LAW201 Topic 4 Notes PDF

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LAW201 Topic 4 Notes 2021...

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LAW201 TOPIC 4: ON-FIELD VIOLENCE IN SPORT On-field offences – Common Assault, Assault Occasioning Actual Bodily Harm, Grievous Bodily Harm, Manslaughter, Murder, Assault Causing Death Assault: common… • •

Intentionally or recklessly making non-consensual contact with the victim - No physical harm Possible only in non-contact sports, like golf - Mostly in apprehended (psychological) form

Crimes Act 1900 (S61): Whosoever assaults any person, although not occasioning actual bodily harm, shall be liable to imprisonment for two years. …Or occasioning actual bodily harm •

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‘any hurt or injury calculated to interfere with the health or comfort of the victim but such hurt or injury need not be permanent but must be more than merely transient and trifling.’ - R v Donovan [1934] 2 KB 498, 509. E.g. bruises, cuts, lacerations, uncomplicated fractures, torn ligaments

Crimes Act 1900 (S59): Whosoever assaults any person, and thereby occasions actual bodily harm, shall be liable to imprisonment for five years. Negligent or Reckless Grievous bodily harm Serious, though not necessarily permanent or life threatening (skull fractures, disfiguration, etc.) Ø Negligently inflicted: little relevance to contact sports Ø Recklessly inflicted: the perpetrator realises his or her actions may cause harm but proceeds anyway Crimes Act 1900 (S54): Crimes Act 1900 (S35(2)): Whosoever by any unlawful or negligent act, or A person who causes grievous bodily harm to any person, and is reckless as to causing actual omission, causes grievous bodily harm to any bodily harm to that or any other person, is person, shall be liable to imprisonment for 2 guilty of an offence. Maximum penalty: years. Imprisonment 10 years. Intentional harm Intentionally inflicted grievous harm: most condemnable, but difficult to prove intent beyond reasonable doubt • Reaction in the ‘heat of the game’ as a defense Targeted harm: deliberate targeting of vulnerable parts of the body to inflict a game-ending injury. • Even if not meant to, it often leads to grievous bodily harm

Crimes Act 1900 (S33): A person who … causes grievous bodily harm to any person, with intent to cause grievous bodily harm to that or any other person is guilty of an offence. Maximum penalty: imprisonment 25 years. Murder and manslaughter (a) Murder: ‘act… with intent to kill or inflict grievous bodily harm’ (b) ‘Every other punishable homicide shall be taken to be manslaughter.’ - Crimes Act 1900 (Cth) s18(1) In sport: • Murder possible in theory; no cases in Australia. • Manslaughter: ‘No one had the right to use force which was likely to injure another, and if he did use such force and death resulted the crime of manslaughter had been committed.’’ R v Moore (1898) - Unlawful and dangerous act manslaughter - Criminally negligent manslaughter Assault causing death • • •

If a person unlawfully assaults another who dies as a direct or indirect result of the assault, the person is guilty of a crime and liable to imprisonment for 20 years. A person is criminally responsible even if the person does not intend or foresee the death of the other person and even if the death was not reasonably foreseeable. Criminal Code Act 1913 (WA), s 281

In sport, a blow causing death will be excused where: • It is within the rules of a sport (express or implied) • The contact was involuntary Criminal Liability & Available Defences – Consent in sports The defence of consent ‘Consent by the victim’ is the defence commonly relied upon by athletes facing criminal liability for acts of sports violence (the same applies in torts) 2 types of consent: • To any contact permitted under the written or express rules of the sport (e.g. a punch in boxing, a tackle in soccer) • To contacts not within the written rules but nonetheless within the player’s contemplation as a recognised part of that sport Contact (expressly or impliedly) consented to is legal regardless of the severity of the injury Identifying implied consent The boundaries between sport violence that is non-criminal because the victim has (impliedly) consented, and justiciable violence, are determined objectively, but they are blurred It all depends on the circumstances of the violent act • The nature of the sport • The nature of the game played

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The nature of the particular acts and circumstances The degree of force used The degree of risk of injury The state of mind of the accused

Consent and the nature of the sport / game Nature of the sport: Ø The level of acceptable dangerous physical contact is limited or non-existent in non-contact sports Ø But is wide in contact sports • Among contact sports, some acts of violence are acceptable in one sport but intolerable in another. Nature of the game: In friendly or training games, consent to violent contacts is more difficult to accept • E.g., Sibley v Milutinovic (1990) Aust. Torts Reps 81-013 Consent will not cover intentional attacks … but how to establish intentionality? - A jury should ask itself ‘whether the contact was so obviously late and/or violent that it could not be regarded as an instinctive reaction, error or misjudgment in the heat of the game.’ R v Barnes [2004] EWCA Crim 3246

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Consent will not cover… … behind-the-play assaults … violent contact made off the ball • ‘a distinction which the jury might regard as decisive was that between force used in the course of play and force used outside the course of play’. (R v Billinghurst 1978) … assaults on sensitive areas of the body. … overly violent acts. • ‘some actions are so violent it would be perverse to find that anyone taking part in a sporting activity had impliedly consented to subject himself to them’. ( R v Cicarelli 1989) Sports and the limit of consensual violence Is there a limit where an act of intentional sporting violence is too harmful to be legally permissible, even if clearly consensual? • Non-intentional infliction of actual bodily harm is most often permissible • Intentional infliction of (serious) bodily harm is permissible in gladiator sports - SHOULD BOXING BE BANNED? Medical associations of the world, including the Australian one, plead for banning the boxing, as it leads to chronic traumatic encephalopathy (CTE)

Self-defence in sporting contexts

A defence that has rarely proven successful in sports Ø Canadian case: Maki (1971) • See textbook Ø English case: Hardy (1994) • Facts: In a brawl in a rugby union game, Hardy struck the victim on the jaw, causing him to fall hitting his head on the ground; he later died. • Hardy argued that he had been hit repeatedly on the back of head by the deceased and the only way he knew how to stop the deceased was to turn and hit him in the jaw. • Verdict: Hardy was acting in self-defence. Conclusion: the scope of criminal liability in sports - Better to have the state prosecute violent on field acts, or leave the matter to the sport disciplinary tribunal? Conclusion: courts, and/or domestic tribunals? ‘A balance must be struck; acts shall be deemed criminal if: • conduct is outside the safety rules and playing culture of the sport • committed recklessly or with intent, • where serious long-term bodily harm results. All three aspects of the test must be violated for the criminal law to intervene.’ • Curtis Fogel, ‘Ultra-Violence on the Pitch’ (2014) 2 Journal of Law and Criminal Justice 11 Conclusion: courts, and/or domestic tribunals?

Conclusion: courts, and/or domestic tribunals?

‘[Aside from the doctrine of consent] there are less tangible, extra-legal obstacles that may cause prosecutors to think twice before bringing a sports violence prosecution. • First, player victims and witnesses may be reluctant to testify or cooperate due to existing player “codes” that consider violence part of the game and not appropriate for outside legal intervention. • Second, a prosecutor may be concerned that prosecutions for sports violence may not reflect the sentiments and priorities of the public. • Finally, given the heavy load of cases that many prosecutors experience and the legal stumbling blocks to getting a conviction, sports violence cases may represent a heavy expenditure of time and resources for a prosecutor with a highly uncertain return on the investment. - Jeff Yates and William Gillespie, ‘The Problem of Sports Violence and the Criminal Prosecution Solution’ (2002) 12 Cornell Journal of Law and Public Policy 145...