AFL ANTI-DOPING TRIBUNAL DAY SIXTEEN CHAIRMAN ... - …

AFL ANTI-DOPING TRIBUNALTUESDAY, 17 FEBRUARY 2015

DAY SIXTEEN(TRANSCRIPT-IN-CONFIDENCE)

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CHAIRMAN: MR DAVID JONESMR JOHN NIXONMR WAYNE HENWOOD

COUNSEL ASSISTING: MR JUSTIN HOOPER

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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 N. CLELLAND QC with MR D. HALLOWES appeared on behalf of

Mr and Mr

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CHAIRMAN: Mr Gleeson, we had a message from you by carrierpigeon that you didn't feel the need to elaborate on yourwritten submission.

MR GLEESON: That's right, sir.CHAIRMAN: At this point anyway.MR GLEESON: I have just been handed a piece of paper that

might change that in due course but not at the moment.Mr Grace has handed me an eight page written reply to oursubmissions.

CHAIRMAN: This is a reply to your submissions.MR GLEESON: Yes. It might be that I want to say something

about that, but that can wait.CHAIRMAN: You may want to defend yourself.MR GLEESON: Yes, I probably will.CHAIRMAN: Mr Grace, when you are ready.MR GRACE: Thank you, sir. I provided shortly before you came

on to the bench, members of the Tribunal, an outline ofour written reply to the AFL's submissions. I just wantedto take you through that.

CHAIRMAN: Perhaps we better just formally mark that whilst wehave it. PG-32.

#EXHIBIT PG-32 - Written reply to AFL submissions on behalf ofthe 32 players.

CHAIRMAN: Do you want to deal with that first?MR GRACE: Yes, if I could, because it goes to the threshold

issue of proof. Can I say at the outset that as you wouldappreciate - - -

CHAIRMAN: We have to be a bit careful about this. Remember,Mr Grace, you would be very familiar with the fundamentalinstruction to judges about defining "beyond reasonabledoubt". So we just need to be a bit careful that we don't

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over-intellectualise this concept of the standard of proofthat's involved here. I'm not saying we don't takeaccount of the matters that are being put before us, butwe just have to be careful, I think, that we don'tover-intellectualise it.

MR GRACE: Yes, I appreciate that. The phrase "comfortablesatisfaction" - - -

CHAIRMAN: Means what it says, like beyond reasonable doubt.MR GRACE: Means what it says in natural English and one

doesn't need to go into any further detail about that.CHAIRMAN: Mr Clelland is smiling because I'm sure he has been

in cases where judges have attempted to define it.MR CLELLAND: He is also putting a line through the very first

line of his submissions.MR GRACE: These submissions of course further headline and

outline the written submissions that we filed last week.As you would appreciate, those written submissions arevery lengthy and detailed. I don't intend to rehearsethem. I will at times during this morning refer you to anumber of paragraphs. But, other than that, I'm not goingto read them.

CHAIRMAN: We have read them and obviously we will be readingthem further. They are very comprehensive.

MR GRACE: Yes. The outline that we have filed this morning inPG-32 attempts to answer some of the issues raised in theAFL written submissions that we received on Saturdaymorning last. These extra submissions that we have fileddeal with firstly the issue of the sanction not beingrelevant to the fixing of the standard of proof. We setout the reasons there and you will be able to read that.

Also I wanted to highlight that in Briginshaw

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itself the term "comfortable satisfaction" was only foundin the judgment of Justice Rich. The AFL code 15.1, thearticle in the Code, is actually derived from the WADAcode.

CHAIRMAN: WADA decided to use that as - - -MR GRACE: Well, we don't know.CHAIRMAN: It was in the Code. We know it was in the Code.MR GRACE: But it's a stretch to suggest that the reason that

phrase is in the AFL Code is because of a consciousdecision to adopt what Justice Rich had said in Briginshawback in 1938.

So we make that point in the submission becauseif you look at paragraph 7, for instance, Justice Dixon inBriginshaw uses the phrase "reasonable satisfaction" andcites Wigmore on Evidence and discusses the concept ofproof being one of actual persuasion. "When the lawrequires proof of any fact, the tribunal must feel anactual persuasion of its occurrence or existence before itcan be found."

You might say that's now trite. His judgment, aswas I think universally accepted most through if not allof his judgments throughout his judicial career, were theepitome of logic and close reasoning and common sense andwe really commend what he had to say in his judgment forthe Tribunal, along with of course what the other membersof the court said.

The other aspect is that we must not lose sightof the fact, and I think this is common ground, I justwanted to emphasise it, that the standard of proof underthe AFL policy is different to the civil standard and it'sdifferent to the criminal standard. It is not the balance

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of probabilities. It is not beyond reasonable doubt.It's between.

CHAIRMAN: It is interesting that the AFL in relation to otherdisciplinary matters, e.g. reportable offences, followsthe balance of probability standard.

MR GRACE: Yes.CHAIRMAN: But expressly in relation to disciplinary matters,

both in the Rules themselves as well as what's in theCode, moved to comfortable satisfaction.

MR GRACE: Yes, so we want to make that point. Also you willnote from the reference in article 15.1 of the AFL policyto the seriousness of the allegation as being an importantmatter which we say imputes at least those mattersreferred to by Justice Dixon in Briginshaw.

CHAIRMAN: That's the three matters which are referred to byMr Gleeson and he raised some doubts as to whether theyshould apply here. You say they should.

MR GRACE: Yes. It may be that the unlikelihood issue aboutthe unlikelihood that someone would commit fraud, forexample, I think was one of the examples used, is not aptperhaps in the players' situation. But certainly theramifications on the players, the seriousness of anyfinding of guilt of an anti-doping rule violation issomething of great importance in their lives, forget abouttheir careers. Just to give one example, and we set thatout in the submissions at paragraph 11. You may not beaware, but the Australian Olympic Committee has deemedineligible any person who has an anti-doping record.

CHAIRMAN: At all.MR GRACE: Yes. So you couldn't be part of any management of

any Olympic team, for instance, and other organisations

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may well follow suit. Also, of course, the placement onan anti-doping register of findings for life under theASADA Act if there is positive finding is anotherautomatic consequence, and that is not to beunderestimated as having an impact upon a player'ssporting career or general career prospects at some stage,depending on what vocation they may pursue.

The next item we refer to is under the heading"Improper basis for the drawing of adverse inferences".You will see that under the paragraph headed C and insubmissions in paragraph 12 and following. We resist thesubmission that we have conducted this proceeding as ifthe infraction notice is a criminal charge laid bythe Crown which is contained in paragraph 34 of the AFLsubmissions.

The acknowledgment of that, we say, has beenevident all the way through. The approach of the playershas been, as we indicated at the directions hearing, andyou will see that in paragraph 14, to approach the matterakin to how a disciplinary tribunal would approach amatter concerning an allegation of professionalmisconduct, and we referred and provided to the Tribunalat a directions hearing the decision of the Court ofAppeal of Victoria in the matter of Towie.

CHAIRMAN: I think I might have made some reference to that inmy ruling in relation to whether the proceedings ought tobe private.

MR GRACE: Yes. In footnote 9 on page 5 of our submissions youwill see reference to the transcript at the directionshearing of 18 November and 1 December at various pagereferences there.

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The issue of evidentiary onus at paragraph 34 ofthe AFL submissions we say is misleading. The standardsof burdens of proof which the policy envisages dependsupon the stage of proceedings. One of the examples wegive is Article 15.2 of the policy in relation to thepresumption where there has been a positive analyticalsample by a WADA accredited laboratory that there arestandards or burdens of proof where there is an attempt bya player to rebut the presumption and then, if it has beenrebutted, then the AFL has to have the burden ofestablishing that the departure from applicable standardsdid not cause the adverse analytical finding.

So that's an example of how the policy itselfcontrasts the different positions and the differentevidentiary burdens and standards.

CHAIRMAN: It crossed my mind in terms of the way this wasbeing put as to whether we were straying into the sort ofarea of what inferences you may draw from a party failingto call a witness. Of course the position is different incivil proceedings to criminal proceedings as far as thoseprinciples are concerned, because it was being put, forexample, "Well, we may be more confident about evidencethat's before us because other evidence that might havebeen available wasn't presented before the Tribunal,therefore we could be more confident about what was putbefore the Tribunal," which is the sort of inference thatcan arise from a situation in a civil proceeding where itcan be put that a defendant, for example, failed to call awitness who you would otherwise expect to be called if thewitness was going to favour their case.

Now, of course no one has actually specifically

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named a witness that could be called in thesecircumstances. It was more looking at a general category,I suppose.

MR GRACE: Yes, and at paragraph 17 we make the point inrelation to the comments made by Mr Gleeson in respect toProfessor Handelsman's evidence.

Can I just give you this example. Let's saythere was a civil case involving a motorcar accident andthe issue was who was the driver of the car who wasresponsible for the accident, and there was anidentification witness who gave evidence that he observeda person that looked similar to the defendant and wasunchallenged in cross-examination in relation to thatparticular evidence, but because it was dark and theopportunity for observation being only a second ortwo - - -

CHAIRMAN: He could have been mistaken.MR GRACE: He could have been mistaken. Now, the defendant

calls no witnesses. You might think, well, he ought tohave given evidence about his whereabouts at the time orcalled an alibi or something of that type of evidence.But the Tribunal has to be satisfied or the court wouldhave to be satisfied on the balance of probabilities thatwhat the identification witness gave evidence about wasacceptable to the relevant burden of proof, and the courtor the Tribunal may find otherwise. They may find, "Look,we are just in a doubt about this. We can't say on thebalance of probabilities that the identification was apositive one sufficient for us to dispense justice."

So that might be an example where the absence ofa witness might not give the type of result. But here in

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this case before you we have Professor Handelsman givingevidence and, in relation to the matters that were thesubject of cross-examination, even Professor Handelsmanhimself recognised that there was just such a dearth ofmaterial in relation to studies on Thymosin Beta-4, if weare looking at the issue of whether it is a bannedsubstance or should be included in S2.5. No witness couldcome to this court, you would think, and give anydifferent evidence to what Professor Handelsman gave.

In relation to us calling Dr Vine, that was inrelation to, as you would appreciate, specific issueswithin his field of expertise that went to the Bio21graphs and analysis and we had that joint hearing, theconcurrent evidence, the hot tub so called. It could notbe said that we didn't place before the Tribunal allpossible relevant evidence that could conceivably addressthe issues that you ultimately have to decide in relationto this issue about Thymosin Beta-4, either whether it'sthe subject of the Bio21 analysis or in relation towhether it's capable of a conclusion that it ought to beincluded in S2.5, or S0 for that matter.

At paragraph 19 we refer to the submission by theAFL that you could effectively draw a Jones v Dunkelinference against the players.

CHAIRMAN: That was the case I was trying to think of.MR GRACE: Yes. Jones v Dunkel and subsequent cases, a most

recent one being the subject of footnote 13, GoddardElliott v Fritsch, which is a decision of Justice Bell inthe Victorian Supreme Court, highlight when adverseinferences can be drawn. But there are three principles:Firstly, there is evidence before the trier of fact on a

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particular issue. Two, the other party does not callevidence on that same issue which is disputed. Three,there is an identifiable witness who can be said to be inthe second party's camp who could shed light on the issuebut was not called to give evidence for some unexplainedreason.

We say the AFL's submissions fail in any way toaccount for the last of these limbs insofar as it relatesto inferences or uses it says can be made of the absenceof a witness giving evidence which contradicts that ofProfessor Handelsman. What witness could we possibly havecalled? It is not like an alibi witness in the motorcaraccident example I gave you. It's not the players. Whatpossible evidence could the players have given other thanwhat they said in their interviews and, on the AFLsubmissions and ASADA submissions, the players in theirinterviews were frank, they were honest, they were openand they made, on ASADA's case and on the AFL's case,great admissions against interest, if their case is to beaccepted.

So what could the players have said that theyhadn't already said and which is relied upon? Whatwitnesses could they have called to rebut anything withintheir province, within their knowledge, within theirability? There was simply nothing. The players, onASADA's case, were conned, they were duped, they weredeceived, they were exploited and any other adjective youwant to throw into the mix. So, in those circumstancesthe players can't come to this court and give evidencethat, "No, I wasn't given Thymosin Beta-4 because XYZ."The players have no idea. The players were the last

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persons, you might think, in this whole saga who were in aposition to give evidence contrary to what has been given.

So the inferences that are sought to be drawneither in relation to witnesses that could challengeProfessor Handelsman or witnesses in the form of theplayers that could challenge any part of the case, we say,are submissions that are misconceived. At paragraph 23 wesay the alleged absence of evidence cannot rationally besaid either to be within the knowledge of the players orwithin the knowledge of an identifiable witness within theplayers' camp. Then we have previously referred to - - -

CHAIRMAN: Yes, that deals with the criminal situation.MR GRACE: Yes, and we are somewhere in between.CHAIRMAN: As far as the players are concerned, I assume what

you are saying and Mr Clelland will say the same, thatthey have been interviewed extensively and they have saideverything they can say about this matter. They werequestioned very thoroughly and of course questioned at atime when things are more likely to be able to beremembered than they might be able to be remembered now,and that essentially their position has been put beforethe Tribunal through these very comprehensive interviews.

MR GRACE: Yes. I'm going to in due course this morning justgo through a summary of those interviews. You willappreciate that we annex to our submissions a summary.But I want to just take you through that because it issignificant in relation to certain of the steps thatMr Holmes identified yesterday.

But if I can now put to one side those writtensubmissions in relation to the AFL's propositions and turnto the two cases of French and Burns.

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CHAIRMAN: That's in Mr Holmes's authorities, I think, isn'tit? Burns is there, and French is number 1. Is this onthis point about whether it's been determined by WADA thatthe substance - - -

MR GRACE: No, that's the case of Williams. I'm going to leavethat to Mr Isles in due course to address you upon. Butthat makes the distinction between the WADA committee andsome private communications. I think by and largeMr Knowles accepted that proposition, although he tried toget around it in some way. But we will come back to that.

CHAIRMAN: He came at it from another direction, Mr Grace.MR GRACE: He did.CHAIRMAN: Very skillfully, I might add.MR GRACE: Yes, he was very skilful. The French case arose out

of a disgraceful series of events arising at the Adelaidetraining facility of the Australian Institute of Sportscycling program. It involved quite a number of cyclists.It resulted in the Australian government appointingretired judge Mr Anderson QC to conduct an inquiry andeventually he produced a report. You will see that'sreferred to in the judgment.

But, concurrently with that investigation, theAIS, Australian Institute of Sport, and Cycling Australiabrought proceedings against various parties involved,including Mr Eadie and Mr Dajka and Mr French. Can I justtake you to the allegations which are contained, and myfriend - I call him my friend still, Mr Holmes; we made upyesterday - - -

CHAIRMAN: It is going to be interesting when you and Mr Holmesare on the same panel.

MR GRACE: We have been many times. In fact, we are on a panel

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at the moment. But Mr Holmes sat at first instance and hemade certain findings. Then there was an appeal byFrench. Mr Holmes found that Mr French had committedeffectively two breaches and there was an appeal byFrench. The breaches, you will see paragraph 6 - sorry,I'm mistaken. There were six breaches found by Mr Holmesat first instance. Two were found not to have beenestablished. The second alleged breach, doping by use ofequine growth hormone, was the subject of a cross-appealby Cycling Australia against the dismissal by Mr Holmes.The eighth breach was not appealed, but the other six wereappealed by French. That included doping by use of aglucocorticosteroid, aiding, abetting, counselling, dopingand so on. You will see it is set out in paragraphs 6 and7 as an explanation.

If we go to paragraph 30, you will see that thereis a description of the background facts. It says thatfrom late September 2003 to 1 December 2003 French residedat the AIS Del Monte and he occupied a particular room.He had moved out on 28 November.

At paragraph 31, "A plastic bucket and a plasticbag were found by the cleaners on 2 December, the dayafter which he was no longer assigned the room." Thebucket had been used to deposit used injectable items andempty vials. On paragraph 32 you will see there were 10to 20 ml injection syringes, 1 ml insulin injectionsyringes, 25-26 gauge needles, 25 gauge butterfly needles,ampules of testis compositum and various other substances.Each of the items had been used.

In paragraph 33, "Also in the bucket there weresome vials, the labels on which were torn in part but the

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notation 'For animal treatment only' was visible," andFrench maintained the vials were not his. If you readthrough the background facts, you will see mention of thenames of cyclists, many of whom have won gold medals atOlympics, World Championships, Commonwealth Games,Australian champions and so on. They are celebrated namesin the sport of cycling who are all involved. They areall involved in this injection type program, although somedenied it.

Then you will see reference in paragraph 37 aboutthe location of where particular injections took place.In 38 you will see, "On one occasion before leaving inJuly for Germany, French said he received an injection ofa product known as Testicomp. He then went to Germany andhe asked Eadie where he could obtain Testicomp, and Eadieshowed him and Shane Kelly where he could buy it.

At paragraph 40 you will see he returned to DelMonte on 13 September 2003 and he freely admitted thatfrom September to December he and two other athletesregularly used his room to inject themselves.

At paragraph 42, under the heading which you willsee just on the bottom of the previous page, "Standard ofproof", there's the reference to Briginshaw. You will seethe second last sentence, "It is further submitted giventhe serious allegations with respect to trafficking andaiding and abetting ...(reads)... The elements of theoffence must be proven to a higher level of satisfactionthan the balance of probabilities."

Then there is a subheading "Testis compositum Nor Testicomp". In paragraph 44, French admitted toinjecting himself with Testicomp. At paragraph 45,

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Dr Barnes, who was an expert witness called, advised that"the information leaflet that accompanied a used packetfound in the bucket indicated that the product containedamongst other ingredients Cortisonacetat Dil. Dr Barnesindicated the substance is a glucocorticosteroid which isprohibited under the anti-doping policy."

Graham Trout was employed by the AustralianSports Drug Testing Laboratory and he gave evidence andyou will see that at paragraph 46 and said that there weresome items in the bucket that contained equine growthhormone, that's EGH, and said that a needle, for instance,was heavily contaminated with EGH and it was concludedthere was no lab evidence that the contents of the vialsdid contain the prohibited substance, Cortisonacetat, thatwould be glucocorticosteroid as described in the leaflet.

Then there is discussion of the Code and there isreference in paragraph 48 to the case of the AOC againstEadie, and Eadie was alleged to have trafficked aprohibited substance by importing it into Australia. Thepackage was destroyed or returned to sender. Accordingly,there were no tests undertaken of it. Justice Cripps, asan arbitrator, said this, and it is quoted in paragraph48, "Beyond knowing that someone in the Customs Servicesaid that the parcel in January 1999 included in ittablets containing APP, that is all that I know about thesubstance. The plinth upon which the case againstMr Eadie rests is the assumption that the court shouldconcluded the untested and unanalysed tablets in factcontained APP."

