remembers that this patient took her glasses off her face and threw them into a bush at the front of the hospital. Mrs Reid could not recall the patient’s name or the precise date. Mrs Reid also remembered one patient dying in the sedation ward whilst she was working. On this particular occasion Mrs Reid was working with Sister Stewart. Sister Stewart and Mrs Reid were preparing to commence the 6am routine when Sister Stewart came across a female patient not breathing in her bed. Sister Stewart told the other unregistered nurse to go and get Matron Robson who at the time lived in a cottage attached to the hospital. Mrs Reid does not recall a doctor attending to see the patient after the death. To the best of her recollection, the routine that the nurses undertook did not change in any way following the death. From her discussion with other staff at Chelmsford, Mrs Reid was aware of four other patients that had died in the sedation ward whilst she was employed at Chelmsford.
Mrs Reid recalled an incident when a patient escaped from the sedation ward. Mrs Reid stated that she was told by another nurse that there was a patient missing and that the police had brought the patient back to the hospital after finding him naked on Pennant Hills Road with a Ryles tubes hanging out of his nose.
Following her time at Chelmsford, Mrs Reid worked at Mount Carmel Hospital in the operating theatre for eight years. She then worked in pathology for approximately 25 years as a nursing and public relations manager. In hindsight and considering her training and experience since Chelmsford, Mrs Reid considers DST as practised at Chelmsford was unreasonably dangerous. In Mrs Reid’s view the patients should have been nursed in intensive care unit type conditions with one nurse per patient, doctors on site, and full resuscitative equipment available.
In her oral evidence Mrs Reid said observations were done every four hours, not every half hour. Incontinent patients were changed during the four hourly routine observations. As she put it:
If there was no need to check them for – in between the four hours, they weren’t checked. We just looked – just give them their treatments, their cleaning, their pulse, and doing their blood pressures, and doing their Sustagens, and turning them over. And more often than not, that was when we changed, and if they were wet – if they weren’t wet, we didn’t change them.
Patients were occasionally restless nearing the end of their four hour sedation period but she never heard any of them talk. If they were being lightened out of sedation to go to the general ward at the end of their treatment they would be more restless. She said that under DST the patients were basically in a coma.
She gave this evidence:
The consent forms should have been in the normal papers that we had access to, the TPR charts and all the nurses writing, etcetera etcetera. It all should have been in one place.
And you don’t remember seeing that, is that right? ---No.
She said she did not recall lesser does of Tuinal being given and believed patients were routinely given the maximum dose of 400mg (two tablets) every four hours. She recalled Dr Bailey not allowing the dose to be decreased even if the Sister wanted to. She described Dr Bailey as “a terrible terrible person and [he] did some terrible things to people”. She said:
Well, all I know, I will tell you this. Hornsby Hospital hated our guts because we were always relaying patients up to there with pneumonia and God knows whatnot, because they weren’t looked after adequately, as far as their breathing was concerned.
She said that if patients were given lesser doses of Tuinal it would have occurred rarely. Urine output could not be measured other than by the number of times the patient had wet themselves. It was very rare for a patient to open their bowels under sedation. It was absurd to suggest patients were left in their own faeces while under sedation as it was rare for the patients to open their bowels. She thought the equipment available was inadequate but had never needed to resuscitate a patient. She said:
We didn’t have any drugs it might have been pertinent to the situation. They were out in the drug cupboard out in another room, as in drugs that they used to – resuscitation, to re-start the heart, we didn’t have any of those at hand. We had a sucker and an oxygen cylinder. That was it.
She said it was the general consensus of the staff that patients were not examined adequately before they were admitted and given the deep sedation.
I do not accept the applicants’ submissions that as an untrained nurse Mrs Reid’s observations are irrelevant. I accept her to be a witness of truth who gave generally accurate evidence of her recollections and views from the time she worked at Chelmsford. I accept her evidence that early on in her time at Chelmsford she assumed DST was a healing treatment but also accept her evidence that she changed her mind while working there and before the Royal Commission.
4.2.2Julie Bothman
Ms Bothman was employed as the matron at Chelmsford from about 10 August 1976 to 13 January 1977. Ms Bothman qualified as a general nurse at Bathurst Hospital in 1966, obtained an obstetrics certificate in about 1968 and a psychiatric nursing certificate in about 1970, and prior to her employment at Chelmsford worked in private hospitals for about five years, then as a nursing educator in 1975. After Chelmsford, Ms Bothman continued to work as a nurse educator between 1977 and 1991, and then in palliative care community services, until her retirement in 2013.
At Chelmsford Ms Bothman worked Monday to Friday between about 8am and 5:30pm, and was also on call for emergencies outside usual work hours. She said that at that time there were about 40 beds in the hospital, about 30 of which were allocated for non-sedation patients. Ms Bothman’s duties covered the nursing operations of the entire hospital, including co-ordinating nursing and support personnel, co-ordinating chemist orders and supplies, providing general nursing to non-sedation patients and assisting doctors to administer ECT, and discussing patient care with families. Ms Bothman said that prior to commencing her employment at Chelmsford she was not given any training by a doctor in how DST was to be administered and was not aware of any training program for nurses prior to commencing work in the DST ward.
Ms Bothman’s evidence was that during the morning shift, herself, one registered nurse and one nurses’ assistant were in the DST ward; during the evening shift, one or two registered nurses and one or two nurses’ assistants were in the whole hospital; and during the night shift, one registered nurse and one nurses’ assistant were in the whole hospital.
She said that the registered nurses at Chelmsford either had a general (physical care) nursing certificate or a psychiatric nursing certificate, but not many had both, and that she considered that given the condition of the patients in the DST ward all nurses providing them care should have held a general nursing certificate.
