Intrepid lawyer and legal reporter, Kate Houghton, attended Court today and prepared a report of the first day of the trial into whether the Australian Sports Anti-Doping Authority (ASADA) acted outside its powers and proper purpose when investigating a controversial supplements program undertaken by the Essendon Football Club. Kate’s report includes the cross-examination of key witnesses including the second applicant, James Hird.
Monday 11 August 10.15am
Trial before Justice John Middleton
Essendon Football Club’s counsel: Neil Young QC, Dr Catherine Button
James Hird’s counsel: Peter Hanks QC, Nick Harrington, Rachel Walsh
ASADA’s counsel: Tom Howe QC, Daniel Star, Dr Sue McNicol QC
Essendon players’ counsel: David Grace QC, Ben Ihle
Essendon Football Club submissions
The proceedings began with the parties summarizing their opening submissions. Mr Young QC, appearing with Dr Catherin Button, for the Essendon Football Club (Essendon), put forward his submissions first. Mr Young submitted that this case concerned the legality of an investigation into possible violations of anti-doping rules. He submitted that the basis of Essendon’s case is that from inception the investigation was unlawful on two grounds:
- The investigation was beyond power; and
- The investigation was mounted and thereafter conducted on improper grounds.
Mr Young commenced by setting out the facts of what he called a ‘joint’ investigation between ASADA and the AFL. He submitted that by 1 February 2013, ASADA and the AFL had devised and agreed to conduct a joint investigation without informing Essendon, Mr Hird or the 34 players involved. He submitted that at a meeting on 1 February 2013, ASADA and the AFL agreed that because ASADA lacks the compulsory powers of the AFL, ASADA would use the AFL’s compulsory powers in the investigation. Mr Young submitted that the evidence would demonstrate that ASADA ran the investigation, while the AFL functioned as a secretariat. Mr Young submitted that the AFL intended to use the information gathered during the joint investigation against Essendon to establish grounds such as bringing the game into disrepute.
Mr Young submitted that ASADA knew at various times that there were doubts as to the legality of the joint investigation.
Mr Young then went on to discuss the National Anti-Doping scheme conducted by ASADA, submitting that the scheme intended that ASADA was to be an independent investigator. He submitted that the ASADA Act and other extrinsic material make it clear that ASADA is to operate independently of government and other sporting bodies. Mr Young further submitted that specific provisions of the ASADA Act make it clear that ASADA’s functions are to investigate possible anti-doping violations and therefore ASADA’s investigatory role is confined to anti-doping violations, not disciplinary matters, such as bringing the game into disrepute and nor is it up to ASADA to assist a sporting body to investigate disciplinary breaches. Mr Young finally submitted that by conducting a joint investigation with the AFL, it circumvented confidentiality provisions under the ASADA Act, rendering these provisions void.
James Hird submissions
Mr Hanks QC, who appeared with Mr Nick Harrington and Ms Rachel Walsh of counsel for Mr Hird, began his submissions by stating that ASADA’s investigation was conducted unlawfully in three ways:
- ASADA lacked the power to conduct an investigation jointly with the AFL and lacked the power to use the AFL’s compulsory powers as a means of compelling players to answer questions;
- By denying those who appeared before it protection against self incrimination, the investigation was unlawful; and
- In the conduct of the investigation, ASADA continually breached confidentially provisions by simultaneously sharing information it collected with the AFL.
Mr Hanks further submitted that ASADA acted for extraneous purposes in undertaking the joint investigation.
Mr Hanks discussed the consequences that would flow if it was found the investigation exceeded its power under the National Anti-Doping Scheme (the NAD scheme) and it was beyond the power of ASADA as contemplated by the ASADA Act. Mr Hanks submitted that the investigation lacked support under the ASADA Act and for that reason, the decision and the conduct were infected by jurisdictional error and therefore the show cause notices are nullities. Justice Middleton asked whether he had the discretion to set aside the show cause notices if it was found the investigation was beyond the power of ASADA, and Mr Hanks replied that he did. Mr Hanks submitted that it is clear that the show cause notices are substantially based on information not lawfully obtained.
Justice Middleton asked whether ASADA could start its investigation again or continue with its investigation in the event that the show cause notices were set aside. Mr Hanks stated that the Court is not being asked to stop ASADA from ever going on with investigation, but the applicants are going so far as to say the investigation was so tainted with illegality from the beginning that nothing obtained under the investigation can be lawfully used. Justice Middleton indicated he had a problem with the scope of this argument, as it is possible that ASADA went off on an independent tangent not involving the AFL.
Mr Grace QC appeared Mr Ben Ihle for the 34 players the subject of the show cause notices.
Mr Grace submitted that if the decision to issue the show cause notices was based on the information provided by the players during the joint investigation, then there would be substantial injustice to players if the notices were allowed to stand.
