No Oppo Supporters CAS hands down guilty verdict - Players appealing - Dank shot - no opposition - (cont in pt.2)

[SizzleChest]

If I ever get in a spot of bother with the law, this will be my entire statement to the police.

Pretty sure AA took some notes down while watching this guy

 

[rines]

There is a difference between being confused as to how a judge ruled the way they did or excusing certain testimony, but to decide that the judge or court is corrupt is probably not the next logical step. I'm confused about his rulings on Andreuska but I don't automatically believe that the court, the AFL, ASADA and the government is against us.

You're free to think that if you like, but I believe that is unhealthy thinking and not logical. Can you imagine someone else saying that to you? Have you tried to say these things out loud to other people? I may have had thoughts along the journey that have made me question a lot of things, like most Essendon supporters, but I think about the reality of what I am thinking and get over it and realise that I'm just frustrated.

Well said.

Middleton ruled as I would have expected, very difficult to show that the ASADA process was unlawful when, at the core of it, they have a very wide mandate to use 'any means' to 'investigate doping in sport'.. coupled with them being invited in etc etc.. was going to be a tough sell.. the real bonus to the action was getting access to AA's notebook, or the evidence or the email chains etc etc.. good stuff.

There is NO WAY Middleton was swayed by Governments or bribing or anything like that. I think his comments on AA were out of line, she was incompetent but that was HIS opinion.. and I have seen this kind of thing before.. he knew he was going to rule in favour of ASADA.. so no point putting their chief witness in the poo but agreeing she wasn't 'credible'.. this would have been a loud loud loud "appeal this decision, appeal this decision" moment... so he did the only option available.. and that was back her in.

Most judges hate being overturned on appeal (like really loathe it) hence why I think Middleton was 'over the top' in making his ruling.. he simply wanted to assure that no appeal would be likely and that there would be no room for doubt. Which is fair enough even if tough to swallow.

His opening comments were interesting.. perhaps indicating that our real beef is with the AFL (which is true) and that would have been a different story.. ie if we had taken the AFL to task last year.. it might have been a very different outcome.

It is sounding like the club is going to waive appeal and let the players fight directly.. think that is the best course of action now. Finish this thing sooner rather than later.

 

[rines]

Garnham you mean no doubt.

Yes, Garnham. Apologies.. I know a Dr Andrew Graham too.. always getting it wrong/mixed up..

But they got Garnham straight in and he gave 1-2 presentations to the players.. as well as a full report to the club (although I notice that didn't make the front page...)

I always wondered why the publicly released the Ziggy report.. but not the one into the actual supplements that were given? Seems very bizarre.. except of course if they were just following the 'narrative'..

 

[rines]

http://www.heraldsun.com.au/sport/a...-to-beat-notices/story-fni5f6kv-1227070800246

Thinking out loud.. any chance the AFL has quietly told the AFLPA/EFC that it is unlikely to end in suspensions at the 'tribunal'.. and thus better to speed things along??

I know it wouldn't be right.. or ethical.. but would anyone put it past this corrupt bunch of campaigners?

 

[Andronicus]

Hard to keep up over here,

Whats the latest? We still waiting to hear of the club are going to appeal?

 

[DonsRule]

Well said.

Middleton ruled as I would have expected, very difficult to show that the ASADA process was unlawful when, at the core of it, they have a very wide mandate to use 'any means' to 'investigate doping in sport'.. coupled with them being invited in etc etc.. was going to be a tough sell.. the real bonus to the action was getting access to AA's notebook, or the evidence or the email chains etc etc.. good stuff.

There is NO WAY Middleton was swayed by Governments or bribing or anything like that. I think his comments on AA were out of line, she was incompetent but that was HIS opinion.. and I have seen this kind of thing before.. he knew he was going to rule in favour of ASADA.. so no point putting their chief witness in the poo but agreeing she wasn't 'credible'.. this would have been a loud loud loud "appeal this decision, appeal this decision" moment... so he did the only option available.. and that was back her in.

