Green v Racing Queensland - [2012] QCAT 415

CITATION:

Green v Racing Queensland [2012] QCAT 415

PARTIES:	Hayden Green (Applicant)
v
Racing Queensland (Respondent)

APPLICATION NUMBER:

OCR247-12

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

22 August 2012

HEARD AT:

Brisbane

DECISION OF:

Richard Oliver, Senior Member

DELIVERED ON:

3 September 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The decision of the respondent is confirmed.

CATCHWORDS:

Racing – where applicant breached Australian Harness Racing Rule 149(1) by not ensuring his horse was given full opportunity to win or obtain the best possible place in the field – where assumption the race was won – where horse not driven to the finishing line with vigour when another horse was in contention – integrity of harness racing considered

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Racing Queensland was represented by Mr Farquahson

RESPONDENT:

Mr Hooper was represented by Mr Neaves of counsel

REASONS FOR DECISION

On 25 June 2012 Mr Green was the driver of Street Safe which competed in race 2 at the Redcliffe Raceway. Street Safe placed second in the race to African Sun.
Stewards who observed the race were critical of Mr Green’s drive of Street Safe and convened an inquiry immediately after the race. The point of their concern was that as the horses came in to the home straight, Street Safe was running behind African Sun and as he continued down the straight, African Sun moved to the outside leaving Street Safe in the sprint lane with a clear and unencumbered run to the finishing post. Street Safe edged past African Sun but then Mr Green did not drive Street Safe on to the finishing post. As the horses approached the finishing post African Sun, being driven hard by Ms Johnson, edged past Street Safe to win the race.
Stewards then charged Mr Green with a breach of Australian Harness Racing Rules 149(1) which is as follows:
“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.”
Being satisfied that Mr Green had breached the rule, Stewards imposed a penalty of a six month suspension.
On 26 July 2012 Mr Green filed an application to review the Stewards’ decision. Although Mr Green accepted that he had breached the rule he contends that the penalty involved was manifestly excessive. He says that Stewards did not give sufficient weight to mitigating factors and asked the Tribunal to review the decision of penalty.
The Tribunal’s function on a review application is to produce the correct and preferable decision by way of a fresh hearing on the merits.[1]
[1] QCAT Act, s 20.
During the course of the hearing the DVD of the race was shown several times. It is evident from that vision that once Street Safe took the lead from African Sun in the straight Mr Green made little or no effort to continue to drive the horse to the finishing post.
Mr Green’s contention on the review application is that even if six months suspension is an appropriate penalty for his conduct, the penalty must be reduced because of the mitigating factors applicable to the circumstances of his case. It is apparent from reading the transcript of the inquiry that Mr Green cooperated throughout with the Stewards. Mr Green freely admits that after he passed African Sun he thought he had the race won and did not urge the horse on to the finishing post.
He also says that he was not acutely aware of African Sun’s position because his vision through this visor was obscured from the wet conditions on the track. As he followed African Sun into the straight there is a reasonable expectation that there would have been some mud splashes on his visor. However, if his vision was impaired, and he could not see where the other horses were it was even more incumbent upon him to keep driving Street Safe vigorously to the finishing line to ensure he gave his horse the best possible opportunity to win or place.
He also acknowledges that his conduct amounted to a serious error of judgment. I have some reservations as to whether this can be regarded as an error of judgement in the circumstances. Generally speaking, an error of judgement occurs during a race where a driver might have various options available but, in the heat of the moment, chooses the wrong option. That did not happen here. Mr Green had one option and one option only and that was to ensure that his horse was driven to the finishing line with as much vigour and enthusiasm as would be expected to ensure the horse placed in the best possible position. He does not have the luxury to exercise complacency in circumstances where African Sun was clearly in contention and always within his peripheral vision. Certainly it was a mistake on his part to relax after he took the lead but I do not think that could be classified as an error of judgement.
Mr Green is a concession driver. He has been driving now for four years and has sufficient experience to understand his obligations to the horse’s connections and the public generally. It is his responsibility to know the rules and to use his best endeavours to ensure the horse achieves the best possible place in the field. This is particularly so when the horse is in contention and obviously been threatened by another horse. In those four years Mr Green’s driving record has not been blemished although he did serve a period of disqualification for a presentation charge for a horse he was responsible for training.
His good character has been confirmed by a number of references that have been provided to the Tribunal. These include references from the trainer of the horse, Mr Johnson, and also from his daughter who drove African Sun. Ms Johnson gives an account of the race from her perspective but once again it is important to stress that this does not relieve Mr Green of his responsibilities as a driver.
An important consideration from the harness racing industry’s perspective is the appearance of two horses coming down the straight to the finish line with one driver simply, as it were, coasting along and losing albeit by a small margin. This type of conduct does have the consequence of bringing the sport into disrepute and must be curtailed.
I have come to the view that Mr Green’s conduct is at the higher end of the scale for a breach of 149(1) and although the penalty imposed of six months suspension is also at the higher end of the range of penalties that might be imposed, I see no reason to interfere with the Stewards’ decision. Mr Neaves, for the applicant, referred me to the case of Mitchell Reece, a decision of the New South Wales Racing Appeals Tribunal. In that case, the driver, Mr Reece, made a tactical error by driving the horse too hard in the early stages of the race. The effect of that was that the horse, Red Cruiser, “compounded badly” from the 600 metre mark and was then beaten by 66 metres. Mr Reece pleaded guilty to the charge and the Appeal Tribunal reduced the penalty from 8 weeks to 6 weeks. It also seems that there was some confusion about Mr Reece’s instructions to hold the lead if he could.
The Appeal Tribunal expressed caution, as I do, with the difficulties of applying a rule like 149(1). One has to be careful not to judge the circumstances in hindsight when decisions are made quickly and which may be inappropriate at the time. As I have already alluded to, that is not the case here, all Mr Green had to do was to keep his horse moving forward to cross the finishing line to ensure the best possible placing in the field. That is something he did not do and did not do it consciously. The Reece decision is of little help in the circumstances.
I propose to confirm the Stewards’ decision that Mr Green be suspended for a period of six months.