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Report Day 2: Essendon Football Club & Hird v ASADA

Lawyer and legal reporter Kate Houghton has prepared a report of Day 2 of the trial into whether the Australian Sports Anti Doping Authority (ASADA) acted lawfully in its investigation into the Essendon Football Club’s supplements program.

Tuesday 12 August 10.15am

The trial continues before Justice John Middleton

The proceedings began on day 2 with legal argument by Mr Star on behalf of ASADA, regarding procedural matters. The substantive hearing then resumed.

James Hird cross examination and re-examination

Cross-examination

Dr McNicol resumed her cross examination by taking Mr Hird to the statement issued by him on 16 April 2013 regarding his interview with ASADA and the AFL on that day. Mr Hird confirmed that he told the truth during that interview and in the statement he made.

Mr Hird stated that he made a promise to ASADA investigator Mr John Nolan on that day that he would not disclose information regarding the ASADA investigation unless he was given permission to do so.

Dr McNicol then took Mr Hird to various statements issued by Essendon and Mr Evans regarding the progress of the investigation and questioned Mr Hird as to his knowledge of these statements. As to a letter from Mr Evans to Essendon members published on 5 February 2013, Mr Hird stated that he did not know what Mr Evans was going to say before the letter was published. Questions put by Dr McNicol to Mr Hird regarding Mr Hird’s knowledge of Mr Evans’ position on the investigation were objected to by Mr Young and Mr Harrington for being too broad. Justice Middleton upheld the objections and questioned Dr McNicol as to whether it was necessary to go to this statement, given the limited time available and the fact that the issue of the press conference had already been dealt with. Mr Harrington further objected to Dr McNicol’s line of questioning, stating that she was trying to establish that what Mr Evans’ said was what Mr Hird had believed. Dr McNicol explained that she was seeking to explore what Mr Hird knew of the statements that Mr Evans had made, and whether he had chosen to say nothing. Justice Middleton said that he would not stop the line of questioning but he didn’t think it was necessary to go to every document.

Dr McNicol asked Mr Hird whether he had access to the media to be able to clarify the statements made by Essendon. Mr Hird confirmed he had access to the media, but stated he had given a promise to ASADA on 16 April 2013 that he would not talk to the media without permission, and he had also been asked by Essendon and the AFL not to talk to the media. He said that he was not in a position to go against Essendon.

Dr McNicol again asked Mr Hird whether he disassociated himself from the statements made by Mr Evans. Mr Hird stated that he had privately had many discussions with Mr Evans in which he had stated that he had disagreed with aspects of what Mr Evans was saying. He said he did not state this publicly as he had been asked by Essendon not to talk to the media. He further stated that as coach, he was an employee of the club. He gave his opinions to Essendon, and at times they did not want his opinions, and he left it at that. Dr McNicol asked Mr Hird whether he was saying that there was a public perception, and then there was the truth as he knew it privately. Mr Hird states that he at no time said anything in public that he didn’t believe was true.

At this stage, Justice Middleton interjected to ask Dr McNicol to explain the relevance for this line of questioning. Was it because she doubted that Mr Hird had private concerns? Dr McNicol explained that she wanted to establish whether Mr Hird published anything else publicly that was contrary to the views of Mr Evans. Justice Middleton observed that Dr McNicol already had this evidence and he didn’t understand why Dr McNicol wanted to continue with this line of cross-examination.

Dr McNicol then took Mr Hird to a statement made by Mr Evans on 27 February 2013 regarding a request by Essendon for the AFL and ASADA’s assistance. Mr Hird stated that he was aware of this statement and he had talked to Mr Evans about the review and why the review was needed. Mr Evans told Mr Hird that he had spoken to the AFL and they said it would be a good idea.

Dr McNicol asked Mr Hird about the statement published by Mr Evans on 11 April 2013 on the Essendon website stating that it was Essendon which had called for the investigation. Mr Hird stated he was not aware of this statement at that time. He said it was a very intense time in his life and he wasn’t aware of a lot of what was said. He said that the media was everywhere in his life at this time and he confirmed he didn’t make it his business to check the Essendon website.

