Fletche v Racing Queensland Limited
[2012] QCAT 310
•20 July 2012
| CITATION: | Fletcher v Racing Queensland Limited [2012] QCAT 310 |
| PARTIES: | Mark Raymond Fletcher (Applicant/Appellant) |
| v | |
| Racing Queensland Limited (Respondent) |
| APPLICATION NUMBER: | OCR041-12 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | R F King-Scott, Member |
| DELIVERED ON: | 20 July 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Disqualification for period of 3 years set aside and in lieu thereof the Tribunal directs the Applicant be suspended from holding a Trainer and Driver’s licence for a period of 12 months. |
| CATCHWORDS: | Prejudicial or detrimental to the industry – cruelty whipping horse excessively – danger to the public by bolting horse Australian Harness Racing Rules, Rule 243 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
Introduction
On 5 January 2012, the applicant had attended the Parklands Paceway on the Gold Coast with a 2 year old colt named “Under the Gun”. The applicant was part owner and trainer of the colt. Although described as a race meeting, the purpose, as I understand it, of the event that day was an educational trial for young horses. The applicant is a licensed trainer and driver.
At about 6pm on that day, stewards received a complaint from Ms Rachel Beeton that she had observed the applicant approach a horse in the wash down area. She said she did not see him hit the horse (because the horse was obscured from her vision) but she heard the horse being whipped.
The Charge
Following that complaint, stewards investigated the incident. After a hearing, the stewards charged the applicant with an offence under Rule 243 of the Australian Harness Racing Rules. That rule provides:
A person employed or participating in the Harness Racing industry should not behave in a way which is prejudicial or detrimental to the industry.
Particulars of the charge laid by the stewards were:
Mark Fletcher, a Racing Queensland Limited Harness Trainer Driver participating in the Harness Racing industry behaved in a way which was prejudicial and detrimental to the industry in that Mark Fletcher on 5 January 2012 inflicted an act of cruelty on an unraced two year old harness horse “Under the Gun” by striking the said horse with a harness whip with severe force on multiple occasions causing harm to the said horse resulting in it bolting into the stable compound placing persons present at risk.
The Hearing
The hearing took place before a Stewards Panel on 12 January 2012, 17 January 2012 and 7 February 2012. The following witnesses gave evidence at the hearing:
a) Dr Greg Baldwin, veterinary surgeon;
b) Mr Greg Alloway, eyewitness;
c) Mr Greg Barnard, eyewitness;
d) Mr Greg Evans, eyewitness;
e) Ms Rachel Beeton, eyewitness;
f) Mr Greg Hill, eyewitness.
The Stewards Panel at the initial hearing also considered possible charges against a stable hand and co-owner of the horse, Mr Bradley Husband, but determined at a later hearing to excuse him from further attendance.
A file note compiled by Dr Greg Baldwin, veterinary surgeon, dated, erroneously, 9 January 2011 [should be 2012] was tendered at the hearing.
Dr Baldwin was asked by stewards to examine the colt following the events described above and to take photographs. On examination, he found it to have five substantial welt marks over the left side of the body, specifically over the left rump, flank and upper thorax and shoulder region. Three welt marks extended from the mid line of the rump down toward the left hip joint, one from the mid line extending down the left flank, and one extending from the mid line of the lumbar region across the dorsal thorax of the front of the left shoulder blade. These welts were consistent with an acute inflammatory response of the skin caused by multiple contacts with a whip under severe force.
Dr Baldwin also observed that Mr Fletcher had caused undue suffering to the horse. Dr Baldwin made a series of further comments which I consider are irrelevant and not within his realm of expertise to comment upon. I have ignored those comments.
Dr Baldwin also took some colour photos of the colt which depict several welts on the rump and one welt running from the shoulder to the left rump. In his oral evidence, Dr Baldwin said that the welts would stay around for up to 12 hours, but said that the time could be variable. He agreed that the whipping would cause quite a deal of trauma to the horse.
In conclusion, Dr Baldwin said:
All I can add, if you hit a horse hard enough with a whip, it causes an inflammatory response (inaudible) and subcutaneous oedema, which causes the welt, and that in itself is trauma. So it’s going to be painful and it’s going to be moderately painful to severely painful.[1]
[1] Transcript p.16, l.5.
Mr Greg Alloway had earlier been interviewed by stewards and a transcript of that interview had been read to the applicant and was tendered at the hearing. I should interpolate here that that process was followed in respect of each of the eyewitnesses.
Mr Alloway was in charge of track maintenance at the Paceway. He did not know the applicant. He said he observed the applicant walking in a stabling area with his gear. He then saw the applicant put the gear down, pick up a whip and walk over to a horse in the wash bay and hit it a few times with the whip. He saw it hit three times. In response to a leading question by the interviewer, he agreed it was aggressive. He then observed the horse going berserk.
