THE ESSENDON 34: ON TRIAL

[beelzebub 23,311]

I'm repeating myself but unless you are directly involved how would we know if there is or isn't proof exonerating players or that so far we have nothing?

And in anycase the players don't need proof, ASADA do and we are even less sure if ASADA have the required proof - the confidence of a number of erstwhile DL posters nothwistanding

With all due respect Bin, this is a fundamental error in your stance. The nature of the beast has been that ASADA have had to be able to substantially build a case and describe how it believes the players/club have transgressed. Only upon scrutiny does it get the rubber stamp and SCN's are issued. Its that they ( players ) have chosen a non-response to the show cause nature that its progressed to this type of tribunal.

if the players can show no alternative to the ASADA scenario, if they can not prove the innocence of their position then they will indeed be in trouble.

This is not a court of the land whereby the accused can sit idly and the crown "prove' its case to a jury and whereby the accused maintains a ally in 'reasonable doubt ' etc such as in the adversarial system. These tribunals are more akin the Inquisitorial style.

Whilst they chose to not answer the show cause when previously directed they do now.

[jnrmac 20,042]

Look clearly we have different views on this. Mine is that many people are asserting the players are cooked based on a belief that as you say ASADA have enough proof, circumstantial or otherwise, as well as a strong paper trail and interviews that we have not heard detail of.

But unless you are directly involved in the case how would anyone know that this is true or how strong the evidence actually is? We do not know what evidence they have - we only know what it is rumored they have via leaks. Forgive me if i don't swallow every rumor that dribbles out. Yes ASADA got legal advice from apparently knowledgeable people that they had a good case but that is no guarantee at all that this evidence will be strong enough to pass the comfortable satisfaction test.

I'm not saying they will get off. I'm simply saying no one on this site has a clue what is actually being argued, what the evidence is, what the defense is or what the prosecution case is. So how can definitive statements like they are cooked hold any value or stand the test of any intellectual rigor?

The one thing we do know for a fact is that the tribunal has said it will take 4-6 weeks to reach a decision. If it was such a slam dunk, if the case against the players was so strong why on earth would it take this long?

By the by if the players do get found guilty do us all favor Jnr, BB et al please don't say i told you so because a guilty verdict will not be proof of your assertion that it is a slam dunk, lay down misere.

Legal processes take time. Even slam dunk ones.

You are right that none of us really know what is contained in the evidence presented. But the fact the burden of proof is much lower than criminal standard makes it more, not less, likely the charges will stick.

Ess have leaked like a sieve through this pricess with a complicit and fawning media. ASADA have let very little out. If Ess had any evidence they would have leaked it out. Plain and simple. Guys like Crameri and Monfries would have said 'here it is now leave us alone'. But they haven't.

Dank would have said here is the proof now go away. He hasn't. He has become a pariah in the process and would certainly have released evidence to clear himself et all if he had it. He doesn't.

EFCs own investigation was damning saying they didnt know what the players took. In the absence of that evidence and the incriminating paper trail of drug purchases, history from Cronulla, Gold Coast etc means any defence based on disproving the accusations are frankly negligible.

Comfortable satisfaction has a nice ring to it. It's a relatively low bar. I'd rather be on my side of the fence than yours.

[binman 42,468]

Ah, but they do. The thing is ASADA don't go in empty handed. At this stage the players are in a position where they must disprove. So the onus is really on them now.

Arrggghh! Thuis is not the case at all. The burden of proof is on ASADA, as has been established on this thread previously. The players only have to argue that ASADA's case is not strong enough to establish to the comfortable satisfaction of the tribunal they took banned substances.

[binman 42,468]

With all due respect Bin, this is a fundamental error in your stance. The nature of the beast has been that ASADA have had to be able to substantially build a case and describe how it believes the players/club have transgressed. Only upon scrutiny does it get the rubber stamp and SCN's are issued. Its that they ( players ) have chosen a non-response to the show cause nature that its progressed to this type of tribunal.

if the players can show no alternative to the ASADA scenario, if they can not prove the innocence of their position then they will indeed be in trouble.