Most judges hate being overturned on appeal (like really loathe it) hence why I think Middleton was 'over the top' in making his ruling.. he simply wanted to assure that no appeal would be likely and that there would be no room for doubt. Which is fair enough even if tough to swallow.

His opening comments were interesting.. perhaps indicating that our real beef is with the AFL (which is true) and that would have been a different story.. ie if we had taken the AFL to task last year.. it might have been a very different outcome.

It is sounding like the club is going to waive appeal and let the players fight directly.. think that is the best course of action now. Finish this thing sooner rather than later.

The explination I had that sounded solid (I'm paraphrasing a little) is ASADA had a solid legal argument that Middleton agreed with the biggest weakness in their case was AA It was his way of strengthening his up his decision

 

[yaco55]

Doss you do realise they have to prove that the needle went in the arm?? That drugs were in our system.

Not maybe, not we think, but we can prove it. They have no positive tests, no proof of any illegal substance on the record, but they do have several players stating they took the good version and a picture of the god version on our premises.

Think we need to take a step back - At this stage the players will make no decision unyil they get the brief of evidence - Then decisions will be made - And i expect a divergence of opinions amongst the players - The key party is the AFL - We get to the stage of the AFL, not issuing infraction notices ( and this is the AFL's discretion ) and some players will go though the process - I am confident this will happen because the AFL has let the players down by promising they would be all clear if they provided full co-operation to ASADA.

It's obvious that the AFL doesn't want Hird back coaching-Unless you accept this our discussion will be limited. The EGM - I am currently in Thailand so getting closer to OZ to influence any board election.

And the internet still sucks in Thailand - It's painfully slow.

 

[yaco55]

Do you know for certain that we're paying it all? Paying at all?

PL was rightly dismissive of the post.

I'll tack another tack - I believe the AFL is paying the legal costs - As oer the agreement in August 2013, that everything was done and dusted.

 

[yaco55]

So apparently players can train as a group and could commission there own coaches. What happens if this is funded by a donation? It could not be included in the football department spending tax figures because the club is not allowed to pay the players or for this???

Farcical!

Think of the bright side - We will get two lots of training reports from JM on BB

 

[yaco55]

How much of the Footy Department can you get rid of ? Goodwin has moved on, Basset and Craig and Kerr are new - Who's left Matthew Egan, Bomber who is AFL endorsed, Hird who is on the outer with the AFL - So there's not much of a footy Department left from 2011/2012

 

[yaco55]

Not all players though - isnt it something like a dozen players with vague recollections?

It is probably this point which the club may fear tips it above the standard- and was the 'other' reason to take this to the federal court - all we want from an evidence point of view is the player testimony wiped.

Although the standard of proof isnt that high, it still has to be high enough to 'get it in the syringe' not just a vague approximate educated guess which tars a whole list. Without the testimony it is extremely hard, if not impossible.

This comes back to my point that the AFL/ASADA deal guaranteed the players would be fine, hence the players may not have been cautious enough with their answers - AFL has badly let down the players.

 

[flintandtas]

Middleton ruled as I would have expected, very difficult to show that the ASADA process was unlawful when, at the
His opening comments were interesting.. perhaps indicating that our real beef is with the AFL (which is true) and that would have been a different story.. ie if we had taken the AFL to task last year.. it might have been a very different outcome.

It is sounding like the club is going to waive appeal and let the players fight directly.. think that is the best course of action now. Finish this thing sooner rather than later.

Agree with you on that. There was a very strong indication that Middleton would have ruled differently if our problem was with the afl, and things would like have been different had we brought the case against them, rather than ASADA last year. Which makes demetrios comments about feeling vindicated about particurly annoying and difficult to take.

 

[Tassieboy]

Madden says we know supplements A, B, C, D were given to the players, but we're not sure which order. Why is this really a problem?

 

[Beerfish]

Madden says we know supplements A, B, C, D were given to the players, but we're not sure which order. Why is this really a problem?

It's not to my mind which tells me there has to be more to it than that.

 

[Mercurial89]

It's not to my mind which tells me there has to be more to it than that.

