Ball v Queensland All Codes Racing Industry Board [2020] QCATA 115

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Ball v Queensland All Codes Racing Industry Board [2020] QCATA 115 PARTIES: RONALD DOUGLAS BALL (applicant/appellant) v QUEENSLAND ALL CODES RACING INDUSTRY BOARD (respondent) APPLICATION NO/S: APL104-17 ORIGINATING APPLICATION NO/S: OCR039-16 MATTER TYPE: Appeals DELIVERED ON: 1 September 2020 HEARING DATE: 20 November 2017 (with further supplementary submissions filed on 24 April and 16 May 2018) HEARD AT: Brisbane DECISION OF: Justice Daubney, President Senior Member Howard ORDERS: The appellant has leave to amend the application for leave to appeal or appeal in accordance with paragraph 9 of the appellant’s outline of argument filed on 25 July 2017. The appeal is dismissed. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – PROOF AND EVIDENCE – OTHER MATTERS – where, in determining whether the appellant had used live baiting of animals for a purpose connected with greyhound racing that was improper in breach of the Greyhound Australasia Rules, the learned member at first instance was required to be satisfied that the appellant was present at a particular training facility on a particular day – where the learned member concluded that she was reasonably satisfied that the appellant was present at the training facility on the relevant day – where the evidence tendered at the final hearing below included video evidence allegedly showing the appellant at the -- 1 of 18 -- 2 facility while his dogs were live baited, the transcript of a stewards’ inquiry, and the transcript of an appeal hearing before the Queensland Racing Disciplinary Board – where the appeal hearing transcript recorded a steward giving evidence under cross-examination identifying the appellant as the person in the video footage – where that transcript was not previously challenged at a preliminary hearing on the admissibility of certain evidence – where the appellant now argues that the steward’s evidence was inadmissible and that the learned member misapplied the applicable test with respect to identification evidence generally – whether the learned member erred in admitting the steward’s identification evidence – whether the learned member erred in her treatment of the evidence as part of the material to be considered APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – PARTICULAR CASES – CONTROL OVER PROCEEDINGS – ADMISSION OF EVIDENCE – where the learned member determined a number of evidentiary issues at a preliminary hearing – where certain audio recorded on video footage was deemed inadmissible, but the video footage and the transcript of a steward’s inquiry were otherwise admissible – where that preliminary decision was not appealed – where the appellant now argues that the learned member should have exercised her discretion to not admit the transcript of inquiry or video footage into evidence – where the appellant argues in the alternative that the learned member should have given the transcript and video footage very little weight – whether the learned member erred in admitting the transcript and video footage – whether the learned member erred in her treatment and assessment of that evidence APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – PROOF AND EVIDENCE – OTHER MATTERS – where the learned member, in determining whether the appellant was the person in the video footage, accepted that the appellant had not provided a clear and definite admission during the steward’s inquiry – where the learned member considered that, by the appellant’s further responses during the inquiry, he accepted that he was the person in the footage – where the learned member also commented that the appellant had not given any evidence of someone else training his dogs – where the appellant argues that the learned member reached an impermissible conclusion by purportedly concluding that the appellant could have produced evidence of someone else training his dogs, and his failure -- 2 of 18 -- 3 to do so meant he did not challenge the circumstantial identification evidence – whether the learned member erred in law Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 28, s 142 Azzopardi v The Queen (2001) 205 CLR 50 Ball v Queensland All Codes Racing Industry Board [2016] QCAT 369 Ball v Queensland All Codes Racing Industry Board [2017] QCAT 72 Briginshaw v Briginshaw (1938) 60 CLR 336 Bunning v Cross (1978) 141 CLR 54 Crime & Misconduct Commission v Barnett [2010] QCAT 690 House v The King (1936) 55 CLR 499 APPEARANCES & REPRESENTATION: Applicant: T C Minnery, instructed by CNG Law Respondent: J M Horton QC, instructed by Queensland Racing Integrity Commission REASONS FOR DECISION This is an appeal against the decision of the Tribunal1 (“the Tribunal decision”) which resulted in an order that the appellant, who was a greyhound trainer, be warned off for 10 years from 26 May 2015. The uncontentious background to this matter was conveniently summarised in the Tribunal decision: [1] Mr Ronald Ball has been a trainer of greyhound dogs for racing for over 50 years. Prompted by Racing Queensland being provided with video footage of training methods used at a property at 9 Wotan Road, Churchable (‘the Churchable property’), Racing Queensland stewards conducted an investigation into matters recorded in the