Shearman and Repatriation Commission
[2005] AATA 964
•3 October 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 964
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2003/1002
VETERANS' APPEALS DIVISION ) Re HARVEY SHEARMAN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr. John Handley, Senior Member Date3 October 2005
PlaceMelbourne
Decision The decision of the Veterans Review Board under review in the proceedings is affirmed save that the diagnosis of post traumatic stress disorder is deleted and the diagnosis of depressive disorder is substituted.
..............................................
Senior Member
VETERANS’ ENTITLEMENTS – operational service – five events alleged as responsible for alcohol abuse and PTSD – Deledio analysis – finding that two events as a fact did not occur – finding that other three events did not amount to experiencing a severe stressor or experiencing a severe psychosocial stressor – decision affirmed.
Constable v Repatriation Commission [2005] FCA 928
Repatriation Commission v Deledio (1998) 83 FCR 82 ; 49 ALD 193
Delahunty v Repatriation Commission [2004] FCA 309
Hill v Repatriation Commission [2005] FCAFC 23
Stoddart v Repatriation Commission [2003] FCA 334
REASONS FOR DECISION
3 October 2005 Mr. John Handley, Senior Member 1. Mr Shearman applies to review a decision of the Veterans’ Review Board (“VRB”) made on 23 July 2003 which affirmed a decision made by the respondent on 10 October 2001 to refuse his claim for acceptance of post-traumatic stress disorder (“PTSD”) and alcohol abuse as being war-caused.
2. Mr Shearman is presently 59 years of age and receives pension at 30 per cent of the general rate with respect to the accepted condition of gastro oesophageal reflux disease. Mr Shearman is married, was formerly a member of the Navy and presently resides in Broken Hill. The hearing commenced in Mildura and concluded in Melbourne where evidence was then heard from Dr Cooper, Dr Strauss and Captain McDonald. Mr Moore of counsel appeared on behalf of Mr Shearman and Mr Douglass appeared on behalf of the respondent. A number of documents were received into evidence and will be referred to in these reasons.
3. In his opening (which Mr Shearman later adopted as forming part of his evidence) Mr Moore said that his client was educated to Intermediate (Form IV) standard at school and left at the age of 16 in 1961 with the intention of joining the New South Wales Police Force. After being a cadet for only a few days, Mr Shearman left the Force and obtained work as a salesman which he undertook until he enlisted with the Royal Australian Navy (“the Navy”) on 5 May 1963. He remained a member of the Navy for nine years until discharge on 4 May 1972.
4. Mr Shearman has been married twice. His first marriage ended in 1976 by reason of the effects of conflict, violence and alcohol. Mr Shearman remarried in 1979 and he has one daughter from that marriage.
5. Mr Shearman obtained self employment in the timber industry in 1972 when he was discharged from the Navy but later obtained work as a chef at the Ryde RSL Club in Sydney and at the Macquarie Hospital in New South Wales. When he remarried, he moved from Sydney to Broken Hill to be close to his wife’s family. He initially obtained employment as a railway track supervisor and inspector with the New South Wales Rail Authority between 1980 and 1987. Thereafter he obtained employment at the Broken Hill Hospital as a cook until 1996 when he resigned. He has not worked since resignation, and has subsequently been in receipt of disability support pension (“DSP”) payments from Centrelink.
6. It was submitted that Mr Shearman had been engaged in operational service on three separate occasions with the Navy being:
(i)Between 11 August 1965 and 3 October 1965. Within this period he served in Malayan and Singapore waters between 11 August 1965 until 25 September 1965 and between 26 September 1965 to 3 October 1965 he served in Vietnamese waters.
(ii)Between 26 October 1965 and 24 December 1965 he then served in Malaysian and Singaporean waters.
(iii)Between 4 January 1966 to 2 March 1966 he served in Malaysian and Singaporean waters.
7. At all times during the above three periods, Mr Shearman was a member of the HMAS Duchess (“Duchess”) which was engaged to support British and Australian forces protecting Malaya during the confrontation with Indonesia.
8. Mr Moore submitted that Mr Shearman was exposed to five stressors during service which were responsible for the development of alcohol abuse and dependence and PTSD. Those five stressors were:
(a)Observing the brutality and abuse of Indonesian prisoners.
(b)Witnessing the distress of a colleague, Michael Chopping, and restraining him from jumping overboard.
(c)Finding the severed head of an Indonesian person in the freezer of Duchess.
(d)A collision between Duchess and a kumpit (sampan).
(e)The passage of Duchess and HMAS Vendetta (“Vendetta”) through the Lom Bok Straits.
9. In evidence, Mr Shearman agreed with the opening delivered by Mr Moore. He said the Duchess was a destroyer class vessel that had been loaned to Australia by the British after the loss of HMAS Voyager. Duchess had 300 personnel and eight cooks of which he was one.
10. Mr Shearman said that whilst sailing in Malaysian waters, Duchess was engaged in “patrol work”, looking for Indonesian infiltrators to Malaysian territories. He said that Duchess was liaising with British vessels and was attempting to locate small vessels which contained ammunition. The role of Duchess in Vietnamese waters was as a support to HMAS Sydney. In later voyages in Malaysian waters Duchess was engaged again in patrols but also to respond to communications from spotters who had been providing target positions for the purposes of shelling infiltrators on land or the shelling of ammunition dumps.
11. With respect to the incidents which he said gave rise to the claimed injuries, Mr Shearman said that Indonesian infiltrators who had been captured were brought to Duchess by a boarding party. Onboard Duchess were Malaysian interpreters who comprised a member of the Malaysian Army and a member of the Malaysian Police Force. The boarding party was made up of the personnel of Duchess. The Malaysian interpreters were waiting on the upper deck of Duchess and the boarding party passed the captured Indonesian infiltrators to those persons. Mr Shearman said the practice was to rip open the pockets of the clothing worn by the Indonesians, and the contents were thrown overboard. They were then asked where they had come from and “if they didn’t get the right answer” the interpreters would “belt them in the mouth with an SLR”. Mr Shearman said that they were struck with the butt of an SLR gun which would break the teeth, jaw or nose of the Indonesians and he said “blood was everywhere”. He said that he observed this on two occasions whilst travelling in the Malacca Straits but had heard that it occurred on every voyage. Mr Shearman said that he had contact with those prisoners after they had been injured and had been detained onboard. He said as the cook he would prepare their meals and on one occasion he delivered food to them. He said that he remembered thinking how they could possibly eat the food with the injuries that they have sustained. He said he also recalled that they did not deserve to have been punished in the manner that they had, that he was disgusted, that it upset him to observe these persons and he continued to be upset by that memory.
12. In cross-examination Mr Shearman referred to a photograph received into evidence as Exhibit G, depicting Indonesian persons being detained and apprehended by Australian personnel. Whilst adamant that the Indonesian persons who were apprehended had been assaulted with the butt of an SLR gun by the Malaysian persons who had been issued with those weapons by Australian personnel when they came onboard, Mr Shearman agreed with the suggestion put to him by Mr Douglass that the rifles depicted in the photograph were in fact “Thomson guns”. Mr Shearman said that the interpreters “were usually issued with SLRs” but he had not ever been a member of a boarding party. He was aware of a report by Captain Macdonald dated 22 February 2005 (Exhibit 10), which found that neither interpreters nor Australian personnel carried rifles. Captain Macdonald reported that the interpreters were at all times under the supervision of the officers of Duchess, normally the boarding party officer, and it was unlikely that any “significant physical abuse such as smashing the face of a prisoner with a rifle butt” ever occurred. Mr Shearman said that “Macdonald is surmising – I witnessed”.
13. The second incident involved restraining a distressed, fellow member of Duchess, Michael Chopping. Mr Shearman said that there was an occasion “just before midnight” when he and Chopping and other persons were on one of the decks. Suddenly he saw Chopping jump up to a standing position and screamed out “it’s all happening again”. At that stage Mr Shearman said that he observed the silhouette of a United States vessel travel past at a distance of between 10 and 15 metres. The vessel was in total darkness. Mr Shearman said that he thought that his “time was finished” because that vessel had travelled so close to Duchess. He said that Chopping was trying to jump over the side of the vessel and had run to the guard rail. When he realised that Chopping was serious in his attempt to jump, Mr Shearman said that he and four other persons restrained him and held him down. He described Chopping as being hysterical. He said Chopping was then taken to the sick bay and when Mr Shearman saw him the next morning, he recalled that he “looked like death warmed up”.