It might mean that if we were given something at the start when it wasnt banned we are ok but if it was given later we are in trouble.

Or it could just mean here is what we were given but we actually cant tell you when these were given or how and to who because our records were poor.

 

[Ben the Gooner]

Hard to keep up over here,

Whats the latest? We still waiting to hear of the club are going to appeal?

We're hijacking Grand Final week by not announcing our decision until after the Grand Final.

 

[efcboy]

Making an erroneous values judgement is a bit different from making a legal one with the benefit of weeks of deliberation.

Benefit of weeks of "deliberation" or weeks of interference?

It's very clear to me someone high up was not happy Andreuska was almost brought to tears looking a rightful fool and Middleton was given a tap to praise her.

 

[DonsRule]

Madden says we know supplements A, B, C, D were given to the players, but we're not sure which order. Why is this really a problem?

My guess is, those are the 4 substances we believe were used on players however coaches are known to have used some banned substances Weap and Suki iiirrc both admitted to using Hexerelin.

I'd guess there are some issues with and end to end record of all supplements within the club that is causing issues.

i.e. We might have records of Thymomodulin - but there are also records of Tb4. With issues with end to end records, it may be hard for us to proove in that case Tb4 was not used

 

[Ben the Gooner]

I'll tack another tack - I believe the AFL is paying the legal costs - As oer the agreement in August 2013, that everything was done and dusted.

Then any appeal is not throwing money away, and the hissy fits on here is just a case of throwing the memberships out of the pram.

 

[rumply]

Why Essendon and Hird must appeal
http://blogs.crikey.com.au/northern/2014/09/26/why-essendon-and-hird-must-appeal/

The decision by Justice John Middleton in the Essendon v ASADA case is an existential threat to fairness and justice in Australian sport. Bob Gosford explains why it must be appealed by the Essendon Football Club and coach James Hird.

I’ve been in plenty of courtrooms in my time but few — if any — where there was such a stunned post-judgement silence as between the stark walls of court one in the Federal Court in Melbourne last Friday afternoon following Justice John Middleton’s decision in the case bought by the Essendon Football Club and coach James Hird against the Australian Sports Anti-Doping Authority (ASADA).

For those who’ve been living under a rock for the past week, Middleton swatted Essendon and Hird from his court with his 122-page judgement like a couple of stray blue-arsed flies.

Many in the public and the ‘popular’ press reckon that should be the end of the story. Hird and Essendon made a flawed attempt at rocking the ASADA boat and failed miserably.

For the baying crowds and their boosters in the media Middleton J’s judgement represents a vindication for ASADA and its former CEO Aurora Andruska and is such a comprehensive analysis of the facts and law that it would withstand any challenge. Hird and Essendon have been comprehensively defeated and should leave the field, pelted with rocks and rotten fruit with their heads hung in eternal shame.

But for many who have read all of Middleton’s judgement it is a fundamentally flawed judgement that should — indeed must — be appealed.

Why? Let me try to explain.

Earlier this week I spoke with a senior Federal court judge who lamented the tendency of some few of his colleagues to deliver long and complex judgements that are incomprehensible to the general public — for whom the courts are but mere servants.

Justice Middleton’s Essendon judgement is a prime example of verbosity for its own sake. While it is fair that a complex case is resolved by a complex judgement, surely it falls to judges to make these complex cases comprehensible not just to the parties to the litigation but also to the general public?

In 2012, Justice Susan Kiefel of the High Court of Australia delivered a speech at the Sir Harry Gibbs Law Dinner at the University of Queensland. In her speech entitled ”Reasons for judgment: objects and observations“ she made some astute observation about the art of judgement writing.

Justice Kiefel observed that for Sir Harry, the essential quality was clarity:

… the second is as much brevity as the subject will permit.

What gives the judgment its style is the lucidity, accuracy and economy of the language used, the logical coherence of the thought and the rejection of the irrelevant.

Justice Middleton’s judgement fails to meet Her Honour’s modest test.

