Maund v Racing Victoria Ltd
[2016] VSCA 132
•8 June 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2015 0085
| RICKY MAUND | Applicant |
| V | |
| RACING VICTORIA LIMITED (ACN 096 917 930) | First Respondent |
| And | |
| THE VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL | Second Respondent |
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| JUDGES: | MAXWELL P, ASHLEY and KAYE JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 26 May 2016 |
| DATE OF JUDGMENT: | 8 June 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 132 |
| JUDGMENT APPEALED FROM: | Maund v Racing Victoria Limited (Review and Regulation) [2015] VCAT 1303 (Vice President Jenkins J) |
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ADMINISTRATIVE LAW – Disciplinary tribunal – Sporting code – Proceedings for breach of rules – Racing Appeals and Disciplinary Board – Applicant found guilty – Appeal to Victorian Civil and Administrative Tribunal – Appeal by way of re-hearing – Statements obtained by Racing Victoria from applicant’s employee – Whether admissible – Whether Tribunal bound to exclude – Employee not called but made available for cross-examination – Whether adverse inference from failure to call – Inferences – Circumstantial case – Alternative hypotheses – Whether open to Tribunal to find applicant responsible – Leave to appeal refused – Victorian Civil and Administrative Tribunal Act 1998 ss 97, 98; Racing Act 1958 ss 5F, 5G, Part III BA.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D P Sheales and Mr T Purdey | Melasecca Kelly & Zayler |
| For the Respondent | Dr C L Pannam QC and Mr J Hooper | Minter Ellison |
MAXWELL P
ASHLEY JA
KAYE JA:
The applicant is a licensed racehorse trainer under the Australian Rules of Racing (“the Rules”). On 20 July 2015 the Racing Appeals and Disciplinary Board (‘the Board’) found him guilty of two breaches of Rules prohibiting the administration of particular medication to a horse on a race day. The Board disqualified the applicant for a period of six months.
The applicant appealed that decision to the Victorian Civil and Administrative Tribunal (‘the Tribunal’). By a decision delivered on 21 August 2015, Judge Jenkins, a Vice President of the Tribunal, affirmed the findings of the Board. The applicant sought leave, pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (‘the Act’), to appeal from the decision of the Tribunal and the orders made by it.
At the conclusion of argument on the hearing of the leave application, we announced that leave to appeal would be refused and that the reasons for our decision would be published subsequently. These are those reasons.
The facts
On 18 April 2015, shortly before midday, two stewards from Racing Victoria Compliance Assurance Team, Mr Melville and Mr Scarlett, attended at the applicant’s stables in Cranbourne in order to carry out a stable inspection of the three horses that the applicant had entered to race at Caulfield Racecourse that afternoon, namely, ‘General Truce’, ‘Uncle Keithy’ and ‘Ultimate Doom’. Upon entering the stables, the stewards witnessed Luke Bryers, who was engaged on a casual basis by the applicant as a strapper and track rider, leaving the pen of another horse, ‘Kunzite’. That horse was not due to race on that day. Bryers was observed to be carrying a container of white slurry and a syringe, which contained remnants of the slurry. Mr Melville said to Mr Bryers, ‘I hope that’s not a runner’, to which Bryers responded, ‘Yes it is’. In answer to a further enquiry by Mr Melville, Bryers said that the substance he had administered to the horse was ‘just glucose’. The stewards then observed Mr Bryers take the container and the syringe to an open bin, which was full of items. On top of those items in the bin was another syringe, which was moist and looked as if it had been recently used.
Mr Melville then checked Uncle Keithy. He noted that the horse had a head collar on it. He noticed that around the lips on the offside of the horse’s mouth was a dry white substance, and he also observed two white blotches, approximately the size of ten cent pieces, on the horse’s nose. Mr Bryers pointed out that there also appeared to be the same substance on the horse’s foreleg. The stewards then interviewed Mr Bryers, and tape recorded that interview. Bryers stated that he had been instructed by the applicant to administer the paste to Kunzite, and that he understood the paste to be glucose. He denied that he had administered any of the substance to Uncle Keithy.
As a result of the stewards’ observations, a Stewards’ Inquiry was convened on 18 April 2015. Mr Melville outlined the observations he had made at the stables. Mr Bryers told the inquiry that he had not given the slurry to Uncle Keithy, and that he had been told that the substance was glucose. He also confirmed that he had been instructed by the applicant to give the substance to Kunzite, which was in the corner stall.
The applicant told the Stewards’ Inquiry that the substance was not glucose, but that it consisted of 15 percent potassium chloride and 10 percent bicarbonate (an alkalinising agent). He said that he had instructed Bryers to administer the slurry to the horse Kunzite, to assist him to recover from his gallop that morning at about 6.30 am. The applicant maintained that none of his horses were treated on race day. When asked why there were two syringes at the stables, he first suggested that the administration of the substance was not simple, and so it was easier to fill up two syringes. When asked about the marks on Uncle Keithy’s face, he said that they may have resulted from nasal discharge or coughing from a horse in an adjoining pen.
