Just Cases | Season 2 | Episode 1 | Assault on the sports field

Can you be charged with assault for punching an opponent on the sports field? A violent on-field incident in the Australian Football League (AFL) 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.

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.

Music in this episode:
- Parallel Park 'Counterattack'
- Silicon Transmitter 'Sphere'
- Soularflair 'Cue 2 -Sad-HipHop-Backmasked piano cello Fortitude'

Explore more Monash Law podcasts

Just Cases | Season 2 | Episode 1 | Assault on the sports field

Footy Commentator: [00:00:00] I think it's Gaff Boys on the far side of the ground. So they came together. Let's have the screen. Oh wow. Wow. This is not good. This is brack broken jaw territory. Cool. Fre of players have just realized this. They've just either seen a replay or at least been made aware of what's happened to Andrew Haw, and they've gone to Gaff haw bleeding from the mouth.

Well, the fact that he hasn't taken his mouth guard outwards. Suggest that his, his teeth are potentially loose or he is having a, a real issue with his jaw because otherwise you'd think the mouse guard would've come out.

Melissa Castan: I'm Melissa Castan. I'm James Patterson. This is just cases. In the Australian Football League or AFL West Coast player, Andrew Gaff has been suspended for eight matches for punching his opponent off the ball.

James Patterson: 18-year-old Fremantle player, Andrew BrayBrayshaw, had to have surgery on a broken jaw, and he's got three broken teeth.

So his first season of the game has come to a pretty abrupt [00:01:00] and violent end.

Melissa Castan: The hit has prompted calls for all sorts of things from a red card system to criminal charges and even jail time. Dr. Eric Windholz from Monash Law School says We need to learn a thing or two from a court case back in the 1980s, it involved the criminal prosecution of a man held by many to be the greatest footballer to have ever played the game.

James Patterson: So Eric, before we get into that case from 1985 involving Lee Matthews, let's start with what happened. Just recently, just this week. So for the people who haven't seen the footage from the match, can you describe what happened on field between Andrew Gaff and

Eric Windholz: Andrew Brayshaw? Well, the first thing to say is when I was watching it at home, you caught an incident out of the corner of your eye, and the reason you caught it out of the corner of your eye was it wasn't actually in the center of play.

Mm. It was some distance away from where the ball was and when the TV then. Replayed it and focused in what you saw was [00:02:00] two players coming together pretty innocuously, and then Andrew Gaff the West Coast Eagle player, suddenly and violently throwing a punch at Andrew Brayshaw. Collects him in the jaw. Andrew Brayshaw goes down and Andrew Gaff runs on.

Melissa Castan: Is, is this normal in football,

Eric Windholz: by the way, when I saw it, the thing that went through my head was, here we go again.

Yeah.

Eric Windholz: About once a year, once every two years, we have an incident of significant on field violence away from the play. The right, the la the jargon is behind play, and we have a debate in society about what is the appropriate response, the appropriate response from the.

People who run the competition, the Australian Football League, and also the appropriate response from the police who enforce the criminal law. And

James Patterson: it wasn't with that particular game. It's not like instances of violence are very rare. This is a particularly fiery clash that occurs every year between, it's called the Western Derby between Fremantle and West Coast.

So everyone is always on high alert during those matches.

Eric Windholz: Look, it is a traditional [00:03:00] rivalry. It's teams that. A battling for turf in the city of Perth. There's a lot of emotion between the spectators, between the officials and between the players. But at the same time, the violence that we saw in this incident is not common.

As I said, we have it about once a year, maybe once every two years. This is not a common event. Before the AFL tribunal handed down their sentence, this matter was the subject of incredible media, social media. Commentary you couldn't turn on talk back radio without hearing about it. Not just sports programs.

This was of general concern.

Melissa Castan: Yeah. There was a lot of talk around our dinner table about it, and we don't even follow the football. Yeah.

Eric Windholz: And yeah, our societal attitudes about violence have changed. We don't accept violence on the street. We've had one punch campaigns. We're talking about violence against women, we're talking about domestic violence.

And so this was no longer a discussion about just sporting violence. This was a discussion about violence generally. And I think the AFL tribunal, while they will have said that they applied their rules and according to their systems and they were [00:04:00] uninfluenced by external factors, had to have been influenced by community expectations that this was gonna get a severe penalty.