Dr McNicol took Mr Hird to a statement published on 6 May 2013 by Mr Evans, and in particular the statement that anyone who cared about the game must let ASADA do its job. Mr Hird stated he was not aware of this statement at the time, but he recalled that he was disappointed with Mr Evans on that day and he had gone to Mr Evans’ office to discuss the interim report that had been published. However, Mr Hird stated that he agreed with the statement.

Dr McNicol took Mr Hird to a statement by Mr Evans on 25 June 2013 by Mr Evans. Mr Hird agreed with this statement to the extent that it claimed that Essendon was cooperating with the investigation, but he did not agree with the statement in so far as it claimed that the investigation had been initiated by Essendon. Mr Hird also stated that he did not agree with a statement made on 13 August 2013 by Mr Little that Essendon had initiated the investigation, and he stated that he did not believe that Essendon proactively invited ASADA to investigate these matters. He again stated that he did not publicly disagree with that statement due to his commitments made to ASADA, the AFL and Essendon that we would not comment publicly. Mr Hird also said that he disagreed with a statement made on 2 October 2013 at Essendon’s Best & Fairest presentation, that the Board unanimously agreed to self report to the AFL and ASADA. Mr Hird stated that he did not agree that the Board self reported to the AFL and ASADA.

Justice Middleton questioned Mr Hird as to the relationship he had with the Board, the CEO and the Chair of the Club.

Re-Examination

Following cross-examination, Mr Hird was re-examined by his own counsel, Mr Harrington. He was asked about statements made by Mr Evans and Essendon at a meeting at AFL House on the morning of 5 February 2013. Mr Hird said that privately he disassociated himself from those statements. He said at the meeting that he didn’t believe that the players had taken performance enhancing drugs, that he hadn’t seen that, and also that the club doctor, Dr Bruce Reid, did not believe it. He said that he had a lot of faith in Dr Reid, he had known him a long time and ‘trusted him with my life, my kid’s lives, my wife’s life’.

Mr Hird again said that he did not agree with the statements made by Essendon that they it initiated the investigation. He said that the basis of this view was that he knew that at a meeting on 4 February 2013, Mr Evans was told by Mr Demetriou that it was his belief that players had taken performance enhancing drugs and it would be better for the club to come forward to ASADA. Mr Evans was also told this by Mr McLachlan of the AFL. Mr Hird told the Court that he did not hold the belief that Essendon should have self-reported.

Ms Aurora Andruska cross examination and re-examination

Introductory remarks and ASADA background

Mr Young QC cross examined Ms Andruska, the former CEO of ASADA. Ms Andruska confirmed she was CEO of ASADA from 10 May 2010 to 9 May 2014. She confirmed that she had certain functions under the ASADA Act, she was very familiar with the ASADA Act as CEO, and there were certain functions vested in the CEO alone under the ASADA Act. She also confirmed that under the ASADA Act, ASADA was to act independently of the federal government.

Mr Young questioned Ms Andruska as to the particulars of the investigation. She confirmed that Mr John Nolan was the lead investigator and he had a team of two investigators. She also confirmed that ASADA employed a number of legal officers.

Mr Young called for Ms Andruska’s original notebooks, in which she kept all her notes of meetings and telephone calls, to be produced. There was a delay in producing these.

The ACC and AFL

Mr Young questioned Ms Andruska regarding a meeting held in Canberra on 31 January 2013 with the Australian Crime Commission (ACC). She confirmed that the representative from the relevant Government department was also in attendance and that he was  involved with the investigation that unfolded.

Ms Andruska confirmed that a meeting was arranged by the ACC with the AFL, which she attended. She stated that Mr Demetriou, Mr McLachlan and Mr Clothier attended from the AFL. She confirmed that at that meeting the ACC provided information concerning matters they had discovered as a result of an investigation they had conducted over the previous 12 to 18 months. Ms Andruska denied that a number of sporting clubs were identified at the meeting, including Essendon.

