Queensland Racing Integrity Commission v Currie
[2022] QCATA 6
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- Unreported Judgment
- Queensland Racing Integrity Commission v Currie[2022] QCATA 6
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Queensland Racing Integrity Commission v Currie[2022] QCATA 6
Queensland Racing Integrity Commission v Currie[2022] QCATA 6
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Queensland Racing Integrity Commission v Currie [2022] QCATA 6 |
PARTIES: | queensland racing integrity commission (applicant/appellant) v benjamin mark currie (respondent) |
APPLICATION NO/S: | APL281-20 |
ORIGINATING APPLICATION NO/S: | OCR190-19 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 24 January 2022 |
HEARING DATE: | 3 August 2021 |
HEARD AT: | Brisbane |
DECISION OF: | Judicial Member D J McGill SC |
ORDERS: |
|
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – JUDGE MISTAKEN OR MISLED – GENERALLY – where there was an error of law by the Tribunal below – where the reasoning of the learned Member was both unconvincing and unsatisfactory ASSOCIATIONS AND CLUBS – RACING CLUBS AND ASSOCIATIONS – GENERALLY – where it was alleged that the respondent engaged in improper actions in connection with racing in that the respondent sent text messages with respect to an intention to subject two horses to electronic apparatuses capable of affecting their performances – where the respondent argued that the reference to a “jigger” was made in jest or frustration – whether this was reasonable in the circumstances Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142, s 146, s 147. Racing Integrity Act 2016 (Qld) s 246. Allesch v Maunz (2000) 203 CLR 172 Briginshaw v Briginshaw (1938) 60 CLR 336 Campbell v Queensland Building and Construtcion Commission [2021] QCATA 34 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 Commissioner of Police v Al Shakarji [2013] QCA 319 Crime and Corruption Commission v Lee [2019] QCATA 38 Fox v Percy (2003) 214 CLR 118 McDonald v Queensland Police Service [2017] QCA 255 Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679 Rowe v Kemper [2009] 1 Qd R 247 Shambayati v Commissioner of Police [2013] QCA 57 Walker v Davlyn Homes Pty Ltd [2003] QCA 565 White v Commissioner of Police [2014] QCA 121 |
APPEARANCES & REPRESENTATION: | |
Applicant: | S A McLeod QC instructed by the internal solicitor of the appellant |
Respondent: | J Murdoch QC and S Favell instructed by O'Connor Ruddy & Garrett Solicitors |
REASONS FOR DECISION
- [1]This is an appeal and application for leave to appeal from the decision of a Member of the Tribunal. The respondent, a licenced trainer of thoroughbred horses, was charged before a stewards’ enquiry with two charges of improper action contrary to the Australian Rules of Racing r 175(a). The enquiry resulted in a conviction on both charges, and the imposition of a period of disqualification. The respondent sought a review of that decision by the appellant. On 7 June 2019 the appellant found the charges to be made out, but amended the penalties so as to reduce the period of disqualification. The respondent then applied for a review of that decision by the Tribunal. On 20 August 2020 a Member set aside the decision of the appellant, and substituted the decision that the respondent did not breach the rules of Racing as alleged.
- [2]The Member conducted a fresh hearing on the merits of the two charges, and concluded that the charges as particularised were not made out as a matter of fact. Proof of the charges involved the drawing of inferences, which the Member was not prepared to draw. She also decided that the charges as particularised did not disclose breaches of rule 175(a). The appellant in this proceeding challenges both aspects of that decision. The question of whether the charges as particularised disclose a breach of the rule is a question of law, on which the respondent has a right to appeal under the Queensland Civil and Administrative Tribunal Act 2009 (“the QCAT Act”) s 142, to be decided in accordance with s 146. The other matters raised by the appellant are questions of fact, or of mixed fact and law, so it requires leave to pursue that aspect of the appeal, under the QCAT Act s 142(3)(b). If leave is granted, the appeal is by way of rehearing, under s 147.