Dr Michelle Ledger, a veterinarian surgeon, was shown a photograph of Uncle Keithy taken by the stewards in the course of their inspection of the Cranbourne stable. Dr Ledger said that it looked as if someone had administered a form of paste or slurry to Uncle Keithy, by holding the lower jaw of the horse, and the two marks that were observed appeared to be finger marks that had left a dry residue on the horse’s muzzle.
The stewards conducted a further inquiry on 1 May 2015. At that inquiry, Mr Bryers stated that he had made a mistake when he suggested (at the time of the stewards’ inspection) that the horse Kunzite was running on 18 April. He said that when he attended the race track that morning, the applicant had instructed him to treat Kunzite, by filling up the container with water, stirring it, and administering it to the horse. The applicant told the inquiry that he had instructed Bryers on the telephone to administer the slurry to Kunzite. When asked to provide a reason for giving the horse the slurry of potassium and bicarbonate six hours after the horse had worked, the applicant suggested that it probably helped the horse’s muscle enzymes. He said it was just a personal preference. ‘That’s the way I control it out of my stables’. The applicant said that normally he treated nearly all of his horses himself. When asked about the marks on Uncle Keithy’s face, he said ‘… it’s a mystery to me’. He then mentioned that the horse in the adjacent stall had had a cold at that time. He also suggested that the marks might have been due to bird droppings.
The charges
By letter dated 27 May 2015, Racing Victoria Limited (‘RVL’) charged the applicant with breaches of AR 178E(1) and AR 178AA of the Rules.
Those Rules provide as follows:
AR 178E
(1)Notwithstanding the provisions of AR 178C(2), no person without the permission of the Stewards may administer or cause to be administered any medication to a horse on race day prior to such horse running in a race.
AR 178AA
(1)A person must not administer an alkalinising agent, in any manner, to a horse which is engaged to run in any race, official trial or jump-out:
(a) at any time on the day of the scheduled race, official trial or jump-out and prior to the start of such event; and
(b) at any time during the one Clear Day prior to 12.01 am on the day of the scheduled race, official trial, or jump- out.
(2) Any person who:
(a) administers an alkalinising agent;
(b) attempts to administer an alkalinising agent;
(c) causes an alkalinising agent to be administered; and/or
(d) is a party to the administration of, or an attempt to administer, an alkalinising agent,
contrary to AR 178AA(1) commits an offence and may be penalised.
The first charge alleged a breach by the applicant of AR 178E(1). The particulars of the charge were as follows:
1You are, and were at all relevant times, a trainer licensed by RVL.
2 You are, and were at all relevant times, the trainer of Uncle Keithy.
3On 18 April 2015, Uncle Keithy was entered to run in race 7, the Thoroughbred Breeders Victoria Vobis Gold Reef over 1600 metres to 16 m at Caulfield.
4In contravention of AR 178E(1), on 18 April 2015, you administered or caused to be administered a medication by way of oral syringe to Uncle Keithy which was engaged to run in the above race.
The second charge alleged a breach by the applicant of AR 178AA. The first three particulars of that charge were the same particulars provided under the first charge. Particular 4 was as follows:
You administered or caused to be administered an alkalinising agent by way of oral syringe to Uncle Keithy which was engaged to run in the above race.
Proceedings before the Board
The charges were heard before the Board on 15 July and 16 July 2015.
After the case was opened to the Board, counsel for the applicant inquired whether the case against his client was that he had instructed Bryers to administer the slurry. In response, counsel for the stewards confirmed that that was one of the ways in which the case might be put, but that alternative propositions would be put, to the effect that someone else had acted on the applicant’s instructions, or that the applicant had done it himself.
Mr Melville and Mr Scarlett each gave evidence outlining their observations at the applicant’s stables on 18 April. Dr Ledger then gave evidence. She stated that the marks on Uncle Keithy’s head, as depicted in the photograph, looked like a whitish residue on the upper lip of the horse, as well as two other smaller residues, consistent with a horse having received an oral paste or slurry. She considered that the two marks looked like fingerprint transfer marks, which would have been left by someone holding the horse’s mouth open to administer an oral paste. The material on the upper lip would be from the horse ingesting the paste or eating it, because horses often ‘get it all over their mouths’. She had had a taste of a sample of the paste (from the empty white container), and it tasted to her like salty bicarbonate.