Ms Bothman’s evidence was that every four hours staff in the DST wards attended the patients’ eye and mouth hygiene and skin care, repositioned patients from side to side, and checked patients’ temperature, pulse and respiratory rate and recorded their findings. She said that patients were usually fed Sustagen or orange juice at the same time as medication was given through the Ryles tube. Ms Bothman said that records for each DST patient included the “Day Book” which recorded any issues noted by the registered nurse on each shift, observation charts, medication charts, and daily fluid balance charts (which, I note, recorded the number of times the patient passed urine and not the amount of urine passed as this could not be measured given the patients were not catheterised and were wetting the bed). The nurses’ notes recorded contemporaneous observations made by the nurses, instructions given by a doctor, and any treatment administered by the nurse or a doctor. Ms Bothman also recalled an exercise book where the names of patients having ECT were recorded.
She said that during her time at Chelmsford, “there was never a doctor regularly on duty and there was not always a doctor present at the hospital.” During the first few months of her employment she recalled Dr Bailey visiting about once a week, and later not at all. Mr Herron routinely visited Chelmsford three times a week and on those occasions he administered ECT to DST patients, and that when a nurse had a concern with a patient he gave directions for care over the phone then made a follow-up visit shortly afterwards. Dr Gill visited Chelmsford several times a week for short periods and cared for other doctors’ patients, although by the end of her time at Chelmsford had care of several of his own geriatric patients.
Dr Gill’s actions organising admissions, dealing with staff and pay, reporting to the health department, and organising equipment and maintenance, gave Ms Bothman the impression that he was responsible for the running of the hospital.
She said that DST involved the following steps with respect to a patient:
a)be admitted to the General Wards where they were given an initial administration of barbiturates by a registered nurse, which was usually an injection of Sodium Amytal;
b) once unconscious, be moved to the Sedation Wards;
c) have a Ryles tube inserted by a nurse through the nose to the patient’s stomach;
d)be kept sedated for approximately 10 to 14 days in the Sedation Wards due to the registered nurse on duty administering to the patient a combination of drugs … including Tuinal tablets every 4 to 6 hours, Neulactil tablets twice a day, and Serenace tablets twice a day, as well as Cogentin injections, Sodium Amytal injections, Atropine and Placidyl tablets when required. The registered nurse dispensed the medications, which were mixed with water and given either by the registered nurse or nursing assistant under direction via the Ryles tube;
e)while sedated, be given ECT by either Dr Herron or Dr Gardiner … usually … every day except Sunday;
f) be lightened from sedation by the administration of:
i. Hylodorm Sustrels;
ii. Neulactil;
iii. Tuinal; and
iv. Magadan.
g)while still unconscious, be bathed and dressed by a nurse before being transferred to the General Wards; and
h) recover from Sedation Treatment in the General Wards.
She said that “before and since I worked at Chelmsford, I have never seen barbiturates prescribed in such large quantities, or in the same combinations” and that she was instructed by Dr Bailey and nursing staff at Chelmsford to sedate DST patients to “a deep level of unconsciousness where they only responded to pain.” She recollected Dr Bailey and Mr Herron treating patients for “diagnoses including depression, personality disorders, schizophrenia and drug addiction, alcoholism and anxiety states”, that “regularly patients were admitted …[and] Sedation Treatment commenced without the treating doctor being present at the hospital,” and further that she could not “recall any occasion when I observed Dr Bailey physically examine a patient at Chelmsford before the commencement of Sedation Treatment … [and was] also aware that Dr Herron’s patients were not always physically examined at Chelmsford prior to the commencement of Sedation”, which caused her concern.
She said that due to their tolerance for barbiturates, drug addicts required “higher doses of the drugs … than patients without a history of drug issues to reach the level of sedation expected by Dr Bailey and Dr Herron” and that this caused her concern, as the “higher doses of barbiturates … put more stress on their respiratory system and meant that the line between deep sedation for a drug addict and death became relatively close”.
She said she recalls “seeing the occasional Sedation Treatment patient with restraints on their wrists” but could not recall seeing any patients with restraints on their ankles. She was told by “nurses in the Sedation Wards that restraints were used when Sedation Treatment patients became restless and thrashed around in bed to prevent injury or pulling out intragastric Ryles tube.”
She said that the sedation medications were given in accordance with a standard medication sheet, which were pre-signed by Dr Bailey and Mr Herron in bulk and entered into a patient’s file by nursing staff upon admission. She accepted that she had not given this evidence to the Royal Commission and had said only that she could not recall Mr Herron having patients undergoing sedation. She explained that:
Dr Herron’s use of sedation, when I first started, I don’t remember him having any patients in sedation. But after the Audrey Francis hearing, there were patients of Dr Herron’s came in after the hearing, and the reality was the treatment charts were signed by either Dr Bailey or Herron. But if there wasn’t one there that had Dr Bailey’s signature on it, then the nurses would use one that was signed by Dr Herron. So it was just a supply of treatment sheets in the drawer, and you just picked up the top one, and then put the patient’s name in it. So the signature was the – of either of them, could be on that sheet, and it would be activated for that patient that was coming in.
She said that she did not recall “any consideration by either a doctor or a nurse of an individual patient’s age, physical or emotional condition, medical history or size” prior to the determination of their sedation regime. Ms Bothman gave evidence that she was concerned by this due to the depressive effects on brain, heart and respiratory function caused by the barbiturates used, the fact that they were addictive, and that they had different effects on patients depending on their physiology. She agreed that nurses took a history from the patient on admission and administered tests and made observations. She thought the nurses did a pretty good job with respect to admissions.
She said that the matron and nursing staff were expected to exercise a large amount of discretion in relation to the sedatives administered, as the medication sheet set a wide range of dosages for many of the drugs. Tuinal, the main barbiturate medication, was to be administered four to six hourly. A number of medications were to be given “as required”. There was not always a doctor present who was familiar with DST and its administration. Dr Bailey gave nursing staff instructions to sedate patients to a level of unconsciousness so that the only thing they could feel was pain. She said she:
…observed that nursing assistants were expected to assess the medical condition of Sedation Treatment patients and make decisions about whether or not a registered nurse or doctor should be contacted … Based on my experience … I formed the view that this amount of responsibility was far above a nursing assistant’s level of training regardless of how long they had been working in the Sedation Wards. I was particularly concerned about the nursing assistants on the evening and night shifts when there was less supervision and help available.
