KEY POINTS:
The English rugby players involved in the infamous Auckland hotel room incident must have been hoping they could forget the whole thing when their plane took off.
No chance of that - on arriving back home, they were put through a full investigation by England's Rugby Football Union, including having to give evidence to a judge, in his capacity as the union's chief disciplinary officer. Two players, Mike Brown (full-back) and Topsy Ojo (wing) have now been found guilty of misconduct.
The RFU's investigation took place notwithstanding that the woman concerned was not prepared to make a formal complaint to the Police. She did however provide evidence to the English union - her lawyers sent the Police job sheet that was filled in soon after the incident to the RFU's chief disciplinary officer, Judge Jeff Blackett.
This contained details of her allegations that she had been violated by four players in Mike Brown's hotel room. Moreover, she provided a signed declaration of the truth of her account as set out in the job sheet.
Judge Blackett has now interviewed the players concerned, as well as several other witnesses. He was not able to speak to the complainant: he said she declined to give evidence, having been warned that she would be cross-examined by lawyers acting for the players.
The judge has now released his decision. It is a fascinating read, not just because it goes into some detail on the incident itself, but also because it covers the media frenzy that followed.
The misconduct findings resulted, in Brown's case, from his staying out all night and then missing his physio appointment, and in Ojo's, just from staying out all night. Brown was fined £1,000, and Ojo £500.
The decision also goes into some detail about the incident itself (from the players' perspective). Brown admitted to having had "a consensual relationship" with the complainant, having brought her back to his hotel room some time after 7am on the Sunday morning after the first test. As a result, he missed a physio appointment at 8.15am.
Topsy Ojo, who had been out drinking with Brown and the complainant, made his 8.15 physio appointment, and then went to Brown's room to remind Brown of his own appointment. Brown quickly dressed and left, getting to the physio at 8.35. Ojo, who had kissed the complainant while drinking with her earlier that night, stayed with her when Brown left, and also admitted to a "consensual relationship". Two other players (David Strettle and Danny Care) say they entered the room "very shortly thereafter", apparently to remind Brown that there was a team pool rehabilitation session at 9am. They "observed Ojo and the complainant", were embarrassed and left immediately. Brown returned to the room soon after, and accompanied the complainant to the hotel foyer. She then left, and the judge referred to evidence from witnesses that she showed no outward signs of distress.
The complainant sought treatment at a hospital that morning, and apparently disclosed to medical staff that she had been sexually violated by the England players. She confirmed this when the Police arrived, and as is the norm in cases involving such a serious allegation, they commenced an investigation.
The players took legal advice and declined to be interviewed, and in the absence of a formal complaint, they were allowed to leave when the tour ended.
That wasn't the end of the story for them, however. The media speculation had started when the Police released a statement on the Wednesday after the first test, saying the woman had complained of a serious sexual assault by four England players. And on their return home, the RFU internal investigation went into full swing.
The judge interviewed all the players concerned, as well as several other witnesses. He also had discussions with the complainant's lawyers, and referred to reports that Ms Glenda Hughes, the complainant's spokesperson, had told TV3 that the complainant had received injuries consistent with non-consensual sex. The judge said Ms Hughes did not contact him, and as the complainant's lawyers were unable to provide further details of these injuries, he declined to take Ms Hughes' reported comments into account, as they were purely hearsay.
The judge did take into account the complainant's version of events, however. She said she consented to going to the hotel room of one of the players; that there was consensual activity with that player; but that three other players later entered the room and non-consensual activity occurred involving three if not four players.
The judge was able to interview the four players twice each, and said they appeared honest and truthful. Other witnesses had corroborated much of their accounts. He concluded that there was insufficient credible evidence of any illegal activity between them and the complainant which would enable him to conclude that what she said occurred, actually did take place.
Given that the players themselves fronted up and answered questions from the judge, and the complainant chose not to, it is difficult to see how he could have gone any other way - unless he thought the players were simply not credible witnesses - but he made it clear that he thought they were honest.
It is also interesting that the players were found guilty of misconduct. Neither Brown nor Ojo had been given a copy of the Code of Conduct for England's Elite Player squad, although both told the judge they understood they should not do anything to bring the game into disrepute.
If staying out all night and then missing a physio appointment is misconduct, or still worse, brings the game into disrepute, then there must be hundreds of international players across the globe who are guilty. What initially sparked the controversy was the statement issued by the Police that the woman had complained of sexual violation - and indeed the judge critcised this press release in his decision, saying that no formal complaint had been made, and the lack of further detail simply fuelled media speculation.
If the players could be criticised for anything, it was bringing the woman back to the hotel, rather than staying out all night, and (in Brown's case) missing a physio appointment. The controversy clearly arose out of the former rather than the latter, and it was only taking the woman to the hotel which could realistically be misconduct - especially given that staying out all night was not at that stage prohibited.
It is bizarre that the misconduct findings did not focus on this, particularly given that the judge's recommendations to the English union included that it prohibit players from bringing unknown guests back to the team hotel.
Greg Cain
Greg Cain is an employment lawyer at Minter Ellison Rudd Watts.