Currie v Queensland Racing Integrity Commission
[2020] QCAT 310
•19 August 2020
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION: Currie v Queensland Racing Integrity Commission [2020]
QCAT 310PARTIES: BENJAMIN MARK CURRIE (applicant) v QUEENSLAND RACING INTEGRITY COMMISSION (respondent) APPLICATION NO/S: OCR 190-19 MATTER TYPE: Occupational regulation matters DELIVERED ON: 19 August 2020 HEARING DATE: 4 December 2019 HEARD AT: Brisbane DECISION OF: Member Fitzpatrick ORDERS:
The Internal Review decision of the Queensland Racing Integrity Commission made on 7 June 2019, to confirm the decision of the Queensland Racing Integrity Commission made on 10 May 2019, is set aside.
The Internal Review decision of the Queensland Racing Integrity Commission made on 7 June 2019 to disqualify Benjamin Mark Currie for a period of 12 months for charge 1 and 18 months for charge 2, to be served cumulatively, is set aside.
A decision is substituted that:
(a) Benjamin Mark Currie did not breach Australian Rule of Racing 175(a) with respect to:
(i) Charge 1: That on 25 November 2015 you Ben Currie as the licensed 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.
(ii) Charge 2: That between 19 November 2016 and 9 December 2016 you Ben Currie as the licensed 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.
(b) The existing penalty is lifted. No penalty is imposed.
CATCHWORDS: PROFESSIONS AND TRADES – LICENSING OR REGULATION OF OTHER PROFESSIONS, TRADES OR CALLINGS – where a licensed trainer charged with improper action in breach of ARR175(a) - sending text messages referring to use of a “jigger” and “harp”- whether intention to use on horses – sufficiency of evidence – balance of probabilities - drawing of inferences Australian Rules of Racing, r 175(a)
Queensland Civil and Administrative Tribunal Act 2009
(Qld), s 20
Racing Integrity Act 2016 (Qld), s 246Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1
Briginshaw v Briginshaw (1938) 60 CLR 336
Cunliffe v Goodman (1950) 1 All ER 720
R v Associated Northern Collieries (1910) 11 CLR 738APPEARANCES & REPRESENTATION: Applicant: J Murdoch QC of Counsel instructed by O’Connor Ruddy & Garrett Respondent: S McLeod QC instructed by Ruth O’Gorman, in-house solicitor for the respondent REASONS FOR DECISION
| On 12 June 2019 the applicant Mr Currie filed an application to review an internal review decision of the respondent Queensland Racing Integrity Commission, made 7 June 2019. |
| In summary, the applicant Mr Currie is a licensed trainer within the thoroughbred racing industry and on 10 May 2019 was found guilty of two charges of an improper action, pursuant to the Australian Rule of Racing (ARR) 175(a), which 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.
| Charge 1 is: |
That on 25 November 2015 you Ben Currie as the licensed 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 is: |
That between 19 November 2016 and 9 December 2016 you Ben Currie as the licensed 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.
| Following a Stewards’ enquiry, the Stewards issued the applicant with a two year |
| disqualification for Charge 1 and a two year disqualification for Charge 2, to be served |
| cumulatively, totalling a period of four years’ disqualification. |
| Mr Currie sought a review of the charges and penalty imposed and asked that his submissions on charge and penalty be considered together with the following grounds of review: |
1. the stewards could not be comfortably satisfied of the guilt of the applicant on the evidence before them.
2. The penalties imposed are manifestly excessive.
| The outcome sought by the applicant was that: |
1. the finding of guilt on both charges be set aside.
