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McMullen v Queensland Racing Integrity Commission[2021] QCAT 202

McMullen v Queensland Racing Integrity Commission[2021] QCAT 202

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

McMullen v Queensland Racing Integrity Commission [2021] QCAT 202

PARTIES:

taleah jane mcmullen

(applicant)

v

queensland racing integrity commission

(respondent)

APPLICATION NO/S:

OCR041-20

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

18 May 2021

HEARING DATE:

8 February 2021

HEARD AT:

Brisbane

DECISION OF:

Member Kent

ORDERS:

The decision and penalty under review are confirmed.

CATCHWORDS:

PROFESSIONS AND TRADES – LICENSING OR REGULATION OF OTHER PROFESSIONS, TRADES OR CALLINGS – OTHER PROFESSIONS, TRADES OR CALLINGS – whether unacceptable drive by the applicant – consideration of whether conduct blameworthy – whether error of judgment.

Australian Harness Racing Rules R 149

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20

McMullen v Racing Queensland Ltd [2012] QCAT 286

Mifsud v Racing Victoria Stewards [2007] VRAT 6

Green v Racing Queensland Ltd [2012] QCATA 269

Richardson v Racing Queensland Ltd [2013] QCAT 95

APPEARANCES &

REPRESENTATION:

Applicant:

S Neaves

Respondent:

A Turner

REASONS FOR DECISION

The incident

  1. [1]
    Ms McMullen was the driver of the horse, Studleigh Stride, in Race 2 at the Albion Park Harness Racing club (Albion Park) on 28 December 2019. As a result of this drive and a subsequent Stewards’ Inquiry she was convicted of a charge pursuant to Australian Harness Racing Rules (AHR) rule 149(2) and given a penalty of a four-week suspension of her licence.

The charge and conviction

  1. [2]
    Ms McMullen was convicted of a breach of rule 149(2) of the AHR.
  2. [3]
    The particulars of the charge were as follows: the applicant, as driver of Studleigh Stride in Race 2 at Albion Park, after working hard early to challenge for the lead and when unsuccessful, running a 26.6 quarter; that shortly after she obtained a favourable forward position approaching the 1,200 metres, Ms McMullen elected to improve on her own accord. She then put further pressure on her  horse to work forward three wide until the 900 metres before she eventually crossed to the position outside the leader without cover and as a consequence of the early pressure and without respite her horse was uncompetitive over concluding stages and was giving ground from the 400 metre point.
  3. [4]
    The applicant’s penalty was a four-week suspension of her licence to drive harness horses. Ms McMullen sought an internal review of this decision and penalty. The decision and penalty were both affirmed. The applicant then sought a Tribunal review of the conviction and penalty. The decision of the internal reviewer was stayed by the Tribunal and the matter subsequently heard by the Tribunal on 8 February 2021.

Applicant’s Evidence - Stewards’ Inquiry

  1. [5]
    The stewards were critical of Ms McMullen’s drive.  Her views of the relevant issues are as follows:
    1. (a)
      Her answer to a request to explain her drive - the applicant said:

...As soon as Ms McMullen (other driver) crossed down in front of me, and she kind of abruptly slackened the pace in front of me and grabbed up and obviously because of that I assumed that the death seat was then obviously there, so I was quite happy to take off and, you know, be outside the leader, because he is a very tough horse, I think he races best up the front end and, you know, he's tough so he can do that.  And yeah, as soon as I pulled out, then Ms McMullen kicked up again and to my surprise I didn't think she would.

