Bombers scandal: charged, <redacted> and <infracted>

[Bedraggled Dee 336]

To the lawyers of Demonland I have a question

when Mr Middleton makes his decision after the trial will the case against Essendon be a consideration? in the sense that if he rules in favour of the bombers he is essentially letting them off on a technicality despite something terrible that caused them to be there in the first place?

I personally can't see how this could be resolved unless ASADA is allowed to hand down show cause notices, the public will just continue to say, they are drug cheats, they got saved by a technicality

I am not a lawyer but that is my take on it. Middleton will only rule on whether the joint investigation was legal or not and if any or all of the evidence gathered during that investigation can be used by ASADA. If everything goes Essendon and Hirds way ASADA have stated they will just reissue the show cause notices using evidence gathered legally. I suspect that the hope is that ASADA are bluffing and they will drop the matter. Either way this action will not change the fact that a case exists for breaches of the WADA code by Essendon.

[Dr John Dee 1,057]

I am reading this from O/S. It seems extraudinary that the media are saying Essendope are sweet but WJ & Redleg are almost laughing.

Is it this cut and dried??

(Only read this if you've got nothing better to do)

That’s because Mr Leg and the whispering fellow are both lawyers with some grasp of how the law works and an understanding of how hearings like this function. Most of the media commentary you’re referring to is being uttered by Essendonians of one stripe or another who mistake the law (whatever it says, which they don’t know) and the Federal Court proceedings (whatever they mean, which they don’t know either) for their own wishful thinking.

Have a look at the Social Litigator day 2 summary linked in an earlier post. Written by a lawyer who does understand what’s going on and does refer to and evaluate what actually took place, its scorecard tends towards the one Jack is compiling. Andruska seems to have played a few uncertain strokes yesterday, but the replay will no doubt show Middleton J that the ball didn’t take the edge, indeed probably didn’t even get near it. Certainly the sort of nonsense being put about that any problems in her evidence translate into an outright victory about to happen for the EFC/Jacques Le Tergivisant is just that: nonsense.

The to-do that Essendon’s counsel attempted to invent about delegation shows just how little they understand about public administration, how it functions and its legal bases. The lawyers are largely just fishing around for something that looks like the sort of evidentiary slip that they can load up with the usual civil or criminal court case rhetoric that they know how to exploit.

So far there’s only two things that might offer minor fissures for that kind of exploitation. One is the matter that Andruska didn’t seem to handle all that well about providing the information to the AFL that allowed the interim report and the sanctions against Essendon/Hird (definitely separate bodies now). The interim report doesn’t seem to be a ‘purpose’ that ASADA was contemplating within the terms of the regulation but also seemed to know about.

Because of Andruska’s answers this is all a bit muddy, but assuming reg. 4.21 was violated Middleton J will still have to work out what the implications are for the processes of the investigation, which were presumably considerably wider, more detailed and involved than anything that took place around the AFL’s interim report. If EFC think that an appropriate remedy for this is the invalidation of ASADA’s investigation in toto (including everything gathered in the last year or so when Essendon has been clamouring for a hasty conclusion), tell ’em they’re dreaming.

The other, more interesting and probably more important issue that Andruska’s evidence doesn’t seem to have swatted to the boundary is in the proposition that ASADA wanted a joint investigation with the AFL to take advantage of the AFL’s power to compel evidence from players who could otherwise have hidden behind the self-incrimination provisions of the ASADA Act. Given that the players, Hird, the EFC and everyone else with a vested interest in doing so has proclaimed that everything injected was ‘safe and legal’ or ‘we don’t actually know what it was but it was safe anyway’, it’s hard to see how any answers players might have given to ASADA could have been anticipated to be incriminating (Hird has advanced something like this in his line about accepting an ASADA investigation because he knew they wouldn't find anything). Presumably then they would have answered everything fully and frankly and without fear.

One problem for Essendon’s/Hird’s lawyers is that they seem to think that their waving regulation 4.21 around the courtroom is somehow enough to smuggle this question about compulsion into the proceedings. But that regulation only covers information that ASADA provides to others, not information that others provide to ASADA. How could it do otherwise? Only ASADA is bound by the ASADA Act (unsurprisingly) but the efforts to get at the AFL through these proceedings might suggest that Little and his lot don’t quite understand this. And given all the fulminating about the AFL from Hird on the stand, I wonder whether the Appellants have made a serious error of judgement about what court they should really have been applying to.

