Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QCAT
  3. 2021
  4. Vale v Queensland Racing Integrity Commission - [2021] QCAT 438

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Vale v Queensland Racing Integrity Commission[2021] QCAT 438

Vale v Queensland Racing Integrity Commission[2021] QCAT 438

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Vale v Queensland Racing Integrity Commission [2021] QCAT 438

PARTIES:

RICKY JOHN VALE

(applicant)

V

QUEENSLAND RACING INTEGRITY COMMISSION

(respondent)

APPLICATION NO/S:

OCR209-21

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

21 December 2021

HEARING DATE:

12 November 2021

HEARD AT:

Brisbane

DECISION OF:

Member Lember

ORDERS:

The Internal Review decision of the Queensland Racing Integrity Commission dated 8 July 2021 is set aside.

A decision is substituted that:

  1. (a)
    As to Charge One: Ricky John Vale breached Australian Racing Rule 228(b) on 10 June 2021 by making contact with Preston Smith, for which a monetary penalty of $1,000 is imposed.
  2. (b)
    As to Charge Two: Ricky John Vale breached Australian Racing Rule 228(b) on 10 June 2021 by making contact with Tyresse Smith, for which a monetary penalty of $1,000 is imposed.
  3. (c)
    As to Charge Three: Ricky John Vale did not breach Rule 228(b) on 10 June 2021 in making contact with Tony Smith by reasons of provocation and self-defence.
  4. (d)
    As to Charge Four: Ricky John Vale did not breach Rule 228(b) on 10 June 2021 as there is insufficient evidence that he made a threat to Tony Smith.

CATCHWORDS:

ADMINISTRATIVE REVIEW – principles applied – fresh hearing on the merits – racing – allegations of misconduct, improper conduct and unseemly conduct – physical altercation between persons involved in the racing industry – whether defences of self-defence or provocation should be accepted – conflicting evidence

PROFESSIONS AND TRADES – LICENSING OR REGULATION OF OTHER PROFESSIONS, TRADES OR CALLINGS – where a licensed trainer involved in a physical altercation at the racetrack – charge of breach of Australian Racing Rules 228(b) – penalty

Australian Rules of Racing, r 228(b)

Criminal Code Act 1899 (Qld), s 245, s 268, s 269, s 270, s 271, s 272

Human Rights Act 2019 (Qld), s 21, s 25

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3(b), s 9(1), s 17(1), s 18, s 19, s 20, s 21, s 24, s 66

Racing Act 2002 (Qld)

Racing Integrity Act 2016 (Qld), s 240, s 241, s 243, s 245, s 246

Bode v Queensland All Codes Racing Industry Board

[2016] QCAT 529

Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1

Briginshaw v Briginshaw (1938) 60 CLR 336

El-Issa v Racing Queensland Limited [2011] QCATA 280

Palmer v The Queen [1971] AC 814

Russell v Queensland Racing Integrity Commission [2020] QCAT 329

APPEARANCES & REPRESENTATION:

 

Applicants:

Mr M White of Counsel, instructed by Butler McDermott Lawyers

Respondent:

Mr S McLeod QC, instructed by the Respondent

REASONS FOR DECISION

What is this application about?

  1. [1]
    Mr Vale is a licensed trainer within the thoroughbred racing industry in Queensland who, at the Rockhampton Jockey Club on 10 June 2021, was involved in physical and verbal altercations with Tony Smith, and his sons, Tyresse and Preston Smith.
  2. [2]
    The Queensland Racing Integrity Commission (“QRIC”) is an independent statutory body, overseeing the integrity and welfare standards of racing animals and participants in Queensland. The QRIC was established by and operates under the Racing Integrity Act 2016 (Qld) (“the RIA”) and enforces the Australian Rules of Racing (“the ARR”) made under the Racing Act 2002 (Qld).
  3. [3]
    Rule 228(b) of the ARR relevantly provides:

A person must not engage in

…(b) misconduct, improper conduct or unseemly behaviour.

  1. [4]
    By a decision dated 23 June 2021, as a consequence of the altercations, the QRIC found Mr Vale guilty of four charges in breach of Rule 228(b) and imposed penalties as follows:
    1. (a)
      Charge One – that following a verbal argument, Mr Vale instigated physical contact with Preston Smith – $1,000 monetary penalty;
    2. (b)
      Charge Two – that following a verbal argument Mr Vale instigated physical contact with Tyresse Smith – $1,000 monetary penalty;
    3. (c)
      Charge Three – that Mr Vale headbutted Tony Smith, being the use of dangerous force resulting in serious injury – four-month disqualification; and
    4. (d)
      Charge Four – that Mr Vale made a serious threat towards Tony Smith – twelve-month disqualification (to be served concurrently with the period of disqualification relating to Charge Three).  
  2. [5]
    On 8 July 2021 an internal review decision of the QRIC[1] (“the decision”) confirmed the original decision with respect to the charges and penalties imposed.
  3. [6]
    By an application for review filed 9 July 2021,[2] Mr Vale asks the tribunal to review the decision and in the course of that review to find him not guilty on all charges, or,  in the alternative, if found guilty, that the penalties imposed be limited to monetary penalties or suspended sentences to avoid the “manifestly excessive”[3] outcome of disqualification.
  4. [7]
    The operation of the decision has been stayed[4] pending the outcome of the application for review.
  5. [8]
    The role of the tribunal in these proceedings is to review the circumstances afresh and to produce the correct and preferable decision.[5]
  6. [9]
    The role of QRIC is to assist the tribunal in making that decision,[6] rather than to take an adversarial role or to defend the decision under review.
  7. [10]
    Parties declined to call witnesses at the hearing and relied instead on material filed pursuant to section 21(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”) and their submissions.

Does the tribunal have jurisdiction to hear this application?

