AFL ANTI-DOPING TRIBUNAL THURSDAY, 18 DECEMBER 2014 DAY TWO (TRANSCRIPT-IN-CONFIDENCE) - - - - - CHAIRMAN: 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 32 players. MR S. NORTON on behalf of Mr and Mr - - - - - 1 CHAIRMAN: Good morning, everyone. Mr Holmes and Mr Knowles, 2 I would just like to say, and I think I speak for everyone 3 here, that we are just so shocked and saddened by the 4 tragic death of your colleague Katrina Dawson. We can 5 understand how difficult it is for members of the New 6 South Wales Bar in these awful circumstances, and of 7 course it's not only a situation where she tragically lost 8 her life but two other members of the Bar were hostages as 9 well. So we express our condolences and support to you at 10 this very difficult time. I suggest that before we start 11 we have a moment's silence as a mark of respect for those 12 who lost their lives. 13 MR HOLMES: Mr Jones, can I thank you. The connections and the 14 thoughts have been overwhelming us over the last few days, 15 and we appreciate that. 16 CHAIRMAN: Yes. It's very difficult, and you and Mr Knowles 17 have a job to do, and you'll do it, but no-one wants to 18 have to do it in circumstances like this and it's probably 19 particularly difficult for you because I understand she 20 was a member of the commercial bar or practised in that 21 area. So you probably had a lot of contact with her. 22 MR HOLMES: My son - there were family connections, not 23 professional connections, which makes it even more - have 24 a greater impact. 25 CHAIRMAN: Yes, and of course her brother is a senior member of 26 the New South Wales Bar. 27 MR HOLMES: Yes, and we both have professional and personal 28 connections. 29 CHAIRMAN: Yes. Well, we understand. If at any time you feel 30 you need a break, you just let us know. We have a 31 situation where - first of all, perhaps if we deal with .AFL Anti-Doping Tribunal 66 DISCUSSION 18/12/14 (Confidential) 1 the request of Mr Michael Abrahams to have leave to be 2 present on behalf of the Essendon Football Club. Is he 3 here at the moment? He may be outside. Can we have him 4 come in; thanks. 5 Mr Abrahams, we have your email. Before I ask 6 counsel for the other parties to address the Tribunal on 7 any matters they wish to raise, can I just clarify your 8 request to be present on behalf of the club. 9 MR ABRAHAMS: Certainly. 10 CHAIRMAN: Can you assist us as to, if you were granted leave, 11 what role you propose to take in the proceedings. You are 12 putting that the club has an interest in the outcome, and 13 there are a couple of things mentioned. One is the team 14 provision in the Code. Obviously if the players were 15 suspended, those that were still players with Essendon, 16 that would have a pretty substantial effect on the ability 17 of the football club to field a team. 18 I suppose another area is that it may be that as 19 part of our decision we may have to make findings that 20 reflect upon the Essendon Football Club in terms of the 21 way it conducted itself in relation to these matters. But 22 can you assist us as to how you would see your role if you 23 were present on behalf of the club? 24 MR ABRAHAMS: Certainly. My primary role would be - I would be 25 acting as a representative of the club, as a legal 26 representative. As a practical matter, I would expect it 27 would be primarily a monitoring role so the club may be 28 aware of what's taking place in the proceedings and make a 29 decision, if any matters are likely to arise, on which it 30 may want to make a submission, and we would want to have 31 the ability to request that opportunity to make a .AFL Anti-Doping Tribunal 67 DISCUSSION 18/12/14 (Confidential) 1 submission if such an issue arises. 2 As a practical matter, I don't envisage us having 3 a great deal to say or to extend the proceedings or 4 anything like that, but we don't know what will take 5 place, and as a matter of fairness our request is that we 6 be permitted to be present and be aware of what's going 7 on, and I can take those instructions back to the board 8 and chief executive officer of the club and be an active 9 participant insofar as, if there are any matters that 10 arise that we feel we have a need to make a submission on, 11 we can request the opportunity to do that. 12 CHAIRMAN: That's helpful. Thank you. This is a private 13 hearing, which you accept. 