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Shane Charter who ASADA would like to appear as a witness before the AFL tribunal. Source: News Corp Australia
AUSTRALIA’S peak anti-doping body has failed in its 11th hour bid to secure the testimony of two reluctant witnesses, throwing into doubt its prosecution of 34 current and former Essendon footballers and sports scientist Stephen Dank.
Victorian Supreme Court Justice Clyde Croft this morning refused an application by ASADA to subpoena drug importer Shane Charter and pharmacist Nima Alavi to appear before an AFL tribunal specially convened to hear the high-stakes case.
The decision leaves ASADA without sworn evidence or testimony from its two most important witnesses. It also deprives the players any opportunity to test the veracity of documents and unsworn statements provided by Mr Charter and Mr Alavi throughout the two-year investigation into Essendon’s 2012 season supplements regime.
The case is scheduled to begin on Monday.
ASADA has indicated it will push ahead with its case despite the setback. “The case can be opened next week and commence whether they will be subpoenaed or not,’’ counsel for ASADA Dan Star told the Supreme Court yesterday. “The case will go on.’’
However, the refusal of Mr Charter and Mr Alavi to sign sworn witness statements or appear as witnesses will substantially weaken an already circumstantial case.
Although the AFL tribunal is not a court of law and is not required to adhere to strict rules of evidence, the principles of natural justice apply. Less weight is likely to be placed on material provided by witnesses who refuse to subject themselves to cross examination.
Lawyers for the players will meet today to discuss the implications of Justice Croft’s decision. It is expected the players will make no objection to ASADA opening its case but reserve their right to make a no-case submission if ASADA cannot produce sufficient evidence to support its allegations.
The AFL tribunal, which will be conducted behind closed doors to preserve the confidentiality of the 34 players, will be heard before a three man panel chaired by David Jones, a retired Victorian County Court judge.
The ASADA case, as outlined to the Supreme Court, is that Mr Charter procured the raw materials for a banned peptide, Thymosin Beta-4, from a Chinese manufacturer in late 2011 and provided them to Mr Alavi, the owner of the Como Compounding Pharmacy in Toorak.
ASADA alleges that Mr Alavi compounded the peptides into injectable form and provided them to Mr Dank, who was employed at the time as Essendon’s sports scientist. The ASADA case is that Mr Dank injected 34 players with the peptide.
To prove its case, ASADA must now rely on documents and answers provided by Mr Charter and Mr Alavi in multiple, lengthy interviews conducted by ASADA and AFL investigators over the past two years.
Neither Mr Charter nor Alavi claim to have direct knowledge of any substances that Essendon players were given. If found guilty of taking a banned substance, the players face a mandatory two year ban from football.
Mr Dank, who is facing more than 30 doping charges and potentially, a life ban from all professional sport, has refused to co-operate with ASADA investigators and is expected to take no part in the AFL tribunal hearing. Part of ASADA’s failed application to the Supreme Court was an attempt to secure documents from companies part-owned by Mr Dank.