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  4. Kunde v Queensland All Codes Racing Industry Board - [2016] QCAT 430

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Kunde v Queensland All Codes Racing Industry Board[2016] QCAT 430

Kunde v Queensland All Codes Racing Industry Board[2016] QCAT 430

CITATION:

Kunde v Queensland All Codes Racing Industry Board [2016] QCAT 430

PARTIES:

Tracy Kunde

(Applicant)

v

Queensland All Codes Racing Industry Board

(Respondent)

APPLICATION NUMBER:

OCR226-15

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

22 September 2016

HEARD AT:

Brisbane

DECISION OF:

Member King-Scott

DELIVERED ON:

15 November 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

The Tribunal directs:

1.  The Decision of the Queensland Racing Disciplinary Board of 25 November 2015 affirming the original decision is set aside;

2.  The original decision in respect of conviction and penalty are set aside.

CATCHWORDS:

Review of decision of Disciplinary Board – engages in conduct detrimental or prejudicial to greyhound racing – witness live baiting – failure to report – liability for omission ­– omission to act must presuppose a duty to act.

Racing Act 2002 (Qld)

Greyhound Australasia Rules (GAR) rule 86(q)

Briginshaw v Briginshaw (1938) 60 CLR 336

R v Iannelli (2003) 56 NSWLR 247

Poniatowska v DPP (Cwth) [2010] 107 SASR 578

APPEARANCES and REPRESENTATION (if any):

 

APPLICANT:

Ms S McGee of Counsel instructed by

Levitt Robinson Solicitors

RESPONDENT:

Mr J M Horton of Queens Counsel instructed by

Clayton Utz

REASONS FOR DECISION

  1. [1]
    This is a matter that involves the practice of using a live animal as bait in the training of greyhounds.  The Respondents submit, and the wider community would agree, that, nowadays, such conduct is a reprehensible and an abhorrent practice.  It was exposed nationwide on the ABC Four Corners program which was televised on 16 February 2014. 
  2. [2]
    As a consequence of that program, the greyhound racing industry in New South Wales was legislated out of existence for a brief period.  Reaction in other States has been less draconian, but has resulted in a significant number of people being warned off greyhound tracks.
  3. [3]
    Racing Queensland, the control body for greyhound, harness and thoroughbred racing under the Racing Act 2002, is rightly concerned to maintain the integrity of greyhound racing and to eradicate such practices.  The ABC program undoubtedly, was an embarrassment to the industry. 
  4. [4]
    One of the training tracks depicted in the ABC program was at 9 Wotan Road, Churchable. This was an unregistered training track where greyhound owners/trainers took their dogs to trial.  It comprised an oval track with a mechanically driven lure and starting boxes.  There were also kennels for the short term housing of dogs. 
  5. [5]
    It appears that at this track, live baiting was practised. In a covert operation by people connected with Animals Australia and/or Animal Liberation Queensland video footage was taken from concealed video cameras. One of those cameras depicts what appears to be a live piglet tied to the lure arm.  The footage is poor but so much can be established.
  6. [6]
    On 22 August 2014, when the video was taken, the Applicant, Tracy Kunde, happened to be at the Wotan Road track with his dogs and a friend, Ray Gatti. The Applicant is a licensed greyhound owner and trainer.
  7. [7]
    Following an interview, initially, by telephone on 16 March 2015 and then in person on 18 March 2015 with Racing Queensland Stewards, the Applicant was served with a Show Cause Notice.  It contained the following grounds:
  1. You engaged in conduct which is detrimental or prejudicial to the interests, welfare, image, control or promotion of greyhound racing in breach of Greyhound Australasia Rules (GAR) rule 86(q), including on or about 22 August 2014 at 9 Wotan Road, Churchable.

