Pullicino v Harness Racing Victoria
[2002] VSC 346
•23 August 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
No. 4539 of 2002
| GAITA PULLICINO | Plaintiff |
| V | |
| HARNESS RACING VICTORIA | First Defendant |
| THE RACING APPEALS TRIBUNAL | Second Defendant |
---
JUDGE: | Smith J. | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17, 18 and 19 July 2002 | |
DATE OF JUDGMENT: | 23 August 2002 | |
CASE MAY BE CITED AS: | Pullicino v Harness Racing Victoria & Anor | |
MEDIUM NEUTRAL CITATION: | [2019] VSC 346 | |
---
JUDICIAL REVIEW – Relief in nature of certiorari – Tribunal decision affected by perjured evidence – Fraud of witness not of party
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr V. Morfuni and Mr C. Pearson | F Butera & Co |
| For the First Defendant | Mr R. Smith | Mahonys |
HIS HONOUR:
The Proceedings
By writ filed on 21 February 2002, the plaintiff seeks a declaration that the decision made by The Racing Appeals Tribunal ("the Tribunal") on 1 October 1999, confirming a Stewards' decision, is null, void and of no effect. The Stewards' decision confirmed by the Tribunal was that she was guilty of breaches of Local Rule 1 and Rules 416, 430 and 436(a) of the Rules of Harness Racing Victoria. The Tribunal also confirmed the Stewards' penalty of disqualification for a total period of 3½ years but reduced the monetary penalty imposed from $10,000 to $5,000. The plaintiff also seeks an order setting aside the decision and directing Harness Racing Victoria (the first defendant, formerly known as the Harness Racing Board), to review the plaintiff's case.
The plaintiff relies on new evidence from a significant witness before the Tribunal, George Schembri ("Mr Schembri") that the evidence he gave, before the Tribunal (and the Stewards), implicating the plaintiff, was false. The plaintiff argues that this new evidence warrants the declaration and orders sought.
The Relevant Rules
The following are the relevant rules:
"LR1. Any licensed or registered person refusing or failing without good reason to attend any enquiry convened by the Stewards when required to do so, or refusing to give evidence or giving false or misleading evidence or refusing to give any information required of him, may be fined by the Stewards and/or disqualified or suspended for so long a period as they think fit. …..
416. No person shall do in connection with harness racing any other matter or thing which in the opinion of the controlling body or Stewards is fraudulent, corrupt or detrimental to the sport of harness racing. …..
430. No person shall indulge in any contemptuous, improper or unseemly conduct, behaviour or language when attending any enquiry, appeal, interview or any other proceeding conducted by the committee of the controlling body, the committee of a registered club or association of registered clubs, the Stewards or any other harness racing official or when in any enclosure reserved for the Stewards, the committee of the conducting club or any officials of the club or controlling body. …..
436(a) Any trainer, owner or person in charge of a horse shall present it for racing free of any prohibited substance."
Background to these Proceedings
On 24 February 1999, the plaintiff drove a horse, "Nuclear Ash", to a win at a race meeting in Geelong. Mr Schembri was the registered owner and trainer of Nuclear Ash. Following the win, a routine swab was taken and proved positive.
On about 19 April 1999, the first defendant gave notice that the Stewards would conduct an enquiry into the ownership, training and racing of Nuclear Ash and into the analyst's report notifying the presence of a drug, ketorolac, in the swab sample taken. It required the plaintiff and others to attend the enquiry.
The Stewards conducted their enquiry on 28 April 1999, 16 June 1999 and 8 July 1999. At the conclusion of the enquiry, the Stewards charged and found the plaintiff guilty of breaches of the above rules.
It should be noted that the plaintiff pleaded guilty before the Stewards to a charge under Rule 430 and it is not sought to have the decision on that charge set aside. The charge under Rule 430 concerned an event that occurred during the Stewards' enquiry in which she assaulted Dominic Schembri. It is my understanding that it is not sought to set aside the decision on that charge.
The charge under Rule 1 concerned false evidence as to the stabling and training of Nuclear Ash between 8 February and 24 February 1999. The charge brought under Rule 416 was, in essence, that she had conspired with Mr Schembri and her son in presenting to the authorities and the public that Mr Schembri was the trainer of Nuclear Ash, when the reality was that she was the trainer. She was also charged under Rule 436(a) on the basis that she was the trainer who presented the horse at the Geelong meeting which was not free of a prohibitive substance.
The penalties imposed by the Stewards upon the plaintiff were as follows:
(a)Six months' disqualification for breach of Local Rule 1.
(b)Twelve months' disqualification for breach of Rule 416, to be served concurrently with the penalty imposed for breach of Local Rule 1.
(c)Six months' disqualification to be served cumulatively and a fine of $10,000 for breach of Rule 430.
(d)Two years' disqualification for breach of Rule 436(a) to be served cumulatively.
Thus the total period of disqualification was 3½ years.
Her son, Tony Pullicino, was charged with and convicted of breaches of Local Rule 1 and Rule 416, for which he was given concurrent disqualifications respectively of six months and twelve months.
Mr Schembri was disqualified for twelve months for the breach of Rule 416(to which he had pleaded guilty) and twelve months disqualification for breach of Rule 436(a), such disqualifications to be served concurrently.
The Proceedings before the Tribunal
The plaintiff and her son, Tony Pullicino, appealed to the Racing Appeals Tribunal. The plaintiff and the Stewards were legally represented. The transcript of the proceedings reveals that they were conducted in a manner similar to court proceedings. Mr Schembri was called to give evidence by the Stewards. He gave detailed evidence which, in broad terms, minimised his involvement in the training of Nuclear Ash and implicated the plaintiff as trainer. His evidence was plainly significant.
