Fletcher v Racing Queensland Ltd
[2011] QCAT 422
•13 September 2011
| CITATION: | Fletcher v Racing Queensland Ltd [2011] QCAT 422 |
| PARTIES: | Mr Stephen Fletcher (Applicant/Appellant) |
| v | |
| Racing Queensland Ltd (Respondent) |
| APPLICATION NUMBER: | OCR096-11 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 29 July 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver, Senior Member Sandra Deane, Member Keta Roseby, Member |
| DELIVERED ON: | 13 September 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The decision of Racing Queensland made on 1 April 2011 is set aside. |
| CATCHWORDS: | Racing – where applicant alleged to be a party to a breach of AR135(a) – where respondent relied on circumstantial evidence to support charge and make a finding of guilt – where correlation of lay bets with Jockey El-Issa resulted in wins for the applicant over a short period – where close association alleged between Mr Fletcher and Jockey El-Issa – whether betting history should be confined to Mr Fletcher’s ten top lay bets or whether the betting history should be considered over a broader period – whether the evidence is sufficient to draw an inference of guilt to satisfy the Briginshaw test Queensland Civil and Administrative Tribunal Act 2009, s 22 Racing Queensland Ltd v Bellamy [2011] QCATA 30 Spoules v Makita (2001) 52 NSWLR 705 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Stephen Fletcher represented by Mr Byrne QC instructed by McLachlan Thorpe |
| RESPONDENT: | Racing Queensland represented by Mr Murdoch SC instructed by Racing Queensland |
REASONS FOR DECISION
Introduction
Mr Fletcher is a professional gambler. He wagers on a range of sporting events and relevantly here, horse racing. He bets on horses to win and takes bets in a similar way to a bookmaker using an internet betting site “Betfair”. He bets across horse races in most Australian states. His financial exposure to gambling can be significant.
The betting on horses to win or place is straight forward. However, the laying of horses is a little more complex in that, using Betfair, Mr Fletcher can act as a bookmaker by laying individual horses in a race. Unlike the traditional bookmaker at the race course, he does not necessarily have to bet on a full book of horses in a particular race but he can be selective as to those horses which he will take bets on. The advantage of Betfair, to a gambler like Mr Fletcher, is that one can be both punter and bookmaker.
On 26 February 2011 Bold Glance was running in race 7 at Eagle Farm. Using both betting methods through Betfair, Mr Fletcher laid Bold Glance to lose at an average of $12.50 and backed Essington to win with bets between $1.70 to $2.20 for the win. Mr Fletcher had about $30,000 on Essington to win and stood to pay out about $55,000 if Bold Glance won.
The result in the race was that Essington won and Bold Glance came second. Bold Glance was ridden by Bobby El-Issa.
Immediately after the race the Stewards convened an inquiry because they were concerned about the manner in which Bold Glance’s jockey, Bobby El-Issa, rode the final 200 metres. As a consequence of that inquiry, Mr El-Issa was charged with failing to ride a horse on its merits in breach of AR.135(a) and was disqualified from riding for a period of 2 years. On a review of that decision, this Tribunal confirmed the decision and reduced the disqualification period from 2 years to 18 months.[1]
[1] El-Issa v Racing Queensland Ltd [2011] QCAT 230.
During the course of that inquiry Mr Fletcher was charged with being a party to Mr El-Issa’s breach of AR135(a). He was disqualified for a period of 12 months. Mr Fletcher now seeks a review of that decision.
The Issues
The issue for determination is whether Mr Fletcher is a party to the breach of AR135(a) by reference to the particulars of the charge relied on by Racing Queensland. They are as follows:-
(a) Jockey El-Issa rode BOLD GLANCE in a manner to deprive it of its real and legitimate opportunity of winning the race in that after passing the 200 metres when BOLD GLANCE was challenged by ESSINGTON, he deliberately and consciously rode Bold Glance with insufficient vigour which resulted in the BOLD GLANCE not being fully tested and thereby not finishing the race off at its best.
(b) Mr Fletcher wagered on ESSINGTON to win and laid BOLD GLANCE such that Jockey El-Issa depriving BOLD GLANCE of its opportunity to win the race to permit ESSINGTON to win assisted Mr Fletcher to obtain a financial benefit of in excess of $30,000 and retain a stake of in excess of $55,000.
(c) Mr Fletcher was aware of jockey El-Issa’s intention that he not run BOLD GLANCE on its merits.
(d) Mr Fletcher made jockey El-Issa aware of his intention to back ESSINGTON and lay BOLD GLANCE.
(e) At all material times Mr Fletcher, a professional punter, and Jockey El-Issa were close associates.
One other issue is raised by Mr Fletcher and that is, as a matter of law, as Mr Fletcher is not a licensed person, he cannot be a “party to” a breach of the Rules of Racing.