Dr Ledger said that there would not have been any value in administering the slurry to Kunzite five to six hours after it had galloped. The purpose of administering the slurry was to restore the electrolytes lost by the horse as a result of its early morning gallop. Ordinarily, however, the electrolytes would be restored naturally by the body within a period of four to six hours after exercise.
In answer to a question from the Chairman of the Board, Dr Ledger said that, if the horse had been administered the antibiotic Sulprim on 17 April and had been watered and fed between then and the time of the inspection the next day, she would not have expected there to be evidence of Sulprim on the horse’s lips.
The applicant then gave evidence. He said that on 18 April, he had arrived at the race track at about 5.30 am. He departed two hours later and visited the stables for about ten minutes. Ordinarily, he said, he did not keep potassium or bicarbonate at the stables. When he went to the stables on that day, he took the container holding those substances, and placed it in the refrigerator. The contents had been mixed by him at home, and the container also had two 60 ml plunger syringes in it. The syringes were in their packaging. The applicant then returned to the race track for a short time, and went home. He denied that he had treated Uncle Keithy at all on that day. He said that when he was at the race track he had instructed Bryers to give Kunzite his paste, but that he did not instruct him to give it to any other horse at the stable. He thought that the likely explanation for the residue observed on Uncle Keithy’s lips and nose was Sulprim, which had been administered to Uncle Keithy between 13 April and 17 April.
In cross-examination, the applicant agreed that he had caused a short statement to be typed up for Mr Bryers on the day of the Stewards’ Inquiry on 1 May. The purpose of doing so was ‘just to help him along a bit, not putting words into his mouth’. He agreed that he had told the stewards that the horse in the stable next to Uncle Keithy had a cold, and that that horse’s mucus might have been transferred to Uncle Keithy’s face, which would explain the marks on it. He agreed that the neighbouring horse had raced the previous evening (17 April), and had run third. The applicant said that he had only realised that Sulprim was a possible explanation for the marks on Uncle Keithy’s face after he had recovered the stable’s treatment book. However, he agreed that that book only recorded the administration of Sulprim to Uncle Keithy on Monday 13 April, and that there was no reference to it in the book for the subsequent days. The fact that Sulprim had been administered to Uncle Keithy up to Friday had stuck in his mind, but he could not say why he had not given that explanation to the stewards. He said ‘… there was probably plenty of things going on’.
The applicant also agreed that Bryers was a competent stable hand. He said that, nevertheless, he had left two syringes for Bryers at the stable ‘… to sort of make the job a bit easier’. He agreed with the evidence of Dr Ledger that a mixture of potassium chloride and bicarbonate was only effective if administered immediately after a horse had been run. He said ‘… in a perfect world, it’s not right, or not suitable, but at least, the bottom line, he [Kunzite] got the paste’. He said that he had told Bryers that the substance was glucose, because Bryers was not a full-time employee and the applicant did not want Bryers to be able to pass on to anyone else what the treatment was.
In its decision, the Board found both charges against the applicant proven. It rejected the suggestion that the substance on Uncle Keithy’s face was either bird droppings or a nasal discharge from a horse in an adjoining box. The Board was satisfied that the substance on the horse’s face was attributable to human agency. It rejected the explanation by the applicant that the substance on the horse’s face was due to the administration of Sulprim to the horse on 17 April. The treatment book did not record any administration of that substance to Uncle Keithy after Monday 14 April. In addition, the Board accepted the evidence of Dr Ledger that, if Sulprim had been administered on 17 April, the subsequent ingestion of food and water by the horse would have removed any trace of Sulprim residue from its lips.
Proceedings before Tribunal
The applicant appealed the decision of the Board to the Tribunal pursuant to s 83OH(1) of the Racing Act 1958. The first respondent (‘RVL’) was named as respondent to the appeal. The applicant relied on three grounds of appeal, namely: that a Jones v Dunkel[1] inference ought to have been drawn against RVL for failing to call Luke Bryers to give evidence; that he had been denied procedural fairness, in that the Board refused to exercise its discretion to exclude the tape-recorded interviews of Bryers; and that the Board had erred in refusing to hold that the stewards’ case precluded a finding of guilt on either charge.
[1](1959) 101 CLR 29.
At the commencement of the hearing, counsel for RVL tendered to the Tribunal transcripts of the two Stewards’ Inquiries (dated 18 April and 1 May 2015 respectively), photographs taken of the stables including photographs of the syringes and the plastic container, and photographs of the face of Uncle Keithy. Counsel for RVL stated that his client’s case was that either Bryers or some other unknown person had administered the slurry to Uncle Keithy, on the instructions of the applicant, or alternatively that the applicant had administered it himself. Counsel submitted that, if Bryers or an unknown person had administered the slurry to the horse, that could only have been done on the instruction of the applicant.