Mr Young took Ms Andruska to her handwritten notes made at the meeting. She confirmed that Mr Demetriou made comments such as ‘here to collaborate, need to do more, a lot is not a surprise, it is damaging to the brand’. A discussion then ensued about whether Essendon was identified at that meeting or not.  Initially Ms Andruska denied that Essendon was identified, but conceded that the overall impression when people left the meeting was that Essendon was involved.

Justice Middleton questioned Ms Andruska regarding the understanding of the parties at the meeting on 31 January 2013 that Essendon was the subject of the ACC investigation. Ms Andruska replied that her own reaction to the meeting was that she was surprised that the AFL knew as much as they did.

Mr Young took Ms Andruska back to the meeting held on 31 January 2013 and suggested that the purpose of the meeting was to discuss ASADA’s investigation in response to the AFL proposal. Ms Andruska did not agree. She said that the purpose of the meeting was for the ACC to brief the AFL. She said that she played a very minor part in the meeting. Ms Andruska confirmed that it was clear at this meeting that ASADA would be undertaking an investigation that included Essendon. She said that it was part of a broader investigation which had been underway since 2011. This investigation was not limited to Essendon, and ASADA’s intention was to continue to gather evidence and material concerning any club or code involved in using performance enhancing drugs.

How the investigation would proceed

Mr Young questioned Ms Andruska as to the discussions held between the AFL and ASADA regarding how the investigation would proceed. Ms Andruska said that it was discussed that the investigation would use the AFL’s rules of conduct, ASADA would work with Brett Clothier at the AFL, and that the investigator would use the AFL’s code of conduct. She also agreed that the AFL proposed that an investigator would use the offer of reduced sanctions. She agreed that the AFL had put forward various proposals, but said that this did not mean that she agreed with all the proposals. Ms Andruska stated that this was very early days and it was only high level comments being made. She could not recall what her response to the AFL’s comments had been.

AFL Briefing Note

Mr Young took Ms Andruska to a confidential minute drafted by ASADA headed ‘AFL briefing’. Ms Andruska stated that she could not recall whether she directed that this minute be prepared and she did not know whether the information contained in the briefing note was provided by ASADA to the AFL on 31 January 2013. She stated that it was not provided at the meeting held on 31 January 2013. She assumed that the information was provided by ASADA to the AFL in later January or early February 2013. Mr Young asked Ms Andruska whether she recognised that the information in the notice was NAD personal scheme information and that it was a criminal offence to disclose such information.

Dr McNicol objected to the question on the basis that it was a “loaded” question and this was largely upheld on the basis that the witness was being asked to comment on a matter of law, particularly where another interpretation might exist.

Ms Andruska stated that she did not understand what Mr Young meant when he suggested that the AFL was never an entrusted person under the ASADA Act. Ms Andruska stated that what she understood was that ASADA’s interactions with the AFL had been established over a long period of time and were done on a basis that was legally correct.

Disclosure of information in AFL briefing note and for purposes of AFL Database

Mr Young asked Ms Andruska whether she was provided with advice before the AFL was briefed with the information contained in the briefing note. Ms Andruska replied that she had been provided with advice to the effect that ASADA’s relationship with the AFL was one that had been established for many years. However, she could not recall whether she had been given legal advice specificly relating to the information contained in the briefing note. Justice Middleton clarified with Ms Andruska that ASADA had previously shared information with the AFL.

Mr Young then took Ms Andruska to her handwritten notes of a teleconference held on 1 February with Mr Clothier of the AFL at which he proposed that the investigation rely on a case management database established by the AFL that would be constantly fed with information. Ms Andruksa’s recollection of the conversation was that he said that the AFL had a case management database, and it would be information shared between AFL and ASADA. Ms Andruska confimed that she had not communicated with the AFL on the terms of the use of its database. However, she stated that she understood that a confidentiality undertaking already existed between ASADA and the AFL.  Mr Young took issue with the breadth of this undertaking but the issue was left unresolved.