- [3]Although the appellant has a right to appeal on the question of law, there would be no utility to allowing the appeal on that ground (if I disagreed with the Member) if I were not also allowing the appeal on the other grounds. In such circumstances, it would be tantamount to an advisory opinion, and that would not be appropriate, by analogy with the position of an appellate court. So the first question is whether it is appropriate to grant leave to appeal on the other grounds.
Leave to appeal
- [4]As a general proposition, when leave to appeal to the Appeal Tribunal is required, it will be granted only where there is a reasonable argument that the decision was attended by error, and an appeal is necessary to correct a substantial injustice caused by that error, or where the appeal raises a question of general importance upon which further argument and a decision of the Appeal Tribunal would be to the public advantage.[1]
Background
- [5]The Australian Rules of Racing (“ARR”) r 175(a) provides:
The Principal Racing Authority (or the Stewards exercising powers delegated to them) may penalise: (a) Any person who, in their opinion, has been guilty of any dishonest, corrupt, fraudulent, improper or dishonourable action or practice in connection with racing.
- [6]The charges brought against the respondent were as follows:
Charge 1: That on 25 November 2015 you … as the licenced trainer of a horse, namely Massive Attack, engaged in an improper action in connection with racing in that you sent text messages in regards to your intention to have Massive Attack subjected to an electronic apparatus capable of affecting its performance.
Charge 2: That between 19 November 2016 and 9 December 2016 you … as the licenced trainer of a horse, namely Said Written, engaged in an improper action in connection with racing in that you sent text messages in regards to your intention to have Said Written subjected to an electronic apparatus capable of affecting its performance.
- [7]The grounds of appeal, as set out in the Application for leave to appeal, apart from the ground raising a question of law, were as follows:
- 1.In respect to charge 1, the Tribunal erred in finding (at [48]) that reference to use of a “jigger” in the texts was said in jest or frustration by [the respondent], as the said finding was glaringly improbable and contrary to compelling inferences when the evidence as a whole was against such a finding.
- 2.Further, in respect to Charge 1, the Tribunal erred in finding (at [49]) that the text messages were insufficient evidence of an intention by [the respondent] to have Massive Attack subjected to an electronic apparatus capable of affecting its performance, as the said finding was glaringly improbable and contrary to compelling inferences when the evidence as a whole was against such a finding.
- 3.In respect to Charge 2, the Tribunal erred (at [75]) in accepting the evidence of [the respondent] as to the meaning he intended by use of the word “harp” in the text messages, namely to mean “strong gallop”, because that finding was glaringly improbable and contrary to compelling inferences when the evidence as a whole was against such a finding.
- 4.Further, in respect to Charge 2, the Tribunal erred in finding (at [76]) that it was not possible to draw the inference that [the respondent] intended to use a jigger on Said Written to affect his performance, as the said finding was glaringly improbable and contrary to compelling inferences when the evidence as a whole was against such a finding.
- [8]There was no dispute that at all material times the respondent was a licenced trainer, and that he was the licenced trainer of the two horses mentioned in the charges. It was also not disputed that he sent the various text messages referred to in the charges. I will deal first with the evidence and findings about Charge 1.
Charge 1
- [9]On 25 November 2015 the respondent was at a race meeting in Ipswich where the horse Massive Attack ran in a race, and performed poorly. Two of the owners of that horse were N Price and J Price. After the race the respondent had an exchange of text messages with N Price relevantly as follows:
R There just hasn’t been a suitable race for him lately. There’s a 0-62 1200m at Twba on the 12th of December coming up. That’s his race. He’s racing good, but there just too strong & I don’t think he’s getting that extra trip out strong. … Blinkers on next time and give him a hit with the jigger. Win then sell.
N P Which horse
R Massive attack
N P I thought so did he just run I missed it
R Year ran good. Just to hard here. Haven’t been able to find the right race. We have now but
N P Yer sounds good
- [10]The respondent also at about the same time had an exchange of text messages with J Price as follows:
R Come back in trip. There’s a 1200m at Twba in two weeks. We will be spot on for that. It’s 0-62 1200m on his home track. … Theses races have just been too hard.
