Sport is
engrained into the Australian culture. It forms a significant part of our
economy and serves to inspire millions. When we examine contact sports like
rugby, league and Australian-rules football, it is rare that we stop to
consider the legal ramifications of such events. Tackling someone to the ground
and taking possession of their ball might be seen as assault and theft in an
urban area, but it is a source of national pride when performed in a stadium
for the world to witness. Where do we draw the line? When do we stop regarding
wanton acts of violence as recreational and begin to perceive them as criminal?
Assault is
the physical application of force to another without their consent. Clearly the
keyword for our application to assault in sport is consent. Where deliberate
violence does not exceed the tolerance of the law, consent is a complete
defence. There are two types of
consent; express and implied.Express Consent
There is
little chance of criminal liability arising from physical contact permissible
under the express rules of the sport. Play that is within the rules and
practice of the game and does not go beyond them will be a firm indication that
what has happened is not criminal.
Implied Consent
A breach of
rules involving physical contact will not be actionable unless a breach is
outside the reasonable expectation of the reasonable player, or beyond the unwritten code and customary norms of the game.
Factors
bearing upon implied consent include:
o
The
nature of the game played (whether amateur or professional);
o
The
nature of the particular acts and their surrounding circumstances;
o
The
degree of force used;
o
The
degree of risk of injury; and
o
The
state of mind of the accused.
·
A
player being sent off might not be sufficient to say consent was not there.
·
Instinctive
reactions might be consented to.
·
Intentional
causing of harm may mitigate against a finding of deemed consent.
·
Unwillingness
of the victim to participate is a factor.
Where contact
exceeds consent, the contact is deemed illegal.
Other considerations
·
The
victim is deemed to have consented to any unintended harm which results from
the consensual contact. · Violent contact outside the tolerable limits of the criminal law, although within the express or implied rules of the sport, is prosecutable.
· Behind the play assaults are not consented to.
