In the matter of an appeal by Serge Betsen (the “Player”) from the decision of the Judicial Officer dated 20 November 2003
Appeal Committee:
Mr Graeme Mew(Chairman)
Dr. Guillermo Tragant
Mr. Michael Goodwin
Player (France): M. Serge Betsen
Team Manager: M. Jo Maso
Designated Disciplinary Official: Mr. Darren Bailey
Assisting Legal Advisor: Mr. Hugh FitzSimons
Interpreter: M. Gilles Fabre
Interpreter: Sr. Frankie Deges
Decision of Appeal Committee
1. Serge Betsen (the “Player”) appeals against the decision of the Judicial Officer, Mr. Brian McLoughlin, dated 20 November 2003, wherein the Player was found guilty of a violation of law 10.4(c) in that he kicked an opponent for which offence the Judicial Officer suspended the Player from all forms of rugby for a period of six weeks.
2. The hearing of the appeal was conducted in Sydney on 23 November 2003. The Player attended the hearing in person and was assisted by M. Jo Maso, the team manager of the French rugby team.
3. With the concurrence of the Player and his representative the appeal was conducted on the basis of the record before the Judicial Officer. No request was made by the Player to adduce new evidence at the appeal hearing. The grounds of appeal filed by the Player asserted errors of fact and law which the Player submitted had been made by the Judicial Officer.
4. Members of the Panel had an opportunity to review the record of proceedings before the Judicial Officer, including the video tapes which had been considered by the Judicial Officer, and to hear further submissions and explanations from the Player and his representative.
5. At the conclusion of the hearing, the Appeal Committee announced its decision to deny the Player's appeal with reasons to follow. These are the Appeal Committee's reasons.
6. The Judicial Officer's decision included the following conclusion:
The allegation set out in the Citing Commissioner's report is that Mr Betsen kicked his opponent. Mr Betsen acknowledges in the course of his evidence that his boot made contact with the head of Matt Dawson and there was no objection to the admission of the medical report of Dr Sharron Flahive dated 18 November 2003 which stated that following the incident Mr Dawson received a 2cm superficial laceration which required suturing.
He stated in his defence that he had no intention to hurt or injure the opposition player and that his actions were as a result of his efforts to roll away from the tackle and not incur a sanction in the course of which he was cleaned out by 2 other members of the opposition team causing his right ankle and knee to be wedged temporarily and in an effort to release himself from that position tried to push himself away with his feet.
From the evidence I have heard and the submissions made by Mr Maso and a viewing of the video on a number of occasions, I make a finding of fact that there was contact with Mr Dawson by Mr Betsen with his boot on 2 occasions virtually simultaneously.
The second contact was with the head of Mr Dawson causing the injury to him already referred to above. I am not satisfied that it was a deliberate act, particularly in light of the fact that Mr Betsen stated in his evidence that he had no intention to hurt or injure anyone.
However, neither am I satisfied that it was accidental and in my opinion it was a reckless act and his actions carried an obvious risk of a more serious injury than that which occurred and which was referred to by Mr Maso in his submissions to me. Mr Maso mentions the fact that no complaint was made by the English players at the time, however, it is noted in the report of match referee, Paddy O'Brien, that reference is made to the fact that immediately following the incident Matt Dawson said to him "did you see that?".
Mr Maso also makes reference to the fact that subsequent to the proceedings there was no complaint by the English management. However, I do not believe this is relevant to this hearing and accordingly, conclude as a matter of fact that Serge Betsen kicked Matt Dawson on the head. Having reached that conclusion and applying the standard of proof prescribed by rule 8.4 of the Tournament Disciplinary Programme, I find the Citing Complaint to be proved.
7. Where an appeal is based solely on the record of the proceedings before the Judicial Officer, an Appeal Committee should defer to the Judicial Officer's findings in the absence of any manifest injustice resulting from his conclusions in respect of evidence which he was in the best position to assess.
