Graeske v R (2015) H&FLR 2015-36

Joshua Graeske v The Queen (2015) H&FLR 2015-36

Court of Appeal of Victoria

28 August 2015

Coram: Maxwell P and Whelan JA

Appearing for the Appellant: Ms CA Boston and Mr A Imrie (instructed by Melasecca Kelly & Zayler)
Appearing for the Respondent: Ms D Piekusis (instructed by Ms V Anscombe, Acting Solicitor for Public Prosecutions)

Catchwords: Australia – Victoria – Australian football – assault – sentencing.

Facts: On 14 July 2012 the defendant (then aged 21) was playing football in an amateur match.  During the match he pulled an opponent to the ground and punched him a number of times, causing significant facial injuries.  He was charged with recklessly causing serious injury (Crimes Act 1958, §17).

The defendant pleaded guilty to the charge and was sentenced to be imprisoned for three years, to serve a minimum of two years: DPP v Graeske (County Court of Victoria, Judge Wischusen, 7 November 2014, unreported).  During the course of the hearing the Sentencing Amendment (Emergency Workers) Act 2014 commenced, the effect of which was (in part) to allow terms of imprisonment to be combined with community corrections orders. Due to an apparent oversight, neither the prosecution nor the defence addressed these amendments in their submissions to the court.

The defendant appealed against the sentence imposed.

Held: Allowing the appeal, setting aside the original sentence and re-sentencing the appellant, that –

1. Because no submissions were made in light of the Sentencing Amendment (Emergency Workers) Act 2014, the trial judge inevitably misdirected himself as to the available sentencing options.

2. Noting the appellant’s youth, difficult personal history and other factors, a sentence of imprisonment for one year followed by a community corrections order of three years (geared to address the appellant’s mental health and drug problems) was appropriate


The Court’s judgment is available here.

McNamara v Duncan (1971) H&FLR 2014-5

McNamara v Duncan (1971) H&FLR 2014-5

Supreme Court of the Australian Capital Territory

6 April 1971

Coram: Fox J

Appearing for the Plaintiff: J.B. Norris (Instructed by Gallen, Guild & Johnston)
Appearing for the Defendant: I.A. Curlewis (Instructed by Davies, Bailey & Cater)

Catchwords: Australian Capital Territory – Australian Rules football – striking in the course of tackle – against the rules – consent

Facts: The parties were playing on opposing teams in an Australian rules football match on 15 September 1968. The court found that the defendant deliberately struck the plaintiff in the course of tackling him, causing a significant head injury. It was common ground that intentionally striking the head of a player was against the rules, and that it would normally result in a free kick to the opposing team and the offending player being reported.

The defendant raised a defence of consent (volenti non fit injuria).

Held: upholding the plaintiff’s claim, that it could not reasonably be said that the plaintiff consented to the physical contact which was deliberate and against the rules. Although intentional forcible contact causing ‘sensible hurt’ was part of this code of football, it found justification in the rules and usages of the game. Acts done solely or chiefly with the aim of causing harm, however, were not justified by the rules.


Judgment reported at 26 ALR 584 (interestingly, the report in the Australian Law Reports was prepared by Susan Crennan – then of counsel – who was in 2005 appointed to the High Court of Australia).

Smith v Emerson (1986) H&FLR 2014-3

Smith v Emerson (1986) H&FLR 2014-3

Supreme Court of the Australian Capital Territory

23 May 1986

Coram: Miles CJ

Appearing for the Plaintiff: Not recorded
Appearing for the Defendant: Not recorded

Catchwords: Australian Capital Territory – Australian Rules football – deliberate punch – contact sports – consent – aggravated or exemplary damages.

Facts: The plaintiff and defendant were involved in two incidents while playing on opposite sides of an Australian Rules football match on 13 May 1984. In the first incident the plaintiff alleged that after he had tackled the defendant, the defendant punched him a glancing blow just under his left ear. The defendant alleged that he had simply pushed the plaintiff away after that person stepped on his foot. In the second incident the plaintiff alleged that the defendant had run at him and struck him while he (the plaintiff) was shepherding a team-mate. The plaintiff’s jaw was broken in this incident. The defendant alleged that he had simply tried to push the plaintiff’s right arm downwards and upper body to the left.

It was agreed that the actions the defendant claimed to have performed were within the rule of the game. The court noted that the incidents alleged by the plaintiff – deliberate punches to the head – were outside the rules.

Held: (1) Upholding the plaintiff’s claim, that it was well established that players of contact sports consent to physical contact (which would normally be an assault) as long as the acts are within the relevant sport’s accepted rules. The Court found the plaintiff’s case more probable than that of the defendant and therefore his claim succeeded.

(2) Rejecting the claim for aggravated or exemplary damages, that while the defendant’s actions were assaults, they did not go so far beyond acceptable conduct on a football field that there was a need for punishment or making an example of the defendant.


The Court’s judgment is available here.