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Police v Currie[2021] QMC 2

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Police v Currie;  Police v Stephens [2021] QMC 2

PARTIES:

POLICE

v

BENJAMIN MARK CURRIE

POLICE

v

ANTHONY RAYMOND STEPHENS

FILE NO/S:

MAG: 155530/20(1) and MAG: 155572/20(5)

DIVISION:

Criminal

PROCEEDING:

Hearing

ORIGINATING COURT:

Toowoomba Magistrates Court

DELIVERED ON:

21 May 2021

DELIVERED AT:

Toowoomba

HEARING DATE:

10, 11, 12, 13, 17 May 2021

MAGISTRATE:

Kay Ryan

ORDER:

Currie – Not Guilty

Stephens – Not Guilty

CATCHWORDS:

CRIMINAL LAW – FRAUD – Breach of Rules of Racing – whether defendants administered medication, prohibited substances and alkalinising agents by way of injection and stomach tubing – whether representations made that horses eligible to run – whether participation in a race continues until race run – whether a scheme existed to improve the performance of horses racing for prizemoney.

CIRCUMSTANTIAL EVIDENCE – whether guilt is the only rational inference that could be drawn from the evidence – whether any reasonable possibility consistent with innocence – whether reasonable inference based on evidentiary facts – whether logical and rational connection between the facts found and the inferences to be drawn – where more than one inference is reasonably open.

JOINT CRIMINAL ENTERPRISE – whether defendant Stephens had actual knowledge of the facts constituting the “scheme” – whether intentionally participated in the “scheme”.

Australian Rules of Racing

Edwards v R 178 CLR 193

R v Dillon;  Ex parte Attorney-General (Qld) [2015] QCA 155.

R v B and P [1999] 1 Qd R 296

R v Saba [2013] QCA 275.

Shepherd v R (1990) 170 CLR 573

COUNSEL:

Mr P.F. Rutledge for Prosecution

Mr M.J. Copley for defendant Currie

Mr S Kissick for defendant Stephens

SOLICITORS:

Queensland Police Prosecutions for the Prosecution

Jacobson Mahony Solicitors for defendant Currie

Butler McDermott for defendant Stephens

  1. [1]
    Benjamin Mark Currie is charged pursuant to Section 408C(1)(d) of the Criminal Code

“That on divers dates between the 14th day of February 2017 and the 15th day of February 2019 at Toowoomba and elsewhere in the State of Queensland one Benjamin Mark Currie dishonestly gained a benefit namely participation of horses trained by Benjamin Mark Currie in Racing Queensland thoroughbred horse races for himself.”

  1. [2]
    Anthony Raymond Stephens is charged under the same section –

“That on divers dates between the 9th day of August 2018 and the 15th day of February 2019 at Toowoomba and elsewhere in the State of Queensland one Anthony Raymond Stephens dishonestly gained a benefit namely participation of horses trained by Benjamin Mark Currie in Racing Queensland thoroughbred horse races for another person namely Benjamin Mark Currie.”

  1. [3]
    The prosecution case is that the defendants, together with Denis Holbeck and David Litzow, were party to a scheme with the common unlawful purpose to attempt to improve the performance of horses racing for prizemoney in races subject to the Australian Rules of Racing and the Queensland Local Rules (the Rules) by the administration of a substance or substances to the horses on the day of the race and prior to the start of the race in breach of the Rules.
  1. [4]
    Particulars of the charge were provided to the court and are marked “MFI A”. These particulars state that the administration of one of the following substances to a horse –

Medication;

A prohibited substance, namely L-arginine;

Alkalinising agents;

Injections;

Stomach tubing

prior to the start of the race breached the Rules of Racing, resulting in the horse not being eligible to run in a race and that as a result of the administration of the substance/s the horse was liable to be scratched or disqualified.

  1. [5]
    It is alleged that the defendant Currie represented, by way of nominating, making a declaration of acceptance or allowing a horse to race, that the horse was eligible to run or not liable to being disqualified, scratched or withdrawn from the race or otherwise starting in the race. The benefit it is said that was dishonestly gained by such representation was that participation in the race gives the trainer and others the opportunity to share in prizemoney if the horse places in a race.
  1. [6]
    It is further alleged against defendant Stephens that he was a party to the scheme from August 2018, and that he administered or was involved in administering substances supplied by one Denis Holbeck and that he paid Denis Holbeck for that supply with money transferred to him by defendant Currie.
  1. [7]
    The particulars then detail fourteen (14) races (particularised races) in which it is alleged the defendants participated in the “scheme” in breach of one or more of the Rules by administering a substance or substances supplied by Denis Holbeck and/or the horse was injected, and/or the horse was stomach-tubed.
  1. [8]
    Counsel for defendant Currie, Mr Copley, with whom Mr Kissick (for defendant Stephens) agreed, has argued that the prosecution case, as particularised; is that the benefit of participation was dishonestly gained by a false representation, being that the horse was eligible to run in the race. He argues that the benefit of participation was gained through the combination of the defendant’s actions in nominating the horse for a race and then in his declaring acceptance of the weight assigned by the handicappers. In other words, the argument is that the benefit of participation was complete or was obtained upon the act of acceptance by the trainer and that at the time of both nomination and acceptance, there was no rule preventing the horse being treated.
  1. [9]
    He draws an analogy with circumstances where a licensed driver with a valid licence could not be said to have fraudulently gained the benefit of driving if he decided to drive the car knowing that the car’s brakes were completely inoperable. Whilst that conduct would be capable of punishment under the relevant traffic laws, the benefit of being able to drive had been gained prior to the wrongful conduct. Mr Copley submitted that if the court found against this submission, then the court could not be satisfied that the prosecution had proved its case beyond a reasonable doubt that defendant Currie had fraudulently gained the benefit for himself on the evidence presented.
  1. [10]
    In considering the first part of this submission, the definition of what is “participation” needs to be examined. The dictionary definition of “participation” is “the act of participating” – to participate is “to take part in” something.[1]  It would appear that when applying this definition to the wording of the charge, the act of horses participating in a race is not limited to simply a nomination and acceptance to race, but continues until the horse has raced, or is scratched, disqualified or otherwise did not run in accordance with the Rules of Racing.  I therefore reject Mr Copley’s submission in this regard.
  1. [11]
    Mr Kissick, on behalf of defendant Stephens submitted that if defendant Currie is found not guilty, then defendant Stephens is also not guilty. For the prosecution to succeed, they have to show the existence of a joint criminal enterprise and that defendant Stephens had actual knowledge of the facts constituting the scheme. He referred me to the case of R v B and P [1999] 1 Qd R 296 where Pincus JA held that the accused must be shown to have intentionally taken part in the offence, that is, he or she must have knowledge of the essential matters which go to make up the offence whether or not he or she knows those matters amount to a crime.  However, criminal responsibility is not attracted where the accused has knowledge of no more than a possibility that the crime is to be committed.

