Missen v Racing Queensland Limited
[2013] QCAT 360
| CITATION: | Missen v Racing Queensland Limited [2013] QCAT 360 |
| PARTIES: | Mr Dale Missen (Applicant) |
| v | |
| Racing Queensland Limited (Respondent) |
| APPLICATION NUMBER: | OCR126-13 |
| MATTER TYPE: | Occupational regulation matter |
| HEARING DATE: | 14 June 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | R F King-Scott, Member David Paratz, Member |
| DELIVERED ON: | 15 July 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The Decision of Racing Queensland Limited made on 17 May 2013, that Mr Dale Missen be disqualified as a jockey for 12 months, is set aside. |
| CATCHWORDS: | REVIEW - Horse racing – failing to run a horse on its merits – difference of opinion between experts after viewing video of race Racing Act 2002 (Qld) s 150 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr James E Murdoch QC instructed by Gabriel Ruddy & Garrett |
| RESPONDENT: | Mr A I James of Counsel instructed by Racing Queensland |
REASONS FOR DECISION
Dale Missen is a jockey of some 15 years experience. He has not been in serious trouble with the Stewards before the events which are the subject of this review.
On 27 April 2013, Mr Missen appeared before a Stewards’ Inquiry following his ride on Destars in the Maree Fitz 60th Invitational at the Gold Coast, a Class 1, 1200m race for colts and geldings.
At the conclusion of their deliberations, including a resumed hearing on 13 May 2013, the Stewards charged Dale Missen under Australian Rule of Racing 135(a) with not allowing Destars to run on its merits. They convicted him of the charge and disqualified his licence as a professional jockey for a period of 12 months.
Mr Missen applied on 17 May 2013 for a review of that decision.
REVIEW
Mr Missen seeks a review of the Stewarts’ decision by this Tribunal pursuant to s 150 of the Racing Act 2002.
The Tribunal’s jurisdiction to conduct a review is contained in Chapter 2 Part 1 of the Queensland Civil and Administrative Act 2009, particularly s 20. Section 20 provides that the Tribunal must hear and decide the review of a reviewable decision by way of a fresh hearing on the merits. The purpose of the review is to produce the correct and preferable decision.
Stewards are “functionaries of a very special character appointed for their knowledge of racing”.[1] However, be that as it may, the Tribunal is obliged to consider the matter afresh.[2]
[1] Evan v Winterbottom [1945] 47 WALR 79 at 85.
[2] See also Queensland Racing Limited v McMahon [2010] QCATA 73.
The comments of the Tribunal in Queensland Racing Limited v Ganderton [2010] QCAT 348 are apposite:
[15] Having concluded that we must now consider that matter afresh, we do acknowledge the weight and experience and dedication of Stewards in the industry and having regard to the collection knowledge and experience when deciding whether or not charges should be laid against riders under AR.135. In addition, taking into account that Stewards not only have the depth of knowledge as to the application of the rules, they are also attuned to what jockeys should and should not do in discharging their responsibilities to ensure that each horse is run on its merits.
THE CHARGE
Mr Missen was charged under the Australian Rules of Racing AR.135(a). That rule provides:
Every horse shall be run on its merits.
It is noted that in preferring the charge, the Chairman of the Stewards, Mr Norman Torpey, Senior Stipendiary Steward, commented that Mr Missen did not allow Destars to run on its merits ... in that [he] held Destars back from its real and legitimate opportunity of winning the race.
Particulars of the charge were:
a)passing the 600 metres and until near the 500 metres when travelling in a one wide position you failed to move Destars to a three wide position when you had this opportunity to move Destars into clear running prior to True Red moving up on your outside;
b)near the 400 metres you have failed to take a run between Tiger Print and Fine Gold when there was an opportunity to do so;
c)leaving 300 metres and until the 100 metres after initially grabbing hold of the near side rein with your left hand had failed to ride the horse with sufficient vigour that it did not allow the horse to make up ground. It is noted that when well back and without any winning chance, the horse ran on over the last 100 metres when you urged the horse forward vigorously with your hands and heels;
d)due to this matter Destars finished fourth in the race.
It is acknowledged by both parties that the charge does not require moral turpitude but is one that requires proof of a deliberate or conscious act or omission by the jockey.[3]
[3] See El-lssa v Racing Queensland Ltd [2011] QCATA 280 at [21].
