Smyth v Queensland Racing Integrity Commission
[2022] QCAT 242
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- Unreported Judgment
- Smyth v Queensland Racing Integrity Commission[2022] QCAT 242
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Smyth v Queensland Racing Integrity Commission[2022] QCAT 242
Smyth v Queensland Racing Integrity Commission[2022] QCAT 242
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Smyth v Queensland Racing Integrity Commission [2022] QCAT 242 |
PARTIES: | kerrod smyth (applicant) v queensland racing integrity commission (respondent) |
APPLICATION NO/S: | OCR175-21 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 10 June 2022 |
HEARING DATE: | 16 May 2022 17 May 2022 |
HEARD AT: | Brisbane |
DECISION OF: | Member Browne |
ORDERS: | The decision of Queensland Racing Integrity Commission of 11 June 2021 confirming the decision of the Stewards who found Kerrod Smyth breached the Australian Rules of Racing AR 236 and imposed a penalty of disqualification of Mr Smyth’s licence for six (6) months from 23 May 2021 to 23 November 2021 is set aside and the following decision is substituted: The charge that Kerrod Smyth breached Australian Rules of Racing AR 236 is not substantiated. |
CATCHWORDS: | PROFESSIONS AND TRADES – LICENSING OR REGULATION OF OTHER PROFESSIONS, TRADES OR CALLINGS – where licensed trainer of a horse received money from the jockey who was to ride the horse in a race – where licensed trainer placed a bet on the horse – where horse did not win or place – where steward’s inquiry into alleged bets placed on the horse – where jockey accepted and pleaded guilty to a charge – where licensed trainer charged and found guilty for breach of Australian Rules of Racing AR 236 – where penalty imposed by the stewards – where trainer applied for an internal review – where decision upheld on internal review – where trainer applies for external review – whether charge proven Australian Rules of Racing, AR 236 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 23 Racing Integrity Act 2016 (Qld), s 246 Ball v Queensland All Code Racing Industry Board [2020] QCATA 115 Briginshaw v Briginshaw (1938) 60 CLR 336 Crime and Misconduct Commission v Assistant Commissioner Ross Barnett [2010] QCAT 690 Graham v Queensland Racing Integrity Commission [2021] QCATA 125 Queensland Racing Integrity Commission v Kadniak [2017] QCATA 102 |
APPEARANCES & REPRESENTATION: | |
Applicant: | White, MD instructed by Butler McDermott Lawyers |
Respondent: | Farnden, SJ instructed by Queensland Racing Integrity Commission |
REASONS FOR DECISION
- [1]On 18 December 2020, the horse ‘Lily ofthe Glen’ (the horse) finished unplaced at Rockhampton Jockey Club in Race 3. The horse was ridden by licensed jockey Nigel Seymour.
- [2]Mr Smyth, the horse’s licensed trainer, was charged with a breach of Australian Rules of Racing AR 236 that he placed a bet of $200 for Mr Seymour on the horse in Race 3.
- [3]Mr Smyth disputed the charge and appeared by telephone at a number of hearings before the stewards. Mr Seymour was also present for some of the hearing below. Mr Seymour was charged and disciplined after pleading guilty to having an interest in two bets when he rode the horse under AR 115(1)(e).
- [4]Mr Smyth was found guilty of a breach of AR 236 and disciplined by the stewards.
- [5]Following an internal review, the Commission confirmed the stewards’ decision that Mr Smyth is guilty of the charge and to impose a penalty of disqualification of his licence for 6 months.[1]
- [6]Mr Smyth now applies to this Tribunal for a review of the Commission’s decision.[2] Mr Smyth says that he did place a $200 bet on the horse for his wife, Glenda Smyth on 17 December 2020. Mr Smyth accepts that on 16 December 2020, he received $200 cash from Mr Seymour but denies that he placed a bet for Seymour or for any other jockey or apprentice jockey.