But compulsion is actually an important question and it seems to me to be the only one that has any potential legs, although it’s going to be up to Middleton J to work out how it’s covered by the ASADA Act and where a judgement on it should go since he’s received precious little guidance from the Appellants’ counsel about the legal questions involved. That’s assuming he gives their interpretation any credence anyway. I presume ASADA will have its own turn on both events and interpretations of the law to offer later on.

Whether they raise it or not something that interests me is that the ASADA Act entitles a sportsperson to waive the right not to answer where self-incrimination might be involved. I don’t know what players’ contracts with the AFL look like, but if they contain some sort of clause compelling the player to provide evidence and answers in relation to any issue involving doping, that might have consequences for dealings that the player has with ASADA. This is probably one of those slippery slopes that lawyers don’t like, but it points to a really important question about what the AFL can and can’t do with the evidence it gathers.

Anyone who thinks that, if there’d been no joint investigation, the AFL wouldn’t have conducted its own concurrent inquiry into doping has forgotten all too quickly about Vlad and his paranoias, especially the one about the game’s repute. As a participant in the NAD Scheme, the AFL would presumably have then felt obligated to pass on to ASADA any information the redoubtable Clothier gained about doping at Essendon, whether provided to him under compulsion or not. Of course, according to the sort of argument that Essendon’s/Hird’s learned counsel want the court to swallow, ASADA would presumably have had to look at various bits of incriminating evidence and say no more than ‘isn’t that interesting?’ before putting it in the bottom drawer. But there are other ways to read ASADA’s obligations that make much more sense.

I toss in the name Clothier because he’s the one figure in all this who worries me. According to reports about the tanking-that-wasn’t investigation he spent his time throwing around some pretty heavy-handed threats about life bans, loss of employment and so on … and there was also the issue of strategic leaks that some thought could be traced to the investigators’ office. If Clothier has been behaving like the same sort of cowboy (although he does seem to have been a bit more circumspect according to Andruska’s notes) it doesn’t surprise me that Essendon/Hird/the players have an axe to grind about the investigation. But it’s the wrong axe. Besides, proceedings in the Supreme Court of Victoria would have been much more entertaining, especially if they’d forced Vlad into the witness box.

They’d also have been much less damaging to the standing of Australian sport, Australian Football in particular (that’s the game we invented and that pretenders like Essendon can only ever borrow). Essendon want to think their business is under threat. Apart from the fact that this is a problem of their own making, it’s nothing beside what might happen to the game itself if they get their way.

Oh, and a bit more Shaksper:

‘Who steals my purse steals trash … but he that filches from me my good name/Robs me of that which not enriches him/And makes me poor indeed.’ (Othello)

[Bedraggled Dee 336]

Dont know why that posted three times but suspect operator error

[Red and Bluebeard 2,084]

WJ, your fondness for the Scottish play might suggest that all will end in murder and mayhem ... When will Burnham wood come to Dunsinane? :-)

[Its Time for Another 4,225]

The cross examination of Andruska undoubtedly brought out the fact that her department doesn't particularly carry out its role efficiently or competently but, on the other hand, I don't believe that it achieved its aim of convincing us or the judge that its conduct went as far as to indicate that it acted beyond its power.

Sorry WJ, I think you'll find that today's evidence will show this wasn't the case. Andruska was asked a whole lot of questions yesterday that should have been directed to the people that actually ran the investigation. She wasn't directly involved in it and it was one of many matters she would have dealt with as the Head of the organisation. I bet you will find that the memory of the people today who were directly involved is much sharper. There's no problem in delegating to them, they were probably more equipped to deal with actual investigations and reports than her anyway. She is an Administrator. In any case nearly all of that was irrelevant as there's only 3 questions in this case.

1. Did ASADA have the power to carry out the investigation the way it did. This is a black and white legal question. Doesn't need any other evidence but a look at the Statutes that ASADA has its power from.

2. If ASADA didn't have the power do they have enough evidence that they got outside the "joint investigation" for the Notices to still be valid. If they did then no. 1 doesn't matter and the Notices will stand anyway.

3. If they didn't have the power and didn't have sufficient evidence other than the joint investigation and ASADA intend to issue new notices relying on other evidence, then Essendon and Hird are asking the Court to issue injunctions stopping ASADA from issuing any new Notices because the original one was invalid.

In order to get an injunction the Applicants have to show that they have "clean hands" and are worthy parties to get the injunction. Not sure how they think they are going to argue that given their own internal Switkowski damning report. Plus all the other evidence including Hird's evidence yesterday which I think does more damage for him than help. He is saying I stood before the AFL Commission and apologised and told the Commission that it was sincere but actually I only did it because of "duress, etc". No clean hands there.

