Police have power to prosecute Andrew Gaff over attack on AFL opponent Andrew Brayshaw

Opinion piece for The Australian

By Robert Stary

Let’s make one thing perfectly clear from the outset: Andrew Gaff will be setting no precedent if he is charged with a criminal offence arising from his assault on Andrew Brayshaw in Sunday’s AFL derby between the West Coast Eagles and Fremantle.

It is a truism that sometimes good people with unblemished records commit inexplicable crimes. It cannot be excused on the basis of a “brain fade”. Many citizens are prosecuted in circumstances where they did not intend the consequences of their actions that led to serious injury with potential long-term repercussions. That’s why we have criminal provisions that deal with intentional and reckless conduct.

Of course, Leigh Matthews is the only AFL/VFL player charged in living memory, having been convicted and fined $1000 for his gratuitous assault on Neville Bruns in 1985. But there have been numerous examples of footballers being charged for on-field assaults since that time in other minor football leagues. I have represented at least three accused footballers in similar circumstances in the last 10 years.

Arguably, there should be no exemption for elite professional footballers who might fit into a special cohort. There can be no voluntary assumption of risk simply because a player goes on to the football field in a physical, body-contact sport.

What is significant about the Gaff incident is that it was not remotely in or near the flight of the play. This was an impulsive and spontaneous striking of an opposition player without warning, reckless or otherwise.

An off-the-ball incident such as the Gaff assault has to be vigorously scrutinised. This now could well result in criminal prosecution.

After all, elite professional footballers are role models for all the junior competitors and players in suburban and country leagues. They must set the highest possible standard.

In some instances, an assault such as this would attract a minimum mandatory jail sentence if it had occurred in the community and against an emergency service worker.

There are calls for condign punishment for those engaged in one-punch violent attacks. Community expectations are changing.

And don’t think for a moment that the victim is required to make a formal complaint. The vision captured on television is enough to launch a police investigation. It is not necessary for Brayshaw to make any complaint.

There are now many examples where police pursue charges whether or not the victim agrees to the prosecution. We only need look at the development of laws in crimes of family violence where police initiate action to protect the victim and to ensure that justice is done. This occurs even where there are reluctant victims. What goes on in the sanctity of the family home is subject to scrutiny where unlawful violence is committed against women and children. These cases are uniformly prosecuted.

The worn adage that what happens on the field stays on the field can be tolerated no longer and does not reflect modern standards and expectations. A crime is a crime, wherever it takes place. The AFL has failed in its duty to improve sufficient sanctions to quell this behaviour. It missed an opportunity to condemn this violence in the Barry Hall-Brent Staker incident in 2008. Hall’s penalty was inadequate. Perhaps it could use the Gaff incident as a line in the sand.

Rob Stary is an accredited criminal law specialist.