Counsel for RVL told the Tribunal that he had proposed to call as witnesses Mr Melville, Mr Scarlett and Dr Ledger. He had, however, been told by counsel for the applicant that those witnesses were not required, and it had been agreed that transcripts of their evidence before the Board could be tendered to the Tribunal. Counsel noted that Bryers had not given evidence before the Board. He stated that the Board in its decision had placed little weight on the statements made by Bryers in his interviews with the stewards. Counsel said that he would call Bryers to say that he was at the stables on the morning of 18 April, that he was interviewed, and that he gave answers to the questions that were put to him and that were recorded in the interviews. Bryers would then be available to counsel for the applicant for cross-examination.
Counsel for the applicant objected to that course. First, he submitted that RVL could not, logically, make the alternative case that it proposed in the opening. He submitted that it was inconsistent for RVL to be seeking to prove that Bryers had administered the slurry to Uncle Keithy or, in the alternative, that the applicant had administered it himself. He further submitted that it was completely inappropriate for counsel for RVL to call Mr Bryers as a witness without adducing substantive evidence from him, and that to adopt that course would result in procedural unfairness to the applicant. He stated that he would not cross-examine Mr Bryers if he were called as a witness in the manner foreshadowed by counsel for RVL.
According to counsel for RVL, its case was that the substance on the horse’s mouth, and the two spots on his forehead, were slurry, which had been administered by human agency. It was inconceivable that any medication had been given to the horse without the direction or authority of the applicant, unless it was done by the applicant himself. Counsel submitted:
Our case is that that slurry would never have got on the horse’s mouth save for human intervention and the human intervention would never have occurred but for the authority of the trainer who was in charge of the establishment … .
Counsel further stated that RVL did not accept everything that Mr Bryers had said in his interviews. He noted that the Board, and the Tribunal, were not bound by the rules of evidence and submitted that the statements made by Bryers, in his interviews with the stewards, were relevant and were admissible before both the Board and the Tribunal.
Following that exchange, counsel for each party addressed the Tribunal on the substance of the appeal. In a reserved decision, the Vice-President affirmed the findings of the Board.
Reasons for decision of Tribunal
The judge commenced her reasons by rejecting ground 1 and ground 2 as each being unsustainable. In respect of ground 1, the judge noted that the Board had not placed any particular reliance on the evidence of Bryers. The interviews of Bryers were recorded and copies of them were available to the applicant. There was no property in a witness, and the judge noted that, at the Stewards’ Inquiry on 1 May, the applicant had produced a brief typewritten statement of what he expected Bryers to say.
In respect of ground 2, the judge considered that the conduct of the Stewards’ Inquiry was unexceptionable and according to procedure. Neither the Board nor the Tribunal was bound by the strict rules of evidence. It was not incumbent on RVL to call and examine Mr Bryers. He had been engaged to perform work for the applicant and there was no evidence of any falling out between the two men. Further, Bryers was an unreliable witness, and RVL did not rely on the truth of any of the evidence of Bryers unless it was supported by other independent evidence. In any event, Mr Bryers was made available for cross-examination by the applicant, and his counsel had declined to avail himself of that opportunity.
In respect of ground 3, the judge reviewed, in some detail, the evidence before the Board and the Tribunal. Her Honour noted that there was no suggestion that any other person than the applicant was responsible for the administration of medication and other substances to the horses in the applicant’s stables. Accordingly, it followed that any administration of such substances would not occur without his knowledge and instruction.
The judge was ‘comfortably satisfied’ that the circumstantial case against the applicant was compelling. She considered that the evidence of the applicant and Mr Bryers was, to a significant degree, evasive, contradictory and improbable. In addition, her Honour was satisfied that there was no reasonable alternative explanation available on the evidence to account for the appearance of Uncle Keithy as depicted in the photograph. Her Honour specifically rejected the suggestion by the applicant that Sulprim had been administered to Uncle Keithy between 13 April and 17 April. She accepted the evidence of Dr Ledger that, if Sulprim had been administered to the horse on 17 April, there would not have been any evidence of residual paste apparent on the horse on the next day. The judge found the evidence of the applicant in respect of his management of the horse Kunzite to be confused and unconvincing.
In conclusion, the judge was ‘comfortably satisfied’ that:
(a) the dried white paste that appeared on the lips and nose of Uncle Keithy was an alkalinising agent supplied by the applicant;
(b) Bryers administered the substance to Uncle Keithy, upon instruction by the applicant, and put the head stall on the horse for that purpose; and
(c) Bryers had been told that the substance he was to administer was glucose and he mistakenly believed that it was not a prohibited substance.
With respect to the approach to be taken by the Tribunal, the judge noted that:
(d) the applicant’s counsel had referred to authorities, particularly relating to the drawing of inferences, that were relevant to the criminal jurisdiction, but which did not properly take into account the practices and procedures of the Tribunal; and
(e) the Tribunal could inform itself in any manner in which it saw fit, subject to conducting a fair hearing, affording natural justice to the parties, and having regard to any rules of evidence that might be appropriate in the circumstances.