Melissa Castan: Can I just I mean, can you clarify something for me? 'cause if someone comes along and punches you in the face and breaks your jaw in regular life, that's the subject of criminal prosecution usually, isn't it? I think.

Eric Windholz: We need to d distinguish between two questions. Yeah. One is. Was this a criminal assault as defined by the law?

Right. The second question is whether the police should exercise their discretion to investigate and prosecute.

Melissa Castan: Don't the police prosecute every case of assault?

Eric Windholz: No, they don't. I mean, the police have limited resources. We only have a certain number of police in a large community. Things are going on all the time.

The police do have discretion and they do exercise their discretion as to what they choose to prosecute and what they don't.

Melissa Castan: So can you explain then, I mean, I know that if you're in playing sport. And the sport is rough. You're kind of consenting to the fact that it might be a bit dangerous and there could be some injury, but are you consenting to being, you know, violently [00:05:00] punched in the face?

If I,

Eric Windholz: I'll, I'll get to that, but if I can go back one step. Sure. The first question I mentioned was, is this a criminal assault? The definition of criminal assault is inflicting harm on another person, or indeed grievous bodily harm. Two broken jaw in two places, missing teeth, pretty grievous, grievous, bodily harm on another person intentionally or recklessly without lawful excuse.

The issue of consent comes into the element of whether there is a lawful excuse. Mm-hmm. And consent can constitute a lawful excuse. Right now, when players run onto the field, they cross the white line. They do consent to contact in the course of the game, contact within the rules, and even contact. Two common breaches of the rules.

Mm. We have rules. We have umpires, free kicks are given. We recognize that players are gonna overstep the boundaries of the rules and you consent to contact within, within those boundaries. I think it's then a fair stretch to say that you consent to being hit 20, [00:06:00] 30, 40 meters away from the contest by someone in an unexpected situation.

Mm.

Eric Windholz: So

James Patterson: as soon as haw. Hit the ground people. Were already talking about comparisons with this case from 1985. So let's rewind to 85 and see if we can learn some things that we can apply to this particular case. It's been a good mark. It's by big

Eric Windholz: Greg Deer. It's gonna be a long quarter now, Jack. So we're back in June, 1985.

The ball's in the center of the ground. A player is about to kick it. And we see in the background to the action. Lee Matthews, who you said in the introduction, has been voted in numerous polls as the greatest player ever to play. He is standing. Geelong Player, Neville Bruns is running by, and the best way to describe it is that Lee Matthews gives him a round house right to the face.

Footy Commentator: Oh gee, a Geelong player's gone down behind the play. Matthews goes down in the center. Geelong player went down. [00:07:00] Matthews is down. There is, oh, that's going on everywhere here. And Geelong player is still down. Lester Smith's got someone down there too.

Eric Windholz: What was surprising and rare in those instances, back in 95, 85, there was only one camera covering the football, right, and it was on the center wing of the ground, in the center of the ground, and the odds of it capturing it were rare, but the fact that it did capture it and televised it into the living rooms.

All around Victoria and eventually all around the country,

Footy Commentator: Lee Matthews is being let off the ground. He's cut one in the mouth. There's Lee blood all over his nose. Have a look at it,

James Patterson: that single camera. I've been cursing in the lead up to today's episode because I've been trying to find. The retaliation punch on Matthews afterwards, which I believe I understand.

He got absolutely clocked in the face by one of Brunson's teammates straight afterwards. Who in Matthew's term? I think it was spread my nose across my face. [00:08:00]

Eric Windholz: Yes. It's fair to say that Geelong players rush from all directions and Hawthorne players rush from all directions. And it was on for young and old in a way that we don't see today.

So no reports

James Patterson: were actually made at the time? Correct. But the VFL now AFL, the VFL at the time. Did step in afterwards and suspend Matthews for a period of time. What? What happened there? Well,

Eric Windholz: well, at the umpire did not report it at the instance, and at that time there was no video reviews. There was no someone sitting on the Monday morning reviewing all the footage.

If the umpire didn't suspend the person there and then there was no penalty. But because this got captured by camera and it was seen to be such growth violence, there was a public outro and the VFL as it was at the time, intervened and deregistered. Lee Matthews for four weeks. Wow. They actually stripped him from his player registration and prevented him from playing for four weeks.

Melissa Castan: And then what did the police do following that?

