AFL ANTI-DOPING TRIBUNAL WEDNESDAY, 28 JANUARY 2015 DAY THIRTEEN (TRANSCRIPT-IN-CONFIDENCE)

Transcription

1 AFL ANTI-DOPING TRIBUNAL WEDNESDAY, JANUARY DAY THIRTEEN (TRANSCRIPT-IN-CONFIDENCE) MR DAVID JONES MR JOHN NIXON MR WAYNE HENWOOD COUNSEL ASSISTING: MR JUSTIN HOOPER MR J. GLEESON QC with MS R. ENBOM appeared on behalf of AFL. MR M. HOLMES QC with MR P. KNOWLES appeared on behalf of the CEO of ASADA. MR D. GRACE QC with MR B. IHLE appeared on behalf of players. MR N. CLELLAND QC with MR D. HALLOWES appeared on behalf of Mr and Mr

2 Good morning, everyone. We will proceed with our ruling in relation to the objections taken to Counsel for the players have objected to the reception by the Tribunal of evidence sought to be relied upon by ASADA as part of their case against the players. The admissibility of the evidence the subject of objection has been the subject of a voir dire conducted by the Tribunal. Pursuant to Rule.(b)(iii) of the AFL Rules this ruling is the decision of the Disciplinary Tribunal panel members constituting the Tribunal in this matter. Their decision is unanimous and it follows that it is the decision of the Chairman. Just to help everyone follow from here, I am going to go through the table prepared by Mr Holmes, if everyone has that document. Have you all got that document headed "Table of specific objections made by the players"? We can't put our hands on it. Can someone help Mr Grace with a copy? Mr Holmes has given me a copy. Thank you. Proceeding through the table, exhibit AS-, page to, the objection is sustained and the document will not be received into Exhibit AS-, pages to, the objection is not sustained and the document will be received in Exhibit AS-, page, the objection is not sustained and the document will be received in Exhibit AS-, page 1, the objection is not sustained and the document will be received in Exhibit AS-, pages 1 to 1, the objection is /01/ RULING

3 not sustained and the document will be received in Exhibit AS-, page, the objection was withdrawn and the document will be received in Exhibit AS-, page to, the objection was withdrawn and the document will be received in Exhibit AS-, page, the objection was withdrawn and the document will be received in Exhibit AS-, pages to, the objection was withdrawn and the document will be received in Exhibit AS-, pages to, the objection is not sustained and the document will be received in Exhibit AS-, page 0, the objection is not sustained and the document will be received in Exhibit AS-, page 1, the objection is not sustained and the document will be received in Exhibit AS-, pages to, the objection is not sustained and the document will be received in evidence, and I make clear received in the case of all parties. Exhibit AS-, pages 1 to, the objection is not sustained and the document will be received in Exhibit AS-, pages to, the document will be dealt with in accordance with paragraph of the submission of Mr Holmes and Mr Knowles. Exhibit AS-, pages to, the objection is not sustained and the document will be received in Exhibit AS-, pages to, the objection is /01/ RULING

4 not sustained and the document will be received in Exhibit AS-, pages to, the objection is not sustained and the document will be received in Exhibit AS-, pages to, the objection is not sustained and the document will be received in Exhibit AS-, page, the objection is not sustained and the document will be received in Exhibit AS-, page, the objection is not sustained and the document will be received in Exhibit AS-, pages to, the objection is not sustained and the document will be received in Exhibit AS-, pages to, the objection is sustained and the document will not be received in Exhibit AS-, pages to, will be dealt with in accordance with paragraph. Exhibit AS-, pages to, the objection is partly sustained, and certain statements will be received in evidence against all parties; and I will refer to those statements. These are statements by the author, Mr McKenzie. It is on the second page. I will read these into the record. "In early April, Dank not only told me he used TB on Essendon players but said he did so because there was 'very good data that supports Thymosin Beta-'. When I told him that according to the ASADA website, WADA had specifically banned the drug, he said the move was /01/ RULING