14. In cross-examination Mr Shearman said that the incident involving Chopping occurred in Vung Tau Harbour. He said the Duchess was not at anchor but was floating with the tide operating as a fire power escort to HMAS Sydney. He said that the other vessel that crossed the path of Duchess gave no warning and did not display any lights. He agreed that Vung Tau Harbour was busy but at the time of this incident only Duchess and Sydney were in the Harbour waters. He said he did not know where the other vessel had come from. He agreed that on his description it was a “narrow miss”. Mr Shearman said that he had assumed that Chopping was a Voyager survivor because his reaction was similar to the reaction of other persons from Voyager who startled easily. He agreed with the history recorded by Dr Ewer at page 20 that Chopping “went beserk”. Mr Shearman said that Chopping was kept onboard Duchess despite him being a stoker and would have otherwise been required to work below decks. Mr Shearman said that Chopping was given other duties.
15. Another incident which Mr Shearman said was a stressor was his witnessing a severed head onboard Duchess. Mr Shearman said that on this occasion he and another cook, Sid Hannigan (nicknamed Oppo) attended the kitchen one morning to commence duty. He said the practice was to turn on all of the ovens and then walk to the fridges to collect provisions. He said the fridges were 12 foot by 9 foot rooms which were accessed by a locked door. A key for the door was issued from the Bridge on the ship. Having entered the fridge, Mr Shearman said that he observed the severed head of an Indonesian male person wrapped in plastic. He said that it was located on the middle of three shelves on the right side of the fridge approximately four feet from the floor. The room was lit by single bulb. He said that he and Hannigan were horrified. Mr Shearman said that an English Non-Commissioned Officer (NCO) then approached them in the fridge and said words to the effect “you weren’t supposed to see it – I was supposed to get here first – don’t tell anyone because you won’t be believed”. Mr Shearman said that the NCO also said that he intended to show the severed head to his Commanding Officer as proof of Indonesians being killed. He also said that he intended to eventually throw the head over the side of Duchess. Mr Shearman said that the NCO who held the rank of Sergeant, then placed the head in a canvas backpack and left the fridge. Mr Shearman said that he did not ever see him again. Later, when Mr Shearman told the chief cook of Duchess of the incident, he was laughed at. He said that the chief cook had disbelieved him because the key for the fridge was only issued to the cooks and the maintenance staff.
16. In cross-examination Mr Shearman said that the NCO who he had confronted in the fridge, had told him and Hannigan that the head had been severed with the intention of showing it to other officers “to prove a point”. Mr Shearman could think of no reason why it was necessary for that NCO to bring the head onboard as opposed to showing it to officers on land. He said the NCO had been a spotter and had been attached to a Gherka unit. He agreed the NCO would had to have been issued with a key to be given access to the fridge to place the head in it initially, but he could not explain how that would have occurred. He said that the key would have been issued from the Bridge of the ship and the NCO would have to sign a book to have the key issued to him. Mr Shearman said that he did mention this to the chief cook who had laughed at him. He said that the location of the severed head did not “get around the ship”. Mr Shearman said that he had told some other people of the episode but they thought that it was a load of “bullshit”.
17. Mr Shearman was then taken to a report completed by Dr John Cooper, a medico-legal psychiatrist who in a report of 6 October 2004, recorded (page 3) that after finding the severed head in the fridge in 1966 Mr Shearman had told him of difficulty “getting out of bed for fear of having to be the first person to open the fridge. He said this caused him to get into disciplinary trouble”. Mr Shearman said that there were many occasions when he either did not get out of bed in the morning or deliberately got out of bed late to avoid having to enter the fridge attached to the kitchen. He said this was despite having to cook for 200 persons and exposing his assistants to that responsibility alone. He said provisions from the fridge were, on occasions, obtained on the previous day and it was not always necessary to go to the fridge at the commencement of each shift. Despite this he said that he was never disciplined for staying in bed late or arriving late for duty because some disciplinary offences “may have been dealt with in-house”. This is despite disciplinary offences reported against him of neglect in duty in failing to provide “chocolate beverage for the night watches” on 25 January 1966 and being in a “slovenly” appearance namely being “unshaven” on 10 June 1966 (refer report Captain Macdonald at Exhibit 10).
18. On another occasion, Mr Shearman said that he recalled being asleep early one morning whilst travelling either in the Malacca Straits or the Lahore Straits when he heard a “great bang” and “a sheering noise down the side of the ship”. He said that Duchess had previously struck logs floating in the water but on this occasion the sound was different. He said that he was terrified and “flew” out of his hammock. He thought that Duchess had been “cut in half like the Voyager” and 80 per cent of the people in his Mess, who were from Voyager, were screaming and had tried to open hatches to escape. Mr Shearman said that he found out later that Duchess had struck a kumpit with 45 people onboard which had been loaded with Copra and 44 gallon drums. He said he did not know what was inside the drums but presumed that they had been full of ammunition. He said that the kumpit had been damaged and was lashed to Duchess to keep it afloat. Duchess had some scratch marks on its hull and was dented.
19. In cross-examination Mr Shearman was referred to his evidence given at the VRB (refer Transcript page 15), where he was recorded as having said that he heard “a bang” and observed other members in his Mess “racing around . . . in a mad flat panic”. He said in evidence that 75 per cent of people in his Mess had been former members of Voyager. Mr Shearman said that he was not in a “mad panic” then but attempted to calm those persons down.
20. Mr Shearman acknowledged that he completed a declaration found at page 43 of the T‑documents where he recorded that Duchess had “run over” a sampan and also acknowledged in evidence that such an incident did not occur. When he was asked to comment on a report by the ship’s Captain dated 23 February 1966 (page 49 to 50), that the episode could best be described as the sampan causing a “glancing blow” to Duchess, Mr Shearman said that he did not know whether that description was accurate because he did not see the incident but rather reacted to the noise he heard.
21. Mr Shearman was then taken to a report completed by Dr Ewer, a medico-legal consultant in Adelaide dated 20 February 2001 (T6), where the history given by Mr Shearman was that Duchess “ran over a sandpan”, (sic) the occupants of the sampan were in the water and he saw two of them “eaten by sharks”. The history also records Mr Shearman as having told Dr Ewer “I saw one person’s legs bitten off”.
22. Mr Shearman said that when he met with Dr Ewer it was the first time he had “ever opened up and explained what happened” to him. He again agreed that Duchess did not run over the kumpit and he said that he did not know why he had said that to Dr Ewer. He said that the episode with sharks had nothing to do with his war service, but he did know of an incident involving Australian personnel being attacked by sharks having occurred on another occasion during peace time. He did not observe the incident himself but heard about it. He agreed that he had subsequently been contacted by a representative of DVA who sought clarification of the history taken from Dr Ewer. In his response to that enquiry (page 42), Mr Shearman recorded that the doctor had combined two separate incidents in error. However he reaffirmed that the “sampan incident is described in the Statutory Declaration” and the shark attack incident referred to the rescue of members of USS Frank E Evans following the collision between HMAS Melbourne and Frank E Evans.
23. Mr Shearman was then taken to the report of Dr Holwill, where at page 69 the history obtained is of a “Junk carrying 50 or 60 infiltrators” ramming the ship on which he was serving. Mr Shearman said that he estimated that there were between 50 and 60 persons who he described as infiltrators. This is despite the concluding comments of Captain Burnside in his report at page 50, that the kumpit was owned by the Chinese Trading Association which had no intention to claim compensation for damage resulting from the collision. Mr Shearman said that all persons on kumpits were assumed to be infiltrators unless they proved otherwise.