Using the AFL’s powers

Mr Young took Ms Andruska to notes of a further meeting held with the AFL. Ms Andruska confirmed that it was discussed that ASADA would use the AFL’s powers to compel witnesses to co-operate. Ms Andruska stated that it was clear to her that ASADA had to use the powers the AFL had, whether by joint investigation or otherwise. She also stated it was established practice with the AFL. When challenged on the latter point by Mr Young, Ms Andruska said she believed that ASADA had worked with the AFL in the past, using the AFL’s capacity to allow ASADA to do its work.

Mr Young suggested that ASADA was trying to sidestep the limitation on ASADA’s powers by making arrangements to use the AFL’s powers. Ms Andruska denied that this was the case. She said that in fact the government had stated that ASADA should operate in cooperation with sporting bodies. Under further questioning, Ms Andruska admitted that this statement was made in 2013 after these events took place, in the context of the amendments to the ASADA Act. She conceded that there was nothing in the legislation containing any such direction.

Was there a ‘joint investigation’?

Mr Young asked Ms Andruska when a ‘joint’ investigation was established between ASADA and the AFL. Ms Andruska would not accept that a ‘joint’ investigation was established, but only that ASADA and the AFL had agreed to work together.  That said she did concede that the nomenclature became part of common usage at some later point.

Political pressure

Mr Young took Ms Andruska to a teleconference held on 1 February in which a Department representative was present. Ms Andruska said she did not know why this person attended the call.  Mr Young asked whether she had been under political pressure to complete the investigation. Ms Andruska replied that she ignored all political pressure.

Mr Young observed that she had not answered the the question, at which point Dr McNicol objected that the question was irrelevant.  It was plain from the judge’s demeanour that he regarded questions concerning political process or pressures to be unrelated to the matters at hand.

Mr Young moved on and asked Ms Andruska whether she was aware that by 9am on 5 February 2013 the AFL was proceeding on the basis that it had ASADA’s agreement to commence with the joint investigation. Ms Andruska stated she did not have a precise memory of that. However, she said she would not have disputed the AFL if they had told other parties this on 5 February 2013.

Was this the first joint investigation conducted by ASADA?

Mr Young questioned whether there had been any other joint investigations between ASADA and another non law enforcement body prior to this investigation. He challenged Ms Andruska on this point, seeking to extract a concession that the investigation was anomalous. Ms Andruska replied that she understood that there had been another detailed investigation with another sporting body but it was before her time as CEO.

Did Essendon initiate the investigation?

Ms Andruska was then questioned about the statements made by Essendon and ASADA that the investigation had commenced at the request of Mr Evans. He suggested it was disingenuous for the Interim Report to suggest that Essendon had initiated the investigation. This was because, by the time Essendon made contact, ASADA had already decided to conduct an investigation. Ms Andruska ultimately conceded that the investigation would likely have continued notwithstanding Essendon’s invitation that it take place.

This exchange led to an objection from Dr McNicol. Justice Middleton allowed the question but it led to a vigorous exchange with Mr Young .  Justice Middleton noted that he was much more interested in what actually happened, that they were still “in February” and he also indicated that these were preliminary parts of an investigative process very much in its early days.  Mr Young read the tea leaves and indicated he would move on.

Knowledge of AFL purpose and detail of investigation

Mr Young then questioned Ms Andruska about her knowledge of the fact that the AFL wanted to pursue sanctions against Essendon and staff members if the information gathered in the investigation warranted that course of action. Ms Andruska stated that she was not concerned about these objectives as she was only concerned about anti-doping violations. She stated that comments made about sanctions to be taken were of minor importance to her.

After the lunch break, Mr Young questioned Ms Andruska about her involvement with the establishment of the interview process.   She could not identify exactly the date that she became aware that AFL officials would be present at interviews and had not signed any document approving of this procedure, however she understood that it was a practice that had been previously adopted by ASADA and that it was lawful. Mr Young questioned Ms Andruska as to her understanding of the purpose of having AFL officials present during the interviews. Ms Andruska replied that she understood it was because ASADA was relying on the AFL’s powers. She disagreed that she understood the AFL were merely present in order to obtain information for the purpose of sanctions.

