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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.

2014 Home and Away

Round 1
Fri, 14 MarTimes shown AEDT
COL 46 vs FRE 116 Report Stats
Sat, 15 MarTimes shown AEDT
GWS 99 vs SYD 67 Report Report Stats
GCF 87 vs RIC 69 Report Stats
Sun, 16 MarTimes shown AEDT
CAR 87 vs PTA 120 Report Stats
Thu, 20 MarTimes shown AEDT
GEE 119 vs ADE 81 Report Stats
Fri, 21 MarTimes shown AEDT
NTH 60 vs ESS 99 Report Stats
Sat, 22 MarTimes shown AEDT
HAW 139 vs BRI 91 Report Stats
STK 68 vs MEL 51 Report Stats
Sun, 23 MarTimes shown AEDT
WCE 134 vs WBU 69 Report Stats
View All Fixtures
Round 2
Thu, 27 MarTimes shown AEDT
RIC 98 vs CAR 86 Report Stats
Fri, 28 MarTimes shown AEDT
ESS 86 vs HAW 90 Report Stats
Sat, 29 MarTimes shown AEDT
STK 95 vs GWS 88 Stats
PTA 127 vs ADE 73 Report Stats
FRE 87 vs GCF 39 Report Stats
SYD 69 vs COL 89 Report Stats
Sun, 30 MarTimes shown AEDT
BRI 68 vs GEE 93 Stats
MEL 30 vs WCE 123 Report Stats
WBU 54 vs NTH 83 Report Stats
View All Fixtures
Round 3
Fri, 04 AprTimes shown AEDT
HAW 137 vs FRE 79 Report Stats
Sat, 05 AprTimes shown AEDT
WBU 100 vs RIC 98 Report Stats
ADE 71 vs SYD 134 Report Stats
GCF 114 vs BRI 61 Stats
WCE 83 vs STK 58 Report Stats
COL 76 vs GEE 87 Report Stats
Sun, 06 AprTimes shown AEST
GWS 79 vs MEL 47 Report Stats
NTH 97 vs PTA 90 Report Stats
ESS 138 vs CAR 57 Report Stats
View All Fixtures
Round 4
Fri, 11 AprTimes shown AEST
RIC 72 vs COL 110 Report Stats
Sat, 12 AprTimes shown AEST
CAR 58 vs MEL 81 Report Stats
PTA 159 vs BRI 46 Report Stats
GWS 83 vs WBU 110 Report Stats
GEE 107 vs WCE 32 Report Stats
GCF 49 vs HAW 148 Report Stats
Sun, 13 AprTimes shown AEST
SYD 48 vs NTH 91 Report Stats
STK 50 vs ADE 136 Report Stats
FRE 113 vs ESS 60 Report Stats
View All Fixtures
Round 5
Thu, 17 AprTimes shown AEST
BRI 63 vs RIC 106 Report Stats
Sat, 19 AprTimes shown AEST
COL 93 vs NTH 58 Report Stats
SYD 92 vs FRE 75 Report Stats
WCE 56 vs PTA 70 Report Stats
ESS 65 vs STK 81 Report Stats
Sun, 20 AprTimes shown AEST
ADE 137 vs GWS 72 Report Stats
MEL 78 vs GCF 86 Report Stats
WBU 91 vs CAR 119 Report Stats
Mon, 21 AprTimes shown AEST
GEE 106 vs HAW 87 Report Stats
View All Fixtures
Round 6
Fri, 25 AprTimes shown AEST
COL 83 vs ESS 60 Report Stats
STK 79 vs BRI 82 Report Stats
FRE 61 vs NTH 74 Report Stats
Sat, 26 AprTimes shown AEST
GCF 134 vs GWS 94 Report Stats
CAR 92 vs WCE 89 Report Stats
MEL 38 vs SYD 69 Report Stats
Sun, 27 AprTimes shown AEST
WBU 83 vs ADE 92 Report Stats