J P Yeah still not a bad run! … Just not up to that class
R Year it’s going fine. But just need the right race. Blinkers on next time and hit him with the jigger
J P Yeah sweet
R Win then sell
J P Year sweet you reckon you would get much?
R Win and hopefully sell for about 8k.
- [11]Overlapping the end of those text exchanges was a short text exchange with Mr Groves who worked in the respondent’s stables, as follows:
D G Massive run … Shit ride!!!
R Nah ride was fine. Just needs the right race. There’s a 0-62 in Twba in a few weeks. Blinkers on, jigger, back in trip and grade it will win.
D G Yeah. Thought he could have stayed on fence he wasn’t beaten far!! Went wide probly give em 10 from 600 … Beat 4lths Good run I thought hel win like u say next start!!
R Can’t run the 1300m
- [12]The respondent did not dispute that the text messages relied on in evidence were sent and received by him, and that a jigger was a device to administer an electric shock to a horse.[2] It appears not to have been in dispute that it was an electronic apparatus capable of affecting the performance of a horse on which it was used. The appellant’s case before the Tribunal was that the effect of this exchange of text messages was that the respondent was proposing to use a jigger on Massive Attack at a particular race so that it would win that race, and could then be sold for a good price for that horse, and that two of the owners agreed with that approach. Neither of the owners gave evidence at the enquiry, and the Member rejected the proposition that there was an agreement, on the basis that it was not part of the charge, and it had not been put to the respondent, nor was there necessary evidence from the owners as to their understanding of the situation.
- [13]I agree that it was not part of the charge to prove that there was an agreement with the owners for the use of a jigger. In order to make out the charge, it was necessary to prove three things: that the respondent had an intention to have the horse subjected to an electronic apparatus, that he sent text messages in regard to that intention, and that doing that was an improper action in connection with racing. The respondent gave evidence that he was friends with these two owners, and that he had made the statements about the jigger in jest and in frustration with the horse. As to this, the Member said at [39] “The content of the text messages suggests it is possible that reference to use of a jigger was not said in jest. It is also possible on these facts that use of a jigger was mere contemplation rather than a positive intention.”
- [14]The Member rejected a submission that the tone of the messages permitted an inference that there was a genuine intention, since it was not reliable to perceive tone from the written word: [40]. The Member continued: “The words could as easily have been said in jest or frustration as not.” The Member referred, as relevant to context, to the evidence of the respondent that he had never used a jigger on a horse or instructed anyone to use one, and the absence of evidence to the contrary, or that a jigger had ever been used on that horse, or that the respondent had given an instruction to that effect, or that one had ever been found at his stables. The Member then said she was not able to draw an inference of an intention to use a jigger on Massive Attack from the text messages “without more”, and that there was no good reason to reject the respondent’s evidence that the reference to the jigger in the texts was in jest or frustration: [48]. In those circumstances, charge 1 was not made out.
- [15]One difficulty with that reasoning was that there was more, subsequent behaviour that was consistent with aspects of the proposal the respondent put forward in the texts. There was forthcoming a race at Toowoomba which met the description used, and Massive Attack was initially entered in that race,[3] although ultimately he was withdrawn and did not run in it. As well, at the time of the texts Massive Attack was registered to race without blinkers, and between the Ipswich meeting and the Toowoomba meeting his registration was changed, to racing with blinkers.[4] These matters were arranged by the respondent, and are consistent with, and provide support for, the proposition that when he was setting out his plan in the texts to the owners he was outlining an intention he actually held at that time. The fact that the horse did not run at Toowoomba just shows that the intention did not persist until then, for whatever reason.[5]
- [16]There was however a very good reason why the Member did not have regard to these considerations. They were not advanced by the appellant at or before the hearing. I have looked at written submissions filed in the Tribunal before the hearing, and at the transcript of the hearing, and these subsequent events are not relied on as evidence supporting the existence of an intention at the relevant time.[6] In those circumstances, it would not be appropriate for regard to be had to them on appeal to support the appellant’s case. The case advanced on appeal, as before the Member, was that the relevant intention was to be inferred from the fact that the text messages were sent.
