Morris v Way

[1988] HCATrans 264

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P 26 of 1988

B e t w e e n -

BRUCE ALAN MORRIS

Applicant

and

NEVILLE JAMES WAY

Respondent

Application for special

leave to appeal

WILSON J
BRENNAN J

TOOHEY J

Morris

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON FRIDA~. 28 0CTOB-ER 19&8.,.:,,,..AT 11.18 AM

Copyright in the High Court of Australia

PlT6/l/HS 1 28/10/88

MR A.J. SULLIVAN:  May it please Your Honours, I appear

for the applicant. (instructed by Colin W. Love&Co)

MR C.L. ZELESTIS, QC:  May it please Your Honours, with my

learned friend, MR M.W. ODES, I appear for the

respondent. (instructed by Parker & Parker)

WILSON J:	Yes, Mr Sullivan.
MR SULLIVAN:	Your Honours, there are two matters, 1n my

respectful submission, of special importance in this

case. First is the improper interpretation of the Australian rules of racing, and in particular what

I might call the general power conferred under

rule 175(a). That is a matter of importance, in

my respectful submission, because the interpretation

the Full CoBrt of Western Australia has placed upon
that matter is one which would appear to give it an

element of strict liability. It is a rule of racing

which is in force throughout Australia and it covers

everyone who trains horses, is a jockey, or is an

owner, or indeed merely wishes to visit a race course.

It is my respectful submission that it is,

therefore, important. It is also important to

Your Honours because it raises the question in the interpretation of disciplinary or penal rules of a domestic tribunal, whether the same principles of

interpretation are to be given to such rules as is

-given to penal rules, or penal statutes or provisions

in an Act·, and Your Honours have considered that

question recently in the case of MURPHY V FARMER.

It would be my submission that this is an appropriate

vehicle to also consider that aspect of the matter

and in my researches - I do not profess that I found

every case - but there is only one unreported

judgment I have found where that approach has been

adopted, and that is the case of RUSH V MODIFIED

SPRINT CAR ASSOCIATION in an unreported decision of

Mr Justice Lee which I have extracted for Your Honours

and it is in the blue folder, where His Honour does

a disciplinary tribunal you import the same approach	in fact say that in a situation of a penal rule of
as is apparent in statutes.

Your Honours, I am sorry that it is not

numbered, but it is about half-way through the bundle

of the documents and the relevant passage of

His Honour Mr Justice Lee's judgment starts at page 5

and goes through to page 7, and I wi 11 take Your Honours

to that if I may in a little detail in due course.

So, in my respectful submission, that is the first

matter here of public importance. The second matter,

Your Honours, is again one which, in this particular

context, in my respectful submission, has not

received a consideration by a superior court, or

certainly by a court at this level, and that is the

extent to which the principles of natural justice can

PlT6/2/HS	2	28/10/88
Morris

be offended, not only when the person charged

arguably does not know sufficient particulars of what he is charged with, but when also it appears that those adjudicating are confused or in doubt as

to what theft are adjudicating upon. Thoreau once

said that, 'It takes two to speak the truth. One to

.. speak it and another to hear it". In my respectful

submission, that is a cardinal principle of natural

justice. Not only does the accused person need to

understand what he is accused of, but equally the

person who is hearing the charge needs to understand

and grasp what is involved in it if he is to give the

accused person a fair and proper hearing.

It is my respectul submission that on the facts

of this case one has a situation where, as Mr Gleeson who appeared before the Full Court put it, "confusion ran rampant throughout the whole of the hearing before

the stewards and then on the internal appeal before
the committee'.' Indeed, the Chief Justice

Mr Justice Malcolm acknowledged in his judgment, which I will take Your Honours to, that if in fact

there was a misconstruction of the relevant rule by

the stewards and/or the committee, inevitably unfairness

would result to the accused. His Honour, of course,

said there was no misconstruction because he said

that the committee has to be - it has to be inferred

from the evidence that they acted upon the base

of strict liability and that was his construction

of the interpretation of rule 175(a).

That is how, if you like, Your Honours, the

first question of public importance arises, the

interpretation of rule 175(a1 because it is an essential

ingredient in the decision or determination as to

whether my client was given natural justice. So,

Your Honours, they are the reasons, in my respectful

submission, for special leave. I have set them out in

some more detail in the outline of submission, and

Mr Love has also dealt with that in his affidavit.

If I might then turn to the errors, in my respectful

submission, which can be identified in the judgment

of the Full Court, it is necessary in the first place -

and again as I have sought to deal with in my outline of

submissions - to distil the reasoning process adopted

by the Chief Justice, in particular, in the Full Court.

In my outline of submissions, Your Honours, which you will find in the blue volume, the first document

in the blue volume, I have sought at the bottom of

page 2 onwards to set out what, in my submission, is

the path of reasoning His Honour followed to arrive

at the decision without any disrespect to the judge,

because it was a difficult matter and His Honour has sought to deal with the matter very comprehensively.

His judgment is a very long one and aspects of it

seem to have been taken out of the sequence one would

normally expect, but it is apparent from His Honour's

PlT6/3/HS	3	28/10/88
Morris

reasoning that he first took the view - and we do

not dispute this - that subject to the stewards or

the committees properly construing the relevant rule

it was up to them to determine whether particular conduct

fell within the rule.

With respect, we do not take any issue with that

as a matter of proposition. We would lay emphasis,

however, on the proviso, on the proper construction

of the rule as being the matter which we say the
stewards are bound by the rule, the committee are

bound by the rule equally with the person who faces

punishment under it. At page 106 to page 107 of the

although one must say there is a paucity of authority

appeal book the Chief Justice specifically stated
that if the stewards or the committee had misconstrued
the rule, then inevitably there would unfairness to
the applicant. That passage appears at the very foot

of page 106 and goes over to the top of page 107.

on the point, one would think that that must be an

inevitable concomitant of such a finding.

The third matter which His Honour seems to have

applied - and this is, in my respectful submission, the

critical issue of the whole judgment - is that knowledge

or mens rea was not an essential ingredient of the

charge or a breach of rule 175(a). Your Honours will

doubtless recall from reading the judgments that the

essence of this case is the finding of a battery

device used to stimulate a race horse, or with an

ability to stimulate a race horse to make it perform

better or worse, as the case may be, on premises owned

by my client. It was found in a bottom drawer of a

house which was not used as a residence on the property,
but was used occasionally by people who go to the

toilet or to have a cup of coffee and it was found by police executing a search warrant for a totally

unrelated purpose, for the purpose of seeing whether

there were some stolen exotic birds on the property.

The stewards, although they had available to

them under Australian rule of racing 175(hh) a

specific offence dealing with batteries - and I will

take Your Honours to that in a moment - chose ~
to adopt what might be seen as a hybrid approach.