RIC 52 vs HAW 118 Report Stats
PTA 107 vs GEE 67 Report Stats
View All Fixtures
Round 7
Fri, 02 MayTimes shown AEST
CAR 70 vs COL 104 Report Stats
Sat, 03 MayTimes shown AEST
HAW 175 vs STK 30 Report Stats
GWS 97 vs PTA 132 Report Stats
ADE 67 vs MEL 70 Report Stats
BRI 44 vs SYD 123 Stats
ESS 73 vs WBU 65 Report Stats
Sun, 04 MayTimes shown AEST
NTH 77 vs GCF 120 Report Stats
GEE 81 vs RIC 76 Report Stats
WCE 54 vs FRE 73 Report Stats
View All Fixtures
Round 8
Fri, 09 MayTimes shown AEST
SYD 107 vs HAW 88 Report Stats
Sat, 10 MayTimes shown AEST
PTA 94 vs FRE 76 Report Stats
BRI 57 vs ESS 65 Report Stats
MEL 83 vs WBU 99 Report Stats
Sun, 11 MayTimes shown AEST
WCE 188 vs GWS 77 Report Stats
Mon, 12 MayTimes shown AEST
STK 69 vs CAR 101 Report Stats
View All Fixtures
Round 9
Thu, 15 MayTimes shown AEST
ADE 76 vs COL 55 Report Stats
Fri, 16 MayTimes shown AEST
ESS 64 vs SYD 114 Report Stats
Sat, 17 MayTimes shown AEST
RIC 74 vs MEL 91 Report Stats
NTH 125 vs BRI 38 Report Stats
FRE 96 vs GEE 64 Report Stats
Sun, 18 MayTimes shown AEST
STK 87 vs GCF 125 Report Stats
View All Fixtures
Round 10
Fri, 23 MayTimes shown AEST
GEE 111 vs NTH 91 Report Stats
Sat, 24 MayTimes shown AEST
GWS 41 vs RIC 154 Report Stats
COL 109 vs WCE 101 Report Stats
PTA 100 vs HAW 86 Report Stats
Sun, 25 MayTimes shown AEST
GCF 119 vs WBU 74 Report Stats
CAR 81 vs ADE 76 Report Stats
View All Fixtures
Round 11
Thu, 29 MayTimes shown AEST
SYD 148 vs GEE 38 Report Stats
Fri, 30 MayTimes shown AEST
STK 54 vs COL 140 Report Stats
Sat, 31 MayTimes shown AEST
MEL 75 vs PTA 95 Report Stats
BRI 98 vs CAR 91 Report Stats
ESS 104 vs RIC 54 Report Stats
Sun, 01 JunTimes shown AEST
ADE 109 vs GCF 77 Report Stats
WBU 51 vs FRE 89 Report Stats
HAW 94 vs GWS 87 Report Stats
WCE 44 vs NTH 82 Report Stats
View All Fixtures
Round 12
Fri, 06 JunTimes shown AEST
GEE 107 vs CAR 102 Report Stats
Sat, 07 JunTimes shown AEST
HAW 123 vs WCE 79 Report Stats
PTA 129 vs STK 59 Report Stats
WBU 87 vs BRI 95 Report Stats
GWS 66 vs ESS 81 Report Stats
Sun, 08 JunTimes shown AEST
GCF 74 vs SYD 109 Report Stats
FRE 90 vs ADE 50 Report Stats
NTH 116 vs RIC 88 Report Stats
Mon, 09 JunTimes shown AEST
MEL 28 vs COL 61 Report Stats
View All Fixtures
Round 13
Fri, 13 JunTimes shown AEST
CAR 90 vs HAW 118 Report Stats
Sat, 14 JunTimes shown AEST
RIC 85 vs FRE 105 Report Stats
SYD 98 vs PTA 94 Report Stats
WCE 103 vs GCF 100 Report Stats
BRI 80 vs GWS 125 Report Stats
ADE 109 vs NTH 73 Report Stats
Sun, 15 JunTimes shown AEST
