The barrister who represented Cathy Freeman in the bitter litigation against her former boyfriend Nick Bideau has been retained by leg spinner Shane Warne to present his case at the Australian Cricket Board hearing Friday.
Warne will front an ACB anti-doping committee and no verdict is expected until late afternoon, at the earliest.
Jeffrey Sher, a high-profile and well-respected Victorian barrister, will argue Warne should be let off without penalty
due to "exceptional circumstances".
Assisting Sher will be a junior counsel and Warne's lawyer, Ian McCubbin. Central to their argument will be the
vanity excuse that Warne took the diuretic tablet given to him by his mother to look good on television when he announced his retirement from one-day cricket on January 22.
But unless the drugs panel considers this to be an exceptional circumstance, Warne faces a minimum two-year
penalty that effectively ends his cricketing career.
Under the ACB's anti-doping policy, Warne's case will be heard in camera and in an "inquisitorial
rather than adversarial fashion".
There will be no fierce cross-examination of witnesses or lengthy arguments about points of law at the hearing in
Melbourne, The Australian daily reported.
Witnesses can swear an oath but won't be asked to do so. A transcript will be taken but kept confidential.
The ACB's drugs panel consists of former Australian Test spinner Peter Taylor, Justice Glen Williams from the
Queensland Court of Appeal and Dr Susan White of the Australian Sports Drug Medical Advisory Committee.
The panel will be assisted by legal counsel Elizabeth Brimer, a member of the Victorian Council for Civil Liberties.
Her role will be to interpret the legal arguments, the newspaper said.
Though Sher is a veteran of high-profile cases which included representing Olympian Cathy Freeman against Bideau in
the Victorian Supreme Court, he and his legal team will have problems with one half of the exceptional circumstances
clause, The Sydney Morning Herald reported.
Clause 4.5 of the ACB's anti-doping code reads: "Exceptional circumstances exist if the player held an honest
and reasonable belief in a state of facts which, if they existed, would mean that the player did not commit a doping
offence."
Warne may be able to convince the tribunal he believed he was not taking a banned substance but this may not be
considered "reasonable" by the panel.
Warne will tell the committee that he was badgered to take a Moduretic tablet by his mother Brigitte so he would
look nice at his press conference; that he and his mother were sensitive about his appearance; that he did not know the pill contained a banned substance; that he has never taken performance-enhancing drugs and had no idea Moduretic could be used as a masking agent, The Australian said.
The key witnesses who could be called to support Warne's story will be Brigitte Warne and, if necessary, the
cricketer's father Keith, it said.
The most experienced sports advocate in Australia however believes another avenue may open to Warne - a mid-hearing downgrading of the charge.
Alan Sullivan said the charge may be lessened to using a prohibited substance, as opposed to using a prohibited method.
The lesser charge attracts a maximum penalty of just three
months.
Sullivan is the ACB's deputy commissioner of behaviour and is understood to have been approached to act for both
sides in today's hearing.
West Australian Duncan Spencer received an 18-month ban two years ago after testing positive to the steroid
nandrolone. Last year, New South Wales batsman Graeme Rummans was banned for a month and fined $2000 after testing positive to probenecid.
Meanwhile, World Anti-Doping Agency (WADA) chairman Dick Pound said Warne should receive a two-year ban if found guilty.
"The source is not relevant, the responsibility of an athlete is to not take prohibited substances," Pound said. "You
cannot have an IQ over room temperature and be unaware of this as an international athlete.
"This is original: 'My mum gave it to me'," the world's top anti-drug officer said.
He also dismissed as "nonsense" the criticism by Australian Sports Drug Agency (ASDA) chief executive John Mendoza for commenting on the case before the hearing.
The hearing, meanwhile, has just begun. "We have no idea at all how long this might take or whether there will be a determination by the end of the day," ACB spokesman Peter Young told reporters camped outside the hearing in Melbourne.
Warne arrived an hour earlier, looking composed. He was accompanied by his mother, father, wife and brother.
Australia's World Cup squad in South Africa sent Warne a good luck message before the hearing.
"We wrote him a letter today and it had a few comments from each of the lads on it," captain Ricky Ponting said after the world champions' 75-run win over the Netherlands on Thursday.
"We had faxed it to him wishing him well for what he has got coming up. It has been a tough time for him but he has the full support of all his team mates here and, I'm sure, everyone he has played with in Australia."
The ACB has said it would seek Warne's reinstatement in the World Cup squad if he was exonerated, but they have also applied to replace him if necessary.
