SPIRO: Waratahs should focus on Lions, rather than risking Skelton's finals future

At 5pm on Thursday AEST, the SANZAR Appeals Committee, chaired by Lex Mpati, with Adam Casselden and Chris Morris as members, will hear an appeal by videoconference from the Waratahs Sipatolu Latu and Will Skelton.

The appeal is against a finding of an earlier SANZAR judicial hearing that suspended Latu for four weeks and Skelton for two weeks for their dangerous tip tackle on Sam Whitelock during the Waratahs-Crusaders match last weekend.

The Waratahs franchise is risking having Skelton (and possibly even Latu) suspended for an additional couple of weeks. The Appeals Committee could (and I would say, should) decide that Skelton was more influential in the outcome of the dangerous tackle than Latu was.

It needs to be remembered that when the incident happened,the South African referee Marius van der Westhuizen asked the Australian TMO Peter Marshall about Skelton’s role in the tackle. Westhuizen implied, as did the Fox Sports commentators, that Skelton was the Waratah who needed to be disciplined as the leading agent in the tackle.

TMO Marshall, however, talked Westhuizen out of this stance. He insisted that Latu was the lead tackler and that he should receive a yellow card for his action.

In subsequent reviews, this approach by Peter Marshall has been rejected.

SANZAR’s Duty Judicial Officer, Nigel Hampton QC, ruled that both Latu and Skelton be cited for breaching Law 10.4 (j): “Lifting a player from the ground and dropping or driving that player into the ground while that player’s feet are still off the ground such that the player’s head and/or upper body come into contact with the ground is dangerous play.”

The Peter Marshall exoneration of Skelton was further smashed when the Judicial Hearing Chairman, Robert Stelzner SC, found Will Skelton of contravening Law 10.4.(j).

The effect of this ruling is to implicate Skelton directly in the dangerous tackle on Whitelock.

The issue then arises, if Marshall was wrong to say that Skelton’s involvement in the dangerous tackle on Whitelock was so minimal as to justify no punishment for him, could Robert Stelzner SC be wrong, as well, with his view that Skelton’s involvement was real but limited?

The main paragraphs of Robert Stelzner’s ruling are: “As the Judicial Officer, I considered all the evidence before me including video footage, additional video provided by the Waratahs, Citing Commissioner’s report, medical information for the Crusaders’ player, Sam Whitelock, who was involved in the incident and the submissions made for the player by his legal representatives, Anthony Black SC and Bruce Hodgkinson.

“After taking all relevant facts into consideration, I found the incident to have a lower end entry point for breaching of 10.4. (j) Lifting Tackle which stipulates a four-week suspension.

“Mitigating factors were also taken into account included the player’s clean record, his relative youthfulness and good characters references supplied on his behalf. This resulted in the sanction being reduced by two weeks.

“Two offending players, Skelton and Silatolu Latu, were involved in the incident. Latu played the more active role in the lifting and twisting of their opponent, Sam Whitelock, contributing more significantly to the end result than Skelton. Skelton nevertheless also lifted and twisted Whitelock in the tackle, which is why he too was found to have breached the applicable law.

“Given the lesser extent of his involvement however, the sanction in the case of Skelton did not in my view warrant an increase from the entry level sanction to serve as a deterrent. He was unaware of the actions of his fellow player, Silatolu Latu, and although he dropped his opponent after he had lifted him and turned him, it appeared that Latu was the player who had continued with the tip tackle causing their opponent to land in the manner in which he ultimately did …”

I have given a copious quotation of this judgment by Stelzner to allow The Roar readers to see for themselves my point about the risk the Waratahs franchise is taking in having this matter reviewed further.

In my opinion, the judgment about Skelton’s supposedly lesser involvement in the Whitelock is as flawed as Peter Marshall’s opinion that Skelton was not involved in a punishable manner.

The argument Stelzner seems to be making is that because Skelton was not aware of what Latu was doing this, somehow, justifies a two-week suspension rather than a four-week suspension.

How could Skelton not know, though, what Latu was going when he was standing centimentres away from him?

And isn’t the dangerous lifting law a matter of strict liability?

In strict liability offences it is immaterial what the perpetrator is thinking, or even intending. If a dangerous tackle is made, then the appropriate punishment, generally four weeks, should apply.

Robert Stelzner SC knows this, of course. How do we know this? Because on Tuesday he made the following ruling on the matter of a lifting tackle by the Lions Robbie Coetzee: “… The video footage in my view clearly shows that the Cheetahs’ player was lifted and dropped into the ground while that player’s feet were off the ground, with the result that the player’s upper boady and head came into contact with the ground. This is dangerous play in contravention of the applicable law … A four week’s suspension is indicated for such an offending …”

But then Stelzner, as he did with Skelton, made the argument about “a lower end entry point” and “mitigating factors” including the player’s clean disciplinary record and the fact that he apologised to his opponent which entitled “a reduction in the sanction of two weeks.”

Now I have quoted fully from these rulings, as I have said before, so that The Roar readers can make up their minds about the arguments used to justify the lighter sentences for some players who were directly involved in a dangerous lift tackle.

Now, it is important to note that when Robert Stelzner SC makes these distinctions, he is directly going against instructions from SANZAR issued following the Francois Steyne case in April.

Steyn was involved in a three-man lifting tackle on Aaron Cruden during the volatile Chiefs – Sharks match. Steyn was red carded by Australian referee Angus Gardiner for his involvement in the tackle.

But the Citing Officer South African Jannie Lubbe rescinded the red card.

But SANZAR appealed against the decision and the Appeals Committee (the committee that Latu and Skelton will face later today) re-awarded Steyn with a red card and decided that the appropriate sanction was a four-weeks ban.

SANZAR justified its appeal on the grounds that the original ruling had accepted that with Cobus Reinach being part of the tackle on Cruden that Steyn wasn’t totally to blame.

This is the same sort of approach that Stelzner took with Skelton, a sort of limited liability.

Now read what SANZAR said about this limited liability proposition: “In SANZAR’s view, the Judicial Officer made clear errors of both fact and law in making the findings he did and the Judicial Officer’s decision would cause real doubt as to how these types of tackles should be treated by referees, Citing Commissioners, Judicial Officers and ultimately those playing and coaching the game.

“Player safety is paramount. Tip tackle in breach of Law 10.4 (j) have a high risk of serious – even catastrophic – injury and need to be eradicated from the game. For this reason, having considered all the evidence, SANZAR reached a view that the original decision by the Judicial Officer was wrong and SANZAR exercised its right of appeal.”

Reading this, I can’t help feeling that if the Waratahs had not obliged in appealing the Latu and Skelton decisions, then SANZAR, in the case of Skelton, might well have done so itself.

Incidentally, the three-man panel that supported SANZAR’s appeal included the South African Robert Stelzner SC. the chairman of the panel was Australian Terry Willis and the third panel member was New Zealander Nigel Hampton QC.

We will all know some time after 5pm on Thursday whether the Waratahs have been too clever by half in re-opening the Latu and Skelton matter.

In my view, they got a terrific outcome in the case of Will Skelton. They should have banked this and not made his finals appearances hostage to an appeals authority that could, and should increase Skelton’s punishment.

The Waratahs should be able to beat the Lions and the Cheetahs, even though the matches are in South Africa without Skelton. A rested Skelton could then roar back into action against the Reds, to clinch the top spot in the Australian Conference for the Waratahs.