- [17]The text messages relevant to Charge 1 were all sent on 25 November 2015, between 2.49 pm and 3.11 pm. The respondent texted the same plan to each of the three others, enter the horse in a particular race, with blinkers on and a jigger. To the two who were owners he added the proposal that the horse then be sold. There is nothing in the content of the text messages inconsistent with there being a serious proposal then in the respondent’s mind. There is nothing obviously humorous, or even showing any obvious sign of frustration, unless it is suggested that the references to a jigger demonstrate that he was not serious, because of a prior assumption that he would not seriously contemplate such a thing. It is necessarily unhelpful to approach the question of whether the texts demonstrate the existence of such an intention on the basis of such an assumption.
- [18]The proposal is not on the face of it obviously extreme or outlandish, or otherwise of such a nature that it would be interpreted by a reasonable recipient or observer as a humorous or fanciful proposal. Apart from the fact that it is not the sort of proposal a responsible horse trainer ought to be making, there is nothing odd or irrational about such a proposal, as a plausible means of ridding oneself of a horse showing disappointing performance. Without the references to a jigger, there is nothing about the texts to indicate that they are not a serious proposal to obtain a better result by racing the horse under conditions which are better suited to it. The additional reference to then selling the horse is consistent with the use of some artificial means to obtain an artificially favourable result, in order to be able to obtain an artificially favourable sale price.
- [19]In these circumstances, the reasoning of the Member, that the words used could as easily have been said in jest or frustration as not, is unconvincing. There is nothing about the words used which positively suggests that they were said in jest or frustration, and nothing inconsistent with their representing a serious proposal by the respondent at that time. There was, in the testimony of the respondent to the stewards, and in his affidavits, evidence supporting the proposition that the words were used in jest or frustration, but whether on all the available evidence the charge, or an element of the charge, was proved to the required standard is a different question.
- [20]I am also concerned about the reasoning of the Member where she said that it was also possible on these facts that use of a jigger was mere contemplation rather than a positive intention. There is certainly a distinction between having an actual intention to do something and merely considering the possibility of doing that thing; but there is nothing in the wording of these text messages which indicates the latter rather than the former in this case. The content of the text messages, which was the evidence then under consideration, put this forward as a definite proposal, rather than the mere contemplation of the use of a jigger as a possible course of action. Indeed, there was nothing in the texts sent to the two owners which indicated that the proposal was conditional on their approval or consent. The plan was presented as what the respondent was going to do. That is not wording consistent with mere contemplation.
- [21]If he had said something like “The only way to get this horse to win a race is to use a jigger,” that could plausibly have been said in jest or in frustration, or as expressing mere contemplation. If he had said “Perhaps we could get a win by using a jigger,” that could have been characterised as mere contemplation, and not supporting an inference that the respondent then had an actual intention to use a jigger. It was reasonable for the Member to have considered whether the words used in the text messages indicated an actual intention rather than mere contemplation. But when one considers the actual words used in the text messages, there is nothing in them to suggest mere contemplation rather than an actual intention.
- [22]In these circumstances, where I have these concerns about the reasoning of the Member, I consider that there is a proper basis for the grant of leave to appeal in relation to count 1. I will next consider the position with charge 2.
Charge 2
- [23]On 20 November 2016 the respondent was at a race meeting on the Sunshine Coast where the horse Said Written ran in a race, and performed poorly. Two of the owners of that horse were B Gaffney and the respondent. After the race the respondent had an exchange of text messages with B Gaffney as follows:
R Very disappointing mate … Not sure what to make of it
B G Had soft run and just kept one pacing, but he didn’t smash him up the last 100 … check him out but I’m thinking you were right with just getting him out to a trip … Mile class one next won’t be beyond him if he’s sound ..
