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Hird may have won in Supreme Court had he not fallen on sword

Date

Darren Kane

It is unfair that James Hird never got the chance to put his defence to a forum that would listen and a public that needed to hear, says lawyer Darren Kane.

It is unfair that James Hird never got the chance to put his defence to a forum that would listen and a public that needed to hear, says lawyer Darren Kane. Photo: Penny Stephens

These are unprecedented times. The year-long Australian Crime Commission Project Aperio investigation and a February media conference are etched in the memory of even those with no interest in sport. Over the ensuing 200-odd excruciating days there have been: 130 witnesses, 65,000 pages of information, Operation Cobia's 400-page “interim” report, ASADA's investigation with no end in sight, and a game of who-blinks-first the likes of which we may never see again in the theatre of dispensing justice, AFL-style.

This week saw the imposition of “the most significant sanction in AFL history” and the delivery of an outcome remarkably contrived, following on from a long softening-up process regarding the “likely” penalties. Essendon excised from the 2013 finals series. A $2 million fine and draft picks lost, so as to suitably cripple the club but not mortally wound it. James Hird was the poster boy firstly for much of what is romantic about AFL and yet now all that is apparently rotten. The punishment may ultimately serve to end his coaching career.

The AFL has sought to guard 2013 from becoming the code's year of the asterisk. But, who will guard the guards themselves? The AFL is by equal measure inquisitor, prosecutor, judge and jury. A swift resolution, to restore the integrity of the AFL, was always guaranteed to be achieved in time for September.

Distilled down from an original 34-page statement of claim, the sanctions against Essendon, Hird, Mark Thompson and Danny Corcoran are now predicated on an agreement that each failed to ensure the adequate protection of the health and welfare of the players; failed to act to avert unsatisfactory practices; and failed to act sufficiently to avoid the risk of prohibited substances being administered. The AFL's public release of the original charges, and subsequent deletion of any language asserting that individuals were administered substances that were prohibited, is hardly a satisfactory outcome for anyone invested in the game. The questions that arise on a reading of that 34-page document may never be addressed.

As to Hird, Thompson and Corcoran, the agreed basis for penalty includes no assertion that any of them engaged in any positive conduct that traversed the AFL rules. Rather, the AFL and each concur that they did not implement sufficient safeguards, did not exercise due diligence and did not take remedial action. The totality of the conduct relied upon by the AFL against each man is short in words, and substantially identical. This is curious in itself given the gross disproportionality of penalties imposed on the three. Question also how their omissions, whether intentional, negligent or otherwise, constitute “conduct” unbecoming or damaging.

On the surface, justice has been seen to be done. The outcome is, maybe, reasonable; however the process by which the outcome was reached invites question. Although the charges against Essendon et al, properly determined in a different forum, may have produced sanctions similar to or even harsher than the agreed penalties, that fact is not commensurate with the deliverance of justice. On that point, what is justice? Should it be afforded to only the parties involved, or also to a supporter base left with myriad questions?

The AFL and its key players have avoided what shaped as being a particularly unpleasant court battle, which would have subjected a number of witnesses to uncomfortable questioning in open court. While the spectacle would have been compelling, the consequences would likely have been unbecoming regardless of the evidence given.

While now a moot point, had Hird not fallen on his sword at the 11th hour, it is probable he would have succeeded in his Supreme Court proceedings commenced against the AFL, which in turn would have exposed the very governance structure of the code to judicial examination. The term “natural justice” has, unfortunately, this year become part of the Australian sporting lexicon. What though does it mean in context?

In terms of sporting tribunals, and adopting a conservative approach, the first of the twin pillars upon which natural justice sits, requires affording an affected person, such as Hird, a decision-maker both free from actual bias and also open to persuasion. Bias exists if a decision-maker has already made up its mind.

What is clear from Hird's Supreme Court suit against the AFL is that he intended proving a case that the AFL commissioners, or at least one of them, held a predetermined view on guilt. Fortuitously the AFL has avoided analysis of its public statements and questioning about private deliberations.

