Legal

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Sam Joyce Partner Tindall Gask Bentley Lawyers

LEGAL AFL players getting away with assault?

Thank God footy is back. And thank God this season isn’t going to be like the shell of a game that was forced on us by COVID-19 last year.

But the common ground between the 2020 COVID-19 season and the current and past seasons is players intentionally making aggressive physical contact with one another, in some cases causing harm, and in other cases causing serious harm.

Why isn’t that a criminal offence?

In round one, the tribunal suspended Patrick “Danger” Dangerfield (Geelong) for three games for causing Jake Kelly (from my beloved Adelaide Crows) concussion and a broken nose.

Danger intentionally collided with Kelly. In most circumstances that would be an intentional act causing serious harm.

If, on a Friday night in Hindley St, a bloke intentionally or recklessly collided with me and caused me to be concussed and to have a broken nose, you would probably charge him with recklessly causing harm or serious harm under the Criminal Law Consolidation Act (maximum penalty of between five and 15 years’ imprisonment) or assault causing harm (which doesn’t require proof of a particular mental state attaching to causing harm) with a maximum penalty of three years’ imprisonment.

So why does Danger get three games and no criminal charges?

The answer lies in how the law of consent, and the mental element as it applies to the result of the physical act of the offence, applies to contact sports. The acceptance of, and agreement to abide by, the rules of the game operate as a kind of contract between all players: the players consent to engage in physical contact with each other which, absent that consent and the rules, would in ordinary life amount to an assault.

Consent involves both the physical act (did the victim consent to the contact?) and the mental element (did the accused know the victim was consenting or was he or she reckless as to whether he or she was consenting?) of the crime.

For harm-based offences, another question arises: if there was consent, did the accused intend to cause the type of harm that resulted, or was he or she reckless as to whether that harm would result?

Obviously, if it can be proved that an accused player intentionally caused harm or serious harm to another player, that is game over for the accused.

But it’s almost never that simple.

When a player agrees to play a contact sport, he or she agrees to abide by the rules of the game. The acceptance of, and agreement to abide by, the rules of the game operate as a kind of contract between all players: the players consent to engage in physical contact with each other which, absent that consent and the rules, would in ordinary life amount to an assault.

Consent is a physical element of the offences we are talking about and the prosecution has to prove beyond reasonable doubt that there was no consent for the contact. And that the accused knew or was reckless as to whether the complainant consented.

If your conduct is within the rules, no problem. You can be as rough as you like, as long as you are playing within the rules.

But what about when, like Danger, a tribunal finds your conduct was outside of the rules and you get disciplined as a result?

In R v Stanley, Mr Stanley was a rugby player. The victim was turning to his left to pass the ball. Stanley struck the victim with his right elbow to the victim’s jaw, in a manoeuvre which, if performed properly, was within the rules.

The strike, breaking the victim’s jaw, did GBH to the victim (GBH in SA is now “serious harm”). The court accepted Stanley didn’t intentionally cause that serious harm. But he was reckless as to causing it.

The victim didn’t consent to being subjected to a manoeuvre that was outside the rules, even if Stanley was trying to perform it in a manner within the rules. Stanley intended to act in the way he did, despite not doing it in a way that was authorized.

He didn’t have consent to do so because what he did was outside the rules. But did Stanley have the requisite mental state? He did, because he was reckless in the legal sense in that he realized that there was a probability that some injury might result if he acted as he did, but he nevertheless proceeded to act as he did, and an injury resulted.

That is, there was no consent to act has he did, and he was reckless as to causing the result. The trial judge sentenced Mr Stanley to nine months’ imprisonment.

Playing by the rules and being reckless as to the result of not complying with them is everything in sports law. No consent is given by a participant for contact not condoned by the rules.