ASADA case against Essendon hanging by a thread (The Age, 1 Nov 14)

[Chameleon75]

Agree that acquittal does not mean you automatically entitled to compensation, my understanding when going for malicious prosecution or wrongful conviction you need to prove beyond balance of probabilities that you have grounds for such damages- not that you were innocent. There lies the difficulty as the counter to such a civil charge is that there was evidence against you, or that the known evidence at the time of prosecution/conviction supported the case against you.

prior to 2013 you needed to prove innocence as I understand. The case of Roseanne Beckett set a new precedent removing the requirement to prove innocence in pursuing malicious prosecution, but it extended a bit further too, I'm no lawyer so I don't wish to attempt explaining it. (Might ask the missus later, shes one of those fancy law talkers).

my main point is that it was interesting how one court could acquit someone and another didn't automatically accept that as proof of innocence.

 

[The_Wookie]

I think you will find as someone stated above In Australia you are either found guilty or not guilty.

happy for you to link me something that disproves me though

From all the reading I have done they only refer to 2 terms. Guilty or Not Guilty or Guilty or Innocent.

They never refer to Innocent & Not guilty have specifically different meanings.

http://www.dfat.gov.au/facts/legal_system.html

happy to stand corrected - and why i sought the clarification in the first place.

its just convenient for people to say they are different so they can continue talking s**t about how Essendon are guilty but there wasn't enough proof to back it up.

Thats not the idea at all.

 

[fabulousphil]

its just convenient for people to say they are different so they can continue talking s**t about how Essendon are guilty but there wasn't enough proof to back it up.

On the HTB you are exactly 100% correct.

 

[Muggs]

prior to 2013 you needed to prove innocence as I understand. The case of Roseanne Beckett set a new precedent removing the requirement to prove innocence in pursuing malicious prosecution, but it extended a bit further too, I'm no lawyer so I don't wish to attempt explaining it. (Might ask the missus later, shes one of those fancy law talkers).

my main point is that it was interesting how one court could acquit someone and another didn't automatically accept that as proof of innocence.

Here is a good article on that case http://lawgeekdownunder.blogspot.com.au/2013/05/malicious-prosecution-in-high-court.html.

It applied when it was decided not to to proceed with a prosecution, not when a verdict was delivered.

But totally agree that a accquital does not mean you are entitled to damages.

 

[Argy]

No

They simply are not.

Innocent and Not Guilty are the same thing. That is the real world.

You do realise that a murderer can be found not guilty?

 

[Laphroaig]

I think you will find as someone stated above In Australia you are either found guilty or not guilty.

happy for you to link me something that disproves me though

From all the reading I have done they only refer to 2 terms. Guilty or Not Guilty or Guilty or Innocent.

They never refer to Innocent & Not guilty have specifically different meanings.

http://www.dfat.gov.au/facts/legal_system.html

Decent try, but no banana. Generic information in layman's terms.

The key is in the Australian law definition of NOT GUILTY which is:

Not Guilty
A Not Guilty verdict represents the prosecution’s failure to establish the accused’s guilt beyond reasonable doubt.

The meaning is quite specific, and is clearly not a decision that the accused did not commit the offence. It is a decision that the prosecution failed to prove guilt beyond reasonable doubt.

No person has ever been found innocent in an English system based court, nor will they ever be.

 

[imperial_oz]

Few things here, no European countries have guilty until proven innocent once at court, in fact no country does anymore its a breach of human right conventions. - there is an issue though with multiple countries jailing people without trial but this is different issue technically.

O,J Simpson was not found guilty of unlawful killing, he was found liable, it was a civil trial not criminal trial so guilt could not be established. the press reported this as guilty but legally he was only found liable. He is still legally not guilty, thus presumed innocent of murder. (edit corrected spelling and grammar mistake).

You right that everyone is only presumed innocent, not proven innocent, in effect we all presumed innocent of every unsolved crime in Australia, its never proved we innocent of every unsolved crime...

You are correct in your comments regarding codified systems but in practice the onus of proof can be reversed by the authorities. To be specific, countries like Italy and France (I think) allow for imprisonment for the purposes of investigation. I'm trying to find references on allowable timeframes but so far nada, so maybe there are none. Unlike being on remand in Australia, you don't have to be charged and you can't apply for bail. If you get arrested, you can be imprisoned during the investigation unless you can show yourself to be innocent of the allegations. This can include the trial and appeals. So you are correct in your statement as far as codified law is concerned but in effect that can be changed. Also, this just can't happen for obvious reasons under Australian law.