footage which were considered of concern. [2] Following an inquiry conducted by Racing Queensland stewards on 18 March 2015, the Queensland All Codes Racing Industry Board (‘Racing Queensland’) decided, on 26 May 2015, that Mr Ball had breached certain of the Greyhound Australasia Rules (GAR) and, as a consequence: a) Mr Ball was warned off for life from all Queensland greyhound racecourses; and b) All greyhounds owned by him (wholly or partly) were prohibited from competing in any event, subject to the following: 1 See Ball v Queensland All Codes Racing Industry Board [2017] QCAT 72 (“Ball [2017]”). -- 3 of 18 -- 4 i) Any such greyhound may be permitted to compete in any Events and/or be used for breeding purposes under the protocols to be advised by the Stewards on the basis that Mr Ball has no further interest or involvement in any such greyhound; and ii) Any transaction for the sale of the greyhound must be a legitimate transaction with appropriate evidence as required by the Stewards to be provided by Mr Ball to demonstrate the legitimacy of the sale. [3] Mr Ball appealed that decision and, on 3 March 2016, the Queensland Racing Disciplinary Board (‘the QRDB’) varied the decision by reducing the period for which Mr Ball was to be warned off to 10 years. In so doing, it was submitted by Racing Queensland that the QRDB did not have jurisdiction in respect of Racing Queensland’s decision under GAR 14(1)(c) which related to the greyhounds owned by Mr Ball. It was submitted that s 149S of the Racing Act 2002 (Racing Act) made it clear that such a decision was not an ‘appellable decision’ as defined. It appears from the reasons of the QRDB that, in respect of the issue of the appropriate sanction, it regarded itself as confined to a consideration of Racing Queensland’s decision under rule 3A of the Local Rules of Racing (Greyhound Rules) (the Local Rules), to warn off Mr Ball for life. [4] In reaching its decision, Racing Queensland and the QRDB considered primarily the transcript of Mr Ball’s attendance at the stewards’ inquiry on 18 March 2015 and video footage said to be taken at the Churchable property. Mr Ball did not give evidence before either Racing Queensland or the QRDB. During the stewards’ inquiry, Mr Ball was shown the video footage. The video footage comprises long shot footage and button shot footage. [5] Mr Ball applied to the Tribunal for review of the decision of the QRDB. Mr Ball argued that the transcript of the stewards’ inquiry and the video footage should not be admitted into evidence before the Tribunal. On 14 October 2016, I decided that the audio of conversations or spoken words recorded on the video footage was not admissible. I determined that otherwise the video footage was admissible as was the transcript of the stewards’ inquiry. In my written reasons, I stated that at the resumed hearing, the parties were entitled to make submissions about the weight I should give to the evidence. [6] At the resumed hearing on 5 December 2016, no oral evidence was led by either party. I accepted into evidence the documents (including compact discs recording the footage) filed in the Tribunal by Racing Queensland pursuant to s 21(2) of the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act) subject to my orders regarding admissibility of the audio. I also accepted into evidence an affidavit of Matthew John Jackson provided to the Tribunal by Mr Ball on the day of the hearing. [7] During the hearing, Mr Ball’s legal representative sought to tender an affidavit of Mr Ball that had not been previously filed in the Tribunal. Ultimately, it was not tendered into evidence as, following submissions and interactions between the Tribunal and the parties’ representatives and the Tribunal and Mr Ball himself, as well as adjournments for Mr Ball’s representative to obtain his instructions, Mr Ball’s representative informed the Tribunal that Mr Ball no longer sought to rely on it. -- 4 of 18 -- 5 (citations omitted) As appears from that statement of background, there was a preliminary hearing before the Tribunal to decide certain challenges to evidence which the respondent proposed to rely on at the final hearing. The Tribunal determined those evidentiary issues, and published reasons for those decisions on evidence (“the 2016 decision”).2 There was no appeal against the 2016 decision. In the course of the present appeal hearing, counsel for the appellant conceded that there had been no such appeal against the 2016 decision to admit certain evidence for the final hearing, but nevertheless sought to characterise the present appeal as a challenge to the learned member’s reliance on that evidence, or at least the weight placed by the learned member on that evidence. The application for leave to appeal or appeal originally filed by the appellant for the present appeal stated the following grounds of appeal against the Tribunal decision: 1. The Tribunal stated and applied an incorrect standard of proof in circumstances where the consequences were career ending. 2. The Tribunal relied on inexact proofs & indirect inferences. 3. The long shot & button footages did not match. 