GEE 133 vs STK 37 Report Stats
COL 98 vs WBU 106 Report Stats
ESS 77 vs MEL 78 Report Stats
View All Fixtures
Round 14
Fri, 20 JunTimes shown AEST
RIC 51 vs SYD 62 Report Stats
Sat, 21 JunTimes shown AEST
PTA 128 vs WBU 56 Report Stats
HAW 115 vs COL 86 Report Stats
GCF 118 vs GEE 78 Report Stats
FRE 105 vs BRI 22 Report Stats
ESS 101 vs ADE 92 Report Stats
Sun, 22 JunTimes shown AEST
GWS 100 vs CAR 92 Report Stats
STK 70 vs WCE 103 Report Stats
MEL 66 vs NTH 107 Report Stats
View All Fixtures
Round 15
Fri, 27 JunTimes shown AEST
GEE 89 vs ESS 80 Report Stats
Sat, 28 JunTimes shown AEST
HAW 116 vs GCF 63 Report Stats
STK 73 vs RIC 117 Report Stats
FRE 88 vs WCE 81 Report Stats
SYD 106 vs GWS 60 Stats
BRI 70 vs NTH 66 Report Stats
Sun, 29 JunTimes shown AEST
WBU 91 vs MEL 85 Report Stats
ADE 99 vs PTA 76 Report Stats
COL 91 vs CAR 76 Report Stats
View All Fixtures
Round 16
Fri, 04 JulTimes shown AEST
NTH 108 vs HAW 88 Report Stats
Sat, 05 JulTimes shown AEST
RIC 79 vs BRI 54 Stats
GWS 72 vs ADE 140 Report Stats
GCF 80 vs COL 75 Report Stats
MEL 34 vs FRE 97 Report Stats
PTA 60 vs ESS 62 Report Stats
Sun, 06 JulTimes shown AEST
CAR 151 vs STK 66 Report Stats
WCE 51 vs SYD 79 Report Stats
GEE 69 vs WBU 56 Report Stats
View All Fixtures
Round 17
Fri, 11 JulTimes shown AEST
ADE 92 vs HAW 104 Report Stats
Sat, 12 JulTimes shown AEST
MEL 36 vs GEE 102 Report Stats
NTH 92 vs STK 33 Report Stats
WBU 94 vs GCF 66 Report Stats
BRI 64 vs WCE 76 Report Stats
SYD 122 vs CAR 51 Report Stats
Sun, 13 JulTimes shown AEST
RIC 126 vs PTA 106 Report Stats
ESS 103 vs COL 39 Report Stats
FRE 136 vs GWS 60 Report Stats
View All Fixtures
Round 18
Fri, 18 JulTimes shown AEST
CAR 109 vs NTH 86 Report Stats
Sat, 19 JulTimes shown AEST
STK 118 vs FRE 60 Report Stats
GWS 87 vs GEE 94 Report Stats
Sun, 20 JulTimes shown AEST
PTA 72 vs MEL 69 Report Stats
WBU 94 vs ESS 101 Report Stats
Fri, 25 JulTimes shown AEST
WCE 42 vs RIC 59 Report Stats
Sat, 26 JulTimes shown AEST
BRI 110 vs GCF 56 Report Stats
HAW 104 vs SYD 94 Report Stats
Sun, 27 JulTimes shown AEST
COL 82 vs ADE 98 Report Stats
View All Fixtures
Round 19
Thu, 31 JulTimes shown AEST
FRE 83 vs CAR 78 Report Stats
Fri, 01 AugTimes shown AEST
SYD 79 vs ESS 57 Report Stats
Sat, 02 AugTimes shown AEST
ADE 105 vs WCE 136 Report Stats
RIC 89 vs GWS 62 Report Stats
GCF 117 vs STK 64 Report Stats
NTH 79 vs GEE 111 Report Stats
Sun, 03 AugTimes shown AEST
MEL 51 vs BRI 74 Stats
HAW 107 vs WBU 45 Report Stats
COL 76 vs PTA 70 Report Stats