  1. [11]
    The tribunal has jurisdiction to deal with matters if empowered to do so by the QCAT Act or by an enabling Act[7] and its review jurisdiction is the jurisdiction conferred upon it by the enabling Act to “review a decision made or taken to have been made by another entity under that Act”.[8] 
  2. [12]
    A decision to take disciplinary action relating to a license is an original decision of the QRIC[9] and Mr Vale as the license holder adversely affected by the decision is a person interested in the decision[10].
  3. [13]
    As the internal review decision confirmed the original decision, the original decision is taken to be the interview review decision[11].
  4. [14]
    Under section 246 of the RIA and section 18 of the QCAT Act, Mr Vale is able to apply for a review of QRIC’s decision.
  5. [15]
    I am satisfied that the decision is one the tribunal has jurisdiction to review.

The altercations that gave rise to the decision

Mr Vale’s account

  1. [16]
    Mr Vale says[12] that on the morning of 10 June 2021:
    1. (a)
      whilst walking a horse down the back track at the Rockhampton Jockey Club, he was informed that his former partner, Ms Chambers, with whom he remained on good terms, had taken a bad fall and that he should “get there quickly”;
    2. (b)
      he attended upon Ms Chambers (who was motionless and barely coherent) for twenty to thirty minutes until an ambulance arrived, then assured Ms Chambers that he would follow the ambulance to the hospital and walked in the direction of his car for that purpose;
    3. (c)
      in the car park, as he approached a trailer containing the euthanised horse Ms Chambers had been riding prior to her fall, Mr Vale observed, and took umbrage at, three men “taking pictures and laughing” at the body of the euthanised horse;
    4. (d)
      Mr Vale approached the three males – later identified as Tyresse Smith, Preston Smith and Mr Abel – and questioned a number of times what was so funny about a dead horse and a badly injured jockey, to which he said he was told to “mind your own business” and that the men[13] could “do what they liked”;
    5. (e)
      Mr Vale says Tyresse Smith and Preston Smith then approached him, one up in his face and the other rubbing his chest against Mr Vale’s arm;
    6. (f)
      Mr Vale felt threatened and told the men to “get out of my face” to which they kept replying “what are you going to do about it?”;
    7. (g)
      Mr Vale then pushed the men to get them out of his personal space and to make it easier to protect himself if they threw any punches (these pushes are the subject of Charges One and Two);
    8. (h)
      he was then tackled from the side by Tony Smith – father of Tyresse Smith and Preston Smith – who grabbed Mr Vale by the jumper and made as if to throw a punch;
    9. (i)
      Mr Russell – a friend of Mr Vale and Tony Smith – then intervened trying to break the argument up, attempting to have Tony Smith come away from Mr Vale;
    10. (j)
      Mr Vale kept saying to Tony Smith that he refused to fight because he did not want to lose his licence, keeping his hands in his pockets most of the time so as to be non-aggressive;
    11. (k)
      Tony Smith resisted the efforts of Mr Russell to remove him and continued to grab Mr Vale by the jumper, cocking his arm and baulking punches at Mr Vale with a clenched fist;
    12. (l)
      at this point Tony Smith headbutted Mr Vale, causing injury to Mr Vale’s top lip and nose;[14]
    13. (m)
      Mr Vale attempted to retreat from Tony Smith by walking in the direction of his car but says Tony Smith followed him and continued his attempts to provoke a fight;
    14. (n)
      he was about sixty metres from where the argument originally started at when Mr Williams – the racecourse manager – approached in a ute;
    15. (o)
      as Mr Vale made a complaint to Mr Williams about the conduct of the men involved in taking photographs of the deceased horse, Tony Smith grabbed Mr Vale’s collar again and cocked his fist (this was, Mr Vale says, about the thirtieth time he had done so);
    16. (p)
      Mr Vale then grabbed Tony Smith, headbutted him and pushed him to overpower him so that Tony Smith would leave Mr Vale alone (the headbutt is the subject of Charge Three);
    17. (q)
      once that occurred Mr Smith said “I’ve got you now, you will never train a horse again – that’s all I wanted you to do” and after some further scuffling the incident was over; and
    18. (r)
      in response to Mr Smith saying “I’ve got you now”, Mr Vale responded with words to the effect of “well I’ll get your brother, because he has done a lot wrong at the track”. 
  2. [17]
    Mr Vale does not admit to making a death threat to Tony Smith during the altercation (being the subject of Charge Four).

