Racing Queensland Ltd v Cullen
[2011] QCAT 393
•16 August 2011
| CITATION: | Racing Queensland Ltd v Cullen [2011] QCAT 393 |
| PARTIES: | Racing Queensland Ltd (Applicant/Appellant) |
| v | |
| Mr Peter Cullen (Respondent) |
| APPLICATION NUMBER: | OCR104-11 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 11 July 2011 |
| HEARD AT: | Townsville |
| DECISION OF: | Richard Oliver, Senior Member Keta Roseby, Member |
| DELIVERED ON: | 16 August 2011 |
| DELIVERED AT: | Townsville |
ORDERS MADE: | 1. The decision of the First Level Appeals Committee is confirmed. |
| CATCHWORDS: | Racing – review of decision of the First Level Appeals Committee – whether applicant’s manner of riding amounted to careless riding under Australian Rules of Racing 137(a) – fresh hearing on the merits Queensland Civil and Administrative Act 2009, s 20 Briginshaw v Briginshaw (1938) 60 CLR 336 Kehl v Board of Professional Engineers of Qld [2010] QCATA 50 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Racing Queensland Ltd represented by Mr Brown, In-house Counsel & Stipendiary Steward |
| RESPONDENT: | Mr Cullen represented by Mr Kyle, retired solicitor |
REASONS FOR DECISION
On 10 May 2011 Mr Cullen rode Cash Attack in race six at the Townsville races. At the 400 metres an incident occurred where Stewards alleged that Mr Cullen moved his mount from a five wide position into a four wide position when he was not sufficiently clear of another horse, Damashqui causing its jockey, Mr Elliott, to check Damashqui thereby losing its position.
In the afternoon of the race the Stewards convened an inquiry into Mr Cullen’s riding and came to the conclusion that he breached Australian Racing Rule 137(a) which provides:
“Any rider may be penalised if in the opinion of Stewards:-
(a)He is guilty of careless, reckless, improper, incompetent or foul riding”.
In coming to that conclusion the Chairman of the Stewards, Mr Brown, said:-
“We have had the opportunity to consider the submissions you have put forward, the evidence of the Steward on the spot, and also the video footage. Based on that, we do believe that DAMASHQUI does obtain a position outside of DESTINED TO REIGN and that as a result of your shift inwards, DAMASHQUI – Jockey Elliott is forced to check DAMASHQUI and at that point loses ground. As a result of that, we do formally find you guilty as charged.”
The Stewards then considered the question of penalty and decided to suspend Mr Cullen’s license to ride in races for three meetings. The suspension was to commence on 21 May 2011.
From that decision Mr Cullen appealed to the First Level Appeals Committee. That appeal was heard on 19 May 2011. The Committee viewed the DVD of the race, took submissions from Mr Cullen and had a transcript of the Stewards inquiry. The Committee came to the conclusion that Mr Cullen’s appeal should succeed. They said:-
“We have considered all the evidence, including the transcript, the DVD and the submissions have been today, both oral and written, which have been of assistance to us.
We find it difficult and can not be satisfied beyond a reasonable doubt that all 3 elements of the offence have been proved to substantiate the charge of careless riding. In this regard, in particular we feel that the Stewards have failed to prove the third element, that another runner was interfered with and lost ground as a consequence of Cullen’s riding.
The Members of the Tribunal are unclear as to whether Jockey Elliott’s horse clipped the heels of DESTINED TO REIGN or Jockey Cullen’s horse. We also note that the quality of the DVD did not assist us to any great extent in our determination.”
The reference to the three elements of careless riding the Stewards considered were; firstly, whether there has been a shift in (from the outside); secondly, whether the rider has been sufficiently clear; and thirdly, whether there has been interference caused to another runner in the race. We understand that these elements are not embodied in the relevant statute, rules of racing or case precedents but that they have been adopted by Racing Queensland for use in its internal process.
From that decision, Racing Queensland has now sought a review of the decision of the Committee. In the application to review, Racing Queensland contend that the Committee applied the incorrect standard of proof by reference to it not being able to be satisfied “beyond a reasonable doubt” rather than having to be satisfied on the balance of probability.
We can say at the outset, that the Committee did apply the incorrect standard of proof and both parties accepted this at the hearing. As submitted by Racing Queensland, the correct standard of proof is on the balance of probabilities or more correctly, in review proceedings in this Tribunal, to the reasonable satisfaction of the Tribunal.[1]
[1]Justice in Tribunals, 2nd ed; JRS Forbes paragraph [12.20] a. Briginshaw v Briginshaw (1938) 60 CLR 336.