Eric Windholz: Well, the reason why this case is so extraordinary is the VFL competition and now the AFL, the AFL and its predecessor, the VFL has been going on now for about [00:09:00] 110 years, and this is the only incident, one in 110 years where the Victorian police. I have intervened to lay charges for an on field assault at the professional level.

I should mention, we might discuss it later, the police do lay charges at Suburban and country football. But at the AFL level, this is the only one. So what happened from there? They pressed charges. What did they actually charge him with? They charged him with assault, causing grievous bodily harm. I mean, this, you know, broke, if I recall correctly, broke his jaw.

This was a, you know, a serious assault causing serious injury. We now know the dangers of the one punch.

Mm.

Eric Windholz: You know, it was a matter of interest or centimeters between a broken jaw and a fatality.

Yeah.

Eric Windholz: Or a serious brain injury. So the police laid charges, Lee Matthews pled guilty. The footage was there.

It's pretty hard to, to plead not guilty. I think much to his surprise, he got a criminal conviction and a fine for a thousand dollars. And a criminal conviction's an a. It, you know, a serious issue [00:10:00] in terms of it stays on your record and you've gotta disclose it if you go for future jobs. So Lee Matthews appealed the conviction.

The conviction was overturned and he got a 12 month good behavior bond in its place.

Melissa Castan: Well, you said that this is the only case that's come up and, but we know that there's been other situations where people have kind of violently clocked someone not in play. Why was it that this case did? Proceed and that the, the police acted in this case as opposed to all the other ones when they don't act, you know?

Eric Windholz: Well, I think, luckily I can say that I was only a young man at the time and I'm not, hadn't studied that you were

Melissa Castan: a mere child.

Eric Windholz: Hadn't studied my law at the time. But, you know, talking to people and kind of re revisiting old footage, I think it was the fact that it got caught. On camera. Lee Matthews was such a role model.

Yeah, he was, as I said, the great, the greatest footballer of his era, arguably the greatest footballer of all time. And there was this public swell of opinion that. Because of his role model status and the influence [00:11:00] he has on young kids. Right. Something had to be done.

Melissa Castan: Right. Well, can we say the same thing with the recent events here now?

Eric Windholz: Well, as I said, I mean I was watching it live on tv. I assume tens of thousands of households were watching it. Kids were watching it. Parents had no opportunity to intervene to shield their kids from this violence. And we know that kids mimic Sure. Their, they're heroes. So. I think that's part of the reason we're getting this outcry right now.

Melissa Castan: You're listening to just cases, the backstory to the biggest court cases you'd never heard of today on field assaults. If a sports player punches their opponent during a match, should they be charged with a criminal offense? One of the most notorious incidents in Australian football history could show us the way.

James Patterson: If you compare, if you split screen the two punches, 1985 and [00:12:00] 2018, do you think gaff should be charged with assault?

Eric Windholz: Well, I think the issue is it's an assault, as I said it, there's, there's harm, if not grievous, bodily harm. To me, consent just doesn't exist in this situation. I think it's be incredibly hard to argue.

If it wasn't intentional, it was definitely reckless. He meant to throw a punch. I know he's now arguing. I meant to hit him in the chest, or I meant to hit him in the shoulder. Well, I just, you threw the punch.

Melissa Castan: I just held my hand out and he ran into it.

Eric Windholz: So there are very strong parallels. Personally, I think we need to have the conversation.

I think the conversation is more valuable than necessarily Gaff being charged. I would like to see the police 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 because, for example, I received a phone call from someone in Warble who said to me that last week, a local footballer in Warn Bull had been charged with on field assault.[00:13:00]

And they're sitting around the pub in Warrnambool and arguing, asking, why are we subject to the criminal sanctions and police intervention and the professional footballers who are being paid a squillion? Aren't, something's not right here? So

Melissa Castan: is this a rule of law issue really? It

Eric Windholz: absolutely is a rule of law issue.

A fundamental underpinning of our society is that we are all equal before the law and the law treats us equally.

Mm.

Eric Windholz: When you see this. In instances of violence go unpunished by the criminal law, but you see others being punished. Then we have to ask is the AFL are AFL footballers above the law?

James Patterson: Let's maybe go into that about this issue of the rule of law and transparency, because there've been calls from some courts in including another AFL Great Wayne Carey recently to say, look, everyone just chill out.