She agreed that some of the nurses erred on the side of caution within the confines of the pro-forma treatment sheet and prioritised the safety of the patient. She said one nurse in charge of the sedation ward, however, always complied with Dr Bailey’s instructions about the required deep level of unconsciousness of the patient.
She said that she was given “strict orders that patients were not allowed to have visitors while they were in the Sedation Wards. I cannot remember who gave those instructions, but they applied to all patients regardless of the treating doctor.” She said:
I had never seen patients being sedated to that level, that they weren’t allowed to have visitors, and so that to me was not normal, no. And – and some of the – some of the families got quite upset about that, not being able to see their – the patient during that period of time, because if it was days, that’s a long time to have someone in hospital and not be allowed to visit.
…
And I want to suggest to you that you were not told that there was some rule or edict about visitors in the sedation ward?---No, I refute that. I definitely was told.
Her concerns about DST included the following:
(1)“that it was safer to feed patients through an IV rather than through a Ryles tube to reduce the risk of choking … [and] meant that the amount of fluids that a patient received could be accurately monitored”;
(2)“I remember observing Sedation Treatment patients with urine or faeces in their beds. When patients were incontinent nurses changed their linen. As the patients were not catheterised there was no way for nursing staff to measure the exact amount of fluid discharged by a patient … [which] was important to know … [as] a method of monitoring a patient’s renal function”;
(3)“it was inadequate record keeping to only keep four hourly charts, even when correctly filled in, because a patients’ condition could change so much within a four-hour period”;
(4)on many occasions Dr Bailey promised he would visit Chelmsford to examine a patient about whom Ms Bothman had a concern, but did not; and on several occasions Dr Gill attended Chelmsford to examine a patient but “took little notice of what I had to say about the patient’s condition”, so that Ms Bothman began to call another private doctor to attend, but “there was at least one occasion that I recall needing a doctor urgently and [that doctor] was not available to attend … because he had his own private patients to see”;
(5)the risk of infection due to the use of one suction machine on all DST patients. The suction machine was used frequently to remove fluid build-up in sedated patients’ lungs, but in the event of a patient experiencing risk of respiratory distress, was also required to be used immediately on that patient without time for it to be properly sterilised. Ms Bothman said that on one occasion, her observation of the pathology results of a number of patients with chest infections led her to believe that the suction machine had transferred staph aureus bacteria between patients and had infected the ward, and subsequent testing of the ward showed significant rates of staph aureus bacteria, particularly in the sucker machine. After these events Ms Bothman told Dr Gill she considered more suction machines should be purchased, but she is not aware of this ever occurring;
(6)the emergency resuscitation equipment, which when she started her employment at Chelmsford was located on a tray outside DST ward in the clinic room, around the corridor and required a key to access (Ms Bothman organised to have this moved into the DST ward), and the drugs available to be administered in the event of a cardiac arrest which were out of date (which she organised to be replaced); and
(7)there was no x-ray machine or blood/gas analysis machine at Chelmsford, which concerned her as “a doctor or nurse can only determine so much about [the patients’] condition through observing their symptoms and will often require further investigations … in order to make a diagnosis. The speed with which a diagnosis is made is very important … patients had to be transferred to a public hospital for scans or other investigations, thereby delaying treatment of any complications.”
Ms Bothman raised concerns about DST with Dr Bailey who said that:
Sedation Treatment is used overseas. It has an 85% success rate. Dr William Sargant uses Sedation Treatment in England with great success. Patients must be sedated sufficiently so that they do not respond to verbal stimulus, only pain stimulus. This level of unconscious state is necessary for my patients.
She believed Dr Sargent used shorter periods of sedation and that the sedation was nowhere near as deep as in DST. She said that after this she made complaints to Dr Gill about the use and quantities of medications in the DST treatment, the frequency of ECT given, the lack of (proper) examination of patients before DST treatment commenced, and the amount of medical staff with adequate training present at Chelmsford. She found Dr Gill’s response inappropriate as he would seem to be highly amused and laughed or brushed it off and said words to the effect of: you are overreacting, you are not familiar with the treatment and do not understand. The doctors know best. I think the staffing is adequate, I am only a phone call away. She rejected the suggestion these conversations with Dr Gill did not occur, saying:
He was really the only person … he was the owner and the administrator and my employer, and I … felt he was the only person that I could say these sort of things to openly, at that time.
…
A general discussion about what I was worried about? I felt that was more – very appropriate to talk to Dr Gill about. I don’t know that I even mentioned specific patient names to Dr Gill, but certainly about the sedation and what was happening in there, and the risk of what could happen.
Her relationship with Dr Bailey and Mr Herron was also strained due to her complaints about DST and ECT at Chelmsford and patient care.
She said that she overhead conversations between other nurses about deaths that had occurred at Chelmsford, and “was struck by the number of deaths that had occurred … From my experience, it was uncommon for there to be a large number of deaths at a psychiatric hospital. I became increasingly worried about what I had heard.” As a result of this concern, Ms Bothman accessed and read the hospital’s death certificate book and she recalled that the causes of death recorded there “included coronary occlusion, myocardial infarction, pneumonia and coronary disease. I do not know whether all of these patients were treated with Sedation Treatment.” This was concerning to Ms Bothman as, in her experience in psychiatric nursing at other hospitals, “deaths in hospital were uncommon except for the occasional suicide and old age.” After this, Ms Bothman formed the view that “the patients at Chelmsford were dying at a young age and that the causes of death were unusual for persons of those ages and for a psychiatric hospital.”
She said that it was very common for DST patients to develop complications including pneumonia and other chest infections, DVT (deep vein thrombosis), urinary tract infections and bowel impactions. She said that:
…a few months after I started working at Chelmsford … due to my concerns for the health of the patients, I instructed the nurses who worked in the Sedation Wards that where a patient’s temperature rose to over 37.5 degrees nurses were to stop administering medication, lighten the patient out of sedation and move them to the General Wards. I gave that instruction because I had formed the view based on the responses to the concerns I raised … that Dr Bailey, Dr Gill and Dr Herron did not perceive the risk to patient safety caused by elevated temperatures.
