Kate Houghton, lawyer and legal reporter, reports in this post on the cross-examination of remaining witnesses on the final day of trial. Closing submissions will be the subject of a separate post.
Wednesday 13 August 9.45 am
The trial continues before Justice John Middleton.
The proceedings began with Mr Young QC attending to ‘housekeeping’ matters. Mr Star then called on the applicants to produce a ‘Deloitte’ document. Mr Young and Mr Hanks stated that there was no such document to produce.
The examination of the final two witnesses to be called by ASADA then began.
Aaron Walker cross examination and re-examination
Mr Walker, a former police officer in the homicide squad was sworn in and his position as an ASADA principal investigator was confirmed by Dr McNicol. Mr Harrington then proceeded to cross-examine Mr Walker.
Background and role as ASADA investigator
Mr Harrington, Counsel for Mr Hird, began by asking Mr Walker about his background as an investigator. Mr Walker confirmed that he had been employed at the Office of Police Integrity where he worked with Mr Nolan, and prior to that had been a member of the Queensland Police Force with the rank of Detective Sergeant attached to the Homicide Squad in Brisbane. He commenced working for ASADA on 15 February 2013 where his immediate superior, once again, was Mr Nolan. Mr Walker said that he held Mr Nolan in high regard, worked closely with him and directly reported to him. Mr Walker confirmed that there were two interview ‘teams” conducting the ASADA investigation. He headed up one and the other was led by Ms Kerrison who, also reported to Mr Nolan.
Mr Walker agreed that he had played an integral role in the interviews that were conducted with the players.
Mr Harrington questioned Mr Walker about his induction training at ASADA. Mr Walker said that he had not been briefed on the ASADA legislation but he knew that information to be discussed in interviews was to remain confidential. He also knew of the term “NAD scheme personal information”. He confirmed that he read the statute in a general sense and he had access to lawyers if he had questions about the statute.
Was the investigation a “joint investigation”?
Mr Walker said that whilst he had an understanding of the term ‘joint investigation’ he did not believe that the investigation was a joint investigation, but rather that ASADA and the AFL were conducting their own investigations.
Mr Harrington asked whether it was Mr Walker’s evidence that no one ever said that the ASADA investigation was a joint investigation. Mr Walker said that he believed the ASADA investigation was different to the AFL investigation, but that there was overlap with the AFL investigation. Mr Walker conceded that the term ‘joint’ investigation was used by Mr Nolan but not in the context that Mr Harrington suggested. Mr Walker said that there was a stand alone AFL investigation, a term he used in his affidavit. There was discussion between Mr Harrington and Mr Walker as to the use of the heading ‘AFL investigation’ in his affidavit.
The preparation of the interim report
Mr Walker confirmed that he was the sole author of the interim report but that others also contributed to the drafting. He said that ASADA had sought some information from the AFL’s Dr Peter Harcourt, but that Dr Harcourt had not written any part of it. Mr Walker stated that he had used the term ‘joint investigation’ in the interim report but did not understand that to mean that the AFL and ASADA had formed a joint investigation body. He insisted that it was never his understanding that the AFL was working towards ASADA’s outcome and maintained that the AFL was conducting its own standalone investigation. However, he later conceded that he had stated in the draft interim report that ASADA and the AFL had agreed to undertake a joint investigation. Mr Harrington also took Mr Walker to the methodology section of the interim report where it was stated that the investigation was a joint investigation. Mr Walker explained that he did not draft that section of the report.
The conduct of the investigation and the interview process
Mr Harrington asked Mr Walker about his contact with the AFL during the investigation. Mr Walker said that he had regular email conversations with Mr Haddad at the AFL and he also had personal interaction with him during interviews. Mr Walker confirmed that he was one of the investigators who interviewed Mr Hird. He confirmed that Mr Haddad was present at the interview and introduced the parties at the commencement of the interview, but said that he otherwise had a ‘bit part’. He confirmed that Mr Nolan SC, who attended the interview with Mr Hird, questioned the nature of the investigation, but did not press the issue.
Mr Harrington questioned Mr Walker about the collaboration between ASADA and the AFL in organizing and conducting interviews. Mr Walker said that he had determined which players were to be interviewed and the sequence of the interviews whilst the AFL, through Mr Haddad, sent out letters to interviewees to arrange for the conduct of the interviews and organized and directed AFL support staff to attend the interviews. The AFL Players’ Association was also consulted.
Justice Middleton suggested to the witness that the AFL was, in this regard, essentially conducting an administrative task, a proposition with which Mr Walker agreed.
Mr Harrington took Mr Walker to an email from Mr Haddad which stated that Mr Clothier expected Mr Haddad to be at the interviews to ensure ‘compellability’. Mr Walker confirmed he had seen this email. Justice Middleton asked Mr Walker whether an AFL representative was present at every interview. Mr Walker confirmed this was so, except on occasions when the interviews were follow up interviews.