The charge is a serious one, and in this case, resulted in a penalty of significant severity, being disqualification for 12 months.
The standard of proof in such cases is acknowledged to be on the Brigginshaw principle.[4] That is, that the Tribunal ought to be satisfied on the balance of probabilities but have cognisance in reaching its decision of the gravity of the charge and the seriousness of the consequences.
[4] Brigginshaw v Brigginshaw (1938) 60 CLR 336.
THE HORSE
Destars was a three year old gelding. It was favourite for the race firming from $3 to $2.60. It was considered by the Chairman of Stewards that there was quite a deal of support for the horse. It had had five previous starts. It had won a maiden event and then had been unplaced in the other starts. It was returning from a spell, it having last raced in January 2013. It had not been barrier-trialled before the race in question. It was the top weight carrying 58.5 kg.
Its trainer, Mr Les Kelly, who appeared at the Stewards’ Hearing, had a high opinion of the horse’s ability, commenting that it had a whirlwind finish. That did not appear to be borne out by its recent performances.
STEWARDS’ INQUIRY
The first hearing was held on the day of the race. Present was the Chairman of Stewards, Mr Norman Torpey, Senior Steward Paul Gillard and Casual Stipendiary Steward Geoffrey Lane.
The Inquiry focused on jockey Missen’s riding tactics over the last 600 metres. During the course of the hearing, Mr James of Counsel who appeared for the respondent, although critical of Mr Missen’s riding at the 600 to 500 metre mark of the race, conceded that his riding at that stage was not sufficient to support a charge under AR.135 (a).
There was some confusion as to what Mr Kelly’s riding instructions on the day were. At the resumed hearing of the Stewards’ Inquiry, Mr Kelly said his instructions were:
“Let the horse find its feet early, and start coming into the race from the 600 and make sure it has clear running in the straight, and it will run over the top of them”.[5]
[5] Transcript 13 May 2013, p.10, ll.27-30.
Mr Missen’s recollection of the instructions were:
“Jumped out [sic] and let it travel where it is comfortable and finish off”.[6]
[6] Transcript 27 April 2013, p.5, ll.38-44.
Mr Missen, in his affidavit said that he was aware that “Fine Gold” was on his outside. He knew it had ordinary form. He intended to stay inside of Fine Gold as he thought on straightening it would not finish off. He then intended to come out from behind the two leaders at some point past the 400 metre mark. He said it was never his intention to move any wider (between the 600 metre mark and the 500 metre mark) from where he was one off the rail into a 3 wide position to obtain clear running. He said that to do so would have lost his horse momentum and 3 or 4 lengths. Such a manoeuvre would have been detrimental to the horse’s chances of finishing off.
The Tribunal is not satisfied that Mr Missen’s riding at that point could support a charge under AR 135 (a).
It is relevant to note that at the first hearing and at the resumed hearing, none of the Stewards gave evidence. The Inquiry comprised principally of Mr Torpey’s concerns (the Chairman) put as allegations to Mr Missen with some questions by Mr Lane. Mr Gillard then asked some further questions at the resumed hearing.
It became apparent during the course of the hearing that only the Chairman of Stewards initially was critical of Mr Missen’s riding. Stewards Gillard and Lane observed the race from towers, situated respectively at the 900 metre and 500 metre mark, and were unaware of any criticism of Mr Missen’s riding until it was brought to their attention by the Chairman of Stewards and after they had viewed film of the race.
Both conceded that their observations in respect of Mr Missen’s conduct during the race was based on what they had observed on viewing the film of the race taken from various points on the course.
The crux of the allegations is found in the Chairman’s initial comments on the first day. He said:
“You remained in that position (one wide) and then approximately – about the 300 metres, there appeared that there was a run between again the two Heinrich runners – Matthew Palmer and apprentice Johnson. Whilst you gathered your horse up approaching the 300, I didn’t seem to notice any vigour or effort made to take that run between those 2 runners. It’s only over the final 100 meters of the event that I saw any aggression from you in relation to your urgency (sic) in your ride.”[7]
[7] Transcript 27 April 2013, p.2, ll.20-27.
Mr Missen’s response at the time was that Destars
“… started hanging out quite severely from the 500 metres mark all the way until straightening and became very awkward. He said it was very difficult to try and get at the horse and once he had got it straightened, he pushed it to the line to the best of his ability.”