R Yeah he’s definitely sound. Just not sprinting at all like he did first up last time. Seems to have pulled up fine. Not sure what to make of it. But not firing.
B G Just looked again. I’ll reserve, I don’t think as bad as it first looked … don’t know what happens to rating now but there’s a 0/58, 1650 at Beaudesert, Tuesday 6th ????
R I’m honestly not sold on the mile yet … I know he was one paced there, but not sure of straight to the mile is the answer. I don’t reckon he tried real hard there. I reckon blinkers off and harp the Cunt up.
B G I’ll go with you every time …
R Wasn’t a tired horse post race. But could be sign wants mile
- [24]There were other text messages in evidence relied on by the appellant as supporting the charge. On the same day, the respondent exchanged text messages with a man called Shane, who provided advice on the form of his horses, speaking about other horses, and then continued as follows:
R I don’t reckon our bloke tried real hard there. … Might need some electricity.
S Harp up 1200 C1 in a fortnight.[7]
R Might be the play.
S Last chance. He’s a bleeder so might have to win one and spear?
R Yeah I think so. … 6 year old. … Might not have that desire. … No excuses there really. Just plain disappointing.
S Harp or sell?
R Harp first. … Still a few things to try.
S Kitchen sink at the cunt! Hahaha.
- [25]On 7 December 2016 there was an exchange of text messages with Shane, talking about a disappointing horse, and about selling him, during which this exchange occurred:
S What a dog cunt he was today. Embarrassing. If we could get $3k I’d be wrapped!
R Could tell he didn’t even try. … You think I nominate in 2000m race and just try that … Blinkers and tongue tie off … Harp up Friday?
S It might be even more embarrassing!
- [26]There were then a few texts about offering the horse for sale. On the same day there was an exchange of texts with a man called Drew about selling the horse, during which the respondent sent four texts in succession, saying: “Nothing wrong with him. … Bit going shit house. … Probably needs harp. … Maybe 1690 plus.” There was also evidence the next day that during an exchange of text messages a Mr Nolan said to the respondent “you have become a heavy harp man” to which he replied “Said Written … what else can I do.”
- [27]The respondent gave evidence that he used the term “harp” to mean “a strong gallop”, and added in respect of the texts to Mr Gaffney the meaning to try to ensure a result for the owner. He explained the use of the word “electricity” as referring to a shock wave therapy machine,[8] the use of which is lawful. The Member noted that there was evidence that the term “harp” means a jigger, or an electronic device used to impart an electric shock to a race horse as a means of improving its performance in a race or track work, and was widely understood to have that meaning in the racing industry: [62]. However, the Member was not prepared to reject the respondent’s evidence of the meaning he attributed to that word, and accepted his explanation for the reference to “electricity”: [71], [74]. In arriving at this conclusion, the Member regarded as important the absence of evidence that a jigger had in fact been used on a horse by the respondent, that he had been found with one and that he had given instructions to a rider to use one. Once that finding was made, the texts messages were necessarily not evidence supporting an inference of the existence of such an intention.
- [28]I find that reasoning quite unconvincing. In the exchange with Shane the expression “might need some electricity” prompted the response “harp up …” to which the respondent expressed some support: “Might be the play.” That is a much more natural response when the other person has essentially agreed with one, than if the other person has just proposed something quite different. As well, the text messages were using the term harp in the context of a complaint that the horse was not trying. That sounds like precisely the sort of problem the use of a jigger would be expected to overcome.
