Incident 4: the plane journey from Boston to Los Angeles
239. The RAD sets out the Defendants’ case (see paragraph 53) relating to this incident and the RAR sets out the Claimant’s reply (see paragraph 54).
240. Ms Heard gave her account of this incident in her first witness statement paragraphs 65-83. She was not cross-examined about this incident.
241. In about May 2014 the Claimant was making a film in Boston. Ms Heard was making a film called ‘The Adderall Diaries’ in New York. One of the other actors in her film was James Franco. Mr Franco was considerably younger than Mr Depp. Mr Depp said that he could not understand why Ms Heard had agreed to appear in another film with Mr Franco since, when they had been together in a previous film, she had accused Mr Franco of making sexual advances to her. He said that she described said Mr Franco’s behaviour as ‘creepy’ and ‘rapey’. Ms Heard had also expressed the wish to move away from parts which objectified her. Mr Depp thought this was inconsistent with her accepting a part in another film with James Franco. He agreed that Ms Heard might be concerned that he would become jealous of Mr Franco. There is some other evidence that Ms Heard was apprehensive about this. On 10th May 2014 Ms Heard sent an email to her assistant Kate James, asking her to ensure that the Claimant did not see the ‘one- liner’ of her schedule. She was concerned that, if he did, he would see the romantic nature of the scenes she was playing with Mr Franco and the Claimant’s jealousy would be further inflamed.
242. The Claimant chartered a private plane to fly him and Ms Heard to Los Angeles. The flight was on 24th May 2014.
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Two days before the plane journey, on 22nd May 2014, Mr Depp had his first consultation with Dr Kipper. As Dr Kipper recorded in his notes (file 4/123/F736),
‘Mr Depp is a 50 year-old male who has had a life-long history of self-medicating behaviours involving multiple substances of abuse. These include alcohol, opiates, benzodiazepines, and stimulants (cocaine).... Impression ... Chronic substance abuse disorder. Plan: ... Maintain current dosing of Roxycodone and Klonopin. Discussed the withdrawal of these two drugs once patient is back in Los Angeles. I would not recommend withdrawal until he completes his current work. ... Psychological counseling after he returns home from Boston and his medications have been properly adjusted.’
The Claimant did not recall whether he was under the influence of alcohol and/or drugs during the plane journey. However, in a text sent on 30th May 2014 to his friend, Paul Bettany, and which he agreed was about this flight, he said (file 6/119/F697.34),
‘I’m gonna properly stop the booze thing, darling ... Drank all night before I picked Amber up to fly to LA this past Sunday ... Ugly, mate ... No food for days ... Powders ... Half a bottle of Whiskey, a thousand red bull and vodkas pills, 2 bottles of Champers on plane and what do you get ... ??? An angry, aggro injun in a fuckin blackout, screaming obscenities and insulting any fuck who gets near... I’m done. I am admittedly too fucked in the head to spray my rage at the one I love. For little reason I’m too old to be that guy But, pills are fine!!!.’
The Claimant agreed that the reference to ‘powders’ in this text referred to cocaine. He agreed that he had been incorrect earlier in his evidence when he said he had not taken cocaine at the time of this flight. He said,
‘I did not remember that flight being such a nightmare.’
He thought the reference to ‘pills’ in his text to Mr Bettany was to Roxies to which he was then addicted. Having been reminded of the text, he accepted that he had consumed alcohol and cocaine both before and on the flight. He denied that he could not remember the flight at all, but, he said, parts of the flight were blacked out, as he had also said to Mr Bettany, and he probably would not have said that had it been untrue. Mr Deuters, who was also on the plane, said of the Claimant that ‘his memory was not solid all the way through’.
Mr Deuters supported the account in the RAR that the Claimant had not during the flight assaulted Ms Heard. He said that the Claimant had never kicked her. The configuration of the seats and tables in the plane would not have allowed him to do so. The Claimant may have playfully moved to tap Ms Heard on her bottom with his shoe, but he was not sure that this connected. He said that the Claimant had been quiet and focussed on his sketching. Eventually the Claimant had gone to the bathroom.
