Tag: legal analysis

By Associate Professor Andrew Hemming, University of Southern Queensland

Executive summary

The recent acquittal of Matildas captain Sam Kerr on charges of racially aggravated harassment raises important questions about free speech limitations, the criminalisation of offensive language, and apparent double standards in how male and female athletes are disciplined. This analysis examines the legal tests applied in Kerr’s case and explores broader implications for free speech legislation in Australia and the UK.

The Case: Sam Kerr’s Acquittal

Legal Analysis: Three Subjective Tests

An examination of the above three elements reveals that the jury would have been required to consider three subjective tests. First, the subjective test of whether Kerr intended to cause Lovell ‘harassment, alarm or distress’. In her cross-examination by the Crown Prosecutor Emlyn Jones, Kerr admitted her words ‘you’re ‘f…king stupid and white’ were meant to upset Lovell but denied that she meant to hurt him.

Whether Kerr’s words caused Lovell ‘harassment, alarm or distress’ (the second subjective test) was put to Lovell by Kerr’s defence counsel Grace Forbes, who suggested Lovell had ‘experienced this impact purely to get a criminal charge across the line’. Lovell denied the suggestion.

The third subjective test of whether Kerr’s words ‘stupid and white’ were racially aggravated was, according to opposing counsel, to be determined on two different criteria. Jones focused on events in the police station, while Forbes focused on the taxi ride and Kerr’s frustration with events leading up to Kerr calling Lovell ‘stupid and white’. Here, Forbes was using res gestae (things done or things transacted) as an exception to the hearsay rule to admit evidence of contemporaneous events relevant to the matter in issue. In this context, it was an error on the part of the Crown not to call the taxi driver to give evidence.

For the Crown, Emlyn Jones attacked Kerr’s claim she felt Lovell could not understand what it was like to be a woman being driven in a taxi by a stranger while being scared because it was an issue of a man not putting himself in a woman’s shoes and had nothing to do with race. Jones put to Kerr that she was saying to Lovell that ‘you’re stupid because you’re white’. Kerr accepted it was what she did but not what she meant.

For the defence, Grace Forbes argued that in the police station Kerr was scared and stressed and while expressing herself poorly did not intend to racially harass Lovell. Forbes put to the court Kerr’s state of mind and the actions of the police had to be taken into account when considering Kerr’s words ‘stupid and white’.

In this maelstrom of subjective tests, it is scarcely surprising that the jury were unable to find all three elements of the offence proved beyond reasonable doubt.

The Free Speech Question

In a free country, we shouldn’t be criminalising speech that is simply offensive. If the right to free speech doesn’t protect words some might think offensive, it’s a useless right – little more than a right to be nice, banal. Indeed, a state that criminalises words that simply offend is far more dangerous to our health than hearing a few nasty words.

But the question must be asked, should such an offence be on the statute book? As Janet Albrechtsen has astutely pointed out, so what if Lovell had felt humiliated and distressed for being sledged by Kerr for being white (or for that matter if someone had called Kerr stupid and made some slur about her Anglo-Indian heritage)?

In Australia, we need look no further for our own straitjacket on free speech in the form of s 18C of the Racial Discrimination Act 1975 (Cth) which makes it unlawful for someone to do an act that is reasonably likely to ‘offend, insult, humiliate or intimidate’ someone because of their race or ethnicity.

Legal comparison: UK vs Australia

UK: Crime and Disorder Act 1998 (s 31(1)(b))	Australia: Racial Discrimination Act 1975 (s 18C)
Criminal offence requiring proof beyond reasonable doubt	Civil provision with lower burden of proof
Requires intent to cause ‘harassment, alarm or distress’	No intent required – only that act is ‘reasonably likely’ to offend
Must prove words actually caused harm	Must only prove words were likely to cause harm
Requires racial aggravation	Applies to acts based on ‘race, colour, nationality or ethnic origin’

Double Standards in Sports Discipline?

As for Kerr, her acquittal was something of an own goal or a pyrrhic victory as the judgment of the court of public opinion has been decidedly unfavourable having witnessed Kerr’s foul-mouthed outburst on video. If Kerr had agreed to pay for the damage to the taxi when she first entered the Twickenham police station, then Kerr’s halo as the golden girl of Australian sport would not have slipped to the floor.

Nevertheless, such a fall from grace has not prevented Football Australia from putting out what Andrew Webster has aptly described as a ‘one sentence pedestrian statement loaded with corporate gobbledygook’: ‘Football Australia will reflect with Sam on learnings from the matter and we will continue to provide appropriate support for her moving forward.’ Webster likens this to burning some incense and reflecting, asking the pertinent question of what would have happened to a male sporting superstar in Australia under similar circumstances:

Imagine it was an AFL or NRL player or cricketer who’d drunkenly spewed in the back of the cab, refused to pay for the damage, been driven to a police station as the driver sought restitution, abused police, swore at police, flashed their bank balance on their phone at police.

Webster answers his own question by saying the relevant sporting body, after the relevant court proceedings had ended, would have immediately issued a breach notice on the player desperate to minimise any further reputational damage to the game. The player would be facing a heavy fine and possible suspension.

What Does This Mean for Law and Sport?

The final act in this tawdry little drama may be more of a whimper than a bang. Football Australia may finally take some disciplinary action against Kerr, such as relieving her of the captaincy of the Matildas, but Kerr’s future career hinges on her ability at the age of 31 to continue playing soccer for any period after taking a year to recover from her second torn anterior cruciate ligament.

Where do we draw the line between offensive speech and illegal harassment? And do our sporting bodies apply consistent standards across genders when it comes to off-field behaviour? These questions may prove more enduring than the details of Kerr’s case itself.