Queensland Racing Integrity Commission v Vale
[2017] QCATA 46
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- Queensland Racing Integrity Commission v Vale[2017] QCATA 46
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Queensland Racing Integrity Commission v Vale[2017] QCATA 46
Queensland Racing Integrity Commission v Vale[2017] QCATA 46
CITATION: | Queensland Racing Integrity Commission v Vale [2017] QCATA 46 |
PARTIES: | Queensland Racing Integrity Commission (Applicant) |
| v |
| Ricky Vale (Respondent) |
APPLICATION NUMBER: | APL213-16 |
MATTER TYPE: | Appeals |
HEARING DATE: | 19 April 2017 |
HEARD AT: | Brisbane |
DECISION OF: | Justice D G Thomas, President |
DELIVERED ON: | 3 May 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | APPEAL – ASSOCIATIONS AND CLUBS – RACING CLUBS AND ASSOCIATIONS – DISQUALIFICATIONS – OF OWNER TRAINER OR JOCKEY – where respondent thoroughbred trainer – where respondent responded to request from Racing Steward with outburst of swearing and insults – where guilty plea to breach of Australian Rules of Racing rule 175 – where Stewards Inquiry imposed disqualification of 18 months – where disqualification set aside on appeal to Racing Disciplinary Board and substituted with 6 month suspension – whether error of law in decision of Racing Disciplinary Board – whether erroneous allegation of breach of natural justice on part of Stewards Inquiry taken into account by Racing Disciplinary Board – whether penalty imposed by Racing Disciplinary Board manifestly inadequate Australian Rules of Racing r 175 Auld v Queensland Racing Limited [2013] QCAT 446 Dickson, G v Queensland Racing [2005] QRAT 021 Hooper v Racing Queensland Limited [2012] QCAT 346 Katsidis, S v Queensland Racing [2007] QRAT 001 Lowndes v The Queen (1999) 195 CLR 665 Piper v Queensland Racing Limited [2011] QCAT 157 Queensland All Codes Racing Industry Board v Abbott [2015] QCATA 92 |
APPEARANCES: |
|
APPLICANT: | A Forbes of Lander & Rogers for the Queensland Racing Integrity Commission |
RESPONDENT: | TA Ryan of Counsel instructed by Butler McDermott Lawyers for Mr Vale |
REASONS FOR DECISION
Background
- [1]Ricky Vale is a trainer of thoroughbred horses. He presented horses for racing at Callaghan Park Racecourse in Rockhampton on 8 April 2016.
- [2]After Race 7, Matthew Henderson, the starter at Callaghan Park, approached Mr Vale’s strapper to obtain a sample from Prince Dan, a horse trained by Mr Vale. Mr Vale and Mr Henderson had a conversation:
Mr Henderson identified the horse and Mr Vale’s strapper, Rebecca Asse-Saunders. Mr Henderson then approached Ms Asse-Saunders, who confirmed that the horse was indeed ‘Prince Dan’, but asked that he wait until Mr Vale returned, so that she could let him know.
Mr Vale then came up to Mr Henderson and asked “who wants to swab the horse?”, to which Mr Henderson replied “Mr Collins, Chairman of Stewards”. Mr Vale asked “what the fuck for?”, to which Mr Henderson replied “I don’t know, I’m just doing what I was told”.[1]
- [3]Mr Vale left Mr Henderson and approached the Stewards. The following conversation occurred:[2]
MR VALE: What do you want to swab that horse for? It got beat fuckin’ 10 lengths.
…
MR VALE: What, you want to just be a smart-arse to me and stir me up every fuckin’ time?
…
MR VALE: Smart arse cunts.
…
MR VALE: All youse want to fucking do is (inaudible). Try me. I don’t care.
…
MR VALE: I don’t care. You fine me every other fuckin’ day.
…
MR VALE: Yeah. Fuckin’ see how good youse are, cunts. Fine ma as much as you want, mate. See how good you are. I’m waiting (inaudible).
…
MR VALE: Well, are youse going to help out? Do we have to stay here until fuckin’ 8 o’clock tonight, do we?
…
MR VALE: You fuckin’ (inaudible) every fuckin’ race day. Every race day youse are putting shit on me. For what?
…
MR VALE: I’ve got no fuckin’ problem with getting a positive. Okay? If I stuff up, I’ve stuffed up, but why do you have to do every fuckin’ horse?
…
MR VALE: Take my licence off me. What’s the fuckin’ point of having a licence when I’ve got to fuckin’ do – who wants to – got up at 3 o’clock this morning and I finish at 9 o’clock tonight because you want to hold a horse back that has run 10th.
