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Losing ground? How the evidence fared in Essendon v ASADA litigation

This post analyses the effect of cross-examination on the parties’ evidence in Day 2 of the Federal Court of Australia into the legality of the Australian Sports Anti-Doping Authority’s (ASADA) investigation into anti-doping violations at the Essendon Football Club.

The purpose of evidence is to make good one’s case. The submissions are there to persuade the judge. However, no submission can survive if its factual foundation crumbles under the weight of cross-examination.

Because of the effect of cross-examination, if a party’s best case exists after opening submissions, its worst case often exists after evidence has concluded. By then, any weaknesses or inconsistencies in a witnesses’ version of events will have become exposed.

This rule holds true for the parties in the Essendon Supplements Saga litigation now that evidence has almost concluded. Two witnesses will be in the box for a short time tomorrow.

The following represents a personal view. Each observer will have their own impressions.

Until the Federal Court has released the affidavits comprising evidence in chief, the whole picture will also not be available.

Where did Essendon and James Hird lose ground?

Even if Essendon Football Club and James Hird can demonstrate that ASADA acted improperly or outside their legislative power, they must persuade the judge that the extensive relief sought is justified.

Justice Middleton indicated during opening submissions that if there are discretionary factors referable to the Applicants indicating relief should be denied, this would trump any concerns the players might have given they are not parties to the proceeding.

A key discretionary factor apparently relied on by ASADA in support of ‘no relief’ is that Essendon and James Hird invited the very joint investigation about which complaint is now made.  In other words, they sought that the investigation occur, but when the results did not help them, they decided to challenge the process. ASADA is effectively arguing that the horse has bolted, and any right to complain has been extinguished.

In ASADA’s favour are a range of very public statements made on behalf of Essendon Football Club, primarily by David Evans (the former Club Chairman) but also by Paul Little (the current Club Chairman), referring to the Club’s decision to invite an investigation by the AFL and ASADA into the Club’s supplements program. These included a letter to Club Members, by which the Club informed them that they had “contacted the AFL and ASADA to conduct an independent investigation”. There was also an 11 April 2013 statement by which Mr Evans advised that “I as Chairman and Essendon Football Club under my leadership will support the AFL and ASADA in their investigation”. On 6 May 2013, Mr Evans repeated these remarks, on the basis that anyone who cares about our sport, our game, and our Club, must let ASADA do its job. On 13 August 2013 Mr Little also made a statement referring to the Club’s decision to “proactively invite” the AFL and ASADA. Then there was Mr Little’s speech at the 2013 Best and Fairest night on 2 October 2013 in which he stated that it had been “unanimously agreed” that the Club had a problem and should “self report”.

There seems no debate that Essendon Football Club made these representations. However, for the point to be made good against both Applicants ASADA must show that James Hird affirmed this position as well.

The point of Hird’s cross-examination was therefore to obtain concessions from him that he too endorsed the concept that ASADA and the AFL had been invited by the Club to investigate Essendon’s supplement program.  He did not do this.

However, he did offer limited concessions, for instance, that he made a statement after his interview with the AFL / ASADA to the effect that he would do nothing to impede the investigation and would continue to cooperate fully. He also admitted that he did cooperate fully.

James Hird otherwise dealt with this line of questioning on three bases.

First, to the extent Essendon did decide to invite an investigation, or to say it did, he did not agree with the decision even though he was prepared to toe the line publicly as an employee of the Club. He shared his reservations privately with certain Essendon personnel. However, he was only the senior coach. Decisions were made by people other than him. His relationship with the Board was not necessarily close, in that he would give a discrete Board presentation on football related matters each meeting for about 15 minutes and then leave. He would talk to the Chairman only once every few weeks, although it had been a little different over the last few months. The management team under Ian Robson would also be responsible for matters. The CEO might also come down and have a chat every few weeks. It was not part of his role to be familiar with statements on the Essendon website and it was also an intense time with keen media interest.

Secondly, James Hird was bound not to express his private views in public due to a confidentiality undertaking he provided to ASADA, and later to a non disparagement clause in the 2013 Deed of Settlement by which he agreed to sanctions for his own role in the supplements saga. In effect, his hands were tied.

Thirdly, James Hird did not think Essendon ‘invited’ an investigation by the AFL and ASADA or ‘self report’ because the Club acted on the advice of the AFL in making this decision.

Justice Middleton appeared to consider Essendon’s public representations to be compelling by a comment he made to Dr McNicol, Counsel for ASADA, in the course of dealing with an objection, in which he said: “the evidence is all one way in your favour at the moment”.

James Hird’s cross examination raises the spectre of what should happen if one’s public statements do not correspond with one’s private views.  Further, does anything material turn on whether Essendon truly did invite an investigation or just said it did?

