Rodney Bragg v The Greyhound Racing Authority (NSW)

[2003] NSWSC 103

CITATION:	RODNEY BRAGG v THE GREYHOUND RACING AUTHORITY (NSW) [2003] NSWSC 103
HEARING DATE(S):	13/03/2002
JUDGMENT DATE:	27 February 2003
JUDGMENT OF:	Dowd J
DECISION:	Declaration that Committee finding is void; Tribunal decision is quashed; defendant to pay plaintiff's costs.
CATCHWORDS:	Appeal by way of certiorari from decision of tribunal - misdirection as to standard of proof.
LEGISLATION CITED:	Evidence Act 1995 Greyhound Racing Authority Act 1985 Greyhound Racing Control Board Act 1985 Independent Commission Against Corruption Act 1988 Supreme Court Act 1970
CASES CITED:	Briginshaw v Briginshaw (1938) 60 CLR 336 Comptroller-General Customs v Disciplinary Appeal Committee (1992) 61 ACrimR 120 Petty v The Queen (1991) 173 CLR 95
PARTIES :	Rodney Bragg (Plaintiff) The Greyhound Racing Authority (NSW) (Defendant)
FILE NUMBER(S):	SC 30047/2001
COUNSEL:	D Baran (Plaintiff) R J Webb (Defendant)
SOLICITORS:	Nick Marsden, Heard McEwan Lawyers (Plaintiff) T G Hartmann, Hartmann & Associates (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

DOWD J

Thursday 27 February 2003

30047/2001 RODNEY BRAGG v THE GREYHOUND RACING AUTHORITY (NSW)

JUDGMENT

1 HIS HONOUR: This application by the plaintiff, Rodney Bragg, sought a declaration that the Greyhound Racing Authority (NSW) Regulatory Committee (“the Committee”) failed to comply with rule 9(1) of the rules made under the Greyhound Racing Control Board Act 1985, being the rules of the Greyhound Racing Authority 1999, by failing to conduct an inquiry or due inquiry into the conduct of the plaintiff, which was the subject of an adverse decision by the Committee against the plaintiff on 14 June 2000.

2 The plaintiff further sought a declaration that he was denied procedural fairness on that day when the Committee purported to conduct an inquiry into his conduct, on the basis of self-incrimination and his right to silence.

3 The plaintiff further sought a declaration that all evidence admitted by way of transcript taken before the Independent Commission Against Corruption (“the ICAC”) was inadmissible before the Committee and the Greyhound Racing Appeals Tribunal (“the Tribunal”) contrary to the Independent Commission Against CorruptionAct 1988 (“the ICAC Act”).

4 The plaintiff further sought a declaration that the evidence of transcript taken before the ICAC was inadmissible before the Committee and the Tribunal on the basis that the plaintiff’s submissions to the Committee constituted an objection within the meaning of s37(4) of the ICAC Act.

5 The plaintiff also sought the following orders, numbered as in the summons:

5. A declaration that the Greyhound Racing Authority (NSW) Regulatory Committee and the Greyhound Racing Appeals Tribunal both failed to apply the test for reasonable satisfaction and the requisite onus of proof pursuant to Briginshaw v Briginshaw (1938) 60 CLR 336.

6. A declaration that the decision of the Greyhound Racing Authority (NSW) Regulatory Committee delivered on 14 June 2000 is so unreasonable that no reasonable Committee in the position of the Greyhound Racing Authority (NSW) Regulatory Committee could have made it.

7. A declaration that the decision of the Greyhound Racing Appeals Tribunal of 13 September 2000 is so unreasonable that no reasonable appellate Tribunal could have reached the same decision.

8. An order in the nature of certiorari that the decision of the Greyhound Racing Authority (NSW) Regulatory Committee be quashed.

9. An order in the nature of certiorari that the decision of the Greyhound Racing Appeals Tribunal dated 13 September 2000 be quashed.

10. An order that the defendant pay the plaintiff’s costs.

6 These are proceedings for judicial review seeking to quash the decision of the Tribunal constituted by Mr B R Thorley QC and an assessor, Mr H Murray, of 13 September 2000, as well as seeking declarations set out above.

7 The Greyhound Racing Authority Act 1985 (‘the Act”) creates a statutory body, The Greyhound Racing Authority (“the Authority”).

8 Section 8A of the Act creates a regulatory Committee which is responsible for exercising the regulatory functions of the Authority including the control and regulation of greyhound racing, including initiating or conducting inquiries relating to the control of greyhound racing and any disciplinary or decision making functions with respect to such inquiries.