At the hearing, Mr Alloway said he could not see who was holding the horse, although in an earlier interview he described the person as a “kid”. In fact, it was Mr Husband. He did not think the horse was misbehaving. Again, in response to leading questions, he agreed that the applicant used a full arm motion when striking the colt.
Mr Scott Barnard did not observe the whipping, he could not provide any useful evidence relating to the charge.
Greg Evans was a member of the ground staff of the Gold Coast Turf Club. He did not know the applicant. He observed a horse in the work bay, it was being held but was playing up. He observed the applicant walk over with a whip and hit the colt twice. In a transcript of the interview, he said:
Mr McClune: Alright. You say he hit twice. What would you deem it? Was it excessive or was it quite severe? –
Mr Evans: He hit it very hard. Very hard.
Mr McClune: Very hard?
Mr Evans: Yes.
Mr McClune: And the horse obviously reacted to that?
Mr Evans: Yes. Got away again actually.
Mr McClune: Sorry?
Mr Evans: He got away after that as well.[2]
[2] Transcript of interview, p.4, ll.0-15.
Ms Rachel Beeton gave evidence by telephone. I have already referred to the substance of her interview with the steward. At the time of the incident, she was in the company of her 4 year old daughter. Asked about who was around at the time the colt bolted, she said:
Well, a lot of – there were different people packing up their gear. I don’t know from memory who they all were but there were different people there, and it was fairly quiet because obviously the races were over, so it was loud enough commotion for it to be heard clearly when I wasn’t in the same aisle away.[3]
[3] Transcript of Inquiry, p.33, l.25.
Mr Greg Hill’s interview with stewards was only partly transcribed. In his oral evidence, he described what he saw:
I was standing at the gate and usually when there’s a horse – you know, with their metal shoes, they make a lot of noise when sort of scuffle around. So I turned around to see the horse scuffling around, and it pulled away from the wash bay. It wasn’t tied – or was come undone from being tied. Then the other gentleman was – just happened to be walking by with his trolley and he saw this horse pull away from the wash bay, so he took his race whip out and walked over to it, grabbed hold of it, gave it to the other gentleman – which wanted to put it back in the wash bay – and then hit it – two welts with the race whip. Then they took back into the wash bay and probably started to try and wash it again and then it broke away and it ran into the barn.[4]
[4] Transcript of Inquiry, p.38, ll.25-40.
He was definite that it was only hit on two occasions. He said it could have been hit again later in the barn but he did not see that. The barn, I understand, is where the colt bolted to before being restrained.
Mr Husband, who was acting as a strapper at the time, told the Stewards Panel:
It started when I took the horse to the wash bay. I went to go to the middle one and it’s got the drain in front of it and he wouldn’t go in there. Brian McCall was standing beside me and he said: ‘Yeah, that drain does tend to make horses a bit (sic) – especially the young ones’. So I went into the next one. I tied him up and as soon as I turned the hose on he broke the lead, ran back. I grabbed him. So I then retied him up. As soon as I turned the hose on it happened again. He broke back. I grabbed him then I went to tie him up – I tried [sic] the end and that’s when Mark was coming with the gear.
He then came up with a whip, didn’t hit it but just egged him in. We got him in. We tied him up. As soon as I turned that hose on again he’s pulled back. He broke the lead, and he’s broken the lead, he’s gone to pull out, and that’s when Mark tried to hit back in the bay because he was going to bolt. He’s gone 1, 2, he’s turned and gone to bolt so Mark has tried to hit him back in the bay. He bolted. That’s when he went down the alleyway and that’s when Brian McCall caught him, and then we took him and loaded him on the truck.[5]
[5] Transcript of Inquiry, p.3, l.30 to p.4, l.3.
The applicant said following the above evidence from Mr Husband:
I’ve got nothing else to say. What he said is what happened. I admit I hit the horse and I should never have, but I went there to keep him in there so he wouldn’t pull back. As soon as he pulled back I hit him twice on the bum. He turned around and was going to run away so I threw my arms up and hit him again to try and make him stand up, and he wouldn’t stand. He was just going to go anyway. I shouldn’t have done it but you know, what am I going to do? I can’t take it back now.
Both Mr Husband and the applicant were at pains to say that the colt was fine when they got home and showed no ill effects of the whipping. That is borne out by a veterinary report relating to an examination allegedly carried out on the following day.
In a review application, the Tribunal has to produce the correct and preferable decision by considering all the circumstances and then determine for itself, afresh, whether the applicant is guilty of the offence.[6]
[6]Section 20 Queensland Civil and Administrative Tribunal Act 2009. Queensland Racing Ltd v McMahon [2010] QCATA 73.
