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- Unreported Judgment
Paull v Queensland All Codes Racing Industry Board  QCAT 74
Gregory Brian Paull
Queensland All Codes Racing Industry Board
Occupational regulation matters
21 April 2016
Senior Member O’Callaghan
12 May 2016
GENERAL ADMINISTRATIVE REVIEW – PROCEDURE – where Racing Disciplinary Board banned Applicant for life – where Applicant reviewing the decision – whether evidence improperly obtained should be excluded from the Tribunal proceedings
Invasion of Privacy Act 1971 (Qld), s 4, s 43, s 44, s 46
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 9(4), s 20, s 28
Racing Act 2002 (Qld), s 152A
ABC v Lenah Game Meats Pty Ltd (2001) 208 CLR 199
Briginshaw v Briginshaw (1938) 60 CLR 336
Bunning v Cross (1978) 141 CLR 54
represented by Mr A Boe of Counsel, instructed by Nyst Legal
represented by J M Horton QC of Counsel, instructed by Clayton Utz Lawyers
REASONS FOR DECISION
- Mr Paull is a licensed owner and trainer of greyhounds.
- In February 2015, the ABC Four Corners programme broadcast an episode about investigations into the greyhound racing industry. One of the principal allegations was that individuals in the industry had engaged in, or were aware of, the practice of live baiting.
- Queensland All Codes Racing Industry Board (‘Racing Queensland’) carried out an investigation into the allegations. This includes an investigation of Mr Paull in relation to his possible involvement in the live baiting. In considering the allegations against Mr Paull, Racing Queensland had regard to video footage taken of Mr Paull at a property where it was alleged the practice of live baiting had occurred (‘the footage’).
- A decision was made by Racing Queensland that the charges against Mr Paull regarding the use of live baiting were made out and that Mr Paull should be warned off all greyhound race courses in Queensland for life, and that all greyhounds owned by him be prohibited from competing in any events in Queensland, subject to certain exceptions.
- Mr Paull appealed that decision to the Racing Disciplinary Board (‘the Board’).
- On appeal, the Board dismissed the appeal as to the conviction.
- It found:
There is no doubt from the evidence that has been supplied to the stewards and by way of video tape to this board that Mr Paull was present at the time live baiting was being conducted on the premises in question…
- The board did allow the appeal on sanction, and reduced the life ban to 10 years.
- Mr Paull has applied to QCAT for a review of the decision.
- As a preliminary matter in the review, Mr Paull has applied for an order that the video footage relied on by Racing Queensland and the Board be excluded from consideration by the Tribunal in the review proceedings. Queensland Racing opposes that application.
- It is conceded by Queensland Racing that the video footage was taken covertly and that entry to the property to place the device to take the footage was without the permission of the owner of the property and as such arguably a trespass.
- The question to be determined is whether there is a basis for excluding that evidence from the Tribunal.
What is the relevance of the Tribunal process?
- The Tribunal’s process is the starting point in the consideration of whether the footage should be excluded.
- The appeal to QCAT is by way of a ‘review’ as provided for in the QCAT Act.
- The QCAT Act prescribes the manner in which all proceedings in QCAT are conducted. Relevantly, the Tribunal:
- May do all things necessary or convenient for exercising its jurisdiction;
- Must act fairly and according to the substantial merits of the case;
- Must observe the rules of natural justice;
- Is not bound by the rules of evidence, or any practices or procedure applying to courts of record, other than to the extent the Tribunal adopts the rules, practices or procedures;
- May inform itself in any way it considers appropriate;
- Must act with as little formality and technicality, and with as much speed as the requirements of the QCAT Act, an enabling Act or the rules, and a proper consideration of the matter before the Tribunal permit;
- Must ensure, so far as practicable, that all relevant material is disclosed to the Tribunal to enable it to decide the proceeding with all the relevant facts.
- The question regarding the exclusion of the footage must be considered in this context.
Is there a reason why the footage should be excluded?
- Mr Paull says the footage should be excluded for the following reasons.
- The implications of the Invasion of the Privacy Act 1971 (Qld) (‘IPA’).
- The IPA prohibits the use of evidence obtained through the commission of an offence under its provisions. Mr Paul says this restriction applies to these review proceedings. There is a dispute about whether the relevant provisions do apply to Tribunal proceedings. A preliminary question to be addressed before considering that issue is whether in fact there has been the commission of an offence under the IPA.
- Mr Paull submits that the footage was obtained through the commission of an offence under s 43 of the IPA which provides that ‘a person is guilty of an offence against [the IPA] if the person uses a listening device to overhear, record, monitor or listen to a private conversation…’
- It is accepted that a listening device was used to record the audio or the footage.
- There is a dispute, however, about whether the conversation in the audio is a ‘private conversation’.
- ‘Private conversation’ is defined in the IPA as:
private conversation means any words spoken by one person to another person in circumstances that indicate that those persons desire the words to be heard or listened to only by themselves or that indicate that either of those persons desires the words to be heard or listened to only by themselves and by some other person, but does not include words spoken by one person to another person in circumstances in which either of those persons ought reasonably to expect the words may be overheard, recorded, monitored or listened to by some other person, not being a person who has the consent, express or implied, of either of those persons to do so.
