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A lawyer for Nick D’Arcy doubts if his client will receive a fair trial on an assault charge after being sensationally dumped from the Beijing Olympic swimming team.
Brisbane criminal lawyer Jim Coburn today said D’Arcy had been denied the presumption of innocence and did not rule out the axed butterflier taking legal action against the Australian Olympic Committee (AOC) if cleared of the charge.
The Court of Arbitration for Sport (CAS) on Monday rejected D’Arcy’s final appeal against a decision by the AOC to dismiss him from the Beijing squad for bringing the sport and the team into disrepute.
D’Arcy is charged with recklessly inflicting grievous bodily harm on former swimmer Simon Cowley by assaulting him in a Sydney bar early on March 30, just hours after winning a spot on the Australian Olympic team.
Coburn said the national 200m butterfly champion’s case had been effectively tried by the AOC and CAS.
“You have various authorities as the AOC and CAS making determinations, and general Joe Public sees that as a finding of guilt – that’s the concern that we have,” he told AAP.
“All the publicity through the various media outlets has brought the issue directly into the loungerooms of general Australians everywhere and that’s the pool from which juries are drawn.
“Once you start drawing jurors from there for a criminal trial and they have already been exposed to the allegations then you are severely prejudicing someone’s right to a fair trial and the ability to rely on the presumption of innocence.”
Asked if he thought D’Arcy would receive a fair trial, Coburn said: “I have my doubts but it will be up to the court to decide whether that is capable – but there would have to be a huge question mark.”
Coburn said he was surprised that the AOC did not wait until the outcome of the court case before considering action like other sporting organisations.
He has cited the National Rugby League in which New Zealand Warriors winger Michael Crockett is allowed to play after being charged with three counts of rape.
“The NRL has a situation where players are charged with serious offences, the most recent being an allegation of rape, they are allowed to turn out week in, week out for their club,” Coburn said.
“But until the determination is made in a court of law the NRL doesn’t take a step toward sanctioning the person, and that’s the way it should be.
“Because he is Nick D’Arcy he doesn’t seem to be entitled to the same letter of the law that the general public is entitled to – the presumption (of innocence) is gone.”
Asked if D’Arcy would take legal action if found not guilty, Coburn said: “I wouldn’t discount that at this stage.
“But how do you put a price on an Olympic berth?
“After seven years of training and competing and finally you reach the goal, only to have it ripped away from you by a stroke of a pen.”
D’Arcy’s assault case will not be heard until after the Olympics because members of the Australian swim team in Beijing will be called as witnesses.
In a brief hearing in Sydney’s Downing Centre Local Court yesterday, the case was adjourned until July 24 for a hearing to determine who will be called as witnesses.
D’Arcy’s Sydney-based lawyer Jack Leitner said his legal team would not be able to call key defence witnesses on July 24, because several were members of the Australian Olympic team, which leaves for Beijing on July 23.
Leitner said it was expected the matter would be adjourned again until after the Beijing Games.