Justice Cripps went on to say Eadie was not shownto have been untruthful and applied the standard of proof

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identified in Briginshaw to hold that he was not satisfiedthat in January 1999 Eadie imported a prohibited substanceinto Australia.

At paragraph 49 the following was said by thepanel: "It is the submission of the appellant that thefact a label on a container states that the substance inthe container is or contains a prohibited substance...(reads)... It is a further submission of therespondents that the admission of the use of the Testicompwhich lists" - I won't read it out - "as an ingredient isan admission of a breach of the policy and the panelshould find the breach is established. For the reasonsset out below ...(reads)... However, as was held in AOC vEadie, the label by itself is insufficient to establish afinding a statement of fact that the specific materialpossessed by French contained the glucocorticosteroid."

Then there is reference to the fact that theappellant had a sample from the same batch tested inPenang, Malaysia, and the test results were negative. Youwill notice I suppose an analogy with Thymosin Beta-4,because later down that paragraph 50 in the italics - doyou see that, members of the panel?

CHAIRMAN: Yes.MR GRACE: "As far as [he is] aware," this is Dr Trout, "there

is no scientific test capable of detectingglucocorticosteroids in such small quantities...(reads)... In neither case there is no prohibitedsubstance that can be proven to be within the productTesticomp."

Then at paragraph 51, "The respondent'ssubmission is to the effect that the proof of the contents

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of the bucket contained in the glucocorticosteroid...(reads)... to have been injected has not been shown toany degree of satisfaction to contain the prohibitedsubstance. Therefore there is no breach."

Then there are issues about equine growthhormone. There was a denial by French of use of that and,in the absence of evidence that he admitted using it, thepanel was not satisfied that that allegation was proved.You will see at paragraph 69, "The complete open access toFrench's room must also be considered in assessing hisdenial of knowledge of the vials containing EGH. Theappellants submit it is implicit in the arbitrator'sdecision at first instance the arbitrator accepted Frenchallowed others to inject vitamins and supplements in hisroom and to use his waste bucket." And there wasreference to a college-style dorm.

At paragraph 70, "On a careful overall evaluationof all the direct testimony we cannot conclude there issufficient evidence to lead to a conclusion that the useof EGH by French is proven to the necessary degree ofsatisfaction." And then there was an issue about whetheradditional scientific evidence filed before the panel butnot before the first instance arbitrator could amount toproof. I won't take you through all of that, buteventually it was not proved.

Could I take you to paragraph 82. This perhapsanswers your question yesterday, Mr Chairman, in thecourse of discussion. At paragraph 82 the panel says,"Therefore the panel cannot agree with Mr Barry" - who wasfor Cycling Australia - "when he submits that theoverwhelming inference is that French is the unknown male"

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in relation to DNA evidence that was detected. "There isinsufficient evidence and too many alternate explanationsto make such an inference."

So that is the issue I want to flag just inrelation to alternate explanations arising in the contextof a civil proceeding under an anti-doping policy. Sothere is authority and validity, we say, for oursubmissions in relation to excluding alternativeexplanations. "The panel does not have to make such afinding or not when it cannot be established ...(reads)...It cannot be found on the totality of the evidence that heused EGH."

Can I add the rider that French refused to submitto DNA, and Cycling Australia sought to draw the linkbetween that as giving rise to an adverse inference, butthe panel did not draw that. In the event, what happenedto Mr French was he was exonerated of everything. Thatwas what occurred.

Then we get to the decision of Burns. Burns isin a totally different category. Burns was an Englishcase where Burns was a javelin thrower and a javelincoach. He was 35 years old. He was raided by police andin his house, and you will see in paragraph 8.2.1, "59plastic tubs" - - -

CHAIRMAN: I just want to find Burns. 8.1, was it?MR GRACE: 8.2.1.CHAIRMAN: Yes.MR GRACE: So what happened was Burns is at home, the police

arrive, he tells the police, "I've got steroids in thehouse." Forget about any police prosecution, of whichthere was, and there was an extensive interview, but they

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found 59 plastic tubs each containing 500 tablets. So hehad just under 30,000 tablets of a steroid calledStanozolol, which I think is what Ben Johnson used in theOlympic 100-metre final in 1988. So, he had 30,000tablets of it, nearly, "and accompanied by printed productinformation identifying the tablets as Stanozolol,Winstrol and the anabolic steroid stanozolol, a derivativeof dihydrotestosterone, manufactured in Thailand."

Then, he had "62 plastic tubs each containing 500Biogenics Methandrostenolone tablets." So again there's31,000 tablets there, and product information literature.He had Biogenics paperwork in his front bedroom. He hadin his main bedroom in a drawer paperwork in relation toclenbuterol hydrochloride tablets and a number of full andempty syringes which he said were for injecting vitaminB12.

He then was taken to the police station and hesaid at the police station, you will see this at 8.3.1,"He works as a self-employed personal trainer/fitnessinstructor at four different gyms." He sells supplementsto clients on the side and on the internet. He competesas a javelin thrower which he regards as a "power event".He had four different types of steroids in his house.

Then you will see at 8.3.4 he said he had sixboxes of Sustanon, six boxes of Deca and so on. Then in8.3.5 he said he had gone to Egypt in September, betweenSeptember 2010 and 2011, and he brought a whole lot ofthings back from Egypt. He talked about oestrogen and soon.

At 8.3.6, "He said he was using the steroids notto bulk up but for strength and for speed." He was saying

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he injected growth hormone in his stomach and there'sother references to other drugs like Tamoxifen, which isan anti-cancer drug and related to breast cancerparticularly and it reduces oestrogen, which can be acancer promoting hormone.

He was interviewed and he admitted it all and inthe course of the interview he admitted knowledge ofsteroids, obviously in detail, he admitted to beingexperienced in their use and what effects they had uponhim. It is to be by analogy, you may recall, members ofthe panel, in drug cases, perhaps more in the old daysthan now, but you had situations where you had drugaddicts arrested and interviewed by the police as towhether they had used heroin when they were found inpossession of heroin, for example, a little quantity ofheroin, and they are asked by the police, "How did youknow it was heroin?" And they say, "By the effect.I know the effect."

Here is a similar example by analogy. Here is aman, experienced, 35 years old, a javelin thrower andjavelin coach, a power event, using these steroids foryears and well experienced in their effects. He says hepurchased and used them, and he didn't dispute that whatwas found in his house was steroids. There was no disputeabout it whatsoever.

But he sought to rely upon evidence that he gavebefore the Anti-Doping Tribunal to the effect that theevidence he gave, he was only covering up for others whohe didn't want to get into trouble. The Tribunal rejectedthat. They said it was just rubbish. That wasunderstandable.

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Then you will see at paragraph 15 there is thediscussion there about use and attempted use. Then atparagraph 18 the following is said by the panel, "Therespondent does not dispute that the substances he said hepurchased and used are prohibited ...(reads)... I didn'twant this about the athletics but you still asked us aboutit, that's what I asked you."

Paragraph 19, "In our judgment there is nofurther requirement of analytical evidence confirming thesubstances are indeed what the respondent says they are...(reads)... that the substance the athlete had admittedusing was in fact EPO."

Paragraph 20, "The distinction drawn by theLeogrande panel was endorsed by another AAA panel....(reads)... confirming that what he had used was EPO."

Paragraph 21, "Here the respondent hasspecifically admitted using actual prohibited substances...(reads)... were the prohibited substances he thoughtthey were is irrelevant."

Then paragraph 22, "Similarly, it's not necessaryin order to sustain a possession charge to presentanalytical evidence ...(reads)... and therefore it couldnot find that the packages were in his constructivepossession."

Then there is reference as to why it was thatTroy could be distinguished in this case, and there wasnot a situation of attempted possession in the thenexisting anti-doping rules.

So the point we want to make in distinction toFrench and to this case is that it seems here that thehigh watermark of ASADA's case in relation to what was

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injected was Dank's admission to McKenzie that he injectedthe players with Thymosin Beta-4.

The problem about that is that that's not anadmission by the players. It's an admission by Dank, ifit is an admission, and in relation to that I make theaside: isn't it surprising, I ask rhetorically - - -

CHAIRMAN: It's a statement by Dank.MR GRACE: It's a statement by Dank. Isn't it surprising that

despite ASADA - - -CHAIRMAN: I suppose it's an admission in the sense that Dank

is in relation to him as a person who was being charged.But looking at it from the point of view of the players -- -

MR GRACE: Yes, it is a statement by Dank. But he's not theperson charged in the proceedings against the players.The players are the people charged.

CHAIRMAN: But he is charged with being involved in theadministration.

MR GRACE: Yes. But I ask rhetorically: isn't it unbelievable,really, that Dank would say that to McKenzie, incircumstances where Mr Holmes, and to his credit, did verywell yesterday and pointed the Tribunal to the greatcover-up that was going on by Dank in 2012 to hide thefact that he was administering Thymosin Beta-4 and thebackdated letter, the references in the text messages to,let's just call them amino acids, the writing of the sameletter for the Melbourne Football Club later in the yearof 2012 after he ceased involvement with Essendon, andthen suddenly after the blackest day in Australian sportin February 2013 press conference, he's public enemynumber one, he then comes out in April 2013 with a

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statement to McKenzie, and then recants of course andMr Holmes says, "Well, you can't believe that."

But it's just an incredible constellation ofcircumstances that give rise to that, which casts doubt onthe veracity of that statement in any event and castsdoubt on whether or not Dank is erratic, whether you canhave regard to anything he says, and if you look at whatMr Alavi says about Dank in his various later interviewsand also Mr Charter, they really cast huge question marksabout Dank's reliability, his believability, his lack ofcredibility and so on.

You might also find remarkable in the McKenziearticle, when you look through it in context, that when heis talking about the benefits of Thymosin Beta-4 he istalking about the immune factors which are more akin toThymosin Alpha. That's another example.

Then we come to, and we point this out in ourwritten submissions, the actual circumstance where the AFLand ASADA are putting forward a case against Mr Dank inrelation to the attempted administration of ThymosinBeta-4 as an alternative, because their case againstMr Dank is two-pronged. Their case is, "Well, if theTribunal is not satisfied that he actually administeredThymosin Beta-4, there's enough evidence to make itabsolutely abundantly clear that he intended to administerthem with Thymosin Beta-4 from the text messages aneverything else."

CHAIRMAN: The definition of "attempt" is very wide.MR GRACE: It is very wide. But that argument is postulated on

the premise, that is the attempted use, that he dideverything up to and including actually injecting them

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with Thymosin Beta-4, because otherwise it would be anadministration of Thymosin Beta-4, which is one of thecharges.

So, it is a situation where the players, becausethey had no knowledge of what they were taking other thana belief upon written advice and notification, verbal andin writing, that what they were being given was WADAapproved and ASADA approved, the players can't shed anylight on this. So ASADA says and the AFL says, "Well, weare going to charge Dank just in case the Tribunal is notsatisfied that we can prove to comfortable satisfactionthat he actually injected them with Thymosin Beta-4, thatthere's an attempt there." We say doesn't that justhighlight the paradox in all this, and we point that outin our submissions.

CHAIRMAN: Yes.MR GRACE: Can I now just deal with an overall picture of the

so-called compounding by Alavi.CHAIRMAN: We certainly would be assisted by - obviously you

cover what you feel you should cover, but we certainlywould be assisted. There is in effect three basic linksthat Mr Holmes has put forward. One is the ThymosinBeta-4 coming from China to Alavi, and then there'sAlavi's compounding, et cetera, and the supply toEssendon, and then, having got there, the administration.We certainly would be assisted if you are going to take usto this area of receipt by Alavi, compounding by Alavi andsupply by Alavi to Essendon.

MR GRACE: Yes. I will point this out more particularly whenI get to the summary of the players' interviews, but youwill notice when you see the players' interviews, as

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reflected in the summary, and there is no dispute aboutthe accuracy, as I understand it.

CHAIRMAN: My understanding, because we may want to use this asa helpful appendix, is that no one is disputing thesummaries that have been put forward by the parties inrelation to the interviews.

MR GRACE: No one disputes it. But we would invite the panelactually to go to the source.

CHAIRMAN: Yes. We have had a look at them, but the summariesare very helpful.

MR GRACE: Let's take ASADA's case and the AFL's case at itshighest. Twenty-six vials, clear vials, of ThymosinBeta-4 are delivered to Dank and he takes them to Essendonand he injects the players with them, and let's acceptASADA's case that there was a misprint on the consentforms and instead of 3,000 - it was micrograms instead ofmilligrams. Let's accept that for the purpose of thediscussion and let's assume that the dosage on the consentforms was the dosage that the players were given, oneinjection per week for six weeks and then once a monththereafter.

As Mr Rawson sotto voce, but not so sotto voce,remarks, the players' evidence is different. It isdifferent, but let's analyse this. According to ASADA andthe AFL, there was this concerted supplement program thatwas proceeding in accordance with the dosage requirementsgenerally in the consent forms. If that was followed,there would have been a maximum of 156 injections from theclear vials.

CHAIRMAN: That's covering all the players.MR GRACE: Thirty-four players. No, I'm just talking about

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what was capable of being injected.CHAIRMAN: Yes, on the basis of what they consented to.MR GRACE: Yes. We say, and there might be a dispute about

this, I don't know. We say 156 dosages, injections. Howwe work that out is six dosages from each vial, 3 mls, 0.5of a ml for each dose on the consent forms. So, six times0.5 is three, there are 26 of them, 26 times 6 is 156. Ifyou divide that by 34, you get to a figure of about 4.5.156 divided by 34 is about 4.5, so it is 4.5 injectionsper player.

If the injections commenced after the consentforms were signed at the auditorium meeting on 8 February2012 or shortly thereafter, then four to five injections,if the dosage was followed according to the consent forms,and we know that players are all over the place in termsof how often they were given injections and so on. But ifthat was followed, then it would have all been used up bythe latest mid-March. It is four weeks.

CHAIRMAN: That's the 26 vials.MR GRACE: The 26 vials. Then we have the situation where, on

ASADA's case, there is no compounding and no delivery ofThymosin Beta-4 by Alavi to Dank before mid-May 2012.I will come to the deficiencies in evidence and proof inrelation to that in due course, but the crucial thingabout that is that after the so-called "fried" peptidesdiscussion between Dank and Alavi in January or earlyFebruary 2012, Alavi is no longer producing peptides inclear vials. He is only using amber vials, which areslightly different in size.

So if any peptides, Thymosin Beta-4 or anything,was provided to Essendon after the middle of May, they

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would have been in amber vials. Clear vials were nolonger used, and that's common ground.

The problem for ASADA and the AFL is, if you lookat the interviews of the players, it is all over the placein terms of the use of amber vials, the use of clearvials, when it started, when it concluded, and I will cometo that in due course. You have some players saying itstarted in February and it was taken from amber vials andall they ever got injected was from amber vials. Howcould that be? It couldn't be Thymosin Beta-4 in Februaryfrom amber vials. Other players say, "We stopped theinjections," some say by inference you can gauge aroundabout May. Amber vials, what was in the amber vials?

So there's all this imprecision and inexactitudeand, as Justice Dixon talks about it in Briginshaw,"inexact proofs", and Lord Wright in Caswell in the Houseof Lords or Privy Council, I think it's the House ofLords, says "speculation and conjecture." But I will comeback to that.

CHAIRMAN: In essence, what you are saying is that in relationto the player interviews with something like this, thereis just no consistent pattern which could be reallyprobative in terms of establishing something from whatthey are saying, because it's just too much all over theplace to be able to demonstrate a consistent pattern fromwhich you could comfortably draw some conclusions.

MR GRACE: Yes. It even leads the AFL and I think ASADA tomake submissions to the effect that the evidence againstsome players is really scant as to what they took and whenand what it was. It may be suggestive of a different sortof result in relation to those players, except for the

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cross-admissibility issue.Can I also point out there were 80 vials of a

substance which is not banned called Ubiquinone, which iscalled Co-Q 10. If you go to the chemist you can see it.At page AS-3, 195, you will see "Coenzyme Q10 high dose".There are 80 vials that are provided. We don't know whatcolour vials.

Of course, when I gave you the earlier summationof the 26 vials and what it could have contained, ofcourse there was no allowance made there for wastage andthe problems that Mr Alavi had on his own admission incompounding. But that's another issue. That's just thegeneral picture.

I now want to go to a specific. The question iscan the Tribunal be comfortably satisfied that ThymosinBeta-4 was received by Alavi in December 2011. I want totake you just briefly to paragraph 50 of our writtensubmissions. I just want to read this because it formsthe backbone of what we describe as the Charter lies anddeceptions.

Paragraph 50 follows on from a comment made atparagraph 471 in ASADA's submissions that the Tribunalshould treat Charter's statements in relation to aparticular issue in relation to discussion withMr Hargreaves cautiously, and other issues concerningMr Charter.

Paragraph 50 says, "In this vein when oneconsiders the breadth and depth of Charter's deliberatelies told to ASADA, the inescapable conclusion is that hemust be considered as a wholly unreliable source ofinformation. In giving his initial version of events to

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ASADA in his interview on 8 May 2013, later reinforced bythe written documents he provided to ASADA" - and one ofthem is the Steve Dank document that I will come to -"Charter said that he brought the peptides that he hadpurchased in China back into Australia and declared themat Customs. However, the particularity of this account,which can be shown to be a proven lie, is stunning in itsfalsity and audacity."

"In his interview," it is at AS-7, tab 1, at page69, "Charter concocts a specific account citing concernthat Australian Customs officials had with the MechanoGrowth Factor that he brought with him." And hesays - this is Ms Kerrison who is the investigator. Sheasks, "And were they all subject to a Customs declaration?Yes. When you landed? Declare them at Customs...(reads)... so I then took them straight to Nima andleft them with him, contacted Steve. Yes."

Now, where do you start with the lies in thatstatement? Can I just remind you of the fact that whenyou go to the invoice or the table that you are sofamiliar with now from GL Biochem, there is a mention inthat table of human growth hormone, HGH. This was theonly product that he declared at Customs, but this was nota product he bought at GL Biochem. Then in his interviewhe is asked questions about that. He says, "Oh, yes,I bought it at a chemist."

So when he's talking to Ms Kerrison, however,he's not talking about HGH. He's talking about MechanoGrowth Factor and the other items. That was the companyin Shanghai he sourced the products from and so on.

Then when you look at the RD Peptides purchase

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order you will see HGH there, but no one knows whetherthat's legitimate or not. We concede that; no one knows.But it is interesting that it's on that RD Peptides orderand he has got HGH, according to Customs. So where has hegot it from?

So we have the following factors: We have theCustoms document which is - I can't remember the number ofthe exhibit.

CHAIRMAN: It doesn't matter.MR GRACE: You are familiar with it, it is PG-18, which

directly contradicts his evidence. We have no analysis ofthe substance. We have an issue concerning the GL Biochemstatus. In relation to that, I now want to turn, at AS-3,page 297 - - -

CHAIRMAN: This is the Steve Dank statement.MR GRACE: Yes. This is, as I understand it and Mr Holmes can

correct me if I'm wrong, something that ASADA didn'trequest Mr Charter to do.

