As discussed previously, cross-examination only provides half the picture. Cross-examination enables the evidence relied on by a witness to be tested. In civil cases, that evidence is usually provided in affidavit form. Now, the Federal Court has released the affidavits in chief in the litigation between Essendon Football Club and James Hird against the Australian Anti Doping Authority (ASADA). In the case of James Hird, there are significant inconsistencies between the contents of the affidavits (particularly allegations in the exhibits) and the answers he provided under cross examination.
In this post we will examine the purpose of Mr Hird’s affidavit evidence (available here and here), some inconsistencies emerging from cross-examination, and conclude with a few ancillary observations.
Purpose of James Hird Affidavit Evidence
Mr Hird’s affidavit evidence covered the following matters:
- That he was a person of good standing who had made a very significant contribution to the Australian Football League (AFL) on the field (relevant to show he had a good reputation capable of being affected by adverse imputations)
- That he had external business interests as well (also capable of being affected by adverse imputations)
- That AFL and ASADA described the investigation into Essendon’s supplements program as “joint” (to prove that the nature of ASADA’s investigation lacked independence and was ultra vires)
- That James Hird cooperated fully with the investigation (which actually tends to go against interest, supporting ASADA’s contention of acquiescence)
- That ASADA adopted a different approach as between the AFL and NRL Codes in relation to their investigation (to prove the anomalous and allegedly unlawful manner in which ASADA sought to free-ride off the AFL’s coercive powers)
- That the show cause notices issued to the players would damage James Hird’s reputation (relevant to the question of standing to sue)
- That James Hird’s legal representatives queried the legitimacy of ASADA’s investigation in a timely manner (to defeat ASADA’s acquiescence argument)
The exhibits to James Hird’s affidavit include the AFL charge sheet, media articles, various correspondence between his solicitors, the AFL and ASADA, as well as the Deed of Settlement Mr Hird entered into with the AFL.
Some of this material is embarrassing and clearly adverse to James Hird’s interests in a personal capacity. Why was it therefore relied upon? Possibly because the players are not parties to the litigation, and so the only method of disclosing ASADA’s method in conducting its investigation was to identify how it applied to James Hird.
For instance, exhibited to Mr Hird’s affidavit was an email from John Nolan of ASADA under cover of which were directions to interviewees wholly based on the AFL Code. This evidences ASADA’s reliance on the AFL’s coercive powers. Incidentally, those directions emphasized heavily the benefits of providing “substantial assistance” under the WADA Code with the incentive of a reduced penalty if this occurred.
Also exhibited to Mr Hird’s affidavit were the excerpts of Commonwealth legislation supplied to him in advance of his interview detailing repercussions for non-compliance. Those excerpts were likely inapplicable if Mr Hird’s contractual arrangements with the AFL were the basis for his cooperation. This apparent inconsistency evidences a lack of attention by ASADA to the legal basis underpinning the investigation.
What questions did the Affidavit evidence answer?
The Deed of Settlement explained why the AFL was not a party to James Hird’s court case. It could not be. This is because James Hird expressly released the AFL from all claims arising from “the Investigation”. He was therefore contractually prohibited from suing the AFL for its role in connection with it.
What questions arose from the Affidavit evidence?
Many. So many, that it is hard not to second-guess ASADA’s apparent decision to confine its cross-examination of James Hird to almost a single issue (whether he agreed that Essendon Football Club “invited” the AFL and ASADA to conduct the investigation into the supplements program).
True it is most of the facts were uncontroversial and this was largely a case about the construction of ASADA’s legislative power under the ASADA Act. However, James Hird’s conduct was clearly relevant to ASADA’s request in its defence that the judge exercise his discretion not to order relief (even if he found the ASADA investigation to be unlawful), because the Applicants did not have ‘clean hands’.
One was left with the impression after ASADA’s cross-examination of James Hird that he was a reluctant accessory to Essendon’s decision to ‘self-report’; that he did not agree with the Club’s decisions in this regard; that he did not believe that the Club had committed any wrong doing in relation to its supplements program; that he was “just the coach” anyway; that his function was divorced from other parts of the Club; that he believed the Club had done the right thing because the Club doctor, Bruce Reid, believed the program was appropriate (and that Dr Reid was responsible for the program because he signed off on it); and that he only entered into a Deed of Settlement by which he accepted sanctions from the AFL under duress.
