Elkins v Queensland Racing Integrity Commission [2021] QCAT 161

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Elkins v Queensland Racing Integrity Commission [2021] QCAT 161 PARTIES: MATTHEW ELKINS (applicant) v QUEENSLAND RACING INTEGRITY COMMISSION (respondent) APPLICATION NO/S: OCR241-18 MATTER TYPE: Occupational regulation matters DELIVERED ON: 27 April 2021 HEARING DATE: 14 December 2020 HEARD AT: Brisbane DECISION OF: Member Kent ORDERS: The decision under review (dated 31 August 2018) is set aside and substituted with a finding of not guilty of the offence of a breach under Australian Harness Racing Rules Rule 149. CATCHWORDS: PROFESSIONS AND TRADES – LICENSING OR REGULATION OF OTHER PROFESSIONS, TRADES OR CALLINGS- whether unacceptable drive by the applicant – consideration of whether conduct blameworthy – whether error of judgment. Australian Harness Racing Rules R 149 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20 McMullen v Racing Queensland Ltd [2012] QCAT 286 Mifsud v Racing Victoria Stewards [2007] VRAT 6 Green v Racing Queensland Ltd [2012] QCATA 269 Richardson v Racing Queensland Ltd [2013] QCAT 95 APPEARANCES & REPRESENTATION: Applicant: Scott Neaves Respondent: Ms Melanie Johnson on behalf of Queensland Racing Integrity Commission -- 1 of 12 -- 2 REASONS FOR DECISION The incident [1] Mr Elkins was the driver of the horse, Crowning Glory, in race 7 at the Albion Park Harness Racing club (Albion Park) on 6 July 2018. As a result of this drive and a subsequent Stewards’ Inquiry he was convicted of a charge pursuant to Australian Harness Racing Rules (AHR) rule 149(2) and given a penalty of a six week suspension. The charge and conviction [2] Mr Elkins was convicted of a breach of rule 149(2) of the AHR. [3] The particulars of the charge were as follows: the applicant, as driver of Crowning Glory in Race 7 at Albion Park, did drive Crowning Glory in an unacceptable manner, rounding the home turn on the final occasion by driving in a manner that failed to exercise sufficient control on Crowning Glory. This manner of driving was considered by the Stewards to be unacceptable. [4] The applicant was penalised by way of six weeks’ suspension of his licence to drive harness horses. He sought internal review of this decision and penalty. The decision and penalty were both affirmed. The applicant then sought Tribunal review of the conviction and penalty. The decision of the internal reviewer was stayed by the Tribunal and the matter subsequently heard by the Tribunal on 14 December 2020. Stewards’ Inquiry [5] The stewards were critical of Mr Elkins’ drive. Their criticisms can be summarised as follows: from the beginning of the race Crowning Glory was urged forward to the lead; originally the horse remained in that position and travelled well on the inside with no issues in regard to being close up to the marker post; when Crowning Glory and the rest of the field entered the front straight at the 200 metre point it was the stewards’ contention that Mr Elkins permitted Crowning Glory to significantly shift wider on the track; they alleged that this shift enabled another runner to gain an advantage by using the inside run prior to the sprint line becoming available; further, Crowning Glory had not previously raced in that manner and therefore there was an inquiry convened to look into the actions of Mr Elkins. Specifically the stewards questioned whether Mr Elkins had failed to exercise sufficient control of Crowning Glory when that horse made the shift out and this was placed in the context of Mr Elkins appearing to make no immediate effort to bring Crowning Glory back in to the trailing position. [6] At the inquiry the stewards expressed particular concern that the applicant was unable to keep Crowning Glory from significantly shifting in the home turn. It was the evidence of Mr Torpey (Chairman)1 that previous runs of Crowning Glory had been reviewed by the Stewards and it was clearly established in those that the applicant had to work hard to keep Crowning Glory from shifting. It appeared that he had achieved this by steering through the left rein and that when Mr Elkins had done this 1 Transcript of Stewards’ inquiry (day two) document 2. -- 2 of 12 -- 3 in previous races he pulled his left hand and rein towards his body at a low height and close to the sulky. [7] Mr Shinn, a member of the panel at the inquiry, discussed that he had also been a harness driver prior to becoming a steward. He put to Mr Elkins that, in his experience, if a horse is inclined to hang the driver does not raise their hands up in the air to control the horse, rather they control the horse by controlling then with their hand down. In the transcript of the inquiry the applicant responded “yes” to this proposition put to him by Mr Shinn. It was also put to