- [7]The Commission contends that a number of text messages exchanged between Mr Smyth and Mr Seymour are compelling and indicative that Mr Smyth placed a $200 win bet on the horse on behalf of Mr Seymour.[3]
- [8]At the commencement of the oral hearing before this Tribunal, Mr White appearing for Mr Smyth applied to have the recordings and transcripts of the stewards’ hearings below excluded from the evidence to be relied upon and placed before the Tribunal. Mr White submitted that Mr Seymour is unavailable for cross-examination and his evidence is critical to the case and formed the scope of the inquiry conducted by the stewards at first instance. Mr White argued that the transcripts and recordings are irrelevant, there being sufficient evidence already before the Tribunal such as the evidence of Mr Smyth and other witnesses including John O'Shea, Liberty Smyth and Glenda Smyth who are all available for cross-examination.
- [9]In response, Ms Farnden appearing for the Commission submitted that the audio and transcripts are relevant and were produced as part of the Commission’s material pursuant to s 21 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). Mr Farnden submitted that any issues raised by Mr White with respect to fairness to Mr Smyth can be dealt with by way of closing submissions.
- [10]After listening to the oral submissions, I was comfortably satisfied that the audio recordings and transcripts of the recordings are relevant to facts to be determined in the review proceedings.[4] The question of admissibility of evidence before the Tribunal is a discretionary one and the Tribunal is not bound by the rules of evidence although the rules may provide useful guidance when deciding whether or not to admit particular evidence.[5] Further to that, the stewards who made up the panel for the hearings at first instance will be available for cross-examination and both Mr White and Ms Farnden will have an opportunity to address the Tribunal in their closing submissions about the weight to be given to relevant parts of the audio recordings and transcripts.[6]
- [11]For reasons explained below, my decision to refuse Mr White’s application to exclude the audio recordings and transcripts is not fatal to Mr Smyth’s application for review.
The Tribunal’s role on review
- [12]Section 246 of the Racing Integrity Act 2016 (Qld) (‘RI Act’) confers jurisdiction on the Tribunal to review the Commission’s decision of 11 June 2021.
- [13]The relevant disciplinary body who made the decision below, in this case the stewards, are comprised of experts with relevant knowledge and experience and are therefore well placed to decide the importance of rules and when they are contravened.[7] That said, Mr Smyth is entitled to review the Commission’s decision.
- [14]In conducting a review, the Tribunal has all of the functions of the decision-maker and conducts a fresh hearing on the merits to arrive at the correct and preferable decision.[8] The Tribunal’s function is to review the decision, there is no presumption that the decision below is correct and the Tribunal does not have to find a legal or factual error in order to make a different decision.[9]
- [15]In assessing the evidence, the Tribunal applies the common law standard of proof being ‘on the balance of probabilities’.[10] The Tribunal has a duty to bring the public perspective to bear and is bound to make its own decision on the evidence before it.
- [16]In the present matter, the evidence before the Tribunal comprises the audio recordings and transcripts of the stewards’ hearings below that proceeded a panel of stewards, James Adams, Christopher Allison and Ethan Suli. Relevant documentation before me now includes text messages exchanged between Mr Smyth and Mr Seymour, statements from witnesses, betting data and other material provided by Mr Smyth to the stewards in the hearing below.[11]
- [17]At the oral hearing before this Tribunal, Ms Farnden appearing for the Commission submitted that the particulars of the charge presented are as they appear in the Commission’s internal review decision now set out below:
Mr Smyth did place a bet for a licensed jockey in the amount of $200 on [the horse] in Race 3 at the Rockhampton Jockey Club on 18 December 2020 when that jockey rode [the horse] in that race.[12]
- [18]Ms Farnden submitted that the Tribunal on review can be satisfied based on a number of text messages exchanged between Mr Smyth and Mr Seymour and the placing of a bet by Mr Smyth through his TAB account on 17 December 2020, that the bet was placed by Mr Smyth on Mr Seymour’s behalf.
What is the correct and preferable decision?
- [19]It is non-controversial that on 17 December 2020, Mr Smyth placed a $200 bet to win on the horse through his TAB account. Mr Smyth transferred funds from his bank account to his TAB account to place the bet.[13] Further to that, on 16 December 2020, the day before Mr Smyth placed the bet, Mr Seymour gave Mr Smyth $200. Mr Smyth knew when he received the money that Mr Seymour wanted him to place a bet to win of $200 on the horse.
