Contrary Conduct, Careless Contact and Credibility - A Legal Analysis

By now most of you would have seen the above incident and read or heard about the charges laid by the NRL judiciary along with their consequences for the Cowboys and Queensland halfback.

Thurston has until midday on Tuesday to either challenge the charge or plead not guilty or he will miss the next two games.  As important as he is to Cowboys fans, it is the second game that is causing everyone (at least those north of the Tweed) to sit up and take notice.

This article will not scream wild allegations of conspiracy.  Nor will it trawl through the history of judiciary decisions at origin time to find examples of previous incidents of supposedly biased judiciary decisions.  Because ultimately it is flawed analysis to approach this situation using high shots, spear tackles and headbuts as precedents.  Also, as a general rule, accusing a quasi-judicial body of bias and conspiracy before you even have a hearing is generally not the best way to get what you want.


So lets take a deep breath and calmly declare that Thurston SHOULD have nothing to worry about for the reasons set out below.  These are, if you will, the submissions for the defence.




The Charge


Thurston has been charged with contrary conduct.  This is defined in the Judiciary Code of Procedure as being:


misconduct on the part of a Player constituted by behaving in a way that is contrary to the true spirit of the Game

In the section specifically dedicated to "Contrary Conduct" the Code states:


It is not possible to give any detailed direction in advance about this offence, but it could include a variety of things - e.g., spitting at another Player, making avoidable contact with the Referee, and so on.
The "true spirit of the game" means a spirit of sportsmanship and fair play in the course of a vigorous sporting contest.     

The Code goes further to describe contact with a referee:

However, careless, reckless or intentional contact by a player with a Match Official may constitute conduct contrary to the true spirit of the game and amount to an offence. In the course of play, there will sometimes be accidental contact between a player and a Match Official such as the Referee. This does not constitute an offence.
it lists conduct that will be an offence, such as wiping blood from a cut on the referee (has anyone ever done that?) but importantly gives directions about what would not be an office:


If a Referee is running backwards in his control of the game, and runs into a defending player, that is merely an accident and no offence.

Those are the elements required to prove contrary conduct.  The judiciary must be satisfied that the Thurston incident meets those elements.The submissions for Thurston must be that:

1. The contact occurred in circumstances where the referee was running backwards and cut across Thurston's line.  This is precisely the circumstances contemplated by the rules as not being an offence.
2. Even if that is not accepted, the contact was clearly not deliberate, careless or reckless, it occurred in circumstances where he was sprinting back in defence and had his eyes on the ball carrier at all times.  That is conduct in the "spirit of sportsmanship and fair play in the course of a vigorous sporting contest," and accordingly is not an offence.  
3. It was plainly an accident, one which did not gain any benefit for his team and one which resulted in the referee in question brushing himself off and laughing.  It would be incongruous with basic principles of common sense to find that this was somehow contrary to the true spirit of the game. 
4. For the above reasons the elements are not met and there can be no charge.

The Grading

Let's assume for a second that you can find that Thurston could have gotten out of the way and that therefore his contact may have been "careless."  How is this then a grade 2 charge?  There are five possible gradings which apply to charges.  Grade 2 is the second lowest.  The Code is vague in setting any guidelines for setting gradings, although we do know that the doctrine of precedent should apply and previous incidents should be taken into account. 

Such previous incidents include this and this, both of which did not result in any charge and are arguably much more serious (and avoidable) than Thurston's.

The submission for Thurston is that even if there is an offence, it should be grade 1 only.

Policy and Precedent

The objects of the Code include to Promote uniformity and consistency of approach in sentencing.

If the application of the Code is such that Thurston is suspended for two weeks, then it means that every other player who has a similar amount of contact with (one of the two) officials as they race at pace around a rugby league field should also be suspended for two weeks.  That would be the situation that the tribunal would be bound to impose in order to ensure that it is uniform and consistent.  It would also be utterly ridiculous.

Situations like Josh Ailomai, or perhaps this one, are the sort of referee contact we need to stamp out of the game.  Thurston's is not.

Reputation

It is not justpolicy and troubling precedents at stake.  The tribunal should definitely be considering its own reputation.

You would never make this submission to the tribunal but perhaps they should be thinking long and hard about it.  This is an extremely speculative charge laid against a Queensland star before one of the biggest games in his career (you only get one chance to play in Lockyer's last game).  To wipe Thurston out would expose the tribunal to unprecedented claims of bias and conspiracy, and this time many more people would start to believe it.  It is important not only to have justice done but for justice to be seen to be done.  In this case I doubt that many other than the most one eyed blues fans think that justice demands that Thurston misses origin.  The tribunal should think long and hard about that before making a decision.

So there you go.  No problems for JT.  I look forward to being proven correct on Wednesday night.