The evidence of other witnesses

  1. [18]
    A number of witnesses gave evidence to the QRIC about the incident, including Tony Smith, Preston Smith, Tyresse Smith, Mr Russell and Mr Williams, who are identified in the above account of the incident given by Mr Vale.  Notably, Mr Russell told stewards that he considers both Tony Smith and Ricky Vale to be his friends and that he would not take sides but was going to tell the truth to the Stewards’ Inquiry.[15]
  2. [19]
    To the extent that these witnesses gave evidence that lends some weight or support to Mr Vale’s account I observe the following:
    1. (a)
      Tyresse Smith said[16] that:
      1. Preston was laughing at Mr Vale prior to Mr Vale “half-pushing” Tyresse’s shoulder, and pushing Preston “in the one motion”;
      2. Tyresse pushed Mr Vale back and Preston threw his water bottle at Mr Vale;
      3. Tony Smith ran over “not even five seconds later” and pushed Mr Vale at which point Mr Vale and Tony Smith began to “push and shove” each other;
      4. when Tony Smith came over and pushed Mr Vale:
        1. Tony Smith was being the more aggressive; and
        2. he had his first ready to throw punches;
      5. Mr Vale had his hands in his pockets at the start of the interaction but pulled them out when pushed by Mr Smith;
      6. Further pushing and shoving ensued, then the headbutt; and
      7. The entire incident lasted “about five minutes”.
    2. (b)
      Preston Smith said[17] that:
      1. He was laughing at Mr Vale;
      2. Tony Smith had his hands up when he first approached Mr Vale;
      3. Tony Smith’s demeanour was “really pissed off, just really angry”;
      4. Mr Russell “popped up and tried to break it up and tried to distance my father away from Ricky”;
      5. Mr Vale had walked away from Tony Smith when the altercation first died down, before the headbutt; and
      6. The entire incident took “five to ten minutes”.
    3. (c)
      Tony Smith said[18] that:
      1. He ran a distance of approximately twenty metres to the scene when he saw Mr Vale push his son or sons;[19]
      2. He got in Mr Vale’s face;
      3. He “had a fist up” and “was going to throw a punch”;
      4. He “shaped up” to Mr Vale meaning he put his hands up, had them to Mr Vale’s face and was going to throw a punch;
      5. There was contact but no punches;
      6. He called Mr Vale “everything I could” and was “very angry”;
      7. He invited Mr Vale to “go on, swing a punch” to which Mr Vale replied that he was not going to throw a punch and lose his license over Mr Smith;
      8. He told Mr Vale to take his hands out of his pockets and when he did so, Mr Smith “went to swing”;
      9. He told Mr Vale to take his hands out of his pockets at least two times calling him “weak bastard” and “weak cunt”;
      10. There was pushing and shoving for “three or four minutes” and Mr Vale had walked “maybe ten metres” away from where the altercation first started by the time Mr Williams arrived;
      11. After Mr Williams arrived, he was rushed at by Mr Vale, pushed against Mr Williams’s car and headbutted; and
      12. After the headbutt he said to Mr Vale “I’ve got you now, you’re gone”.
    4. (d)
      Craig Russell said[20] that:
      1. He overheard raised voices and came across Mr Vale and Tony Smith in their altercation;
      2. He could hear Tony Smith more than he could hear Mr Vale, and Mr Smith appeared to be the more aggressive of the two parties;
      3. He got between the two men and tried to calm it down;
      4. Tony Smith attempted “I’d probably say a headbutt – he tried to run his head up beside Ricky’s face… I don’t know if it was a headbutt, but he sort of ran his head into his head anyway – you’d probably call it a headbutt I suppose”;
      5. When asked if the contact was strong he said “strong enough” and later that “it definitely would have been felt”;
      6. Mr Vale headbutted Tony Smith too, but had his hands in his pocket “for quite a long time before that happened”; 
      7. Tony “lost the plot there and he just wanted to sort of keep going with it” before the headbutt from Mr Vale;
      8. He kept trying to take Tony Smith away from Mr Vale but Tony Smith kept pushing Mr Russell away and coming back to Mr Vale;
      9. Tony Smith raised his fists to throw a punch at Mr Vale “quite a few times” before the headbutt;
      10. Mr Vale had walked a “fair distance” from when the first altercation started before Mr Vale’s headbutt occurred; and
      11. He was standing right beside the men but didn’t hear any threats “they were just arguing”.
    5. (e)
      Trent Williams said that Mr Vale had his hands in his pockets during the start of the second interaction.
  3. [20]
    Additional witnesses at the track were Mr Burnell, a groundskeeper, Ms Mergarde, a track work rider, Ms Morris, a stable hand, and Ms Hohn, a licensed trainer.  Some video footage of part of the incident was also made available to the QRIC during their investigation and to the tribunal in these proceedings.
  4. [21]
    To the extent these additional witnesses gave evidence lending some weight or support to Mr Vale’s account:
    1. (a)
      Mr Burnell said:
      1. he was speaking with Tony Smith when they both observed a heated exchanged between Mr Vale and Preston Smith;
      2. He saw Mr Vale push Preston Smith;
      3. Tony Smith jogged over and his interaction with Mr Vale was heated;
      4. Mr Burnell tried to separate the men but they were too strong for him;
      5. Mr Smith continually told Mr Vale to take his hands out of his pockets and, with his hands in his pockets Mr Burnell’s impression of Mr Vale was that he did not want to fight; and
      6. Mr Vale was walking towards his car when the parties came together again and the headbutt the subject of Charge Three occurred.
    2. (b)
      Ms Mergarde said:[21]
      1. Tony Smith was jumping up at Mr Vale;
      2. Mr Vale kept his hands in his pocket and then by his sides;
      3. Tony Smith attempted to throw a punch at Mr Vale, who stepped back to avoid it; and
      4. Mr Vale walked away from the incident at which point Tony Smith “sort of went after him and kept yelling at him and going at him like a dog”, Mr Vale stated that he wasn’t going to fight and walked off to his car.
    3. (c)
      Ms Hohn said:[22]
      1. she saw Mr Vale approach Preston and Tyresse Smith and ask them not to photograph the dead horse (she did not seek them taking photographs);
      2. she heard the boys laugh at Mr Vale;
      3. she continued working on her horse and heard a “ruckus” in the background;
      4. when she next looked up Mr Vale was walking away from the horse float when the boys approached him and got up in his face “yelling and carrying on like idiots” and “trying to be ho hum and fight” Mr Vale;
      5. Tony Smith was trying to punch Mr Vale but she can’t say if it connected; 
      6. Mr Vale tried to walk away but the men stayed in his face;
      7. She then starting recording video of the incident;
      8. Mr Vale pushed the boys away and walked away from the horse float;
      9. She didn’t hear any threats;
      10. She heard Mr Vale say that he wasn’t going to lose his license over “you grubs”; and
      11. She insisted that “Ricky attempted to walk away and it was hot under the collar for a long time”.
    4. (d)
      Ms Morris said:[23]
      1. Tony Smith approached Mr Vale yelling and jumped into his chest;
      2. Tony Smith kept pushing and Mr Vale turned and walked away, by approximately sixty metres;
      3. Tony Smith has come back at Mr Vale and they’ve bumped together; and
      4. She saw the incident from about “twenty steps away”.
  5. [22]
    Where there is little or no support for, or evidence that contradicts Mr Vale’s account:
    1. (a)
      Tony Smith denied having threatened Mr Vale, having punched him or headbutting him during their interactions.  He also denied being motivated in the interaction to wind Mr Vale up and rather said he was angry because Mr Vale had put his hands on his son.  He said that Mr Vale said “I’m going to kill you, I’ll get you back” before Mr Williams arrived on the scene (namely, before the headbutt).
    2. (b)
      Trent Williams said that both men approached one another upon his arrival at the scene, with Mr Vale the first to grab Mr Smith and after the headbutt Mr Vale said to Mr Smith “I will fucking kill you, you and your brother” and that he did not recall hearing Mr Smith say to Mr Vale words to the effect of “that’s what I wanted you to do”.
    3. (c)
      Tyresse Smith said, after the headbutt, he heard Mr Vale say to Mr Smith words to the effect of “Ill catch you after the races” and then “you’re a dead man” to which Mr Smith responded “yeah, yeah you will”.
    4. (d)
      Preston Smith said that after the headbutt he heard Mr Vale tell Mr Smith “you’re a dead man” to which Mr Smith may have responded to Mr Vale “you’re a pussy” or something similar.  He also said that things had died down and the parties had separated before Mr Smith came back towards Mr Vale (the second exchange).
    5. (e)
      Mr Burnell said[24] he saw no aggression from Preston or Tyresse Smith towards Mr Vale until after Mr Vale pushed the boys, and could not recall any words exchanged by the parties aside from Mr Vale saying to Mr Smith “you’re a dead cunt” at the start of the altercation.  He said that once Mr Williams arrive on-scene, he “pretty much left straight after that”.
  6. [23]
    The injury to Mr Smith was serious: he was diagnosed with post-concussion syndrome and minimally displaced fractures of the left and right nasal bones and a non-displaced fracture at the tip of the nasal pyramid[25].
  7. [24]
    The injury to Mr Vale was less serious, but his lip was split and bleeding as a consequence of the contact[26].