The parties agree that the case against Mr Fletcher is wholly circumstantial, meaning that Racing Queensland has not lead any direct evidence to support the particulars of the charge as formulated by Racing Queensland.
Essentially what this hearing then comes down to is whether we prefer the spread of bets over the 12 month period as a more accurate determination if one is to rely on statistical evidence, or whether we confine our consideration to the 3 month period as promoted by Racing Queensland through the evidence of Mr Birch.
We have come to the decision that Racing Queensland has not been able to prove to our reasonable satisfaction that Mr Fletcher was a party to the breach of AR135(a) by Mr El-Issa and therefore its decision of 1 April is set aside.
The Tribunal’s function
The function of the Tribunal in a review proceeding is to come to the correct and preferable decision by way of a fresh hearing on the merits[2].
[2] QCAT Act, s 20.
The allegations against Mr Fletcher are of the most serious kind. This Tribunal found that Mr El-Issa deliberately and consciously did not allow Bold Glance to run on its merits. This conduct involved moral turpitude on his part and therefore, the standard of proof was such that there needed to be sensible and probative evidence to support the allegations made. In this application, the Stewards did not resile from the seriousness of such charge. In the El-Issa hearing, the following exchange occurred between counsel for Mr El-Issa and Mr Birch:-
“Well, what you were saying was the association with Fletcher was dishonest and it was corrupt and it was fraudulent aren’t you? … with respect to the second charge, yes, exactly what we say”[3]
[3] Exhibit 4 transcript page 40 L 30.
Although the standard of proof is on the balance of probabilities the standard is to be moderated by the principles set out in Briginshaw v Briginshaw (1938) 60 CLR 336. Therefore the Tribunal must have regard to the nature of the allegations made and the consequences of a finding of guilt which will have a direct impact on Mr Fletcher’s livelihood. The standard of proof in these circumstances is high but not to the criminal standard.[4]
[4] Racing Queensland Ltd v Bellamy [2011] QCATA 30.
Was Mr Fletcher a “party”?
Because of our findings with respect to the substantive charge against Mr Fletcher it not necessary for the Tribunal to address this question.
Did Mr El-Issa ride Bold Glance in a manner to deprive it of its real and legitimate opportunity of winning the race after passing the 200 metre mark?
There can be no dispute about this question and sensibly both parties have acknowledged that the particular of itself does not establish any complicity between Mr Fletcher and Mr El-Issa.
Was the financial benefit to Mr Fletcher of $30,000 for the win on Essington and saving of $55,000 on Bold Glance as a result of his knowledge that Mr El-Issa would deprive Bold Glance of an opportunity win and permit Essington to win?
This particular needs to be reframed to give it conceptual sense in the proceeding. The contention is that before the race there must have been some communication between Mr Fletcher and Mr El-Issa so that Mr Fletcher would have known that Bold Glance would not win. It cannot follow as a matter of logic from the way the case is mounted against him, that Mr Fletcher would also know that if Bold Glance lost or placed, Essington would win. There is no evidence, circumstantial or otherwise to support such a contention.
The “swing” as it has been described was not disputed by Mr Fletcher, nor could it be. But of itself, it proves nothing other than the fact of the transactions. Clearly there is a benefit to Mr Fletcher as matters eventuated. This may also give rise to a strong suspicion of complicity but of itself it does not satisfy the standard of proof. This suspicion must also be considered in Mr Fletcher’s overall betting activities which are discussed later in this decision.
Was Mr Fletcher aware that Mr El-Issa was not going to run Bold Glance on its merits?
To establish this particular there must be proven facts from which an irresistible inference, because of the seriousness of the allegation, can be drawn to establish this knowledge on the part of Mr Fletcher.
The facts relied on by Racing Queensland are: the relationship between Mr Fletcher and Mr El-Issa; Mr Fletcher’s high strike rate on lay bets on horses ridden by Mr El-Issa; the high level of confidence manifested by Mr Fletcher when laying bets on horses ridden by Mr El-Issa and the high level of confidence displayed by Mr Fletcher when placing or taking bets on 26 February 2011. The truth of these facts is not in contention.
The relationship alleged by Mr Fletcher is of a casual kind. There is spasmodic telephone contact and on rare occasions personal contact between Mr Fletcher and Mr El-Issa. The evidence does not establish that the contact relates to horse racing or form. It is to the contrary and is limited to inquiries about family and Mr Fletcher’s opinions about other sporting events. The direct evidence establishes that the contact is always initiated by Mr El-Issa. The relationship itself does not lead to the inference contended for by Racing Queensland, but it must be considered in the overall context of all of the evidence upon which it is said an adverse inference can be drawn.
