Bur­den of proof

Jamaica Gleaner - - TUESDAY SPORTS - Shayne Fair­man Gleaner Writer

Rus­sell’s lawyer says JADCO must es­tab­lish neg­li­gence

IN AD­VANC­ING a case on be­half of West Indies crick­eter An­dré Rus­sell, Queen’s Coun­sel Pa­trick Foster said his client has an obli­ga­tion to prove he was not neg­li­gent in vi­o­la­tion of the where­abouts rule, con­tend­ing that the Ja­maica An­ti­Dop­ing Com­mis­sion (JADCO) will be forced to prove neg­li­gence from the ev­i­dence given.

The crick­eter’s anti-dop­ing dis­ci­plinary hear­ing got un­der way at the Ja­maica Con­fer­ence Cen­tre in down­town Kingston yes­ter­day, fol­low­ing a pre­lim­i­nary hear­ing in July at The Courtleigh Ho­tel in New Kingston.

The case against the Ja­maican is fur­ther ar­gu­ing that Rus­sell was fully aware of all the vi­o­la­tions and that the crick­eter had re­ceived all cor­re­spon­dence and was in pos­ses­sion of all doc­u­ments re­lat­ing to his al­leged fil­ing fail­ures.

“The thrust of our case is that the dop­ing author­ity, JADCO, must prove neg­li­gence that has to emerge in the con­text of the ev­i­dence as it is given, so that is, es­sen­tially, our po­si­tion. The bur­den of proof is on JADCO,” Foster told The Gleaner.

“I don’t want to com­ment too much on the de­tails of the ev­i­dence in the midst of cros­sex­am­in­ing the wit­ness, but a good por­tion of the cross-ex­am­i­na­tion re­lates to the July to Septem­ber quar­ter, where JADCO recorded two fil­ing fail­ures, so in cross-ex­am­i­na­tion, I am just ques­tion­ing the ba­sis which they ar­rived at two fil­ing fail­ures for the same quar­ter,” Foster con­tin­ued.

Foster has claimed that Rus­sell only re­ceived cor­re­spon­dence for two pe­ri­ods – Jan­uary to March 2015 and July to Septem­ber 2015 – for al­legedly miss­ing the out-of­com­pe­ti­tion dop­ing tests.

How­ever, JADCO’s lawyer,

Lack­ston Robin­son, con­tended yes­ter­day the dates of Rus­sell’s three where­abouts fil­ing fail­ures were com­mit­ted be­tween Jan­uary 1, July 1 and July 25

last year.

It was re­vealed by JADCO that di­rec­tor Carey Brown, who was also named as a wit­ness, was ab­sent be­cause he was be­ing in­volved in a mo­tor ve­hi­cle ac­ci­dent last week and is cur­rently re­cu­per­at­ing. He is ex­pected to take the stand in

about three weeks.

Foster said while Rus­sell would pre­fer to be play­ing cricket right now, he will be look­ing to prove in­no­cence.

“Mr Rus­sell prefers to be play­ing cricket right now, but he has an obli­ga­tion to be here. I am just go­ing to ad­vance the

case on be­half of my client and ex­plore the ev­i­dence given by JADCO,” he added.

The lawyer ar­gued that the wheare­bouts rule does not per­mit the fix­ing of an im­me­di­ate dead­line and ques­tioned the wit­ness on what ba­sis JADCO had ar­rived on its fixed dead­line

dates.

The hear­ing will con­tinue with cross-ex­am­i­na­tion of Rus­sell on Septem­ber 28 at 10 a.m. at the same venue.

Rus­sell’s lawyer said his client will be giv­ing a state­ment or take the stand “if it reaches that point”.

RI­CARDO MAKYN/STAFF PHO­TOG­RA­PHER

Ja­maica and West Indies crick­eter An­dré Rus­sell (left) at the JADCO dis­ci­plinary hear­ing at the Ja­maica Con­fer­ence Cen­tre yes­ter­day. Look­ing on is his wife, Mrs Jassym Lora-Rus­sell.

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