Grounds of appeal
The application for leave to appeal contained six proposed grounds of appeal, respectively contending that the Tribunal:
(1)denied the applicant procedural fairness in refusing to require proper particularisation of RVL’s case;
(2)misdirected itself as to the drawing of inferences in a circumstantial case;
(3)erred in failing to draw a Jones v Dunkel inference against RVL for failing to adduce evidence from Bryers;
(4)erred in refusing the application of counsel for the applicant to exclude the hearsay statements of Bryers;
(5)erred in taking into account material on which no weight should have been placed when drawing inferences as to the guilt of the applicant; and
(6)erred in concluding that the guilt of the applicant had been established to the requisite standard.
The appeal
The proceeding before the Tribunal was by way of review of the decision of the Board, pursuant to s 83OH of the Racing Act 1958. As such, it constituted a re-hearing of the proceedings before the Board, albeit that, by the agreement of the parties, the proceedings before the Tribunal were based substantially on the transcript of the evidence given before the Board, together with transcripts of the Stewards’ Inquiries and of the interview with Bryers.
The appeal from the decision of the Tribunal is brought under s 148(1) of the Act, which provides that a party to a proceeding may, with leave, appeal on a question of law to the Supreme Court or (from an order of the President or a Vice President of the Tribunal) to the Court of Appeal. Section 148 does not confer a general right of appeal on the merits. Rather, it is strictly restricted to an appeal on a question of law that was involved in the decision of the Tribunal.[2]
[2]S v Crimes Compensation Tribunal [1998] 1 VR 83; Patsuris v Gippsland & Southern Rural Water Corporation [2016] VSCA 109, [42]–[45] (Garde AJA).
The Tribunal was named as the second respondent to the appeal to this Court. In accordance with the principles in R v Australian Broadcasting Tribunal; Ex parte Hardiman,[3] the Tribunal advised the court that it would abide the decision of the court, and did not intend to take an active role in the proceeding.
[3](1980) 144 CLR 13.
Ground 1
Ground 1 was directed to the manner in which RVL put its case against the applicant in the proceedings before the Board and the Tribunal. In particular, ground 1 took issue with the manner by which RVL sought to establish that the slurry was administered to Uncle Keithy either by the applicant himself, or, alternatively, by Bryers or some other person acting on the instruction of the applicant.
The applicant submitted that the physical circumstances — as to how the white substance came to be on Uncle Keithy’s muzzle and lips, and particularly the identity of the person who was responsible for administering the substance to Uncle Keithy — were an ‘indispensable link’ in the chain of reasoning relied on by RVL. In that respect, counsel for the applicant sought to rely on the principles relating to the drawing of inferences in criminal cases, as stated by the High Court in Shepherd v The Queen.[4] He submitted that the failure of RVL to specify the person who was alleged to have done the act that caused the white residue to be on the horse’s muzzle denied the applicant procedural fairness. Counsel contended that, in the absence of such specification, the applicant was embarrassed in the presentation of his defence, as the charges against him were capable of being established in a number of different ways. It was also submitted that the legal basis of the case made against the applicant by RVL was uncertain, as it was based on alternative propositions that were mutually inconsistent. Counsel contended that it was inconsistent to allege that the act of administration of the slurry to Uncle Keithy was performed either by the applicant or by someone acting on his instructions.
[4](1990) 170 CLR 573, 579-80 (Dawson J), 592-3 (McHugh J).
In response, counsel for RVL submitted that the case presented to the Tribunal did not involve mutually inconsistent propositions. Rather, once the material detected on the lips and muzzle of the horse was found to be the substance prepared with the materials provided by the applicant, the only question which remained was whether someone acting with the applicant’s authority, or the applicant himself, had administered the substance. In essence, the case put by RVL to the Tribunal was that the administration of the substance could only have taken place with the applicant’s knowledge and authority, that is, he had either done it himself or someone else had done so, acting on his instructions.
The submissions made on behalf of the applicant in support of ground 1 were based substantially on principles relating to the drawing of inferences, and the particularisation of charges, in a criminal case. The proceedings before the Tribunal (and the Board) were not criminal in nature but, rather, were disciplinary and protective. Section 97 of the Act requires that the Tribunal must act fairly and according to the substantial merits of the case in all proceedings. The Tribunal is obliged, by s 98(1)(a), to comply with the rules of natural justice. At the same time, s 98(1)(b) specifically provides that the Tribunal is not bound by the rules of evidence or by any practices or procedures applicable to courts of record, except to the extent that it adopts those rules, practices or procedures.