24. It was noted that Dr Holwill had also obtained a history of Mr Shearman being fearful that his ship might be sunk and that he would be taken by sharks. Dr Holwill reported that Mr Shearman had told him that he “had heard stories that this had occurred to the survivors of the USS Frank E Evans after it was struck by HMAS Melbourne”. However it was noted that the kumpit incident occurred two years before USS Frank E Evans had been struck and when asked why he had linked the episode with USS Frank E Evans to the kumpit incident, Mr Shearman said that he could not think of any reason why Dr Holwill would record the history that he did.
25. Mr Shearman was also asked to explain his earlier evidence that the cargo from the kumpit was Copra and 44 gallon drums had been taken off the kumpit and loaded on to the Duchess. Mr Shearman was unable to explain why it would be that in circumstances where he had assumed that the drums had contained explosives, the Duchess would take onboard drums in which explosives were contained.
26. The remaining incident which caused stress to Mr Shearman was being at risk of being fired upon by shore mounted guns at the southern end of the Lom Bok Strait. Mr Shearman said that whilst travelling in the Lom Bok Strait from north to south, he and others onboard the vessel had been told that Duchess was the first Australian ship to have travelled in those waters. He said the Lom Bok Strait was wider at the north than at the south where he and others had been notified that 16 inch guns had been left there from World War II. He said that he and others had been told that the guns had not been used since and it was not known whether they were operational, but the possibility existed that they could be discharged and that Duchess could be fired upon. He said that the personnel of Duchess were on action stations, that the gun turrets were closed up and whilst normal duties were expected of personnel, they were notified that they should not “amble around on the upper deck”. Mr Shearman said that he had occasion to travel on the upper deck to travel from the aft kitchen to the forehead kitchen, and from there that he could see the brick reinforcements which housed the guns but could not see the guns themselves. He said the guns were not fired but he was on edge and was frightened. He said that he breathed a “sigh of relief” when the skipper notified the ship’s crew that they had left the Lom Bok Strait and were approaching Australia.
27. In cross-examination Mr Shearman said that his evidence to the VRB was incorrect to the extent that at the southern end of the Lom Bok Straits it was not possible to “throw a stone from one headland to the other” (Transcript, page 12). Mr Shearman said that the southern end the Lom Bok Straits were approximately 10 miles in width and in the event that the Duchess was travelling in the middle of the Straits, it would have been five miles in distance to either side. He said that the gun placements or bunkers could be observed but the guns within them could only be observed with the use of binoculars.
28. Subsequent to service Mr Shearman said that he recalled that his time in the Navy was “the best nine years of my life but it ruined me”. He said that his service was not the “big adventure that I thought it would be”. He said that he had been bullet proof and without fear but he had become a person who was aggressive and nasty and did not tolerate fools. He said he thought about things in black and white terms and his behaviour had cost him his first marriage and the relationship with his children of that marriage. He said that when he is drunk he is happy and he is able to socialise but otherwise he avoids people. He suffers nightmares and consumes medication. He has dreams of being onboard a vessel and feeling that something terrible is about to happen. He also suffers from night sweats. The memories from naval service continue to “intrude”, manifesting by having to open the door of a fridge every time he walks past.
29. Mr Shearman said that he did drink alcohol before enlistment but only socially and on weekends. However subsequent to enlistment he drank “whenever the opportunity arose”, and that by 1965 and 1966 he became aware that alcohol was affecting him. Presently it would not be unusual for him to drink between one and two dozen stubbies of beer per day and also to consume wine. He does not drink spirits. When he drinks wine it would be between one and two bottles per day.
30. Mr Shearman said that he ceased work in 1996 because he was becoming violent and had been abusing colleagues for no reason. He said that on one occasion he slashed a mate with a knife across his arm which required eight to nine stitches. Mr Shearman said that he had occasionally considered suicide and did consider “jumping in front of a bus” once but was able to restrain himself. Mr Shearman said he currently receives a pension and would not be able to work for eight hours.
31. In cross-examination Mr Shearman was asked to consider whether his lethargy and depression was associated with a myocardial infarct that he suffered in 1993. The clinical file of Dr Pokoj contained a report from Dr Howarth from Broken Hill (page 95) who recorded in a report of 17 August 1993 that Mr Shearman suffered a small myocardial infarct “three months ago”. Dr Howarth then recorded that Mr Shearman had complained of being tired and a query was raised whether that was a consequence of his medication. Dr Howarth however was of the view that the tiredness was “psychological” because he noted that Mr Shearman was “able to do nine holes of golf”. Mr Shearman said he had been told that his lethargy was by reason of him being depressed.
32. In August 1996 Dr Ogborne a Registrar with the Far West Health Service in Broken Hill, reported to Dr Pokoj that Mr Shearman had suffered increased lethargy and tiredness “over the past three years” (page 115). In a report completed by Dr Rosen, a visiting neurologist (at November 1996 – page 131), it was noted that Mr Shearman had been “emotional for the past five years”, but had denied being depressed. It was also noted that Mr Shearman’s sleeping had improved since
Priothiaden had been prescribed. Mr Shearman said that he would not have admitted depression to Dr Rosen and would have “denied most things that he asked me”.
33. Dr Kral a visiting psychiatrist (page 215), reported to Dr Pokoj in June 1999 that Mr Shearman had denied depression. Mr Shearman said that Dr Kral was a personal friend of he and his wife and “there was no way that I was going to let her think that I was a basket case”. Dr Kral did report that Mr Shearman had lost his father and wife’s father in the previous year, which was the cause of some sadness; that his mother-in-law had developed breast cancer and his brother-in-law had also suffered from cancer. Mr Shearman agreed that those events had been upsetting.
34. With respect to his alcohol consumption Mr Shearman agreed with a history taken by Dr Holwill in a report of 5 February 2003 (T‑documents, page 70), that he had been a modest consumer of alcohol initially in service but subsequently drank heavily and drank often to become drunk. Mr Shearman said that when at sea he was “able to get more grog than others” and when at harbour, which usually occurred approximately once a fortnight, he would drink to excess. He said he consumed alcohol heavily when he was employed as a second chef at the Ryde RSL Club. He then had access to alcohol and said it “affected my work but did not affect my employment”.
35. Mr Shearman also agreed with the history of Dr Holwill that he smoked five packets of cigarettes per day for about 20 years. He said he was smoking Winfield blue cigarettes at 20 per packet and agreed that he would be smoking 100 cigarettes per day. He said that he was smoking whilst employed as a cook but agreed that he was not able to smoke whilst he was preparing food.
36. It was noted that Dr Pokoj in a report to the Prince Alfred Hospital (undated refer LMO notes page 164), recorded a history from Mr Shearman of consuming 60 grams of alcohol per week. Dr Kral in her report at page 215 recorded that Mr Shearman “now rarely drinks more than two evenings a week and he drinks up to six or seven light beers”. Dr Rosen in a report of 20 July 2000 (page 239), had a history of Mr Shearman denying consuming alcohol to excess. In a questionnaire completed by Dr Pokoj on 14 June 2000 (page 233), Mr Shearman is recorded as “a social drinker on two or three occasions a week at 40 grams”. Mr Shearman variously explained that the history to Dr Pokoj was not accurate and he was “kidding myself”. He said that Dr Kral was a personal friend and he did not want to divulge his alcohol history to her. He also said that he was then in denial on the occasions he gave these histories to the doctors and would not admit his alcohol addiction.
37. Mr Shearman said that he eventually ceased work in 1996 because of a “combination of everything”. He said this referred to his aggression to his colleagues at work, becoming intolerable and his psychological problems “brought on by my heart attack”.
38. Mr Shearman was then examined with respect to a history that he gave to Dr Ewer, found at page 20, where the doctor recorded that one of Mr Shearman’s “close friends” had died in the Voyager episode. The history recorded by Dr Ewer is in the following terms (T‑documents, page 20, paragraph 5):
One of Mr. Shearman’s very close friends died in the Voyager accident. The details of the man’s death were repeatedly relayed to Mr. Shearman by the survivors of the Voyager accident. The details were particularly gruesome and hearing them over and over was very traumatic for Mr. Shearman. He was told that his close friend and a number of other sailors were trying to get out of an escape hatch as the ship was going down. There was an urgency amongst the men as they knew if they did not hurry they would drown. Mr Shearman’s friend attempted to get through the escape hatch but apparently he was too overweight to do so. He was resigned to the fact that he was going to drown and he assisted his fellow sailors out of the hatch. Mr Shearman said “he then went down with Voyager and died”. Mr. Shearman was very distressed by hearing this repeatedly.