We're overreacting. Gaff has got an impeccable record. And he didn't mean to cause the harm that he did to haw he, you know, saying he's gutted. We've got a feel for this guy. But if, if [00:14:00] we take what Kerry said. Can we look at whether that would hold up in a court of law, maybe compare a tribunal situation to a, a criminal charge of assault, and what would occur in

Eric Windholz: a court there?

Well, the issues that Wayne Carey's raising would go to sentence in a criminal court. Is it a first offense? Is the person contrite, have they seek, sought to make redress with the victim, are issues that go to sentence. They don't go to whether or not the offense has been committed. Hmm. And at the risk of maybe being a little bit overdramatic about it, our jails are full of people who have committed their first offense, who are incredibly regretful and contrite, and who arguably will never do it again, but we put 'em in jail if they've done the crime.

James Patterson: Do you think then in that case it actually could have been. This is a Dorothy Dixie, a good opportunity for the police to step in and make an example of a man who's committed a one punch assault. Again,

Eric Windholz: I'm, I do have a little bit of empathy. I. Gaff. And I don't wanna be out here saying, [00:15:00] you know, with Pitchfork saying, let's, you know, let's string 'em up.

All I'm saying is the police need to have a conversation with us, tell us the process they've gone through, the criteria they've employed, and how they've applied them. Mm-hmm. We can then debate it. The police might go through it and we all might say, oh yeah, that makes sense, but let's have the discussion.

Melissa Castan: So you mean they might say, look, there's no reasonable prospect of a successful prosecution here. Or there's no sustained conduct that indicates that. Or some, you know, there might be some reasons. I,

Eric Windholz: I actually don't think they'd say that because I think if you look at the footage, it's pretty black and white.

Melissa Castan: Well, there's people who say in color, in color, it's black and white, it's color. There's

James Patterson: some people who are saying that Brace your ducked.

Eric Windholz: The, the punch. Look, putting it out there to annoy you. Look, even, even if he ducked, it's still reckless. The punch was thrown, you know, and that's reckless. If it's not, you know, we don't know what's going through Gas's head.

Well, I don't, I mean, we've heard what he said. Let's, even if we accept that at face value, it's reckless.

Melissa Castan: So is it, is it totally un Australian to [00:16:00] be suggesting that? That this is subject to police charges. Is this an actual, you know, is this whole conversation out of bounds?

Eric Windholz: Well, it's interesting you say that because my article, some of my media commentary got picked up by the media and I did have some comments directed to me on Twitter saying that I was taking the Australian out of Australia, that I was a soft, I was far too soft and.

And, and, and, you know, not, you're such

Melissa Castan: an

Eric Windholz: unpatriotic

Melissa Castan: political

James Patterson: correctness

Eric Windholz: gone mad. But if I, I wanna come back to your earlier comment, Melissa, about why the police don't pro, I don't think it's because they'll have difficulty proving the offense. Right. But as I said, they've got limited resources.

Mm-hmm. They've got a discretion. They've gotta employ their resources in a manner they think is best for the society as a whole. Right. I think what the police might say is that the AFL has its own disciplinary process. Right. It, and that, that a process is appropriate. And the sanction that has been method out is reflects community expectations.

Mm-hmm. Gaff has been vilified in the media. [00:17:00] Mm-hmm. And that he has been punished enough.

Mm.

Eric Windholz: And therefore police should not use their limited resources.

Right.

Eric Windholz: And that is an argument that we have heard from other law enforcement agencies towards sport generally. Kind

Melissa Castan: kind of go to the, you get punished once.

Kind idea. That's right. That's right. He has been now punished, so there's no need for further punishment. But I guess from a, a law teacher's point of view, and, and from a legal system point of view, the punishment that comes from the AFL is not actually through the legal system. That's just a internal process, isn't it?

It is,

Eric Windholz: but it, but it is, but it does go to the police's discretion. Mm-hmm. And I think that's one of the things we forget when we teach the law. We teach the words and the statute, we forget about the apparatus that exists around it. That has to apply it and the judgment that has to be applied. I think the question for us as a society is, is the AFL's disciplinary process reflective of community standards?

Yeah. Has the punishment fitted the crime? We have had other assaults [00:18:00] on Victorian streets and streets in Sydney and Perth where people go to jail and lose their liberty for similar offenses. Mm-hmm. So that's the conversation we need to have. And, you know. And again, maybe an aside, I think, you know, for the AFL's perspective, it's the only professional sport that, that I'm aware of at that level in Australia that doesn't have an immediate sanction, right?