The evidence of George Schembri before the Tribunal
In its reasons, the Tribunal summarised the evidence of Mr Schembri given before it. The Tribunal noted that Mr Schembri said that he had seen Nuclear Ash at the Pullicino stables and enquired of Tony Pullicino about who the horse was and where it had come from. He later had a conversation over lunch with the plaintiff and reached an agreement with her that he would buy the horse, but that he would pay for it when it had won. He said that it was agreed that the plaintiff would train it. He gave evidence about his relationship with the Pullicino family, as being like a member of that family. He gave evidence about regularly going to the stables and helping out. In relation to Nuclear Ash, he said that he had jogged Nuclear Ash and hoppled it, but otherwise he did not train it, supervise it, feed it, nominate it for races or engage its drivers. He accepted, however, that he was registered as the owner and trainer and said that he attended at the Pullicino stables on 14 February 1999 and signed two transfer of ownership documents, one transferring the horse to him and the other left blank as a "form of insurance". He gave evidence that the horse was nominated to run at Bacchus Marsh on 20 February 1999, and that he drove with his car and float to the Pullicino stables. The horse was loaded on the float and he, his wife, baby daughter and Tony Pullicino drove the horse to Bacchus Marsh. He gave evidence that Tony Pullicino had produced Mrs Pullicino's gear bag, but that he had considered that too obvious and it was changed to a blue, red and white-striped bag to carry the gear. At Bacchus Marsh, Mr Schembri drove the horse wearing his colours, but the horse was using Mrs Pullicino's gear. Nuclear Ash finished 40 metres behind the winner. Mr Schembri gave evidence that, on the drive home, Tony said to him words to the effect: "We will let Mum drive it on Wednesday" – being the meeting at Geelong. At the Geelong meeting, where the horse was driven by Mrs Pullicino, the horse raced in her gear, but she wore Mr Schembri's colours and used his sulky. The horse was floated to Geelong by Mr Schembri, accompanied by Tony Pullicino, and on that occasion was also collected from the Pullicino stables. The two wagered $50 on the horse, each contributing to the bet. The horse won, the prize money being $2,450.
The Evidence of Mrs Pullicino before the Tribunal
The Tribunal summarised her evidence in its reasons. The Tribunal noted that she gave evidence that the first time she saw Nuclear Ash was after the owner, Mr Sammut, and her son, Tony, brought the horse to her place. She said she handed $2,500 to Mr Sammut, the money having been given to her by Tony. She said that Tony conducted the business with Sammut. She said she never spoke to Mr Schembri about the horse, and that the horse was there only overnight, leaving the property the next day. Her evidence was that the next time she saw the horse at her property was the night after the Geelong meeting. She said that after that meeting Mr Schembri wanted to sell the horse to her for $3,000. She said she bought the horse and it remained at the stables until it was sent to Western Australia to race. She denied she had ever trained the horse and she denied there was any scam afoot.
The Tribunal also referred to her cross-examination. Amongst other things, she said that Tony had told her after the Bacchus Marsh race that the horse "went average". She said she never spoke to Mr Schembri about it. At Geelong, she said the horse "went good". She also agreed that, whatever Mr Schembri was doing with the horse, it was working. She also said that she was not surprised that Mr Schembri wanted to train the horse at stables other than his own. She said he had told her that the horse was lazy and that he wanted the horse to work with other horses, and that was the reason he brought it to her stables. Later, asked why she used Mr Schembri's sulky, she said that he loaned it to her around December. She was unable to give any explanation, other than a blackout to explain why she had denied to the Stewards' enquiry that she had borrowed the sulky. She agreed that she had used it at Geelong and at Albury because it was more comfortable for her. I note that she had also asserted that the gear used at Geelong belonged to Mr Schembri and that she had never seen it before. At the Tribunal she conceded that it was her gear.
The Tribunal's Reasons
The Tribunal held that all the charges brought against Mrs Pullicino had been made out. It stated that it was satisfied that Mr Schembri was the registered owner of Nuclear Ash, but that Mrs Pullicino, with assistance from her son, Tony, was the trainer of the horse, and that the horse was to be paid for out of the winnings, a second transfer having been signed by Mr Schembri as a form of insurance to be held by Mrs Pullicino. This document was acted upon by Mrs Pullicino at a later date.
In elaborating on its decisions, the Tribunal commenced by stating that the evidence of Mr Schembri was corroborated by a number of items of evidence. Those items were the following:
(i)Mr Schembri had stated that the horse was stabled at Mrs Pullicino's property. The Tribunal said that the evidence showed that, even on her account, the horse was there on either 6 or 9 February, 17 and 18 February and, on the evidence of Mrs Schembri, 20 February. The 17 February date was confirmed by the evidence of Dr Russell, a vet. The Tribunal also referred to the evidence of Mr Zifku, the caretaker of the Lady G Ranch, where Mr Schembri kept his horses, who said he had never seen the horse there, and similar evidence from a Mr Ellul and a Mr Wade (who both trained horses stabled at the Lady G Ranch). The Tribunal also relied on evidence that Nuclear Ash was not present at the Lady G Ranch the day after the Geelong race. Reliance was also placed upon the statement by Mr Schembri to Mr Wade that the horse was stabled and trained at Williamstown. The Tribunal's view was that there was no need to state that to Mr Wade if the horse was legitimately trained by Mr Schembri, wherever it was stabled.
(ii)Nuclear Ash wore Mrs Pullicino's racing gear in the Geelong race and in the earlier race at Bacchus Marsh. On the evidence, the gear included hopples, straps, bridles and head checks. The Tribunal saw this as significant, because the evidence was that the industry practice was that the gear was adjusted for the use of a particular horse. Mr Schembri had his own gear. The Tribunal commented on the lack of explanation as to why Mrs Pullicino's gear was used for Nuclear Ash if circumstances were that she never trained the horse and had nothing to do with it until after the Geelong race. Reference was also made to a false denial by Mrs Pullicino that she had never seen the gear used. She had no explanation for this denial, other than that her mind had gone blank, an explanation the Tribunal found unacceptable.