What factors should the tribunal consider in making its decision?

  1. [25]
    Section 3 of the RIA provides that the main purposes of the RIA are:
    1. (a)
      to maintain public confidence in the racing of animals in Queensland for which betting is lawful; and
    2. (b)
      to ensure the integrity of all persons involved with racing or betting; and
    3. (c)
      to safeguard the welfare of all animals involved in racing.
  2. [26]
    Doubtless, rule 228(b) has an important role to play in advancing the integrity of persons involved in racing and public confidence in them, and the QRIC therefore has an important role to play in enforcing that rule. 
  3. [27]
    There is no question that a physical or violent altercation is behaviour that ought to be regarded as “misconduct, improper conduct or unseemly”.
  4. [28]
    As the tribunal said in El-Issa v Racing Queensland Limited:[27]

Physical fighting is a serious matter. It must be discouraged, and others must be deterred from engaging in that conduct.

  1. [29]
    Further, serious threats are also conduct that is improper or unseemly and would breach rule 228(b) if established to have occurred and in the absence of any defence to it.

Mr Vale’s submissions

  1. [30]
    Mr Vale argues that in the circumstances in which the charges arose, he is justified or excused, or, in other words, he has a complete defence to the charges of misconduct on the basis that his actions were provoked and (or in the alternative) necessary as a matter of self-defence. 
  2. [31]
    In Palmer v The Queen,[28] the Privy Council said:

It is both good law and good sense that a man who is attacked may defend himself.  It is both good law and good sense that he may do, but may only do, what is reasonably necessary.  But everything will depend upon the particular facts and circumstances.

  1. [32]
    Schedule 1 of the Criminal Code Act 1899 (Qld) (“the Criminal Code”) allows for the use of force in self-defence and distinguishes between self-defence to provoked and to unprovoked assaults.
  2. [33]
    The Mr Vale directed the tribunal to the following sections of the Criminal Code (my emphasis added):

Section 245 Definition of Assault

  1. (1)
    A person who strikes, touches, moves, or otherwise applies force of any kind to the person of another, either directly or indirectly, without the person’s consent…or who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without the other person’s consent, under such circumstances that the person making the attempt or threat has actual or apparently a present ability to effect the person’s purpose, is said to assault that other person, and the act is called an assault.
  2. (2)
    In this section—

applies force includes the case of applying heat, light, electrical force, gas, odour, or any other substance or thing whatever if applied in such a degree as to cause injury or personal discomfort

268 Provocation

  1. (1)
    The term provocation, used with reference to an offence of which an assault is an element means and includes… any wrongful act or insult of such a nature as to be likely, when done to an ordinary person, or in the presence of an ordinary person to another person who is under the person’s immediate care, or to whom the person stands in a conjugal, parental, filial,, or fraternal relation…to deprive the person of the power of self-control, and to induce the person to assault the person who whom the act or insult is done or offered.
  2. (2)
    When such an act or insult is done of offered by one person to another, or in the presence of another person who is under the immediate care of that other, or to whom the latter stands in any such relation as aforesaid, the former is said to give to the latter provocation for an assault. 

269 Defence of Provocation

  1. (1)
    A person is not criminally responsible for an assault committed upon a person who gives the person provocation for the assault, if the person is in fact deprived by the provocation of the power of self-control, and acts upon it on the sudden and before there is time for the person’s passion to cool, and if the force used is not disproportionate to the provocation and is not intended, and is not such as it likely, to cause death or grievous bodily harm.
  2. (2)
    Whether any particular act or insult is such as to be likely to deprive an ordinary person of the power of self-control and to induce the ordinary person to assault the person by whom the act or insult is done or offered, and whether, in any particular case, the person provoked was actually deprived by the provocation of the power of self-control, and whether any force used is or is not disproportionate to the provocation, are questions of fact.

270 Prevention of repetition of insult

It is lawful for any person to use such force as is reasonably necessary to prevent the repetition of an act or insult of such a nature as to be provocation to the person for an assault, if the force used is not intend and it not such as is likely, to cause death or grievous bodily harm.

271 Self-defence against unprovoked assault

  1. (1)
    When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for the person to use such force to the assailant as is reasonably necessary to make effectual defence against the assault, if the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm.
  2. (2)
    If the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm, and the person using force by way of defence believes, on reasonable grounds, that the person cannot otherwise preserve the person defended from death or grievous bodily harm, it is lawful for the person to use any such force to the assailant as is necessary for defence, even though such force may cause death or grievous bodily harm.