Particulars:

i. On or about 22 August 2014 at 9 Wotan Road, Churchable you witnessed live baiting;

ii. Having witnessed live baiting on or about 22 August 2014 at 9 Wotan Road, Churchable, took no steps to advise Racing Queensland and/or other law enforcement authorities of these activities; and/or

iii. In an interview with Racing Queensland in Deagon, Brisbane on 18 March 2015 you made certain statements regarding your conduct and the conduct of others in respect of live baiting.[1]

  1. [8]
    GAR rule 86(1) provides:

‘A person shall be guilty of an offence if the person:

…

commits or omit to do any act or engages in conduct which is in any way detrimental or prejudicial to the interests, welfare, image, control or promotion of greyhound racing.’

  1. [9]
    It should be noted that ‘person’ is defined in the Rules as ‘any person or body corporate whether registered by the Controlling Body or not’.
  2. [10]
    On 28 April 2015 the Board of Racing Queensland found that the Applicant had breached rule 86(q) and he was warned off from all greyhound racecourses for life under rule 3A of the Local Rules of Racing (Greyhounds).  Further, under rule 14(1)(c) GAR, any greyhounds owned by the Applicant were prohibited from competing in any event under the GAR. 
  3. [11]
    The Applicant appealed his conviction, unsuccessfully, to the Queensland Racing and Disciplinary Board.  However, the Board reduced the penalty from life to 10 years. 
  4. [12]
    The Applicant seeks a review of that decision under s 152A of the Racing Act by this Tribunal on the following grounds:
    1. (1)
      ‘that QRDB has erred in finding sufficient evidence to meet the necessary standard of guilt;
    2. (2)
      the QRDB has erred in finding that the Appellant made admissions as to guilt in the interview with Racing Queensland stewards on 18/3/2015;
    3. (3)
      the surveillance/audio footage of 9 Wotan Road, Churchable relied upon by QRDB as evidence is illegally obtained and should be excluded;
    4. (4)
      the Appellant had a common law right not to self-incriminate when questioned by stewards in the interview conducted on 18/3/2015.  That right is abrogated by the Rules or the Act;
    5. (5)
      the Appellant should have been cautioned by the stewards prior to the interview being conducted with the stewards on 18/3/2015;
    6. (6)
      the stewards have misstated matters of fact to the Appellant throughout the interview.’
  5. [13]
    At the outset of the hearing I was informed by Counsel for the Applicant that she was not pressing grounds 3, 4 and 5.
  6. [14]
    Chapter 5 of the Racing Act governs the review of decisions by QCAT.  By s 152A of the Racing Act, the Applicant may apply for a review of a decision of a constituted board:

‘152A  Who may apply for review by the Tribunal

An aggrieved person is given or entitled to be given, a QCAT notice where a decision of constituted board may apply, as provided under the QCAT Act, to the Tribunal for a review of the decision.’