9 Section 9(2)(b) of the Act provides that the Authority may disqualify any owner trainer or bookmaker or other person associated with greyhound racing, either permanently or temporarily or prohibit any person from participating or associating with greyhound racing in any specified capacity and may impose fines not exceeding twenty penalty units on any such person for breaches of the rules.

10 Section 10 of the Act permits the Authority to make rules and the rules of the Authority came into force from 1 September 1999, rule 5 of which sets out an exhaustive list of breaches and provides by rule 9 that the Authority may inquire into or cause to be inquired any matter involved with greyhound racing and may require the attendance and the giving of evidence by any registered person or any other person associated with greyhound racing and if a person, after notice and due inquiry, is found guilty of breaching the rules, the Authority may do any of the following:

a. It may impose a fine on the person not exceeding 20 penalty units;

b. It may suspend the person for such term as the Authority thinks fit;

c. It may disqualify the person either permanently or for such term as the Authority thinks fit;

d. It may cancel the registration of the person,

and by rule 9(4) may impose penalties.

11 Between March and May 2000 the plaintiff and others were investigated by the ICAC, which published a report in August 2000. The plaintiff and two other witnesses, Potter and Gill, to whom reference will later be made, gave evidence subject to s37 and s38 of the ICAC Act whereby objection having been taken that evidence could not be used in other civil or disciplinary proceedings to incriminate each of the respective witnesses to use their respective evidence against each witness.

12 The plaintiff was notified of a hearing of the Committee that it would determine one of the two charges laid against the plaintiff, that charge being:

“That as a registered person prior to April 2000 Mr Bragg did something in connection with greyhound racing which was corrupt in that he was a party to the payment by Mr Gill of money to Mr Potter the Chief Steward of the Authority being a breach of Authority rule 9(4)(a).”

13 Rule 9(4)(a) provides that after due inquiry, penalties may be imposed if:

“The Authority is satisfied that the person has done anything, or caused or permitted anything to be done, in connection with greyhound racing which is dishonest, corrupt, fraudulent, negligent, improper or otherwise detrimental to the proper control and regulation of greyhound racing”.

14 Prior to the hearing of the charge the plaintiff was advised that he could be legally represented and that he, or his legal representative, could question witnesses and deal with any documentary evidence tendered to the Committee and that he could adduce evidence and make submissions and that the Committee would proceed in his absence but would deal with any written submissions he wished to place before the Committee.

15 The allegations against the plaintiff were based on evidence given by a greyhound racing steward, Potter, before the ICAC that he had received money from Gill, an owner of greyhounds, to overcome problems with Gill’s dogs in the substituting of samples of urine that may have otherwise disclosed the application of therapeutic substances. The further allegation of Potter was that sometimes he had received money from Gill to accommodate similar activities by the plaintiff.

16 The prosecution case was based on evidence that could not have been tendered against Potter and Gill as objection had been taken before the ICAC by each of those witnesses to giving evidence and thus, under s37 and s38 of the ICAC Act that evidence could not be admitted against the witness who had taken objection but there is no provision in the Act which prevents evidence being tendered against some other person.

17 In May 2000 the plaintiff’s lawyer wrote that as there were serious criminal charges proposed to be brought against the plaintiff, that obliging the plaintiff to answer these charges infringed the protection provided by the High Court in Petty v The Queen (1991) 173 CLR 95 which held that a person in the circumstances of the plaintiff had a fundamental right to silence in the face of an investigation of charges proposed against him and thus he would be prejudiced by the Committee inquiry and since the Evidence Act 1995 is not available to provide protection to the plaintiff that the proceedings ought not to continue against the plaintiff.

18 Hartmann and Associates, representing the Authority, advised the plaintiff’s solicitors by mail that the Committee would be instructed that no adverse inference may be drawn against the plaintiff by reason of exercising that right and advised that there was a strong public interest in due prosecution by the Authority of alleged wrong doers and that it would be submitted to the Committee that the proceedings should continue.

19 There were no proceedings taken to restrain the Committee from proceeding with the hearing of the charge. The matter then proceeded in the absence of the plaintiff.

20 Submissions were made by way of letter dated 13 June 2000 by the plaintiff’s solicitors commenting on the fact that there was no evidence directly linking Mr Potter, one of the persons named, to the plaintiff and no evidence apart from the evidence of the other person, Mr Gill, that the plaintiff knew of the arrangement between Gill and Potter.