This is not a court of the land whereby the accused can sit idly and the crown "prove' its case to a jury and whereby the accused maintains a ally in 'reasonable doubt ' etc such as in the adversarial system. These tribunals are more akin the Inquisitorial style.

Whilst they chose to not answer the show cause when previously directed they do now.

I respect your view but hold a different one. I think you are confusing/conflating the SCN stage with this one. In any case i think for my sanity and other DL poster's patience i think it is time we agreed to disagree and let it be.

One final cooment: I hope James Hird ends up having to face the tribunal

[beelzebub 23,311]

Interesting reading for those with any time.

the ‘comfortable satisfaction’ standard of proof: applied by the court of arbtiration for sport in drug-related cases

Though it does reference how the CAS interprets things I think it wont be too far removed as to how the Tribunal will be instructed.

[beelzebub 23,311]

I respect your view but hold a different one. I think you are confusing/conflating the SCN stage with this one. In any case i think for my sanity and other DL poster's patience i think it is time we agreed to disagree and let it be.

One final cooment: I hope James Hird ends up having to face the tribunal

Not confused. at SCN time ASADA require the accused to substantially rebut the scenario it believes to be the reality.. At the Tribunal ASADA effectively rebuilds this case to the comfortable satisfaction of those hearing it. Those defendants then in essence need to break down this abstract so as it doesnt meet the criteria established for the ASADA case to hold sway.

If the players cant discredit the ASADA line it will in all likelyhood fall towards ASADA.

But we can agree to disagree on where the onus lays.

[nutbean 8,838]

Interesting reading for those with any time.

the ‘comfortable satisfaction’ standard of proof: applied by the court of arbtiration for sport in drug-related cases

Though it does reference how the CAS interprets things I think it wont be too far removed as to how the Tribunal will be instructed.

Binny - I think this is where I came unstuck previously.

Beyond reasonable doubt - is for criminal proceedings

Balance of probabilities - is for civil proceedings

The lowest hurdle to jump is what applied to this case - comfortable satisfaction. My reading of this level is that it is so low that it almost throws the onus back onto the defendants to prove innocence.

[Its Time for Another 4,184]

I respect your view but hold a different one. I think you are confusing/conflating the SCN stage with this one. In any case i think for my sanity and other DL poster's patience i think it is time we agreed to disagree and let it be.

One final cooment: I hope James Hird ends up having to face the tribunal

bin we're a minority of two on here. I've tried enough times as well. No one wants to hear what the actual process is they just want to see Justice. Unfortunately legal processes often get in the way of Justice. Let's hope that doesn't happen here.

My final word which I've said before is that I hope out of this the legislation is changed so the burden is on the players to prove what they took. We would be looking at a very different procedure here if that was the case.

[Its Time for Another 4,184]

Binny - I think this is where I came unstuck previously.

Beyond reasonable doubt - is for criminal proceedings

Balance of probabilities - is for civil proceedings

The lowest hurdle to jump is what applied to this case - comfortable satisfaction. My reading of this level is that it is so low that it almost throws the onus back onto the defendants to prove innocence.

nut, the comfortable satisfaction test sits between the two. It is higher than balance of probabilities.

[ManDee 7,124]

Arrggghh! Thuis is not the case at all. The burden of proof is on ASADA, as has been established on this thread previously. The players only have to argue that ASADA's case is not strong enough to establish to the comfortable satisfaction of the tribunal they took banned substances.

Sorry Binnie, but that is wrong. Attempted to take is guilty.

Edit: They don't need to actually take anything.

Edited March 3, 2015 by ManDee

[nutbean 8,838]

nut, the comfortable satisfaction test sits between the two. It is higher than balance of probabilities.

