Julien v Racing Penalties Appeals Tribunal of Western Australia
[2001] WASCA 345
•6 NOVEMBER 2001
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE FULL COURT (WA)
CITATION: JULIEN -v- RACING PENALTIES APPEALS TRIBUNAL OF WESTERN AUSTRALIA & ANOR [2001] WASCA 345
CORAM: MALCOLM CJ
WALLWORK J
OWEN J
HEARD: 12 JUNE 2001
DELIVERED : 6 NOVEMBER 2001
FILE NO/S: CIV 2122 of 2000
MATTER :Application for a Writ of Certiorari against the Racing Penalties Tribunal of Western Australia
BETWEEN: MAXWELL JOHN JULIEN
Applicant
AND
RACING PENALTIES APPEALS TRIBUNAL OF WESTERN AUSTRALIA
First RespondentWESTERN AUSTRALIAN GREYHOUND RACING AUTHORITY STEWARDS
Second Respondent
Catchwords:
Associations and clubs - Greyhound Racing Authority Stewards - Greyhound presented to compete with excess drug level - Application for writ of certiorari to quash decision of Racing Penalties Appeal Tribunal of WA dismissing an appeal against decision of Stewards to find applicant guilty as charged - Whether Tribunal erred in law in not finding that there was a reasonable apprehension of bias on the part of the Stewards who conducted the first inquiry conducting a second inquiry after an earlier appeal to the Tribunal - Stewards had earlier made adverse findings regarding the applicant's credibility and that of his witness
Legislation:
Greyhound Racing Rules 1973, r 234(7)
Western Australian Greyhound Racing Authority Act 1981 (WA), s 6, s 7B
Result:
Order nisi discharged
Category: A
Representation:
Counsel:
Applicant: Mr R E Birmingham QC & Ms D J Davies
First Respondent : No appearance
Second Respondent : Mr R J Davies QC & Mr J M Woodhouse
Solicitors:
Applicant: D G Price & Co
First Respondent : No appearance
Second Respondent : Watts & Woodhouse
Case(s) referred to in judgment(s):
Australian National Securities Industry Ltd v Spedley Securities & Ors (1992) 26 NSWLR 411
Grassby v The Queen (1989) 168 CLR 1
Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378
Jones v Dunkel (1959) 101 CLR 298
Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70
Livesey v New South Wales Bar Association (1983) 151 CLR 288
Maloney v New South Wales National Coursing Association Ltd [1978] 1 NSWLR 161
Maynard v Racing Penalties Tribunal (1994) 11 WAR 1
Re Finance Sector Union of Australia; Ex parte Illaton Pty Ltd (1992) 107 ALR 581
Ridge v Baldwin [1964] AC 40
Stampalia v The Racing Penalties Appeal Tribunal of Western Australia & Ors [2000] WASCA 24
Stollery v Greyhound Racing Control Board (1972) 128 CLR 509
Thomson v British Medical Association, New South Wales Branch (1924) AC 764
Vakauta v Kelly (1989) 167 CLR 568
Case(s) also cited:
Nil
MALCOLM CJ: This is the return of an order nisi made by Ipp J dated 4 September 2000 by which it was ordered that:
1.The first respondent, the Racing Penalties Appeals Tribunal of Western Australia ("the Tribunal"), show cause before the Full Court why a writ of certiorari should not be issued to quash the decision of the Tribunal made on 12 July 2000 whereby the Tribunal dismissed the applicant's appeal against conviction of a breach of r 234(7) of the Greyhound Racing Rules 1973 ("the 1973 Rules") on the ground that the Tribunal made an error of law on the face of the record in that in its written reasons for decision the Tribunal:
(1)erred in law in finding that as at 14 October 1999 it was open to the second respondent, the Western Australian Greyhound Racing Authority Stewards ("the Stewards") to find the applicant guilty of a breach of r 234(7) of the 1973 Rules when the 1973 Rules had been repealed on 1 January 1999;
(2)erred in law in not finding that there was a reasonable apprehension of bias on the part of the stewards who conducted the inquiry between August and October 1999 in that:
(i)a panel of Stewards had conducted an inquiry between November 1999 and January 2000 ("the first inquiry") in respect of the same incidents and the same charge against the applicant and had found the applicant guilty as charged;
(ii)in the course of finding the applicant guilty as charged the panel of Stewards at the first inquiry made findings adverse to the credit of the applicant and his witnesses;
(iii)the applicant appealed against the decision made at the first inquiry to the Tribunal and the decision of the Stewards was quashed in a decision which contained criticisms of the approach taken by the Stewards at the first inquiry;
(iv)at the hearing of the appeal against the decision made at the first inquiry, the Chief Steward, who was a member of the panel of the Stewards who conducted that inquiry, gave evidence on behalf of the Stewards and was cross‑examined as to his credit by counsel for the applicant;
(v)on allowing the appeal, the Tribunal sent the matter back to the Stewards for re‑determination; and
(vi)the Stewards appointed the same panel of stewards to re‑determine the matter as had conducted the first inquiry, which panel included the Chief Steward.
It was also ordered that there be a stay of the penalty imposed on the applicant pending the determination of this application by this Court.
At the outset of the hearing before this Court, the applicant abandoned ground (1). As to ground (2), the applicant's case was in fact that the Tribunal erred in law in not finding that there was a reasonable apprehension of bias on the part of the Stewards who conducted the inquiry between November 1999 and January 2000, in that the same panel of Stewards had previously conducted an inquiry in respect of the same incident and the same charge between August and October 1999 and had found the applicant guilty as charged. It was in the course of that first inquiry that the Stewards had made findings adverse to the credit of the applicant and his witnesses.
In the result, the only issue in these proceedings is whether the decision of the Tribunal on the second appeal should be quashed on the ground that the Tribunal made an error of law in concluding that there was no reasonable apprehension of bias on the part of the applicant in relation to the conduct of the second inquiry between November 1999 and January 2000.
Background
The applicant is registered as an owner and trainer with the Western Australian Greyhound Racing Authority ("the Authority"). The Authority is constituted under the Western Australian Greyhound Racing Authority Act 1981 (WA) ("the Act"). While the Authority is a statutory authority, s 6 of the Act provides that the Authority does not represent, and is not a servant or agent of, the Crown. The Authority is empowered by s 7B(1) of the Act to make "rules of racing". The rules of racing may, among other things, provide for the imposition of penalties of up to $5,000 and non‑pecuniary penalties for breaches of the rules of racing and set out the powers and duties of stewards and other officers, employees and agents of the Authority: s 7B(2)(b)(c). The Authority was also empowered by s 7B(2)(c), subject to the Racing Penalties (Appeals) Act 1990, to provide for appeals to the Tribunal from decisions made by the Stewards. The latter Act constituted the Tribunal. It was common ground that an appeal lay from the decisions of the Stewards in this case to the Tribunal.
On 23 November 1998 the Stewards opened an inquiry into a report received from the Australian Racing Forensic Laboratory confirming the presence of caffeine, theophylline and theobromine, which were detected in a urine sample taken from the greyhound PROMENADE after competing in Race 8 at Cannington Greyhounds on 13 October 1998. The inquiry was described by the Tribunal as "a protracted affair" and involved hearings on 14 December 1998 and 13 and 20 January 1999.
Towards the end of the inquiry the applicant was charged with a breach of r 234(7) of the 1973 Rules. Rule 234(7) relevantly provides that:
"A person may be found to be guilty of the breach of any provision of these Rules not specified in this rule, but without prejudice to the generality of that liability, a person who -
…
(7)had at any relevant time the charge or control of a greyhound brought to compete in a race or a qualifying trial which is found by the stewards to have had any apparatus used upon it, or any drug, stimulant or deleterious substance administered to it, for any improper purpose;
…
commits a breach of these Rules."
The charge against the applicant was that:
"... you, Mr Julien as the Trainer, had control of the greyhound PROMENADE when it was brought to compete in Race 8 run over 530 metres at Cannington Greyhounds on 13 October 1998 and upon analysis the greyhound was found by the Stewards to contain the stimulant caffeine; theophylline and theobromine having been administered to it for an improper purpose."
The applicant was ultimately convicted on 20 January 1999 and disqualified for a period of nine months.
