Day 10 – defence opens in Gill & Herron v HarperCollins & Cannane defamation trial

Day 10: 12 June 2020 – Defence opening address

Dr John Gill and former psychiatrist John Herron were involved in the deep sleep therapy scandal at the Chelmsford Private Hospital in Sydney that was the subject of a Royal Commission in 1989. Gill and Herron are suing HarperCollins Publishing Australia and ABC journalist Steve Cannane for defamation over a 28 page chapter of Cannane’s book Fair Game: The Incredible Untold Story of Scientology in Australia 

See my Day 9 post for an introduction to the case

See this link for the trial’s listing details at the Federal Court in Sydney.

Day 10 – defence opening address

Usually the defence does not open until all of the plaintiff’s witnesses’ have given their evidence, however, John Herron has fallen ill and his examination was discontinued on 9 June. It is not clear if or when he may be able to continue giving evidence.

Gill and Herron’s case

Unfortunately I was not able to observe the applicants’ (plaintiffs) opening so I will assume that counsel, Sue Chrysanthou, addressed the defences pleaded by the respondents. Those are justification, contextual truth, statutory qualified privilege and fair report of proceedings of public concern. I assume that Ms Chrysanthou argued that the defence will not be able to prove the truth of the claimed defamatory imputations, or any contextual imputations found to be conveyed in the publication.

To defeat the qualified privilege defence, the applicants will need to argue that the respondents behaved unreasonably in publishing the chapter, there was no public interest in doing so, or that the material was published out of malice (for an improper purpose, such as an intent to harm the applicants).

To defeat the fair report defences they’ll need to establish that the matters in the chapter do not constitute a report of the Royal Commission into the adverse events at the Chelmsford Hospital, and/or that any matter found to be defamatory was not published honestly and for the information of the public.

The case for the defence

Tom Blackburn SC’s opening address summarized the defence. A number of witnesses will be examined in the next weeks.

Unrepentant

Mr Blackburn began by referring to Dr Gill and Mr Herron’s evidence in these proceedings. He noted that both applicants are apparently unrepentant about the treatment they administered at Chelmsford Private Hospital. That included deep sleep therapy (DST), a high risk, unproven treatment that involves sedation with barbiturate drugs to induce a comatose state.

In 1997, former psychiatrist, Mr Herron, was deregistered over misconduct as a medical practitioner. The conduct was unrelated to the Chelmsford events. In 1989, at the Royal Commission hearings, he appeared to accept that DST was a significant contributing cause of deaths at the hospital, however, Mr Blackburn noted that Mr Herron tried to play that evidence down in these proceedings.

Mr Blackburn said that the applicants stubbornly persist in the view that the controversial treatments they delivered are respectable. They claim that the approaches are still being used in various parts of the world, but they did not bring any evidence to back such claims at this trial or at the Royal Commission. Mr Blackburn described the assertions as absurd and said there is no evidence to support the view that the therapies are either ‘mainstream, respectable or acceptable’.

The panel of experts at the Royal Commission consisted of 11 psychiatrists and one physician. Not even Herron & Gill’s own medical experts at the RC defended the Chelmsford treatments. Mr Blackburn said that the evidence will show that the applicants are either delusional, wilfully blind or being dishonest.

Fair-Game-CoverReasonableness

Chapter 14 of Cannane’s book is about the role Scientology played in exposing the abuses at Chelmsford. The book was not about the applicants. Mr Blackburn observed that Mr Gill’s name was mentioned once in the book. Mr Herron is mentioned on five pages in relation to a civil proceeding brought against him by a Chelmsford patient. Herron & Gill’s names are not mentioned in Cannane’s discussion of the Royal Commission’s final report.

Mr Blackburn described the applicants’ case as ‘utterly unmeritorious’. He said that the respondents have the task of proving facts that are beyond argument: that the medical practices in question were ‘irresponsible, grossly negligent and entirely unacceptable.’

Mr Cannane has pleaded the ‘defence of qualified privilege for the provision of certain information’. The defence covers the publication of defamatory matter if it’s proven that readers have an interest in information on the subject matter and if ‘the conduct of the defendant in publishing that matter is reasonable in the circumstances.’ Public interest is a factor in support of reasonable conduct.

Mr Blackburn said that some of the reputation evidence given in the applicants’ case suggests that the applicants maintain that public interest in the Chelmsford scandal has diminished because the events occurred some decades ago. He asserted, however, that the scandal was notorious and is still of ‘the most compelling’ public interest. Mr Blackburn said that

these events should never be forgotten

Terrible abuses such as those at Chelmsford are bound to be repeated when history is forgotten, he continued.