It is too long with many extracts from legislation, judgements and correspondence replete with “emphasis added” references apparently meant to direct the reader to the important points contained therein. A more user-friendly and effective approach would have been to summarise the points made in these extracts. This would have lost none of their relevance and provided lay-reader and lawyer alike with a more lucid, accurate and economical judgement that was still logical and more coherent. Middleton’s 122-page judgement could have been trimmed by two-thirds and still made all the points he needed to make.

One issue the fervid commentators have seized upon is Middleton J’s vindication of former ASADA CEO Aurora Andruska, who he noted (at paragraph 70) was:

The only witness whose credit was impugned … It was submitted by Essendon and Mr Hird that Ms Andruska was non-responsive, evasive and partisan. It was observed, as was the fact, that there were long pauses between the questioning of Ms Andruska and her responses.

In their closing submissions Hird and Essendon asserted that Andruska, ASADA’s key witness, was:

… non-responsive, evasive and partisan. She frequently avoided answering the question asked, instead giving speeches to persuade the court of the validity of ASADA’s course of action under her stewardship. Ms Andruska sought to disassociate herself from decisions that were not formally put to her in writing. The Court will also have noted Ms Andruska’s long pauses (which are not recorded on the transcript) before answering questions, the answer to which would not assist ASADA’s case.

Middleton J’s forceful defence of Andruska and her evidence has apparently ‘ring-fenced’ any chance of an appeal because appellate courts rarely challenge a trial judge’s assessment of a witnesses credibility. But Andruska’s credibility would in my view never have been relevant to an appeal.

For mine Middleton J’s most serious obvious error is that he has put the contractual cart before the statutory horse.

Essendon’s case was — as Middleton J notes in the headnotes to his decision — based upon statutory interpretation.

The well-settled Australian approach to statutory interpretation rests on three pillars of text, purpose and context.

In 2009, soon after he retired from the bench, former High Court Judge Michael Kirby gave a speech entitled “Statutory Interpretation: The Meaning of Meaning” in which he noted that:

During the past decade or so, the High Court of Australia has unanimously endorsed other principles as necessary to the accurate reading of legislation. Amongst the most important of these principles have been:

* That where the applicable law is expressed in legislation the correct starting point for analysis is the text of the legislation and not judicial statements of the common law or even judicial elaborations of the statute;

* That the overall objective of statutory construction is to give effect to the purpose of parliament as expressed in the text of the statutory provisions10; and

* That in deriving meaning from the text, so as to fulfil the purpose of parliament, it is a mistake to consider statutory words in isolation. The proper approach demands the derivation of the meaning of words from the legislative context in which those words appear. (emphasis added)

Word around the traps is that the most successful grounds for an appeal by Hird and Essendon is that Middleton J substituted the text of the contract between Hird (and the 34 Essendon players) and the AFL for the text of the ASADA legislation.

The key here is that ASADA, as Middleton J explained at paragraph 10 of his judgement, gained from the AFL contracts, what it did not have in it’s statute:

… the benefit of what the AFL had, namely the contractual power of the AFL:

(a) to compel Essendon players and personnel to participate in an AFL investigation and to attend an interrogative interview; and

(b) to direct, under threat of AFL sanction, that an Essendon player or personnel respond and answer every question asked of him or her.

Whether ASADA should have such compulsive powers has long been controversial. In 2013 the Australian Sports Anti-Doping Authority Amendment Bill 2013 sought, among other things, to provide ASADA with the power to compel those that fell within the anti-doping regime to give evidence. As the Parliamentary Bills Digest explained:

ASADA’s role and powers have been contentious from the beginning, with the Australian Olympic Committee (AOC) raising concerns that there are contradictions in their extent and content. As the AOC noted in its submission on the Bills to establish ASADA, on one hand the authority appeared to have excessive powers in that it was not required to put allegations of doping to an independent hearing before declaring an athlete guilty. Similarly, once an investigation was complete, ASADA alone had the power to determine whether an athlete should be sanctioned. On the other hand, the body had been given no powers of compulsion; athletes and others could not be compelled to give evidence before its inquiries.

