James Horwill cited for stamping

[Bullrush]

For those wishing to bring it up, Paul Cully highlights the clear distinction between this case and the Adam Thomson saga:
Thomson's sanction for a stamp on Scotland's Alasdair Strokosch last November was reduced to one week because of his good conduct at the hearing. But the IRB's own regulations state that no ban can be reduced to beyond the entry point for the offence, which in Thomson's case - stamping - was two weeks.

Actually, from what I read in the Laws, if the judical officer or panel find mitigating circumstances, they can actually reduce the ban to lower than the entry point. It's bloody hard reading some of those Laws though. I've decided that I hate the word 'notwithstanding'!

The IRB actually thought that imposing a 2-week ban was too lenient on Thomson, as reflected in the Appeal panel's decision:

A copy of the decision, released on Saturday by the New Zealand Rugby Union, said Thomson’s suspension had been extended to November 25.
When Thomson was initially cited for standing on Strokosch’s head in the All Blacks’ Test against Scotland in Edinburgh on November 11, he was handed a two-week ban that was later reduced to one week due to his blemish-free record.
However, the IRB lodged an appeal after reviewing the original punishment, believing it was “unduly lenient”.
An independent appeal board of judges Jeff Blackett (England), Pat Barriscale (Ireland) and Jeremy Summers (England), sitting in Wales, did not agree the initial two-week ban was lenient but opposed the one-week reduction.

Now this:

Correct, this was a complete misuse of the appeals process. The fact that the IRB had the legal right to make an appeal does not necessarily mean that they were justified in doing so. The appeal process is not meant to contest 50/50 decisions when you don't get the result that you like, it's meant to overturn clearly wrong decisions.

Who decides if it's 50/50? Plenty of people - Australians included - believe that there was nothing 50/50 about what Horwill did and he should have got a ban. There's absolutely no doubt that his boot contacted with the head and as indicated with the Thomson case, the IRB is trying to take a tough stance on any stamps/tramples to the head.

Personally, I think Horwill and the ARU should really just consider themselves lucky that he wasn't suspended. The IRB did nothing outside the Laws and followed the correct process. The idea that they wanted a 'pre-determined' result is silly.

 

[Craig Riddington]

Well it's probably time that Alun Wyn Jones apologise for all the trouble he has caused so we can move on.

 

[Quick Hands]

Got any proof of that being the IRB's motivation?

Are you saying that they appealed even though they got the result they wanted in the first place?????

Not even the IRB are that ludicrous.

Of course they appealed because they weren't happy with the result.

 

[Quick Hands]

Who decides if it's 50/50?

People watching decide for themselves and the fact there is much disagreement would indicate that it was 50/50. The fact the 2 Independent Judicial Officers have come to a conclusion that there was insufficient evidence to suspend the player would confirm that it was something less than 50/50.

 

[gel]

Who decides if it's 50/50? Plenty of people - Australians included - believe that there was nothing 50/50 about what Horwill did and he should have got a ban. There's absolutely no doubt that his boot contacted with the head and as indicated with the Thomson case, the IRB is trying to take a tough stance on any stamps/tramples to the head.

Personally, I think Horwill and the ARU should really just consider themselves lucky that he wasn't suspended. The IRB did nothing outside the Laws and followed the correct process. The idea that they wanted a 'pre-determined' result is silly.

With all due respect - Horwill's case has been tried twice by impartial reviewers (one of whom was actually not impartial being from the OPPOSITION team's country) using reportedly significantly more evidence than you and I have access to and you are still sticking to "He's guilty".

Is it possible that you could be wrong?

 

[Dan54]

The BIL didn't cause the appeal but I would be surprised if the pressure thr British and Irish press put on the situation helped push the IRB over the edge.

