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From a review of criminal cases, AFL Tribunal suited Gaff best

When Andrew Gaff punched Andrew Bradshaw off the ball during a West Coast / Fremantle Derby in the Australian Football League last week, the first thing that registered to me was crowd silence, the second was the commentator’s reference to being ‘shocked’, and the third was the sight of a boy (because he is a boy) trying not to cry as blood poured out of his mouth.

Calls for criminal sanctions

Is it any surprise that the reaction of onlookers led to calls for criminal sanctions?

I had similar feelings so I’ve researched the question: is the AFL Tribunal or a Magistrates’ Court the better forum for resolving the sanctions for this sort of incident?

The AFL Tribunal is better

For those who want to read the last page of the book to find out the ending, here are my conclusions right now: The AFL Tribunal is much better.  The matter has been finalised within one week.  The penalty appears suitable in the context of the sport (eight weeks on the sidelines). It is a serious penalty. It means the player will miss finals football and the prospect of playing a Grand Final in Season 2018.  His previous good record was considered and taken into account when arriving at this. The victim can also move on.

The alternative would be months before a criminal trial.  Having regard to available information, the historical outcomes appear patchy and inconsistent with expectations of the sport or the community.

A theme emerges of small fines, good behaviour bonds, and the likely prospect of a conviction being overturned on appeal (particularly if the accused has a previous good history).

Remember also that the criminal standard of proof is ‘beyond reasonable doubt’.  It’s a high bar. The Magistrates’ Court is a melting pot of unfortunate human stories, with jail as the very last resort.

One can’t resist the thought that, for the over-worked, over-stressed Magistrate, a sporting incident gone (very) wrong, whilst bad, will not merit the sanction some parts of the sporting public might demand.

And let’s not forget the victim who, months later, will be required to testify and refresh his memory of an on-field incident he is likely trying very hard to forget.

As for the continuing debate about the consistency of decision-making by the Match Review Panel and AFL Tribunal, what’s new? Litigators complain about outcomes all the time. There is nothing to distinguish a court from a tribunal on this point.

So, that’s the synopsis. Let’s now consider a couple of relevant principles. Then I invite you to peruse a list of relevant incidents to decide for yourself.

There is a 2015 case remarkably similar to Gaff / Bradshaw incident

The Leigh Matthews incident has been referred to as the litmus test of what could / should have led to criminal charges against Andrew Gaff (refer to the list below for more detail and don’t forget that Matthews’ criminal conviction, resulting in a $1000 fine, was quashed on appeal).

However, a more telling case for me was McKenzie v Police [2015] SASC 78.  The facts bear remarkable similarities to the Gaff / Bradshaw incident.

This was an Australian Rules match in the Southern Football League between Edwardstown FC and Happy Valley FC. At approximately the 10 to 15 minute mark of the first quarter, Happy Valley registered a behind. Edwardstown’s resultant kick-in from its goal square took the play to about the 50 metre arc of the end it was defending. As the possession of the ball was being contested by a congested group of players near the boundary, the appellant and the complainant were jogging, at slow pace and in very close proximity to one another, through the middle of the ground. At a location approximately 40 metres away from the play, the complainant was struck to the left side of his face by the appellant and fell to the ground. He was awarded a free kick and, after taking the free kick, was assisted from the ground.

The complainant was taken to the Emergency Department of the Flinders Medical Centre for treatment. Scans revealed two fractures to his lower mandible and a partly erupted molar tooth on his lower left side in line with the posterior fracture. The latter was thought to be consistent with having been caused by the injury to his jaw. The following day the complainant had an operation in which two plates and screws were inserted into the fracture sites of his lower mandible. The molar tooth lying in the fracture line was extracted. The complainant spent two nights in hospital. He continues to experience pain and discomfort as a result of the injury, particularly when eating.

The nature of the injuries suffered suggest that a forceful blow was most likely involved, particularly given that the players were only jogging.  However, the facts were contested. This was not a professional AFL game and there was not video footage.

The complainant said it was a closed fist punch to the head. The defendant said it was an accident arising from a blocking motion across the upper chest which accidentally slid upwards to the head. As a consequence, the Magistrate was reliant on the competing eye witness accounts of how the blow was struck.  

