Mega Thread Questions about the ASADA/ EFC/ players and the legal process/ defences/ liability

[Malifice]

Ok so you were actually making it up in your post - you conclude that he has advised ASADA these things - don't pass off speculation as fact in future no matter how long winded the explanation is

Firstly this whole thread is speculation and opinion. None of us know jack shit (unless we are working for ASADA).

Secondly, I wasnt 'making up' anything. I was making a logical inference from the facts at hand.

• ASADA brought in Downes to advise them on the strengths of their case
• Downes just happens to be an guru in Administrative law; not CAS or sports law. One of the best in the country at Administrative law in fact. As a Federal Court judge, his speciality is Federal agencies acting ultra vires.
  
• After Downes finished his review, ASADA proceed with the matter, issuing SC notices and claiming to have legal advice that the Administrative law/ ultra vires side of the case is lawfully sound.

What do you logically draw or extrapolate from that?

Or is the above just a freaky coincidence, and are ASADA and Downes so utterly incompetent that not only did ASADA neglect to ask Downes the fundamental question as to if it was acting according to its statutory powers, and subsequently Downes somehow inexplicably missed it himself (despite this being his bread and butter) when giving a Federal agency a green light to proceed?

 

[hoianbulldog]

Ok so you were actually making it up in your post - you conclude that he has advised ASADA these things - don't pass off speculation as fact in future no matter how long winded the explanation is - it's dishonest

It's people like you who make people like me want to see your players fry for 4 years. Just saying.

 

[Malifice]

Seems quite likely and makes some sense. One has to wonder whether the gathering of evidence post JI would have been on the basis of information derived from the JI though. Maybe one of the more learned parties on here could advise as to whether this would be fruits of a poisoned tree, so to speak?

Not applicable legal doctrine in Australia.

Unlawfully obtained evidence is not prima facie inadmissable. Broadly speaking its a balancing act between the strength or value of the evidence as against the nature of the unlawful method by which it was obtained. The onus of proof is on the accused (or in this case the plaintiff)

See:

Bunning v Cross [1978] HCA 22, 141 CLR 54 (HCA), is an Australian evidence law case, in which the admissibility of improperly gained evidence is examined. Like the similar R v Ireland (1970) 126 CLR 321, Bunning v Cross, the ruling of the High Court of Australia has been formulated as an exclusionary rule, namely the onus is on the accused to prove the misconduct and justify exclusion,[1] and is known as the Bunning discretion (cf. Ireland discretion)

http://en.wikipedia.org/wiki/Bunning_v_Cross

For example, if the cops kick down your door and search your house without a warrant, and happen to find a video of you murdering a bunch of people during their unlawful search, good luck getting that video excluded at your subsequent trial.

If the video was just of you smoking a spliff, we can talk.

 

[Malifice]

Apologies if this point has already been covered but I have a question for the legal eagles here.

If you ask someone to punch you in the face can you still charge them with assault?

You dont charge people for assualt, the Crown does. You sue for the tort of battery.

In this case its not going to fly either. An individual cant ask (or authorise, or consent to) the Crown to act ultra vires. The power to do something is either contained in the legislation or its not.

 

[invinciBlues]

Malifice does not seem to suffer fools lightly. I really hope telsa1962 actually is Martin Hardie as others have joked, because if thats the sort of smack down he can get from someone who doesnt know the ins and outs of the case, Friday's court case should make for excellent viewing.

 

[tesla1962]

Firstly this whole thread is speculation and opinion. None of us know jack shit (unless we are working for ASADA).

Secondly, I wasnt 'making up' anything. I was making a logical inference from the facts at hand.

• ASADA brought in Downes to advise them on the strengths of their case
• Downes just happens to be an guru in Administrative law; not CAS or sports law. One of the best in the country at Administrative law in fact. As a Federal Court judge, his speciality is Federal agencies acting ultra vires.
  
• After Downes finished his review, ASADA proceed with the matter, issuing SC notices and claiming to have legal advice that the Administrative law/ ultra vires side of the case is lawfully sound.

What do you logically draw or extrapolate from that?

Or is the above just a freaky coincidence, and are ASADA and Downes so utterly incompetent that not only did ASADA neglect to ask Downes the fundamental question as to if it was acting according to its statutory powers, and subsequently Downes somehow inexplicably missed it himself (despite this being his bread and butter) when giving a Federal agency a green light to proceed?

A simple 'no, it was an assumption would have sufficed' but thanks for explaining your reasons for making that assumption.

 

[tesla1962]

It's people like you who make people like me want to see your players fry for 4 years. Just saying.

