James Hird unlikely to win but players will be cleared, says David Galbally Jon Pierik
The Age
January 21, 2015Leading Melbourne lawyer David Galbally says James Hird is unlikely to succeed in his Federal Court appeal but, citing an AFL case almost 20 years old, expects the Essendon players to escape punishment before the league's anti-doping tribunal.
The anti-doping case resumed behind closed doors in the Victorian County Court on Tuesday, with David Grace, QC, representing 32 of the 34 current and former players charged with taking a banned substance, and Neil Clelland, QC, representing former Bombers Stewart Crameri and Brent Prismall, delivering their opening submissions.
Hird is also awaiting a decision from the Federal Court on his bid to overturn Justice John Middleton's ruling that the 2013 investigation by the AFL and the Australian Sports Anti-Doping Authority into the Bombers' supplements program was lawful. Hird argues it was not, and wants the infraction notices handed to the 34 players withdrawn. That case is now before the anti-doping tribunal.
However, that three Federal Court judges have yet to release their findings on Hird's appeal in November adds to Galbally's belief that the Essendon coach won't be successful. Technically, the Federal Court could torpedo the hearing before the anti-doping panel, setting the whole process back months, even indefinitely, but Galbally believes, at best, Hird can only hope to be personally exonerated of any guilt in the injecting program devised by Stephen Dank.
"It [the appeal] could well scuttle the whole thing, but it's not going to do that. It will deal with Hird and, if anything, it may make comments which limit the way future investigations go," Galbally said on Tuesday.
"But I don't see it as shutting the whole thing down. Pragmatism will take place in being able to resolve this. Courts look at public policy as against private individuals rights. With ASADA and the AFL investigation, and with contract [over anti-doping rules] coming into it, the biggest hurdle Hird has to jump is the private contract that exists between him and the Essendon Football Club, and the Essendon Football Club and the AFL.
"That's a big hurdle because that is a voluntary contract entered into by the parties to abide by certain laws and procedures.
"A court will be reluctant to read that down, and Middleton all but said that. There are some difficulties for Hird in relation to that. The more I think about it and see the way this is going and the longer it takes to hand down the judgment, the greater the chance that he is not going to get a favourable decision.
"I would have thought that if the court was strongly of the view that it was improper conduct, and significantly improper, they [the Federal Court] might have made a statement about delaying the hearing of any cases. It's surprising the players didn't ask for a stay, pending the result. It almost implies that there is a tacit consent that their cases aren't going to be affected by it."
While not involved in either case, Galbally has intricate knowledge of the investigation, having represented former Essendon high-performance chief Dean Robinson in his successful unfair dismissal case against the Bombers.
ASADA counsel Malcolm Holmes, QC, spent six days outlining the anti-doping body's case. Galbally says proving that the banned drug thymosin beta-4 had been injected into the players would be difficult. Three of ASADA's key witnesses have refused to provide evidence in person, having given written statements.
"What I find extraordinary, and I haven't been privy to all the transcripts, but to proceed by way of transcript, rather than having the individuals called, is extraordinary except for the fact that it may well be that the lawyers representing the players have taken the view that there is nothing damaging in the transcripts," Galbally said.
"What Holmes will be able to prove is the purchase by [compound pharmacist Nima] Alavi of thymosin beta-4 and maybe the purchase by Dank of thymosin beta-4. But whether they can take it to the next step of showing whether it has gone to Essendon and then gone to the players, is another thing. That ultimately is the question. That is the evidentiary problem I see ASADA have got."
Galbally said the players had a "bona fide" defence under the AFL's rules in "that they did what they were told to do", and cited the defence he used for former Brisbane premiership star Alastair Lynch in 1998.
"That's the defence I ran with Alastair Lynch with DHEA years ago when he was charged with using DHEA, which is an anabolic steroid for chronic fatigue. There was never an issue that he did use it – it was authorised by doctors and he got off. He was acquitted because the AFL rules provided for it," he said.
"Those in charge of Essendon ticked this off. [But] nobody knows what Dank gave the players – that's the frightening thing."
ASADA maintains players, regardless of a doctor's approval, need to sure of what they were taking.
Galbally also said he had been approached by the parents of two of the 34 players asking what the legal rights of the players would be should they suffer health issues in the years ahead.
http://www.theage.com.au/afl/afl-news/james-hird-unlikely-to-win-but-players-will-be-cleared-says-david-galbally-20150120-12ua9u.html