- [20]Mr Smyth says that he told Mr Seymour on three separate occasions that he would not be placing the bet.[14] It is convenient to set out below Mr Smyth’s evidence about what he says he told Mr Seymour about the $200:
- (a)Firstly, on 16 December 2020 and upon receiving $200 from Mr Seymour, Mr Smyth says he called after Mr Seymour words to the effect, ‘you’re dreaming, this will be here when you want to come back. I won’t be having this on.’[15] Mr Smyth contends that Jim O'Shea (trainer) overheard this conversation;
- (b)Secondly, on 16 December 2022 at 2:25pm Mr Smyth says Mr Seymour telephoned him and he told Mr Seymour that he would not be having a bet for him, as he (Mr Smyth) had told him earlier that day. Phone records show that Mr Smyth received a telephone call on 16 December 2020 at 2:35pm;[16] and
- (c)Thirdly, on 18 December 2020, the day of the race, Mr Seymour says whilst ‘legging’ Mr Seymour onto the horse, he told Mr Seymour that the money he had given him was in his gear bag in his truck and he (Mr Smyth) had not placed the bet.
- (a)
- [21]Prior to and following the race on 18 December 2020, Mr Seymour and Mr Smyth exchanged a number of text messages. On 12 December 2020, messages were exchanged between Mr Seymour and Mr Smyth as follows (emphasis added):[17]
12 December 2020 at 8:47
Mr Seymour says: ‘She be that right that filly mate. I’ve worked me times out n we hard held and probs run alongside or infront with that hold. A guy is Gonna put a gorilla on for us if ya still keen on that idea’.
12 December 2020 at 8:49
Mr Seymour says: ‘The money will come for a couple in the race. Coomes will be back his, so might Jamie’.
12 December 2020 at 12:45pm
Mr Smyth says: ‘K’
- [22]There is a further exchange of messages between Mr Seymour and Mr Smyth on 14 December 2020 (emphasis added):[18]
14 December 2020 at 4:56pm
Mr Seymour says: ‘I can txt a fella we think we all good to go hey. I think we are. May aswell have a good Xmas in my book mate’.
14 December 2020 at 5:09pm
Mr Smyth says: ‘Sure its owned by us so only have to please ourselves’.
14 December 2020 at 5:09pm
Mr Smyth says: ‘They will split this’.
14 December 2020 at 5:12pm
Mr Seymour says: ‘Yes mate. See how we go from now til night before. Best off not getting beat lol. There’s Enuff in the noms to say they play better than 4s for us. I hope no spolit and run with the top quote here hey. She is better than them. 4s 5s we can make something. I’ve $200 of my own I hand union the morn. But we match that with the other gorilla and we have 1400 on this horse. I pay Naomi out of my 200 bet. Collect the rest hahaha’.
14 December 2020 at 5:13pm
Mr Seymour says: ‘You have 500 of the gorilla I pushed for that too. Only wanted 500 on for me and I said no way this time dble that lol’.
14 December 2020 at 5:13pm
Mr Smyth says: ‘No need, I never bet in Qld and have it on in NSW’.
14 December 2020 at 5:16pm
Mr Seymour says: ‘…But I’m still handing U cash anyways just incase they spoil the fun and keep the cash…’.
14 December 2020 at 5:25pm
Mr Smyth says: Mate we need it on in NSW, eg Fanx was $12.50 and 4.10 a place last week QLD he was 4.50 ad 1.70.
14 December 2020 at 5:28pm
Mr Seymour says: …Can source another possibly…Everyone loves clean money hahhahhah.
14 December 2020 at 5:35pm
Mr Smyth says: ‘My son will be here from Wednesday with NSW account, can’t bet on course with one booky and a tote with sets QOP, so he will be able to have it on’.
14 December 2020 at 5:39pm
Mr Seymour says: ‘OK. Will leave this guy have a play with the k for us and I give ya some cash tomoz for me aswel. I’m kinda confident. Do t come cross these very often mate…Bet til ya eyes go black mate.
