Racing Queensland Ltd v Bellamy
[2011] QCATA 30
•28 February 2011
| CITATION: | Racing Queensland Ltd v Bellamy [2011] QCATA 30 |
| PARTIES: | Racing Queensland Ltd (Applicant/Appellant) |
| v | |
| Jay Carl Thomas Bellamy (Respondent) |
| APPLICATION NUMBER: | APL074-10 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | 13 August 2010 |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President |
| DELIVERED ON: | 28 February 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The appeal on grounds 1, 2, 3 and 5 refused. 2. Leave to appeal on all other grounds refused. 3. Any party seeking costs should file and serve its submissions within 14 days; the other party will file and serve its submissions within 7 days thereafter. |
| CATCHWORDS: | APPEAL – HARNESS RACING – where alleged race fixing – where alleged that learned Member failed to apply appropriate standard of proof – whether error of law APPEAL – HARNESS RACING – where alleged race fixing – where separate consideration was not given to each charge – whether finding was open on the evidence APPEAL – HARNESS RACING – where alleged race fixing – where alleged that learned Member failed to apply relevant harness racing principles – whether finding was open on the evidence Australian Harness Racing Rules, rr 147, 149, 243 Briginshaw v Briginshaw (1938) 60 CLR 336, cited |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Peter Callaghan SC instructed by Schweikert Harris Lawyers for the Applicant/Appellant |
| RESPONDENT: | Mr James Murdoch SC instructed by Gabriel, Ruddy & Garrett Solicitors for the Respondent |
REASONS FOR DECISION
At a harness race meeting on the Gold Coast on 10 September 2009 a horse called Harkham won the fourth race. Perfect Liner, ridden by Mr Bellamy, came sixth. Makalong Shadow came fifth. The favourite, Lamborgindi, came eighth.
The winner Harkham, and Perfect Liner, had the same owner. That owner, and Mr Bellamy, and the owners and trainers of Makalong Shadow were charged with and convicted by the stewards of a number of offences. All these offences were alleged to have occurred in the course of a conspiracy or corrupt exercise, masterminded by the owner of Harkham and Perfect Liner, through which that owner would receive large winnings on bets that Harkham would win, and Lamborgindi would do no better than third.
The three charges against Mr Bellamy which the stewards found were proven arose under particular provisions of the Australian Harness Racing Rules: failing to race Perfect Liner on its merits – r 147(1); driving Perfect Liner in a manner which in the opinion of the stewards was unacceptable – r 149(2); and, being a person employed, engaged or participating in the harness racing industry, behaving in a way that was prejudicial or detrimental to the industry – r 243.
The stewards provided particulars of each charge. As to the first – failing to race Perfect Liner on its merits – the particulars asserted that after the horse ‘paced roughly in the early stages’ Mr Bellamy then allowed it to improve to a position three wide, but then restrained it so as to maintain that position rather than endeavour to obtain a more advantageous one and, in doing so, raced three wide for the entire race in a way detrimental to Perfect Liner’s chances; and also, by riding in that way, helped Harkham and Makalong Shadow to dictate a slow tempo in the early and middle stages which was advantageous to Harkham, and disadvantageous to Perfect Liner and other runners.
The particulars of the second charge – driving in an unacceptable manner – were to similar effect, with the addition of an allegation: ‘that by remaining three wide in the leading position you repeatedly and unnecessarily looked around unduly during the race to monitor the position of other runners’.
The particulars of the third charge – behaving in a way prejudicial or detrimental to the industry – are that Mr Bellamy:
… being a person employed, engaged or participating in the harness racing industry behaved in a way which was detrimental to the industry by driving PERFECT LINER … in a manner in which you had communicated to LUCAS SULLIVAN and which advantaged HARKHAM and disadvantaged LAMBORGINDI, as well as other runners in the race.[1]
[1](Emphasis added).
Mr Bellamy applied to QCAT for these decisions to be reviewed.[2] Since the race was run in 2009 the name of the governing body has changed but that is not material to these proceedings.[3]
[2]Under the Racing Act 2002 s 150, and the Queensland Civil and Administrative Tribunal Act 2009 Chapter 2 Part 1 Division 3.
[3]The applicants name was formerly Queensland Harness Racing Limited.
The enquiries, investigation and hearing conducted by the stewards was authorised by rr 181-187 of the Australian Harness Racing Rules. On conviction of Mr Bellamy the Chief Steward imposed a penalty of twelve months for the offence of failing to race the horse on its merits, six months (concurrently) for driving the horse unacceptably and three years (imposed cumulatively) for the offence under r 243.