  1. [15]
    The application to QCAT was made under s 33 of the QCAT Act.  The Disciplinary Board is an independent statutory board established under Chapter 4A Part 1 of the Racing Act.  Section 149R provides that a constituted board, for an accepted appeal means the Disciplinary Board as constituted to hear and decide the appeal.  Relevantly, the jurisdiction of the Disciplinary Board was limited to the Applicant’s appeal against an appealable decision, being Racing Queensland determination under rule 3A of the Local Rules, that the Applicant should be warned off for life from all Queensland greyhound racing courses.
  2. [16]
    The appeal was ‘an accepted appeal’ as that term is defined in s 149V of the Racing Act.  Accordingly:
    1. the disciplinary board constituted to hear and decide the appeal is the constituted board;
    2. the decision of the disciplinary board is the decision of the constituted board for the purposes of s 152A; and
    3. the decision now subject to review is the decision of the disciplinary board.
  3. [17]
    Section 19 of the QCAT Act provides in exercising its review decision, that it has all the functions of the Disciplinary Board (consistent with the general principle that a merits review board stands in the shoes of the decision maker being reviewed).  By s 20 of the QCAT Act:
    1. the purpose of this review is to arrive at the correct and preferable decision;
    2. QCAT must hear and decide the review by a fresh hearing on the merits.
  4. [18]
    By s.24 of the QCAT Act, QCAT may:
    1. confirm or amend the decision; or
    2. set aside and substitute its own decision; or
    3. set aside the decision and return the matter for consideration to the disciplinary board, within the appropriate directions.
  5. [19]
    Racing Queensland obtains its statutory powers and functions of the control body for greyhound, harness and thoroughbred racing under the Racing Act.  Section 4(1) of the Racing Act outlines the main purpose of the legislation to be:
    1. to maintain public confidence in the racing of animals in Queensland for which betting is lawful; and
    2. to ensure the integrity of all persons involved with racing or better under the Act; and
    3. to safeguard the welfare of all animals involved in racing under this Act.
  6. [20]
    The Respondent submits that the regulatory role of Racing Queensland was threatened by participants who provide false and misleading evidence or omit to take action, particularly in circumstances in which a culture of secrecy seems to have pervaded the greyhound racing industry to protect persons involved in live baiting.  Reliance is placed on the decision of Thomas v Racing Queensland Limited [2012] QCAT 436 at paragraph [20] where the Tribunal observed:

The requirement by rule 187 not to give false or misleading evidence or information to Stewards is to ensure the integrity of the racing industry is maintained.  The Stewards and the industry, rely on the integrity, honesty and forthrightness of licensees to assist and to properly administer their obligations under the Racing Act 2002 so that the industry does not fall into disrepute.

