Elkins v Queensland Racing Integrity Commission

[2021] QCAT 232

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Elkins v Queensland Racing Integrity Commission [2021] QCAT 232

PARTIES:

MATTHEW JAMES ELKINS
(applicant)

v

QUEENSLAND RACING INTEGRITY COMMISSION

(respondent)

APPLICATION NO/S:

OCR069-20

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

1 July 2021

HEARING DATE:

15 June 2021

HEARD AT:

Brisbane

DECISION OF:

Member Cranwell

ORDERS:

1.   The decision of the Queensland Racing Integrity Commission dated 2 March 2020 confirming the original decision is set aside.

2.   The Tribunal substitutes its own decision that Matthew James Elkins is not guilty of contravening rule 149(2) of the Australian Harness Racing Rules on 31 January 2020.

CATCHWORDS:

PROFESSIONS AND TRADES – LICENSING OR REGULATION OF OTHER PROFESSIONS, TRADES OR CALLINGS – harness racing driver – whether applicant drove in unacceptable manner – consideration of whether conduct blameworthy

Australian Harness Racing Rules, rule 149

Mifsud v Racing Victoria Stewards [2007] VRAT 6

APPEARANCES & REPRESENTATION:

Applicant:

S B Neaves

Respondent:

B McMillan

REASONS FOR DECISION

1. Mr Elkins is a registered driver for the purposes of harness racing in Australia.

2. On 31 January 2020, Mr Elkins drove Courageous Leo at the Albion Park Racing Club.

3. The Queensland Racing Integrity Commission (‘the Commission’) charged Mr Elkins with breaching rule 149(2) of the Australian Harness Racing Rules.  Rule 149 relevantly provides:

   (1) A driver shall take all reasonable and permissible measures during the course of a race to ensure that the horse driven by that driver is given full opportunity to win or obtain the best possible placing in the field.

   (2) A person shall not drive in a manner which in the opinion of the Stewards is unacceptable.

4. The stewards found Mr Elkins guilty of breaching rule 149(2) and imposed a suspension of four weeks.

5. Mr Elkins applied for an internal review.

6. On 2 March 2020, the Commission’s internal reviewer confirmed the finding of guilt but reduced the penalty to a three week suspension.

7. Mr Elkins has now applied for an external review to the Tribunal.

8. The particulars of the charge were set out in the internal review decision as follows:

   [T]he Applicant’s decision to ask COURAGEOUS LEO for another significant effort approaching the 800 metre mark, where the chances of him fining (sic) the lead were unrealistic, and beyond the geldings (sic) capabilities, considering that when the gelding had been unsuccessful in an attempt to secure the lead only 200 metres earlier, and that COURAGEOUS LEO had been over-racing, was, in the opinion of the Stewards, unacceptable.

9. Mr Elkins gave consistent evidence before the stewards and the Tribunal.  His evidence may be summarised as follows:

   (a)Mr Elkins drove Courageous Leo on 5 January 2019.  On that occasion, the horse wore a hood without an anti-choking device.

   (b)On that occasion, Courageous Leo choked and fell, placing Mr Elkins at risk of injury.

   (c)Leading into the race on 31 January 2020, Mr Elkins drove Courageous Leo at Redcliffe in an open bridle.

   (d)On 31 January 2020, the trainer of Courageous Leo changed the gear so that he was again wearing a hood without an anti-choking device.  Mr Elkins was not consulted in relation to the change in gear.

   (e)At around the 800 metre mark, Mr Elkins noticed that Courageous Leo’s head was tucked down, which would have been prevented without an anti-choking device.

   (f)Mr Elkins also heard Courageous Leo make breathing noises, which were consistent with a risk of choking.

   (g)Being mindful of his own safety and that of others in the race, Mr Elkins decided to release the reins in order to allow the horse to get its breath.

   (h)After Mr Elkins released the reins, Courageous Leo ran up to the leader.

   (i)Mr Elkins decided to make the best of a difficult situation and allowed and then encouraged Courageous Leo to find the front.