- [29]It also strikes me as odd that, if the respondent was using the term “harp” in a way not consistent with common usage in the racing industry, he managed to take part in exchanges of text messages involving four other people in the racing industry in which his use the term in this unconventional way was apparently not exposed.[9] Indeed, his evidence went further; he said that his usage of “harp” was how it was used in the racing industry, and that he had not heard “harp” used in the industry as a reference to an electrical device.[10] In the light of the Member’s finding as to the meaning of “harp” that was widely understood in the racing industry, this evidence ought to have been seen as damaging to the credibility of the respondent, but this was not mentioned by the Member. As well, I do not regard the absence of evidence of the actual use or possession of a jigger as of importance, in circumstances where this matter came to the attention of the authorities some time after the relevant events occurred. The text messages were in 2015 and 2016, while the stewards Inquiry did not occur until 2019. There may have been no reason for any timely investigation to have occurred in 2015 or 2016. I find the emphasis placed on the absence of such evidence surprising.
- [30]Accordingly in respect of both charges I regard the reasoning of the Member as unconvincing and unsatisfactory. This was in a context where the Member had overturned the decision of the stewards, confirmed by an internal appeal, both involving people thoroughly familiar with behaviour in the racing industry. The stewards had the additional advantage, not shared by the Member, of actually seeing and hearing the respondent when assessing his credibility. In those circumstances, I consider that it is appropriate to grant leave to appeal from the decision of the Member. It follows that the appeal will be by way of rehearing.
Appeal
- [31]On an appeal by way of rehearing, it is necessary for me to consider the evidence and make up my own mind, particularly in relation to matters involving the drawing of inferences from primary facts.[11] In this respect, I am really in as good a position as the Member, who did not have the advantage of actually seeing and hearing the witnesses, an advantage possessed only by the stewards. In the proceeding before me, the onus is on the appellant to show that there was some error in the decision under appeal.[12] I have looked at the material in the s 21 documents in the Appeal Book, and read those, including those parts of the transcript of the stewards inquiry which were relevant to the matters in issue before me. I have also had regard to the submissions of the parties.
- [32]With regard to the evidence of the respondent, obviously the stewards did not accept it. I am conscious of the limitations in drawing conclusions about credibility from a transcript, but as mentioned the respondent’s denial of awareness of the term “harp” as meaning “jigger” in the racing industry was inconsistent with the evidence of the other witnesses referred to by the Member, including the evidence of Mr Nolan, the respondent’s uncle, with whom the respondent had had a close relationship, and to some extent a professional relationship in the industry. This evidence damages the respondent’s credibility, as does his manifestation before the stewards of what looks very like a dismissive and arrogant attitude to the enquiry.[13] As discussed earlier, some of his explanations for the terms of texts were unconvincing. On the whole, I was not impressed by his credibility.
- [33]As to Charge 1, I have already said something about the text messages and what was said about them. In my view, there was nothing about them to indicate that they did not reflect a real existing intention on the part of the respondent to apply a jigger to Massive Attack at a particular forthcoming race, and that is the nature reading of them. The texts to the two owners were in the context of a proposal for the horse to be sold after the race, much more consistent with something having been done to produce an artificial result in that race than any success in that race flowing from the better application of lawful training techniques by the respondent. I will not repeat the further comments made earlier.
- [34]I agree with the member that the approach in Briginshaw is applicable,[14] and recognise that the use of a jigger in a race is serious misconduct for a trainer, and that an inference that a trainer had an intention to do that should not be readily drawn. I consider however that that is the obvious inference to draw from the content of the text messages, where the proposal was made in three separate exchanges of messages, and where there was nothing in the texts in evidence to indicate that they were not to be taken seriously. The idea that this was just friends joking around is quite implausible; it presents as a serious means to provide them with a favourable basis to rid themselves of an unsatisfactory horse. There is nothing speculative or conditional about the terms in which the texts were sent. I consider that the appropriate inference to draw is that at the time they were sent the respondent did have an intention to use a jigger on Massive Attack in the specified race. It follows that I also find that the text messages that he sent were sent in regard to that intention. It follows that the first two requirements for proof of Charge 1 are made out. I shall consider the second charge before discussing the third requirement.