2. The disqualification be set aside. In lieu a reprimand on each charge be imposed.
| The internal review decision found the charges to be made out. The reviewer amended |
| the penalty for Charge 1 to 12 months’ disqualification and for Charge 2 to 18 months’ disqualification to be served cumulatively with the first charge, totalling 30 months’ |
| disqualification. |
| This Tribunal is given jurisdiction to externally review decisions of the respondent by section 246 of the Racing Integrity Act 2016. By section 20 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the purpose of the review is to produce the correct and preferable decision. The Tribunal must hear and decide the review by way of a fresh hearing on the merits. |
| The charges as particularised |
| The particular of “improper action” in Charge 1 is stated as: “you sent text messages |
| in regards to your intention to have Massive Attack subjected to an electronic |
| apparatus capable of affecting its performance.” |
| The particular of “improper action” in Charge 2 is stated as: “you sent text messages |
| in regards to your intention to have Said Written subjected to an electronic apparatus |
| capable of affecting its performance.” |
| The applicant submits that the respondent’s case on review addresses different |
particulars of the charges, to those supplied below.
| The applicant says that as first particularised the charges were about the applicant’s |
| intention and that is different to the submissions made in this review. The applicant imputes to the respondent that it maintains the improper action engaged in by the applicant was the sending and receiving of text messages. It is submitted that is an |
| impermissible enlargement of “intention to act”. |
| I reject that submission. The particulars of the charge are set out in each charge. Whatever emphasis the parties may put on the wording of the charge in their submissions, the charges are plainly worded. |
| The improper action is said to be the sending of text messages in regards to an intention to use an electronic device on the horses to improve their performance. The |
| words “in regards to” connect the alleged intention to the content of the text messages. |
| In other words, the text messages record the alleged intention. It is both the fact of the text messages and the alleged intention recorded in those text messages which are said to amount to an improper action within the scope of the Rule. |
| The question is whether the charges are made out on the facts. |
| The evidence and findings of fact |
| The applicant is content for the evidence adduced before the respondent to be the evidence upon which the Tribunal review is conducted. |
| I have had regard to the documents filed pursuant to s 21(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) on 26 July 2019. The |
| documents include Mr Currie’s evidence before the Stewards at their hearing, his |
| affidavits and telephone evidence. In his written submissions filed 28 November 2019 Mr Currie says that he relies on telephone evidence given in matter number OCR 074- 2019 in this Tribunal. I have not been provided with a copy of the transcript of Mr |
| Currie’s telephone evidence on that date, so I have not referred to it. I have had regard |
| to the affidavits of Mr Currie filed by Mr Currie in other Tribunal proceedings but relied upon by him in these proceedings.[1] |
| The applicant does not dispute that the text messages the subject of the enquiry were sent by him. |
| Charge 1 - Massive Attack |
| As to the parties to the text messages relating to the horse Massive Attack, they are Mr Currie, the trainer of the horse; Mr Nicholas Price and Mr Jack Price, part owners |
| of the horse and Mr Dale Groves, a track work rider at Mr Currie’s stables. |
| I find that the following series of text messages were sent and received by Mr Currie on 25 November 2015 in relation to Massive Attack. |
| At 2.58pm Mr Currie sent a text message to Jack Price referred to as Pricey in the |
| texts, in relation to the horse’s performance in a race that day, including the words: “Blinkers on next time and hit him with the jigger.” After which Jack Price responded: |
| “Yeah Sweet”, Mr Currie wrote: “Win then sell”.[2] |
| At 2.59 pm Mr Currie sent a text message to Nick Price, including the words: |
[1] Affidavit of Benjamin Mark Currie filed 19 February 2019 in OCR043-19; Affidavit of Benjamin Mark Currie filed 25 March 2019 in OCR 074-19 and Affidavit of Benjamin Mark Currie filed 16 August 2019 in OCR 190-19.
[2] Exhibit 9 at pp 196-197 of section 21(2) QCAT Act documents filed 26 July 2019 (s 21(2) documents).
“Blinkers on next time and give him a hit with the jigger. Win then sell”.[3]
[3] Ibid.
| At 3.00pm Mr Currie sent a text message to Dale Groves: “…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.” | ||
| Mr Currie gave evidence at the hearing before the Stewards that “jigger” means using | ||
| “a device that sends an electrical shock or an electrical apparatus to [a] …horse” and | ||
| that use of a jigger would be considered a serious matter.[4] | ||
| I find that a “jigger” is a device as described by Mr Currie. Other evidence describes | ||
| the device as small[5] and ranging from crudely made apparatus of contact points and | ||
| copper wire in the form of a coil wrapped around a small battery, up to professionally made devices.[6] | ||
| Mr Currie gave evidence that he knew and was friends with the owners he was | ||
| communicating with and that the context of the text messages was “jest” and “frustration”.[7] | ||
| The respondents submit that: | ||
|
[4] Stewards’ hearing day 3, 17 April 2019 at p 81 of s 21(2) documents.