The concept of a ‘representation’ (upon which another party can rely) usually has regard to public conduct. The judge indicated this is the approach he would likely take when he said: “I don’t see the relevance of this cross-examination in relation to private reservations” although “the position might be different in relation to the adoption of the David Evans statement”.

That said, the suggestion that James Hird was subject to legal constraints preventing him from taking a contrary position to the Club is worthy of consideration.

It will not be clear until closing submissions precisely what turns on the Club’s representation that it invited an investigation by Essendon and ASADA. In addition to questions of relief, the issue might also be relevant to the veracity of the joint investigation itself.  That is, the Applicants seek to overturn the investigation on the basis that it was tainted from the outset. ASADA, in turn, says there is nothing wrong with a joint investigation and that the legislation contemplates cooperation between ASADA and sporting codes.

Notably, Neil Young QC for the Applicants later sought to suggest that any ‘invitation’ by the Club lacked relevance because ASADA would nonetheless have investigated its activities anyway.

Whilst he obtained that concession from ASADA’s CEO in cross examination, it is hard to see how it undermines this fundamental proposition: If it can be shown that Essendon invited the very investigation about which it now complains, how can it later suggest that there was anything inappropriate and improper about the concept?

For completion, James Hird’s Counsel was given a gentle time in re-examination, in that no objection was made to the introduction of new matters which did not appear to arise directly from the cross-examination. For example, James Hird sought to address his belief that the players had not taken prohibited substances on the basis that the Club doctor, Bruce Reid, had expressed his apparent confidence that none had been taken. James Hird said that he relied on this (hearsay) statement because “he was the doctor and would sign off on supplements”. He was a friend of the family and would visit his home every few weeks with a bottle of red wine. Bruce Reid, according to James Hird, had known James Hird since he was 17 or 18 and he trusted Bruce Reid with his children’s lives, his own life, and his wife’s life.

Where did ASADA lose ground?

The cross examination of ASADA’s former CEO, Ms Aurora Andruska, led to a range of concessions, but there were also a number of instances where she stood her ground.

However, it is difficult to assess the relevance of much of this factual material, and it seems the judge is similarly concerned about this. At the conclusion of the evidence today, Justice Middleton requested that the Applicants produce a document confirming the factual material they intended to rely on, and why. In response, Neil Young QC said that the Applicants relied on much of this material for “discretionary reasons” (namely, whether or not relief should be granted in the event ASADA had acted improperly or ultra vires).

Of course, even to get to this point one must establish that ASADA did act unlawfully. In this respect, it is plain (also from a comment made by Justice Middleton today) that ASADA is expressing confidence that it has the law on its side to the extent that the facts do not really matter much. By contrast, the facts matter a great deal to the Applicants, but the question is where and how do they add up, and what implications follow?

A key concession by ASADA’s former CEO was that information contained in a briefing note provided to the AFL in late January or early February 2013 was highly confidential. However, she also said that she understood she was permitted to provide this information to sporting bodies. It will be a matter for legal submissions as to whether this supply of confidential information was lawful or not.

Overall, the witness conveyed the impression that:

  1. The witness was a CEO operating at a high level capacity (with a range of duties of which the AFL / ASADA formed just one part), delegating authority where convenient to her reports. Her delegation of activities to her reports was emphasized in Mr Young’s cross-examination, with negative implications. However, in re-examination Dr McNicol produced documents to the witness evidencing that formal powers of delegation had been exercised. Justice Middleton also indicated he was having trouble understanding the relevance of this line of inquiry.
  2. The witness was therefore not across the detail of matters such as interview plans with Essendon players and support staff, nor of information provided to the AFL for the purposes of its database.
  3. Such ‘decisions’ about information to share with the AFL and on what terms, were therefore not consciously made by the then CEO, if at all.
  4. ASADA’s former CEO appeared also heavily reliant on previous practices by which ASADA shared information with sporting codes such as the AFL, and she also sought to rely on a confidentiality undertaking permitting this exchange although it was by no means clear that it covered the applicable circumstances.

As for the Interim Report, ASADA’s former CEO maintained that, despite her knowledge that the AFL intended to use the report for disciplinary purposes, it was not her intended purpose to provide the report to the AFL to enable this to occur. This appeared to be based on legal advice contending for a narrow purpose, namely, that ASADA’s function was merely to investigate potential anti-doping rule violations.

Justice Middleton took issue with this characterisation of ‘purpose’, noting to the witness that it was an Interim Report, which usually meant it was being supplied for a purpose separate from a Final Report. He sought to clarify what that separate purpose might be.  The witness, in this respect, provided no helpful response.

The Applicants will likely rely on her testimony to support their argument that ASADA knew it should exercise its functions for a limited anti-doping purpose such that the Interim Report was provided to the AFL unlawfully.

