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Queensland All Codes Racing Industry Board v Colahan[2015] QCATA 46

Queensland All Codes Racing Industry Board v Colahan[2015] QCATA 46

CITATION:

Queensland All Codes Racing Industry Board v Colahan [2015] QCATA 46

PARTIES:

Queensland All Codes Racing Industry Board

(Applicant/Appellant)

v

Shane Colahan

(Respondent)

APPLICATION NUMBER:

APL466-13

MATTER TYPE:

Appeals

HEARING DATE:

2 April 2014

HEARD AT:

Brisbane

DECISION OF:

Justice Thomas, President

DELIVERED ON:

2 April 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The appeal is allowed.
  2. The decision of the Racing Disciplinary Board is set aside. The matter is remitted back to the Racing Disciplinary Board for reconsideration.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – whether the Racing Disciplinary Board incorrectly applied s 149ZE(2) of the Racing Act 2002 (Qld).

APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – whether the respondent’s plea of guilty could be set aside.

ASSOCIATIONS AND CLUBS – RACING CLUBS AND ASSOCIATIONS – RULES AND BY-LAWS – interpretation of Australian Rule of Racing 175(q) – whether correctly applied by the Racing Disciplinary Board.

Australian Rules of Racing AR 175(q)

Racing Act 2002 (Qld) ss 149ZE(2), 155

Meissner v R (1995) 184 CLR 132

R v Boag (1994) 73 A Crim R 35

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

AC Freeman of Counsel

RESPONDENT:

B Keegan of Counsel

REASONS FOR DECISION

The Appeal

  1. [1]
    The Queensland All Codes Racing Industry Board seeks to appeal a decision of the Racing Disciplinary Board which set aside the Stewards’ decision to convict and penalise Mr Shane Colahan for a breach of Australian Rule of Racing 175(q) (“AR175(q)”).
  2. [2]
    The Queensland All Codes Racing Industry Board raises the following grounds:
    1. a)
      The Racing Disciplinary Board fell into error by allowing the application to set aside the plea of guilty entered by Mr Colahan at the inquiry whereby there was no consideration given to whether there was any evidence that it was not made of his free will or that Mr Colahan did not understand what it was he was pleading to;
    2. b)
      The Racing Disciplinary Board fell into error in interpreting s 149ZE(2) of the Racing Act 2002 (Qld) (“Racing Act”) as prescribing the test to be applied when determining an appeal under s 155; and
    3. c)
      The Racing Disciplinary Board fell into error in interpreting AR175(q) as requiring that the Stewards had to be satisfied that Mr Colahan was guilty to the exclusion of all others.
  3. [3]
    The right to appeal, contained in s 155 of the Racing Act, is with respect to errors of law[1] and is by way of rehearing[2].
  4. [4]
    The Queensland All Codes Racing Industry Board submits that errors of law are the basis of each of the grounds on which it relies[3].   

Background

  1. [5]
    An incident occurred at the Townsville racecourse on 17 July 2013, after which Mr Colahan, a licensed stable hand, was accused of having assaulted William Kenning, a licensed trainer, including by striking him on a number of occasions in the area of the head. 
  2. [6]
    A Stewards inquiry took place over two days on 18 July and 5 August 2013.  Sixteen witnesses gave evidence.
  3. [7]
    The incident appears to have arisen following a history of animosity between two racing stables.  On the day in question there was a dispute, involving William Kenning, which was mediated by the CEO of the Turf Club and the Stewards.  Afterwards, Mr Kenning stated that he was walking towards Mr Colahan when a fight ensued.  Mr Kenning was over powered and struck a number of times by Mr Colahan whilst on the ground.
  4. [8]
    Mr Colahan was not sure if he threw the first punch, but admitted to hitting Mr Kenning after he fell to the ground.
  5. [9]
    The result of the Stewards inquiry was to convict and penalise Mr Colahan for a breach of AR175(q).
  6. [10]
    On appeal,[4] the Racing Disciplinary Board set aside the conviction and penalty.

