Sitek v Queensland Racing Integrity Commission - [2024] QCAT 188

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Sitek v Queensland Racing Integrity Commission [2024] QCAT 188

PARTIES:

GEORGE SITEK

(applicant)

v

QUEENSLAND RACING AND INTEGRITY COMMISSION

(respondent)

APPLICATION NO/S:

OCR233-22

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

7 May 2024

HEARING DATE:

18 April 2024

HEARD AT:

Brisbane

DECISION OF:

Member Richard Oliver

ORDERS:

The decision of the respondent is confirmed.

CATCHWORDS:

ASSOCIATIONS AND CLUBS – RACING CLUBS AND ASSOCIATIONS – where applicant failed to properly control a thoroughbred horse he unloaded from a horse float in a suburban street at Hendra – where he rode a horse in the suburban street without a saddle and safety vest and helmet – where horse known to be fractious and temperamental – where gear used by the applicant to control the horse inadequate – where applicant charged with improper conduct – whether conduct improper – whether acting in an emergency – whether the whole of the conduct to be taken into account.

Queensland Civil and Administrative Tribunal Act 2009 s 20

Australian Rules of Racing r 228

Criminal Code s 25

Sitek v Queensland Racing Integrity Commission – Racing Review Panel - 89

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Ms Ballard, Legal Officer of the Respondent

