Wolfgram v Racing Queensland Limited

[2011] QCAT 538

CITATION: Wolfgram v Racing Queensland Limited [2011] QCAT 538

PARTIES:	Mrs Tracey Anne Wolfgram
v
Racing Queensland

APPLICATION NUMBER:   OCR020-11  

MATTER TYPE: Occupational regulation matters

HEARING DATE:     6 June, 15 July, 7 September 2011

HEARD AT:  Brisbane

DECISION OF: Mr Brock Miller, Presiding Member
Ms Sandra Deane, Member

DELIVERED ON: 3 November 2011

DELIVERED AT:      Brisbane

ORDERS MADE:

The decision of Racing Queensland:

1.     That Ms Wolfgram was guilty of a breach of Australian Rule of Racing 175A is overturned.

2.     The review is upheld.

CATCHWORDS:

RACING – Dishonest, corrupt, fraudulent, improper action/practice in connection with Racing

Australian Rules of Racing

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Tracey Anne Wolfgram represented by Mr J Murdoch SC instructed by Gabriel Ruddy & Garrett Solicitors
RESPONDENT:	Racing Queensland Limited represented by Ms A C Freeman of Counsel

REASONS FOR DECISION

1. Tracey Anne Wolfgram has been charged under ARR175A which provides:

“The principal Racing Authority or the stewards may penalise:

(a)any person who in their opinion has been guilty of any dishonest, corrupt, fraudulent, improper…action or practice in connection with racing.”

1. The charge arose from the Applicant alleging that she had used computer technology to enter the website of RISA which was the body that accepted nominations and scratchings and alterations to jockeys for various trainers who had access to the RISA website.  The Inquiry into the issue identified that on 18 November 2010 she contacted a Racing Queensland thoroughbred racing manager confirming that she had received an email confirmation from RISA that two of her horses “Rem-e-Can” and “Seaside Dancer” had been accepted by the system to race at Toowoomba on 20 November 2010.  The Applicant provided a document which, in her evidence, she confirmed had been retrieved by her mother from her email account and which she said was an email confirmation from RISA.  There was significant evidence as to the manner in which the mother was able to extract the email.  As can be appreciated, there was so much uncertainty as to how the email in question could have been manufactured or produced that the stewards opined that she had forged the email in question.  It was as a result of that opinion that the charge was levelled against the Applicant.

1. Needless to say, the Applicant strongly denied that she had been involved in any subterfuge.  She was adamant in her denials and provided, what this Tribunal determined in the end result, was a plausible explanation particularly in view of so-called expert evidence from forensic computer technology specialists.

1. The Applicant gave evidence to the stewards and also to this Tribunal.  She was subjected to cross examination and her demeanour throughout both examination in chief and cross examination was such as to impress on the members of this Tribunal that her evidence was truthful. 

1. The mother of the Applicant also gave evidence and was subject to cross examination in this Tribunal after providing a Statutory Declaration to the stewards’ Inquiry.  She commented that the computer which she had used to retrieve the email belonged to another of her daughters and gave evidence of how that computer was subsequently destroyed after the events in question.  She swore that she opened Outlook Express after she had been requested by her daughter to locate a form that was from RISA which form was the email confirmation.  She explained what steps she took in retrieving that email and confirmed that after she had done so, she printed the email to take it to her daughter, Tracey and then deleted the email from the system which was the normal practice she adopted in the use of emails.  The mother confirmed that she had used email regularly with her various friends and a club of which she was a member and was familiar with the use of the computer although was most assuredly not expert.  She gave evidence that once she had printed the email, she saw no reason why it should not be thereafter deleted from the computer system.  This notice of deletion is, to some extent, important as it was not for some considerable time after the events in question that an Inquiry was opened into the whereabouts of the computer and an investigation was launched into how an email such as the one in evidence, could have been produced.

1. The Tribunal is satisfied that the mother gave her evidence truthfully.  She was subjected to significant and substantial cross examination but did not waiver from any of the matters about which she had sworn on oath.  She was an impressive witness and it was obvious that she had a good recollection of events as they had unfolded.  The Tribunal accepts her evidence. 

1. During the course of the evidence of the matter, it was noted that the email in question had the name “Tracey Wolfgram” at the top.  Considerable discussion ensued as to how that could possibly have occurred when the email had been printed from a computer other than that of the Applicant Tracey Wolfgram.  Evidence was given by Nadine William Barns in this respect who identified how, in his opinion, the settings on a computer could be configured to print emails with that name appearing.  It was apparent that Mr Barns in his evidence confirmed the evidence given both by the Applicant and her mother and the Tribunal accepts that to be the position.

1. Expert evidence was then submitted by Craig Wright and Bradley Schatz.  Each of those persons went to great lengths to identify that they were experts in the field of IT security.  The Tribunal listened to the extensive evidence of both of those witnesses, but was singularly unimpressed with the evidence of Bradley Schatz whose intent seemed simply to impugn the reputation and methodology of the witness Wright.  It became quite obvious that at one point in time, Wright had been subject to certain legal process as a result of his failure to honour an undertaking given to a New South Wales Court.  The Tribunal is satisfied that the explanation proffered by Mr Wright in response adequately answered any suggestion that he was an unreliable witness.  In fact, we found his evidence to be far more reliable than that of the witness Schatz who did not impress the Tribunal.

1. In the end result, this Tribunal is at a loss to understand why the Respondent embarked on such a significant investigation of a matter which frankly appears trivial or in any event why the Respondent persisted with the investigation and prosecution.  Nowhere in the evidence is there anything to suggest that the Applicant gained a significant advantage which might found motivation for the allegation that she forged the email in question.  She alleged that she had taken all steps necessary to have her horses entered for the race in question and that, after acceptances closed, she was astounded that neither horse was noted as one of the acceptances.  It was as a result of that knowledge that she embarked on a quite reasonable, in the opinion of this Tribunal, investigation and enquiry as to the reasons.  As a result of her investigations, the horses in question were initially reinstated.  One of the horses was unplaced.  The other was placed second, but this did not result in any significant benefit being attributed to her or to the owners of the horse in question.  Nevertheless, the investigators appointed by the Respondent saw fit to continue investigations and subsequently charged her with an offence that, in the opinion of this Tribunal, can simply not be sustained.

[10]  In the circumstances, this Review is allowed and the determination of the Stewards is overturned.