The principal complaint made by the applicant is that there was a lack of sufficient particularity in the manner in which RVL made its case against him before the Tribunal. It is an important aspect of the rules of natural justice that a respondent to disciplinary proceedings be given sufficient notice of the case that he or she is required to meet. It is not, however, necessary that the notice of the proceeding be expressed with the specificity of an indictment in a criminal case or pleadings in a civil case. It is sufficient if the notice adequately indicates to the recipient the nature of the matter alleged, so that he or she may have a fair opportunity to meet or contradict the allegations contained in the charge.[5]
[5]See for example Banks v Transport Regulation Board (1968) 119 CLR 222, 247 (Taylor J); R v Medical Board of Victoria; Ex parte Epstein [1945] VLR 60, 64 (Lowe J); Re La Trobe University; Ex parte Wild [1987] VR 447, 458–9.
The case presented by RVL against the applicant involved three fundamental propositions, namely that:
(1)an alkalinising solution (consisting of potassium chloride and bicarbonate) was administered to Uncle Keithy by human agency;
(2)the substance detected on the lips and muzzle of the horse was not Sulprim; and
(3)the substance would not have been administered to the horse except by the applicant or by someone acting on his instructions.
We do not consider that there was any uncertainty or unfairness involved in RVL seeking to make its case in the manner just described. Each step in that case was clear, and it was open to the applicant to test or challenge each of them on the hearing of the proceeding before the Board and again before the Tribunal. Indeed, in seeking to meet the case against him, the applicant took issue with each of the steps contained in RVL’s case.
In respect of the first step, he postulated that the substance on the horse’s lips and muzzle could have been the result of nasal discharge by a horse in an adjoining stall, or by bird droppings, or by other similar such circumstances. In respect of the second step, he sought to establish that the matter detected on Uncle Keithy consisted of the remnants of Sulprim administered to the horse during the preceding four days. The applicant took direct issue with the third step contained in RVL’s case, by directly denying that he had given any instruction to Bryers, or any other person, to administer the substance to Uncle Keithy, and by denying that he had done so himself.
There was no inconsistency in the alternative contentions that the prohibited substance was administered to the horse by the applicant, or by Bryers, or by some other person acting on the applicant’s instructions. As pointed out by counsel for RVL, the critical allegation against the applicant was that the substance was administered on his authority and at his direction, whether by himself or by some other person. Essentially, RVL relied on an inference, the basic premise of which was that the substance could not have been administered to the horse unless by the applicant himself or by someone acting on his authority.
To the extent that the principles of criminal law may be relevant, they do not assist the applicant. In a case in which the prosecution relies on the principles of complicity based on joint criminal enterprise, it is not necessary for the prosecution to prove which party or parties to the enterprise actually performed the acts that constituted the offence, provided that, between them, the parties performed the acts necessary to commit the agreed offence.[6] By analogy, it was sufficient for the present respondent to establish that the applicant was responsible for the administration of the prohibited substance to the horse, whether by performing that act himself or by directing some other person to do so.
[6]See for example R v Clarke [1986] VR 643, 652 and following; Likiardopoulos v R (2010) 30 VR 654, 662–671; Arafan v R (2011) 31 VR 82, 88–91 [24]–[31]; Franze v R [2014] VSCA 352 [55]–[93].
For those reasons, we rejected ground 1.
Ground 2
Ground 2 was, in effect, a variant of ground 1. The applicant contended that, because RVL was advancing alternative hypotheses as to who had administered the substance, the judge could not determine who was responsible. That is, since it was open to conclude that either of the two nominated persons had administered the substance, the judge could not therefore conclude which one of them had been responsible for that act.
We were not persuaded by that contention. As we have already pointed out, RVL’s case was that the substance was administered either by the applicant or by another person (Bryers) acting with his authority. The fact that RVL made its case by relying on those alternatives did not preclude the judge, on the evidence, from being satisfied that it was Bryers who had administered the substance and that he had done so with the authority of the applicant. Accordingly, we rejected ground 2.
Ground 3
Counsel for the applicant pointed out that, in final submissions before the Board, counsel for RVL had contended that Bryers was an important witness in the case because — if his evidence were accepted — it would provide the defence to the charge brought against the applicant. Counsel for the applicant submitted that RVL’s position before the Tribunal was akin to that of a prosecutor in a criminal proceeding. It followed, it was said, that RVL had a duty to call all relevant evidence, including Bryers. In the circumstances, the failure of RVL to call Bryers to give substantive evidence should have caused the Tribunal to draw an inference, based on the principle stated by the High Court in Jones v Dunkel.[7]
[7](1959) 101 CLR 298.