5 'just mind-blowing'. 'I think they've only just put that in to back up their case' against the Bombers, he said. day later, when I told Dank that The Age was set to publish his comments about TB, he asked to clarify his A interview. told me. He never meant to refer to Thymosin Beta-, he The drug he had given the Bombers players was in fact Thymomodulin." Document AS-, pages to, the objection is partially sustained and the Tribunal will receive in evidence the following statements from that document - again, I will read from it into the record. "Mr Xu said that when Charter came to Shanghai in November to visit his sprawling, biochemical manufacturing plant, he claimed to be the representative of a pharmaceutical company looking to buy peptides for research work. Mr Xu provided Mr Charter with samples of various peptides, including the banned substance Thymosin Beta-. When Mr Charter had subsequently placed an order to import a larger quantity of peptides, he was asked to provide a written undertaking that they were not intended for human use. Mr Xu said the only Thymosin peptide supplied by GL Biochem to Mr Charter was Thymosin Beta-. 'The Thymosin we synthesis (sic) and supply always refers to Thymosin Beta-,' he said. 'The peptide products (such as Thymosin Beta-) are for research use only, not for human use. We sold our peptide products to Shane Charter after he signed the non-human use agreement.' A copy of Mr Charter's undertaking to GL Biochem - signed and dated December, - holds Mr Charter responsible for the 'improper use' of peptides by himself or a third party. 'The product outsourced to your company will not be directly applied /01/ RULING

6 for usage on human body without appropriate requirements satisfied,' the undertaking reads. 'And precautionary measures, if applicable, will be adopted to ensure that the product will not be used improperly by third party.' Mr Xu said the undertaking was required of all GL Biochem customers to prevent the proliferation of peptides on lucrative black markets around the world." Moving next I think it's AS-, 0, the objection is not sustained and the document will be received in Exhibit AS-, pages 1 to, the objection is sustained and the document will not be received into Exhibit AS-, pages 0 to, the objection is sustained and the document will not be received into Exhibit AS-, pages to, the objection is not sustained and the document will be received into Exhibit AS-, pages to, the objection is sustained and the document will not be received into Exhibit AS-, page, the objection is sustained and the document will not be received into Exhibit AS-.1, pages to, the objection is not sustained and the document will be received into Exhibit AS-.1, pages 1 to, the objection is not sustained and the document will be received into /01/ RULING

7 Exhibit AS-.1, pages to, the objection is not sustained and the document will be received into Exhibit AS- - I haven't got a page number here; it's the transcripts of interview with Sedrak - the objection was withdrawn and the document will be received into Exhibit AS- - the documents are the transcripts of interview with Charter and Alavi - the objection is not sustained and the documents will be received into Exhibit AS-, which is affidavits of Aaron Walker, are received on the voir dire only, subject to one part of that documentation that was tendered by Mr Holmes on the general issues. Exhibit AS-, transcripts of interview with Shane Charter, the objection is not sustained and the documents will be received in Exhibit AS-, which is the transcripts of the interviews with the players, the objection is not sustained and the documents will be received in evidence in all cases. Exhibit AS- will be dealt with in accordance with paragraph. Exhibit AS- will be dealt with in accordance with paragraph. Exhibit PG- will be dealt with in accordance with paragraph. raised by counsel. I think that completes the matters There is a concluding matter, as Mr Henwood has pointed out. This ruling by the Tribunal is on the /01/ 00 RULING