It's people like you.... Nah can't be bothered with a Neanderthal

 

[tesla1962]

Malifice does not seem to suffer fools lightly. I really hope telsa1962 actually is Martin Hardie as others have joked, because if thats the sort of smack down he can get from someone who doesnt know the ins and outs of the case, Friday's court case should make for excellent viewing.

Wasn't a smack down - he was passing off speculation as fact on an important issue - look at what he wrote - I sought clarification

 

[Malifice]

A simple 'no, it was an assumption would have sufficed' but thanks for explaining your reasons for making that assumption.

No worries. Your turn to answer a few questions.

• What do you think Downes was brought in to do?
• What is Downes area of expertise?
• Who do you think gave the opinion to ASADA that ASADA had not acted ultra vires?
• If Downes didnt comment as to the issue of ultra vires in his brief to ASADA before green lighting the issue of SC's; why didnt he?

 

[Happy Daze]

Thanks for the input into the thread Malifice, very good work.

 

[hoianbulldog]

It's people like you.... Nah can't be bothered with a Neanderthal

Are you assuming I am a Neanderthal by chance? Or can you provide proof.

 

[van peebles]

Are you assuming I am a Neanderthal by chance? Or can you provide proof.

Somebody claiming to be your mother rang 3DB to make this confession today.

 

[Broken_Chairs]

Wasn't a smack down - he was passing off speculation as fact on an important issue - look at what he wrote - I sought clarification

did you not read what he wrote?

Firstly this whole thread is speculation and opinion. None of us know jack shit (unless we are working for ASADA).

how about in the very first post?

Disclaimer: I'm not a party to the investigation, and most of what goes in here will be an educated legal guess, and an explanation (to the best of my abilities) of the legal principles and process during the investigation. In a nutshell, I could be wrong. Proceed at your own risk.

also, you weren't seeking clarification, you knew as well as everyone else in this thread that every point malifice made was an educated guess based on information that's been made publicly available combined with his knowledge of the law. you were trying to call him out for "making stuff up", and failed.

if you bothered reading through this thread you'd have found that the reasoning for his assumptions have already been outlined, are logical and are as good an assumption as any at this point in time.

 

[Bobby Charlton]

Firstly this whole thread is speculation and opinion. None of us know jack shit (unless we are working for ASADA).

Secondly, I wasnt 'making up' anything. I was making a logical inference from the facts at hand.

• ASADA brought in Downes to advise them on the strengths of their case
• Downes just happens to be an guru in Administrative law; not CAS or sports law. One of the best in the country at Administrative law in fact. As a Federal Court judge, his speciality is Federal agencies acting ultra vires.
  
• After Downes finished his review, ASADA proceed with the matter, issuing SC notices and claiming to have legal advice that the Administrative law/ ultra vires side of the case is lawfully sound.

What do you logically draw or extrapolate from that?

You can speculate on that as much as you wish. But your claim of a "logical inference" is contradicted by the evasive stance of McDevitt on the issue of Downes' view of the legality of the joint investigation.
In the ABC interview Whateley asked McDevitt
- "Did Justice Downes examine the question of whether or not the joint investigation was legal".
McDevitt waffled and provided no answer to that question and instead stated that Downes had a level of comfort with the current action being taken.
Whateley repeated the simple question. McDevitt waffled about Downes being one of the finest minds and declined again to answer the question.

McDevitt has said that it was his decision and his decision alone to issue the show causes. His own considerations extend beyond pure legal matters. He stressed in the ABC interview that he sees his purpose as ensuring that Australia is seen to be taking action on doping. Being human he will also be mindful of his outfit being seen to be doing something. He will weigh up the legal advice and weight it against the political matters. He would have been under extreme pressure not to drop the whole thing after all the time and effort which has been exerted. This way he at least appears to be engaged in his job of ensuring Australia at least tries to act on doping.

If Downes really did address the issue of the legality of the joint investigation then McDevitt would surely have confirmed it and not waffled. By waffling McDevitt encouraged the legal action against the joint investigation. I suggest ("logical inference") that Downes did not address the issue of the legality of the joint investigation.

 

[tesla1962]

did you not read what he wrote?



how about in the very first post?



also, you weren't seeking clarification, you knew as well as everyone else in this thread that every point malifice made was an educated guess based on information that's been made publicly available combined with his knowledge of the law. you were trying to call him out for "making stuff up", and failed.

if you bothered reading through this thread you'd have found that the reasoning for his assumptions have already been outlined, are logical and are as good an assumption as any at this point in time.

