A Gaelic footballer from Donegal who was given a suspended sentence for injuring the scrotum of an opponent has had his conviction overturned.
Michael Friel’s conviction for assault causing harm to Laurence McMullan during a Gaelic football match in Convoy in 2017 was quashed at a sitting of Letterkenny Circuit Court.
Judge Paul Kelly said the incident, which resulted in a seven-centimetre laceration to McMullan’s scrotum and necessitated eight stitches, was a “misjudged, clumsy tackle”. Judge Kelly said the injury was “something of a freak” and he was satisfied that Friel had not intended to cause injury.
In March 2023, Friel was handed a three-month suspended sentence for assault causing harm to McMullan.
The incident arose during an All-County Football League game on August 18, 2017 at Pairc Naomh Mhuire in Convoy, where Friel was playing for Naomh Colmcille and McMullan for St Mary’s, Convoy.
Friel acknowledged causing the injury but stressed that the incident was unintentional.
Friel, a 27-year-old of Keshends, Newtowncunningham, represented by Peter Nolan BL, instructed by solicitor Frank Dorrian, had come home from Germany for the appeal hearing, the court was told.
He told the court that the game was “intense, tough, physical and fast-paced”.
He said he “tackled him clumsily” and was on the wrong side when McMullan got possession.
Friel said he was “just trying to stop his progress” and told Judge Kelly that he “has never intended to hurt an opposition player on any field”.
He sent McMullan a text message the following day to “make sure he knew it was an accident.”
“It was a clumsy tackle that resulted in an unfortunate injury,” he said.
McMullan told State solicitor for Donegal, Kieran Dillon, for the prosecution, that there was “a lot of tension in the game” when he picked up a loose ball and was tackled around the waist. He said Friel moved his hand down and pulled on his testicles.
He said he felt a “sharp pain” and played on as he didn’t want to go off due to the importance of the game. After the game, he said he could see blood and he required assistance from club-mates before being taken to Letterkenny University Hospital, where he had five painkilling injections to numb the area and had eight stitches inserted to repair a seven-centimetre laceration.
McMullan said the incident was “very traumatic” and the injury took over a month to heal properly. He told the court that he considered his future in the game, but he came back to play the following season.
Under cross-examination from Mr Nolan, McMullan denied telling a doctor at the hospital that the incident was “accidental”.
Mr Nolan suggested that McMullan only went to the gardaí as he was dissatisfied with the level of investigation conducted by the Donegal GAA County Board.
“The injury was severe and I need accountability,” McMullan said. He told Mr Nolan that he was “assessing his options” before going to the gardaí and added: “I wasn’t in the right space to talk about the injury. I didn’t feel comfortable talking about a hole in my testicles”.
Garda Colm Molloy told the court that he was based at Raphoe Garda Station on November 21, 2017 when McMullan reported an alleged assault. Garda Molloy said McMullan informed him that the case was taken to the GAA County Board who did not take any action as the referee hadn’t seen the incident.
Garda Molloy recalled enquiring why it took so long to make a report and McMullan informed him that he was awaiting an outcome from the County Board and he decided, on the advice of a solicitor, to report the matter.
The court heard that the match referee awarded a free against McMullan for over-carrying at the time and did not see the incident in question as he was blind-sided by the presence of other players.
Citing previous court decisions involving sportspeople, Mr Nolan noted a case from 2001 where a jockey sustained severe injuries due to manoeuvres by two other jockeys in a race. The Jockeys Club found the moves careless and against the rules, but the Court of Appeal held the defendant non-liable, saying: “In this case the stressful, fast-paced nature of the race and the fact that its object is to compete for the best place meant that the threshold required to establish breach was high, and was not met by the defendant’s behaviour.”
Mr Nolan also pointed to the case where a judge dismissed a claim by Paul Elliott, the former Chelsea footballer, whose career was ended as a result of an injury arising out of a tackle by Dean Saunders, the ex-Liverpool player in 1992.
Mr Justice Drake found Saunders not guilty of dangerous or reckless play.
“No sport could ever be played and we’d be looking at rugby matches going back 20 years and there would be no nuance,” Mr Nolan said. “This is a prosecution that shouldn’t have been taken. It should have been left to civil remedy.
“There is no evidence that he intended to injure Mr McMullan and that certainly was not the case.”
Mr Dillon said the injury is what was relevant and submitted that Friel was “reckless” in the incident and played the man, not the ball. “The mens rea is the act. He was reckless about the consequences,” he said, adding that the rules of Gaelic football say that it is illegal to trip, punch, hold, drag, pull or rugby tackle another player.
Judge Kelly considered the evidence and submissions for around 50 minutes before passing his judgement.
Judge Kelly said it was a case that arose out of “a hotly-contested and intense Gaelic football match”.
He said the injury sustained by McMullan was “dreadful”. Judge Kelly described the injury as “most unusual” and said he had no doubt that there are hundreds of Gaelic football and contact sports matches where contact is made with the genital area and the consequences were nowhere near as severe as in this case.
Judge Kelly noted the laceration and said McMullan had to undergo very painful and unpleasant treatment.
While Friel conceded that he did inflict the injury, Judge Kelly said he had to then consider whether he committed an offence under Section 3 of the Non-Fatal Offences Against the Person Act.
He said the physical contact was one of the most attractive features of robust contact sports and was part and parcel of the game, but sometimes life-threatening injuries did occur, such as when a rugby scrum collapses and a player becomes paraplegic or where limbs are broken or dislocations occur.
“All of which can happen without criminal behaviour occurring,” he said.
Judge Kelly said it was his view that a tackle within the rules of Gaelic football is “quite difficult to achieve” and it often happens where players are pulled, tripped or dragged.
The fact that the referee had not penalised Mr Friel was not relevant, Judge Kelly said, as he was not in a position to have a clear view of the incident.
Friel had, Judge Kelly said, given fair and honest evidence in which he admitted to grabbing McMullan by the shorts – an illegal tackle in the strict understanding of the rules. Judge Kelly said there was particular sensitivity in most contact sports about the genital area and there appears to be an “unspoken code” where one tries to avoid contact with that area.
“That is not to say it doesn’t happen frequently,” he said.
Judge Kelly noted Mr Dillon’s contention that by grabbing the front of McMullan’s shorts that Friel was “reckless” about the outcome and that resulted in criminal liability.
Judge Kelly said he was satisfied that what happened was a “misjudged, clumsy tackle”.
He said he was satisfied that there was no intention on Friel’s part to cause injury and said the injury that resulted “was something of a freak”.
Judge Kelly cited previous cases in remarking that “conduct outside the rules can be expected in the heat of the moment” and that “even if it was a sending off, it may not breach the criminal threshold”.
Judge Kelly said this was a different case to one where an injury was deliberately inflicted and offered examples of a player being bitten and off-the-ball incidents in other matches in contact sports.
“The distinction I draw is that the incidents more normally associated with criminal behaviour is that there are deliberate attempts to cause injury outside the action of the match,” Judge Kelly said. “This was a tackle that occurred while the match was going on. It lasted a split second and didn’t involve a deliberate attempt to strike in the genitals.”
Judge Kelly said he was satisfied that there was an element of doubt and that Friel was entitled to that doubt.
The charge was dismissed.