[5] Transcript of interview with Ms S Bogenhuber, line 20, p 332 of s 21(2) documents.
[6] Affidavit of Ray Murrihy sworn 1 April 2019, paragraph 7 at p 212 of s 21(2) documents.
[7] Ibid at p 91 and 92.
Massive Attack’s owners to subject Massive Attack to the use of a jigger in the
future;
(b)
the contention that Mr Currie used the words in the texts in jest or frustration should be rejected as highly improbable. The overall tone of the text message conversations, and the content of them, permits of an inference that the proposal made by Mr Currie on 25 November 2015 was a genuine one, not one made in jest or frustration;
(c)
it is open to the Tribunal to infer that the text messages are evidence of a genuine proposal by Mr Currie, accepted by the owners, to subject the horse to the use of a jigger. That inference is said to be available, because:
(i) Mr Currie felt obliged to “get results” for the owners. Because of their friendship he felt comfortable in making an improper proposal to them;
(ii) the proposal to subject the horse to a jigger was made in the context of a suggestion to have the horse win a race before selling it (presumably for a higher price than could be expected from its disappointing form); and
(iii) the owners’ responses to Mr Currie’s proposal suggest an acceptance by
them of that proposal at face value.
| I am unable to accept the submissions that the text messages evidence an improper agreement with the owners. |
| The respondent has not framed its particulars of the charge on the basis that Mr Currie entered into an agreement with the owners. That is not the charge which Mr Currie has sought to meet. He has met a charge that he sent text messages in regards to an intention to use a jigger on Massive Attack. [8] I consider it would be a breach of natural justice to determine this review by reference to a different allegation to that particularised in Charge 1. |
| However, for the sake of completeness, even if one were to construe the charge as going to an agreement with the owners, there is no evidence from the owners in the material before me as to what they understood by the text messages or what they intended to convey by their responses. It has not been put to the owners that they entered into an agreement with Mr Currie to subject Massive Attack to use of a jigger. It has not been put to Mr Currie that he entered into an agreement with the owners to subject the horse to the use of a jigger. |
| Further, I am unable to draw an inference there was an agreement with the owners to use a jigger on Massive Attack. |
| It is mere speculation as to whether Mr Currie felt comfortable putting an improper proposal to the owners of the horse. That has not been put to Mr Currie in cross examination. |
| It has not been put to Mr Currie that selling the horse at a better price after a win is a good reason why Mr Currie may have intended to use a jigger on Massive Attack. |
| Finally, there is no evidence from the Prices as to what they intended by their responses to Mr Currie’s texts. |
| In the absence of cross-examination on these points, and in the absence of further evidence from the Prices, I do not have the requisite degree of comfort that an inference can be drawn that Mr Currie entered into an agreement with the owners to use a jigger on Massive Attack. That conclusion is reached in addition to a finding that the charge is not framed by reference to Mr Currie entering into an agreement with the owners. |
| I am asked to draw an inference that Mr Currie did not refer to use of a jigger on Massive Attack in jest or frustration, but rather that he had an actual intention to do so. |
| To determine if reference to use of a jigger was likely to have been made in jest, it is |
| important to look at the context in which the comment was made.[9] |
| The texts are a report to owners by a trainer after a poor performance by their horse. Mr Currie sets out a plan to improve the performance of the horse by use of a jigger and to then sell it. Mr Currie refers to this plan three times. 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. |
| I do not accept the submission that the overall “tone” of the text messages permits of |
| an inference that Mr Currie evinced a genuine intention to use a jigger on Massive Attack. Tone, perceived from the written word, is an unreliable basis on which to reach a conclusion. The words could as easily have been said in jest or frustration as not. |
| There is no evidence from Nicholas or Jack Price that they understood reference to use of a jigger as having been made in jest. In the end their evidence may have been |
| of limited use, as it is hard to see how they could comment on Mr Currie’s subjective |
| intention. I draw no adverse inference from the failure to call evidence from the Prices on this point. |
| Mr Groves’ evidence is that use of the word jigger in the text message to him simply went over his head. He explained it this way: “No, my brother says he’s broke up with his missus, gunna shoot his missus, and he hasn’t shot his missus. It’s just, that’s just |
| a word, its just a figure of speech in my belief”.[10] That is a possible interpretation of |
| use of the words by Mr Currie. |
| Other contextual factors are relevant. Mr Currie gave evidence that he has never used |
| an electrical apparatus on a horse or instructed anyone else to use one.[11] There is no |
| evidence to the contrary. |
| There is no evidence that an electrical device has in fact been used on Massive Attack. There is no evidence that Mr Currie instructed any rider to use a jigger on Massive |
| Attack. There is no evidence that a jigger has ever been found at Mr Currie’s stables. |
| The standard of proof in a case such as this was discussed by Dixon J in Briginshaw’s |
| case: |
[8] R v Associated Northern Collieries (1910) 11 CLR 738, 741.