the applicant that “when they are up in the air it's a little sus sometimes” and the stewards stated that they were making the point that the applicant was not exercising sufficient control of the horse. [8] Mr Elkins’ evidence at the stewards’ inquiry was that when comparing the movement of the horse on the day in question and the horse’s other races played at the inquiry, there was very little difference in movement to those days. The applicant said the only real difference on 6 July 2018 was that he had an aggressive driver behind him. He believed that consistent with the rules he needed to keep his straight course once a shift had occurred. His view was that he was bound to maintain that course thus giving the impression that a greater amount of shifting had occurred than really was the case. Mr Elkins gave evidence that in the past Crowning Glory had moved out sharply when not under pressure or being driven with the whip or anything. He said that “he does it sharply… you don't know when he's going to do it”. Mr Elkins put to the Chairman that the horse had a tendency to misbehave from time to time and Mr Torpey appeared to agree. Mr Elkins disagreed that because his hands were held high that he was not in control of the horse. [9] At the inquiry there was discussion of the significance of the stablemate’s run in the race. This evidence was not relied upon as significant at the tribunal hearing. [10] The stewards found the applicant guilty of a charge under rule 149(2) and imposed a suspension of six weeks. [11] Mr Elkins applied for an internal review of the decision by the Queensland Racing Integrity Commission (hereafter QRIC). The internal review decision maker confirmed the original decision of guilty of the charge and penalty of six (6) weeks’ suspension. [12] Mr Elkins then filed an application to review the decision of the Stewards in the Tribunal. The function of the Tribunal in a review of a decision is to produce the correct and preferable decision by way of a fresh hearing on the merits. 2 Evidence and Submissions [13] During the course of the hearing I viewed digital film footage of the particular race in question and considered the evidence before the tribunal encompassing the transcripts of the original inquiry, and the evidence of Mr Torpey, provided at the hearing. 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld), section 20. -- 3 of 12 -- 4 Mr Elkins’ Evidence [14] Evidence before the Tribunal indicated that throughout the inquiry, Mr Elkins provided relevant evidence on his control/method of driving as follows: When shown the close up of film of the incident and invited to identify anything of note: Elkins: “Just this probably because it is a close up satisfied me that where my left hand is position (sic) through this course of the event it’s pullback to the inside trying to pull him back to the fence. I am using my whip on the outside but as more of a steering implement as – trying to get the horse to run. Pulling back with the left rein trying to get the horse back to the marker pegs and hit a horse on the outside is the best way to straighten up horse (sic) when it starts to travel up around the bend. It’s worked in the past few.3” Chairman: Your hands are raised high. Why are you (sic) hands race (sic) so high if you’re trying to keep control? Elkins: I’m trying to pulling (sic) back to the fence. You can see where my left hand is. It is back to the inside of the gig. It’s always —- Chairman: It’s loose there. The rein is loose there. Coming around the turn the rein comes – becomes loose in your left hand, doesn’t it? Elkins: Oh, I don’t think so.4 …. [15] It was submitted by Mr Elkins that he had provided evidence about the movement of his horse on the day in question, when compared with other races played at the initial inquiry. He said this evidence indicated little difference in the movement, but that because on the subject day an aggressive driver was behind Mr Elkins, and consistent with the rules relating to keeping a straight course, once the slight shift occurred, he was bound to maintain the course, thus giving the impression that a greater amount of shifting had occurred than was truly the case.5 [16] The applicant’s submissions referred to the following: During cross-examination Mr Torpey confirmed that the rules required Mr Elkins to maintain a straight course once there was movement, and that had Mr Elkins moved his horse back down the track, after shifting, then Mr Elkins would have been acting outside the auspices of the rules.6 [17] Mr Elkins’ submissions included Rule 149 set out entirely, which provides that (see Applicant’s submissions 20 January 2021): Race to win or for best position 149. 3 6 July 2018 transcript, page 5 about line 5. 4 Transcript of stewards’ Inquiry 6 July 2018, page 5 from line 5. 