CHAIRMAN: No, he volunteered it.MR GRACE: He volunteered it. If you look - I haven't counted

the number of words, but there are thousands of words inthis document. This would have taken him a considerableperiod of time. It's a considered document. It purportsto relate to his whole history of engagement with Dank.It purports to deal with the issue of the China trip and awhole host of other matters in his dealings with Dank.

Of course it comes after - and you may recallthat there was this issue about a job offer, FrankAbagnale, I don't know if it is a name you are familiarwith. This was a con man turned FBI expert who was a manof great acumen in being able to changing his identity and

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perpetrate different characters, including being anairline pilot, a doctor, probably a lawyer, due to hisability to create different identities and his success atit over many years. He eventually got caught, but amasseda fortune in the meantime. The FBI offered him a rolewhich he accepted and I think he still works for them.I think he has written a book and he gives lectures aroundthe world and works for the FBI as an expert in changingidentity.

Anyway, that's the context in which Charter issuggesting to ASADA prior to this Steve Dank statementthat he be the Frank Abagnale of the drug world, that hecome to ASADA with his great experience and knowledge ofthe supplement industry and give all this greatinformation to ASADA. Mr Simonsson, who was the ASADAinvestigator, certainly keeps him on the line, which goeson for quite some time. Ultimately, of course, ASADAwasn't going to take the bait. But this was all part ofthe marketing, we would suggest, to ASADA by Mr Charter.

So if you go to AS-3, page 299 - in PG-11 youwill see all the emails between Mr Simonsson I thinkpredominantly and Mr Charter in relation to the suggestedjob, which of course ASADA never promised, but Mr Charterbelieved was on offer. But at page AS-3, 299, you willsee he talks about marketing and distribution at the topof the page. Do you see that?

CHAIRMAN: Yes.MR GRACE: And then he says, "We left the meeting, each with

some jobs to do." This is him and Dank, after he hadrecommended Alavi. "The first meeting was with thepharmacist to ensure we had a means of compounding the raw

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materials ...(reads)... The amount of stock this companyhad was staggering, barrels of raw materials stacked tothe ceiling," and there is a photograph.

Let's look at that. He booked a trip to China.We accept that. He spent weeks assessing weeks assessingfactories from Shenzhen to Shanghai. Outright lie. Thenunderneath the photograph you see, "The amount ofmail-outs mainly to America of their peptides was alsoquite staggering. This gave me insight into the size ofthis market. There was about 50 orders going out that dayand some of the packs were up to $50,000 US in size."Just stopping there, compare the measly $2,000-odd thatMr Charter says he ordered.

"So I knew I was at the right place, but to besure I had to take samples out of each of the drums andrun my own testing using their equipment." Well, youmight think what a load of rubbish. That a company wouldallow someone such as Mr Charter to come in and use theirequipment, if they had equipment, let's assume they did,an unqualified man walking in off the street, unannounced,hadn't signed the document as to what he was going to usethe stuff for, he's allowed to come in and take samples.Where was the document that's referred to? He takessamples out of each of the drums and then analyses themusing their equipment. What a load of rubbish.

CHAIRMAN: And then says he was provided with certificates ofanalysis.

MR GRACE: Yes. "But to be 100 per cent you really need totest each batch yourself. Then I took the amount Irequired out of a tested drum and sealed this so that itcouldn't be tampered with." What certificates of

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analysis? What testing? What ability to test? Accordingto ASADA's case, these were not taken by Mr Charter atall.

CHAIRMAN: No. They got to Alavi a different way. That's thecase.

MR HOLMES: Sorry, no, we don't say that the samples gotto - - -

CHAIRMAN: No, no, the 0.25.MR HOLMES: But that was only after the order was paid and the

transaction was made.CHAIRMAN: Yes.MR HOLMES: This is totally different. This is one of these

occasions - - -CHAIRMAN: You are not putting that the samples were provided.MR HOLMES: No, this is one of those occasions where they deal

with the first trip, to somehow mix it up with the secondtrip, and therefore you can't believe what happened on thesecond trip.

MR GRACE: What second trip?MR HOLMES: Sorry, the order following the transaction.MR GRACE: Then we go over the page, "Even though I knew the

products were legal and I was allowed to possess them,I still declared them at Customs ...(reads)... They wereall cleared and now we had the first batch as specified bySteve delivered to the pharmacist."

No dispute that that's what was delivered to thepharmacist. So what Mr Holmes just said to you finds noreflection in this paragraph. "They were all cleared.Now we had the first batch as specified ...(reads)... theclinical research project Steve was conducting. Thepeptides requested by Steve were" - and you will see the

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list there. "When speaking with Nima for themanufacturing of the peptides they didn't need the sixmonths shelf life that would normally be used. He washappy for minimal shelf life as they would be used in oneweek."

One week. Contrast the protocol. "Steve askedfor enough peptides in each vial so 40 doses could be" -I can't read the next word - "from the one vial, thendispose of it altogether ...(reads)... so I can run a fullcycle on 40 people." And then goes through the orderingof Thymosin Beta-4.

So what do you make of that, members of thepanel? This is talking about the first delivery,unquestionably the first delivery which Mr Alavi says hereceived on 28 December 2011.

The next document I want to take you to is theemail chain with Mr Charter and Mr Alavi. That's also inAS-3.

CHAIRMAN: We might take a short break, Mr Grace, and thenproceed.(Short adjournment.)

CHAIRMAN: Mr Grace, you want to take us to some emails.MR GRACE: Yes. Can I take you to that chain of emails between

Mr Charter and GL Biochem, which commences at page 214 ofAS-3, and take you specifically to page 221. You willrecall in that document I have just taken you to, the Dankdocument, there were issues about certification. This ispurportedly from Mr Vince Xu from GL Biochem dated8 December 2011, "Hi, Shane. Glad to get your mail andorder" - and you will see on page 222 there is the mailand order - "so soon. I believe you are satisfied with

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out sample qualification result, right?"Now, in his opening Mr Holmes said, "Oh, that's

obviously a typographical. It should be "our". We knowMr Charter produced a certificate of analysis for MechanoGrowth Factor, and you will see that at 224. If we lookat the date of that, I don't think there is any disputethat the date of that is 20 December 2011.

CHAIRMAN: Yes, it's in the middle of the seal.MR GRACE: You will recall that Charter, when he's talking to

Ms Kerrison, he's talking about Mechano Growth Factor. Sohe didn't get any sample certification from GL Biochemwhen he visited it. That's why Mr Xu writes on8 December, "Glad to get your mail order so soon.I believe you are satisfied with out sample qualificationresult, right?" Not "with our sample" because there wasnone. The Mechano Growth Factor document is evidence, wesay, of that fact.

Then you will see, "I would like to ask you tosign a statement before the process of our collaboration."That was that statement saying it's not going to be usedfor humans. I don't need to refer you again to that. Youare well familiar with it. That's at page 210, which hesigns on 8 December.

So you might be confident in the conclusion, wewould suggest, members of the panel, that nothing wasflowing either by way of product or by way of certificatesor certification prior to two things happening: Firstly,that document being signed and, secondly, payment. Youwill see subsequent emails talking about, "We are notgoing to do anything until we get paid."

The next matter to consider is the GL Biochem

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status. I know we have had arguments about this, butI just wanted to point out if you go to AS-3, pages 31 to34, the use that's being made of this document is to propup the reputation of GL Biochem into a reputable supplieror manufacturer. Then you see a statement on page 33under the heading, "Conclusion" near the top of the page."Peptides are an emerging class of drugs," et cetera.

Then at the bottom of the page it has a heading,"Forward looking statements." The last line says, afterwarning people about how to interpret this particulardocument, "Actual results, events or performance maydiffer materially. Specifically, CBI cannot guaranteethat the transaction referenced herein will close." Whatthat means is that the transaction whereby they haveacquired AL Biochem will be completed. There is noevidence before you that it ever was. There is noevidence that GL Biochem was ever subsumed withinCommonwealth Biotechnologies Inc. There is no evidence ofwhat the status was of GL Biochem or CBI in December 2011,despite Mr Xu being a Californian and maybe educated inAmerica. Perhaps you can draw an inference as to thestatus of GL Biochem by the attitude of Mr Xu toMr Walker, when Mr Walker asked him to cooperate and herefused.

The next document I want to take you to aboutthis first so-called delivery is the evidence of Dr Vine,PG-7. At paragraph 26 Dr Vine says this, and notchallenged on this, by the way, "The proper andunequivocal identification of peptides and proteins isessential given the unregulated nature of their suppliersand their intended use ...(reads)... or any other purposes

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it is essential to know exactly what they are and whetherthey are safe to use."

Paragraph 27, "Racing Analytical Services Limitedhas analysed a number of important materials for theAustralian Customs Service ...(reads)... relevant toperformance and image enhancement claims are shown below."Then there is a table, and I'm not going to read throughthat table, but you can see what has occurred.

Under the table, "The unknown peptides are ofparticular concern ...(reads)... the possible adverseeffects of these materials are therefore completelyunknown."

Paragraph 28, "A further example of theunreliability of suppliers' claims concerns the peptideTB500 ...(reads)... to produce a product with a strongereffect. Analysis shows that TB1000 was in fact identicalin structure to TB500."

We will come back to Dr Vine's report, but thatcasts a warning over products sourced from China.Professor Handelsman voiced similar concerns, and Mr Alavihimself, as a justification for sending the materials toEagle, if you recall, in January, said at page 176 ofAS-7, tab 2, and this is his interview of 29 November2013. I don't ask you to look it up, but I will just readit. It's very short.

CHAIRMAN: Yes.MR GRACE: He is asked questions by Mr Nolan about SMSs before

he got the arrangement going with Bio21. He says, "Yeah,I've got a feeling I sent them all off to the EaglePharmaceuticals and that was a nightmare trying to getthem out there. I've got some documentation about that.

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Because that was the first supply that came in and I wasvery worried about it, so I sent little batches off toEagle."

So that's Alavi. Then we go to page 255, or atthe bottom of 254 Mr Walker says, "On 12 JanuaryMr Charter has emailed a document to Mr Dank a...(reads)... administer and store Thymosin Beta-4."Alavi says, "Yep, yep, yep." Mr Walker says, "So if I addthat into the mix, can you assume that's Beta-4?" So thisis the whole premise behind the questioning.

Mr Walker says, "Well, can we take it furtherthan assume. Do you think it's fairly compelling now thatit's Thymosin Beta-4?" So this is a leading questionbeing put to Mr Alavi. Alavi says, "Well, this is theproblem because I asked Steve ...(reads)... because hewanted me to sign this letter that he gave me, right?I've got that." That's in relation to that so-calledbackdated letter. "I can touch on it now if you want."Alavi says, "I'll tell you the story. He wanted me tosign this letter and I refused to sign it ...(reads)...where it is all the same thing like Thymosin Beta-4, it isjust a different name for it. That's a message I got fromhim."

Then he goes on to discuss the letters and abouthow he did the same thing with Melbourne Football Club andso on. You will see in the next few pages discussions ofthose letters.

Then we go to page 259 in the same interview.After it is put to him that he signed the letter, he saysat line 23, "And the reason why I'm so definite about itis because I refused so many times to sign it."

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Mr Walker, "Okay, if I put to the side to whether you canrecall signing it, do you agree with the content?"Answer, "No, because I don't know whether it isThymomodulin ...(reads)... he was asking me to sign thispretty much since February."

Then the questioning goes on. At page 262, inthe same interview, he again at line 32 responds to aquestion from Mr Nolan in relation to the document saying,"The reason why is because I assumed they're all the same.The way he explained it to me they're all the same butI couldn't be sure. This test was done because wereceived some of the products and it was just for routineto go and test it." That was the Eagle testing. So,that's an example of what he says there.

Then if we go to AS-7, tab 4, at page 38 - sorry,I have the wrong document. This is the 14 April 2014interview. He's asked questions on page 19, on 14 April,about the SMS that Dank sent to him on 9 November 2011.There is mention there of Thymosin, 2 milligrams permillilitre, and a further SMS is sent, "Can you alsosource CJC, ITPP and Hexarelin."

Then he volunteers at the bottom of page 19,"Thymosin. He hasn't mentioned the type of Thymosin, butat that stage I don't think he really knew there weredifferent types of Thymosin. I didn't even know whatThymosin was at that stage. 2 milligrams per millilitrerefers to the strength."

He is asked questions then about the 26 vials ofThymosin, and he is asked at page 21 about how he couldproduce 26 vials with the concentration. He says, "3milligrams per ml would not leave enough to make up 26

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vials."Could I go to page 38 in that tab on this point

about whether he knew what it was. At page 38 he's asked,when Dank was discussing with him about the Mimotopes,remember there was an issue about Dank taking thesubstance to Mimotopes. Alavi says, "I may very well havebeen putting him off because I was saying they're notready, they're not ready, they're not ready, trying tofind a testing lab. It's like got to test them because itcould be anything." And you will recall the video wherehe says, "We don't let any product out of here unless it'stested and we know what it is." Mr Walker says, "But inany event I think it is quite well established...(reads)... and he was going to get tested Mimotopes",and so on.

Early on that page - I missed this, and this isin January in relation to the text messages, he's beingasked questions - Alavi says, "It sounds like to me Stevehasn't picked anything up yet. So he hasn't picked up theHexarelin or the Thymosin ...(reads)... assorted peptides,you know. So I was very nervous about giving these out",effectively is what he says.

The next document I want to take you to is thedocument in AS-3 that deals with the Belgian cyclist namedVansevenant. This was relevant in the ASADA chronology.It is page 314. This was said to be the precipitator of acommunication to Dank. I'm not sure who it was from, butthis was said to be a precipitator to alert Dank to thefact that TB500 was on the banned list. You may recallthere was a series of text messages from someone, I can'trecall, to Dank about this.

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Anyway, this article at AS-3, 314, evidences thefact that this fellow Vansevenant was accused of ananti-doping rule violation by taking TB500. Curiously theproduct emanated from Australia. He took it I thinkin - I think June 2011 a package was intercepted from anAustralian firm - it doesn't say what the firm was - whichcontained TB500. The court immediately opened aninvestigation on the basis that he was supplying theseproducts to a professional cycling team called OmegaPharma-Lotto. He was immediately suspended from thatteam.

Then over the page, on 315, you will see,"Analysis of the contents of the three bottles showed themto be amino acids." The court confirmed, "Analysis showedthat the content of these bottles ...(reads)... There wasamino acids found. No doping products. The drug TB500 isa synthetic protein" et cetera et cetera.

So we only put that forward as an example ofmislabelling and how you can't rely upon what the labelsays, you can't rely upon what an Australian firm in thisinstance had said to Vansevenant this was, and analysisproved it was not the case.

The conclusion about this first delivery is this.Alavi doesn't add any weight to whether or not it'sThymosin Beta-4. There is no independent verification.I take you back to what was said in the decision of CAS inFrench and compare that to this situation.

There is a complete hole in the chain of custodybetween GL Biochem and Alavi. I just want to highlightthat. What we know now, if we believe what Alavi says andwhat Charter says and what a contemporaneous text message

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from Charter to Alavi reveals, there was a delivery ofsomething to Alavi on or about 28 December 2011. We don'tknow where the delivery was from. We don't know, forexample, whether Charter smuggled these items intoAustralia without Customs' knowledge. We don't knowwhether Anthony sent them. There's no courier deliverydocuments. There's no statement from Anthony. There isno interview from Anthony. We don't know whether Anthonysent the products to Charter and then Charter deliveredthem to Alavi.

It seems from the text messages and what Chartersays that he was tracking the courier company deliveryrecords to inform Alavi as to when it was expected. Let'sassume that for the sake of the discussion. But we don'tknow what happened between GL Biochem Shanghai, AnthonyShanghai, Anthony Melbourne. Were they the same products?Was there any Customs declaration of these products sentby mail or through courier delivery, as you would thinkthere ought to be in terms of the sending through the mailof products that would otherwise be banned or requireprescriptions in Australia or may not have TGA approval?We don't know. We don't know whether what Alavi receivedwas Thymosin Beta-4.

Even if one accepts everything aboutconversations between Mr Walker and Mr Xu that what Mr Xusold Mr Charter was Thymosin Beta-4 and even if we acceptthat Mr Charter believed he was buying Thymosin Beta-4 andeven if we accept that Mr Anthony collected ThymosinBeta-4, we don't know what Mr Anthony sent and we don'tknow what Mr Alavi received.

We know on ASADA's case that Mr Dank intended

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that he be put into possession of Thymosin Beta-4. Butthat doesn't mean that's what he got. According toMr Alavi,

I'm not sure what thisis. This stuff is notorious. You never know what you aregoing to get. In effect, I need to get it tested." So hewasn't prepared to accept it at face value.

I'm told that as a matter of law if you importover $2,000 of pharmaceuticals it has to be declared andimport duty has to be paid. The other aspect of this ofcourse is that you have a bunch - call it a bunch - ofdisreputable and profit motivated players in this; not ourclients.

CHAIRMAN: Not being your clients.MR GRACE: "Protagonists" is a better word. These men, when

you look at all the text messages and the emails, they areall talking about a profit angle. If you look at themark-ups, there are huge profits. It is not beyond therealms, and I appreciate I will be attacked saying, "Oh,no evidence of this," that what was provided was rubbishand passed off as something like Vansevenant purchasingTB500. Obviously he bought it, imported it, believed itcontained something that it didn't.

So how do we know what was delivered to Alavi?You can't rely upon some purchase order and some intendedsupply without certification, without certificate ofanalysis, without any corroboration whatsoever and relyingupon the word of Mr Charter, of which there is no evidencehe was ever in possession of Thymosin Beta-4 beingdelivered to Alavi. So that's where we sit, we say, inrelation to the 28 December 2011 delivery and where we sit

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in relation to the so-called compounding of ThymosinBeta-4. You just could not be satisfied to theappropriate test or standard that that's what wascompounded or that that was injected into the players byDank.

It might be suggested, "Oh, well, you can onlycompound this stuff by a particular means and the meansset out in that internet document that Charter sent toDank and Alavi sets out the way in which you dissolve itand compound it, given that Mr Alavi had problems withdissolving it." Well, what's the provenance of that?Where does that come from? Why is it said that it is asubstance specific way of compounding? Why could that notbe a common form of dissolving used for any suchsubstances? No evidence whatsoever. No scientificevidence. Indeed, I think Professor Handelsman concededthat he is not familiar with the compounding practices atall.

I next want to go to the player interviews.I don't know if this is a - I'm happy to proceed.