Neglecting to use this specific rule they sought to

charge my client with the general rule 175(a),

an improper practice, which was having on your property

an electronic device; whereas it was manifest under

subrule (hh) in the light of decisions in this Court

such as HE KAW TAH V REG recently that, for the

concept of possession one has to have knowledge or

a mental element, the approach which, as the

Chief Justice in the court below found the stewards adopted, was that strict liability would suffice, or

knowledge was not necessary. Indeed, one would

think that must have been, if one can speculate, the

PlT6/4/HS	4	28/10/88
Morris

reason why they pursued the matter under subrule (a)

rather than under subrule (hh) because there was no

greater penalty for a breach of rule 175(a). The

penalties are the same whatever rule is breached.

So we have a situation, in my respectful

·submission, where the starting point is that the
stewards have taken what could be seen in the normal

course to be an unusual course, to use a general rule

rather than a specific one, but to attach to the general

rule the particulars one would normally expect to find

in relation to the specific rule.	I will take
Your Honours - - -

BRENNAN J:  But that is not quite a fair description of the

two rules, is it? I mean, there is a question under

subrule 175(hh) of possession of a particular thing ---

MR SULLIVAN:	Yes, Your Honour.
BRENNAN J:	- - - and under the charge as formulated pursuant

to subrule (a), what was really being put was the use
of premises on which the object in question was found.

If one thinks of how premises of a racing kind might be used, what would happen, for example, if amongst

the veterinary supplies of a trainer there was found

a large quantity of a stimulant drug?

MR SULLIVAN:  Your Honour, indeed, if I could extend that

example before answering Your Honour particularly,

what would happen if on a training premises one had

a large jar of coffee because caffeine is a stimulant

drug? Would that mean, with respect, that someone

could be said to have in his possession, as a matter

of strict liability, use or control of a premises

with a stimulant drug on the premises?

WILSON J:  That raises a different issue of fact, Mr Sullivan.

Could you stay with Justice Brennan's example

that you have on premises for training race horses

the - - -

BRENNAN J:	A stimulant of some sort, an obviously - - -
WILSON J:	- - - an obvious stimulant having no other purpose. misunderstand what I am putting to you, for your
BRENNAN J:	The real question - so that you will not

observations - it is this. The real purpose, of course,

of strict liability provisions in the law is to ensure

that the person upon whom the responsibility is cast

is brought to the highest pitch of performance to

ensure that the thing prohibited does not happen,

in other words, it is an anti-negligence provision,

rather than a knowledge provision.

MR SULLIVAN:  Yes, Your Honour, with respect, I would agree

that that is the philosophy, to make the owner vigilant,

PlT6/5//HS	5	28/10/88
Morris

if one likes, to ensure that what are regarded as

unsatisfactory practices cannot be perpetrated on

his premises but, in my respectful submission - and

that is doubtless, if on a proper construction it

was strict liability, that would justify the rule in

that form; but in my respectful submission, when

-one looks at the construction - Your Honour, I will

come to this in a bit of detail, if I may - when one

looks at the context in which this rule is set out

it is apparent, in my submission, that strict liability

was not intended in this situation, and I will take

Your Honours to the factors in a moment.

Your Honours, I would have to concede, if I may

say so, that if on a proper construction of the rule

strict liability was sufficient then this application

could not get off the ground, and that is why I say,

with respect, Your Honours, that that is the cardinal

point in His Honour's judgment and, with respect,

the cardinal point Your Honours have to consider in this

application, as to whether there is a sufficient likelihood

of error by His Honour in the finding that there was no

requirement for knowledge, but rather it was of a

strict liability approach.

BRENNAN J:  Am I right in thinking that your first major

attack .is on page 105 of His Honour's judgment?

Is that the central point?

MR SULLIVAN:	Yes, Your Honour, that is the first major attack.
WILSON J: ·	Did the stewards - they were not required to

identify the question of strict liability or no,

were they?

MR SULLIVAN:	No, Your Honour. There was no - - -
WILSON J:	They simply proceeded on the basis of here was a

device found on the premises owned by the applicant and

they regarded the presence of that there as an improper

practice within the meaning of the rule? .. ':· ,.n tr·
. i - :; r	___ .., - '= r ' - -
'•

MR SULLIVAN:  Yes - well; with respect, I would agree with

what Your Honour says is the approach, but one

cannot - - -

WILSON J:	I am seeking clarification, rather than putting a - - -
MR SULLIVAN:	Yes. It is difficult, Your Honour, when one

reads the transcript of the steward's inquiry to know
precisely what basis they did proceed upon because

certainly my client, on several occasions, disavowed any knowledge not, in my submission, to any specific

inquiry, but generally disavowed any knowledge of

the object being on the premises and there are several

comments made that the only person who spoke on behalf

of the stewards at the inquiry before them was the

PlT6/6/HS	6	28/10/88
Morris

chairman, with one minor exception, and he did make

at least two comments which would indicate that he was

looking at the matter in a question of strict liability. the chairman of stewards at about line 40 when there

has been a discussion as to what occurred and the

-chairman at line 40 says:

But there is no doubt it was on the

property this day that the GIB -

and he says he was not there, and then at page 21,

about line 20, when Mr Morris has again disavowed any knowledge of the existence of the device the chairman says:

You are well aware that it 1s a racing offence to have these?

Leaving aside the ambiguity inherent in the word "have", those passages suggest that, indeed, that was the approach

of the stewards, one of strict liability. The fact has

been expressed or expanded, with respect, by

Your Honour Justice Brennan, that it was sufficient that

my client controlled the use of the premises and that

the device was found on the premises.

BRENNAN J:  That seems to be inherent in what was put to

Mr Morris on page 20, line 5, and his response at

line 10. It seems to address precisely that point.

MR SULLIVAN:  Yes, Your Honour, with respect that seems - and

indeed when one sees the approach adopted at the trial

by counsel for the club, and the stewards and the

committee are, of course, organs in the sense of the

club - and that appears at His Honour the Chief Justice's

judgment at pages 86 to 87 - Your Honour will see that

the club, at the trial of these proceedings was saying,

"that is the way that it was approached below, namely

as a matter of strict liability - you controlling the

basis, and it is on that basis I would seek to attack premises", and I approach the matter today on that the decision below. But it involves the question

of the interpretation by reason of it.

If I might just revert, with the Court's permission, to going through the essential elements

of His Honour's reasoning. Having found that

mens rea was not an ingre.diet'lt it fol lowed, in

His Honour's reasoning, that there was no need to

particularize knowledgeP as an ingredient of the charge,

or otherwise make the applicant aware of it, and

equally it did not matter, one would speculate or

develop whether some of the stewards thought strict

liability was enough and others thought some higher

standard was required because if they found him guilty

on a higher standard then we could have no complaint.

So that was His Honour's - if I might respectfully

say so - his primary approach.

