This is Part 3 of a 4 part blog.

 Part 1 can be found here and Part 2 can be found here

I’ve just come across a copy of Professor Ken Harvey’s original complaint which also includes screenshots of the  First Whooping Cough Article that were the basis of the complaint.

Wednesday 20th September 2013 Ms Sheffield was delayed by a glitch with the  trains. While we waited for her, Justice Perry and counsel addressed administrative issues. The court was informed that Dr Golden would not be available to appear via video link until the afternoon. Justice Perry reminded Mr White (for HP) that the video was booked for 30 to 45 minutes and if it was any longer it would cost more. I think this was a veiled reference to his 10 minute opening address that took more than 45 minutes yesterday. Ms Sheffield and her daughter arrived.  Discussion then continued from yesterday about the admissibility of Dr Golden’s affidavit as expert opinion.  Justice Perry announced that she would take a 10 minute adjournment to rule on objections by Ms Higgins (for ACCC) to Dr Golden’s affidavit. Justice Perry came back with three findings

  1. Dr Golden’s affidavit does not contain evidence of effectiveness of homeopathy therefore his admissibility as an expert is denied.
  2. All of the  parts of Dr Golden’s affidavit objected to by ACCC were excluded (including Appendix E).
  3. HP can’t complain about the excess scrutiny of Dr Golden’s affidavit as he was afforded the same opportunity with ACCC experts but declined to use that opportunity.

Mr White appeared quite disheartened with Justice Perry’s ruling. Large chunks of Dr Golden’s affidavit were then redacted by mutual agreement by both parties. Mr White then protested  that he hadn’t had time to review all of the objections by ACCC as he didn’t receive them until 3.45pm on the previous Thursday. Because most of Dr Golden’s evidence was now on shaky ground Mr White asked Judge Perry for an adjournment to consider Waiver of Rules of Evidence based on Section 190 3(b) . ACCC objected strenuously and said that HP should have ensured that his evidence met the required standards before sending it to her and that by not doing so, he failed to meet his legal obligations. Judge Perry said she would take a 20 minute adjournment to rule on HP’s request for a waiver. The adjournment actually took over an hour and Mr White looked worried. Judge Perry denied waiver of rules of evidence saying

  1. ACCC gave plenty of notice to Mr White of the scope of objections.
  2. That Mr White should have foreseen the deficiency of evidence and therefore the number of objections raised by the ACCC to the evidence shouldn’t have come as a surprise.
  3. If Mr White didn’t think that he had time to deal with the number of objections and repair his client’s evidence he should’ve contacted the court and asked for the trial date to be vacated.

For more information regarding evidence see Section 3 of the judgment Dr Golden appeared via video link looking quite pleased with himself and wearing a colourful Bukharan yarmulke.  Ms Higgins introduced herself to him and explained to him  that most of his evidence had been excluded. She explained that he would only be able to answer the questions that she put to him and that no additional information would be accepted. Dr Golden didn’t look happy or comfortable with this information. Ms Higgins verified that Dr Golden had a copy of his affidavit. Her first question to him was why he didn’t annex all of his references in his affidavit, to which he responded that he didn’t know that he had to. This guy claims to be an academic. Ms Higgins suggested that Dr Golden deliberately omitted major conclusions from his references. He was then asked if the reason he didn’t annex all of his references was because it wouldn’t have reflected the basis of his affidavit. He very indignantlly responded “Not at all!” Mr White declined to ask any questions of Dr Golden and he was excused.  His testimony was completed in about five minutes. Dr Mark Donohue’s affidavit as an expert opinion was then introduced. Ms Higgins began going through her objections to his affidavit. Justice Perry asked on what basis is he an expert given that his CV hadn’t been updated since 2003! Mr White responded that he was a General Practitioner who had treated many case of pertussis.  Justice Perry asked if he was still practising, Mr White wasn’t sure. Ms Higgins commented that Dr Donohoe’s affidavit didn’t really present any evidence and was more in the form of an essay. Mr White looked embarrassed. Ms Higgins protested that Dr Donohoe’s affidavit had a list of more than 50 references without any context.  I think that’s what we in the skeptic game call ‘gish gallop‘. Mr White again cried unfair at the level of scrutiny that his witnesses were subjected to. Everyone just looked at him as if to say “Really? You’re going there again?”. Mr White then asked Justice Perry if Dr Donohoe’s affidavit could be excluded in total and for him not to be called as an expert witness to give testimony citing cost as an issue.  Justice Perry gravely warned Mr White that his client was facing very serious charges and that it may not be in her best interests to dismiss one of their expert witnesses without consulting Ms Sheffield first. She then asked Mr White if he would like a short adjournment to consult with his client to which he agreed. I am not a lawyer, but Justice Perry seemed to go out of her way to ensure that Ms Sheffield was given the opportunity to present her best case. This was extremely difficult for Mr White to do given the dearth of valid evidence and opinion to support the case. Mr White returned from the adjournment to announce that Dr Donohoe would not be called as an expert witness but that they would still like to submit his affidavit subject to ACCC’s objections. Ms Higgins then continued to scrutinise Dr Donohoe’s affidavit. Part of his affidavit were five articles from New Scientist magazine without any context or reference. Ms Higgins argued that submitting magazine articles without supporting evidence constituted hearsay and couldn’t be accepted. Justice Perry agreed.  Court was then adjourned until the following morning. After reading Justice Perry’s judgment, its apparent that the only remnants of Dr Donohoe’s affidavit left, supported the case for ACCC. (Section 3, Paragraph 24) “Insofar as his evidence was admitted, Dr Donohoe’s evidence was largely consistent with that given by the experts called by the ACCC, as I later explain.”  Links: Professor Ken Harvey’s complaint to ACCC ACCC v Homeopathy Plus judgment DISCLAIMER: This post contains personal views and reflections about the case and the hearing. It should not be relied upon as legal opinion.

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