PROMENADE won the Maiden Stakes race for which it had been entered at Cannington Greyhounds on 13 October 1998. In the course of their findings at the first inquiry, the Stewards made adverse findings regarding the evidence of the applicant and his wife regarding the circumstances under which the dog PROMENADE had ingested the caffeine. It was the applicant's contention that the dog had ingested the caffeine from coffee beans that had come out of bags that were used in the bedding for the dogs. Many of these bags had apparently been used for the purpose of transporting coffee beans. The used bags are opened, emptied and filled with foam and then used as bedding. The evidence was that the applicant had brought into Western Australia several pallet loads of these bags and distributed them to other greyhound owners. The applicant was unable to give any real explanation how the dog ingested caffeine, but the applicant's wife explained that she had swept some of the coffee beans out of the kennel. It was suggested that the dog must have accidentally ingested one or more coffee beans. The Stewards did not accept the applicant's explanation or the evidence from his wife. She had not told the applicant about this incident. This was the explanation for the absence of any knowledge by the applicant for the presence of caffeine in the dog. The applicant appealed to the Tribunal against the decision of the Stewards. That appeal was successful and the matter referred back to the Stewards for a re‑hearing. The Stewards again found the applicant guilty. There was a further appeal to the Tribunal from that decision on a number of grounds including a ground that, because the re‑hearing had been conducted by the same Stewards who had conducted the first hearing, the applicant had a reasonable apprehension of bias on the part of those Stewards, so that the decision should be quashed. That appeal was dismissed. Notwithstanding the unsuccessful appeal to the Tribunal on the merits, the applicant would not be taken to have waived other judicial remedies which may be available, whether by way of certiorari, declaration or otherwise: Ridge v Baldwin [1964] AC 40. The Stewards made adverse findings regarding the credit of both the applicant and Mrs Julien.
Findings by Stewards at First Hearing
After the first hearing, the Stewards made the following detailed findings on 20 January 1999:
"The Stewards have carefully considered all the evidence presented through the course of what has been an extensive inquiry. You, with the assistance of Mrs Julien, have put forward to us a number of possibilities as to how the caffeine, theophylline and theobromine have appeared in the urine sample, some of which are of little relevance in determining the matter. At the outset of this inquiry your explanation for the presence of caffeine, theophylline and theobromine in the urine sample taken from PROMENADE on 13 October 1998 was that the greyhound may have consumed coffee beans as a result of Mrs Julien placing hessian sacks which contained coffee beans in PROMENADE's kennel. You initially went to great pains to present evidence to this panel that would support this proposition. Part of this evidence involved a demonstration before this panel where you randomly removed two hessian sacks from a pile of uncleaned sacks and proceeded to empty the contents onto the floor. Having witnessed first hand your demonstration it was immediately apparent to us that the bags contained such a quantity of beans that they could be heard rattling in the bag as soon as you picked it up. We therefore have some difficulty in accepting that Mrs Julien would proceed to place at least four such sacks into a racing greyhound's kennel and not notice there were beans in them. We find that the series of events surrounding this explanation is difficult to accept. In the process of clarifying this evidence several areas of concern were raised and your explanations were less than convincing. There is no firm evidence which states when PROMENADE consumed the beans, how much it consumed or in fact whether any were consumed at all. It is also illogical to us that Mrs Julien, who is fully aware that the bags are not supposed to contain coffee beans were being placed into a greyhound's kennel, finds coffee beans in a racing greyhound's kennel, is concerned enough to sweep the kennel out, but does not check the rest of the bags for contamination and makes no mention of the incident at all to the trainer of the greyhound. From this point the coffee beans are said to have remained in the greyhound's kennel up until the time that the stewards notified Mr Julien of the return of the urine sample. It is offered that once you were aware of the irregularity you soon became aware of this unlikely chain of events in regard to the coffee bags. You were so concerned that at 5.30 am on the 5 November 1998, the morning after becoming aware of this, you contacted Mr Glenny to warn him about this problem. You, however, were apparently not concerned enough to conduct a thorough examination of your own kennels. This is said to result in you withdrawing two of your three greyhounds from their engagements at Mandurah on 9 November 1998. Astonishingly, these withdrawals did not include the greyhound concerned namely PROMENADE. After questioning you about these withdrawals (pages 69-74) we find your answers are most unsatisfactory and illogical. It would appear that if you genuinely believed that the greyhound PROMENADE had consumed coffee beans as described by you, then it would follow that if any greyhound had to be withdrawn it should have been PROMENADE. You have stated on page 70 that the reason you left PROMENADE in the race was because she had the red box and wanted to see what she could run without the assistance of coffee beans or whatever. We find it hard to believe that a trainer of your experience, who according to your evidence was of the belief that coffee beans may have been ingested by your racing greyhounds, would run the risk of making a and I quote … 'bad error of judgment' and race the greyhound. Following the laying of the charge and the resumption of the inquiry on the 14 December 1998 you appeared to come to the conclusion that the and I quote … 'coffee beans saga' (page 64) was not being accepted and you therefore decided to offer any possible explanation which could be used as a defense [sic] if required at some later stage (page 146). Given the circumstances of this case we are of the view that all submissions in relation to the use of anabolic steroids are of no assistance to this inquiry. Anabolic steroids are a complex issue, however, the same cannot be said about caffeine. What may or may not have occurred with other samples is irrelevant. After speaking with the analyst Mr Reilly, on two occasions, we are satisfied that PROMENADE's urine sample was analysed correctly. We have thoroughly considered your suggestion that the greyhound may have been improperly interfered with once arriving at Cannington. Having consideration of the security measures at Cannington, as well as your own evidence after viewing the security video and in particular the evidence of Mr O'Reilly which states that metabolites of caffeine do not appear in a sample until after six to seven hours following administration (page 37) we are satisfied that nothing occurred at Cannington which has produced this result. Having given due consideration to all matters raised by you and the evidence before us we find that there is no evidence to confirm that the caffeine, theophylline and theobromine was in fact introduced by any of these possibilities, they are no more than a series of conjectures. What the evidence shows is that you as the trainer of the greyhound PROMENADE had control of the greyhound when it was brought to compete at Cannington Greyhounds on 13 October 1998 and was found by the stewards upon analysis to contain the stimulant caffeine, theophylline and theobromine, administered to it for an improper purpose. On page 41 and 42 Dr Brigg states and I quote … 'Yeah, they're basically classed as stimulants' … 'Um … so as I said … that Xanthine compounds are basically stimulants and they have effects on three major organs the first one being the brain, it's a fairly potent stimulator of the sensory part of the brain so it makes the dog fairly excited … what will do is … is often override normal fatigue syndromes so the dog may be coming tired during the race, will still be fairly excited and it will keep going when it would normally get tired … it also has an stimulatory effect on the respiratory system so that breathing becomes more efficient and also has a stimulatory effect on the heart, it causes an increase in the heart rate, also an increase in the contraction of the heart and an increase in the blood flow around the heart vessels, so it makes the heart pump more efficiently and this combined with the effect on the respiration system means that there's a better flow of oxygen to tissues and for these three effects … that's why it's a pretty lethal substance in racing because it can have a performance enhancing effect on a dog.'
This satisfies us that in the absence of any other evidence, the only inference which is open to the stewards after considering our findings is that the administration of the caffeine, theophylline and theobromine could have only been for an improper purpose. We are therefore satisfied that all the components of Rule 234(7) have been made out and accordingly we find you guilty as charged.
We shall now proceed to the consideration of a penalty as a result of the guilty findings made by us. You are entitled to call any evidence, produce any documents or make any submissions on the question of penalty. If you require time to prepare these submissions then you are entitled to make an application for an adjournment. Alternatively, the stewards may proceed in this matter immediately."
First Appeal to the Tribunal
The applicant appealed to the Tribunal in April 1999. The appeal was heard on 6 April 1999. On 15 June 1999 the Tribunal unanimously allowed the appeal, quashed the conviction and remitted the matter to the Stewards for further determination in accordance with the reasons of the Tribunal. In upholding the appeal the Tribunal directed the Stewards to re‑determine the matter in the light of fresh evidence before the Tribunal and all other fresh material which the Stewards may elicit or which the applicant and Mrs Julien may wish to present.
Evidence of Mr Martins at the First Appeal to the Tribunal
The Chairman of the Stewards gave evidence at the appeal to the Tribunal. He said that, following the receipt of the report of the urine sample from PROMENADE, he had the control and conduct of the investigation into this matter. The applicant had raised the explanation about the coffee beans being the source of the caffeine on 7 January 1999. Mr Martins approached a Mr Lee, a greyhound owner who had engaged the applicant as a trainer. He asked Mr Lee whether he knew if the applicant had any substances or drugs on his property. Mr Lee was unable to provide any assistance.