21 The plaintiff’s solicitors further pointed out that the evidence of Mr Potter before the ICAC was to the effect that there was no communication between the plaintiff and himself. The only information about the plaintiff came from Mr Potter’s conversation with Mr Gill. It was pointed out that the evidence before the ICAC of Mr Gill, was inconsistent and that Mr Gill, who in his own evidence said that the plaintiff was not involved in any way although Gill later said that an arrangement came about whereby Mr Gill was to obtain some “cover” and that Gill made payments to Mr Potter on the plaintiff’s behalf but that the money came from Gill’s own pocket and that he never sought reimbursement from the plaintiff and that he, Gill, did it as a favour to the plaintiff.

The Committee Hearing

22 On 14 June 2000 the Committee hearing had tendered before it the correspondence and submissions together with pages 93, 94 and 95 of the transcript of evidence given before the ICAC inquiry on 13 April 2000 and pages 113 and 147-150 of that hearing and as previously advised in correspondence, evidence was to be given by Mr Potter. Mr Potter’s evidence before the ICAC inquiry was that he knew that the plaintiff was associated with Gill and that Gill had asked if Potter would be able to assist the plaintiff to win a few races but that Potter did not deal with the plaintiff and did not speak to the plaintiff, and was asked:

Did you ever receive any money from Mr Bragg? --- A small amount.
How much? --- All up, maybe between 1000 and 2000.
How did that come about, Mr Potter? --- That association was through Gill.
Tell us a little bit about it, please? --- Just one day when we were talking, he mentioned that – I knew Ron Bragg was associated with him, but there had never been anything, you know, early in the piece. And then he just said, oh well, you know, “Ron can probably win a few races, and if he’s got a problem can you help?”. So it was agreed that I would, but I’ve never – never had to do anything in relation to that. And he – he – basically he’s got country dogs, and ---
When you say basically you didn’t have to do anything in relation to that, how was it that he came to pay you money? --- Oh, well he won races – he won a few races, but not many.
Did you have an arrangement as to a percentage you would take of his winnings? --- Same.
Ten per cent? --- M’mm.
How was payment effected, in relation to Mr Bragg? --- Cash.
Who made the payment? --- Mr Gill.
Did you ever deal personally with Mr Bragg in relation to the matter? --- No.
Did you ever speak to him about it? --- No.
How did you know that, in fact, the arrangement was one that Mr Bragg actually acquiesced in? --- From Mr Gill.
Who was it would advise you what races Mr Gill had dogs in? --- Well you can look at the draw and see if he has got dogs in. But just if there was a problem, someone could ring me.
As you understand it, Mr Bragg was making payments through Mr Gill in respect of those answers? --- Yes.
Did you adopt the same procedure of interfering in the ballot system and interfering with swabs? --- Didn’t interfere with the swab.
So just races where you were actually present yourself? --- Oh, he raced elsewhere, but he was just probably lucky he never got swabbed.
Well, what steps, if any, did you take on Mr Bragg’s behalf to ensure that his dogs weren’t swabbed? --- The odd meeting I might have been at, which wasn’t regular. Sometimes they just went through. I wasn’t aware of a certain dog, whether they were or weren’t drugged.
As I understand your evidence, you were being paid a sum of money to give them protection, to use your words? --- Yeah.
What protection did you, in fact, give Mr Bragg for the money you received? --- Sometimes the marble would be held. But, you know, not all the time.

23 There was then tendered the evidence of the plaintiff being sworn, but no further evidence and there was then tendered the evidence of Mr Gill:

Well, you tell me, did Mr Bragg …? --- Well, yes.
Yes, and what sort of relationship …? --- He wasn’t involved in any way.
You tell me what the arrangement was between Mr Bragg and Mr Potter as best you recall it? --- Yeah, well if there are – if anything was wrong with his swabs or anything he was supposed to have seen me and I was going to get things fixed up for him.
All right, so the protection provided by Mr Potter to you was extended by Mr Potter to Mr Bragg’s dogs? --- M’mm.
Is that right? --- Yes.
How did that arrangement come about? --- Just talking between Rod and myself… .
Between Rod Bragg and yourself? --- Yes.
Yes? --- Yes.
So Mr Bragg requested you to see whether you could get him cover if he ran drugged dogs? --- Not actually drugged dogs by therapeutic drugs, yes.
All right, well dogs that had prohibited substances in them? --- M’mm.
Is that right? --- Yes.
And did you introduce Mr Bragg to Mr Potter? --- No, I didn’t.
Did you approach Mr Potter to put this arrangement into effect? --- Yes, I did.
What did Mr Potter say to you? --- He said yes, no worries, if you guarantee him everything will be all right.
And how was Mr Potter made aware of the date upon which Mr Bragg’s dogs would run? --- Probably by myself, I’d tell him.
Well, please turn your mind to it, how was it done? --- Well, by myself.
Right? --- I’d tell him.
So Mr Bragg would let you know? --- M’mm.
Is that right? --- Yes.
You have to say yes or no? ---- Yes.
And you would then convey that information to Mr Potter? --- M’mm.
Yes? --- Yes.
And as you understand it the arrangement was to ensure that Mr Bragg’s dogs weren’t swabbed? --- Well, yes.
And as you understood it Mr Bragg was putting therapeutic substances into his animals? --- M’mm.
Yes? --- Yes.
And that was the reason why he wanted this protection? --- Yes.
Did you ever make any payment on Mr Bragg’s behalf to Mr Potter? --- Many times.
Many times? --- Yes.
Prior to making payments to Mr Potter on behalf of Mr Bragg did you receive payment from Mr Bragg? --- No.
Well, where did the money come from? --- Out of my own pocket. He just never stopped asking for money, it’s as simple as that.
Hang on a sec, we’re dealing with payments made …? --- Yes.
… In respect of Mr Bragg’s dogs? --- It wouldn’t matter, he never stopped asking me for money. That’s as simple as that.
We’re dealing with a situation where your dogs aren’t running? --- I knew that.
Mr Bragg’s dogs are running? --- M’mm.
You would convey the information which had been given to you by Mr Bragg? --- M’mm.
Mr Potter would require payment? --- M’mm.
Are you telling this Commission, on your oath … ? --- M’mm.
…That you made those payments out of your own pocket? --- Yes, I did.
And you never sought reimbursement from Mr Bragg? --- No.
How much? --- Probably a thousand bucks. I don’t know, 1200, $1000, 1200.
Did Mr Bragg ever offer to make payment to you? --- No.
What did he understand it was going to cost him to get this level of protection, as you understood it? --- He was just under the impression that I could do him a favour or whatever. I don’t know. I never discussed it.
You never discussed it with him? --- No.
You conveyed to him, is this what you say, that you could arrange this protection for him at no cost? --- M’mm. I owed him a couple of favours, and I repaid him back in that manner. It wasn’t a thing that went on and on and on. It was a couple of times.
Do you remember now the dogs which were concerned in that arrangement? --- No, I don’t.
What period of time are we talking about? --- I don’t know. 12 months, maybe. A couple of times in 12 months. Maybe two years. I don’t recall it.
Did you let Mr Bragg know that it was Mr Potter who was providing this cover for you? --- No, I didn’t.
What did you tell him? --- I just said I could fix things up.
In relation to Mr Bragg’s dogs, did you as part of that arrangement provide clean urine samples? --- Not that I can recall.
Do you know where the clean urine came from? --- No.

24 From this evidence it can be seen that the form of the questions were leading, that it only comprised a part of the evidence given of each and that Gill did not say that there was any money paid by the plaintiff. The evidence of Potter did not purport to quote Mr Gill saying what the plaintiff had said and Gill’s evidence was that the plaintiff wasn’t involved in any way.

25 At the hearing the ICAC evidence was supplemented by Mr Callaghan in the role of prosecutor as well as carrying out a role as advisor to the Committee. Mr Callaghan called Mr Rodney Potter the former Chief Steward of the Authority to verify his evidence and was then asked, and he agreed, that he didn’t ever speak directly to the plaintiff about anything, Mr Potter saying at page 44 of his evidence before the Committee as to whether Potter had spoken to the plaintiff,

“He may have rang the office for a general query, but not in relation to these matters.”

His evidence was that he knew that Gill and the plaintiff knew each other, that they were associated and that they would help each other and handle each other’s greyhounds and that he had seen them at meetings together.

26 Potter’s evidence in relation to the plaintiff was that Gill had said to him,

“Oh, Rod’s got a few greyhounds running around at the moment, can he – would it be OK if he was looked after the same as myself,” and I said, “Oh yeah, I don’t think it is a problem”, and he (Gill) said, “ Oh, if there is a problem I will let you know.”

Potter’s evidence then was:

“He (Gill) did not give me specific names of greyhounds.”