Your comments about Simpson are also correct and more accurate as far as your terminology but my point was illustrate the difference between not guilty and innocent when different standards of proof can be applied. Perhaps I should have been more precise in my language but the point still stands. In the end Simpson was found not guilty and is presumed innocent of the criminal charge of murder but liable for the civil charge of unlawful killing. The difference being the different stands of proof required for the same actions.

Not guilty attracts a presumption of innocence not proof of innocence and I think your last point addresses that.

Either way, I'm not disputing what you say, just pointing out where the 'old' system can sometimes creep in under the radar.

 

[Boston tiger]

its just convenient for people to say they are different so they can continue talking s**t about how Essendon are guilty but there wasn't enough proof to back it up.

Dank probably needs to be cleared as well otherwise you are right and the saying about "you throw enough sh:t some sticks etc.
Is Dank involved in this hearing or only players get SCNs?

 

[Gigantor]

Dank probably needs to be cleared as well otherwise you are right and the saying about "you throw enough sh:t some sticks etc.
Is Dank involved in this hearing or only players get SCNs?

One support staff member received an SCN and is part of the same tribunal hearing (facing a total of 30 charges).

Presumably, that staff member is Dank. He is not contesting the charges, meaning that should be a straightforward prosecution for ASADA (and might help explain why the bulk of the tribunal hearing to date has been focused on those 30 charges).

 

[Muggs]

You are correct in your comments regarding codified systems but in practice the onus of proof can be reversed by the authorities. To be specific, countries like Italy and France (I think) allow for imprisonment for the purposes of investigation. I'm trying to find references on allowable timeframes but so far nada, so maybe there are none. Unlike being on remand in Australia, you don't have to be charged and you can't apply for bail. If you get arrested, you can be imprisoned during the investigation unless you can show yourself to be innocent of the allegations. This can include the trial and appeals. So you are correct in your statement as far as codified law is concerned but in effect that can be changed. Also, this just can't happen for obvious reasons under Australian law.

Agree holding without charge does have the effect of reversing the onus, Main reason for this post is to note that most countries have this to some degree. Even Australia allows police to hold people for some time without charge for investigative or questioning purposes (eg Queensland https://www.qld.gov.au/law/crime-an...-police-custody/being-held-in-police-custody/) the big difference is the length of time and the conditions held in.

 

[Laphroaig]

You are correct in your comments regarding codified systems but in practice the onus of proof can be reversed by the authorities. To be specific, countries like Italy and France (I think) allow for imprisonment for the purposes of investigation. I'm trying to find references on allowable timeframes but so far nada, so maybe there are none. Unlike being on remand in Australia, you don't have to be charged and you can't apply for bail. If you get arrested, you can be imprisoned during the investigation unless you can show yourself to be innocent of the allegations. This can include the trial and appeals. So you are correct in your statement as far as codified law is concerned but in effect that can be changed. Also, this just can't happen for obvious reasons under Australian law.

Don't be too sure of that.

The presumption of innocence is a bit of an empty vessel. As you note, in the case of serious crimes it's not terribly unusual for the presumed innocent person to spend considerable periods of time in the slammer awaiting trial. Months or even years. They are to all intents and purposes presumed guilty. At any one time there will be approximately FIVE THOUSAND "presumed innocent" Australians in jail.

Furthermore, there are numerous offences and transgressions under Australian Law which require the accused to prove they did not commit the offence. The most important of these in conceptual terms is the recent change to anti terrorism laws which require a person who returns from certain parts of the Middle East to prove that they were not there for the purpose of engaging in terrorism OR supporting it OR providing assistance. Failure to demonstrate an "innocent purpose" can result in charges with very serious consequences.

 

[imperial_oz]

Don't be too sure of that.

The presumption of innocence is a bit of an empty vessel. As you note, in the case of serious crimes it's not terribly unusual for the presumed innocent person to spend considerable periods of time in the slammer awaiting trial. Months or even years. They are to all intents and purposes presumed guilty. At any one time there will be approximately FIVE THOUSAND "presumed innocent" Australians in jail.

Furthermore, there are numerous offences and transgressions under Australian Law which require the accused to prove they did not commit the offence. The most important of these in conceptual terms is the recent change to anti terrorism laws which require a person who returns from certain parts of the Middle East to prove that they were not there for the purpose of engaging in OR supporting it OR providing assistance. Failure to demonstrate an "innocent purpose" can result in charges with very serious consequences.

Yeah, but its drifting away from the main points I was raising originally. I will say that the people being held on remand have all been charged and aren't being held for the purposes of investigation but the effects of the presumption of innocence are slowly being changed especially with security issues.

Anyway, my original point was that presumed innocence is not the same as proved innocence and it was in response to a particular poster that claimed it was.