It is true that Mr Fletcher did enjoy a high strike rate with Mr El-Issa’s rides. He also enjoyed a good result on 26 February. This result is generally consistent with his overall betting results over a 12 month period.
Racing Queensland have chosen to look at the high strike rate for a discrete period between 1 December 2010 to 26 February 2011. The analysis for this period by Mr Clark from Betfair showed an unusual correlation between laid bets made by Mr Fletcher on horses ridden by Mr El-Issa which had lost.
There can be little doubt that, at first blush, the correlation between Mr Fletcher’s lay bets on mounts ridden by Mr El-Issa calls for some explanation. The empirical evidence produced by Mr Birch[5] showed that between 1 December 2010 and 26 February 2011 of the 21 events involving Mr Fletcher, he was successful on 17 winning lay bets which resulted in a success rate of 89.47%. In respect of horses not ridden by Mr El-Issa upon which lay bets were placed the result was 51.60%.
[5] Exhibit 3.
During the same period Mr Fletcher made a profit from thoroughbred racing in Queensland of $63,883.85 and of this, $44,032.00 was attributed to lay bets on horses ridden by Mr El-Issa. If this evidence is looked at in isolation, and even without any probative evidence of contact between Mr Fletcher and Mr El-Issa, it may be possible to draw an inference that there had been collusion.
This three month period should not, in our view, be considered in isolation where the case against Mr Fletcher is purely circumstantial. Mr Byrne put this proposition to Mr Birch, Chief Steward, during cross examination. When it was suggested to him that it would be prudent to consider Mr Fletcher’s betting history over all jurisdictions for more than a 3 month period, Mr Birch disagreed. It was further suggested to him that the larger the statistical information available the more likely the accuracy of the outcome. Mr Birch agreed with this because the proposition itself is obviously correct. He also agreed that the narrower the information base, the more likely the result is to be inaccurate. He readily conceded that it was the top ten lay bets made on horses ridden by Mr El-Issa that led him to conclude that there must have been collusion between them. He also conceded that if the top ten lay bets, used as the statistical base, were ignored there was very little evidence upon which one could rely to satisfy the high onus of proof where fraud is alleged. Mr Birch maintained his position and relied on the information contained in his affidavit.[6]
[6] Exhibit 3.
By contrast, Mr Fletcher produced a report by Mr McMahon who looked at the broader picture. Mr McMahon is a statistician who holds qualifications in statistics and mathematics. He is currently employed by the Australian Bureau of Statistics as a Statistician. He has had 12 years experience as a licensed bookmaker’s clerk and his expertise was not challenged. We are satisfied that Mr McMahon’s evidence meets the requirements for expert evidence proscribed by Spoules v Makita.[7]To be fair to Mr Birch he was not promoted as an expert, his calculations and statistical analysis of the ten top lays was factual evidence upon which an inference could be drawn of a relationship which, as we have said, would obviously raise suspicions.
[7] (2001) 52 NSWLR 705.
Mr McMahon was given records of Mr Fletcher’s betting history across all his betting activities on his Betfair account. His report[8] sets out the betting history for Queensland and provides a comparison with that betting history over the previous 12 months. On the lay bets in Queensland, it is immediately apparent that most if not all of the lay bets were horses where Mr Fletcher gave generous odds, or referred to as a “roughie”.[9] For example, Mr Fletcher, like any normal bookmaker, was prepared to wager $31,000 on State of Being to win $835. Translated, this simply means the starting price of the horse was approximately 50 to 1. Another example is Paris Blue where Mr Fletcher was prepared to risk $34,244 to win $433 which is about 75 to 1. If a bookmaker, betting on a full book, was doing this at the race course there would be nothing untoward about it. However, unlike a bookmaker at the race course, who is required to accept bets on all horses in the race, Betfair permits individuals to lay only specific horses of their choice. Had the horses set out in the schedule not been ridden by Mr El-Issa, again, there would be nothing untoward about Mr Fletcher’s betting in that 3 month period.
[8] Exhibit 5.
[9] Exhibit 5 page 12.
The table also compares how the Brisbane based horses compared with Mr Fletcher’s overall betting activity. In the column entitled “potential profit rank on bets, combined accounts – 26/02/10 to 26/02/11” it can be seen that only one horse ranked below 1000 that is State of Being which was backed on 8 December 2010. Its ranking was 780. Bold Glance, in the race of 26 February 2011 ranked 6,483 in the overall ranking of all bets placed. The note to that schedule is also informative. It states:-
(a) Only one of the nominated Bobby El-Issa rides features in the top 1000 of Mr Fletcher’s potentially most profitable wages for the period 26 February 2010 to 26 February 2011 (780);
(b) Only 4 rate in the top 5,000; and
(c) 2 are outside the top 10,000 (22,963 bets considered)
The report then explains that when Betfair is compared with other gambling outlets, for instance Unitab, it is difficult to compare the odds given because one is not comparing like with like. Mr McMahon puts it as follows:-
“Pari-Mutuel betting is a system which all bets of a particular type are placed together in a pool. Taxes, operating expenses etc are then removed from the pool and dividends are calculated by sharing the remaining pool among all winning bets. Australian totalisers are an example of Pari-Mutuel betting markets. Taxes, operating expenses etc that are removed from the pool are generally in the vicinity of 17% of the pool but can vary by market.