272 Self-defence against provoked assault

  1. (1)
    When a person has unlawfully assaulted a person or has provoked an assault from another, and that other assaults the person with such violence as to cause reasonable apprehension of death or grievous bodily harm, and to induce the person’s preservation from death or grievous bodily harm to use force in self-defence, the person is not criminally responsible for using any such force as is reasonably necessary for such preservation, although such force may cause death or grievous bodily harm.
  2. (2)
    This protection does not extend to a case in which the person using force which causes death or grievous bodily harm first begun the assault with intent to kill or to do grievous bodily harm to some person; nor to a case in which the person using force which causes death or grievous bodily harm endeavoured to kill or to do grievous bodily harm to some person before the necessity of so preserving himself or herself arose; nor, in either case, unless, before such necessity arose, the person using such force declined further conflict, and quitted it or retreated from it as far as was practicable.
  1. [34]
    Whether section 271 or section 272 applies depends on the outcome of a conflict in evidence about:
    1. (a)
      who was the aggressor (who was responsible for the initial assault); and
    2. (b)
      whether there was provocation by the defendant for the assault upon him/her.[29]
  2. [35]
    The tribunal has accepted that Criminal Code defences can apply in misconduct proceedings before it.
  3. [36]
    In Bode v Queensland All Codes Racing Industry Board,[30] Mr Bode was prosecuted for misconduct, improper conduct or unseemly behaviour under then rule 175(q) of the ARR following a carpark altercation in respect of which Mr Bode argued self-defence when he pushed a fellow to the ground.  
  4. [37]
    In Bode, the Board contended that regardless of what occurred and whether it was provoked or in self-defence Mr Bode had engaged in misconduct, improper conduct or unseemly behaviour:

Effectively, the Respondent’s position is that regardless of whether the Applicant’s version of what occurred is accepted, his involvement in the incident amounts to a breach of Rule AR175(q) and the decision of the Inquiry and the RDB should stand. That is, his actions amounted to misconduct, improper conduct or unseemly behaviour.[31]

  1. [38]
    The tribunal was not convinced that a position of “strict liability” was to be adopted because that would have the effect of offences under the ARR abrogating the statutory right of an individual to defend themselves against unprovoked assault, saying that:

The conduct of lawful self-defence cannot in itself be a wrongdoing. If it is not a wrongdoing, then it cannot be misconduct, improper conduct or unseemly behaviour.[32]

  1. [39]
    In Russell v Queensland Racing Integrity Commission[33] a greyhound trainer became involved in a verbal altercation with another trainer, which escalated to a physical fight between the two and resulted in charges against both men, Mr Russell[34] and Mr Crick.  The tribunal found[35] that:
    1. (a)
      Mr Russell was a willing participant in the altercation with Mr Crick and that he helped fuel the aggression between the two by maintaining a verbal exchange;
    2. (b)
      Mr Crick came very close to Mr Russell’s face;
    3. (c)
      Mr Russell was ready to fight with his shoulders up and arms out – he was prepared to fight rather than be “stood over” by Mr Crick and pushed Mr Crick in the chest as the first blow struck in the fight;
    4. (d)
      Mr Russell threw punches at Mr Crick during the course of the fight; and
    5. (e)
      Both men punched each other in the head.
  2. [40]
    Mr Russell’s preparedness to fight and that he struck the first blow in the fight convinced the tribunal that he was a willing and active participant in the physical fight which occurred.  Further, that even though there was an element of provocation involved when Mr Crick followed Mr Russell and stood very close to him, Mr Crick’s conduct was not such that Mr Russell had no option but to engage in a physical fight to defend himself.  Further, the tribunal found that at any time during the engagement between Mr Crick and Mr Russell the altercation could have been defused by self-control and restraint in language and conduct, which did not occur on the part of either man. 

Submissions of QRIC

  1. [41]
    QRIC does not argue in this case that provocation or self-defence cannot be raised as a complete offence to charges under rule 228(b), but says, rather that, in respect of each of the four charges, the circumstances of the incident on 10 June 2021 did not amount to or give rise to those defences.

Charges One and Two – the pushes

  1. [42]
    QRIC argue that Mr Vale did not act in self-defence (whether provoked or unprovoked) and did not act to prevent a repetition of insult with respect to his interaction and pushing of Tyresse Smith and Preston Smith.
  2. [43]
    QRIC reject the assertion that the mere perception that Preston and Tyresse were laughing at the plight of a dead horse and the taking of photographs of that house for the purpose of placing them on social media does not amount to insult or threat to Mr Vale.
  3. [44]
    They point to the evidence of Mr Burnell who says that he heard Mr Vale yelling at Preston and Tyresse, that there was no aggression from Tyresse and Preston prior to the push – and in fact that they “seemed to be pretty placid” – and that it was the push by Mr Vale that triggered the aggression.

Charge Three – the headbutt

  1. [45]
    QRIC say that there were two separate interactions between Mr Vale and Tony Smith and that the evidence of each man, unsurprisingly, differs as to what occurred.
  2. [46]
    They distinguish the first interaction from the second, saying that the headbutt occurred in the second interaction and what is clear on the evidence is that, during that second exchange and immediately prior to the headbutt, both men were pushing and shoving each other.  QRIC argue that the fact that Mr Vale had his hands in his pockets during the first altercation and for some time prior to the second altercation is of no matter because both men subsequently came into contact with each other during the second exchange when the headbutt occurred.  
  3. [47]
    They say that Mr Williams’ evidence is that, prior to the pushing and shoving, both men walked towards each other and Mr Vale was the first to grab Tony Smith.   In this sense, without citing it, they describe a situation not dissimilar to that in the Russell case, referred to above.
  4. [48]
    QRIC also say that Mr Williams says he did not see Tony Smith cock a fist prior to the headbutt.  They say, at best, if the tribunal was to find that Mr Vale felt threatened/concerned by Tony Smith because he approached Mr Vale in the carpark, that concern did not justify Mr Vale’s escalation of the altercation by using dangerous force.  
  5. [49]
    They submit that the actions of Tony Smith in the second exchange cannot provide any defence of provocation.