[9] Ives v State of Western Australia (No 8) [2013] WASC 277, [71].
[10] Stewards’ hearing day 4, 24 April 2019 at p 126 of s 21(2) documents.
[11] Ibid at p 81.
The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities
independently of the belief in its reality…The seriousness of an allegation
made, the inherent unlikelihood of an occurrence of the given description, or the gravity of the consequence flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters
“reasonable satisfaction” should not be produced by inexact proofs, indefinite
testimony, or indirect inferences.[12]
[12] Briginshaw v Briginshaw (1938) 60 CLR 336, 361-362.
| What is required for the drawing of an inference is discussed by the High Court in Bradshaw v McEwans Pty Ltd to the effect that an inference may be drawn if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought. The circumstances appearing in the evidence must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture.[13] |
| I find that without more, the text messages themselves are not sufficient to infer an intention to use an electronic device on Massive Attack so as to affect its performance. I do not have the requisite degree of comfort on the balance of probabilities to draw that inference and to make that finding. |
| There is no good reason to reject Mr Currie’s evidence that reference to use of a “jigger” in the texts was said in jest or frustration. I accept his evidence. |
| I find that Charge 1 is not made out. I do not consider the text messages are sufficient evidence of an intention by Mr Currie to have Massive Attack subjected to an electronic apparatus capable of affecting its performance. |
| Charge 2 - Said Written |
| In relation to Said Written, the charge arose out of a series of text messages sent and received by Mr Currie between 19 November 2016 and 9 December 2016. |
| Mr Currie was the horse’s trainer and a part-owner. Brendan Gaffney was one of the |
| horse’s owners. |
| I find that the following text messages were relevantly sent and received by Mr Currie. |
| After a race on 20 November 2016 Mr Gaffney and Mr Currie discussed by text the |
| horse’s “disappointing” performance. Mr Currie used the words: “I reckon blinkers |
| off and harp the Cunt up”. Mr Gaffney replied: “I’ll go with you every time…” |
| Some other text messages were considered by the Stewards in their enquiry and were referred to on internal review. |
| They include an exchange with a gentleman noted as Shane C, who on an informal basis provided Mr Currie with advice in relation to the form of his horses; and with |
| Mr Jim Nolan, a trainer and Mr Currie’s uncle. |
| On 20 November 2015 from 5.05pm Shane C and Mr Currie exchanged text |
[13] Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1, 5.
messages.[14] It is not clear which horse they were referring to, however, given the date
[14] Exhibit 18 at p 227 and 228 of the s 21(2) documents.
it may have been Said Written. The exchange was:
Shane C: “I don’t reckon our Bloke tried real hard there”.
Mr Currie: “Might need some electricity”.
Shane C: “Harp up 1200 C1 in a fortnight”.
Mr Currie: “Might be the play”.
…
Shane C: “Harp or sell?”
