Please find below the reasons given by the AFL Appeals Board on Thursday in the case involving GWS Giants player Toby Greene.

AFL Appeals Board
Murray Kellam QC, Wayne Henwood, David Jones.

'It is, first, appropriate to state the general legal principles which apply to an appeal brought before the Board on the basis that a sanction imposed by a Tribunal is manifestly inadequate.

'First, and as properly agreed by the parties, in order to establish manifest inadequacy the possibility that this Board may have come to a different conclusion from that of the Tribunal is insufficient.

'Adapting the principles set out in the R v Lowndes (1995) CLR at page 665, this Board may not substitute its own opinion for that of the Tribunal merely because it would have exercised its discretion in a manner different from the manner in which the Tribunal exercised its discretion.

'Secondly, there is no dispute between the parties as to the application of the principles related to manifest inadequacy. We accept, as submitted by Mr Gleeson, that whilst there are obvious differences between criminal sanctions and the sanctions to be imposed for reportable offences by an AFL footballer, we can take guidance from the approach taken by appellate courts as to that issue.

'Clearly it is insufficient for the AFL to demonstrate that the sanction imposed by the Tribunal was merely light or, indeed, merciful. The AFL must establish that the sanction was not only inadequate, but manifestly so.

'That so, we do not consider that the complaint made on behalf of the player that the appeal is misconceived because it is based on a false premise is made out. The ground of appeal is that the penalty imposed by the Tribunal is manifestly inadequate.  

'The jury found that the contact upon the umpire was deemed intentional by reason of the application of clause 4.3F(1) of the guidelines issued by the AFL at page 10. It imposed its penalty on the basis of those three factual findings. Each one entitled the jury to conclude that the admitted contact was intentional.

'Accordingly, the question for us is whether or not the AFL has established that the penalty imposed is manifestly inadequate.

'The findings of the jury speak for themselves. They found that the player had full view of the umpire as he was walking to him. They found that he was looking straight at the umpire and that he walked straight towards the umpire, who was stationary. The player then made contact with the umpire.

'The jury found that the contact was aggressive by reason of the player walking straight at the umpire, and in the manner in which he approached the umpire. The jury found that the contact was demonstrative and that they considered that the player was seeking to demonstrate to the umpire his feelings and his displeasure. That finding was clearly open to the jury.

'Furthermore, the jury found that the contact was disrespectful as the player walked straight at the umpire and continued to do so until contact was made. It is implicit in these findings that the jury considered that the contact was intentional, even without the application of the deeming provisions. It is inconceivable that the jury would have made these findings and, in particular, that the contact was demonstrative and disrespectful and not intentional, as contended by the player.

'The jury clearly rejected the evidence of the player that he was not aware at the time that he had made contact, and that he was wanting to stay out of the umpire's way, and that he was trying to avoid contact with the umpire.

'The question for us is whether or not it can be said that the penalty imposed is manifestly inadequate. The purposes of a sanction to be imposed for this particular offence are varied. In determining an appropriate penalty, emphasis needs to be given to deterrence. There is a need to deter other players at all levels of Australian football who might be minded to act towards an umpire in this unacceptable way.

'There is a need to send a strong message to players in the AFL competition, and players in the sport of Australian football at all levels, that the commission of a reportable offence such as this will not be tolerated. Umpires at all levels have to know that this is the position and that they can carry out their vital function with confidence. The image, integrity and the reputation of Australian football must be protected. That can only happen if players at all levels act responsibly and honour their obligations to the umpires.

'There is also a need for the penalty imposed to adequately denounce the conduct involved in the commission of this reportable offence. It is serious and of substantial gravity. Respect for umpires is at the heart of the integrity of the game and it must be clearly understood by AFL players and umpires and prospective umpires that intentional contact with umpires will not be tolerated, particularly if it is aggressive and disrespectful.

'This is a message which goes further than just AFL players. It is a message to be sent to the Australian football community as a whole. As stated, a strong message has to be sent. The community needs to have confidence that not only will umpires be treated with respect, that is the respect they deserve, in the AFL competition, but at all levels of Australian football. This can occur only if players honour their obligations to umpires at all levels.

'In this particular case specific deterrence is also of significance. As Mr Gleeson submits, and we consider correctly so, the player, even with the advantage of three days to reflect on the incident and to review the video footage, implausibly maintained in his evidence that he was trying to avoid contact with the umpire.

'We have looked at the video on numerous occasions. No reasonable person viewing the video could accept that statement or the statement of the player that he was trying to stay out of the umpire's way.

In the end, the determination of appropriate penalty involves an instinctive synthesis of all the relevant matters which I have referred to. All of the circumstances have to be considered and all of the relevant factors weighed in the balance. We remind ourselves that the principle of proportionality needs to be applied.

'In our view it is obvious, taking into account the purposes of the sanction in the circumstances of this case that a three week suspension is not only inadequate, but demonstrably and manifestly so. Accordingly, the appeal is made out. We consider that the appropriate sanction is that submitted by the AFL to be the minimum sanction and that the Tribunal's decision should be modified to a sanction of six weeks' suspension.

'That is the decision of the Board and we will deliver further written reasons amplifying the legal issues in the near future.