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Keep your eyes on the legal ball in Sam Kerr case

Ignore the uninformed opinions swirling around Matildas captain Sam Kerr’s alleged racial abuse of a London police officer, says Morry Bailes, and focus on the legal factors behind what might not be a straightforward trial.

Mar 21, 2024, updated Mar 21, 2024
Photo: AP/Rick Rycroft

Photo: AP/Rick Rycroft

You would have thought by now we had learnt the peril of publicly commenting on legal proceedings instituted to prosecute a person for an alleged wrongdoing before the verdict is known, but evidently no lessons have been learnt.

All number of people expressing all types of opinion have been aired since the charge laid against Sam Kerr, the Matilda’s captain and Chelsea striker.

What is alleged against Kerr we may all be familiar with but by way of reminder, the offence allegedly committed arises under section 4A of the U.K. Public Order Act 1986. It is said by the prosecution to be an aggravated offence because it included an allegedly racist overtone. Kerr is claimed by the prosecution to have said to a police constable the words ‘stupid white bastard’, although those allegations are in part denied by Kerr. The relevant parts of the offence itself reads as follows:

4A Intentional harassment, alarm or distress.
A person is guilty of an offence if, with intent to cause a person harassment, alarm or distress, he—
(a) uses threatening, abusive or insulting words or behaviour, or disorderly behaviour,

(b)………….

(2) An offence under this section may be committed in a public or a private place, except that no offence is committed where the words or behaviour are used, or the writing, sign or other visible representation is displayed, by a person inside a dwelling and the person who is harassed, alarmed or distressed is also inside that or another dwelling.

(3) It is a defence for the accused to prove—

(a) that he was inside a dwelling and had no reason to believe that the words or behaviour used, or the writing, sign or other visible representation displayed, would be heard or seen by a person outside that or any other dwelling, or

(b) that his conduct was reasonable.

(5) A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding 6 months or a fine not exceeding level 5 on the standard scale or both.

The ensuing commentary has been anything but informed. First, we have a call for Sam Kerr to be stripped of the captaincy of the Matilda’s ostensibly for failing to tell Football Australia in a timely way that she had been arrested. This is simply a specious opinion to voice, absent a knowledge of the contract of employment with Football Australia itself and its terms, as well as the relevant code of ethics and regulations that dictate what is, and what is not, subject to report to a sporting body.

As a lawyer, anytime one acts for a client charged with an offence we address the question of what needs to be reported to an employer. This forms part and parcel of general advice, so it would seem incomprehensible that a person in Sam Kerr’s position would not have had their mind turned to it by their lawyer and to not have acted on the lawyer’s advice. Further, the charge itself was not laid for a long time after the alleged offence, making it very likely that even if there was an obligation to report, that that obligation arose once the charge had been laid and a summons served on the accused.

As a side issue, the delay in laying the charge has also resulted in the defence indicating to the court an intention to argue that proceedings laid this belatedly constitute an abuse of process.

Next, we have such penetrating observations by such as the WA Premier Roger Cook that notwithstanding the words allegedly uttered by Kerr, they were in his opinion not racist and that she is in fact a great West Australian. Just how the opining by the Premier of WA assists Kerr is unclear. The question of the remark being racist or not is however an interesting one. It may also be relevant that Kerr’s grandmother is Indian.

Having acted for correctional officers for many years, there came a point where a representative group instructed me to advise them about what could be done about their being repeatedly insulted by black prisoners invoking the use of the word ‘white’. Further to that the officers were at pains to make clear that if the same insult were directed at a prisoner who was black using the word ‘black’ they would be found to be racist under Australian law and likely disciplined, and rightly so.

I initiated a complaint to the Human Rights Commission. The complaint first failed on the basis that a prison is not a public place. I thought that finding sidestepped the issue so when an insult of the same nature using the word ‘white’ arose in a public place, namely the prison visits area, a further complaint was lodged. The finding on that occasion was that as a majority of Australians are white, the comment did not amount to racism. That finding was decades ago and I am unsure if the same ruling would be made today. It was also a finding in Australia. The U.K. is an entirely different jurisdiction with its own law and jurisprudence.

Next, we have such illustrious contributions such as the word ‘bastard’ isn’t an insult. Firstly, this misses entirely the point of one aspect of the prosecution case against Kerr, in particular that it is the word ‘white’ that is the aggravating element of this alleged offence. Second, it ignores the fact that whether the word ‘bastard’ was uttered by Kerr or not is in contention; she denies using the word. Further, it relies on an understanding of the Australian usage of the word, when the place of the alleged offence was the other side of the globe, with different law and different societal standards and expectations.

My sister-in-law in London thinks that our calling the New Zealanders ‘kiwis’ is an insult. I suggested to her that in order to comprehend what a real insult is in Australia she may have to attend a cricket match at the MCG. We Adelaideans are far too polite to give her a proper demonstration of Australian sledging. Finally, as I shall come to later, the offence is not based on words alone and may be made out if an accused uses no words at all. That is because the offence is grounded on either the words or the behaviour of the accused person, or both.

How then should we respond when a person is charged with an alleged offence, in this case Kerr? Four considerations should come to mind.