It is uncontentious that there was evidence before the stewards suggesting a conspiracy with its roots in close personal or family relations between a number of owners, trainers, and riders: for example Harkham was ridden by its owner’s brother, and the owner was also a close friend of a number of drivers in the race, including Mr Bellamy and the driver of Makalong Shadow. There was evidence that the owner of Harkham and Perfect Liner placed a series of bets which would attract considerable winnings if Harkham won and Lamborgindi finished no better than third. Charges were brought against three persons and they were convicted and although they lodged appeals, none proceeded with them.
The applicant’s case against Mr Bellamy is based upon a combination of those surrounding circumstances, and the manner of his riding Perfect Liner.
What occurred during the race is uncontentious; it can plainly be seen in the film of it. In the early stages Perfect Liner ran what is called ‘roughly’ but Mr Bellamy allowed it to press ahead until it came to the front row of horses and settled, three wide. He then maintained it in that position and did not press forward, or drop back, although the pace of the race became very slow. The eventual winner Harkham was on the inside of this front row of three. Mr Bellamy was seen to look about from time to time during the race.
Mr Bellamy agreed that he did not drive Perfect Liner in his usual style but says that he decided to stay where he was in anticipation of the driver of Lamborgindi moving that horse up, whereupon he would follow. He also said that he could not move up himself because the horse inside ‘flicked up’.
The applicant’s case is that Mr Bellamy’s explanation was not and cannot reasonably be seen as plausible or, in effect, innocent. It requires, it is said, an assumption that he happened to have an ‘off day’ in the middle of: ‘…the most conspicuous race fixing exercise performed in the recent history of harness racing in Queensland’.
It also requires, it is said, an assumption that: ‘…notwithstanding his association with those who were executing this coup, the respondent was oblivious to all that they were doing’.
The learned Member of QCAT who heard Mr Bellamy’s application for review set aside the stewards’ decision and the disqualifications imposed upon him. Under s 19 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) the Member had all the functions of the original decision-maker for the decision, and was obliged to decide it in accordance with both the QCAT Act, and the enabling Act (here, the Racing Act 2002).
Although some things which appear in the learned Member’s written reasons for his decision have been criticised by the applicant, it is sufficiently clear that he concluded that the evidence of Mr Bellamy’s involvement in the conspiracy was circumstantial and, ultimately, insufficient to prove that he was a party to it; and, that the evidence about his manner of riding Perfect Liner was also insufficient to warrant the findings against him.
Both findings hinged, the reasons show, on the learned Member’s conclusion that there was evidence supporting an innocent explanation for what happened in the race (at least so far as the riding of Perfect Liner is concerned): the very slow pace of the race, the driving tactics of the other drivers, and the relative ability of the respective horses as assessed from their historical ‘form’.
The relevant findings are in the final paragraph of the learned Member’s reasons. He said:
… other than for his association with Mr Sullivan and the fact that his horse did race three-wide in a very slowly run race there is nothing that would support the Stewards [sic] contentions with the exception of the evidence of Mr Pearson. Unfortunately, it seems quite apparent that Mr Pearson had not properly identified the form of PERFECT LINER previously and had not been able to identify a reason as to why the favourite LAMBORGINDI made no attempt to improve its position, particularly when the race was only over one mile.[4]
[4](Emphasis added).
Mr Pearson, mentioned in this passage, was a retired harness racing steward who gave evidence before the Member. His evidence (based upon the film of the race) was in line with the stewards’ contentions and adverse to Mr Bellamy, but in cross examination he admitted that he had had no regard to the prior or subsequent form of the horses in the race.
Other evidence showed that Perfect Liner did not, in fact have good pre-race form and its finishing position in this race – near the back of the field – was similar to where it had come previously. That evidence supported the learned Member’s conclusion including, of course, his decision to discount Mr Pearson’s evidence.
Some grounds of appeal attack, in effect, the Member’s understanding of harness racing or the evidence before him.[5] The submission is surprising: the learned Member is very experienced in the racing industry. He was a Member of the Racing Appeals Authority from 1988 to 1996 and Deputy Chairperson of the Racing Appeals Tribunal from 2005 to 2009.
[5]For example, ground 3: ‘Applied an incorrect racing standard’.
Something the learned Member said in his reasons about circumstantial evidence was strongly criticised. At page 3 the learned Member discussed the fact that the applicant’s case was circumstantial, but was said to be a very strong one:
It was stressed to the Tribunal that whilst the evidence was only circumstantial, it was so closely interwoven with the activities of the other parties in their betting operations that the Tribunal could come to no other conclusion than that the original decision should stand.
It is the following passage in the decision which, the applicant says, shows that the learned Member misunderstood the nature of circumstantial evidence and misdirected himself so seriously that his decision must be set aside:
Circumstantial evidence, no doubt, is something that all Tribunals must consider and provided there is some basis for concluding the weight of this evidence could lead to no other reasonable conclusion, then it would be more than appropriate for the decision of the stewards to be upheld.
