- In his opening address to the CAS hearing, the AFL’s Queens Counsel Jeff Gleeson said: “The AFL does not have an agenda to secure the acquittal of the players or to have the charges upheld. Hopefully it’s become apparent from our written documentation that we don’t pursue in particular either of those outcomes… We will do what we can to identify what we think are important points, regardless of whether they trend towards acquittal or conviction.”
My Comment: Surely, this was the first time a QC believed that he could play the prosecutor and defending lawyer in the same trial!
What a cop-out. What a disgrace. Surely, in its capacity as the guardian of a drug-free sport and an equal competition, the AFL had a moral responsibility to fight for a conviction of each player if the evidence proved guilt. On the other hand, if there were no evidence that Dank was delivered Thymosin Beta-4, the AFL had a moral responsibility to fight for acquittal.
Gleeson’s following statements proved that he was talking absolute nonsense. Clearly, he sought a guilty finding.
2. The AFL / Gleeson had access to all the evidence. Gleeson knew that there was no evidence that Dank took delivery of Thymosin Beta-4 and he knew that there was no evidence that each of the 34 players was administered Thymosin Beta-4. He also said: “If [when talking about the absence of evidence] that vacuum precludes you from reaching a state of comfortable satisfaction, then that’s the position.”
My Comment: Gleeson knew the evidence vacuum existed and consequently, should have fought for acquittal. But instead, he played the AFL’s PR guru by trying to show the AFL’s alleged neutrality. As it transpires, it was straight out of McLachlan’s playbook at the 5 February 2013 meeting with James Hird, David Evans and Liz Lukin. On that occasion, McLachlan claimed he was helping Hird but then demanded that Hird accept full responsibility for the players being administered prohibited substances. In, incomprehensible stupidity, Hird capitulated, which enabled the AFL to escape scrutiny.
3. If the AFL had any sense of decency, it would have instructed Gleeson to demand an acquittal. But he couldn’t because the AFL had ingratiated itself to Prime Minister Julia Gillard’s Government by suspending James Hird and by fining Essendon $2 million and banning it from the finals’ series in 2013 because it foolishly believed the Australian Crime Commission’s claim that the players had taken banned substances in 2012.
4. To his lasting discredit, Gleeson did not mention that ASADA’s lead investigator Aaron Walker stated at clause 93 of his 15 January 2015 affidavit that there was no evidence that Thymosin of any variety was delivered to Dank [in calendar 2011 or 2012]. Tragically, and arguably unconscionably, he raised some nonsense issues (lies) that would have helped convict the 34 players viz:
i. Gleeson said (page 57 of the CAS hearing transcript): “That’s a difficult piece of evidence because one would think that, once the light bulb had gone off, when DelVecchio told him, the light bulb would have gone on, and it would have stayed on, and it wouldn’t have gone off again.” As it transpired, Gleeson ignored the evidence – text and interview – that Del Vecchio never mentioned Thymosin Beta-4 with Dank. Hence, it was incomprehensible and unconscionable for Gleeson to imply that Del Vecchio had warned Dank about Thymosin Beta-4, and hence, the “light bulb would have gone on.”
ii. Gleeson said: “We don’t know, if there had been faithful recording by Dank, what it would have recorded. We don’t quarrel with Mr Young’s description of him as a rogue and a person who is quite prepared to be dishonest when it suits him.”
My Comment: Gleeson’s comment made no sense. Res ipsa loquitur, Gleeson was claiming that without any evidence, that Dank’s sketchy records would have proved more reliable than Como Compounding Pharmaceutical’s comprehensive records and ASADA’s response to my FOI (20-4) request. Dank’s records were irrelevant. After receiving hundreds of pages of Nina Alavi’s Como Compounding Pharmaceutical’s stock, supply, delivery and invoice records, ASADA through Walker’s 15 January 2015 affidavit accepted that there was no evidence that either Dank or Essendon received Thymosin Beta-4. Even the village idiot on the Binet scale would have known that if you didn’t take possession of Thymosin Beta-4, you couldn’t administer it.
Gleeson’s claim that “we don’t quarrel with Mr Young’s description of him as a rogue and a person who is quite prepared to be dishonest when it suits him,” suggests that Gleeson missed Law 101. Dank was found not guilty by the AFL Tribunal and WADA did not appeal the verdict. Furthermore, Dank wasn’t asked to appear in the Court of Arbitration for Sport hearing. Unconscionably, the CAS panel, WADA and Gleeson denigrated Dank and implied he was guilty during the hearing without him being able to defend himself or challenge their allegations. It’s hard to imagine a more unjust process.
iii. Gleeson said: “We don’t think you’ll have great difficulty in concluding that there were a desire and intent by Dank to inject the players with a Thymosin Beta-4. That’s not the difficult part of the case. There’s a lot of evidence that suggests that it was Thymosin Beta-4.”
My Comment: This was a repugnant and shameful claim by Gleeson. It’s irrefutable that he knew that Stephen Dank was found NOT GUILTY by the AFL Tribunal of administering or attempting to administer Thymosin Beta-4 to the players and NOT GUILTY of assisting, encouraging, aiding, abetting or covering up administration of Thymosin Beta-4. As Neither the AFL nor WADA nor ASADA appealed the NOT GUILTY verdict, the AFL Tribunal’s ruling on Dank, is set in concrete forever. It was abhorrent for Gleeson to claim that “there’s a lot of evidence that suggests that it was Thymosin Beta-4”. There isn’t a skerrick of evidence that Dank ever took possession of Thymosin Beta-4.
Gleeson also knew that WADA misrepresented the evidence. There was no evidence that Dank had a desire and intent to inject the players with a Thymosin Beta-4. In 6581 text communications, Dank mentioned the word Thymosin Beta-4 once. And he retracted it the next day. Dank never discussed the benefits of Thymosin Beta-4 once. And let’s not forget that Gleeson had access to the evidence that proved that ASADA breached Section 317 of the Crimes Act by changing Thymosin to Thymosin Beta-4 on 51 occasions.
Gleeson: “In the end, what you take from the text messages, is that, he seemed to believe quite passionately in the powers ofThymosinBeta-4, and it might be an inference you draw that, if he received what he thought was Thymosin Beta-4, he had vials of it, he thought it was terrific, maybe an inference that that is what he put in those syringes. But he is an unpredictable and unsatisfactory person in many respects.”
My Comment: Gleeson previously claimed that Dank took possession of Thymosin Beta-4 but here he has back-peddled by saying “IF” he received it. “If” has as much credibility in this context as it does in the expression, “IF my aunty had testicles, she would be my uncle.” At, no time did Dank ever think he had received Thymosin Beta-4. Furthermore, it was abhorrent for Gleeson to join two unrelated clauses in the one sentence. Viz, there was no evidence that Dank had vials of it [Thymosin Beta-4.]
Gleeson’s comment “But he [Dank] is an unpredictable and unsatisfactory person in many respects”, was the pot calling the kettle black.
It was unconscionable for Gleeson to state that ‘in the end, what you take from the text messages, is that he seemed to believe quite passionately in the powers ofThymosinBeta-4’. In 6581 text communications, Dank mentioned the word Thymosin Beta-4 once and never stated that it was terrific. And he retracted his request for Thymosin Beta-4 the next day. Dank never discussed the benefits of Thymosin Beta-4 even once. Gleeson should have been ashamed of himself for making such unsubstantiated allegations. Allegations that helped convict the players.