As to what happened, well, a criminal conviction was set aside on appeal and the matter was remitted for a new trial. I have not found out what then happened so please enlighten me if you know.

In any event, there was plainly an issue of delayed justice. It is unlikely the charge would have been resolved within 12 to 18 months.

Relevant principles in assessing proof

A football field is different from being a pedestrian on the street

In McKenzie, the elements of the offence to be proved by the Crown were an intentional act causing contact with the complainant that was not consented to or was otherwise lawful and which caused harm.

It was never in contest that the appellant intentionally struck the complainant and broke his jaw.

The offence does not call for any consideration of a specific intent. The only issue in contention was the question of unlawfulness. If the contact was within the rules or, if outside the rules, within the ordinary expectations of participants in the game the contact would be lawful even if it accidentally or unintentionally caused serious harm such as a broken jaw. [Note the underlined words.]

As Justice Nicholson explained in McKenzie, there is a line to be drawn with respect to conduct that occurs on the sporting field particularly with body contact sports such as Australian Rules Football. Not all rough play, whether or not causing injury, that falls outside the rules of the game (so as, for example, to give rise to a free kick or a player being charged with an offence before a football tribunal), will necessarily constitute a criminal assault.

It follows that, because Australian Rules is a high contact sport, the question of inappropriate contact is dealt with differently from, say, someone who is hit in a nightclub, a party or the street. Even violent contact is an inherent part of the sport.

Players voluntarily assume a level of risk

Further, as was stated by Perry J in Bryant v Police [2003] SASC 260 (relied on in McKenzie), it must be accepted that participants in this sport must be regarded as having assumed the risk that opposing players will not always play according to the rules. In the result, even if there is an infringement of the rules resulting in physical contact or injury, it does not follow that this will necessarily give rise to criminal liability.

In the 1997 unreported case of Baird v Police (also relied on in McKenzie) the voluntary assumption of risk was put this way:

I think moreover that those who engage in Australian Rules football must also be taken to consent to the commonplace infringements of the rules which occur in the course of that game in the effort of players to gain an advantage over their opponents so long as those infringements are the commonplace infringements which are to be expected in the course of the game and are not perpetrated with the intention of causing bodily injury to the opponent.”

In other words, there will be no criminal consequences if the conduct occurred within the rules, or within a reasonable tolerance level of the rules being breached.

The line is crossed when the conduct is outside the boundaries of the rules, or a reasonably acceptable breach of the rules

According to  Perry J in Bryant, a king hit or a direct punch to the nose could be construed as at least having the potential to give rise to criminal liability.

King AJ in Baird put it this way:

No consent can be implied, however, to a blow struck behind the play. Quite clearly players in a game of football do not consent to being struck behind the play. That is what the magistrate found to be proved in this case. He found it to be proved by the evidence beyond reasonable doubt that the appellant struck Shearn on the face when the ball was some considerable distance away and the two men were no longer engaged in a contest for the ball or in any form of shepherding or other tactical manoeuvre properly associated with the game.” [emphasis added]

The upshot? The fact that a person is taken off the field with a severe injury at the hands of another does not lead to immediate risk of criminal charge. The context of the sport, the rules, and even reasonably acceptable breaches of the rules must all be considered.

However, if the incident is behind the play, all bets are off.

A list of criminal cases arising from on-field incidents

Such a list is hard to find because many of these matters are dealt with at Magistrates’ Court level.  They are not reported unless they go on appeal. The lack of data may also suggest that these cases are not common.

For some of the older cases, I have been assisted by a 2007 article by Chris Davies that appeared in Verdict (2007, Vol 1, p.22), the magazine of the Queensland Law Society.

A. Leigh Matthews and Neville Bruns

The incident

Matthews ‘king hit’ Geelong’s Neville Bruns under circumstances in which the court considered it unlikely that Bruns would have been aware of what was going to happen. Bruns broke his jaw.

No report was laid by umpires against Matthews. However, the ‘behind play’ incident had been captured on camera. After much public outcry, the VFL launched an investigation and subsequently deregistered Matthews for four weeks.

The outcome

Guilty plea to assault.