Have a read of that document

‘comfortable satisfaction’, which is defined as lying in between the criminal ‘beyond reasonable doubt’ and the civil ‘balance of probabilities’. despite stating that it is not bound by the rules of evidence, an examination of Cas drug cases indicates that it operates in a similar way to common law courts in regards to how it uses the evidence presented to it.

It does say exactly as you suggested, then it says it is not bound by the rules of evidence but then it says it operates in similar way to common law courts on how evidence is presented.

If you read other articles on CAS drug cases the above does fly in the face of suggesting that "evidence" is treated the same way as in civil proceedings.

Because it is not bound by the rules of evidence (and despite what the above says) I would say that the balance of probabilities being lower than comfortable satisfaction is arguable at best.

Edited March 3, 2015 by nutbean

[beelzebub 23,311]

bin we're a minority of two on here. I've tried enough times as well. No one wants to hear what the actual process is they just want to see Justice. Unfortunately legal processes often get in the way of Justice. Let's hope that doesn't happen here.

My final word which I've said before is that I hope out of this the legislation is changed so the burden is on the players to prove what they took. We would be looking at a very different procedure here if that was the case.

You'd have to think there will be many changes to procedures and verifications and in course reportings as a result of this business. I'm not just talking about Australia, let alone footy in this regards. This will be the 'instance' referred to often in times to come as the "Essendon Determination"

We tend to think upon this as a very local and domestic affair but I have no doubt it is being watched( scrutinised ) intensely from afar and wide..

ASADA wont have come into this with cup half full . It has pared away the extraneous and only proceeded with what it is supremely confident about. That confidence to this humble observer would have be born from the evaluation of those learned folk who cast their none too shabby knowledge of such things across this case. For me , in a fashion , it had already been observed to reach the level of 'comfortable satisfaction' by those instructing and testing the validity of WADA/ASADAS strength.

[Its Time for Another 4,184]

Not confused. at SCN time ASADA require the accused to substantially rebut the scenario it believes to be the reality.. At the Tribunal ASADA effectively rebuilds this case to the comfortable satisfaction of those hearing it. Those defendants then in essence need to break down this abstract so as it doesnt meet the criteria established for the ASADA case to hold sway.

If the players cant discredit the ASADA line it will in all likelyhood fall towards ASADA.

But we can agree to disagree on where the onus lays.

BB now you're getting it. All the players have to do is prove that the evidence presented by ASADA is inadequate to pass the comfortable satisfaction rule. They don't have to actually prove what they took. They don't have to put forward any evidence at all. They just have to argue why ASADA's evidence is not good enough.

So for example they could show that the invoices presented by ASADA can't be relied on as evidence as they can't prove they were really written by Charters and Alavi or whoever. There is a level of evidence that has to be satisfied to accept the invoices. The fact that Charters and Alavi can't be called to give evidence to say "Yes that is the invoice I sent for making up the TB4 that I delivered to Essendon", makes it much harder to prove the invoices are even legitimate. The players only have to argue this to win the case.

Because the onus isn't on them the Tribunal hearing will just be a series of arguments on each piece of evidence. All the players have to do is successfully argue why each piece of evidence is too weak to pass the comfortable satisfaction test. If they can do this to enough of the critical evidence they will win. This is why I argue the legislation needs to be changed so that the onus should fall on the athlete to prove what they took and if they can't prove it they are automatically banned. They are the ones that have total control over the records of what they took not a statutory body like WADA/ASADA who have to do massive investigations to try to find out what records they should have.

Edited March 3, 2015 by It's Time

[beelzebub 23,311]

Have a read of that document

‘comfortable satisfaction’, which is defined as lying in between the criminal ‘beyond reasonable doubt’ and the civil ‘balance of probabilities’. despite stating that it is not bound by the rules of evidence, an examination of Cas drug cases indicates that it operates in a similar way to common law courts in regards to how it uses the evidence presented to it.