I would be just as suprised if they did Scotty, c'mon I think you have to admit noone knows if the press did push them to do it, but it sure makes it good for pushing the everyones against us, why it so hard for us to win. I'm a kiwi, and I admit the pom press have got their stirrers or reporters that report on whatever is in their brain at that time instead of facts, but I also know NZ have them and I can assure you Aus have got just as many too>>

 

[ACT Crusader]

With all due respect - Horwill's case has been tried twice by impartial reviewers (one of whom was actually not impartial being from the OPPOSITION team's country) using reportedly significantly more evidence than you and I have access to and you are still sticking to "He's guilty".

Is it possible that you could be wrong?

Just because one of the reviewer's was from a certain country does not mean they are impartial when it comes to administering due process. If there is evidence that this same reviewer has not demonstrated an evenhand approach or has not been fair minded then perhaps he is not impartial. But there isn't that, so I don't think you can claim that.

 

[ACT Crusader]

Are you saying that they appealed even though they got the result they wanted in the first place?????

Not even the IRB are that ludicrous.

Of course they appealed because they weren't happy with the result.

It's about due process based on the regulatory framework that they are bound by.

Did the IRB come out and say they weren't "happy" or that Horwill deserves a ban and that is why we are apealling? No they didn't. They are able to seek independent review of a decision and they did. There was no transcript of the proceedings so we don't know the actual points of law that were raised by the IRB, but what we do know is that further evidence was presented and no points of law or principles (that's the language that was used) were found to be in breach with the initial decision.

I know this isn't a court of law, but this is not dissimilar to the ability to seek judicial review of judgement if there are questions over the application of law in a decision.

I have no issue with Horwill saying after that he feels vindicated given the public pressure he was under.

 

[gel]

Just because one of the reviewer's was from a certain country does not mean they are impartial when it comes to administering due process. If there is evidence that this same reviewer has not demonstrated an evenhand approach or has not been fair minded then perhaps he is not impartial. But there isn't that, so I don't think you can claim that.

Good point. I will remove that part and now ask you the exact same question as well:

With all due respect - Horwill's case has been tried twice by impartial reviewers using reportedly significantly more evidence than you and I have access to and you are still sticking to "He's guilty".

Is it possible that you could be wrong?

.

 

[It is what it is]

Stomp? Here's a stomp

 

[churchills cigar]

With all due respect - Horwill's case has been tried twice by impartial reviewers (one of whom was actually not impartial being from the OPPOSITION team's country) using reportedly significantly more evidence than you and I have access to and you are still sticking to "He's guilty".

Is it possible that you could be wrong?

I will be writing a comprehensive piece on this soon, however, in summary, in normal criminal law there is no appeal process to an acquittal. The only appeals available to the crown , in this case the IRB, are against sentence.
However the IRB is an association so they can effectively have whatever rules they choose, so there is no claiming 'unfair' in the event of this type of appeal.
Essentially, unions who agree to the IRB term are bound and as such their rules and by laws are sacrosanct.

 

[It is what it is]

I will be writing a comprehensive piece on this soon, however, in summary, in normal criminal law there is no appeal process to an acquittal. The only appeals available to the crown , in this case the IRB, are against sentence.
However the IRB is an association so they can effectively have whatever rules they choose, so there is no claiming 'unfair' in the event of this type of appeal.
Essentially, unions who agree to the IRB term are bound and as such their rules and by laws are sacrosanct.

What's your hourly rate?

 

[gel]

I will be writing a comprehensive piece on this soon, however, in summary, in normal criminal law there is no appeal process to an acquittal. The only appeals available to the crown , in this case the IRB, are against sentence.
However the IRB is an association so they can effectively have whatever rules they choose, so there is no claiming 'unfair' in the event of this type of appeal.
Essentially, unions who agree to the IRB term are bound and as such their rules and by laws are sacrosanct.

I'm having a bit of difficulty understanding that response to my post actually.

I have not made a claim about the process being unfair.

I have not made a claim about whether what the IRB did would be legal or not.

 

[ACT Crusader]

Good point. I will remove that part and now ask you the exact same question as well:

With all due respect - Horwill's case has been tried twice by impartial reviewers using reportedly significantly more evidence than you and I have access to and you are still sticking to "He's guilty".

