From the case involving five Sydney Swans players: Let’s look back at similar cases that once shocked the Australian sports world
A distinguishing feature of Australia’s justice system is that every person is presumed innocent unless and until the contrary is proved before an impartial court.
That allocation of the burden of proof has long been referred to as the “golden thread” running throughout the web of the criminal law. In Australia, the presumption of innocence is inseparable from the criminal standard of proof; that guilt must be proven beyond reasonable doubt. That’s no simple task; nor should it be.
It necessarily follows that it must matter that each of the five Sydney Swans players stood down from active service is presumed innocent of all criminal wrongdoing unless the contrary is one day proved.
So far, that presumption has been honoured almost nowhere outside the courtroom. And there have been no court proceedings because there are no charges and no completed investigation.
Yet it is already the case that the public discourse around the whole mess has assassinated the reputations of people, months and years before any criminal trial might take place.
The facts able to be stated responsibly are few. In the early hours of August 17, following Sydney’s victory over Essendon, a woman reported an alleged sexual assault said to have occurred in a player’s room at the team’s East Melbourne hotel.
Victoria Police’s Sexual Crime Squad commenced an investigation. Two days later, the club stood down five players for breaches of internal behavioural standards concerning late drinking and guests at the team hotel – each player by then identified, photographed and broadcast worldwide.
Contrast that, though, with what the past fortnight’s coverage has actually comprised: claims from unnamed and unauthorised sources, which are untested but nonetheless repeated ad nauseam.
A lawyer’s assertion that more men were present in the room was reported at face value. Another lawyer said that his instructions reflected a scenario that appalled him more than anything else he’d seen in 28 years of professional practice.
Speculation has become so unmoored that Swans head coach Dean Cox was compelled to deny, publicly, that he had been in the room at all.
Opinion writers proceeded directly from allegation to condemnation, and from condemnation to cultural indictment and the idea the Swans had sold their followers a huge lie. Sponsors issued statements of concern; supporters organised symbolic walkouts; the league excluded the five from All Australian selection while describing the exclusion, without even a hint of irony, as independent of the police investigation.
Frankly, these five Swans players have been hung out to dry. They’ve been afforded scant, if any, presumption of innocence in a trial by media, with social media lynch mobs at their absolute worst. And that is me being measured.
What’s occurred doesn’t constitute fair reporting in the circumstances of an ongoing police investigation.
An allegation is a point to be investigated. It isn’t a finding, and its incessant repetition doesn’t convert it into fact.
The naming of uncharged men deserves particular attention because it’s irreversible. No later acquittal, discontinuance or apology restores the anonymity that publication destroyed in an instant, and the five names now attached to these allegations will remain attached to it, permanently and searchably, whatever happens next.
Australian sport has been here before, and past examples are instructive.
In 2009, Manly fullback Brett Stewart – the “face of the game” for that season – was accused of sexually assaulting a teenage girl and suspended by the NRL before any court had heard a word of evidence, and subjected to 18 months of saturation reporting. In September 2010, a jury acquitted him of every charge after deliberating for less than two hours.
In 2004, players from the Canterbury Bulldogs were accused of, effectively, pack rape at a Coffs Harbour resort, then tried nightly on the news for 10 weeks. And that was when MySpace was the nascent social media network of choice, and long before phones had apps.
The DPP ultimately determined there was insufficient evidence to charge anyone, and nobody was ever prosecuted. The club nonetheless lost sponsorship valued in the millions. Supporters were taunted about rapists at matches years later.
When the Dragons forward Jack de Belin was charged with aggravated sexual assault in late 2018, he became the first player to be stood down under the no-fault policy the NRL devised to deal with his situation. He challenged his stand-down in the Federal Court, but failed to have it overturned after the court decided the rule was reasonably necessary to protect the league’s legitimate commercial interests.
Two juries could not agree to convict, with the second acquitting him on one count. The remaining charges were withdrawn. Afterwards, separate criminal proceedings ensued against an investigating officer, relating to the evidence used to prosecute. Jack de Belin was convicted of nothing, yet lost two-and-a-half seasons of his career, even if he was paid throughout.
The no-fault stand-down rule is instructive, precisely because it is lawful; it operates upon charge rather than conviction, and it’s a deprivation calibrated to accusation. The AFL has no equivalent rule of automatic triggering; in the Swans matter, the sanction came under club standards instead – a distinction of form more than consequence for the men concerned.
The international record is littered with examples. Three Duke University lacrosse players, charged with rape in 2006 amid worldwide vilification, were declared innocent by the North Carolina attorney-general in 2007; the postscript was that the prosecutor in charge was disbarred for suppressing exculpatory DNA evidence.
The infamous sexual assault case against Kobe Bryant imploded in 2004. Charges of the same kind against then-Manchester United footballer Mason Greenwood were discontinued in 2023. The pattern isn’t that athletes are never guilty; many are, and are properly convicted by juries and courts upon the consideration of adduced evidence. Rather, accusation and guilt can be conflated while proceedings are on foot, where the stain outlives any exoneration.
It isn’t popular to say that the Swans players should be respected in terms of being afforded a fair process, but it’s the right thing. The system otherwise crumbles.
None of this derogates from two propositions that must be beyond argument: violence against women is abhorrent, and every complainant must be received seriously, investigated diligently and supported properly.
The error, though, lies in supposing those propositions compete with the presumption of innocence, where they occupy different domains. The presumption allocates the risk of error where punishment is proposed; the duty to take complaints seriously disciplines how police, clubs and leagues investigate.
A complaint can be treated with complete seriousness while the accused is treated as innocent, because one governs process and the other governs judgment. It is as illegitimate to invoke the criminal standard to dismiss a complainant as it is to invoke solidarity with complainants to pronounce guilt without evidence.
Accusation travels heavy and on the front pages; where exoneration travels light and in the margins.
Five Sydney footballers are entitled to what our justice system promises every accused person; that conclusions of fact await evidence, and guilt awaits proof.
A justice system is distinguished not by reciting that promise, but by keeping it when the crowd is loudest. It costs the media, and the rest of us, nothing to wait.
SOURCE: THE AGE
https://www.theage.com.au/sport/afl/presumption-of-innocence-the-first-casualty-in-pullman-five-s-trial-by-media-20260827-p60s03.html