As I said, as soon as she got that position she grabbed up and slackened the pace and then she had another crack for the lead, which was unsuccessful, and then eventually handed up to me and not only that, I was surprised that she would have another crack for the lead when that horse is just a racer in the Maitland and Newcastle area and doesn't have super form and I wouldn't say that its form is up to this Saturday night grade and I did think that my horse was a lot better than it and I was quite happy to be able to get the position outside the leader.[1]

  1. (b)
    The Chairman expressed the view that Ms McMullen’s move may have been a bit premature. The Chairman confirmed his view that Ms McMullen was not responsible for 'putting on the pace' in the third quarter[2] and that the subject horse had respite in the third quarter.
  2. (c)
    The Applicant provided evidence that she did not expect to have to do as much work with her horse to obtain the position outside the leader.[3]  The Chairman described the subject movement by the Applicant as "...immediately left that position in an endeavour to get a forward position outside the leader..."[4]
  3. (d)
    The trainer of Studleigh Stride thought the horse’s performance in the race was below his expectation, and he noted some issues with the horse’s feet.[5]  The trainer’s evidence was that Studleigh Stride had previously raced very well and run a better time at a track of a lower standard than Albion Park and this better performance had included a feature race.
  4. (e)
    The stewards accepted that the other driver (the applicant’s sister) had slowed down. The exact degree of this was not agreed upon, however there was a common view that this behaviour may have been reflective of 'looking for cover'.[6]

Relevant Evidence - Hearing

  1. [6]
    Ms Mc Mullen submitted that the substantive parts of her evidence were that:
    1. (a)
      She drove the subject horse according to the form of the race, and to its known form and its trainer's instructions.
    1. (b)
      The horse driven by her sister, once obtaining its position outside the leader, slowed abruptly, causing the applicant to form the view that Keayang Sponge Bob (the horse driven by the applicant’s sister) was keen to obtain a trailing position. The Tribunal and parties viewed the race footage and Ms McMullen  pointed out what she said was  abrupt change in pace.
    2. (c)
      Studleigh Stride was three horses wide in the front straight, and therefore it did not cover significantly more ground. It was her evidence that covering extra ground would only occur if she were wide at the time when she needed to negotiate a bend; this situation would cause her to cover more ground.
    3. (d)
      She was disappointed in Studleigh Stride’s run and she had higher expectations of her horse and his performance.
    4. (e)
      The 'kicking up' by the driver of Keayang Sponge Bob had not been expected by her. She said it was unexpected and she could not have been reasonably expected to anticipate it.
    5. (f)
      Studleigh Stride is a horse who performed best in races when in front or outside the leader, and if she had not moved around to the position outside the leader when she did, she would soon have been forced to then race three horses wide for the majority of the last half at least, to ensure she was not blocked for a run.
  2. [7]
    The applicant’s submissions of 17 March 2021 submitted the following views of what she saw as the deficiencies in Mr Wilson's evidence:
    1. (a)
      The statistics referred to in his affidavit and evidence in chief were meaningless, and ultimately irrelevant as they were not informed as to class of horse, race type, gait of horse, track conditions or any feature that made them capable of informing on the subject horse and/or race;
    1. (b)
      Keayang Sponge Bob had raced in easier racing interstate previously; raced unsuccessfully (not placed) in all but one of its 18 Queensland race starts; had only ever held the breeze once in its career, when it was a three year old in 2018; and at that time finished 9th;[7]
    2. (c)
      Accepted that the 'three-wide line' usually starts between the 1,000 metre and 800 metre point in the race, and that a horse in the 1-1 position is usually forced to either race three-wide without cover from thereon or risk being stuck for a run thereafter;[8]
    3. (d)
      The steward accepted that being three horses wide without cover is much more strenuous than being two-wide;[9]
    4. (e)
      Accepted issues were raised throughout the inquiry as to the suitability and motivation of the driver of Keayang Sponge Bob, but accepted further he had chosen not to call any evidence of that driver;[10]
    5. (f)
      Accepted the pace slowed at the time asserted by the Applicant (who said that it slowed abruptly), but did not concede it was abrupt;[11]
    6. (g)
      Mr Wilson said was it was difficult to compare the Redcliffe track with the Albion Park track due to the former track being slower than the latter.  Studleigh Stride had performed well at Redcliffe and so it was reasonable to expect it would perform better at a faster track such as Albion Park. This had not occurred, and the stewards attributed this to Ms McMullen’s driving of the horse; and
    7. (h)
      Mr Wilson acknowledged that factors impacting on race times would be such things as position i.e. inside running and the flat tire as occurred during a race at Redcliffe. He also accepted the points the applicant saw as favourable to herself that Studleigh Stride had placed on eight occasions out of 11 times when the  had been positioned outside the leader in the past.

