ASADA said ‘links in a chain’; WADA said ‘strands in a cable’: Which was right?

By Natalie Hickey, January 14, 2016

What does ASADA’s failed prosecution of the 34 Essendon Players and the famous Lindy Chamberlain case have in common? Both decisions apparently applied the principle that you need to prove each material fact in a circumstantial evidence case to win.

Under Australian law, this analytical approach, often called proving ‘links in a chain’, can be relevant to some types of circumstantial criminal cases. However, the ‘strands in a cable’ approach, which invites a different reasoning process based on looking at the overall weight of the evidence, is easier to apply and generally preferred.

Hindsight is a wonderful thing, and we are looking at ASADA’s judgment calls from afar. That said, it is worth asking: Why did ASADA rely on the less contemporary, and more difficult to prove ‘links in a chain’ analogy before the AFL Tribunal? Why did ‘strands in a cable’, a conventional and accepted analogy in Australian criminal law, not make an appearance until WADA’s skeleton argument prior to the CAS hearing of its appeal?

A. 1984: Lindy Chamberlain’s importance to this story

Let’s look at the Lindy Chamberlain case to understand the development of these concepts, that the two engineering metaphors are not the same thing, and why they can lead to different results.

As the smash hit Netflix documentary series Making a Murderer has taught us, there are many complex tales of injustice in the legal world. Perhaps the Essendon saga is one of them. Many believe so. The Lindy Chamberlain case deserves its own place in this unwelcome group.

Mrs Chamberlain was accused of murdering her two month-old daughter Azaria on a family camping trip to Ayres Rock in 1980 by slashing her throat with scissors and then hiding the body. She repeatedly denied harming Azaria, insisting that the child had been carried off and killed by a dingo.

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This was a circumstantial case. There was no direct evidence of, say, a witness who saw Mrs Chamberlain stabbing her daughter. The evidence consisted of bits and pieces, such as:

1. evidence of foetal haemoglobin in the car and under the dashboard of the accused and in their camera case;
2. evidence of likely bleeding if a dingo had seized the baby’s head and of the absence of large quantities of blood in the tent in which the deceased had been at the time; and
3. evidence of the condition of the deceased’s jumpsuit and singlet and the arrangement of the deceased’s clothes when they were found.

Those who sat in judgment of Mrs Chamberlain were ordinary members of the community. These members of the jury were not County Court or Supreme Court judges. They were not eminent English barristers. They were not esteemed solicitor/advocates from Belgium. Their task, like that of juries in criminal cases every day, was to evaluate this evidence and determine whether or not, beyond reasonable doubt they regarded Mrs Chamberlain to be guilty.

Mrs Chamberlain’s demeanour during the trial has long been a point of controversy. Mrs Chamberlain was stoic. She did not fall apart under the weight of her grief as many would expect. Many people held this against her and considered it a sign that she did not care and was guilty of the alleged crime.

There were 12 members of the jury. Their notes suggest that their evaluation of the evidence was not very sophisticated. See, for example:

• “Doesn’t believe dingo” – female member of jury
• “Hard to accept Mrs C did it” – female member of jury
• Can’t believe Mrs C did it” – male member of jury
• “Probability dingo could do it” – male member of jury
• “Look at totality must say guilty” (emphasis added) – female member of jury making an apparent attempt to come to grips with treatment of piecemeal evidence

Mrs Chamberlain was found guilty in 1982 and sentenced to life in prison. Her husband was found guilty of being an accessory.

Mrs Chamberlain appealed her conviction all the way to the High Court (Chamberlain v The Queen (No 2) (1984) 153 CLR 521).

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By the time she arrived at the High Court, some of the scientific evidence had been discredited. There were serious doubts about blood test results. It could not be proved that blood under the dashboard and in the car of the accused parents was foetal blood. There were serious doubts about the evidence of a pathologist in relation to the apparent imprint of a hand in blood on Azaria’s jumpsuit.