Charge Four – the threat

  1. [50]
    The QRIC submit that in circumstances where:
    1. (a)
      Mr Vale does not specifically deny making a threat;
    2. (b)
      two independent witnesses, Mr Burnell and Mr Williams, heard Mr Vale make “the threat”; and
    3. (c)
      where it is alleged by Mr Vale that Tony Smith called him a “fuckhead” (being an expression of opinion rather than a threat),

there are no grounds to suggest that any threat made by Mr Vale to Tony Smith was justified on the ground that it was borne out of provocation.   They say that no provocation can arise from an allegation that Tony Smith called Mr Vale a “fuckhead” or similar names because they amount to expressions of opinion rather than threats.

Findings in relation to Charges One and Two – pushing Preston and Tyresse Smith

  1. [51]
    Much was made of whether Preston and Tyresse Smith took photographs of the deceased horse with an intent to post them to social media.   
  2. [52]
    Whether or not they did take such photographs may be relevant to assessing their character, and whether they breached the ARR, but these aren’t matters for the tribunal in these proceedings.
  3. [53]
    For the purpose of these proceedings, I accept Mr Vale’s evidence that when he approached Preston Smith and Tyresse Smith he believed that they were taking photographs and, therefore, that he believed he was himself intervening in a breach of rule 228(b) of the ARR.  The belief appears to have been reasonably held given Mr Vale’s observations of the young men including the angle at which they held the phone in the direction of the horse.
  4. [54]
    However, what Mr Vale ought to have done differently, having formed this belief, is to make his complaint to stewards rather than approaching Preston and Tyresse Smith directly, and certainly not in circumstances where his emotions were likely heightened by his anxiety and concern over Ms Chambers’ injury.
  5. [55]
    Having reviewed all of the evidence, I find on balance that:
    1. (a)
      Mr Vale was a willing participant in the altercation with Preston and Tyresse Smith by initiating a verbal exchange with them after witnessing what he believed to be unseemly conduct on their part towards the deceased horse from which Ms Chambers had fell.
    2. (b)
      Preston Smith and Tyresse Smith then engaged in conduct towards Mr Vale that included getting close to Mr Vale’s body, laughing at him and making verbal taunts.   This conduct by Preston and Tyresse Smith was inappropriate and insensitive to the situation of Ms Chambers and the deceased horse they were in company of. 
    3. (c)
      Preston and Tyresse Smith were much younger and physically smaller than Mr Vale, but with their acquaintance, Mr Abel, outnumbered him. 
    4. (d)
      There was an element of provocation involved in Preston Smith laughing at Mr Vale, and in both Preston and Tyresse Smith and Mr Abel crowding Mr Vale.  
    5. (e)
      Nonetheless, Mr Vale was a willing and active participant in the verbal stoush that occurred, and I do not accept that the conduct of Preston and Tyresse Smith was such that Mr Vale had no option but to push them away.  
    6. (f)
      Mr Vale initiated the first physical contact with Preston and Tyresse Smith.
    7. (g)
      At any time during the engagement with Preston and Tyresse Smith the altercation could have been defused by Mr Vale exercising self-control and restraint in language and conduct, or by retreating from the exchange.
  6. [56]
    In those circumstances, I find that Mr Vale was not acting in self-defence or in circumstances of provocation when he gave the pushes the subject of Charge One and Charge Two and, therefore, the charges are made out.

Findings in relation to Charge Three – headbutting Tony Smith

The first exchange between Mr Vale and Mr Smith

  1. [57]
    Tony Smith told stewards that he witnessed the interchange between his sons and Mr Vale and ran toward the group with the intent of punching Mr Vale.
  2. [58]
    Over the next three or so minutes, Tony Smith admits, and other witnesses say that Tony Smith made repeated and concerted efforts to provoke Mr Vale to strike him and to fight:
    1. (a)
      physically, by repeatedly making to throw/baulking punches at Mr Vale with a raised, cocked first; and
    2. (b)
      verbally, by goading Mr Vale to take his hands out of his pockets and fight, by calling him a “weak cunt” and by saying directly to Mr Vale “hit me”.
  3. [59]
    Tony Smith’s demeanour, according to his own evidence and that of his sons, at the time he was engaging in these actions was aggressive and “very angry”.   Mr Russell went so far as to say that Mr Smith “lost the plot”.
  4. [60]
    The actions of Tony Smith evinced a clear, express intention on the part of Tony Smith to provoke Mr Vale into a physical altercation. 
  5. [61]
    Mr Vale attempted for quite some time to avoid the physical altercation with Tony Smith by keeping his hands in the jacket of his pockets or keeping his hands by his side and by stating, repeatedly that he did not want to fight. 
  6. [62]
    Tony Smith could not be calmed and did not respond to attempts by his friend, Mr Russell, to remove him from the vicinity of Mr Vale.   Witnesses describe the efforts of Mr Russell to remove Tony Smith from Mr Vale, not to remove Mr Vale from Mr Smith.
  7. [63]
    At some point during this first exchange, Tony Smith made contact with Mr Vale’s head, causing a bleeding injury to his lip.  The QRIC described a “rubbing of heads” motion rather than a headbutt.  Mr Russell described the contact as “strong” contact by Tony Smith’s head.  This supports Mr Vale’s submission that Tony Smith caused his injury with a headbutt-type action. The photographic evidence of Mr Vale’s injuries[36] supports a conclusion that there was contact and QRIC conceded that they had no contradictory evidence.
  8. [64]
    Mr Vale refused to fight Tony Smith, attempted to retreat from the situation despite his minor injury and did in fact retreat by some distance (at least ten metres) away from Tony Smith to the direction of his car.