For on-field violence, they don't have a red card system. Soccer has a red card system. The NRL has sending off and sin bins. You can be ejected from a basketball match for AFLagrant foul. The AFL don't have that. And again, that's a question we as a society have to say. Whether or not that's appropriate,

James Patterson: sport is always regarded as being a, a reflection of the society in which it exists.

And could this incident between two young men be similar to the 1995 racial vilification? Is this a moment that sort of crystallizes a wider issue in Australian [00:19:00] society?

Eric Windholz: I probably don't think so. I would hope. I would hope, as I said, I, I hope it creates a conversation, but what we see is that our attention span's pretty limited, and the issue gets dealt with.

It has 48, 72 hours of media, something else happens and we move on. As I said, when I saw the clip the first time, the first thought to my head was, here we go again, and here we go again because we've never resolved it. The first time. I think what will change is when the police finally lay charges, and if they do lay charges in this instance, then yes, I think it could be a watershed moment, but I think until police cross that Rubicon lay the charges.

I suspect that we'll just be in a bit of a cycle.

James Patterson: Neville Bruns actually was interviewed this week on radio station, SEN, and he said, I think that they should hand down a 12 month sentence that's talking a direct quote, but he is talking about the AFL to suspend a gaff for 12 months, and he says, quote, I really think that's the only way.

The best way [00:20:00] to get the message out there that anybody who delivers a king hit like that has to get a minimum 12 months of his career and he can sit on the sidelines and think about it. Mm-hmm.

Melissa Castan: And if you think of 12 months for a, a young person who's in a. In sport, that really is a, a really serious punishment because that takes you out of the whole, the training loop, the, you know, the network, the look.

I think again,

Eric Windholz: that's Neville Brands, obviously not necessarily the most neutral and impartial person having been the victim of Lee Matthews, but. That's the conversation we have to say, what is an appropriate sanction? Even? Let me do just another comparator. I can't remember the exact number, but 20 odd ENT 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 12 month suspension is adequate breaking someone's jaw, displacing several teeth, eight weeks. I'll let people listening to this be the judge on that one.

Melissa Castan: So let me take you back to the 1985 case. [00:21:00] Where are those protagonists today?

Eric Windholz: I'm not exactly sure what Neville Bruns is doing today.

He did make some media commentary on the gaff incident. Lee Matthews, however is potentially the most celebrated. And acknowledges the greatest footballer ever. He has a statute outside the MCG. The fact that he engaged in this gross act of violence has not in any way diminished his career or diminished his popularity.

The other thing also is that Lee Matthews earned the Monica Lethal Lee. This was not the Neville Bruns was not the only person to find his face at the end of Lee Matthews fist,

James Patterson: including a goalpost here as well. He

Eric Windholz: broke a goalpost once. But you know, it means that the AFL still celebrates the violence inherent in the sport.

It is an incredibly combative sport. It involves players moving a great speed, a great energy hitting each other with great force, and that's what we love. We, that's what the spectators love. That's what the sponsors want. That's what the broadcasters want. And in no way am I saying we should engineer it out of the game, but we also [00:22:00] celebrate the violence.

And that in a sense, again, may be the AFL not playing catch up with the rest of the society. Society has had the conversation about violence in society. We have said that the one punch is gone. We've said the bifo and the pub is gone. Coming home with a, with a, you know, gut full of beer and taking it out on your wife, that's gone.

I think the L'S got a bit of catch up to play.

Melissa Castan: Eric Windholz, thank you very much for speaking to just Cases today.

Eric Windholz: That's a pleasure.

Melissa Castan: We love hearing from you, our listeners. So if you like just cases, please leave us a review wherever you listen to us and drop us a story suggestion via Twitter. Our handle is just cases show.

That's all one word.

James Patterson: Also, if you're a footy fan, make sure you check out the Outer Sanctum. It's a great podcast from the ABC about. AFL and AFLW and it's done a little differently. It's an all female podcast featuring six passionate footy fans, including our very own Dr. Kate Seear from Monash Law, who did a really great just cases episode with us about drugs.

That's in episode four of just cases. [00:23:00] They don't teach you this at law school.

Melissa Castan: Catch you next time.