Mrs Chamberlain’s legal team understandably argued before the High Court that it was unsafe to rely on the jury verdict because a number of elements on which they might have formed an inference of guilt were unsound.

The High Court dismissed the appeal. Yes – if you are looking for injustice this appears an astonishing outcome. The Court decided that the jury’s finding of guilt should not be disturbed because of the existence of other legitimate bases for its decision.

Whilst this conclusion does not seem consistent with a ‘links in the chain’ approach, comments by High Court judges in the Chamberlain case were subsequently interpreted to mean that a jury must be satisfied of all the facts upon which the inferences are based in a circumstantial case.

Indeed, the Chamberlain case stood as authority that in a case resting upon circumstantial evidence, the jury may only properly draw an inference of guilt upon individual items of evidence, each of which must have been proved beyond reasonable doubt.

B. 1990: Moving on from ‘links in a chain’

In 1990, the High Court in Shepherd v R (1990) 170 CLR 573 decided that the Chamberlain case was based on a ‘misconception’. This is usually code for a court disagreeing with another decision but being too nice to say it out loud.

In Shepherd the Court divided the world of criminal cases into two. Sometimes, there might be cases where it is so important that intermediate facts must be proved that the ‘links in a chain’ metaphor will apply. In other words, if an intermediate fact cannot be proved the case must fail.

Other times (read: most other times), the totality of circumstances must be proved (‘strands in a cable’) having regard to the discharge of the overall standard of proof.

Dawson J (Mason CJ, Toohey and Gaudron JJ agreeing) explained both the ‘misconception’ and the correct position in these terms, at [14]-[15] 585:

“The judgments in Chamberlain do not support the proposition that, in a case resting upon circumstantial evidence, the jury may only properly draw an inference of guilt upon facts – individual items of evidence – proved beyond reasonable doubt. Still less does the case establish that a direction in those terms should be given to a jury. Of course, it is recognized in Chamberlain that, if it is necessary for the jury to reach a conclusion of fact as an indispensable, intermediate step in the reasoning process towards an inference of guilt, then that conclusion must be established beyond reasonable doubt. … It does not mean that each item of evidence taken into account in reaching that conclusion must, considered separately, be established beyond reasonable doubt.

 Whether it is desirable for a trial judge to identify an intermediate conclusion of fact in his charge to the jury in order to instruct them that it must be proved beyond reasonable doubt will depend upon the particular case. Such an instruction will only be possible where the conclusion is a necessary link in a chain of reasoning. Even then, particularly when that is obvious, the instruction may not be helpful.” (emphasis added)

‘Strands in a cable’ also made an appearance:

 “But where – to use the metaphor referred to by Wigmore on Evidence, vol.9 (Chadbourn rev. 1981), par.2497, pp 412-414 – the evidence consists of strands in a cable rather than links in a chain, it will not be appropriate to give such a warning. It should not be given in any event where it would be unnecessary or confusing to do so. It will generally be sufficient to tell the jury that the guilt of the accused must be established beyond reasonable doubt and, where it is helpful to do so, to tell them that they must entertain such a doubt where any other inference consistent with innocence is reasonably open on the evidence.” (Emphasis added) (Dawson J at [4]-[5])

It followed that it was quite proper for a jury to draw the necessary inference from the whole of the evidence provided they reached their conclusion upon the criminal standard of proof. This was because the force of a mass of evidence may be cumulative: per Dawson J at [6]; McHugh J at [10]. As McHugh J explained:

“… [t]he cogency of the inference of guilt is derived from the cumulative weight of circumstances, not the quality of proof of each circumstance”: at [11]-[12] 

C. 2000s: ‘United force’ approach preferred

Over and over again, the courts since 2000 have referred to the importance of the “united force” of all the circumstances put together and warned against considering the evidence in “a hermetically sealed compartment”. ‘Links in a chain’ unless the facts specifically required it, appeared the exception rather than the rule.