PlT6/7/HS	7	28/10/88
Morris

He did, however, turn then to consider the

question on the basis that he may be wrong in his

interpretation of rule 175(a) and the approach

His Honour adopted there, with respect, was this, and I set it out again at page 3, that although he

recognized that if knowledge was an ingredient, then ·it may have made the form of charge or the awareness of the applicant may have been insufficiently aroused,

if this was a case in a court of law - he sets that

out at page 99, point 28 - that when you consider

that this.is a domestic tribunal it is not necessary

for them to act with the same scrupulous care as a

court of law and, semble, it is not necessary for

them to indicate that some consciousness or knowledge

of the impropriety was made clear to the applicant.

(Continued on page 9)

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Morris

MR SULLIVAN (continuin~):  We, of course, Your Honours,

take issue with that proposition. It is not
strictly a question of principle in the sense
of what the rules of natural justice or
procedural fairness say, it is a quesiton of

the application of the principle. There is much

·. law and much was made by this Court which states

that the content of the rules of procedural

fairness is variable and depends on the circumstances.

It would be our submission, however, in this

particular case, when one considers the drastic

consequences, the fact that this was not an in~uiry

like other stewards' inquiries which may have

to be determined quickly between races but it

was a preplanned exercise, .indeed, with

an adjournment and the like, that the~e was no

right, nor, in fact, no legal representation

at the inquiry before the stewards, that the

unshrinkable minimum, as I have perhaps too

colourfully expressed it, of the content of natural

justice in this .situation is that someone knows

sufficient of what he is being charged with to

mount an effective defence.

When the choice is between a defence of

strict liability or knowled~e, in my respectful submission, and when there 1s such an ambiguity in the way the charge is formulated, that requirement

to bring home to the mind of the applicant the

mens rea - if it is involved - is one of fundamental

importance, in my submission.

WILSON J:  But suppose the committee had made it plain

that they regarded it as - well, either way,

either of strict liability or requiring some evidence of knowledge on the part of Morris, Morris really addressed his c~se on the basis

of the latter, did he not? I mean, he said,

"I certainly didn't know it was there". In other

words, he denied that element of the charges.

MR SULLIVAN:  With respect, Your Honour, the problem is

one does not know whether Mr Morris was addressing

that because he thought that that would exculpate

·mm or minimize the pena 1 ty or - :fl'eing a lay person

or whether it was to overcome the charge.	For
instance, if it was a charge - - -

WILSON J: It was said at the time when penalty was not

under consideration.

MR SULLIVAN: 

Yes, but, Your Honour, with respect, we are

considering a lay man rather than - he does not really
know, in my respectful submission, the order
in which things are going to occur. But, more

particularly, Your Honour, he never disputed

the existence of the device on the property.

PlT7/l/ND	9	28/10/88
Morris

If he had been clear there was a matter of strict liability, he may well have adopted a different

approach at the inquiry, pleaded guilty to it

and then sought to explain on mitigation these

aspects which went to knowledge or otherwise.

Certainly that would have been a course which

·counsel would have adopted, perhaps, if that

was approached .. Counsel may well have argued
with the relevant tribunal as to their
interpretation but if they maintained it would

not have dealt with the question.

And Mr Justice Kennedy, in my respectful

submission, identifies the possible prejudice in his judgment to a person such as Mr Morris when they are faced with such confusion. But,

in my respectful submission, more important

than the problem which Mr Morris faces when

there is no particularization, if knowledge is

an element, is the looking at the matter from
the point of view of the person determining the

charge.

If they are not aware of what is an essential

ingredient of the charge, or are unsure about

or some of them are unsure about and some are

sure, then as the Chief Justice says, it is

inevitable, in my submi~sion, that unfairness

must result or must be seen to result because

one cannot - an inappropriate analogy, perhaps

foreign to two members of this bench but if a

referee in a Rugby match was to think that you

could only score a try if you bounce the ball

ever 10 metres, hardly a fair result would ensue

to the parties, in my respectful submission.

So, in my respectful submission, that is

the cardinal matter. Both are important.

Together it amounts to a clear denial of natural

to amount to a sufficient denial of natural justice	justice but either one by itself also is sufficient
to avoid the suspension imposed. And that,
Your Honours, is the aspect that the Chief Justice
does not address in his judgment. He addresses
the point of "if he is wrong" on the question of knowledge as to whether the accused was unfairly dealt with by not having the charge properly
particularized but he does not, with respect,
deal with the matter which he has himself raised of whether in that circumstances there is inherent unfairness because it is apparent that the rule
has been misconstrued by the stewards.

It must be taken that he would agree with

that proposition having made the statement I

have referred you to that there was inevitable

injustice in that situation.

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Morris

BRENNAN J:  What do you say about what appears to be

perhaps the Chief Justice's alternative basis

and that is that one looks at the element which
is encompassed by the word "improper" and you
have something on premises which ought not to

be there? Whether you say that the person who

· is in control of those premises has engaged in

improper practice depends upon the extent of

his culpability for allowing that thing to be

there and culpability depends inter alia on

knowledge or suspicion or care and so one looks

to see the totality of the circumstances and

says, "In these circumstances, in my view, since

the thing was there and he didn't take all the

precautions that were necessary, then it was

an improper practice".

MR SULLIVAN: 

Your Honours, if I might say two things in

response to that, if that was the view which
was being taken and the gravamen of the real charge

against  -my client, again fairness would have

dictated that he be apprised of that material.

So he could have led evidence as to the steps he did take or did not take or the degree of

supervision that he did maintain on the property

or the like. There was no such evidence, and it

is quite plain there were no questions directed

to that by the stewards, there was no evidence

volunteered by my client to the stewards. It

was not contemplated before the stewards or before
the committee that that was the interpretation
of the charge.

Your Honour's question raises, if I might

say so with respect, the very question of how
ambiguous this charge is. There are, with respect -

although Mr Justice Wallace, in his judgment,

dismisses them as legalisms, there are at least

four different interpretations one can place

on the constitutent elements of the charge which

has been placed. And Mr Gleeson, in fact, gave

a list of six of them in the Full Court -

six different interpretations.- one of which

was Your Honour's interpretation.which has just

been placed upon it.

BRENNAN J:  I am not putting that interpretation on it,

I am putting that proposition for your observations.

MR SULLIVAN:  I am sorry, Your Honour, the approach you have referred to. But that marks, in my respectful

submission, in a clear way the great vice of
the charge being the ambiguity. It is from the
ambiguity of the charge where the other problems

necessarily arise, in my submission.

WILSON J:  But as I understood you to say in opening,

Mr Sullivan, the application for special leave

PlT7/3/ND	11	28/10/88
Morris

ultimately depends on whether you make good your

attack on the view of the majority in the Full

Court that the rule 175(a) is a rule of strict

liability. You do not get any help from

Mr Justice Kennedy on that point, do you, really.

His Honour was really a dissentient on fairness

or unfairness.so perhaps you ought to take us

to the rule.

MR SULLIVAN:  Yes, thank you, Your Honour. I am obliged

to Your Honour. I was endeavouring to answer

Mr Justice Brennan's question.

WILSON J: I am not criticizing you, Mr Sullivan, I am

just wanting to see where we are going.