No, believe it or not I don't live and breathe this stuff and I wanted to know if in fact downes or McDevitt had said something along these lines and I had missed it - and in fact I discovered it was speculation albeit maybe sound speculation. I am still not convinced due to the fact that McDevitt chose not to answer a direct question on this a week or so ago. It would have been a simple thing for him to summarise what malifice has concluded and that would have given nothing away and given more gravitas to what he said. Pardon my skepticism but I am sure all you were equally convinced about AOD. All that McDevitt has said is that the conduct of the ASADA staff was complimented by downes and downes recommended to pursue SC notices - I have no idea how strong that recommendation was and in what context downes was asked the question.

 

[blackshadow]

Something that sounded a little curious was just reported on the ABC news (couldn't find a link) - the report is that ASADA would like Essendon players involved in the hearing on Friday but that Essendon FC club lawyers are opposing the request from ASADA.

Malifice or one of you other legal people can you suggest:

1 Why ASADA might make the request?

and

2 Why Essendon would oppose it?

Sent from my Nexus 7 using Tapatalk

 

[tesla1962]

Are you assuming I am a Neanderthal by chance? Or can you provide proof.

Entirely based on your avatar. Is that not you?

 

[ThatsjustDappa]

If Downes really did address the issue of the legality of the joint investigation then McDevitt would surely have confirmed it and not waffled. By waffling McDevitt encouraged the legal action against the joint investigation. I suggest ("logical inference") that Downes did not address the issue of the legality of the joint investigation.

Isn't there some court action going on? One has to be careful in a legal sense about what they divulge wouldn't you think?

 

[texan_dogs]

The AFL's. Under the ASADA Acts provisions for non disclosure, the AFL would recieve the information as a matter of privelege and (assuming they then publicly released it) would be in breach of the Act.

Could be why ASADA immediately stopped dealing with or talking to the AFL after it was released by the AFL to the media and public at large (redacted or not).

A timeline of statements/events around the release date of the ASADA interim report

27 July 2013 - David Evans resigns - Source EFC official statement
28 July 2013 - Andrew Demetriou (from Melbourne), Gillon McLachlan (from London) leave for the USA equalisation fact finding mission. - Source media
29 July 2013 - Paul Little elected as chairman of the club - Source EFC official statement
2 August 2013 - The AFL (Andrew Dillon) confirms receipt of the ASADA interim report from ASADA - Source AFL official statement
4 August 2013 - The EFC confirms receipt of the ASADA interim report from the AFL - Source EFC official statement
4 August 2013 - Gillon McLachlan arrives back in Melbourne. - Source media
7 August 2013 - Andrew Demetriou arrives back in Melbourne. - Source media

 

[Argy]

Something that sounded a little curious was just reported on the ABC news (couldn't find a link) - the report is that ASADA would like Essendon players involved in the hearing on Friday but that Essendon FC club lawyers are opposing the request from ASADA.

Malifice or one of you other legal people can you suggest:

1 Why ASADA might make the request?

and

2 Why Essendon would oppose it?

Sent from my Nexus 7 using Tapatalk

I was just going to ask the same question.

Perhaps ASADA wants the players present in order to ask them questions under oath?

Is this possible???

EFC would oppose it for that very same reason!

 

[Malifice]

You can speculate on that as much as you wish. But your claim of a "logical inference" is contradicted by the evasive stance of McDevitt on the issue of Downes' view of the legality of the joint investigation.
In the ABC interview Whateley asked McDevitt
- "Did Justice Downes examine the question of whether or not the joint investigation was legal".
McDevitt waffled and provided no answer to that question and instead stated that Downes had a level of comfort with the current action being taken.
Whateley repeated the simple question. McDevitt waffled about Downes being one of the finest minds and declined again to answer the question.

Hang on; you have a go at me for speculating... then proceed to speculate yourself (and make your own inference) based on a non commital answer by McD?

McDevitt has said that it was his decision and his decision alone to issue the show causes.

Of course its his decision and his decision alone. Lawfully (and factually) thats absolutely correct. He's the CEO of ASADA; under the Act he's literally the only person that can (and must) make that decision.

His own considerations extend beyond pure legal matters. He stressed in the ABC interview that he sees his purpose as ensuring that Australia is seen to be taking action on doping. Being human he will also be mindful of his outfit being seen to be doing something. He will weigh up the legal advice and weight it against the political matters. He would have been under extreme pressure not to drop the whole thing after all the time and effort which has been exerted. This way he at least appears to be engaged in his job of ensuring Australia at least tries to act on doping.

And yet he dropped the AOD 9604 prosecution entirely.