D. Trial judges make the call

Under criminal law, the relevance of ‘links in a chain’ or ‘strands in a cable’ strikes home when it is time for a trial judge to direct the jury.

The aim is to give ordinary members of the community co-opted into jury duty some tools to help them work through evidence in a circumstantial criminal case.

In giving what is called a Shepherd direction (with a nod to the High Court case), a judge makes the call as to whether to inform a jury to consider the evidence like ‘strands in a cable’ or whether to consider it like ‘links in a chain’.

A ‘links in a chain’ direction will be given if there are necessary or intermediate facts that must be proved in the chain of reasoning towards an inference of guilt.

For a trial judge to pick the correct analogy to direct a jury involves guesswork.

The verdict can be overturned because the trial judge has, according to an appeal court, failed to get the direction right.  The judge might have referred to ‘strands in a cable’ when he or she should have given a ‘links in a chain’ direction.

For instance, the NSW Court of Appeal found a trial judge gave the wrong direction (‘strands in a cable’) because if one particular factual matter was removed from the list of facts needed for the Crown to prove its case, one was “left with an empty shell”. The direction should have been given that it was an indispensable intermediate fact that had to be proved beyond a reasonable doubt (‘links in a chain): R v Zaiter [2004] NSWCCA 35 per Ipp JA at [8].

E. The concepts are confusing which is why ‘totality’ of evidence preferred

Confused? If so, you are not alone. Imagine you are a member of a jury in a criminal trial where someone’s liberty may rest on whether you understand how ‘links in a chain’ is meant to work.

Judges have long recognized this problem. One of them, a certain former Chief Justice of the Supreme Court of New South Wales, the Honourable James Spigelman AC, QC (and a member of the CAS Panel in the Essendon case), stated in Davidson v R [2009] NSWCCA 150 at [8] that where there are only two intermediate facts, it would not be “‘unnecessary’ nor ‘confusing’” to give a ‘links in a chain’ direction. However, in a case where “… there are numerous separate facts, of varying degrees of probative force, it could very well be confusing to do so.”

F. Application to Essendon case

Now that you are armed with the above background, consider the following:

1. Under Australian law, ‘links in a chain’ and ‘strands in a cable’ are common metaphors used to direct juries in criminal circumstantial cases about how to evaluate the evidence.
2. There is a distinction between the two types of cases:
   • ‘links in a chain’ – the case is proved by sequential reasoning
   • ‘strands in a cable’ – the case is proved by an accumulation of detail.
3. The purpose of the two metaphors is to help direct juries.
4. It is the job of the trial judge to decide if it is a ‘links in a chain’ or ‘strands in a cable’ case, and to direct the jury accordingly.
5. It is easier to prove ‘strands in a cable’ than ‘links in a chain’.
6. This is because if one link in a chain is missing, the prosecution’s case falls apart.
7. However, a trial judge should direct ‘links in a chain’ (unless overturned by statute) if some intermediate facts are so indispensible that, without it, the inference cannot be drawn that a person is guilty.
8. The Essendon case was not a criminal case.
9. There was no jury.
10. This was therefore not a case where the trial judge had to decide which metaphor applied, and to instruct a jury accordingly.
11. The choice of analogy was therefore a forensic choice of the ‘prosecutor’ (ASADA / WADA) to help persuade decision makers that they had proved their circumstantial case to a point of comfortable satisfaction (which lies between balance of probabilities and beyond reasonable doubt under the AFL Code).
12. ASADA picked ‘links in a chain’ to help persuade the AFL Tribunal: “ASADA, before the AFL Tribunal, relied exclusively on an analysis of links in a chain, which was accordingly reflected in the AFL Tribunal’s approach”: para 109 CAS Decision.
13. In other words, ASADA volunteered to prove its case by applying the more difficult test.
14. The AFL Tribunal, applying ‘links in a chain’ (as it had been asked to do by ASADA), declared it was not ‘comfortably satisfied’ of the first two facts below, meaning two indispensible links in the chain were missing such that it was unnecessary to consider the rest:
    • TB4 was procured from sources in China; and
    • TB4 was obtained by Mr Alavi, compounded and provided to Mr Dank in his capacity as Sports Scientist at Essendon; and
    • TB4 was obtained by Mr Alavi, compounded and provided to Mr Dank in his capacity as Sports Scientist at Essendon; and
    • Mr Dank administered TB4 to each Player.
15. ASADA lost.
16. WADA adhered to the ‘links in the chain’ analogy in the appendices to its appeal brief (para 109 CAS Decision). However, it had seen the light by the time of the hearing, switching in favour of a ‘strands in a cable’ analysis.
17. The Panel liked this approach. This is not surprising because Australian court decisions prefer it, and James Spigelman, when Chief Justice of the New South Wales Court of Appeal, had remarked upon the risk of confusion if ‘links in a chain’ was applied to numerous separate facts.
18. ‘Strands in a cable’ has had mainstream acceptance under Australian law since 1990 as a method of proving a circumstantial case.
19. The Panel decided that WADA was able to reformulate its argument using this analogy: “it did no more than present the same arguments in a different way” (para 111 CAS Decision).
20. Had ASADA chosen to use ‘strands in a cable’ to present its evidence to the AFL Tribunal, one can only guess whether the outcome might have been different.
21. Caveat: It is unclear from the published material whether ASADA was encouraged by the AFL Tribunal to proceed with “links in a chain”, which might have impacted the forensic choice ASADA made.