CHAIRMAN: Yes, go for a bit longer. We have that chart.MR GRACE: Appendix 1 to our submissions. I will do this as

quickly as I can. We will start at the first page,was never charged, but he was

interviewed.The next one is We dispute the assertion

that admitted that he received Thymosin. At mosthe says, "I was probably given it," but that's about ashigh as it gets. Mr Holmes makes a point, "Well, no-oneelse says this other than but says hereceived whatever substances he was injected with through

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clear vials. He was unsure of whether they were plasticor glass, "but they had a silver top that could be used tobe pricked with a needle. They were all packaged togetherwith plastic binding them all together." He describessimilar to a slab of beer, binded by plastic but of coursemuch smaller. But he says, and you may recall he went ontelevision and said this - - -

CHAIRMAN: That's when he was interviewed.MR GRACE: He was told he was being given AOD. He also says

that he stopped the injections. He didn't give a specificdate as to when he stopped it, but it was relatively earlyon, from recollection. But the point I make about this isthat Dank told him repeatedly that he was being given AOD.

On ASADA's case there was no injectable AOD inpossession of Dank until August 2012. So what was Dankinjecting them with when he was telling them he was givingthem AOD? This applies across the board to all theplayers who were told by Dank he was giving them AOD.There's no source.

If we go to the next player, he wastold he was given Thymosin. He remembers seeing a viallabelled "Thymosin". He said he held the vial. He saidhe got the Thymosin from a brown vial. "Brown littleglass jar." Doesn't know if he was administered AOD."Dank's office was disorganised. His office was a mess."He also received what he said were amino acid injectionsat HyperMED, and he also had melatonin in the stomach withThymosin.

The next player is He was interviewedbut he had no injections. The next one is

says he had five injections in the glute from

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The next player after that is He says hebelieves he was injected with Thymosin around Christmas2011 five or so times. So his timing is completelydifferent, and he wouldn't have been injected withThymosin prior to Christmas. But if he was injected withsomething prior to Christmas it wasn't Thymosin. Again,he says brown bottle. Dank told him Thymosin was in thevials. He said he received melatonin injections into hisstomach. He doesn't know whether he got AOD. I thinkthis was a mistake by the investigator you will notice, ifyou read this interview, that Mr Haddad, the AFLinvestigator, suggested to him that there was a whitelabel that had "Thymosin" written on it, and it was anon-responsive answer. He only specifically remembersmelatonin and Thymosin, and says he was twice injectedwith melatonin prior to Christmas.

The next player is who talks about clearand brown vials. Said he was getting injections weekly.He had melatonin injections for sleep into the stomach, noside effects, into the stomach and glute, and hadinjections into his backside. He can't recall thesubstances except melatonin, AOD cream and he had noinjections between round 17 and the end of the season. Hesaid he was injected with melatonin to assist withsleeping.

The next player is He says he believedhe was injected with Thymosin in Dank's office mostly andreceived an injection in the stomach at HyperMED. He saidthe vials were clear with a little white sticker labelmade of glass with a black lid. It had a little pad."All the injections I had were from a glass vial, maybe

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I was getting Thymosin," of course that would be relyingupon what Dank was telling him or relying upon hisknowledge from what he signed the consent to. Again,I make the point, regardless of whatever Dank's intentmight have been, the fact is that there has to be proof toa comfortable satisfaction that what he actually injectedthem with was Thymosin Beta-4.

CHAIRMAN: We might break at this stage, Mr Grace. Is thatconvenient to you?

MR GRACE: Yes.CHAIRMAN: We will resume at 2.LUNCHEON ADJOURNMENT

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UPON RESUMING AT 2.00 PM:CHAIRMAN: Mr Grace, would you like to continue?MR GRACE: Yes, sir. Could I just indicate that at this stage

I call upon Mr Ihle to address you in relation to sometechnical issues concerning the analysis and then I willresume after he's concluded.

MR IHLE: When Mr Grace says "analysis", it is analysis of theevidence rather than technical analysis. There are threevery discrete matters that I will deal with in fairlyrapid succession. I can see we are getting on in time andthere are still people who need to speak today.

The three matters that I'm going to refer to arereally responsive to those matters that were raised byMr Knowles yesterday, or at least some of the matters thatwere raised by Mr Knowles yesterday. Insofar as thestatus of Thymosin Beta-4 being a prohibited substance, werely on our written submissions and of course we rely onthe case and the analysis of the Court of Arbitration forSport's appeal division in the case of Williams. Unlessthe Tribunal requires further submissions or assistance inthat regard, we rely on our written submissions.

CHAIRMAN: I don't think so. We have been assisted by thecomprehensive submission that you have put in, Mr Ihle.

MR IHLE: Thank you, sir. The three matters that I will beseeking to address and, as I say, in very brief compassare the relevance of the evidence given by ProfessorHandelsman in relation to Thymosin Beta-10 and Beta-15;the significance that can be made of the other analysesdone of Thy-related substances in May 2012 by Vania andwhat the evidence is in relation to that in its entirety;and just to make some observations not by way of seeking

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to advance a specific positive case, but some observationsabout the difficulty when one looks at the entirety of thebody of evidence to try and establish that certain amountsfit into certain vials, et cetera.

Dealing briefly with the evidence in relation toThymosin Beta-10, pages 742, 743 and a few pages prior tothat, so from about 740 onwards - - -

CHAIRMAN: This is of the transcript.MR IHLE: Of the transcript, and I won't go to big chunks of

the transcript, I will just highlight those so theTribunal can obviously go back and refresh its memory asto the way in which the evidence was given. However, itis clear and of course the players accept that theChemSpider document produced by Professor Handelsman overthe lunchtime break on the day he gave the evidence is themost authoritative and accurate description of those othersubstances, Beta-10 and Beta-15.

That, with respect, is not the issue. Whether itis a proform, whether it is a substance that waspreviously known as Beta-10 or Beta-15 that is referred toin the diagram on Professor Handelsman's statement, theissue that is raised is one of the identity of thesubstance that was given to the Essendon players andtherefore what, if anything, can be taken from the Bio21analyses.

CHAIRMAN: What light does it throw upon it.MR IHLE: Correct. Professor Handelsman on the first occasion

he gave evidence was cross-examined about Beta-10 andBeta-15 as they appeared in his report. He accepted thatat least in relation to the Beta-10, by reason of it beingrepresented by 44 amino acids, it would have a molecular

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weight in the range of about five kilodaltons or 5,000daltons.

The issue that's raised is this: The Bio21analysis at best can only indicate the presence of asubstance with a molecular weight in the range of fivekilodaltons. Mr Knowles said yesterday there is noreference to Beta-10 or Beta-15 or anything like that inthe other evidence. With respect, in that regard he'scorrect on the question of particularity. However, ASADAplace some reliance on the evidence of Mr Sedrak andMr Sedrak's involvement either directly or indirectly withMr Dank in 2011.

We have set out extensively in our submissionwhat Mr Sedrak, a witness upon whom ASADA rely, says aboutthe substance that he was supplying in 2011. Heconfidently and unequivocally says it was not Beta-4. Itwas another type of Beta Thymosin.

As I understand and appreciate ASADA'ssubmissions, what they say is Dank has a proven trackrecord for using a substance supplied by Sedrak and that'swhy he uses it in 2012. There raises the spectre of someother substance. Sedrak also says it's about 44 aminoacids. Now, we know that Beta-4 is 43 amino acids.Beta-15 as depicted in Dr Handelsman's diagram is 44 aminoacids. I'm not suggesting this is positive evidence thatthis is what was actually being used and imported and wastested; it just points to the lack of accuracy,specificity and clarity in the evidence that there is.

So I draw the Tribunal's attention to those pages740 and following and the earlier evidence of ProfessorHandelsman to which he was referred in relation to that,

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because even the scientific community has a great deal ofdifficulty with identifying these substances specifically.

Moving on to the Bio21 analysis and the otherfour of the five Thy analyses that were conducted inSeptember, it is important, in my submission, to note thatwhat Bio21 produced in response to the disclosure noticewas not only those printed graphs but, rather, was,according to the letter from Dr Veronica Borrett dated23 December 2014, and I'm told by counsel assisting thisletter forms part of PG-22 which is before the Tribunal,in response to the disclosure notice Bio21 produced, alongwith the documents that appear in PG-22, a USB memorystick containing all records, files and data in theuniversity's possession relating to all entities listed inthe section.

A copy of that USB stick was provided to, amongstother people, Dr Vine and he refers to it in paragraph 6of his report, which is before you. We know that fromthis USB stick the digital material, that is the graphs,could be manipulated to zoom in on certain peaks and tozoom out, so the field of vision depicted in any oneparticular printed page which is before the Tribunal is afunction of what the operator at the time of hitting"print" decided to focus on.

So, in that context it's important to read theevidence of Dr Vine at paragraph 14, where he says thefollowing, "Other materials analysed under the name ThyA2, Thy C and Thy C2" - these are all analyses conductedin May 2012, these are not the 2013 ones - "gave massspectra which did not contain significant peaks above theMz 2000. These materials therefore clearly do not contain

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Thymosin Beta-4." Again, a clear and unequivocalstatement. He goes on to say, "I'm unfamiliar with thenames used for substances analysed except for Beta-4s.They do not correspond."

In the light of the strength of his statement,his evidence should be read specifically at page 758, andwe accept when Professor Handelsman sees these documentshe only has the printouts because that was the only thingconsidered relevant by whoever was hitting "print", butDr Vine says this, addressing it directly to you,Mr Chairman, "I'm not sure if this is admissible,Mr Chairman, but in my paragraph 14 [the part I just read]I say there aren't any significant peaks. That commentwas made on the basis of examining the files themselves,that I think they did go beyond 4,000," that being therange that we see, "but I couldn't see anything in them."He puts a caveat on that and I accept the caveat and wehave to because that's the evidence. He says, "That's myrecollection, but I would need to recheck that."

In light of the other evidence of Dr Vine and thecautiousness with which he was prepared to state hisopinions, in my submission the Tribunal could infer thathe did do those examinations because it would be unlikethe way in which he presented as a witness for him to havestated a conclusion as definitively as it is stated in hisreport and also the comments he made when he was here inthe Tribunal without him having done those checks.

To that extent we rely on the originalsubmissions filed that there were four, and even if onetakes ASADA's case at its highest and there is some doubtabout the range in which these things were looked at,

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there is at least one other substance on that date underthe name "Thy" which has nothing like Thymosin Beta-4.The relevance of that can't be understated.

We don't know where they came from, and we don'tknow where they went. If Mr Alavi was producing twothings, let's say for argument's sake, and this is by nomeans conceded, let's say for argument's sake the oneanalysis for Thy A5 is Beta-4, and Mr Grace is going toaddress you on this a bit more, but let's say it was, thenthere is another vial which has something in it whichain't anything like it. If they both went to Essendon,there is at least a 50 per cent chance that whoever gotinjections from those vials or the same batches from whichthey came didn't get Thymosin Beta-4.

That's at ASADA's highest case. That's before weadd the Coenzyme Q10. That's before we add the Melanotanwhich Mr Grace has taken you to the references in theinterviews and of course there is no invoice from Alaviwhich suggests the Melanotan was sourced from him. Itraises the spectre of another supply from Mr Dank and thisTribunal couldn't be comfortably satisfied, given theevidence around AOD, around the description of the vialswhich I'm going to come to very briefly, that the onlysupply for the Essendon Football Club was throughMr Alavi.

Finally, I just want to address very briefly theissue about concentrations, vials, amounts, things likethat. Mr Knowles yesterday went to an email that wasgenerated in 2012 which referenced 3 ml vials of a certainprice to indicate you could be satisfied that the vialsthat are represented on the invoice that initially says

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matters were dispensed to Essendon but then is reversed,and again we point to the Alavi interview about what hesays why that happened, but there is so much inconsistencyabout concentrations, about amounts, about dispensingrecords; there is so much variation in what is discussedthat by way of reconstruction and going back and looking,one can do whatever they really want with the figures tomake it fit.

ASADA says there's an email in 2012 from Mr vanSpanje, and remember their case is that Mr van Spanjeorders what Mr van Spanje wants and what Mr Dank wantsMr Dank orders via Charter at least in relation to thefirst delivery. No suggestion that Dank is part of thissame 3 ml at $250, although the Tribunal could infer that.

By way of example, Mr Alavi on the fifth occasionhe is interviewed is taken to some text messages whichrefer to a 2 milligram per ml concentration. He is thenasked about the 26 vials which are dispensed as shown onthe record. If one looks at his interview, this is AS-7,tab 4, at page 19, this is a demonstrable exercise, in mysubmission, in trying to make the figures, of which thereare all different variations and types, fit into thecalculations to fit the case.

At the bottom of page 19, line 43, "Thymosin?No, he hasn't mentioned the type of Thymosin. I didn'teven know what Thymosin was at that stage. 2 milligramsper ml refers to the strength. CJC, which is a growthhormone releasing peptide, that's a bit different tosecretagogues." So he is being asked about an SMS wherethere is a reference to 2 milligrams per ml. He goes onwith this, Mr Walker at about line 8, "Okay, now that

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Thymosin, 2 milligrams per ml?" Alavi, "Yes." Walker,"That will be important when we get there a little bitlater on ...(reads)... would correlate effectively toabout 26?" Alavi, "Yes, vials."

So Alavi is agreeing concurrently with everythingthat's being suggested to him by Mr Walker that at anearly stage what we are talking about was two milligramsper ml. It goes on, and ASADA rely on this part ofAlavi's evidence, this very next bit, but not the bit thatprecedes it and comes after it. "Give or take a few percent, but usually we get given a bit of extra wastage whenwe order peptides. So, yeah, 250 milligrams of Thymosin."Walker, "Yes." Alavi, "Will produce roughly 26 vials of 2milligram per ml concentration of 5 ml vials."

So Alavi, the very man who ASADA alleges did thiscompounding, in his fifth interview, when given as much ofthe documentation and refreshed his memory about all ofthese things, is talking about 2 milligrams per ml, 5 mlvials. It goes on, "Okay, that now, and the context willbecome" - Alavi says "Mmm" - "I suppose clearer later onis that the Essendon invoice where you speak about peptideThymosin ...(reads)... there is really no other way for usto have made it up other than 2 milligrams per ml." Thisis the very man who compounded it.

I'm not suggesting, members of the Tribunal, thatthis is direct evidence. For a whole lot of reasons wecan't necessarily accept Alavi at face value and of coursewe haven't had the opportunity to cross-examine him. Butit just shows that when one picks a bit of this evidenceover here and a bit of that evidence over there, thatcertainly in relation to these hard and fast figures we

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can make anything fit.CHAIRMAN: The records that we have from Alavi are very

limited.MR IHLE: Are very limited and the records demonstrate - - -CHAIRMAN: Not what you would expect a compounding chemist to

have, in terms of what we have seen. I know there is anexplanation about his computer crashing and as a result helost a lot of records, but in terms of what we have gotit's very limited.

MR IHLE: Yes. It is important, in my submission, too, to lookat the genesis of the suggestion of a 3 ml vial, whichreally comes from the email from Mr van Spanje, andI concede this is also sent to Stephen Dank on21 November. This is where the idea of the 3 ml vialfirst comes from. What we also have in this email is adescription of the colour-coding that Mr van Spanjerequires in relation to peptides being produced for MRCand ICB by Como compounding.

I won't go through the exercise now, but if theTribunal is to look at those colours as indicated in thatemail and compare that with the blown-up photograph of thevideo at AS-16, or alternatively at the Alavi web page,one can see that Alavi's marketing material showscolour-coding consistent with what it is that Mr vanSpanje indicated he wanted in November 2011, keeping inmind that Alavi says, "We've used the same colour-codingtoday." There is some support for that, because wherethere are substances that are listed, and I will justleave to the side Thymosin for a second, but where thereare substances that are listed, the colour-coding shown onthe video is the same as the colour-coding which really

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originates from Mr van Spanje.The significance is this. Mr van Spanje in his

email refers to Thymosin being blue, and ASADA relies onthe video which shows Thymosin having an orange cap, andnot one player recalls either an orange or a blue cap.Mr I think refers to a black cap, and one canlook at the video and see there's another substance thathas a black cap.

But, in any event, that orange cap in the Alavimaterial which shows Thymosin Beta-4, I would invite theTribunal to look at to see that it is distinctive and incircumstances where a number of the players give whatcould be described as imperfect, albeit somewhat vividdescriptions of what they saw, one would expect thatorange cap to have been seen by someone.

They are the matters that I would seek to raise.CHAIRMAN: Thank you, Mr Ihle.MR GRACE: Members of the Tribunal, I now want to move to the

18 February 2012 delivery to Alavi and the questions thatI suggest the Tribunal would need to be comfortablysatisfied of are these: Can the Tribunal be comfortablysatisfied that Thymosin Beta-4 was received by Alavi on18 February? That's the crucial question. If so, can theTribunal be satisfied that Thymosin Beta-4 was compoundedby Alavi? If so, can the Tribunal be satisfied thatThymosin Beta-4 so compounded by Alavi was supplied toEssendon?

Mr Ihle has already mentioned this issue aboutthe colour of the cap. An associated question is: Wasthe Bio21 analysis related at all to any supply ofThymosin Beta-4 to Essendon? As we know, there were five

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graphs produced by the Bio21 analysis in May 2012. Wheredid the four purported Thymosins, headed on four of thegraphs which were sought to be analysed by Vania Giordani,where did they come from? So that's the context in whichI want to address the next section of the submissions.

We know that the 18 February 2012 delivery cameunexpectedly for Alavi. He says he never ordered it. Itjust arrived out of the blue. Can I take you to AS-3,page 279. That's what Vania Giordani says in herinterview she received and noted in a notebook. There isno identification of source. Under the "Paid" column youwill see a question mark. I don't know what that means.I don't think anyone knows what that means. I don't thinkAlavi was asked any questions about the question mark.

There is no indication on that document that itcame from Cedric Anthony or from anyone. There is noindication that the Thymosin was Thymosin Beta-4. Yet weknow that Alavi had possession from Sichuan at some stagein the middle of 2012 for Thymosin that was compoundedinto cream by Vania Giordani in June.

We don't know what the Thymosin that Alavi wastalking about in the text message to Dank in May 2012 was.We know that Alavi received, he thinks by mistake, at somestage Thymosin Alpha. I will take you to thesereferences. This is in 2012.

So what's the starting point? The startingpoint, you might think, is not what ASADA says it is atparagraph 566 of their submissions, where they say this,and I quote - I will start at 565, "At his interview Alaviconfirmed that he ascertained the receipt of anotherdelivery of peptides on 17 February 2012." That's what he

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says, but the record says 18. "Alavi said hisrecollection had been prompted by a handwritten record ofreceipt ...(reads)... This record reveals that one gram ofthe following peptides were received by Alavi on18 February 2012: CJC-1295, Thymosin Beta-4." This is inASADA's submission, Thymosin Beta-4. It's not there.It's a mistake.

MR HOLMES: We corrected that.MR GRACE: Not in the copy I have.CHAIRMAN: What paragraph?MR GRACE: It doesn't really need to matter. It is withdrawn.