The grounds of appeal to the Tribunal were:
"1.The Stewards were wrong in law in finding the charge proved insofar as there was no evidence that the caffeine had been administered to the greyhound Promenade within the meaning of Rule 234(7) of the Rules. The Stewards should have found on the evidence that the ingestion of caffeine by Promenade was accidental.
2.The Stewards did not afford the Appellant natural justice or procedural fairness in that:-
(i)notwithstanding the request from the Appellant to view the place whereat the greyhound was kennelled and the bags containing the coffee beans were situated, the Stewards did not receive such evidence by the taking of a view;
(ii)they drew adverse inferences as to the credibility of the Appellant in relation to what could be heard when Mrs Julien placed the bags in the kennel without first putting such matter to the Appellant or Mrs Julien for explanation or giving the Appellant the opportunity to rebut any suggestion by evidence in respect thereof, namely:-
(a)that all bags did not have the same number of beans as those shown to the Tribunal;
(b)that the beans would not be heard unless the bags were shaken – the Appellant did not shake out the bags and in any event was not then aware that the bag being used had beans in it and had no reason to shake the bag;
(c)the influence of noise of radio and other dogs in the kennel.
(iii)they pre-judged the guilt of the Appellant without first waiting to hear all of the evidence and submissions to be adduced on the Appellant's behalf;
(iv)they declined the Appellant's request to have tests conducted to demonstrate that the ingestion of coffee beans could produce the result found by the Stewards and thereby support the Appellant's explanation;
(v)the Stewards found that it was illogical that Mrs Julien overlooked to inform the Appellant of noticing beans in the kennel when such matter was not put to her in evidence for explanation.
3.The Stewards misapprehended the evidence:-
(i)in finding that the Appellant's answers concerning the withdrawal of the greyhound Promenade from a race meeting at Mandurah on 9th November 1998 was unsatisfactory and illogical, such that any inference drawn as to the Appellant's account was wrong;
(ii)in relying on the Appellant's offer of other explanations as evidence of guilt. In offering explanations of the circumstances that were not known to the Appellant, the Stewards sought to rely on explanations proffered by the Appellant of an event to which he was unaware as being evidence of guilt;
(iii)of the Appellant's description of the circumstances surrounding the coffee beans as the 'coffee bean saga'. Such phrase was not a term of art nor intended to imply anything other than a frank explanation as to the circumstances such that any adverse inference drawn as to the Appellant's account of events was wrong.
4.The Stewards were wrong in finding that the only inference open was that the caffeine had been administered for an improper purpose. The Stewards having made no finding as to the circumstances in which the caffeine was found in the urine sample of the greyhound Promenade or how it had been administered, could not draw the inference contended in the face of the evidence before it.
5.That the penalty imposed was, in all the circumstances, excessive having regard to the circumstances of the case and the antecedents of the Appellant. Further, the Stewards failed to have regard to the circumstances under which any period of disqualification or suspension has become more onerous since 1st January 1999."
The Tribunal heard evidence from Mr Lee and Mrs Julien as well as from Mr Martins. Ground 2(i), which contended that there should have been a visit to the applicant's premises, was dismissed. It was held that it was unnecessary.
As to ground 2(ii), counsel for the applicant cross‑examined Mr Martins at some length. He agreed that the applicant had mentioned that the source of the caffeine might have been in the bedding bags and suggested to one of the Stewards, a Mr Kemp, that he come and have a look but Mr Kemp did not do so. Mr Martins told Mr Kemp that the matter was the subject of an inquiry and asked him to keep their conversation confidential.
Mr Martins denied that Mr and Mrs Julien had explained "right from the outset" about coffee beans having been found in the bedding bags. Mrs Julien, however, had told him that she had found coffee beans in the kennels and that they had been swept up. She said that the beans had been in the bedding bag, which had been taken from a pile of bags which had not been cleaned, and had been put in the kennels by accident. At that point of time Mr Martins did not think that it was appropriate to attend at the kennels, see where the bags were and examine them. This conversation had taken place the morning after the positive swab had been notified to the Stewards.
Mr Martins agreed in cross‑examination that right from the outset he had received an explanation from Mr and Mrs Julien about coffee beans in the bags. Mrs Julien had said that she had found some coffee beans in the kennels which had been swept up and which had been in a bag used for bedding. She also said that the bag had been taken from the wrong pile. It had been taken by accident from a pile of bags which had not been cleaned.
The conversation just related took place the morning after the positive swab result was received by the Stewards, when the applicant was first notified of the result.
From the first the applicant had admitted that he had presented the dog PROMENADE at Cannington when it had caffeine in its system. What he denied was that element of the charge which alleged an improper purpose.
The Tribunal rejected grounds 2(i) and 2(iii) as having no merit. As to ground 2(iii), the Tribunal rejected this ground for the following reasons:
"Ground 2(iii) alleges pre-judging without first hearing all of the evidence. After carefully considering the cross examination of Mr Martins in relation to the other evidence I am satisfied that, whilst the Stewards clearly did have some prepared typed material which was relied on and formed part of their final typed statement which was read out in pronouncing on Mr Julien's guilt of the offence, this in itself is not reflective of the fact that the Stewards had predetermined the matter as alleged. I am satisfied that the actions of the Stewards in summarising some of the relevant material of this lengthy inquiry, which was broken up over a number of days and was spread out over a 3 month period, of itself did not amount to a breach of natural justice or involve any procedural unfairness."
The Tribunal went on to say that grounds:
"… 1, 2(ii)(b), 3(ii) and 4 do raise some valid considerations. Ground 2(ii) is as to the inappropriateness of drawing inferences adverse to the appellant's credibility without putting the matter to Mr Julien or affording him the opportunity to rebut. The common factor in the 1st and 4th grounds relates to the nature of the administration, that is whether it was for an improper purpose or accidental. During the hearing of the appeal, the Tribunal, unlike the Stewards, did have the benefit of hearing Mrs Julien's explanation from the witness box of what had taken place in the kennel relating to the coffee bags. Despite the full circumstances not having been ventilated before the Stewards the Stewards did make adverse findings regarding Mrs Julien's failure to inform Mr Julien at the time. During the course of the appeal hearing the Tribunal was told by Mrs Julien of her serious injuries and her poor state of health at the time the kennel incident occurred. Mrs Julien did not lack credibility whilst giving evidence to the Tribunal as to what happened in PROMENADE's kennel in relation to the coffee bags and why Mr Julien was not told about the situation when it occurred. The fresh evidence clearly was potentially available to the Stewards at the time of their inquiry. The Stewards did not raise the matter and Mrs Julien was not forthcoming. The allegations in ground 2(ii)(v) are quite valid in my opinion. All of these considerations should have been agitated and explored by the Stewards during the course of their inquiry before adverse conclusions were drawn relating to them. Without having gone into these matters so and in the light of their findings as to Mr Julien's credibility, I consider the Stewards did fall into error and their determination is tainted as a consequence. The facts of this appeal are distinguishable from P Kaltsis Appeal 342 to this extent and the matter therefore cannot at this stage be dealt with simply by applying Western Australian Greyhound Racing Association Inc v Williams & Williams (FCT Sup Ct Appeal No 64/87, unreported Library No 6930).
In carrying out their inquiries the Stewards should have comprehensively investigated all the relevant aspects of the matter. The considerations which were overlooked were readily available and were directly relevant to a central issue being decided by them. (Tickner v Bropho (1993) 114 ALR 409 at 423-424 and Prasad v Minister for Immigration and Ethnic Affairs (1985) 65 ALR 549).
This only leaves ground 3(i). It is not entirely clear what is meant by that ground. It was open to the Stewards to find the answers by Mr Julien regarding withdrawal of the greyhound from the Mandurah meeting were 'unsatisfactory and illogical'. But, having said that it certainly is not clear that as a consequence, the Stewards inferred the rest of Mr Julien's evidence was of that quality.
I am satisfied this is not a case where the Tribunal should simply quash the conviction and uphold the appeal. Rather I am of the opinion it is appropriate for this matter to be sent back to the Stewards to redetermine in the light of the fresh evidence before the Tribunal and all other fresh material the Stewards may elicit or which may be presented on behalf of the applicant."