Expert reports – Dr Hodge and Dr Lenz – applicant’s submissions

  1. [8]
    Both Dr Hodge and Dr Lenz provided oral and written reports. Both reports indicated that blood testing a horse may provide some explanations for the performance of a horse.  Dr Hodge,  agreed with Dr Lenz  that the tests were within normal range. However, it was Dr Hodge’s view that what was “normal” needed to be approached with caution.  It was submitted that the reason for this caution is that the reference group for this measure is a group of underperforming horses as they are the ones who get tested i.e. well performing horses are not tested.
  2. [9]
    Dr Hodge stated that while Studleigh Stride’s results might have been normal for an underperforming group of horses, when compared to “elite” horses they were not ideal.  The point of this evidence was that Studleigh Stride may have been racing at lower performance level and this could explain the horse’s race result.

Evidence at Inquiry – Respondent’s

Mr Wilson

  1. [10]
    The Chairperson Mr Larry Wilson’s evidence may be summarised as: Studleigh Stride was urged forward to challenge for the lead.  During the race Keayang Sponge Bob, driven by the applicant’s sister, was on the outside in front of Studleigh Stride.  In a challenge for the lead Keayang Sponge Bob moved forward. The applicant unsuccessfully challenged for the lead and the applicant ceased that challenge at approximately the 1300-metre mark. At approximately the 1200 metre mark, the applicant was in a forward trailing position behind Keayang Sponge Bob, but immediately left that position and raced three-wide for about 300 metres. Ms McMullen then crossed to lead the one-wide line and finished the race without cover. The summary of this evidence was that Studleigh Stride had to work hard in a “26.6 quarter”.  It was the stewards’ view that an aspect of the unacceptable driving occurred during the period of the race that the horse unsuccessfully challenged for the lead. One of the problems with this challenge was that it resulted in Studleigh Stride having to leave a favourable forward trailing position after receiving cover from Keayang Sponge Bob.[12]
  2. [11]
    Further, Studleigh Stride ran a fast first quarter and even after the horse ceased to challenge for the lead it still ran at a face pace. Mr Wilson disputed that the change in pace by Keayang Sponge Bob was abrupt.  He considered that there was no checking, or any inconvenience caused to the applicant by Keayang Sponge Bob. The change in pace had no bearing on any horse that was trailing Keayang Sponge Bob.[13]
  3. [12]
    Mr Wilson was critical of the applicant leaving a favourable forward trailing position. This was a position with cover and the applicant moved to a position without cover. It was his contention that the applicant should have given the horse some respite because it had already had an early challenge for the lead and the horse had been denied this by Ms McMullen.  He disagreed with Ms McMullen's proposition that she gave the horse respite for at least 200 metres. He based this on the fact that the horse was constantly improving throughout the early and middle stages of the race and then it immediately moved into a three-wide position to obtain the death seat before it tailed off in the last 500 metres of the race. This indicated that it was not given the respite  that Ms McMullen claimed that it was,
  4. [13]
    It was Mr Wilson’s that Ms McMullen did not take any time to assess the tempo before she started her three-wide run. The pressure placed on Studleigh Stride is evident from the footage demonstrating that the applicant allowed Studleigh Stride to maintain her position in the field after exerting significant energy in the early and middle stages of the race and then tailing off from the 500 metre mark.  The veterinarians’ findings caused him no concern in respect of Studleigh Stride’s performance.[14]
  5. [14]
    The respondent’s summary of the applicant’s evidence at the inquiry was as follows: the trainer had given the applicant instructions to try to obtain the “death seat” during the race. The driver of Keayang Sponge Bob abruptly slackened in pace when she was in front of the applicant. The applicant rated Keayang Sponge Bob’s abilities below those of her own horse. The applicant was surprised by the amount of work that she had to do to get her horse into the instructed position. Studleigh Stride was a tough horse and raced best at the form of the field. [15]