Moreover, if the AFL had knowledge in August 2011 of the potential planning for a experimental supplement program at Essendon, and if it could have done more at the time to monitor the Bombers' activities thereafter, is it appropriate that the AFL Commission insisted upon sitting in judgment?

The AFL has avoided being compelled to justify an internal judicial structure where it, through its employees and directors investigates conduct, lays charges and then sits in judgment. Such an arrangement sits in contrast to schemes introduced by the NRL and Cricket Australia, where conduct cases are not determined by boards of directors but rather by independent tribunals. The president of the NRL Appeals Tribunal must be a former Supreme, Federal or High Court Justice.

The second requirement of delivering natural justice demands the dispassionate adjudicator to allow all parties a fair opportunity to present a case and demonstrate (in the case of a defendant) why adverse action should not be taken. In Hird's context, this fair opportunity required the sufficient notice of properly particularised charges, unhindered access to evidence, no surprise witnesses, adequate time to prepare and the right to test the case of the AFL.

On a cursory reading of his pleading it appears Hird was given nothing much greater than a charge sheet at the time he commenced proceedings.

What has transpired this week has, while finalising some issues, solved nothing. There are no answers to the key questions raised last February and asked many times since. While convenient that all concerned decided to move on just a fortnight before the finals, does doing so repair the AFL's image?

If Hird was last Tuesday the sticking point hindering a deal, then for him to abandon a position adopted over seven months ago does not make him courageous or a hero. Hird may or may not be able to look himself in the mirror and deny the truth of 99 per cent of what has been propounded regarding his involvement in the events of 2011-12. The point is not his guilt or innocence. Rather, the issue is that it is unfair Hird never got the chance to put his defence to a forum that would listen and a public that needed to hear. It appears Dr Bruce Reid has extracted the salutary lesson from these events.

Darren Kane is a sports lawyer based in Sydney.