8. The Judicial Officer heard evidence from the Player, from M. Maso and from the Citing Commissioner. He also had before him various other reports and letters. In our view the Judicial Officer was in the best position to assess the credibility of the witnesses and to otherwise weigh the oral evidence received by him. On the other hand, with respect to the videotape and purely documentary evidence, the Appeal Committee is in no better or worse position than the Judicial Officer to consider and analyse such evidence. Accordingly, in the absence of any manifest error or injustice, the Appeal Committee has deferred to the Judicial Officer's findings in so far as they relate to his assessment of the oral testimony that he received but have considered ourselves to be at liberty to make our own assessment of the videotape and other documentary evidence.
9. The Player raised two principal grounds of appeal, namely;
(a) that the decision of the Judicial Officer was wrong in fact and was not supported by the evidence or, alternatively, was contrary to the weight of the evidence; and
(b) that the decision of the Judicial Officer was wrong in law and was not arrived at pursuant to the Laws of the Game or the Rules of Procedure.
10. In the grounds of appeal filed by the Player, some nineteen paragraphs of particulars are provided. However, at the hearing of the appeal the submissions of the Player focused on the following points:
(a) The Judicial Officer misconstrued the actions of the Player which were directed solely at avoiding being penalised for failing to roll away without intent to injure by kicking or otherwise;
(b) The Judicial Officer's conclusion that the Player had not intended to kick his opponent was inconsistent with the finding that the Player had been reckless;
(c) Law 10.4 which deals with dangerous play and misconduct does not incorporate or refer to the concept of "reckless" play;
(d) Intent must be shown and proved as an element of the offence to the requisite standard of proof to support a finding of a breach of law 10.4(e)
(e) In the event that the Player was guilty of dangerous play and misconduct the penalty imposed by the Judicial Officer was manifestly excessive and unreasonable in all of the circumstances.
11. The Appeal Committee spent considerable time reviewing with the Player and his representative the videotape evidence. The Appeal Committee also reviewed the other evidence before the Judicial Officer concerning the incident. Having done so, the Appeal Committee was unable to conclude that the Judicial Officer had made any reversible error in respect of his assessment of the evidence .
12. During the course of submissions it was conceded on behalf of the Player that there are circumstances in which a Player who conducts himself in a reckless manner may be found guilty of dangerous play notwithstanding a lack of intention on the Player's part to commit the offence. Specifically, it was conceded that an unintentional kick could nevertheless be reckless in appropriate circumstances. However, the Player, in the context of this appeal, submitted that his conduct was not reckless and, hence, that as his conduct was also unintentional, it would be illogical to find him guilty of dangerous play by kicking an opponent.
13. As previously indicated, we find no reason to disagree with the Judicial Officer's assessment of the evidence and do not, accordingly, find the Judicial Officer's conclusions that the Player engaged in reckless but unintentional conduct to be inconsistent with his finding that the Player committed the offence of dangerous play by kicking an opponent. Previous rugby decisions also make it clear that intent is not a necessary element of offences of dangerous play and misconduct under Law 10.4.
14. With respect to the issue of sanction, the Appeal Committee considered alternative approaches to that taken by the Judicial Officer but concluded that the penalty imposed by the Judicial Officer of suspension from rugby for six weeks was not manifestly unreasonable or unjust. The Appeal Committee, in this regard, considered, as did the Judicial Officer, that the entry point under the Tournament Disciplinary Programme, for an offence involving a kick to an opponent's head, is eighteen weeks. Clearly, therefore, the Judicial Officer in setting a suspension of six weeks had already attached considerable weight to the mitigating factors put forward by the Player as well as the Player's prior good record.
15. For the foregoing reasons the Appeal Committee dismisses the Player's appeal. The deposit of £1,000 lodged on the Player's behalf is forfeited. The Player will otherwise be responsible for his own costs, as will the other participants in this appeal.
Dated: Sunday, 23 November 2003
Graeme Mew
Chairman
Appeal Committee