It is generally inappropriate to compare an Australian pari-mutuel betting market with a Betfair market as Betfair markets do not have the taxes or operating expenses built into their prices. As a result, Betfair markets more closely resemble a “fair market” that is a market to 100%. The absence of a 17% take out means that, on average, the prices from the Betfair market at 100% will be 17% higher than those being offered by Australian totaliser.”[10]
[10] Exhibit 5 page 18 paragraph 4.6.1(b) and (c).
Mr McMahon then did an exercise with that adjustment to compare Mr Fletcher’s lay bets on Betfair and on Unitab. The table demonstrates that in the main the odds given by Mr Fletcher through Betfair compared favourably with the odds that a punter would achieve by placing the bet to win or place with Unitab on adjusted odds that is, adjusting by about 17%.[11] The conclusion that Mr McMahon draws from this table is that Mr Fletcher offered a price better than the 100% Unitab market 5 times out of 10 and offered a price worse than the 100% Unitab market 5 times out of 10.
[11] Exhibit 5 supra page 20 paragraph 4.7.1.
We are urged to conclude, from the McMahon report that when considered over a 12 month period there is nothing unusual about Mr Fletcher’s betting pattern even though, in Queenland, all of the lay bets on the top 10 lays are mounts ridden by Mr El-Issa.
In deciding this issue on the basis that this is a circumstantial case, the question is whether we prefer the spread of bets over the 12 month period as a more accurate determination if one is to rely on statistical evidence, or whether we confine our consideration to the three month period as promoted by Racing Queensland through the evidence of Mr Birch.
There can be no doubt that the broader picture gives a more accurate reflection of Mr Fletcher’s betting habits. That picture is also consistent with Mr Fletcher’s innocence because it demonstrates that the bets layed on the El-Issa rides were not out of the ordinary for him. We accept Mr McMahon’s analysis which also supports this view.
Did Mr Fletcher make Mr El-Issa aware of his intention to back Essington and lay Bold Glance.
There is no direct evidence to support this contention other than Mr Fletcher’s denial.
We are urged to draw the inference from the ten top lay bets however for the reasons set out above we are not satisfied to the requisite standard that the inference is capable of being drawn.
Were Mr Fletcher and Mr El-Issa close associates?
We need say little more about this to what was said in paragraph 21 above. Once again there is no evidence to support the conclusion contended for. At best the relationship was one of a casual nature and the fact that Mr Fletcher is a professional punter and Mr El-Issa is a jockey does not lead to an inference that they were close associates.
Conclusion
The difficulty with the position taken by Racing Queensland is that there is no other probative evidence other than the inferences to be drawn from Mr Fletcher’s betting pattern in Queensland to establish an association between himself and Mr El-Issa leading to a conclusion of fraud or corruption. There are no admissions of any association other than telephone contact from time to time to talk about family issues, there are no phone records to support recent contact proximate to the event in question, there is simply no hard evidence, and Racing Queensland concedes this, to establish a relationship of the kind where Mr Fletcher knew that Mr El-Issa was not going to ride Bold Glance on its merits, so he could then lay Bold Glance and bet on Essington. It is certainly coincidental that this pattern has emerged and, although one can be suspicious, given the standard of proof required where such serious charges are laid, more is necessary.
By contrast, if we were to accept the statistical evidence of Mr McMahon then the coincidental nature of the relationship establishes a pattern of betting which is consistent with innocence or, alternatively a failure to discharge the onus of proof to establish a relationship of corruption and fraud.
Coupled with this, we also take into account Mr Fletcher’s immediate cooperation with the Stewards. He effectively volunteered all the information that he could to support his contention that not only does he bet on horses ridden by Mr El-Issa but horses also consistently ridden by other jockeys in other jurisdictions. The strike rate is not as impressive as that with Mr El-Issa but what it does show, is that there is a pattern adopted by him consistent with that which he adopted with Mr El-Issa.
Despite Racing Queensland’s suspicions, and the coincidental nature of the relationship resulting in profits for Mr Fletcher, we cannot be satisfied the evidence produced by Racing Queensland is so compelling to establish to our reasonable satisfaction that there was a relationship between these two gentlemen resulting in a conspiracy to fix a race for Mr Fletcher’s profit.
We therefore propose to set aside the decision and order that the charge be dismissed.
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