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Queensland All Codes Racing Industry Board v Vernon[2017] QCATA 47

Queensland All Codes Racing Industry Board v Vernon[2017] QCATA 47

CITATION:

Queensland All Codes Racing Industry Board v Vernon [2017] QCATA 47

PARTIES:

Queensland All Codes Racing Industry Board

(Appellant)

v

Gary Vernon

(Respondent)

APPLICATION NUMBER:

APL147-15

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Justice D G Thomas, President

DELIVERED ON:

3 May 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The appeal is allowed.
  2. The decision to disqualify Gary Vernon from holding harness racing driving and training licences for a period of six months is confirmed.

CATCHWORDS:

APPEAL – ASSOCIATIONS AND CLUBS – RACING CLUBS AND ASSOCIATIONS – DISQUALIFICATIONS – OF OWNER TRAINER OR JOCKEY - where trainer bet in races in which he was also driving – where trainer pleaded guilty to offences – where penalty of 6 months per offence to be served cumulatively – where trainer appealed to Board – where Board held penalties to be served concurrently - whether the Board took into account an irrelevant matter – whether cumulative periods of disqualification is a starting point – whether the Board considered the totality of the disqualification – whether penalty manifestly inadequate

Australian Harness Racing Rules rr 173, 257

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32

Racing Act 2002 (Qld) s 155

Attorney-General & Minister for Justice v Kehoe [2001] 2 Qd R 350

Everett v The Queen (1994) 181 CLR 295

Lovell v Lovell (1950) 81 CLR 513

Lowndes v The Queen (1999) 195 CLR 665

Mill v The Queen (1988) 166 CLR 59

Tully v McIntyre [2001] 2 Qd 338

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).

REASONS FOR DECISION

  1. [1]
    Gary Vernon is a licensed harness racing driver/trainer. Over a period of two months, from 31 May to 24 July 2014, Mr Vernon placed twelve bets on horses to win in races in which he himself participated. Five of the twelve bets were for rival horses to win. These bets were in breach of Rule 173(1) of the Australian Harness Racing Rules.
  2. [2]
    Mr Vernon pleaded guilty to twelve charges under the Rule. The Stewards imposed a fine of $4,500 for the seven bets that did not relate to rival horses, and disqualified him for 6 months for each of the bets that did relate to rival horses. The Stewards directed that the five periods of 6 months disqualification should be cumulative, effectively imposing a disqualification of 30 months.
  3. [3]
    Mr Vernon appealed to the Racing Disciplinary Board about the disqualification.  On 9 March 2015, the Board decided that the six-month disqualification periods should be concurrent instead of cumulative. 
  4. [4]
    Queensland All Codes Racing Industry Board, now the Queensland Racing Integrity Commission (QRIC), appeals the Board’s decision. QRIC submits that the Board erred in taking into account an irrelevant matter, namely that the results of the races were not compromised by Mr Vernon’s conduct. It says the Board erred in failing to consider a relevant matter, which is that Rule 257 of the Rules requires that a penalty by way of disqualification be served cumulatively unless otherwise directed. It says the Board, if it did consider Rule 257, did not give reasons why there should be a departure from the Rule. It submits that the Board erred in acting on a wrong principle, that the issue for determination was whether the penalties should be served concurrently or cumulatively, rather than considering whether the overall effect of the penalties appropriately reflected the degree of offending. Finally, it submitted that, in all of the circumstances and because of the errors, the penalty was manifestly inadequate.

Did the Board take into account an irrelevant matter: that the results of the races were not compromised in any way?

  1. [5]
    In its reasons for decision, the Board included a heading ‘Mitigating Circumstances’. The Board commented that Mr Vernon cooperated with the Board and entered a guilty plea at an early stage. That is unexceptional. But the Board went on to state:[1]

It is also significant that the stewards, as they are required to do, inquired into the circumstances of each race in which [Mr Vernon] drove and did not find any evidence that the results of the races in which [Mr Vernon] drove were in any way contrived or compromised or that the result was in any way affected by the manner in which [Mr Vernon] drove his horse or the manner in which the other horses in those races were driven…

It is indeed noteworthy that in one particular race in which [Mr Vernon] bet on another horse in that race [Mr Vernon] actually won the race on the horse which he was driving.

  1. [6]
    In its decision, the Board stated:

There is no evidence whatsoever on the Stewards’ evidence that the result of any of the races were in anyway compromised by [Mr Vernon’s] conduct.