Previous application for a writ of certiorari
The decision of the Tribunal to refer the matter back to the Stewards prompted an application for a writ of certiorari. The application was for an order nisi for a writ of certiorari calling upon the Tribunal to show cause why its decision made on 15 June 1999 upholding the appeal of the applicant and ordering a re‑hearing or re‑determination of the matter by the Stewards should not be quashed. The applicant submitted that as the Tribunal had before it all the material that the Tribunal should itself have made a decision, rather than refer the matter back to the same panel of Stewards. Miller J refused the application saying:
"In this matter the Tribunal having considered the arguments that were put before it, ruled that it was not satisfied that it was a case in which the Tribunal should quash the conviction and uphold the appeal, but rather, it was of opinion that it was appropriate for the matter to be sent back to the Stewards to be re‑determined in the light of the fresh evidence before the Tribunal and all other fresh material the Stewards may elicit or which may be presented on behalf of the [applicant]. It was said by counsel for the [Stewards] that this was a proper exercise of power under the provisions of s 17(9)(b) of the Racing Penalties (Appeals) Act 1990. I agree that the provisions of that section do give to the Tribunal the power to send a matter back not just for a complete re‑hearing, but for a re‑determination as is predicated in this instance.
It seems to me that there has been an exercise of power by the Tribunal under the powers given to it by the relevant legislation and it is, in my view, inappropriate for this Court to deliberate on the matter in these circumstances. The appeal below was allowed, and the matter has been sent back to the Stewards for re‑determination in light of fresh evidence and perhaps other evidence which may be adduced. In these circumstances it would seem that the Stewards are the most appropriate body to be responsible for further determination of the issues."
His Honour also commented in par [7]:
"I am of the view that it is most appropriate that domestic bodies charged with the responsibility of concluding these matters should be given that opportunity. Here that opportunity has been given by the Tribunal to the Stewards by way of re‑determination."
It was also contended that the case should not go back before the same panel of Stewards. However, the learned Judge pointed out that if there was any difficulty in relation to that aspect of the matter, the applicant still had his right of appeal to the Tribunal.
Re-Hearing by the Stewards
The matter went back before the same Stewards on 26 August 1999, including the Chief Steward who had given evidence at the first hearing. The second hearing lasted some five and a half hours. The additional evidence taken consisted largely of cross‑examination of the applicant and Mrs Julien by the Stewards in relation to various aspects of the evidence that they had given before the Tribunal in relation to evidence before the Stewards at the earlier hearing.
At the conclusion of the further hearing, the applicant was told by the Stewards that they were going to deliberate and consider all of the evidence following the preparation of the transcript.
The second decision of the Stewards was communicated by letter dated 14 October 1999. The Stewards recounted the history of the matter and indicated that they had taken into consideration all of the evidence presented to the inquiry including the transcript of evidence of the first inquiry (pp1‑222 of the transcript); Mrs Julien's evidence given under oath before the Tribunal and the evidence taken during the inquiry on 26 August 1999. The Stewards found "great difficulty in accepting" several aspects of the explanation offered by the applicant and Mrs Julien.
The matters which were of concern to the Stewards were described by them as follows:
"Firstly, it is at best difficult to accept that you, as a trainer with 20 years experience, set in place a procedure to prevent bags with beans from leaving the 'bag shed' and entering the kennels and is then the person who contravenes your own critical safety measure. You had in fact employed and instructed Mr Choules to ensure no bags left the bag shed before being cleaned of beans. Yet you completely disregarded your own security measures and took approximately 25 contaminated bags into a shed where racing greyhounds are kennelled and incredibly did not warn Mrs Julien or anyone else. It is hard to reconcile that you had the foresight and intelligence to instigate an effective procedure to prevent a racing greyhound from being contaminated with coffee beans but then decided to ignore your own precautions and take the risk that you say you did. What makes this even more disturbing is that according to you you actually instructed Mrs Julien to put more bags into PROMENADE's kennel after she had moved it there and still did not warn her of what you had done. Given that you have told us that all the bags would have been put into some use within two days of you placing them in the shed, this would mean that your instruction must have been issued within this period of time if Mrs Julien placed bags from the contaminated pile into the kennel, which you claim she did. This being the case, there is no rational explanation for you not to warn her about the contaminated bags.
Our second area of concern is that Mrs Julien moved the greyhound PROMENADE to the bottom kennel shed and in the process kennelled the greyhound there and placed at least four bags into its kennel from the contaminated pile left there by you and did not notice any beans. The rattling of the beans was an issue of concern during the appeal hearing and has been further examined during this re‑determination. It has been disputed whether the beans could be heard during the demonstration at the original inquiry. Mrs Julien further denies hearing the beans before the Racing Penalties Appeal Tribunal. This panel who witnessed the demonstration are unanimous that it was easy for us to hear the beans during the demonstration. This is not an extraordinary observation because even Mr Noonan and Mr Warren state that it is possible to hear the beans in certain circumstances. The point here is not whether Mrs Julien heard the beans when placing the bags into the kennel, for indeed she may not have for the reasons outlined by her but rather than having seen the bags at the original inquiry, during the course of the appeal hearing and now, it remains a mystery to us how she placed four such bags into a kennel and not a single bean was noticed.
Thirdly, we find the description of events given by Mrs Julien as to what occurred in PROMENADE's kennel in early October when she discovered the beans incomprehensible. Mrs Julien a trainer in her own right, with some 15 years experience, was fully aware of the coffee bags and the lengths to which you had gone to address the problem. Given that, she appeared to be remarkably unconcerned by the presence of the beans in a racing greyhound's kennel. She readily stated that she simply swept the beans out, made no further check of the kennels and then completely forgot about the incident and said nothing to you. This is difficult to accept given the discussions you eventually admitted having had with her regarding the coffee bags. Much of this lack of concern on the part of Mrs Julien at that time has been attributed to the state of her health, which is said to have been very poor. Whilst we accept that she was of ill health we find it hard to reconcile that this ill health was such that it prevented her from remembering or telling you of her significant discovery in the kennels. Furthermore, it is significant to note that during the initial inquiry of 23 November 19989 neither Mrs Julien nor yourself explained that this ill health was a contributing factor to her not telling you about the alleged discovery. Even when asked directly at that time how was it that when she found the beans in the kennel it did not trigger or worry her enough to tell you about it, no mention of illness is made. It was only when you returned for the second sitting of the inquiry on 14 December 1998 that it emerged that the illness was a primary factor in Mrs Julien forgetting to tell you of her discovery. If Mrs Julien's ill health was so significant in her failure to advise you of the beans at the relevant time then we would have expected this information to have been forthcoming from Mrs Julien in the previous 93 pages of transcript. The fact that it was not forthcoming, despite direct questioning, detracts from the suggestion that her state of health was such that it prevented her from advising you of her discovery as she freely admits she should have. It is also … It is further hard to understand that Mrs Julien was so ill of health and yet by her own admission on the day in question she was clearly responsible for administering to the greyhounds in your kennels. She had in fact already attended to nine greyhounds in the top kennel and had seven more to go. She was clearly capable of attending to her duties and we therefore can see no reason why she was not able to recognise the seriousness of the alleged discovery of the beans. The reasons for her failure to inform you of what is said to have occurred are difficult to accept. Mrs Julien's claim that she was not even thinking of the dangers of caffeine at the time that she saw the beans in PROMENADE's kennel and therefore did not tell you is inconsistent with her actions at this time. She was clearly alert to the danger the coffee beans represented in PROMENADE's kennel as according to her she made an assessment of whether the greyhound had eaten any beans or whether the beans looked to be wet or chewed. If she found the beans as has been stated then at that time she was also fully aware that this was the last thing you would have wanted given your discussions and procedures. Everything you had set in place in regard to the coffee bags was to prevent this situation from happening and Mrs Julien knew this. When it eventually happened she is suggesting that she was not concerned at the time and thought nothing of it. This is simply unacceptable. There would be no rational explanation for her to be thinking about whether the greyhound had eaten any beans if she was not also thinking about the danger they represented. It is blatantly obvious that she would have been fully aware of the danger of caffeine both previously and at the time it is said she discovered them. There has simply been no explanation offered which satisfies us why she did not tell you.
Fourthly, we cannot accept that if this scenario regarding the bags had in fact occurred why this information was not forthcoming at the time of the stewards' visit to you on 4 November 1998. You have accepted that the stewards spent a considerable amount of time at your premises and the only explanation offered at that time was that an intruder must have interfered with the greyhound. Mrs Julien, the person who allegedly saw the beans in the kennel was also in attendance and it is difficult to accept that she did not remember the incident at that time. This is especially so given that she was the person who it is said found coffee beans in the kennel of the very greyhound that had now returned an abnormality. It is difficult to accept that the return of the abnormality did not jog her memory of what had transpired previously especially when she well knew that despite your procedures the greyhound had had access to the coffee beans. It is also difficult to accept that you did not advise the stewards of the presence of the thousands of coffee bags on your property. More so, it is difficult to accept that you made no mention of the one and only time you breached your own security procedure and took a pile of bags into a shed containing the greyhound which had now returned an abnormality. Had the events as described by you occurred, a reasonable person would expect that at some stage of the one-hour kennel inspection at least some mention of coffee beans in bags would have been made by either you or especially Mrs Julien. That it was not mentioned is difficult to comprehend in view of what we are now being asked to accept as fact.
