Peter Kogoy and Michael Pelly | April 03, 2008
CONTROVERSIAL butterfly star Nick D'Arcy yesterday pleaded for "a fair go" as the inquiry into his altercation with Olympian Simon Cowley was established in Sydney yesterday.
However, his fate might ultimately rest on how fast his case can be heard in NSW's criminal courts, with doubts emerging as to whether the Australian Olympic Committee can act before the judicial process takes it course.
The AOC said yesterday it would receive legal advice on the issue today, but was adamant the final decision on whether D'Arcy swims in Beijing rests with one man - Olympic chief John Coates.
The Australian champion is facing a maximum 10 years' jail if found guilty after being charged with assault and grievous bodily harm following a weekend nightclub incident that left Cowley with a broken jaw, nose and other facial injuries.
A friend of D'Arcy, Elysia Clapin said yesterday the swimmer only struck Cowley after "he started the fight".
"What right did Simon have to slap him?" Clapin said. "Claims that he meant to make Nick 'tone down his bragging' are ridiculous."
D'Arcy is due to appear in a Sydney court on April 21, two days before a series of pre-Games swim camps.
If the inquiry leads Coates to decide D'Arcy should not swim, it is expected the swimmer will appeal to the Court of Arbitration for Sport - a situation which former AOC lawyer Simon Rofe says could pose problems.
"There are a whole raft of (legal) authorities that any administrative or civil proceeding should be stayed pending criminal proceedings except in exceptional circumstances," Rofe said yesterday.
Rofe said D'Arcy would make a plea on April 21 and the courts may decide to expedite the hearing "on the grounds that is a matter of some significance because it involves the accused being able to represent Australia".
The inquiry will be conducted by a panel comprising AOC vice-president Peter Montgomery, in-house AOC counsel Fiona de Jong and Swimming Australia chief executive Glenn Tasker.
"We are very conscious of the interest in this matter and we are very keen to deal with the matter as carefully as possible considering the rights of the athlete," Montgomery said yesterday.
De Jong pointed out the athletes sign a contract which gives Coates as chef de mission absolute discretion to decide if they can compete at the Games.
They also consent to AOC bylaws which say any ruling by the Court of Arbitration for Sport is final and there is no avenue of appeal.
She said Darcy would be provided with the opportunity to put his case, but conceded past rulings had deemed the CAS to be an administrative proceeding.
D'Arcy has already withdrawn from the Australian team competing in the world short-course championships starting in Manchester next Wednesday.
In a statement released yesterday, he said: "I deeply regret my involvement in this incident and the injury occasioned to Simon Cowley.
"I sincerely regret the embarrassment caused to Australian swimming, the Australian Olympic swimming team and to family."
He also pleaded for a fair go saying he did not wish "to become embroiled in a trial by media where public opinion is seen to take precedence over the judicial system".
D'Arcy's coach Brian Stehr told The Australian the incident was out of character and hoped his swimmer would still be able to compete in Beijing.
"The guy's already withdrawn from the world short-course championships," Stehr said.
"That's a pretty big punishment."