- Mr Paull says the conversation on the audio was ‘private’. Racing Queensland says the conversation comes within the exclusion in the definition.
- Mr Paull says the circumstances of the dialogue was such that persons involved in it would not have had a reasonable expectation that another person may overhear the words.
- In his submission he says the Tribunal should have regard to the following ‘factual’ factors of the conversation in reaching that conclusion.
- The content of the conversation;
- The conversations are between individuals who are addressing one another with direction questions and comment;
- The conversations are on private property;
- There are no other persons within reasonable earshot of the conversation;
- There are no recording devices in the area, other than the concealed device;
- There is no evidence that the participants gave express or implied consent to the presence of the recording device, or were aware of its presence.
- Racing Queensland says the following factors weigh against a finding that the conversation was ‘private’ as defined in the IPA:
- The conversation is not just between two people, there a number of people present;
- The parties are talking over each other and loudly;
- The topics do not include personal affairs, health or finance.
- It submits the conversation can be described as ‘banter’. It is not in a private setting, but rather a race meeting (albeit on private property).
- The difficulty in coming to any conclusion on the issue of whether the conversation is ‘private’ is that that no evidence was provided by the parties in relation to the factors that they submit should be taken into account.
- Mr Paull’s representative said he did not intend to refer me to any particular part of the audio to support his view that it was a ‘private’ conversation. There is no evidence as to who or how many people were present, or the proximity to neighbouring properties which would be relevant to the issue of whether there was a reasonable expectation that the conversation may have been overheard.
- On the limited information available, I accept that the conversation occurred on a private property, but that of itself does not necessarily make the conversation private. It is noted that in his submissions to the Board in his appeal, Mr Paull himself explained the nature of the conversation the subject of the audio. The transcript of those proceedings have been filed by Racing Queensland in this review.
- Mr Paull says of the audio in that transcript:
…on that day, saying the things that was said on the video, because of my personality, I suppose you could say, I joke around with a lot of people quite often. I’m known for the fact to be sort of like a talkative sort of guy, and maybe from some people sometimes a little bit witty or not. But suffice to say I do engage in a lot of banter with people, whether it be at the track – at the race track – or in my personal life, through all facets of my life.
In the video tape shown by Racing Queensland of me appearing there, there was a lot of banter and a lot of innuendo that was false and it was just people, you could say, having a laugh and yeah just basically banter.
- These comments of Mr Paull suggest the tenor of the conversation the subject of the audio was not private.
- It is also noted that even if the audio was excluded because it was taken in the process of committing an offence under the IPA, Mr Paull’s comments in recalling what was said in the audio are, in any event, before the Tribunal.
- I am not satisfied on the material before me that the audio is of a ‘private conversation’ within the meaning of the IPA. If I am wrong in that regard, I will consider whether if an offence has been committed under s 43 of the IPA, provisions of the IPA are applicable in considering whether the audio or the footage should be excluded.
- Section 46 provides:
Where a private conversation has come to the knowledge of a person as a result, direct or indirect, of the use of a listening device used in contravention of section 43, evidence of that conversation may not be given by that person in any civil or criminal proceedings.
- I agree with Racing Queensland that this provision would not operate to automatically exclude the audio evidence from these review proceedings where the rules of evidence do not apply. The principles underlying the rules should not, however, be disregarded.
- The Tribunal should exercise a discretion to exclude the footage?
- If there had been a breach of the IPA in obtaining the audio, and in any event noting that trespass has more than likely been committed in obtaining the footage, the question arises whether fairness dictates that the Tribunal should exclude the footage.
- Mr Paull, in his submissions, focusses his objection to the inclusion of the footage on the unlawfulness underpinning the obtaining of the footage. His submission did make reference to the ‘reliability’ of the evidence. However, the issue of reliability (in the sense of any doubt around its accuracy) was not pressed by Mr Paull.
- It is accepted that even in a court where the rules of evidence apply, improperly or illegally obtained evidence is not automatically inadmissible. There is a discretion. The parties have referred the Tribunal to the High Court decision of Bunning v Cross where the court identified the discretion to be exercised in deciding whether to admit evidence obtained in an unlawful matter as:
Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence. He must consider its exercise. In the exercise of it, the competing public requirements must be considered and weighed against each other. On the one hand there is the public need to bring to conviction those who commit the criminal offences. On the other hand is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful and unfair acts may be obtained at too high a price. Hence the judicial discretion.
- The Board says this discretion does not operate in these proceedings which are a review of a decision of the Board operating under a strict statutory regime as set out in the Racing Act.
- These proceedings are not criminal proceedings. The Tribunal is conducting a merits review to determine the correct and preferable decision and has a mandatory obligation under s 28(2) to ensure that all relevant material is disclosed to the Tribunal to ensure that it decides the proceedings. This puts a different perspective on the application of the principle underlying the discretion to exclude the evidence.
- The question is one of whether the admission of the evidence would impede the Tribunal’s obligation to act ‘fairly’, and to observe the rules of natural justice.