4. The decision was unreasonable. Directions of a conventional nature were made for the filing and exchange of material and submissions to advance the hearing of this appeal. At no time did the appellant seek, nor was the appellant granted, leave to amend his grounds of appeal. Nevertheless, by the appellant’s written submissions (settled by counsel), the grounds of appeal were effectively completely supplanted by the following:3 Grounds of Appeal 8. The decision of Member Guthrie of 3 March 2017 included, it is submitted, rulings as to the admissibility of key evidence. These rulings were made on 14 October 2016. It is submitted that the rulings on the admissibility of evidence are central to the decision appealed. 9. It is respectfully submitted that Member Guthrie erred in making her decision in the following ways: a. Ground 1: Member Guthrie erred in admitting evidence relevant to identification from Mr Torpey, and misapplied the applicable test with respect to identification evidence generally. b. Ground 2: Member Guthrie erred in admitting into evidence the transcript of the inquiry, including particularly the admissions said to have been made by the appellant, or alternatively ought to have afforded that evidence so little weight as to be largely irrelevant, having regard to the process of the inquiry itself. c. Ground 3: The video footage admitted into evidence ought not to have been, in the exercise of the Tribunal’s discretion, or alternatively ought to have been afforded such little weight as to be effectively of no use to the Tribunal in making a decision. 2 See Ball v Queensland All Codes Racing Industry Board [2016] QCAT 369 (“Ball [2016]”). 3 Appellant’s written outline of argument filed 25 July 2017, paras 8 and 9 (“Appellant’s submissions”). -- 5 of 18 -- 6 d. Ground 4: Member Guthrie erred in the use of an absence of evidence from the appellant on a number of key points. The respondent, both in written submissions and in argument before this Appeal Tribunal, joined issue on the grounds of appeal advertised in the appellant’s written submissions. The respondent cannot be said to have suffered any prejudice by meeting these revised grounds of appeal. It should be noted, however, that paragraph 8 of the appellant’s written submissions cannot be accepted, and indeed are contrary to the concessions made in argument by counsel for the appellant. The Tribunal decision of 3 March 2017, being the only decision which is the subject of this appeal, did not include “rulings as to the admissibility of key evidence”. Those rulings were the subject of the 2016 decision. Paragraph 8 of the appellant’s submissions would seek, by a side wind, to convert the present appeal into a challenge against the 2016 decision. At best, therefore, the present appeal can go only to the weight afforded to that evidence in the Tribunal decision now under review, and this, as has already been noted, was effectively conceded by counsel for the appellant at the hearing before this Appeal Tribunal. For completeness, however, and having regard to the fact that the matter was argued by both sides by reference to the grounds of appeal set out in paragraph 9 of the appellant’s written submissions, this Appeal Tribunal will give leave for the appellant’s grounds of appeal to be amended to those set out in paragraph 9 of the appellant’s outline of argument filed on 25 July 2017. Ground 1 The first charge against the appellant was that he had used the live baiting of animals for a purpose connected with greyhound racing that was improper, in breach of the relevant provision of the Greyhound Australasia Rules. This conduct was alleged to have occurred on about 22 August 2014 at the training facility known as “the Churchable property”. One of the matters of fact of which the learned member needed to be satisfied was that the appellant was present at the Churchable property on the day in question. It is uncontroversial that this needed to be established on the balance on probabilities, and having regard to the Briginshaw standard.4 The evidence tendered by the respondent for the final hearing before the Tribunal included video evidence which was alleged to show the appellant at the Churchable property while his dogs were live baited, the transcript of the stewards’ inquiry held on 18 May 2015, and the transcript of the appeal hearing before the Queensland Racing Disciplinary Board (“QRDB”). That latter transcript recorded a passage of the hearing before the QRDB in which one of the stewards, Mr Torpey, gave evidence in which he identified the appellant on the video footage. Ground 1 of this appeal turns on that identification evidence, in that the appellant contends that: (a) The learned member “erred in admitting evidence relevant to identification from Mr Torpey”; and 4 See Briginshaw v Briginshaw (1938) 60 CLR 336, 361–362. -- 6 of 18 -- 7 (b) The learned member “misapplied the applicable test with respect to identification evidence generally”. Directly relevant to this ground of appeal is the following passage from the learned member’s reasons in the Tribunal decision: [46] In term [sic] of other evidence going to the issue of identification of Mr Ball, I have before me a copy of photographic identification of Mr Ball. I also have the transcript of the appeal hearing before the QRDB. At that hearing, Mr Torpey, one of the stewards who conducted the inquiry gave evidence and was cross-examined by counsel for Mr Ball. Mr Torpey was cross-examined about how Mr Ball was identified. Mr Torpey gave the following response: MR TORPEY: No, the situation being is that that may become – trying to recall six months ago exactly how we’ve come to the conclusion that that’s Ron Ball, but Mr Ball was sitting opposite at the time of the inquiry and it was the footage that we played, I’m certainly of the view that the person that was sitting opposite me was the person that walked across the screen. [47] The applicant argues that Mr Torpey’s identification is unreliable because he identified Mr Ball by simply looking at the footage and then at the man in front of him. He did not identify Mr Ball as the man from the footage by selecting him from a number of people as is done in criminal matters where a witness is asked to identify an alleged offender from a line up of people. (citations omitted) In respect of the first element of this ground of appeal, counsel for the appellant submitted:5 The evidence of Mr Torpey in identifying the appellant was inadmissible and ought not have been admitted into evidence. There are very real risks inherent in the process of opinion evidence being given as to the identity of a person on photographs or on video footage. There is, however, a threshold obstacle to the appellant advancing these submissions. This evidence of Mr Torpey was contained in the transcript of the QRDB appeal hearing. Neither that transcript as a whole, nor the extract containing Mr Torpey’s evidence, was the subject of the evidentiary challenge in the preliminary hearing before the learned member. That preliminary hearing was concerned only with challenges to whether the learned member ought receive in evidence the video footage and the transcript of the stewards’ inquiry held on 18 March 2015. Nor was there any objection to the tender of the transcript, or any part of it, at the final hearing before the learned member. As noted in the learned member’s reasons, the relevant statement by Mr Torpey was given in response to a question put to him in cross-examination by the appellant’s then counsel. That barrister, who is very experienced in criminal law, cross-examined Mr Torpey at some length before the QRDB. That included considerable cross- examination in which counsel sought to impugn the basis for, and accuracy of, 5 Appellant’s submissions, para 16. -- 7 of 18 -- 8 Mr Torpey’s identification of the appellant on the video. The answer referred to by the learned member was evidence elicited from Mr Torpey by the appellant’s own counsel. The Appeal Tribunal notes in passing that the same experienced criminal barrister represented the appellant in the preliminary hearing on evidence before the learned member. One might have expected that any challenge to the Tribunal receiving the Torpey evidence would have been raised at that preliminary hearing, but that did not occur. The appellant was represented at the final hearing before the learned member by a very senior and experienced criminal solicitor. As already noted, the QRDB transcript, including the quoted Torpey evidence, was tendered without objection. In those circumstances, there cannot be any substance to the appellant’s contention that the learned member “erred in admitting evidence relevant to identification from Mr Torpey”. It was evidence that had been obtained by the efforts of the appellant’s own counsel, and which was put before the learned member without objection. The second element of this ground of appeal contends a misapplication by the learned member of the appropriate test relating to identification evidence. At the final hearing below, argument had been advanced by the appellant’s solicitor to the effect that the Torpey evidence should not be accepted by the Tribunal as reliable identification evidence. This argument was neatly summarised by the learned member at [47] of the Tribunal decision (quoted above at [13]). Despite the fact, as already noted, that no objection was taken below to the admission of the Torpey evidence, the appellant on this appeal sought to elevate the learned member’s alleged wrong admission of the Torpey evidence into a matter which “casts significant doubt on the identification of the appellant at all”.6 Indeed, at the hearing of this appeal, it was argued that the learned member had relied “primarily” on the Torpey evidence in reaching the conclusion that it had been established to the requisite standard that the appellant was present at the Churchable property on the day in question. That contention is simply not borne out by the learned member’s reasons. In addressing the question of whether the appellant was present at the property, the learned member carefully surveyed the totality of the evidence before her concerning this question. The learned member identified the appellant as having been present on the relevant day by reference to: (a) admissions made by the appellant to the stewards’ inquiry from which it could safely be concluded that he was present at the property; (b) the learned member’s own assessment of the appellant’s appearance from a photograph which was in evidence (noting also, from the transcript of the final hearing before the learned member, that it was clear that the appellant was present in person before the learned member for the final hearing); 6 Appellant’s submissions, para 25. -- 8 of 18 -- 9 (c) consistency with the wider evidence, namely the appellant’s acceptance that he attended the Churchable