13 Responses to “ASADA said ‘links in a chain’; WADA said ‘strands in a cable’: Which was right?”

1. Julian January 14, 2016

   Very informative. The problem for the players may then have been the fact that this appeal is heard “de novo”. The reality is that for a proper appeal, If CAS considered the original 3 tribunal members got the analysis wrong, they should have said that and sent it back for another hearing based on the “strands in a cable” approach. But instead it seems the CAS panel chose to allow the different approach and then make up its own mind, possibly applying a lower standard of proof as well and rendering the entirety of the original hearing an irrelevance for all intents and purposes. From your analysis above, it would seem the original heading didn’t actually get it wrong, they just chose what they considered to be the right approach on the links versus strands test.

   Another odd part of the CAS judgment is that it makes so little mention of the basis for a finding that the players had TB4 and not, as they say, one of the legal forms of thymosin. Odd not to spend much time on this, given its the central issue to the case. I see you mentioned this as well in your other post Natalie.

   Reply
• Natalie Hickey January 15, 2016

  Hi Julian,

  One point which bears reflection is that media comments suggesting it was a different result based on the ‘same’ evidence is not strictly correct. The Panel is at pains to clarify that “WADA’s case has two pillars. The first, which was relied on by ASADA before the AFL Tribunal, was circumstantial evidence. The second, which was ADDITIONALLY relied on by WADA before the Panel, was analytical information”: para 106 (emphasis added). In my view, whilst the reasons favouring TB-4 rather than any other Thymosin are opaque, the analytical case based on the scientific tests conducted by Dr. Cox persuaded the Panel that ‘Thymosin’ was ‘TB-4’.

  You may be interested in what an independent scientific expert has told me:

  “Just one point for you on the part where you feel the Panel let’s “the reader down”.
  Yes it surely does!
  In fact it looks very weak analysis. But the detailed reading of Para 132 seems to be written for people who attended the hearings and know what it means.

  “They acknowledge that there are about 27 varieties of Thymosin; which is fair as in naturally occurs in animals such as humans. One would expect that few, if any of these varieties are (or indeed, can be) synthetically replicated. Para 132 seems to say that only Thymosin Alpha and TB-4 are the only two products on the market – at least from GL Biochem.