14 December 2020 at 5:44pm
Mr Smyth says: ‘Nelson will be there Wednesday, he has a large account so make some arrangements with hi when you meet.
…
14 December 2020 at 5:47pm
Mr Seymour says: ‘LOL. Then I have to carry cash for days lol. Best be I’ve seen for a while lol.
14 December 2020 at 6:28pm
Mr Smyth says: ‘You know at one stage the real saga looked the better of the 3yr olds at the jumpouts…so couple of the nice ones to come.
…
- [23]And then on 15 and 16 December 2020, there are further messages exchanged between Mr Seymour and Mr Smyth (emphasis added):
15 December 2020 at 5:07pm
Mr Seymour says: ‘’All ya gotta say is your not confident mate ok…
15 December 2020 at 5:14pm
Mr Smyth says: Seems good this arvi ate, can’t feel heat on shins through the mud and plastic wraps, they come off tomorrow…but so far so good.
16 December 2020 at 10:52am
Mr Seymour says: It be right mate…We be winning.
- [24]The day before the race on 17 December 2020, there is a further exchange:
17 December 2020 at 1:36pm
Mr Seymour says: Nice enuff race to dictate speed and place horses where I need for princess rules…
17 December 2020 at 3:25pm
Mr Seymour says: Went from $13 to 10 in minutes on 365 hey hahaha. …
17 December 2020 at 3:28pm
Mr Smyth says: Should I back ew or on nose.
17 December 2020 at 3:29pm
Mr Seymour says: Go hard or go home they say hey hahaha
17 December 2020 at 3:35pm
Mr Smyth says: Dropped to 9s as I did
17 December 2020 at 3:38pm
Mr Seymour says: I don’t think we will care too much if it goes off as planned lol
17 December 2020 at 5:15pm
Mr Seymour says: Give this everything we got mate
17 December 2020 at 4:16pm
Mr Smyth says: Done
17 December 2020 at 4:17pm
Mr Seymour says: Awesome
- [25]On 19 December 2020, after the horse race on 18 December 2020, there was a further exchange of messages:
19 December 2020 8:37am
Mr Seymour says: How’s [the horse] this morn
19 December 2020 at 8:38am
Mr Smyth says: Not lame
…
19 December 2020 at 3:04pm
Mr Seymour says: I didn’t bet. She me little mate, owes me nothing…she a little princess that 1
…
- [26]Mr Seymour sent messages to Mr Smyth after 18 December 2020 and Mr Smyth approached the stewards in early January 2021 about some of the messages. It is non-controversial that some of Mr Seymour’s messages sent to Mr Smyth resulted in disciplinary charges because the messages were found to be threatening. The messages also promoted an investigation by the stewards into alleged bets being placed on the horse.
Evidence of Mr Seymour
- [27]Mr Seymour gave evidence in the stewards’ hearing below that he had concluded that Mr Smyth had placed the bet.[19] Mr Seymour says that at no point prior to the race did Mr Smyth tell him that his money was not on the horse and he had set up a bet for them both through his contacts.[20] Further, Mr Seymour denies that Mr Smyth told him that he would not be placing a bet for him.[21] Mr Seymour says, amongst other things, that Mr Smyth ‘gladly took his money’.[22] The relevant extract from the transcript of the hearing below is now set out as follows:
Mr Adams: Mr Seymour, Mr Smyth alleges that you’ve stuffed the money into his hands at the track and then you’ve walked off as Mr Smyth was saying he’s not going to have the bet for you. What’s your recollection of what transpired that morning when you gave him the $200.