In response, counsel for RVL contended that ground 3 had no substance, because RVL had subpoenaed Mr Bryers to attend and had made him available for cross-examination by counsel for the applicant. Accordingly, counsel for the applicant had had every opportunity to elicit evidence from Bryers, or to challenge anything he had said in his statements to the stewards. It was further submitted on behalf of RVL that an inference should have been drawn against the applicant for not calling Bryers, given that Bryers had been employed by the applicant; he had discussed with the applicant the evidence that he was to give at the Stewards’ Inquiry on 1 May 2015; and the applicant had caused a note to be typed up in his office in relation to the evidence Bryers was to give at that inquiry, which he provided to Bryers shortly before the latter gave evidence.
Ground 3 failed at a number of levels. First, as already indicated, the Tribunal is not bound by the rules of evidence, so the principles stated in Jones v Dunkel were not directly applicable to the proceedings. Secondly, as pointed out by Gaudron and Hayne JJ in Dyers v The Queen,[8] the principle stated in Jones v Dunkel applies to criminal proceedings only in exceptional circumstances.[9] Thirdly, there was in any case no basis for the drawing of an inference of the kind contended for.
[8](2002) 210 CLR 285.
[9]Citation above, 295 [16]–[17].
As we have pointed out, RVL had subpoenaed Bryers to give evidence, and had offered to make him available to give evidence in the proceeding. The only reason Bryers did not give evidence was that the applicant declined the opportunity to cross-examine him. The fact that RVL did not seek to adduce any positive or substantive evidence from Bryers, other than what he had told the stewards, did not enliven the principles discussed in Jones v Dunkel.
Before departing from ground 3, we should, nevertheless, note that we do have some concerns as to the procedure that was adopted both before the Board and the Tribunal in respect of the use made by RVL of the evidence of Bryers. The proceedings before the Board and before the Tribunal had the capacity to significantly affect the right of the applicant to perform his occupation as a trainer. In those circumstances, it would have been preferable if RVL had called Bryers to give viva voce evidence and, if necessary, sought to cross-examine him on those aspects of his evidence with which it took issue. The procedure that was adopted — by which statements made by Bryers were tendered, and only selected aspects of them were relied on by RVL — was, in our view, a less effective and less appropriate method of enabling the Board and, in turn, the Tribunal, to assess for itself the relevant aspects of Bryers’ evidence.
Ground 4
In its reasons for decision, the Tribunal stated that RVL did not rely on the truth of any evidence of Bryers that was not confirmed by direct observation of the stewards or admissions of the applicant. The contention for the applicant was that, to the contrary, counsel for RVL in his address to the Tribunal had relied on the following statements of Bryers, namely that: the two syringes were not in wrappers and looked as if they had been used; he had mixed the powder with water; he did not know that glucose was a prohibited substance when given to a horse on race day; Kunzite was racing that day (which was said to be significant because Bryers thought he was treating a horse that was racing that day); he was instructed to give the substance to the ‘horses’ (plural) (a statement he did not correct until later in the day); he put the head stall on the horse. Reliance was also placed on his observations of Kunzite at the track earlier that morning.
Under this ground, the applicant submitted that, although the Tribunal was not bound by the rules of evidence, the evidence of Bryers should have been excluded, by reason that RVL did not accept a number of the factual matters stated by Bryers, and did not adduce any evidence from Bryers in the Tribunal; the probative value of the evidence was particularly slight; and there was a significant risk of misuse of the evidence.[10]
[10]Cf Evidence Act 2009 s 137.
In oral submissions, counsel further contended that the admission into evidence of the statements made by Bryers constituted a breach of procedural fairness. Counsel pointed out that those statements had been made by Bryers under compulsion of law.[11] In those circumstances, it was unfair to the applicant to use those statements selectively, by only relying on some aspects of them, while not calling Bryers to give evidence.
[11][Get provision].
In response, counsel for RVL pointed out that s 98(1)(c) of the Act empowered the Tribunal to inform itself on any matter ‘as it sees fit’. The admission into evidence of the statements made by Bryers could not constitute an error of law. Counsel further submitted that there was no breach of procedural fairness, given that Bryers was expressly made available for cross-examination by counsel for the applicant.
The difficulty with ground 4 was that, apart from the requirement that it comply with the rules of natural justice, it was a matter for the Tribunal as to which evidence it would admit in determining the case before it. The decision to admit the Bryers statements could only raise a question of law if it could be shown that it had not been open to the Tribunal in the circumstances to admit them. Quite properly, counsel for the applicant advanced a contention expressed in that way, but it was simply not sustainable.
For the reasons advanced by counsel for the applicant, there were limitations to the weight which would be expected to be attached to the evidence of Bryers. But counsel could not advance any reason why the admission of his statements before the Tribunal constituted a breach of the rules of natural justice, or any other relevant principle of law.
