1 Oct 2026The suspension, in August 2026, of several players from the Sydney Swans AFL side, and a following police investigation, has sparked debate about the presumption of innocence in sport, and what the management of sporting clubs can do to manage the attendant risks without infringing on that presumption. Quite a few legal expressions have found their way into mainstream usage: “beyond reasonable doubt”, “hearsay”, “duty of care”, and many others. However “the presumption of innocence” would have to be up there among the leading contenders; and it’s now in the headlines.
The context, and difference between codes
On this occasion, the focus on the “presumption of innocence” has been sharpened by the context; this being that Sydney is arguably the home of the National Rugby League, as well as of the Swans; and the AFL and NRL have starkly different policies when it comes to players accused of grave misconduct.
In the case of the Swans players, it must be stressed that, at the time of writing this article, none of the players is formally the subject of criminal investigation, let alone has been charged with the commission of a criminal offence.
NRL’s “no-fault stand down” policy
Despite this last fact, the media lens has zoomed in on the fact that the NRL has a so-called “no-fault stand down” policy, under which a player charged with a criminal offence is stood down from playing and training, pending determination of the charge.
“No-fault” appears to be a way of saying that the standing down of the player does not signal any suggestion that the player is thought to be guilty of the offence charged, prior to matter coming before a court.
AFL players stood down despite lack of stand down policy
By contrast, the AFL has no such policy.
At the time of writing, the players had indeed been stood down, because enough was known about the circumstances (which would appear to be late-night carousing at a time in the season when players are expected to ensure maximum focus and fitness) for officials to comfortably conclude that the players were in breach of the terms and conditions under which they are employed by the club.
However, the prospect that criminal charges may yet be laid has re-opened debate about the NRL policy of standing down players formally charged with commissions of criminal offences, from the moment of charge; and sparked questions about whether the AFL should have a similar policy.
So, can the “no-fault stand down” be reconciled with the presumption of innocence?
Origins of presumption of innocence
The origins of the presumption of innocence can be traced to Roman times, despite the absence of a criminal justice system remotely resembling the one we know in Australia.
Instead, it reflected a general philosophy that the burden of proving an allegation of unacceptable conduct of some kind should rest on the accuser, and not on the person denying the accusation.
The modern-day articulation of the principle evidently derives from Sir William Garrow, a British barrister who, in an Old Bailey trial in 1791, is said to have persuaded the court that a person accused of a criminal offence should be presumed innocent of it, until the contrary is proved by substantial and persuasive evidence.
The more recent articulation derives from the 1935 British case of Woolmington v DPP. This articulation has been called the “golden thread” running through the criminal law, although it seems more commonly cited in support of the rule that, in a criminal trial, the prosecution bears the burden of proving the offence charged, beyond reasonable doubt.
However, this is, in a way, the flip side of the presumption of innocence coin.
Significance of context to response to allegations of wrongdoing
There would be plenty of people who might ask why, if the presumption of innocence is of such legal and societal importance, a professional footballer whose livelihood depends on playing football, who is charged with committing a criminal offence because of alleged actions unrelated to football, should be stood down pending trial.
It can be months, and indeed years, before such matters come to trial.
Even if the club in question continues to pay the footballer and allows participation in training and the like, the damage remains obvious: absence of game time; of media coverage if it is that level of professionality; loss of value on the player market; and other less tangible things.
But this is the sporting context. What about a worker employed in a childcare centre who is charged with a child sex offence? There would likely be no-one in the general community who would question the immediate suspension of that worker from duty.
The reason is abundantly clear. What if the centre’s owner thought the presumption of innocence should preclude suspension, and the worker then assaulted another child? The uproar would be deafening.
Weighing risks of possible courses of action
So what is at work here is risk. If the worker is suspended and is then found not guilty, pay and reputation has been lost.
If the worker is not suspended, because of the presumption of innocence, stays at work and assaults a child, and is then found guilty of the original charge, the worker has kept a bit of pay, but the child has been irreparably damaged, likely for life.
So what does the sensible owner of the childcare centre do? The question doesn’t need to be answered.
“Balance of convenience” considers whether potential harm can be rectified
There is a legal expression applying here: the “balance of convenience”.
This term derives from the considerations which a court must consider when assessing an application for an injunction, which is an order restraining someone from doing something.
By way of example, let’s say a purchaser buys a farm on which there is farmhouse built in 1800. The purchaser wants to demolish the farmhouse to build a big shed for the Sunshine harvester and the new John Deere tractor.
The local heritage society applies for an injunction to stop the demolition on the basis of heritage value, pending a court’s determination of the question of whether the farmhouse can lawfully be demolished.
There are arguments on both sides. However the question is the application for the injunction.
Balance of convenience favours avoiding irreparable damage
If the purchaser succeeds in convincing the court that the farmhouse has little heritage value, there will have been modest financial loss from interruption of plans to improve the farm’s productivity.
But if the purchaser goes ahead and demolishes the farmhouse, and in the ensuing litigation the heritage society convinces the court that the farmhouse was a heritage treasure and should not have been demolished, the damage will be irreparable.
So, where does the balance of convenience lie? With the heritage society, obviously. And the court will grant the injunction.
Risk management in the context of sport
In the heritage and childcare contexts, the balance of convenience is obvious. This is a matter of risk management. But how does this apply to a footballer, in the context of the Swans incident?
Fairly obviously, no matter how badly it may turn out that any of the players concerned has behaved, there is no evident risk to anybody (other players or spectators) from allowing the footballer to continue playing.
Reputational and financial damage not trivial or irrelevant considerations
The risk, fairly obviously, lies in the reputation of the club and the AFL competition; consequent financial damage; the ability to attract young players into the sport; and so on.
These are by no means irrelevant considerations, and it is not suggested that anyone in a position of power has acted in anything other than a responsible manner.
Obviously, it remains to be seen how the events, triggered by what did (or didn’t) happen at Melbourne’s Pullman Hotel, play out. So, once again, it’s “watch this space” on the issue of the presumption of innocence.