Mr Deuters sent Ms Heard a series of texts beginning at 21.13 on 24th May 2014 which he accepted must have been after Ms Heard had disembarked from the plane. These said (see file 6/119/F697.28),
‘He’s up. In the bathroom. Moving slowly. Will [let] you know when on route and how he is in the car ... He’s in some pain, as you might guess ...’
244.
245.
246.
247.
248.
MR JUSTICE NICOL Depp v NGN and Wootton Approved Judgment
MR JUSTICE NICOL Depp v NGN and Wootton Approved Judgment
249. Mr Deuters explained that the Claimant had fallen asleep in the bathroom. He was potentially hungover, or it might have been indigestion because of the opiates the Claimant was taking.
250. Then a little later he sent a further series of texts,
‘We’re on our way to [Sweetzer Avenue] ... He’s been sick. We’re gonna get him straight to bed.’
251. The following morning (so 25th May 2014) Mr Depp sent a text to Ms Heard which said (file 6/119/F697.29),
‘Once again, I find myself in a place of shame and regret. Of course I am sorry. I really don’t know why or what happened. But I will never do it again. I want to get better for you. And for me. I must. My illness somehow crept up and grabbed me. I can’t do it again. I can’t live like that again. And I know you can’t either. I must get better. And I will. For us both. I love you. Again I am so sorry. So sorry. I love you and [f]eel so bad for letting you down. Yours.’
252. Mr Depp was asked why he had apologised if he had not behaved badly. He said that he apologised because Ms Heard was unresponsive to him. She would not let go of her beliefs and so he used words which she would find pleasing. He said he spoke of being in a place of shame and regret to take the poison out of her quill and because, in the course of a verbal argument, he might have said ugly words. The illness to which he had referred was to his excessive drinking.
253. He agreed that he and Ms Heard had screamed at each other. Ms Wass played a tape which she submitted had been made on the plane and on which a male could be heard moaning or making animal noises. The Claimant said he was not sure that it was his voice or that the recording had been made on that plane journey. The Defendants applied in the course of the trial for permission to adduce expert evidence on this topic. The application related to other items as well. I shall return to consider that application in the context of Incident 14. It is sufficient to say at this point that I refused the application.
254. The Claimant said that he had instructed Mr Deuters to try to placate Ms Heard which, Mr Deuters said, explained the series of texts he sent to Ms Heard starting at 15.45 on 25th May 2014. These said (see file 6/119/F697.29 The time was 13.19 according to the copy at 7/1/H13)),
‘Hey. He’s up. He’s much better. Clearer. He doesn’t remember much, but we took him thru all that happened. He’s sorry. Very sorry. And just wants to get better. Which allows us to make him follow up on that promise. ... He’s teary. He doesn’t want to be a fuck-up any more – his words. He’s got bad indigestion this morning but otherwise alright. He’s gone back to sleep for a bit.’
255. Then a little later at 17.25 (or 10.25),
‘There feels like a sea change in him this morning. He just spoke about how bad he feels and he wasn’t talking physically ... He’s incredibly apologetic and knows that
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he has done wrong. He wants to get better now. He’s been very explicit about that this morning ... Feel like we’re at a critical juncture.’
256. At 20.47 (or 13.47) Ms Heard texted Mr Deuters,
‘Obviously he has no idea what he did or to the extent that he did it. If someone was truly honest with him about how bad it really was, he’d be appalled. The man johnny is would be humiliated. And definitely wouldn’t say to me that he doesn’t deserve it. I’m sad he doesn’t have a better way to really know the severity of his actions yesterday. Unfortunately for me, I remember in full detail everything that happened.’
257. A few seconds later Mr Deuters responded,
‘He was appalled. When I told him he kicked you, he cried ... It was disgusting. And he knows it.’
258. Again, Mr Deuters said that he was saying to Ms Heard what he thought she wanted to hear. He had done what the Claimant instructed him to do: try to placate Ms Heard.
259. On 27th May 2014 Ms Heard sent a text to Mr Depp in which she declared her love for him. She added, however (see file 6/119/F697.33),
‘I know you have a sickness – I know you’re suffering Johnny. I’d do anything to be able to take that away from you ... if only I could.’