(iii)Mr Schembri's account of the arrangement between him and Mrs Pullicino was confirmed by the existence of a second signed transfer and by its use by Mrs Pullicino.
(iv)The nomination for the Geelong and other races emanated from the fax machine on Mrs Pullicino's property. The Tribunal held that no reason was put forward as to why this was so if Mr Schembri in fact was training Nuclear Ash, but Nuclear Ash was being trained at another property. The Tribunal noted that he had not followed his usual practice of faxing nomination forms from the local newsagent or having his wife submit them. The Tribunal's view was that it was highly improbable that a trainer with a horse stabled and trained elsewhere would use the administrative facilities of another trainer, not once but on four occasions.
(v)Reference was made to Mr Schembri's evidence that after the first race at Bacchus Marsh he was told by Tony Pullicino that his mother would drive the horse next at Geelong. Further, the record showed that prior to the Bacchus Marsh run, and irrespective of its result, the decision had been made that the plaintiff would drive the horse at Geelong. The Tribunal drew the conclusion that the decisions as to who should drive the horse were not being made by Mr Schembri and were being made without his knowledge. The Tribunal accepted his evidence that the words "Mr Schembri" appearing on the nomination form for the Geelong meeting were not written by him.
(vi)The Tribunal rejected the evidence of Mr Schembri's father, Mr Tony Schembri, that he lent his son $2,500 at Christmas. In rejecting that evidence, the Tribunal relied on the failure to produce documents supporting the alleged borrowing by Tony Schembri from AGC, the fact that it was not put to Mr Schembri that he had borrowed the money from his father, and the denial by Mrs Schembri. The Tribunal was satisfied that Mr Schembri did not have the funds and that therefore the arrangements with regard to ownership and purchase were as he had described them.
(vii)The Tribunal also relied upon the fact that the account for veterinary services was rendered to Mrs Pullicino's stables and Mr Schembri had his own debt free account at the Melbourne University Veterinary Clinic at Werribee. The Tribunal held that this was consistent with the horse being trained by Mrs Pullicino. It referred to the absence of any evidence from Mr Schembri that he had reimbursed her for the veterinary services, and it was not put to him that that was so, although that would have been expected if he was training the horse.
(viii)The Tribunal also relied upon the evidence that, subsequently, Mrs Pullicino used Mr Schembri's sulky when driving a horse, "Guts and Glory", in a race in which Nuclear Ash was also competing, and concluded that this suggested that Mrs Pullicino rather than Mr Schembri was making crucial decisions about how Nuclear Ash would run; for if Mr Schembri was the trainer, he would be expected to strive to replicate the conditions in which he had previously been successful.
(ix)The Tribunal also held that Mrs Pullicino's evidence contained false denials relating to the sulky and the gear. The explanations she had offered were implausible. The Tribunal held that they were indicative of consciousness of guilt and the Tribunal was prepared to act upon them in support of Mr Schembri's testimony.
(x)The Tribunal also held that it was highly unlikely that a trainer of Mrs Pullicino's repute and ability, who had been a trainer for twenty-six years and had 10-12 horses in training, could have on her property a horse about which she claimed to know nothing, or saw only on 9 and 18 February, and that a horse would be on her property and she would not in some way be involved in the training of it.
The Tribunal considered the evidence of Mr Demicoli that he had not seen Nuclear Ash on Mrs Pullicino's property, stating that it must be viewed with some qualification, when even on Mrs Pullicino's evidence the horse must have been there on at least three occasions. It concluded that his evidence that he was going there every second day was not accurate.
The Tribunal also referred to the evidence of Mr Jobe, the farrier, given at the enquiry, where he stated that Mr Schembri had paid him for the horse to be shod. The Tribunal noted that this was denied by Mr Schembri and Mr Jobe was not called to give that same evidence before the Tribunal. I assume from that analysis the Tribunal did not regard Mr Jobe's evidence as evidence that should raise issues about Mr Schembri's evidence.
On the question of Mrs Pullicino wearing Mr Schembri's colours – and thus acting consistently with Mr Schembri being the owner and trainer – the Tribunal held that that was also consistent with the misleading conduct of intending to give the appearance that Mr Schembri was the owner and trainer, as registered in the race book. Reference was made also to Mrs Pullicino's false statement that she had never seen the gear used at Geelong.
After these references, the Tribunal concluded that it accepted the evidence of Mr Schembri and regarded "the evidence against Mrs Pullicino, although circumstantial, strong and compelling". The Tribunal then announced its finding of the guilt of Mrs Pullicino in respect of breaches of Rule 416 and Local Rule 1, the false and misleading evidence being that concerning the training and stabling of Nuclear Ash.
The Tribunal found the charge against Mrs Pullicino established under Rule 436(a) – presumably as trainer of the horse which was presented at the Geelong racing meeting with a prohibited substance present.
Clearly, the Tribunal approached its fact-finding task by considering whether it should accept the evidence of Mr Schembri, and referred to the above matters as reasons for accepting that evidence. It also, however, stated that it regarded the circumstantial evidence as strong and compelling.