39. Mr Shearman said that his close friend was a person “Buck Rogers”. He said that Rogers was a cook in the galley that he had known from his training at Cerberus. He said that he used to play football with Rogers. It was then suggested to Mr Shearman that this history was contrived because a person known as Rogers had been killed in the Voyager episode in 1964, whereas Mr Shearman did not enlist until 1963. It therefore followed that he could not have trained with him at Cerberus. It was suggested that the person Rogers had been posthumously awarded the George Cross Medal and was a legendary figure in naval circles. It was suggested that Mr Shearman, as a junior sailor, would not have associated with Rogers who held the rank of Chief Petty Officer. Mr Shearman said that he did not know what medals Rogers had been awarded. He said that he had been “tormented” by the survivors of Voyager. He said that despite Buck Rogers being his close friend, he did not know his first name and responded to Mr Douglass with the comment “don’t belittle my friendship with him”. In re-examination Mr Shearman was shown a photograph of Jonathan Rogers GC DSM which is attached to the report of Captain Macdonald at Exhibit 8. Mr Shearman said that the person depicted was not his friend Buck Rogers.
40. Mr Shearman was then asked by Mr Douglass to comment upon the various references made in the medical records to him having witnessed persons being taken by sharks. Specifically it was noted that Dr Pokoj, recorded in his notes at page 6, that Mr Shearman “witnessed people taken by sharks during reserve [illegible] still having nightmares”. Mr Shearman said that he had no idea why he had given that history to Dr Pokoj. He also agreed that Dr Ewer had recorded that as his history and explained that he must have said that to Dr Ewer because he had “something in the back of my mind”. He agreed that in his letter to DVA of 17 October 2001 (page 42), he recorded that “many men were lost to sharks” and said that he had learnt that from his brother-in-law, Robin Thompson, who was a leading seaman onboard HMAS Melbourne. He agreed that the reports concerning the damage to HMAS Melbourne and the recording of persons killed had no reference at all to any attack by sharks, and the only body recovered was found to have died by drowning. Mr Shearman said that “persons were killed by sharks – I’m not confusing this with some other event”. This was despite being referred to the report of Captain Macdonald (Exhibit 8), who researched the reports published following the Melbourne disaster and who found no references to shark attack. Mr Shearman said that he did hear about shark attacks following the Melbourne/USS Frank E Evans collision from his brother-in-law who was onboard HMAS Melbourne.
dr john cooper
41. Dr Cooper is a psychiatrist in private practice in Melbourne. He provided a report of 6 October 2004 following consultations with Mr Shearman on 28 July and 2 August 2004. On both occasions Mr Shearman’s wife was present.
42. Dr Cooper was engaged by Mr Shearman’s solicitor to prepare the report on a medico-legal basis. He had also been engaged by Mr Shearman upon referral from his treating general practitioner, Dr Pokoj, for treatment. Dr Cooper said that he had consulted with Mr Shearman on three occasions subsequent to August 2004 – for treatment – and most recently consulted with him in March this year. He said that he has also spoken with Mr Shearman by telephone to discuss his medication. Dr Cooper said that he plans to consult with Mr Shearman again in six months time.
43. Dr Cooper said that it was his impression that Mr Shearman did consciously believe the truthfulness of the events in service upon which he relied. He acknowledged that Mr Shearman does appear to contradict himself and is vague on occasions, but it appeared to him that Mr Shearman was of the belief that the events alleged in service did actually occur. He said on the occasions where Mr Shearman had been vague he had been assisted by his wife who provided additional information by way of clarification.
44. Dr Cooper diagnosed Mr Shearman as suffering from PTSD and alcohol abuse. He thought the symptoms from both conditions were moderate at first consultation because Mr Shearman had previously been treated by his general practitioner and his symptoms had reduced. He thought Mr Shearman’s dependence upon alcohol fluctuated because there were some days when he did not drink and there were other days when he did drink to excess.
45. Dr Cooper said that he was provided with a history of three predominant incidents in service giving rise to the diagnosis that he made; namely, Mr Shearman observing persons brought onboard his ship who had been assaulted, by a “vicious interpreter”, with the butt of a gun, and learning that those persons were later killed by police. He said Mr Shearman had also discovered the head of a person in a kitchen fridge and had also been affected when his ship was rammed by a large sampan. He said that he later learnt from Mr Shearman that he experienced stress when travelling through the Lom Bok Straits.
46. Dr Cooper thought that the most significant stressor was the episode where Mr Shearman discovered a person’s head in the fridge. He said that event was responsible for a number of Mr Shearman’s symptoms.
47. In cross-examination, Dr Cooper said that he had not been provided with a copy of the clinical file of Dr Pokoj, but had received a referral letter. He said that letter referred to Mr Shearman as having previously been diagnosed with depression, but he was not aware that diagnosis had been made in the early 1990’s. He said that Mr Shearman had told him that he had been prescribed Prothiadin but he was not aware when that prescription had been made.
48. Dr Cooper was taken to a number of pages within the file of Dr Pokoj. At page 95 is a copy of a report from Dr Howarth who had been treating Mr Shearman in 1993. He reported to a cardiologist in Broken Hill that Mr Shearman had suffered a “small myocardial infarct” in 1993 and had subsequently been “a little depressed and tired”. Dr Cooper said that Dr Pokoj had referred to investigations undertaken in the 1990’s concerning cardiac function but an infarct had not been mentioned. Dr Cooper was also asked to comment upon an opinion expressed by Dr Rosen, a neurologist, at page 131 of the file, who in a report of November 1996 reported that Mr Shearman had been “quite emotional for the past five years . . .”. Dr Cooper said that he was not aware of that opinion and whilst it might suggest that the clinical onset of depression had been in the 1990’s, Dr Cooper was of the opinion that the condition had appeared much earlier. He said that Mr Shearman had told him that he had been depressed “for as long as he could remember”, but had later told him that he denied any psychological problems. He said that Mr Shearman was not a good historian.
49. At pages 214 and 215 of Dr Pokoj’s file is a report from Dr Kral, a psychiatrist in Broken Hill, who reported in June 1999 that Mr Shearman had been investigated for multiple somatiform complaints, which had developed since a “possible myocardial infarct in 1993”. She noted that Mr Shearman had denied depression, but had obtained a history that Mr Shearman’s father and his father-in-law had died in the previous year, that his mother-in-law had recently been diagnosed with breast cancer and his brother-in-law suffered from cancer in remission. Dr Cooper said that he understood that a diagnosis of a myocardial infarct had been excluded and Mr Shearman’s symptoms subsequently had been found to be related to stress. He said that he was aware of the illnesses and deaths affecting Mr Shearman’s family and family members. It was noted that Dr Kral had reported that Mr Shearman had told her that he had “never entertained suicidal ideation”, however Dr Cooper said that he had obtained a history from Mr Shearman of “intermittent thoughts of suicide”.
50. On balance, Dr Cooper was of the opinion that Mr Shearman does have “mental health problems” however a diagnosis of PTSD was dependent on Mr Shearman having been traumatised.
51. With respect to Mr Shearman’s history of alcohol consumption, Dr Cooper said that he was not surprised that the history taken by a number of doctors differed. He said it was usual for persons who are dependent upon or who abuse alcohol to give unreliable or inaccurate histories. He thought that Mr Shearman could have satisfied a diagnosis of alcohol abuse or dependence but he noted that at a recent consultation Mr Shearman informed him that he had reduced his alcohol consumption and now enjoyed three alcohol free days per week. In those circumstances Dr Cooper acknowledged that Mr Shearman may not now satisfy a diagnosis of alcohol abuse or dependence.
52. Dr Cooper was then taken to a number of extracts from the file of Dr Pokoj with respect to the recorded history of alcohol consumption which is summarised as follows:
(i)Page 164, undated report to Dr John Walsh containing history of 60gms of alcohol per week.