The Law

  1. [12]
    Section 408C (1)(d) of the Criminal Code states –

“(1) A person who dishonestly –

 …………

  1. (d)
    Gains a benefit or advantage, pecuniary or otherwise, for any person;  or

…………

The maximum penalty for the offence is 5 years imprisonment.

  1. [13]
    The elements of the offence are –
  1. (a)
    Dishonestly
  1. (b)
    Gains a benefit or advantage, pecuniary or otherwise
  1. (c)
    For any person.

The prosecution must prove each element of the offence beyond a reasonable doubt.

  1. [14]
    The term “dishonestly” requires the prosecution to prove only that what the accused person did was dishonest by the standards of ordinary honest people. To secure a conviction, the prosecution do not have to prove that the accused person must have realised that what he or she was doing was dishonest by those standards. However, where there is evidence that the accused person had an honest belief that he or she was entitled to act as he or she did, to secure a conviction, the prosecution must disprove that honest belief beyond reasonable doubt in order to negative the defence of honest claim of right under section 22(2).[2]
  1. [15]
    With regard to gaining a benefit or advantage, pecuniary or otherwise, I note that the Queensland Court of Appeal have found that where a person dishonestly gains a benefit or advantage pecuniary or otherwise, the potential for liability to criminal responsibility is “undoubtedly wide”.[3]
  1. [16]
    The prosecution case is a circumstantial one based substantially on intercepted telephone call, WhatsApp, SMS messages and Instant messaging. In order to find a defendant guilty based entirely or substantially upon circumstantial evidence, it is necessary that guilt should not only be a rational inference but also that it should be the only rational inference that could be drawn from the circumstances. If there is any reasonable possibility consistent with innocence, I must find the defendants not guilty. It is settled law that “guilt should not only be a rational inference, but should be the only rational inference that could be drawn from the circumstances”.[4]
  1. [17]
    The directions given to jurors in jury trials where there is a circumstantial case are apt in this instance. When drawing a reasonable inference from proven facts, three important facts should be considered. These are –
  1. (a)
    Reasonable inferences can only be drawn when based on facts which are proven by the evidence;
  1. (b)
    There must be a logical and rational connection between the facts found and the inferences to be drawn;  and
  1. (c)
    If more than one inference is reasonably open, that is an adverse inference and an inference of innocence, then the defendant must be given the benefit of the inference in his favour.
  1. [18]
    Mr Rutledge urged the Court to consider the intercepted telephone calls, WhatsApp, SMS messages and Instant messages as a whole to prove the existence of a “scheme”.

Background to racing

  1. [19]
    Peter Chadwick, the Chief Steward Thoroughbreds at the Queensland Racing Integrity Commission gave evidence with regard to the running of thoroughbred races in Queensland. Thoroughbred racing in Queensland is subject to the Australian Rules of Racing and also the Queensland local rules. All horses must be passed by the stewards as eligible to race in terms of their mannerisms and their tractability and have to pass a jump-out or barrier trial to the stewards’ satisfaction before being allowed to start. Once passed by the stewards, the horse can then be nominated and the nomination is made by the trainer of the horse through the Racing Australia computer system, after which the information is passed to Racing Queensland.[5]
  1. [20]
    Once nominated, the horses are handicapped by the handicappers of Racing Queensland under the rules, that is, given certain weights depending on the conditions of the race. A declaration is then made that the horse qualifies for racing, which declaration has to be accepted by the trainer before racing. On the day of the race for which the horse has been nominated, the horse is to be at the track two hours before a race, except for the first race, in which case the horse is to be at the track 1 ½ hours before the race, in accordance with the local rules. For provincial and country race meetings, the time the horse is required to be at the track is 1 hour before the race for which it is nominated.[6]
  1. [21]
    The procedure on arrival at the track is that the horse is checked in at the gate, enters the course and is taken to the horse stalls area. The horse remains in the stalls until called for the race when saddles are prepared, they are saddled and then proceed to the mounting yard where the jockeys mount. Whilst waiting in the stalls, some horses may be required to undergo pre-race testing and this is at the discretion of the stewards.[7]
  1. [22]
    At the end of the race after the horses go past the finish line, the judges’ signal for the numbers which are confirmed by the Chief Steward who also weighs in all jockeys who have ridden placegetters. All other riders in the race are also weighed in by the clerk of scales. Once all riders have been weighed in with correct weight and numbers are confirmed, the Chief Steward will authorise correct weight. The winner has samples taken for testing. Further, any other horse which ran in the race can be selected by the stewards to have samples taken for testing. The steward’s role following this is to view the film of the race to make a report on any breaches of the rules and hold any inquiry.[8]
  1. [23]
    Kelly Cook, the General Manager of Racing and Services at Racing Australia also gave evidence with regard to the process of nominating horses to race through Racing Australia. There is a single national registration system for all horse racing throughout Australia, called StableAssist. Each trainer is issued with a unique account number and code when they register with Racing Australia and a further unique account number and code to enable them to deal with the service centre. This is to confirm that they are licensed trainers.[9]
  1. [24]
    When a trainer wishes to nominate a horse to race, he/she can call the service centre at Racing Australia, provide their unique account number and code and make the nomination to a service centre operator. Otherwise, a trainer logs onto the Racing Australia website using their unique account number and code, accept the Code of Conduct and access the StableAssist page. The trainer then chooses the race meeting, the specific race, selects the horse, clicks on the nomination and confirm. With regard to acceptances, the trainer finds his/her name, checks the box that he/she accepts and then saves the entry. At this stage, the trainer can enter the name of the jockey. A confirmation screen then indicates that the entry is all completed.[10]
  1. [25]
    Racing Australia retains records of the dates, nominations, acceptances, names of horses, trainers, race meetings, and placings on their electronic database.