Mr Seymour: …nothing of the sort happened. Mr Smyth gladly took my money and I continued to go and ride his horse as work for the morning sir. That’s my recollection of it. And he said something about his son was going to handle that sort of thing, he was going to put the bet on. I never actually spoke to his son, leading up to that, so that was what Mr Smyth had to say. And he took my money gladly, took my money and put it in his pocket.[23]
Evidence of Jim O'Shea
- [28]Mr Smyth’s evidence that he told Mr Seymour on 16 December 2020 words to the effect of ‘you’re dreaming’ when he received $200 is supported by the evidence of Jim O'Shea.[24] Mr O'Shea recalls hearing Mr Smyth raise his voice and say words to Mr Seymour ‘you are dreaming if you think I am going to put this on, it will be in my bag when you come back’.[25]
- [29]Mr O'Shea was questioned about his evidence at the Tribunal hearing. Mr O'Shea was able to recall the day he heard Mr Smyth say words to the effect of ‘you’re joking’ or ‘you’re dreaming’ to Mr Seymour. Mr O'Shea referred to sitting under a tree waiting for track work riders and Mr Smyth told him about the incident involving Mr Seymour. Mr O'Shea said that he recalled hearing Mr Smyth say words to the effect of ‘you are joking’.
- [30]Mr O'Shea’s evidence given at the Tribunal hearing is consistent with his earlier evidence given to the stewards in the hearing below. The transcript shows that Mr O'Shea was questioned by the stewards about what he heard and more importantly how he came to recall what he had heard. Mr O'Shea said he was under the tree and referred to Mr Smyth talking about the inquiry and he (Mr O'Shea) said he told Mr Smyth, ‘I can remember you saying that’. I accept Mr O'Shea’s evidence.
Evidence of Glenda Smyth and Liberty Smyth
- [31]Mr Smyth’s evidence that he placed a bet of $200 on the horse on 17 December 2020 for his wife is supported by the evidence of his wife, Mrs Smyth and his daughter, Ms Liberty Smyth.
- [32]I accept that Mrs Smyth and Ms Liberty Smyth have a close relationship with Mr Smyth. I do not accept, however, the Commission’s submission that little weight should be placed on their evidence.
- [33]I had the opportunity of observing and listening to Mrs Smyth and Ms Liberty Smyth give evidence at the Tribunal hearing. I found both witnesses to be honest and forthright in giving their evidence.
- [34]Mrs Smyth explained the reason why she wanted Mr Smyth to place a bet on the horse referring to the horse as being a filly that was born and bred on their property and the purpose of the bet was to give their stable supporters a Christmas bonus. Mrs Smyth asked Mr Smyth to withdraw the funds from their joint business account to place the bet instead of Mr Smyth using cash.
- [35]The objective evidence before me supports a finding that Mr Smyth placed a bet through TAB. Mr Smyth provided the stewards with his bank account that shows a transfer of $200 on 17 December 2020 to Mr Smyth’s TAB account.[26] Further to that, there is betting data that reveals one $200 bet was placed by Mr Smyth through his TAB account.[27] I accept Mrs Smyth’s evidence.
- [36]Ms Liberty Smyth is employed by the Commission as a photo finish judge and swab collection official. Ms Smyth corroborates Mr Smyth’s evidence that he placed a bet on the horse on 17 December 2020 for his wife, Mrs Smyth. Ms Smyth recalls a discussion at the dinner table on 15 December 2020 about placing a bet. Ms Smyth also recalls having lunch with her father, Mr Smyth and her brother on 16 and 17 December 2020. Ms Smyth recalls seeing Mr Smyth on his phone at approximately 3:30pm on 17 December 2020 and says that she leaned over and asked him what he was doing. Mr Smyth replied, ‘placing that bet for Mum on [the horse]’. I accept Ms Smyth’s evidence.
- [37]On balance, I am satisfied that on 15 December 2020, Mrs Smyth asked Mr Smyth to place a bet on the horse on her behalf. Further to that, on 17 December 2020, Mr Smyth transferred $200 from his bank account to his TAB account to place a bet to win of $200 on the horse for his wife.
Evidence and submissions about the messages exchanged
- [38]The Commission submits that Mr Seymour’s messages sent on 12 December 2020 referring to ‘a gorilla’ clearly reference some earlier conversation between Mr Seymour and Mr Smyth. Further, the Commission submits and I accept that it is undisputed that the reference to ‘a gorilla’ is a reference to placing a $1,000 bet on the horse.[28]
- [39]On a fair reading of the messages sent by Mr Seymour on 12 December 2020, I accept that Mr Seymour is quite possibly referring to some earlier conversation he had with Mr Smyth. Further, I accept that Mr Seymour’s message sent at 8:47am references ‘a gorilla’ meaning the placing of a $1,000 bet. I also accept, as submitted by the Commission, that the betting intelligence report shows that there was one $1,000 bet placed on the horse on the race.[29] There is, however, no evidence before the Tribunal nor before the stewards in the hearing below as to the identity of the person who placed the $1,000 bet on the horse.