If (as you claim) McD is weighing up 'politcal matters' or 'ASADA being seen to do their jobs' in deciding to prosecute or not, then he has more to worry about in Court than you think (taking into account irrelevant considerations is an arm of Administrative law and is prohibited just as much as ultra vires is).

If Downes really did address the issue of the legality of the joint investigation then McDevitt would surely have confirmed it and not waffled. By waffling McDevitt encouraged the legal action against the joint investigation. I suggest ("logical inference") that Downes did not address the issue of the legality of the joint investigation.

He didnt deny it either did he? And why would he confirm it? And are you suggesting by not confirming it, he's encouraged EFC to seek an injunction?

EFC were always going down the injunction path. Hell or high water.

 

[Armchair Critic]

You can speculate on that as much as you wish. But your claim of a "logical inference" is contradicted by the evasive stance of McDevitt on the issue of Downes' view of the legality of the joint investigation.
In the ABC interview Whateley asked McDevitt
- "Did Justice Downes examine the question of whether or not the joint investigation was legal".
McDevitt waffled and provided no answer to that question and instead stated that Downes had a level of comfort with the current action being taken.
Whateley repeated the simple question. McDevitt waffled about Downes being one of the finest minds and declined again to answer the question.

McDevitt has said that it was his decision and his decision alone to issue the show causes. His own considerations extend beyond pure legal matters. He stressed in the ABC interview that he sees his purpose as ensuring that Australia is seen to be taking action on doping. Being human he will also be mindful of his outfit being seen to be doing something. He will weigh up the legal advice and weight it against the political matters. He would have been under extreme pressure not to drop the whole thing after all the time and effort which has been exerted. This way he at least appears to be engaged in his job of ensuring Australia at least tries to act on doping.

If Downes really did address the issue of the legality of the joint investigation then McDevitt would surely have confirmed it and not waffled. By waffling McDevitt encouraged the legal action against the joint investigation. I suggest ("logical inference") that Downes did not address the issue of the legality of the joint investigation.

Where was McDevitt when Dank was issued his show cause

 

[Bobby Charlton]

And yet he dropped the AOD 9604 prosecution entirely.

Precisely, a decision he must have made on other than legal grounds if your own free of doubt assessment of the legal issues around AOD is correct.

You initiated a whole new thread spelling out the AOD legal situation with the certain conclusion that:
"There is now no way that any player whose name appears on a consent form, and was prescribed and administered AOD-9604 last year will escape lengthy bans from competition."

You of all people must therefore conclude that BM's AOD decision was based on other than legal stuff - most likely to avoid exposure of ASADA's **** up. All this adds weight to my suggestion that BM's decision to issue show causes on TB4 is based both on the legal issues and political or self interest matters such as ASADA being seen to be doing something to have Australia being seen as not soft on doping. It does not mean that he has a squeaky clean certain case.

 

[evo]

I didnt know where else to put this so I suppose this thread will have to do.

On April 3, Dank detailed more substances:

"We have cerebrolysin, we will re-oxygenate and re-circulate the brain. We will also be getting Solcoseryl."

Why aren't ASADA going after Essendon for this? Surely giving off label medicine to players is against the rules?

I find it hard to believe Doc Reid would've written prescriptions for this stuff. At minimum that would be against the law wouldnt it?

From my very brief ferret around 'Cerebrolysin' main use is for people with Rett Syndrome. A mental disorder that mainly affects women.
http://en.wikipedia.org/wiki/Rett_syndrome

Scolcoseryl appears to be a fairly new drug for wound healing that has mainly been used on horses and ponies.

http://www.ncbi.nlm.nih.gov/pubmed/10932527

It seems extraordinary to me that no-one is chasing this up. Why arent even the journalists asking questions about this?

 

[FootyGeek]

I didnt know where else to put this so I suppose this thread will have to do.

Why aren't ASADA going after Essendon for this? Surely giving off label medicine to players is against the rules?

I find it hard to believe Doc Reid would've written prescriptions for this stuff. At minimum that would be against the law wouldnt it?

From my very brief ferret around 'Cerebrolysin' main use is for people with Rett Syndrome. A mental disorder that mainly affects women.
http://en.wikipedia.org/wiki/Rett_syndrome

Scolcoseryl appears to be a fairly new drug for wound healing that has mainly been used on horses and ponies.

http://www.ncbi.nlm.nih.gov/pubmed/10932527

It seems extraordinary to me that no-one is chasing this up. Why arent even the journalists asking questions about this?

Once you go through the looking glass that is it. There is no going back.

Once the glass is broken. TB4.

Everything else will be on the table. Journalists are going to have the greatest time of their lives.