When she notified Dr Bailey of her intention to lighten a patient’s sedation he ordered that she maintain the patient’s sedation, or if she did not notify him before lightening he would direct another nurse to re-sedate the patient.
She had significant concerns about consent issues at Chelmsford. She said:
I understood that it was Ms Sansom’s [the receptionist’s] responsibility to get the patient to sign the ECT consent form [upon admission] and I observed her do this … To the best of my recollection the admission sheet did not require patients to sign their consent for Sedation Treatment … From speaking to patients, reading the Nurses’ Notes and my conversations with Dr Bailey, I formed the view that a lot of the patients admitted to Chelmsford for Sedation Treatment and ECT did not know that they were to have those treatments and did not know what Sedation Treatment nor ECT entailed. I recall several occasions when I called Dr Bailey to inform him that his patient had arrived at Chelmsford and he told me not to tell certain patients that they were going to have Sedation Treatment or ECT … I think for a short period I did follow his instructions despite my reservations … I was also aware from speaking to nurses at Chelmsford that Dr Bailey had told them, if a patient refused to sign the consent for ECT form or was not to be told that they were having Sedation Treatment, a nurse was to say to the patient words to the effect of: Here is some medication to help you relax. You will feel a lot better after it, and then give the patients Valium tablets. Once the patient was drowsy, the registered nurse or matron administered an injection of Sodium Amytal to the patient and he or she was transferred to the Sedation Wards.
…
…some of the patients replied with words to the effect of: The treatment has not previously been fully explained to me by [Dr Bailey or Dr Herron], or, My doctor did not tell me that I was going to have sedation. Some of those patients agreed to be admitted. Some of those patients said words to the effect of: I don’t want to be admitted. Please call my relative/friend and ask them to come and take me home. When this occurred, I remember calling a cab, at the patient’s request, to pick up the patient and contacting the patient’s family by phone … On these occasions, I did not notify … Dr Bailey or … Herron.
She rejected the suggestion that the patients were so psychologically incapacitated that they did not know what was going on. She said they were voluntary patients. It took her a while to realise just how little the patients knew about what was happening. She did not believe that patients were given “a detailed description of the fact that the patient was going to be unconscious for 10 days and at such a deep level. And that they [would] be having that number of ECTs. I don’t think that was happening.”
She was concerned about ECT at Chelmsford. In her psychiatric nursing experience prior to Chelmsford, ECT was given two or three times in total except in severe cases, and during ECT there was always an anaesthetist, psychiatrist and several nursing staff present, and sometimes a second doctor, when the treatment was administered. The standard procedure was:
a) all voluntary patients provided signed consent prior to treatment;
b) the patient fasted for at least 6 hours before ECT was administered;
c)the anaesthetist gave the patient an injection of muscle relaxant and sedation (or general anaesthetic);
d) an airway was inserted into the patient’s mouth and tongue if required;
f)a few puffs of oxygen were given to the patient prior to the administration of ECT;
g) ECT was administered to the patient;
h) the psychiatrist observed the seizure caused by the ECT;
i)the doctor assessed the patient’s condition after ECT and provided oxygen and suction as required until he or she started to recover;
j)the patient was positioned on his or her side, in what is referred to as the unconscious position, to maintain respiration;
k) the patient woke gradually;
(l)nurses checked on the patient’s recovery and took observations until the patient was awake enough to sit up in bed and be aware of his or her surroundings; and
(m) the patient was given fluids and light refreshments.
They referred also to Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 (2GB) at 63:
A fair report is a substantially accurate summary of the proceedings, neither more nor less. The question is not whether it is fair or unfair to any particular person; the question is whether it substantially records what was said and done.
Further, they referred to Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37; (1998) 193 CLR 519 at [42] that:
It is well settled that to be fair and accurate, a report need not be a complete report of the proceedings in question. Nor need it be accurate in every respect. It must, however, be substantially accurate. And the question whether it is substantially accurate is a question of fact…
In Cook v Alexander [1974] 1 QB 279 at 288 Lord Denning MR said:
In these days the debates in Parliament take so long that no newspaper could possibly report the debates in full, nor give the names of all the speakers, nor even summarise the main speeches. When a debate covers a particular subject matter, there are often some aspects which are of greater public interest than others. If the reporter is to give the public any impression at all of the proceedings, he must be allowed to be selective and to cover those matters only which appear to be of particular public interest. Even then, he need not report it verdant in word for word or letter by letter. It is sufficient if it is a fair presentation of what took place so as to convey to the reader the impression which the debate itself would have made on a hearer of it.
In Feldman v Nationwide News Pty Ltd [2020] NSWSC 26 at [212] Campbell J said:
In Cook v Alexander [1974] 1 QB 279 Lord Denning MR rejected the proposition that for a report of Parliament to be fair and accurate, there needed to be a precis of the whole proceedings or debate.
Other decisions also confirm that a report may relate to part only of a proceeding: Sands v Channel Seven Adelaide Pty Ltd & Anor [2010] SASC 202 at [135]-[142], Nationwide News Pty Ltd v Moodie [2003] WASCA 273; (2003) 28 WAR 314 at [75]-[79]; 2GB at 62-63.
The respondents accepted that a report is required to indicate, expressly or impliedly, that it is a report of the proceedings. In Rogers v Nationwide News Pty Ltd [2003] HCA 52; (2003) 216 CLR 327 at [18] Gleeson CJ said:
Matter does not constitute a report of proceedings merely because it repeats information obtained from those proceedings. To take an example from Grech v Odhams Press Ltd [[1958] 2 QB 275 at 285], if a statement made by a witness in a proceeding is fairly and accurately reported, and attributed to the witness who made it, then the protection may be attracted; it would be otherwise if, without attribution to the witness or the proceedings, the substance of the statement were merely repeated. The importance of attribution, and the making of what purports to be a report of proceedings, as distinct from the mere repetition of information that emerges in the course of proceedings, is illustrated by Burchett v Kane [[1980] 2 NSWLR 266.]. The requirement of attribution does not necessarily require direct quotation and acknowledgment; but it must appear that the published matter bears the character of a report of the proceedings in question. It is not enough that the proceedings are a source of information, or the subject of an expression of opinion.
