Sydney’s Luke Parker has failed his last-ditch bid to downgrade a six-game bump ban at the VFL Appeals Board.
The Swans argued the VFL Tribunal made an error of law when they upgraded Parker’s collision with Frankston’s Josh Smith from the minimum four games up to six.
Their main point of contention was around carelessness, comparing Parker’s bump to the pre-season hit by St Kilda’s Jimmy Webster which copped seven games.
Watch every game of every round this Toyota AFL Premiership Season LIVE with no ad-breaks during play on Kayo. New to Kayo? Start your free trial today >
Webster’s hit was described as on the “highest end of carelessness” by the AFL Tribunal and the Swans disputed this, saying Parker’s actions before the accidental head knock which fractured Smith’s eye socket and cheekbone were on the lower end.
They argued the Tribunal took into account an irrelevant consideration when judging carelessness.
But the VFL argued the Tribunal considered all relevant factors in its decision and was within its rights to hand down the six-game suspension.
The Appeals Board found the Tribunal was within its rights to make the decision, and it was open to the Tribunal to consider the totality of the evidence when saying the carelessness was not at the lower level, as put forward by the Swans.
They also argued the ban would have needed to be completely and utterly excessive to be thrown out on that basis, and it was not.
6-game ban to end Parker’s Swans career? | 02:52
In the arguments, Swans lawyer Duncan Miller confirmed the club was appealing on the basis of an error of law by the VFL Tribunal.
“The Tribunal erred in bringing into the equation of the careless conduct aspect of its delierations, expressly, considerations about the severity of the injury or the resultant impact,” Miller said.
“That’s not to say that those matters are irrelevant – they are relevant to the point of impact.
“They erred legally having regard to that consideration in a way that meant the Tribunal did not engage with what was the true material at the crux of the appeal – which was whether the conduct which was said to be, charged as and agreed to be careless was at the lower, mid or upper level of carelessness.”
He added: “It essentially double-dipped with regards to severity of impact, when grafting that onto the threshold of the conduct involved.”
The Swans were seeking a four-match ban instead of the given six.
They cited Jimmy Webster’s seven-game ban as a comparison, saying the Tribunal called that incident “at the highest end of carelessness”, and focused on that element as reason for the lengthy suspension.
“The severity of the injury is already built into the impact,” Miller explained.
“The (VFL) Tribunal focused, in the carelessness consideration, on outcome.”
Appeals Board chair Will Houghton pointed out the injuries were more severe in this case than the Webster case, to which Miller replied: “to focus on that would be to repeat the error”.
The Swans said Parker’s incident “wasn’t in the realm of Webster’s”.
The chair said he was struggling to see how some of the Swans’ arguments applied to the ‘error of law’ claim, saying they agreed the act was careless with high contact and severe impact.
The VFL lawyer Morgan McLay said it was clear the Tribunal had taken the full totality of the incident into account.
“This was not based on the elements of the charge, it was based on the sanction which should be imposed for the contact,” McLay argued, saying the level of carelessness could be relevant if the careless grading was in dispute, but it was not in dispute.
The VFL argued the Tribunal was well within its rights to make the decision it made, and therefore had not made an error of law.
The incident was graded as careless conduct with high contact and severe impact, and while at the Tribunal the Swans asked for the minimum ban of four weeks to be downgraded due to the “exceptional and compelling circumstances” of Parker’s record, they failed.
“Parker has a prior history, with some nine sanctions being imposed. We find he’s not a player that qualifies as a verifiable example of exemplary disciplinary history,” the Tribunal found.
The VFL Tribunal disagreed that Parker’s hit was “at the lower end of careless” and agreed with the league’s request for a six-match ban.
Smith will miss some 10 weeks of footy having suffered a concussion, and multiple fractures to his eye socket and cheekbone requiring surgery.
VFL Appeals Board reasons
It was open to the Tribunal to take into account the nature and severity of the injuries suffered by Smith and the number of matches for which he would now be unavailable.
The Tribunal was bound to consider the totality of the evidence in coming to its determination on sanction.
It was open to the Tribunal after considering the totality of the evidence that the carelessness was not at the low level by Parker.
On sanction imposed being manifestly excessive:
This board is not and could not be in a position to impose some different sanction even if it disagreed with the sanction imposed, unless Parker could demonstrate the sanction imposed was so unreasonable or plainly unjust.
This could only be demonstrated if the six-match sanction was shown to be so out of the range of sanctions that could’ve been imposed.
We consider that has not been established.