Rules of Racing

  1. [26]
    The Rules of Racing (the Rules) apply to all races held under the management or control of a Principal Racing Authority as defined in the Rules and for the purposes of this hearing apply to all races held under the management of Racing Queensland.[11]  Further, AR.2 of the Rules states –

“Any person who takes part in any matter coming within these Rules thereby agrees with the Australian Racing Board and each and every Principal Racing Authority to be bound by them.”

For the purposes of this hearing, I accept that both defendants agreed with the Rules and had agreed to be bound by them.

  1. [27]
    The relevant Rules which have been identified by the prosecution as relevant in this hearing are as follows –

AR.64G – Stomach-tubing prohibited without permission

AR.178AA – Administering an alkalinising agent on race day or one clear day prior to the race.

AR.178AB – Injecting without permission on race day or one clear day prior to the race.

AR178E – Administering medication without permission on race day. (Medication means any treatment with drugs or other substances)[12]

AR.175 – Offence to administer or causes to be administered any prohibited substance for purpose of affecting performance or behaviour of a horse or detected in a sample.

AR.178B – Substances declared as prohibited substances.

  1. [28]
    Seven editions of the Rules were tendered in evidence, which covered the races particularised by the prosecution in the Amended Particulars of Charge. Mr Chadwick, the Chief Steward, gave evidence that on each occasion the Rules were changed, a new edition was issued. Despite the reissue of new editions, I accept that the rule numbers identified by the prosecution as relevant did not change in the new editions of the rules.[13]

Prohibited Substances

  1. [29]
    Prohibited substances with regard to the racing of horses are listed in the Rules of Racing.[14]   They are “Substances capable at any tie of causing either rdirectly or indirectly an action or effect, or both an action and effect, within one or more of the following mammalian body systems –

The nevous system

The cardiovascular system

The respiratory system

The digestive system

The musculo-skeletal system

The endocrine system

The urinary system

The reproductive system

The blood system

The immune system

The Rules then lists a non-inclusive list of categories of substances which are prohibited.

  1. [30]
    I accept Mr Chadwick’s evidence that although L-arginine is not listed specifically as a prohibited substance in the rules, as it has a vasodilator effect as well as a diuretic effect which would affect the body systems of a horse, it would be deemed a prohibited substance.[15]

The Evidence

  1. [31]
    A great deal of the prosecution evidence is contained in a number of documents, including analyses of bank records, recordings of telephone intercepts, WhatsApp messages and SMS messages between various parties which have been tendered and, when read together, as submitted by Mr Rutledge for the prosecution, provide the basis for drawing an inference that the defendant Currie was the instigator of what prosecution term a “dishonest scheme … which had the aim by the administration of various substances contrary to the Australian Rules of Racing, to improve the performance of horses trained by Currie in thoroughbred horse races and thus improve the prospect of prizemoney being won.”[16]  The prosecution alleges that by nominating a horse to race, the defendant Currie represented that the horse would be raced pursuant to the Rules of Racing and that representation continues up to at least the start of the race.  It is further alleged that if the horse has been treated contrary to the Rules with the defendant Currie’s knowledge, the continuing representation by him became false, resulting in defendant Currie gaining a benefit for himself, namely the opportunity to race.[17]
  1. [32]
    The fourteen (14) thoroughbred races particularised in the Amendment of Particulars of Charge, name a horse in each race trained by defendant Currie, each of which are alleged to have been administered a “substance or substances” and/or “injected” and/or “stomach-tubed” in furtherance of the scheme and in breach of the Rules of Racing.[18]  The activities of and discussions between the defendants Currie and/or Stephens and others prior to each race is said to implicate them in the running of the “scheme” and payment of monies from Currie to Stephens and other parties is further proof of dishonesty. 
  1. [33]
    Each horse was nominated and accepted either online through the Racing Australia website, utilising the StableAssist programme or by telephone for which defendant Currie had a unique login and password. I accept that each horse was nominated and accepted by defendant Currie.