Fifthly, the explanation offered by you in regard to the scratching of the greyhounds CATCH CRY and CLOSED CIRCUIT and the failure to scratch PROMENADE remains unsatisfactory and illogical and is further compounded in view of further evidence received in this respect. In simplest terms, if you went to two greyhounds' kennels, found coffee beans in them and proceeded to scratch one and not the other this would be senseless. Yet this is what essentially occurred with PROMENADE and CATCH CRY. The further scratching of CLOSED CIRCUIT several days later for the same reason serves only to further confuse the matter. This unsatisfactory explanation places serious doubt over the validity of the submissions of the accidental administration. Given the cleaning procedures, which shall be addressed in due course, and the fact that you have failed to provide a satisfactory explanation for the unusual scratching activity, indicates to us that this was an attempt by you to reinforce your submissions that there were coffee beans present up until 5 November 1998.
For the reasons already outlined, these events thus far are in themselves at best difficult to accept as truth. The stewards have, however, elicited critical evidence in respect to the cleaning of the kennels, which casts serious and overwhelming doubt on the validity of the explanation offered by you. We have heard several accounts of how and when your kennels are cleaned and it would appear they are cleaned on a very regular basis. For certain, at least once a week the racing kennels and the bedding in them at your property were thoroughly cleaned. If you took 25 bags before 20 September 1998 into the bottom kennels which, according to you, all would have been put into some use within two days, given the cleaning procedures described to us, we find it difficult to accept that some time in early October there would still be coffee beans in the kennel. This is even allowing for the suggestion that there were only 20 small beans. It certainly would not appear possible that seven weeks later on 5 November 1998 there would still be coffee beans in CATCH CRY, CLOSED CIRCUIT and PROMENADE's kennels. Yet you have vehemently stated that you discovered beans in those greyhounds kennels in November, albeit that some contradictions exist as to where you found them which does not assist your cause. It has also been stated that no beans were seen at any other times apart from Mrs Julien's initial discovery and your discovery seven weeks later. This is despite the fact that there were numerous bags throughout the kennels that were contaminated with coffee beans. There is no explanation for how you and Mrs Julien did not find any beans during the seven weeks of cleaning. It is clear that if Mrs Julien had placed contaminated bags into PROMENADE's kennel when she said she did the beans would in all likelihood have been removed within a week and certainly be well and truly gone before November. At the very least you should have found some beans during this period in the course of your cleaning and we cannot reconcile that you did not. The fact that you have been insistent that beans were discovered by you in November, when it is clear that they could not have been given what we have heard, discredits your submission of an accidental administration and casts serious doubt on whether there were ever any bags containing coffee beans in PROMENADE's kennel.
This inquiry has been punctuated with inconsistencies, contradictions and concerns too numerous to list in their entirety. On several occasions when you were pressed on areas of concern Mrs Julien continually interjected with answers to questions directed to you. This is despite the fact that she had been repeatedly warned to refrain from such activity. Noteworthy inconsistencies are, for example, the fact that before the Racing Penalties Appeal Tribunal, Mrs Julien gave specific evidence confirming the presence of a procedure that was designed by you ensuring that contaminated bags did not leave the bag shed unless they had been cleaned. You, however, at the latest inquiry completely contradicted this until pressed by the stewards and then you eventually acknowledged this procedure. Furthermore, we are concerned at the manner in which you attempted to deny the discussions you had had with Mrs Julien regarding the dangers of a greyhound consuming coffee beans. You adamantly stated on page 43 (of 26 August 1999) that no discussions were had and then after Mrs Julien stated you had, you recanted and confirmed that discussions of this nature were had. The lengths that we have had to go through to extract simple answers to simple questions, like this one, from you concerns us, as does the contradictory answers that you provide. This does little to assist your cause or validate your submissions concerning the accidental administration.
In your submission on page 154 (of 26 August 1999) you stated that the race concerned was a minor maiden race and when questioned about this on page 164 you were very coy about acknowledging that the race was in fact a heat of the Golden Maiden Series. Yet on page 90 (of 26 August 1999) you had no problems confirming the nature of the race when Mrs Julien stated that the race was a heat. Why you were painting the picture that the race in question was of little significance or value is not entirely clear. In fact, the race was a heat of a lucrative final restricted to maiden greyhounds and therefore a greyhound usually has only one chance to compete in it in its career. Your submission on page 155 (of 26 August 1999) that there is no motive for improper activities because of the nature of the race is incorrect and clearly a motive exists for such activities to occur.
The majority of the evidence in support of the submission concerning the accidental administration has come forth from Mrs Julien. Her submissions in isolation, concerning only what she may have discovered on the day in question, could possibly have been seen as a credible account of events. Mrs Julien's account of events, however, is doubtful in view of all the circumstances that we have now become aware of. On page 93 (of 26 August 1999) Mrs Julien herself stated 'that was … that may have been my view at the time, but that doesn't mean I was correct either' and further 'um … I'm saying it's what I believed to be true at the time, but it doesn't necessarily mean it couldn't have happened.' This was in response to questions being put to her concerning the likelihood of beans surfacing from within the bags in light of her earlier statement that PROMENADE did not disturb the bedding to any great extent and therefore in all probability the beans would remain unseen in the bags. When it became apparent that if this was the case the greyhound may not have even been in a position to consume any beans even if they were in the bags then Mrs Julien became far less adamant and made the statement quoted. Events such as this do little to add credence to her submissions. In considering what is essentially her eyewitness account it is necessary to also take into account the overwhelming doubt that exists in many crucial areas as has already been annunciated by us.
The chain of events described by you as an unfortunate set of coincidences stretches the bounds of belief to unacceptable levels. The amount of inconsistencies and contradictions has further detracted from the validity of your explanation. There is an obvious explanation why we have found many areas of this explanation difficult to accept. That is because there were never any beans in PROMENADE's kennel at the relevant time. If there had been, we are certain that Mrs Julien would have told you, or failing that, you would have scratched your greyhounds in a sensible manner, or the information would have come out at the time of the notification of abnormality. It is logical that the reason these areas of concern exist and why your explanations fail to satisfy us, is because there were never any beans in PROMENADE's kennel and therefore no rational explanation exists to these areas of concern. It is therefore not surprising that we have had difficulty in accepting your explanations to our concerns.
For all these reasons, we do not accept your explanation of the accidental ingestion of coffee beans. We are therefore left with no explanation as to how the stimulant appeared in the greyhound. That being the case we find that in all of the circumstances you, Mr Julien, had control of the greyhound PROMENADE when it was brought to compete in Race 8 run over 530 metres at Cannington Greyhounds on 13 October 1998 and upon analysis was found by the Stewards to contain the stimulant caffeine, theophylline and theobromine having been administered to it for an improper purpose. We therefore find you guilty as charged."
The inquiry was then adjourned until 20 October 1999 for the Stewards to consider the question of penalty as a result of their findings.
Resumption of the Stewards' Inquiry: Penalty
At the resumption of the hearing on 28 October 1999, after receiving further submissions on penalty, the Stewards amended the placings in the relevant race, ordered the stake money returned and then concluded their deliberations as follows:
"We have considered all your submissions on penalty which includes your previous submissions in this matter and your additional submissions made today. Dealing with your submissions today, namely Exhibit 20, expenses and stress incurred whilst sympathetic to your circumstances we are of the view that there is no mitigatory value. Regarding your submissions concerning penalties issued to Ms Britton, the substances concerned were entirely different and we cannot see any comparative value. Your previous submissions have also been considered and they include:
1.Your record whilst registered with WAGRA for approximately 20 years.
2.That this is your first drug related offence.
3.The extent of your involvement in the industry.
4.The financial loss in stakemoney as a result of the disqualification of PROMENADE from the race.
5.The likely impact a period of disqualification would have on your livelihood.
