When I read the account of the Swans ‘scandal’ in The Age on 20 August, I thought that the press had been grossly irresponsible.  It was full of pious utterances about oppression said to have been practised by one large group of the community.

It looked to me that the press conflated two issues.  First, the issue of a breach of AFL rules about ‘conduct unbecoming’ is very different from the issue of whether the conduct involved a breach of the criminal law – and will be dealt with under very different rules.  The players have conceded that they breached the rules, as I understand it, by bringing women to their rooms as they did.  On that inquiry, the behavior of the women does not matter.  Indeed, the rule is there because the behavior of the players can lead to just this kind of dispute.  But the behavior of the complainant will most likely be in issue in any criminal prosecution.

Secondly, it appeared from The Age that the police had been told that the players had been drinking and that two women were invited to their hotel sometime after 2am.  There was only one complainant.  ‘Her official version of events, which involves an act of touching beyond what was agreed, will form the basis of Victoria Police’s ongoing investigation’.  A second source said ‘five players were in a room with naked women, with one performing lap dances…. Heeney, who was clothed, was the subject of the complaint.’

Since then, the reporting of the press has in my view got worse.  It is I think notorious that scandal sells newspapers.  For ‘scandal’ the Compact Oxford English Dictionary has:

Behaviour or a situation regarded as wrong or unacceptable and causing general outrage; outrage or gossip arising from such behaviour: the media’s craving for scandal.

Well, Oxford got that right.

Wikipedia has:

A scandal can be broadly defined as the strong social reactions of outrage, anger, or surprise, when accusations or rumours circulate regarding a person who is, or persons who are, perceived as having transgressed a social norm in some way. These reactions are usually noisy and may be conflicting, and they often have negative effects on the status and credibility of the persons or organizations involved….. Contemporary media has the capacity to spread knowledge of a scandal further than in previous centuries and public interest has encouraged many cases of confected scandals relating to well-known people as well as genuine scandals relating to politics and business.

Now The Guardian haspublished a most enlightened piece by Rana Hussein, who is involved in sports administration. She pointed to the distinction referred to above between a breach of club or AFL protocols and a breach of the criminal law, and she asked the question: What happens if no charges are laid by the police?

Before you pass judgment, it helps if you identify what you are passing judgment on – and, above all, it helps if you have heard the other side.  It also helps if your thinking is not warped – prejudiced – by a firmly held ideological conviction in what some call ‘identity politics’.  It also helps if you are not ready to cast others aside to save your own face.  Especially if you are in an industry that lives off the earnings of gaming.  And is served by a gullible and greedy press.

As our greatest jurist, Sir Owen Dixon, observed: ‘Experience of forensic contests should confirm the truth of the common saying that one story is good until another is told…’  In a well-known case on the standard of proof in civil cases, Sir John Latham referred to the common sense of an old English text – ‘Men will pronounce without hesitation that a person owes another a hundred pounds on evidence on which they certainly would not hang him…’

The NRL requires players charged to stand down.  I do not agree – not least because our criminal justice system is broken.  Such a ruling obliterates the protection of the presumption of innocence, which is a cornerstone of our whole justice system, and puts the interests of the organisation above the rights of the individual, which is a hallmark of those regimes we least admire.

There would be very tricky issues in any civil case arising from the allegations referred to in the press as set out above.  What is the legal basis of the claim?  What share of responsibility is down to the strippers and their managers?  Who runs that outfit?  Who takes what on deals like this?  What was the harm caused by any wrongful conduct?  What kind of compensation might be appropriate? 

I see no basis for alleging liability of the club, and if proceedings issue in the Supreme Court, I would hope it sends them to a lower court.  The Magistrates Court can award damages up to $100,000, I am told, and no one could get near that here on what is set out above.  Which adds interest to the question of what part of the cake, if any, might be set aside for the lawyers.

‘Sordid’ is the word.  All round.  But make no mistake, five young men are being punished beyond measure, both financially and in their standing in the community, when all that is clearly open on the evidence so far is that they acted stupidly in going out, getting drunk, and dealing with strippers. 

If we were to hang people in this country for being stupid, there may not be many of us left standing.  And this comes to you from a retired lawyer who had to confess at his admission to practise law that while he was a student at Law School, he was thrown into the slammer for the night for giving the coppers some lip when he was as full as a state school.  (It was OK – my folks were away and they did not get to hear about it until I was admitted.)  Have these Swans been any more stupid than I was? 

Or has anyone been more sordid than those ghastly affairs half a century ago, when all the boys at a bucks’ night got full before a stripper arrived with a goon bodyguard and degraded our humanity, so that we all went home, quite probably behind the wheel, bashfully craving a shower to cleanse ourselves of our own beastliness?

Yes, sordid is the word.  Those wishing to put down these young men might, irrespective of their faith, might ask who is fit to cast the first stone.  Helen Garner wrote a book about it.

Finally, in my fifty years or so in the law, I devoted a lot of my practice to acting for or against the press – including thirty years on retainer for the ABC.  I have a very clear view about who holds the balance of power.  I also got used to feeling that I was kicking into a stiff breeze whenever I got before a judge appearing for the press.  Its treatment of this scandal affords me a clear view of the wariness that our judges feel about the press.   They, too, are only human – both  the press and the judges.