The witness also struggled to explain the distinction between investigative material in the AFL’s possession (raw data which she regarded as unobjectionable for the AFL to use), and the Interim Report (in which controls around its use were said to be put in place).  The witness said that the Interim Report was not intended to be used by the AFL for disciplinary purposes. She also expressed a lack of knowledge that the Interim Report had, in fact, been disclosed by the AFL to the media.

Overall, one was left with a sense of a lack of rigor around the use of confidential investigatory information by ASADA. The impression was left of an organization caught up in a process by which the organization (or at least its then CEO) had acted in accordance with informal practices and processes rather than a keen eye to the legislation and associated regulations.

So, what turns from this? A range of questions arise which will hopefully be dealt with in final submissions (which will take up the majority of Day 3).

For example:

  • Is the supply of confidential information from ASADA to the AFL unlawful?
  • If so, is this a discrete breach deserving of separate declaratory orders, or something more systemic capable of infecting the whole process?
  • What, if any, relationship is there between a breach of confidential information and the evidence underpinning the show cause notices?
  • Where is the line drawn between a possibly sloppy investigation (in ASADA’s attention to detail to the legislation) and an unlawful one?

Likewise, even if the Interim Report was provided to the AFL for an improper purpose, does this mean that the court should prohibit any further use of the underlying raw data?

One expects final submissions will tease out these issues in greater depth.


17 Responses to “Losing ground? How the evidence fared in Essendon v ASADA litigation”

  1. Tim

    Thanks Natalie. Great article which really tidies up what was a fairly messy two days of evidence where I had trouble filtering the evidence aligned to a legal argument from the ‘he said said’ evidence of no legal consequence. Cheers

  2. Rusty

    Hi Natalie

    I have seen it reported that ASADA had a statutory mandate to conduct all anti-doping investigation independent of government.

    There has been sufficient evidence to suggest this hasn’t occur ie. notes from Andruska confirming pressure from the Gorverment for an outcome and also the secretary from the Prime Ministers office attending meetings.

    Do you think this could have a bearing on the outcome?

    • Natalie Hickey

      The witness responded she would not succumb to political pressure. More significantly I don’t think the judge regarded the line of questioning as relevant, disallowing at least one question about political pressure.

  3. Sam

    Thanks Natalie.

    Is it not Essendons and other parties assertion that ASADA acting with the AFL was illegal ?

    Asserting that it was improper, not specifically mandated, or anything else is of little consequence.

    I have seen a great deal of froth regarding CEO capacity, self reporting, and issues which are in effect irrelevant.

    Surely, and maybe I am missing something here, if there is nothing ILLEGAL about ASADA communicating and working with the AFL then absolutely everything else is redundant ?

    On that note the very first summary of Howe QC which offered 8 separate legislative and regulatory examples specifically pointing to the expectation and requirement of the AFL and ASADA to work together is absolutely specific ?

    If there were some question on this point, then the “froth” would have substance, however, I can see no illegality, in fact quite the opposite.

    Your thoughts ? Have I missed something entirely ?

    • Natalie Hickey

      Hi Sam, the Applicants argue that the ASADA investigation was unlawful for two key reasons. First, that it was ‘illegal’ from the outset. Secondly, that it was conducted for an improper purpose in that ASADA sought to ride the coat tails of the AFL’s stronger coercive powers and to help the AFL pursue an object unrelated to a straight ADVR (i.e. a collateral purpose). In opening submissions the Applicants acknowledged that these two issues were somewhat mixed. The judge is not indicating enthusiasm for the improper purpose point. This leaves us with the ‘illegality’ issue. Here, the Applicants’ primary submission is that the structure of the ASADA Act and NAD Scheme denies ASADA the right to engage in a joint investigation of the nature which occurred. The CEO, according to the Applicants, should investigate separately. However, ASADA says there is no express prohibition and the language of ‘cooperate’ permits the type of investigation which occurred. More should become clearer today. I also agree that there were a range of matters yesterday which, if relevant, seemed ‘at the margins’.

  4. Michael

    The absolute most succinct, relevant and impartial commentary that I have read on this matter throughout the noise created by the media, Essendon* supporters/cheerleaders and AFL sycophants.

    Congratulations on a job well done and much appreciated by the average person such as myself, who are trying to to look beyond the spin and self-interest that has clouded this issue from day one.

  5. David

    Good article. I noted in the opening address that the ASADA lawyer stated that the legislature did not grant ASADA coercive powers specifically because they could work in partnerhip with sporting codes who have those powers.
    While I understand that AFL had coercive powers, other codes like the NRL did not (as I understand it), so I would have thought that decision was more conscious not to grant those powers to ASADA. If that was the conscious decision, doesn’t that impact on the ultra vires consideration?

  6. Martin

    How refreshing to read an informed commentary. Congratulations. Mainstream media is struggling with it.

  7. Kenn

    Many thanks Ms Hickey clarity much appreciated look forward to today’s summary.


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