The dual use of evidence in both sporting tribunals and criminal proceedings (doping in sports pt. 4)

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The dual use of evidence in both sporting tribunals and criminal proceedings (doping in sports pt. 4)

Posted 11/04/2013 by Jaan Murphy

The previous FlagPost in this series explored what happens once a possible Anti-Doping Rule Violation (ADRV) is detected, and the role of sporting tribunals in determining and sanctioning athletes or support personnel who are found to have committed an ADRV.

As part of that process, ASADA (and also potentially Customs and the AFP) collect a variety of evidence. So when can evidence collected as part of an anti-doping investigation be used in criminal and civil proceedings and vice-versa?

This FlagPost examines the long-standing tradition of the ‘dual use’ of evidence in both civil and criminal proceedings in Australia and the situation with regard to sporting tribunals and criminal proceedings.

Same conduct, two sets of proceedings 

The Australian Institute of Criminology notes ‘Professional behaviour may be investigated by the civil and criminal courts, registration authorities and a variety of consumer-oriented statutory bodies…’. As an example of this, doping may involve:
  • a breach of an anti-doping rule under the relevant Sporting Administration Body (SAB) rules or
  • conduct which constitutes a criminal offence (examples of such criminal offences are examined in the next FlagPost in this series) or
  • a breach of other Commonwealth or state or territory laws (such as the Therapeutic Goods Act 1989 (TGA Act)).
However, it is important to note, that in Australia, the administrative and criminal processes and sanctions related to doping remain separate.
The fact that an athlete is sanctioned by a sporting tribunal for an ADRV does not prevent the commencement of criminal proceedings arising from the evidence used to establish the ADRV (and vice versa). Whilst this might appear unjust, there are many parallels in the Australian legal system.
For example, as R v Peters [2013] VSC 93 demonstrates, medical practitioners can lose their medical licence for misconduct and may also face criminal charges arising from the same incident/conduct which led to:
  • a complaint being lodged, which in turn
  • resulted in a disciplinary tribunal issuing a caution, suspending or deregistering the doctor for professional misconduct.
The same applies to other professions including company directors / office holders, dentists, lawyers, nurses, physiotherapists public servants and teachers.
There are many differences between administrative and criminal proceedings, but an important point is that the sanctions imposed differ substantially between the two systems. Under Australian law, a civil penalty is one imposed by courts or tribunals applying civil rather than criminal court processes. As noted by the Australian Law Reform Commission civil penalty provisions may: similar to a criminal offence (for example, breaches of a director’s duties or publishing misleading material) and may involve the same or similar conduct, and the purpose of imposing a penalty may be to punish the offender, but the procedure by which the offender is sanctioned is based on civil court processes…
The Australian Law Reform Commission also notes that civil penalties can (and frequently do) encompass injunctions, banning orders, licence revocations and orders for reparation and compensation. As such, the penalties imposed by a relevant sporting tribunal for an ADRV (such as suspension from competition, fines etc) are similar in nature to the penalties imposed on members of other professions, and clearly cannot be characterised as criminal.  

The key point here is that for members of the professions discussed above, the same actions or conduct can lead to two proceedings (civil and criminal), and despite possibly sharing evidence, those proceedings remain separate with a different set of penalties, procedures, and most importantly, standards of proof.

Dual use of evidence

ASADA has in place information-sharing relationships with government agencies, law enforcement bodies and sporting administration bodies and can receive information from a variety of sources such as doping control field work, athlete whereabouts, scientific analysis of tests, and tip offs from the general public.

Any evidence uncovered by an ASADA (or police) investigation into doping may be shared and potentially used in sporting tribunal, civil and criminal proceedings, subject to any admissibility rules related to the particular evidence in the relevant proceeding. ASADA conducts investigations into suspected ADRVs in accordance with the Australian Government Investigations Standards (AGIS).

ASADA may choose to refer matters to AFP , which in turn would be responsible for preparing a brief for the Commonwealth Director of Public Prosecutions. Ms Perdikogiannis (the General Manager of Anti-Doping Programs and Legal Services at ASADA) was asked in the recent Senate inquiry into the ASADA Amendment Bill 2013 if ASADA would refer persons suspected of trafficking prohibited substance to a criminal agency. Her response was:
"Where the substances are illicit substances or substances that are covered by the criminal law, then that is something we would do."
This response reflects both the AGIS arrangements discussed above and the powers provided by subparagraphs 71(2)(e), (f), (fc), (fd) and (fe) of the Australian Sports Anti-Doping Authority Act 2006 which allows ASADA to pass information (including personal information as defined in the Privacy Act 1988 collected as part of the anti-doping investigations to various law enforcement agencies. 
However, proposed subsection 13D(2) of the Australian Sports Anti-Doping Authority Amendment Bill 2013 (as amended) proposes to prevent the use of evidence obtained under a disclosure notice issued by ASADA in either criminal proceedings (other than proceedings for providing false or misleading information or documents) or civil proceedings not arising under the Australian Sports Anti-Doping Act 2006 and its regulations.
This protection is narrow in that it only prevents evidence obtained under a disclosure notice from being used in criminal proceedings. Evidence obtained through other investigatory mechanisms would still be able to be used in criminal and civil proceedings. This would arguably provide athletes with a certain (albeit narrow) measure of statutory protection from dual proceedings arising from the same conduct, something that many members of other professions do not currently possess.
In the next FlagPost, we will consider when an ADRV is also a crime in Australia and the sanctions imposed by the criminal justice system for those crimes.

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Flagpost is a blog on current issues of interest to members of the Australian Parliament

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