Mr Missen maintained at the hearing on 27 April 2013 that Destars was still hanging out during the 300 and 100 metre mark, though it is not readily apparent on the race film, save when he applied the whip in the straight.
We should interpolate here that ‘hanging out’ was a term used to describe the actions of a horse in failing to take the turn and wanting to veer straight ahead in a tangential line or away from the rails., Mr Missen’s evidence before the Tribunal was that the horse ran awkwardly and was unbalanced between the 300 to 100 metre marks.
At the resumed hearing on 13 May 2013, whilst showing the film, there was this interplay between the Stewards and Mr Missen:
“THE CHAIRMAN: There. You get higher in the saddle. What was that for? There’s clear running ---
JOCKEY MISSEN: I’m not getting higher in the saddle.
THE CHAIRMAN: For a stride or two I believe you are. ... Shortly after gathering the horse up. Maybe Mr Lane can comment. Mr Lane is in the Hall of Fame as one of the most experienced jockeys in Australia. What would you describe Jockey Missen doing at that point, Mr Lane?
MR LANE: Well, I would say that leaving the 300 where he has changed his bridge and went for another hold, and there at that point, the left arm, there was no movement, no action at all – and leaving the 300 up until the 200. And also reported – reported that the horse was hanging out, and with my experience of race riding, if a horse is hanging out as badly, you would pull the whip through from your right hand to your left hand to straighten up, not continue to use the whip in your right hand.”
Mr Missen denied that there was any difference in his riding style and invited the Stewards to look at a film of other races in which he had been engaged to compare his riding style. Indeed, the Stewards came prepared and had previous film which was shown at the resumed hearing (and at the Tribunal). The films shown were all of Mr Missen riding the winning horse. The Stewards criticism was that when riding in the winning race, Missen’s hands were going forward but they were not in respect of the ride in question. Mr Missen thought this was unfair as he commented:
“It’s always easier to ride a horse forward when it’s going forward for you.”
Mr Gillard was critical of Mr Missen’s riding at the 300 metre point where it was suggested by Mr Gillard that a run presented itself on the inside of apprentice Johnson, and Missen did not avail himself of that run. Mr Gillard conceded that it was not a big run, which the Tribunal takes to mean that there was not a big opportunity, but the criticism was that Missen did not compete for it. Mr Missen conceded that the opportunity was there if his horse was travelling well, but he says that was not the case.
Mr Gillard was also critical of Mr Missen not taking a run that presented itself at the 200 metre mark. Mr Missen’s response was that his horse was under pressure at that point.
TRIBUNAL HEARING
Mr Missen gave evidence. He was shown the film of the race and questioned as to whether the film showed Destars as hanging out severely. Mr Missen agreed that the film did not show Destars as hanging out as severely as he felt it did on the day, but he did not resile from his assertion that the horse was hanging out, and in the straight it ran awkwardly and was unbalanced.
In response to the suggestion that he should have taken the run between the runners at the 200 metre mark he said that the horse was not going well enough to go forward. To quote his evidence at the Tribunal, he said
“I pushed the button but nothing happened”.
It was suggested that he did not ride Destars as vigorously as he did horses depicted in films of other races, or indeed as he did in the last 100 metres of the race in question. His explanation was that the horse was unbalanced and not running well.
Mr Missen contended that he got shuffled out of the position, that he balanced the horse with the whip, but that the horse did not respond appropriately. He then put the whip away and pushed the horse with hands and heels.
He said that he did not change whip hands as he is not confident doing it, and has had a couple of bad experiences in doing so.
Mr Missen’s case was supported by the evidence of an experienced retired jockey, Leslie Ian Harris. It was acknowledged by the Respondent’s witnesses that Mr Harris was a highly regarded and very experienced jockey. Mr Harris did not know Mr Missen and was not aware of his riding style. If there was criticism directed towards Mr Harris, it was that, unlike the Stewards who were familiar with Mr Missen’s riding style, it would be difficult for Mr Harris to comment on such matters. Mr Harris did not agree with this proposition.