(ii)Page 215, report of Dr Kral, 25 June 1999, history of consuming six or seven light beers but rarely drinks more than two evening per week.
(iii)Page 233, questionnaire completed by Dr Pokoj (undated) history of consuming alcohol on two or three occasions per week at 40gms.
(iv)Page 114 report of Dr Belbin, 6 August 1996, history of consuming 60gms of alcohol on one or two occasions per week.
53. Dr Cooper said that whilst Mr Shearman had denied excess alcohol consumption to Dr Rosen (report of 20 July 2000, (page 239)) this was consistent with the history of a person who in fact does consume alcohol to excess. However he acknowledged that the above four entries, if true, would be consistent with the history of a person who could not satisfy a diagnosis of alcohol abuse or dependence.
54. In his report of 6 October 2004, Dr Cooper said that if he were to accept Mr Shearman’s history, acknowledged the inconsistencies, took note of other medical reports and also acknowledged his inability to corroborate the facts as given to him, it was his opinion that Mr Shearman suffered from PTSD with its onset being in the late 1960’s. He also thought that the diagnosis of alcohol abuse had its onset in the late 1960’s. He thought that Mr Shearman was depressed but thought that it was a condition secondary to PTSD and alcohol abuse. In evidence Dr Cooper acknowledged that he had no independent knowledge of the truth of the history given to him by Mr Shearman and his opinion as to the onset of PTSD and alcohol abuse in the 1960’s was based upon this history. He noted that he did obtain a history on one occasion of Mr Shearman consuming alcohol on three occasions per week at between 6 and 48 cans of light beer per day (page 5 of report), but said that when he questioned Mr Shearman about that history, he became satisfied that Mr Shearman in fact consumed an average of 12 standard drinks per day which was 120gms of alcohol.
55. Whilst noting the opinions expressed by Dr Strauss in a report obtained at the request of the respondent, Dr Cooper acknowledged that Mr Shearman was involved in litigation seeking compensation but it was his opinion that Mr Shearman – an opinion also shared by his wife – appears to be “keen to improve and be treated”. He thought Mr Shearman was not a “conniving person”, nor was he a person who presented with a “concocted story”. He said that Mr Shearman truthfully believes that the history he has provided is based on fact, however, he did acknowledge that Mr Shearman was not a sophisticated person and may have incorporated other events into his beliefs. It was his opinion that his prior consumption of alcohol may have been responsible for him incorporating events which did not happen to him, but to other persons. He thought that Mr Shearman was a person at the “low end of the average range” of intelligence. He said Mr Shearman was a person who held concrete beliefs, who was not literate and was unsophisticated, but could cope more than adequately as a cook.
56. In answer to a question from me, Dr Cooper said that it appeared to him from the symptoms expressed and upon his observation of Mr Shearman, that he was similar to a number of other veterans who he had treated and who had been exposed to undoubted trauma. He said Mr Shearman clearly demonstrated features of alcohol abuse, poor coping skills and other personality features of veterans who had been traumatised.
nigel strauss
57. Dr Strauss is a psychiatrist who consulted with Mr Shearman at the request of the respondent on 1 April 2004. He provided a report of the same date (Exhibit 6).
58. It was noted from the history that Dr Strauss obtained of Mr Shearman’s family and former marriage, that he had not told Dr Strauss of the death of his son, whereas it had been given in the history to Dr Cooper. Dr Strauss thought that this could be of “psychological significance”.
59. Pages 2 and 3 of Dr Strauss’ report refers to a history that he obtained of Mr Shearman being intolerant and angry and, with the combined effects of alcohol, having difficulty maintaining relationships. Dr Strauss said that he was unable to establish the onset of this adverse behaviour (however it is noted that at page 3 of his report he referred to Mr Shearman’s poor behaviour having “gradually worsened over the years”).
60. Dr Strauss noted that Mr Shearman gave him a history of excessive consumption of alcohol subsequent to his naval service. He said that Mr Shearman had told him that he continued to drink heavily but he could not obtain a history of when the heavy consumption commenced. He said Mr Shearman was a poor historian who was inconsistent with his answers to questions and he noted that there were inconsistencies also in the histories he had given to other doctors. He acknowledged that Mr Shearman may have poor recall but said that he also thought that Mr Shearman may be “untruthful”. Nonetheless he was confident in making a diagnosis of Mr Shearman suffering from alcohol abuse or dependence and from depression. He noted that Mr Shearman had given him a history (page 4) of fatigue, insomnia, irritability, tearfulness, decreased libido, weight gain and reduced motivation. Dr Strauss said that these symptoms were consistent with both depression and alcohol abuse and thought that these symptoms “increased” from the mid 1990’s. It was also noted that Mr Shearman has been appropriately treated and his symptoms have reduced in intensity.
61. Dr Strauss referred to episodes of stress experienced by Mr Shearman during service. In relation to the contact between HMAS Duchess and a kumpit (referred in his report as a “junk”), Dr Strauss reported that the other vessel had “rammed” Mr Shearman’s vessel but he did not have any detail of whether the incident was deliberate or an accident. Dr Strauss said that his impression after speaking with Mr Shearman was that the incident was accidental. He obtained a history of Mr Shearman being engaged in calming other sailors who had previously been survivors of the Voyager disaster. In those circumstances, because Mr Shearman remained in “control”, he did not then experience, witness or confront an event that threatened death. Nonetheless Dr Strauss acknowledged that that episode would have been “upsetting”. He noted that Mr Shearman gave a history of dreaming of being onboard ships and then having a sense of “impending doom”. Dr Strauss thought that this was not of any psychological significance but he did acknowledge that it would be an “unpleasant experience”.
62. It was also noted from the report of Dr Strauss, that he had obtained a history from Mr Shearman of having passed through a narrow waterway where “enemy guns” were pointed at his vessel.
63. It was noted that Mr Shearman had recently attended an RSL reunion where he had spoken to other persons about events in service “for the first time in many years”. Dr Strauss thought, having regard to the history that he had obtained of stressors in service, that Mr Shearman had “integrated other events into his memory as if he had experienced them”. This suggested to Dr Strauss that he was a “suggestible” person, although it was not possible to state whether Mr Shearman actually believed the events to be true. He thought Mr Shearman was at the “lower end of intelligence” and by reason of his chronic consumption of alcohol, his memory and powers of concentration could have been affected.
64. Dr Strauss diagnosed Mr Shearman as suffering from depression and not from PTSD. He said Mr Shearman had given so many differing accounts of events in service to both himself and other doctors, that he was unsure whether the events in service had actually occurred. He said the inconsistencies in Mr Shearman’s histories to others affected the validity of his history and, coupled with his poor memory and the manifestation of symptoms only in recent years, a diagnosis of PTSD was not appropriate. Additionally he noted that, whilst Mr Shearman had told him of an episode where he had found a human head in a refrigerator onboard Duchess, he had also obtained a history of him being unable to walk past fridges without obsessively opening them, despite being employed as a cook. He said the obsessive behaviour of Mr Shearman was inconsistent with fright or fear of having found a human head, and the repetition of opening fridge doors was inconsistent with a person who was a cook.
65. Dr Strauss noted that Dr Kral had consulted with Mr Shearman on a number of occasions but had not ever diagnosed PTSD. He said he expected that Dr Kral would have made such a diagnosis if it did exist. Whilst maintaining that the appropriate diagnosis for the psychological injury was depression, Dr Strauss said that it had been more apparent in recent years, and was likely to be secondary to long term alcohol abuse. Dr Strauss thought that the clinical onset of depression was in the 1990’s.
66. In cross-examination, Dr Strauss acknowledged that he consulted with Mr Shearman on one occasion only. He recalled Mrs Shearman being present but said he did not ask her any questions. He was aware that Dr Cooper had found Mrs Shearman to be supportive of her husband and he accepted that was so.
67. Dr Strauss said that he rejected the diagnosis of PTSD because on the history given to him, if the events as alleged were true, the “nature and quality” of the stressors and his reactions did not permit a finding of PTSD.