 

[expires]

I'd imagine Bill has a better understanding of the constitution.

Wrong.

 

[Demon in Hell]

One support staff member received an SCN and is part of the same tribunal hearing (facing a total of 30 charges).

Presumably, that staff member is Dank. He is not contesting the charges, meaning that should be a straightforward prosecution for ASADA (and might help explain why the bulk of the tribunal hearing to date has been focused on those 30 charges).

So your saying Dank wil be found guilty of injecting EFC players with TB4.

 

[Reality rules]

Has anyone ever stopped to consider it ASADA can prove that Dank did inject banned substances, the case against the players maybe academic. So if Dank is guilty, the defence may fail!

As Dank will not appear to defend himself, he could be found guilty in absence.

 

[Muggs]

Has anyone ever stopped to consider it ASADA can prove that Dank did inject banned substances, the case against the players maybe academic. So if Dank is guilty, the defence may fail!

As Dank will not appear to defend himself, he could be found guilty in absence.

Would expect the players defence to also apply to Dank on the TB4 charge. Think he's done on all the other charges.

 

[Reality rules]

Would expect the players defence to also apply to Dank on the TB4 charge. Think he's done on all the other charges.

Dank has offered no defence, but he can be found guilty by Tribunal for administering and supply.

No prizes to who he supplied or administrated those substances to!

 

[Magruder]

Wrong.

Seriously...

Bloke pretends to be a retired high court judge. Gets called on it. Then claims to have a better understanding of the the constitution than Sir William Deane.

 

[MaddAdam]

You do realise that a murderer can be found not guilty?

I believe Mr Mick Gatto can make another appearance in the saga in this regard.

 

[Go_Blues!]

You do realise that a murderer can be found not guilty?

Sure, but if the state accuses you of murder, they have an obligation to prove it. A representative jury made up of fellow citizens need to be satisfied beyond reasonable doubt that you did murder someone. In the case of acquittal, the prosecution was unable to that and therefore the presumption of innocence needs to be respected. Now, in absolute terms, that does not mean that you did or did not commit the crime but what it does mean, among other things is that certainly a person who has not heard the evidence could not determine a different outcome. Anyone who thinks that they know the "truth", regardless of the outcome of a trial, is really only going on gut feel. Do people really think we should be using gut feel as a standard of proof?

 

[Valleyboy9]

One support staff member received an SCN and is part of the same tribunal hearing (facing a total of 30 charges).

Presumably, that staff member is Dank. He is not contesting the charges, meaning that should be a straightforward prosecution for ASADA (and might help explain why the bulk of the tribunal hearing to date has been focused on those 30 charges).

I am a little confused here however you seem to have your contacts (hoping its not BRUCE)
Your comments seem to fly in the face of what you have been espousing. Has Dank (among many things) been charged with injecting the players. ?????

 

[Go_Blues!]

I am a little confused here however you seem to have your contacts (hoping its not BRUCE)
Your comments seem to fly in the face of what you have been espousing. Has Dank (among many things) been charged with injecting the players. ?????

Perhaps I am missing something but I totally agree with your post; how can Dank be banned unless it can be shown that the players took PED's?

 

[Argy]

Sure, but if the state accuses you of murder, they have an obligation to prove it. A representative jury made up of fellow citizens need to be satisfied beyond reasonable doubt that you did murder someone. In the case of acquittal, the prosecution was unable to that and therefore the presumption of innocence needs to be respected. Now, in absolute terms, that does not mean that you did or did not commit the crime but what it does mean, among other things is that certainly a person who has not heard the evidence could not determine a different outcome. Anyone who thinks that they know the "truth", regardless of the outcome of a trial, is really only going on gut feel. Do people really think we should be using gut feel as a standard of proof?

A murderer can be found not guilty if the prosecution stuffs up. Doesn't mean he's innocent.

Point being that a "not guilty" verdict of the tribunal does not mean the players are innocent of being injected with banned substances.

 

[mxett]

Um... Maybe a doctor? Mate, that's shocking if that's an excuse for keeping no records. If that's your argument I gather your disgraced by what your club has done to the players.

Sure, if AFL clubs approached sports science that way, but its pretty obvious that in 2012 they didnt. And Essendon werent on their own

 

[Go_Blues!]

A murderer can be found not guilty if the prosecution stuffs up. Doesn't mean he's innocent.

Point being that a "not guilty" verdict of the tribunal does not mean the players are innocent of being injected with banned substances.

So in an absolute sense, this is right. But how else do we determine guilt? Perhaps for all crimes, rather than having a court process we should just run a pole on big-footy?