Stomach-tubing

  1. [34]
    I accept the evidence of Dr Young, the principal veterinary officer with the Queensland Racing Integrity Commission who described the practice of what is referred to as stomach-tubing. The correct term is nasogastric intubation which is a process where a tube is passed through the horse’s nostril, through the meatus of the nose, engages with the pharynx, enters the oesophagus and then into the horse’s gut. It is a means by which something can be delivered directly into the horse’s gut.[19]
  1. [35]
    Stomach tubing, also known as “tubing”, can be used for a number of reasons – as a diagnostic tool used by a veterinarian; to deliver material into the gut which would otherwise be unpalatable to the horse as well as being associated with the administration of agents into the horse’s gut that may alkalinise it.[20]  The effect of introducing an alkalinising agent into a horse’s body gives the animal the capacity to absorb more lactic acid (a by-product of exercise resulting in fatigue) before it experiences fatigue, therefore potentially undergoing exercise for a longer period of time than it normally would.[21]  Once the alkalinising agent is administered, the horse’s body will immediately try to return to a neutral pH being pH7.  I accept Dr Young’s evidence that if no further alkalinising agent is administered, the horse could be expected to be back to a state close to neutral within 12 to 18 hours after administration.[22]
  1. [36]
    The administration of an alkalinising agent will not increase a horse’s speed, but could potentially allow the horse to perform at a certain “velocity” for a longer period of time acting as a “sponge” to absorb the production of lactic acid and increasing a horse’s endurance.[23]  Alkalinising agents measured at greater than 36 millimoles in a total plasma carbon dioxide concentration, would be a breach of the Rules of Racing.  Otherwise, alkalinising agents are often fed on a daily basis to horses as part of their husbandry.  The rules of racing allow this practice if the horse naturally ingested it in the horse’s feed as a supplement.  If the stewards are satisfied that a horse has been or is likely to have been, stomach-tubed in breach of the rule, the horse will be prevented from starting or may be disqualified.[24]  Rule AR.178AA also prohibits the administering of an alkalinising agent on the day of the scheduled race and “any time during the one clear day prior to 12.01 am on the day of the scheduled race”.  Breach of this rule will result in a similar situation as to the breach of AR.64G.[25]
  1. [37]
    Mr Rutledge has submitted with regard to stomaching tubing that the intercepted SMS messages between associates Litzow and Holbeck on 15 February 2017 relating to the horse High Africaine clearly involved stomach-tubing of the horse.  He submitted that the administration of the alkanilising product was very time sensitive and revolved around a two (2) hour time frame, prior to race time.  I have not heard any evidence that the administration of such a product is more effective in offsetting the build up of lactic acid if undertaken two (2) hours prior to a race.  The only evidence is that of Dr Young who stated that the affects of alkanilising a horse would gradually diminish over a period of 12 to 18 hours.  However, if there is some evidence that the horse was alkanilised on race day or after 12.01 am the day before, then that would be done in breach of the Rules of Racing. 
  1. [38]
    The evidence, consisting of transcripts of intercepted SMS messaging in this instance, reveals that on 15 February 2017, the horse High Africaine started in the Hamilton Hotel Maiden Handicap which was Race 3 at Doomben starting at 1.40 pm.  High Africaine was nominated on 9 February 2017 and accepted on 13 February 2017 by defendant Currie, the horse placing first in the race.[26]  On the morning of the race Litzow messages Holbeck “Can you bring a funnel and jug in to work with ya”;  Holbeck to Litzow “Funnel and jug??”;  Holbeck to Litzow “Funnel and tube??”;  Litzow to Holbeck “Yeah.  I gotta meet Ben today”;  Holbeck to Litzow “Gotta zip hot water on”;  Litzow to Holbeck “I only have tube”.  This exchange took place at 5.39 am on the morning of the race.
  1. [39]
    Then at 11.51 am a further SMS exchange between Litzow and Holbeck is referred to where Holbeck messages Litzow saying “Bet ya he’s fukd times up with the one who’s scr”; Litzow to Holbeck “Nope. I asked him”; Holbeck to Litzow “Wat it work out at 1.5 hr”; Litzow to Holbeck “Yeah. He’s confident.”; Litzow to Holbeck “One of yours”; Holbeck to Litzow “Wat time ya do”; Litzow to Holbeck “12.15”; Holbeck to Litzow “1hr 25 then, so prob bout 80%”.
  1. [40]
    It is argued by Mr Rutledge that this exchange is persuasive that High Africaine was stomach-tubed 1 hour 25 minutes before the race with the view to affecting the horse’s performance and that by the time of the race, the presence of the alkalinising substance would be at 80%.  As stated, there is no sworn evidence before the court about the importance of the alleged two (2) hour time frame.  As part of the case to prove the existence of a “scheme”, the prosecution also refers to transfers of money (following this race) from defendant Currie to Litzow –

22/02/2017  $300 Reason for transfer “Ulcer”

12 – 13/04/2017 $400 Reason for transfer “Ulcer”

10 – 11/05/2017 $500 Reason for transfer “butter toast”

18 – 19/05/2017 $350 Reason for transfer “Saipan”

23/05/2017  $500 Reason for transfer “Car”

06/06/2017  $600 Reason for transfer “car”

24 – 26/06/2017 $450 Reason for transfer “Rent”

 and to Holbeck –

  10/04/2017  $400 No reason for transfer

  23/05/2017  $1500  Reason for transfer “car”[27]