68. Dr Strauss was then challenged as to whether he had formed a belief about whether Mr Shearman had been truthful in his history. It was noted that Dr Strauss reported at page 9 that he found it “difficult” to know whether Mr Shearman was suffering from PTSD whereas at page 10 he reported that it was his opinion that he had “a doubt” whether PTSD was suffered. Later on page 10 he reported that he was “not convinced” that PTSD did exist and on page 11 he reported that it was “most unlikely” that PTSD existed.
69. Dr Strauss explained that the language of his report was consistent with his analysis of the history given to him and his process of making findings as to diagnosis. He said he was doing no more than expressing opinions. He again said that whilst he accepted that Mr Shearman had been exposed to some stressors in service, he doubted the quality and quantity of those stressors.
70. In answer to a question from me, he thought that Mr Shearman did exhibit compulsive or obsessive type behaviours which were not a criteria of a PTSD diagnosis but could be consistent with a diagnosis of depression. Additionally it was his opinion that a compulsive obsessive disorder is of itself a diagnosis.
john collins macdonald
71. Captain Macdonald was a member of the RAN for 33 years from 1957. Upon retirement he obtained the position as Director of Naval Operations in Canberra. He had extensive service overseas. He has previously prepared approximately 40 reports at the request of Writeway Research Services. Captain Macdonald also holds a diploma in public policy and in strategic studies.
72. Captain Macdonald prepared three reports at the request of the respondent dated 15 February 2005, 1 and 18 February 2005. The reports were received into evidence as Exhibits 8, 9 and 10 respectively.
73. With respect to Mr Shearman’s evidence concerning passage through the Lom Bok Straits, Captain Macdonald said the waterway had a 20 nautical mile width at its northern end and approximately a 10 nautical mile width at its southern end. There had been several passages of other vessels through the Lom Bok Strait prior to the passage by Duchess, upon which Mr Shearman was aboard.
74. Captain Macdonald said that there was a diplomatic agreement existing between Australia and Indonesia where the intended transit of an Australian vessel was the subject of prior notification. This protocol existed because Indonesia asserted sovereignty. He said Australian vessels did pass through with safety but personnel were notified to be cautious. Captain Macdonald said that there were shore gun batteries on either side of the Lom Bok Strait and whilst Duchess would have maintained a position of “defence stations” it did not adopt a position of “action stations”.
75. Captain Macdonald said that Mr Shearman could not have observed guns within gun batteries on shore because Duchess proceeded through the middle of the Lom Bok Straits and at its most narrow end (the southern end) the shore on either side would have been five miles away. Whilst it appears that another naval person had binoculars on one of the decks for recreational purposes, the binoculars would not have permitted observation of the guns on shore.
76. Captain Macdonald noted that a Record of Proceedings from the Duchess reported a sense of “relief” when there had been an exit from the Straits, but there is no report of any threat to the vessel during its passage.
77. With respect to the collision between Duchess and a kumpit, Captain Macdonald said that a Record of Proceedings reported that there was a collision between a trading vessel passing between the Philippines and Borneo with a cargo of Copra and 45 passengers. The Record of Proceedings reported that initially it was thought that a floating log had been struck, but on closer observation – and after the lights of the ship were turned on – the presence of the kumpit was detected. It started to take water and the passengers and cargo were taken onboard Duchess. The only reported damage to Duchess was the scraping of paint. There were no infiltrators found onboard that vessel, nor did Duchess fire across its bow.
78. As to the allegations of Mr Shearman concerning assaults on suspected persons onboard Duchess, Captain Macdonald explained that Duchess had a designated boarding party which was generally armed with light weapons. He said that Duchess also had an “explosives search party”. He said the practice was for the explosives search party to search vessels and any persons questioned would be brought onboard. If the vessel did appear to be a trading vessel only, it would be turned away. If there was any doubt as to the bona fides of the crew onboard they would be searched and questioned by Malay interpreters under the supervision of the boarding party which comprised personnel from Duchess.
79. Captain Macdonald said that from the Record of Proceedings there was no report of any serious incident or any assaults upon any suspected persons. He said that he interviewed a number of senior persons from onboard Duchess who said that they never heard of such an incident and had it occurred, it would have been reported and spread around the ship “like wildfire”. He said that the interpreters were not armed when they were onboard and whilst Duchess did carry SLRs, the boarding party members used Thomson machine guns only, as SLRs were cumbersome when climbing up and down the sides of ships.
80. With respect to the allegations that members of the USS Frank E Evans had been taken by shark after it collided with HMAS Melbourne, Captain Macdonald said that a report of an extensive hearing between the Royal Australian Navy and the United States Navy, enquiring into the collision, contained no reference at all to the presence of sharks or persons being injured or taken by sharks. Captain Macdonald said that 74 deaths occurred, all being personnel from USS Frank E Evans. Only one body was recovered. Of the 73 persons who were lost at sea, the certified cause of death was drowning.
81. Captain Macdonald said that there was no documentary evidence at all of the presence of a severed head in the fridge of the ship’s kitchen. He said that it was unlikely that an event of that type had ever occurred and if it had, it would have been known very quickly around the ship and undoubtedly, would have been reported and investigated.
82. As to the association as alleged between Mr Shearman and Mr Rogers, Captain Macdonald said that Mr Rogers’ role in the Voyager disaster was legendary and was part of naval lore. He said that by the presence of Voyager persons onboard Duchess, the role of Mr Rogers and the disaster itself would have been the subject of frequent discussion. Additionally he said that Mr Shearman would not have ever had any association with Mr Rogers by reason of Mr Shearman having enlisted in 1963, (Mr Rogers having enlisted in 1962). Their respective ranks at the time of the collision with the Voyager in 1964, would have more than likely ensured that they would not have ever had any contact during service.
83. In cross-examination, Captain Macdonald confirmed the results of his research that Mr Shearman was 20 years of age and on his first overseas voyage in 1966. Whilst he was not aware that Mr Shearman had come from a rural background, he agreed with the suggestion put to him by Mr Moore, that he would have mixed with other persons onboard his vessel of approximately the same age and would have also been exposed to other persons who had been survivors of the Voyager disaster. Captain Macdonald agreed that Mr Shearman may have been “susceptible or vulnerable to the emotions” of other persons. Captain Macdonald also assumed that by reason of Mr Shearman’s posting as a cook, his aptitude and psychological testing upon enlistment would suggest that he would not have been regarded as a person of high intellect.
84. The witness confirmed that his report was based on his own experience in the Navy, his general knowledge of naval procedures, records that he was able to identify and inspect, and from interviews with other persons.
85. Captain Macdonald said that all illegal or irregular events onboard a vessel are recorded in Record of Proceedings, but he did acknowledge that a Commanding Officer may decide not to record an event because it might “throw a bad light on his ship”. However he said that events of the type described by Mr Shearman would usually filter through the ship and would be known or recalled by other persons.
86. With respect to the episode where a kumpit struck the Duchess, Captain Macdonald said that he had seen photographs of the kumpit carrying 44 gallon drums and other 44 gallon drums in the water. He was aware that Mr Shearman said in evidence that 44 gallon drums from that vessel had been brought onboard Duchess. He said there was no recording in any of the Record of Proceedings of those drums being brought onboard, however he said that he could not be “positive” that they were not.
submissions
87. Mr Moore submitted that Mr Shearman should be found to be suffering from PTSD and alcohol abuse. He acknowledged that there was some controversy between the doctors as to the appropriate diagnosis but submitted that the opinion expressed by Dr Cooper, Mr Shearman’s treating doctor, should be preferred to the opinion expressed by Dr Strauss.
88. Mr Moore acknowledged that his client’s memory may be impaired by the combined effects of the passage of time, the consumption of alcohol, his domestic and personal medical circumstances in recent years, and an admitted degree of confusion. Nonetheless, it was submitted that there was sufficient evidence pointing to a diagnosis of PTSD being open on the evidence, which equally pointed to traumatic events in service having occurred.
89. Mr Moore submitted that there was nothing which pointed to Mr Shearman being a person who was consciously untruthful and despite some of the events in service being regarded as most extreme and unusual, there was material which pointed to a hypothesis existing, and which could be found to be reasonable. That is to say, the respondent could not prove beyond reasonable doubt that the events in service did not occur or that the hypothesis was not reasonable.
