The biggest legal cases you've never heard of
 

“Are AFL footballers above the law?”

 

The notorious on-field incident involving AFL players Andrew Gaff and Andrew Brayshaw has exposed inconsistencies in how our legal system treats different perpetrators of acts of violence, according to a law expert from Monash University.

 

“A fundamental underpinning of our society is that we are all equal before the law and the law treats us equally,” Dr Windholz tells Just Cases.

 

“When you see instances of violence go unpunished by the criminal law, but you see others being punished then we have to ask… are AFL footballers above the law?”

 

Gaff was suspended by the AFL Tribunal for eight matches for punching the 18-year-old Brayshaw behind play during the Round 20 clash between West Coast and Fremantle.

 

Brayshaw underwent surgery on a broken jaw and he will require further treatment for three broken teeth. The incident brought the teenager's first season in the game to an abrupt and violent end.

 

Public outcry

 

The hit prompted calls for all sorts of things; from a red card system in the AFL, to criminal charges and even jail time.

 

Dr Windholz says the prospect of criminal sanctions should not be seen as far-fetched.

 

“We have had other assaults on Victorian streets, and streets in Sydney and Perth, where people go to jail and lose their liberty for similar offences,” he says.

 

Only a few weeks prior, Victoria Police charged a country footballer with assault after an off-the-ball incident in which a teenager suffered a broken jaw and fractured cheekbone.

 

Dr Windholz says members of the public in south-west Victoria where the local football match was being played are rightfully questioning whether the rule of law is being applied to everyone equally in our society.

 

“[They’re] asking ‘Why are we subject to criminal sanctions and police intervention and the professional footballers who are being paid a squillion aren’t?’”

 

Changing attitudes to violence

 

Windholz says the Gaff incident has come at a time when community attitudes to violence are changing, including recent public campaigns against one-punch assaults and family violence.

 

He says the public reaction to Gaff’s punch “was no longer a discussion about just sporting violence, this was a discussion about violence generally.”

 

Parallels with 1985 Leigh Matthews criminal case

 

Dr Windholz says “there are very strong parallels” between the incident and a notorious case from 1985 involving Hawthorn player Leigh Matthews, a giant of Australian rules football regarded by many to be the greatest footballer to have ever played the game.

 

When Matthews struck Geelong player Neville Bruns with a “roundhouse right to the face” off the ball, the Victorian Football League responded to national outrage by deregistering Matthews from the VFL for four weeks. 

“The reason why this case is so extraordinary is the [AFL/VFL] has being going on now for about 110 years and this is the only incident… where the Victorian police have intervened to lay charges for an on-field assault at the professional level,” he says.

 

Matthews was charged by police with assault. He pleaded guilty and was convicted and ordered to pay a $1000 fine. He appealed the conviction successfully, but the guilty verdict stood and Matthews was placed on a good behaviour bond.

 ABOVE: Hawthorn VFL player Leigh Matthews leaves Melbourne Magistrates' Court after being fined for assaulting Geelong's Neville Bruns during a VFL match at Princes Park in 1985.

ABOVE: Hawthorn VFL player Leigh Matthews leaves Melbourne Magistrates' Court after being fined for assaulting Geelong's Neville Bruns during a VFL match at Princes Park in 1985.

 

Should police charge Gaff with assault?

 

As the ‘gatekeepers’ of the criminal justice system, the police don’t prosecute every case of assault they see. Instead, they have wide discretion to choose whether to charge or not.

 

Additionally, there are certain acts of assault that people can consent to. This includes assaults that occur during contact sports such as football.

 

“When players run onto the field, they cross the white line, they do consent to contact in the course of the game, to contact within the rules, and [also to] common breaches of the rules,” says Dr Windholz.

 

“[But] I think it’s a fair stretch to say that you consent to being hit twenty, thirty, forty metres away from the contest.’”

 

Dr Windholz doesn’t think charging Gaff with assault is the ultimate solution.

 

Instead, he wants to see the incident trigger broader public debate, one in which the police play an important role.

 

“Personally, I think we need to have the conversation. I think the conversation is more valuable than necessarily Gaff being charged. I would like the police to come out and say what is the process they go through in looking at this matter, what are the criteria they apply and how they’ve applied them. And at least then we can have an element of transparency and an element of knowledge.”

 

AFL’s response not reflective of community standards

 

Dr Windholz says the AFL’s response should also be subjected to public scrutiny.

 

“The question for us as a society is: is the AFL’s disciplinary process reflective of community standards? Has the punishment fit the crime?” he says.

 

“[Thirty four] Essendon footballers were put out of the game for a year for unknowingly taking a substance which their club directed them to take, and society has said that a twelve month suspension is adequate,” he says. “Breaking someone’s jaw, displacing several teeth [leads to Gaff being suspended for] eight weeks.”

 

Want to learn more?

Explore the notorious Leigh Matthews assault case by checking out the full episode of Just Cases: Assault on the Sports Field.

 
 
 

Episode 5: Assault on the sports field

August 2018.

A violent on-field incident in the AFL (Australian Football League) has led to calls for police to bring criminal charges against one of the league's best players.

West Coast player Andrew Gaff has been suspended for eight matches for punching 18-year-old Fremantle player Andrew Brayshaw behind play.

Brayshaw has undergone surgery on a broken jaw and will require further treatment for three broken teeth. The teenager's first season in the game has come to an abrupt and violent end.

The hit has prompted calls for all sorts of things; from a red card system in the AFL, to criminal charges and even jail time.

Can you be charged with assault for punching an opponent on the sports field?

“We have had other assaults on Victorian streets, and streets in Sydney and Perth, where people go to jail and lose their liberty for similar offences," says legal expert Dr Eric Windholz from Monash Law School.