  1. [21]
    The Respondent submits that caught in the purview of GAR86(q) are observers with direct knowledge of live baiting who omit to report it to Racing Queensland as the regulatory body. 
  2. [22]
    There are two factual findings that are required to be made.  Firstly, did the Applicant have direct knowledge of live baiting and, if so, was he under any particular rule, obliged to report it?
  3. [23]
    The Respondent relies upon the video evidence which it says puts the Applicant in the vicinity and sufficiently close to the live piglet depicted in the video to establish direct knowledge.  That also requires a finding from the Tribunal that the videos are ‘in sync’.  The Respondent also relies upon admissions made by the Applicant to prove his guilt. 
  4. [24]
    The admissibility of the video footage is not contested. The Respondent has gone to some lengths to show that the footage from the two cameras are synced to show the Applicant being present when the lure was a short distance away.
  5. [25]
    The Applicant submits that the only video footage which goes anyway to evidencing the Applicant's conduct is the long-range video. That video contains no evidence at all of the live baiting event depicted in the close range video, purporting to be at the same location, a few minutes later on the same day, being 22 August 2012.
  6. [26]
    It is further submitted that the scene in close range video is depicted without any reference to the broader scene, or indeed any person, to even suggest that it was in fact the same location and the same time as the scene and the long-range video. The only similar visual reference points between the two footages are what appear to be some trees and a dirt track, however each feature is not displayed in sufficient detail to be able to match the two scenes.
  7. [27]
    When comparing the two footages closely, by reference to the timestamps, it is submitted that there are notable inconsistencies which demonstrate that the two cannot reasonably be found to be of the same location at the same time. Examples are then given.
  8. [28]
    The Respondent admits there is a discrepancy in the time stamping of the videos but says it is inconsequential because the Respondent's case necessarily depends upon the reliability of the contemporaneous timing connection between the two tapes.
  9. [29]
    As was stated earlier in these reasons the footage from the Button camera is very difficult to decipher. It is apparent after several viewings that a live piglet can be detected on the lure but little else. Both parties have provided the Tribunal with an aide for viewing both videos. The aides which comprises a record of chronological sequencing demonstrates the difficulty in trying to marry the two visions. It is the Tribunal's view, that in this regard, the video evidence is not of great value and can not be construed as evidence that the Applicant was aware, that at the time he was present, that live baiting was taking place.
  10. [30]
    The Respondent also relies upon admissions. They are as follows:
    1. When the Applicant was asked directly whether he had witnessed live baiting, he responded ‘Witnessed? Not really’, asked to explain his answer he said ‘… I’ve seen something there but wasn’t too sure whether it was alive or not, you know.’; [2]
    2. Further on he said ‘Well, I’ve seen dogs running around after something that was on the lure.  What it was, I wasn’t too sure what it was, I didn’t know whether it was a squeaker[3] or …’;[4]
    3. In further elaboration some pages on when it is put to him that its not squeakers and its not wool, the Applicant said ‘well, it may have been a small bush pig or something, a little piglet.  You know, exactly what you see – did you watch the Four Corners program yourself? … Did you make it out to be that?’; [5]
    4. The Applicant was asked whether he had witnessed it live? His response was Not live, no. When questioned by the Chairman: Not live. Just on the footage that you seen on the Four Corners show? He responded On Four Corners, exactly.
    5. It was submitted by the Respondent that the Applicant retreated from a position that he had seen the piglet live to a position that he had only seen it on the Four Corners program. That it was submitted was inconsistent with the evidence he had just given and its context ought to be afforded little weight. It is the Tribunal’s view that the interchange in the preceding paragraph does not make it clear that the Applicant’s earlier responses were related to what he saw live or on the Four Corners program;
    6. When asked directly in the context of the Applicant’s visit to the Churchable property whether he had seen any of the practices (live baiting) that the Board had seen, he replied: ‘no, they weren’t going on when I was there, no.’[6]  It was submitted that when pressed as to what had been on the lure during those visits, the Applicant responded ‘sheep’s hide.  There was one time there, there was something but, you know, I can’t say what it is because I didn’t really know what it was.’; [7]
    7. It was submitted that the Applicant acknowledged that, at the time that he was at the Churchable property, he would have been standing outside the track, three to four metres from the lure arm; [8]
    8. Further, it was submitted that when questioned whether he thought he could identify a live piglet from that distance the Applicant responded ‘oh, if you’re studying close enough, you might work it out, yeah.’  The Applicant then accepted that if it was oinking and wriggling you’d probably say it was alive.[10]
  11. [31]
    From these admissions and the video evidence, the Respondent submits the Applicant knew or ought to have known that live bait was being used. The Briginshaw standard of proof is frequently referred to in the Tribunal’s decisions, however, in cases such as this, it does not hurt to remind one’s self of what Dixon J (as he then was) said in Briginshaw v Briginshaw[11] said at 361 – 362:-

The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of the belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact of facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of the given description, or the gravity of the consequence flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

  1. [32]
    The gravity of the consequences in the instant case was that the Applicant, initially, was warned off greyhound tracks for life, later reduced to ten years, and prohibited from racing greyhounds for the same period. Although, not his sole source of income the penalty would have a significant impact on his life and livelihood.
  2. [33]
    The Tribunal is not satisfied on the Briginshaw standard of proof that read as a whole the Applicant’s responses can be construed as admissions that he knew when he was at the track, that day, that a live piglet was attached to the lure arm.
  3. [34]
    However, the Tribunal is of the opinion that the Respondent has more fundamental problems with their case against the Applicant. Counsel for the Applicant submitted that even if the Applicant witnessed live baiting, GAR rule 86(q) placed no positive obligation on him to report the incident. 
  4. [35]
    Counsel’s submission on this point was that the Tribunal could not be satisfied that a failure to report a witnessed event, in the absence of any obligation to do so, was conduct detrimental or prejudicial to the interests, welfare, image, control or promotion of greyhound racing. It was submitted that such a construction of the offence provision, which led to the imposition of significant punishment affecting the rights and interests of the individual, would depend upon the existence of clear words of intention as to that effect.
  5. [36]
    Counsel for the Applicant points to the presence of other specific offences within the same rule to demonstrate that the conduct alleged by the Respondent is not conduct which can amount to an offence under rule 86(q).  Specifically, she referred to rules 86(aa) and 86(af).  Rule 86(aa) provides that a person shall be guilty of an offence if the person tampers with any gear used on a greyhound, or uses any substance or item to affect the performance of a greyhound or greyhounds.  Rule 86(af) creates an offence if a person uses an animal for any purpose connected with greyhound racing or training in a manner which amounts to maltreatment of an animal or is improper or illegal.  It would appear that that latter offence was a result of an amendment made on 20 April 2015.
  6. [37]
    The essence of the offence the Applicant is charged with is that he "engaged in conduct". That "conduct" could not be that he witnessed live baiting but rather that he took no steps to advise Raising Queensland and/or any other law enforcement authority of those activities.
  7. [38]
    The conduct he engaged in depends upon omissions. Obviously, witnessing life baiting cannot, by itself, be considered an offence creating culpability or criminal responsibility. A person might quite innocently be placed in a situation that he/she witnesses such conduct. The gravamen of the offence is that the individual had a duty to report it and failed to do so.
  8. [39]
    In R v Iannelli (2003) 56 NSWLR 247 Handley JA in speaking of "omissions" as creating criminal responsibility said:

These convictions therefore depend essentially on omissions. Criminal liability for mere omissions in Anglo-Australian law is exceptional unless it has been expressly imposed by statute. Glanville Williams, Criminal Law. The General Part, 2nd (1961) London, Stevens and Sons Ltd, at 3-5 states:

In some instances an omission will create criminal responsibility without any positive act… In law, as in morals, the concept of culpable omission presupposes a duty to act; and a rule penalising an omission must state to whom this duty belongs… the criminal law does not impose a duty upon someone to act to prevent a consequence whenever it imposes a duty not to bring about the consequence. The law relating to omissions are not coextensive with the law relating to acts. … Most crimes, particularly those at common law, are defined to need a positive act…

Lord Hailsham, ed, Halsbury’s Laws of England, 4th ed, Vol 11 (1976) London, Butterworts, at 15 is to the same effect:

  1. Omissions. As a rule the criminal law imposes no obligation on persons to act so as to prevent the occurrence of harm or wrongdoing. There is no general duty to prevent the commission of crime; nor does a person commit a crime or become a party to it solely because he might reasonably have prevented its commission. Omission to act in a particular way will give rise to criminal liability only where duty so to act arises at common law or is imposed by statute. Such duty is exceptional and the criminal law does not ordinarily require a man to be his brother’s keeper.
  1. [40]
    Returning to the facts of the instant case the Applicant is charged that he ‘engaged in conduct that was detrimental or prejuducial to the interest, welfare, image, control or promotion of greyhound racing in breach’ of GAR Rule 86 (q). The conduct was his failure to report the occurrence of live baiting to Racing Queensland. It was an omission to act.
  2. [41]
    As stated above the omission to act must presuppose a duty to act. What was that duty? At the time of the alleged offence no such duty existed. It does now, in the form of rule GAR 86 B (2) which provides:

A person who witnesses conduct as set out in (1)(a), (1)(b), 1(c)[12], or 1(d) above but fails to report that conduct to the Controlling Body as soon as reasonably practicable shall be  disqualified for a period of not less than 5 years and/or fined a sum not exceeding twenty thousand ($20,000) dollars.

  1. [42]
    That rule was added on 20 April 2015 which is after the date alleged offence under review.
  2. [43]
    In Poniatowska v DPP (Cwth) [2010] 107 SASR 578[13] Doyle CJ and Duggan J said 586 para 30:

The concept of an “omission” must be read as referring to a law which identifies the omission in question in such a way as to create a duty to perform the omitted act. An example of such a law is a law which makes it an offence for a person to refuse or fail to produce a driver’s licence on request by a police officer. The refusal or failure to produce the driver's licence is an identified or specific omission, and it is on an omission to perform an act which the person in question is obliged to perform, having regard to the terms of the offence-creating provision. An omission to file a tax return provides another example.