MR SULLIVAN:  Your Honour, in outline I deal with that

submission which Your Honour Mr Justice Wilson
has just referred me to at page 4 of my submissions.
and the first thing, if I might say to Your Honours,

I have only referred to subrules (bh) and ( 1)

in paragraph (a) but if I might take you to the

document which is the first behind the submissions

which is a photocopy of extracts of the

Australian rules of racing and invite Your Honours

to look at the pages numbered 70 to 71 of that

extract.

That sets out in full Australian rule of

racing 175. My submissions essentially are these,

if one looks at the rules as a matter of construction,

that leaving aside for the moment (a), every

one of the other rules, that is (b) to (1) inclusive,

excluding (k) for present purposes, involves

a concept of knowledge or moral turpitude. One

sees (b), someone who does something corruptly;

(c), again, someone who does something corruptly;

(d), someone who gives a fraudulently false

description of something; (f), someone who refuses -

a conscious refusal to do something; (g), a false

or misleading statement, in the light of IARME~

in my submission, deliberately false; (h), someone

who administers a drug "for the purpose of

affecting" - so there is another knowledge or

consciousness provision invoked; (hh) which I

will_r~fer. to in mor~ detail - th~ sp~cific bat~erx

provision - one who' uses or has in his possession',

words importing knowledge; (i), someone who

offers information for monetary rewards or someone

who connives at that for doing so.- again, with

respect, matters involving knowledge or consciousness;

of course, is in dispute - 'or insulting behaviour" -(j), a person guilty of "imr.roper" - that word,

insulting behaviour, again with respect, is something

which indicates, in my submission, a knowledge

of it; (k):

PlT7/4/ND	12	28/10/88
Morris

Any person who has committed any breach

of the Rules.

That, without going through the rules in any detail, cannot really be used in interpretation

one way or the other. (1):

Any person who attempts or conspires -

et cetera. And, of course, Your Honours have

been hearing - or two of you have been hearing

debate about YORKE V LUC~, and YORKE V LUCAS

establishes, of course, the requirement for

knowledge in that situation.

So one then has each of the specific rules,

in my submission, involving the concept of doing

something knowingly or deliberately or intentionally.

They all seem, in the interpretation of this

clause, to be intended to be specific applications

of subrule (a).	But even if they are not, one
goes to (a) and one has the same pattern.	The

first word used - the first practice to be frowned

upon is "dishonest" practice; the second one 11 11

1s corrupt practice; t et ir one 1s • " • h h' d . "f rau u ent d 1

practice; and the fourth and fifth are "improper"

or "dishonourable" practice.

In my respectful submission, each of the

words "dishonest", "corrupt", "fraudulent" and

"dishonourable" clearly involve a concept of

knowledge. They involve someone doing something

knowingly and it being knowingly offensive to
a known standard. It is my submission that when
you have a word like "improper" sandwiched between

such words and a provision such as subrule (a),

included in a context of the whole of rule 175(a),

the proper construction must be that "improper",

if it is ambiguous, and in my respectful submission

that is another matter in any event, but if it

is ambiguous the proper construction must be

the intention to have the same elements of knowledge

available as an ingredient or not available -

1 should say as a necessary ingredient of the

impropriety.

The other word in subrule (a), in my respectful

submission, which confirms that even further, is

that we are talking about an improper practice; not

an act, but a practice and, in my respectful

submission, the word "practice" connotes the

habitual or continued doing of something. That, in

my respectful submission, also, in turn, involves

the concept of knowing that you are doing it. I

suppose one could say that one was in the practice

of snoring but it is not really a proper use of the

word. "Practice" normally involves a conscious

element of sorts. So, in my submission, all the

PlT7/5/PLC 13 28/10/88

Morris

surrounding circumstances in which the relevant

phrase is found suggests the proper construction

is that the relevant mental element is required.

It is that approach, in my respectful submission,

which is in conformance with what this Court has

said about penal statutes and I have referred

Your Honours, and I do not need to take you to it,

to MURPHY V FARMER. And Your Honours will recall

that is the question under the CUSTOMS ACT of

making a false statement. I have just set out the

headnote of that report in those materials. But,

MURPHY V FARMER that where there is an ambiguity	in essence, the majority of this Court said in
in a penal provision you interpret it benignly
against the person charged and require a knowing
element. Mr Justice Lee is the only judgment I
can find which specifically applies that concept
to the rules of a club and I have referred
Your Honours to that. It is the case of
RUSH V MODIFIED SPRINT CAR ASSOCIATION OF NEW SOUTH
WALES. It is a decision in 1986. It is, as I say,
about the fourth document from the back of that
bundle of documents I have handed up to Your Honours.

That, Your Honours, concerned an assault at

a speedway and the relevant fight, if you like,

occurred in the pits of the speedway. The rule

provided that if you did behave improperly or were

guilty of misconduct on a speedway track then you

were liable to be punished. And the relevant rule,
Your Honours, says, at the bottom of page 2:

Any member who ... assaults a member ... whilst on any speedway track -

and His Honour identifies the question then.

The question is whether that:

includes an assault in the pit area away

from the actual track itself -

His, Honour then goes on to deal with the meaning

of the word "speedway" and "track" but at the bottom

of page 6 starts to deal with the principles to be

adopted in construing such a rule. He says:

Furthermore, in considering the

ambiguity raised by the rule it is important

to bear in mind the words of Isaacs Jin

DICKASON V EDWARDS, 10 CLR 243 at 265 where

his Honour said "No rule is better established

than that where two meanings are possible you

must take the more reasonable one. The most

recent instance in which that is laid down is

ATTORNEY-GENERAL V TILL where Lord Loreburn LC

says:  'where various interpretations of a

P1T7/6/PLC	14	28/10/88
Morris

section are admissible, it is a
strong reason against adopting a

particular interpretation if it shall

appear that the result would be

unreasonable or oppressive'."

So, His Honour then deals with that proposition and

follows that proposition and concludes that in

conformance with that proposition this rule should

be read strictly and that the words "speedway track"

would not include the pit area.

It is my respectful submission that the

interpretation here is an a fortiori one: we

are talking here about whether it is much more akin to the FARMER situation of benign interpretation of

penal provision, in my respectful submission, that

one does not, in a situation involving serious

consequences, where there is an ambiguity, determine

the ambiguity to the possible detriment of the

person charged. So they are, in essence, Your Honours,

my reasons for submitting to you that there is a

strong probability that there was an error of

approach by His Honour Chief Justice Malcolm in

his conclusion that "improper" in this context

did not involve a mental element.

I have referred Your Honours to cases in

my outline of submissions. I do not wish to take

you to them. with respect to the propositions

as to construction, I am sure Your Honours are

very familiar with. So, my submission to Your Honours

is that on the wording of that rule it is plain

that knowledge or a mental element was involved.