I have not had an opportunity of seeing the witnesses give evidence. In making my findings of fact in relation to the evidence, I have to rely upon the transcript and statements provided by the respective witnesses.
There is a consistency in the evidence given by the eyewitnesses, although there is a disparity in respect of the number of occasions that the horse was whipped by the applicant. The irrefutable evidence is the evidence of Dr Baldwin and the photographs which suggest that the horse was whipped about five times. Most of the eyewitnesses recall only two to three occasions that the colt was struck. One witness suggests that it may have occurred in the barn but there is no evidence at all to substantiate that claim and he did not witness any further whipping.
I therefore find that the colt was whipped on five occasions.
The severity of the strokes are in dispute, but there is evidence from one eyewitness that it was a full arm blow by the applicant and the veterinary evidence of Dr Baldwin would suggest that it was severe, and I am prepared to make that finding.
The applicant and Mr Husband justify the use of the whip to move the colt back into the wash area and to stop it from bolting. There is a consistency in the evidence that the colt was reacting to the use of the hose and was backing out of the wash area. The eyewitness accounts of the applicant’s reaction to this from leaving his gear and approaching the horse and applying the whip on two occasions seem to be an over-reaction, and one cannot help but suspect that there was a degree of frustration in his actions. The applicant certainly concedes now in hindsight that he should not have done what he did.
In whipping the horse in the circumstances he did, the applicant caused Mr Husband either to lose control of the horse or he did not have control of the horse in the first place when it was whipped. On either scenario, the behaviour of the applicant led to the horse bolting, and put persons in the immediate stable area at risk. Those persons included at least one child, being Ms Beeton’s four year old daughter.
There was some concern by the Stewards Panel as to whether the applicant was striking the horse while it was being tethered or whether it was being struck whilst free. As I have stated earlier, I think on either scenario, the applicant showed misjudgement.
Plea
The applicant pleaded not guilty to the charge because of the allegation of cruelty. He has not contested that he was guilty of behaving in a way which was prejudicial or detrimental to the industry. Indeed, when charged on 7 February 2012, he said:
I admit what I did was totally detrimental to trotting. I should never have done it. I admit that – you know, it’s something that I have never done before or anything like that. But as far as being cruel to the horse, I can’t say that I was cruel to the horse. I didn’t hit him as hard as what it looks like on the thing because the marks were gone by the time we got home.
In response to the respondent’s submission, the applicant submits that he has always considered he breached the rule but did not consider his actions amounted to an “act of cruelty”.
The applicant in his submission notes that “cruelty” is not defined in the Rules of Racing. He refers to s 18(2) of the Animal Care and Protection Act 2001 (ACPA) which defines cruelty. A person is taken to be cruel under that Act if, inter alia, the person beats [the animal] so as to cause the animal pain. If the person abuses, terrifies, torments or worries it, the person would also be considered cruel.
Section 7 provides that the ACPA does not affect the application of the Racing Act 2002. Further, a person who lawfully does an act or makes an omission authorised under the Racing Act 2002 which would, but for the subsection, constitute an offence under the ACPA, is taken not to commit the offence by reason only of doing the act or making the omission.
In the circumstances, although the applicant’s actions, in this case, might not be lawful under the ACPA, I derive little benefit from that Act.
The applicant refers to rules 156 and 156A of the Rules of Harness Racing which relate to the type and use of whips. Although the rules contemplate the use of a whip in a race, subsection (4) is instructive of the attitude of the industry to what amounts to excessive use of the whip. In particular, the use of the whip would be considered excessive in the following circumstances:
(a) If the tip of the whip is drawn back further than the driver’s shoulder;
(b) if the whip action involves more than wrist and elbow action;
(c) if the reins are lengthened so as to result in loose reining in regards to where the whip is being used at the same time;
(d) if the whip is used other than in a flicking motion.
I see no reason why the purpose of those rules, which clearly contemplate the use of the whip in a race, should not pervade the industry as a whole. That is, if it is not permissible to use more than the wrist and elbow in a whip action, why would it be permissible to use the whole arm, say, on a horse at a training track or in the stables?
The applicant submits that in deciding whether his actions should be defined as cruel, there has to be an imbalance between the actions he took and any explanation for such actions.
I do not have much difficulty in determining on the basis of the findings I have already made that there is that imbalance. I find that the actions of the applicant were excessive although, on the scale of cruelty, I find the applicant’s actions to be very much at the lower level of seriousness.
Nevertheless, at a time when the racing industry is under scrutiny by a public increasingly concerned with animal welfare, the applicant’s conduct is quite clearly prejudicial and detrimental to the industry. One could well understand the concern of the stewards in imposing a severe penalty.