Respondent’s summary of evidence at hearing

Mr Wilson

  1. [15]
    Studleigh Stride ran a fast first quarter and even after the horse ceased to challenge for the lead it still ran at a fast pace. Mr Wilson  disputed that the change in pace by Keayang Sponge Bob caused checking or any inconvenience to the applicant. The change in pace had no bearing on any horse that was trailing Keayang Sponge Bob.[16]

Respondent’s submissions

  1. [16]
    In the respondent’s submissions of 13 April 2021, the following was stated: Australian Harness Racing Rule 149(2) is designed to ensure the driver shall not drive in a manner which, in the opinion of the Stewards, is unacceptable. The rule is designed to protect and uphold the integrity of the harness racing industry. Maintaining the integrity and confidence within the harness racing industry is paramount.  The applicant’s drive must be objectively assessed against many aspects of the evidence, including the quality of the drive, context of the race, race footage of the subject race and previous race starts, tractability of the subject horse, the stewards’ live observation of the race, wagering on the race, and the applicant’s seniority and experience.
  2. [17]
    The applicant’s conduct was unacceptable due to her decision, after the early challenge for the lead and her obtaining a favourable position with cover, to unnecessarily elect to improve into the three-wide position without cover passing the 1200 metre mark.
  3. [18]
    The problem with this decision was that Studleigh Stride was again exerted without respite. This impacted significantly on the horse’s ability to run its best race and was, in the opinion of the stewards, unacceptable.
  4. [19]
    Therefore, the respondent submitted that the decision on review should be confirmed by the Tribunal.

Evidence and Submissions

  1. [20]
    During the course of the hearing I viewed digital film footage of the relevant race  and considered  the evidence encompassing the transcripts of the original inquiry, the expert reports and evidence and the evidence and cross examination of Ms McMullen and Mr Wilson.

Ms McMullen’s Evidence

  1. [21]
    Evidence before the Tribunal indicated that throughout the stewards’ inquiry, Ms McMullen provided evidence of her method of driving. She said that she was driving to instructions, however she was surprised by the slackening of pace and kicking up by Keayang Sponge Bob. She considered this horse to be inferior to hers and was surprised by this occurring.  This forced her into the position three-wide.  Her horse was mostly based up the front of the field and she felt that that no action she had taken had caused the horse to cover any more ground than was necessary and also she had given the horse respite  for approximately 200 metres. She relied upon the evidence of Dr Hodge to indicate that the horse may well have been performing under its abilities on the day in question and this had nothing to do with her.
  2. [22]
    The applicant’s submissions referred to the following: Dr Hodge’s evidence should be preferred over that of Dr Lenz, the stewards were wrong in saying that Ms McMullen had over exerted her horse and the Tribunal should overturn the finding of guilt and penalty.
  3. [23]
    Ms McMullen’s submissions included Rule 149 set out entirely, which provides that (see Applicant’s submissions 20 January 2021):

149.  Race to win or for best position

  1. (1)
    A driver shall take all reasonable and permissible measures during the course of a race to ensure that the horse driven by that driver is given full opportunity to win or obtain the best possible placing in the field.
  1. (2)
    A person shall not drive in a manner which in the opinion of the Stewards is unacceptable.
  1. (3)
    A person who fails to comply with sub-rule (1) or (2) is guilty of an offence.
  1. (4)
    The connections of a horse shall not give a direction or instruction to the driver of a horse if in the opinion of the Stewards that direction or instruction may prevent the driver from giving the horse full opportunity to win or obtain the best possible placing.
  1. (5)
    A person who fails to comply with sub-rule (4) is guilty of an offence.
  1. (6)
    If a driver receives a direction or instruction that infringes sub-rule (4) he shall prior to the race notify the Stewards.
  1. (7)
    A driver who fails to comply with sub-rule (6) is guilty of an offence.
  1. [24]
    Further it was submitted that the Tribunal was to decide if in the opinion of this Tribunal the driving in the present case was unacceptable. 
  2. [25]
    The applicant’s submissions referred to the case of McMullen v Racing Queensland Limited [2012] QCAT 286 and Dixon v Queensland Racing Integrity Commission [2018] QCAT 183 where the test in Mifsud[17] has been consistently adopted:

The rule in question is as I have stated, a person shall not drive in a manner which in the opinion of the Stewards is unacceptable. This rule is not intended to penalise what might be described as mere errors of judgment or split-second mistakes. The Tribunal is well aware of the authority constituted by the previous decision in 1983 by Judge Goran in a case of Honan where it was thought desirable to bring into focus the sort of considerations that lie behind rules such as Rule 149(1) and (2) and Judge Goran made a number of observations.

It is certainly relevant to restate here that the first, second and fourth of the observations that he made apply. I will read those:

"(a) the rule does not permit the mere substitution of the Stewards' view as to how a particular horse should have been ridden for the view of the rider;"

Of course in the harness racing world we would substitute "driven for the view of the driver":

"(b) the rule does not seek to punish a mere error of judgement during the race on the part of the driver; and

(d) the driver's conduct must be culpable in the sense that objectively judged it is found to be blameworthy."

I will not include (c) here because it is more relevant to a breach of Rule 149(1) and we are dealing with 149(2) ...

Perhaps to throw my own interpretation into the mix I might view it this way, that the sort of culpable action that is required to amount to a breach of this rule might be such that in normal circumstances a reasonable and knowledgeable harness racing spectator might be expected to exclaim with words to the effect, "What on earth is he doing?" or "My goodness look at that" or some such exclamation.

  1. [26]
    It was submitted that if the Tribunal applied  the ‘what on earth’ test then it could not convict Ms McMullen.
  2. [27]
    Ms McMullen submitted that her driving was not unacceptable and was consistent with an endeavour to find a more forward position. It was submitted that Mr Wilson  had accepted that if such a position could not be obtained, the applicant would be left with the risk of being unable to obtain a run at any point or causing her horse to be the first horse to be three wide without cover around the 800 to 1,000 metre point from home.  Ms McMullen submitted that the manner of driving did not reveal any degree of culpability on her part. 
  3. [28]
    Reference was made to the first limb of the Mifsud test, where it is noted that “the rule does not permit the mere substitution of the Stewards’ view as to how a particular horse should have been ridden for the view of the driver…”.  It was submitted that this is what the stewards had done in this case.
  4. [29]
    It was submitted as per the Mifsud test that the rule does not seek to punish ‘ … a mere error of judgment during the race on the part of the driver…’
  5. [30]
    Ms McMullen submitted that her manner of driving was consistent with the known form of the horse.  Previously the horse had given better performances in feature races and on the day in question the horse raced well below expectations of the trainer and this was not the fault of the applicant.
  6. [31]
    The Mifsud test was cited, and it was submitted that it requires that there must be culpability in the sense that objectively judged, the conduct is blameworthy.
  7. [32]
    The review should be allowed, with a finding of not guilty substituted. 

Penalty

  1. [33]
    Submissions were made by the applicant about penalty . These were that the conduct is at the very lower end of the scale and occurred in circumstances where the applicant’s horse was not uncompetitive.  Despite her registration as an A class driver Ms McMullen was not an experienced driver at the time of this race.  If the Tribunal did confirm the decision the penalty should be a low-level fine as this would enable the continuation of the applicant’s earning income from her driving but provide a deterrent for Ms McMullen and others in future.