5 3 August 2018 transcript, page 17, from about line 19 to about line 33. 6 Applicant’s submissions dated 20 January 2021 page 4 para 11(b)i. -- 4 of 12 -- 5 (1) A driver shall take all reasonable and permissible measures during the course of a race to ensure that the horse driven by that driver is given full opportunity to win or obtain the best possible placing in the field. (2) A person shall not drive in a manner which in the opinion of the Stewards is unacceptable. (3) A person who fails to comply with sub-rule (1) or (2) is guilty of an offence. (4) The connections of a horse shall not give a direction or instruction to the driver of a horse if in the opinion of the Stewards that direction or instruction may prevent the driver from giving the horse full opportunity to win or obtain the best possible placing. (5) A person who fails to comply with sub-rule (4) is guilty of an offence. (6) If a driver receives a direction or instruction that infringes sub-rule (4) he shall prior to the race notify the Stewards. (7) A driver who fails to comply with sub-rule (6) is guilty of an offence. [18] Further it was submitted that the Tribunal is to decide if in the opinion of this Tribunal the driving in the present case was unacceptable.7 [19] The applicant’s submissions referred to the case of McMullen v Racing Queensland Limited [2012] QCAT 286 and Dixon v Queensland Racing Integrity Commission [2018] QCAT 183 where the test in Mifsud8 has been consistently adopted: The rule in question is as I have stated, a person shall not drive in a manner which in the opinion of the Stewards is unacceptable. This rule is not intended to penalise what might be described as mere errors of judgment or split second mistakes. The Tribunal is well aware of the authority constituted by the previous decision in 1983 by Judge Goran in a case of Honan where it was thought desirable to bring into focus the sort of considerations that lie behind rules such as Rule 149(1) and (2) and Judge Goran made a number of observations.9 It is certainly relevant to restate here that the first, second and fourth of the observations that he made apply. I will read those: "(a) the rule does not permit the mere substitution of the Stewards' view as to how a particular horse should have been ridden for the view of the rider;" Of course in the harness racing world we would substitute "driven for the view of the driver": "(b) the rule does not seek to punish a mere error of judgement during the race on the part of the driver; and (d) the driver's conduct must be culpable in the sense that objectively judged it is found to be blameworthy." I will not include (c) here because it is more relevant to a breach of Rule 149(1) and we are dealing with 149(2) ... 7 See Queensland Racing v McMahon [2010] QCATA 73, followed in Dixon v Queensland Racing Integrity Commission [2018] QCAT 183. 8 Mifsud v Racing Victoria Stewards [2007] VRAT 6. 9 Applicant’s submissions dated 20 January 2021 page 4 para 11(b)i. -- 5 of 12 -- 6 Perhaps to throw my own interpretation into the mix I might view it this way, that the sort of culpable action that is required to amount to a breach of this rule might be such that in normal circumstances a reasonable and knowledgeable harness racing spectator might be expected to exclaim with words to the effect, "What on earth is he doing?" or "My goodness look at that" or some such exclamation. [20] The applicant submitted that the stewards based their view on what they saw as Mr Elkins’ lack of control of the horse. It was Mr Elkins’ submission that he had provided relevant evidence on his control/method of driving in the following manner: he discussed the movement of his horse on the day in question, when compared with other races played; he said there was little difference in the movement; the difference on 6 July 2018 was caused by having an aggressive driver behind him; and it was consistent with the rules relating to keeping a straight course that once the slight shift occurred, he was bound to maintain the course, thus giving the impression a greater amount of shifting had occurred than was truly the case.10 [21] Mr Elkins’ submissions referred to the evidence of the stewards that they were initially alerted to Mr Elkins’ drive by the fact that a stablemate of Crowning Glory won the subject race. This evidence was ultimately not a part of the respondent’s case. I agree with the applicant’s submission that this is irrelevant to the case in hand. [22] Further it was submitted that the evidence from Mr Elkins was uncontradicted: that the subject horse had in previous races moved out sharply. This was alleged to be the case even when Crowning Glory was not under pressure or being driven with the whip or ‘anything’.11 The applicant’s written submissions stated that the “horse’s