  1. [41]
    These details were extracted from the relevant bank accounts of defendant Currie, Currie Racing, Holbeck, Litzow and defendant Stephens by Ms Capelo, an investigative accountant for the Queensland Police and obtained under search warrant. The prosecution submits that the worlds “Ulcer”, “butter toast”, “Saipan”, “Car” and “Rent” are code words – code for what is not stated or supported by sworn evidence. Indeed, it is noted that “Saipan” is the name of a horse trained by defendant Currie, which raced at Toowoomba on 6 May 2017, 20 May 2017 and 16 June 2017 placing first in each race.[28] None of these races form part of the particularised races.  Further there is no direct evidence before the court as to whether Litzow and Holbeck were employees of defendant Currie or simply racing acquaintances.
  1. [42]
    Further mention of equipment used in stomach-tubing is made in SMS messaging between Litzow and his wife on 8 July 2017 commencing at 7.45 am, in which Litzow asks his wife to bring a drench tube, funnel and bucket and meet him at an address as “I just have to let Ben know..” and at 8.22 am “Ben already left…” This is said to be evidence of use of a drench tube in execution of the “scheme”. Defendant Currie had two horses running at Doomben on that day as well as two horses running at Toowoomba.[29]  None of these races form the particularised races named by the prosecution.
  1. [43]
    Another reference to a tube appears in a WhatsApp message between defendant Currie and Litzow on Monday 6 November 2017 when defendant Currie asks Litzow “Where did you put the tube?”[30]  Prosecution submits that this indicates that Currie is looking for the tube and funnel used by Litzow to tube a horse, Captains Angel, which ran at Dalby on Saturday 4 November 2017, placing first.[31] This is one of the particularised races.  WhatsApp messaging from before the race on 2 and 3 November 2017, are relied on as evidence as to the existence of the “scheme” and its implementation.  Messages state (on 2 November 2017) from defendant Currie to Litzow “Do them at dads this week” and (on 3 November 2017) from defendant Currie to Litzow at 9.25 am “Could maybe do angel for Dalby”;  and again at 9.25 am “Have to be done 11.30”.[32]  There was a transfer of $450 from defendant Currie to Holbeck on 4 November 2017 identified as having been paid for “tickets” and are submitted by the prosecution as circumstantial facts on which the court could rely which would lead to the reasonable rational conclusion that the parties were involved in a “scheme” to improve the performance of horses. 
  1. [44]
    Another particularised race was race 6 at Ipswich on 15 November 2017, in which Mishani Electra, a horse trained by defendant Currie ran at 3.38 pm, placing third.[33]  WhatsApp messages between defendant Currie and Litzow begin at 6.45 pm on 14 February 2017, the night before the race, where defendant Currie states “Angel not going”;  and “Was thinking to do Electra at Marburg?”;  Litzow to defendant Currie “What time is due”;  defendant Currie to Litzow “1.40” and “2 at the latest”. Then at 7.05 pm WhatsApp messages from Litzow to defendant Currie “:Yeah cunt of a time but we can do”;  defendant Currie to Litzow “You sure?” and “if it’s too hard it’s all good”, followed by a discussion as to where the “doing” would take place. Litzow to defendant Currie “Yeah said same place last time ok”;  defendant Currie to Litzow (at 10.00 pm) “Bit to open I reckon”.[34] 
  1. [45]
    The WhatsApp messages continue the next day, 15 November 2017 (race day) at 10.21 am and it is arranged to “do” the horse at “1.45 at Petes”. There is a record of instant messages between Litzow and someone referred to as M. Litzow to M at 11.20 am “Is ok to call in to your place today. Got 1 on the go”; M to Litzow “No worries”; Litzow to M “Ok cheers. It’s electric” and “Mishani”; then Litzow to defendant Currie at 11.49 “All organised” , with a thumbs up symbol.[35]  Prosecution submits that the court should accept that when reference is made to “doing” a horse, this means that stomach-tubing will be undertaken or other substances introduced to the horse.
  1. [46]
    There are a number of excerpts from these messages which the prosecution submit are evidence of security concerns held by the parties to the “scheme”. In particular they refer to the WhatsApp messages between Litzow and defendant Currie on 2 November 2017 before the Dalby race in which Captains Angel ran where defendant Currie says to Litzow “Might have to keep you out of sight a bit going forward?” and on 4 November 2017 (a race day) where defendant Currie says to Litzow “That car was Qric” (referring to Queensland Racing Integrity Commission and Litzow says to defendant Currie “I’ll go suss it out.”[36]
  1. [47]
    These security concerns are again highlighted in messaging on 8 November 2017 between Litzow and defendant Currie where defendant Currie says to Litzow “Might have to start doing cash again” and “If any one asked what the transfers were we will just say for weekend work” and “And you were driving a truck picking up spellers of weekends”; “It is getting very hot atm but”.[37] 
  1. [48]
    The court must consider this circumstantial evidence as to whether a rational inference of guilt is the only conclusion that can be reached. I note that High Africaine raced at Doomben at 1.40 pm, which would mean the horse would be required to arrive at the course 2 hours prior to the race, that is 11.40 am.  However, in this instance, High Africaine having won the race, would have been tested for prohibited substances following the race.  There is no evidence of a finding that High Africaine had been administered any substance.
  1. [49]
    Captains Angel raced in race 1 at Dalby on Saturday 4 November 2017, placing first.  Being a provincial race track, the horse would be required to arrive at the course one and a half (1 ½) hours prior to the race, that is 12.05 pm.  The messages between Holbeck and Litzow suggest that “Could maybe do angel for Dalby” and “Have to be done 11.30”.  Again, Captains Angel having placed first, would be subject to post race testing, but there is no evidence that any substance had been administered to the horse.
  1. [50]
    Mishani Electra raced in race 6 at Ipswich on 15 November 2017, placing third.  Messages between Litzow and Currie reveal discussions about “doing” Electra at Marburg.  Being a provincial race meeting, the horse would be required at the track one (1) hour prior to the race start, that is to arrive by 2.40 pm.  Having placed third Mishani Electra would not have been subject to post race testing and there is no evidence that the horse was selected to be randomly tested by the stewards.
  1. [51]
    Certainly, if, as is contended by the prosecution that High Africaine, Captains Angel and Mishani Electra were stomach tubed at 12.15pm, approximately 11.30 am and approximately 1.40 pm respectively, or even any time since 12.01 am on the day before each race, this would be in breach of the Rules of Racing. 
  1. [52]
    The prosecution also contends that reference to “Twos” or “2s” is a reference to a two day product, a powder, to be administered through stomach tubing. “(T)wo dayers” are referred to in a telephone conversation between defendant Currie and a Kerrod Smyth on 18 September 2018, where Smyth states “I wanted to ask you about the 2-dayers” and defendant Currie respond “Not really on here”. “2’s” are referred to in a WhatsApp message between defendant Currie and Litzow on 9 November 2018 where defendant Currie says “How many 2’s?”; Litzow “I’ll check. I bought them home with me:’ and “Got 8”.[38]  Further mention of “2’s” appear in WhatsApp message between defendant Currie and Litzow on 21 November 2018 where Litzow says “Hey I gota pick up ole mate money.  I bought home the 2s by accident.”[39]  Other references are made on 10/11/2018 WhatsApp message between Holbeck and Litzow “ol mates got all, owed fa 6 x op plus this lot 7 x op plus 15 x 2 days, grand total of prod is $2140. Need all in cash this weekend to keep wheels turning please”;  again on 15 December 2018 between defendant Currie and Litzow “Dad blowing up about 2’s”, “Just going to do opty, “Want me to pick them up on way home from bris”.  “2’s” also referred to in messages from 21 December 2018, 27 December 2018 and 12 February 2019.  These are  all messages between defendant Currie and Litzow.[40]
  1. [53]
    While highly suggestive, a reasonable inference cannot be drawn where there is no evidence on which to make a finding of fact that “2’s” is a substance which is prohibited by the Rules of Racing, It also has to be remembered that the administration of treatments, medication and other substances is only prohibited by the Rules of Racing if used on the day of the race, or within one clear day before 12.01 am the day of the race.