AFL 2015

Round 1
Thu, 02 AprTimes shown AEDT
CAR 78vs RIC 105 Report Stats
Sat, 04 AprTimes shown AEDT
MEL 115vs GCF 89 Stats
SYD 72vs ESS 60 Stats
BRI 74vs COL 86 Stats
WBU 97vs WCE 87 Stats
Sun, 05 AprTimes shown AEST
STK 78vs GWS 87 Stats
ADE 140vs NTH 63 Stats
FRE 75vs PTA 68 Stats
Mon, 06 AprTimes shown AEST
HAW 123vs GEE 61 Stats
View All Fixtures
Round 2
Fri, 10 AprTimes shown AEST
WCE 131vs CAR 62 Stats
Sat, 11 AprTimes shown AEST
RIC 66vs WBU 85 Report Stats
GWS 101vs MEL 56 Stats
COL 63vs ADE 90 Report Stats
GCF 76vs STK 104 Stats
PTA 44vs SYD 92 Stats
Sun, 12 AprTimes shown AEST
GEE 60vs FRE 104 Stats
ESS 78vs HAW 76 Stats
NTH 133vs BRI 51 Stats
View All Fixtures
Round 3
Fri, 17 AprTimes shown AEST
COL 140vs STK 66 Stats
Sat, 18 AprTimes shown AEST
CAR 84vs ESS 105 Stats
ADE 80vs MEL 55 Stats
SYD 111vs GWS 90 Report Stats
NTH 105vs PTA 113 Stats
BRI 58vs RIC 137 Stats
Sun, 19 AprTimes shown AEST
HAW 127vs WBU 57 Stats
GEE 105vs GCF 96 Stats
WCE 81vs FRE 111 Stats
View All Fixtures
Round 4
Fri, 24 AprTimes shown AEST
RIC 51vs MEL 83 Stats
Sat, 25 AprTimes shown AEST
STK 81vs CAR 121 Report Report Stats
ESS 49vs COL 69 Report Stats
GWS 119vs GCF 53 Stats
PTA 99vs HAW 91 Stats
FRE 74vs SYD 60 Stats
Sun, 26 AprTimes shown AEST
BRI 65vs WCE 118 Stats
GEE 67vs NTH 83 Stats
WBU 125vs ADE 68 Stats
View All Fixtures
Round 5
Fri, 01 MayTimes shown AEST
CAR 45vs COL 120 Stats
Sat, 02 MayTimes shown AEST
RIC 76vs GEE 85 Stats
SYD 73vs WBU 77 Stats
GCF 118vs BRI 54 Stats
NTH 70vs HAW 130 Stats
WCE 120vs GWS 33 Stats
Sun, 03 MayTimes shown AEST
MEL 50vs FRE 118 Stats
STK 80vs ESS 82 Stats
ADE 91vs PTA 115 Stats
View All Fixtures
Round 6
Fri, 08 MayTimes shown AEST
COL 59vs GEE 100 Stats
Sat, 09 MayTimes shown AEST
NTH 109vs RIC 74 Stats
WBU 87vs STK 94 Stats
GWS 108vs HAW 98 Stats
GCF 78vs ADE 119 Stats
MEL 50vs SYD 88 Stats
FRE 80vs ESS 52 Stats
Sun, 10 MayTimes shown AEST
CAR 75vs BRI 84 Report Stats
PTA 68vs WCE 78 Stats
View All Fixtures
Round 7
Fri, 15 MayTimes shown AEST
ESS 82vs NTH 93 Stats
Sat, 16 MayTimes shown AEST
ADE 119vs STK 73 Stats
HAW 155vs MEL 50 Stats
CAR 57vs GWS 135 Stats
SYD 120vs GEE 77 Stats
WCE 135vs GCF 43 Stats
Sun, 17 MayTimes shown AEST
WBU 88vs FRE 101 Stats
RIC 105vs COL 100 Stats
BRI 102vs PTA 65 Report Stats
View All Fixtures
Round 8
Fri, 22 MayTimes shown AEST
GEE 140vs CAR 63 Report Stats
Sat, 23 MayTimes shown AEST
STK 78vs WCE 131 Report Stats
GWS 108vs ADE 84 Report Stats
GCF 63vs COL 132 Report Stats
HAW 69vs SYD 73 Report Stats
FRE 115vs NTH 42 Report Stats
Sun, 24 MayTimes shown AEST
ESS 136vs BRI 78 Report Stats
MEL 103vs WBU 64 Report Stats
PTA 43vs RIC 76 Report Stats
View All Fixtures
Round 9
Fri, 29 MayTimes shown AEST
SYD 122vs CAR 62 Report Stats
Sat, 30 MayTimes shown AEST
HAW 93vs GCF 40 Report Stats
MEL 54vs PTA 115 Report Stats
WBU 113vs GWS 68 Report Stats