Plus there's an element of public good v public harm and the harm to Australia's standing in world sport and every single Australian sportsman, would be severely compromised if ASADA were stopped from pursuing 34 drug cheats it is satisfied it has enough information on to issue Show Cause Notices.

[beelzebub 23,380]

redacted to conserve pixels

Excellent post Dr. I did have other things to do but your post became compelling cheers

[La Dee-vina Comedia 16,816]

WJ, your fondness for the Scottish play might suggest that all will end in murder and mayhem ... When will Burnham wood come to Dunsinane? :-)

I think Dank, Alavi and Charter might already be cast in the roles of the witches. ASADA should test the contents of the cauldron.

[beelzebub 23,380]

Sorry WJ, I think you'll find that today's evidence will show this wasn't the case. Andruska was asked a whole lot of questions yesterday that should have been directed to the people that actually ran the investigation. She wasn't directly involved in it and it was one of many matters she would have dealt with as the Head of the organisation. I bet you will find that the memory of the people today who were directly involved is much sharper. There's no problem in delegating to them, they were probably more equipped to deal with actual investigations and reports than her anyway. She is an Administrator. In any case nearly all of that was irrelevant as there's only 3 questions in this case.

1. Did ASADA have the power to carry out the investigation the way it did. This is a black and white legal question. Doesn't need any other evidence but a look at the Statutes that ASADA has its power from.

2. If ASADA didn't have the power do they have enough evidence that they got outside the "joint investigation" for the Notices to still be valid. If they did then no. 1 doesn't matter and the Notices will stand anyway.

3. If they didn't have the power and didn't have sufficient evidence other than the joint investigation and ASADA intend to issue new notices relying on other evidence, then Essendon and Hird are asking the Court to issue injunctions stopping ASADA from issuing any new Notices because the original one was invalid.

In order to get an injunction the Applicants have to show that they have "clean hands" and are worthy parties to get the injunction. Not sure how they think they are going to argue that given their own internal Switkowski damning report. Plus all the other evidence including Hird's evidence yesterday which I think does more damage for him than help. He is saying I stood before the AFL Commission and apologised and told the Commission that it was sincere but actually I only did it because of "duress, etc". No clean hands there.

Do you possibly think like myself that the ESS/Hird camp were happy for AA to be on the receiving end as it might have been hoped she may slip up, even in error , and offered something to run with. ?

[binman 43,124]

Outstanding post good Dr. An excellent read as the blog from the social litigator you noted. As you say the Essendonians (and in particular Warner with his cricket analogies) seem to be equating ASADA being embarrassed for its sloppy work (something we knew anyway) with a win in this particular case - as if the hearting was in fact about how competent ASADA are.

Speaking of Essndonians and press lackeys, where is Yobbo? This should be his finest hour with all the mud being slung at the AFL and ASADA. I hear he is sick but a more likely scenario is that his bosses have taken him of the case, so to speak

A couple of thoughts that your post triggered for me. One was that does the confusion raised about the status of the interim report suggest that the EFC could take the AFL to court for damages (ie the AFL had no right to use the report as the basis for penalties)?

The second thought was given Hird seemingly took the opportunity to provide more detail than was necessary in his answers and clearly had an agenda to get stuff out under the pretext of a court case and under oath (circumventing the gag order he is under as part of his agreement with EFC) why didn't he instruct his lawyer to ask him directly 'were the players ever given Thy 4 or indeed any other performance enhancing drugs'.

I know he said a variant of that in response to other, non related questions but if you look at them they were weasel words and open to interpretation - he could have been black and white about the matter but chose not to.

[beelzebub 23,380]

They cant be black and white for they have blood on their hands ( out spot lol ) hence their red sash signifying its spilling.!!

[beelzebub 23,380]

All this reminds me of driving...where you're going along only to be overtaken recklessly by a nutter who all but misses the oncoming only to arrive at that red light 5 secs before you do. They however have thought to be in the 'fast lane" and expect a quick exodus only to be stalled by the car in front of them suddenly indicating to turn right.

i.e a lot of fuss for nothing

[daisycutter 29,619]

Gee Demonland is getting very hi brow today!

Between you and WJ I feel like I should down load a Shakespearian novel.

don't think he wrote any novels od

[daisycutter 29,619]

who is this [censored] Warner, besides Slobbos drinking buddy ?

that's enough isn't it? oh and yobbo is his boss as chief football writer

[Dr John Dee 1,057]

A couple of thoughts that your post triggered for me. One was that does the confusion raised about the status of the interim report suggest that the EFC could take the AFL to court for damages (ie the AFL had no right to use the report as the basis for penalties)?