It should be Thymosin.CHAIRMAN: That's clearly what the document says.MR GRACE: Yes. So there is no indication from the document

itself that it's Thymosin Beta-4. We then have thecertificate of analysis which Professor Handelsman says issuspicious, which contains so many defects and I thinkthere's a concession by ASADA that it's been doctored to asignificant extent. It is obviously the subject of someforging and uttering on the part of someone and it's justtotally disreputable on its face as indicating anything.I think Professor Handelsman very fairly agreed with thatproposition.

So, ASADA says, well, there are things on itwhich do indicate it reflects a delivery of ThymosinBeta-4, for instance the molecular weight, even thoughthere is a numeral that's been transposed, they say bymistake; that there's the chemical formula which, althoughit's in capitals, reflects the correct chemical formula;that even though there's 45 stated amino acids, it'sreally 43, and Professor Handelsman explained that; and

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the seal not being there and the date not being there andthe words being changed from "GL Biochem" to "we warrants"from the original reflects the desire by those who weresupplying this document to hide the fact of its source, ofthe source of the substance. So they wanted to hide fromMr Alavi - - -

CHAIRMAN: Where they were getting it from.MR GRACE: Yes, and why they would need to change it in the way

they have is unexplained, of course, because if ProfessorHandelsman's evidence is accepted, which it should be onthis point, it's typical for these sorts of certificatesof analysis or analyses to be created from "boilerplates",I think was the word that he used.

CHAIRMAN: Yes.MR GRACE: If it was created from a boilerplate of Thymosin

Beta-4, why wouldn't it say Thymosin Beta-4? Why wouldn'tit have the correct molecular weight? Why would thereneed to be an insertion in this document by the forger andutterer of the molecular weight? And why would a companyworth its salt such as GL Biochem is suggested to be worthhave an incorrect molecular weight? It's justextraordinary.

So, there are so many question marks about thisdocument. As I said, Professor Handelsman himself reallythought it was very suspicious. So we say you can't getany support from this document, which didn't arrivecontemporaneously, in any event, with the substances,according to Mr Alavi, but arrived at some later date.You can't get any support that what was delivered on thatdate was Thymosin Beta-4.

We know that Alavi says in his interviews, which

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was a lie, that he went to Bio21 in March 2012 and signedup to Bio21 then and did all his tests then. We knowthat's not true because we have the Bio21 documents and wehave the statement from the CEO or similar of Bio21 to theeffect that there was no analyses done until those Mayanalyses that had been produced.

So what do we pick up from the May analysis? Wehave at best a graph that shows a reading 10 Dalton pointsabove the molecular weight of 4963 or 4961, I'm not surewhat the exact figure is, of Thymosin Beta-4. What ASADAsays is, "That's within a 10 Dalton calibration error."Where is the evidence that there is a 10 Daltoncalibration error on this machine? Where is the evidence?It's certainly not from Bio21. This is an example oftrying to match the uncertain proofs, the speculativeproofs, with the case theory.

Dr Vine says that, in his conclusion, "It cannotbe reliably concluded that the materials analysed at Bio21have been shown to contain their purported constituents.While the analysis of Thymosin Alpha-1" - and that was the2013 analysis - "provides support for its identity, thesame cannot be said of the other materials includingThymosin Beta-4, where unknown calibration accuracy andpoor resolution, together with the use of a single massspectrometry peak, does not provide reliableidentification. The best that can be said of theanalytical data is they provide only a crude indication ofthe identity of the substances concerned."

Of course, we don't need to rely just on thatbecause we have ASADA's own in-house expert, Dr StephenWatt. What does Dr Stephen Watt say? He says at page 9

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of his report - I'm not sure what PG number it is. MaybeMr Hooper can help us. It could be part of AS-11,I think.

CHAIRMAN: Isn't it part of that material, AS-11?MR GRACE: Or it could be in correspondence. Perhaps I will

just read it to you. It is a short extract. Perhaps tosave time, I will just read it out.

On page 9 of Dr Watt's report, and you willrecall he included in his reports the various graphs andso on and gave a detailed analysis. He said, under theheading "Calibration", "Through the review of the dataacquired for files Thy A-5, Thymosin OOF, Thymosin TRC andThymosin Beta-4, I was not able to identify calibrationwas applied to these spectra ...(reads)... as it hasinternal standards which covers its mass range, this peakis likely to have a better mass accuracy."

That's ASADA's own expert. So that is the Bio21analysis. We then go to, as I indicated earlier, thisissue of what, if anything, was compounded by Alavi.Alavi sends a text to Dank in May, and I think Mr Holmeshas referred to this, "Come and pick up the 15 vials." Wedon't know whether they were picked up. There is noinvoice. There is no indication from Vania to say thatshe compounded it. There is evidence - if it was liquid,that is. Vania says she compounded cream in June, butnever liquid.

We have no evidence of any invoice going toEssendon after that January invoice and reminders that aresent which you will see from time to time. But Essendonultimately pays the invoice in about May, I think it is.Essendon was not billed for anything after 31 March.

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Nothing. Not even the supply of vitamins. They were notbilled. There was just nothing.

So what ASADA says, how they get around it isthey say, "Well, they wanted Dank to be successful so thathe could build up a reputation in business and it was inAlavi's interest to give Dank free Thymosin Beta-4 forEssendon, because that would promote Dank, Dank would thenprovide further business for Alavi and ingratiate himselfwith Alavi and it was good business for Alavi to do that."

Well, what's the logic behind that? We say thereis no logic in Alavi giving Dank free Thymosin Beta-4 forEssendon, when Dank himself, whatever the businessrelationship that Alavi wanted to foster with him or Dankwanted to foster with Alavi, was not paying Alavi.Essendon was paying Alavi for any legitimate itemssupplied. Essendon was aware of the consent forms. Theyhad Thymosin on them and had AOD on them. There would beno problem in Alavi sending a bill to Essendon forThymosin because after all it was on the consent form.This was expected. Dank had authority from Essendon.Essendon paid for all the other substances, namely thevitamins and the other items eventually. You can seethose invoices at AS-3, 194 to 201.

By 31 March Alavi was clearly frustrated aboutdealing with Dank and the outstanding accounts from MRCand ICB. You might remember some of the text messages andthe other correspondence that was going backwards andforwards about not being paid and him being upset aboutthat. You can see Alavi by this stage saying, "I don'twant to deal with these guys. They're so unreliable. I'mgoing to find another source." So he goes to Sichuan

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Hengli, and from Sichuan Hengli in late April he orderssubstances and they arrive about three weeks later, washis evidence.

So Alavi sees the writing on the wall with theseguys, notwithstanding that he does continue to deal withDank and van Spanje later on. But there were problems inthe relationship. But there was no benefit to Alavi, ifhe was supplying TB4 to Dank for use by Essendon, why hewouldn't bill Essendon. After all, he knew aboutEssendon. It wasn't a hidden topic.

So we have the jump in logic that because Dankwas telling players, "I'm giving you Thymosin," andbecause ASADA knows the January supply, if it wasThymosin, had been exhausted or was about to be exhaustedat the very least, but let's presumably say exhausted,Dank had to get Thymosin. So they reach the conclusionthat when Dank was telling the players from May onwards,"You're getting Thymosin," it must have come from theThymosin that arrived on 18 February 2012, without anysupporting material other than one text where Dank istold, "Come and pick up your 15 vials." No bills; notknowing whether that's associated with the AOD experimentand the Qatar experiment, one doesn't know, because thatwas all going on at the same time, and there wasdiscussion about the AOD and Thymosin study together. Sowe have all these unsatisfactory aspects of this18 February delivery.

Then we have the evidence given by Alavi throughthe questioning, which was led from him in a most leadingfashion, and I think Mr Holmes conceded that, on the26 November interview. If I could take you to that,

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I will just refer you to that very briefly, at tab 2 ofthe Alavi interviews in I think AS-7 on 26 November atpage 254.

He is asked, top of page 254, and this is talkingabout in January, "Steve Dank is asking Shane Charter forThymosin Beta-4 and Shane Charter is asking him tocompound the Thymosin. He is not stipulating whether itis alpha or beta." Mr Walker is saying that. Alavi says"Yeah". Walker, "But given the context I have given youbefore and given the fact that only Beta-4 was procuredfrom China," so that's the assumption underlying thequestion. Alavi says, "Yeah, you are going to see them asBeta-4, yeah. Walker, "Because you don't have ThymosinAlpha?" "Yeah." Walker, "Thymosin Alpha hasn't enteredthis discussion anyway." Alavi, "No, no."

Nolan, "Well, it's your own supplies the stuffthat's coming to Charter at that date, isn't it?" "Yes,that's right." Walker, this is line 36, "So it's fairthat, would you agree then, that it's Thymosin Beta-4 yourreference to Thymosin?" Alavi, "Yes, yeah, I guess, Imean I can't be 100 per cent ...(reads)... because, youknow, the invoices and everything else."

Then there is reference to that internet documentthat Charter sent to Dank and Alavi. Alavi says, "Well,you can assume it's Beta-4 then." Walker, page 255, "Canwe take it further than assume? Do you think it's fairlycompelling now that it's Thymosin Beta-4?" Alavi says,"Well, this is the problem because I asked Steve...(reads)... because he wanted me to sign this letter hegave me, right?" And I have already taken you thismorning to the references that he wasn't sure what it was.

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But then if we go further on, we get led into the18 February discussion and at page - I have misled myself.On the 14 April interview of Alavi, this is where he istalking about sending the SMSs to Dank about the deliveryof a particular order of Hexarelin to a woman. At pages39 and 40 he is talking about the address and how youcould check the tracking number and how the substance wasat the post office waiting for this woman to pick it up.

You might think that's irrelevant to our case.Yes, it is. But the relevance of it is this. There is anassumption, because it has been at the post officewaiting, it would have degraded. He says at line 25 onpage 41, "That supply would have probably been no good sowe have sent out another supply. However, I may not havesent it out and that's why I've made it." "Yeah,"Mr Walker says.

MR GRACE: "And I'll say, 'oh, I'll send out another batch.'I don't usually send out another batch of the expensivedrugs without checking, you know. So I probably forgot tosend it."

He's then led into questions about the peptidesource from China given to Dank, and Dank telling him,Walker suggests, at line 21 on page 42, that the Mimotopestested it and they were fine, and then he's asked this,"And then from your own enquiries you have ascertainedthat you got another delivery of peptides." This is

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talking about the 18 February one. He says, "Yes."Mr Walker says, "From Cedric Anthony?" Mr Alavi,"Correct, yes. And you received those on 18 February?Yes. And what prompts your ability to recall? Is theresome records that you keep? Yes, manual records." Well,the only manual record that's been produced - - -

CHAIRMAN: That is the document you were talking about earlier.MR GRACE: Yes. No mention of Cedric Anthony. There are some

email and texts, but not about that.CHAIRMAN: But that document itself doesn't reveal the source.MR GRACE: Yes. Then he says at line 26 on page 43, Mr Walker

asks him, "What manual records is this from?" He says,"This would have been just pretty much as stock hasarrived ...(reads)... so we've got a record of what's comein and what's going out." Well, we don't know what'sgoing out.

CHAIRMAN: That's what I was going to say, about the going outbusiness.

MR GRACE: "So she keeps a record of that, a manual record,thank God, because I can go back and have a look at this.With respect to invoices and things like that...(reads)... she started in late January, early February,so before that I didn't have a record like that myself."

Then he's asked, "You've been able to go backfrom the entries that she has made ...(reads)... if I justgo through it you have its listed date, peptide quantity,received and paid." He says, "Yes". Well, the documentdoesn't say - it's got a question mark about paid.

Then Mr Walker goes through all the items andsays, "You got Thymosin?" "Yes." "And you also indicatedprior to the recording that you also asked Cedric to

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obtain some analysis reports for some of thesesubstances." Where is the evidence of that?"Particularly in terms of Thymosin and Hexarelin...(reads)... and if I can get you to label those?""Sure." Mr Walker says "Thymosin C" at line 8. There isno Thymosin C document. All we have is that Thymosincertificate of analysis. I could be misreading it.

MR HOLMES: Exhibit C.MR GRACE: I accept that. That must be the certificates of

analysis.MR HOLMES: Which are in AS-3.CHAIRMAN: Which you referred to earlier.MR GRACE: Yes. Then it goes on and I invite you in due

course, members of the Tribunal, to read that interviewbecause in places it is just breathtaking in its audacity,in my submission.

The next item that I ask you to look at or thenext matter is paragraph 67 of our submissions. You willsee we say there that the only suggested indication ofwhere it came from and what it contains resides with thedubious certificates of analysis and HPLC documents andAlavi's assertions that it came from Anthony. But even onAlavi's account, Alavi didn't know the delivery was toarrive. "I don't think I ordered it. It was just sent tome. It may have just arrived." You will see the footnoteabout that.

Charter never gives any account of being involvedin its sourcing or supply. Alavi does not know, but canonly merely assume that Anthony sourced the peptides fromthe same supplier. That's the leading questions thatMr Walker led him into accepting, which we say have

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absolutely no probative value. The certificates ofanalysis did not accompany delivery. They could berequested and were provided later by email from Anthony.At the time Alavi first referred to these certificates heindicated he still had the email, "I've got them all,"although no such email has ever been forthcoming.

So those are the matters that we want tohighlight. If we go next to the proposition that I raisedas one of the questions earlier, that even if the Bio21analysis was of TB4, what evidence is there that it wasever compounded by Alavi? He doesn't give evidence aboutthat. What evidence was there that it was ever suppliedto Dank or Essendon or, if it was supplied to Dank, thatDank provided it to Essendon? I have made the points inrelation to that.

Can I next go to the issue of - I'm trying towind up as quickly as I can here.

CHAIRMAN: That's all right. Take your time.MR GRACE: Could I take you to that interview again of 14 April

2014 in relation to Thymosin Alpha. At page 60 of thatinterview he is asked questions about AOD and he said heonly got one gram of AOD from Dank. That's on page 59.On page 60 he was asked by Mr Walker, "Also in June,21 June, when you received 2 grams of Thymosin that youpurchased through Sichuan Technology ...(reads)... sothere was one vial in there, roughly a gram's worth, thatsays Thymosin Alpha-1 on it. We tested it. It isThymosin Alpha."

So that corroborates that test of Thymosin Alphathat I referred you to earlier.

MR HOLMES: What does the next line say?

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MR GRACE: "We haven't really used it. I think we used it forhair lotion, that's correct," and so on. Then if we go topage 63, Mr Walker says, "You've given me the Hexarelinand Thymosin certificates," when he's asked about theanalysis certificates, these are the February ones, "whichfrom your perspective confirms at the very least...(reads)... that would point more likely than not thatit's Thymosin Beta-4. That's right."

Then he is asked by Mr Walker, "You have movedaway from Cedric Anthony and Shane Charter ...(reads)...delivered in June 2012 and then 0.5 of a gram inDecember." Mr Walker says, "They are all Thymosin Beta-4.You also think you may have been provided by accident orby mistake Thymosin Alpha because you have a vial ofThymosin Alpha?" "Yeah, correct."

So it is all, we say, unsatisfactory. It is justso vague and imprecise, it meets the description thatJustice Dixon used in Briginshaw of "inexact proofs".

Can I next, in conclusion, say that it's trite,as I said in the opening this morning and what we said inour written submissions, that the players treat thesematters most seriously. The players have approached thismatter from the position which is conceded by all partiesthat they had no knowledge, that they were duped, thatthey were conned, they were deceived and exploited, andit's deplorable and it is totally unsatisfactory andunacceptable that that occurred.

But in order for the players to be found to havecommitted an anti-doping rule violation, this Tribunalneeds to be comfortably satisfied, from evidence that ismore than inexact proofs, that is more than speculation,

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that is more than conjecture, and what is being submittedhere as amounting to proof to the level of comfortablesatisfaction we say meets that description.

Just contrast, in relation to these types ofinexact proofs, what the players have said, as I havesummarised from their interviews when I read before lunch,about their recollections of what they were given and whatthey were injected with. It is all over the place andthey can't be criticised for that. But ASADA says, "Oh,well, when a player says 'I only got melatonin injections'or 'I don't know what I got,'" that that somehow, becauseof what another player says, means that they got ThymosinBeta-4, is beyond understanding from our side of the Bartable. It just cannot meet the level of comfortablesatisfaction.

If one has to rely upon statements by Dank thathe has given them a particular substance in circumstanceswhere there's no proof of any source of supply to Dank ofthe substance AOD, when he's telling them, "I'm giving youAOD," and that's not just one player, it's many players,and they have signed a consent form and some players aresaying, "We signed up to the regime and we assumed we weregetting what was on the consent forms," and there is noproof he ever had it, how could anyone accept what Danksays to them as being the truth?

We say that, for all the reasons that I haveadumbrated and what's contained both in our oral andwritten submissions, that the Tribunal cannot be satisfiedto the requisite degree of proof in relation to any playerthat he has committed an anti-doping rule violation.Those are the submissions.

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CHAIRMAN: Thanks, Mr Grace, for your assistance. It isappreciated. Mr Clelland.

MR CLELLAND: Mr Chairman, firstly - - -CHAIRMAN: I was reading again the last paragraph of your

submission. Do you follow the Jeep advertisements ontelevision?

MR CLELLAND: I have seen those, some of them.CHAIRMAN: That's what came to mind when I read that last

paragraph in terms of "Don't hold back". You haven't heldback.

MR CLELLAND: It was heartfelt.CHAIRMAN: But it does sum up how you and your clients see the

case.MR CLELLAND: Yes. It has a philosophical and moral imperative

to it, but it also impacts on the evidence that'savailable to this Tribunal. I think you, Mr Chairman,have commented more than once, with something approachingbewilderment, if I might say with respect, about thepaucity, if not absolute lack, of records kept by thisfootball club. It does leave the Tribunal in a positionwhere, as you commented earlier on today, there's just norecord of what these individual players, any of them,actually received by way of injections.

CHAIRMAN: It could be said that you shouldn't have to rely onwhat they remember that they got. If I go to the doctorand maybe the doctor thinks that I need to have aninjection of something, if some issue arose about itlater, let's say in terms of whether there might be anissue of lack of care on the part of the doctor, youwouldn't expect that issue to be determined on what myrecollection might have been about what was administered.

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MR CLELLAND: Quite so.CHAIRMAN: You would expect that the doctor's records would

make clear very clearly what it was that was injected andwhat the dosage was, et cetera, et cetera, and we don'thave any of that.

MR CLELLAND: Particularly because, in 99 times out of 100,what you were able to say had been injected would eitherbe hearsay or surmise and, as is the case here, not aninformed admission, if that was being sought to be reliedupon, because you don't have the expertise and indeed, asin this case, there is nothing about the appearance or theimmediate effects of Thymosin Beta-4 that would permit youto say in any informed way that that's what you had beeninjected with.

So you are, with respect, quite right. As I say,it deprives the Tribunal of that information and thestatements of the players are at best statements of beliefbased upon what they were told and it doesn't fill theevidentiary gap.

CHAIRMAN: They are there to play football, really. That'stheir number one focus.

MR CLELLAND: Yes, and they probably believed they were beinglooked after and their welfare was of primaryconsideration.