View All Fixtures
Round 20
Fri, 08 AugTimes shown AEST
RIC 95 vs ESS 77 Report Stats
Sat, 09 AugTimes shown AEST
GWS 51 vs NTH 126 Report Stats
CAR 97 vs GCF 58 Report Stats
HAW 115 vs MEL 65 Report Stats
PTA 58 vs SYD 84 Report Stats
GEE 81 vs FRE 79 Report Stats
Sun, 10 AugTimes shown AEST
BRI 63 vs ADE 168 Report Stats
STK 99 vs WBU 122 Report Stats
WCE 126 vs COL 66 Report Stats
View All Fixtures
Round 21
Fri, 15 AugTimes shown AEST
CAR 76 vs GEE 82 Report Stats
Sat, 16 AugTimes shown AEST
SYD 127 vs STK 56 Stats
GCF 47 vs PTA 56 Report Stats
ESS 77 vs WCE 74 Report Stats
COL 56 vs BRI 123 Report Stats
ADE 69 vs RIC 79 Report Stats
Sun, 17 AugTimes shown AEST
NTH 111 vs WBU 61 Report Stats
MEL 34 vs GWS 98 Report Stats
FRE 110 vs HAW 91 Report Stats
View All Fixtures
Round 22
Fri, 22 AugTimes shown AEST
PTA 140 vs CAR 37 Report Stats
Sat, 23 AugTimes shown AEST
NTH 101 vs ADE 94 Report Stats
ESS 108 vs GCF 89 Report Stats
GWS 67 vs COL 75 Report Stats
WCE 119 vs MEL 53 Report Stats
HAW 94 vs GEE 71 Report Stats
Sun, 24 AugTimes shown AEST
BRI 48 vs FRE 106 Report Stats
WBU 67 vs SYD 130 Report Stats
RIC 98 vs STK 72 Report Stats
View All Fixtures
Round 23
Fri, 29 AugTimes shown AEST
COL 56 vs HAW 121 Stats
Sat, 30 AugTimes shown AEST
CAR 90 vs ESS 90 Stats
FRE 105 vs PTA 97 Stats
SYD 65 vs RIC 68 Stats
NTH 123 vs MEL 93 Stats
GEE 143 vs BRI 81 Stats
Sun, 31 AugTimes shown AEST
GCF 99 vs WCE 151 Stats
ADE 141 vs STK 62 Stats
WBU 109 vs GWS 115 Stats
View All Fixtures
AFL Finals Round 1
Fri, 05 SepTimes shown AEST
HAW 104 vs GEE 68 Report Stats
Sat, 06 SepTimes shown AEST
SYD 93 vs FRE 69 Stats
NTH 93 vs ESS 81 Report Stats
Sun, 07 SepTimes shown AEST
PTA 132 vs RIC 75 Report Stats
View All Fixtures
AFL Finals Round 2
Fri, 12 SepTimes shown AEST
GEE 92 vs NTH 98 Stats
Sat, 13 SepTimes shown AEST
FRE 83 vs PTA 105 Stats
View All Fixtures
AFL Finals Round 3
Fri, 19 SepTimes shown AEST
SYD 136 vs NTH 65 Report Stats
Sat, 20 SepTimes shown AEST
HAW 97 vs PTA 94 Report Stats
View All Fixtures
AFL Finals Round 4
Sat, 27 SepTimes shown AEST
SYD 74 vs HAW 137 Report Stats
View All Fixtures
AFL Home and Away
Overall standings
Team P W L D % Pts
Sydney Swans 22 17 5 0 142.88 68
Hawthorn 22 17 5 0 140.78 68
Geelong Cats 22 17 5 0 113.77 68
Fremantle 22 16 6 0 130.40 64
Port Adelaide 22 14 8 0 129.92 56
North Melbourne 22 14 8 0 117.04 56
Essendon 22 12 9 1 106.34 50
Richmond 22 12 10 0 105.77 48
View all
 
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