- [40]I do not accept the Commission’s submission that an inference can be drawn that the text messages exchanged on 12 December 2020 from 8:47am until 14 December 2020 at 5:09pm between Mr Smyth and Mr Seymour reflect an agreement between them in relation to the placing of a $1,000 bet by a person organised by Mr Seymour.[30]
- [41]It matters not that Mrs Seymour asked Mr Smyth to place a bet of $200 on 15 December 2020, being a date after the Commission submits the text messages and conversations about a bet were exchanged between Mr Seymour and Mr Smyth.[31]
- [42]Mr Smyth was questioned at the Tribunal hearing about the exchange of messages on the relevant dates. Mr Smyth was asked about whether he knew Mr Seymour wanted him to place a $200 bet on the horse when he handed him money. Mr Smyth said ‘yes’ and referred to the series of text messages exchanged. Mr Smyth maintained his evidence that he told Mr Seymour that he was going to place a $200 bet on the horse and that by 14 December 2020, Mr Seymour had decided he would like to have a $200 bet as well. Mr Smyth said that he placed a $200 bet for his family using money from the bank account.
- [43]Mr Smyth was questioned about the placing of a $1,000 bet. Mr Smyth accepted when questioned that Mr Seymour made arrangements for a $1,000 bet and maintained his evidence that he told Mr Seymour he had his own people. Mr Smyth was questioned about his response to Mr Seymour’s message sent on 12 December 2020 at 8:47am that refers to a ‘gorilla’. Mr Smyth said that when he messaged ‘K’ (in response) it was not an agreement to the bet but in response to Mr Seymour’s earlier message referring to the money coming from a couple. Mr Smyth maintained his evidence at the Tribunal hearing that he told Mr Seymour through his messages that he had his own punters and did not want Mr Seymour to place a bet for him.
- [44]On a fair reading of the messages exchanged on 12 and 14 December 2020, it is plausible that when Mr Smyth messaged ‘K’ he was responding to Mr Seymour’s earlier message that read ‘the money will come for a couple in the race’. In my view, Mr Smyth’s explanation for his messages sent to Mr Seymour is consistent with his evidence given to the stewards that he did not agree to enter into a bet with Mr Seymour nor to place a $200 bet for Mr Seymour.
- [45]Mr Smyth explains why he did not message Mr Seymour that he was not going to place a bet for him. During the hearing before the stewards on 19 February 2021 Mr Smyth told the stewards that he lied to Mr Seymour so that he would leave him alone and referred to ‘humouring him’ to get through the race.[32] Mr Smyth gave consistent evidence when questioned at the Tribunal hearing about his messages to Mr Seymour that he was, as stated, ‘palming him off’. On a fair reading of Mr Smyth’s messages to Mr Seymour, there is more than one reference to Mr Smyth’s son being available to place a bet. In the message sent on 14 December 2020, Mr Smyth refers to his son arriving on Wednesday and says at 5:35pm ‘…he will be able to have it on’. Further, at 5:44pm Mr Smyth again refers to his son and says ‘…will be there Wednesday’.
- [46]Mr Smyth was questioned at the Tribunal hearing about why he did not take the opportunity to tell Mr Seymour he would not be putting a bet on for him. Mr Smyth referred to Mr Seymour as drinking and said he was ‘staying sweet with him’.