Mr Currie: “Harp first”.
| On 7 December 2015 Mr Currie discussed selling Said Written with a person named |
| Drew. Mr Currie said at 4.31pm: “Bit going shit house”; “Probably needs harp”.[15] |
| On 8 December 2015 Mr Currie and Mr Nolan exchanged text messages about Said |
| Written.[16] At 6.08pm Mr Currie said: “Bring your mate tomorrow”. Mr Nolan |
| responded: “Hell you have become a heavy harp man”. |
| Mr Currie gave evidence that his reference to “harp” in the message to Mr Gaffney |
| was a reference to a “strong gallop” and to try to “ensure a result for the owner”.[17] |
| He has consistently maintained that he meant a “strong gallop” when he used the term |
| “harp” in communications with other people. |
| Evidence was given that a “harp” is a “jigger” or an electronic device used to impart |
| a significant electric shock to a racehorse in a race, but more often in training with a |
| view to improving a horse’s racing performance. That evidence was given by Mr Ray |
| Murrihy, an Integrity Consultant to racing and sporting bodies in New South Wales and other States. He has been a Steward in various capacities in a variety of racing |
| codes for 49 years.[18] Evidence that a “harp” is a “jigger” or an electrical device used |
| to impart a shock to a horse was given by licensed jockeys Ms Bogenhuber,[19] Mr N Evans,[20] Mr R Golz,[21] Mr B Appo,[22] Mr J Orman,[23] Mr B Evans,[24] Mr L Dittman[25] and by Mr T Button,[26] a licensed trainer. |
| On the basis of Mr Murrihy’s experience in the racing industry and on the basis of the |
| evidence of the many witnesses referred to in the preceding paragraph I find that a |
| “harp” is a name for a “jigger” or electronic device used to impart an electric shock to |
| a race horse as a means of improving its performance in a race or in track work. The |
| evidence is so extensive that I accept the respondent’s submission that the term harp |
| is widely understood to have the meaning of jigger in the racing industry. |
| The respondent submits that prima facie, the evidence establishes that on 20 |
[15] Ibid at p 233.
[16] Ibid at p 235.
[17] Stewards’ hearing day 3, 17 April 2019, at p 94 of the s 21(2) documents.
[18] Exhibit 14 at p212 paras 6 and 8 of the s 21(2) documents.
[19] Exhibit 38 at p331 and 332 of the s 21(2) documents.
[20] Ibid at p 343 and p 347-348.
[21] Ibid at p 392.
[22] Ibid at p 431.
[23] Exhibit 40 at p 467 and 468 of the s 21(2) documents.
[24] Exhibit 38 at p 481 of the s 21(2) documents.
[25] Exhibit 40 at p 487 of the s 21(2) documents.
[26] Ibid at p 448.
November 2016 Mr Currie communicated with another of the horse’s owners with
regards to a plan to use a jigger on Said Written to improve his performance.
| The respondent submits that Mr Currie’s evidence that he meant a “strong gallop” |
| when he used the word harp should be rejected because it is at odds with the overwhelming evidence that a harp is a jigger or electrical apparatus. |
| It is further submitted that once Mr Currie’s evidence about the meaning of the word |
| “harp” is rejected, the only remaining inference to be drawn from the text messages |
| is that the text messages are evidence of a proposal made by Mr Currie and accepted by Mr Gaffney, to use a jigger on the horse in the future to improve its performance. |
| Accordingly, the respondent says, it must follow that the making of a proposal, as trainer and part-owner of a horse, to another owner, to subject a horse to an electrical apparatus is an improper action in connection with racing. |
| However, that is not the charge as particularised, which Mr Currie has been asked to |
| meet. The charge is framed around Mr Currie’s “intention” as recorded in the text |
| messages, not the “making” of a “proposal” accepted by an owner. |
| Further, there is no evidence from Mr Gaffney on this issue and it has not been put to Mr Currie that he made a proposal, accepted by Mr Gaffney, to use a jigger on Said Written to improve its performance. |
| What I have to determine is whether sufficient facts have been proved by the respondent to enable the drawing of an inference from those facts, that when Mr |
Currie used the words “harp” in his communications with Mr Gaffney, Shane C and
Drew that he intended to use an electronic device on Said Written to improve his performance. Put another way, have sufficient facts been proved by the respondent to justify a rejection of the evidence of Mr Currie as to the meaning he intended to convey by the words used in his texts?