property from time to time and of his usual practice when so doing; (d) the learned member’s own viewing and review of the video footage for this purpose; and (e) the evidence of Mr Torpey. This Appeal Tribunal accepts the respondent’s submission that the appellant’s argument gives a prominence to the Torpey evidence which it did not deserve, and which the learned member did not attach to it. Indeed, it is notable both that: (a) the learned member did not in any way attribute particular weight to the Torpey evidence, but referred to it only as part of the evidence going to the appellant’s identification; and (b) the learned member did not even mention the Torpey evidence when stating her finding that she was “reasonably satisfied that [the appellant] is the man in the footage, that the dogs he is watching are his and it follows that he was at the Churchable property when the video footage was taken”.7 At its highest, then, the evidence of Torpey was only one component in a variety of pieces of evidence put before the learned member in connection with the question of whether the appellant was present at the Churchable property on the day in question. The learned member did not attach any undue weight to the Torpey evidence. There was no objection to the transcript containing the Torpey evidence being received. It has not been demonstrated that the learned member committed any error in her treatment of the Torpey evidence as part of the material to be considered in connection with the relevant question. Accordingly, Ground 1 cannot be maintained. Ground 2 Despite not having appealed against the 2016 decision, Ground 2 was a direct challenge by the appellant to the admission of the transcript of the stewards’ inquiry into evidence before the Tribunal. In arguing this ground of appeal, the appellant submitted that: (a) he was not informed of his right to remain silent nor his ability to invoke the privilege against self-incrimination before the stewards’ inquiry;8 and (b) the appellant was effectively denied, or at least limited in his access to, legal representation before the stewards’ inquiry,9 and whilst the stewards’ inquiry had a discretion to exclude the appellant’s legal representatives, the fact that it did so “compounded the unfairness to the appellant”.10 7 Ball [2017], [55]. 8 Appellant’s submissions, para 39. 9 Appellant’s submissions, paras 40–43. 10 Appellant’s submissions, para 44. -- 9 of 18 -- 10 The appellant’s submissions then sought to highlight the seriousness of these matters by asserting a lack of proper understanding by the appellant of his rights and the circumstances of his livelihood being at stake. These, it must be said, were all matters which were argued before, and considered by, the learned member in the 2016 hearing and decision on the admissibility of this evidence. At that preliminary hearing, the appellant advanced two general grounds for excluding the transcript of the stewards’ inquiry, namely “Involuntariness” and “Procedural fairness and legal representation”. In the 2016 decision, the learned member summarised the appellant’s argument concerning “Involuntariness” as follows: [24] Mr Ball says that it was unfair to him for the stewards and the Board to rely substantially on what was elicited from him at the stewards’ inquiry on 18 March 2015. Mr Ball says I should not receive the transcript of what he said to the panel of stewards. The basis for the submission is that: a) Mr Dart, on 16 March 2016, after citing GAR 90(1), directed Mr Ball to attend the stewards’ hearing. b) Mr Dart was a person in authority. c) Mr Ball was prevented from having his lawyer present in the hearing. d) At no stage during the course of the hearing was Mr Ball led to believe he had any right not to answer the interrogation (privilege against self- incrimination). e) Mr Ball was ‘seduced’ to attend the inquiry and make confessional statements. f) In the totality of all these factors, his statements at the inquiry were not voluntary. It is sufficient for present purposes to note the learned member’s findings in the 2016 decision in respect of the “Involuntariness” ground, in which she said: [39] However, I do not consider that the statements made by Mr Ball to the inquiry could be considered to have been not voluntarily given or induced by any threat or promise by some person in authority. [40] Mr Ball was made aware on 16 March 2015 that Racing Queensland was investigating allegations that the practices of live baiting have occurred at a property at 9 Wotan Road, Churchable. Further, he was told that upon review of the initial evidence Racing Queensland believed that he was a person of interest and that it appeared to the stewards he might have committed a breach of the GAR. Mr Ball could have been under no misapprehension as to what he would be questioned about. He was also told that he should have at the time of the inquiry any witnesses or evidence he wished to present. [41] That he attended at the inquiry with a lawyer indicates that he understood the seriousness of the inquiry. He told the stewards in effect that he was prepared to answer questions but not incriminate himself and that is why he had asked his lawyer to come long. He says he has nothing to hide. He also says that he understands that what he was called in for was an exceptional and serious inquiry. [42] GAR 