The appellant's argument
112 The appellant relied primarily upon the manner in which he had addressed the jury in relation to this imputation. He submitted that paragraph 13, in combination with paragraph 5, inevitably conveyed the suggestion that patients should be told that doctors were being paid by Pharmaceutical Companies for arranging their participation in drug trials.
113 He submitted that paragraphs 32 and 33 made it clear that Mrs James did not know the appellant would be paid for her participation in the drug trial. He referred also to paragraph 81 and the fact that the appellant who appeared before the Guardianship Tribunal did not tell the Tribunal that he received payments for each visit ranging up to $1,000 a patient. He submitted that paragraph 81 suggested that the appellant's conduct in failing to disclose his financial arrangements to the Tribunal was unethical and that this strengthened the inference that the appellant's failure was a result of deliberate concealment.
114 He submitted that the material necessarily conveyed the suggestion that the only reason patients were not specifically informed about the appellant receiving payment was because the appellant deliberately concealed that fact from them. He submitted the deliberate concealment was unethical because patients should expect to be informed that they are part of drug trials.
115 The respondent submitted that contrary to the appellant's submission concerning the inevitability of the suggestion said to be conveyed by paragraph 13, other parts of the article explicitly contradicted that suggestion. It referred to paragraph 7 which stated that "patients do not have to be told of the financial arrangement" and paragraph 82 which noted that "financial disclosure was not required under State laws". It also referred to the fact that the reader was told that only two of 1,712 trials had to be reviewed by the Therapeutic Goods Administration (paragraph 14). It submitted that the fact that the appellant was quoted in the article as stating that patients were informed that the drug company would pay for their treatment (paragraph 89), which necessarily included payment to him, would lead a reader to conclude that his comments were not the utterances of someone who had anything to conceal.
116 Secondly, the respondent submitted that even if the reasonable reader may have concluded the payment was deliberately concealed from patients, the article did not provide any basis for a conclusion that not being so informed amounted to "unethical" behaviour. It submitted that paragraphs 14 and 82 contradicted the proposition that patients should be told about financial arrangements.
Decision
117 In my view the jury's decision that imputation (a) was not conveyed was one which a reasonable jury could have reached.
118 It is important in this context first to have regard to the nature of the article. There is no doubt that the headline is dramatic and eye-catching. The expression "body-snatchers" certainly carried a negative connotation in implying that those associated with the drug industry were using people's bodies in a manner which may not be appropriate. It is, in my view, improbable that the jury would have accepted Mr McClintock SC's submission that readers of the newspaper would read the article by recalling the illicit and somewhat arcane practice to which he had referred.
119 Once one comes to read the body of the article, however, it is open to the interpretation that its real focus is on the inadequacy of the current regulatory regime, in the view of some medical practitioners, to protect patients' rights in drug trials. The converse of this proposition is that medical practitioners who were recruiting patients for drug trials were acting within the current regulatory regime.
120 Thus, paragraph 5 refers to Australian patients being used as guinea pigs "without explicit laws to adequately protect their rights", paragraph 7 refers to the fact that "patients do not have to be told of the financial arrangements", paragraph 10 refers to the Chairman of the Australian Drug Evaluation Committee who believes "the protection of patients' rights in drug trials needs a major overhaul", paragraph 14 refers to the Therapeutic Goods Administration, "the main responsible Federal Government Authority", being obliged only to review directly 2 of 1,712 clinical trials carried out in Australia the previous year, paragraph 18 refers to the "ease of getting approval" for drug trials in Australia, paragraph 20 refers to the approval of an experiment by the NSW Guardianship Tribunal, paragraph 35 refers to the fact that "since regulations were eased a decade ago, Australia has become an important testing centre for international pharmaceutical companies", paragraph 74 refers to Dr Beran using intellectually handicapped people in drug trials with the approval of the Royal North Shore Hospital Ethics Committee, paragraph 75 refers to the fact that in 1999 the Guardianship Tribunal granted the appellant the right to use a number of intellectually disabled people in the trial of an experimental drug and paragraph 82 refers to the fact that the President of the Guardianship Tribunal said financial disclosure was not required under State laws.
121 Whether one regards those specific references to the regulatory regime within which the drug trials the subject of the article were being conducted as the foreground or the background, it was, in my view, open to the jury to accept the respondent's argument that the matter complained of did not suggest that there was any obligation upon the appellant (or anyone else) to disclose the fact that medical practitioners were receiving payment in relation to patients' participation in drug trials.
122 Once it is understood that the article explicitly stated that patients did not have to be told of the financial arrangements relating to drug trials then it was open to the jury to conclude first, that the appellant would not have deliberately concealed the fact he was receiving payment from potential participants in drug trials and, secondly, that in those circumstances there could be no question that he had behaved in an unethical manner.
123 In my view, the jury's answer to imputation (a) was reasonably open to it.