…
MR VALE: You can swab it as much as you fuckin’ want, but why are you only doing me all the time?
…
MR VALE: Because you – I’ve got 21 fuckin’ horses to do at home and youse are holding us back. What, it’s okay for us to finish at 8 o’clock tonight, is it?
…
MR VALE: No, you wouldn’t know what fuckin 3 o’clock in the morning fuckin’ looks like.
…
MR VALE: Fuckin’ cockhead.
THE CHAIRMAN: Mr Vale’s comment as he left the room at 5.16 was “Fucking cockhead”.
- [4]
- [5]Mr Henderson asked Mr Vale whether he wanted to hose down Prince Dan which resulted in a further outburst.
- [6]Mr Vale was charged under rule 175 of the Australian Rules of Racing for improper or insulting behaviour. He pleaded guilty. The Stewards disqualified Mr Vale for 18 months.
- [7]Mr Vale appealed the Stewards’ decision to the Queensland Racing Disciplinary Board. The Board set aside Mr Vale’s disqualification but imposed a suspension for 6 months and stayed the balance of the penalty on the proviso that Mr Vale not reoffend.
- [8]The Queensland Racing Integrity Commission (QRIC) has appealed that decision.
Grounds of appeal
- [9]The grounds for appeal were that the Board erred by:
- Taking into account an erroneous allegation that there was a breach of natural justice in the composition of the Stewards’ Inquiry.
- Imposing a penalty that was manifestly inadequate in the circumstances.
- [10]At the hearing, QRIC withdrew ground 1 so that the appeal continued only on the basis of ground 2.
- [11]Both parties indicated to the Appeal Tribunal that the Racing Disciplinary Board no longer exists, with the result that the matter cannot be returned to the Board, if the Appeal Tribunal finds that there is an error of law.
Submissions by the parties
- [12]QRIC submit that:
- the Board fell into error in taking into account a factor described as “a lack of relevant history of offending”,[5] when Mr Vale had an extensive history including misconduct, improper conduct or unseemly behaviour and committing a breach of the rules;[6]
- the relevant case law indicates that the penalty imposed was manifestly inadequate.
- [13]The second submission would also be relevant were the Appeal Tribunal to allow the appeal and substitute its own decision, as would seem to be the only course available if the appeal succeeds in view of the fact that the Board no longer exists.
- [14]At the hearing, QRIC referred to the evidence concerning the very intemperate language used by Mr Vale and the fact that Mr Nalder, who was the target of much of the language, felt intimidated by the conduct of Mr Vale. QRIC acknowledged that “intimidation” was not an element of the charge, nor was it found to be the intention of Mr Vale, but submitted that the intimidation element was an aggravating feature not adequately taken into account based upon the evidence of the person who felt intimidated.
- [15]Based upon its analysis of the case law, the QRIC submits that the current case is most analogous with a Victorian decision, Nikolic.[7] QRIC submits that in view of Mr Vale’s conduct, the appropriate penalty should be in the higher end of the range; 6 months suspension to 2 years disqualification. QRIC concludes: “disqualification is clearly appropriate and the period of 18 months is well within the range”.[8]
- [16]On this basis, QRIC asserts that the penalty was manifestly inadequate.
- [17]Mr Vale asserts:
- That the Board referred expressly to Mr Vale’s offence for misconduct in 2007, and it was correct to consider that conduct in 2007 had little or no relevance to the decision made;
- As to comparable decisions, the transcript of the proceedings before the Board and written submissions made by the parties reveals that the Board was referred extensively to comparable decisions, which were obviously considered;[9]
- In determining the appropriate penalty, the Board was entitled to have regard to mitigating factors including the fact that Mr Vale had been under significant work pressure and had been diagnosed with anxiety and depression for which he was later treated and for which he is currently on medication;[10]
- Moreover, Mr Vale entered a plea of guilty and expressed remorse.[11]
- [18]Mr Vale reviewed the various authorities and submitted that, in comparison with other cases involving comparable behaviour, the penalty imposed was appropriate and fell comfortably within the range of penalties imposed upon other licensees for comparable behaviour.[12]
- [19]Mr Vale concluded that the Board did not err in its discretion and that no error of law has been established by QRIC.[13]
Disposition
- [20]The asserted error of law is the imposition of a penalty which was manifestly inadequate.
- [21]An error of law will arise only if the penalty is either unreasonable or plainly unjust, or if it is clear that the Board has acted upon the wrong principle, or taken account of extraneous matters in formulating the decision, or failed to take material considerations into account. As was said in the case of Queensland All Codes Racing Industry Board v Abbott,[14] it must be shown that the decision is plainly unjust or unreasonable, and involved a clear misapplication of the discretion.