  1. [7]
    There is no doubt that, in deciding penalty, the Board did take into account the fact that the results of the races were not compromised. The question is whether this was an irrelevant consideration.
  2. [8]
    Rule 173(1) states, simply, that a driver shall not bet in a race in which the driver participates. It is part of a suite of rules relating to the betting activities of drivers and trainers. A driver cannot enter the betting ring during the period sixty minutes before the first race and the completion of the driver’s engagements at the meeting.[2] A driver or trainer cannot authorise another person to place a bet on account of the driver or trainer.[3] A driver or trainer shall not place a bet or have an interest in a betting account other than an account registered in their own name.[4] Any person who fails to comply with a provision of Rule 173 is guilty of an offence.[5]
  3. [9]
    Rule 173 is contained within Part 9 of the Rules - Drivers. Driving in a way that contrives or compromises the result of a race is the subject of a complex set of rules that cover such things as: whether the owner or trainer of a horse can drive another horse in a race; breaking gait; use of the whip; dress standards; what happens at the start of a race; and what happens during a race. In most cases, a breach of these Rules can be an offence.
  4. [10]
    It is logical that the Stewards investigated whether Mr Vernon drove in a way that contrived or compromised the results of the races. The fact that there was no evidence he did so simply means that Mr Vernon did not face additional charges.[6]
  5. [11]
    It is clear that Rule 173 is directed towards public confidence in the industry by limiting the circumstances in which drivers and trainers may bet on races. As the Racing Appeal Tribunal in New South Wales commented:[7]

The facts disclose the Stewards have reviewed the races involved and are satisfied the Appellant has not knowingly compromised the integrity of any races. However, the rules must be enforced so it is apparent that each race is conducted in a manner that all participants actions are seen to be beyond reproach.

  1. [12]
    The fact that drivers cannot enter the betting ring until their racing duties are completed shows that the rule is directed to an objective standard that can be tested objectively. The driver’s intention is not an element of an offence under Rule 173(1). Therefore, the driver’s behaviour during the races in question cannot be a mitigating factor.
  2. [13]
    The Board was in error. The appeal should be allowed.

Did the Board fail to apply Rule 257 of the Australian Harness Racing Rules, which requires that a disqualification penalty shall be served cumulatively unless directed otherwise?

  1. [14]
    Rule 257 reads:-

Unless the Controlling Body or the Stewards direct otherwise, a penalty by way of suspension or disqualification shall be served cumulatively to any other penalty of suspension or disqualification being served or ordered to be served.

  1. [15]
    There was a discussion about Rule 257 at the hearing before the Board,[8] and the Board’s reasons for decision deal with the question of cumulative or concurrent penalty in this way:

Concerning the period of disqualification of the driving and training licences of [Mr Vernon] bearing in mind all of the above considerations it is our decision that the periods of disqualification on the five charges of six months each should be served concurrently and not cumulatively and we so order.

  1. [16]
    I am satisfied that the Board did turn its mind to the operation of Rule 257.
  2. [17]
    QRIC further submits that the Board’s reasons for deciding that the penalties should be served concurrently are inadequate.
  3. [18]
    Providing reasons for decision is a necessary element of providing natural justice. The failure to give adequate reasons is a failure to provide natural justice, which is an error of law.[9] However, the nature and extent of the obligation to provide full reasons varies according to the nature of the case.[10] 
  4. [19]
    The Board heard significant argument on the question of penalty. Counsel for Mr Vernon referred the Board to the totality principle.[11] He referred to a comparable case.[12] He made submissions about Mr Vernon’s position in the industry, the seriousness of the offence and the period of offending.[13] QRIC pointed out that Mr Vernon’s conduct was in the face of publicity about the Rule.[14] It submitted that the Board should send a clear message to the industry while maintaining proportionality.[15]
  5. [20]
    The Board addressed the importance of maintaining the integrity of the industry. It addressed the totality issue. It addressed the mitigating effect of Mr Vernon’s personal circumstances. While the Board’s reasons for departing from the general rule in Rule 257 are brief, it cannot be said that the parties do not know why the Board decided as it did. The reasons were not so inadequate as to amount to an error of law.
  6. [21]
    The Board was not in error.

Did the Board apply the totality principle?

  1. [22]
    QRIC submits that the Board concluded that the only question for determination was whether the penalties imposed should be served cumulatively or concurrently. It submitted that this was the wrong approach: the Board should have started with the presumption that the penalties would be served cumulatively and then considered whether that penalty appropriately reflected the criminality of the behaviour.
  2. [23]
    The Board’s reasons for decision set out the totality principle.[16] It quoted Mill v The Queen.[17] It applied the totality principle in affirming the fines of $4,500.[18] The Board clearly had the totality principle in mind. 
  3. [24]
    Once again, while it might have been preferable for the Board to provide clearer and more expansive reasons for decision, I am not persuaded that it did not appropriately deal with the totality principle, or that it wrongly reversed the order of the matters under its consideration.

Was the penalty imposed manifestly inadequate?

  1. [25]
    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.
  2. [26]
    An error of law is not established simply because an Appeal Tribunal might itself have imposed a different penalty from that which was imposed.[19]
  3. [27]
    To consider whether the Board’s decision was manifestly inadequate, I must be satisfied that it was definitely below the range of penalties appropriate for a particular offence.[20] QRIC does not posit a range; instead, it compares Mr Vernon’s particulars to other cases and submits that he should have received a penalty similar to that imposed in Oliver.[21] That is the wrong approach.
  4. [28]
    Both parties’ submissions canvass a range of cases that are said to be comparable. The lowest penalty imposed was a fine of $1500.The highest penalty imposed was a suspension of 12 months. In only one case did the driver avoid a suspension; Blake Jones placed three bets in races in which he was driving. The bets totalled $130 and occurred over a very short period.[22] Ignoring Mr Jones’ case, the lowest penalty imposed was six months’ disqualification. It cannot be said, therefore, that Mr Vernon’s penalty was outside the range of penalties appropriate for that offence.