It follows axiomatically, in my submission, even

on the Chief Justice's view, that my client was

denied procedural fairness because even on the

Chief Justice's view, in that circumstance, the

stewards and the committee have misconstrued the

rule and therefore have not given themselves a

fair opportunity, nor the person charged, to

determine what has to be found in order to convict

him of the offence.

Your Honours, the other matters which I deal with in my written submissions are less cardinal

than that. I have sought to identify, in the

remaining paragraphs of my written submissions,

other areas His Honour fell into relating to the

question of particularlization of charges and the

like. As Your HonoumMr Justice Brennan and

Mr Justice Wilson rightly observed, with respect,

one could not probably complain about

particularization in this case if knowledge was not

an element so that is the reason, with respect, we

have focused upon that as being the cardinal issue

in this case.

PlT7/7/PLC	15	28/10/88
Morris

The other matter however, Your Honours,

which the Chief Justice seemed to rely upon was to say, "Well, in any event, there was evidence

of knowledge." In my respectful submission, that
was a completely irrelevant matter to take into

account. Leaving aside whether, in fact, there

was such evidence or not, if a person is not

apprised of the significance of the necessity

for knowledge nor are the stewards apprised of

that, the fact that evidence and knowledge comes

out does not make for a fairer trial, it makes for

a more unfair one because no one is prepared to

deal with that specific issue which is actually

raised, in my subission. So, that matter

which His Honour appeared to rely upon to support his

conclusion, far from supporting it, actually weakens

it.

(Continued on page 17)

PlT8/8/PLC	16	28/10/88
Morris

BRENNAN J: Mr Sullivan, if, however, one looks at "improper"

as importing notions of propriety and one then

has regard to w ha t was s a i d by Lord W i. l be r force

in CALVIN V CARR about the application of standards

which have come to be accepted over the history

of the sporting activity, then the question really

·comes down to this, does it not: here is a piece

of equipment found on this man's premises; in the kind of explanation that was given by him

or the excuse that was offered by him, would

right-thinking members of the racing industry

regard it as improper for him to have had this

on his premises? That seems to me to, in a sense,
fudge the question of knowledge, to perhaps make

it even a content - an element of varying content

according to the standards that riijht-thinking

members of the racing fraternity might think

appropriate, but how does·one, on an appeal,

deal with the concept of propriety when the standards

are not that of the Court nor of the community

at large but of the racing fraternity?

MR SULLIVAN:  Your Honour, on appeal, one deals with it

by properly construing the- rule and saying "Wel 1,

within that construction the standards of the

racing industry are paramount." ~s, with respect,

I recognize. These rules, of course, have some

statutory force, Your Honour. They are enacted

pursuant to, in the case of Australian rules
of racing, the AUSTRALIAN JOCKEY CLUB ACT, and
in the case of the Western Australian rules,

they are enacted pursuant to power conferred

by the Western Australian TURF CLUB ACT. Whether

that assists the Court in becoming more involved perhaps is a matter of debate. In my respectful submission it should not.

But the standards of the racing industry are to be determined by the club and we do not

demur from that. But they can only do it within

the proper parameters of the interpretation of

the rule and my submission to Your Honours is
that when you look at this rule what is intended is conscious impropriety rather than negligence,

if you like.

If one looks, for instance, at Australian rule of racing 178, Your Honour, you will see,

with respect, where there has been an intention

to cover the very sort of matter Your Honour

has referred to; the rule sets it out. That

rule provides - that is on page 72:

When any horse which has been brought to a racecourse for the purpose of engaging

in a race is found by the Committee of the

Club or the Stewards to have had

17

PlT8/l/ND	28/10/88
Morris

administered to it any drug as defined in

AR 1, the trainer and any other person_who was in charge of such horse at any relevant

time, may be punished, unless he satisfy
the Committee of the Club or the Stewards
that he had taken all proper precautions

to prevent the administration of the drug.

So that when they have sought to import a concept

of strict liability subject to proving that you

have taken proper precautions it is spelt out.

If they intended to do that with this charge, similarly, in my submission, they should have spelt it out.and, in the absence of so doing, interpretation- in my submission, natural justice

must have been denied.

Your Honours, I do not think I need trouble

you orally to any further extent on those matters.

Perhaps I should deal with the matter I have
raised on page 9 of my submissions, in
paragraph 12. Another of the secondary ways

in which His Honour the Chief Justice supports

his finding, with respect, is to say "Well, in

any event the applicant knew and understood the

charge alleged against him." He does that

however, Your Honours, quite plainly on the assumption

the	charge was one not involving knowledge.
And I have made the submission in writing.	I
would just repeat it very briefly, orally.

Even if his construction was right,

cne pro~osition is a dubious one but, leaving

that aside, once it is submitted that knowledge

was an e~sential ingredient and further accept

that neither stewards nor the committee regarded

it as an essential ingredient and furthermore

that no particulars were given, it must_ follow

that that·:finding c.euld not stand·. t -:::ta · Your Honours, if I might then deal very

-briefly with the other member of the majority,

Mr Justice Wallace, I find some difficulty,

Your Honours, in putting in specific terms :
the problems, in my respectful submision, which

are involved in His Honour's approach.

Mr Justice Wallace sets out the arguments which

were advanced by my client's counsel to-the

Full Court and then, having acknowledged the~,

groceeds not to deal with them. He rather says,

'It's the wrong way to go about things.", and

he fails, with great respect to him, to come

to grips at any stage or to make any finding

as to, A, whether knowledge was a requirement
of rule 175(a) and, B, if it was, what were the
consequences by reason of the evident confusion

of either or both the stewards and the present

applicant.

PlT8/2/ND 18 28/10/88

Morris

In my respectful submission, that is the crux of the flaw, if I might respectfully say so, in His Honour's judgment. And just, if I

may deal very briefly with Mr JusticenKennedy.

Your Honour Mr Justice Brennan, I think it was,

rightly observes he does not deal with the

·construction point at all. He deals with the

manifest confusion and the impropriety of the finding of fairness in that circumstance and

we rely on his reasoning in that regard as well.

Unless Your Honours have any questions for

me, they would be my submissions.

WILSON J:  Thank you, Mr Sullivan. Yes, Mr Zelestis.

MR ZELESTIS: May it please Your Honours. In our respectful

submission, Your Honours, this application does

not raise any question of principle at all

concerning natural justice. The relevant principle

of natural justice was applied by all of there is nothing in the application today which

requires any consideration of a matter of principle.

The relevant principle stems from CALVIN V CARR

and it is important to recall that that case,
decided by the Judicial Committee, was decided
in relation to these very rules.

It is a case which concerned the same kind

of procedure which we have here, namely, what
we as lawyers might think is rather back to

front; that is, if you like, a compulsory inquiry

during which evidence is given and the person

who is the prospective defendant is really required

to make his way before any charge is formulated. And then the expression of what we call a charge

followed by a finding _and then an appeal.	And
it is in relation to that context that

Their Lordships in the· Judicial Committee said

that the relevant principle is whether, as they

put it at page 11 of the report of CALVIN V CARR:

whethert at the end of the day, there has

been a·fair result, reached by fair methodst

such as the parties should fairly be taken

to have accepted when they joined the

association.

