El-Issa v Queensland Racing Integrity Commission [2021] QCAT 367

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: El-Issa v Queensland Racing Integrity Commission [2021] QCAT 367 PARTIES: BOBBY EL-ISSA (applicant) v QUEENSLAND RACING INTEGRITY COMMISSION (respondent) APPLICATION NO/S: OCR081-21 MATTER TYPE: Occupational regulation matters DELIVERED ON: 19 October 2021 HEARING DATE: 12 October 2021 HEARD AT: Brisbane DECISION OF: Member Cranwell ORDERS: 1. The decision of the Queensland Racing Integrity Commission dated 17 March 2021 is set aside. 2. The Tribunal substitutes its own decision that Bobby El-Issa is guilty of careless riding and is suspended for a period of two weeks. CATCHWORDS: PROFESSIONS AND TRADES – LICENSING OR REGULATION OF OTHER PROFESSIONS, TRADES OR CALLINGS – jockey – whether applicant rode in careless or reckless manner – penalty Australian Racing Rules, rule 131 Oliver v Racing Victoria Limited (Review and Regulation) [2016] VCAT 1794 APPEARANCES & REPRESENTATION: Applicant: J Murdoch QC Respondent: R Anderson QC -- 1 of 5 -- 2 REASONS FOR DECISION [1] Mr El-Issa is a registered jockey, and holds a visiting licence in Queensland. [2] On 28 February 2021, Mr El-Issa rode Bel’s Desire in race 6 at the Sunshine Coast. [3] The Queensland Racing Integrity Commission’s (‘the Commission’) charged Mr El-Issa with breaching rule 131(a) of the Australian Rules of Racing. Rule 131(a) relevantly provides: A rider must not, in the opinion of the Stewards: (a) engage in careless, reckless, improper, incompetent or foul riding; … [4] The stewards found Mr Elkins guilty of reckless riding and imposed a suspension of one month. [5] Mr Elkins applied for an internal review. [6] On 17 March 2021, the Commission’s internal reviewer confirmed both the finding of guilt and the penalty. [7] Mr El-Issa has now applied for an external review to the Tribunal. [8] The incident the subject of the charge occurred on the turn after the 500 metre post, and took place in space of a few short seconds. Considerable time in the hearing was spent hearing from Mr El-Issa and the chief steward on the day, James Williamson, on their interpretation of the race footage. [9] Relevantly, Mr El-Issa’s evidence may be summarised as follows: (a) Mr El-Issa and his mount, Bel’s Desire, was following the horse Bohemian Boom. (b) Mr El-Issa had wanted to come out and go around Bohemian Boom. (c) Bohemian Boom abruptly ran in. (d) Bel’s Desire spotted this, and stepped across the heels of Bohemian Boom. Mr El-Issa had no control over the horse’s movement. (e) Bel’s Desire came out further than Mr El-Issa had expected. There was no advantage in the race to doing this. (f) Mr El-Issa had no intention to interfere with That’s My Opinion or to be in his line of running. (g) There was no horse contact, and no horse came down. [10] Relevantly, Mr Williamson’s evidence may be summarised as follows: (a) Mr El-Issa was not following Bohemian Boom at the time. (b) In order to move out, Mr El-Issa had to cross the line of That’s My Opinion. -- 2 of 5 -- 3 (c) Mr El-Issa did not look before he moved Bel’s Desire out. (d) Mr El-Issa had his hands forward and angled his horse head, indicating that Mr El-Issa was seeking to increase the tempo of the horse and shift out. (e) That’s My Opinion was improving its position at the time. (f) Bel’s Desire was not on the heels of Bohemian Boom. (g) Bohemian Boom did not abruptly run in. (h) It is known at the Sunshine Coast that the whole field goes wide at the turn. [11] Having viewed the video footage during the hearing, I would make the following findings: (a) Mr El-Issa and his mount Bel’s Desire were not following Bohemian Boom at the commencement of the incident. (b) Bohemian Boom did not abruptly run in. The video footage indicates that Bohemian Boom held its position. That said, Bohemian Boom’s head was angled out, which is consistent with that the jockey trying to hold the horse in position by preventing him from running in. This may have given Mr El-Issa the false impression that the horse was moving in, particularly in the context of the field as a whole moving out as it turned into the straight. In those circumstances, I consider Mr El-Issa’s held an honest, albeit mistaken, belief that Bohemian Boom was running in. (c) The video footage suggests that Bel’s Desire stepped across the heels of Bohemian Boom as it passed behind the horse. This was compounded by Mr El-Issa seeking to increase the tempo of Bel’s Desire. (d) Bel’s Desire went out further than Mr El-Issa had intended. (e) Mr El-Issa did not check the position of That’s My Opinion before moving out. (f) Bel’s Desire necessarily had to cross the line of That’s My Opinion in order to move out. (g) There was no contact between the horses. None of the other jockeys were called to give evidence, and Mr El-Issa’s evidence that no contact occurred is not definitively contradicted by the video footage. [12] I will now turn my consideration to the issue of whether Mr El-Issa’s conduct is properly to be characterised as careless or reckless. [13] The Macquarie Dictionary defines careless as ‘not paying enough attention to what one does’ and ‘done or said heedlessly or negligently; unconsidered’. [14] Reckless is defined as ‘utterly careless of the consequences of action; without caution’. -- 3 of 5 -- 4 [15] To the extent that it is desirable for me to consider