Harrison v Queensland Racing Limited
[2011] QCAT 265
•8 June 2011
| CITATION: | Harrison v Queensland Racing Limited [2011] QCAT 265 |
| PARTIES: | Gail Harrison |
| v | |
| Queensland Racing Limited |
| APPLICATION NUMBER: | OCR300-10 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 8 April 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | Mr Brock Miller, Presiding Member Ms Sandra Deane, Member |
| DELIVERED ON: | 8 June 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application to review is upheld. |
| CATCHWORDS: | Application for review by trainer – Australian Rules of Racing AR.175(gg) – False and misleading statement arising during the course of an investigation of a complaint and earlier charge which was dismissed – Review of decision of First Level Appeals Committee to impose a fine –Conflict of Evidence – accuser not made available to be cross examined in person – Onus of proof – review allowed |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Gail Harrison |
| RESPONDENT: | Mr A J Orchard |
REASONS FOR DECISION
Gail Harrison is a licensed trainer who was the subject of an inquiry instituted by the stewards of Queensland Racing Limited into various matters that involve the Lease of the thoroughbred racehorse Piccolotto. It appears that a part owner of the horse a Mr John Lauder made a complaint to Racing Queensland in relation to a lease agreement that he believed had been entered into with Gail Harrison on or about 24 October 2009. The complaint alleged that the rental percentage on the lease was 331/3% gross value and that the Lease had a special clause of ⅓ of prize money over $1,000.00 but that the rental percentage had been altered to read 20% nett value and the special clause altered to 1/20 of prize money over $1,000.00.
As was appropriate senior stipendiary steward/investigator Paul John McIlveen made enquiries and obtained a faxed copy of the Lease for the horse in question. A copy of the Lease Agreement or pages 2 and 3 thereof were obtained confirming that the Lease was to commence on 24 October 2009 and to expire on 24 October 2010. The Agreement was apparently received for registration by the appropriate authority Queensland Racing on 14 January 2010 and there are some areas of the document particularly on page 2 that have either been changed or written over.
The Lease is signed by John W Lauder as the lessor and by three parties as lessee. Those lessees are Tarryn Harrison, Aliece Harrison and Kori Herman. The trainer Gail Harrison’s name does not appear on the Lease document.
During the investigation a statement was obtained from Lisa Maher who was the Registrar Thoroughbred Racing. Ms Maher confirmed that on 2 July 2010 she was asked to make some preliminary enquiries into the Agreement of the racehorse and located this Agreement and identified it as being a faxed document and observed that the rental percentage read 20% and that the gross and the net value had both been crossed out. She said that the net had been circled and an initial appeared beside this word indicating that this was the applicable value. Ms Maher observed on the special clause that the word read 1/20 of prize money over $1,000.00 but recalled that she wrote in pencil under that word twentieth the numeral 20th because in her opinion the word twentieth was unclear and hard to read. Ms Maher observed that the Lease Agreement had been receipted by her on 14 January 2010 which indicated to her the Lease was either faxed to Queensland Racing either late on 13 January or on 14 January.
A statement was also obtained from Phillip Pengelly who is a licensed horse trainer and who knew Gail Harrison well. Mr Pengelly identified that on 22 October 2009 a horse in which he was a part owner namely Piccolotto had raced at the Ipswich Races and finished a distant last and was the subject of a ban being placed upon him by stewards. He recalled that Mr John Lauder who was the other part owner of the horse discussed with him that the horse was not worth persevering with and later that day (22 October 2009) he alleges a discussion took place with Gail Harrison to identify that she could lease the horse if she was interested. It was noted that this conversation took place in the horse stalls near the Caloundra Racecourse. According to Mr Pengelly, Ms Harrison agreed to take the lease of the horse and Mr Pengelly recalls that a Lease Agreement was later obtained from the Caloundra Raceday Office to be completed. It is of some significance that the actual time or the actual date on which this Agreement was obtained was not recalled. In any event Mr Pengelly said that he completed the top part of the Lease which included the name of the horse, the commencement and expiry date of the Lease and the rental percentage of the Lease and he confirmed that he crossed out the word net and left the word gross.