Optimiser

  1. [54]
    Optimiser is a product which is advertised on the internet (by a number of entities) and in particular by Equine Sports Nutrition Technologies as “Optimizer. It is said that –

“Optimizer has a natural vasodilation effect while increasing the oxygen and nutrient delivery within the body when you combine these actions with the mild diuretic effect reducing blood pressure the results are increases endurance and performance.”[41]

  1. [55]
    Mention of the product “Optimiser”, or “opty” first appears in the extracted telephone intercepts, WhatsApp and SMS messages in about June 2018, some two (2) months before the charge period for defendant Stephens, where defendant Currie states to Litzow “I might even get a few more optimiser if possible too.”[42]  I accept that “opty” is a shortened version of the term “Optimiser”. There is evidence contained in the cellebrite downloads of WhatsApp, SMS and Instant messaging as well as the telephone intercepts that defendant Currie and Litzow communicated with each other about obtaining and paying for “opty” ofirst on 20 June 2018, and then 7, 11, 14, 16, 17, 22 and 29 November 2018, 12 and 15 December 2018 and 15 January 2019 and 8 February 2019.  None of these messages appear to have taken place in association with the races particularised by the prosecution.
  1. [56]
    On 22 September 2018, a search warrant was executed at Holbeck’s residence in Forestdale, Brisbane, where a number of items were seized, including two plastic containers containing a yellowish coloured liquid labelled “Opti” or “Opti1”. These items were transported to the Crestmead Police Station by Sergeant Blyth where they were lodged in the property office. Constable John Jeffrey, who was then with the Queensland Racing Crime Squad, collected the seized items including the five (5) litre plastic bottle labelled “Opti!” which he transported to Queensland Health Forensic and Scientific Services for analysis. The items had been allocated individual bar codes. Following this Detective Senior Constable Carroll arranged for subsamples to be obtained from the five (5) litre bottle and transported them to the Racing Analytical Services Laboratory in Melbourne, where they were delivered into the custody of Mr Paul Zahra, manager of the Racing Analytical Services Laboratory.[43] I am satisfied that the chain of custody was not broken.  Sample 5, which contained the sample from the five (5) litre bottle seized was analysed and found to contain L-arginine which it is alleged is a prohibited substance.
  1. [57]
    Mr Copley submitted that the Court could not be satisfied that sample 5 had been analysed, submitting that the witness Zahra had stated to police (in his police statement) that he had only analysed samples 1, 2, 3 and 8. I accept Mr Zahra’s evidence that this was a transcription error, as it is clear from the certificate of analysis which was issued. Mr Zahra gave evidence that L-arginine is a compound or molecule.[44]
  1. [58]
    Professor Kenneth McKeever, a full professor at Rutgers University, New Jersey gave evidence by videolink. Professor McKeever is an associate director of the Equine Science Centre and has a number of extensive qualifications, including research on Rhesus monkeys with NASA and is an equine exercise physiologist. He gave evidence that L-arginine was an amino acid which functioned in a variety of ways. These included opening up blood vessels (dilating them) to increase the blood flow in the body which would have the effect of increasing performance.[45]
  1. [59]
    He explained that research into the effects of L-arginine had only been published with regard to its operation in humans, dogs and rodents, but not horses. In commenting on the claims made on the Equine Sports Nutrition Technologies website about the effects of L-arginine, he stated that after further research, he had found that in humans, dogs and rodents, L-arginine was used to enhance blood flow to the kidneys which would increase the diuretic effect to offset the use of Lasix (water retention) and would have the effect of diluting anything detected in urine.[46]
  1. [60]
    In cross-examination, he was unable to state how much L-arginine would have to be introduced to enhance a horse’s performance. He did however, state that L-arginine, as an amino acid, occurs naturally in all mammalian species, including horses.[47]
  1. [61]
    In the case before the court, two of the defendant Currie’s horses which ran in particularised races, placed first and underwent testing following the race. Those races were the Hamilton Hotel Maiden Handicap at Doomben on 15 February 2017 (High Africaine) and the Hart Plumbing Benchmark 50 Handicap at Dalby on 4 November 2017 (Captains Angel).  Mr Chadwick, the chief steward, gave evidence with regard to the sampling of horses presented to race by defendant Currie.  He conceded that the substance L-arginine was not present in any of the samples taken, however drew a distinction between a substance being not detected and not present on the basis that if the substance was not detected it may have been that the substance was not tested for.[48]  There is no evidence before me that any of the defendant Currie’s other runners in particularised races were tested, either pre- or post-race. 

Shampooing

  1. [62]
    The term “shampooing” first appears in the telephone intercepts on 18 August 2018 during a conversation between defendant Currie and “Steveo”, who the prosecution states is defendant Stephens. In a discussion that took place on the morning of particularised races at Ipswich, defendant Currie asks Steveo “if he has shampood em”.[49]  Telephone intercepts on 15 September 2018, 20 October 2018, 14 November 2018, 1 December 2018, 14 December 2018 and 9 February 2019, between defendant Currie and stablehands Iverson, Scott, Kumar and defendant Stephens all refer to “shampooing” the horses.  Of these intercepts those which took place on 15 September 2018 occurred before particularised races at Surat, those being the AWB, TDT, Surat RSL, McInnes Wilson, Condon Financial Maiden Plate (Little Albert) and the AGL Surat Diggers Cup BM60 Handicap (Greywolf).  Those horses placed 5th and 3rd respectively.  The intercepted communications on 1 December 2018 occurred before particularised races, those being the Kilcoy Exchange Hotel QTIS Three Years Old Class 2 Handicap (Mishani Valentino), Gainsborough Lodge Class 2 Handicap (The Launcher), and the Falken Tyres QTIS Three years Old Benchmark 65 Handicap (Pure Pulse and Mishani Ruler). These horses placed 5th, 2nd, 3rd and 6th respectively.
  1. [63]
    Prosecution submits that “shampooing” is a code word for administering a substance, perhaps by injection submitting that the “shampooing” fits in with the reference to a horse having been injected with Optimiser. While a few of the dates correspond with the dates of the alleged stomach tubing, there is no admissable evidence that “shampooing” is otherwise known in the industry as injecting or otherwise administering a substance to a horse. In those circumstances, no inference of guilt can be drawn from reference to “shampooing”.

