McMullen v Racing Queensland Ltd
[2012] QCAT 286
•31 May 2012
| CITATION: | McMullen v Racing Queensland Limited [2012] QCAT 286 |
| PARTIES: | Mr Peter John McMullen (Applicant) |
| v | |
| Racing Queensland Limited (Respondent) |
| APPLICATION NUMBER: | OCR080-12 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 23 May 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | Mr Richard Oliver, Senior Member Mr Jeremy Gordon, Member |
| DELIVERED ON: | 31 May 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | That the stewards’ decision is set aside and a not guilty finding is substituted. |
| CATCHWORDS: | RACING – APPLICATION FOR REVIEW OF DISCIPLINARY DECISION – applicant found guilty of driving in a manner which in the opinion of the stewards is unacceptable – test to apply Queensland Civil and Administrative Tribunal Act 2009, ss 19, 20 Australian Harness Racing Rules 149(2) Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58 considered |
APPEARANCES and REPRESENTATION:
| APPLICANT: | Mr Scott Neaves (counsel) |
| RESPONDENT: | Mr Cameron McLune, Stipendiary Steward (Harness) |
REASONS FOR DECISION
Background
Mr Peter McMullen holds an A Grade Trainer’s and Driver’s Licence under the Australian Harness Racing Rules made under the Racing Act 2002.
Mr McMullen drove OCTOBER SON in a harness race at Albion Park on 14 February 2012. After the race, there was a stewards’ inquiry. That was adjourned and resumed on 5 March 2012. At the resumed inquiry Mr McMullen was charged under Rule 149(2) of the Australian Harness Racing Rules which reads:
“(2) A person shall not drive in a manner which in the opinion of the Stewards is unacceptable.”
The particulars of the charge were that:
Mr McMullen elected to remain in a position behind horses from approximately the 300 metre mark rather than to ease wider on the track around runners to give his horse an uninterrupted passage to the finish. This decision resulted in OCTOBER SON failing to secure clear running at any stage in the run to the finishing line.
Mr McMullen pleaded not guilty to the charge, but the stewards found him guilty on 5 March 2012 and suspended his licence for six weeks. This was a “reviewable decision” under Local Rule LR(AC)1, therefore Mr McMullen was able to appeal against both conviction and penalty to the First Level Appeal Committee of Racing Queensland. This appeal was heard on 15 March 2012 but it was unsuccessful.
Following the First Level Appeal, the suspension took effect from midnight on 17 March 2012. Mr McMullen applied to QCAT for a review on 20 March 2012 and by consent on 21 March 2012 the decision to suspend his licence was stayed under further order of the Tribunal.
QCAT’s approach
The review jurisdiction is conferred on QCAT by sections 150-154 of the Racing Act 2002. Sections 19 and 20 of the QCAT Act 2009 require the Tribunal to hear and decide the review by way of a fresh hearing on the merits, with the purpose of producing the “correct and preferable decision”; and in exercising the review the Tribunal has all the functions of the original decision maker. There is no presumption that the original decision is correct[1].
[1] Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58 at [9].
In Queensland Racing Ltd v McMahon [2010] QCATA 73 it was argued that the words “in the opinion of the Stewards” in a corresponding rule (Rule 137 of the Australian Rules of Racing) meant that QCAT could not engage in a full merits review but was limited to consider questions of penalty only. After a careful analysis of the legislation and case law this argument failed. It was held that the Tribunal must exercise the original discretion held by the stewards afresh[2].
[2] Paragraphs [40] to [43].
The position therefore is as set out by the Tasmanian Racing Appeal Board chaired by Mr L Sealy in the case of Ford heard on 24 January 2008 in which the Board stated:
“Because an appeal to this Board is by way of complete rehearing de novo, the question for us is not whether the Stewards properly or reasonably reached the opinion that Mr Ford drove in a manner which was unacceptable. Rather, the question is: are we of the opinion that Mr Ford drove in a manner which was unacceptable?
To answer this question it is necessary to understand where the line should be drawn between what is acceptable and what is not acceptable.
The operation of Rule 149(2)
[10] We note that rule 149(2) lies in a section of the Australian Harness Racing Rules entitled “Required Racing Standard”. Within that section, rule 147 requires a driver to “race a horse on its merits” and action or non action which prevents or impedes that requirement establishes the offence. Rule 148 prohibits other persons from instructing or assisting the driver not to drive a horse on its merits. Rule 149(1) requires a driver to take all reasonable and permissible measures during the course of a race to ensure that the horse is given a full opportunity to win or obtain the best possible placing in the field.
[11] Within the industry an offence under rule 149(2) is regarded as less serious than an offence under rule 149(1). This is reflected in the penalties which are generally imposed for offences under rule 149(2).
[12] The purpose of rule 149(2) therefore appears to be to provide the stewards with an offence which can be charged if they consider that making a charge under the more serious rule is inappropriate. Rule 149(2) also appears to serve to catch incidents in a race which are not covered by the other rules.