   (j)It was an accepted driving habit to drive a horse hard from the 800 metre mark to the finish.

   (k)Once it became apparent that Courageous Leo could not find the front, Mr Elkins sat quietly on the horse.

10. It was not put to Mr Elkins, either during the stewards’ inquiry or the Tribunal hearing, that he was being untruthful in relation to Courageous Leo making breathing noises which were consistent with choking. 

11. The transcript of the stewards’ inquiry indicates that one of the other drivers, Mr Chappenden, did not hear Courageous Leo making breathing sounds.  When asked about this, Mr Elkins stated that Mr Chappenden was inexperienced at the time and might not have recognised the noise.

12. Neither of the stewards who gave evidence, Neil Finnigan and Norman Torpey, were in a position during the race where they could have been expected to hear the breathing noise which Mr Elkins stated that he heard Courageous Leo make.  However, each steward accepted in cross-examination that a breathing noise is often a warning of a choking incident, and releasing the reins is one manner to assist a horse to overcome such an incident.

13. In respect of Courageous Leo’s history, I note that Mr Torpey made the following statement in his affidavit:

    As a steward, I am aware that leading into the race on 31 January 2020, Courageous Leo had raced without incident on 26 occasions since it fell on 5 January 2019.

14. Under cross-examination, Mr Torpey accepted that Courageous Leo had choked down and been pulled up on 11 August 2019.  Mr Torpey also admitted that he had not read the transcript of the stewards’ inquiry in preparing his affidavit.  Accordingly, I place little weight on Mr Torpey’s evidence.

15. In these circumstances, I accept Mr Elkins’ evidence in its entirety.  He presented as a credible witness, and was likely attuned to the horse’s breathing noises given the previous choking incident with Courageous Leo.

16. To the extent that it is necessary for me to consider authorities on the application of rule 149(2), I have been referred to Mifsud v Racing Victoria Stewards [2007] VRAT 6 where it was stated:

    The rule in question is as I have stated, a person shall not drive in a manner which in the opinion of the Stewards is unacceptable. This rule is not intended to penalise what might be described as mere errors of judgment or split second mistakes. The Tribunal is well aware of the authority constituted by the previous decision in 1983 by Judge Goran in a case of Honan where it was thought desirable to bring into focus the sort of considerations that lie behind rules such as Rule 149(1) and (2) and Judge Goran made a number of observations.

    It is certainly relevant to restate here that the first, second and fourth of the observations that he made apply here. I will read those:

    (a) the rule does not permit the mere substitution of the Stewards’ view as to how a particular horse should have been ridden for the view of the rider;

    Of course in the harness racing world we would substitute “driven for the view of the driver”.

    (b) the rule does not seek to punish a mere error of judgment during the race on the part of the driver; and

    (d) the driver’s conduct must be culpable in the sense that objectively judged it is found to be blameworthy.

    I will not include (c) here because it is more relevant to a breach of Rule 149(1) and we are dealing with 149(2) …

    Perhaps to throw my own interpretation into the mix I might view it this way, that the sort of culpable action that is required to amount to a breach of this rule might be such that in normal circumstances a reasonable and knowledgeable harness racing spectator might be expected to exclaim with words to the effect, “What on earth is he doing?” or “My goodness look at that” or some such exclamation.

17. It seems to me that a reasonable and knowledgeable harness racing spectator, who was aware of Courageous Leo’s racing history and who was aware of the breathing noises made by the horse during the race, would not have found Mr Elkins’ conduct in releasing the reins at around the 800 metre mark to be blameworthy. 

18. If Mr Elkins then erred in encouraging Courageous Leo to find the front after releasing the reins, this was no more than a mere error of judgment during the race and not inconsistent with accepted driving habits to drive a horse hard from the 800 metre mark to the finish.  The horse was the rank outsider and, as Mr Finnigan observed, finishing last was ‘not a surprise’.

19. I will set aside the decision under review.