The Evidence of George Schembri in these Proceedings
Mr Schembri swore an affidavit on 16 November 2001, in which he stated that the statements which implicated Mrs Pullicino and her son, Tony, made to the Harness Racing Board, the Stewards' Enquiry and on the appeal, were false. He said that if he had given truthful evidence, they would not have been charged. He said he had lied because he wanted to protect himself and minimise the penalty that might be imposed upon him. He said he wanted to continue in the industry and he knew that if he was convicted of drugging the horse he would receive a substantial disqualification and perhaps a fine. He deposed that the substance of the charge against Mrs Pullicino was that her son and he had conspired to mislead Harness Racing Victoria and the public about the identity of the real trainer, and that Mrs Pullicino was in charge of the horse when it was presented at Geelong with the prohibited substance in its system. He said the truth was that there was no conspiracy and that Mrs Pullicino was innocent. He deposed that he had been tormented by the consequences of his conduct since the appeal and had found it impossible to live with the lies any more. He said that he wanted to tell the truth about the events, though he realised that he may face criminal charges. He said he could no longer sit back and allow Mrs Pullicino to suffer as a consequence of his false testimony.
He then set out what he said was a true account of what occurred. He said that he was introduced to the horse, Nuclear Ash, by Tony Pullicino, who organised the deal for him with Mr Sammut to purchase the horse for $2,500. He said that he signed and lodged the transfer on 14 or 15 February and signed a stable return to the Board, stating that he was the trainer. On the same day he nominated the horse for a race at Bacchus Marsh. He borrowed racing gear from Mrs Pullicino but the collars belonged to him. He said that, from the time he purchased Nuclear Ash, it was stabled at the Lady G Ranch, where he rented stables. He said it was always stabled there during the period leading up to the Geelong race. As to the nomination for that race, he said that he was on his way back from Melton, where he had bought some horse feed and was running late to nominate. He rang Tony Pullicino on his mobile and got permission to use his fax machine to fax the nomination to the Board, it being closer to where he was than his own place. He said that Tony was present when he did it. He did not see Mrs Pullicino. He nominated her as the driver because she had more experience and she usually drove horses for big races because of her reputation, he said. He had not confirmed with her that she could drive, but, in the event she could not, he would have driven the horse himself.
He deposed that he left the Lady G Ranch with Nuclear Ash at about 3.30-4.00 o'clock in the afternoon. He swore that he gave the drug to the horse before he left the stable. The drug he used was ketorolac. He said he had had this drug in his possession for a long time. He didn't remember where he actually got it from. There was no-one else in the stable when he picked up the horse. He loaded the horse on the float and left the stables to pick up Tony Pullicino. He sounded the horn when he got to the Pullicino place and Tony came out and they left for Geelong. He did not speak to Mrs Pullicino at that time. He said he knew that she was racing at either Cranbourne or Ballarat in the afternoon and the arrangement was that she would then meet him at Geelong. He said at about half an hour to one hour before the actual race, he met with her with enough time to give her instructions and for her to change for the race. He said that he placed a $25 bet each way on Nuclear Ash and that he received about $2,500 from the TAB. He said he would have got $2,800 prizemoney but for the positive drug test.
He deposed that he did not expect the horse to be tested when he gave it the drug, although he was aware there could have been a chance. He took the chance because he needed the money. He was behind in his mortgage payments and car payments. His wife worked part-time and they had a small child. He was nineteen years old when he got married and suddenly was hit with all these responsibilities. He was earning about $450 a week and his wife was earning about $200 a week.
After being informed the horse had tested positive, he knew he would lose his licence and he asked Mrs Pullicino whether she knew anyone who wanted to buy the horse, and she said she did. She gave him $3,000 cash for it. That was the last contact that he had with her. He said that, following the Geelong meeting, he notified the Board that the horse was going to be trained by him at the premises belonging to Mrs Pullicino. Mrs Pullicino knew this. He said that his reason for doing this was that the only horse at the Lady G Ranch that he had, which could work with Nuclear Ash, was a baby horse, which would not be able to keep up with Nuclear Ash, whereas Gaita Pullicino had other horses which could provide Nuclear Ash with the competition it needed.
He went on to depose to his meeting with Mr Potter after the positive test on 16 March 1999 at Mrs Pullicino's place, and of Mr Potter searching his stables at the Lady G Ranch. He deposed that during the drive from Mrs Pullicino's house to the Lady G Ranch, Mr Potter several times raised the issue of Mrs Pullicino's involvement, almost to the point of assertion. He said in his affidavit, "He seemed convinced that Gaita was involved. I said nothing.". He then deposed to his later conversations with Mr Potter. He said that the conversation at Mr Potter's office was one that he was not aware was being recorded. He said he made up the story that Mrs Pullicino was training Nuclear Ash for the Geelong race and also that the horse was being trained at her place before the Geelong race. He said that the reason he made up the story was that he had another horse coming up which was showing a lot of ability and he did not want to lose his licence. He thought he would get off by making up the story about Mrs Pullicino. He said he continued to lie at the enquiry. He deposed that when Nuclear Ash went to the Pullicino premises, he was responsible for its management, control and care.
His affidavit also referred the issue of the blood test on 17 February 1999. He said he knew Dr Russell was coming to the premises and took the horse there to have it checked because it had performed very poorly the previous Saturday. He said that Mrs Pullicino paid for the blood test. She had two other tests done that day and his test was charged to her account. He said that Dr Russell would not have taken the blood test without being sure of payment. He had asked him, Mr Schembri, to pay cash, but he did not have any money on him and Mrs Pullicino offered to charge it to her account. He said he reimbursed her a couple of weeks later. The fee was $65.