It is important, in our respectful submission,

to appreciate the full force of .that principle.

It requires one to refrain from focusing undue

attention on what, to a lawyer, is ordinarily

a very important instrument, namely the charge

or the indictment. Of course, the reason for

that is that those instruments, the charge or

the indictment, is in the general legal system

PlT8/3/ND	19	28/10/88
Morris

the initiating process. The inquiry is usually

carried on in a way that does not involve any

element of compulsion on the part of the prospective
defendant or accused and the charge is the initiating
process of the proceedings.

In this case, and in this context, that is not the position and when one approaches the

formulation of the charge in this case, it is

our respectful submission that one should bear

in mind that the case does not warrant attaching
to the charge and the statement of it the same

degree of importance as is warranted in the normal

criminal law.

Their lordships, at the bottom of page 11

and th~ top of page 12, in CALVIN V CARR, also

warned against, as. they described it, the

judicialization of proceedings before domestic

inquiries and they observed, between lines A

and Bon page 12:

While flagrant cases of injustice,

including corruption or bias, must always

be firmly dealt with by the courts, the
tendency, in their lordships' opinion, in
matters of domestic disputes should be to
leave these to be settled by the agreed

methods without requiring the formalities

of judicial processes to be introduced.

And Their lordships also spoke of the need to bear in mind that those who decide such cases

bring to bear their own experience of what is

proper, what are proper standards, what usually

happens and what is appropriate for this industry.

And those observations appear at page 15.	I
will not read them.	They are cited in at least

two of the judgments which, nd doubt, Your Honours

have read.

WILSON J: Mr Zelestis, what you say has a good deal of

force, of course, especially in its reliance

on CALVIN V CARR so far as the procedures followed

by a disciplinary committee are concerned but does your submission really get to grips with the issue that Mr Sullivan puts in the forefront,

that here the question of the construction of

the rule:~is a matter of general importance

that underlies all the procedures that are pursue<l?

MR ZELESTIS:  With respect, yes, it does, Your Honours.

It is one of the two answers that we make to that. The answer we wish to make is that in

the first place one should not attach to the

ch a r g e , to the statement of the ch a r ~ e , the same

importance that one would attach 1f it was the

initiating process in a criminal proceeding.

PlT8/4/ND	20	28/10/88
Morris

We say that for this reason, that the facts

are explored before the charge is formulated

and, really, the issue is whether the burden

of the case being put against the man is made

plain. It may be made plain by a charge that

is drawn obliquely. In the circumstances, in

·. the context, the burden of the case put against

him may nevertheless be made plain. It may be

made plain by questions which are put to him

before or after the charge is formulated and
at the end of the day the question is not whether
the charge was formulated in strict accordance·

with any rule but whether the man was treated

fairly. And you can well conclude that it is

possible and, indeed, in this case, appropriate

in our respectful submission, to conclude that

at the end of the day while a lawyer may have

drafted the charge a little differently and while

another lawyer may have sought and obtained

particulars of it, there has not been any unfairness

which would vitiate the proceedings.

So that is one answer we make, that you have got to put the charge in its context and

in the context here all of the critical facts

were either admitted or not seriously contested

and the critical facts were that this man owned and operated the premises, the device was found upon it, initially he disclaimed knowledge of

it, then he admitted knowledge of it and he insisted
that the police leave it there.

All of those facts, including the final fact, he admitted. In the end he admitted to

the stewards that he had asked the police to
leave it there. In our respectful submission,

the charge is properly to be understood as having

communicated to - - -

WILSON J: That did not necessarily convey an admission

of his knowledge that it was there, did it?

MR ZELESTIS: Certainly not. It may not necessarily have

done that but it was the primary fact,

Your Honour. One may seek to draw a conclusion

from it but I am now speaking of the primary

facts. The evidence led against him was either

admitted or not seriously contested and the charge

was really saying - - -

WILSON J:  But you included in those primary facts the

fact that having initially denied knowledge of

its presence he later admitted knowledge of its

presence.

MR ZELESTIS: 

Yes, the police officers gave evidence, and

I will come to it, that he said. "Well, what
is it? I don't know." And then he said, "Well,

PlT8/5/ND	21	28/10/88
Morris

you know damn well what it is. 11 He had that exchange with the police officers and then he insisted that it be left there and before the

stewards, when confronted with that evidence

which, of course, had been given in his presence,

he admitted ·to·_ the stewards, at page 6 of the book, and I will come to it, that he did say, "Why don't you leave it there".

In our respectful submission, the charge

is properly to be understood in this context

as having communicated to the applicant that

against this factual background the stewards

were saying to him, "Well, there are grounds for the conclusion, in our opinion, that you
have committed an improper practice by having

the device on your property."

BRENNAN J: That rather begs the question, does it not?

If, on a true construction of rule 175(a), no

person is subject to penalty unless he engages in a practice knowingly, no amount of fairness in telling him what the case is against him can

justify the execution of penalty against him

if, in truth, that case does not show that he

~ed.Jn;_~ practice knowingly.

MR ZELESTIS:  I accept that. With respect, it is obviously

correct but the second part of our- answer·,: you,see,

is this, that the question of construction under

the rule - and we say that really this case does

not raise one, but it is not really a question

at all, if there be one of knowlege or no knowledge.

If ther~ was to be a question of construction

it really is whether any mental element at all

is required because as His Honour the Chief Justice

observed, a lesser mental ~lement might be

appropriate. Because what one must recall is

that this subrule, unlike any of the other subrules,

has in it the important words "in their opinion".

So it introduces the opportunity for the committee

and the stewards to make a judgment as to what

are the appropriate standards and they may well,

in our respectful submission, form the opinion

that anything which constitutes what might be

desctibed•aBaaguilty mind, not a complete

innocence of association, not a complete innocence

of mental element, is sufficient in a particular

factual context.

And my learned friend has said that before

the trial judge and Their Honours in the Full

Court it was urged for the respondent that this

was a case of strict liability. With respect,

that is not quite correct. It is not an accurate

reading of the submission which I made and which,
to some extent, Mr Justice Kennedy considered

merely compounded the confusion with the charge.

PlT8/6/ND	22	28/10/88
Morris

One must go back to the context. Before the trial judge, counsel for the present

applicant made a submission that the applicant

was not charged with possession. We accepted

that submission and then we said, in effect,

_ two things. We said that the charge could be

- construed as having been a charge involving no

mental element and we said if that is the way

it is construed then that is open, under the

rules, for the reasons, with respect, given by

Your Honour Mr Justice Brennan to my learned

friend, namely, that in the opinion of the stewards

and the committee they may regard this circumstance
as such that the highest possible standard has
to be applied and because it is in the interests

of racing so be it.

Secondly, we said if the charge requires

any degree of mental element then there is, in

the facts, a degree of mental element. There

was evidence from which the stewards could find
that there was not an entirely innocent mind.