- I do not consider that the manner in which the footage was obtained denies Mr Paull any procedural fairness. Mr Paull does not suggest the footage is inaccurate in its content. He does not suggest that he is unable to give evidence, or make submissions at the hearing about the footage. Indeed, as referred to earlier, in the proceedings before the disciplinary board (the transcript of which is before the Tribunal), Mr Paull gives a detailed explanation as to the circumstances of his involvement in events the subject of the footage.
- If I am wrong in this approach, then the competing public policy considerations should be considered. I would in any event find that the balance is in favour of not excluding the footage.
- The High Court in Bunning v Cross identified criteria which should be taken into account in exercising the discretion. They pointed out however, that the discretion had to be exercised and the criteria determined depending on the particular case.
- Mr Paull says that there are five factors to consider in this case which weigh against admissibility of the footage.
- The process involves serious allegations, findings of a guilt and punishment consistent with criminal or civil penalty proceedings.
- I accept that is correct, however, I do not accept that that weighs in favour of excluding the evidence. In Bunning v Cross the High Court made the comment that the offence in that case (drink driving) was relatively serious and that ‘some examination of the comparative seriousness of the offence and the unlawful conduct of the law enforcement authority is an element in the process’.
- Here, the charge associating with the practice of live baiting is serious, and is correctly categorised by Racing Queensland as ‘a public iniquity’. Against this, it is not suggested that Racing Queensland itself was involved in the illegal act to obtain the evidence.
- Mr Paull says this is irrelevant and that any unlawfulness should not be compounded by allowing the footage to be aired again. He also points to s 44 of the IPA which makes it an offence for any person to communicate to the public a private conversation. He says any use of the footage by the Board is compounding the illegal act.
- I consider that the use by the Board of the footage given to it in coming to a decision on the disciplinary action does not go as far as to conclude that the Board is encouraging or condoning any illegal activity. The underlying principle, as stated in Bunning v Cross, is that ‘the courts should not be seen to be acquiescent in the face of the unlawful conduct of those whose task it is to enforce the law’. The act of the Board in putting into evidence the footage falls short of that criteria.
- The standard of proof in these proceedings is a high standard – one approaching beyond reasonable doubt ‘consistent with the application of the principle in Briginshaw’
- I agree with Racing Queensland that Briginshaw does not create a higher standard of proof in civil matters, but rather as stated by Dixon J ‘in serious misconduct such as this “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony or indirect reference’. I also disagree with Mr Paull that the application of ‘the Briginshaw principle’ precludes the admission of the evidence that was improperly obtained.
- It is instead a question of whether the evidence (once considered) is sufficient to enable the level of reasonable satisfaction required to be reached.
- The illegality associated with the breaches of the IPA and trespass.
- These factors have to be balanced against the facts set out above, namely the seriousness of the charge and the fact that Racing Queensland did not participate in the illegal act.
- The cogency of the evidence
- The cogency of the evidence is apparent in that Racing Queensland and the Board relied heavily on the footage in finding the charges against Mr Paull to be established. The Court in Bunning v Cross warned against relying on the cogency of the evidence as a fact in favour of its admission. I accept that to be the case, but it does not weigh against its admission either.
- The evidence is critical to the case against Mr Paull
- This is accepted.
- Mr Paull does not say why this should be considered as a factor against allowing in the evidence. Where the accuracy of the evidence is not challenged, I disagree that this is a factor weighing against the admission of the footage. I do not agree that ‘the improper origin’ of the footage overwhelms the desirability of ‘the conviction of the charge’.
- This is particularly so when the nature of the proceedings (a full merits review) and the Tribunal processes are considered.
- For the reasons set out above, I am not satisfied as suggested by Mr Paull, that the obligation of the Tribunal to accord fairness dictates the exclusion of the footage.
- The application to exclude the footage is dismissed.
Affidavit of Jaime Lee Knight sworn 18 September 2015, Exhibit 5 page 2.
Respondent’s outline of submission 18 March 2016, para .
Racing Act 2002 (Qld) (‘Racing Act’), s 152A.
Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 20(1).
Ibid, s 20(2).
Ibid, s 9(4).
Ibid, s 28(2).
Ibid, s 28(3)(a).
Ibid, s 28(3)(b).
Ibid, s 28(3)(c).
QCAT Act, s 28(3)(d).
Ibid, s 28(3)(e).
IPA, s 46.
IPA, s 4.
Mr Paull’s submissions 29 March 2016, at para .
Reference is made to ABC v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, at 226 para .
ABC v Lenah Game Meats Pty Ltd (2001) 208 CLR 199.
Applicant’s submissions, p 5 para [31.2]; p 6 para .
Bunning v Cross (1978) 141 CLR 54 (‘Bunning v Cross’), at 66.
QCAT Act, s 28(2).
Bunning v Cross, para .
Bunning v Cross, p 78.
Applicant’s submissions, para [31.2].
Briginshaw v Briginshaw (1938) 60 CLR 336 (‘Briginshaw’).
- Published Case Name:
Gregory Brian Paull v Queensland All Codes Racing Industry Board
- Shortened Case Name:
Paull v Queensland All Codes Racing Industry Board
 QCAT 74
Senior Member O'Callaghan
12 May 2016