27 Mr Callaghan then conducted the following question and answer:

Mr Callaghan: Yes. Have you any particular recollection concerning discussion with Mr Gill about Mr Bragg’s dog at any particular track?

Mr Potter: He never really highlighted anything. Occasionally if we were having a discussion whether I met him or it was on the phone, he might say, Oh don’t forget Rods got dogs in on Friday. Well I would know that was Friday at Richmond or he might say, he has got dogs in at Lithgow on the weekend. Watch out for them. Just a general thing and it was up to either me or he would let me know if there was a problem.
Chairman: Mr Potter, in your view, do you have any doubt at all that Mr Bragg was aware of the payments being made on his behalf, being paid by Mr Gill to you, in relation to Mr Bragg’s greyhounds?
Mr Potter: I am sure in my own mind that Mr Bragg paid Mr Gill and Mr Gill gave me the money. There is no doubt in my mind about that, the way our conversations went over the period of twelve months or so.
Mr Candrick: Mr Chairman, through you, in your evidence, Mr Potter that has been referred to as this question, did you ever receive any money from Mr Bragg and your reply was, “a small amount”. “Question: How much? Answer. All up, maybe between a thousand and two thousand.”
Now later on you advised that the money did not come direct from Mr Gill. How did you assess the amount of the dollars that you have outlined there?
Mr Potter: Just trying to remember, like I probably only received money from Bragg via Gill, three or four times over the association.
So it wasn’t a long period of time and it wasn’t regular. As I said in evidence previously he didn’t win a lot of races. It took some time for an amount of money to add up.
A couple of times Mr Gill may have given me an envelope which just had “R” written on it, referring to me. I would assume that that was from Mr Bragg to Mr Gill to myself, but I am not, you know, I didn’t ask that.
Mr Candrick: No. I just want to clarify that. How did you distinguish between the payments Mr Gill made for himself?
Mr Potter: Oh, Mr Gill indicated if he was giving me money, certain money was either for himself of Mr Bragg.
Mr Candrick: Thank you.
Chairman: Just referring again to that envelope. You said that normally it just had “R” on it. Is that what you said? You just gave evidence on that.
Mr Potter: I can remember once.
Chairman: Well once.
Mr Potter: I can remember once there was one envelope with just a little “r” on it.
Chairman: At the time you have a favour in relating to one of Mr Bragg’s dogs.
Mr Potter: Well it might have been just some money owed from a period of time. It might not have been for a particular greyhound.
Chairman: But it was indicated it was on behalf of Bragg.
Mr Potter: Yes.
Chairman: Okay. Now was that envelope with an “r” on it, different to the way Gill normally paid for any of his own bills?
Mr Potter: Sometimes he would give me the money in an envelope. Sometimes he would just give me cash by hand.
Chairman: Can you remember if there was any difference in the two envelopes?
Mr Potter: I don’t recall Mr Gill’s envelopes having the initial on it, that I can recall, as in against the one I believe which come from Mr Bragg.
Mr Morris: Through you, Mr Chairman, where was Mr Bragg’s kennels?
Mr Potter: Eastern Creek I believe his address was. I had never seen them. I wouldn’t even know the street.
Mr Callaghan: Yes I have nothing further.
Mr Candrick: Mr Chairman, to Mr Potter, is there any further clarification you could give to this inquiry in relation to Mr Bragg that has not been brought up?
Mr Potter: All I can say is, I am positive in my own mind, through the discussions I had with Mr Gill, that Mr Bragg was fully aware of the circumstances he was involved with.
The money was coming from Mr Bragg, not Mr Gill, like as in a personal payment and it existed, so be it, a small amount.
Mr Callaghan: When you say from the circumstances of your discussions, you conclude that. Is there any particular circumstances?
Mr Potter: Well he would say Rod owes you, or Rod will have to give you money, just general things in discussion, like that would refer to it being Rod, Mr Bragg.
Mr Gill wasn’t paying it, which is the inference which was being made.

28 There was then a question from a member of the Committee as to whether there was evidence led from the plaintiff that would be pertinent to this hearing to which Mr Callaghan said,

“No. The answer to that is no.”

and Mr Callaghan said that there was a reference to s38 of the ICAC Act.

29 In Mr Callaghan’s submissions it was put that the Committee would be comfortably or confidently satisfied bearing in mind the serious natures of the charges that the plaintiff was party to the payments and he knew the payments were being made and that this would be sufficient to discharge the onus on the Committee.