When one considers that the aggravation of cruelty to the charge is one of a less severe kind, it is necessary to consider the other circumstances of the charge. They are that the applicant’s conduct endangered members of the racing public and owners, trainers and their families were at risk. It was fortunate that it was a quiet time. I find that there were not a lot of people around at that time, but, as I say, that was fortunate and not something that the applicant necessarily had in contemplation when he took the actions he did.
Penalty
The respondent says I should weigh in my considerations the following aggravating factors:
a)whether the applicant acted with intent, whether actuated by loss of self-control or malice or both;
b)the degree of harm occasioned to the animal by virtue of the complained conduct;
c)the degree of suffering the animal may reasonably have experienced by virtue of the complained conduct;
d)whether the applicant rendered any treatment to the animal in mitigation of the injury or pain when it was reasonable or not impracticable for the harm to be mitigated;
e)whether the applicant acted with extreme violence, used weapons or engaged in multiple or a prolonged attack;
f)the degree or extent of any insight shown by the applicant into the nature of his actions and any level of remorse.
In considering those matters, I find:
a)there was no malice in the applicant’s actions but there was a loss of control, perhaps as a result of frustration for reasons which have not become apparent in the hearing;
b)as I have stated earlier, I consider as acts of cruelty go, this incident was very much at the less severe end of the spectrum. The colt was not permanently harmed from the physical point of view. Any suffering would have lasted for some days, if that. Mentally, the colt may have been traumatised but I have insufficient evidence to make any proper determination in that regard and I have not taken it into account;
c)the applicant said that the colt had recovered by the time he arrived home at the stables. He went for a roll, ate his feed and played up. The colt was inspected by a vet in the days following and was found to be in good health;
d)I am concerned that there is some lack of insight by the applicant. Although he seemed to accept, at an early stage, his conduct was prejudicial and detrimental to the industry. His acceptance of that aspect of the charge, I suspect, was due to the fact that his actions were observed but he did not seem to be concerned that his actions in whipping the colt repeatedly and with excessive force, in itself, was wrong. In that regard he has not shown any degree of remorse.
On the mitigation side, the applicant has no prior history of offences in the industry and is of good character according to the several references provided on his behalf. I have no reason to doubt the veracity of those who gave references on his behalf.
The applicant has provided some comparable penalties. The respondent disputes that they are comparable, submitting that they are out of date and not in keeping with current standards. I agree with the respondent that the accuracy of the reporting of some of the decisions may be suspect, but I do not consider them out of date. I assume, as the respondent has not submitted any other comparable decisions, that these are the only decisions relating to cruelty offences committed within the industry as opposed to cruelty offences committed at large. In that regard, the respondent has provided me with numerous reported cases.
The applicant refers to three decisions. They are:
a)Borg[7]. In that case, the licensee was convicted under Rule 213(a) for using a device to inflict suffering on a horse. Borg was witnessed apparently repeatedly beating a horse while it was tied up in his barn. He was a hobby trainer of a small team of horses. He was disqualified for a period of 3 months.
b)Manzelmann[8]. In this case, the licensee was convicted under Rule 218 “a person having responsibility for the welfare of a horse shall not fail to care for it properly”. In that case, the circumstances were the Manzelmann had knowledge that two horses in his care were injured prior to transport and still authorised and directed a strapper to transport them for him from his property to Albion Park Paceway to be picked up by another person to be sold for slaughter. He was fined $3,000. This was later varied to a charge under Rule 225 and the penalty varied to $500. There was no final hearing in the matter.
c)In Jones and Colling v Western Australian Racing[9], the licensees was charged under Rule 175(o)(i) where they were in charge of several thoroughbred horses and due to financial hardship, were not able to adequately feed the horses. They were given orders to provide adequate feed and to surrender the horses, but did not do so. Some of the horses were euthanized. They were disqualified for five years. This was varied on appeal to a period of seven months disqualification which was lifted immediately following an appeal.
[7]E Borg – Stewards Inquiry 28 November 2008, reported by new article on Racing Queensland’s official website.
[8]B Manzelmann – Stewards Report dated 22 August 2011, as reported on respondent’s official website.
[9]Appeal No 70778 of 2012.
I note the maximum penalty under ACPA was 2 years imprisonment. I also note that imprisonment is rarely imposed.
In the instant case, the penalty options available to me are under Part 15 of the Australian Harness Racing Rules.
The penalty of disqualification for 3 years, in my opinion, was excessive and should be reserved for more serious cases of cruelty where the effects on the animal either arise in death or are of an enduring or permanent nature. I am also mindful that the applicant would not only lose his livelihood if disqualified but also his home as he resides and works as a nightwatchman at a race track. Nevertheless, I think a period of suspension is warranted.
I therefore allow the appeal and set aside the penalty of the Stewards of disqualification for 3 years. In lieu thereof, I suspend the applicant’s licence as a trainer and driver for a period of 12 months.
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