We, with respect, are not in the position, as seems to be represented of us, of giving evidence for the stewards and the committee .. We do not

come to the Court and say, "This is what the

stewards and the committee subjectively read

the charge as meaning". That is not the submission

which was made before His Honour at first instance. used and the context.

If there was to be-evidence led as to what

the stewards or the committee actually thought
in their deliberatfons then we could not do that

from the bar table and, indeed, with respect,

it would not be appropriate or admissible anyway.

So, in our respectful submission, no question

really of knowledge or no knowledge arises here.

No question of application of principles appropriate

to construction .of penal statutes arises because

you have this important qualification in

rule 175(a) which is that it is for the committee

or the stewards "in their opinion" to determine

whether someone:

has been guilty of any dishonest, corrupt,

fraudulent or improper practice or any

dishonourable action in connection with

racing.

And we say that on either reading of the charge,

either as involving some mental element or as

involving no mental element, there was evidence

upon which a conviction could be sustained so

that, at the end of the day, looking at it in

the overall way required by CALVIN V CARR, one

PlT8/7/ND	23	28/10/88
Morris

cannot say that there has been unfairness. And

it is for that reason that we link our submission

with the CALVIN V CARR point because we say that

whatever be the meaning of the charge, whatever

be the two meanings, there cannot be any conclusion

of unfairness overall.

(Continued on page 25)

PlT8/8/ND	24	28/10/88
Morris

MR ZELESTIS (continuing):  My learned friend, in endeavouring

to submit that rule 175 did require a mental element

submitted that all the other parts of the rule do

require a mental element. I would simply draw

Your Honours' attention to subrule (e). In my respectful submission the concluding words of that

·do not require a mental element. It is an important

rule and it is on page 71 in my learned friend's

blue book. The rule is:

The owner, nominator, and trainer of

any horse entered or run in any race or

trial under a fraudulently false

description and any person having any

interest in such horse or any of them. The first part of the rule seems to be dealing with

persons involved in the fraudulently false description
but the latter part, in our respectful submission,

is apt to cover any other person who may not have

participated in the fraud but who is rendered liable

to punishment because he had an interest in the horse.

Once again one can take the view that that is such a

terrible evil in this industry, so easily perpetrated,

that the highest possible standard has to be exacted

and one can, with respect, easily reach the conclusion

on that rule that any person having an interest in a

horse fraudulently described is rendered liable to

punishment.

So this is a case, with respect, in which, before

the trial judge it was contended by the applicant that

he was not charged with possession. So it has not

been suggested by him that he was charged with

possession. He was not charged with a charge which

required the full mental element of knowledge.

We recognize that it is possible to read the charge in more than one way and it is for that reason that

we say that whichever way you read it, putting aside

a contention that he was charged with possession,

which was expressly disavowed before the trial judge,

whichever of the remaining two broad ways that you can

read it, the principal facts were admitted or not

seriously in contest, and on that point can I take

Your Honours to page 4 of the book.

This is the evidence of one of the detectives

before the stewards and the position was that the

detectives had executed their search warrant in search

of the birds and that Morris was not in their immediate personal presence at the time but someone summoned him. At the bottom of page 3 Morris is introduced to the

police in rather colourful language and then at the

top of page 4:

Yates indicated the object he had found.

I said -

25

PlT9/l/HS	28/10/88
Morris

that is the police officer Kucera -

"What do you know about this?"

He said.-

that is Morris -

"Never seen it before, what is it?"

I said, "Detective Yates found it in

the bathroom."

MORRIS said, "How do I know you didn't

put it there."

I said, "I'm going to disregard that comment."

He -

that is Morris -

"You know damn well what it is."

So he has begun by saying, "How do I know?",
"Never seen it before, what is it?", and then he says,
"You know damn well what it is", conceding immediately

that he knows what it is. Then at line 20:

He said -

Morris, in other words -

"Look, it's got nothing to do with birds, why don't you just put it back where you found it and forget about it."

I said, "Why should I do that Bruce?"

He said, "Because you'll just stir up the

shit if you hand it in, you just want birds,

why bother about that?"

I said, "Bruce, if I'm right, this is very

much frowned upon by the Turf Club."

He said, "Why play games, they don't need

to know, just put it back."

Then missing the next question and answer:

He said, "It's got fuck all to do with you,

what are you talking about, you came here

looking for birds, just forget it."

There is someone with increasing insistence requiring

the police to leave it there, not asking them once but

PlT9/2/HS	26	28/10/88
Morris

with increasing concern, one might infer, asking them

to leave it there. Now, at page 6 between lines 20

and 30, the chairman focused on this precise piece of

evidence and said:

Were you propositioning him and asking

him to forget about the battery because
you knew it was a racing offence to have

it on this training establishment?

MORRIS: What I said to him was . that has got

nothing to do with birds the finding of

the battery, if you didn't put it there why

don't you just put it back where you found it? Because at the time I thought he put

it there.

With respect, there are two things to be said about

that. Firstly, he plainly admits asking the

police to leave it there. Secondly, the stewards could

well be justified in not accepting his explanation of

the reasons for saying that because it is extremely

odd. Why would one ask the police to leave it there

if you had thought that they had put it there?

You would be saying to them, "If you put it there

take it away. I don't want this left on my premises.

This is a device that is frowned upon." The third

thing to be said about it is to focus on what the

chairman said. The chairman said:

You knew it was a racing offence to have

it on this training establishment.

Now, in my respectful submission, properly understood, he is not saying there "to have it in your possession

with knowledge". He is really saying, "It's a racing

offence that it is there~. You know that if this sort

of device is on your property it is a racing offence",

and the chairman is concerned to know whether the man

wished to keep it there, rather than, as 0ne would

have expected an ·innocent person to say, "I have
never seen it before.	I know nothing about it.

I suggest you do take it to the stewards and let's try and get to the bottom of who brought it here". It is

the contrast in attitudes which could lead the

stewards and the committee to conclude that there was

not an entirely innocent mind here. It is not

necessary to debate whether the mental element reached

the stage of knowledge. There was some evidence that

really tainted the applicant, and there was enough, in

my respectful submission, to justify conviction.

Finally, the significance of this evidence is

in the overall context, it comes back to my first

submission that you must judge the charge in the

context which precedes it. The man Morris has been

present, he has had the opportunity to question the

witnesses, the chairman by questions has brought out

PlT9/3/HS	27	28/10/88
Morris
-

what appear to the stewards to be the critical
elements and has questioned Morris on them and at
the end of this process these laymen state a charge.

In our respectful submission, it is quite inappropriate to focus upon that charge the degree of importance or

. significance that is appropriate in a criminal context,

·although I say immediately that I accept, of course,

what Your Honour Justice Brennan said about there

still being the necessity for the charge to be one

which is within the rules. You cannot get off

the ground if the charge is not properly within. the

rules. We say, whether you treat it as strict

liability or treat it as having some mental element

less than knowledge, it was within the rules and there

was no unfairness.