What is the appropriate order?

  1. [29]
    An appeal to the tribunal by QRIC may only be on a question of law.[23] In deciding an appeal on a question of law only, I may confirm or amend the decision, set aside the decision and substitute my own decision, or set aside the decision and return it to the Board.[24]
  2. [30]
    Even though the Board erred in taking into account that there was no evidence Mr Vernon interfered with the running of the races, I am not persuaded that the penalty the Board imposed was infected by that error to the extent that the decision was unjust, unreasonable or involved a clear misapplication of its discretion.[25]
  3. [31]
    As I mentioned, QRIC urged me to impose a penalty of between 12 and 18 months based on Oliver.[26] Damien Oliver is a well-known jockey. Jockeys cannot bet on races at all.[27] Mr Oliver placed a $10,000 bet on Miss Octopussy to win race 6 at Moonee Valley on 1 October 2010. Mr Oliver rode another horse in that race. Miss Octopussy won that race and Mr Oliver won $20,000. He was suspended for 2 months and disqualified for 8 months. QRIC submits that Mr Vernon’s conduct was more persistent, that the size of the wager has to be considered in relation to the size of the betting pool, and the financial consequences of a suspension/disqualification for a professional jockey is more significant than for a hobby trainer.
  4. [32]
    Mr Vernon placed twelve bets, not one. But he is permitted to place bets on races, unlike Mr Oliver. There was no evidence before any of the tribunals about the size of the betting pool, or the extent to which Mr Vernon’s bets may have diluted this pool. I accept that the impact of a suspension on Mr Oliver’s income was far worse than the impact on Mr Vernon’s income. At the same time, the standard of behaviour expected of a professional jockey, well known to the general public as well as the racing public, should be higher than a hobby trainer who is not known outside racing circles. I do not agree that Mr Vernon’s penalty should have been higher than Oliver.
  5. [33]
    The comparatives of Robl[28] and Painting[29] suggest that a penalty of six months is in range and appropriate.
  6. [34]
    Consideration of the penalties imposed in those cases suggests that the penalty imposed by the Board was comfortably within the range of appropriate penalties.  The penalty was not unreasonably or manifestly low.
  7. [35]
    Whilst the appeal is allowed, the Board’s decision to disqualify Gary Vernon from holding harness racing driving and training licences for a period of six months is confirmed.

Footnotes

[1]Decision of the Queensland Racing Disciplinary Board, 9 March 2015, pages 1 – 2.

[2]Australian Harness Racing Rules, r 173(2).

[3]Ibid, r 173(4).

[4]Ibid, r 173(5).

[5]Ibid, r 173(6).

[6]Unlike the decision of the Harness Racing New South Wales Stewards Inquiry into Mr Jackson Painting, 4 September 2012.

[7]Racing New South Wales, Appeal by Peter Robl, 24 February 2011.

[8]Transcript of Proceedings, 9 March 2015, page 6, lines 6 – 36.

[9]Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321.

[10]Attorney-General & Minister for Justice v Kehoe [2001] 2 Qd R 350 at 356; Tully v McIntyre [2001] 2 Qd R 338.

[11]Transcript of Proceedings, 9 March 2015, page 6, lines 32 – 46.

[12]Ibid, page 12, lines 32 – 44.

[13]Ibid, page 13, lines 21 – 42.

[14]Ibid, page 10, lines 27 – 31.

[15]Ibid, page 11, line 40 to page 12, line 8.

[16]Decision of the Queensland Racing Disciplinary Board, 9 March 2015, page 3.

[17](1988) 166 CLR 59.

[18]Decision of the Queensland Racing Disciplinary Board, 9 March 2015, page 4.

[19]Lowndes v The Queen (1999) 195 CLR 665 at 671 – 672.

[20]Everett v The Queen (1994) 181 CLR 295 per McHugh J at 306.

[21]Final report on the investigation of the Damien Oliver Inquiry 2012 by Racing Victoria Limited, 13 June 2013.

[22]Harness Racing New South Wales, media release, 4 September 2012.

[23]Racing Act 2002 (Qld) s 155(2).

[24]QCAT Act s 146.

[25]Lovell v Lovell (1950) 81 CLR 513.

[26]Final report on the investigation of the Damien Oliver Inquiry 2012 by Racing Victoria Limited, 13 June 2013.

[27]Australian Rules of Racing, r 83(c).

[28]Racing New South Wales, Appeal by Peter Robl, 24 February 2011.

[29]Harness Racing New South Wales Stewards Inquiry into Mr Jackson Painting, 4 September 2012.

Close

Editorial Notes

  • Published Case Name:

    Queensland All Codes Racing Industry Board v Gary Vernon

  • Shortened Case Name:

    Queensland All Codes Racing Industry Board v Vernon

  • MNC:

    [2017] QCATA 47

  • Court:

    QCATA

  • Judge(s):

    Thomas P

  • Date:

    03 May 2017

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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