tendency to misbehave from time to time is acknowledge (sic) by the Chairman”.12 [23] It was submitted that if the tribunal applied the ‘what on earth’ test then it could not convict Mr Elkins. [24] It was submitted that if the stewards relied upon the ‘unacceptable’ element of the charge as being a ‘lack of control’ caused by an alleged loose rein, then applying the test, that must bring an onlooker to comment ‘what on earth’. The applicant submitted that the photographs along with the film itself do not demonstrate any loose rein. It was submitted that no bystander could ask ‘what on earth is Elkins doing with those loose reins’ as no onlooker would be able to see any loose reins. It was submitted that the Tribunal could not be satisfied that there were loose reins at any point and even if I did detect loose reins, they did not prove any degree of culpability on the part of Mr Elkins. [25] The applicant submitted that this was a case of the stewards not approving of the ‘high hand’ style of driving, however it was submitted that it was not contrary to the rules of racing. [26] Reference was made to the first limb of the Mifsud test, where it is noted that “the rule does not permit the mere substitution of the Stewards’ view as to how a particular 10 3 August 2018 transcript, page 17, from about line 19 to about line 33. 11 3 August 2018 transcript, page 18, line 23 to 29. 12 3 August 2018 transcript, page 22 about line 3 to 5; and 3 August 2018 transcript, page 25, about line 32 to 33. -- 6 of 12 -- 7 horse should have been ridden for the view of the rider…”. It was submitted that this is what the stewards had done in this case. [27] The inquiry transcript included the trainer, Mr Greg Elkins, and Mr Matthew Elkins giving evidence regarding ‘high hands’ being successfully used in maintaining control, and where it is consistent with the rules, there is no basis to allow a view against ‘high hands’ held personally by a decision maker to be sufficient to make out the subject charge. [28] It was submitted as per the Mifsud test that the rule does not seek to punish ‘ … a mere error of judgment during the race on the part of the driver…’ [29] The applicant’s submissions pointed to Mr Torpey’s statement that the incident was an error of judgment. [30] They also included that the inquiry transcript evidence indicated that use of similar methods of driving (to Mr Elkins’ in the relevant race) had previously been successful in steering the horse.13 Submissions were also made about a brief description of the incident involving the other runner. [31] The Mifsud test was again cited and it was submitted that it requires that there must be culpability in the sense that objectively judged, the conduct is blameworthy. [32] It was submitted that having regard to all of the evidence what had occurred was the mere shifting of a horse by a modest amount. Further this occurred in circumstances where the horse had been previously subject to various methods of steering. It ws submitted that these methods had been both successful and unsuccessful These outcomes were unpredictable in manner. Ultimately on this occasion, a method was used that was within the rules, and it was unsuccessful, this alone is not sufficient to demonstrate conduct that is blameworthy.14 [33] The review should be allowed, with a finding of not guilty substituted. 15 Penalty [34] Submissions were made by the applicant about penalty as follows: Having regard to the evidence it is submitted that the nature of this conduct is different to that usually acquainted with the subject charge. The conduct is at the very lower end of the scale, that is, this conduct is brief, and occurred in circumstances where the applicant’s horse had come to the end of its run. In the premises, the applicant’s conduct did not cause his horse to cover more ground, over race, or tire badly, as is often associated with this charge. [35] The applicant has not previously been convicted of a breach of this rule, or any rule of similarity. [36] The applicant provided an explanation for his conduct, and it was accepted that same occurred in circumstances where the subject horse was a difficult horse to drive. 13 Applicant’s submission of 20 January 2021 para 11.b. 14 Applicant’s submission of 20 January 2021 para 21. 