8 threshold issue of admissibility of the evidence subject to objection. The ruling is not a ruling on the reliability, probative value or weight to be given to the evidence the subject of objection. Could I just query one matter, Mr Chair? Yes. The very last item, PG-, was a document that was tendered by us. Yes. Sorry, we got it as on the voir dire only at this point, that's all. But it's referred to in the transcript of one of the Charter discussions. If you want it in for the Yes. It is referred to in AS-. We would seek to tender it absolutely. We will receive that on all issues, Mr Grace. I wasn't sure whether at this stage you had only put it in on the voir dire. But, in the light of the fact that the Charter evidence is being received, it's appropriate that that evidence be received. case, am I right? That's relating to the court No, that's the RD Peptide purchasing contract. The contract, yes. Okay. Thank you. MR CLELLAND: Mr Chairman, there is the statement of Mr McKenzie, which I think is exhibit AS-. It's not in this chart, but can we take it that the Tribunal, in light of the admission of the transcript of interview between Mr McKenzie and Mr Dank, regards that as admissible also? Yes, that should go in I think in those circumstances. So the Tribunal will receive that as well as the transcript of the interview between McKenzie and /01/ 01

9 Dank. So where do we go from here? We would like to consider our position in relation to evidence consequent upon this ruling. We would like some time today to do that, sir. we adjourn to tomorrow morning. So I would suggest that Okay. Then you will let us know how you intend to proceed? Yes. We will see how things go from there in terms of what the further arrangements are in the light of what position you reach. But I think we have covered all the documents. My learned colleague was wondering whether you needed all today, Mr Grace, that's all. Perhaps we could come back at. It's past. What about if we came back at, say,.? Yes. And just see how the situation is. Could I get perhaps some direction from you. There is, as you would appreciate, in the interviews of the players - I think there were interviews of players. Thirty-four have been the subject of infraction notices, and four were not. Four, you don't have transcripts before you; thirty-four you do. We wanted to discuss the prospect of putting those four in. with Mr Holmes. I can discuss that I would certainly urge you to do that. Yes. That's one matter. The next matter is that there are, as you would expect, different versions of events by the players. The question is: how do we put in /01/ 0

10 the best format those or, if it is only, different versions of events? The versions of events relate to - putting aside common matters such as signing consent forms and receiving an injection, the versions deal with the number of injections, what they were told just prior to getting an injection, what colour vials the injection was taken from And where the vials came from. Where they came from, whether there was any labels on or not, the frequency, the location of injections and so on. We had proposed that we would prepare a spreadsheet which would be of assistance, and I think my friend is going to do the same. We had some preliminary discussions yesterday about a common spreadsheet, but we are not sure whether that's going to be viable, bearing in mind there's different emphasis. Those discussions haven't finished. No, we haven't finished those discussions. I'm just seeking some - bear with me. A common spreadsheet would certainly be attractive to us, Mr Grace, if I could put it that way. Yes. But the alternative would be to go through each interview, which would be a laborious exercise and each interview would take to minutes to highlight the appropriate passages. If you multiply that, we are talking about probably two days of hearing time, which we would seek to try to avoid by that other procedure. But, if you would prefer us to go through the interviews, we are prepared to do so to outline the relevant passages. Of course, our closing submissions will refer to the relevant passages and allow you at your /01/ 0

11 leisure to look at them in the course of deliberation. So we seek some sort of direction in relation to that issue. Yes. Gentlemen, Mr Grace and I started talking about that last night. We hadn't finished those discussions. I don't know whether I should oppose the direction or we should continue the discussions because we are approaching it on a fairly similar basis. But it's not a matter that I would ask for directions being made now. that at.? Can we revisit Yes. We are not anticipating making directions about it. Mr Grace, the position is that, as things stand now, those interviews are evidence before the Tribunal on all issues in all cases. I could understand that, although that's in evidence, as part of your case in presenting your case on behalf of the players you might want to do what Mr Holmes did in terms of taking us specifically to various parts of those interviews as part of your case. Alternatively, these matters could be picked up in the closing submissions. I think that's something that we probably would prefer to be picked up in the closing submissions because, as I have said a number of times in relation to - although we have ruled that those interviews are evidence in all cases, we would be expecting ASADA in their submission, to the extent that they are relying on a cross-player situation with respect to the interviews, to not only identify that but put their submission as to what the use and - the relevance and probative value of that is so we know what their position is, you know what their position is before you have to respond, and your response /01/ 0