How then, does this reconcile with much of the material (albeit some of it allegations pursuant to the AFL’s charge sheet) exhibited to Mr Hird’s first affidavit?
Below are examples of matters inconsistent with the impression left by Mr Hird’s cross-examination:
- If Mr Hird’s role as coach was so unrelated to the Club’s supplements program, why would ASADA and the AFL Integrity Unit consider it appropriate to meet with him on 5 August 2011 to warn about the threat of improper use of peptides in the AFL competition?
- If Mr Hird sent an email to Danny Corcoran on 23 August 2011 stating “This is what we are dealing with?” what did he intend to convey given it was apparently sent three minutes after the Essendon dietician had advised by email that the perceived benefits of ‘Lactaway’ lacked meaningful evidence?
- To test Mr Hird’s belief that the supplements program was appropriate and the players took nothing improper, did he ever receive the 17 January 2012 letter from Dr Bruce Reid which expressed his concerns about the program and that “drugs were given without my knowledge” and, if so, why did he not accept this advice?
- Further, if James Hird did write a 30 January 2012 missive stating: “ “Reidy has stopped everything which is getting a little frustrating”, why did he understand Dr Reid had put a stop to ‘everything’ and was this a reference to the supplements program?
James Hird provided contrary evidence in re-examination about Bruce Reid’s enthusiasm for the supplements program and his role in signing off on it. This answer could not be tested by ASADA because its opportunity to ask questions had expired.
- If Mr Hird’s role as senior coach meant that he was not responsible for the supplements program, why then would his then assistant coach, Mark Thomson, see fit to say at a May 2012 meeting which Mr Hird attended, that the injecting of players had to stop?
- Did Mr Hird disagree with the decision to self-report because he held the view that the Club’s interests would be prejudiced if it did so?
- Finally, if James Hird’s role was so divorced from the supplements program that he lacked relevant knowledge, how does he reconcile this with his own apparent acceptance of substances administered to him such as Melanotan II (October 2011, apparently supplied by Dean Robinson), amino acid and multi vitamin injections (2012, Stephen Dank) and tablets to aid concentration (2012, Stephen Dank).
Melanotan II, according to a website promoting it under the tag line “How to tan like a star” is a peptide first developed as a treatment for skin cancer. However, “because of its capabilities to increase skin’s pigmentation [by the stimulation of melanin] it has taken the world as a quick, deep and long lasting tanning drug”. It can only be administered by injection, illustrated by the vials and syringes depicted on the home page. Identified side effects include nausea, loss of appetite and increased sex drive. A less common side effect is the appearance of new moles and the darkening of existing moles, however, according to the FAQ page they will apparently return to their previous shade once use of the peptide ceases.
It is noted that the inconsistencies contained in Mr Hird’s affidavit were not tested by ASADA via cross-examination. Therefore, they only have the status of unresolved questions and it would be unfair to draw conclusions from them.
Why were these matters not scrutinized by ASADA? Perhaps ASADA was concerned that if it emphasized matters from source material such as the AFL Charge Sheet, this would tend to focus attention on whether the contents of that document had been duly authorized by the legislation.
There is an odd statement in James Hird’s affidavit to the effect that “if show cause notices are issued” to current or former Essendon players by ASADA, this will cause “immeasurable and irremediable damage” to his reputation, to his earning capacity as an AFL coach and to his business interests external to the AFL and Essendon. Given that such notices have already been issued, the plain language meaning of this statement is that such harm has already occurred. Normally one would claim that “if the show cause notices are not set aside”, such harm might occur. Perhaps nothing turns on this.
On a more lighthearted note, Toyota as the Premier Partner of the AFL has its logo on the footer of all AFL letterhead. However, Toyota likely never contemplated that its logo would be on AFL letterhead in connection with a notice to an AFL coach to attend an interview in response to anti-doping issues.