It does say exactly as you suggested, then it says it is not bound by the rules of evidence but then it says it operates in similar way to common law courts on how evidence is presented.

If you read other articles on CAS drug cases the above does fly in the face of suggesting that "evidence" is treated the same way as in civil proceedings.

Because it is not bound by the rules of evidence (and despite what the above says) I would say that the balance of probabilities being lower than comfortable satisfaction is arguable at best.

This is important as elsewhere we can learn that the where and what that they can use in terms of sources for 'evidence ( as they understand it ) are far broader than many might be used to in a Court of Law.

It has always been my thinking that this is a fundamental area of misconstruing by those accused. They have possibility been under the belief that if ASADA cant prove as they might need to in a court of law than they ( EFC et al ) are perfectly safe.

The inferences and extrapolations which ASADA will draw will be the undoing of the players and thereafter everyone else connected.

[beelzebub 23,311]

. All the players have to do is prove that the evidence presented by ASADA is inadequate

Actually...its you thats now getting it !! cheers

[ManDee 7,124]

BB now you're getting it. All the players have to do is prove that the evidence presented by ASADA is inadequate to pass the comfortable satisfaction rule. They don't have to actually prove what they took. They don't have to put forward any evidence at all. They just have to argue why ASADA's evidence is not good enough.

So for example they could show that the invoices presented by ASADA can't be relied on as evidence as they can't prove they were really written by Charters and Alavi or whoever. There is a level of evidence that has to be satisfied to accept the invoices. The fact that Charters and Alavi can't be called to give evidence to say "Yes that is the invoice I sent for making up the TB4 that I delivered to Essendon", makes it much harder to prove the invoices are even legitimate. The players only have to argue this to win the case.

Because the onus isn't on them the Tribunal hearing will just be a series of arguments on each piece of evidence. All the players have to do is successfully argue why each piece of evidence is too weak to pass the comfortable satisfaction test. If they can do this to enough of the critical evidence they will win. This is why I argue the legislation needs to be changed so that the onus should fall on the athlete to prove what they took and if they can't prove it they are automatically banned. They are the ones that have total control over the records of what they took not a statutory body like WADA/ASADA who have to do massive investigations to try to find out what records they should have.

It's time (apt) when arguing terminology that we get things right. Posters keep referring to proof of what they took. That is not the level required. It is also what they attempted to take.

[Jesse Christ 2,884]

why does one need to sign a waiver form if everything is above board? This case, at its simplest, is an organisation trying to be too smart by half, shifty, and dishonest, but have been caught out in the most spectacular of ways.

When all is said and done they will be hanging on to survival by a thread. Reputation shattered. Couldn't have happened to a more smug, morally corrupt and deserving mob!

[beelzebub 23,311]

In a fashion a confession of sorts. In between work and when travelling Im been giving my new Kindle a bit of a workout. Ive recently finished the entire Holmes set.

I mention this for two maxims as understood by good ol' Sherlock so effectively describe the nature of this Essendon debacle that I couldnt fail to note their parralel.

1) In solving a problem of this sort, the grand thing is to be able to reason backward

2) Eliminate all other factors, and the one which remains must be the truth

It's when viewing the situation via (1) that effectively the case for ASADA was worked up and done so by applying (2)

Whilst Holmes is of course fiction the science that evolved from the workings of Bell etc was to the notion of deduction.

It will be that which ASADA have deduced that will framework Essendon's undoing.

[ManDee 7,124]

why does one need to sign a waiver form if everything is above board? This case, at its simplest, is an organisation trying to be too smart by half, shifty, and dishonest, but have been caught out in the most spectacular of ways.

When all is said and done they will be hanging on to survival by a thread. Reputation shattered. Couldn't have happened to a more smug, morally corrupt and deserving mob!

As I always say. When all is said and done there is a hell of a lot more said than done.