The second exchange between Mr Vale and Mr Smith

  1. [65]
    Tony Smith was not deterred from his intended course of action to provoke Mr Vale by the involvement of friend, Mr Russell, by Mr Vale attempting to retreat and pursued Mr Vale into the second exchange. 
  2. [66]
    The period of time that passed between the two exchanges was not sufficient to allow the “cooling of heads” because:
    1. (a)
      the intervening time was very brief – perhaps the time it took Mr Vale to walk ten to thirty metres and no longer – witness accounts describe the entire interaction as being of minimum five and maximum ten minutes duration, so the intervening time between the two exchanges seems unlikely on the evidence to have lasted any longer than a minute;
    2. (b)
      in any event, there seems to have been little to no “pause” between the two exchanges, with Tony Smith continuing his behaviour of pursuing Mr Vale and attempting to provoke a fight as Mr Vale traversed the carpark towards his car; and
    3. (c)
      even if Tony Smith did not baulk any punches at Mr Vale during the second exchange, his pursuit of Mr Vale who was trying to retreat and contact with and grabbing and taunting Mr Vale during the first exchange would have given rise to a reasonable apprehension by Mr Vale that the punching actions would continue, that they would inevitably result in further contact with and injury to Mr Vale, and that Tony Smith was not deterred from his intended attacks upon Mr Vale by the act of Mr Vale retreating, keeping his hands in his pockets or using the express words that he was not going to fight.
  3. [67]
    The decision in Russell is distinguished in a number of respects, particularly in regard to:
    1. (a)
      Mr Smith running to Mr Vale;
    2. (b)
      Mr Smith making contact with Mr Vale;
    3. (c)
      Mr Vale’s repeated refusal to fight Mr Smith, keeping of hands in his pocket and by his side;
    4. (d)
      Mr Smith’s refusal of efforts made by others to remove him from Mr Vale; and
    5. (e)
      Mr Vale’s attempts to retreat from Mr Smith;
    6. (f)
      Mr Smith’s pursuit of Mr Vale to continue his threatening conduct towards Mr Vale.
  4. [68]
    Whilst for convenience, two exchanges or interactions have been described, the evidence supports that there was really only one interaction between Mr Smith and Mr Vale that continued with Mr Smith pursuing Mr Vale despite Mr Vale’s efforts to disengage and the efforts of Mr Russell to have keep Mr Smith away. 
  5. [69]
    If Mr Vale’s initial pushing of Mr Smith’s sons was sufficient to provoke Mr Smith’s actions, the questions for the tribunal are whether Mr Vale acted on the sudden and before there was time for his “passion to cool” and whether then the force he used was proportionate.  I am satisfied for the reasons given above that Mr Vale did act on the sudden and there was no time for “cooling” before he headbutted Mr Smith.
  6. [70]
    Certainly, if Mr Smith was provoked, the evidence of Mr Smith’s reaction and conduct towards Mr Vale was not proportionate to the pushing of his sons.
  7. [71]
    The demeanour of Mr Smith was aggressive and very angry, he ran at Mr Vale to commence the exchange, he intended to throw a punch, he baulked several punches, he was not able to be pulled away, he made contact by his head with Mr Vale’s head causing injury, and he pursued Mr Vale as Mr Vale walked away.  He clearly posed a threat to Mr Vale in those circumstances and Mr Vale had reasonable grounds to believe that it was necessary to act to avoid further harm. I find that Mr Vale’s use of force was reasonably necessary in circumstances where Mr Smith had first caused contact with his head and where the two men, according to witnesses were by that time pushing and shoving and where the use of arms may well have resulted in striking a by-stander. 
  8. [72]
    If Mr Smith was not provoked the question is whether the use of force was reasonably necessary to make effectual defence against the assault and for the reasons previously given, I find that it was.
  9. [73]
    I find that the headbutt by Mr Vale occurred in a sudden and proportionate reaction to an assault and aggressive, threatening behaviour by Mr Smith – regardless of whether Mr Smith himself was provoked to so act towards Mr Vale – and I am satisfied that the defences of provocation and, in the alternative, self-defence against provoked assault are made out with respect to Charge Three such that Mr Vale is not guilty of misconduct in the circumstances of that charge.

Findings in relation to Charge Four – verbally threatening Tony Smith

  1. [74]
    I am not convinced by the applicant’s submissions that the issue of provocation is relevant to this particular charge.  
  2. [75]
    The difficulty with this particular charge is a matter of evidence where: 
    1. (a)
      the only concession by Mr Vale in relation to what may have been said related  to a comment regarding Tony Smith’s brother and that wasn’t a threat to harm, but rather to report misconduct/wrongdoing; and
    2. (b)
      witness accounts in relation to whether or not a threat was made and, if it was, what was said, and when it was said all differ, even though many of the witnesses were quite close to men during the altercation.
  3. [76]
    There is evidence that Mr Vale may have said something to Mr Smith in the course of their altercation that might be taken as a threat.  
  4. [77]
    It may have been words to the effect of “you’re a dead man”[37] after the headbutt, or  “I will kill you”[38] before the headbutt, or “you’re a dead cunt”[39] at the very start of the altercation, or  “I’ll get you and your brother”[40] after the headbutt.  The words may have been said in the earlier part of the altercation – before or after Mr Smith made contact with Mr Vale and injured his lip – or after Mr Vale headbutted Mr Smith.  Witness evidence diverges on point and other witnesses[41] didn’t hear any threat at all.
  5. [78]
    Unfortunately, the tribunal cannot choose between several equally likely possibilities where compelling possibilities can only be resolved by conjecture.[42]   
  6. [79]
    The requisite standard of proof is the balance of probabilities, albeit to a sliding scale.  According to Justice Dixon in Briginshaw v Briginshaw[43]:

The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences 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 provided by inexact proofs, indefinite testimony, or indirect references.

  1. [80]
    The evidence against Mr Vale in relation to the verbal threat or threats made toward Mr Smith is, at best, indefinite and inexact and does not satisfy me to the requisite standard that the charge against Mr Vale is made out.