- [35]As to Charge 2, I have again already dealt with the relevant text messages, and some circumstances concerning them. I do not accept the evidence of the respondent, that the term “harp” was used to refer to a strong gallop in training before the race. I consider that it was used in accordance with what was found to be the ordinary meaning in the racing industry, to mean a jigger. In those circumstances, the evidence of the respondent in other respects concerning Charge 2 is also not regarded as reliable. There is nothing in any of the text messages he sent to suggest that he was not being serious when he suggested the use of a harp on Said Written.
- [36]There remains however the issue of whether the appropriate inference to draw from the text messages is that the respondent at the time of sending them had an actual intention to use a jigger on that horse, or whether it was just a possible course of action that he was suggesting or contemplating. The content of the texts on this occasion is much less positive than for those sent in relation to Massive Attack. The first text, to Mr Gaffney, “I reckon blinkers off and harp the Cunt up” was expressed as a suggestion rather than a definite settled intention, and came after a number of statements indicating some uncertainty as to the appropriate next move. It may have reflected an existing intention, but it may have been no more than a possible course of action which was still under consideration, a provisional view.
- [37]The exchange with Shane began with the idea that the horse “might need some electricity”, and continued in much the same line, as if the use of a “harp” was under serious consideration, but the respondent’s mind had not yet been made up. The crucial text to Shane on 7 December, “Harp up Friday?” looks more like a suggestion or a possibility than a reflection of a settled intention, particularly with the question mark. The relevant text to Drew the same day included the word “probably”. The text to Mr Nolan, “what else can I do,” is also susceptible to the interpretation that the idea of using a jigger on the horse was at that stage no more than a provisional view.
- [38]Overall in relation to Charge 2 I consider that the texts are less definite and more tentative, and in those circumstances, bearing in mind the approach in Briginshaw, I am not prepared to draw the inference that at the time of sending them the respondent had an intention to have the horse subjected to an electronic apparatus, as distinct from having that possible course of action under serious consideration. In relation to Charge 2 I have therefore reached the same conclusion as the Member, although for different reasons.
Did the particulars support the charge?
- [39]That brings me to a consideration, in relation to Charge 1, of the third element in the charge, whether sending those text messages with that intention was an improper action in connection with racing. It is convenient at this stage to consider the appeal on the question of law, whether the particulars of Charge 1 support a breach of rule 175(a). That rule permits the stewards to penalise any person who, in their opinion, has been guilty of any (relevantly) improper action or practice in connection with racing. The Member decided that the Charge as particularised did not show a breach of the rule, on the basis that more was required. The Member said at [82]:
In my view an intention may be capable of forming part of an improper action if the state of mind is more than contemplation, if the intention involves a positive decision to act, the intention is capable of being carried into action by the volition of the person holding the intention, and finally, actual steps are taken to carry the intention into action.
- [40]Accordingly it was held that in order to show a breach of that rule it was necessary to demonstrate a move from contemplation to action: [83]. The reasoning of the Member was that a breach of the rule required that actual steps be taken to carry the intention, here that Massive Attack be subjected to an electronic apparatus, into action. In my opinion that involved a misunderstanding of the effect of the charge. It assumed the relevant action was an attempt to subject the horse to an electronic apparatus. That was not how the charge was framed. The relevant action was not applying an electronic apparatus to the horse, but sending texts with an intention to apply such an apparatus, in connection with that intention.
- [41]For the purpose of the charge, the “action” was particularised as sending the texts with the particular intention alleged. I have no difficulty in characterising the sending of text messages as an action for the purposes of the rule. It is a positive step taken by someone which produces a result, in the form of a communication of the message from the sender to the recipient.
- [42]The real issue here was whether such action was improper for the purpose of the rule. If, as alleged in the charge, it was, I consider it clear that the charge as particularised disclosed a breach of the rule. What matters is whether that particular was proved, a question the Member does not seem to have considered. This is a matter of judgment, assessing whether such conduct can properly be stigmatised as improper. I consider that the following factors are relevant:
- (a)The texts were sent, relevantly, by the trainer of the horse to two of its owners.