30 Mr Callaghan then said that Mr Gill’s evidence was hearsay except where he was saying things about the plaintiff where he is speaking of his own knowledge, and that is not hearsay. He then told the Committee the assertion in relation to hearsay is in relation to what Mr Potter says in relation to Mr Bragg.

31 As can be seen from the above evidence most of the evidence of Mr Potter about the plaintiff is opinion evidence based on the association between Gill and the plaintiff and what Gill said.

32 Although Mr Callaghan then said the Tribunal was not bound by the rules of evidence and that it may receive hearsay material providing it is largely probative. Mr Callaghan then suggested,

“It is sufficiently weighty to persuade you to the requisite standard that those hearsay assertions are correct.”

And it was submitted that the Committee could well infer from the whole of the evidence that the plaintiff knew what was going on.

33 Mr Callaghan then dealt with Mr Gill’s credibility, asserted that he was a rogue and that he had already been found by the Committee to being guilty of corrupt conduct but, notwithstanding this description, Mr Callaghan then said,

“When you consider Mr Gill’s evidence in conjunction with Mr Potter’s evidence you will see a meshing of the two accounts which you may think and this is a matter for you, add some verisimilitude to what Mr Gill says about this matter.”

34 Mr Callaghan then incorporated, by reference, the submissions he had made in respect of Gill and said that he would not repeat the submissions but asked the Committee to bear in mind the submissions as an important guide to the way they should approach their assessment of the charge in the case of the plaintiff. He then, before the Committee found any fault on the part of the plaintiff, on behalf of the plaintiff referred the Committee to his record.

35 The Committee found the plaintiff guilty and imposed a penalty of ten years disqualification and ten penalty points as a fine.

Appeal before the Tribunal

36 In an appeal before the Tribunal against the determination of the Committee, Mr J Bishop advised the plaintiff to accept the advice that he should give evidence before the Tribunal. There was a submission by Mr Bishop that there was no case to answer. The Tribunal declined that submission but said,

“Without wishing to debate the weight of any of the evidence to which our attention has been directed, it seems to us that there is sufficient in the material before us that would enable an adverse finding. That is not to gainsay the submissions that were made by Mr Bishop on behalf of the Appellant, namely, that there has to be evidence of knowledge in the Appellant of the payment of money and of the fact of that payment being to one designated person. There may or may not be merit in those submissions. We do not propose to give any indication at this point of time. It is sufficient to say that we think there is adequate material to require the Appellant to answer to the charge.”

The plaintiff then gave evidence and was cross-examined.

37 In an examination of the evidence given by the plaintiff, it was found by the Tribunal he answered every question put to him although he was under no obligation to give evidence. He did not refuse to answer questions and he did not, as found by the Tribunal, incriminate himself.

38 The Tribunal, in its decision, found that the evidence consisted of three assertions: the first that he had no arrangement with Potter; second, that he had no arrangement with Gill; and third, that he had not provided any money.

39 The Tribunal alluded to the fact that the plaintiff spoke of a suggestion that Gill made to him that if the plaintiff had any problems in relation to anything that he (Gill) would be able to assist him.

40 The Tribunal found that from the failure of the plaintiff to give evidence it was “perfectly understandable that a finding of guilt would ensue”. The Tribunal then said that notwithstanding the “quite meagre evidence submitted, we are yet satisfied that Bragg did play an active role and participated in Gill’s scheme to get cover”. The Tribunal then confirmed the decision of the Committee.

Grounds of Appeal

Grounds 1 and 2: Denial of procedural fairness

41 The plaintiff’s contention is that he had the right to claim privilege against self-incrimination and relied on Petty v The Queen cited above.

42 Clearly the issue of self-incrimination and the right to remain silent applies to these disciplinary proceedings (Comptroller-General Customs v Disciplinary Appeal Committee (1992) 61 ACrimR 120 at 129).

43 The plaintiff chose to make submissions to the Committee but placed no evidence before it as to the likelihood of criminal proceedings and it was not shown that charges had been referred against him. The letters submitted that he had reasonable grounds as he appeared to do but no proceedings were taken to stay the hearing of the Committee or to seek to put an evidentiary basis for its adjournment. A disciplinary committee such as is here under consideration, cannot without supervision by a superior court determine issues such as entitlement to a stay or an adjournment. It seems to me that this ground fails as submitted by the respondent as no outline of criminal charges were put before the Committee and the nature of the prejudice he would sustain. This ground is not made out.