15 Applicant’s submission of 20 January 2021 para 21. -- 7 of 12 -- 8 [37] Mr Torpey conceded that rule 162(1)(www) deals with the shifting of ground, and that penalties for that rule were usually fines in the order of $100 to $200. The respondent’s evidence and submissions [38] I had the opportunity to hear Mr Torpey’s evidence and view the relevant film several times in addition to the evidence of and submissions of Mr Elkins. The respondent’s submissions include that the appellant is an “A Grade driver” and therefore Mr Elkins is expected to, and required to, drive to the highest standards. Submissions were also made about the stewards’ panel and their vast experience. From the evidence neither of these points are contested. [39] Mr Torpey refuted the applicant’s evidence that his horse, Crowning Glory, had a tendency to shift out on the home turn. It was Mr Torpey’s evidence that he formed the opinion after viewing footage of previous races that drivers, including Mr Elkins, had to work hard and steer Crowning Glory to prevent him from shifting ground. [40] It was the respondent’s submission that it has been demonstrated through the footage of Crowning Glory’s previous races that the horse can be controlled by the rein and that it responds to the bit.16 [41] It was submitted that the footage and the transcripts demonstrated that at the home turn Mr Elkins failed to exercise sufficient control using his left hand on the rein to keep a tight rein on his horse. It was submitted he should have kept a tight rein as he was aware that the horse tended to shift out on the home turn. Therefore, as a result of the loose rein, Mr Elkins permitted his horse to significantly shift one cart wider on the track. [42] Mr Torpey’s evidence was that Mr Elkins exhibited little or no control on Crowning Glory when he permitted the horse to shift out in the home straight. Mr Torpey said that this could be demonstrated by the position of the applicant’s hands and the lack of grip on the near side rein on the horse. This was in the context of the applicant knowing that the horse had a history of shifting out.17 [43] The respondent’s submissions were that the applicant did not keep a tight rein on Crowning Glory (which has been admitted by the applicant)18 to prevent the horse shifting around the home turn when the applicant was aware that the horse had a tendency to hang around the home turn. [44] It was submitted that in previous races the applicant was able to keep Crowning Glory to the inside by keeping his left hand down and low. [45] The previous race mannerisms of Crowning Glory were set out in the respondent’s submissions. In summary it was submitted that the review had established that the applicant had previously had to work hard to keep Crowning Glory from shifting by steering through the left rein and, in doing so, the applicant pulled his left hand and 16 Ibid, p. 18 at 38 to 47, p. 21 at 25, p. 24 at 7, p. 27 at 10, p. 44 at 30. 17 Transcript of Proceedings (Day 2), Document 2 in the Section 21(2) Bundle of Documents, p.42 at 25. 18 Transcript of Proceedings (Day 2), Document 2 in the Section 21(2) Bundle of Documents, p.45 at 7. -- 8 of 12 -- 9 rein towards his body at a low height and close to the sulky,19 being in complete contrast to the position of the applicant’s hands in the subject race. [46] Therefore, it is submitted that the applicant’s actions with his hands and reins were in complete contrast to previous drives on the horse, and not symbolic of a horse that is hanging out to any extent that would prevent the applicant from driving in an acceptable manner and importantly leave no room for query.20 [47] Further, after permitting Crowning Glory to shift wide on the home turn, the applicant made no immediate attempt to correct the shift or to bring Crowning Glory back to the trailing position, as evidenced by the footage, which further indicates a lack of control by the applicant.21 [48] It is further submitted that the applicant should have been driving to protect his line until he got around the home turn so that Crowning Glory could get an advantage to improve prior to the sprint lane.22 [49] In applying the test in Mifsud, the Tribunal can be comfortably satisfied that a reasonable and knowledgeable harness racing spectator might be expected to exclaim with words to the effect “What on earth is he doing?" or "My goodness look at that" or some such exclamation when viewing the shift by Crowning Glory on the home turn as permitted by the applicant due to his lack of control of Crowning Glory in circumstances where the applicant would have expected the horse to shift ground due to the horse’s tendency to hang around the home turn and in which it would have been expected that the applicant keep a tight left rein, as he had previously done so.23 [50] It was submitted that this was more than a mere error of judgment on the applicant’s behalf. It was submitted that this view was supported by Mr Elkins’ previous driving of the horse with a tight left rein. It therefore followed that the Tribunal should accept that this method was effective in steering and keeping Crowning Glory to the inside. [51] The Tribunal’s attention was specifically drawn to the digital recordings of the race and the point where it was alleged the applicant’s left hand could be seen to be holding the rein high and allowing the rein to flap. It is submitted that this caused significant shifting out. This shifting out occurred when the applicant’s hands were loose and up high. It was the respondent’s submission that this is blameworthy and this lack of control on Mr Elkins’ part was unacceptable, particularly in the context of the applicant’s knowledge of the horse’s tendency to hang at that particular point in the race, and it is based upon those factors that this Tribunal should therefore find the charge proven. 