However, the detection of a stimulant in a racing greyhound is viewed by the stewards as an extremely serious offence, one that no doubt brings the industry into disrepute. In imposing a penalty the stewards are conscious of the range of penalties as mentioned previously for caffeine related offences. In all of the circumstances we feel that the appropriate penalty is a disqualification of nine months. You have the right of appeal against our decision by lodging an application with the Racing Penalties Appeal Tribunal within 14 days."
Second Appeal to the Tribunal
The applicant appealed to the Tribunal against the Stewards' second determination. At the same time he sought a suspension of operation of the penalty. This was granted partly because of the complexity of the matter and partly because the appeal could not be determined prior to the resolution of proceedings then pending before this Court in Stampalia v The Racing Penalties Appeal Tribunal of Western Australia & Ors [2000] WASCA 24. That case raised an issue of bias which was also relevant in the applicant's appeal to the Tribunal.
The essence of the ground upon which the applicant sought relief by way of certiorari in this Court was based upon an error of law by the Tribunal in not finding that the applicant had a reasonable apprehension of bias on the part of the Stewards who conducted the second inquiry.
Ground 1 of the grounds of the second appeal to the Tribunal is no longer relevant. Grounds 2 and 3 of the grounds of appeal to the Tribunal contested the finding that caffeine had been administered to PROMENADE for an improper purpose and that the Stewards should have found that the ingestion of caffeine had been accidental. The Tribunal was satisfied that the Stewards had drawn "... appropriate inferences and ultimately came to a finding to convict which was open to them on the evidence". The Tribunal also rejected the contention that, on the evidence, the Stewards should have found that the ingestion of caffeine was accidental. The Tribunal was satisfied that the Stewards had drawn "... appropriate inferences and ultimately came to a finding to convict which was open to them on the evidence". The Tribunal also rejected a contention that the Stewards should have found that the ingestion of caffeine was accidental.
Ground 4(A) of the grounds of appeal to the Tribunal contended that the applicant and Mrs Julien had been denied natural justice and procedural fairness on the grounds of excessive cross‑examination of the applicant and Mrs Julien; pre‑judgment of guilt before hearing all the evidence and submissions; and refusing the applicant's request to have tests conducted "to prove that ingestion of coffee beans" in the accidental manner contended for by the applicant could produce the result found by the Stewards and support the applicant's explanation.
Ground 4(B) contended that:
"There was a reasonable apprehension of bias on the part of the Stewards insofar as the enquiry was conducted by the same Stewards who had previously conducted the enquiry and made findings adverse to the credibility of the Appellant and his witnesses. The enquiry should have been conducted before a different panel of Stewards."
The apprehension of bias issue was dealt with by this Court in Stampalia v The Racing Penalties Appeal Tribunal of Western Australia, supra, at [46] – [48] by Owen J (with whom Wallwork and White JJ agreed) as follows:
"Counsel for the applicant indicated that there is no certainty on the authorities as to whether, in the case of a consensual or domestic tribunal, the test to be applied is of actual bias or of a reasonable apprehension of bias. I do not think this is an appropriate case in which to decide the issue. For the purposes of this application I will presume that the reasonable apprehension of bias test applies. The nature of the 'reasonable apprehension' test is not in dispute. The principle was explained by Mason J in Re JRL, Ex parte CJL (1986) 161 CLR 342 at 351-352 as follows:
'... a judge should disqualify himself from hearing, or continuing to hear, the matter if the parties or the public entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the issues: Reg v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 258 - 263; Livesey v NSW Bar Association (1983) 151 CLR 288 at 293 - 294. This principle, which has evolved from the fundamental rule of natural justice that a judicial officer should be free from bias, reflects a concern with the need to maintain public confidence in the administration of justice. This concern is expressed in the cognate principle that, not only must justice be done, it must be seen to be done'.
The underlying principle is the same when the Court is called on to quash a decision that has already been made. If (as I am assuming for the purposes of this application) the 'reasonable apprehension' test applies to a hybrid administrative body such as this, the references to a judicial officer would apply equally to the members of the body.
There is authority for the proposition that if only one member of a Tribunal is biased any order made by the Tribunal can be set aside: Builders RegistrationBoard of Queensland v Rauber [1983] 57 ALJR 376 at 385. Counsel for the applicant submitted that where a member of the body is disqualified due to bias the proceedings may be vitiated even if the person withdraws before the hearing ends or the process of judgment begins. Counsel cited two cases in support of that proposition, namely, Pettitt v The South Australian Tattersall's Club [1930] SASR 258 and Webb v The Queen (1994) 181 CLR 41 . I confess that in my reading of those cases I struggled to find support for the proposition advanced. It must also be remembered that Webb arose from a jury trial in the criminal jurisdiction. However, if the proposition is that the aura of bias resulting from the conduct of one member will not necessarily be removed by that member absenting himself or herself from the inquiry before completion I think it can be accepted. Much will depend on the particular circumstances, including the nature of the inquiry, the degree of apprehended bias, the time for which the impugned member participated and so on."
The Tribunal was satisfied there was no merit in ground 4(A) saying that:
"... the Stewards are entitled, are indeed often obliged, to undertake vigorous investigations in an attempt to get at the truth and expose a serious breach of the rules. This is particularly the case in a matter which involves the use of a prohibited substance. The Stewards are expressly empowered by the Rules to inquire into and investigate matters (Rules 76 and 208). I am satisfied, applying the reasoning and approach of Hall v NSW Trotting Ltd [1977] NSWLR 379 at 389 that the appellant was in fact afforded natural justice and procedural fairness in this case.
I am not persuaded from anything that is before me that the Stewards pre‑judged the matter as alleged in (A)(ii). As to (A)(iii) the carrying out of the tests which were requested would not throw any light on any aspect not already widely known in the industry (Hall v NSW Trotting, supra at 386-7)."
The Tribunal was also satisfied that there was no merit in ground 4(B). As the Chairman put it:
"As to (B) this issue has been addressed by the Full Court in Stampalia supra by Owen J at paragraphs 43 and 51-63. The Tribunal in upholding Mr Julien's first appeal (Appeal 444) in fact directed 'the Stewards to redetermine' the matter. This is exactly what did occur. The same Stewards carried out the Tribunal's directions in an entirely appropriate manner in all of the circumstances."
In my opinion the conclusions in respect of ground 4 were entirely justified by the evidence before the Stewards and the Tribunal.
Ground 5 contended that:
"The Stewards were wrong in law and in fact in failing to have regard to the medical condition of the Appellant's wife in explanation as to her failure to advise the Appellant of the presence of coffee beans in the kennel of Promenade."
The Tribunal rejected this ground for the following reasons:
"In their reasons the Stewards expressly accept the fact that Mrs Julien '... was of ill health ...'. They carefully evaluate this aspect in the context of all of the other relevant circumstances. They recognise the relevance of the health aspect. They refer to it in their reasons and put it into an appropriate context. They took it into account in evaluating credibility. Ultimately, the Stewards found against the Juliens. It cannot be said that they '... failed to have regard to ...' the medical condition as alleged in this ground."
Nothing has been advanced in this Court to contest that ground.
Ground 6 of the grounds of appeal to the Tribunal was as follows:
"In finding that they are unable to accept the Appellant's evidence by reason of information not being advised to the Stewards on 4th November 1998, the Stewards misapprehended the evidence and were wrong in fact. It was the evidence that the Appellant was not informed until after the Stewards had left the Appellant's premises of the circumstances giving rise to the presence of coffee beans in the kennel of Promenade, the Appellant contacted the Stewards the next morning and informed them of the circumstances and invited the Stewards to attend to inspect the premises to verify the circumstance outlined by the Appellant."
The Tribunal was not persuaded that the Stewards were wrong in reaching that finding which was the fourth reason stated by them in their letter dated 14 October 1999 for doubting the explanation that was offered. The Tribunal was satisfied that the Stewards did not misapprehend the evidence.
Ground 7 was that:
"The finding of the Stewards that Mrs Julien continually interjected to answers directed to Mr Julien as a ground for not accepting the evidence is wrong in fact and in law. Both the Appellant and Mrs Julien were requested to be in attendance at the enquiry and it was not clear on many occasions as to whom the questions had been directed by the Stewards. Further, the enquiry was conducted on the basis that the Appellant and his wife were both the subject of the enquiry."
The Tribunal did not accept that the Stewards found that Mrs Julien continually interjected as alleged. Rather, in making the comment they did regarding the interjections, the Stewards were addressing their findings regarding inconsistencies in the evidence. The Tribunal also said that the Stewards were required to take into account the evidence of both the applicant and Mrs Julien and were justified in commenting on how that evidence was presented.