- [47]On balance, I am satisfied that Mr Smyth has provided an explanation for the messages sent to Mr Seymour and more importantly explained why he did not message Mr Seymour that he would not be placing a bet for him. I do not accept, as submitted by the Commission, that the objective evidence supports an inference that the $200 bet placed on 17 December 2020 was on behalf of Mr Seymour.[33]
- [48]Mr Smyth was questioned by the stewards in the hearing below about why he did not message Mr Seymour that he was not putting a $200 bet on. Mr Smyth referred to Mr Seymour being a sober person when he comes to talk to you in the morning and in the afternoon he is ‘humouring him’ to get him through to riding the horse.[34] Mr Smyth referred to dealing with his mother at the time and accepts that it was a poor decision on his part to not got to the stewards.[35]
- [49]Mr Smyth provides an explanation for his messages sent in the afternoon on 17 December 2020 and the reference to ’13 dropping to 10’ in his message. Mr Smyth says that he thought Mr Seymour was talking about a different horse namely Princess Rules. I accept, as submitted by the Commission, that the reference to ‘go hard or go home’ in the message sent on 17 December 2020 at 3:29pm by Mr Seymour is most likely a reference to placing a win bet. I do not accept, however, that it can be inferred based on the evidence before me that this was a direction to place a win bet for Mr Seymour.[36] It is plausible that the messages exchanged where in reference to a different horse, Princess Rules. The earlier message sent at 1:36pm references the words ‘princess rules’.
- [50]I attach little weight to Mr Seymour’s evidence given to the stewards in the hearing below about the placing of a bet on the horse in circumstances where Mr Seymour was not available for cross-examination at the Tribunal hearing. Further to that, for reasons explained below, I am satisfied that Mr Seymour had an opportunity to present his evidence to the stewards about the placing of a bet in breach of the rules before Mr Smyth was questioned by the stewards in the hearings below.
- [51]It is noncontroversial that Mr Smyth volunteered his phone and the messages received from Mr Seymour to a steward, Ethan Suli in early January 2020. Mr Smyth also volunteered to return to the stewards the $200 cash that he says Mr Seymour gave to him.
- [52]Mr Suli gave evidence at the Tribunal hearing. Mr Suli said that on 8 January 2021, Mr Smyth spoke to him about a number of text messages alleged to have been sent by Mr Seymour. Mr Smyth spoke to Mr Suli about the threatening text messages. Mr Smyth scrolled through his phone to show Mr Suli the text messages and he (Mr Suli) noticed some messages were about betting. Mr Smyth told Mr Suli that Mr Seymour wanted him to put a bet on for him and Mr Smyth showed him his betting account. Mr Suli took some screen shots of the messages and forwarded them to James Adams. Mr Suli was asked if Mr Smyth volunteered his phone. Mr Suli said, ‘he (Mr Smyth) was the one who had scrolled to the top’. Mr Suli also said that he thought the messages were quite serious and that Mr Seymour was later charged and found guilty.
- [53]It is open for me to find on the evidence given by the stewards that they firstly investigated Mr Seymour about the threatening text messages and then possible betting in breach of the Rules. Further to that, I am satisfied that the stewards spoke to Mr Seymour about the messages before they investigated Mr Smyth and asked him questions about the messages and possible betting.
- [54]I have observed and listened to each of the stewards who were questioned in the Tribunal hearing about the investigation of the messages and placing bets. Christopher Allison accepted, when questioned, that the stewards obtained Mr Seymour’s version of events before speaking to Mr Smyth about the messages exchanged in relation to placing a bet.
- [55]Joshua Adams, senior stipendiary steward, was also asked about whether he took evidence from Mr Seymour before Mr Smyth. Mr Adams was unable to say referring to relevant dates of Mr Seymour’s inquiry not being before him.
- [56]I prefer and accept Mr Suli’s evidence. I found Mr Suli to be honest and reliable in giving his evidence. Mr Suli accepted when questioned that the stewards heard Mr Seymour’s version before they conducted an inquiry in relation to Mr Smyth. Mr Suli was asked if the stewards knew Mr Seymour’s version when asking Mr Smyth questions in the hearing below. Mr Suli said that he believes they meaning the stewards had spoken to Mr Seymour and then spoke to Mr Smyth. I accept Mr Suli’s evidence.