Initially fined $1000 – conviction recorded.

On appeal, conviction overturned, good behaviour bond.

(R v Matthews,(unreported, Magistrates Court (Vic), 1985)

R v Matthews,(unreported, DC(Vic), Ravech J, 7 April, 1986))

B. Watherston v Woolven 

The incident

Amateur game SA.

Watherston hit opponent with head high contact.

Broken nose.

‘Slightly behind play’.

The outcome

Found guilty of assault before a Magistrate.

Guilty verdict.

No conviction recorded.

On appeal, Justice Johnston stated that he was very aware of the fact that the situation was very different from an assault on the street, and that it had taken place during the “hurly burly of a football match”. Justice Johnston also noted that the assault was not pre-meditated, and held that while the guilty verdict should be retained, no conviction should be recorded.

(Watherston v Woolven (1988) 139 LSJS 366 per Johnston J, 21 October 1987)

C. McAvaney v Quigley 

The incident

McAvaney had intervened in an altercation between the victim and some of his own team mates. During this intervention McAvaney landed a heavy blow to the victim which resulted in his jaw being broken in two places.

The outcome

On appeal to SA Supreme Court, Justice Legoe upheld Magistrate’s decision not to record a conviction.

(McAvaney v Quigley (1992) 58 A Crim R 457)

D. R v Abbott 

The incident

“King hit”.

The outcome

Abbott received a conviction, but also an 18 month  prison sentence for an assault charge.

On appeal, the court pointed out that players may be taken to submit to the application of force which is outside the laws of the game, but there are breaches of the rules that still amount to a criminal act.

However, the Court of Appeal in Western Australia held that the 18 month sentence was manifestly excessive, given that the defendant had no prior record, and therefore reduced the sentence to the three months that Abbott had already served.

(R v Abbott (unreported), SC (WA)) Kennedy, Rowland and Anderson JJ,25 July 1995)

E. McKenzie v Police

The incident

Australian Rules match in Southern Football League between Edwardstown FC and Happy Valley FC.

Victim alleged deliberate roundhouse punch with closed fist to face to direct opponent.  Broken jaw requiring surgery.

Opponent maintained it was an accident, namely, an attempted blocking movement with his arm, within the rules, but which accidentally caught the complainant across the face.

The outcome

Charged with assault causing harm.

Before a Magistrate, charge sustained.

Conviction for assault set aside.

Appeal – new trial ordered because not persuaded Magistrate applied criminal burden of proof (beyond reasonable doubt). Satisfied that it was open to the Magistrate to find the charge proved beyond reasonable doubt, so a technical error.

(McKenzie v Police [2015] SASC 78)

What about civil liability?

A hospital stay, expensive surgery and a lengthy rehabilitation cost money. In a professional sporting context, one expects the player will be appropriately insured and/or the Club will pick up the bill.  However, many injuries occur to players in amateur leagues. There, the question looms large of who should foot the bill.

A negligence claim at common law is available for injured players seeking damages.

Players owe fellow players a duty to take reasonable care for their safety while playing. There is a duty to tackle carefully (which finds expression in the laws of the game). Things to consider when assessing the duty include:

  • the force and physical contact permitted by the rules, or which is necessarily incidental to the play; and
  • The lack of reflection available to avoid contact given the speed of the game.

What is reasonable will be judged in accordance with the circumstances of the sport. Most injuries will therefore continue to be inflicted without legal liability arising.

Nevertheless, an athlete will be answerable for objectively foolhardy conduct. If this happens, the employer is also at risk of being vicariously liable for that conduct.

For further reading on this issue, look at anything written by Hayden Opie. Here is one such article.

Conclusion

The call for criminal sanctions following the Gaff incident may also reflect changing community attitudes to the effect of punches on young men. The Court of Appeal in Victoria has been vocal in moving the dial in favour of longer sentences for ‘coward’s punch’ cases (where the victim, usually male, is killed following a late night drunken punch by the perpetrator). Legislation has followed suit.

Accordingly, when considering some of the older cases listed above, one may ask whether the outcome would be tougher today.

The Supreme Court makes available educational resources in relation to one punch cases which are well worth a look.

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