Ground 8 was as follows:
"The Stewards erred in fact and in law in finding that there had been no explanation offered by the Appellant which satisfied the Stewards as to why Mrs Julien did not tell the Appellant of the presence of coffee beans in the kennel of Promenade. Mrs Julien gave uncontradicted evidence that by reason of her ill‑health she simply omitted to tell the Appellant and did not remember the occurrence until after the Stewards had advised of the positive swab to Promenade when the Appellant was then considering all possibilities as to the manner in which caffeine could have been administered to Promenade."
As to ground 8, the Tribunal was satisfied that the Stewards were entitled to come to the conclusion which they did in relation to ground 6. As the Tribunal put it:
"The Stewards clearly did not ignore Mrs Julien's state of health in their comprehensive evaluation of the matter. They simply put her medical condition into a particular context. The Stewards were entitled on the evidence to do so."
Ground 9 was as follows:
"The Stewards erred in fact and misapprehended the evidence in finding that the evidence that the bags in the kennel of Promenade contained caffeine was unacceptable on the basis that the information was not forthcoming at the time the Stewards visited the Appellant's property on 4th November 1998. The Appellant was not aware of the presence of beans in the kennel until after the Stewards had left. Further, the Appellant's evidence was supported by:-
(i)the fact that bags containing coffee beans were present in the vicinity of the kennels and on the property;
(ii)the evidence that the Appellant had rung Mr Glenny and warned him of the presence of coffee beans in bags obtained from the Appellant upon becoming aware of the incident; and
(iii)the fact that a similar occurrence occurred to other trainers, including Victorian trainer, Mr Bates."
As to this ground, the Tribunal was satisfied that there was no error or misapprehension as alleged. The Tribunal said:
"The Stewards very carefully reviewed and analysed the facts and closely evaluated the evidence. I believe that they quite properly arrived at conclusions that were open to them as to what should be rejected."
Grounds 10 and 12 were as follows:
"10.The Stewards erred in fact and in law in determining that the evidence of Mr Bates was of no assistance in determining the enquiry."
"12.The Stewards refused my request for an adjournment to consider new evidence vital to my case from John and Jane Carruthers and David Simonnette."
As to these two grounds, the Tribunal said:
"Both these grounds are connected. Neither has any merit. Upon resuming the enquiry on 28 October 1999 the letter of 14 October 1999 setting out the Stewards' findings was read into the transcript. Mr Julien was then asked whether he was happy with the submissions made on penalty at the original hearing. In response Mr Julien sought to make a statement and to introduce fresh evidence. The Stewards indicated a willingness to receive it in relation to penalty only. The transcript (at page 193) reveals Mr Julien sought an adjournment but was clearly told 'If it's on the question of guilt, no we can't we've made our decision'. After a short adjournment to consider Mr Julien's submissions [the Chief Steward] announced:
'The stewards have considered your submissions in relation to the fresh evidence you have made application to present. The stewards have made a determination on the question of guilt and we are of the view that it is not appropriate to return to this matter. If you feel that that evidence would assist your cause on the question of penalty, we are happy to receive it for that purpose only. We're in your hands now Mr Julien if you want to put submission to us on the question of penalty.'
Mr Julien had ample opportunity to present evidence at the original Stewards' inquiry, at the first appeal and during the Stewards' rehearing. There was no indication any of the evidence referred to in grounds 10 and 12 was not available on those occasions and therefore constituted fresh evidence.
An examination of all aspects of this part of the Stewards' inquiry completely satisfies me that the Stewards acted very fairly, patiently and properly. No error of any kind occurred."
At that stage the Tribunal concluded that the Stewards had not fallen into any error in convicting the applicant. It was also stated that:
"The conviction was clearly open to them in the light of all of the evidence. The matter was further determined by the Stewards in a proper manner and in accordance with the Tribunal's reason in Appeal 444."
The reference to Appeal 444 was a reference to the earlier appeal by the applicant which was determined by the Tribunal on 15 June 1999. Having reached those conclusions the Tribunal dismissed the appeal against conviction and invited submissions on ground 11 which contended that the penalty imposed was, in all the circumstances, excessive having regard to the circumstances of the case and the antecedents of the applicant.
At the first inquiry the Stewards rejected the suggestion by the applicant and Mrs Julien that the prohibited substances had been ingested by accident as a result of the dog PROMENADE having eaten coffee beans which had come from bags which had been used as bedding which had previously contained coffee beans. The Stewards rejected this evidence both on grounds of credibility as well as on two aspects of the evidence which the Tribunal subsequently held had not been fairly examined at the inquiry. The first of these points was that they had heard coffee beans rattling in sample bags produced at the inquiry which was, in effect, consistent with Mrs Julien having heard the rattle of beans when she placed bags in the dog's kennel. Secondly, when she subsequently saw what she said were coffee beans in the kennel, she failed to inform the applicant. At the first appeal to the Tribunal Mrs Julien gave evidence that she would not have heard beans in the conditions prevailing in the kennels at the relevant time and that her failure to inform the applicant that she had seen coffee beans in the kennels was due to her ill‑health. At the first appeal the Tribunal, while rejecting numerous other grounds of appeal was, as has already been seen, prepared to have the whole matter re‑examined by the Stewards. That occurred.
The applicant appealed to the Tribunal on the grounds, among others, that the Stewards did not afford the applicant natural justice or procedural fairness in that they:
(i)cross-examined the applicant and Mrs Julien excessively in an effort to support conclusions then made by them rather than the conduct of a fair and open inquiry;
(ii)pre-judged the guilt of the applicant without first waiting to hear all of the evidence and submissions to be adduced; and
(iii)there was a reasonable apprehension of bias on the part of the Stewards insofar as the second inquiry was conducted by the same Stewards who previously conducted the first inquiry and made adverse findings as to the credibility of the applicant and his witnesses.
It was submitted that the order nisi should be made absolute because the Stewards who heard the matter the second time were the same persons who conducted the first hearing, including the Chief Steward, who had given evidence at the first hearing and had been cross‑examined in relation to pre‑judgment with respect to his conversation with Mr Lee. It was contended that this suggested pre‑judgment. The contention regarding pre‑judgment was sought to be reinforced by the circumstances in which the Stewards delivered their decision on 23 November 1998. At 8.36 am on that date the inquiry was adjourned for the Stewards to consider their findings and whether the applicant was guilty or not guilty of the charge.
At 10.10 am the Stewards returned and read out their findings. This prompted the inquiry by the applicant regarding the decision having been pre‑empted before the adjournment. The reasons comprise only some three pages of material. While it is entirely possible that the Stewards may have come to some tentative conclusions prior to the conclusion of the inquiry, there is no basis on which it could be concluded that the decision was pre‑empted in the manner suggested by the applicant to the Stewards at the time or as submitted by his counsel.
It was submitted that the inquiry should have been conducted before a different panel. The Tribunal found that the Stewards had acted properly and dismissed the applicant's appeal. It was submitted in this Court on behalf of the applicant that he was entitled to be heard by Stewards who have an open mind in the sense of being ready and willing to be persuaded, until the applicant had been heard in his defence and all of the evidence received.
The general rule is that a Judge who has formed a view on an earlier case on the same facts or on the same witnesses' credibility is disqualified from trying the second case: Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378; Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 299 – 300; Grassby v The Queen (1989) 168 CLR 1 at 19 – 20; Vakauta v Kelly (1989) 167 CLR 568; Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70; Australian National Securities Industry Ltd v Spedley Securities & Ors (1992) 26 NSWLR 411; Re Finance Sector Union of Australia; Ex parte Illaton Pty Ltd (1992) 107 ALR 581. If only one member of the Tribunal is biased, the Tribunal as a whole is disqualified: Stollery v Greyhound Racing Control Board (1972) 128 CLR 509.
Even if credibility findings were made in the first hearing, the question remains whether in all the circumstances a reasonable person in the position of the applicant was entitled to have a reasonable apprehension of bias in relation to the hearing before the Stewards following the referral back to them by the Tribunal.
The Committee was empowered under the Act to make rules of racing providing for penalties, suspensions and disqualifications. Although the rules comprised terms of a contractual nature between the applicant and the Association, the source of the Stewards' power was found in the rules which had statutory authority, insofar as they were made by the Authority pursuant to s 7B of the Act. As between the applicant and the Stewards, however, the latter constituted a consensual tribunal.