14 MR ABRAHAMS: Yes. 15 CHAIRMAN: We have had discussions on Monday with the parties 16 in relation to the question of confidentiality and trying 17 to ensure that the proceedings remain private. 18 MR ABRAHAMS: Yes. 19 CHAIRMAN: Each counsel on behalf of the legal practitioners 20 involved gave an undertaking to the Tribunal that the 21 information that's both evidence and documents that is put 22 before the Tribunal will only be used for the purposes of 23 the proceedings and, to the extent that information has to 24 be revealed to other people for the purposes of the 25 conduct of the proceedings, that best endeavours will be 26 used to ensure that that information is protected, that is 27 that it remains confidential. Would you be prepared to 28 give that undertaking if you were permitted to be present? 29 MR ABRAHAMS: I would certainly be prepared to give the 30 undertaking with regard to confidentiality. With regard 31 to an undertaking in terms of the use of documents, .AFL Anti-Doping Tribunal 68 DISCUSSION 18/12/14 (Confidential) 1 I would have to give some consideration to that because, 2 as you would be aware, there are a number of legal issues 3 in which the club is involved. There is a lot of 4 information out there that the club already has and 5 I wouldn't want to - - - 6 CHAIRMAN: Clearly there's a lot of material here that has come 7 from the records of the Essendon Football Club. Clearly 8 the club, for example, is well aware of sensitive 9 information relating to the players - - - 10 MR ABRAHAMS: Yes. 11 CHAIRMAN: That we wish to protect. So the club is aware of 12 that, and I'm sure the club is aware of the importance of 13 ensuring the confidentiality of that sensitive material in 14 terms of the way in which it acts. 15 MR ABRAHAMS: Absolutely. 16 CHAIRMAN: Any undertaking, as I see it, can't relate to 17 documents that are already in possession which you may 18 need to use for other purposes. What we are talking about 19 is information that is gained through the proceedings 20 which is information that you don't otherwise have. 21 MR ABRAHAMS: In principle I don't see any difficulties with 22 that. I would like to document that and give that some 23 consideration. But in principle I don't have any 24 objection. 25 CHAIRMAN: All right. I think I need now to ask the parties as 26 to - essentially your interests and the interests of the 27 players coincide, don't they? 28 MR ABRAHAMS: I would suspect so. 29 CHAIRMAN: In the sense that you both want a situation where 30 there is no violation. 31 MR ABRAHAMS: Absolutely. .AFL Anti-Doping Tribunal 69 DISCUSSION 18/12/14 (Confidential) 1 CHAIRMAN: Correct? 2 MR ABRAHAMS: Correct. 3 CHAIRMAN: Mr Gleeson, what would you like to say about the 4 application of Mr Abrahams? 5 MR GLEESON: Mr Chairman, the AFL has no objection to a 6 representative of the Essendon Football Club being present 7 to observe and, if necessary, to make a contribution to 8 the proceedings. 9 CHAIRMAN: Mr Holmes? 10 MR HOLMES: The CEO objects to the application. Do you want to 11 hear the objection or do you want to go through the 12 parties to see the position? 13 CHAIRMAN: No, please proceed with your objection. 14 MR HOLMES: All right. The parties to an infraction notice, as 15 is clear in clause 13 of the AFL Code, are the AFL and the 16 person who is alleged to have committed the infraction. 17 The question of the club is in a different 18 position. The club is dealt with in clause 20(2) of the 19 Code, and the Code contemplates a different stage and a 20 different forum for the club to have the opportunity to 21 present its case in respect of the way it will be 22 consequentially involved following an adverse finding of 23 an infraction. 24 So if you go to clause 20(2) the matter - where 25 one or more players from a club has been notified the club 26 shall be subject to target testing.