authorities on the application of rule 131(a), I have been referred to Oliver v Racing Victoria Limited (Review and Regulation) [2016] VCAT 1794. Judge Jenkins stated at [41]-[45]: In the Ruling of Lewis J in Nolen’s case, for the purpose of a charge of reckless riding, His Honour addressed the applicable standard of care; the concept of recklessness; and the abiding objective underpinning the Rules. I endorse and adopt each of these aspects of His Honour’s Ruling. First, the relevant standard of care to which the Applicant is subject: The standard of care is that of a rider of reasonable competence, skill and ability. Whether a rider is careless or reckless will depend upon the extent to which the rider departs from the standard imposed upon him. Secondly, in relation to the concept of recklessness, His Honour stated: The question of whether a rider was reckless will be answered by an examination of and an evaluation of all the circumstances of the case. In this case, the circumstances would include such matters as the point of the race where the incident occurred, the relative positions of the horses involved, the nature and extent of the initiating act of interference, the appellant’s state of mind, and the consequences which flowed and/or the potential consequences which may have flowed, from the appellant’s actions. Thirdly, His Honour clearly stated the abiding objective underpinning the Rules, in a case such as the present: It is clear that the Rules of Racing as they apply to riders are primarily about safety, they are not penal rules. The safety of the horse and rider in the conduct of racing is paramount. Riders have an obligation to observe the rules of safety which include not to interfere with the right of another horse to its running as well as the rules under which they ride and are licensed. In Nolen’s case, the RAD Board was satisfied that the jockey: …rode his mount out and despite the fact that there was no run then present between [mount 1] and [mount 2] he rode on severely bumping mount 1 on three occasions. A chain reaction ensued in which [mount 3] was almost brought down. Had [mount 3] fallen there could have been a catastrophe. The Board is in no doubt that in doing what he did, the appellant threw caution to the wind; not only was he prepared to barge his way out by shunting [mount 1] out of the way but in doing so the Board finds that he was indifferent to the consequences of his actions… In all the circumstances the Board is satisfied that what the appellant did was fraught with danger. In the Board’s view the appellant’s riding constituted a gross departure from the required standard of care and could only be categorised as reckless… [footnotes omitted] -- 4 of 5 -- 5 [16] To this I would add that horse races are run in minutes and seconds. Tribunal hearings last for hours and, on occasions, days. During the hearing in this matter, a number of hours during were spent dissecting the footage of the race the assistance of two of Her Majesty’s Counsel learned in the law. Mr El-Issa had a matter of seconds to assess the situation on the day. [17] In my opinion, Mr El-Issa’s conduct is careless but falls short of reckless, although not by much. [18] As set out above, it seems to me that Mr El-Issa had a false impression that Bohemian Boom was running in, which in turn would likely have affected his spatial awareness of the line of other horses, including That’s My Opinion. This is supported by the fact that Bel’s Desire went further out than was intended. By the time Mr El-Issa found Bel’s Desire stepping across the heels of Bohemian Boom, Mr El-Issa had no option but to continue to move his horse out. [19] It is stating the obvious that Mr El-Issa could have avoided moving into the line of That’s My Opinion by first checking on the position of That’s My Opinion before moving out. This was careless, but not utterly careless in circumstances where I have found that Mr El-Issa had an honest but mistaken belief in relation to the position of the other horses. [20] I find Mr El-Issa guilty of careless riding. [21] Turning to the issue of penalty, it was put to me that the penalties for careless riding range from a reprimand to suspension for two weeks. [22] I consider a penalty at the upper end of this range, namely suspension for two weeks, to be appropriate in this case for two reasons: (a) Mr El-Issa’s conduct is at the upper end of the range of careless riding. Had there not been a basis for Mr El-Issa’s mistaken belief that Bohemian Boom appeared to be moving in, I would have found his conduct to be reckless. As the internal reviewer observed, ‘That’s My Opinion was lucky not to fall as a consequence of the applicant’s actions’. (b) Mr El-Issa has a history of 140 offences of careless riding over a 20 year career. As Mr Williamson observed, this is a ‘poor’ record. My imposition of a penalty in this case is directed towards the protection of horses and jockeys in future races in which Mr El-Issa might participate. It is my intention that a suspension at the upper end of the range might cause Mr El-Issa to think twice before continuing his pattern of careless riding, in circumstances where lesser penalties have not had this effect in the past. [23] I will set aside the decision under review and substitute a decision that Mr El-Issa is guilty of careless riding and impose a two week suspension. -- 5 of 5 --