90. It was acknowledged that the assault upon Indonesian prisoners probably was not recorded because to do so would have created documented proof of war crimes having been committed. Additionally, it was submitted that it could not be found, as a fact, that boarding parties did not carry rifles. It was submitted that the incident involving the kumpit did occur as was the evidence of Captain Macdonald. Equally, it was submitted, consistent with the evidence of Captain Macdonald, that Mr Shearman was a member of the crew onboard Duchess which did pass through the Lom Boc Strait. Despite Mr Shearman’s evidence of having observed a severed head in the fridge, an event that might be thought as being highly unlikely, it was submitted that Mr Shearman’s subsequent behaviour when walking past refrigerators is consistent with him having been exposed to that episode.
91. Mr Douglass on behalf of the respondent acknowledged that Mr Shearman did have a psychiatric illness but it was doubtful that PTSD was the appropriate diagnosis. He pointed to the absence of adequate or thorough histories by relevant doctors and submitted that it was doubtful that many of the incidents relied upon by Mr Shearman in service, had actually occurred. It was submitted that Dr Strauss had extensive documented materials available to him at consultation and his opinion should, in the circumstances, be preferred.
92. With respect to the incidents relied upon in service, it was submitted that most were the product of imagination or an idiosyncratic perception. It was submitted that Mr Shearman had adopted, or incorporated, a number of other events, as experiences that he had endured or witnessed, when in fact no such experiences had occurred. Mr Douglass pointed to the evidence concerning the death of Mr Rogers and the death of other persons by shark attack. He also pointed to the episode involving the severed head and the assault upon Indonesian persons as being implausible. Additionally, it was argued that the episode involving the kumpit and the circumstance of Mr Chopping attempting to jump overboard, were of such a nature that could not amount to Mr Shearman being frightened or being exposed to any stress sufficient to give rise to a diagnosis. Further, the evidence with respect to the concerns held by Mr Shearman whilst travelling through Lom Boc Strait was, on the evidence of Captain Macdonald, implausible.
93. Mr Douglass conceded that Mr Shearman probably did satisfy a diagnosis of alcohol dependence or abuse, but an issue did emerge during the hearing as to whether the requisite quantities of alcohol were now consumed by Mr Shearman, having regard to the inconsistencies in the evidence and the apparent reduction in consumption since the commencement of treatment in the early 1990’s.
conclusion and reasons for decision
94. The initial inquiry must focus upon diagnosis.
95. In the present application there appears no controversy that Mr Shearman does suffer from alcohol dependence or abuse. (For the purposes of the remainder of this application, I am satisfied that no material distinction exists between alcohol abuse or alcohol dependence as the applicable SOPs refers to each condition in the alternative. Refer also Constable v Repatriation Commission [2005] FCA 928, at paragraph 7). There was evidence of Mr Shearman having reduced his consumption of alcohol in recent years, and it must also be said that there was inconsistency in the evidence as to the quantities of alcohol consumed. Dr Cooper was concerned as to whether Mr Shearman was giving a consistent or accurate history with respect to alcohol consumption but was satisfied, having converted the quantities of alcohol consumed over a given period into an average daily consumption, that Mr Shearman did abuse alcohol and was dependent upon it. On balance, I am satisfied and find as a fact, that this diagnosis is satisfied.
96. The remaining injury of relevance in these proceedings emerges from the evidence of the treating and medico-legal psychiatrists, the other clinicians and from Mr Shearman himself. The two pre-dominant diagnoses are either PTSD or depressive disorder.
97. Dr Cooper was of the opinion that Mr Shearman suffered from PTSD upon the history that he had obtained, however, he acknowledged in evidence that if events relied upon by Mr Shearman did not as a fact occur, that diagnosis may be incapable of being maintained. He was also satisfied that Mr Shearman was depressed and that depressive disorder may be a consequence of the alcohol abuse or may be a consequence of PTSD. Dr Strauss thought that Mr Shearman did suffer from depression but did not suffer PTSD. The other doctors who provided reports gave varying opinions as to diagnosis but the histories obtained also varied considerably.
98. On balance, a consistent theme emerging from the majority of the medical evidence, is of Mr Shearman suffering from depression. I am satisfied that it would be appropriate to find as a fact that the applicable diagnosis with respect to the psychiatric illness is of depressive disorder. I cannot be confident, having regard to the inconsistencies in the histories obtained from the doctors and their resulting opinions, that PTSD, on the balance of probabilities, is the appropriate diagnosis. A diagnosis of PTSD is also conditional upon a trauma having been suffered before the onset of a stress disorder. For reasons which will appear later, I am not satisfied that the applicant was exposed to a ‘traumatic event’ (refer Part A of the diagnostic criteria of PTSD found at 309.81 of DSM-IV).
99. The four stages of Repatriation Commission v Deledio (1998) 83 FCR 82 ; 49 ALD 193 (“Deledio”) must be considered in an application involving operational service. Those four stages are as follows:
“1. The tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the authority under s 196B (2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3. If an SoP is in force, the tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B (2) (d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4. The tribunal must then proceed to consider under s 120 (1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.”
100. There is material which points to a hypothesis of connection between alcohol abuse and depressive disorder and the circumstances of service. Those circumstances comprise five events being, witnessing assaults upon captured Indonesian infiltrators; finding a severed head in a refrigerator; restraining a colleague, Mr Chopping, from jumping overboard; the collision with a kumpit and the passage through the Lom Boc Straits.
101. There are SOPs in force during the assessment periods with respect to the conditions of alcohol abuse and depressive disorder being Instrument No 76 of 1998 and No 58 of 1998 respectively. Stage two of Deledio is accordingly satisfied.
102. The Instrument with respect to alcohol abuse recites the applicable factors at paragraph 5 (b) and (d) as:
(b)experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse.
(d)experiencing a severe stressor within the two years immediately before the clinical worsening of alcohol dependence or alcohol abuse.
103. Paragraph 8 of the Instrument defines “experiencing a severe stressor” in the following terms:
“experiencing a severe stressor” means, the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person’s or other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as severe stressors include:
(i)threat of serious injury or death; or
(ii)engagement with the enemy; or
(iii)witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;
104. The applicable factors with respect to “depressive disorder” are found at paragraph 5 (b) and (f) of the SOP as follows:
(b)experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of depressive disorder; or
(f)experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical worsening of depressive disorder; or
105. A “severe psychosocial stressor” is defined at paragraph 8 as follows:
means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), severe illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems
106. Stage three of Deledio requires the forming of an opinion as to whether the hypothesis as raised is reasonable. It will be reasonable if the hypothesis is consistent with the template found within the SOPs. The template will contain one or more of the factors within the applicable SOPs. In the present case Mr Shearman has raised a hypothesis, consistent with the SOPs of having experienced a severe stressor and having experienced a severe psychosocial stressor with respect to the conditions of alcohol abuse and depressive disorder respectively by reason of the circumstances of his relevant service.
107. It is only at the fourth stage of Deledio that findings of fact are to be made. It is at that stage that consideration must be given to whether I can be satisfied beyond reasonable doubt that the injuries of alcohol abuse and depressive disorder are not war-caused.
108. There have been many decisions in the last few years in this Tribunal and in the Federal Court with respect to the character of events in service and the application of objective and subjective assessments. Analysis however of that type is only relevant if, as a fact, claimed events actually occurred.
109. I am not satisfied, as a fact, that Mr Shearman was exposed to the event of observing the severed head of an Indonesian male person in the refrigerator as alleged. Additionally, I am not satisfied that Mr Shearman did witness Australian service personal assaulting Indonesian persons brought onto Duchess by a Boarding Party with the butt of SLR rifles. Further, I am not satisfied an event, or events of that type, occurred at all irrespective of whether Mr Shearman was a witness.