Needling/Injections

  1. [64]
    Whilst there appears to be a weak prosecution case with regard to proving stomach tubing and the administration of optimiser on the day of a race, a WhatsApp message between defendant Currie and Litzow and Litzow and Holbeck on 18 November 2017, is evidence that defendant Currie was contemplating injecting a horse and making enquiries as to whether it would show up on a swab “at 9 hrs”. The message states – defendant Currie “Do you know what happens if I give that needle at 9 hours?”; “Does it swab?”. Litzow then contacts Holbeck who statesl “Na, but just giv a little drink, may dehydrate a little longer out tell him”; with defendant Currie to Litzow “Might be better going without?”
  1. [65]
    In the following messages on the same day, defendant Currie and Litzow have a discussion about security concerns with defendant Currie stating “Stay on the phone to Shorty and keep everything locked”; Litzow to defendant Currie “Yeah no chance taking”; defendant Currie to Litzow “If it doesn’t feel right or suss things happening just shut it down”; Litzow to defendant Currie “Any risk we don’t do em”.
  1. [66]
    While these messages were not exchanged prior to particularised races, they are the most direct evidence of some activity which may have been in breach of the Rules of Racing being undertaken.

Electronic Record of Interview

  1. [67]
    Defendant Currie voluntarily participated in an electronic record of interview on 20 March 2019. The purpose of the interview was with regard to matters not admissible in this hearing, but the recording of the interview was tendered into evidence with the omission of paragraphs identified by Mr Copley. The prosecutor submits that in the record of interview, defendant Currie has made a number of statements that are admissible against him as statements against interests gives answers which are lies, demonstrating a consciousness of guilt; that is by lying, he has revealed that he knows that to answer honestly will implicate him in the offences.[50]
  1. [68]
    In the interview, defendant Currie makes admissions as to his knowledge of the rules with regard to when substances can be administered to horses, including by way of stomach tubing.[51]  He also talks about a person called “Dave” from whom he said he obtained some optimiser for his (Currie’s) sister.  He said “Dave” had done a few jobs for him over time;  he just runs into him randomly at the races;  he doesn’t know his surname or his address or contact number;  he has known him for 2 or 3 years.[52] 
  1. [69]
    Defendant Currie goes on to state that he didn’t pay “Dave” for any of the optimiser, only paying him for other work done, like driving trucks. The prosecutor submits that defendant Currie creates “Dave” to cover the fact that he has been supplied with optimiser for a number of years by Holbeck and that this creation demonstrates consciousness of guilt. If they are read in the context of the telephone intercepts, WhatsApp, SMS and instant messages between defendant Currie, Litzow and Holbeck, they appear to be untruths.
  1. [70]
    Mr Copley has referred me to Edwards v R 178 CLR 193 at 211, where the High Court was dealing with lies told out of consciousness of guilt.  The High Court said that where it was alleged lies were told out of consciousness of guilt, a jury should be instructed that there may be reasons for telling the lie other than guilt.  A lie may be told out of panic, to escape an unjust accusation, to protect some other person or to avoid a consequence extraneous to the offence.  To be probative of guilt, a lie must be deliberate, relate to a material issue and be told because the accused is conscious that the truth will convict him.[53]  Mr Copley submits that a consequence extraneous to the offence (the fraud) is the breach of the Rules of Racing and that I should apply the principles set down in Edwards
  1. [71]
    I agree with Mr Copley’s submission that the tone of the interview reveals that defendant Currie was concerned about surveillance and investigations which were being carried out by the Queensland Racing Integrity Commission and that this was the reason for the untruths. Consequently, I find that the obvious lies told by defendant Currie in the police interview were told to avoid a consequence extraneous to the offence, that is, breaches of the Rules of Racing and the ongoing investigation by racing authorities.

Defendant Stephens

  1. [72]
    Defendant Stephens has been charged as a party to the offence pursuant to Sections 8, 7(b) and 7(c) of the Criminal Code.  The prosecution submits that communications between defendant Currie, defendant Stephens, Holbeck and Litzow is evidence of defendant Stephens’ knowledge and participation in the “scheme” from August 2018.  It is alleged that his role was to administer substances supplied by Holbeck and then to make payments to Holbeck for supplying the substances.
  1. [73]
    There are intercepted communications between defendant Currie, Holbeck, Litzow and Stephens, discussing “shampooing”, “washing” and administering “pastes” to horses. As previously found, there is no evidence to support the prosecution contention that “shampooing” is a code word for injecting or otherwise administering substances. There is no evidence as to the meaning of “washing” or administering “pastes”, to the effect that they had been used in breach of the Rules of Racing. At its highest, the prosecution case against defendant Stephens is a conversation between him and defendant Currie on the morning of Tuesday 11 December 2018, when defendant Stephens asks defendant Currie “have you got a syringe and that?” This communication did not take place with regard to a particularised race. Neither did a WhatsApp message between Litzow and defendant Stephens on 29 December 2018, when discussions were held about whether defendant Currie needed “any Opty today” and Stephens said “I’ll give them paste”.[54]
  1. [74]
    There is evidence of transfers of money from defendant Currie to defendant Stephens, totalling $8,800 between 14 August 2018 and 15 February 2019 and from Currie Racing to defendant Stephens on 26 September 2018 and 19 January 2019, totalling $3,700. These amounts were in addition to wages paid to defendant Stephens as an employee. In the spreadsheets of the transactions which Ms Capelo (the investigative accountant at Queensland Police Service) compiled from defendant Currie’s bank records, those of defendant Stephens, Denis Holbeck and David Litzow, monies totalling $12,500 can be seen to have been transferred from defendant Stephens’ bank account to that of Holbeck on or near to, the dates on which they were transferred into his account from defendant Currie.[55]
  1. [75]
    The prosecution submits that these payments are made in the furtherance of the “scheme”. It would appear from the many telephone intercepts, WhatsApp, SMS messages and Instant messages, that monies were being paid by defendant Currie to Holbeck through defendant Stephens, as well as directly to Holbeck and Litzow.
  1. [76]
    However, in order for defendant Stephens to be a party to a “scheme”, there must be evidence of the existence of a joint criminal enterprise and he (defendant Stephens) must have knowledge of the facts constituting the “scheme”.
  1. [77]
    Mr Kissick submits that there is no evidence against defendant Stephens on which a court could decide beyond a reasonable doubt that he was participating in the “scheme”. He further submits that defendant Stephens was simply doing his job and there is real doubt that he was involved in a “scheme” if one existed.