Penalties

  1. [81]
    The QRIC submit that the penalties imposed cannot be considered manifestly excessive and that there is no basis for the tribunal to depart from them. 
  2. [82]
    Mr Vale suggested deferring submissions on penalties until the decision of the tribunal was handed down on the question of guilt, the particular concern being the disqualification of Mr Vale’s licence.
  3. [83]
    Having regard to my decisions with respect to Charges Three and Four, the penalties imposed are monetary only, obviating the need for further submissions on point.

What of Mr Vale’s human rights?

  1. [84]
    As required by the Human Rights Act 2019 (Qld) I have had regard to Mr Vale’s human rights, including his right to freedom of expression[44] and the right to not have his reputation unlawfully attacked[45], however, in the circumstances I am satisfied that any limitation on these rights is consistent with the proper purpose of maintaining public confidence in the racing of animals in Queensland and ensuring the integrity of all persons involved with racing.

What is the “correct and preferable” decision? 

  1. [85]
    The correct and preferable decision is to set aside the decision of the Queensland Racing Integrity Commission dated 8 July 2021 and to substitute a decision that:
    1. (a)
      As to Charge One: Ricky John Vale breached Australian Racing Rule 228(b) on 10 June 2021 by making contact with Preston Smith, for which a monetary penalty of $1,000 is imposed.
    2. (b)
      As to Charge Two: Ricky John Vale breached Australian Racing Rule 228(b) on 10 June 2021 by making contact with Tyresse Smith, for which a monetary penalty of $1,000 is imposed.
    3. (c)
      As to Charge Three: Ricky John Vale did not breach Rule 228(b) on 10 June 2021 in making contact with Tony Smith by reasons of provocation and self-defence.
    4. (d)
      As to Charge Four: Ricky John Vale did not breach Rule 228(b) on 10 June 2021 as there is insufficient evidence that he made a threat to Tony Smith.

Footnotes

[1]  Made pursuant to section 243(1) of the RIA.

[2]  Made pursuant to section 246 of the RIA.

[3]  Annexure A to the Application to review a decision filed 9 July 2021 at paragraph [25].

[4]  Decision of Member Holzberger made 21 July 2021.

[5]  Section 20 of the QCAT Act.

[6]  Section 21, ibid.

[7]  Section 9(1), ibid.

[8]  Section 17(1), ibid.

[9]  Section 240(1)(b) of the RIA.

[10]  Section 241(b)(iv), ibid.

[11]  Section 245(4), ibid.

[12]  His statements in the Stewards meetings on 15 June 2021 and 21 June 2021 per the typed transcripts at Exhibits 11 and 12, respectively, and per his written statements, undated and dated 10 June 2021 (Exhibits 4 and 5, respectively).

[13]  For the record, Preston Smith was 16 years of age at the time of the incident, and the reference to “men” is for convenience, just as the reference to Preston Smith and Tyresse Smith as “boys” throughout material I assume was also for convenience.

[14]  Photographs marked Exhibit 5.

[15]  Transcript of Stewards’ Inquiry marked Exhibt 11, at page 28.

[16]  Transcript of Stewards’ Inquiry marked Exhibit 12, page 120 onwards.

[17]  Transcript of Stewards’ Inquiry, marked Exhibit 12 from page 115-119.

[18]  Transcript of Stewards’ Inquiry, marked Exhibit 11 from page 26-38.

[19]  He gave two slightly different accounts, but nothing turns on it.

[20]  Transcript of Stewards’ Inquiry, Exhibit 11 at pages 38-49.

[21]  Transcript of Stewards’ Inquiry market Exhibit 11, pages 10-19.

[22]  Transcript of Stewards’ Inquiry marked Exhibt 12, pages 90-101.

[23]  Transcript of Stewards’ Inquiry marked Exhibit 11, pages 20-26.

[24]  Transcripts of Stewards’ Inquiry, marked Exhibit 11, at pages 52-63 and Exhibit 12, at pages 102-109.

[25]  Medical records of Mr Smith marked Exhibit 8.

[26]  Photograph at Exhibit 5.

[27]  [2011] QCATA 280 at [28].

[28]  [1971] AC 814 at 831.

[29]  Supreme and District Courts Criminal Directions Benchbook. 

[30]  [2016] QCAT 529.

[31]  Paragraph [68], ibid.

[32]  Paragraph [69], ibid.

[33]  [2020] QCAT 329.

[34]  Not to be confused with the Mr Russell identified as a witness to the incident the subject of these proceedings.

[35]  [2020] QCAT 329 at [17]-[19].

[36]  Exhibit 5.

[37]  According to Tyresse and Preston Smith.

[38]  According to Tony Smith.

[39]  According to Mr Burnell.

[40]  According to Mr Williams.

[41]  Ms Hohn and Mr Russell for example.

[42] Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1, 5.

[43]  (1938) 60 CLR 336 at 362.

[44]  Section 21, Human Rights Act 2019 (Qld).

[45]  Section 25(b), ibid.

Close

Editorial Notes

  • Published Case Name:

    Vale v Queensland Racing Integrity Commission

  • Shortened Case Name:

    Vale v Queensland Racing Integrity Commission

  • MNC:

    [2021] QCAT 438

  • Court:

    QCAT

  • Judge(s):

    Member Lember

  • Date:

    21 Dec 2021

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
Bode v Queensland All Codes Racing Industry Board [2016] QCAT 529
2 citations
Jump To
Cite 1 - [2016] QCAT 529
Cite 2 - [2016] QCAT 529
Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1
2 citations
Jump To
Cite 1 - (1951) 217 ALR 1
Cite 2 - (1951) 217 ALR 1
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
El-Issa v Racing Queensland Limited [2011] QCATA 280
2 citations
Jump To
Cite 1 - [2011] QCATA 280
Cite 2 - [2011] QCATA 280
Palmer v The Queen (1971) AC 814
2 citations
Jump To
Cite 1 - (1971) AC 814
Cite 2 - (1971) AC 814
Russell v Queensland Racing Integrity Commission [2020] QCAT 329
3 citations
Jump To
Cite 1 - [2020] QCAT 329
Cite 2 - [2020] QCAT 329
Cite 3 - [2020] QCAT 329

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.