He confirmed that he was aware that the horse had started on a number of occasions since the horse was leased on or about 24 October 2009 and he was surprised that he had received no payment. He confirmed in the statement that he was under the impression when the Lease was signed by John Lauder and given to Gail Harrison that Gail Harrison was to be the lessee and noted at the time that John Lauder handed the Lease to Gail Harrison but that he did not see her sign the Lease.
The foregoing is a brief synopsis of what occurred leading up to charges being levelled against Mrs Harrison under AR175(a) which states:
The committee of any club or the stewards may penalise any person, who, in their opinion, has been guilty of any dishonest, corrupt, fraudulent, improper or dishonourable action or practice in connection with racing.
That charge was initiated on Monday 20 September 2010 during the course of an Inquiry opened on that date. The specifics of that charge were noted on page 2 of the transcript of proceedings as:
That between 23 October 2009 and 15 January 2010 at Caloundra or elsewhere you breached the abovementioned rule in that you were a party to the fraudulent action of altering the Lease Agreement of the racehorse Piccolotto by changing the rental percentage and the special clauses additional requirement on the Lease Agreement.
Mrs Harrison was asked whether she understood those specifics and it was after her confirmation that she did that she pleaded not guilty to the charge in question.
In the interview between Harrison and McIlveen there is agreement without doubt that the horse did race at Ipswich on 22 October. McIlveen indicated he was told by Pengelly that he Pengelly went to the stables at Caloundra and obtained the Lease from the Caloundra Raceday Office. Mrs Harrison however suggests that she retrieved the Lease by use of the internet and that she got someone to get the form by use of a computer. She alleges categorically that there was no contact with her from either Pengelly or Lauder on the day on which the horse raced at Ipswich namely 22 October. Mrs Harrison alleges she was in Caloundra and it may well have been possible that they saw her but it was not on that date. There is a suggestion that the owners of the horse were in contact personally with her on Saturday 24 October but she has categorically denied that she was even present at Caloundra on that date as she was undertaking work for the First Home Group.
Mrs Harrison confirmed that she objected to the suggestion that 33% of prize money be paid to the owners. She accepts that that percentage may have been entered upon the Lease but confirmed that such a percentage was much too high in all of the circumstances. She alleges that Mr Pengelly had taken the Lease with him and that she had not retained a copy. There is certainly some considerable doubt about the efficacy of the dates. What is beyond dispute is that Queensland Racing only received the copy on 14 January. The transcript of interview between McIlveen and Harrison on pages 21 and 22 raises various details as to discussions that took place between Mrs Harrison and Pengelly. What she is specific about is that as far as she was aware neither of her daughters nor Kori Herman changed the rental percentage noted in the Lease.
[10] She denies that she had changed the rental percentage. She said she had no knowledge of either of her daughters or Kori doing likewise and said that she personally never changed anything to do with the special clause. She did not understand how it can be 1/20 as she stipulated that 1/20 is equivalent to 5% and she had agreed to either pay 20 or 25% but not 331/3%.
[11] The Tribunal has considered the page of the Lease that was in the possession of Queensland Racing. There seems to be some considerable doubt about firstly the figures that were noted thereon and secondly who in fact may have put those figures in the document. Of course the investigation by the stewards seems to have identified that only Mrs Harrison could have done so something that she totally disputes.
[12] Undoubtedly an argument developed between Mr Pengelly and Mrs Harrison because no money had ever been placed into the account of Pengelly. It appears that on Thursday 8 July 2010 he spoke to Paul McIlveen and confirmed that he had never received any payment from the horse earning any prize money whatever. He did say that he recalled that Gail Harrison informed him that she would get around to putting the money into his account but that no deposit had yet been made. What concerns this Tribunal is that the complaint emanated because no monies were paid into his account. The difficulty is that in paragraph 8 of his Statement he confirmed that he had relinquished ownership of the horse to John Lauder. One therefore wonders why he ever expected monies to be paid to his account. It is a matter of fact however that a payment was made to Pengelly’s account on 7 July 2010 and it appears therefore fairly obvious that Mrs Harrison was still of the opinion that Pengelly was noted as an owner. There is no doubt considerable confusion between Pengelly and Harrison as to the date upon which all of the enquiries and discussions took place and also as to when the Lease was signed and confirmed. There seems no doubt that the Lease document that was faxed to Queensland Racing was faxed significantly later than the date upon which the Lease commenced. Whoever had that Lease document appears never to have bothered to register the formality of the change in interest in the horse in question. One cannot identify the reason for that to have occurred but there appears no benefit could have been gained by Mrs Harrison being the cause of any delay.