12 obviously can deal with that. But your response can also rely upon other evidence of the players which you say supports your case that there's been no violation. Now, if it can be adequately covered either through a common spreadsheet or a spreadsheet that you provide as part of your submissions, that's fine by us. It's just that I think if we can avoid further hearing time in having to go through documents that's desirable in the sense that it just helps us to move the proceedings along. What we anticipate is giving each of the parties, as has already been discussed, a week to put in final submissions. We have already spoken tentatively to the court about having a courtroom for two days for oral submissions after we get the written submissions, which, depending on what happens today in terms of any further hearing time, might put us in a situation of oral submissions somewhere around about February. Thank you. We anticipated that date. We are very comfortable with that arrangement. But the last thing we want to do is in any way inhibit your ability and Mr Clelland's ability to put the players' case before us in the way that you think it best should be presented. It has been very helpful, this brief discussion. So what about if we leave it at that. Let's come back at.. It gives you a chance to talk to Mr Holmes further about it, and we can revisit it. Okay. Thanks. LUNCHEON ADJOURNMENT /01/ 0

13 UPON RESUMING AT. PM: Mr Grace, what would you like to tell us? We don't intend to call any witnesses to give viva voce Okay. We do, however, seek to tender a number of documents. The documents we seek to tender are all those documents tendered on the voir dire. We want to tender them absolutely in the proceedings proper. already been given numbers. They have They have, Mr Grace. I'm just looking at the list now. We've got All the PGs. Yes. At the moment there's PG-, PG-, PG- relating to potential employment opportunities; PG-, that's the articles; PG- is an chain between Dr Watt and Hans Geyer. I think in terms of voir dire documents there's the Customs document. PG-. PG-. There's the sentencing reasons of Judge Smallwood, which is PG-. PG- is a Herald-Sun article, November. There are others, but they are all in as I noted. PG-. There's PG-, which is the County Court certificate; and PG-, is that the outline of - I can't recall what PG- is. That one is the objections schedule. So we don't have to worry about that. No, we don't have to worry about the objections schedule. Obviously voir dire material, like Walker's /01/ 0

14 affidavit et cetera, we will retain as voir dire material because we may want to make some utilisation to put reasons if we want to put reasons in the ultimate decision on this ruling. But it will only be on the basis that it would be used for that purpose and not for the general issues, unless it has become an exhibit for the general issues. Does that cover the ones, Mr Grace, that you now want as tendered on the general issues? now. There are some additional ones that I will tender But, in terms of the ones that are already in, does that cover them? Yes, all the PGs. All the PGs are now in absolutely, except we won't worry about because, as you said, that was purely to assist us in dealing with the objections. So you have some more documents that you would like to put before the Tribunal now? Yes, I do. PG- is an chain between Dr Stephen Watt and Hans Geyer and an analysis report from Deutsche something or other in Cologne, Germany. That arose when we had the experts, didn't it? Yes. I want to tender two chains which in part incorporate what's in PG-, which is between Stephen Watt of ASADA and Hans Geyer of the Institute of Biochemistry at the German Sport University of Cologne, in Germany. This relates to the testing of a number of peptides, including Thymosin Beta-, testing of samples in January. There's some correspondence that you will see in the chain, the relevant parts of which we will refer to in our final submissions. But I seek to tender /01/ 0