On this episode of Just Cases we explore a similarly notorious incident in 1985. It led to the criminal prosecution of Leigh Matthews - a giant of Australian rules football held by many to be the greatest footballer to have ever played the game.

 

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Episode 4: They don't teach you this at law school


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"I can't look this case up in a book," says Dr Kate Seear from Monash Law School. "But it's been imprinted on the minds and memories of people who inject drugs in Australia."

June 1996. Late at night, two young men cross paths on a Sydney street. When the sun rises the following morning, one of them will be found dead.

The events of that evening are murky but, as Dr Seear explains, the resulting court case "sent shockwaves through the community" and we still feel its effects today.

Storyteller: Dr Kate Seear, Monash Law School

BONUS AUDIO: 

How can safe injecting rooms be legal?

The Victorian State Government has announced it will set up a safe injecting room, located in the inner Melbourne suburb of Richmond. It's a first for the state, and only the second in Australia. A safe injecting room in Sydney's Kings Cross was established in 2001.

The announcement comes in response to a growing heroin problem in Victoria. The ABC reports the number of Victorians dying from overdoses has doubled in the last five years, and in the Richmond area alone 34 people died from heroin overdoses in a single year, all within a four-block radius from where the new service will be established.

In this bonus episode, Melissa talks with Dr Kate Seear, about how safe injecting rooms and needle exchanges work. How can they be legal while drugs are illegal?

This extra audio was recorded just before the Victorian Government's announcement.

If you haven't listened to Episode 4 of Just Cases there's a few things about the case that are mentioned so it might be worth going back and having a listen to Episode 4: They Don't Teach You This At Law School.

 

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Images: 

agressti vanessa / Flickr / CC BY 2.0

victor / Flickr / CC BY 2.0

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Episode 3: How you can be detained for life without trial


The story of Ahmed Al-Kateb has far-reaching consequences for individual liberty in Australia. This is the story of a man who wanted to go home to Palestine, but who the High Court decided could be held indefinitely despite committing no crime.

Constitutional law expert Patrick Emerton describes this "shocking case" as one which "shows us how even very clever judges sitting on the High Court can sometimes make terrible mistakes". 

Storyteller: Assoc. Professor Patrick Emerton, Monash Law School

 

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Image: hannes.a.schwetz / Flickr / CC BY 2.0


Episode 2: Help! I crashed my Uber


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In the gig economy,  

our cars, spare rooms and spare time have become handy money-earners. But sometimes things don't go as planned. If you're an Uber driver or Deliveroo cyclist and you injure someone else on the job, who has to cough up the money?

 

Storyteller: Dr Joanna Kyriakakis, Monash Law School

 

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Image: Shuets Udono / Flickr / CC BY-SA 2.0


Episode 1: A dagger at the heart of society


 

In the middle of WW1,

the Australian government launches a stinging attack on an international 'extremist' network of German sympathisers. When a policeman is murdered in a small country town, the stage is set for a showdown between his killers and a political system with everything to lose.

 


*Bonus Episode* 

Chief Justice, is the same-sex marriage postal vote doomed?


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On 5 September 2017, 

the High Court of Australia will hear a legal challenge to the Federal Government's same-sex marriage postal vote. What's the legal challenge all about? Hint: it's not about human rights.

Join Robert French, former Chief Justice of the High Court of Australia, as he reflects on two very similar cases he decided that provide the basis for the current case.

CONTENT WARNING: heady legal concepts contained within. Listener discretion advised.

UPDATE: On 7 September the High Court rejected the challenge and ruled that the postal vote could proceed. Ballots are due to be sent out from 12 September, with a result expected in early October 2017.

 

Guest: The Hon. Robert French AC, Chief Justice of the High Court of Australia (2008-2017)

Notes: You can find the case information for the legal challenge on the High Court website, as below:

 

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Episode 6: Is S&M sex illegal?

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If you engage in consensual sadomasochistic sex could you actually be found guilty of assault?

The case of R v Brown is one of the most hotly debated criminal decisions in legal history.

WARNING: this episode contains descriptions of acts of a sexual nature, a violent nature, and suicide. Listener discretion is advised.

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FURTHER READING

 

MUSIC IN THIS EPISODE
'Secret Of 3rd Planet' by Cutside
'Showdown' by how the night came
'Murmuration' by Silicon Transmitter

 
 
 

Episode 7: Why the world's wealthiest baby shouldn't be a company director

In 1886 a sensational banking scandal hit the headlines in Great Britain.

It involved the world's richest man, John Patrick Crichton-Stuart, the 3rd Marquess of Bute, and it led to an absurd decision.

More than a century later, the current Banking Royal Commission in Australia continues to expose stories of banks behaving badly.

But it remains rare for the people at the helm of banks and other major corporations - the company directors - to be held legally responsible for what goes on at their company.

When things go wrong at a company who should cop the blame? And how far has the law come since the case of the Marquess of Bute and the Cardiff Savings Bank?

LISTEN TO EPISODE:

 WEALTHIEST MAN ON EARTH: John Patrick Crichton-Stuart, 3rd Marquess of Bute, was appointed president of the Cardiff Savings Bank in 1848, at the age of six months. He assumed the position automatically upon the death of his father. 

WEALTHIEST MAN ON EARTH: John Patrick Crichton-Stuart, 3rd Marquess of Bute, was appointed president of the Cardiff Savings Bank in 1848, at the age of six months. He assumed the position automatically upon the death of his father. 

STORYTELLER

Dr Steve Kourabas, Monash Law School

Follow Steve on Twitter: @SteveKourabas

 

MUSIC IN THIS EPISODE