Whiteley v Queensland Racing Integrity Commission

[2021] QCAT 273

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Whiteley v Queensland Racing Integrity Commission [2021] QCAT 273

PARTIES:

CHRIS WHITELEY  
(applicant)

v

QUEENSLAND RACING INTEGRITY COMMISSION

(respondent)

APPLICATION NO/S:

OCR265-20

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

2 August 2021

HEARING DATE:

13 July 2021

HEARD AT:

Brisbane

DECISION OF:

Member Hughes

ORDERS:

1.   The correct and preferable decision is to set aside the decision of the Queensland Racing Integrity Commission dated 27 August 2020 and substitute a decision that Chris Whiteley is not guilty.

2.   The stay dated 31 August 2020 is lifted.

CATCHWORDS:

PROFESSIONS AND TRADES – LICENSING OR REGULATION OF OTHER PROFESSIONS, TRADES OR CALLINGS – OTHER PROFESSIONS, TRADES AND CALLINGS – thoroughbred racing – where charge of failing to capitalise on opportunities – whether charge substantiated on review – where Commission has burden of proof – where evidence not sufficient to discharge burden of proof

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 24

Dixon v Queensland Racing Integrity Commission [2018] QCAT 183
El-Issa v Racing Queensland [2011] QCAT 230
Lewis v Queensland Harness Racing Board [2007] QRAT 8
McGillivray v Queensland Racing Integrity Commission [2019] QCAT 317
Missen v Racing Queensland Limited [2013] QCAT 360
Queensland Racing Ltd v Ganderton [2010] QCAT 348
Racing Queensland Ltd v Cassidy [2012] QCAT 31
Racing Queensland Ltd v Cullen [2011] QCAT 393

APPEARANCES & REPRESENTATION:

Applicant:

L Collins of South Geldard Lawyers

Respondent:

W Kelly, Principal Legal Officer

REASONS FOR DECISION

What is this application about?

1. The Queensland Racing Integrity Commission suspended jockey Chris Whiteley for two months for failing to capitalise on opportunities in the early and middle stages of a race and suspended him.[1] Mr Whiteley disputed both the finding and the penalty.

   [1]Internal Review Decision dated 27 August 2020, Australian Rule of Racing 129(2).

2. Because I am not satisfied that the Commission has discharged the burden of proof to the relevant standard,[2] the correct and preferable decision[3] is to set aside the decision of the Commission and substitute a decision that Mr Whiteley is not guilty.[4]  This means that the decision on penalty is also set aside.

   [2]El-Issa v Racing Queensland [2011] QCAT 230, [46].

   [3]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20.

   [4]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 24.

3. The offence is serious and has intent as an element:

   Decisions which, with the benefit of hindsight, can be seen as poor, or even a lack of skill or proper diligence on the day, are not sufficient to make out the charge. There has to be an element of intent.[5]

   [5]Missen v Racing Queensland Limited [2013] QCAT 360, [63].

4. I am not satisfied that Mr Whiteley had this intent. The standard of proof is higher because of the seriousness of the charge.[6] Mr Whiteley is a highly experienced and accomplished jockey with over 30 years’ experience. Senior Stipendiary Steward Paul Lane described him as a “gun rider”, who “knows the track very well” and has the “ability to read a race.”[7]

   [6]Racing Queensland Ltd v Cullen [2011] QCAT 393, [16]; Missen v Racing Queensland Limited [2013] QCAT 360, [14].

   [7]Evidence-in-chief of Paul Lane.

5. Mr Whiteley knew the horse.[8] He explained to me the reasons for his ride as I replayed the race video during the hearing. Without evidence of motive, his evidence was compelling and credible. Having watched the video, I accept his explanation of needing to balance various factors during the race,[9] including another jockey’s ride.[10]

   [8]Dixon v Queensland Racing Integrity Commission [2018] QCAT 183, [27].

   [9]Dixon v Queensland Racing Integrity Commission [2018] QCAT 183, [27].

   [10]Evidence-in-chief of Chris Whiteley; Affidavit of Chris Whiteley sworn 18 December 2020, [17].

6. Importantly, Mr Whiteley’s evidence was consistent with evidence of the surrounding circumstances including:

   (a)The pace of the race was why the horse was beaten;[11]

   (b)The horse’s owners were disappointed with the result but did not blame Mr Whiteley;

   (c)A veterinarian did not inspect the horse for ailments after the race, leaving open other possibilities for not meeting expectations as a favourite;[12] and

   (d)An analysis of betting on the race was inconclusive[13] and therefore insufficient to establish any motive for Mr Whiteley to breach the relevant rule.[14]  

   [11]Transcript of Stewards’ Inquiry dated 27 July 2020, pp 6, 7.

   [12]Missen v Racing Queensland Limited [2013] QCAT 360, [51] – [52].

   [13]Affidavit of Peter Lane sworn 9 February 2021, [9].

   [14]Missen v Racing Queensland Limited [2013] QCAT 360, [62].

7. Mr Whiteley rode the horse to the trainer’s instructions to settle the horse, get to the outside and not to go inside other horses.[15] Unlike the Tribunal which has the benefit of hindsight and video evidence that can be paused and reviewed multiple times, jockeys must assess the race in real time.[16]

   [15]Evidence-in-chief of Chris Whiteley.

   [16]Racing Queensland Ltd v Cassidy [2012] QCAT 31, [7].

8. I accept Mr Whiteley’s explanation that he rode to instructions and his assessment of the race as it unfolded. The circumstances did not fall below the level of objective judgement reasonably to be expected of a jockey in his position.[17] Even if an error of judgement,[18] it was not obvious to any reasonably informed spectator that the horse was denied the opportunity to win or obtain the best possible place.[19]

   [17]Queensland Racing Ltd v Ganderton [2010] QCAT 348, [12]; Dixon v Queensland Racing Integrity Commission [2018] QCAT 183, [33].

   [18]McGillivray v Queensland Racing Integrity Commission [2019] QCAT 317, [8].

   [19]Lewis v Queensland Harness Racing Board [2007] QRAT 8.

9. Mr Lane is very experienced in the racing industry and was honest and direct when giving his evidence. The opinion of stewards is important when considering a breach of the relevant racing rule. Their experience, depth of knowledge and dedication means they are attuned to what jockeys should and should not do to ensure that each horse is run on its merits.[20] However, it is still open for me to accept Mr Whiteley’s explanation for his ride.[21]

   [20]Queensland Racing Ltd v Ganderton [2010] QCAT 348, [15].

   [21]Racing Queensland Ltd v Cassidy [2012] QCAT 31, [5], [18].

10. Mr Whiteley is not guilty. The finding of guilty is set aside. The penalty is set aside. The stay is lifted.[22]

    [22]Order dated 31 August 2020.