The applicants referred to Burchett v Kane [1980] 2 NSWLR 266 at 273 to the effect that a report is “factual recounting of an event or situation”, “essentially descriptive of an event or series of events” and “limited to an account of events which have happened”, and does not include the independent comments or opinions of the reporter.
They referred also to the judgment of Mason P in Nationwide News Pty Ltd v Rogers [2002] NSWCA 71 at [10]:
The essential point is that a requirement of attribution places the onus on the reporter to differentiate between the event reported (here court proceedings) upon which the reporter’s privilege is derivative, on the one hand; and background information, statements of fact or the reporter’s own commentary, on the other hand. The reader is thus enabled to assess and weigh the information by recognising its various sources. Since, ex hypothesi one is dealing with defamatory material it is not unreasonable to require such discrimination.
The applicants referred to Macquarie Radio Network Pty Ltd v Dent [2007] NSWCA 261 at [72] that:
In circumstances where a later publication adds, in a significant way and without sufficient differentiation, to the material that is contained in the protected report, it is not sufficient for there to be a mix of material, some of which accurately and fairly summarises what is in the ‘protected report’ and some of which does not.
The applicants submitted that similar considerations must apply to the fair summary defence in s 28. That is, the matter must bear the character of a summary of a public document. Accordingly:
This means that (a) there must be attribution to the relevant public document, and it is not sufficient that the document is merely a source of information; and (b) the admixture of substantial extraneous material without sufficient differentiation from the information derived from the relevant public document deprives the matter as a whole of the quality of a fair summary.
12.2 Competing submissions
The respondents submitted that the matter complained of heavily references the evidence given in the Royal Commission and the Royal Commission report both in end notes and in the text of the Chapter. The ordinary reasonable reader will read the entirety of the matter including the end notes with greater care and attention than the reader of a newspaper. According to the respondents:
Having regard to the numerous footnotes that link to evidence and findings of the Royal Commission, the ordinary reasonable reader would conclude that insofar as the chapter dealt with the matters the subject of the Royal Commission, what was being reported in the chapter was a summary of the Royal Commission report and proceedings.
The respondents noted that after describing Mr Hart’s treatment the Chapter proceeds to the key pp 179-180 describing Chelmsford and all but one of the end notes is to the Royal Commission report. The story of the mounting death toll is plainly based on findings in the Royal Commission report that 24 people died which is noted at p 177 and p 192. This is confirmed by the statement on p 192 that:
While the report exposed the truth about deep sleep therapy and how it was practised at Chelmsford it never quite got to the bottom of the role the Church of Scientology played in exposing it.
The ordinary reasonable reader would understand that “truth” to be the material on pp 178-179 about the practice of DST at Chelmsford.
As such, the respondents submitted that:
For those reasons, the ordinary reasonable reader would have understood the chapter to be, in all relevant respects, a report of the evidence given to the Royal Commission and a summary of the Report itself. The next question is, then, whether it is a fair and accurate summary of the relevant sections of the Report.
The respondents submitted that each of the statements in the Chapter is supported by the findings of the Royal Commission.
As to the deaths at Chelmsford, footnote 11 is to Vol 4 p 26 of the Royal Commission report which stated:
The outstanding feature of the series of DST deaths is the preponderance of youthful people. Eleven of the 24 deaths were under the age of 40, and 16 were under the age of 50. The mean age at death was 42.3, with a median age of about 45 years. This is grossly abnormal by comparison with the general mortality data in Australia.
On the preceding page, the Royal Commission report said:
The Royal Commission has concluded that there were at least 24 deaths caused by DST.
The respondents noted that:
Other material in the Report containing details of the number of deaths and the types of death which arose are addressed at Vol 1, pp50, 175-176 (OTH0008) and Vol 4, pp25-26, 29-30 (OTH0006). Each of the deaths referred to by the Royal Commission was the subject of an individual chapter in Volume 4 (OTH0006).
The respondents submitted that other key examples involved a summary of the Royal Commission’s findings, including:
(a)The treatment of Barry Hart and his physical condition after treatment at Chelmsford is addressed at Vol 3, p111-112 and 228: OTH00009 (RTB11);
(b)The secretive nature of Chelmsford, including the lack of communication with families is addressed at Vol 1, p58, pp169-174: OTH00008 (RTB10);
(c)The position of the nurses at Chelmsford is addressed at Vol 1, pp51, 128, 163, 168; Vol 2, p29; Vol 3, p112: OTH00008 (RTB10), OTH00014 (12) and OTH00009 (RTB11);
(d)The question of falsified death certificates is addressed at Vol 1, p51; Vol 4, p11: OTH00008 (RTB10) and OTH00006 (RTB10);
(e)The question of fraudulent claims on health funds is addressed at Vol 6, p210, p212: OTH00010 (RTB11).
The applicants submitted that the Chapter commences with the story of Mr Hart which was not sourced to the Royal Commission findings. The Chapter then moves on to Chelmsford before returning again to Mr Hart. The applicants noted:
Out of the 17 full paragraphs in pages 176-179 of the book, 14 are based on sources other than the Royal Commission transcript, evidence or report. Of the endnotes for this section, 11 out of 18 cite sources other than the Royal Commission transcript, evidence or report.
Pages 180-192 concern how Chelmsford came to the attention of the public and to the ultimate establishment of the Royal Commission. The applicants noted:
This part of the chapter includes only six endnotes citing the Royal Commission report, only 22 endnotes citing transcript or statements from the Royal Commission, and 52 endnotes from other sources.
The applicants submitted:
Of the remaining 62 endnotes to the chapter, only five cite the Royal Commission report and only nine cite Royal Commission evidence. The Royal Commission itself is first mentioned in the body of the chapter on page 192.
The Chapter then discusses the evidence given by Ms Nicholson at the Royal Commission.