A good question. I suspect that they might have been tempted to do exactly this but the 'it's a business' line is ultimately more compelling than defeating the AFL's slap over the wrists on governance. They've had to attack the whole investigation in the hope of 'saving' the players (not that they give a stuff about the players per se, so let's just call them EFC's investment) because the 'business' will be down the tubes, at least for several years, if players are rubbed out for significant periods of time (the idiocy of not negotiating on the 6 months deal will be their Banquo's ghost to keep up the literary references). What's bizarre is that they're now using the hearing about ASADA to find whatever mud they can to throw at the AFL ... or perhaps not so bizarre given the absence of anything of substance on the real issue.

This Warner person, btw, sounds like the father of a kid who captained a team we used to have to play. The old man umpired every game. His son could only ever get out if bowled or caught with the other umpire at the stumps and invariably ended up with bowling figures of 8 or 9, sometimes 10 for 12. It worked well until about the under 14s, when things got serious. With Middleton in the white coat this particular game might just be a bit more serious than Warner is likely to comprehend.

[Its Time for Another 4,225]

Do you possibly think like myself that the ESS/Hird camp were happy for AA to be on the receiving end as it might have been hoped she may slip up, even in error , and offered something to run with. ?

Spot on. All this evidence is only relevant if Middleton decides the joint investigation was not lawful. Then they would be hoping the more muck they rake up will sway Judge to use his discretion and grant an injunction to stop ASADA issuing any further notices.

I am very surprised all parties didn't agree to break the case into two parts. First was the joint investigation lawful. This is a matter of law based on the Statutes. Wouldn't have taken very long at all and would have required almost no witness testimony. Wouldn't take Judge very long to make a ruling. If it was lawful the rest wouldn't be required. If it was unlawful then go on to the rest of the evidence. Only problem with doing it this way is that if he held it was unlawful the hearing for the next stage may not have got on for a long time depending on Court availability etc.

[Red and Bluebeard 2,084]

I think Dank, Alavi and Charter might already be cast in the roles of the witches. ASADA should test the contents of the cauldron.

Lol! There's little doubt about who is playing the role of Lady Macbeth ...

[Ted Lasso 19,521]

Closing submissions have just begun

[Bedraggled Dee 336]

I recon if the interim report is found to be given to the AFL illegally and used it for a purpose for which ASADA do not have powers it will definately open up the AFL to receive claims from Hird, Essendon, Thompson and the players. Given Hird and Littles letigious nature I would be surprised if they did not prcoeed down that line.

I would hate to think of the cost to the AFL if they were successful. They would need to repay the $2m plus damages and maybe costs which could be any amount.

I have said it before, for every AFL fan this is a huge issue the AFL just have to win.

[La Dee-vina Comedia 16,816]

A good question. I suspect that they might have been tempted to do exactly this but the 'it's a business' line is ultimately more compelling than defeating the AFL's slap over the wrists on governance. They've had to attack the whole investigation in the hope of 'saving' the players (not that they give a stuff about the players per se, so let's just call them EFC's investment) because the 'business' will be down the tubes, at least for several years, if players are rubbed out for significant periods of time (the idiocy of not negotiating on the 6 months deal will be their Banquo's ghost to keep up the literary references). What's bizarre is that they're now using the hearing about ASADA to find whatever mud they can to throw at the AFL ... or perhaps not so bizarre given the absence of anything of substance on the real issue.

This Warner person, btw, sounds like the father of a kid who captained a team we used to have to play. The old man umpired every game. His son could only ever get out if bowled or caught with the other umpire at the stumps and invariably ended up with bowling figures of 8 or 9, sometimes 10 for 12. It worked well until about the under 14s, when things got serious. With Middleton in the white coat this particular game might just be a bit more serious than Warner is likely to comprehend.

I'm not sure Mick Warner knows much Shakespeare, but over the last 18 months or so he's been very good on 3AW when discussing this topic. Mick is a properly trained news journo, rather than just a footy commentator and has (in my opinion) been quite unbiased in his coverage on radio of the issue. A couple of weeks ago he was asked why Caroline Wilson (his colleague at Fairfax Radio) and Mark Robinson (his colleague at the Herald Sun) could have such diametrically opposed positions on what appears to be the same set of facts. He said that some journalists appear to confuse reporting with opinion writing.

And while Mark Robinson is the Chief Football Writer at the Herald Sun, that doesn't make him Mick's boss. Just gives Robbo a grander title.

