If it's prohibited, it's prohibited.
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AFLW 2024 - Round 6 - Chat, game threads, injury lists, team lineups and more.
Mega Thread Questions about the ASADA/ EFC/ players and the legal process/ defences/ liability
- Thread starter Malifice
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If "the transcripts, interviews and other statements" are not sworn (which I understand to be the case) how can the Tribunal tell whether Charters and Alvi wouldn't just say "Just havin' a larf guv'nor"? In other words how can the Tribunal give this material any evidential value? They are no more value than untested out-of-court assertions. The simple argument that if Charters and Alvi really meant to say what they said then why didn't the AFL/ASADA put them on oath when they said it seems pretty compelling to me. If the material is important in establishing a link for TB4 from China to Ess players stomachs then IMO that link is broken.
I hope you are right but it is not by any means a universal view around the traps.
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Yes and no. But to challenge its prohibition means taking it to CAS as far as Im aware, since its prohibition is a WADA matter, not local.
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I keep trying to explain this. The requirement for them to be sworn is a rule of evidence. The AFL tribunal is not bound by the rules of evidence. Tribunals can accept any evidence in any form they want - including evidence that would be flat out prohibited in other courts like hearsay and such.
The tribunal will allow the evidence but simply weight it lower in reliability.
Whether they are sworn or not. Whether they are in affidavit form or not. Whether the witness is there to cross examine or not. Whether they contain hearsay or not. Whether they infringe on anyones right of self incrimination or not. Whether they contain opinion and not fact or not. Whether they were illegally obtained or not. And so forth.
I appear in front of tribunals all the time. Also I appear in front of the Magistrates Court in minor case matters a lot. In the relevant latter jurisdiction the relevant Act states: In any proceedings on an application under this Act, a competent court shall not be bound by the rules of evidence but may inform itself upon any matter relating to the proceedings in such manner as it thinks fit.
Meaning I can admit:
- hearsay
- unsworn witness statements
- newspaper and media articles
- leading questions during my evidence in chief
- unlawfully obtained evidence
- statements from witnesses not actually present to be cross examined
- etc
While not 'bound' to the laws of evidence, such courts generally try and stick to those rules as close as they can (the rules exist for good reason), 'weighting' evidence admitted outside the normal laws of evidence lower in value, credibility and reliability. Generally Courts will only knock back evidence if it is wholly unreliable (which there is no doubt these transcripts are - all parties concede they are accurate transcripts of what was said in interviews with ASADA by Charters and Alavi)
Those transcripts are damning. Sworn or not, they'll certainly be allowed in.
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- May 13, 2012
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The transcripts would be damning....if they said something damning.
Well, see I think it is there because ASADA view it under S2's catch all, for acting like certain banned substances. It is not specificity banned by name by WADA.
Which still does scietific testing prove it really acts in the way they say it does. Note: if they wanted to do that they should do it before it is banned, If they try arguing that now, I think Hird etc goes even if they are successful in their argument.
More beef more than anything is, I feel you are talking beyond what you really understand with pharmaceuticals, you're a lawyers not a pharmasist (and tbf, I'm neither)
But my advice comes form someone working around 50 years in pharmaceuticals, who bought up a lot more complexities in the discussion than the media bring up
Absolutely correct. If they wanted to dispute the scientific standing of Tb4 they should have done so before they took it.
And I accept that too. By all means if they thing something shouldn't be there, that take issue with it before and get it cleared. Don't do it afterwards Too late then for me, even if succesful.
It's nice to read some mature debate about all this rather than the emotional stuff that normally hits on every page of the 1000's written.
I am pleased at least the evidence will be tested in the tribunal, it's information as well as it's ability to be admitted.
Monday is the first step to the conclusion hopefully.
I am pleased at least the evidence will be tested in the tribunal, it's information as well as it's ability to be admitted.
Monday is the first step to the conclusion hopefully.
gutsroy
Brownlow Medallist
If it gets to the stage that the use of TB4 can be proven by ASADA to the required degree, as a 'similar substance', its status can be challenged (in contrast to substances explicitly named in the list), according to A Guide to the World Anti-Doping Code by Paul David. It would be an uphill battle, most likely, given the literature suggesting that it has / has the potential to enhance performance (and agencies advising that it is prohibited, making claims of ignorance of its status difficult to argue,would make it a bit incongruous, although it wouldn't impact the technical evaluation). But I thought that AOD-9604 usage was more egregious and nothing came off that, and its use was never in question.
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whysoyou2601
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I apologise if anyone's already asked this, but if ASADA lose their case against Essendon, but then Hird wins his appeal, what would happen then?