Despite that obvious error, it remains the function of this Tribunal to now review the decision of the First Level Appeals Committee and produce the correct and preferable decision by way of a fresh hearing on the merits.[2] The Tribunal is not required to identify error in either the process or the reasoning that lead to the decision being made. There is no presumption the original decision is correct.[3]
[2] QCAT Act, s 20.
[3] Kehl v Board of Professional Engineers of Qld [2010] QCATA 50 at paragraph 9.
[10] This Tribunal must consider all of the evidence that has been put before it and make a determination as to whether the evidence will satisfy the Tribunal, to its reasonable satisfaction, that Mr Cullen breached AR137(a) in the manner in which he rode Cash Attack on 10 May 2011. We do, of course, have regard to the Stewards evidence about their observations of the race. They are very experienced in these matters.
[11] What is clear is that there was an incident where Damashqui was checked after the turn. However, it is unclear whether that was as a consequence of Mr Cullen’s riding or whether Mr Elliott put his mount in a position where he was forced to check through no fault of Mr Cullen. In this regard, we agree with the words of Mr Brown before the First Level Appeals Committee: “As I said before, the main point in dispute is whether or not there’s a shift from Jockey Cullen, and to that degree whether or not Damashqui takes up the position outside Destined to Reign.”[4]
[4]Transcript of Proceedings, First Level Appeals Committee (FLAC), 19 May 2011, p10.
[12] There is no dispute that Mr Elliott on Damashqui was, at least, endeavouring to get to the outside of Destined to Reign.[5] Mr Cullen gave evidence at the hearing that, as Mr Elliott on Damashqui was “endeavouring to go for the run” his horse had “got there far too quick” and so, by the time Mr Elliott has attempted to move Damashqui to the outside of Destined to Reign, Mr Cullen was already there, on the outside of Damashqui, causing Mr Elliott to have to check Damashqui.[6] As Mr Cullen says, Mr Elliott then got onto the heels of the horse in front of him, Destined to Reign.[7] Despite Mr Elliott’s evidence otherwise,[8] Mr Cullen was firmly of the view that Mr Elliott’s horse did not come out as was intended by Mr Elliott.[9] Mr Cullen also maintained that he did not shift ground.[10]
[5]Transcript of Proceedings, Stewards Inquiry, 10 May 2011, p8 and FLAC p10.
[6]FLAC p10.
[7]Stewards Inquiry page 12 and FLAC pages 5, 6 & 10.
[8] Stewards Inquiry p5.
[9]Stewards Inquiry p5 and FLAC p10.
[10]Stewards Inquiry pages 4, 7, 9 & 22 and FLAC pages 7 & 10.
[13] Mr Jasprizza (the steward viewing the running of the race from the steward’s tower on the home turn) and Mr Elliott, in giving evidence during the Stewards Inquiry, stated that Mr Cullen had come around “very quickly” and “real quick”[11] and this is certainly evident on viewing the DVD.
[11] Stewards Inquiry pages 3, 4, 6 & 8.
[14] During the course of the hearing we replayed the DVD on a number of occasions. Mr Cullen explained to us how he was riding the race at that point. We tend to agree with his evidence and it can be observed on the DVD that it was Mr Elliott’s horse that shifted ground out rather than Mr Cullen’s horse shifting in. One thing we can say with a degree of certainty is that it does appear from the DVD that Mr Cullen’s horse maintained its position.
[15] Racing Queensland submitted[12] that the probative evidence of Mr Jasprizza and Mr Elliott should be preferred to the evidence of Mr Cullen because Mr Cullen has a vested interest in the outcome. We cannot think of a case where the relevant jockey would not have a vested interest in the outcome of a case. In any event, it is certainly not the case that his evidence should not be preferred for this reason, particularly when it is consistent with the objective evidence of the DVD. If this were so, then a jockey’s case would, without exception, be set to fail.
[12]Written submission provided to the Queensland Civil & Administrative Tribunal at the hearing on 11 July, 2011, paragraph 18.
[16] Any breach of the Rules of Racing by a jockey is a serious matter particularly, if it results in suspension. That being the case, and applying the Briginshaw test, the standard of proof is higher by reason of the seriousness of the charge. We have come to the conclusion that in applying the appropriate test, it has not been proved to our reasonable satisfaction that Mr Cullen did engage in careless riding. Therefore the decision of the Committee is confirmed.[13].
[13] QCAT Act, s 24(1).
7
3
1