The respondent’s submissions

  1. [34]
    I had the opportunity to hear Mr Wilson’s evidence and view the relevant film several times in addition to the evidence of and submissions of Ms McMullen.  The respondent’s submissions include that the appellant is an “A Grade driver” and therefore Ms McMullen is expected to, and required to, drive to the highest standards. Submissions were also made about the stewards’ panel and their vast experience. From the evidence the latter point is not contested.
  2. [35]
    Mr Wilson refuted the applicant’s evidence.  In summary he did not accept that the “kicking up” of Keayang Sponge Bob should have come as an unexpected move to the applicant. He did not think the applicant’s drive was consistent with her horse’s previous form.
  3. [36]
    It was the respondent’s submission that it has been demonstrated through the footage of Studleigh Stride’s relevant race that the horse was given no respite or if he was it was minimal.  Also, it was submitted that the Tribunal should consider the overall context of the race e.g. including the speed and exertion applied to the horse in the early and middle stages of the race. It was said that these are all vital components to assist in determining whether a drive was acceptable or not.
  4. [37]
    The Tribunal should accept the totality of the evidence and consider the context of the race and the factors of speed and exertion applied to the horse in the early and middle stages.  If this was done it was submitted that the tribunal can be satisfied that the applicant’s drive was unacceptable in the circumstances and that the tribunal should therefore find the charge proven. 
  5. [38]
    In applying the test in Mifsud, the Tribunal needs to be comfortably satisfied that a reasonable and knowledgeable harness racing spectator might be expected to exclaim with words to the effect “What on earth is [she] doing?" or "My goodness look at that". I accept the respondent’s submission that such a test must be applied in the circumstances of the entire race applied to the horse in the early and middle stages.  It is in this context that I must view the horse being driven into a three-wide run.
  6. [39]
    It was submitted by the respondent that the applicant should have known there was a reasonable possibility that Keayang Sponge Bob would kick up on the inside and that this would place Studleigh Stride under further pressure. It was the applicant's response that her move may have been a little bit premature at the stage that she made it. The applicant gave evidence that the horse probably was not as race ready as it could have been, something she described as being one run short. I agreed with the respondent’s proposition that it is the applicant's responsibility to drive the horse according to how it is on the day and not how she thinks it should be when it is performing at its best.
  7. [40]
    It was submitted by the respondent that this was more than a mere error of judgment on the applicant’s behalf.
  8. [41]
    The Tribunal’s attention was specifically drawn to the digital recordings of the race: “it is based upon those factors that this Tribunal should therefore find the charge proven”.

Penalty

  1. [42]
    The respondent set out several precedents for the Tribunal’s consideration. It was submitted the minimum penalty for rule 149(2) is a four-week suspension and taking all the precedents into account  the four-week suspension imposed was reasonable and proportionate in the circumstances. 

Legal framework

  1. [43]
    The QCAT decision of Richardson v Racing Queensland Ltd [2013] QCAT 95 stated that the test to be applied is that set out in McMullen v Racing Queensland Ltd [2012] QCAT 286.  In that case the Tribunal referred to Mifsud v Racing Victoria Stewards where it was said that for disciplinary action to be taken against the driver, it must be established that the driver be found to have been blameworthy in the manner in which the horse was driven in the race in question. That of course is distinct from a situation where the actions of the driver might be regarded as an error of judgment or a split-second decision resulting in a mistaken choice.