Mr Harris’ evidence was that:
§at about the 400 metre mark a combination of factors occurred almost simultaneously. The horse racing inside Destars, “In Memoriam”, commences to move out on the point of the corner taking Destars noticeably out to 4 horses deep. As they straighten a few strides later, a run momentarily presented itself between “Tiger Print” and “Fine Gold”. Mr Missen looks to be trying to take that run. However, the horse in front and to the outside of him was at the same time going forward and coming slightly in and the run closed before Mr Missen could take advantage of it. In fact, Destars lost his position as a result of these incidents and can be seen to lose some ground;
§Mr Missen gathered the horse up, took the necessary hold to keep the horse going straight and pulled the whip in the right hand and gave the horse 3 hits. The horse drifted out close to the heels of another runner. Mr Missen put the whip away. Mr Missen appears to have maintained his hold on the horse and the horse responds to hands and heels riding and made up ground in the last bit to the finish to finish fourth;
Mr Harris also made the observation from the film that Destars raced with some apprehension and exhibited a tendency to want to hang during the running of the race. He commented that under the circumstances, Mr Missen managed to ride the horse during the race without causing any inconvenience to other runners, whilst giving his mount as much opportunity as possible.
Mr Harris commented that allowing Fine Gold to shepherd Destars around the turn, when Destars was hanging out, was very professional riding by Mr Missen.
Mr Harris said that it was reasonable for Mr Missen to wait to use the whip, and that it was a safety issue. He said that otherwise Destars might have hit the heels of the horse in front, and might have brought himself down and a couple of other horses behind him. He said that in his opinion that Mr Missen had done the right thing.
Counsel for Mr Missen, Mr James Murdoch QC, put to the Stewards that Mr Harris’ observations were reasonably open on an interpretation of the film. The Stewards agreed.
The three stewards gave evidence at the hearing and several films were shown, not only of the race in question but other races involving Mr Missen. The latter films were used to show Mr Missen’s riding style.
Mr Lane was a very experienced jockey in his former life and a member of the Hall of Fame. Mr Lane’s criticism of Mr Missen’s riding is based entirely on his view of the film, his knowledge of Mr Missen’s riding style and his review of films of Mr Missen’s earlier rides. He disagreed with the proposition that Destars was trying to hang out. His observations of the horse did not suggest it was hanging out. He was critical of Mr Missen for not taking corrective action with the whip to steer the horse back in. He referred the Tribunal to a film of an earlier race where Missen does this.[8] Mr Missen also changes the whip from his right to his left hand and applies it in the straight but not, in the Tribunal’s observations, with a great deal of confidence.
[8] Race 8, Gold Coast 23 March 2013.
Mr Lane also suggests that Mr Missen should have moved Destars three wide to get into a challenging position at the 500 metre section of the race. Mr Missen’s response at the Tribunal was that he would have lost 3 to 4 lengths on the leaders. As stated earlier, we do not think that his actions or lack of action at that stage could constitute conduct to support a conviction under AR135 (a).
Mr Lane also raises Mr Missen’s failure to take the run between Tiger Print and Fine Gold at the 400 metre mark. In fact, Mr Lane says that Mr Missen steered his mare away from the gap, allowing another horse, In Memoriam, to avail itself of the run.
Criticism was also levelled at Mr Missen for not following the trainer’s instructions. Having not previously ridden the horse before, Mr Lane says it is important, if at all possible, to follow those instructions. It appeared to be conceded at the hearing before the Tribunal that at least by the 400 metre mark, Mr Missen had put his horse in a position to win.
Mr Lane was also critical that Mr Missen did not ride the horse with any vigour save for the last 100 metres of the race, and, if it was hanging out then, Mr Lane questioned why he continued to hit it with the whip in the right hand which, in his opinion, would only cause it to hang out further. He advised that the better course would be to change hands and apply the whip on the left side. He referred to Mr Missen’s having done this in the Gold Coast race referred to earlier.
Mr Missen had earlier given evidence that he had difficulty changing whip hand and did not have a lot of confidence in doing so. His counsel showed Mr Lane a film[9] from a Townsville race that exemplified this. In that film Mr Missen actually drops the rein by trying to change whip hands. Interestingly, on this occasion there is also an inordinate delay while he gathers the reins and before he applies the whip, fortunately, on this occasion his charge won but it was a near run thing. Mr Lane appeared to accept the film of this race showed Mr Missen had some difficulties with changing whip hands.
[9] Ex 3.