Mr Grace further submitted that whatever could be said of the acquiescence of Essendon and Mr Hird to the joint investigation, it cannot be said of the players. He stated that the players were required to obey the directions of Essendon, which required them to submit to the process. Further, the players were provided with a pro forma interview pack which made it very clear that the players had to attend interviews and answer truthfully or face sanction by the AFL, or if they answered any questions untruthfully, they could face sanctions under the criminal code. Mr Grace concluded that if ASADA was not permitted to conduct the investigation as it did, the show cause notices ought not be permitted to stand.
Mr Howe QC appeared with Dr Sue McNicol QC and Mr Daniel Star, on behalf of ASADA, the respondent. He began his submissions by summarizing the main contentions of the respondent. He summarized the arguments as follows:
- The ASADA Act and Scheme do not impliedly prohibit the conduct of a joint investigation. The conduct of a joint investigation is wholly envisaged by the scheme;
- The ASADA Act and Scheme do not prohibit ASADA from using the powers of a sporting administration body;
- ASADA’s disclosure of information to the AFL for the purpose of taking disciplinary action was entirely allowed by the ASADA Act and Scheme. ASADA’s disclosure of information for the AFL to take disciplinary action was in concert with the ASADA Act and NAD Scheme;
- ASADA’s investigation into Essendon would have occurred whether cooperation occurred with the AFL or not. The investigation was simply a means to an end, not an overall end in itself. Therefore if the joint investigation was contrary to the ASADA Act, that unlawfulness would only permit the court to make orders in relation to particular identified aspects of the investigation which were unlawful. It would not permit the court to strike down all of ASADA’s investigation.
- If there was information unlawfully acquired, then it is subject to reacquisition by ASADA in two ways – pursuant to the AFL’s statutory requirement to provide information to ASADA; and compulsory powers conferred upon ASADA on 1 August last year;
- Relief should be refused in any event because no ultimate unfairness could be said to arise here in regards to the stakeholders. This is because Essendon and Mr Hird and the players submitted and unambiguously agreed to information sharing by the AFL and to the very sort of joint investigation conducted here, and agreed in contractual agreements to information sharing arrangements that they now dispute. Justice Middleton questioned this submission, stating that there is a difference between agreeing to a process and cooperating with a process. Mr Howe stated that the stakeholders agreed to the process when they agreed to participate in the AFL, through registration forms.
- As to the question of relief, the players chose to cooperate with ASADA – no players raised any question of privilege, and any objections that were raised were only in relation to the AFL’s presence in interviews. Justice Middleton also questioned this point, stating that he wasn’t sure what choice the players had but to answer questions. Mr Howe stated that it was true that the players were compelled to answer questions under the AFL’s powers.
Mr Howe submitted that anti-doping authorities and sporting administration bodies have complementary purposes. That is, ASADA and sporting administration bodies must work together.
Mr Howe stated that the ASADA Act must be placed in its international context. He submitted that it is clear on consideration of the WADA code that it was developed on the basis that athletes are required to comply with this code, sporting bodies are required to give themselves compulsory powers to acquire information in relation to doping violations, or other violations, and these bodies are then required to assist or comply with investigations conducted by anti-doping bodies. Mr Howe stated that the framework explicitly envisages sporting bodies to have compulsory powers, in order to provide information to anti-doping bodies, and that without such cooperation ASADA could not effectively fulfill its role.
Mr Howe stated that it was startling that the applicants would argue that the seriously derelict management of Essendon was not something connected to ASADA’s investigation. He stated that any reader of the interim report prepared by ASADA could not deny the poor governance of anti-doping laws and the connection to possible violations of anti-doping laws.
Mr Howe concluded that if the respondent’s submissions were rejected, and it was found ASADA could not disclose to bodies such as the AFL, the abysmal governance and management practices of clubs, even in circumstances where all parties acknowledged the connection with anti- doping violations, this would substantially compromise the objectives of the fulfillment of the scheme. He stated it would lead to a conclusion that was perverse.
After closing submissions were put by the parties, there was argument heard regarding objections to certain parts of affidavits being admitted into evidence and argument regarding the confidentiality of some sections of these affidavits. The objections seemed to concern the information provided by the 34 players in the interviews conducted by ASADA and the AFL, including information provided regarding their reaction to certain substances. However, counsel were careful not to read those parts of the evidence to which such reference might have been made.
After the lunch break, argument was heard regarding an affidavit of Mr Hargreaves, solicitor for Essendon. Mr Young stated that this affidavit outlined how the players were encouraged and induced to cooperate with the joint investigation. The affidavit exhibited the transcript of a recording made by Mr Hargreaves of a meeting with ASADA. Mr Star for the respondent argued that the affidavit was not relevant. A full report of this issue in The Age can be found here.