- (b)The texts reflected an intention on the part of the trainer to use a jigger on the horse when it raced.
- (c)The use of a jigger in such circumstances is contrary to the rules of racing, and itself at least improper conduct.
- (d)The texts proposed that advantage be taken of improved performance, obtained in this way, to obtain a better sale price for the horse, thus ridding the owners of an unsatisfactory horse on advantageous terms.
- (e)A sale in such circumstances would be deceitful, presented the horse as having a better record than it would have obtained in accordance with the rules of racing.
- (a)
- [43]In view of those factors, I consider that the conduct the subject of charge 1 was obviously improper for the purposes of that rule. Accordingly, the third element of Charge 1 was made out by the appellant, and the respondent’s conviction of that charge must be reinstated. It was unnecessary for the Member to consider the respondent’s application to review the sanction imposed on the internal review, but in view of the conclusion I have arrived at, it will be necessary for that aspect of the respondent’s application to be considered. Since this appeal is by way of rehearing, in the interests of dealing with the matter efficiently I will deal with that aspect of the review myself. Accordingly, I will give directions after the parties advise whether they require a further oral hearing, or whether they are content for me to deal with that aspect of the matter on the papers. They should also indicate whether there is to be any application for costs.
- [44]Accordingly the decision of the Appeal Tribunal is as follows:
- Leave to the appellant to appeal from the decision of the Tribunal of 19 August 2020.
- Appeal allowed in part.
- Decision of the Tribunal of 19 August 2020 set aside, so far as it related to Charge 1 against the respondent.
- In respect of Charge 1 substitute a decision that the respondent did breach Australian Rules of Racing 175(a) as alleged by the appellant in Charge 1.
- The appeal is otherwise dismissed.
- The parties are to advise the associate to the Deputy President of the Tribunal by email within fourteen days whether they require an oral hearing of the respondent’s review of the sanction imposed on Internal Review, or whether that review can be determined on the papers, and whether there is any application for costs.
- The appeal is adjourned to be dealt further in due course.
Footnotes
[1] Crime and Corruption Commission v Lee [2019] QCATA 38 at [12], citing appellate authority. See also Campbell v Queensland Building and Construction Commission [2021] QCATA 34 at [17].
[2] Hearing Book (“HB”) p 182, p 183.
[3] Evidence to stewards, HB p 195, p 220.
[4] Evidence to stewards, HB p 220.
[5] He may have repented of such an improper plan as the date of the meeting approached; on the other hand, he may have been unable to obtain a suitable jigger.
[6] It is apparent from the transcript of the stewards enquiry that they were well aware of it: e.g. HB p 220.
[7] This text was sent at 5.05.02 pm, after the respondent’s text to Mr Gaffney including “harp the Cunt up” at 5.02.00 pm: Hearing Book p 328, p 329.
[8] Evidence to stewards, HB p 196.
[9] Mr Nolan understood “harp” to mean “jigger”: Evidence to stewards, HB p 233. At p 234 he suggested his comment in the text was said in jest or as banter.
[10] Evidence to stewards, HB p 185. He had some years experience in the industry: p 183.
[11] Fox v Percy (2003) 214 CLR 118 at [22] – [25]; Rowe v Kemper [2009] 1 Qd R 247 at [3] – [5]; Commissioner of Police v Al Shakarji [2013] QCA 319 at [7]; Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679 at [43], [57]; McDonald v Queensland Police Service [2017] QCA 255 at [47].
[12] Allesch v Maunz (2000) 203 CLR 172 at [23]; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [16]; Walker v Davlyn Homes Pty Ltd [2003] QCA 565 at [9]; Shambayati v Commissioner of Police [2013] QCA 57 at [23]; White v Commissioner of Police [2014] QCA 121 at [8]; McDonald v Queensland Police Service [2017] QCA 255 at [47].
[13] See in particular Evidence to stewards, HB p 221. See also p 257, where he said in effect that none of the texts should be taken seriously.
[14] Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2.