[Its Time for Another 4,225]

I recon if the interim report is found to be given to the AFL illegally and used it for a purpose for which ASADA do not have powers it will definately open up the AFL to receive claims from Hird, Essendon, Thompson and the players. Given Hird and Littles letigious nature I would be surprised if they did not prcoeed down that line.

I would hate to think of the cost to the AFL if they were successful. They would need to repay the $2m plus damages and maybe costs which could be any amount.

I have said it before, for every AFL fan this is a huge issue the AFL just have to win.

Don't agree. Virtually all the evidence in the Interim Report was collected by the AFL. It even included information cut and pasted from the AFL. It was just a Report where everything was put together. It won't effect the sanctions the AFL handed down last year.

It's only relevance to these proceedings is if ASADA acted outside it's power then they might be relevant to the court using its discretion to grant an injunction stopping future notices. But I think other matters will outweigh this anyway.

[monoccular 17,432]

The only Shakesperian line I could remember was "bull's pizzle". No idea why that one stuck. But it certainly applies to the way Essendon are flogging their dead horse.

You have me there hardtack I don't know it but I imagine more learned members than me will advise the origin.

Re the bombers I still fear the pricks will get off.

Old Will sure knew how to phrase an insult - a few more applicable to the current situation.

Henry IV Part 1

“You starvelling, you eel-skin, you dried neat’s-tongue, you bull’s-pizzle, you stock-fish–O for breath to utter what is like thee!-you tailor’s-yard, you sheath, you bow-case, you vile standing tuck!”

The Two Gentlemen of Verona - of Jacques Merde

“Thou subtle, perjur’d, false, disloyal man!”

And

Henry V

“There’s no more faith in thee than in a stewed prune.”

[Its Time for Another 4,225]

He said that some journalists appear to confuse reporting with opinion writing.

No confusion. There isn't any true journalism anymore trying to objectively report facts, it's been replaced with Opinion writers. Wilson and Robinson aren't journalists they are Opinion writers. Newspapers seem to think that is more important nowadays to prop up dying sales. Unfortunately for me, I can't stand the opinions of Caro or Robbo.

Edited August 13, 2014 by It's Time

[Ted Lasso 19,521]

Young QC questioning whether Parliament would have intended that AFL would be an "entrusted person" under ASADA Act to whom evidence from investigations could be disclosed

I would suggest that the leaders of the relevant sporting body would and should be included in this

[Sideshow Bob 2,386]

What was that about lady Macbeth... Sorry Jaques Tird.

(Had the soliloquy memorised for a school English exam 20something years ago - who knew it was really about Hird - obviously Andruska/ASADA is Duncan in Hirdy's mind)

Hark,The raven himself is hoarse

That croaks the fatal entrance of Duncan

Under my battlements. Come, you spirits

That tend on mortal thoughts, unsex me here,

And fill me from the crown to the toe top-full

Of direst cruelty. Make thick my blood.

Stop up the access and passage to remorse,

That no compunctious visitings of nature

Shake my fell purpose, nor keep peace between

The effect and it! Come to my womans breasts,

And take my milk for gall, you murd'ring ministers,

Wherever in your sightless substances

You wait on natures mischief. Come, thick night,

And pall thee in the dunnest smoke of hell,

That my keen knife see not the wound it makes,

Nor heaven peep through the blanket of the dark

To cry Hold, hold!

[binman 43,124]

I'm not sure Mick Warner knows much Shakespeare, but over the last 18 months or so he's been very good on 3AW when discussing this topic. Mick is a properly trained news journo, rather than just a footy commentator and has (in my opinion) been quite unbiased in his coverage on radio of the issue. A couple of weeks ago he was asked why Caroline Wilson (his colleague at Fairfax Radio) and Mark Robinson (his colleague at the Herald Sun) could have such diametrically opposed positions on what appears to be the same set of facts. He said that some journalists appear to confuse reporting with opinion writing.

And while Mark Robinson is the Chief Football Writer at the Herald Sun, that doesn't make him Mick's boss. Just gives Robbo a grander title.

I agree to an extent, however what credibility he had is slipping away with his pronouncements of an easy Essendon/Hird win in this case. Such a position is impossible to maintain and given he is supposedly the Hun expert on this matter reflect badly on him. No coincidence that his 'opinion' reflects what his masters (read Hird) want to hear. Makes it all the easier to slam any contrary finding. Funny also that he he seems to be confusing opinion with fact here.

Interesting that he has been in the court throughout yet still come to his conclusion that it is lay down misere for the EFC and Hird. Surely a half decent journo would get the opinion of a decent legal person or perhaps even bothered to read the social litigator blog that is even handed. Sloppy