Is it possible that you could be wrong?

.

gel I haven't claimed Horwill's innocence or guilt or that he got lucky or was vindicated etc, so not sure where I could've been wrong.

My posts have mainly questioned some of the views expressed about the process and the role of the IRB. As I posted earlier I wish Horwill well for the weekend. Nothing more, nothing less.

 

[gel]

gel I haven't claimed Horwill's innocence or guilt or that he got lucky or was vindicated etc, so not sure where I could've been wrong.

My posts have mainly questioned some of the views expressed about the process and the role of the IRB. As I posted earlier I wish Horwill well for the weekend. Nothing more, nothing less.

My apologies - you didn't say anything about it. I had mistaken you for one of the other posters (my bad).

 

[Lindommer]

gel, ACT Crusader, I presume you're both aware of rule 10. You're not!? Best to go and have a good read.

 

[smartcooky]

With all due respect - Horwill's case has been tried twice by impartial reviewers (one of whom was actually not impartial being from the OPPOSITION team's country) using reportedly significantly more evidence than you and I have access to and you are still sticking to "He's guilty".

Is it possible that you could be wrong?

He is wrong. In his original decision, Nigel Hampton QC (Quade Cooper)'s stated that foot contacting head unintentionally at a Ruck was not an infringement under ruck law. The whole decisison is available here

http://www.irb.com/mm/document/tournament/home/02/06/80/23/horwill-decision.pdf

Here are the relevant bits, with my emphasis and numbered for discussion after this extract...

5.5 The evidence as to how this contact between right foot and left eyelid occurred is less clear, however.

5.6 Watched in slow motion (even frame by frame) and seen in isolation, certain parts of some of the nine video-clips available*1 to me, might seem to show what could be thought to be an act of deliberate stamping or trampling by the Player.

5.7 I warned myself about the possible misleading effects that such slowing down could have. For that reason all the clips were replayed, before me, at normal speed as a check. I formed the view that, if only slow motion versions were watched, it was reasonably possible that one could be misled as to what had occurred and as to how the incident took place.

5.8 With nine video-clips available to me, I had a deal more than the Citing Commissioner had*1, with such additional footage, amongst other things, showing the incident from different angles and perspectives than those which had been available to the Citing Commissioner. I was, as a consequence, in a position of some advantage over that of the Citing Commissioner.*1

5.9 I listened with great care to the oral testimony, especially that from Mr Wyn Jones and from the Player. I formed the view that each of the men were truthful in his recollection of events.*2

5.10 In deliberating, I re-scrutinised the video footage in the light of all the evidence, but especially the evidence of those two players. I was able to reach certain conclusions as to how the contact between boot and eyelid may have occurred.

5.11 As a starting point, I reminded myself, in the context of this incident which took place at a ruck, of IRB Law Ruling 1:2005 “…a ruling with regard Law 16 – Ruck.”

5.12 That Ruling, at Clause 4, contains this question and answer: “…would inadvertent or unintentional contact with players in a ruck as an incident of legitimate rucking for the football (reckless and patently dangerous rucking apart) be considered legal and within the Laws of the Game? Ruling – Yes.”

5.13 That Ruling is a useful guideline with its reference to inadvertent or unintentional contact and to reckless and patently dangerous rucking. Useful, even though the Player maintains that he was not engaged in actual rucking*2 at the time of the incident (and I found that I could not reject his account as to that as impossible or implausible, on the balance of probabilities*3).




5.14 I will come to the Player’s account, in some detail, shortly. But, with that guidance from the IRB Ruling in mind, I concluded that, on the balance of probabilities*3 and on a full review of all the evidence, I could not find that the act of the Player’s boot contacting with the BIL player’s face was intentional or deliberate

1. Nine video clips. We only saw one, the one the CC used to cite Horwill. Clearly, all of us have been judging what happened on much less than all the available evidence.

