Tribunal denies the human right of trial by jury

The AFL Tribunal should hang their heads in shame and be charged with bringing the game into disrepute after their handling of the James Kelly case.

Charged with rough conduct and offered a two match suspension for his bump of Brendan Goddard, the integrity of Australian Football must be bought into question.

Law and order govern our society and it has done so for hundreds of years through the administration of a legal system.

But the decision to find Kelly guilty has ramifications which affect the game, its players and fans, beyond a player missing two games of football.

We can no longer have faith in the AFL’s judicial system.

In order for a society to function orderly, citizens must have faith in their administrators. Human rights ensure the ethical treatment of citizens, while democracy ensures the right decisions are made in favour of the majority.

The fact the matter came before the tribunal was surprising considering the Match Review Panel failed to apply relevant precedence to the case.

Six weeks ago, North Melbourne’s Lindsey Thomas bumped Collingwood’s Ben Reid in a near identical situation. Both bumps were near the ball, the bumps were intentional and head contact was believed to have been made in both.

Ben Reid left the field and was diagnosed with a concussion but Thomas was not charged because the head contact to Reid was deemed to be accidental. Kelly’s hit was deemed to be reckless.

The key aspect of Tuesday’s hearing was that initial contact from Kelly was made to Goddard’s chest. Representing the AFL, Jeff Gleeson SC used frame-by-frame footage to argue contact was made to Goddard’s jaw.

The contact was argued to have been made as Kelly pulled up, at which point his feet left the ground.

For the past five years, when a player is running towards another and he opts to leave the ground, it has been deemed a preventative measure to protect himself when there is no other option. Therefore, contact to the head is accidental which was reflected in the Thomas case.

The Kelly case was no different, thus any head high contact should have been deemed accidental.

Goddard himself was called as a witness in the case and testified he did not remember head high contact being made to him.

Precedent is the key to judicial law making powers. It ensures judges apply elements of law consistently based on history.

The first precedential element to have been ignored was deeming Kelly’s hit as reckless rather than accidental. The second precedent to be ignored was sending Kelly to the tribunal for an accidental hit.

As a result of the Kelly decision just six weeks after the Thomas decision, AFL players are utterly confused by the application of the AFL laws of the game.

The AFL’s judicial system has failed to be administered correctly, but selective precedent is just the first of the tribunal’s integrity issues.

The other is that the tribunal does not offer a trial by jury.

A jury is supposed to be made up of a cross-section of the defendant’s peers. In the legal system this consists of members of the community selected at random. These are the people who function in society at the same level as the defendant.

On Tuesday night, the jury consisted of Wayne Henwood, Richard Loveridge and Emmit Dunne. All three jury members are ex-AFL players. Henwood and Loveridge are now both legal professionals, while Dunne serves the Victorian police.

The problem with this is all three jury members comes from the same background in society, hold near identical perspectives and are therefore not a cross-section of a player’s peers or a legitimate jury.

The AFL must consider disbanding the current system of jurors and implement a more holistic perspective.

If cases which front the tribunal are to be a true cross section of a player’s peers, the jury members must be amended.

One idea is to increase the number of jurors from three to five.

The tribunal jury should be made up of one member from the Match Review Panel, one from the AFL Coaches Association, one from the AFL Players Association, one from the AFL Umpires Association and one AFL medical expert.

Whatever the AFL do, something needs to be done for the 2014 system. This year’s interpretation of law is farcical and players can no longer have faith in the leagues judicial system which is a blight on such a wonderful game.

If the current inconsistencies continue throughout the season and ignore precedent law, we might as well bring back trial by combat.