90(5) states: -- 10 of 18 -- 11 A person shall not be entitled to be represented by another person at any inquiry other than in exceptional circumstances and then only by permission of the person (or the chairman if more than 1 person) conducting the inquiry. [43] The decision made by the stewards not to permit his lawyer to be present during the inquiry was clearly one open to be made in light of GAR 90. While he was not permitted to have his lawyer present during the inquiry, he was told that the stewards would consider any request for a break in which he could speak to his lawyer. He availed himself of the opportunity when the footage was being shown to him and he returned to the inquiry and continued to answer questions. (citations omitted) In relation to the “Procedural fairness and legal representation” ground, the learned member summarised the appellant’s argument below and stated her findings in the 2016 decision as follows: [51] It is said that that hearing was absent procedural fairness because: a) Mr Ball had only two days’ notice to attend the inquiry with limited information about what he would be required to answer; b) He was denied a legal representative notwithstanding the objective seriousness of the investigation; c) He was misled by the statement that his ‘assistance’ was being sought by the inquiry; d) He was not informed of any specific possible offences that the stewards already suspected or considered might arise from the information procured from him in the hearing; e) He was not informed that answers he gave could later be used as evidence against him in any disciplinary proceedings brought against him. He was denied the right to silence; f) Having first been shown the video footage during the course of the hearing and required to immediately give answers which had the capacity to inculpate him, he was not provided genuine disclosure of evidence which formed the basis of the decision (both the stewards’ decision to issue a show cause notice and RQ’s subsequent decision to uphold the notice), within a reasonable time to provide him an adequate opportunity to address the matters in the evidence; g) He was shown the relevant video footage in tranches and repeatedly asked the same questions such that the manner of the disclosure of evidence and the putting of questions in which the apparently probative admissions were obtained was strategic and unfair; and h) The most significant if not only apparently probative admission of Mr Ball’s presence at the property at the relevant time by way of alleged self-identification on the footage was not obtained by any positive statement of self-identification but rather from answers of gratuitous concurrence. In response to a series of repeated and varyingly vague, leading questions from the stewards, he merely accepted the possibility that it could be him in the footage. This was then adopted by the stewards as a positive statement of self- identification. -- 11 of 18 -- 12 [52] It is submitted that the process, which later formed the basis of the show cause notice, was demonstrably procedurally unfair. The contended admissions are also unreliable. This flawed process should not be considered an appropriate means by which the Board or the Tribunal may inform itself in determining the appeal. The entire content of the recorded interview and anything else that was obtained from the appellant in the hearing, which might be alleged to constitute any admission of guilt, should be disregarded. [53] In response, Racing Queensland says that no requirement of procedural fairness as ordinarily understood requires a lawyer in any appearance before an investigative inquiry. There is no such general right. I accept that submission. [54] Based on my reading of the transcript, I consider that the substance of the matters of concern relied upon by the stewards in issuing the show cause notice were put to Mr Ball. That was not, however, the end of the process. The show cause notice followed but a show cause hearing was conducted and the Board hearing followed. Mr Ball has had multiple opportunities to give evidence but has not done so. The tribunal is conducting a hearing de novo. It stands in the shoes of the Board. It does not stand in the shoes of the stewards’ inquiry. The Tribunal can inform itself as it sees fit. [55] I do not consider that the transcript of the Inquiry is inadmissible on the grounds of a denial of procedural fairness in the conduct of the Inquiry on 18 March 2016. The current hearing before this Appeal Tribunal was not constituted or pursued as an appeal against the 2016 decision. The 2016 decision was not the Tribunal’s final decision in the proceeding, and leave to appeal against that decision would have been required.11 Nor was this advanced as an appeal on a question of fact for which, again, leave to appeal would have been required.12 The case before this Appeal Tribunal was brought as an appeal against the Tribunal decision on a question of law. Given the manner in which this appeal was argued, however, this Appeal Tribunal will consider the substance of the appellant’s current objection, notwithstanding that leave to appeal against the 2016 decision has been neither sought nor granted. In relation to the question of admissibility, it is, of course, the case that the Tribunal is not bound by the rules of