In Maloney v New South Wales National Coursing Association Ltd [1978] 1 NSWLR 161, it was held at 170 – 171 that, as a general principle, actual bias must be proved against a consensual tribunal. The basis for this is that in the case of the members of a club or other organisation of members founded upon consent, it is necessary to prove actual bias. In such an organisation the members have expressly or by necessary implication agreed to be bound by the rules and to be judged by the persons appointed by their fellow members or by some other procedure to which they have agreed. That remains the basis, even though it may be more often than not fictitious, particularly in the context where the livelihood of a person is dependent upon membership of a particular organisation. In this context it was submitted that a threat to livelihood provides a good policy reason for requiring both the appearance and the actuality of impartial decision making: cf Stollery v Greyhound Racing Control Board, supra, at 526 and Thomson v British Medical Association, New South Wales Branch (1924) AC 764 at 780.
In Maynard v Racing Penalties Tribunal (1994) 11 WAR 1 at 12, Ipp J pointed out that the contract between an association and a trainer cannot be considered as one akin to that entered into in the ordinary course of commerce. The penalties open to the Stewards, including the power to disqualify and suspend, are far‑reaching. As the right to work is of fundamental importance, it lies behind the proposition that domestic tribunals exercising the power to restrain a person from working must first observe the rules of natural justice, is a matter of high policy.
It was submitted that, in the present context, a fair minded observer might reasonably entertain an apprehension of bias by reason of pre‑judgment of the issues and the findings made on the credibility of witnesses after the completion of the first Tribunal hearing, as well as the evidence relating to the preparation of the decision by the Chief Steward. Unlike the situation in Stampalia v The Racing Penalties Appeal Tribunal of Western Australia & Ors [2000] WASCA 24, the Stewards in the present case had already expressed views in relation to the issues of the credibility of the applicant and Mrs Julien prior to the second hearing. In Stampalia, while there had not been an explicit prior finding on the issue of credibility, there were some "unfortunate comments" in the course of argument. In that case it was also submitted that the same panel of Stewards as conducted the initial investigation and decided to charge the person concerned also heard the charge. In the present case, the panel of Stewards which conducted the original hearing and convicted the applicant also conducted the re‑hearing of the matter when it was sent back by the Tribunal. In Stampalia it was held that there was no absolute rule that the same body could not investigate and then hear the charge. The question is whether the conduct of those involved in the conduct of the hearing was such as to give rise to a reasonable apprehension of bias. It was submitted also that, in these circumstances, there was a reasonable apprehension on the part of the applicant that the Stewards would be biased, in the sense that, upon the further hearing before them, they could not be persuaded from the views which they had previously expressed. It was submitted that this was particularly so where the reasons for decision at the first inquiry had been prepared prior to completion of the applicant's case and had referred to various matters that related directly to issues of credibility.
It was also submitted that, on the further examination of the applicant by the Chief Steward, at the hearing of the second appeal, he confirmed that the determination made by the Stewards at the first hearing had been prepared prior to the applicant completing his case. It was also submitted that, at best, the Chief Steward's statements could be described as inconsistent in relation to those issues.
In my opinion, none of these submissions have been made out. The Chief Steward gave an explanation how the reasons were prepared on the first occasion. Nothing was put forward on the part of the applicant which would justify an inference of bias or pre‑judgment on the part of the Stewards or, in particular, the Chief Steward. The Chief Steward did not in fact confirm that the decision of the Stewards at the first hearing had been prepared prior to the applicant completing his case at the first hearing. In my view there was no reason advanced by the applicant which would justify the conclusion that there had been pre‑judgment in the relevant Tribunal hearing.
It was also submitted that the fact that the Stewards' findings and the penalty imposed were published and distributed in the Authority's Kennel Notes by the Secretary of the Association so soon after the decision, namely, on the same day as the decision on 28 October 1999, further supported the view of pre‑judgment and/or bias. It was submitted that an adverse inference should have been drawn on the failure of the Stewards to call the Secretary of the Association to give evidence relating to the time at which he received the information from the Chief Steward: see Jones v Dunkel (1959) 101 CLR 298.
It was also submitted that, insofar as the applicant subsequently learned that the statement of the Chief Steward made to him about the preparation for the reasons was untrue, this had the result that the applicant was entitled to apprehend bias on the part of the Chief Steward who had been untruthful to him. After he had been questioned by the Stewards and, in particular the Chief Steward, the applicant formally objected to the second inquiry being conducted by the same Stewards as the previous inquiry, saying:
"With respect, I formally object to the constitution of this inquiry by your good selves as the Stewards. You previously made a determination against me based on findings of credibility. Until the day I was advised of the positive swab, I was unaware of that any of my dogs could have ingested caffeine. It was not until I was advised that, that night by my wife Pamela that she had found coffee beans in the kennel at some previous stage that I became aware of the fact that the dog had been in contact with beans."
This objection was made after the second inquiry had been proceeding for more than five hours and evidence from the applicant and Mrs Julien had been taken and recorded in some 151 pages of transcript.
There were other Stewards in fact available, although there were the practical reasons advanced by the Chief Steward for not using them. In any event, it was submitted that the Authority had the power to appoint additional Stewards to conduct the further hearing: see r 100. The Chief Steward dealt with the applicant's objection as follows:
"I don't think that there are other Stewards, full time in this authority to be able to conduct an inquiry of this nature. Ah, as you well know there's the three of us and there's Mr Paul Searle who's a Cadet Steward and obviously he's only been here a, not even twelve months yet and other than that we've just got casual Stewards and I think you'll appreciate that ah, ah this kind of inquiry ah with all due respect to the casual Stewards would be ah, you know, would probably be beyond some of their capabilities and I say that with all due respect because they're not here full time."
In the decision of the Tribunal on the second appeal dated 12 July 2000, the Tribunal set out the "findings" of the Stewards as set out in their letter to the applicant dated 14 October 1999. I have already quoted the material part of those "findings" or reasons as they would be more properly described. In the reasons of the Tribunal at 9, the Chairman said:
"There are 12 separate grounds of appeal. Except for ground 11 all of the other grounds deal with the conviction. Ground 11 asserts the penalty was excessive. At the end of my published reasons in respect of Mr Julien's first appeal in this matter (Appeal 444) I commented that '... if the Stewards do decide to convict precisely where, within the wide range, or for that matter whether a lesser penalty should be imposed will depend on the impact of all the fresh evidence'. As ground 11 was not directly argued when the matter was heard by the Tribunal on this second occasion I do not address the penalty ground.
It is very clear from what the Stewards wrote in their letter of the 14 October 1999 (quoted above) giving their reasons for convicting Mr Julien that they reached their conclusions only after first exercising great care and attention to the complicated facts associated with this matter. They had foreshadowed that they would do so at the time they reserved their decision on 26 August 1999. It is appropriate to acknowledge that the reasons for the decision are far more detailed and incisive than one usually has come to expect from Stewards following an inquiry. On this occasion those Stewards have made a particularly thorough analysis of the evidence. It is weighed up carefully and methodically from a credibility perspective. The Stewards have gone to great care and given close attention to detail in explaining how they evaluated the testimony and the basis on which they have reached their adverse findings regarding the plausibility of the Juliens' explanations and conduct.
After having studied the reasons in the light of all of the other relevant material I have concluded nothing presented on behalf of Mr Julien persuades me that any error has been demonstrated regarding the approach of the Stewards including their line of reasoning and the basis on which they have handled the matter. Second time around the Stewards handled the matter with considerable thoroughness and far more than the usual attention to detail. The Stewards have reached conclusions which are open to them. I now deal with each of the grounds relating to conviction in turn."
Having reviewed all of the materials, I have concluded that there was ample evidence before the Stewards which justifies a conclusion that the Tribunal did not err in law in not finding that there was a reasonable apprehension of bias on the part of the Stewards who conducted the second inquiry. The Tribunal found as a fact that the Stewards had conducted the second inquiry in an appropriate manner and that the conclusions of fact reached were amply justified by the evidence. I am of the same opinion. In my opinion, while it may have been preferable for the second inquiry to have been conducted by a different panel, the findings of fact by the Tribunal that the conduct of the second hearing by the Stewards was properly conducted was not vitiated by any error of law on the part of the Tribunal.
For these reasons I consider that the order nisi should not be made absolute but should be discharged.
WALLWORK J: I agree with the reasons for judgment of Malcolm CJ and to the orders proposed by his Honour.
OWEN J: I have had the benefit of reading the reasons for judgment by his Honour the Chief Justice. I am in agreement with those reasons and have nothing further to add.
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