Grounds 3 and 4: Admissibility of ICAC Evidence

44 The admissibility of evidence by way of transcript or otherwise is a matter for the tribunal or court to which it is tendered. Whether governed by the Evidence Act 1995 or otherwise, there are rules concerning admissibility.

45 The ICAC Act sets up a mechanism whereby if there is an objection to evidence or the tender of a document before an ICAC inquiry, objection may be taken and the evidence cannot then be used against the person who is asked the question or against whom a document is tendered. Section 30A of the ICAC Act permits a general direction to be given which prevents evidence being used against a particular witness.

46 The selected excerpts of the evidence of Potter and Gill, therefore, could not be tendered, in respect of the evidence that each has given, against himself in any civil or criminal or disciplinary proceedings. That does not, however, taint the evidence generally with inadmissibility if, for some reason, it were to be used before any other court, tribunal or body, as it is that other body which determines the matter of admissibility to that body for whatever purpose.

47 The evidence of Potter and Gill in these proceedings is not, whatever other law may apply to it, denied admissibility. If objection was taken under s37 or a general exemption was given under s38, it does not effect the documents or evidence with inadmissibility per se.

48 This ground therefore fails.

Applicable Standard of Proof

49 Subsequent to the hearing some correspondence ensued concerning the standard of proof to be applied but it appears to be common ground that the standard is that defined in Briginshaw v Briginshaw (1938) 60 CLR 336 wherein Dixon J, of the majority, held at 362 that:

“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a different description or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question of whether the issue has been proved to the reasonable satisfaction of the tribunal.”
Ground 1: The Authority failed to conduct “due inquiry”

50 Notwithstanding that I have earlier dealt with tender of the ICAC transcript and the issue of self-incrimination there remains the ground of appeal that “due inquiry” must be accorded the party, the subject of the inquiry. In this respect I rely on General Medical Council v Spackman (1943) AC 627 per Viscount Simon at 635 and per Lord Wright at 40. Lord Wright held,

“I must first observe that they can in this case be properly taken as a description of what the Council has to do, namely, to make “due inquiry” which under the statute is the governing criterion that is an independent inquiry by the Council as the body responsible for its own decision”.

And further, quoting Bowen LJ at p643,

“That the substantial elements of natural justice must be found and there must be due inquiry”.

51 There is no issue here that the plaintiff was given the opportunity of answering the matters alleged and that he was in that respect accorded procedural fairness. However, the fact that the Committee were simply given a limited part of a transcript of another proceedings wherein that other proceedings evidence was elicited by compulsion and given on the basis that there was no self incrimination and the Committee did not have the opportunity to properly assess the credibility of each witness, which occurs from observation of the witness giving evidence and the circumstances of the evidence a large part of which was led and the fact that the evidence was not given in circumstances where the person giving that evidence was conscious that it could be used against him renders the weight of the evidence extremely slight.

52 Notwithstanding that Mr Callaghan advised the Committee of the standard to be applied, he then, in his role as prosecutor urged the Committee that the standard had been met. It is very difficult for the Committee to form a view relying on the advice given and receiving from that same person a submission as to the finding they should make.

53 The very question which the Chairman asked, as set out above, seeking an opinion from Mr Potter as to the plaintiff’s involvement and on the face of it, accepting that opinion, shows that the Committee operated without proper guidance as to how to deal with that evidence. The submission made above as to what was or was not hearsay evidence and a complete failure to have pointed out that evidence of opinion is not hearsay evidence would make it very difficult for the Committee to properly assess the effect of that evidence.

54 The fact that the Committee was directed to look at the evidence of a co-conspirator in the course of dealing with the plaintiff’s case and the failure to point out that the evidence of a person who is complicit in the proceedings has to be dealt with means that the Committee did not have the capacity to apply the standard of proof required for a matter of this seriousness.

55 The fact that the Committee was asked to examine the record of the plaintiff at the same time that it deliberated on his guilt or otherwise with respect to the charge, and with no assistance as to how that record is to be used, must inevitably prejudice the Committee in its deliberations.

56 I do not consider, therefore, that a due inquiry by the Committee occurred and thus the determination of the Committee should be set aside.

Grounds 5 and 6: That the Tribunal failed to apply the test in Briginshaw v Briginshaw

57 As I have indicated earlier the Tribunal received the evidence that was placed before the Committee and additionally heard from the plaintiff and observed his cross-examination.