First, what is the offence and what are the elements of the offence? Any commentary without regard to what amounts to the offence alleged is essentially worthless. What we have in the Kerr case is in effect a disorderly conduct charge. Walk around the city late on a weekend and I’m sure you’ll recognise it when you see it. Police have to put up with it all the time so it is hardly surprising that that they occasionally lay a charge of this nature, albeit it is for them to prove. Along with a consideration of how the elements of the alleged offence are to be proved, cases that have previously been decided regarding the offence concerned help us interpret whether the conduct alleged amounts to the commission of the offence.

In this matter there is also a question of whether, if the aggravating racist element is not proved, the basic offence, ‘causing intentional harassment, alarm or distress’, has nonetheless been made out. And it is not just the words. The whole conduct and behaviour of the accused on the night in question will be taken into account, because that is what the section of the relevant Statute says. The offence is constituted of: ‘threatening, abusive or insulting words or behaviour, or disorderly behaviour…’. That is the law that the British Parliament made, and Australian sensibilities are most assuredly not part of the test.

Second, one must consider what defences are available to an accused person. Aside from general defences that are available to many alleged offenders, here we have a specific provision of reasonableness as a defence. Notwithstanding anything alleged against the accused if the conduct was ‘reasonable’ the offence is not proved. What do we know of the evidence that may yet emerge in this case? Defence counsel has expressly made submissions about the necessary length of the trial on the basis that there is available to the prosecution and defence, CCTV footage, and other evidence not yet before the court. What that might tell us of the conduct of the police and in turn the conduct of the accused person, we cannot know. Is that not all the more reason that we should withhold commentary in this matter until the facts are actually known, and disregard anything that until that point purports to amount to a conclusion about this or about that? How could we possibly know? Commentary such as that is undignified as it is worthless. Freedom of expression we may have, but a great deal of it remains undeniably vapid.

Third, and further to the point above, in order to consider whether alleged conduct amounts to an offence there must first be findings of fact made by the court. Commentators who are judging the supposed words and actions of Kerr without an understanding that the facts are neither proved and indeed remain in dispute are frankly just silly. They are a total waste of ink, paper or digital copy, and time. In this case the very words that the prosecution case say were uttered by Sam Kerr are at least in part denied by her.

Some have even questioned why this justifies a trial. The abject ignorance of such printed commentary ought to be an embarrassment to the author of the remarks. It is a trial because Kerr has pleaded not guilty and asked for a trial. A trial is the only way to determine whether an offence alleged against a citizen is proved. If the citizen denies wrongdoing, of course there has to be trial. It’s a bit like the shouting Alex McAvoy in Pink Floyd’s Another Brick in the Wall: ‘if you don’t eat your meat, you can’t have any pudding’ (forgive the slightly tortured analogy). If the pudding is the outcome, the meat is the trial. ‘How can you have pudding if you don’t eat your meat’? We don’t guess outcomes in the law, we base them on evidence, but you’d hardly know that reading some of literary detritus out there.

What may be intended by these ill-informed remarks could be whether the prosecution in this case is in the public interest. That is another question altogether, but if we are to imply from these commentaries that we are a bit peeved that Brit police have charged an Aussie sports superstar with an offence that some see as trifling, then be reminded that before the law all are equal, and secondly that this offence carries with it a potential term of imprisonment, so one can be assured it is not a trifling matter for Kerr. There also remains the question of whether if convicted she can remain in the U.K. and pursue her sporting career, so it is no doubt sobering for her, no pun intended.

Finally is the lesson that in spite of recent examples of the press meddling in criminal prosecutions before they are tried, and the hysteria of opinion expressed when a person of fame is charged, we have yet again entirely, it seems, cast aside the most basic of rights afforded to a person accused here or in the U.K – the presumption of innocence. All of this must be proved beyond reasonable doubt by the prosecution. Every fact relied on, every element of the offence alleged, and that in the face of any defence that an accused person may properly mount.

It is also open to the court to find that the prosecution is an abuse of process and indefinitely stay the matter, owing to the apparent delay in laying the charge. No commentary should be entered into about a case that is sub judice (before the courts) that may be prejudicial to the case. Sure, we are in Australia. What is said here likely has little if any impact in the U.K.. But it is the principle of it, that yet again publicity seeking politicians, and members of the commentariat who should know better, have once more leapt into the fray with a weak undertaking, it would appear, of not only the offence alleged here but of the nature of judicial proceedings themselves.

The redeeming response came from Football Australia itself, who acknowledges that whilst it abhors racism in sport, and treats this allegation seriously, it in effect recognises that Kerr has the presumption of innocence, and that ‘as this is an ongoing legal matter, we are unable to provide further comment at this time’. Bravo Football Australia, it certainly got that one right.

It is said that yesterday’s news is tomorrow’s chip wrapper. In this sorry instance I would go one step further, to suggest that anything published by way of opinion about the merits or otherwise of the Kerr case is simply not worth reading in the first place. It’s just another example of news growing legs and morphing into an opinionated chat-fest. Respectfully, let’s keep that for the pub, and out of newspapers.

Morry Bailes is Senior Lawyer and Business Advisor to Tindall Gask Bentley Lawyers, past president of the Law Council of Australia and a past president of the Law Society of South Australia.

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