19 Transcript of Proceedings (Day 2), Document 2 in the Section 21(2) Bundle of Documents, p.19 at 11. 20 Respondent’s submissions dated 17 February 2021 para 54. 21 Respondent’s submissions dated 17 February 2021 para 55. 22 Transcript of Proceedings (Day 1), Document 1 in the Section 21(2) Bundle of Documents, p.7 at 25 and 44. 23 Respondent’s submissions dated 17 February 2021 para 57. -- 9 of 12 -- 10 Penalty [52] The respondent set out several precedents for the Tribunal’s consideration. It was submitted the minimum penalty for rule 149(2) is a four week suspension and taking all the precedents into account the six week suspension imposed was reasonable and proportionate in the circumstances. Legal framework [53] The QCAT decision of Richardson v Racing Queensland Ltd24 stated that the test to be applied is that set out in McMullen v Racing Queensland Ltd.25 In that case the Tribunal referred to Mifsud v Racing Victoria Stewards26 where it was said that for disciplinary action to be taken against the driver, it must be established that the driver must be found to have been blameworthy in the manner in which the horse was driven in the race in question. That of course is distinct from a situation where the actions of the driver might be regarded as an error of judgment or a split-second decision resulting in a mistaken choice. Application of Law to the Current Facts [54] I viewed the video of the race several times. I read the transcripts of the stewards’ inquiries and the internal review. I heard the evidence given at the Tribunal hearing and submissions from both parties. I have also had the benefit of written submissions from both parties post the hearing. [55] What I am dealing with is a charge that, in the words of the Tribunal in McMullen v Queensland Racing Limited, needs to be approached with caution as it is a general offence committed when someone forms the opinion that it has been committed. I need to be alert to the danger that a driver can be convicted of an offence on the subjective view of stewards when, if other stewards had been involved, there might have been a different result. Therefore, for stewards making a decision such as this both they and the Tribunal as the decision maker in this proceeding need to be as objective as possible. [56] In this case the stewards gave reasons for their decisions. This can be summarised as being that the offence was committed because Mr Elkins lacked control of the horse and this lack of control was evidenced by a loose rein and the fact that the applicant made no real attempt to shift the horse back in after it had shifted out. This decision was supported by viewing of the horse’s previous races and information about the stablemate of the applicant. I accept that the issue of the stablemate has not been pressed in this hearing and do not consider it to be significant due to this fact. [57] Like the case of McMullen I have formed an opinion which differs from the opinion of the stewards.27 After multiple views of the video of the race I am unable to conclude that there is clear evidence that Mr Elkins is not in control of the horse. 24 [2013] QCAT 95. 25 [2012] QCAT 286. 26 [2007] VRAT 6. 27 [2012] QCAT 286, [12], [13] and [14]. -- 10 of 12 -- 11 There is no clear evidence that the reins are loose at the time that the stewards allege is critical. From all angles I note Mr Elkins’ hand being held high, however I cannot see evidence of a lack of control. I accept Mr Elkins’ views that should he have moved the horse back in, that may well have caused more complications for himself and the rest of the field. I accept that Crowning Glory is a horse that can be driven in several ways. [58] I note the evidence of Mr Shinn as recorded in the transcript of the inquiry where he states that he is not accusing Mr Elkins of anything or criticising the way he drove.28 This statement seems to be at odds with the premise of the inquiry that the stewards were blaming Mr Elkins for the way he drove Crowning Glory. [59] It is Mr Elkins’ evidence in the inquiry transcript that “… I mean the main thing is what really does work no one really knows. It's a race. They're horses. They are wild animals. There are no written rules: saying this works for this or won’t work for this animal won’t work for that