The applicants submitted:
Most of the chapter was based on information derived from independent sources. For example, the material about Barry Hart is based on information sourced from Mr Hart himself, including his own unpublished manuscript, his interviews with the second respondent, his 60 minutes interview and a speech he gave. Significant portions of the chapter were also based on an unpublished manuscript by Susan Geason. The second respondent wrote significant parts of the chapter based on interviews he conducted with Barry Hart, Marcia Fawdry, Ron Segal, Margaret Como, Peter Marsh, a relative of Rosa Nicholson, Pat Griffin, and Anthony McClellan.
The applicants described the Chapter as involving a qualitatively and quantitatively significant admixture of material from various sources, noting that 18 of 160 citations are to the Royal Commission report and 31 of 160 citations are transcript or evidence from the Royal Commission.
The applicants noted that with the exception of p 192 (quoted above), no factual claims are attributed to the Royal Commission transcript, evidence or report within the body of the Chapter. As they put it:
Instead, all of the information, from whichever source it was derived, is woven into the text in the same literary style. The lack of attribution within the body of the text means that there is no linguistic or stylistic differentiation between material derived from other sources, the material derived from the Royal Commission report, or the material derived from the Royal Commission proceedings.
The applicants submitted that the fundamental issue is that the matter complained of does not purport to be a report of the Royal Commission’s proceedings or a summary of its final report. Rather, it is an historical narrative of the Church of Scientology’s involvement in bringing practices at Chelmsford to public attention. The matter complained of is thus primarily about what happened in the background of the Royal Commission. It is not concerned with what happened at the Royal Commission (s 29) or what the Commissioner found in his final report (s 28).
The applicants noted that while it may be accepted that a publication may be expressed in such a way as to make clear that it is a report, including in summary, of only part of proceedings or of a public document, this provides no assistance to the respondents in the present case. As they put it:
That does not remove the need for the publication to be characterised, objectively, as a report. Where it is, by reason of its subject-matter, not able to be so characterised, it matters not that it contains references to proceedings or a published document, especially where those are intermixed with other material.
12.3 Discussion
I agree with the applicants’ submissions.
The Chapter does not purport to be a report or summary of the Royal Commission proceedings or report. The fact that the Royal Commission report is one of the major sources of the Chapter does not transform the Chapter into something which it does not purport to be. The Chapter is not reporting on or summarising the Royal Commission report. It is telling a story about the hitherto unknown role played by the Church of Scientology in exposing Chelmsford and ensuring that it was the subject of investigation which ultimately culminated in the Royal Commission. In telling that story it was necessary to explain why Chelmsford needed exposure and, in that regard, Mr Cannane used the Royal Commission report as one of a number of sources (albeit clearly a principal source) to describe DST at Chelmsford.
As the applicants submitted, the Chapter is an admixture from various sources, but particularly the Royal Commission, all conveyed in the same literary style. The ordinary reasonable reader would not understand that they were reading a report or summary of the Royal Commission report. The fact, which I accept, that they would read the Chapter including the end notes with some care would not have the effect of conveying that they were reading a report of the evidence given to the Royal Commission and a summary of the report itself. Nothing in the text of the Chapter would suggest this to the mind of the ordinary reasonable reader. The Chapter simply does not bear the character of a report or a summary of the Royal Commission evidence or report.
In this regard, it is particularly relevant that there is no distinction in style between parts of the Chapter which are sourced to the Royal Commission report and those which have different sources. The Chapter starts with Mr Hart’s story which is not sourced to the Royal Commission. It interweaves in that story facts which are sourced to the Royal Commission report but there is no distinction in style between the different components. The facts do not purport to be a summary of the Royal Commission report. They are used as part of the story that is being told about Mr Hart. The same interweaving of the story that is being told with findings from the Royal Commission continues throughout the Chapter. None of the findings of the Royal Commission are presented as such. They are presented as facts – reflecting that what is being done is the telling of a story which happens to use the Royal Commission report as a major source.
There is a difference between using a public document or public proceeding as a source along with multiple other sources for the purpose of telling a story and providing a report or summary of a public document or public proceeding. The Chapter is an example of the former, not of the latter.
For these reasons the defence under ss 28 and 29 must fail. This said, however, I do not accept that the use made by Mr Cannane of the Royal Commission report was unfair. I also do not accept the applicants’ contention that the defamatory matter was not published honestly for the information of the public or the advancement of education. The applicants relied on their submissions with respect to s 30 to support this contention but for the reasons already given I do not accept the applicants’ submissions about s 30.
13. DAMAGES
For the reasons given above the applicants’ claims must be dismissed. If I am incorrect in these conclusions then the reputation of the applicants would be a matter relevant to the assessment of damages.
As the respondents noted:
(1)the evidence of bad character must relate to the “sector” of the applicant’s reputation with which the imputations relied upon by the applicant were concerned: Chau Chak Wing at [94], Australian Broadcasting Corporation v McBride [2001] NSWCA 322; (2001) 53 NSWLR 430 at [16]-[23], and Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335; (2010) 278 ALR 232 (Mahommed) at [162];
(2)the evidence can encompass publicity in respect of matters of sufficient notoriety: Singleton v John Fairfax & Sons Ltd (No 1) [1983] 2 NSWLR 722 (Singleton) at 724 as follows:
There can, in my view, be no doubt that a person’s reputation could be tarnished by a particular fact which is of sufficient notoriety. A recent example would perhaps be the report of the Royal Commission conducted a short time ago by the Chief Justice and the publicity which was accorded to the report, which together must surely have detrimentally affected the reputation of the former Chief Stipendiary Magistrate, Mr Farquhar, in a settled and not merely a transitory way so as to show that his reputation in the relevant sector was a bad one. If that is the sort of evidence that Lord Radcliffe had in mind, I would not deny its admissibility upon the issue of reputation…;
and
(3)a defendant can rely in mitigation on evidence which is properly before the court such as evidence directed to the defence of justification: Pamplin v Express Newspapers Ltd [1988] 1 WLR 116 (CA) at 120A-E, Chau Chak Wing at [92], Holt v TCN Channel Nine Pty Ltd [2014] NSWCA 90; (2014) 86 NSWLR 96 at [26], and Zunter at [50].