[13] Throughout the transcript there were numerous references to conversations about the horse in question being subject to a bar having been imposed upon it by stewards and also about whether the horse had been in full working condition or whether it had simply remained in the stable. It appears that Pengelly had left some feed for the horse over a period and that Mrs Harrison had supplemented that feed. What is significant is that Mrs Harrison says that she did not backdate the Lease and that frankly she took no notice of what was noted on the Lease because it was not involving her. She stipulates that the Lease was faxed by Kori Herman from the business premises at which she worked. She states that Pengelly was present at the time but he disputes this. Herman also states that Pengelly was present.
[14] The investigating stewards have gone to considerable lengths to identify all of the steps that had been taken by all of the parties but at no point in time was Pengelly present for the purposes of Mrs Harrison being able to question him other than upon the telephone. Frankly the Tribunal finds that a most unsatisfactory system particularly when an allegation of fraud is being made against the parties in question.
[15] There is another disturbing issue that had arisen that relates to the length of time that passed from when the horse last started at Ipswich to when the investigation commenced and then was finally completed. The Transcript of Proceedings from 20 September 2010 creates a different perspective altogether to that which was suggested by Mr Pengelly. On page 8, line 38 Mrs Harrison confirmed the horse had been in her stables from the Sunday 27 October 2009 and was questioned then about the three month delay that resulted before the Lease paper was faxed to Queensland Racing. She of course confirmed that she could not do anything with the horse because it had been barred. She had to try and get it fit and get it passed – line 10, page 9. She confirmed that she fed the horse but was not paid for that and over the period of time food was provided by Pengelly and by her. The transcript then embarks on an investigation into who had various pages of the Lease and for what purposes. Certainly Mrs Harrison was questioned thoroughly as were the lessees noted on the Lease but the same thorough questioning was not made of either Mr Pengelly or Mr Lauder. The reasons for that omission are not apparent to this Tribunal.
[16] The investigating stewards seem to have been satisfied that it was Mrs Harrison who had undertaken the alterations and that Ms Herman had falsely supported her contention. As a result they were both convicted of the charges levelled against them.
[17] Mrs Harrison lodged an appeal to the First Level Appeal Committee which was heard on 14 October 2010. The transcript of that Proceeding numbered 19 pages. Interestingly the decision of that appeals committee noted that the committee has been required to limit itself to the very specific charge of AR175(gg) in relation to a “false or misleading statement”. That false or misleading statement specifically related to a statement by the appellant to Senior Steward Paul McIlveen, that Philip Pengelly attended Reef Homes at Caloundra on 14 January 2010.
[18] The Committee opined that it had been at great pains to remove itself from considering previous charges but that the current charge arose as a result of investigations in relation to a previous charge under AR175(a) which had been dismissed.
[19] Of significant concern to this Tribunal is the supposed limitation imposed on the Appeals Committee that it should not look into the other charges that had been levelled. Those charges are integral to this charge because the other charges relate to the specific association between Harrison, Pengelly, Lauder and the lessees and the manner in which the Lease of the horse was eventually completed. The Appeals Committee confirmed the appellant continued to assert that Mr Pengelly had attended Reef Homes on 14 January – the day which the Lease document was submitted to Queensland Racing. Both Mrs Harrison and Miss Herman confirmed their belief that that was the day on which Mr Pengelly attended. The Appeals Committee suggested such evidence does not assist the appellant’s case because there are variations and conflicting evidence as to when the pages were signed. The real difficultly with that suggestion is that the conflicting evidence stems from the statements provided by Mr Pengelly. The issue in respect to the date namely 14 January is not, in the opinion of this Tribunal the sole and significant factor. No-one appears to know when the document was signed or where all the pages were at any one point in time. What is significant is that the Lease was faxed on or about 14 January. If the recollections of parties as to dates are clouded or in doubt then the delay in time must, of necessity, be considered for the purposes of explanation.
[20] Mrs Harrison confirms that she had witnesses with her at the First Level Appeals Committee that could confirm that what she said was correct. The Chairman confirmed on page 6 that he did not propose to call any witnesses and opined I’m not sure about our ability to call outside witnesses without notice on the day. There were witnesses present and one of them was a girl who had also been present at the time it is alleged Mr Pengelly was present in Caloundra. This girl was not called to give evidence and that, in the opinion of this Tribunal, is a serious oversight.