Directions given by ASADA to the AFL
Mr Harrington then asked Mr Walker about directions given by ASADA to the AFL on investigative matters. Mr Walker stated that on occasions he and Mr Nolan gave directions to Mr Haddad and others at the AFL to conduct investigative tasks. However, he would not concede that this happened regularly. This included asking the AFL to obtain information identifying parties who had paid for intravenous tests, and asking Mr Clothier to obtain telephone records from players to be used by Deloitte.
Mr Walker stated that he did not understand these to be directives to AFL personnel, but rather requests.
However he agreed with Mr Harrington that there was almost universal compliance with any requests made by ASADA to the AFL. Mr Harrington asked Mr Walker about requests made by Mr Nolan for statistics. Mr Walker confirmed that the AFL had provided the statistics, which were included in the methodology section of the interim report, but he denied that this meant that the AFL had drafted that section of the interim report. Mr Harrington took Mr Walker to an email which contained a summary from an AFL employee of the investigation. Mr Harrington asked whether this was drafted by the AFL for use in the interim report. Mr Walker said it was not.
Involvement of Deloitte
Mr Walker said that ASADA had broad access to services provided by Deloitte and had contact with Deloitte regarding requests for information. In answer to a question from Justice Middleton, Mr Walker confirmed that it was the AFL who had a contractual relationship with Deloitte and not ASADA. Mr Walker stated that there was a later contractual relationship directly between Deloitte and ASADA but not at the time of the investigation. He said that he attended Deloitte on some occasions, and when he did it was with an AFL official, however he conceded that his colleague would attend Deloitte without AFL people present.
Mr Harrington then asked Mr Walker about the transcripts of the interviews. Mr Walker confirmed that the interview transcripts were provided by ASADA to the AFL and that the AFL assisted ASADA in drafting AFL player summaries.
Use of the term “joint investigation” by ASADA and the AFL
Mr Harrington next asked Mr Walker about the objections made by Russell Kennedy to the investigative process which had been referred to in the cross examination of Ms Andruska. Mr Walker said he understood the objections were regarding the ability of the AFL to use the information gained in the interviews, rather than objections to the joint investigation. Mr Harrington took Mr Walker to correspondence which contained a transcript of an interview at which Mr Haddad stated “this is a joint investigation”. Mr Walker confirmed he did not object to that statement by Mr Haddad when he made it at the time.
Mr Harrington took Mr Walker to an email from Mr Nolan dated 30 July 2013, which had been copied to Mr Walker, in which Mr Nolan expressed concerns about the status of the investigation. Mr Walker stated that he would only have ‘glanced’ at the email and did not recall reading in the email “my belief is that this has only been a joint investigation”. Mr Harrington took Mr Walker to other parts of the email but Mr Walker continued to state that he only “glanced” at the email. Mr Harrington pressed Mr Walker ,suggesting that it was unbelievable that he did not read the email given its timing before the release of the interim report and the fact it was from his immediate superior.
Justice Middleton intervened and said “he was busy, he was writing a report, he glanced at it. What does it go to?” The Judge said further that whether or not anyone labeled it a ‘joint’ investigation did not seem to be important. It was for the Court to work out whether it was a joint investigation or not. The judge further said: “Whatever you label it, I have to work out what it means. You can call it joint until you are blue in the face but I have to work out what it means“.
Dr McNicol conducted re-examination. She took Mr Walker to the statements made by Mr Nolan SC at the interview with Mr Hird. Mr Walker confirmed that others also remained silent about the issue of the investigation after Mr Nolan’s initial comments, including Mr Nolan himself, and the interview proceeded. Mr Walker said that the issue was never raised again. Dr McNicol also confirmed with Mr Walker that the AFL Players’ Association had suggested that the AFL leadership group be interviewed first.
Mr Walker was then excused as a witness.
Trevor Burgess cross examination and re-examination
Mr Burgess was sworn in and his position as National Manager of Operations at ASADA was confirmed by Mr Star. Mr Young then proceeded to cross examine Mr Burgess.
Meeting on 13 June 2013 at which Mr Eccles was present
Mr Young began his cross examination by asking Mr Burgess about a reference in his notes dated 13 June 2013 to an AFL Board meeting. Mr Young asked Mr Burgess whether he attended an AFL Board meeting. Mr Burgess said he had not, and also that he did not receive a note about what had occurred at an AFL Board meeting.
Mr Young took Mr Burgess to his notes which record “AFL keeping pressure on ASADA to be the bad guys”. Mr Burgess stated that this comment was reported to him by Mr Eccles, a representative of the Department. Mr Star, Counsel for ASADA, objected to the line of questioning on the ground that it was not relevant.