This passage, it is said, can only be interpreted to mean that the learned Member wrongly concluded that the stewards must, if they relied upon circumstantial evidence, prove Mr Bellamy’s guilt beyond any reasonable doubt. That would not be correct: the applicable standard of proof is one which required that matters be established on the balance of probabilities, but moderated by the principles articulated in Briginshaw v Briginshaw (1938) 60 CLR 336. Relevantly, here, Mr Bellamy’s livelihood was at stake and the evidence would be tested in a way which reflected the seriousness of the matter, but fell short of the criminal standard.
Other parts of the learned Member’s decision show that the criticised passage involves, at worst, some infelicity of expression rather than any error. Those passages make it clear that the learned Member was doing no more than noting the need to test possible adverse findings which could be drawn from circumstantial evidence against other innocent explanations that could also, reasonably, be inferred from that evidence.
So much is apparent from the last paragraph in the decision, part of which was mentioned earlier:
There is no doubt that all of the evidence submitted during the Stewards’ Enquiry pointed to a conspiracy of events and persons but in the opinion of this Tribunal, it is not easily determinable that Mr Bellamy, the Applicant, was a party to that series of events. Indeed there is circumstantial evidence that he could have been involved but on the information that was presented to the Stewards and on the material presented to the Tribunal, it does not seem appropriate that such a conclusion was capable of being drawn. Other than for his association with Mr Sullivan and the fact that his horse did race three-wide in a very slowly run race there is nothing that would support the Stewards [sic] contention with the acceptance of the evidence of Mr Pearson. Unfortunately, it seems quite apparent that Mr Pearson had not properly identified the form of Perfect Liner previously and had not been able to identify a reason as to why the favourite, Lamborgindi, made no attempt to improve its position, particularly when the race was only over one mile.
This passage reveals that the learned Member has weighed the circumstantial case presented by the stewards against other evidence which he found to be consistent with Mr Bellamy’s version – in particular, the fact that Perfect Liner’s form had been poor before this race. It cannot be said that this analysis of the evidence was not open, or that the conclusions which flowed from it were against the evidence or the weight of the evidence.
The learned Member was entitled to accept it, and he was diligent to explain how and why he came to do so: through his reliance upon other, observable and credible evidence from things like the film – the very slow pace of the race, the apparent driving tactics of the other drivers – and the relative ability of the respective horses as assessed on their form.
These things apparently rendered, the Member concluded, Mr Bellamy’s version plausible and he accepted that it satisfactorily explained what Mr Bellamy did during the race. The applicant’s first ground of appeal – that the learned Member failed to apply the appropriate standard of proof – must fail.
The second ground asserts that he failed to give separate consideration to each charge. The elements and particulars of each are, however, set out on the first two pages of the reasons. There is an undeniable overlap between the three charges and, as presented, the stewards’ case largely relied upon the respondent’s involvement in the alleged conspiracy. The reasons addressed both that possibility and, also, what might be described as an alternative basis for adverse findings on either of the first two charges – that Mr Bellamy rode his horse so badly he was guilty of one or both of those charges, whether or not he was a party to the conspiracy.
If any criticism can be advanced it is the absence, in the reasons, of a specific finding that Mr Bellamy had not had communications with other owners and drivers referrable to the conspiracy, and the third charge. The transcript of proceedings before the learned Member showed, however, that there was no direct evidence of any illicit communication, and that allegations to that effect were denied by Mr Bellamy.
It follows that the conspiracy charge hinged entirely upon circumstantial evidence and, for the reasons already explored, the learned Member concluded that that evidence was outweighed by evidence consistent with Mr Bellamy’s innocence.
Other grounds (grounds 3-10) involve assertions that the learned Member failed to apply relevant harness racing principles, and wrongly rejected the evidence of Mr Pearson. The learned Member’s experience strongly contradicts the first assertion. As to the second, his reasons for rejecting Mr Pearson’s evidence were explained, and are persuasive. Mr Pearson failed, in the learned Member’s view, to consider or give proper weight to Perfect Liner’s poor form before this race. Taking both factors into account confirms that the learned Member was applying his expertise, and in an acceptable way, rather than the contrary.
Although the applicant’s application is for leave to appeal, a number of its announced grounds of appeal are in the nature of points of law – for example, the alleged failure to apply the appropriate standard of proof. Leave for an appeal on those grounds is unnecessary: QCAT Act s 142. Other grounds – for example grounds 7, 8 and 9 – involve attacks upon the learned Member’s findings of fact, and leave would be necessary.
It is appropriate to order that the appeal on grounds 1, 2, 3 and 5 is refused; and that leave to appeal on the balance of the applicant’s stated grounds is also refused.
The respondent’s submissions raise the question of costs. It is also appropriate to order that if any party seeks costs that party should file and serve its submissions within 14 days, with a response from the other party within 7 days thereafter.
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