evidence,13 although it is accepted that the curial rules of evidence may provide useful guidance to a tribunal when deciding whether or not to admit particular evidence.14 The appellant’s ultimate submission, affirmed by counsel in the hearing before this Appeal Tribunal, was that it was unfair for the evidence to have been admitted, or for the learned member to have given it any weight. Counsel for the appellant submitted:15 Given the unfairness to the appellant by the process of the inquiry, and the fundamental importance of what was said by the appellant to the inquiry in the ultimate determination of this matter (it being the basis of some of the allegations against him, and key evidence against him), it is submitted that the 11 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142(3)(a)(ii) (“QCAT Act”). 12 QCAT Act s 142(3)(b). 13 QCAT Act s 28(3)(b). 14 Crime & Misconduct Commission v Barnett [2010] QCAT 690, [22]. 15 Appellant’s submissions, para 50. -- 12 of 18 -- 13 transcript ought to have been excluded in the exercise of Member Guthrie’s discretion, or alternatively given very little weight. Beyond rehearsing arguments which had been advanced and considered below, the appellant did not point to any error of law in the learned member’s decision to admit the evidence. The decision to admit the evidence was clearly within the learned member’s discretion, and the appellant has not identified any factual or legal issue to suggest that the exercise of the discretion miscarried such as to warrant appellate interference, in accordance with the long-accepted principles stated in House v The King.16 It is true that in her final decision, which is the subject of this appeal, the learned member referred to and effectively incorporated some of the findings she had made in the 2016 decision about the appellant’s reliability. In that regard, the learned member said in the Tribunal decision: [34] In determining that the transcript of the stewards’ inquiry was admissible, I made certain findings about Mr Ball’s attendance at and participation in the inquiry. Some of those findings are relevant to reliability of the answers he gave and the weight I should give to those answers. I consider it worthwhile restating the relevant findings. [35] I consider that the statements Mr Ball made to the inquiry were given voluntarily and were not induced by any threat or promise by any person in authority. In reaching that conclusion, I noted that there was nothing in the transcript that caused me to be concerned that Mr Ball felt overborne by the panel to answer questions. [36] I did not consider that the transcript of the inquiry was inadmissible on the grounds that it was procedurally unfair. In reaching that conclusion, I noted that the stewards’ inquiry was not the end of the process. The show cause notice followed but there was also a show cause hearing and a Board hearing. Mr Ball has had multiple opportunities to give evidence but has not done so. [37] I consider that I am entitled to rely on the answers Mr Ball gave at the inquiry. I consider that in the absence of any other evidence or information obtained directly from Mr Ball and based on my findings that he was not overborne, that the answers he gave to the inquiry should be given significant weight. (citations omitted) At best, this is relevant to the appellant’s alternative argument, which went to the weight the learned member afforded the evidence of the stewards’ inquiry. But again, beyond reciting the arguments which had been advanced below and contending that it was “unfair” for the learned member to place any weight on the evidence of the stewards’ inquiry, the appellant did not identify any error of law committed by the learned member in her treatment and assessment of that evidence. Accordingly, Ground 2 cannot be maintained. 16 (1936) 55 CLR 499. -- 13 of 18 -- 14 Ground 3 On Ground 3, the appellant argued:17 It is submitted that the video evidence ought not to have been admitted into evidence in the exercise of the Member’s discretion, or alternatively ought to have been afforded so little weight as to be of little or no assistance to the Tribunal. It is submitted that its admission into evidence constitutes an error in the reasoning of the Member, or alternatively its treatment in evidence, in not affording it minimal or no weight, constitutes an error. The question of the admission of the video evidence was decided in the 2016 decision. Again, there has been no appeal against that decision, nor has leave to appeal been sought. This ground suffers from the same fundamental deficiencies as were identified above in relation to Ground 2. But, as with Ground 2, given the way in which this appeal was presented, this Appeal Tribunal will consider the substance of the appellant’s current argument. The appellant contended that the learned member erred in allowing the evidence to be admitted. The appellant said that the learned member “ruled the admission of the video evidence to be not unfair to the appellant, because he had the opportunity to give or call evidence to refute it, including expert evidence”,18 but argued:19 With respect, it is submitted this was an error. The appellant did in fact produce expert evidence calling into question the video evidence, but it is submitted that the expert evidence was necessarily limited by the lack