Break in causation - charge not made out

[Riewoldting]

In defence of Farmer: I think the medical literature would show a recognised effect of concussion is short-term memory loss.

I find it entirely acceptable that Farmer could remember standing watching the play, and nothing after that.

But that's not to say that immediately prior to the contact, Farmer was standing watching the play. There is probably a gap of a good five or ten seconds prior to the contact that Farmer cannot remember.

So Farmer can't remember Baker moving into his path, about three metres ahead of him.

Farmer can't remember thinking, "I'm going to bowl this prick over".

Farmer can't remember making a conscious decision NOT to slow down and go around Baker.

Farmer can't remember accelerating into Baker in an attempt to bump him.

Farmer can't remember slamming his face into Baker's head with reckless disregard for his own safety.

This version of events is consistent with Baker's testimony (I felt contact to the back of the head).

This version of events is consistent with Nixon's testimony (Baker blocked Farmer).

This version of events is consistent with Kirkwood's testimony, save to say that Kirkwood alleged that it was Baker that made contact with Farmer. But Kirkwood's interpretation of who contacted who is tainted by the fact that Baker ran towards Farmer's path to lay the block.

If this version of events was what in fact happened, it is enough to break the chain of causation between Baker's act and Farmer's injuries. This has been recognised by the High Court in March v Stramare per Mason CJ:

"Many examples may be given of a negligent act by A which sets the scene for the deliberate wrongful act by B who, fortuitously and on the spur of the moment, irresponsibly does something which transforms the outcome of A’s conduct into something of far greater consequence, a consequence not readily foreseeable by A.

In such a situation, A’s act is not a cause of that consequence, though it was an essential condition of it. No doubt the explanation is that the voluntary intervention of B is, in the ultimate analysis, the true cause, A’s act being no more than an antecedent condition not amounting to a cause."

The charge is one of rough conduct in that Baker caused forceful contact to be made to Farmer's head and neck. If the above version of events is the true version, there has been a break in causation.

If Baker did not cause the contact, the charge has not been established and should be dismissed.

[Saints94]

how many baker threads do we need on this forum

[yipper]

Fantastic selection of budding QC's on here lately!! Phillip Priest QC should (if he's smart) have been sitting on here all day and reading up on all our legal arguments and theories. He'd have no probs getting Bakes off!!

[St. Luke]

Jeeez give it a rest Riewoldting...you're like a cracked record

[suss]

I log onto saintsational to take a break from studying law...please Riewoldting, lemme take a break!!

[Riewoldting]

Ah, but this is not studying it - it's applying it!

[SteveStevens66]

Why have a go at Riewoldting for posting something of intellectual substance? Shameful.

The March v Stramare per Mason CJ case cited is precisely applicable to tonight's appeal hearing and if admissible, offers Mr. Priest much in the way of argument.

[suss]

Why have a go at Riewoldting for posting something of intellectual substance? Shameful.

It was a gag. Obviously not a good one.

[St. Luke]

Why have a go at Riewoldting for posting something of intellectual substance? Shameful.

Get over it!

[spidoir]

Despite march v stramare the facts have still been settled on and to my knowledge we are not appealing the facts of the case.

even if this was a potential loophole, the prosecution doesn't have to show precisely what may or may not have happened. they need only show to the required standard of proof.

by the way, what is that for the tribunal? is it on the balance of probabilities or beyond reasonable doubt? if it is on BOP even the eternal optomist would have to conceed that it is more than likely that chain of causation hasn't been broken, even on Bakers testimony. if it is BRD the number of alternatives may pose greater problems in proving the action.


given the seriousness and extent of injury may be looked at when assessing injury, contributory negligence by farmer may be worth a look. especially considering he has said that they were at each other all day. it would be farcical to think that he wasn't somehow responsible for his own injuries


It seems there are a couple of us lawyers in Perth riewolting!

[Riewoldting]

It seems there are a couple of us lawyers in Perth riewolting!

I'm not a lawyer.

[spidoir]

neither am i come to think of it!

[santazzi]

This case is very puzzling to me. It has implications to Baker more than just 7 weeks.

I think that the terms legal/illigal are used very loosely.

Suppose Baker run to Farmer and punched him in the nose. This act will be illigal whether it occured 50, 5 or .05 metres from play.

Suppose what Baker said happened with in 5 metres of play, one assumes it would be a legal manouvre and sorry/bad luck Farmer.

Suppose what Baker said happened occured outside 5 metres of play and an umpire saw it ; it would be a free. I cannot imagine an umpire making on spot medical decision of Farmers injuries and making a decision other than a free.

The question is would Baker have been reported, had this happen within 5 metres of play. I do not think so.

The AFL has to be careful here:
1. This decision will impact on bakers immediate livelihood
2. It will tarnish his character and perhaps affect his capacity to earn a living post football
3. Suppose and this is a big suppose that some permanent and serious damage happens to Farmer, by its decision is the tribunal leaving Baker to common law suit?? I don't know ..........Over to you forum QCs,

[Riewoldting]

Suppose what Baker said happened occured outside 5 metres of play and an umpire saw it ; it would be a free.

I'm not certain of that, because I'm not sure that moving into someone's path and standing still (blocking) is an illegal shepherd for the purposes of that Law. Holding, sure. Push in the back, certainly. Standing your ground?? ... not so sure about that.

Re: immediate livelihood, Baker won't be on the dole queue. Depending on the terms of his contract might be paid his salary despite being suspended from playing.

Very hard to argue tarnished reputation and effect on post-playing earnings. Dermie got suspended a lot (now in media). So did Rhys-Jones (coaching). Even if so, tough tits. No recourse to legal remedies.

Re: common law suit, NO precedent for civil suits for injuries sustained at the hand of an opponent as far as I'm aware. Voluntary assumption of risk would play a big part. Can't see how tribunal decision would have any authority in determination of liability (court would make its own assessment of liability on the facts as presented by the parties).

[taz]

Give it a break guys...your head will pop

Its NOT a court of law...too many bush lawyers talking rubbish

rules of evidence don't apply etc..(obviously given whats transpired so far)

Ask your self this...What is the standard of proof? Beyond reasonable doubt? ( if not must be the civil test) ....On the balance of probabilities? or something else ....thats right they are obviously just making it up as they are going along......its a joke .....a circus run by clowns !!!!

So don't get upset about it...

Don't expect justice or some rationale reasoned judgment from their honours because you won't get it.....

[Riewoldting]

Ask your self this...What is the standard of proof?

Balance of probabilities

Pretty clear in the AFL's literature