As we have said, it was open to counsel for the applicant to cross-examine, and challenge, Bryers in respect of any aspects of the statements that were tendered to the Tribunal, but counsel declined to do so. It was equally open to counsel for the applicant to make submissions relating to the aspects of the evidence of Bryers upon which counsel for RVL sought to rely. In those circumstances, it could not be maintained that there was any relevant breach of the principles of natural justice arising from the admission of Bryers’ evidence to the Tribunal.
Ground 5
In support of ground 5, counsel for the applicant referred to a number of findings, or observations, of the judge in her decision, and submitted that the judge should have given no weight to the ‘hearsay assertions’ by Bryers upon which those findings or observations were made. In particular, counsel referred to the judge’s statements that:
(f) the evidence of Bryers was ‘in significant respects, evasive, contradictory and/or improbable’.
(g) Bryers attended the stables some time before the attendance of the stewards, and that he said that the two syringes then were not in wrappers and looked as if they had been used;
(h) Bryers responded to the stewards, to the effect that the horse he had just treated was running that day, but the treatment was only glucose, which he believed was not a problem;
(i) the confused answers given by Bryers, and his apparent confusion as to the name of the horse being treated and whether he was in fact racing, rendered the evidence of Bryers and the applicant ‘highly problematic’; and
(j) Bryers had been told that the substance he was to administer was glucose and he mistakenly believed that it was not a prohibited substance.
It should first be pointed out that the matters referred to in subparagraphs (a) and (d) did not reflect, and were not based on, evidence given by Bryers. Rather, they referred to aspects of the judge’s decision in which her Honour characterised the evidence of Bryers, and the applicant, as being unreliable.
The fundamental difficulty with ground 5 was that it did not identify any relevant question of law. The complaint rose no higher than that the judge ought not to have placed weight or reliance on particular aspects of statements made by Bryers. That complaint did not involve any alleged error of law.
In order to establish an error of law under ground 5, it was not sufficient for the applicant to contend that specific findings by the Tribunal were against the evidence and the weight of the evidence.[12] Rather, the question for the court, in such a case, is whether there was evidence upon which the Tribunal might, rationally, reach the conclusion to which it came.[13]
[12]Transport Accident Commission v Hoffman [1989] VR 197, 199 (Young CJ, McGarvie J).
[13]Young v Paddle Brothers Pty Ltd [1956] VLR 38, 41 (Herring CJ); S v Crimes Compensation Tribunal [1998] 1 VR 83, 89 (Phillips JA); see also Myers v Medical Practitioners Board of Victoria [2007] VSCA 163, [50]ff; ISPT Pty Ltd v Melbourne City Council & Anor [2008] VSCA 180 [66]; Karakatsanis v RVL Ltd (2013) 42 VR 176, 186 [22]–[24] 189 [49] (Osborn JA).
It was a matter for the Tribunal to determine the weight that it accorded to evidence put before it. The statements made by Bryers were relevant to the issue before the Tribunal whether the applicant had breached the Rules alleged in the two charges against him. That issue was essentially a question of fact, and not law, for the Tribunal. There was no error of law.
The charges against the applicant involved allegations of misconduct by him in the course of his occupation as a race horse trainer. Those allegations were, on their face, serious, and the charges had serious implications for the capacity of the applicant to conduct his occupation. In those circumstances, it would be expected that the Tribunal would require to be satisfied to a comfortable level of satisfaction, before it accepted the underlying allegations contained in each of the charges.[14] In her reasons for decision, the Tribunal expressly applied that approach. That did not, however, preclude the Tribunal from accepting, and relying on, aspects of the evidence of Bryers.
[14]Karakatsanis & Anor v RVL Limited (2013) 42 VR 176, 189 [38]–[40] (Osborn JA).
For the foregoing reasons, ground 5 failed.
Ground 6
In support of ground 6, counsel for the applicant submitted that the alternative hypotheses relied on by RVL were inconsistent and ‘mutually incompatible’. Counsel contended that, on the basis that each hypothesis was open on the evidence to be established to the requisite standard, it followed that neither of the competing contentions could be excluded.
We rejected that submission. Ground 6 was, in effect, a recasting of ground 1. There was no logical inconsistency or incompatibility involved in the propositions relied on by RVL before the Tribunal. As stated earlier, the manner in which RVL advanced its case did not preclude the Tribunal from being satisfied, on the evidence, that Bryers administered the substance to the horse at the direction and with the authority of the applicant.
Accordingly ground 6 failed.
Conclusion
For the foregoing reasons, we refused leave to appeal. Before departing from the matter, however, we should observe that, in the course of reaching its decision, the Tribunal made adverse findings relating to the credit of the applicant as a witness. Consideration of the proposed grounds of appeal did not require us to examine those findings, and we express no view about them.
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