Mr Blackburn pointed out that Steve Cannane is a reputable and experienced Walkley award winning journalist with a background in reporting on medical issues and on Scientology. The book was carefully and extensively researched and referenced. He said it is not ‘tabloid stuff’, and that Cannane had every reason to believe that the material he was publishing was true.

The applicants’ team may argue that Cannane behaved unreasonably in that he didn’t seek a response from Dr Gill or Mr Herron, however Mr Blackburn suggested that it was not necessary to do so. Cannane had read the first six volumes of the Royal Commission report, in which the Commissioner made ‘scathing’ findings about the applicants’ honesty and credibility. Because the RC was ‘minutely thorough’ in its examination of the evidence around the Chelmsford events, Cannane could reasonably surmise that the RC findings were more reliable than any response the applicants may have had.

Mr Blackburn said that whatever criticisms are levelled at Cannane, he has not conducted himself unreasonably.

Defence of truth – medical experts

Mr Blackburn then summarized the expert medical evidence being brought by the defence which includes reports by psychiatrists including Professor Ian Hickie, Dr Jonathan Phillips and Professor Gordon Parker, and clinical pharmacologist and toxicologist Professor Ian Whyte.

The expert evidence is especially relevant to the imputations related to medical negligence and malpractice. (The full list of imputations is available at this link.) Those include:

f) The Applicant, a psychiatrist, continued to use deep sleep treatment on his patients despite the number of deaths it caused.

(j) The Applicant’s gross negligence as a psychiatrist caused the death of many of his patients.

(k) The Applicant, a psychiatrist, engaged in sustained medical malpractice and abuse of his patients.

Tom-Blackburn-SC
Defence counsel Tom Blackburn SC

Mr Blackburn described the conclusions of the reports as damning. According to Professor Whyte’s report there were ‘no accepted indications for the drug regime prescribed in DST’. The therapy carried a high risk of life-threatening effects with no evidence that it was of any benefit for any condition.

The other reports found that the Chelmsford Hospital had no process of clinical and ethical review of its treatments. The reports concluded that it was unacceptable that DST was continued after the deaths of patients without proper investigation of the causes of those deaths. There was no acceptable reason for the use of DST when safer and more effective alternatives were available from the 1950s onward. Dr Phillips’ report, which examined the medical files of 10 Chelmsford patients, concludes that the treatment administered by Gill and Herron was ‘unethical, negligent and constituted medical malpractice’.

Mr Blackburn said that the conclusions reached by the defence’s medical experts have not been challenged in these proceedings, and no contrary medical evidence has been tendered by the applicants.

Mitigation of damages

Mr Blackburn said that damages are awarded to vindicate reputation, and therefore the  applicant’s reputation prior to the publication of the allegedly defamatory material is relevant to determining how much money to award.

There is some technicality in the contextual truth defence but Mr Blackburn said that he’s preparing to argue that if the contextual imputation that Dr Gill engaged in sustained medical malpractice and abuse of his patients is proven true, it will mitigate any award of damages to the doctor. Any such damages would be minimal, or nominal.

Mr Blackburn said that the applicants’ reputation in the medical profession is relevant to the amount awarded in damages. He said that Mr Herron has no real reputation to protect as a doctor because he was deregistered for misconduct. Otherwise both applicants’ reputations were badly tarnished by their association with the ‘notorious’ Chelmsford Private Hospital.

Mr Blackburn told the court that in the event that one or more of the imputations is not covered by a defence of truth, fair report or qualified privilege, he will be arguing that the applicants are not entitled to any significant award of damages. Rather than being damaged by Mr Cannane’s book, he said Dr Gill and Mr Herron’s reputations have been comprehensively damaged by the things they have done.

Witnesses for the defence will give evidence from next week with Steve Cannane due to begin his evidence on Monday.

(Comments will be moderated. I won’t be allowing any comments that push a Scientology agenda.)

To any concerned readers, I will not be publishing the names of any former patients who give evidence.

Day 9: introduction to the case

Days 11 – 13: cross examination of author Steve Cannane

Weeks 3 and 4 Chelmsford hospital deep sleep therapy patients give evidence

Expert evidence from psychiatrists – part one – Professors Patrick McGorry and Ian Hickie

Expert evidence from psychiatrists – part two – Dr Phillips and Dr Smith, and pharmacologist Professor Whyte

Expert evidence from psychiatrists – part three – Professor Gordon Parker

Two former nursing staff give evidence

Former Matron Smith gives evidence

Former Matron Fawdry gives evidence

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