The first witness called by Essendon was Mr Xavier Campbell, the current Chief Executive Officer of Essendon. Four affidavits of Mr Campbell were tendered by Mr Young. Mr Star cross examined Mr Campbell on his knowledge of the joint investigation conducted by ASADA and the AFL.
Mr Campbell stated under cross examination that he was aware ‘to a level’ of what was to be said at the press conference conducted by Essendon before the press conference was held. He stated he was not involved in discussions about whether to contact Mr McLachlan and Mr Clothier of the AFL and request an immediate investigation to commence. He stated he did not know that Essendon had requested the AFL and ASADA to investigate together what had occurred. Mr Campbell stated that Essendon did ask the players to fully cooperate with ASADA and the AFL but he was not involved in making that decision on behalf of Essendon.
Mr Hird was the second witness to be called. Mr Harrington, appearing for Mr Hird, sought to tender two affidavits of Mr Hird. He also applied for an exhibit to one of Mr Hird’s affidavits to be declared confidential. This exhibit was the Notice of Charge issued by the AFL to Mr Hird. Objection was made by the respondent to this application and the argument was deferred until tomorrow.
Dr Sue McNicol QC, counsel for the respondent, cross-examined Mr Hird. Her cross examination initially focused on Mr Hird’s knowledge of what was said at the press conference attended by him on 5 February 2013 and whether he was aware of what Mr Evans was going to say before the press conference. Mr Hird stated that he was not aware of what Mr Evans would say before the press conference. He agreed that he had opportunity to state during the press conference that he did not agree with Essendon’s action to request an investigation, but stated it would have been difficult to do so. He said that he was encouraged to attend the press conference by Mr Evans and Mr Little, as well as Mr Demetriou and Mr McLachlan, who all stated it was in the best interests of Essendon that he attend. He stated that he was not aware that Mr Robson of Essendon contacted ASADA, and he only knew that the AFL had contacted ASADA at the time of the press conference.
Justice Middleton asked Mr Hird whether he was surprised at anything that was said during the press conference. Mr Hird stated that he was not surprised by anything but things were said that he was not aware of at the time.
Dr McNicol questioned Mr Hird as to his knowledge of Esssendon’s actions in contacting ASADA. Mr Hird stated that he knew that Mr Robson and Mr Evans were flying to Canberra for a meeting but he was not aware what the meeting was about or what happened in the meeting. Justice Middleton did not allow Dr McNicol to show Mr Hird handwritten notes taken by Mr Robson during that meeting as it was clear that Mr Hird did not know what happened during the meeting.
Dr McNicol questioned Mr Hird about his request to conduct his interview with investigators as early as possible. Mr Hird stated he knew that Mr Robson was requesting an early interview on his behalf. He stated that he was told by Mr Robson and Mr Evans that he had to cooperate with the investigation, and that he was required to answer questions. Having been told this, he stated he wanted to get the interview out of the way in order to continue with the coaching season.
Dr McNicol took Mr Hird to various correspondence sent by him and his solicitors, Ashurst, containing statements regarding his cooperation with the investigation. Mr Hird agreed that Ashurst were acting on his instructions. Mr Hird stated that he knew that he had to cooperate with the investigation or face sanctions from the AFL.
Dr McNicol asked whether Mr Hird knew as early as February 2013 that interviews were being conducted jointly by the AFL and ASADA. Mr Hird stated that he did, but he considered that the interviews would be conducted correctly. Mr Hird conceded that he had lawyers and counsel present at his own interview with the AFL and ASADA but stated that he did not object to the conduct of the interview or claim a right to silence as he knew he was not allowed to remain silent under AFL rules, or he would face sanctions.
Dr McNicol questioned Mr Hird regarding the terms of his settlement with the AFL. Mr Hird agreed that he had signed the deed but stated that he signed the deed under great duress, and there were threats and inducements made to him to sign the deed. However, upon further questioning he agreed he did not back away from the deed. He stated that he did not consider that he had breached clause 1.6 of the AFL’s rules. The deed states that Essendon had breached clause 1.6 of the AFL’s rules and Dr McNicol asked Mr Hird who at Essendon had breached clause 1.6 if it was not Mr Hird himself. This questioning was objected to on the basis that it required Mr Hird to speculate. Justice Middleton did not allow the question.
The hearing will continue tomorrow and Wednesday. Mr Hird will continue to give evidence tomorrow morning.
Kate is a commercial and civil litigator who has seen different sides of legal practice, whether in private practice in a large commercial law firm, undertaking pro bono work, as a secondee at the Victorian Bushfires Royal Commission helping Counsel assisting the Royal Commission, and as a member of the legal team at the Victorian Government Solicitors’ Office.