By Zeb Holmes and Ugur Nedim
Mr Gaff broke the jaw of Fremantle player Andrew Brayshaw in an unprovoked attack away from play.
Mr Brayshaw additionally suffered four displaced teeth, which will require “extensive dental work” and possibly implants.
The punch led to Gaff being suspended from the game for eight-weeks, the equal longest ban in the AFL this century.
Mr Gaff testified at the AFL tribunal that he was only trying to strike Brayshaw in the chest.
Different categories of harm in NSW assault charges
Any unauthorised touching which is beyond the necessities of day-to-day life will normally amount to a common assault if no injury is occasioned, or assault occasioning actual bodily harm if there is an injury which is more than just ‘transient or trifling’.
Implied licence in sport
However, those who engage in sport are considered to have provided an implied licence to contact which is within the rules of the game, as well as that which can be reasonably contemplated as a consequence of playing the game.
That said, the law makes it clear there is no consent to acts of violence which are well outside the rules, especially those which are not reasonably contemplated.
Prosecuting on field assaults
Legal commentators have come out in force to point out that Mr Gaff’s act would indeed amount to an assault under the criminal law, going so far as to call for a prosecution to deter future would-be assailants.
Barrister Thomas Percy QC, for example, has labelled the act a “cowardly assault” worthy of a criminal investigation.
“(There is) a prima facie case for a police investigation,” he stated.
“I’ve had people go to gaol for less. Why would a football score be more important than the health and wellbeing of an innocent young man who is in hospital as a result of a cowardly assault he didn’t provoke?”
And Professor Jack Anderson from the University of Melbourne Law School has drawn a distinction between aggression and a disregard for safety, stating:
“We accept that contact sports are about controlled aggression … but where there is reckless disregard for the safety of another, then that’s where the criminal law can encroach”.
But as he points out, it is rare for criminal charges to be brought against sports players.
R v Stanley
In the case of R v Stanley (unreported, NSWCCA, 7 April 1995), the NSW Court of Criminal Appeal found that when a sportsperson decides to step onto a field of play, they give implied consent to acts envisioned by the rules of the game.
However, the court also found that the defence of consent does not apply to intentional and malicious acts of violence that are well-outside the rules.
“The policy of the law will not permit the mere occasion of a rugby league match to render innocent or otherwise excuse conduct which can discretely be found, beyond reasonable doubt, to constitute a criminal offence”, the court stated in Stanley.
In 1985, Hawthorn captain Leigh Matthews was charged, and initially convicted of assault causing grievous bodily harm after breaking the jaw of Geelong’s Neville Bruns in an on-field incident. Matthews pleaded guilty and was fined $1,000.
And just last year, former AFL diversity manager Ali Fahour was sentenced to a two-year community corrections order and made to pay a $5,000 fine for punching an opposing player unconscious during a suburban football game.
Apart from the criminal law is the tort of battery, which can be the subject of civil proceedings.
A battery occurs when a person intentionally or negligently applies contact to the body of another without that person’s consent.
A number of action have been over the years for alleged batteries.
For example, former Cronulla-Sutherland rugby league captain, Steve Rogers, brought a successful civil claim against Canterbury-Bankstown player Mark Bugden and his club after being subjected to dangerous head-high tackle during a match in 1985.
And in the 1971 case of McNamara v Duncan, the court found that a malicious elbow to the head was actionable despite the defendant’s argument that it was common in the game of AFL.
It remains to be seen whether Mr Gaff will be subjected to a criminal prosecution and/or civil proceedings.