58 As referred to above the Tribunal spoke of the corrupt nature of Potter and Gill. The Tribunal found that the evidence of Gill was to be relied on to “fill in the gaps of that of Potter”. As noted in the evidence quoted above, Gill not only did not “fill in the gaps”, in fact, the evidence as given above by Gill is contrary to that of Potter, in that Gill, who had a long term association with the plaintiff, said that monies Potter alleged had come from Bragg did not so come.

59 The Tribunal quite correctly pointed out that the “meagre evidence” on which the Committee and the Tribunal were asked to rely, was selected transcript from the ICAC inquiry and therefore it was very difficult to get a proper feeling for the credibility of either witnesses.

60 The Tribunal found that the evidence of each of Potter and Gill should be relied on as it was evidence “against interest”. This is clearly not the case as evidence was given before the ICAC inquiry in the form of evidence sought from an inquiry which means that much of it was led from the witnesses, but it was led from witnesses who were conscious that the evidence could not be used against each respective witness and that the evidence was not against the interest of each as such.

61 This is a matter of some consequence, as the normal rules of a person saying something against his own interest in evaluating that evidence do not apply. Potter in evidence before the Committee confirmed that evidence but there is not evidence since he was by then a former steward that, in fact, that evidence was to be used against his interest and that he had not already been dealt with. The assessment therefore, of the selective transcript of the two witnesses has, therefore, been inappropriately dealt with by the Tribunal and given a weight which is undeserved.

62 The Tribunal did not direct itself as to the evidence of a co-conspirator or co-accused as in the case of Gill and the plaintiff and appears, on the face of the record, to have dealt with the evidence of Gill without taking that consideration into effect.

63 The Tribunal conceded that no admissions were made by the plaintiff in his evidence and then dealt with a series of matters which appear to effect his credibility only. It did not then reject his evidence but the Tribunal then sought to use its findings on credibility against the plaintiff and in support of the Authority’s charge.

64 The first of these matters was the rhetorical question as to how Gill would become aware of particular races without taking into account the fact that someone with a long association as the plaintiff with Gill would be likely to indicate which particular dogs he was racing on which particular occasions and the likelihood of success. There is nothing in the evidence of Gill that is inconsistent with his own interest in investing by way of betting in the success of particular races on the plaintiff’s dogs and indeed no evidence to show that he was, indeed, not able to interfere with the particular dog himself.

65 There is no recollection by Potter of any particular dog and his evidence is in the most general of terms. The Tribunal then speculated as to the improper offer that had been made to the plaintiff by Gill and as to why he took no action against it. This seems to me to reverse the onus on the plaintiff who had no duty to do anything about the offer which had been made in general terms nor, did he take Gill up on the offer.

66 The Tribunal also speculated as to why there still appeared to be some “amity” between Gill and the plaintiff and drew an adverse inference from this, notwithstanding that Gill had blamed the plaintiff and put him in to the ICAC inquiry. There could be many such reasons.

67 For the Tribunal to speculate on such matters is to deal inappropriately with the evidence given by the plaintiff. The evidence was not rejected it was the subject of speculation and adverse comment none of which effected the quality of the evidence given against the plaintiff.

68 In terms of the standard to be applied in the serious nature of this charge against the plaintiff for the reasons that I have outlined above, notwithstanding the Tribunal expects itself “satisfied”, “notwithstanding the quite meagre evidence submitted”, and that misdirection constituted failure on the part of the Tribunal to apply the appropriate standard of proof and thus the Tribunal erred in its finding of guilty and penalty.

Ground 7

69 For the reasons set out above, it is not necessary to decide the issue of Wednesbury unreasonableness, except to comment that it appears to me that the decisions were not discretionary but findings of fact.

Conclusion

70 As there is an appeal from the Committee to the Tribunal it does not seem to me that this Court in applying s69 of the Supreme Court Act (1970) should bring up the record for the purpose of quashing that record but that it is within the power of the court to so do with the hearing of the Tribunal.

71 I seems to me, therefore, that an order should be made in respect of the Committee’s finding lest there be any doubt as to the status of that finding after the decision of the Tribunal has been dealt with by the court.

72 I, therefore, make the following orders:

i. A declaration that the Committee failed to accord a “due inquiry” under the Authority’s rules, and its findings are thus void.

ii. That the record of the Greyhound Racing Appeals Tribunal be brought up to this Court and that the finding of guilt of the plaintiff and penalty imposed be quashed.

iii. That the respondent pay the plaintiff’s costs of these proceedings.

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Last Modified: 03/03/2003