Conclusion
- [57]On balance I accept Mr Smyth’s explanation for his responses sent as messages to Mr Seymour and his evidence that he did not agree to enter into a $1,000 bet with Mr Seymour and to place a $200 bet for Mr Seymour on the horse.
- [58]I accept Mr Smyth’s evidence that on 16 December 2020 and upon receiving $200 from Mr Seymour, Mr Smyth said words to the effect ‘you’re dreaming, this will be here when you want to come back’. Mr Smyth knew from previous messages exchanged with Mr Seymour that Mr Seymour wanted him to place a $200 bet to win on the horse in Race 3.
- [59]I find that Mrs Smyth asked Mr Smyth to place a bet on the horse on her behalf. On 17 December 2020, Mr Smyth placed a $200 bet to win on the horse by transferring $200 from his bank account to his TAB account.
- [60]On balance, I am satisfied that Mr Smyth did not place a $200 bet to win on the horse in Race 3 at Rockhampton on 18 December 2020 for Mr Seymour. I accept Mr Smyth’s explanation for not confirming in a message to Mr Smyth that he would not be placing a bet for him. I attach little weight to the evidence of Mr Seymour about the exchange of messages and conversations about placing a bet in circumstances where Mr Seymour was not available for cross-examination at the hearing.
- [61]The correct and preferable decision is to set aside the Commission’s decision of 11 June 2021 confirming the decision of the Stewards who found Mr Smyth breached the Rules AR 236 and imposed a penalty of disqualification of Mr Smyth’s licence for 6 months and by way of a substituted decision, order that the charge that Mr Smyth breached AR 236 is not substantiated. I order accordingly.
Footnotes
[1]Disqualification from 23 May 2021 to 23 November 2021. Decision made on 17 May 2021 and internal review decision of the Commission made on 11 June 2021, exhibit 1, p 118.
[2]Application for review filed 21 June 2021.
[3]Exhibit 1, p 128.
[4]See s 28(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) that requires the Tribunal to, amongst other things, ensure as far as is practicable that all relevant material is disclosed to the Tribunal to enable it to decide the proceeding with all relevant facts. See also Crime and Misconduct Commission v Assistant Commissioner Ross Barnett [2010] QCAT 690, [20].
[5]Ball v Queensland All Code Racing Industry Board [2020] QCATA 115, [36] and [38].
[6]See also s 95(1) of the QCAT Act that requires the Tribunal to allow a party to a proceeding to call or give evidence, examine and cross examine witnesses and make submissions.
[7]Queensland Racing Integrity Commission v Kadniak [2017] QCATA 102, [11].
[8]QCAT Act, s 19 and s 20.
[9]Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58, [12].
[10]Briginshaw v Briginshaw (1938) 60 CLR 336.
[11]See exhibits.
[12]Exhibit 1, p 118.
[13]Exhibit 1, p 20 identifies that on 16 December 2020, $200 was withdrawn from Mr Smyth’s account. See also exhibit 1, p 62, [11].
[14]Exhibit 1, p 61 and see applicant’s written submissions filed 17 May 2022.
[15]Exhibit 1, p 61. See also applicant’s written submissions filed 17 May 2022.
[16]Ibid, p 43.
[17]Ibid, p 10.
[18]Ibid.
[19]Exhibit 6, p 5.
[20]Ibid, p 8.
[21]Ibid, p 12.
[22]Ibid, p 17.
[23]Ibid, p 17, “25-35.
[24]Exhibit 1, p 44.
[25]Ibid.
[26]Exhibit 1, p 20. See also applicant’s outline of argument filed 17 May 2020, p 8.
[27]Exhibit 1.
[28]Respondent’s outline of submissions filed 17 May 2022.
[29]Ibid, p 99.
[30]Ibid, p 5.
[31]Ibid, [21].
[32]Exhibit 4, p 19, L 4. See also Respondent’s outline of submissions filed 17 May 2022, p 5.
[33]Respondent’s outline of submissions filed 17 May 2022, [33].
[34]Exhibit 4, p 51. See also Respondent’s outline of submissions filed 17 May 2022, p 6.
[35]Ibid, p 52.
[36]Respondent’s outline of submissions filed 17 May 2022, [34].