He said he used the Pullicino gear on Nuclear Ash all the time. He said his gear was being used on his other horses so Mrs Pullicino offered her gear for Nuclear Ash. He confirmed that his sulky was used by Mrs Pullicino on her horse, Guts and Glory, in Albury, which was driven by her, and that her sulky was used on Nuclear Ash, which was driven by Steven Duffy. He put the horse in her care for the Albury meeting because he could not get to it, but had told her that Steven Duffy would be driving Nuclear Ash and he made those arrangements. He repeated that if he had given truthful evidence as to the facts leading up to the Geelong race, Mrs Pullicino and Tony Pullicino would not have been charged or even questioned about the ownership, trainership or control of Nuclear Ash and the drug substance which he gave to the horse. He said that, looking back, what prompted him to make up the story was his impression that Mr Potter was convinced that Mrs Pullicino was involved in the management and control of the horse, particularly for the Geelong race. He thought that, if Mr Potter believed that Mrs Pullicino was involved in it, it would be easier to put the blame on her and get away with it. He suggested that the Stewards' enquiry accepted whatever he told them and sometimes they finished off his sentences suggesting her involvement.
He maintained his new account when giving oral evidence. Critically, he maintained that he alone trained Nuclear Ash and that Nuclear Ash was not trained at the Pullicino premises. He also has confessed to injecting a prohibited substance.
Bases of Challenge to the Tribunal Decision
The plaintiff relied on essentially two bases on which to have the decision of the Tribunal set aside.
The first basis relied upon the authorities in the criminal and civil appellate court system, which permit an appeal court to set aside a trial decision where fresh evidence has been discovered. Counsel argued that, Mr Schembri having admitted on oath that he had lied on critical matters before the Tribunal, its decision was unsafe and there should be a rehearing.
In this context, counsel for the plaintiff referred first to authorities in the criminal jurisdiction, such as Davies & Cody v The King[1]. In that case, issues arose as to the adequacy of the direction to the jury about identification evidence from certain witnesses. There was also significant evidence from a man named Stevens, who said that he was an associate of the prisoners and that they had each admitted to him that they were concerned in the robbery in question. After the appeal to the Supreme Court, Stevens swore a declaration stating that his evidence was false in every material particular. Later, he swore another declaration, stating that his original evidence was true and that the declaration he had sworn was false. In a joint judgment, the High Court commented –
"A declaration by a witness that he has committed perjury cannot possibly be accepted as a ground in itself for setting aside the result of a trial in which the witness has given evidence. If the contrary were held, the whole administration of both civil and criminal justice would be undermined. Subsequent discovery that some evidence (as in this case) is said by the witness who gave it to be false, or is actually proved to be false, cannot, as a general rule, be allowed as a ground in itself for setting aside a verdict or judgment. But if the verdict is open to objection upon a ground affected by such evidence, the case is different. It would not be wise to attempt to frame a universal rule even for such cases. As the Full Court indicates in its judgment, the subsequent statement that the original evidence is false may be explainable by pressure brought to bear upon a witness or by the operation of any one of an indefinite number of motives. Each case should be treated in relation to its own facts."
[1](1937) 57 CLR 170.
After discussing the significance of Stevens' evidence and the Full Court's view of that evidence and the recantations, the High Court commented –
"But it must be remembered that the Crown chose to rely upon the man's evidence and press its probative value, and the Judge's charge does not advise the jury to reject his testimony. It is now known that he is completely untrustworthy, and ought not to be allowed to enter into the reasons for any verdict of guilty. Whether the jury believed his evidence or gave any weight to it in fact cannot be known, but all the other evidence implicating the accused depended upon evidence of identity, and, in this case, the jury was not, as we have already said, adequately instructed with respect to the matters which they should consider in determining the value of that evidence. In these particular circumstances, the facts relating to Stevens' evidence are sufficient, in our view, to entitle the accused to a new trial."[2]
[2]185.
Counsel also relied upon the discussion by the Court of Appeal of Queensland in Re Bryer[3]. Counsel referred, in particular, to the discussion by Fitzgerald P of the distinction between the situation of fresh evidence as such, and a situation where a witness after trial recants from the evidence given at the trial. He referred to the issue of fresh evidence discovered after the trial and the need for the Appellate Court in that situation to decide "whether the jury, acting reasonably, might have acquitted, had the fresh evidence been before it at the trial"[4]. His Honour noted that this necessitated consideration of the "relevance, cogency and plausibility of the fresh evidence in all the circumstances, including the evidence at the trial"[5].
[3](1994) 75 A Crim R 456.
[4]at 458, relying on Gallagher (1986) 160 CLR 392; Mickelberg (1989) 167 CLR 259.
[5]Ibid.
His Honour then commented –
"A recantation, after trial, by a witness who gave evidence against a person convicted, is a species of fresh evidence. Logically, if the recantation is true, the jury at trial ought not have had the recanting witness's evidence implicating the accused; there should have been either no evidence from the recanting witness, or evidence from the recanting witness exculpatory of the accused, either directly or because inconsistent with the accused's guilt. However, the ordinary application of the 'fresh evidence' test would require the appellate court to consider what the jury might have done if it had the contradictory evidence from the recanting witness, demonstrating that the recanting witness was, at best, unreliable and probably a perjurer."[6]
[6]Ibid.
His Honour went on to say –
"Whatever the difficulties which a recantation presents, the Courts have been unwilling to conclude that a recantation must always raise the possibility of miscarriage. However, the basis for setting aside a conviction on the ground of recantation is wider than in relation to other fresh evidence. A conviction is set aside on the basis of a recantation if (i) the witness's new version of events is sufficiently relevant, cogent and plausible to raise a doubt as to guilt in all the circumstances, including the original evidence and explanations given for the original evidence and the recantation, or (ii) the evidence of the recanting witness is so untrustworthy that it 'ought not to be allowed to enter into the reasons for any verdict of guilty': Davies & Cody (1937) 57 CLR 170. In the latter circumstance, it would be inappropriate for the recanting witness to be called in the event of a retrial."[7]
[7]See also Williams J at 457.
I note that the High Court in Mickelberg[8] expressed the cogency test in the criminal context in the following terms –
"whether the Court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant had the fresh evidence been before it at the trial."