A number of instances during the next three years suggested that the AOC’s concerns may have been justified, but the Howard Government did not attempt to resolve what appeared to be an inherent conflict between the rights of athletes and the need for ASADA to have adequate powers of investigation and compulsion in dealing with doping matters.

Green’s Senator Richard Di Natale — well-informed and passionate about the need for an appropriate and fair regime to control anti-doping administration — was scathing about the Bill’s proposal to give ASADA compulsive powers:

The government’s bill would give ASADA the power to take a footy player off the street and compel them to answer any question. People facing criminal investigations will have more legal protections than a player at the Essendon Football Club, or the Cronulla Sharks.

Di Natale ‘s view prevailed and ASADA did not get the power to compel those falling within its anti-doping regime to give testimony. In Essendon’s case ASADA had no powers to force people to answer questions –- this was entirely consistent with Parliament’s intention to establish an anti-doping agency that was independent, that respected fundamental common law rights and conducted its investigations in private — not in the glare of the media’s spotlights. ASADA’s work-around was to overcome the restraints Parliament placed upon it by conducting a joint investigation with the AFL.

Middleton J has found that the joint investigation was legal but the key for Hird and Essendon on appeal will be to unpick what many regard as Middleton J’s innovative approach to statutory interpretation and persuade an appellate court that the judge got it terribly wrong.

Martin Hardie, legal academic and anti-doping researcher at Deakin University reckons that if Middleton J’s judgement is allowed to stand as good law, chaos and trial-by-media will prevail:

In establishing ASADA Parliament was aware of the danger of allowing sporting bodies – like the AFL — to be involved in anti-doping investigations.

ASADA was established as an independent investigatory body that had to respect the rights of athletes and which conducted its investigations in private. The ASADA Act was designed to keep the process confidential until a final outcome before a sporting tribunal.

This process acted to protect athletes and support people from being pronounced guilty by the media or others prior to having a fair hearing. By condoning what he called innovative techniques which have no statutory basis Justice Middleton has sanctioned trial by ordeal and media as the future norm in Australian sport.

If his decision stands never again will any person the subject of an anti-doping assertion have the ability to defend themselves fairly.

As we have already seen sportsmen and women will be judged and condemned by an ill-informed media and public well before any fair hearing ever occurs.

This situation, designed to prosecute the ‘just war on doping’ would be as much a threat to our society’s fundamental principles as is the war on terror.
​

 

[Ben the Gooner]

Madden says we know supplements A, B, C, D were given to the players, but we're not sure which order. Why is this really a problem?

If AOD-9604 is one of those substances and we're not sure if it's banned, then we have a real issue knowing whether a specific player has cheated. If the AOD-9604 angle disappears after the "we don't know what the players took" angle becomes fact, then here we are.

 

[Dan Cooper]

ASADA, it seems, continue to think our players might have taken a banned substance, and here we are nearly 2 years later wondering when this f....ing thing is ever going to end.

How anybody can think our players deserve to be punished is way beyond comprehension.

 

[Doss]

Benefit of weeks of "deliberation" or weeks of interference?

It's very clear to me someone high up was not happy Andreuska was almost brought to tears looking a rightful fool and Middleton was given a tap to praise her.

I think that's a pretty big stretch.

 

[The Prosecutor]

Benefit of weeks of "deliberation" or weeks of interference?

It's very clear to me someone high up was not happy Andreuska was almost brought to tears looking a rightful fool and Middleton was given a tap to praise her.

Maybe Middleton's a terminator who was sent back in time to destroy Essendon chance of success in court?

 

[DonsRule]

Benefit of weeks of "deliberation" or weeks of interference?

It's very clear to me someone high up was not happy Andreuska was almost brought to tears looking a rightful fool and Middleton was given a tap to praise her.

BIt too far there I think.

The best reasoning I had was as I gave above. Middleton agreed with ASADA's legal argument the weakness he saw was in AA. The comments were possibly there to shore up his decision and the case against an appeal.

Either way, the case was won with a solid legal ground..

Maybe Middleton's a terminator who was sent back in time to destroy Essendon chance of success in court?

It's hard to take you seriously with that avatar these days.