Application of Law to the Current Facts

  1. [44]
    I viewed the video of the race several times. I read the transcripts of the stewards’ inquiries and the internal review. I heard the evidence given at the Tribunal hearing and submissions from both parties. I have also had the benefit of written submissions from both parties post the hearing.
  2. [45]
    What I am dealing with is a charge that, in the words of the Tribunal in McMullen v Queensland Racing Limited, needs to be approached with caution as it is a general offence committed when someone forms the opinion that it has been committed. I need to be alert to the risk that a driver can be convicted of an offence on the subjective view of stewards when, if other stewards had been involved, there might have been a different result. Therefore, for stewards deciding such cases as this one, both they and the Tribunal, as the decision maker in this proceeding, need to be as objective as possible.
  3. [46]
    In this case the stewards gave reasons for their decisions. These can be summarised as the offence was committed because Ms McMullen over exerted her horse , moving it three wide at the 1200 metre mark, with no respite given to the horse and after the times in the first quarter were described as very fast.  This decision was supported by consideration of the previous races and information about Studleigh Stride. 
  4. [47]
    In applying the test in Mifsud, the Tribunal needs to be comfortably satisfied that a reasonable and knowledgeable harness racing spectator might be expected to exclaim with words to the effect “What on earth is [she] doing?" or "My goodness look at that". I accept the respondent’s submission that such a test must be applied in the context of the entire race. This included  the  early and middle stages of it.
  5. [48]
    It was submitted by the respondent that this was more than a mere error of judgment on the applicant’s behalf.
  6. [49]
    The Tribunal’s attention was specifically drawn to the digital recordings of the race. It was submitted that based upon those factors the Tribunal should  find the charge proven.
  7. [50]
    After multiple viewing of the video of the race I conclude that there was evidence that Ms McMullen unnecessarily moved into a three-horse wide position, without cover, passing the 1200 metre mark. At this point Ms McMullen’s horse was left without any respite, Ms McMullen’s driving choices meant that she exerted the horse after having had a very fast first quarter and half of the race.  I do not accept Ms McMullen’s views that she did not cover any more ground with her movement, thus not exerting the horse more than necessary.  From my own viewing of the digital recording of the race I find this is not what occurred.  I also accept the respondent’s evidence relating to the speed of the very fast quarter and then the speed of the race. I accept these times may be difficult for a driver to judge while in the thick of competition, however those times were available for viewing post the race.  Even after being given time to consider the speed of the race Ms McMullen did not concede that the times,  at least for part of the race, were fast.  With the benefit of  several viewings of the race and its various sectors separately I find that Studleigh Stride was not given respite and even if I am wrong about that finding and it did receive some respite, such respite was momentary at best.
  8. [51]
    Ms McMullen gave evidence at the inquiry that the horse may have been one race off his best.  This indicated that she thought the horse may have needed another race to run at its best or improve its fitness; paraphrasing, it was not running at 100%.  Despite this knowledge Ms McMullen persevered with her plan to drive the horse in the similar manner to how it had been previously driven.  In other words, she did not adapt to the circumstances of the horse’s performance on the day.
  9. [52]
    I find that during Ms McMullen’s drive on the relevant day she made decisions about how this horse should be driven. In in the circumstances, I accept that these decisions amounted to blameworthy or culpable behaviour.
  10. [53]
    Rule 149 (2) is a rule that requires that the driver drive their horses in an acceptable manner.  This rule is not designed to punish a driver for simply making a mistake. The respondent submitted that in this case the mistake is of considerable significance.  It was also submitted that Ms McMullen’s status as an A Class driver should be considered and in the circumstances the explanation of being inexperienced that  she offered should not be considered as reasonable.  It therefore followed that it was appropriate to convict her and  continue the appropriate penalty which was a period of suspension of her licence to drive in races for four weeks.  On balance I do not accept the  submission made by the applicant that a relevant factor was that she was a relatively inexperienced driver fitting her drives in around her studies.   There is a  need to ensure integrity within the racing industry and a need for the public to  maintain confidence in the industry, particularly because this is an industry  where financial wagers are placed upon horses.  I do not think that it is relevant in terms of a finding of having breached Rule 149(2) whether the applicant is relatively inexperienced.  If anything, this might go to a mitigation of penalty only. The standard of application of the rules of harness racing cannot be dropped for certain members of the same class. It is not fair for some drivers in that class to be treated in a different manner to others. If they were to be treated differently then it may be considered that perhaps it would be important for the betting public to be able to differentiate between different classes of A class drivers. They could therefore adjust their betting patterns based on what was considered to be the level of experience and skill of the driver.  This cannot be the situation nor is it the one intended by the rules of racing.  I therefore reject the submission that my decision should be somehow influenced by Ms McMullen’s relative inexperience.
  11. [54]
    Applying that Mifsud test here, I think it can be said that Ms McMullen’s decision to drive the horse in the manner that she did was not reasonable in the circumstances. I do not accept that the decision that she made can be characterised as a legitimate  method of driving the horse. Alternatively, it may have been a mistake of judgment on her part; however, if this is so it is one that  is  prolonged and must attract  culpability.
  12. [55]
    After viewing the digital recording on several occasions and from different angles,  I was unable to detect any prolonged period of respite for Studleigh Stride.  I do not  accept as reasonable Ms McMullen’s view that she was surprised by the performance of Keayang Sponge Bob and that this slackening of the pace had caused her checking and interference.  An acceptable drive in terms of the Rules of Harness Racing would be one where the driver not only anticipated the possibility of horses in front  slackening in pace, as was the submission of the respondent, but also it should anticipate the need to be flexible and change plans mid race as circumstances changed. Ms McMullen in her submission to the inquiry stated that she was driving the horse to instructions, and that her horse was a better standard than Keayang Sponge Bob. She did not adjust her performance or views to meet the dynamic situation of the horse not running to form and the other horse outperforming her expectations. 
  13. [56]
    I find that there is blameworthy conduct in Ms McMullen’s actions in driving Studleigh Stride in the way she did in the relevant race.
  14. [57]
    In this case the stewards are of the view that Ms McMullen was in error in the way she drove Studleigh Stride and I agree with this view.
  15. [58]
    In coming to the conclusions referenced above I considered the comments of Member Dodds in Green v Racing Queensland Ltd [2012] QCATA 269 [22] where he stated that the stewards embody a considerable deal of knowledge and experience about harness racing and their opinion is deserving of considerable weight when considering whether Ms McMullen’s conduct is blameworthy. 
  16. [59]
    I confirm the decision and penalty under review.