[8](1989) 167 CLR 259.
Counsel also relied upon authorities in the civil context, dealing with fresh evidence emerging after trial. Counsel submitted that the principles to be applied are that, if it can be shown that there was fresh evidence which could not have been adduced at the earlier hearing and which indicated that the judgment was unsafe, then the Court has a discretion to set aside the judgment and, in appropriate circumstances, order a new hearing[9].
[9]Reference was made to McDonald v McDonald (1964-1965) 113 CLR 529, 532; Wollongong Corporation v Cowan (1955) 93 CLR 435, 444-5; McCann v Parsons (1954) 93 CLR 418 and Orr v Holmes (1948) 74 CLR 632.
The other basis advanced by the plaintiff relied upon a line of authority which enables the Court to set aside a judgment where it has been acquired or obtained as a consequence of some impropriety. Counsel submitted that the word "fraud" was often used in the authorities[10].
[10]Authorities cited were Hip Foong Hong v H Neotia & Co (1918) AC 888; Gonesco v Beard (1930) AC 298; Cabassi v Vila (1940) 64 CLR 130; Wentworth v RogersNo 5 (1986) 6 NSWLR 534; and Johns v Cosgrove [2002] 1 QR 57.
Relying on these authorities, Counsel submitted that the recantation by Mr Schembri of the evidence that he gave at the earlier hearings was sufficient to cast such serious doubt on the earlier decision that a rehearing of the case against Mrs Pullicino ought to be ordered. Counsel submitted that the case Mrs Pullicino had to meet was really one of conspiracy, something that she has consistently denied. Counsel submitted that, without Mr Schembri's evidence, the other evidence would be equivocal at best from the Tribunal's point of view. Counsel argued further that it would be too dangerous, in light of Mr Schembri's recantation, to allow the findings against Mrs Pullicino to stand and that justice required a rehearing of the matter.
It should be noted that the authorities cited in support of the first basis concerned appeals within the Court system. They did not concern directly a challenge, in proceedings commenced by writ, of a decision of a tribunal. Counsel for the first defendant, however, expressly conceded that he did not take any issue about the way in which the matter had been brought before this Court. His primary concern was to establish the relevant limits and the criteria to be considered in deciding the outcome of the challenge on the bases relied upon by the plaintiff[11].
[11]I note that Halsbury's Laws of England, 4th Edition, Vol 26 Para 571, states that an action will lie to rescind a judgment on the ground of fresh evidence. The authorities cited, in my view, lend little support except perhaps Falke v Scottish Insurance (1887) 57 LT 39, but query whether the conduct there amounted to fraud (Gordon, D.M., QC, "Fraud or New Evidence as Grounds for Action" (1961) 77 LQR 358, 533 at 369; see also discussion in Monroe Schneider Associates Inc & Anor v No 1 Raberem Pty Ltd & Ors (No 2) (1972) 37 FCR 234).
Counsel stated that the first defendant's position was that, where it is established that the decision was procured or obtained by fraud of the successful party, then that would itself justify a retrial, but it must be fraud of the party. Here, counsel submitted that the fraud in the form of the alleged perjury of Mr Schembri was not the fraud of a party to the proceeding. In particular, there was no evidence that Harness Racing Victoria in any way encouraged him or procured him to step forward with false statements or perjured testimony. Counsel referred to a number of authorities[12].
[12]Including Wentworth v Rogers No 5 (1986) 6 NSWLR 534; Monroe Schneider Associates & Anor v No 1 Raberem Pty Ltd & Ors (above); Cicic v Snowy Mountains Hydro-Electric Authority (1964-5) NSWR 175.
Counsel appeared to accept that the rationale for requiring that the fraud be procured by a party may lie in the fact that a civil proceeding is a proceeding to resolve a dispute between civilians and the verdict should stand unless it can be shown that one of the parties had been responsible for the fraud. Counsel also suggested that what was significant was the emphasis in the authorities on the principle that there must be an end to litigation and it is only where a party is responsible for the fraud that the Court will consider allowing the fraud to affect the outcome.
Counsel for the first defendant also submitted that, looked at simply as a matter of fresh evidence, it was essential that the Court be satisfied that the fresh evidence would result in a different result. To that end, it is necessary that the Court be satisfied that there is bona fide fresh evidence. He also drew attention to the passage in the judgment of Windeyer, J in McDonald v McDonald[13] where his Honour cited the following passage from the judgment of Williams, J in Cabassi v Villa[14] with approval –
"I have been unable to find any case in which a judgment has been set aside where the only fraud alleged was that the defendant or a witness or witnesses alone or in concert had committed perjury. In fact, the Court has said that except in very exceptional cases, perjury is not a sufficient ground for setting aside a judgment (see Flower v Lloyd (1879) 10 ChD 327; Baker v Wadsworth (1898) 67 LJQB 301)."
[13]At 544.
[14](1940) 64 CLR 130, 147-8.
Analysis of Legal Argument
As to this Court's jurisdiction to intervene where court decisions are obtained by fraud, there appears to be some difference of view as to the extent to which the "fresh evidence" requirements must also be satisfied[15]. I accept, however, that the current state of the authorities is that intervention on the ground of fraud is confined to cases where a party, or the parties, may be said to be responsible for the fraud[16]. That is not this case. Thus assuming that such authorities are relevant, the plaintiff is confined to the "fresh evidence" principles.
[15]Cf Wentworth v Rogers No 5 (above) and McDonald v McDonald (1965) 113 CLR 529 and Transport Accident Commission v Dohnal (1996) 10 VAR 361.
[16]Eg, Wentworth v Rogers (above) and Johns v Cosgrove [2002] 1 QdR 57.