2. He decided that both players were truthful. Horwill never claimed he was rucking for the ball, a statement which could have put him at a disadvantage w.r.t. Law 16.3 (f)

3. Appeal. If the iRB claimed that Nigel Hampton did not make his decision on the balance of probabilities, then they clearly did not read his decision properly.

I suspect (predict even) that when Graeme Mew QC (Quade Cooper)'s decision comes out, it will say much the same, and show that the iRB were entirely misguided in their appeal. Here is what Mew said about the appeal

"for the appeal to succeed the IRB would have had to establish that there was some misapprehension of law or principle by the judicial officer or that his decision was so clearly wrong or manifestly unreasonable that no judicial officer could have reached the conclusion that he did."

 

[Bairdy]

Just one final thought on this: I'm not an expert on law as some others purport to be, but I would say that the IRB have opened a door that may not be closed. I don't think Horwill should have got off on the premise that it wasn't deliberate or that there was no malice in the stamp.

He should have been given 2-3 matches off (or however long the entry-level punishment is for a stamping). Like a tackle that goes wrong and turns into a spear, you have a duty to not act carelessly dangerously, IE. in this case, stomp on people's heads at rucks or on players on the bottom of a maul. The same reason why I think Farrell should have been cited.

Do I think this precedent will enable players to just suddenly go in to a free for all and use Horwill's case to get off? No, but I wouldn't be surprised if 'accidentally stamping' on people's heads at the bottom of rucks and mauls becomes more prevalent, and I don't think anyone wants to see rugby painted as the sport for thuggery.

Horwill being available for the Wallabies will be a massive advantage though, and I'm delighted he can play, not that he got off.

 

[churchills cigar]

Many are aggrieved that the IRB launched the appeal against James Horwill's acquittal of stomping.
In conventional law, where the law maker (the crown) prosecutes a person, it is commonly referred to as criminal law, as opposed to civil law where people or corporations prosecute each other. These are generalisation so please, pedants don't come back and point out the fineries.
In criminal law, when the accused is found not guilty, the crown generally does not have right of appeal, you are free to be on your way. The only appeal open to the crown in such cases is against the sentence and since a sentence can only be imposed in a finding of guilty, the appeal is clear cut. If you get off, you are free.
In Horwill's case, it is essentially a criminal matter.
The IRB regulations set out the grounds where someone can be brought before the tribunal and for all intents and purposes the hearing are held under the normal rules of evidence and procedure.
Regulation 17 sets out the grounds for appeal and reg 18 sets out the procedure of the appeal. In the case of the IRB they have a provision for the IRB (crown/ lawmaker) to appeal along with other possible appellants.
Where this differs from conventional law is the IRB has the power to appeal an acquittal.
This is because the IRB is essentially what's referred to as an 'Association'. In normal life we are bound by both common law ( court decisions) and formal law ( written statute) but, an association can and does make their own rules. These rules are generally not penetrable. If you want to be a member, you abide by the rules/laws of the association, and courts over the centuries have upheld this right so often it's nearly pointless to fight them. Many have tried and most have failed. Even political parties are encompassed by this.
So what can you do. Basically nothing. As I said, if you want to be a member of such an August group of people, you abide by their rules.
What is similar if not the same as 'normal law' is that the proceedings must abide by the usual rules of evidence, judicial discretion and witness statements.
Hence, the primary finder of fact in the first hearing had to acquit Horwill, he could not impose his own belief of intent where no evidence exists. The appeal had to follow the rules and as no judicial error of law occurred the finding was a forgone conclusion, EXCEPT additional evidence could be called, but as none existed to contribute to guilt it had to be a denial of the appeal.
All that can be done is for members to lobby the IRB to modify the regulations to remove the appeal where a player has been found not guilty.
As for some saying its a lottery, it really isn't. The lottery perception arises where there is a guilty verdict and the sentence(s) are inconsistent. Generally, guilty or not guilty decisions follow due process and legal arguments- they are predictable based on evidence.

 

[It is what it is]

Was Horwill charged with 'stamping' or 'stomping'?
Meanwhile, here's a shot of Greg Martin 'stamping