RIC 72vs ESS 59 Report Stats
ADE 57vs FRE 68 Report Stats
Sun, 31 MayTimes shown AEST
BRI 86vs STK 108 Report Stats
COL 112vs NTH 95 Report Stats
WCE 120vs GEE 64 Report Stats
View All Fixtures
Round 10
Fri, 05 JunTimes shown AEST
FRE 70vs RIC 97 Report Stats
Sat, 06 JunTimes shown AEST
CAR 90vs ADE 99 Report Stats
GCF 41vs SYD 93 Report Stats
ESS 53vs GEE 122 Report Stats
PTA 100vs WBU 62 Report Stats
Sun, 07 JunTimes shown AEST
GWS 97vs BRI 67 Report Stats
NTH 85vs WCE 75 Report Stats
STK 69vs HAW 132 Report Stats
Mon, 08 JunTimes shown AEST
MEL 85vs COL 110 Report Stats
View All Fixtures
Round 11
Fri, 12 JunTimes shown AEST
PTA 69vs GEE 92 Report Stats
Sat, 13 JunTimes shown AEST
GCF 46vs FRE 53 Report Stats
WCE 96vs ESS 46 Report Stats
NTH 75vs SYD 91 Report Report Stats
Sun, 14 JunTimes shown AEST
COL 119vs GWS 77 Report Stats
STK 85vs MEL 83 Report Stats
View All Fixtures
Round 12
Thu, 18 JunTimes shown AEST
ADE 85vs HAW 114 Report Stats
Fri, 19 JunTimes shown AEST
RIC 70vs WCE 90 Report Stats
Sat, 20 JunTimes shown AEST
CAR 110vs PTA 106 Report Stats
GWS 61vs NTH 117 Report Stats
WBU 146vs BRI 74 Report Stats
Sun, 21 JunTimes shown AEST
GEE 89vs MEL 113 Report Stats
View All Fixtures
Round 13
Thu, 25 JunTimes shown AEST
FRE 80vs COL 73 Report Stats
Fri, 26 JunTimes shown AEST
SYD 77vs RIC 95 Report Stats
Sat, 27 JunTimes shown AEST
HAW 114vs ESS 76 Report Stats
BRI 69vs ADE 82 Report Stats
STK 56vs WBU 62 Report Stats
Sun, 28 JunTimes shown AEST
CAR 103vs GCF 69 Report Stats
View All Fixtures
Round 14
Thu, 02 JulTimes shown AEST
SYD 94vs PTA 84 Report Stats
Fri, 03 JulTimes shown AEST
COL 91vs HAW 101 Report Stats
Sat, 04 JulTimes shown AEST
RIC 78vs GWS 69 Report Stats
GCF 125vs NTH 70 Report Stats
WBU 64vs CAR 53 Report Stats
MEL 60vs WCE 114 Report Stats
Sun, 05 JulTimes shown AEST
ESS 52vs STK 162 Stats
ADE vs GEE 15:20Adelaide Oval
FRE 84vs BRI 48 Report Stats
View All Fixtures
Round 15
Thu, 09 JulTimes shown AEST
PTA 66vs COL 63 Report Stats
Fri, 10 JulTimes shown AEST
RIC 71vs CAR 41 Report Stats
Sat, 11 JulTimes shown AEST
ESS 69vs MEL 60 Report Stats
WBU 95vs GCF 73 Report Stats
NTH 120vs GEE 79 Report Stats
WCE 147vs ADE 91 Report Stats
Sun, 12 JulTimes shown AEST
GWS 84vs STK 49 Report Stats
HAW 115vs FRE 43 Report Stats
BRI 49vs SYD 70 Report Stats
View All Fixtures
Round 16
Fri, 17 JulTimes shown AEST
NTH 93vs ESS 68 Report Stats
Sat, 18 JulTimes shown AEST
GEE 72vs WBU 64 Report Stats
GCF 79vs GWS 94 Report Stats
COL 56vs WCE 87 Report Stats
SYD 57vs HAW 146 Report Stats
FRE 95vs CAR 53 Report Stats
Sun, 19 JulTimes shown AEST
MEL 60vs BRI 36 Report Stats
PTA 113vs ADE 116 Report Stats
STK 73vs RIC 89 Report Stats
View All Fixtures
Round 17
Fri, 24 JulTimes shown AEST
CAR 35vs HAW 173 Report Stats
Sat, 25 JulTimes shown AEST
GWS 42vs GEE 69 Stats
ADE 125vs GCF 80 Stats
RIC 78vs FRE 82 Stats