There is authority that certiorari will lie on the ground of fraud (typically perjury) in relation to decisions of inferior courts and tribunals[17]. It has been held that the fraud must be by a party, directly or by collusion with a witness[18] - again not this case. It has also been stated that the fraud must be "clear and manifest"[19]. There is also authority that where perjury is relied on, it should, in most cases, have been the subject of conviction in criminal proceedings or there must have been a confession[20]. By analogy with fraud and perjury, certiorari has been held to lie in cases where the authorities failed to inform an accused of relevant witnesses[21] or negligently corrupted blood sampling kits[22]. Finally, I note that it has been held that mere fresh evidence is insufficient to cause certiorari to lie[23]. It has been said that to allow the remedy in that situation would be to "transform it character"[24].
[17]R v Gillyard (1848) 12 QB 527; R v Ashford JJ No 2 [1956] 1 QB 167, 177; R v Leicester Recorder [1947] KB 726; R v Knightsbridge Crown Court [1986] QB 1; R v Diggines [1985] QB 1109; R v Deland (1996) 89 A Crim R 577.
[18]R v Ashford JJ above; contrary view, R v County Court of Tyrone [1961] NI 167; Watkins LJ in R v Knightsbridge [1985] 3 WLR 553 at 560-1.
[19]Colonial Bank of Australasia v William (1874) LR 5 PC 417 and 442.
[20]R v Ashford JJ above at 177.
[21]R v Leyland Justices [1979] 1 QB 283 (considered in R v Home Secretary, ex parte Al-Mehdawi [1990) 1 AC 876); R v Blundeston Prison Board of Visitors [1982] 1 All ER 646.
[22]R v Bolton [1991] 1 QB 537.
[23]R v West Sussex [1974] QB24 (Lord Denning dissenting; considered in R v Home Secretary, ex parte Al-Mehdawi, above.)
[24]R v Bolton [1991] 2 WLR 252.
I will proceed, however, on the basis of the parties' agreement that this Court can intervene in this case if the fresh evidence principles apply, the fresh evidence being evidence of earlier perjury[25]. Taking that approach, the critical questions in this case are whether the evidence now proffered by Mr Schembri satisfies the cogency standards required of fresh evidence or whether the whole of his evidence should be rejected and, if so, whether that rejection would have sufficient impact on the outcome of the Tribunal proceedings to warrant intervention.
[25]cf R v Knightsbridge, above.
Counsel for the plaintiff sought to argue for a low threshold test and counsel for the defendant sought to argue for a high threshold test. In essence, the plaintiff submitted that the question was "whether a different result may have been obtained at the original trial".
The general cogency standard in civil proceedings may be shortly stated as follows –
"It must . . . be reasonably clear that the fresh evidence, if accepted, would have led to an opposite result."[26]
[26]Spitfire Nominees Pty Ltd v Hall and Thompson [2001] VSCA 245, citing, inter alia, Orr v Holmes (1948) 76 CLR 632; City of Wollongong v Cowan (1995) 93 CLR 439.
The issue was discussed by Dixon, CJ in Wollongong Corporation v Cowan[27]. After referring to several authorities, Dixon, CJ referred to certain "well known conditions" that needed to be fulfilled before a new trial would be ordered on the basis of fresh evidence. His Honour stated, inter alia,
"It must be reasonably clear that if the evidence had been available at the first trial and had been adduced, an opposite result would have been produced or, if it is not reasonably clear that it would have been produced, it must have been so highly likely as to make it unreasonable to suppose the contrary."
[27](1955) 93 CLR 435.
His Honour noted that, in Orr v Holmes[28], there were collected a number of different expressions which had been used. He summarised them as follows –
"No doubt some of the foregoing expressions are susceptible of a weaker application than others of them. But the evident purpose of all of them is to ensure that new trials will not be granted because of fresh evidence unless it places such a different complexion upon the case that a reversal of the former result ought certainly to ensue. The fact which the new evidence tends to prove, if it does not itself form part of the issue, must be well nigh decisive of the stated facts upon which the issue depends. The evidence must be so persuasive of the existence of the fact it tends to prove that a finding to the contrary, if it had been given, would, upon the materials before the Court, appear to have been improbable if not unreasonable."[29]
[28](1948) 76 CLR at 640-642.
[29]At 642.
Other considerations may be relevant. For example, the test may be less onerous where the evidence was not disclosed because a party failed in its discovery obligations, although, even there, it is likely that a real possibility of a different outcome must be shown[30].
[30]CBA v Quade (1991) 178 CLR 134, 140-1.
In the present case we are concerned with neither a civil nor a criminal court decision, but the decision of a tribunal, which has found certain breaches of the rules governing harness racing. The existing authorities give no direct guidance as to the test to be applied.
The importance, however, of the principle of finality in litigation is such that, assuming the Tribunal's decision can be reviewed, the law would require a test of substance. That proposed by the plaintiff lacks any real substance – "a different result may have been obtained" if Mr Schembri's evidence was accepted or Mr Schembri's evidence was rejected. It would be appropriate to impose the requirement that it must be reasonably clear that the opposite result would have occurred. In applying that standard, it should be assumed, having regard to the nature of the seriousness of the matters brought against the plaintiff, that the Tribunal should approach its task in the manner described in Briginshaw v Briginshaw[31] -
"Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the Tribunal, but reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question, whether the issue has been proved to the reasonable satisfaction of the Tribunal. In such matters, "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences. .…. This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained. When, in a civil proceeding, a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues ….. but, consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is expected."
[31](1938) 60 CLR 336 at 360.