Wouldn't it be more of a problem if ASADA win and then Hird wins? I imagine if the EFC players are found not guilty and Hird succeeds it will make little difference.
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I'm pretty sure the players signed a form to say that Hirds legal action will not apply to them. So if Hird wins & ASADA wins, it will make no difference
It's to only protect Jimmy boy
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Malifice , a hypothetical question from a non-lawyer if I may:
With respect to Charter and Alavi not appearing at the tribunal - do you think the principle in Jones v Dunkel (1959) would affect how the tribunal views their non-appearance, and if so to what extent? I would think an inference could be drawn (from their non-appearance) against the players' case using the principle above (given the circumstantial evidence that is already in the public domain). But I'm not sure how this would interact with Charter's recent interview where he said that ASADA have 'cooked' the statement he gave them.
With respect to Charter and Alavi not appearing at the tribunal - do you think the principle in Jones v Dunkel (1959) would affect how the tribunal views their non-appearance, and if so to what extent? I would think an inference could be drawn (from their non-appearance) against the players' case using the principle above (given the circumstantial evidence that is already in the public domain). But I'm not sure how this would interact with Charter's recent interview where he said that ASADA have 'cooked' the statement he gave them.
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I'm sure this has been answered somewhere but I can't be bothered wading through all the threads to find it:
If the Essendon (and now other clubs) players are provisionally suspended, does that mean they are not allowed to train? And are they training? Because since being 'provisionally suspended' I've only seen stories about players being exempted to play in the IR and NT comp etc.
If they are found guilty surely ASADA wouldn't accept penalties being backdated to the start of the provisional suspensions when they weren't really prevented from doing anything anyway?
If the Essendon (and now other clubs) players are provisionally suspended, does that mean they are not allowed to train? And are they training? Because since being 'provisionally suspended' I've only seen stories about players being exempted to play in the IR and NT comp etc.
If they are found guilty surely ASADA wouldn't accept penalties being backdated to the start of the provisional suspensions when they weren't really prevented from doing anything anyway?
blackshadow
Hall of Famer
I posted this in another thread but realise it's probably better discussed here with a bit of clear air.
I assume that the unnamed support person appearing before the AFL anti-doping tribunal is Dank.
Perhaps Malifice, Baldur, Contra Mundum, The Ogg Cat or one of our learned legal friends can put some context around this scenario.
Dank chooses not to defend the charges and is found guilty of injecting Essendon players with TB4.
Would Dank being found guilty have any impact on the players' cases? Would that make ASADA's case against the players stronger as the tribunal will have determined that Essendon players were administered TB4?
Methinks that would be a train wreck for the players if that scenario eventuates.
I assume that the unnamed support person appearing before the AFL anti-doping tribunal is Dank.
Perhaps Malifice, Baldur, Contra Mundum, The Ogg Cat or one of our learned legal friends can put some context around this scenario.
Dank chooses not to defend the charges and is found guilty of injecting Essendon players with TB4.
Would Dank being found guilty have any impact on the players' cases? Would that make ASADA's case against the players stronger as the tribunal will have determined that Essendon players were administered TB4?
Methinks that would be a train wreck for the players if that scenario eventuates.
I would suggest Dank would be done for trafficking rather than injecting.
Then he would have to be found guilty for there to be any chance of the EFC players being done.
Though I guess if they did get him guilty of injecting it would be safe to say then players would be done to, as you would need both to confirm Dank injected.
Yep, pretty much it. I think Ings said provisional suspensions allow you to train but not play/compete. But you can still train with the club.
Once suspended officially, both sre out, can obviously train away from the club if you wish.
So a provisional suspension in the off season is really nothing. Especially seeing as the players are still being allowed to compete by the AFL (IR and I think one player has been allowed to play in the NT).
So that goes back to my original question, if the players are suspended how can the penalty possibly considered to have started being served with the provisional suspensions?
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Did you follow the Cronulla case?
They effectively backdated a one year suspension by 9 or so months, meaning they had actually played games (an almost full season) while being suspended (notionally).
Vaguely. I thought that was due to delays in the process. I didn't think they were playing games after being provisionally suspended.
The whole thing's a farce. Just make sure you don't drink a milkshake.
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the Commission can waive the requirements under a provisional suspension. However, this means that ay real suspension starts from the new date not the provisional suspension date.
But the former Essendon players lining up in the NTFL have been told their decision to play will cancel out their rights to a provisional suspension.
It means if they are found guilty at the AFL anti-doping tribunal, their suspensions cannot be backdated.
http://www.heraldsun.com.au/sport/a...rthern-territory/story-fni5f6kv-1227138217898
Yeah that's what I was looking for, thanks.
Still seems weird they can train though.