ESS 116vs PTA 129 Stats
BRI 38vs NTH 110 Report Stats
Sun, 26 JulTimes shown AEST
WBU 104vs COL 86 Report Stats
MEL 46vs STK 83 Report Stats
WCE 103vs SYD 51 Report Stats
View All Fixtures
Round 18
Fri, 31 JulTimes shown AEST
HAW 53vs RIC 71 Report Stats
Sat, 01 AugTimes shown AEST
GEE 113vs BRI 57 Stats
COL 54vs MEL 91 Report Stats
SYD 117vs ADE 65 Report Stats
CAR 54vs NTH 118 Report Stats
GCF 83vs WCE 83 Report Stats
Sun, 02 AugTimes shown AEST
PTA 112vs STK 49 Report Stats
ESS 40vs WBU 127 Report Stats
FRE 84vs GWS 63 Report Stats
View All Fixtures
Round 19
Fri, 07 AugTimes shown AEST
ADE 88vs RIC 52 Report Stats
Sat, 08 AugTimes shown AEST
COL 105vs CAR 87 Report Stats
WBU 128vs PTA 64 Report Stats
BRI 100vs GCF 114 Report Stats
GEE 95vs SYD 63 Report Stats
WCE 74vs HAW 88 Report Stats
Sun, 09 AugTimes shown AEST
MEL 92vs NTH 127 Report Stats
GWS 93vs ESS 61 Report Stats
STK 59vs FRE 96 Report Stats
View All Fixtures
Round 20
Fri, 14 AugTimes shown AEST
SYD 87vs COL 76 Report Stats
Sat, 15 AugTimes shown AEST
ESS 59vs ADE 171 Report Stats
NTH 120vs STK 83 Report Stats
PTA 111vs GWS 90 Report Stats
GEE 85vs HAW 121 Report Stats
BRI 131vs CAR 67 Report Stats
Sun, 16 AugTimes shown AEST
RIC 138vs GCF 55 Report Stats
WBU 153vs MEL 55 Report Stats
FRE 80vs WCE 104 Report Stats
View All Fixtures
Round 21
Fri, 21 AugTimes shown AEST
HAW 86vs PTA 108 Report Stats
Sat, 22 AugTimes shown AEST
COL 56vs RIC 147 Report Stats
GWS 44vs SYD 133 Report Stats
GCF 97vs ESS 95 Report Stats
STK 97vs GEE 97 Report Stats
ADE 131vs BRI 44 Report Stats
Sun, 23 AugTimes shown AEST
NTH 94vs FRE 83 Report Stats
CAR 78vs MEL 55 Report Stats
WCE 162vs WBU 85 Report Stats
View All Fixtures
Round 22
Fri, 28 AugTimes shown AEST
GEE 62vs COL 110 Report Stats
Sat, 29 AugTimes shown AEST
GWS 132vs CAR 51 Report Stats
HAW 134vs BRI 62 Report Stats
NTH 73vs WBU 96 Report Stats
ESS 47vs RIC 74 Report Stats
GCF 51vs PTA 88 Report Stats
Sun, 30 AugTimes shown AEST
ADE 126vs WCE 69 Report Stats
STK 38vs SYD 135 Report Stats
FRE 108vs MEL 54 Report Stats
View All Fixtures
Round 23
Fri, 04 SepTimes shown AEST
RIC ($1.29)vs NTH ($3.60) 19:50ES
Sat, 05 SepTimes shown AEST
GEE ($2.50)vs ADE ($1.53) 13:05SS
BRI ($4.50)vs WBU ($1.20) 13:45G
PTA vs FRE 15:50Adelaide Oval
HAW ($1.01)vs CAR ($17.00) 16:40MCG
SYD ($1.04)vs GCF ($11.00) 19:20SCG
WCE ($1.04)vs STK ($11.00) 19:40Domain Stadium
Sun, 06 SepTimes shown AEST
MEL ($3.20)vs GWS ($1.36) 13:10ES
COL ($1.28)vs ESS ($3.70) 15:20MCG
View All Fixtures
AFL 2015
Overall standings
Team P W L D % Pts
Fremantle 21 17 4 0 125.10 68
West Coast Eagles 21 15 5 1 143.00 62
Hawthorn 21 15 6 0 156.77 60
Sydney Swans 21 15 6 0 124.11 60
Richmond 21 14 7 0 121.39 56
Western Bulldogs 21 14 7 0 116.76 56
Adelaide Crows 20 13 7 0 119.10 54
North Melbourne 21 13 8 0 109.08 52
View all
 

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