| Relevant to my consideration are: | ||||||
|
used by him;
(d) there is no evidence that an electronic device was used on Said Written. There is no evidence that Mr Currie instructed any rider to apply a “harp”, “jigger” or
electronic device to Said Written, nor that any jigger has been found at Mr
Currie’s stables.
| I accept Mr Currie’s submission that the reference to “electricity” in the text message |
| with Shane C is a reference to lawful use of a shock wave therapy machine. |
| I do not place any weight on the discussion between Mr Nolan and Mr Currie. I accept |
| that as family members they engaged in banter and that reference to bringing a “mate” |
| was a reference to bringing a horse to train with Said Written. There is no reason to doubt the evidence given by Nr Nolan to the Stewards. There is no evidence that he has ever been found with a jigger or has used a jigger, such that it is likely he would assist Mr Currie in using a jigger on a horse. |
| Use of the word “harp” in the remaining texts is problematic when I have found that |
| a harp is commonly known as a jigger. Should Mr Currie be taken to have used the word by its common meaning in the face of his consistent explanation of the way in which he used the word? |
| In the end, I am not satisfied that there is sufficient evidence to justify a finding that |
| Mr Currie’s evidence should not be accepted. I do not think the text messages on their |
| own, even acknowledging the commonly known meaning of harp, are a sufficient |
| reason not to accept Mr Currie’s explanation of how he used the word. I think it is |
| important that there is no evidence of use of a jigger on Said Written or any other horse, no instructions to riders to use a jigger and no jigger found which would cast |
| doubt on Mr Currie’s explanation. |
| For those reasons I accept Mr Currie’s evidence as to the meaning he intended by use |
| of the word “harp” in the text messages. |
| Having made that finding, it is not possible on the balance of probabilities to draw the inference that Mr Currie intended to use a jigger on Said Written to affect his performance. |
| I find that Charge 2 has not been made out. I do not consider that the text messages are sufficient evidence of an intention by Mr Currie to have Said Written subjected to an electronic apparatus capable of affecting its performance. |
| Do the charges as particularised fall within the ambit of Rule 175(a)? |
| Although I have found that the charges as particularised have not been made out, I will deal with the issue raised by Mr Currie that the charges as particularised cannot in any event amount to improper action within the purview of ARR 175(a). |
| The applicant submits that the charges, relating to “intention”, do not fit the Rule which relates to improper “action”. On that basis it is said that the charge is invalid |
| from the beginning. |
| Action is defined in the Macquarie Dictionary as: |
The process or state of action or of being active. Something done; an act;
deed…[27]
[27] Macquarie Dictionary (5th ed, 2009) ‘action’.
| Intention has been explained by Lord Asquith in this way: |
An ‘intention’, to my mind, connotes a state of affairs which the party
‘intending’ – I will call him X – does more than merely contemplate. It connotes
a state of affairs which, on the contrary, he decides, so far as in him lies, to bring about, and which, in point of possibility, he has a reasonable prospect of being able to bring about by his own act of volition. X cannot, with any due regard to
the English language, be said to ‘intend’ that it shall be a fine day tomorrow.
At most he can hope or desire or pray that it will. Nor, short of this, can X be
said to ‘intend’ a particular result if its occurrence, though it may be not wholly
uninfluenced by X’s will, is dependent on so many other influences, accidents,
and cross currents of circumstance that not merely is it likely not to be achieved
at all, but, if it is achieved, X’s volition will have been no more than a minor
agency collaborating with, or not thwarted by, the factors which predominantly
determine its occurrence…
And further, the distinction between mere contemplation and intention is described as:
Moved out of the zone of contemplation – out of the sphere of the tentative, the provisional and the exploratory – into the valley of decision.[28]
[28] Cunliffe v Goodman (1950) 1 All ER 720, 724 (Asquith LJ).
| 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. | ||||
| If those facts existed, the particulars of the charges would be different to those confronting Mr Currie. The charges would necessarily involve further particulars | ||||
| I accept the submissions of Mr Currie that the charges as particularised do not, without more, fall within the scope of ARR 175(a). | ||||
| The correct and preferable decision | ||||
| On the basis of my findings, the correct and preferable decision is that: | ||||
| ||||
| I order that this decision be substituted for the decision the subject of this review, made 7 June 2019. |
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