CHAIRMAN: There is no doubt about that. If you read throughthe interviews, it is just all the time, "Well, I trustedthe club and the club would employ people who knew whatthey were doing. I would have no reason to question whatthe club was doing because as far as I'm concerned theclub's it." Which I think you would say basically appliesto all footballers in that sense, bearing in mind we are

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generally talking about young men, it is a big commitmentthey make to play at that level and they are basicallybeholden to the club seven days a week, except for thetime when they have got some time off, but otherwise it'sa seven days a week situation.

It's a bit different from when I played, whichwas two nights a week training and then have a kick on aSaturday. This is a seven days a week commitment. But itis not only the lack of records at Essendon; it is thelack of dispensing records.

MR CLELLAND: Exactly.CHAIRMAN: If I went to my pharmacist and there was some query

about what I had been dispensed with, they would go backyears, they would have it precisely what was dispensed andwhen, and who authorised it. We haven't got anything likethat. We have some invoices and various other sort ofrecords that he produces, but that's about it.

MR CLELLAND: You have some bits and pieces.CHAIRMAN: Bits and pieces.MR CLELLAND: In the so-called chain of supply or continuity,

but by no means - - -CHAIRMAN: That's not ASADA's fault. They investigate it and

get what they can. It just wasn't forthcoming.MR CLELLAND: Quite. We say, and we say about their

submissions, with respect, and not in a snide way, butthey are driven more often than not to conjecture andoften guesswork about what actually happened because ofthat absence of records or at least reliable records.That's the problem.

We have put in some written submissions. Theyare relatively brief. We don't want to rehearse those,

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but we adopt them. We have listened - - -CHAIRMAN: They are very much to the point, if I may say so.

So don't worry about the brevity of them, Mr Clelland.MR CLELLAND: We had some confidence that the submissions of

our learned friends for the remaining players woulddeliver the kind of comprehensive submissions both inwriting and orally that they have. We adopt those and weare grateful for them and nothing that we say now isintended to detract from them.

If the Tribunal will forgive me, I'm going toreview my notes as I go and perhaps pick out a few pointsthat we want to make. With a bit of good luck and goodmanagement, I might be able to finish before 4 o'clock.

CHAIRMAN: You take your time.MR CLELLAND: Thank you. Can we deal first of all with the

concept of "comfortably satisfied". We say that thatdoesn't turn on fine distinctions. The words mean whatthey say, as you observed this morning, Mr Chairman. Muchas both Your Honours would have told juries countlesstimes, like "beyond reasonable doubt", the words mean whatthey say and we are content to have it dealt with on thatbasis. Importantly, what it requires is an actual levelof satisfaction by the Tribunal that any individual playeractually received an injection in the relevant period ofThymosin Beta-4.

The Tribunal, in our submission, should rejectany attempt to dilute that standard on the basis thatsomehow the players were innocent dupes and therefore theconsequences may not be that serious for them.

I know Mr Holmes foreshadowed perhaps a wilfulblindness submission should the violations be proved. But

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that is not a basis to water down that standard of proof.If it be, as I think has been submitted on behalf of theAFL, that the matters that the Tribunal can take intoaccount in informing that test are really confined to theseriousness of the matter, really the consequences, thereputational consequences alone are sufficient to say thisis an extremely serious matter and that the test shouldnot be watered down in any sense.

We would add to that that might even be more sowhere there's no defence of an honest and reasonablemistake of fact available to the players.

CHAIRMAN: It is strict liability in that sense.MR CLELLAND: More than. More than strict liability. It is

strict liability and even an honestly and reasonably heldbelief about a state of facts will not avail them of adefence. That's the old Proudman v Dayman.

What the Code requires, and if I could ask theTribunal just to go to this document, firstly, perhaps thesubmissions of ASADA at paragraphs 18 to 19. This istouching on this question of reliable evidence. What ispointed out is that a violation under clause 11.2 may beproved by any reliable means, then there was aparaphrasing of the footnotes to the Code and it reads,"This may include admissions by the players, witnessstatements, documentary evidence or other analyticalinformation which does not otherwise satisfy all therequirements to establish a positive analytical sample."

If the Tribunal goes to the 2010 Code andactually turns to the first of those footnotes, sofootnote 9.

CHAIRMAN: I have left it down in the Chambers, the actual

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folder with the Code in it.MR CLELLAND: If you don't have a copy up there - - -CHAIRMAN: We are pretty familiar with it.MR CLELLAND: Mr Ihle will hand his up. I just want to take

you to the full text of the footnote.CHAIRMAN: Thanks.MR CLELLAND: What it reads is that, "It has always been the

case that use or attempted use of a prohibited substanceor prohibited method may be established by any reliablemeans. Unlike the proof required to establish ananti-doping rule violation under clause 11.1, use orattempted use may also be established by other reliablemeans" - emphasis on "reliable" - "such as admissions bythe player" and so we would say parenthetically that mustmean informed admissions; "secondly, witness statements,documentary evidence" - well, the witness statements wouldbe reliable witness statements, reliable documentaryevidence - "conclusions drawn from longitudinal profilingor other analytical information which does not otherwisesatisfy all the requirements to establish presence of aprohibited substance under clause 11.1."

So this is the extension of that propositionabout analytical information which doesn't otherwisesatisfy all of the requirements. It actually is specificto this proposition, "Use may be established based uponreliable analytical data from the analysis of an A samplewithout confirmation of an analysis of a B sample or fromthe analysis of a B sample alone where the anti-dopingorganisation provides a satisfactory explanation for thelack of confirmation in the other sample."

Likewise at 31, which is the relevant footnote to

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15.2 on page 33, and what is spelt out there is that thefacts may be established by any reliable means, includingadmissions, and again it's made clear that can be based ona player's admissions, "the credible testimony of thirdpersons, reliable documentary evidence and reliableanalytical data from either an A or B sample orconclusions drawn from the profile of a series about theplayer's blood or urine samples."

So the proposition that analytical informationwhich does not otherwise satisfy all the requirements toestablish a positive analytical sample really needs to beunderstood just to contextualise what reliable evidence isbeing referred to in that regard, it's still where thereis an A sample and in limited circumstances a B sample maynot be provided.

CHAIRMAN: Yes, it's not enough to be able to charge under theprovision relating to a positive analytical sample, but inrelation to a use charge which is not relying upon thatwhat they are saying is, "Well, what's available by way ofanalytical sample may be relevant, may be evidence thatcan be used with respect to establishing the use."

MR CLELLAND: Correct. But that proposition that the reliableanalytical data might be available, it is quite specificto that instance where you are talking about having an Asample but not a B sample.

CHAIRMAN: We don't have any of that.MR CLELLAND: Exactly. But it shouldn't be read as enabling

this Tribunal to say, "Well, we have some analytical datathat doesn't satisfy the normally rigorous requirements ofWADA. Therefore we can act on that."

CHAIRMAN: I don't understand Mr Holmes to be putting it in

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that context. It's more he's putting it as, well, it'spart of the circumstantial evidence - - -

MR CLELLAND: Quite so.CHAIRMAN: That we can take into account in terms of ultimately

drawing the inference, as distinct from the situationwhere a person has been tested and there's been ananalysis, but the analysis doesn't go so far as to enablea charge to be laid on the basis of a positive result, butit can be used in relation, say, to a charge of use of aprohibited substance.

MR CLELLAND: What we are saying is this: that there may becases where circumstantially you might not have ananalysis of the actual substance used, but in this case wesay that in all the circumstances this Tribunal wouldrequire strict proof that there was, and I think this isconceded by ASADA, that what emanated or was supplied by,they say, GL Biochem for batch 1 and batch 2 was in factThymosin Beta-4. That's the point we make.

CHAIRMAN: Yes. They wish us to infer that from all thecircumstances, notwithstanding there hasn't been thatanalysis to which you refer.

MR CLELLAND: We will come to that and how they seek to provethat. So, yes, admissions can be used and there mighteven be circumstances where they can be relied upon. Thiscase is not one of them. Yes, third party statementsmight be used when they are reliable. Well, we have putin our submissions at 39 to 43, you have heard thesubmissions of our learned friends, and indeed ASADA'ssubmissions, for all the reasons why Messrs Charter, Alaviand Dank ought not be relied upon.

We say that the invitation to the Tribunal to in

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effect try and distil out bits and pieces of Charter orAlavi or Dank in all the circumstances is really an aridexercise. It is like trying to find a snowflake in thedesert, really. The task is really arbitrary and largelyfutile, we would submit, to try and decide which piece ofevidence, which assertion by Mr Dank on any givenoccasion, or Mr Charter, or indeed Mr Alavi, is going tobe relied upon.

We have referred in our submissions at paragraph3 to what Professor Handelsman and Dr Vine have saidregarding the manner of testing and the standards fortesting. We would say that most of ASADA's submissionsyesterday to the Tribunal, the so-called big picture ofMr Holmes, really dealt with establishing whatindividuals, primarily Mr Charter, Mr Alavi and Mr Dank,might have believed or what their intention was. Whatthat big picture approach can't do, in our submission, issatisfy the Tribunal as to the identity of the substance;that is, to prove that the substance sourced andultimately injected was Thymosin Beta-4.

ASADA's case is spelt out at paragraph 23 as astarting point, if we might. I think this is what youwere asking about earlier on today, Mr Chairman.

CHAIRMAN: Yes.MR CLELLAND: This was the so-called "indispensable" facts.CHAIRMAN: Indispensable facts. "Intermediate" facts, I think

is the word used in the submission.MR CLELLAND: "Intermediate" facts was used and I think,

Mr Chairman, you have rightly said that that might derivefrom Shepherd's case, but it went on to explain that thosewere facts that were part of the indispensable basis. You

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will see that the first of those at 23.1 is that ThymosinBeta-4 was procured from sources in China. We say, if itneeded any elaboration, that ASADA's case fails on each ofthose indispensable elements. If we deal with the firstof them, again just cross-referencing to our ownsubmissions at paragraph 5, we have pointed out thedeficits.

Then if I could ask you to go forward to 422 ofASADA's submissions, this is the evidence that ASADAidentifies in support of that first proposition. In casethere was any doubt that ASADA are in agreement that theyneed to prove the fact that it was Thymosin Beta-4, youwill see the heading on page 114, just above paragraph422. There's the essential question in relation to thefirst batch: "Did the first shipment in fact containThymosin Beta-4?"

So the first matters relied upon are theso-called quote provided to Charter by Mr Xu, an emailfrom Mr Charter placing the order and the invoice issuedby GL Biochem. The Tribunal is familiar with all those.I won't take you to them.

424 spells it out. The only question thereforeis whether the substance which purported to be ThymosinBeta-4 was in fact Thymosin Beta-4.

At 425, "The court has heard general evidenceabout the unreliability and poor quality of certainChinese suppliers of peptides. However this generalevidence does not establish the products supplied by GLBiochem were not what they purported to be." We wouldsuggest that's putting the shoe on the wrong foot. Thequestion is is the Tribunal satisfied that it was Thymosin

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Beta-4, not have the players demonstrate it in some waythat it was not what it was purported to be.

So in addition to the ordering, if you like, andthe quote, really the evidence that's marshalled insupport of the need to prove that this first batch was infact Thymosin Beta-4 starts at 426 and at 427 you will seethat that is reliant upon that piece of evidence fromMr Charter, and Mr Grace has dealt with that today. Thisis the - - -

CHAIRMAN: Him being careful and making enquiries.MR CLELLAND: The weeks in Shanghai reviewing the different

producers and going around and eventually finding thisplace and going through their drums and making sure it wassealed and all of the things that we would submit havebeen provably dispatched to the boundary. But really inthis regard we are not even sure that ASADA really believethis, that he had conducted some quality control,physically took samples of the peptides. We say that theTribunal would not act on that evidence.

Then the next category is really this body ofevidence that suggests that the Tribunal should besatisfied because GL Biochem is a reputable company.

CHAIRMAN: In other words, if they are invoicing and sayingthey are supplying a particular product and charging forthat particular product, then it would be that particularproduct.

MR CLELLAND: That seems to be the submission.CHAIRMAN: That's basically the submission.MR CLELLAND: I think that's the submission, yes.CHAIRMAN: It is something, you have to take it with other

things, but it supports the conclusion that it is the

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product that they say that they have supplied.MR CLELLAND: I would insert the word "could" support that in

certain circumstances but, as you are aware, Mr Xu, who isthe person who makes the perhaps unsurprisingrepresentation referred to in paragraph 430, that is "Wehave this great reputation and if we say it is, then itis," as I say it's unsurprising, but Mr Xu has declined tocooperate with a government agency, ASADA, and provide anyevidence, including I might say any evidence in the formof a copy of the original certificate of analysis thatseems to have been alluded to from time to time to showthat it was Thymosin Beta-4.

So, going back to this material, the assertionthat this is a company that is reliable and the Tribunalcan rely upon it because it says so really falls away, wewould submit. This is based upon a press release that youhave already looked at today and I won't take you back toit. It is unverified and unverifiable. This isn'tsomething in the nature of a prospectus that is signed offby directors or an IPO or something of that kind. It's amedia release.

ASADA at 429 seem to put it on this basis: "Theseare not the characteristics of a disreputable orunreliable supplier." Again, we think that thatproposition is put the wrong way round. We say thequestion should be, "Have ASADA shown that the nature ofthe company is such that you can be satisfied that theywere able to produce exactly what they purport or attemptto produce every single time, particularly, as I say, inthe absence of any certificate of analysis?"

So, as for attributes such as an income after tax

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of more than $2 million and some assets of $8.5 million,there is an awful lot of large, reputable companies thathave been the successful object of product liabilityclaims and who have had to recall products and things ofthat kind. That's no guarantee of reliability. Butreally we would submit that on this evidence, bearing inmind that single scant document headed "Media release",the Tribunal wouldn't act on that to satisfy itself that arepresentation by GL Biochem that a substance was ThymosinBeta-4, in the absence of at least evidence of analysis,that that would satisfy the Tribunal of that fact.

The point remains - I have made it once, butI will make it again - if they are that reputable, whydoesn't Mr Xu provide evidence or give evidence or makehimself available to give evidence? He tells Mr Walkerthat he's reluctant to do that because it might damage thereputation of the company. How could it do that? Youcould satisfy the world and consumers that if you purportto produce a material, then you do. Instead he'sdisinclined to be questioned about that or give anyevidence about it or even to produce, as a reputablecompany would have, a copy of the certificate of analysis.

That point that is made at 432, that GL Biochemdid provide a certificate of analysis for MGF, seems tous, with respect, to be a contraindication. As I say, ifthey do have certificates for MGF, why wasn't there acertificate that was produced for Thymosin Beta-4, ifthat's what it was?

CHAIRMAN: It's put there that they were provided, but Charternever produced them.

MR CLELLAND: So go back to this reputable company. If the

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Tribunal is being asked to say they are that reputable andthey had those dealings and there was a certificate ofanalysis, there would be a copy of it. But that also tiesin to the email AS-3 at 221, the "with out sample".That's the document that - - -

MR GRACE: With out certification.MR CLELLAND: "With out qualification", AS-3 at 221. I will

just make sure I get it right. "With out samplequalification". "Glad to get your mail and order so soon.I believe you are satisfied with out sample qualificationresult, right?" We also make this point. If the Tribunalhas AS-3 in front of it and turns to some of this emailexchange, in particular at 223.

CHAIRMAN: Yes.MR CLELLAND: Your Honours will recall some evidence about "not

for human use" and Mr Charter having to sign some sort ofagreement to that effect. If the Tribunal has the emailat the foot of 223?

CHAIRMAN: Yes.MR CLELLAND: If your eyes are a bit better than mine, you will

see that the second part of the disclaimer there reads, asbest I can read it, "The products we offer are intendedfor laboratory hobbyist research use or production useonly, not for human use. In purchasing any of these itemsthe consumer acknowledges that there are risks involvedwith consumption or distribution of these products. Thesechemicals are NOT intended to be used as food additives,drugs, cosmetics, household chemicals or otherinappropriate applications." We would suggest that thatis hardly a ringing endorsement for a company purportingto produce Thymosin Beta-4 for whatever use.

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If the Tribunal goes back to the submissions ofASADA, you will see that after their reference at 426 and427 to Mr Charter's asserted but improbable qualitycontrol and testing, you will see that paragraphs 428through to 432, and I'm really trying to attend here,Mr Chairman, to your question this morning, so this is thematerial relied upon by ASADA - I won't omit the invoiceand the email first of all - but Mr Charter's evidence andthen these effectively statements asserting that GLBiochem is a reputable company and that seems to be theextent of it.

That takes you to 433, and so the third matteridentified, apart from Mr Charter's claimed analysis, theclaims about GL Biochem, then there is a reference to theso-called May analysis. The way that works - - -

CHAIRMAN: That's the Bio21.MR CLELLAND: Yes. As we understand it, what is sought to be

done here is because there is no analysis of batch 1, andwe would say batch 2, what's attempted is to say threemonths after batch 2 is supposedly received in February2012, there's a test done in May and by reasoningbackwards the Tribunal should conclude that batch 2 wasThymosin Beta-4 and therefore batch 1 was Thymosin Beta-4.

So they are the three areas of evidence that aresaid to lead this Tribunal to a level of comfortablesatisfaction that the first batch delivered in December2011 was Thymosin Beta-4; that is, the very specificsubstance with the chemical composition, structure andsequence identified by Dr Vine where, as the Tribunalknows, there is a good basis to say one would be very atleast cautious about accepting the identity of any

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substance, particularly peptides, received from China andsomething that, as Dr Vine said, requires prettysophisticated testing to be able to arrive at thedefinitive conclusion that that is that substance.

So, I think it's something like 11 paragraphs outof 900 in ASADA's submissions that are devoted to theproof that the first batch was Thymosin Beta-4.

The second batch, we would respectfully submit,is less persuasive still and the ASADA submissions dealwith this at paragraphs 440 through to 458. So this isthe second shipment and this is proof that that wasThymosin Beta-4. I think, with respect, it's wellunderstood but I will repeat it: the thesis and indeed thecase of ASADA is the first lot comes from GL Biochem and,by implication and by reference to some statement or atleast some agreement or acquiescence by Mr Alavi that ineffect he assumes or that it's reasonable to say thesecond lot might have come from the same supplier, it'sasserted that the second batch comes from GL Biochem,because if you look at 441 of those submissions you willsee there the reference to "Mr Alavi understood thatAnthony had procured the peptides from the same company asthe first shipment."

That's actually in the context of somequestioning I think by Mr Walker. He is saying he doesn'tknow where it comes from and the proposition is put to himthat it might be reasonable to suppose that somebodysupplying it to him might use the same supplier and that'swhat he seems to acquiesce to. So that's where thatevidence comes from.

