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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 78 vs RIC 105 Report Stats
Sat, 04 AprTimes shown AEDT
MEL 115 vs GCF 89 Stats
SYD 72 vs ESS 60 Stats
BRI 74 vs COL 86 Stats
WBU 97 vs WCE 87 Stats
Sun, 05 AprTimes shown AEST
STK 78 vs GWS 87 Stats
ADE 140 vs NTH 63 Stats
FRE 75 vs PTA 68 Stats
Mon, 06 AprTimes shown AEST
HAW 123 vs GEE 61 Stats
View All Fixtures
Round 2
Fri, 10 AprTimes shown AEST
WCE 131 vs CAR 62 Stats
Sat, 11 AprTimes shown AEST
RIC 66 vs WBU 85 Report Stats
GWS 101 vs MEL 56 Stats
COL 63 vs ADE 90 Report Stats
GCF 76 vs STK 104 Stats
PTA 44 vs SYD 92 Stats
Sun, 12 AprTimes shown AEST
GEE 60 vs FRE 104 Stats
ESS 78 vs HAW 76 Stats
NTH 133 vs BRI 51 Stats
View All Fixtures
Round 3
Fri, 17 AprTimes shown AEST
COL 140 vs STK 66 Stats
Sat, 18 AprTimes shown AEST
CAR 84 vs ESS 105 Stats
ADE 80 vs MEL 55 Stats
SYD 111 vs GWS 90 Report Stats
NTH 105 vs PTA 113 Stats
BRI 58 vs RIC 137 Stats
Sun, 19 AprTimes shown AEST
HAW 127 vs WBU 57 Stats
GEE 105 vs GCF 96 Stats
WCE 81 vs FRE 111 Stats
View All Fixtures
Round 4
Fri, 24 AprTimes shown AEST
RIC 51 vs MEL 83 Stats
Sat, 25 AprTimes shown AEST
STK 81 vs CAR 121 Report Report Stats
ESS 49 vs COL 69 Report Stats
GWS 119 vs GCF 53 Stats
PTA 99 vs HAW 91 Stats
FRE 74 vs SYD 60 Stats
Sun, 26 AprTimes shown AEST
BRI 65 vs WCE 118 Stats
GEE 67 vs NTH 83 Stats
WBU 125 vs ADE 68 Stats
View All Fixtures
Round 5
Fri, 01 MayTimes shown AEST
CAR 45 vs COL 120 Stats
Sat, 02 MayTimes shown AEST
RIC 76 vs GEE 85 Stats
SYD 73 vs WBU 77 Stats
GCF 118 vs BRI 54 Stats
NTH 70 vs HAW 130 Stats
WCE 120 vs GWS 33 Stats
Sun, 03 MayTimes shown AEST
MEL 50 vs FRE 118 Stats
STK 80 vs ESS 82 Stats
ADE 91 vs PTA 115 Stats
View All Fixtures
Round 6
Fri, 08 MayTimes shown AEST
COL 59 vs GEE 100 Stats
Sat, 09 MayTimes shown AEST
NTH 109 vs RIC 74 Stats
WBU 87 vs STK 94 Stats
GWS 108 vs HAW 98 Stats
GCF 78 vs ADE 119 Stats
MEL 50 vs SYD 88 Stats
FRE 80 vs ESS 52 Stats
Sun, 10 MayTimes shown AEST
CAR 75 vs BRI 84 Report Stats
PTA 68 vs WCE 78 Stats
View All Fixtures
Round 7
Fri, 15 MayTimes shown AEST
ESS 82 vs NTH 93 Stats
Sat, 16 MayTimes shown AEST
ADE 119 vs STK 73 Stats
HAW 155 vs MEL 50 Stats
CAR 57 vs GWS 135 Stats
SYD 120 vs GEE 77 Stats
WCE 135 vs GCF 43 Stats
Sun, 17 MayTimes shown AEST
WBU 88 vs FRE 101 Stats
RIC 105 vs COL 100 Report Stats
BRI 102 vs PTA 65 Report Stats
View All Fixtures
Round 8
Fri, 22 MayTimes shown AEST
GEE 140 vs CAR 63 Report Stats
Sat, 23 MayTimes shown AEST
STK 78 vs WCE 131 Report Stats
GWS 108 vs ADE 84 Report Stats
GCF 63 vs COL 132 Report Stats