[13] We would make the general point that any offence which is committed if someone forms the opinion that it has been committed needs to be approached with some caution. There is a distinct danger that a driver can be convicted of an offence on the subjective view of the particular stewards involved, when if other stewards had been involved there would be a different result.
[14] It is important therefore for the stewards making a decision to endeavour to be as objective as possible. Whilst there is no requirement in the Rules[3] for the stewards to give reasons for their decision, it is preferable for them to demonstrate this objectivity by doing so. If such reasons are given for an offence under rule 149(2), they would explain why the stewards formed the opinion that the drive was unacceptable. We note that in this case the stewards at the inquiry gave no reasons for their decision that the offence had been committed[4].
[3] Rules 181 to 187 authorise the stewards’ inquiry process.
[4] Page 73 of transcript of 5 March 2012.
[15] In this case since we have formed an opinion which differs from the opinion of the stewards, we need to explain the tests which we have applied when considering rule 149(2).
[16] Judge Williams sitting in the Victorian Racing Appeals Tribunal considered the appropriate test to apply in rule 149(2) cases in Misfud v Racing Victoria Stewards [2007] VRAT 6. He said:
The rule in question is as I have stated, a person shall not drive in a manner which in the opinion of the Stewards is unacceptable. This rule is not intended to penalise what might be described as mere errors of judgment or split second mistakes. The Tribunal is well aware of the authority constituted by the previous decision in 1983 by Judge Goran in a case of Honan where it was thought desirable to bring into focus the sort of considerations that lie behind rules such as Rule 149(1) and (2) and Judge Goran made a number of observations.
It is certainly relevant to restate here that the first, second and fourth of the observations that he made apply. I will read those:
"(a) the rule does not permit the mere substitution of the Stewards' view as to how a particular horse should have been ridden for the view of the rider;"
Of course in the harness racing world we would substitute "driven for the view of the driver":
"(b) the rule does not seek to punish a mere error of judgement during the race on the part of the driver; and
(d) the driver's conduct must be culpable in the sense that objectively judged it is found to be blameworthy."
I will not include (c) here because it is more relevant to a breach of Rule 149(1) and we are dealing with 149(2) ..
Perhaps to throw my own interpretation into the mix I might view it this way, that the sort of culpable action that is required to amount to a breach of this rule might be such that in normal circumstances a reasonable and knowledgeable harness racing spectator might be expected to exclaim with words to the effect, "What on earth is he doing?" or "My goodness look at that" or some such exclamation.
[17] The observations of Judge Williams and Judge Goran have been expressed with approval in a number of cases in the New South Wales jurisdiction[5].
[5]Cases before the Racing Appeals Tribunal of New South Wales: Siejka (22 November 2010) heard by Justice Haylen; and Panella (15 March 2012), Rue (17 April 2012), O’Shea (17 April 2012) and Hallcroft (2 May 2012) all heard by Mr D B Armati.
[18] Mr Neaves has submitted that a useful test for what is unacceptable driving under rule 149(2) might be where the driver cannot explain on reasonable grounds a decision or choice made by him in relation to the drive. In other words, if there is no reasonable explanation for the decision then the drive is unacceptable. He suggests that this test has been established in the QCAT appeal of Racing Queensland Ltd v Bellamy [2011] QCATA 30. However we do not read Bellamy’s case as establishing any test of this sort – that appeal mainly concerned whether the member who heard the review at first instance had sufficient evidence to reach the conclusion that he did.
[19] We think there is good sense in the tests adopted in Victoria and in New South Wales; it seems to us to be right that for disciplinary action properly to be taken against a driver, that driver should be considered to have been blameworthy. It is also preferable for there to be a common nationwide approach to rule 149(2), bearing in mind that the Harness Racing Rules have nationwide applicability and that drivers do not limit themselves to race in one State or Territory.
Considerations
[20] We viewed the video of the race several times. We read the transcripts of the stewards’ inquiries of 14 February 2012 and 5 March 2012 and the appeal heard on 15 March 2012. The trainer of the horse Mr Abbott gave evidence before the inquiry as did Mr McMullen. We heard submissions from Mr Neaves and from Mr McLune. We heard from Mr McMullen and read the written evidence submitted on his behalf from Shane Graham and Grant Dixon who were both drivers of other horses in the race with which we are concerned. There was written evidence from Bruce Birch who knew OCTOBER SON well. There was also an expert’s report from Bede W Ireland a consulting civil and structural engineer who designed the racing track at Albion Park. Racing Queensland has made no objection to the admission of this written evidence and has not asked for these witnesses to attend for cross-examination.