Cogency of the New Evidence of Mr Schembri
The plaintiff is relying on evidence-in-chief of Mr Schembri in this proceeding which has been given on oath, both in writing and orally, and the subsequent cross-examination. The plaintiff has the difficulty that the evidence comes from a person who is an admitted perjurer. Ordinarily, however, a confession, as this new evidence purports to be, carries considerable cogency. That result derives in part from the fact that the confessor is exposed to the risk of criminal charges for perjury. It also derives in part from the assumption that what is said is otherwise against the person's interests and is motivated by a desire to be honest. It is relevant to consider the consequences and to consider the motives.
Addressing the latter issues, Mr Schembri's new evidence contains two major admissions. The first is that he injected the illegal substance into the horse before the race at Geelong. The second admission is that he was in fact the trainer and not just the owner. There is no evidence before me that either admission is likely to lead to further action from the Stewards. The admission that he has injected the prohibited substance, however, is an admission of serious misconduct that he will have to live with in the harness racing industry to which he wishes to return. To admit that he was the trainer, however, is not likely to be as significant a burden for him in the future.
As to motivation, it is clear that he has sought to recant his evidence because of significant feelings of guilt and remorse for the problems that he has caused for Mrs Pullicino and her son brought home to him, inter alia, by the reaction of others. He also greatly regrets the loss of the close friendship he enjoyed with the Pulliccinos. That guilt, remorse and loss is significant enough, however, to cause Mr Schembri to lie further if he thought it would assist the Pullicinos. For example, if he feels guilt and remorse because, unbeknown to the Pullicinos, he injected the horse, then he might not only admit to that fact but also seek to retract his extensive evidence in which he sought to point to Mrs Pullicino as the trainer as opposed to himself, in the hope that he might be able to extricate her altogether from the incidents and restore the friendly relationship. Plainly, he greatly valued his friendship and relationship with Mrs Pullicino and her son and I am satisfied that he would be prepared to go to considerable lengths to win it back – even to the extent of exposing himself to the risk of criminal proceedings.
In all the circumstances, I consider that, looking at the consequences and his motivation, one can be reasonably sure that he was responsible for the injecting of the horse. The consequences of the recantation and his motivation, however, do not lend such clear support for his assertion that he was the trainer and that Mrs Pullicino was not.
Ultimately, from Mrs Pullicino's point of view, the critical issue is the cogency of the new evidence advanced by Mr Schembri as to him being the trainer. I have found this evidence unconvincing. His presentation as a witness did not enhance the cogency of his evidence.
It is clear from independent evidence that Nuclear Ash was at the Pullicino premises on or about 9 February and on 17 February. The first date was the date when the initial sale took place on the Pullicino premises. 17 February 1999 was the date when a blood sample was taken by a vet for testing. Mr Schembri also states that the horse was at the Pullicino premises during the morning of the Bacchus Marsh meeting on 20 February 1999 and returned to the premises immediately after the Bacchus Marsh meeting. His evidence explaining these movements was unconvincing.
As to the movements of the horse on 20 February 1999, Mr Schembri claims that he went to his stables at the Lady G Ranch where Nuclear Ash was being held, worked there on his horses and then drove Nuclear Ash to the Pullicino stables and unloaded him there. He then went back to his home to collect his wife and baby. He then returned with his wife and baby to the Pullicino premises and loaded the horse and drove to Bacchus Marsh, giving a ride there to Tony Pullicino. In his affidavit and oral evidence, he explained the returning of the horse to the Pullicino stables on 20 February 1999, and leaving it there, on the basis that the horse's bad performance at Bacchus Marsh prompted him to obtain a blood test and that he had been told that the vet was calling there the next day and could take a blood sample from Nuclear Ash. The independent evidence, however, shows that the vet did not call the next day but previously had called on 17 February 1999. In giving this explanation, Mr Schembri must have initially overlooked the fact that what he was saying could not be true. His own sworn evidence acknowledged that the vet had called on 17 February 1999. He stuck to this explanation in his oral evidence, however, it being the only one he could offer to explain his new account and that of his wife.
There is also independent evidence that Nuclear Ash was never at the Lady G Ranch. I refer in particular to the evidence of Mr Zifku, Mr Ellul and Mr Wade. To explain the fact that they had not seen the horse, Mr Schembri gave new evidence that he used to keep the horse locked up during the day and train it at night so that people couldn't see him training it. This secretiveness was also used to explain his remark which he acknowledges he made to Mr Wade when he asked where the horse was after the Geelong race. He said it was at Williamstown. The need to train the horse secretly at night appears, on his current evidence, to have been to avoid losing any betting advantage on the horse. It is difficult to understand why it would be necessary to keep secret the fact that he was training the horse when he had had no winners during his training career. On the other hand, one might well understand the need to train the horse at night to conceal the fact that Mrs Pullicino was training the horse, should it have been stabled at the Pullicino premises.
Another aspect of his present evidence that is difficult to follow is his claim that the plaintiff paid him $3,000 to purchase Nuclear Ash when at the time he still owed her money for the purchase of the horse himself.
For these reasons, I have come to the conclusion that the new evidence bearing on the training issue lacks cogency and is not so persuasive that a finding to the contrary of it, if given, would appear improbable or unreasonable. It would also, of course, be relevant to consider other material, such as the false denials of Mrs Pullicino. They point to someone who thought that the only chance of avoiding a finding that she was the trainer was to totally distance herself from the training of the horse and any contact with the horse other than as driver at race meetings.
The other aspect of the case requires the issue to be approached on the basis that Mr Schembri is treated as a witness totally lacking in credit, so that all his evidence is ignored. Again, in my view, Mrs Pullicino is not aided by that approach because of the strength of the circumstantial evidence against her relied upon by the Tribunal and her false denials.
Conclusion
Approaching the issues on the common footing advanced by the parties, I have, therefore, come to the conclusion that this is not a case in which this Court should intervene to set aside the Tribunal's decision on the bases advanced.
---
1
9
0