HAW 69 vs SYD 73 Report Stats
FRE 115 vs NTH 42 Report Stats
Sun, 24 MayTimes shown AEST
ESS 136 vs BRI 78 Report Stats
MEL 103 vs WBU 64 Report Stats
PTA 43 vs RIC 76 Report Stats
View All Fixtures
Round 9
Fri, 29 MayTimes shown AEST
SYD 122 vs CAR 62 Report Stats
Sat, 30 MayTimes shown AEST
HAW 93 vs GCF 40 Report Stats
MEL 54 vs PTA 115 Report Stats
WBU 113 vs GWS 68 Report Stats
RIC 72 vs ESS 59 Report Stats
ADE 57 vs FRE 68 Report Stats
Sun, 31 MayTimes shown AEST
BRI 86 vs STK 108 Report Stats
COL 112 vs NTH 95 Report Stats
WCE 120 vs GEE 64 Report Stats
View All Fixtures
Round 10
Fri, 05 JunTimes shown AEST
FRE vs RIC 20:10Domain Stadium
Sat, 06 JunTimes shown AEST
CAR vs ADE 13:40MCG
GCF vs SYD 16:35MS
ESS vs GEE 19:20ES
PTA vs WBU 19:40Adelaide Oval
Sun, 07 JunTimes shown AEST
GWS vs BRI 13:10Spotless Stadium
NTH vs WCE 15:20BA
STK vs HAW 16:40ES
Mon, 08 JunTimes shown AEST
MEL vs COL 15:20MCG
View All Fixtures
Round 11
Fri, 12 JunTimes shown AEST
PTA vs GEE 19:50Adelaide Oval
Sat, 13 JunTimes shown AEST
GCF vs FRE 13:40MS
WCE vs ESS 16:35Domain Stadium
NTH vs SYD 19:20ES
Sun, 14 JunTimes shown AEST
COL vs GWS 13:10MCG
STK vs MEL 16:40ES
View All Fixtures
Round 12
Thu, 18 JunTimes shown AEST
ADE vs HAW 19:50Adelaide Oval
Fri, 19 JunTimes shown AEST
RIC vs WCE 19:50MCG
Sat, 20 JunTimes shown AEST
CAR vs PTA 13:40MCG
GWS vs NTH 16:35Spotless Stadium
WBU vs BRI 19:20ES
Sun, 21 JunTimes shown AEST
GEE vs MEL 15:20SS
View All Fixtures
Round 13
Thu, 25 JunTimes shown AEST
FRE vs COL 20:10Domain Stadium
Fri, 26 JunTimes shown AEST
SYD vs RIC 19:50SCG
Sat, 27 JunTimes shown AEST
HAW vs ESS 13:40MCG
BRI vs ADE 16:35G
STK vs WBU 19:20ES
Sun, 28 JunTimes shown AEST
CAR vs GCF 15:20ES
View All Fixtures
Round 14
Thu, 02 JulTimes shown AEST
SYD vs PTA 19:20SCG
Fri, 03 JulTimes shown AEST
COL vs HAW 19:50MCG
Sat, 04 JulTimes shown AEST
RIC vs GWS 13:40MCG
GCF vs NTH 16:35MS
WBU vs CAR 19:20ES
MEL vs WCE 19:40TIO
Sun, 05 JulTimes shown AEST
ESS vs STK 13:10ES
ADE vs GEE 15:20Adelaide Oval
FRE vs BRI 16:40Domain Stadium
View All Fixtures
Round 15
Thu, 09 JulTimes shown AEST
PTA vs COL 19:50Adelaide Oval
Fri, 10 JulTimes shown AEST
RIC vs CAR 19:50MCG
Sat, 11 JulTimes shown AEST
ESS vs MEL 13:40MCG
WBU vs GCF 16:35CAZ
NTH vs GEE 19:20ES
WCE vs ADE 19:40Domain Stadium
Sun, 12 JulTimes shown AEST
GWS vs STK 13:10Spotless Stadium
HAW vs FRE 15:20AS
BRI vs SYD 16:40G
View All Fixtures
Round 16
Fri, 17 JulTimes shown AEST
NTH vs ESS 19:50ES
Sat, 18 JulTimes shown AEST
GEE vs WBU 13:45SS
GCF vs GWS 14:10MS
COL vs WCE 16:35ES
SYD vs HAW 19:20ANZ
FRE vs CAR 19:40Domain Stadium