- [22]A party does not succeed in establishing an error of law merely because the Appellate Tribunal might, itself, have imposed a different penalty from that which was imposed.[15]
- [23]As is sometimes the case with decisions of the Racing Disciplinary Board, the reasons in this case could have been more concisely expressed. The Appeal Tribunal should be careful not to readily infer legal error as a consequence of loose or non-concise language in the decision of a body such as the Racing Disciplinary Board. The Appeal Tribunal must consider whether the relevant issues have been considered (so as to broadly identify principles upon which the Board has relied) and whether a penalty is reasonable, and within the bounds of appropriate exercise of the discretion allowed to the Board.
- [24]It is clear from the reasons that the Board took into account the submissions made by the parties concerning the relevant cases, and in particular the factors which were to be taken into account. For example, the Board made reference to mitigating factors which included:
- A lack of relevant history of offending;
- An early plea of guilty;
- Significant detriment likely to be caused by the disqualification;
- Personal health of the applicant;
- Circumstances leading up to the incident.
- [25]In particular, the Board referred to the question of medical history and medical circumstances in observing, “the abuse that flowed was something that certainly warranted a penalty, but the penalty to disqualify a man from his livelihood for 18 months for overstepping the line when his medical history was a relevant element is manifestly excessive”.[16]
- [26]The Board also made reference to the fact that Mr Vale’s conduct was “something out of the ordinary” and that the “respondent regretted the statements that he made as he read the transcript and he himself was somewhat mystified that he would have sworn in such a way”.[17]
- [27]In the circumstances, it is clear that the Board did not fail to take into account circumstances including the relevant mitigating factors. The Board did not act upon wrong principle.
- [28]One of those factors was “a lack of relevant history of offending”.[18]
- [29]As to that, the history was:[19]
- Two positive horse swab results in 2007 and 2011 in breach of rule 178 ARR, for which 6 month and 9 month D-level suspensions were imposed respectively on Mr Vale;
- Various fines between 2003 and 2016 for technical rule breaches. The most serious of those fines was in 2006 for a breach of rule 175(q) ARR, for which Mr Vale was fined $1500. The latest of those fines was in March 2016 for presenting a horse with incorrect gear, for which Mr Vale was fined $200.
- [30]Given the timing and nature of the previous offending, the Board would have been entitled to give a very low weight to the question of history of offending.
- [31]The second issue raised was whether the Board had appropriate regard to comparable cases, that is whether an analysis of the comparable cases would lead to the conclusion that the penalty was manifestly inadequate.
- [32]Each party made detailed submissions about the relevant cases.
- [33]The Commission provided a table which set out the various cases.
- [34]The Commission submitted that the case of Nikolic was the most comparable. That is not correct.
- [35]Mr Nikolic was found guilty of two charges. The penalty imposed was 2 years’ disqualification on charge 1 and 1 years’ disqualification on charge 2, served concurrently.[20]
- [36]Nikolic involved a different and more serious offence in circumstances where Mr Nikolic was found to have made a direct and “sinister threat” to the Chief Steward of Racing Victoria and also to his family, which worried the Chief Steward sufficiently that he arranged security at his home for some time after the threat. Mr Nikolic showed no remorse or contrition and indeed suggested that the allegations against him had been fabricated.
- [37]Two years prior to the offending, Mr Nikolic had been fined and had his licence suspended for 6 months, with 4 months of that suspended. The circumstances were much more severe than the current case and no mitigating factors were relevant.
- [38]In Hooper,[21] periods of disqualification of 3 months and 4 months (served concurrently) were imposed and upheld.
- [39]Mr Hooper berated a Steward, swore and made offensive comments. The Tribunal found Mr Hooper guilty of conduct that was designed to intimidate, scare and undermine the Steward. The conduct was witnessed by others including two young children. At the time of the offending, Mr Hooper was subject to a good behaviour bond for an earlier disciplinary breach and he was said to have had a history of outbursts and aggression at the track.
- [40]The characteristics of the Hooper case were more serious than those of Mr Vale’s case.
- [41]In Auld,[22] a six-week period of disqualification was imposed. Mr Auld exchanged insults with another stable hand, Ms Saal. He struck Ms Saal in the face. His conduct was witnessed by two individuals. The conduct was very serious as it involved psychical violence against a female licensee. Because the element of striking the other person, the conduct was more serious than that of Mr Vale.