Mr Young then took Ms Andruska to an email dated 8 February from Mr Mullaly at ASADA raised questions about whether third parties, such as the AFL, ought be present at ASADA interviews. The email discussed the tension that arose as a result of ASADA needing to rely upon the AFL’s powers to compel people to attend interviews. Ms Andruska said she had not seen the email at the time and that she was not aware how the tension was resolved. She stated it was her practice to give her staff responsibility to handle issues.

Mr Young took Ms Andruska to the letter sent to interviewees requesting them to attend. Ms Andruska stated she had not seen the letter but she understood that the interview would largely be conducted by ASADA with AFL officials present.

Justice Middleton questioned Ms Andruska as to whether she was worried about having someone else present in the interviews. Ms Andruska stated she wasn’t. By way of clarification she added that she was not concerned because she did not know of any legal problems raised by anybody and nothing came to her attention that made her worry about it.

Mr Young took Ms Andruska to an interview plan prepared by ASADA but produced by the AFL on subpoena. Ms Andruska acknowledged that she had not approved the provision of the interview plans to the AFL and did not know who had done so. She said that she had not needed to see particular documents, as long as she was reassured that what was being done was legal.

Mr Young took Ms Andruska to a series of emails between ASADA officials regarding the status of the joint investigation and referring to legal advice provided by Mr Jeff Gleeson QC to the AFL on 12 March 2012 regarding the status of the joint investigation. Ms Andruska stated that she was aware that the information gathered by ASADA as a result of the interviews would be shared with the AFL. Mr Young referred to one of the emails which included a response from a legal officer advising that the interim report could not be a joint report with the AFL.

Interim Report

Mr Young then questioned Ms Andruska about the circumstances in which ASADA had provided the interim report to the AFL. Mr Young questioned Ms Andruska about when she became aware that the AFL wanted ASADA to provide an interim report. Ms Andruska said that she was aware that comments were made about the report, but at that time what was being discussed was a final report wrapping up the entire investigation. Mr Young took Ms Andruska to an email dated 18 April 2013 which stated the AFL had requested an interim report. Ms Andruska stated that, despite that email, there was no intention of providing Mr Clothier of the AFL with an interim report prior to player interviews commencing. Mr Young asked Ms Andruska whether she had replied to this effect. Ms Andruska said she had not but she did not at that time have any intention to provide a report as she only made that determination in June 2013, prior to 19 June 2013.

Mr Young took Ms Andruska to her notes of a meeting dated 24 May 2013 with Mr Demetriou, Mr Clothier, the Minister and the Minister’s media adviser. Ms Andruska disagreed that the subject of the meeting was the provision of a report. However, after questioning by Justice Middleton, Ms Andruska admitted that she did not have an independent recollection of that meeting, even though it was unusual to have such a meeting. Mr Young questioned Ms Andruska as to why she did not mention this meeting in her affidavit. She replied that the outcome of the meeting was not of any importance to her.

Justice Middleton suggested to Ms Andruska that if the meeting were unusual (because of the presence of herself, the AFL and the Minister) one might expect her to remember it.  However, she did not.  When Dr McNicol objected to a further line of questioning on this point, the judge said he would allow it because it might go to credit.

Mr Young then took Ms Andruska to her notes of a meeting with Mr McLachlan on 3 June 2013, amongst others. Her notes recorded that Mr McLachlan had said ‘‘brand cant get any worse, July/August, Essendon, sanction support staff whatever done”. Ms Andruska stated that it was at this meeting that she first became aware that the AFL had commissioned surveys. At this meeting she started to understand for the first time the perspective of the AFL which, as a business, was concerned with the ‘brand’ and ‘faith in the game’. She said that the conversation in relation to a report being provided was more about how long it was going to take, would it take to October, etc. Ms Andruska disagreed with the proposition that Mr McLachlan was talking about taking disciplinary action based on the report he wanted by August 2013. Mr Young took Ms Andruska to a reference in her notes to Ms Lundy. Ms Andruska stated that these notes concerned a meeting she had with a media consultant engaged by ASADA regarding the political situation, the situation of the minister, and his views as a consultant on what might be going through the minister’s mind.