REASONS FOR DECISION

At a stewards inquiry on 10 July 2022, the applicant was charged with a breach of Australian Racing Rule 228(b). He was fined $1,5000 of which $750 suspended for 2 years. The Rule provides that a person must not engage in:
Misconduct, improper conduct or unseemly behaviour
Division 3 of the Rules provide for safety equipment for riders which includes the mandator requirements for wearing safety helmet and vests and to use a saddle. The purpose is to obviously improve safety and is a requirement for all licensed personal. Further it is not limited to licensed venues, such as race courses.
The circumstances of the charge were that the applicant was seen riding a colt (17hh) bareback and without a safety vest or helmet in a residential street at Hendra on 8 July 2022. The applicant does not dispute that his occurred. His explanation to the stewards was that he took the stallion to a farrier at the Hendra address to get a shoe refitted. He pulled up outside the address with the horse in horse float, unloaded it and then waited for the farrier. He said that he was there for about 1.5 hours waiting for the farrier and the horse was getting very agitated and “stirred up”. The stallion also started to rear up, which obviously can be very dangerous.
Because of its increasingly agitated state, he decided to load the horse back onto the float. He did not mention he was having difficulty loading the horse, but simply told the stewards he swung up onto the horse’s back and rode it bareback onto the float. Instead of using the usual headgear[1] for a led horse, he used a bridle, bit and reins.
[1]Headstall - commonly referred to as a halter as well with a substantial lead rope of various lengths.
Having put his case, and acknowledged the particulars of the charge, he pleaded guilty. Before the stewards he provided no further explanation about the circumstances of why he mounted the horse bareback, nor the absence of safety gear. He accepted the fine imposed but sought time to pay and was advised accordingly by the stewards.
Despite accepting the charge and his breach of the Rule, he then sought an internal review of the stewards’ decision. The review was conducted by Mr Murphy general counsel of the respondent. The internal review report is dated 16 August 2022.[2] The review upheld the original decision of the stewards.
[2]Exhibit 4 – s 21(2) documents
In the internal review the applicant provided further information, as he did at the Tribunal hearing. He relied on the following additional facts:
The reason I had to mount my horse on 08.07.2022 on a public road was because I was waiting for a blacksmith to refit a shoe on my horse. A truck pulled up with 3 horses and they were being unloaded, and one of the horses was a mare which may have been on season and my horse is a colt and he started to rear up and I could not hold him with the reins as they were too short. The only way I could stop him from escaping from me was to mount him. He then settled down as the other horses went into their stables.[3]
[3]Internal Review Decision annexed to the application.
The first thing to note about this explanation is that at the stewards inquiry there was no mention of the other truck and the mare. The applicant was quite specific in the audio recording[4] that he had been there for about 1.5 hours and the horse started to rear. He did not say the only way to control him was mounting the animal. There was no reference to the reins being too short.
[4]Exhibit 4 – document 1
This was noted by the internal reviewer who made the comment that:[5]
Accepting this version of events, it demonstrates precisely why eh applicant’s conduct is improper. There are a range of hearse leads available to lead a thoroughbred, rather than use the reins as a lead. In mounting Devine Falls on a street in Hendra bareback, without a safety vest or helmet, in circumstances where the horse was rearing up in the vicinity of other racing animals, the Applicant place his personal safety in danger, as well as other racing animals and any persons attending to those animals. It may be one thing for eh Applicant to blindly accept this risk to his own personal safety; it is another thing to expect other people in the vicinity of the applicant, such as the person who had control of the other three horses and residents int eh street to witness such behaviour and potentially watch the Applicant, who is 69 years old, sustain life threatening injuries if he fell of the horse, particularly if he fell head first, or if the horse trampled upon his body.
[5]Ibid page 3
In reliance on the additional facts about the other horses, the applicant contended at the hearing that he had to act in an emergency situation to remove the colt from the area and the best way to do this was to simply jump on its back and walk it onto the float. Be that as it may, when examining the whole of his conduct it is evident it was improper and fell short of what would be expected of an experienced horse person.
Firstly, as Mr Murphy observed the horse was never properly harnessed for it to be under control. The applicant failed to use a proper headstall to hold the horse, a set of reins is inadequate with a fractious animal, particular on a suburban street. The evidence provided by Ms Cove from Maco Park, a spelling establishment, confirms the colts temperament. She said:
Devine Falls is a 17hh colt that weights approximately 700kg and stays in a private paddock on our stallion wing of the property and he does require special attention when handling due to his size and strength. We commonly have two people handle him and use a chain on his halter and a backup long lead if he has to go anywhere else on the property for safety as we have so many mares around for breeding.
Although the applicant relies on the particulars of the charge to assert that they do not warrant a finding of improper conduct, under s 20 of the Queensland Civil and Administrative Tribunal Act 2009 I am not bound by the particulars of the charge. My role is to conduct a fresh hearing on merits (s 20(2)) and produce the correct and preferable decision. This is done by having regard to all of the evidence adduced at the hearing and before the reviewing officer.
In this case I have had regard to not only what the applicant told the stewards also the additional facts asserted in the internal review. I am concerned that the applicant did not go into the detail about the other horses arriving when he appeared before the stewards. I don’t accept it was because he was unwell, it would have been a simple matter to explain the arrival of the other horses. This does impact his credit.
More importantly, the applicant’s conduct overall, from the time he floated the horse without a proper headstall, to unloading it in the suburban street, then holding a 17hh temperamental colt with a bridle, bit and short rein, is a concern. This fell well short of what would be expected to be able to control this horse for any unforeseen event, even a passer-by with a dog. Or for that matter, any unexpected noise, like a motor bike. To suggest he could not arrange to secure the horse at the farrier’s workplace also begs creditability.
I have seen the video of him riding the horse onto the float without difficulty,[6] but this does not justify his overall responsibility in ensuring that he, or any member of the public is not put at risk because of the horses unpredictable behaviour. Had he had a proper strength headstall, with a chain and long lead (or two), as used by Maco Park, he would have been in a far better position to control the horse, even if his evidence about that arrival of the truck with the mare is accepted. Also it would have assisted in floating the horse. If, on the evidence of the applicant the only way to properly control the horse is to ride him, perhaps when the horse started to get agitated he should have put a saddle on him. Again though, like the halter and lead, he didn’t have a saddle with him.
[6]Exhibit 5
The applicant contends he should have the benefit of s 25 of the Criminal Code which provides a defence to criminal responsibility for acts done in an emergency. Firstly, the applicant is not criminally responsible for any conduct which occurred on 8 July 2022. Secondly, it assumes that the so called emergency was “sudden and extraordinary”. That is not the case, on the applicant’s own evidence before the stewards the horse started to get agitated well before the truck arrived which should have alerted him to the situation. The truck was the last straw, as it were. Section 25 does not apply.
I have been referred to Sitek v Queensland Racing Integrity Commission[7] in support of the applicant’s contention that the particulars of the charge, riding bareback without safety gear is no “improper conduct” under r 228(b). The Review Panel in that case considered the definition of improper conduct and said at [21]:
The ordinary meaning of improper in this context is that of being “unbecoming, unseemly or indecorous”. The meaning is supported by the context in which the word is used in the Rule. We have great difficulty in seeing how the incident described falls within that meaning.
[7]Racing Review Panel - 89
The incident under discussion was that the applicant removed his runner Divine Falls from the designated race day stabling area without seeking permission from the stewards at the Bundaberg racecourse. The reason for doing so was to render help to a person he was caring for in Brisbane. He had driven to Bundaberg that morning. In the circumstances the Review Panel concluded the conduct did not fall within the usage of “improper”.
In my view the conduct here is different. As Mr Murphy pointed out, the Hendra precinct is a well know area for stabling also walking and exercising thoroughbreds at the nearby Doomben and Eagle Farm racetracks. If confined to riding bareback without safety gear then it is improper in common parlance. I don’t agree it need be confined to the above specific words, it can also include simply wrong and against a rule.[8] It must be considered in the circumstances of the case. It was certainly improper for him to be seen riding that way even though he considered it the best way to deal with the situation. It was also improper for him not to have the appropriate equipment for handling the colt in a suburban area, or anywhere for that matter.
[8]>
Also, the incident where stewards permitted him to ride the horse onto a float at the Goondiwindi show does not advance his case. I am only concerned with what happened on 8 July 2022.
This review application has provided a much fuller and complete factual background leading to the applicant being on the horse bareback without the safety gear. Had the applicant properly discharged his responsibilities in managing an animal with the temperament of the colt the whole situation of him acting up to the point he could not be controlled, could have been avoided.
Of importance, it would appear that the applicant accepted this to be the case when he pleaded guilty to the charge before the stewards. The internal review and the evidence in the hearing before me not only substantiates the decision of the stewards but also reinforces it.[9] Public safety and confidence in licenced persons in the racing industry is paramount.
[9]Brigenshaw v Brigenshaw (1938) 60 CLR 336 at 361 - 362
As for the penalty imposed, the question is whether it was excessive in the circumstances. The stewards noted that the applicant had a previous breach of AR 228(b) in 2019 and took this into account. Mr Murphy imposed a similar penalty but on different grounds because the applicant seemed to be oblivious to the seriousness of his conduct. Having regard to both approaches to the penalty, in particular the applicants comment that he would do the same again, there is no basis to interfere with the penalty imposed. I would just observe, that by the statement that he would do it all again, the fact is that the applicant should never have put himself in the position where he had to do it in the first place.
Therefore, I have come to the view that the correct and preferable decision is that the stewards’ decision of 10 July 2022 is confirmed.