Edited March 3, 2015 by ManDee

[Bitter but optimistic 22,218]

why does one need to sign a waiver form if everything is above board? This case, at its simplest, is an organisation trying to be too smart by half, shifty, and dishonest, but have been caught out in the most spectacular of ways.

When all is said and done they will be hanging on to survival by a thread. Reputation shattered. Couldn't have happened to a more smug, morally corrupt and deserving mob!

Delightfully sour, sweet.

[Jesse Christ 2,884]

Delightfully sour, sweet.

I just want the hammer to fall already! When will they be shipped off to Nusa Kambangan? Are the jets fuelled yet?

[La Dee-vina Comedia 16,665]

A furphy.

In the expression "circumstantial evidence", you need to be concentrating on the latter, not the former. Circumstantial evidence is still evidence, and every bit as valid as what you refer to as "hard proof". If we required hard proof in every court case, no murderer would ever be found guilty.

BTW, they won't get off, so you'll be able to continue posting. If ASADA thought they might get off, they wouldn't have even brought the case.

You'd have to think there will be many changes to procedures and verifications and in course reportings as a result of this business. I'm not just talking about Australia, let alone footy in this regards. This will be the 'instance' referred to often in times to come as the "Essendon Determination"

We tend to think upon this as a very local and domestic affair but I have no doubt it is being watched( scrutinised ) intensely from afar and wide..

ASADA wont have come into this with cup half full . It has pared away the extraneous and only proceeded with what it is supremely confident about. That confidence to this humble observer would have be born from the evaluation of those learned folk who cast their none too shabby knowledge of such things across this case. For me , in a fashion , it had already been observed to reach the level of 'comfortable satisfaction' by those instructing and testing the validity of WADA/ASADAS strength.

In all this discussion, don't discount the politics. Essendon is not the only one with reputational damage. ASADA's reputation has also been harmed by their apparent inefficiency in pursuing this matter. I have no doubt that ASADA would have proceeded to force this matter to the AFL Tribunal whether they have sufficient evidence or not. I believe they would prefer to fail at this stage than be accused of going soft on Essendon by not proceeding.

That's not to say that ASADA doesn't have sufficient evidence to cause the Bombers grief. But it wouldn't be the first Government agency to transfer the risk of making a final decision to another body, which is effectively what they are doing here.

[Its Time for Another 4,184]

It's time (apt) when arguing terminology that we get things right. Posters keep referring to proof of what they took. That is not the level required. It is also what they attempted to take.

Point taken but a bit irrelevant here as according to what has been reported (take with a grain of salt) and (more reliably) what was argued in the Hird case that the players have already admitted to taking something.

[ManDee 7,124]

Point taken but a bit irrelevant here as according to what has been reported (take with a grain of salt) and (more reliably) what was argued in the Hird case that the players have already admitted to taking something.

Not entirely, one of the excuses was that the product ordered was not administered as it was damaged or unsuitable for use. So if that product, presumably illegal was not administered they are still guilty. Other legal products or placebos may have been administered.

[Its Time for Another 4,184]

Actually...its you thats now getting it !! cheers

OK I could try to argue the actual legal process with you but you don't want to hear it. Perhaps I'm not understanding your definition of proof. I'm taking it that you mean that proof is presenting evidence. Is that correct? My use of the term prove was by presenting legal arguments that prove that legally ASADA's evidence does not prove their case. As I've pointed out before they can sit back and do nothing as the Tribunal will ultimately make their own assessment on whether the evidence will satisfy the burden. They will still do this of their own volition whether the defence say anything or not. However, this is a mute point here as we know the defence spent days presenting their defence. We don't know what form that defence took. Maybe it was only arguments about why ASADA's evidence was inadequate, maybe it was evidence they have that proves what they took (unlikely), maybe it was evidence for instance of bank records to show that no payments were ever made to the drug suppliers so the invoices etc are not evidence of anything. Who knows.