The objection was overruled. Justice Middleton said it went to issues of cooperation and allowed the questions to continue.
Mr Young then asked whether Mr Burgess understood that Mr Eccles was providing him with particular information from the AFL. Mr Burgess stated that he did not think that Mr Eccles was telling him what had happened at an AFL Board meeting. He said that his recollection was that the information came from a discussion that Mr Eccles had with somebody at the AFL about what that person would be potentially briefing the Commissioners on at an AFL Board meeting. Mr Young took Mr Burgess to a further part of his notes which stated “AFL support staff, coach minimum 6 months or longer, support staff will go, ducks all lined up”. Justice Middleton observed “there was a lot of hearsay going on”. Mr Burgess agreed that he had briefed Ms Andruska about this conversation.
Mr Young put to Mr Burgess that he must have realised from this conversation with Mr Eccles that the AFL Commissioners were being briefed on the progress of ASADA’s investigation. Mr Burgess replied that he realised from this discussion that the AFL Commission was meeting on or around 14 August 2013 and this was potentially information that was going to be provided to them. Mr Young asked whether he inferred from this conversation that detailed information from the investigation was being briefed by the AFL to the AFL Commissioners in the middle of June 2013. Mr Burgess said that he did not reach that conclusion.
Mr Burgess confirmed that he treated the information received from Mr Eccles as reliable and accurate information from a senior official in the Department, which he passed on to his CEO. Mr Burgess stated that at this time he did not know that the AFL was going to bring disciplinary charges against Essendon and that this was their purpose in involving themselves in the investigation, as he was not involved in the investigation at the time. He stated that when Mr Eccles was giving him this information, it was very early on in Mr Burgess’ involvement in the investigation, and he had no reason not to believe Mr Eccles.
Justice Middleton questioned Mr Burgess as to why he believed he was being told this information by Mr Eccles. Mr Burgess said there were a number of people at the meeting, that Mr Eccles was provided with information on the basis that the AFL was wishing to expedite matters. He said the discussion centred around how to expedite matters, including suggestions of providing additional financial resources for ASADA and additional legal resources for ASADA from the AFL.
Mr Young asked whether Mr Burgess understood that the matters discussed related to the AFL’s desire to bring disciplinary proceedings. Mr Burgess conceded this was so, but said the matters also related to expediting ASADA’s investigation. He conceded, however, that ASADA’s investigation was not anticipated to be ‘fully’ completed by 2012.
Meeting with Mr Clothier of the AFL
Mr Young took Mr Burgess to his affidavit, which referred to a meeting with Mr Clothier on 20 July 2013. Mr Burgess confirmed that he knew that the AFL had all the investigative material gathered during the investigation. He also confirmed that he knew that there was no restriction on the use of the investigative material, including preventing the AFL from preparing its own report for the purposes of disciplinary proceedings.
Provision of the interim report to the AFL
Mr Young referred Mr Burgess to an email from an ASADA legal official to Mr Clothier at the AFL, copied to Mr Burgess, containing advice from ASADA. Mr Burgess confirmed that he read this email which stated in part that “Essendon has queried ASADA’s ability to provide such a report to the AFL”. Mr Burgess stated that he understood this to be the case. The email also stated that ASADA had previously committed to provide an interim report to the AFL for the purposes of assisting the AFL to consider bringing charges against Essendon and its officials. Mr Burgess confirmed that he knew that this was the purpose for which the AFL would use the report.
Cross-examination by Mr Hanks QC
Mr Hanks also conducted a short cross-examination of Mr Burgess. He asked Mr Burgess about his notes of the strategy meeting on 13 June 2013. Mr Burgess confirmed a strategy meeting was held on that date and he stated that he made no record of who attended the meeting. Mr Hanks asked whether this was his normal practice. He stated that this depended on the nature of the meeting, he added that this was an internal meeting attended by a couple of people. Mr Hanks took Mr Burgess to his notes regarding ‘6 months’ which had an arrow next to it and a ‘G’. Mr Hanks asked whether he intended to record that Mr McLachlan stated this. Mr Burgess said that he could not recall.
Re-examination by Mr Star
Mr Star re-examined Mr Burgess. He asked Mr Burgess about his involvement with the ASADA investigation at the date he met with Mr Eccles. Mr Burgess said that it was minimal, that he had no role in the detail of the investigation, and only had a general role. Mr Star questioned Mr Burgess regarding his direct knowledge of what information the AFL had at the time he had his conversation with Mr Clothier. He said that he understood the AFL had knowledge of transcripts of interviews, which he understood had been attended by AFL staff, and had information from forensic investigators, Deloitte.
Mr Burgess was then excused as a witness.
Mr Star then tendered various documents on behalf of ASADA. The ASADA case was thus concluded.
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.