Thereafter you will see that the next 15

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paragraphs are all devoted to the certificate, the highlycontroversial certificate that is at AS-3, page 280. Theeffect of those submissions, again going to this questionof the identity of the substance, is this: There is noevidence of emails, invoices or any dealings whatsoeverwith GL Biochem regarding this one gram that's said tohave been supplied in February. You have this assertionin the submissions that Mr Alavi understood that it camefrom GL Biochem. There is no other evidence of that, atall.

CHAIRMAN: There is the handwritten document.MR CLELLAND: Are you speaking about Ms Giordani's document?CHAIRMAN: Yes.MR CLELLAND: I think it just says "received" and it says

"Thymosin".CHAIRMAN: Yes, 18 February.MR CLELLAND: I think you are aware that it doesn't say GL

Biochem.CHAIRMAN: No, in terms of a receipt of a substance on that

day.MR CLELLAND: But it needs to be recalled, Mr Chairman, this is

supposed to have come out of the blue from Mr CedricAnthony, this batch in February.

CHAIRMAN: Yes, Alavi said that he thought it came out of theblue.

MR CLELLAND: There is then this certificate that is reliedupon by ASADA and the explanation proffered by ASADA forthe irregularities in that certificate are, as I say,explained on the basis that there was an attempt byCharter and Anthony to keep from Mr Alavi the source ofthis particular substance.

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What that does not explain is all the otherirregularities in the document. One can think of manyways in which one could simply have removed theidentifying references to GL Biochem without transposingnumbers. We have set out at paragraph 12 of oursubmissions, I don't ask you to go to it, but in thatparagraph we have listed some of the irregularities thatwe have described as: no company header and address, thewarranty is different from that which appeared on what issaid to be a genuine GL Biochem certificate of analysis,there is no stamp, there is no information as to whoprepared and checked it, the molecular formula is notexpressed in a proper chemical notation, there is no lotnumber, and the molecular weight is incorrect.

Even if it is said to have been transposed, thatreally doesn't explain how a certificate in the possessionof Mr Anthony, where some attempt has been made toanonymise it, how does that explain those irregularities?We say it does not. On any view, it is a falsifieddocument and in our submission the Tribunal would bedisinclined to act upon it.

It's more probative, we would submit, of this:that somebody is keen enough to want to represent that thesubstance is Thymosin Beta-4, or has at least the chemicalcomposition of Thymosin Beta-4. That's what's reallytelling about it. But to say that it would enable thisTribunal to reach comfortable satisfaction that the secondbatch of material received in February was ThymosinBeta-4, it's a long, long way from that, in oursubmission.

It is also instructive, we would submit, and we

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say this with respect to ASADA, that of the 18 or howevermany paragraphs are devoted to proving the identity of thesubstance in the second batch, I think 15 are devoted totrying to, in effect, support that certificate as beingevidence that the Tribunal can rely upon.

The explanations at 451 to 457, you will see thatthere are these - - -

CHAIRMAN: They go to the submissions as to why thecertificates should be accepted as evidence that that wasthe substance.

MR CLELLAND: That's right. They are set out. It isinstructive to read those and to see the industry that'sbeing put into, in effect, trying to somehow resurrect adocument to a point where it's suggested the Tribunalcould rely upon it.

Mr Chairman - - -CHAIRMAN: We will sit on, Mr Clelland, because we would like

to be able to conclude today, if we can.MR CLELLAND: Thank you. Again, if you go past that you will

see at paragraph 458 of the ASADA submissions againthere's reliance upon the - - -

CHAIRMAN: Bio21.MR CLELLAND: That's right. So, for the second batch there is

Mr Alavi's understanding that it comes from GL Biochem.There is what's been described, I don't think with unduehyperbole, as being the bodgie certificate, and then thereis reliance upon the May testing. As I put before, thatis said to be testing conducted on the February batch butconducted three months later - - -

CHAIRMAN: In May.MR CLELLAND: Yes, without any evidence from Alavi or anybody

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else that that had actually been done or why it had beendone or that it came from that batch. Of course, ASADAsay that Mr Alavi's statements that he was going to sourcematerial from somewhere else shouldn't really get in theway of the Tribunal concluding nonetheless that he reallydidn't have another source and they should find thatthat's the material received in February. That's theargument.

So, that's what's relied upon in sum total toprove that the batch 1 and batch 2 emanated from GLBiochem and was Thymosin Beta-4. We would say in acircumstantial case of this kind which requires proof thatthe substance was in fact Thymosin Beta-4, that evidenceis inadequate. It doesn't get them there.

Can we adopt the submissions recently made to theTribunal in respect to the testing and the test results,the analysis of Professor Handelsman's evidence andDr Vine's evidence.

CHAIRMAN: Yes.MR CLELLAND: Just to make it clear, in that respect we say

there is no sufficient nexus between the first or secondbatch and that May analysis and also no sufficient nexusbetween that which was analysed and anything provided tothe Essendon Football Club.

Can we summarise the position in relation toproof of the material in this way: that althoughcircumstantial evidence is a legitimate form of reasoningin some cases, and we are conscious of the decisions inFrench and Burns, when the identity of the substance is inissue we say it requires evidence of reliable scientificanalysis and we say this is such a case.

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If we can then go to the question of thecontinuity. That is the second matter that you raised,Mr Chairman, I think. If you go to page 123 of ASADA'ssubmissions, you will see the way it is put there: "Basedon the information contained in contemporaneous materialsthe Tribunal should conclude that" - and there is thesequence. That's the continuity.

What Mr Grace put to you in that regard we wouldadopt. The evidence really only goes to show this: thathe received something in November that was possiblyrepresented as peptides by Mr Charter. What is unknown iswhat was delivered to Mr Anthony and what Mr Anthonydelivered to Mr Alavi. So we say there's a real problemabout the continuity evidence in that regard.

Notwithstanding some evidence that Mr Chartertold Mr Xu that a colleague would pick it up, as Mr Gracepointed out there is no evidence from Customs, there is nocompany saying they delivered, there is no evidence how itwas labelled or packaged or indeed any detail ofcollection proving continuity of the delivery.

All we want to say about the quantities, apartfrom adopting the excellent submissions of Mr Ihle, isthis. Without getting into the arithmetic of it, theevidence is not that each vial constituted a particulardose or even numbers of doses. Yes, you can make anarithmetic argument, if you are ASADA, to say, "Well, itcould have been this amount in these size vials and soforth." The question is why would you do it? If they arenot in specific doses, the amount would fit into eightvials, if they are 10 ml vials. Why would you provide 26?So, yes, the argument can be made, but logically why would

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you do it? What's the point? That's the only submissionwe want to make about it. We just, with respect, find itcompletely unpersuasive.

In terms of Mr Alavi's difficulties with thefirst batch, we do note this on the way through, againadopting the submissions of Mr Grace, that it is onlyMr Alavi who said he was able to work out his problemswith compounding the substance. There is no otherevidence of it. It's only him who says he worked it out.

Finally, on the continuity issues of the firstbatch, we make these observations, that the evidence wouldat least raise doubts about the use of anything suppliedby him because of Mr Dank's claims that it was "fried",meaning, we take it, being unusable and the apparentlycorresponding reversal of charges on the invoices. I'malso reminded that the vials weren't labelled.

One issue for this Tribunal might be how you aregoing to spell "vials" when you come to write your report.

CHAIRMAN: "PH" is the one that seems to be used.MR CLELLAND: It seems to chop and change in what I read. They

are the continuity problems we would submit and indeedprovenance problems with the first batch.

The second batch, as I say, the provenance ishighly questionable. It seems to turn just on Mr Alavi'sso-called understanding without any further evidence. Itreally just doubles back to the issue of the certificate,as to what was received, if anything, and when and what itwas. So really the questions of continuity in that regardare so intertwined with the evidence of the entity of thesubstance. I don't need to take you to that.

Then in terms of the administration to the

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players, we adopt again Mr Grace's submissions. As wediscussed at the commencement of these submissions, thereare no records and importantly no linking of anything thatis said to have come from Alavi, no linking of that toanything actually injected into any Essendon player andI think the Tribunal is well aware any labelling is notlabelling affixed by GL Biochem.

When I started our submissions or when I openedthe matter I indicated to the Tribunal that there was aquestion about which batch was alleged to be the batchfrom which a particular player was injected. Thatquestion is still a very live one because of the differentevidence that relates to each of the batches. We wouldsubmit, and submit most earnestly, that you wouldn't findeither of them - - -

CHAIRMAN: The case is not proved if we can only be comfortablysatisfied that some players were injected with ThymosinBeta-4, but we can't be comfortably satisfied as to whichones they were. That's not proved.

MR CLELLAND: That's exactly right. It's exactly right. Thatwill be, amongst other things, brought about by a failureto prove which batch was injected into any particularplayer. That's a very real problem, we would submit,notwithstanding that our principal position is that theTribunal wouldn't be satisfied on the evidence that eitherbatch was provably Thymosin Beta-4, nor that it found itsway through, if it ever was, through to the EssendonFootball Club and was injected at any time.

We conclude these submissions by saying this. Weadopt and reiterate those submissions that you referredto, Mr Chairman, when I commenced these submissions a

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little while ago. But what we really say is this. Whenyou put aside everything else, isn't the question reallythis: that after the thousands of documents and thehundreds of pages of submissions, when you sit down andyou ask yourself, as a Tribunal must in thesecircumstances, "Am I actually satisfied that a particularplayer received an injection of a chemical which was infact Thymosin Beta-4, am I actually satisfied of thatmatter," we would submit that the answer has to be, "No,I cannot be comfortably satisfied on this evidence."

Those are our submissions, Mr Chairman.CHAIRMAN: Okay. Thanks, Mr Clelland. Mr Gleeson, is there

anything that you wanted to respond to?MR GLEESON: I do have a few comments, but Mr Holmes wanted to

say something.MR HOLMES: Just a few matters in response. The first matter

is the question of the players' evidence and you willrecall that Mr Grace took you through the schedule to hissubmissions. I was a bit concerned that there was asuggestion coming out of there that there were some SARMsaround. Then I was concerned that Mr didn'thave Thymosin either, if you read their schedules. Butthen when you look at the schedule attached to theplayers' submissions, it is not a schedule of evidence, itis a summary of what is said to be the evidence. So it'san attempt to do it; I accept that. But there arereferences to pages of the evidence which, when you go tothe pages, you suddenly find the explanation for thereference to SARM, for example.

The players were asked questions in relation towhat their recollection was about the bottles, the vials.

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They were taken to - if you have AS-3, you will see atpage 423 and it goes over to 424 and 425. If you read thetranscripts of the interviews with the players, you willsee there is reference to, for example, on top of page 4,there's a vial marked "SARM S22". On the right, 425,there is a vial marked "AOD-9604".

Players, for example, who are referred to in theplayers' summary of their evidence or the effect of theirevidence rather than quotations of what the evidence isand its context include Mr Mr Mrand Mr I think Mr was highlighted. CanI hand up the actual evidence, because the actual evidenceis not that they were injected with SARMs. There arereferences to bottles, rather than which bottle does itlook like, not "What substance were you injected with?"

MR GRACE: We concede that.MR HOLMES: The effect of the schedule that the players put

forward is, and we accept inadvertently, misleading,because the players are asked about the bottles and "Whatsubstance were you injected with?" There seems to be amerging of the two in the players' summary. For example,when we went through Mr evidence there is nomention of his text message where he admitted having aThymosin injection.

So can I remind you that if the CEO in hissubmissions at paragraph 640 referred to some seriousmatters which effectively the players have - sorry, it hasbeen shown convincingly that the players either byreference to what they said, by reference to what they sawon the label, by reference to amino acids, they wereadministered with Thymosin out of the fridge. You will

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recall Mr Robinson said quite clearly, and there has beenno attempt to challenge this, that Thymosin was kept inthe fridge.

We have in appendix H set out the quotes of theevidence, not summarised it; we have put the context, wehave put the actual evidence that establishes theconclusion.

Yesterday I said the players hadn't responded toour paragraph 640. So, in our respectful submission,paragraph 640 is the only conclusion that is available ona fair reading of the players' evidence and the contextrather than the summary which we all went through and wasskimmed from column to column. So I rely on the evidenceof Mr Mr Mr and Mr inparticular.

Next, we heard it said by Mr Ihle, and if I couldrespond to Mr Ihle, he said no player refers to a blue capor an orange cap. If you look at the SARM bottle, what dowe see but a bottle with a silver lid around the side, butwith an area in the centre where they can put the needlethrough to take out the substance for each injection. Wehave had reference to when the business proposal was goingforward of a monthly supply, that Mr van Spanje wantedI think blue for Thymosin, and then we know that MRCdidn't have any transactions or delivery or purchasesuntil after March in mid-2012, and then it looks as thoughit may have been an orange cap which we saw in theFacebook video.

But if you think in terms of a supply where theydon't have to package it in a marketable way, it's just asupply to Dank at Essendon, he wants some vials to inject

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the players, why would Mr Alavi go to the trouble ofspending additional time and labour and money, as we haveheard that he's of a mercantile type; why would he go tothe extra step of incurring the extra cost and time andtrouble? He's more likely to have had a vial where thereis a top where you can just put your needle through andkeep it out.

Then we had the players say, "Look, let's assumethat there was 26 vials dispensed to Essendon or Mr Dank."In our respectful submission, that's a powerful inferencefrom the evidence, that 26 vials were dispensed toEssendon, and they were at the concentration or they hadthe 0.25 compounded into them. Mr Grace said, "Well, ifyou do that calculation, you are only going to have enoughto last for a few weeks." You might have seen theinterchange at the Bar table where we tried to interrupthim and say that's an assumption, that's not the evidence.

Can I hand up a schedule. If you look at theactual evidence, this is how the injections were made.The injections started after the meeting which started on13 February. Just to put in context the dates before,gentlemen, we go through the points. 9 March is the textfrom Dank to Mr Hird. On 9 March he said, "Thymosin withUbiquinone will start next week. We are going to see someeffects." So that's a contemporaneous 9 March thefollowing week.

We know that the first game was 24 March. Whendid the players get injected? Some said one a week;

Brown, 'Maybe one a week, one a fortnight.""You can work it out. You get one a week. We

play 22 games ...(reads)... then I would have had maybe

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I would say 12 or 15 in my maybe stomach, maybe 10 in mybum."

"Not every week. It would be, youknow, random, like, you know, you might get it one weekand then you don't see him for a couple of weeks."

was the one who texted in July. "Fromwhat I could recall it would have been something likethat, two injections a week for the entire season." "Oncea week," Mr

Then we go over to Mr Again,Mr is the one who refers to receiving Thymosin,one or two injections a week. "I'd probably say onaverage one or two a week." Some perceived that theinjections became less regular, and we set outMr quote. Some were able to minimise theseinjections which started around the beginning or end ofthe pre-season and beginning of the season.

was down to five. "I was prettyforgetful at times. Go for some weeks, a couple of weeks,without getting one. Sometimes I'd get one each week."

"I'm thinking around a half a dozen."'Three or four throughout the whole thing." "Lessthan a handful." "About three."

So in our submission, if you look at theevidence, the fallacy is demonstrated on taking atheoretical calculation and an assumption without lookingat what the players have said about the numbers ofinjections.

The first point we make is the injections didn'tstart off until after the consent forms had been signed.Not all of the players received injections at that time.

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They started around March for "The weekbefore I played in round 3," for "itwasn't for another month or so from the auditorium."

"For round 1," which is 23 March."Towards the end of the pre-season sort of."

Not every one of the 34 players got injections.Many said they had it only fortnightly - not every week,sorry. Most or many players described the injections asbeing irregular and after six weeks, which would have beenaround the start of April, the injections were scheduledto become monthly only.

CHAIRMAN: So what you are saying is that this demonstratesthat there could be injections based on that regime fromthe first batch, which would then - - -

MR HOLMES: Take them up to the end of April, which is when thenext shipment was.

CHAIRMAN: When you say the next was used. We will includethat as part of your speaking notes, Mr Holmes, if that'sconvenient.

MR HOLMES: Yes, I think that's all I wish to say in relationto the additional matters that came to light today.

CHAIRMAN: Thank you.MR HOLMES: We have analysed the evidence. In terms of the

evidence about the colour of the vials, with respect, tosay the evidence establishes that they were a brown vialor a clear vial you need to look at the actual evidence."It's possible I got a brown vial. It's possible I got aclear vial. It's possible I got both." In the same wayas the SARMs S22 and the photos need to be borne in mind,put in the back of your mind when you read the evidence tosee why they are referring to SARMs, you need to read the

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evidence because the evidence shows some were out ofbrown, some were out of clear, some were not sure of.

If you are asked what colour vial did a doctorinject you with last week or a fortnight before and youare an AFL player who has been playing a lot of games, onewould have thought that that's fairly unreliable evidenceas to which one was used when they received theinjections.

This is where the actual evidence, "It's possibleit came out of a clear one, it's possible it came out of abrown one," it doesn't mean that it did come out of abrown one or it did come out of a clear one, or did notcome out of - the evidence needs to be looked at.

CHAIRMAN: Yes. It's not conclusive.MR HOLMES: No. It's not conclusive and the summary can't be

relied upon because that's a question which, unless youread each particular question for each player in relationto the vials, you will not be able to form a final view onthe evidence .

CHAIRMAN: Okay. Thanks, Mr Holmes. Mr Gleeson, is thereanything you want to say?

MR GLEESON: Just briefly, sir.CHAIRMAN: Sorry. Mr Holmes, can I just check with you a

couple of things in relation to the evidence which I notedarising out of the submissions, just to make sure we havegot everything covered. At paragraph 249 of yoursubmission you raise the question of whether we formallyreceived and marked the folder of Earl's prior statements,and I wasn't sure about that. I thought we should checkthat as to - - -

MR HOLMES: That folder is referred to in our submissions and

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in the players' submissions.CHAIRMAN: But have we formally - - -MR HOLMES: When we were preparing the submissions - - -CHAIRMAN: Do we have it?MR HOLMES: There wasn't a number.MR IHLE: We had the same problem.CHAIRMAN: We haven't got it.MR HOLMES: You do have it. We did tender it, both parties

have addressed you on it, and it should be given a number.CHAIRMAN: Yes, I just want to try and identify which one it

is.MR HOLMES: It is one of these one-inch binders, white folders.CHAIRMAN: Anyway, it can be located because we have to do this

exercise. It was one we got earlier, wasn't it, with partof all the documents?

MR HOLMES: We have one here.CHAIRMAN: We can check to see whether we have that one. We

can sort that out, but we will give it an exhibit number.The next one for ASADA is AS-37 which will be the folderof Earl's prior statements. We will just check that.

#EXHIBIT AS-37 - Folder of Earl's prior statements.CHAIRMAN: 381, Mr Holmes, which refers to the affidavit of

Walker and the cooperation of Alavi. Walker's affidavitof course related to the voir dire, although you didtender some parts. Is that the parts of the affidavitthat you tendered for the purposes of the general issues?

MR HOLMES: We tendered it for the general issues. It was heldback for the voir dire and both parties I think have beenreferring to it in the course of their addresses.