15 that now. The source of these documents, Mr Grace, is? Disclosure material from ASADA in tranche, I think. So it's come to you from material that's in their possession? Yes. You will see the numbers on the top right-hand corner. Can I take you to the fourth document. You can see that's a document pretty late in the piece, November, from Stephen Watt referring to a test for Thymomodulin, analysis of Thymomodulin. You will see a chain of s that relates to that that goes back in time. So there are two chains. That's where the second chain ends. That's November. But then if you go back to the start January. You will see that and the next two pages are the result of another chain that actually predates the one I have just referred to. if we go back Sorry to do this to you, but We have done plenty of it over the last days, Mr Grace. The third last page, the back of the third last page, you will see at the bottom of that, Mr Geyer on March sends to Stephen Watt the following , "Dear Stephen, we sent you the report for the second batch of samples via ordinary mail. All samples negative. Regarding Thymomodulin we will buy the product and analyse it." That's already been referred to in the submissions that have been made earlier. So this is all part of the /01/ 0

16 mix, and we will refer to it in due course in the written submissions. MR GLEESON: Is there any objection to the tender, Mr Holmes? No. And Mr Gleeson? No. #EXHIBIT PG- - Further s between Dr Watt and Hans Geyer. The next document relates to AS- at pages and was one that was originally objected to and you didn't proceed with the objection, as I recall. Yes, sorry,. You may recall I made a submission in relation to what was represented by that chart in RMB. Yes. I have and seek to tender a Reuters currency quote as at two dates, 1 December and the second at December, showing you what the respective exchange rate was between RMB, which is called Renminbi - that's a Chinese currency. It's variously given the acronym "RMB" or "CNY". The reason it is called "CNY" is because they call it "China Yuan Renminbi". You will see that on the Reuters document. I seek to tender that. Is there any objection? No. #EXHIBIT PG- - Reuters currencies quote. The status of the player interview charts which purport to summarise the salient parts of the player interviews, including players who have not been the subject of infraction notices, what's occurred is that after the break this morning we forwarded our draft to Mr Holmes and his instructors. They have received it. /01/ 0

17 They are considering it. They want to analyse it in some detail. They have not therefore been able to respond one way or the other as to whether they agree for it to go in as a joint document or not. overnight. They will let us know I'm not sure. In respect of that, we won't be able to let you know overnight. Perhaps Mr Holmes can tell you a bit about that later. For example, it has red and green. The red are the players who are here, and we have been looking at their records of interview; the green, the players who are not here. We haven't looked at those. We haven't gathered those together. Okay. There are a number of options. If you want to put yours in now as your document and then they can consider it, and it may turn out that it becomes a joint document because they are prepared to accept it as a joint document. If they don't and they want to put in their own document, they can put in their own document. There is no question - if I can say this to everyone, we have spent some time whilst waiting to resume just to refresh our minds a bit going through the different interviews, not in depth but just to get a bit of a handle on these matters, and there's no doubt in our mind that we are going to be very much assisted by the parties - if they can do it jointly, fine, but, even if they can't do it jointly, from their own perspectives - giving us a road map or a spreadsheet of various matters showing what players have said on those various matters. If you want to receive it subject to objection and /01/

18 we will refer to it in our submissions if we don't agree with it. Yes, we could certainly do that, if Mr Grace is happy with that. Yes. There are interviews, I think. I might be wrong. That includes Mr and Mr Okay. That's our summary of theirs. But Mr Clelland I don't think has checked the document. Again, it will be subject to So it is our document. It's not his document. No, it's your document. It's not binding Mr Clelland and Mr Hallowes in any way. Can I indicate a slight technical problem, and that is that pursuant to section of the ASADA Act and the NAD scheme the interviews of those players who are not the subject of infraction notices are protected by provisions of those legislative enactments. We have formally requested ASADA to provide those interviews. Although we have copies because those persons gave our instructors copies or they were provided to us If it has formally come from ASADA, then there is the appropriate protection. Yes, there is protection. We have to formally request to ASADA, which we have done, and they have indicated that they will provide to the Tribunal the transcripts of those players' interviews. Okay. We can't provide them. We will be tendering those tomorrow morning. Alternatively the AFL might be able to tender them /01/