260. In his trial witness statement, Mr Depp exhibited a text which he sent to his sister, Christi, on 27th May 2014 (so three days after the flight). Mr Depp wrote (see file 2/38/D66),
‘No reason for her to speak to anyone, let alone a doctor ... I’m out. I’m done. Her actions have added more drama than necessary and when was I unhealthy, exactly??? When I was not sober for a day??? Hmm ... I guess that’s what people call falling off the wagon ... It’s happened to a lot of my friends. ... Their wives don’t stop calling them.’
Mr Depp’s response to his sister does not sit easily with Dr Kipper’s notes which I have already quoted above and which Mr Depp agreed in evidence must have come from information he provided to Dr Kipper.
261. Mr Deuters had been in touch with Christi (see his text of 25th May 2014 at 16.06 or 20.47). She sent sympathetic texts to Ms Heard.
262. In his trial witness statement Mr Depp also says,
‘I remember the flight from Boston to Los Angeles in detail’.
That, too, does not accord with his evidence in cross-examination when he said that ‘parts of the flight are apparently blacked out’, which is also what Mr Deuters described.
263. Mr Deuters denied that Mr Depp had shouted obscenities at Ms Heard or had assaulted her. At most Mr Depp had playfully tapped her back or bottom.
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264. On 8th June 2014 Mr Depp sent a text to a woman called Patti Smith or Lee which included the following (file 6/119/F697.34),
‘’I’ve been so busy with film here in Boston then back to L.A. for kiddies ... When I was in NYC ... They were brief visits, and fucked and charged by horrific flights with Amber ... I fucked up and drank and got shitty. Was so disappointed in myself ...’
265. My conclusions regarding Incident 4 are as follows:
i) Before and/or during the flight Mr Depp consumed substantial quantities of alcohol. He also took cocaine.
ii) Mr Depp was jealous of Mr Franco who was much younger than Mr Depp and closer to Ms Heard’s age. Mr Depp suspected that Mr Franco and Ms Heard were having an affair. Ms Heard denied that was the case, but whether it was true or not is immaterial. It could not (and Mr Depp did not suggest it could) justify any abuse of Ms Heard or what followed.
iii) As had happened previously when Mr Depp became drunk and high on illegal drugs, he insulted Ms Heard and screamed obscenities at her. In his closing submissions, Mr Sherborne submitted that Mr Depp would not have done this in the presence of Mr Deuters, Mr Jerry Judge (Mr Depp’s head of security) and the flight crew. However, I prefer the evidence of Mr Depp’s text to Mr Bettany in which after recounting what he had consumed he asked rhetorically, ‘What do you get?’ Mr Depp’s answer to that question was,
‘a fuckin’ blackout, screaming obscenities and any fuck who gets near.’
iv) These verbal insults became, in the course of the flight, physical abuse. Whatever the configuration of the furniture on the plane, Mr Depp managed to kick Ms Heard on her back or bottom. This was more than a ‘playful tap’, contrary to what he and Mr Deuters said in their evidence. Mr Sherborne submitted that Mr Deuters (and Mr Judge) would not have allowed that to happen. I do not accept that submission. Their first loyalty was to Mr Depp.
v) At some stage, because of his consumption of alcohol and drugs Mr Depp passed out. I do not accept that he simply chose to sleep in the toilet to get away from Ms Heard. Her account that he passed out is more in keeping with Mr Deuters’ text, after they landed and Ms Heard had disembarked, that Mr Depp could not leave immediately because he was ill.
vi) His consumption of alcohol and drugs was also the reason he was ill when the plane arrived in Los Angeles.
vii) Mr Depp did not, as he said in his trial witness statement, remember the flight in detail. On the contrary, as he agreed in cross-examination, there were times when he blacked out. That also accords with the evidence of Mr Deuters.
viii) It was perhaps because of his patchy memory that he did not recall kicking Ms Heard until he was reminded of this by Mr Deuters. He was then tearful and
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apologetic. I do not accept his and Mr Deuters’ explanation that Mr Deuters’ text communicating this and Mr Depp’s text of apology were an insincere attempt to placate Ms Heard.
ix) I have reached my conclusions regarding this incident without reliance on the tape played by Ms Wass. It was not sufficiently established by the evidence that this was a recording of the same flight.