This is Part 4 of a series Part 1 can be found here, Part 2 can be found here and Part 3 can be found here.

I must give a big shout out to Carolyn Bond for the notes from the last day’s proceedings. I was unable to attend and she stepped into the fray for me. I would also like to acknowledge Carolyn’s help in proof reading and editing my previous posts and her spouse for his legal advice and review. Follow her on Twitter for all things consumerish & some humour.

Ms Sheffield was cross examined in the witness stand on her written evidence by Ms Higgins for the ACCC. Prior to that, her own barrister, Mr White went through a number of annexures to her affidavit to gain agreement from ACCC counsel that they can be relied upon to prove the existence of the articles, their titles and subject matter BUT not as evidence of the efficacy of homeopathic remedies.

The reason that Ms Sheffield was cross examined is because her written evidence or affidavit is considered her evidence. Therefore questioning by ACCC is considered cross examination. Not like TV legal dramas at all. Not a hint of shoutiness.

We don’t have access to her affidavit so it would be advisable to also rely on the judgment for more information on the content of her written evidence.

ACCC put a considerable amount of focus in questioning Ms Sheffield about links on her website and whether the articles link to sales of products.  I am reliably informed that a key issue in this case was whether or not the statements were made “in trade or commerce”.  The prohibition on misleading and deceptive statements in the Australian Consumer Law doesn’t apply unless the statement is made “in trade or commerce”. There have been many cases where the exact meaning of this phrase has been considered (see  Section 8 of judgment).  The word “in” is important here, because the law doesn’t apply to all statements made by, or in relation to, a business.  However, if the statements are aimed at customers or potential customers of a business, and play a role in persuading people to use the goods/services provided, then they are likely to be found to be made “in trade or commerce”.  In some cases a person could be found guilty of a breach even if they are not the business or business owner (for examole an employee).

ACCC proceeded to question Ms Sheffield in detail about the three articles referred to in the judgment. She was asked about her sources and references and whether she may have misused her sources and references. The ACCC pointed out a number of instances where she had cherry picked from her references – quoting from one part but not mentioning important clarifications and conclusions. One example was from a radio interview where Ms Sheffield quoted a statement from an expert relating to a reduction in the effectiveness of the pertussis vaccine. This reduction was attributed in part due to a change in the pertussis strain but Ms Sheffield failed to mention that the interviewee qualified this by saying that vaccination still had a significant protective effect. Ms Sheffield admitted that she didn’t refer to some parts because she didn’t agree with them.

Ms Sheffield was then asked about her statement “side effects are common” in relation to the pertussis vaccine and have a “long history of side effects”.  Ms Sheffield took this part of her evidence from an article by Meryl Dorey called Pertussis: the Fear Factor  Ms Dorey was President of the now discredited Australian Vaccination Sceptic Network at the time that she wrote that article. Ms Sheffield indicated that she was also referring to the manufacturer’s own statements. What Ms Sheffield referred to is what the anti-vaccination groups call the “package insert” but what doctors and pharmacists call Product Information or PI. The PI is aimed at health professionals who know what they are reading and can put the information into perspective.  Ms Sheffield conceded that The Dorey article didn’t actually state the occurrence of side effects and that the side effects list that she relied on from those sources were actually potential side effects and don’t indicate occurrence at all.

Ms Sheffield was asked if she is anti vaccination. She said that no, she wasn’t, she was pro – homeopathy. It was put to her that there were no pro vaccination references in any of her articles. She disagreed, saying that the fact that she referred to homeoprophylaxis as a second line of defence is “acknowledgement of vaccine use and that I recognise that vaccination may have already been given.”. Interestingly, Ms Sheffield has previously criticised Meryl Dorey of dishonesty over her anti-vaccination denials and “pro-choice”claims.

It was apparent that Ms Sheffield was a true believer.  Some statements that she made while in the witness stand were:

“I’d like to see the public better protected by homeopathy.” and
“Sometimes I think I’m the only person who can see it.” and
“I would like to see the government provide free homeopathic treatments to the public.

The court adjourned for lunch given that all witness testimony had been heard.  I should point out that the judgment mentions Dr Jurgen Schulte who was presented as part of Homeopathy Plus’s expert evidence. I don’t remember being in court for this and neither does Carolyn but Dr Schulte’s affidavit was excluded in its entirety on the grounds of relevance. I can only assume that is because he has no background in health or medicine and no specific knowledge of pertussis. When I googled him I found that he is a Lecturer in the School of Physics and Advanced Materials. I have no idea why somebody with that background would be considered an expert witness in a case about homeopathy and pertussis vaccination.

The next part in this series will deal with the summations by counsel for both parties.

Links:

ACCC v Homeopathy Plus full judgment

Pertussis: The Fear Factor by Meryl Dorey

Public statement – warning about the Australian Vaccination-sceptics Network, Inc. (AVN)

Product Information Infrarix

Fran Sheffield declares the Australian Vaccination Network  “anti-vaccine”

 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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