Sun, 19 JulTimes shown AEST
MEL vs BRI 13:10MCG
PTA vs ADE 15:20Adelaide Oval
STK vs RIC 16:40ES
View All Fixtures
Round 17
Fri, 24 JulTimes shown AEST
CAR vs HAW 19:50ES
Sat, 25 JulTimes shown AEST
GWS vs GEE 13:45SO
ADE vs GCF 14:10Adelaide Oval
RIC vs FRE 16:35MCG
ESS vs PTA 19:20ES
BRI vs NTH 19:20G
Sun, 26 JulTimes shown AEST
WBU vs COL 13:10ES
MEL vs STK 15:20MCG
WCE vs SYD 16:40Domain Stadium
View All Fixtures
Round 18
Fri, 31 JulTimes shown AEST
HAW vs RIC 19:50MCG
Sat, 01 AugTimes shown AEST
GEE vs BRI 13:45SS
COL vs MEL 14:10MCG
SYD vs ADE 16:35SCG
CAR vs NTH 19:20ES
GCF vs WCE 19:20MS
Sun, 02 AugTimes shown AEST
PTA vs STK 13:10Adelaide Oval
ESS vs WBU 15:20ES
FRE vs GWS 16:40Domain Stadium
View All Fixtures
Round 19
Fri, 07 AugTimes shown AEST
ADE vs RIC 19:50Adelaide Oval
Sat, 08 AugTimes shown AEST
COL vs CAR 13:45MCG
WBU vs PTA 14:10ES
BRI vs GCF 16:35G
GEE vs SYD 19:20SS
WCE vs HAW 19:40Domain Stadium
Sun, 09 AugTimes shown AEST
MEL vs NTH 13:10MCG
GWS vs ESS 15:20Spotless Stadium
STK vs FRE 16:40ES
View All Fixtures
Round 20
Fri, 14 AugTimes shown AEST
SYD vs COL 19:50SCG
Sat, 15 AugTimes shown AEST
ESS vs ADE 13:45ES
NTH vs STK 14:10BA
PTA vs GWS 16:35Adelaide Oval
GEE vs HAW 19:20MCG
BRI vs CAR 19:20G
Sun, 16 AugTimes shown AEST
RIC vs GCF 13:10MCG
WBU vs MEL 15:20ES
FRE vs WCE 16:40Domain Stadium
View All Fixtures
Round 21
Fri, 21 AugTimes shown AEST
HAW vs PTA 19:50ES
Sat, 22 AugTimes shown AEST
COL vs RIC 13:45MCG
GWS vs SYD 14:10Spotless Stadium
GCF vs ESS 16:35MS
STK vs GEE 19:20ES
ADE vs BRI 19:40Adelaide Oval
Sun, 23 AugTimes shown AEST
NTH vs FRE 13:10ES
CAR vs MEL 15:20MCG
WCE vs WBU 16:40Domain Stadium
View All Fixtures
Round 22
Fri, 28 AugTimes shown AEST
GEE vs COL 19:50MCG
Sat, 29 AugTimes shown AEST
GWS vs CAR 13:45Spotless Stadium
HAW vs BRI 14:10AS
NTH vs WBU 16:35ES
ESS vs RIC 19:20MCG
GCF vs PTA 19:20MS
Sun, 30 AugTimes shown AEST
ADE vs WCE 13:10Adelaide Oval
STK vs SYD 15:20ES
FRE vs MEL 16:40Domain Stadium
View All Fixtures
Round 23
Fri, 04 SepTimes shown AEST
COL vs ESS 00:00MCG
RIC vs NTH 00:00ES
HAW vs CAR 00:00MCG
GEE vs ADE 00:00SS
SYD vs GCF 00:00SCG
MEL vs GWS 00:00ES
BRI vs WBU 00:00G
PTA vs FRE 00:30Adelaide Oval
WCE vs STK 02:00Domain Stadium
View All Fixtures
AFL 2015
Overall standings
Team P W L D % Pts
Fremantle 9 9 0 0 151.61 36
West Coast Eagles 9 7 2 0 161.19 28
Sydney Swans 9 7 2 0 134.49 28
Collingwood 9 6 3 0 128.24 24
GWS Giants 9 6 3 0 110.26 24
Hawthorn 9 5 4 0 151.26 20
Adelaide Crows 9 5 4 0 113.37 20
Richmond 9 5 4 0 108.86 20
View all
 
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