The applicants contended that the respondents had not pleaded reliance on the Royal Commission report as relevant to reputation. As the respondents submitted, however:
In both defences, the Respondents rely, in respect of mitigation of damages, upon … ‘the Applicant’s bad reputation amongst colleagues and the community’ ([9(c)] of each Defence) and the ‘facts matters and circumstances proven by the Respondents in evidence in support of the truth, contextual truth, honest opinion and qualified privilege defences’ ([9(b)] of each Defence). One of those matters, relevant to the qualified privilege defence, is the publication of the Royal Commission Report. It was obvious from that pleading that the publication of the Royal Commission Report was a matter upon which the Respondents would rely.
The hearing was conducted on that basis. That can be seen from the exchange at T53.9-54.29 when Senior Counsel for the Applicants first objected to questions being asked of Dr Gill about the Royal Commission Report. Those questions were allowed, including because they were relevant to reputation.
The applicants contended that the Royal Commission report was not admissible as evidence of the applicants’ reputation and the only authority on which the respondents relied, Singleton at 724, should not be applied as it was mere obiter dicta, made in the course of an ex tempore decision, is expressed tentatively, and is confined to a recent report. As the respondents submitted, however:
In circumstances where the events at Chelmsford are recognised by the Chief Justice of the Supreme Court (DPP v Gill [1993] NSWCA 84; Ex 3, pg. 1) and the High Court of Australia (Walton v Gardiner (1993) 177 CLR 378 at 382) as ‘notorious’ for many years, that clearly affects the reputation of the Applicants.
Further, in Mahommed the NSW Court of Appeal held that the principle established in Goody v Odhams Press Ltd [1967] 1 QB 333 at 340-341 per Lord Denning MR, that criminal convictions could be taken into account as affecting reputation, extended to findings in civil proceedings (and included findings that occurred after the date of the defamation). At [254] in Mahommed this was said:
In my view, such findings, if relevant in the senses already discussed, should be admissible. Save as to the standard of proof, they appear otherwise to stand on much the same footing as convictions: they took place in open court and can be regarded, accordingly, as matters of public knowledge. The tribunal of fact should not be kept in the dark about the plaintiff’s reputation at the time it comes to consider the award of damages.
I am not persuaded by the applicants’ submissions that the Royal Commission report is inadmissible in relation to the applicants’ reputation. The report has stood unchallenged for decades. It is a notorious part of the social history of New South Wales. I consider it admissible for the purpose of assessing the applicants’ reputation. The same conclusion applies to the findings of the Medical Tribunal in Tweedale v Herron. As the respondents said:
The Medical Tribunal as then constituted may not have been a court, but it had judicial members and the power to deregister medical practitioners. The applicants at AS [191] say that ‘there is no reason to presume that a decision of the medical Tribunal would be a matter of general public knowledge in the same way as a criminal conviction or judicial findings in a civil matter’; their footnoted authority for that proposition is the affidavit of Richelle Herron. The assertion is, with respect, unconvincing. The evidence of Mr Herron was that the finding was widely known in medical circles (T365.9-10).
I also accept the respondents’ submissions as follows:
At AS [194]-[196], the Applicants suggest that the reputation they have come to Court to protect is their reputation as ‘family men and members of their local communities’, and not as medical professionals. That is not how the imputations are pleaded. Each of the imputations is directed to the Applicants as psychiatrists or, in the case of the contextual imputation in respect of Dr Gill, as a doctor.
It is readily apparent why the imputations were pleaded that way: Chapter 14 dealt with Mr Herron and Dr Gill in their roles as medical practitioners at Chelmsford. It makes no comment about their behaviour or character other than as medical practitioners. The defamatory imputations, if they arise, are directed only to matters concerning the Applicants’ activities as medical professionals.
In O’Hagan v Nationwide News Pty Ltd (2001) 53 NSWLR 89, Meagher JA provides the following example, in considering the evidence that might be relevant to reputation:
[T]he evidence must relate to ‘the relevant sector’ of the plaintiff’s reputation. Thus if a plaintiff sues on a libel that he is a dishonest solicitor, it is not to the point that he has a reputation as a good golfer.
A similar analogy applies here. The Applicants have sued upon various imputations relating to their capacity as medical practitioners. Their reputations as ‘family men and members of their local communities’ have nothing to do with it (and appear nowhere in the pleadings).
Given the narrowness of the relevant sector of the applicants’ reputation and the notoriety of Chelmsford in that sector, I do not accept that the findings of the Royal Commission or Medical Tribunal are too old to be relevant to the applicants’ reputation. As the respondents submitted, the Royal Commission’s findings about Mr Herron and Dr Gill as medical practitioners were devastating.
As to Mr Herron, the Royal Commission report said:
(1)“[o]ne would have expected hindsight to elicit from Mr Herron a strong criticism of barbiturate as a sedative agent and probably some recognition that something had gone terribly wrong. His evidence was singularly free of compassion for those who had died or had been damaged. He treated the whole series of deaths and complications during DST as routine and quite acceptable”: OTH0014.91 (RTB 12); and
(2)“[i]t may be that part of his personality may involve a genuine subconscious denial but I cannot accept that is the totality of his position. I think there are large parts where he has deliberately concealed the truth. Indeed in the 29 days of his evidence, he only provided factual information in situations where it was clear the information would be available from other sources. Further when he provided that information, he provided it in a manner which concealed the truth. There were times where his answers became almost incomprehensible. Illustrations of this are set out earlier.
Dr Herron engaged in verbal gymnastics with counsel, playing on words, answering the strict letter of the question rather than what was clearly the spirit, in circumstances where it was misleading. He later admitted that he deliberately took this approach to his evidence. He was manipulative both as a witness and as a person. On many occasions he attempted to draw sympathy to his position by expressions of pathos which I have grave doubts he felt. My impression is that he embarked on a deliberate campaign to conceal as much as he could from the Royal Commission while at the same time attempting to paint a picture of a pathetic and wronged man. He was not so”: OTH0014.101 (RTB12).