Mr Colahan’s plea of guilty

  1. [11]
    The Queensland All Codes Racing Industry Board submits that the Racing Disciplinary Board should not have allowed an application by Mr Colahan to set aside a plea of guilty.
  2. [12]
    The Queensland All Codes Racing Industry Board refers to the law in relation to the circumstances in which a plea of guilty made during Court proceedings can be set aside.
  3. [13]
    A Court will act upon a plea of guilty provided the plea is entered in the exercise of a free choice in the interests of the person entering the plea.[5]
  4. [14]
    The onus is on the person seeking to have the plea set aside. The person must show that letting the plea of guilty stand would produce a miscarriage of justice.[6]
  5. [15]
    In terms of the question of miscarriage of justice, relevant circumstances include:
    1. a)
      The accused did not appreciate the nature of the plea; and
    2. b)
      The accused had not intended to admit that he was guilty.[7]
  6. [16]
    To consider this issue, it is necessary to have reference to the transcript. 
  7. [17]
    The particulars of charge provided by the Stewards were

on the morning of 17 July 2013 at the Townsville Turf Club at approximately 7:45am in the area of the tie-up stalls, did improperly conduct yourself by physically assaulting trainer W. Kenning, which included striking him on a number of occasions in the area of the head.[8]

  1. [18]
    When asked whether he understood “the particulars” the following exchange took place.

MR COLAHAN: Well, you’re saying I’m striking him?

THE CHAIRMAN:  Striking him, yes.  Struck him on a number of occasions in the area of the head.

MR COLAHAN: Yeah, what – like in self defence though?

THE CHAIRMAN:  We will – what I’m saying is do you understand -----

MR COLAHAN: Yes, I understand I struck him, yes.

THE CHAIRMAN:  -----what we are alleging that you have done?

MR COLAHAN: Yes.

THE CHAIRMAN:  So we are alleging that you physically assaulted him – that you have struck him on a number of occasions in the area of the head.  So you understand what we are alleging?

MR COLAHAN: Yes.

THE CHAIRMAN:  Okay. We ask you to plead to that particular charge – guilty or not guilty.

MR COLAHAN: I plead guilty to hitting him. I did hit him.

THE CHAIRMAN:  Okay.

MR COLAHAN: But it was in self defence.

THE CHAIRMAN:  Okay. So what we will place on the record is that you have pleaded guilty to the charge.  It is now upon us to consider a penalty that we feel is appropriate for the offence that we allege that you have done on that morning.  Now, this is your opportunity to put submissions forward in respect of penalty. Now, obviously from what you have stated there you feel your actions were in self defence?

MR COLAHAN: Self defence, yes.

THE CHAIRMAN:  So that’s a submission that you can put on the table in respect of penalty.[9]

  1. [19]
    It seems clear from this exchange that Mr Colahan did not understand the nature of what he was being asked to respond to.  It seems clear he was admitting that he hit Mr Kenning but was contesting any impropriety on his behalf – his position being that what he did was in self-defence.
  2. [20]
    It is also apparent that the chairman either misunderstood, or ignored, what was being said and proceeded to consider penalty.
  3. [21]
    In those circumstances, I conclude that Mr Colahan did not appreciate the nature of the plea nor did he intend to admit that he was guilty.
  4. [22]
    Therefore, the Racing Disciplinary Board was not in error by allowing the application to set aside the plea of guilty entered by Mr Colahan at the inquiry. There was sufficient evidence before the Racing Disciplinary Board to enable that conclusion to be reached.
  5. [23]
    As to this aspect the appeal is not allowed.

Section 149ZE(2) of the Racing Act

  1. [24]
    Section 149ZE(2) of the Racing Act applies to appeals such as that which was before the Racing Disciplinary Board.
  2. [25]
    Section 149ZE(2) sets out requirements for procedures for the hearing of an accepted appeal including that the constituted board:
    1. a)
      must observe natural justice; and
    2. b)
      is not bound by the rules of evidence; and
    3. c)
      may inform itself in any way it considers appropriate; and
    4. d)
      must act as quickly, and with as little formality and technicality, as is consistent with a fair and proper consideration of the issues; and
    5. e)
      may decide the procedures to be followed in the appeal, including, for example, whether—
    1. i)
      the appeal should be heard with other appeals; and
    2. ii)
      whether the parties should be heard together or separately.
  3. [26]
    The Queensland All Codes Racing Industry Board refers to the section of the transcript of the Racing Disciplinary Board’s decision which reads:

We therefore are of the view that the proceedings before the Stewards miscarried in that one only of the protagonists was charged and the other or others were not charged or convicted nor visited with any penalty.