horse”.29 Further he stated, “I means (sic) it changes daily – horses, races. There were no written rules. It pretty much happens out there doesn't it”.30 I find this evidence to provide a reasonable explanation why horses may need to be driven in different styles at different times. [60] I find that during Mr Elkins’ drive on the relevant day he made a decision about how this horse should be driven. This decision included holding his hands in the air. Given the evidence of previous races it is evident that from time to time the horse certainly has been driven with reins being held in a lower apparently tighter position than in this race. On this occasion his decision to hold the reins in a high position has not paid off for him in the sense of him winning the race but in the circumstances, I cannot accept that this is blameworthy or culpable behaviour in that sense. [61] The evidence before me indicated that Mr Torpey told Mr Elkins during the inquiry that this is not an offence that relates or reflects upon the honesty or integrity of the person charged. The relevant rule that requires that the driver drive his horses in an acceptable manner. This rule is not designed to punish a driver for simply making a mistake. The respondent submitted that in this case the mistake is of considerable significance. It was also submitted that Mr Elkins’ experience should be considered and in the circumstances the explanation he offered should not be considered as reasonable. It therefore followed that it was appropriate to convict him and continue the appropriate penalty which was a period of suspension of his licence to drive in races for six weeks.31 [62] Applying that Mifsud test here, I think it can be said that Mr Elkins’ decision to drive the horse in the manner that he did was reasonable in the circumstances. I accept that the decision that he made can be characterised as a legitimate alternative method of driving the horse. Alternatively, it may have been a mistake of judgment on his part but not one that attracts any culpability. Whilst both characterisations of the applicant’s drive are open on the evidence, I tend to place greater weight on the view that he was not in fact out of control of the horse. I based this on my viewing of the video on a number of occasions and from different angles. I was unable to detect, 28 Inquiry transcript day 2, page 34 line 45. 29 Inquiry transcript day 2, page 35 lines 31 to 35. 30 Inquiry transcript day 2 page 35 lines 39 to 40. 31 Inquiry transcript day 2 from page 51 line 40 to page 52 line 4. -- 11 of 12 -- 12 despite having the benefit of cross examination and evidence of Mr Torpey, any evidence of a loose rein in the left hand of Mr Elkins causing the horse to be not under the control of the driver. I accept as reasonable Mr Elkins’ view that had he tried to shift the horse back in after it ran wide then this would have caused greater problems for himself and others in the field. I accept that an influencing factor in this decision is his having had an aggressive driver behind him. [63] I find that Crowning Glory is a horse that can be driven both with a looser high held rein and a lower rein and that evidence of a high rein does not prove that the horse is inadequately controlled by the driver. [64] I find that there was nothing blameworthy in Mr Elkins’ actions in driving Crowning Glory in the manner in which he did in the relevant race. [65] In this case the stewards are of the view that Mr Elkins was in error in the manner in which he drove Crowning Glory. As I have stated I question whether Mr Elkins did in fact make an error as it appears from that driving in that manner was a legitimate tactic with that horse, albeit one that did not pay off on the day in question. However, if there was an error it is clear to me that it was only an error of judgment and not one that attracts the culpability that one would expect under rule 149(2). The decision made by Mr Elkins to drive the horse in the manner that he did, when objectively, judged cannot be regarded as blameworthy. [66] In coming to the conclusions referenced above I considered the comments of Member Dodds in Green v Racing Queensland Ltd32 where he stated that the stewards embody a considerable deal of knowledge and experience about harness racing and their opinion is deserving of considerable weight when considering whether Mr Elkins’ conduct is blameworthy. I do not quibble with the experience of the stewards in this case, however when applying the relevant rule in an objective manner to the evidence before me I have come to a different conclusion to the stewards. [67] I therefore set aside the decision under review and substitute a finding of not guilty of the offence of a breach of Australian Harness Racing Rules Rule 149. 32 [2012] QCATA 269. -- 12 of 12 --