As to Dr Gill, the Royal Commission report said:
(1)“Dr Gill was the person who took charge of the campaign against any person who criticised Chelmsford which he saw as his hospital. He carried out campaigns against the nurses, against outsiders, in particular the Scientologists and Health. He had a misguided attitude to confidentiality of documents. If he had been honestly concerned about patients’ welfare, he would have been prepared to discuss the problems at Chelmsford and the records with officers of Health. He took a deliberately obstructive approach to the matter and relied on technical legal rights to defend his position. It is clear to me he believed he and the hospital were vulnerable to attack for wrongdoings which occurred there. I do not believe that he fought these campaigns purely as a matter of principle. I believe that he knew that wrongdoing had occurred and he used every device that he could to keep the matters concealed.
He bullied officers from Health. He was uncontrolled and lost his temper with those officers and also with nurses. He was so convinced of his self-righteousness that at times in the witness box, no facts, no matter how glaringly obvious, could change his beliefs. There were times when his contact with reality in my view was quite tenuous.
…
Dr Gill must bear a large part of the responsibility for the consequences of Chelmsford both in terms of the suffering and sometimes deaths of patients, not merely his own, and in terms of the expense to the people of NSW.
He has contributed to the establishment of this Royal Commission because of his obstructive approach to any inquiry or investigation. His attitude and intransigence has cost society dearly”: OTH0014.131-132 (RTB12);
(2)“[i]n brief, Dr Gill considered his understanding of DST with its cocktail of drugs was adequate to continue with the treatment of John Adams. I do not agree. Without any adequate, professional knowledge of the mode of treatment, its drug regime, its possible complications and risks, Dr Gill relied on the knowledge and experience of Dr Bailey and Dr Herron, followed on behind them, used their regime and subjected his patient, John Adams, to its well documented and serious dangers. Criticism of him is far from ‘misconceived’. He failed to ensure there was close and adequate monitoring of John Adams’ levels of consciousness and of all the other patients who received DST at Chelmsford. He failed to provide sufficient and adequate medical care and supervision for John Adams. There is overwhelming evidence linking and identifying DST as John Adams’ primary cause of death and of many other DST patients at Chelmsford”: OTH0006.231 (RTB10); and
(3)“[i]n summary, Dr Gill was a most unsatisfactory witness. He was prepared to lie when the occasion demanded. He ultimately continued his delusional attacks on innocent people in the witness box in the face of clear evidence that he was wrong. He prepared to involve himself in the falsification or removal of records if his interests were threatened. He showed not the slightest remorse or compassion regarding the deaths of Miriam Podio or John Adams and rejected all criticisms of his role in their management in the face of overwhelming expert opinion of his culpability”: OTH0014.129 (RTB12).
The applicants agreed that the findings of the Royal Commission were widely publicised. As the respondents said:
Mr Herron agreed that the findings had a devastating effect on him and the reputation witnesses in respect of Mr Herron agreed. Dr Gill was unwilling to accept that the findings had a devastating effect, but the reputation witnesses said that they did.
This is consistent with Professor McGorry’s evidence about the notoriety amongst medical circles of the events at Chelmsford. I accept the respondents’ submission as follows in that regard:
In his cross-examination, Professor McGorry agreed that there were some in the psychiatric community who may now be young enough that they do not automatically associate Dr Gill with Chelmsford an what occurred there (McGorry XXN at T1488.10-12). However, it is also apparent from Professor McGorry’s evidence that such a person would ‘very rapidly’ become aware of the link, on enquiry (McGorry XXN at T1488.4-8). The fact that there may be a small number of psychiatrists who do not make the link does not diminish Professor McGorry’s evidence about the psychiatric community as a whole.
The evidence about Mr Herron also included the following as identified by the respondents:
(1)the Hart v Herron trial (in which he was found guilty of assault, battery and false imprisonment) had a devastating effect on his professional and domestic life, such that his practice as a psychiatrist had dwindled;
(2)in December 1986 (during the course of disciplinary proceedings), Mr Herron gave evidence that there was a tendency for no or very few patients to be referred to him when he is on call, for patients to refuse to be referred to him, for GPs not to refer patients to him and for medical practitioners to avoid contact with him at professional gatherings;
(3)in 1997, Mr Herron was found to be a person who was not fit to be a medical practitioner for matters which were not related to Chelmsford. Mr Herron agreed that this was widely known in medical circles but suggested that it was not widely accepted. The latter involves mere supposition which I do not accept; and
(4)the impacts from the Royal Commission had continued because Mr Herron was reminded of it by social contacts.
If it had been necessary to do so, in these circumstances, I would have accepted the respondents’ submission that in the relevant sector of his reputation, as a medical practitioner, Mr Herron has no residual reputation to be protected.
In respect of Dr Gill, Mr Wilkinson gave evidence that:
(1)he knew of no doctor apart from Dr Gill who thought that the medical treatments carried on at Chelmsford were other than discredited and dangerous;
(2)he knew the Royal Commission had made seriously critical findings about Dr Gill;
(3)in the psychiatric community and the medical community generally it was notorious that the practice of DST at Chelmsford, including by Dr Gill, involved the mistreatment of vulnerable patients by the provision of dangerous, non-evidence based treatment;
(4)the behaviour of Dr Gill at Chelmsford is part of a deeply shameful aspect of the history of psychiatry; and
(5)in medical circles, it was believed at the time of the Royal Commission that the practice of DST at Chelmsford was an unethical psychiatric practice.
As the respondents noted, this evidence is consistent with that of Professor McGorry.
As a result, it must be accepted that Dr Gill was held in very low estimation by the relevant sector of society before the publication of the matter complained of. I also accept the respondents’ submission that Dr Gill is mentioned only once in the Book which is a further reason to infer that the effect of the publication of the matter complained of on Dr Gill’s reputation would have been minimal.
Having reached the conclusions that I have, it is neither necessary nor appropriate that I discuss the issue of damages further. My conclusions mean that it is necessary to dismiss both applications.
916 I certify that the preceding nine hundred and fifteen (915) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jagot.
Associate:
Dated: 25 November 2020
ANNEXURE A
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