- [42]In Dickson,[23] a 6 month period of suspension, with three months suspended, pending 12 months good behaviour, was imposed. Mr Dickson swore and was abusive to Stewards during a Stewards’ Inquiry. His conduct did not occur publicly. There is no evidence of Mr Dickson having a disciplinary history, there was a submission that he was depressed but no evidence was tendered (as happened with Mr Vale). There was also evidence that Mr Dickson was remorseful. The circumstances of Dickson were very similar to those of the current case. In Mr Vale’s case, he filed medical evidence regarding his medical condition.
- [43]In Katsidis,[24] a fine of $5,000 was imposed with a 3 month period of suspension, which was confined to the period of time already served (11 days) on the proviso that if Mr Katsidis was found guilty of a similar breach in the following 12 months the balance suspension would, in addition to any other penalty, be served in full. Mr Katsidis’ comments were made at a hearing during a first level appeals committee at Queensland Racing and so were not made in the “heat of the moment” as was the case with Mr Vale. No evidence was adduced of Mr Katsidis having a disciplinary history.
- [44]In the matter involving Mr Dicey,[25] a fine of $3,000 was ordered but no suspension or disqualification was imposed. Mr Dicey verbally abused and was physically aggressive towards a female owner and a veterinary surgeon, including using intimidating gestures, such as a boxing stance. There was some evidence that Mr Dicey believed his conduct was necessary to defend his property and the panel noted that Mr Dicey had a very good disciplinary record over a long period of time and that the conduct was out of character. Aggravating features were that Mr Dicey used a head collar and lead which inflicted injury and also made threats using a sledgehammer.
- [45]In Piper,[26] a fine of $5,000 was imposed with a 4 month suspension. Language was used during a Stewards’ inquiry and no evidence was adduced as to relevant disciplinary history.
- [46]The Board imposed a suspension of 6 months. The Board took account of the period during which Mr Vale was disqualified and so ordered that the suspension be stayed from the date of the judgment on the basis that should the respondent reoffend, the balance of the penalty would be served.
- [47]At the hearing, the parties agreed that, in terms of relativity, one week of disqualification would be equal to around 2 weeks of suspension. The respondent had served a period of 7 weeks disqualification which, on that relativity, would equate to 14 weeks of suspension (or 3 and a half months).
- [48]Consideration of the penalties imposed in the cases outlined by each of the parties demonstrates that the penalty imposed by the Board was comfortably within the range of penalties imposed upon other licensees involved in comparable behaviour.
- [49]The penalty was plainly not unreasonable or manifestly unjust and the Board did not act upon a wrong principle or allow extraneous matters to guide or effect the decision of the Board.
- [50]In the circumstances, the Appeal Tribunal concludes that there has been no error of law in the decision of the Board. The appeal is dismissed.
Footnotes
[1] Applicant’s Submissions, 4 October 2016, paragraphs 8 – 9.
[2] Ibid, paragraph 10.
[3] Applicant’s submissions at page 4, paragraph 11.
[4] Ibid, paragraph 12; Affidavit of Brian Nalder, 29 August 2016, paragraph 20.
[5] Applicant’s Submissions, 4 October 2016, paragraph 32.
[6] Ibid, paragraph 25.
[7] Stewards of Racing Victoria v Nikolic (Victorian Racing Appeals and Disciplinary Board) 21 September 2012 and 2 October 2012; affirmed in Nikolic v Racing Victoria Limited [2012] VCAT 1954.
[8] Applicant’s Submissions, 4 October 2016, paragraph 33.
[9] Respondent’s Submissions, 13 October 2016, paragraph 33.
[10] Applicant’s Submissions, 4 October 2016, paragraph 34.
[11] Ibid, paragraph 34.
[12] Ibid, paragraph 36.
[13] Ibid, paragraph 47.
[14] [2015] QCATA 92 at [49].
[15] Lowndes v The Queen (1999) 195 CLR 665 at 671-672.
[16] Racing Disciplinary Board Decision, 2 June 2016, page 3.
[17] Ibid.
[18] Ibid, page 2.
[19] Agreed Bundle of Documents, filed 19 August 2016, Document 13: Disciplinary History of Ricky Vale.
[20]Stewards of Racing Victoria v Nikolic (Victorian Racing Appeals and Disciplinary Board) 21 September 2012 and 2 October 2012.
[21] Hooper v Racing Queensland Limited [2012] QCAT 346.
[22] Auld v Queensland Racing Limited [2013] QCAT 446.
[23] Dickson, G v Queensland Racing [2005] QRAT 021.
[24] Katsidis, S v Queensland Racing [2007] QRAT 001.
[25] Appeal by Richard Dicey (31 January 2014) Racing New South Wales Appeal Panel.
[26]Piper v Queensland Racing Limited [2011] QCAT 157.