Mr Young questioned Ms Andruska about a meeting she had with Mr Burgess from the AFL on 9 June regarding the views of the AFL as to how they would use the interim report. Ms Andruska could not confirm what had been said by Burgess at that meeting and whether the AFL’s position was that the coach of Essendon should get a sanction of 6 months or longer. Ms Andruska stated that she went to that meeting with a view that a report would be provided to the AFL. Ms Andruska stated that she would not have taken into account the sanctions to be applied when making a decision as to providing a report. Ms Andruska stated that she knew the AFL would use the report for the purposes of sanctions but she also knew that the AFL had all the information and could have written the report themselves.

Mr Young then took Ms Andruska to correspondence regarding objections raised to the legality of the joint investigation by Russell Kennedy which asserted that the Code does not contemplate joint investigations nor the provision of information between ASADA and the AFL. Mr Young also took Ms Andruska to a reply from the AFL invoking AFL rules and stating they would be taking an active role in the investigation and using all information obtained to determine whether there had been a breach of the code. Ms Andruska could not recall whether that letter had been brought to her attention at the time. However, she later admitted that she referred to that letter in later correspondence to Russell Kennedy, stating that ASADA agreed with the information provided by the AFL.

Mr Young asked what action Ms Andruska took when she saw the objections to the validity of the joint investigation. She said that she would have sought assurances from ASADA’s legal team that they were acting appropriately. She stated that these matters were being discussed constantly but hat she did not have an exact recollection of what action was taken.

Mr Young again questioned Ms Andruska about the circumstances of providing the report to the AFL. Ms Andruska stated that she had been provided with legal advice before providing the report and she made the decision to provide the report for the purposes of the investigation. She admitted she knew the AFL may use the report for the purposes of disciplinary proceedings but believed they had the raw material in order to bring disciplinary proceedings without the interim report. Ms Andruska stated that she believed that her letter of 2 August to the AFL narrowed the scope of how the report could be used. When questioned about later correspondence from an ASADA legal officer objecting to the use of the report by the AFL for its own disciplinary processes, she stated that it was important for ASADA to restate and be more specific with the AFL as to the purpose of the report.

In response to questioning by Justice Middleton, Ms Andruska stated that she had a commitment to provide a report (to the AFL). She intended to provide a report that could be used more broadly (e.g., used by the AFL for other matters) but at that final moment was provided with advice, which would have been inconsistent with previous advice given to the AFL. However, Ms Andruska stated that she believed she had put a restriction around the use of the report by the AFL. She also reiterated that she believed that any action the AFL would take could be based on the raw material they already possessed, and they did not need the final report.

Justice Middleton was concerned about the ‘purpose’ Ms Andruska said she had when providing the Interim Report to the AFL.  Given it was not a final report, he indicated, could it not be the case that the purpose might differ from ASADA simply pursuing its investigative powers? However, Ms Andruska would not be swayed and indicated her purpose was consistent with the legal advice received.

Mr Young finally questioned Ms Andruska about the material given by ASADA to AFL players at a meeting on 20 February 2013 that was later redacted by ASADA.

Ms Andruska stated that there were concerns raised about possible ambiguities contained in the material and it was decided to provide a revised document to the AFL that could be used for any sporting code.

After a very brief re-examination by Dr McNicol (the most significant part being the tender of documents formally proving that Ms Andruska had appropriately delegated her authority to personnel in her team), Ms Andruska was excused and the proceedings adjourned to the next day.

The Court sat until 4.45 in order to complete Ms Andruska’s evidence.

The proceeding will continue today. Two witnesses will be called on behalf of ASADA, after which closing submissions will be put by all parties.

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.

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