[21] Mr Birch in his address to the First Level Appeals Committee agreed the charge in question was to stand independent from that regarding changing a Lease document but he confirmed that this charge is – stems directly from that in that in attempting to evade that charge, a continuous web of lies have been told by Gail Harrison, Kori Herman, Tarryn Harrison and Aliece Harrison, and I will be able to show the Committee that the evidence taken from ….is in such conflict, and the answers provided to questions asked by the stewards so evasive, that their evidence cannot at all be relied upon. Mr Birch went further to confirm that on the other hand Mr Pengelly’s evidence has remained consistent in regards to his whereabouts from the period of January – 9 January – through to the latter stages of January and furthermore, he has provided his personal mobile phone records showing that he’s in Gladstone for the period that its alleged he visited Reef Homes in Caloundra.
[22] Mr Birch then provided the First Level Appeals Committee with references to various areas of the statements of the witnesses and passages in the transcript that he said significantly raised a doubt as to how and when the Lease in question had been signed by Kori Herman and the other two lessees the daughters of Gail Harrison. He did this notwithstanding that the charges in relation to the operation and signing of the Lease had not been proved and had in fact been dismissed. Mr Birch went to great lengths to adduce evidence that he said supported the steward’s contention that there was a conspiracy to lie that had been fabricated between Kori Herman and Mrs Harrison.
[23] The First Level Appeals Committee were placed in an invidious position. They were presented with excerpts from statements and from transcripts that Mr Birch suggested raised different versions. Even Mr Birch raised with the Committee members the fact that he was confused and the reason for his confusion was because of the disjointed manner in which the evidence had been adduced previously and in his presentation to the First Level Appeals Committee of differing excerpts of that evidence. The confusion was compounded by his reference to a sworn legal document that he suggested to the First Level Appeals Committee should be given preference over testimony and statements of three other witnesses. The statement by Pengelly was not a statutory declaration.
[24] The Chairman of the First Level Appeals Committee and Mrs Harrison on pages 14 and 15 of the transcript of proceedings raised the issue that the main charge levelled against her had been dismissed but that information obtained during the course of investigation of that charge became the basis for the current charge namely that she alleged that Pengelly was present at Reef Homes on 14 January or at least on a day when a document was faxed. It seems that the Committee members believe they were entitled to allude to evidence given in respect to charges that had been dismissed and to use that evidence to find there was guilt in respect to a statement as to the presence of an individual person. That could well be true but in circumstances such as this where there has been such a conflict not only in respect to the witnesses of Mrs Harrison but also in respect to the days or dates upon which the Lease was negotiated originally and subsequently then signed and faxed one surely must be circumspect. At no point in time did the Chairman of the First Level Appeals Committee seek to enquire from other parties who had been present and who were available.
[25] This Tribunal cannot, on the face of the evidence presented to the original Stewards Inquiry and to the First Levels Appeal Committee agree, as did the First Level Appeals Committee, that it is more probable than not that Mr Pengelly did not attend Reef Homes on 14 January 2010. The evidence that was given simply raises significant doubt and it is dangerous for a final and unequivocal determination as to dates to be made when such doubt is manifest not only in statement form but on evidence given before the Inquiry.
[26] In our opinion the First Levels Appeals Committee erred in preferring the evidence of Mr Pengelly. It did not adequately review the evidence of the other witnesses at the stewards’ enquiries. Had it done so there would have been an acceptance that there was delay and inaccuracies but those inaccuracies were not, in the opinion of this Tribunal, sufficient for the First Level Appeals Committee to determine that, on the balance of probabilities, Mr Pengelly’s evidence warranted acceptance over that of Kori Herman, Gail Harrison and the other witnesses.
[27] The Tribunal is of the opinion that the conviction cannot stand. The First Level Appeals Committee correctly opined that the charge had only to be proven on the balance of probability. This is so notwithstanding that the allegations raise the spectre of fraud. This Tribunal has considered whether the onus of proof has been properly discharged. It is not so satisfied. It is of the opinion that there is insufficient evidence to support such a finding of guilt.
[28] In the circumstances this Review must be allowed and the deposits paid in respect to the appeals must be refunded.
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