[21] OCTOBER SON was known to Mr McMullen to be a “follower” and a “cheat” in the sense that the horse would appear to be travelling well and ready to run while following another horse, but that if it was pulled out into open space it would have a tendency to give up and slow or at least fail to accelerate as anticipated, although not because of a lack of ability. The propensity of the horse to give up when seeing open space is confirmed by Grant Dixon who knew the horse having seen it perform several times and having driven it himself. Bruce Birch also confirms this: he knew the horse well, since it had been part of his stable for the majority of 2009 and he had driven it himself.
[22] The instructions given to Mr McMullen by the trainer Mr Abbott were therefore not to pull out “too early” (meaning on the back straight) since the horse could not be relied upon to perform despite appearing able to do so. The trainer Mr Abbott confirmed at the inquiry that these were the instructions he gave to Mr McMullen[6].
[6] Page 2 at [25] of the transcript of 14 February 2012.
[23] The video and the transcripts show that at about the 500 metre mark Mr McMullen was one back with NORTHERN GEM (the eventual winner) on his outside. He made an unsuccessful attempt to ease out past NORTHERN GEM. He was therefore boxed in and continued in that position round the home turn. At about the 300m mark Mr McMullen was still in a position behind horses. He did not then ease out to try to get a clear run to the finish in the home straight as the stewards thought he should have done. Although some space did appear in front of Mr McMullen further down the home straight between LOMBO LUMBER JACK and NORTHERN GEM, it appears it was not wide enough for OCTOBER SON to get through even if able, so he followed NORTHERN GEM. OCTOBER SON finished in third position with LOMBO LUMBER JACK in fourth. However OCTOBER SON was disqualified for other reasons.
[24] Mr McMullen’s explanation for the drive was that at the 500m mark the horse felt good and he considered it was an appropriate decision to try to pull out at that stage. Between the 400m mark and the 100m mark the horse felt as though it did not have a winning chance and felt “all out” and he thought it likely to finish towards the back of the field[7]. At the 300m mark he had the wheel of GREENMANS VALLEY driven by Mr Whitaker outside him which meant that to get wider he would have to slow and pull back. He decided not to do this but to follow, waiting for room to appear either on the inside or outside[8]. In the event he was surprised by how well the horse performed in the home straight when it was doing better[9].
[7] Page 24 at [5] of the transcript of 14 February 2012.
[8] Page 14 at [10] of the transcript of 14 February 2012.
[9] Page 23 at [45] of the transcript of 14 February 2012; page 58 at [45] on 5 March 2012.
[25] It is accepted by the stewards that at the point where Mr McMullen is criticised for not moving wider he would have needed to ease by about 1 metre in order to do so because of the presence of GREENMANS VALLEY on his outside[10]. The stewards dispute that OCTOBER SON was “gone” after the 400m mark since it appeared to be making ground, at least closer to the finish.
[10] Page 21 at [0] of the transcript of 14 February 2012.
[26] There is some considerable support for the belief that had Mr McMullen attempted to go wider at the 300m mark this would not in fact have improved the chances of the horse but may well have worsened them. This is the opinion expressed by Mr Birch, Mr Dixon and Mr Graham based on their knowledge of the racing traits and propensities of this horse. Mr Ireland calculated that if the horse had been moved wider at the 300m mark sufficiently to achieve a clear run on the home straight, because of the position of the other horses and their sulkies it would have had to travel some 11.6 metres further than the winner of the race, which would have expended extra energy.
[27] There is also considerable support for the decision made by Mr McMullen not to go wider at the 300m mark. Mr Birch and Mr Dixon say that they would have driven the horse the same way as Mr McMullen did, and Mr Graham was of the opinion that the horse was driven appropriately. At the inquiry Mr Abbott was rather uncertain at first as to whether it would have been best for Mr McMullen to have pulled out wide at that point, but after viewing the video and debating the matter he was highly supportive of Mr McMullen’s decision[11].
[11]Page 4 at [25], page 7 at [5] of the transcript of 14 February 2012; page 51 at [15], page 53 at [25], page 54 at [45], page 56 at [35], page 57 at [15] and [45], page 59 at [35], page 66 at [10] and [40], page 6 at [0] and [15] on 5 March 2012.
Conclusion
[28] In this case the stewards were of the view that Mr McMullen had made an error in the manner in which he drove OCTOBER SON. It is questionable whether in fact Mr McMullen made an error since there is an abundance of opinion that if Mr McMullen had driven the horse the way the stewards preferred, this would probably have produced a worse result for the horse. If there was an error however, it is clear to us it was only an error of judgement.
[29] It seems clear that the decisions made by Mr McMullen in the race and in particular at the 300m mark when he is criticised for failing to pull out wider, were informed not only by his knowledge of the traits and propensities of the horse but also the way it felt to him. These decisions objectively judged cannot be regarded as blameworthy. This is indicated by the fact that three experienced drivers and the trainer thought that his driving on that day was appropriate for this horse.
[30] We set aside the decision of the stewards and substitute a finding of not guilty of the offence.
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