by Jim05 » Sat Dec 13, 2014 4:06 pm
This explains it better than I can.
Was mentioned on SEN that the AFL would be relieved to lose as it could affect things like third party agreements down the track
Witness ruling a body blow to ASADA case
CHIP LE GRAND
THE AUSTRALIAN
DECEMBER 13, 2014 12:00AM
Pharmacist Nima Alavi
ASADA has failed to secure the testimony of pharmacist Nima Alavi, a key witness.
THE Australian Sports Anti-Doping Authority will limp into the most important prosecution in the organisation’s eight-year history without its two key witnesses and with a substantially weakened case.
An emphatic ruling by the Victorian Supreme Court slammed the door shut on ASADA’s 11th-hour bid to compel the testimony of the witnesses, who have refused to provide sworn statements or appear before an AFL tribunal convened to hear the Essendon doping case.
ASADA’s failure to secure the testimony of drug importer Shane Charter and pharmacist Nima Alavi has left the anti-doping body unable to call a witness to explain the crux of its case; how a banned peptide was allegedly imported from China, compounded at a pharmacy in Melbourne’s Toorak and provided to Stephen Dank, a sports scientist then employed by Essendon. In a statement in response to the court ruling, ASADA said it would rely on written and recorded evidence previously gathered from Mr Charter and Mr Alavi, who conducted multiple interviews with ASADA investigators.
The AFL tribunal is not a court of law and not required to follow strict rules of evidence. However, natural justice principles apply. Under established legal convention, the tribunal is obligated to place less weight on the evidence of witnesses who refuse to subject themselves to cross-examination.
ASADA must prove to “comfortable satisfaction’’ that Mr Dank injected 34 players with the banned peptide Thymosin Beta-4. Due to the seriousness of the charges and potential penalties against the players — they face mandatory, two-year suspensions if found guilty — the standard of proof required is close to that of a criminal case.
ASADA has not gathered any direct evidence that Essendon players were injected with Thymosin Beta 4. Its own investigators, in their final report, recommended the case be dropped, citing insurmountable problems. Lawyers familiar with ASADA’s brief of evidence believe that without the testimony of Mr Alavi and Mr Charter, the case is doomed. The Australian revealed two months ago that Mr Charter, a self-styled anti-ageing consultant currently facing unrelated criminal drug charges, had not agreed to testify.
Supreme Court judge Clyde Croft yesterday said a joint application by ASADA and the AFL to use a provision of the Commercial Arbitration Act to compel the reluctant witnesses to testimony “fails in all respects’’.
In dismissing the application and awarding costs against the AFL and ASADA, Justice Croft ruled the AFL tribunal was not an arbiter tribunal, nor a commercial tribunal, and that the Commercial Arbitration Act had no jurisdiction over its workings.
Despite having to share with ASADA an estimated $150,000 legal bill for lawyers representing the players and Mr Alavi, in addition to their own sizeable legal costs, the AFL is privately relieved that the application failed. Had the judge ruled the other way, it would have exposed future AFL tribunal hearings to potential Supreme Court appeals.