In cross-examination, Mr Torpey was asked why the horse was not inspected by a veterinary surgeon and why it was not swabbed after the race. It was suggested that a poorly performing favourite that failed to gain a place would normally warrant Stewards ordering a veterinary inspection and a swab. Mr Torpey’s response was that this was not always the case.
It appears to the Tribunal that this pre-determined that Mr Torpey’s opinion that the horse’s poor performance rested solely with the jockey rather than any physical ailment, could be the only finding of the Inquiry. It would have been more satisfactory if an inspection had been conducted, and a swab had been taken, and the possibility of a physical ailment or doping, ruled out.
THE FILM
The Tribunal considers the description by Mr Harris of what occurred at the 400 metre mark accurately depicts what can be seen on the film at that point. [10]
[10] See paragraph [40].
The film of the last 200 metres of the race viewed from the rear clearly shows that when Mr Missen applies the whip 3 to 4 times with his right hand that Destars veers out to the left and towards the runner just in front. Mr Missen then puts the whip away, and Destars straightens and is ridden hands and heels to the finish line.
Obviously, the sensible thing would have been for Mr Missen to have changed hands and applied the whip on the left side which may have straightened Destars without losing any ground. Mr Missen does take some time from when he appears to gather up the reins to when he first applies the whip. Mr Missen explained this by saying that the horse was unbalanced and couldn’t stretch out.
There does appear to be a notable period of time, estimated to be 5 to 6 seconds before the whip is applied. Mr Missen stated that he made a conscious decision to keep the reins in the left hand. The Tribunal accepts that Mr Missen does not have confidence in changing whip hands in the course of a race. His explanation for the delay, that the horse was unbalanced or running awkwardly, is difficult to refute merely from observing the film. Destars certainly was hanging out when the whip was applied on its right side.
DISCUSSION
The Tribunal had before it evidence from two highly regarded and experienced jockeys who have viewed the same evidence, neither, being in a better position to judge the riding skills of Mr Missen than the other. They have reached a contrary view in respect of Mr Missen’s manner of riding in the race under review.
The Tribunal rejects the criticism of Mr Harris’s evidence based on the fact that he was not familiar with Mr Missen’s riding style. That criticism was based on the fact that in other races Mr Missen rode his charges home with considerably more vigour, but the same is apparent in the race under review over the last 100 metres, albeit without the use of the whip.
The Tribunal accepts that both of the jockey witnesses held their opinions honestly. They have come to well found and understandable, but opposing, views.
Much of the opinion of several witnesses comes from their review of videos after the race. Mr Gillard conceded that in looking at a video that “it is in the eyes of the beholder”.
Mr Missen noted that the race happens at 60 to 70 kilometres by hour, not looking at it frame by frame on a video.
A notable feature of this case is that despite extensive enquiries, there was no unusual or irregular betting transactions on the race. There was a complete absence of motive for Mr Missen to “pull the horse”. A motive is not a necessary requirement to make out the charge under AR.135 (a), but it would certainly explain conduct that is alleged to be conscious and deliberate, but is otherwise unexplained.
Decisions which, with the benefit of hindsight, can be seen as poor, or even a lack of skill or proper diligence on the day, are not sufficient to make out the charge. There has to be an element of intent. The Tribunal is not satisfied that such an element exists in this case.
The Tribunal is satisfied that all witnesses were frank and truthful in giving their evidence.
The issue for the Tribunal, is whether it is satisfied that Mr Missen made a deliberate and conscious attempt not to allow Destars to run on its merits. The Tribunal is not satisfied on the Brigginshaw standard that the charge has been made out.
The Tribunal was invited to consider a lesser charge. However, Mr Murdoch QC submitted that the Tribunal’s powers of review did not permit it to bring an alternative charge. The Tribunals powers to review are contained in Chapter 2 Part 1 Division 3 of the Queensland Civil and Administrative Act 2009. Section 19 (c) provides that:
“In exercising its review jurisdiction, the tribunal-
(c) has all the functions of the decision-maker for the reviewable decision.”(Our emphasis).
The Respondent did not prefer any lesser charges against the Applicant. Neither party could refer us to any decision where this Tribunal had considered a lesser charge on its own initiative, and we do not propose to do so.
Having considered all the evidence, we are not satisfied that the charge is made out. Accordingly, the decision of Racing Queensland, to disqualify Mr Missen for 12 months, is set aside.
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