  “The next few clauses are intriguing. Vania Giordani was part of the chain as Alavi’s lab assistant; she did the compounding. She evidently must have ‘replicated’ her action at Bio21 (a Melbourne University facility) and produced what was analysed to be TB-4. (was she required to do this or volunteer?) The para goes on to note that other compounds were also analysed using the same technique and found to be correct – so the technique works. [this must be mass spectroscopy of which mention has been made.] This seems to have been done under the eyesight of ‘Dr Cox’ who is so respected.

  “That they don’t even explain what Bio21 is seems to show that is treated either a periphery issue or, more likely, bleeding obvious to anyone involved.”.

  Best wishes, Natalie.

  Reply
2. mattd1974 January 15, 2016

   I see the chain approach used at the AFL tribunal a result of Dank charges being heard at the same time. Each of the “links” at the tribunal corresponded with a Dank charge, step 1, was the Dank trafficking charge, step 2 the possession charge and step 3 the administration charge.
   As Dank’s case was being heard concurrently with the players, at least from the point of view of what ASADA submitted to the tribunal, ASADA was forced to use the chain approach to have found Dank guilty on all the charges. This than applied to the players by default.
   WADA having only the one charge effectively to look at had the benefit of using the cable approach.

   Reply
• Natalie Hickey January 15, 2016

  This is a very helpful insight. It certainly makes sense.

  Reply
3. Martin Williams (a previous correspondent) January 15, 2016

   Hi Natalie. Thank you for your continuing reliable commentary on this saga: the only such reliable commentary. Could you put your mind to elucidating the cryptic grounds for appeal shown on the CAS website. I assume that they have been tested but the case studies are not evident. Thanks. Martin.

   Reply
• Natalie Hickey January 15, 2016

  Martin – Thanks so much for the feedback. It encourages me to continue.

  In short, grounds to appeal to the Swiss Federal Tribunal are pretty limited. They are focussed on things like jurisdictional issues (apparently not challenged by the Players). And also the oblique concept of ‘breach of public policy’. For examples of the former, see James Rowland’s previous post on this site: https://sociallitigator.com/2015/06/23/might-a-swiss-court-tell-wada-it-was-wrong-to-go-straight-to-cas/ . For the latter, Paul Czarnota has done a helpful note of the January 2015 Pechstein case, in which an athlete was able to toss out an award on the basis that the composition of the CAS Panel was loaded in favour of the interests of sports bodies: http://www.commbarmatters.com.au/2015/05/28/validity-of-international-sports-arbitration-awards-rendered-by-the-court-of-arbitration-for-sport/ In short, public policy breaches tend to be in the realm of what we would regard as bias, breach of market power or natural justice issues. CAS issued what can only be regarded as a defensive media statement after the Pechstein case, but pundits tend to agree that the decision was likely a product of the time (2009). For the CAS media release about that case, see: http://www.tas-cas.org/fileadmin/user_upload/CAS_statement_ENGLISH.pdf

  Perhaps the Players might contemplate pursuing an error of law in an Australian Court under the International Arbitration Act.

  As a general comment:
  – Consider the time taken for any appeal, particularly to a Swiss Court, having regard to the duration of the 2016 season. I suspect the only purpose would be vindication rather than the prospect of playing during the (otherwise) ‘ineligibility period’.
  – Note also that arbitrations are creatures of contract, and Australian courts tend to be reluctant to overturn awards which the parties have agreed (under their Rules) to be final and binding. It happens, but not often.

  Kind regards,
  Natalie.

  Reply
• mattd1974 January 15, 2016

  It’s worth pointing out Natalie that the Pechstein case was not thrown out by the Swiss Supreme court, rather a German court. The Swiss supreme court actually refused to listen to her case twice (http://www.sportsandtaxation.com/2015/04/the-pechstein-decision-the-end-of-sports-jurisdiction-as-we-know-it/
  It’s an interesting case into itself that a local court overruled an arbitration not based in its jurisdiction.