Footnotes

[1]  Page 2 of the inquiry transcript at line 40.

[2]  Page 4 of the inquiry transcript at lines 34 to 41.

[3]  Page 5 of the inquiry transcript at lines 43 to 46.

[4]  Page 7 of the inquiry  transcript at line 26.

[5]  Pages 15, 27 and 8 of the inquiry transcript at (15) line 30, (27) lines 25 to 27, (8) lines 39 to 40 (generally).

[6]  Page 14 of the inquiry transcript at lines  28 to 41.

[7]  Applicant’s final submissions dated 17 March 2021 page 8 point 11 (b) (ii).

[8]  Applicant’s final submissions dated 17 March 2021 page 8 point 11 (b) (iii).

[9]  Applicant’s final submissions dated 17 March 2021 page 8 point 11 (b) (iv).

[10]  Applicant’s final submissions dated 17 March 2021 page 8 point 11 (b) (v).

[11]  Applicant’s final submissions dated 17 March 2021 page 8 point 11 (b) (vi).

[12]  Respondent’s final submissions dated 13 April  2021  page 6 and 7 point 28.

[13]  Respondent’s final submissions dated 13 April  2021  page 6 and 7 point 31.

[14]  Respondent’s final submissions dated 13 April  2021  page 6 and 7 point 32.

[15]  Respondent’s final submissions dated 13 April  2021  page 6 and 7 point 29.

[16]  Respondent’s final submissions dated 13 April  2021  page 6 and 7 point 31.

[17]Mifsud v Racing Victoria Stewards [2007] VRAT 6.

Close

Editorial Notes

  • Published Case Name:

    McMullen v Queensland Racing Integrity Commission

  • Shortened Case Name:

    McMullen v Queensland Racing Integrity Commission

  • MNC:

    [2021] QCAT 202

  • Court:

    QCAT

  • Judge(s):

    Member Kent

  • Date:

    18 May 2021

Appeal Status

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