That, in our view, was, having regard to the provisions of section 149ZE(2)(d) of the Act, not consistent with a fair and proper consideration of all the issues.[10]

  1. [27]
    The Queensland All Codes Racing Industry Board submits that s 149ZE(2) does not apply to hearings before the Stewards but does prescribe procedures which the Racing Disciplinary Board must adopt in hearing the appeal[11] and further does not prescribe any test that must be applied when considering an appeal of the decision of the Stewards.[12]
  2. [28]
    On the other hand, Mr Colahan submits that the reference in the Racing Disciplinary Board’s decision relied upon by the Queensland All Codes Racing Industry Board should not be interpreted as meaning that the Stewards were required to comply with s 149ZE(2), but is rather a reference by the Racing Disciplinary Board as to the provision it applied.[13]
  3. [29]
    It does not seem that the parties are at odds with respect to the appropriate application of s 149ZE(2) of the Racing Act. 
  4. [30]
    Section 149ZE of the Racing Act prescribes the procedures before the Racing Disciplinary Board and not procedures relating to a Stewards hearing.
  5. [31]
    However, in my view, nothing turns upon the comments made in relation to section 149ZE of the Racing Act.
  6. [32]
    The relevant feature of the passage of the transcript referred to by the Queensland All Codes Racing Industry Board is the opening words referred to in the quotation concerning the significance of whether one only of the protagonists was charged.  I will now deal with that aspect.

Interpretation of AR175(q)

  1. [33]
    The Principle Racing Authority or the Stewards may penalise:

(q)   any person who in their opinion is guilty of misconduct, improper conduct or unseemly  behaviour.[14]

  1. [34]
    It is submitted by the Queensland All Codes Racing Industry Board that the Racing Disciplinary Board erred in the way in which it interpreted AR175(q) in that the Racing Disciplinary Board interpreted the requirement to be such that Mr Colahan might only be found to be guilty if he was guilty of impropriety to the exclusion of all others.
  2. [35]
    As to that position, Mr Colahan submits that the Racing Disciplinary Board’s findings were on the facts and did not involve an interpretation of AR175(q).  Mr Colahan submits there was no evidence that the Racing Disciplinary Board interpreted the provision as requiring the Stewards to be satisfied that he was guilty to the exclusion of all others.[15]
  3. [36]
    Mr Colahan submits that the Racing Disciplinary Board concluded that the Stewards took too narrow an approach and focussed only on who threw the first punch rather than assessing the totality of the evidence and, in that context, concluded that other protagonists could have been charged but were not.[16]
  4. [37]
    Mr Colahan’s submissions are therefore that the reference to other protagonists was not one which involved an interpretation of AR175(q) but rather was one which correctly questioned the basis for the findings by the Stewards.
  5. [38]
    The decision by the Racing Disciplinary Board is, in this respect, confusing. It is necessary to refer to the transcript.
  6. [39]
    On the one hand, the chairman observes:

…on that basis we need to consider whether or not in all of the circumstances the stewards could have been satisfied in accordance with the required standard of proof that he was the only person who is liable under the relevant rule.[17]

  1. [40]
    On the other hand, the chairman observes:

…the stewards really focussed on effectively the question of who threw the first punch, and … that seems to have been the kind of issue which lead to Mr Colahan being charged and not trainer Kenning, the other licensee.[18]

  1. [41]
    The chairman continues:

At the time, we are conscious of the fact that when one looks to why this happened, it is probably initiated by Kenning in respect of what he said about her training methods and so forth.[19]

  1. [42]
    The chairman continues to analyse what is described as  ‘at best a confusing scenario in which two or more protagonists were engaged in a fight ... watched by others, some of whom were aligned in terms of personal interest to one side or the other’.[20]  The chairman refers to the ‘immediate catalyst for the ensuing melee’ being a sarcastic and inappropriate remark by a person other than Mr Colahan[21] and says that any fair and just assessment of the event, and of all that was relevant to its background, might well have resulted in others being found to have been involved in improper conduct within the meaning of the rules.[22]
  2. [43]
    As to the issue of conduct, the chairman records that impropriety may take many forms and the mere fact that the first punch was thrown by a particular individual in a volatile situation would not necessarily conclude the issue of impropriety, nor would it necessarily follow that a particular person, rather than others, at the same event was the only person to have acted improperly.[23] 
  3. [44]
    In terms of findings, the chairman records:

These proceedings therefore, in our view, focussed, so it seems to us, wrongly on the one matter only, namely, who was the person who threw the first punch.[24]

  1. [45]
    However, in conclusion the chairman observes ‘we therefore are of the view that the proceedings before the Stewards miscarried in that one only of the protagonists and not the other or others were charged’.[25]
  2. [46]
    The proper interpretation of AR175(q) does not require that Mr Colahan was guilty of impropriety to the exclusion of all others. This interpretation follows clearly from the language used in AR175(q).  
  3. [47]
    This interpretation is that which is urged by the Queensland All Codes Racing Industry Board.[26]  This interpretation does not seem to be one with which Mr Colahan disagrees – rather, Mr Colahan asserts that the Racing Disciplinary Board’s finding did not involve an interpretation of AR175(q) but was one which was based upon all the evidence.
  4. [48]
    As I have said, the decision is confusing in parts.  It is not clear that the Racing Disciplinary Board did not proceed on the basis of an erroneous view as to what was required by AR175(q).  In fact, in view of the concluding remarks, that seems most likely to be the approach taken by the Racing Disciplinary Board.
  5. [49]
    Many factors may have been relevant to the consideration by the Racing Disciplinary Board of the appeal.  As both parties seem to concede, it was necessary for the Racing Disciplinary Board to consider the totality of the evidence in coming to a decision and indeed, the Racing Disciplinary Board seems to have done this.  Also of relevance is what is described as the ‘significant background’ to the dispute which preceded the physical altercation.
  6. [50]
    There is sufficient doubt about the reasoning which underpin the decision, including if an erroneous view about the requirements imposed by AR175(q) was made, that the matter should be remitted back to the Racing Disciplinary Board for reconsideration.
  7. [51]
    As to that aspect, the appeal is allowed.
  8. [52]
    The decision should be set aside and the matter be remitted back to the Racing Disciplinary Board for reconsideration in line with the principles outlined in these reasons.

Footnotes

[1]  Racing Act s 155(2).

[2]  Ibid s 155(5).

[3]  Submissions of the applicant, [67].

[4]  Made under Racing Act s 145T.

[5] Meissner v R (1995) 184 CLR 132 at 141.

[6] Meissner v R (1995) 184 CLR 132 at 157.

[7] R v Boag (1994) 73 A Crim R 35 at 37.

[8]  Transcript of the Stewards Inquiry, page 151.

[9]  Ibid page 152.

[10]  Submissions on behalf of the applicant, [41]; Transcript of the First Level Appeals Committee, page 5, lines 26 – 31.

[11]  Submissions on behalf of the applicant, [45].

[12]  Ibid [42].

[13]  Submissions on behalf of the respondent, [19].

[14]  Australian Rules of Racing, AR175(q).

[15]  Submissions on behalf of the respondent, [17].

[16]  Submissions on behalf of the respondent, [16].

[17]  Transcript of the First Level Appeals Committee, page 2, lines 31 – 34.

[18]  Ibid page 2, lines 37 – 40.

[19]  Ibid page 2, lines 40 – 42.

[20]  Ibid page 4, lines 13 – 14.

[21]  Ibid page 4, line 35.

[22]  Ibid page 4, lines 43 – 47.

[23]  Ibid page 5, lines 1 – 7.

[24]  Ibid page 5, lines 16 – 18.

[25]  Ibid page 5, lines 26 – 28.

[26]  Submissions on behalf of the applicant, [39].

Close

Editorial Notes

  • Published Case Name:

    Queensland All Codes Racing Industry Board v Shane Colahan

  • Shortened Case Name:

    Queensland All Codes Racing Industry Board v Colahan

  • MNC:

    [2015] QCATA 46

  • Court:

    QCATA

  • Judge(s):

    Thomas P

  • Date:

    02 Apr 2015

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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