Conclusion

  1. [78]
    In order to find either defendant guilty, the court has to be satisfied beyond a reasonable doubt that defendant Currie dishonestly gained a benefit for himself and that defendant Stephens dishonestly gained a benefit for defendant Currie as part of a joint criminal enterprise. The benefit is narrowly particularised as participation in the race, and that benefit has to be obtained dishonestly.
  1. [79]
    As already stated, the prosecution case is a circumstantial one. There is a large amount of material which has been tendered in this case. The contents of the telephone intercepts, WhatsApp, SMS and Instant messages, together with payments made to Holbeck and Litzow are highly suggestive that there was some activity being undertaken by defendant Currie and his associates that may have been in breach of the Rules of Racing. If this were a case where the onus of proof was on the balance of probabilities, then it would be open to the court to find against the defendants.
  1. [80]
    However, the onus of proof is that of beyond reasonable doubt. In a case where the majority of the evidence is circumstantial, it is necessary that guilt should not only be a rational inference to be drawn from the evidence, but also that it should be the only rational inference that could be drawn from the circumstances. If there is any reasonable possibility consistent with innocence, I must find the defendants not guilty. The administering of medication, alkalinising agents, injections and stomach tubing are only prohibited if administered on race day or the period from 12.01 am the day before race day and the administration of a prohibited substance to affect race performance is subject to some exceptions.[56]  Here there is no evidence that horses tested positive for prohibited substances on race day and there is little evidence that a prohibited substance was administered to horses on race day.  On the whole of the evidence I cannot be satisfied beyond a reasonable doubt that defendant Currie committed the criminal offence of fraud by dishonestly obtaining a benefit, that is participation in a race.  I find the defendant Currie not guilty.
  1. [81]
    I also cannot be satisfied beyond a reasonable doubt that defendant Stephens had actual knowledge of any alleged “scheme” or was part of a joint criminal enterprise and I find him not guilty.

Footnotes

[1] Merriam-Webster Online Dictionary,

[2] R v Dillon;  Ex parte Attorney-General (Qld) [2015] QCA 155.

[3] R v Saba [2013] QCA 275.

[4] Shepherd v The Queen (1990) 170 CLR 573 at 578.

[5] Transcript 1-23, line 40 and 1-24, lines 1 to 5.

[6] Transcript 1-24, lines 12 to 18.

[7] Transcript 1-24, lines 28 to 40.

[8] Transcript I-24, lines 42 to 47 and 1-25, lines 1 to 7.

[9] Transcript 4-10, lines 1 to 6.

[10] Transcript 4-11, lines 19 to 25 and 27 to 33.

[11] AR.1 and AR.6 of Rules of Racing amended to 1 February 2017.

[12] AR.1 definitions, Rules of Racing amended to 1 February 2017.

[13] Transcript 1-34, lines 17, 18 and 35, 1-34, Lines 42 to 47, 1-35, Lines 1, 19 to 38.

[14] Exhibit 1, AR.178B, Rules of Racing.

[15] Transcript 1-28, lines 16 to 20.

[16] MFI “C”, Prosecution Case Overview, page 2.

[17] Ibid.

[18] MFI “B”.

[19] Transcript 1-57, lines 20 to 24.

[20] Transcript 1-57, lines 28 to 33.

[21] Transcript 1-58, lines 16 to 22.

[22] Transcript 1-58, lines 32 to 36.

[23] Transcript 1-59, lines 15 to 17 and lines 8 to 10. 

[24] Ibid.

[25] Ibid., AR.178AA, page 91.

[26] Exhibits 25 and 26.

[27] Exhibit 9, Summary of analyses of bank account transactions.

[28] Exhibit 26, Spreadsheet of Racing Australia Records of horses

[29] Exhibit 15, Copy of downloads of messages referred to in MFI “C”.

[30] Ibid.

[31] Exhibit 26, Spreadsheet of Racing Australia records of horses and MFI “C” at pages 14 to 16.

[32] Exhibit 15, Copy of downloads of messages referred to in MFI ”C”.

[33] Exhibit 26, Spreadsheet of Racing Australia records of horses and MFI “C: at pages 20 to 22.

[34] Exhibit 15, Copy of download of messages referred to MF! “C”.

[35] Ibid.

[36] Ibid.

[37] Ibid.

[38] Exhibit 11, DVD of telecommunication intercepts (1).

[39] Exhibit 15, Copy of download of messages referred to MF1 “C”.

[40] Ibid.

[41] Exhibit 17, Webpage, “Equine Sports Nutrition Technologies” re Optimiser.

[42] Exhibit 15, Copy of download of messages referred to MF1 “C”

[43] Transcript 3-40, lines 38 to 45, 3-41, Lines 1 to 17. T3-48, Lines 19 to 46, 3-50, lines 1, and 39 to 47, 3-51, Lines 1 to 3 and lines 23 to 40 and 3-52, lines 3 to 11.

[44] Transcript 3-92, lines 3 and 4 and lines 22 and 23, lines 46 and 47, Transcript 3-93, line 3.

[45] Transcript 5-3, lines 30 to 37

[46] Transcript 5-3, lines 20 to 29, Transcript 5-5, lines 40 to 47.

[47] Transcript 5-7, lines 19 to 22.

[48] Transcript 1-49, lines 11 to 22.

[49] Intercept code 9423, Exhibit 11, DVD of telecommunication intercepts.

[50] Transcript 3-2, lines 21 to 26.

[51] Paragraphs 238 to 239, 254, 264 to 271, and 430 to 435 transcript of Exhibit 13.

[52] Paragraphs 150 to 171, transcript of Exhibit 13.d

[53] Edwards v R 178 CLR 193 at 209.

[54] Exhibit 15, Copy of downloads of messages referred to in MFI”C”.

[55] Exhibit 9, Summary of Analyses of Bank Account Transactions.

[56] Exhibit 1, AR.178C, Rules of Racing.

Close

Editorial Notes

  • Published Case Name:

    Police v Currie; Police v Stephens

  • Shortened Case Name:

    Police v Currie

  • MNC:

    [2021] QMC 2

  • Court:

    QMC

  • Judge(s):

    Kay Ryan

  • Date:

    21 May 2021

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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