  1. [44]
    The Tribunal was referred to the decision of Arnold v Racing Queensland & Another (2015) QSC 293. In that case the Applicant’s Solicitors had made an admission, in a letter showing cause, that witnessing live baiting was a contravention of GAR 86 (q). Justice Dalton thought the admission was properly made. It appears that the issue was not fully argued before Her Honour and she did not have the benefit of considering the decisions referred to above. Her Honours decision, although persuasive is not binding on the Tribunal.
  2. [45]
    Consequently, the Tribunal is of the opinion that, at the time of the alleged offence, the failure to report live baiting could not constitute conduct actionable under GAR rule 86 (q). It follows that the decision of the Disciplinary Board should be set aside
  1. [46]
    The Tribunal directs the Decision of the Queensland Racing Disciplinary Board of 25 November 2015 affirming the original decision is set aside. The original decision in respect of conviction and penalty are set aside.

Footnotes

[1] Particular iii would more appropriately be described as evidence rather than as a particular of the offence.

[2] Transcript of Inquiry dated 18 March 2015 at page 8, lines 23-29.

[3] A squeaker is an artificial bait covered in synthetic fur, from which a squeaking sound emanates on compression of the object.

[4] Transcript of Inquiry dated 18 March 2015 at page 8, lines 33-35.

[5] Transcript of Inquiry dated 18 March 2015 at page 10, lines 1-13.

[6] Transcript of Inquiry dated 18 March 2015 at page 10, lines 39-42.

[7] Transcript of Inquiry dated 18 March 2015 at page 11, lines 1-2.

[8] Transcript of Inquiry dated 18 March 2015 at page 11, lines 15-27.

[9] Transcript of Inquiry dated 18 March 2015 at page 11, lines 29-33.

[10] Transcript of Inquiry dated 18 March 2015 at page 12, lines 1-20.

[11] Briginshaw v Briginshaw (1938) 60 CLR 336 at 362.

[12] Sub-section 1 (c) expressly makes it an offence to cause, procure, permit or allow a greyhound to pursue or attack any live animal, animal carcass or any part of an animal.

[13] See also DPP v Poniatowska (2011) 244 CLR 408.

Close

Editorial Notes

  • Published Case Name:

    Tracy Kunde v Queensland All Codes Racing Industry Board

  • Shortened Case Name:

    Kunde v Queensland All Codes Racing Industry Board

  • MNC:

    [2016] QCAT 430

  • Court:

    QCAT

  • Judge(s):

    Member King-Scott

  • Date:

    15 Nov 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Arnold v Racing Queensland [2015] QSC 293
1 citation
Jump To
Cite 1 - [2015] QSC 293
Briginshaw v Briginshaw (1938) 60 C.L.R 336
2 citations
Jump To
Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336
Director of Public Prosecutions (Cth) v Poniatowska (2011) 244 CLR 408
1 citation
Jump To
Cite 1 - (2011) 244 CLR 408
Poniatowska v DPP (Cwth) [2010] 107 SASR 578
2 citations
Jump To
Cite 1 - [2010] 107 SASR 578
Cite 2 - [2010] 107 SASR 578
R v Ianelli (2003) 56 NSWLR 247
2 citations
Jump To
Cite 1 - (2003) 56 NSWLR 247
Cite 2 - (2003) 56 NSWLR 247
Thomas v Racing Queensland Limited [2012] QCAT 436
1 citation
Jump To
Cite 1 - [2012] QCAT 436

Cases Citing

Case NameFull CitationFrequency
Ball v Queensland All Codes Racing Industry Board [2017] QCAT 724 citations
Druery v Queensland Racing Integrity Commission [2020] QCAT 2582 citations
Queensland Racing and Integrity Commission v Kunde [2017] QCATA 1333 citations
1

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