CHAIRMAN: I just want to clarify that Walker's affidavit is inas far as the general issues are concerned.

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MR GRACE: No, it's not.CHAIRMAN: I didn't understand that it was. Certainly parts of

it Mr Holmes sought to tender and that was tendered. Ifwe can just check the exhibit list.

MR HOLMES: If paragraph 381 is accepted, otherwise we tenderthe whole of the folder.

MR GRACE: The first sentence, yes, we accept that. We acceptthat Mr Walker made lengthy attempts to obtaindocumentation from Alavi.

CHAIRMAN: Okay. So can we take it that, without thataffidavit going in, that what's in 381 in terms of thefirst two sentences is accepted?

MR GRACE: We accept the first sentence and second sentence.There is a dispute which we have joined issue about inrelation to the third sentence.

CHAIRMAN: That's the deliberately omitting some documents,et cetera. But the first two sentences, that is that "Theaffidavit of Aaron Walker which describes his evidence tosecure cooperation for Alavi ...(reads)... highlyselective in his production of documents." That'saccepted?

MR GRACE: Yes.CHAIRMAN: That's the purpose that Mr Holmes wanted to use it

for. So, apart from the part of Walker's affidavit thatyou did - - -

MR HOLMES: I think the Alavi transcript - - -CHAIRMAN: - - - tender, otherwise it was for the voir dire.

I think that covered the matters, Mr Holmes, that I notedarising from the submission. Mr Tehan and Mr Hooper willwork with the solicitors for the parties just to finalisethe list of documents that are in.

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MR HOLMES: Just before you go to Mr Gleeson, that lastquotation about the injections, is that part of thespeaking notes that were tendered yesterday?

CHAIRMAN: Yes, we have already given the speaking notes anexhibit number and that's been added to the speaking notesabout the injection regime as described by the players.So I think that covers those matters. As I said, counselassisting us will liaise with the legal representatives ofthe parties to finalise the documents that we will use forthe purposes of reaching a decision. If there is anydifficulty about that, that can be sorted out. I don'tanticipate there will be. I'm sure everyone will be ableto work that out.

Mr Gleeson, you have been patient, as always.MR GLEESON: That's okay. We only seek to reply to the matters

raised in that document handed up at the start of today inrelation to our submissions. They are not game-changingissues, but we thought it appropriate to respond.

CHAIRMAN: That's the one that Mr Grace referred to.MR GLEESON: That's right. There are two issues that the

players raise in relation to our submissions. Firstly,the considerations as to what sanction may flow from afinding of a violation may be relevant to thedetermination of the standard of proof. Secondly, whethercertain inferences may assist the Tribunal.

On the first issue, the players are torn. Theywant the three famous Briginshaw factors to apply, plusone more that they say is expressed in Briginshaw. Weknow that because they say so in paragraph 9 of theirsubmissions, and I quote, "The considerations underlyingthe Briginshaw principles one, two, three and four,

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insofar as they relate to the players should inform theTribunal in fixing an applicable standard."

But in another sense the players don't want theBriginshaw factors to apply at all. One of the threefamous factors is the gravity of the consequences flowingfrom an adverse finding. The players urge the Tribunal totake a realistic view of these consequences, but only insome respects. They urge the Tribunal to take intoaccount reputational interests, and we don't speak againstthat.

CHAIRMAN: Yes. Effects on reputation.MR GLEESON: Yes. Even though the findings, if they are made,

would be accompanied by, there is no doubt, detailedreasons which explain that the players were unwilling andunwitting victims, the fact would remain that they wouldbe entered on their register and not everybody absorbs allof the reasons and they would feel justifiably tarnishedin their reputation, and that is a factor that if you aretaking into account gravity of consequences you quiterightly would bear in mind.

CHAIRMAN: And the publicity involving this matter isunprecedented.

MR GLEESON: Yes. It might be said that a lot of that damageis done, but then you have vindication issues in terms ofif they were acquitted and so forth. But we are all aboutthe standard of proof here. But when it comes to the mostimmediate consequence of the finding, that is the likelysanction, the players suggest that the Tribunal shouldturn its face away from the reality and - - -

CHAIRMAN: I think Mr Holmes says that as well.MR GLEESON: Not quite. I think Mr Holmes says he doesn't

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accept what we say about the likelihood of a low sanction,but I don't think he takes the next step and says ignoreit entirely.

CHAIRMAN: I wasn't sure about that. I got the impression thathe was saying, "That's not somewhere we will go at thispoint." Anyway, he has had a long day. I'm not going topress him.

MR HOLMES: The potential sanction is two years.CHAIRMAN: The potential is two years. That's the starting

point as far as the Code is concerned.MR HOLMES: Mr Grace would have the Tribunal say they have been

duped, they have had no significant fault. We would saywe are not at the stage where we would like to bindourselves. But they appear to have turned a blind eye,signed a document which was gobbledegook in parts. Itreferred to things that didn't make sense which they knewon any fair reading was wrong. So, that question issomething that we would rely upon in reducing it below12 months. There's a possibility of it coming downto - it is a question for another day, that's all we havesaid. The starting point is two years.

CHAIRMAN: No fault at all, there is no penalty; no significantfault or negligence, 12 months; and then it's a questionof - - -

MR HOLMES: That's a matter for another day.CHAIRMAN: That's a matter for another day.MR HOLMES: But we don't accept the complete no fault.CHAIRMAN: I understand that.MR HOLMES: And we are not prepared to engage in the

quantification that the AFL has done.MR GLEESON: We are. The Tribunal doesn't need to and ought

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not pre-empt anything on sanction, but nor should it beartificial in its approach to the standard of proof.Nobody is going to gaol. Nobody is having their careerterminated expressly by reason of any sanction that mightbe imposed.

The starting point is two years and the realityis a long way south of that and the moment this Tribunalmakes a finding upholding the infraction notice, if itdoes so, that will be precisely what I will repeat andprecisely what counsel for all the players will repeat,and ASADA will say what ASADA says.

But we need an air of reality after weeks in thishearing room. We need to accept the fact that when youare looking for a standard of proof that is appropriate,that meets the requirements of the Code and that gives youcomfortable satisfaction, you are dealing with, in alllikelihood, an outcome that sees players miss at the mostthe sort of games they miss if they tear a hamstring. Solet's not get too carried away, is all we are saying. Weare looking to inject a sanity check.

There will be reputational damage. There will begreat consternation among the players should they beconvicted. But we need in a sense to divorce ourselvesfrom considerations of sympathy for these players. It maybe with a heavy heart the Tribunal makes these findings offact against them.

CHAIRMAN: We have to be objective and dispassionate. Noquestion.

MR GLEESON: And we have full confidence that you will do so.It may be that notions of moral outrage at the way thissystem of doping was conducted would lead a less

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dispassionate Tribunal to want to impose a sanction, andsimilarly you can't do that. You simply have to standback from all of the evidence and decide sensibly whetheryou are comfortably satisfied. The only point we seek tomake is that, in doing so, it is artificial and we wouldsay misconceived to turn your face away from likelysanction.

Our primary point being, of course, that thelanguage of the Code doesn't really direct you there.It's getting a little subtle. When you talk about"seriousness of the allegation", which is the onlylanguage of the Code, there is an argument that that istreated separately and distinctly by Justice Dixon inBriginshaw from gravity of the consequences and frominherent unlikelihood. But, again, approaching it in acommon sense fashion, seriousness of the allegationnecessarily drags with it real world issues as toconsequences.

But we do say with some force, with respect, thatthe language "seriousness of the allegation" does notpermit you to take a one-size-fits-all approach to it, asI think has been urged upon you by the players. Theirapproach is to say, "Listen, it's a violation of the Codeand that's that. What they are charged with is aviolation of the Code and that's what it means when ittalks about the seriousness of the allegation."

But the language is not "bearing in mind the typeof violation alleged"; it's "the allegation which ismade". It is a matter of relevance to you that no one isalleging a conscious and wilful abuse of the substances,prohibited substances, by the players.

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CHAIRMAN: It is a bit different when you are talking about anallegation of trafficking as distinct from administeringor using.

MR GLEESON: It is. One can well imagine the submission onbehalf of a person before this Tribunal who had beencharged with a range of trafficking offences, if theydeigned to turn up.

CHAIRMAN: Like Mr Dank.MR GLEESON: It might have been to the effect that this is a

serious allegation. You can scarcely think of a moreserious allegation. It is in that context that we saythis is lower on the scale.

The last thing that we think we need to do withyou three gentlemen is to give you a lesson on thestandard of proof. We don't seek to insult yourintelligence, even with this somewhat unconventionalstandard, and we are only raising these matters to givesomething of a sanity check, as I've said.

The parties enthusiastically agree that you needto be comfortably satisfied. But the phrase - it isalmost like when you say a word so often it loses itsmeaning and it's the content and application of the phrasethat is where the magic lies. Each time you come to adifficult issue - there will be a range of factual issuesthat you don't find difficult at all - but you will cometo some of the curly ones and you will sit there and chewit over and think, "How do I feel intellectually? How doI feel intuitively?" We say that if you can't see asensible and plausible and coherent narrative emerge fromall of these facts, you don't get close to comfortablesatisfaction. You need to feel intuitively and

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intellectually that there is a coherent story that's beenpresented.

If you reach that point you then bring into theequation, with respect we would say, doubts. So you havea coherent narrative and you have these doubts. If thesedoubts prevent you from being comfortably satisfied youwill know which way to go. But there is this elusive areawhere you potentially have a coherent and plausiblenarrative, you have some doubts and you just don't knowwhether they weigh so heavily as to preclude comfortablesatisfaction.

The point we seek to make is the existence ofdoubt of itself doesn't preclude it. We made this pointin our written submissions. By expressly excluding thestandard of beyond reasonable doubt, the standard permitsreasonable doubt. It is a matter of how heavily thosereasonable doubts weigh. If they either individually orcumulatively remove that comfortable satisfaction, that'sthe end of the matter.

The second point that we want to respond to fromthis morning is about inferences, and it can be shortlydealt with. Mr Grace explained at length why no inferenceshould be drawn against the players for them having failedto give evidence. We agree. We have never said that anysuch inference should be drawn.

We sought to make a very narrow point about theinference that might be drawn in relation to proving anegative under the S0 category, that is in circumstanceswhere (a) one of the categories of prohibited substancesrequires proof that the pharmacological substance has nocurrent approval by a governmental authority, (b) one

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expert has given evidence that he is not aware of any suchapproval, and (c) the players called no evidence of suchapproval, you might draw an inference that no suchapproval exists. So when Mr Grace was saying, "Who shouldhave been called; what evidence could they sensibly havegiven," somebody could have been called and sensibly hadgiven evidence about that question of fact, "Has therebeen approval anywhere?"

CHAIRMAN: It's been approved in Afghanistan.MR GLEESON: I will say nothing about that and I will say

nothing more at all. Thank you.MR GRACE: Can I just make one very short point, sir?CHAIRMAN: Yes, Mr Grace.MR GRACE: If one accepts what Mr Gleeson said about standard

of proof you would have the paradox in this case of havinga different standard apply to the charge of administrationlevelled against Mr Dank of Thymosin Beta-4 to the playersthan you would in relation to the use by the players ofThymosin Beta-4. That can't be right. That's all I wantto say.

CHAIRMAN: All right. First of all, on behalf of mycolleagues, I would like to commend everyone involved withthis case for being able to complete it in a little overthree months after the infraction notices were issued.That's quite extraordinary, really, when you think aboutthe amount of material that's involved and the complexityof that material, the amount of analysis that's beenrequired. There is no doubt that if it was being dealtwith before a court - and this is no criticism of thecourt - we would be talking about at least 12 monthsbefore the case came on. So I think everyone is to be

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commended for that.No doubt the reason for that is the desire to

bring this whole episode, which has been going now sinceFebruary 2013, as far as its public face, to an end. Sowe really do appreciate that, and we appreciate theassistance that you have provided us with the verycomprehensive submissions, both in writing and orally. Weare now going to have to spend time analysing everythingthat we have got. I appreciate that there's concern aboutwhen the Tribunal is going to be able to give a decisionhaving regard to the fact the season starts I think on2 April.

Clearly there will be no decision from theTribunal before the pre-season starts, but it's fairlyapparent that steps are already being taken with respectto that. We will do our best to resolve this matter anddeliver a decision before the season commences. But wecan't guarantee it because in the end we have to satisfyourselves that we have examined the evidence, consideredthe arguments and submissions to the extent that we needto to be able to reach a decision.

My colleague on my left and I probably in anearlier life were happy to work 14 hours a day, sometimesseven days a week. But unfortunately that no longerapplies. So we have to be realistic in terms of the timeit's going to take having regard to the size of the task.We can't do any better than that. We will use our bestendeavours to deliver a decision before the seasoncommences, but we can't guarantee it. No doubt that willbe taken into account by those who have the job of runningthe competition.

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In terms of the decision itself, I think that wehave to deliver a decision which has everything in it thatwe think is necessary to properly explain our decision.In terms of where it goes from there as to what might bepublicly available, I think it then moves out of ourhands. I don't think it's realistic for us in a case likethis to be trying to, in effect, provide two decisions,one that's got everything in it and one that we redactthat might be acceptable as far as public release isconcerned. We do have this enormous public interest inthe sense of desire to know about it. But I don't thinkthat's a matter for us.

Clearly of course we are deciding the issue ofviolation. If violations are proved against the playersand/or Mr Dank there will need to be a reconvening of thehearing for the purposes of dealing with sanctions, and wewould want to do that as quickly as we can. But we are inthe hands of the parties. But I think we have to delivera decision which has everything in it, whether itidentifies, whether it is sensitive, whatever, that isnecessary to be there so we properly explain our decision.Then where it goes from there is a matter for thelegislation, the Code and the parties.

I don't think we can do any more than that. Atone stage we were thinking about the possibility ofwhether we could provide with the decision some sort ofexecutive summary, for example. But I don't think it'sfeasible.

MR GRACE: Could I ask, sir, whether you have considered as apanel, bearing in mind the season start date of 2 April,it would be possible to deliver a decision without the

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delivery of reasons, just announce the result and thenpublish the reasons at a later date?

CHAIRMAN: That's exercised our minds and we would beinterested in any comment from the Bar table. Our realpreference would be to deliver a decision with thereasons, and that's obviously why we would want to dothat. If we got to a situation where we were quitedecided in terms of the result but had not completed theprocess of the reasons as to whether in thosecircumstances having regard to when the seasoncommences - I mean, let's be realistic about this. If thedecision is a violation, then the provisional suspensionswould continue, Mr Grace, until the sanction hearing hadbeen completed and a decision handed down on thesanctions.

On the other hand, if the decision is there isnot a violation then the provisional suspensionimmediately ceases and the players are available. Even ifthere is an appeal, the players can participate until itis ruled otherwise in an appeal. I don't know whetherthere is any view at the Bar table about the matter thatMr Grace has raised.

MR GLEESON: My client is obviously very anxious to have asprompt a decision as justice and fairness permits.Provided there was absolutely no concern about compromiseto the decision when fully articulated by the process youhave suggested, then we have no objection in principle.This Tribunal will be, we think, the best judge of whetherit is safe to adopt that course. But you would have to becomfortably satisfied that that was the right course.

MR HOLMES: We would obviously prefer a reasoned decision.

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CHAIRMAN: So would we, Mr Holmes, I can assure you.MR HOLMES: Either way, the public at large might also share

that view.CHAIRMAN: Although of course the public at large are not going

to get it, at least perhaps initially. No doubt therewould be some announcement made as to what the decision ispublicly, but in terms of the reasons there may be afairly protracted process as to what can be releasedhaving regard to the rights that the players have, forexample, under the Code in terms of any public release.

MR GRACE: Could I put forward this conundrum. If you didn'treach a decision before 2 April or 4 April - - -

CHAIRMAN: The 4th is when they play.MR GRACE: There is Port Adelaide, there's Footscray.CHAIRMAN: There is Port Adelaide-Footscray at least.MR GRACE: There are certain requirements from the AFL to put

teams - if, for instance, you weren't able to reach adecision by that weekend the prospect is or the reality ofthe situation is the players will still be provisionallysuspended. They wouldn't be eligible for selection. Thefirst game, second game, third game depending on when youdid deliver the decision, bearing in mind Easter is overthat period, commences Friday - 3 April is Good Friday.

CHAIRMAN: The first match is on the Thursday.MR GRACE: Thursday, the 2nd. So we would have at least one,

if not more, weeks still under provisional suspension. Ifthey were later to be found not to have committed aviolation then they would never get that time back ofcourse.

CHAIRMAN: It's a bit like being on remand.MR GRACE: Yes, no credit.

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CHAIRMAN: Can't keep it up for next time. We understand that.We want to deliver this decision before the seasoncommences, but there is a lot to cover.

MR GRACE: It is enormous.CHAIRMAN: It is a major task. Fortunately we have some young

counsel who can assist us in terms of that exercise. Butat the same time we do have to be realistic about theenergy, et cetera, that we can devote to it. But we willdo our best.

We will keep that as something that we will bearin mind and take into account the matters that have beenraised about it as to whether we think it would beappropriate to adopt that course. But certainly we wouldbe in no doubt about the fact that that's our decision;it's just that we haven't been able to complete theexercise of writing it up. But I'm sure John Nixon hasthe same experience as I do that really with these sortsof things you reach your decision in writing it up.That's a discipline that you have to follow and it's partof that synthesis that's involved in writing it up thatyou ultimately reach your decision. It can be difficultto really separate the two.

MR HOLMES: This having arisen just at the last hour, would theTribunal mind if we get instructions on the question togive a definite answer?

CHAIRMAN: That can apply to all the parties if they would liketo add anything to what you have been able to say thisafternoon. We appreciate it's something you haven't hadnotice of, if you would like to add anything by way offorwarding an email to Justin and circulating it to theother parties, if you have any thoughts about that.

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MR GLEESON: Mr Chairman, can I raise the Dank determination.Similar considerations might arise in relation to thoughtsof staggered delivery. Again we would not have an inprinciple objection to the Dank determination followingthe players' determination, but the Tribunal will beacutely aware of the factual intermingling of the twocases and the fraught - - -

CHAIRMAN: That's an option, but I think we would be desiringto deliver a decision on all alleged violations; so it'sthe players and those alleged against Mr Dank. Where wego to from there we will just have to see as far asMr Dank is concerned.

MR GRACE: Would you be reconvening at the time you deliveredyour decision or would it be done, for instance, by email?

CHAIRMAN: I think in this case we ought to reconvene. Wewould provide hard copies and then of course it would beavailable on-line. Usually it's done by way of forwardingthe decision by way of email. But in this case I think weshould reconvene. I don't think Mr Holmes minds comingdown from Sydney, and Mr Knowles, too much. They have gotused to it. All right. Anything else? We will adjournuntil a date to be determined.

ADJOURNED ACCORDINGLY

Documents

AFL ANTI-DOPING TRIBUNAL DAY SIXTEEN CHAIRMAN ... - …