• Natalie Hickey January 15, 2016

  Excellent value add. Thanks!

4. TonyFNQ January 22, 2016

   Dear Natalie,
   No, no, keep going. I want you to write a book out of all this hard work you have been putting in.
   I refer to your previous article:-Essendon Saga: 13 legal things from CAS Judgment Day
   11. Proving WADA’s case: ‘links in a chain’ versus ‘strands in a cable’
   Of all the points you make Natalie this was the one which stood out for me. After all, talk on the town was, how can two bodies presented with the same evidence come to two completely different outcomes?
   My thoughts.
   After reading “The Straight Dope” by Chip Le Grand one of the more interesting things to come out was how ASADA was really a bunch of amateurs with the power of “begging and pleading……. and $637,000 in the kitty “ p.24, to cover the WHOLE of Australian sport and do its intelligence and investigations. A complete Mickey Mouse outfit when confronted with the size of this investigation. No money and no agency power. So it was no surprise that the first link in the chain (A) go to China and visit GL Biochem ASAP, appears to have been knocked on the head for budgetary reasons p.254. After that, the “chain of custody” seems to resemble the three shells and a pea game. I thought the conclusion by a couple of lawyers representing a couple of players summed it all up “The Tribunal is being asked to perform the almost impossible task of reconstructing a series of event …………effectively being asked to make quantum leaps of reason rather than drawing properly available inferences”p.259.
   Chip Le Grand book keeps clear of the legal side.
   So that was it. Game set and match. I of course should have known better. Now we have The Court of Arbitration for Sport and “This unfortunate episode has chronicled the most devastating self-inflected injury by a sporting club in Australian history”….Ben McDevitt.
   I’m now eagerly awaiting the Natalie emails that will drop in my email box and once again rescue me from this nightmare. You of course did not disappoint.
   My point of reference for “links or strands” were the tax minimisation “schemes” out of the 1970s. Was it not the Barwick High Court who would only look at each “invoice” and not the “whole scheme” or “chain of invoices” to reduce income or convert income to capital and of course no tax payable at the end of the line. An invoice on its own was completely business like. But when you sat back and viewed the entire length of transactions you came to a completely different point of view about the “original transaction and its purpose”.
   To me Natalie at the end of the day you have to say the last link was “the players were administered needles and they can’t tell you what was in them”. I could never see WADA letting that one go. On a “link basis” I would maintain you could never get to this pointy end of the story. But on the “strand basis” you can get to the end and can say the players are responsible for what was injected into their tummies, or sliding down their throat. WADA saw that and the rest is history.
   So thanks Natalie for bringing all this out and explaining once again at a level which gives us understanding in this matter. If you live in Melbourne or were born in Victoria then then it’s your duty to put all this into a book.
   “The only exact science known to man is hindsight” – sort of sums it up really.

   Reply
• Natalie Hickey January 23, 2016

  Tony, you do me too much credit. But thanks for reading! And for your interesting thoughts.

  Reply
5. The Essendon CAS verdict: your top 15 questions answered | Chris Kaias January 25, 2016

   […] For a more detailed analysis of the ‘links in the chain’ approach vs. the ‘strands in a cable’ approach, see Natalie Hickey’s thorough analysis. […]

   Reply
6. acm_ian October 12, 2016

   from what i read, Dank knew the rules. it looks to me like he might have been using the thymosin-beta-4 at Essendon before WADA added it to the named banned substance list (but was in a group of “questionables”). i presume they stopped using it after it was named explicitly as a banned substance. publicly, nobody wanted to admit anything “close to the edge”.

   my view is that ASADA got their facts wrong by not explicitly looking at thymosin before/after the WADA ban.

   Reply
• mattd1974 October 13, 2016

  Suggest you check out the FOI releases from ASADA, one is about communications relating to check mysubtances, TB4 and similar terms.

  Shows ASADA were telling people TB4 was banned before Dank started at EFC
  .

  Reply