Dealing further with the question of unfairness,

it has never been suggested in this case that there

was any evidence on any question of fact or element

of the offence, even if knowledge was an element -

it has never been suggested there was any evidence

that the applicant was shut out from bringing,

and Mr Justice Kennedy makes this point in his

judgment at page 132, and at the same page His Honour

expresses concern that if there was no other
evidence that he could have adduced he may have been

affected in his submission as to penalty. Now that,

with respect, overlooks the fact that when the

opportunity was provided to the applicant who was

represented by counsel before the stewards to make

a submission on penalty, he declined.

That opportunity arose in a rather strange

way. What transpired was that - if I could take

Your Honours to page 39 of the book, in the middle

of the page, between lines 20 and 30, after hearing

the appeal and reserving, and retiring and returning,

the committee says through the chairman at about

line 25:

Mr Love, the appeal has been dismissed

and the penalty stands.

Now, at that stage there had been no submission on

penalty.

WILSON J:	And no opportunity for it.
MR ZELESTIS:	Then:
LOVE:  Now, I take it, Mr Chairmanthat
you won't hear me on severity.
CHAIRMAN:  No we have addressed that
question of actual appeal and the
severity, that's why I say the penalty
stands.

PlT9/4/HS	28	28/10/88
Morris

So then they leave the room. Then no doubt, probably

because one of the members of the committee knew

something about the law, the committee reconstitute

and the parties are recalled and the chairman said:

We probably jumped to conclusions that

you had addressed us on the penalty and

therefore that's why we voted on it -

and then he goes on to say, in effect, "We made a

mistake. We now give you the opportunity", and.

everyone is recalled, and then over the page, at

the top of page 40, the chairman says:

this is a little unusual but under the

circumstance we would like to re-open

the case and ask Mr Love to address us

again on penalty. He probably wished

to do so and we assumed he had already,

my mistake.

LOVE:  Well I only have instructions to

put submissions to you in relation to

Mr Lugg -

counsel there represented both the trainer who was

charged and the applicant.

So, this is not a case in which the applicant

wanted to say to the committee, "Look, if I've

been charged with possession, these are the facts

which you should take into account on penalty." He

did not seek to put any submission before the appeal

committee at all on the question of penalty.

(Continued on page 30)

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MR ZELESTIS:  So we say, with respect, that there was no

basis for His Honour Mr Justice Kennedy's expressed

concern that the way in which the charge was

formulated affected the ability of the applicant

to formulate his submissions on penalty. He

_ chose not to make any whatsoever.

His Honour the Chief Justice was correct,

in our respectful submission, at page 104, in

stating the object of rule175(a). It is to enable:

the Stewards and ..... the Committee to maintain

proper standards in the racing industry

and to maintain public confidence in the

integrity of -

the racing industry. It is a very important

rule because it is the rule by which they can

set the standards. The other rules define conduct

in greater precision and the other rules are

more comparable to the rule in question in the

case my learned friend referred to, the unreported

case, which concerned, I think, the speedway track.

It is one thing to say that where a rule

says that you can be guilty of an offence by
committing an assault on a speedway track, that

you have to construe it carefully and see that

it is committed on a speedway track;- it is

another thing to apply that principle of construction

where the very rule itself which creates the
offence confers a discretion, if you like, on

the stewards or the club to determine what are the appropriate standards. In other words, to

go part of the way, not all of the way - because

part of the way is circumscribed by the other

words of the rule·- but to go part of the way

themselves to deciding what constitutes an offence.

In our respectful submission, when you

have a rule of that nature in this context, it

is quite inappropriate to even consider applying

principles of construction which have their origin

in the criminal law. Here is an industry in

which public confidence must be maintained;
must be maintained, one might say, at virtually
any cost and it is an industry which has to be

administered on a practical basis without undue

judicialization as the Judicial Committee said.

In our respectful submission, because of

the presence of the words "in their opinion"
in rule 175(a), it is quite inappropriate either
to try and construe the rule in the same way

as one would construe other rules dealing with
specific subject-matter or to import any mental

element in every limb of the rule.

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Obviously there are some limbs of the rule

which do require a mental element:  any dishonest,

corrupt, fraudulent practice would require a

mental element. But one can understand the rationale

for a rule which went further and allowed the

committee in this context to take the view that

another improper practice or dishonerable action
in connection with racing, with no mental element,
could be a breach of the standards thought fit
for the industry and thus an offence.

So we say that in this case no question of construction of the rules really arises at

all because, whichever way you look at the charge,

there was evidence upon which the stewards and
the committee could convict and the man was not

treated unfairly. We say, with respect, there is no ground at all made out for special leave

in this case. Those are our submissions.

WILSON J:  Thank you, Mr Zelestis. Yes, do you wish to

reply, Mr Sullivan?

MR SULLIVAN:  Very briefly, on two points. I am grateful

to my friend for pointing out rule 175(e). That

demonstrates where strict liability has been intended

tn:ier:-tlleserill?ai m has been expressly stated

and, in my submission, that confirms the general
approach of the interpretation of an ambiguous
expression where the rule-making body has intended
to hold someone absolutely liable irrespective

of whether there was any involvement on his own

part - it is spelt out.

The second thing which I wish to address

is my friend says there is some mental element.

He has been unable to put, if he says that possession
is not required, what is the mental element involved.
He points to statements made after the event

of finding and says, "Well, the stewards could

have used that finding as involving a proper
mental element to support the charge".	The charge

was, "Having on your property" this device.

How can it, if I might say so rhetorically, be

a statement made to the police afterwards - "Why don't

you put it back there" - amount to some lesser

mental element other than a finding that, "He must

have known it was there and, therefore, it is

in his possession because all the other elements

for possession are satisfied".

So it is either, in my respectful submission,

a knowing awareness of the device being on the

property and, seeing it was his property, that

would amount to possession - or nothing. My

learned friend cannot have a hybrid mental element

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or an in between mental element, anyway, to rely
upon as being;:justified. And, in any event, as

we say, there is no express evidence that the stewards found any mental element involved or the committee found any mental element involved.

That is all I wish to say, Your Honours.

WILSON J:  Thank you. The Court will retire for a moment

to consider the course it will take.

AT 12.39 PM SHORT ADJOURNMENT

UPON RESUMING AT 12. 4 7 PM :1 •

WILSON J:  In the particular circumstances of this case

we do not consider that any question of law of

general importance arises and, in any event, we are not persuaded that the outcome of the

appeal to the Full Court is attended with sufficient

doubt to warrant the grant of special leave.

The application must therefore be refused.

MR ZELESTIS:	With costs, Your Honour?
WILSON J:	I do not suppose you can contest that,

Mr Sullivan?

MR SULLIVAN:	I cannot say anything on that, Your Honour.
WILSON J:	The application is refused with costs.

That concludes the business of the Court ..

AT 12.48 PM THE MATTER ADJOURNED SINE DIE 32

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