19 under its rules because it was a joint investigation. MR GLEESON: I think Mr Holmes just indicated he would tender them tomorrow morning. That's fine by us. We can work it out one way or another. Obviously you want us to have them. Yes. But we have to deal with any legislative restriction. Yes. That will be solved tomorrow. That will be solved by them coming from ASADA in the same way that the other material has come from ASADA and therefore gets the protection of the legislation. That's right. Subject to the issue of whether we are returning tomorrow or not, and Mr Holmes will make some comment on that, can we perhaps hold on to that until tomorrow because they do refer to these other players' interviews? Okay. We will formally tender the document tomorrow. All right. That's okay. If we are coming back. Otherwise we will work it out. Yes. There may be one or two other documents that we would seek to tender, but I just want to hear from Mr Holmes as to what he proposes from now because, as I understand it, ASADA hasn't determined yet whether they have tendered all the documents they seek to rely upon. He may be in a position now to refer to further documents that we have which we haven't been taken to and therefore come within this umbrella of paragraph. But my understanding was that there could be documents in that /01/

20 category that are referred to in closing submissions and there could be documents from the players that are referred to in closing submissions in which case we would then deal with them as being formally received as part of the record for the general issues and, having determined what is before the Tribunal for the general issues, all other material that we are in possession of we would return so that we would only be left with those documents, which would be appropriately identified and marked at that point. So it would seem to me that it is best to leave that area for the moment and see what transpires with the closing submissions. That's the position we have been adopting with the court book. That's with respect to all these documents that we have to which there hasn't been a specific reference at this stage in terms of a reliance by ASADA on them. We have also, as I have mentioned to my friend, been conducting an audit of what is in and what's not in. There are some documents which we propose to tender which we were gathering and we will tender them tomorrow morning at o'clock. These are other documents. Which have been the subject of disclosure, I assume? There have been some matters which mean that I can't answer that question until tomorrow morning. All right. Anyway, it may be necessary for you to speak to your colleagues about that. Obviously I think we would have some concern about documents that hadn't been disclosed emerging at this stage of the proceedings. But I don't want to go down that track if we don't have to go down that track. /01/

21 We weren't sure whether it would be necessary to sit tomorrow morning. Obviously we are happy to to ensure that everything's covered before we set a timetable for submissions. Obviously the chart can be considered at the same time in terms of whether it's a joint document or whether it's a document on behalf of Mr Grace and whether ASADA wants to submit its own chart with respect to the analysis of the interviews. So, Mr Grace, we understand that you are reserving your position at the moment in terms of any further documents. Yes. And we accept that. Mr Clelland, what do you want to do at this stage, or do you want to reserve your position until tomorrow? MR CLELLAND: We will reserve our position and just perhaps wait with interest to see what Mr Holmes is going to produce and seek to tender in the morning. But, apart from that issue, I don't anticipate that we will wish to tender any additional material. All right, or provide any other evidence to the Tribunal. MR CLELLAND: Quite. Could I ask, sir, if ASADA does intend to seek to tender material which has previously not been disclosed that they provide that material to us overnight and prior to the commencement of the hearing tomorrow. ASAP as far as I'm concerned, bearing in mind that we are into our th day. ASAP. We will see where we go from there. I just have to see the medico at in the morning to make sure my leg is okay. It seems that it is, /01/

22 but just to get some assurance. Dr Dank. Otherwise I could get Is convenient? No, let's make it.. I may even get here by, but on the safe side we will make it., if you don't mind, and we will proceed from there. Can we ask for? We have eight players or players I'm now told whose records of interview we have to gather. Who aren't Who were interviewed but not part of this Not subject to infraction notices. Yes. Okay. From our point of view we are happy to allow whatever time is necessary if it means that matters can be resolved so that it enables us to move the proceedings along, which I know everyone is anxious to do. So o'clock. ADJOURNED UNTIL THURSDAY, JANUARY AT.00 AM All right. /01/