110. These events, in my view, constitute brutality and atrocity probably giving rise to the basis for prosecution as war crimes. Mr Shearman did not identify any particular persons as having committed these atrocities nor did he call or identify any persons to support his allegations. To make findings on his evidence alone, in the absence of corroboration, would not only be wrong, but would be an offence to the reputations of Australian service personnel who were serving onboard Duchess at the time Mr Shearman served. There are of course occasions, particularly in the case of veterans, where evidence is impossible to obtain by way of corroboration. Veterans’ claims would not necessarily be dismissed by the absence of corroboration because surrounding circumstances may support a finding that the claimed event actually did occur, particularly in the application of beneficial legislation. The events alleged in these proceedings are so bizarre and so repugnant in nature, that it would be impossible and wrong to find as a fact that they occurred in the absence of such corroboration.
111. The brutality and frequency of the alleged assaults on captured Indonesians, on the description given by Mr Shearman, must have been known or reported, if true. There is no such record and no persons were called to corroborate. Captain McDonald could not locate any person who knew or heard of these atrocities. Additionally, there was evidence that SLR guns were not used on board. Similarly Mr Shearman could offer no explanation as to how access to the refrigerator was gained by the NCO who was alleged to have brought the severed head onboard.
112. Accordingly I am not prepared to find, indeed I do not find, that these incidents have any connection at all with the alcohol abuse and depressive disorder because as a fact, I am not satisfied the events occurred.
113. The three remaining episodes require a different type of analysis.
114. In Delahunty v Repatriation Commission [2004] FCA 309 (“Delahunty”), Tamberlin J at paragraph 27 discussed the concept of a “stressor” and persons’ perceptions. Whilst recognising that “persons with particular susceptibilities arising from a broad spectrum of background and experiences and cognitive reactions” might perceive a stressor in the manner different to other persons, His Honour decided that the “perception of the stressor cannot encompass a totally irrational perception or baseless apprehension”. When considering the word “threat” in the definition of “experiencing a severe stressor”, Mansfield J in Stoddart v Repatriation Commission [2003] FCA 334 at paragraph 50 decided the words “that involved actual or threat of death or serious injury” (as appearing within the definition) explained “the nature of the event or events which must be experienced”. His Honour decided that those words contemplated an objective analysis but then added “I do not think it provides for idiosyncratic and personal perceptions of events which judged objectively do not in fact fall within the adjectival clause”. In Hill v Repatriation Commission [2005] FCAFC 23 the Full Federal Court decided (paragraph 98) that “to couple a fertile imagination with a selective rendition of the evidence in order to create the hypothesis, it is not an hypothesis of a kind which the Full Court in Deledio had in mind”.
115. Mr Shearman said that he was frightened and on edge when travelling through the Lom Boc Straits because he was fearful that guns mounted on shore could be discharged. He said he breathed a sigh of relief when he and the remaining ship’s crew were notified by the Captain that Duchess had left Lom Boc Strait and was approaching Australia. Generally Mr Shearman’s evidence with respect to that voyage is unreliable. He gave evidence to the VRB that it was possible to throw a stone from one headland to the other by way of describing the close proximity of Duchess to the guns. He acknowledged in evidence in these proceedings that that evidence was wrong. He accepted, consistent also with the evidence given by Captain Macdonald, that the Lom Boc Straits were 20 miles in width at the northern end and 10 miles in width at the southern end. Duchess chartered a central passage so that the closest that the vessel would have been to shore was five miles. There was no evidence that the guns could have been discharged nor indeed was there any evidence that the guns were manned. Mr Shearman said that he could see the brick reinforcing which housed the guns by use of binoculars but again, consistent with the evidence of Captain Macdonald, that is inconceivable. There is no evidence that the guns, if manned, and if discharged, would have had a range of at least five miles. The voyage, could not in my view, amount to Mr Shearman having experienced a severe stressor because Mr Shearman could not have experienced, witnessed or confronted an event which involved actual or threat of death or serious injury to him or other persons which might have evoked intense fear, helplessness or horror. Additionally, or in the alternative, that voyage could not have amounted to a severe psychosocial stressor because it did not evoke feelings of substantial distress in Mr Shearman.
116. Another alleged incident involved the collision between Duchess and a kumpit. The evidence with respect to this episode was also unsatisfactory. Mr Shearman gave varying descriptions of either having been rammed by the kumpit or being at risk by the threat posed to Duchess by 44 gallon drums which he assumed to have contained explosives. On the other hand the Record of Proceedings referred to by Captain Macdonald pointed to Duchess suffering paint damage only, and the persons onboard the kumpit being brought aboard Duchess by way of rescue. Mr Shearman did refer to other members in his Mess being in fear of another disaster at sea, having survived the Voyager. But nothing points to him or other persons suffering “intense fear helplessness or horror” or of him suffering “substantial distress”. Mr Shearman said that most of his time was spent reassuring those persons that they were safe. That activity on his part was commendable and was indicative of responsible conduct.
117. The remaining incident concerns Mr Shearman and other persons restraining Mr Chopping. Mr Shearman said in evidence that whilst in Vung Tau Harbour in darkness, another vessel passed in close proximity at which time Chopping rose from a seated position and ran towards the edge of the ship. There was a belief that Chopping had been a Voyager survivor and it was thought by Mr Shearman and others that he was about to jump. Various descriptions were given by Mr Shearman to the doctors of Chopping who “went berserk” and the passage of the other vessel being “a narrow miss”. An outpatient record with respect to Mr Chopping was received as Exhibit 11 which contained a history of Mr Chopping being “worried about collision at sea”.
118. I therefore accept, and find as a fact, that Mr Shearman was involved in an episode of restraining Mr Chopping from jumping overboard and I am also satisfied as a fact that Chopping was in fear of collision at sea. I do not find however, that this amounted to Mr Shearman having experienced a severe stressor or a severe psychosocial stressor, as defined.
119. The character of the events which I have found as a fact to have occurred, could not, in my view, reasonably precipitate a subjective reaction of experiencing a severe stressor or psychosocial stressor as defined. The stressors alleged by Mr Shearman are not characterised by the same degree of threat, real or perceived, as is present in the event of being threatened with an unloaded firearm used in a hold up (the example used in Stoddart) or of witnessing a school bus in an accident (the example used in Delahunty). On the evidence, I am satisfied that the subjective reactions to these events fall into the description of baseless apprehension (Delahunty) and “idiosyncratic and personal perceptions” (Stoddart). The reactions could also be said to be the product of fertile imagination (Hill).
120. Whilst I am not prepared to find, as Dr Strauss did, that Mr Shearman was being ‘untruthful’ in his account of the incidents alleged to be stressors, I adopt the findings of both Dr Strauss and Dr Cooper that the reality of Mr Shearman’s subjective reaction and recall of past events has been affected by years of excessive alcohol consumption. Dr Cooper acknowledged the veracity in Dr Strauss’ statement that Mr Shearman had integrated events experienced by others into his memory as if he had experienced them, being the product of alcohol abuse and the resulting memory and concentration loss. For example, he spoke of his reaction to the death of Mr Rogers who, on the evidence, he could not have known, and he spoke of members of Frank E Evans being taken by sharks when the enquiry into the disaster was unable to make any such finding. Mr Shearman himself acknowledged in evidence that his account to Dr Ewer of seeing people eaten by sharks had nothing to do with his time in service but was an event he had heard about from his brother-in-law who had served aboard HMAS Melbourne.
121. It was well known prior to the hearing – and obvious by the cross-examination of Mr Shearman – that his account of, and reaction to these events would be seriously contested. In these circumstances I do not understand why Mr Chopping was not called, when an affidavit completed by him (T‑documents page 48) records his address in Mildura. I also do not understand why Mrs Shearman was not called. She accompanied her husband to the hearing in Mildura and she may have been able to assist in corroborating or clarifying the information given to the doctors by her husband.
122. In all of the circumstances I am satisfied that the alcohol abuse and depression suffered by Mr Shearman was not war-caused. The decision under review will be affirmed save that the diagnosis of PTSD made by the VRB will be deleted and the diagnosis of depressive disorder will be substituted.
I certify that the 122 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr John Handley, Senior MemberSigned: .....................................................................................
AssociateDates of Hearing 18 April and 7 June 2005
Date of Decision 3 October 2005
Counsel for the Applicant Mr G Moore
Solicitor for the Applicant Mr P Liefman
Departmental Advocate Mr R Douglass
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