of providence [sic] of the video evidence – that is, the expert, Dr Schatz, did not have access to the original video footage nor the devices used to record the footage, and concluded essentially that it was possible to manipulate time and date stamps. The reliability of the video footage was already in question, it is submitted, on at least two grounds – it was not synchronised and this presented difficulties with its reliability and use of the two sources of footage viewed together, and it does not clearly depict either of the two key things sought in that footage (namely the identity of the appellant, and clear video footage of live baiting). The appellant further argued:20 In applying the discretionary judgment about whether the video evidence ought be admitted, Member Guthrie ought to have considered (in addition to the factors set out in the judgment) that there was an inability for the appellant to go beyond the expert evidence already before the Court, because of the lack of providence [sic] of the video evidence. Her failure to do so constitutes an error. Even if the question of the admissibility of the evidence were properly under challenge before this Appeal Tribunal, these arguments are not borne out on a proper and fair reading of the 2016 decision. It was uncontroversial before the learned member that the video footage had been obtained by persons who had likely committed a trespass. The learned member then essayed the principles relating to the discretion to admit improperly or illegally obtained evidence, with considerable reference to the decision of the High Court in 17 Appellant’s submissions, para 53. 18 Appellant’s submissions, para 55. 19 Appellant’s submissions, para 56. 20 Appellant’s submissions, para 59. -- 14 of 18 -- 15 Bunning v Cross.21 After setting out the opposing contentions, the learned member said in the 2016 decision: [105] I agree with the submission of Racing Queensland that the policy underlying the principle in Bunning v Cross is that the law ought not be seen as condoning or encouraging the unlawful conduct of those whose task it is to enforce it. Considering the matters in Bunning v Cross is not straightforward as these are not criminal proceedings and so they are in my view of guidance only. [106] I have already set out the standard of proof in these proceedings. I do not accept that the standard of proof must be close to beyond all reasonable doubt. Briginshaw is clear that it does not create a different standard of proof. The court has said that when determining particular facts bearing in mind the context in which those facts are relevant, the tribunal must not act on inexact proofs but feel an actual persuasion based on the strength of the evidence to make a finding. [107] I do not consider that the manner in which the footage was obtained is a denial of procedural fairness. Mr Ball is not prevented from responding to the footage by giving evidence or calling others to give evidence on his behalf. He can also make submissions about the footage. [108] This is a merits review proceeding. The Tribunal must ensure all relevant material is disclosed to the Tribunal to enable it to make the correct and preferable decision. [109] I do not consider that it is unfair to Mr Ball that I now, standing in the shoes of the Board, consider the material considered by the Board. All material considered by the decision-maker has been provided to Mr Ball and to the Tribunal. It was open for Mr Ball to give evidence in the proceeding about the footage or make submissions about the footage just as it was before the Board. [110] I do not consider that the seriousness of the allegations in terms of the potential penalties for Mr Ball weighs against the exercise of the discretion to receive the footage. These types of proceedings, which are regulatory in nature, are not punitive but protective. The main purpose of the enabling Act is to provide for control bodies to manage, operate, develop and promote codes of racing in a way that ensures public confidence in the racing industry in Queensland. [111] Further, I do not consider that the standard of proof precludes the admission of evidence that was improperly obtained. The standard of proof to be applied speaks to the degree of certainty I should have in deciding facts, it is not prescriptive of the nature of evidence I should have regard to. Whether or not the claimed breaches are found to have occurred will depend on my assessment of the evidence. [112] While the footage was obtained by persons acting unlawfully, there is no suggestion that Racing Queensland was involved in the unlawful activity. The learned member also said that she considered that the cogency of the footage weighed in favour of it being received, although she had “not given the cogency more weight than the other factors weighing in favour of the footage being received”.22 21 (1978) 141 CLR 54. 22 Ball [2016], [115]. -- 15 of 18 -- 16 The appellant’s attempt to point to an error focuses on what was said by the learned member at [107] of the 2016 decision, quoted above. Read in its proper context, that paragraph described one of the numerous factors which the member weighed in the exercise of the discretion. It was not, as the appellant would now have it, the sole and determinative rationale for the decision to admit the video footage. It was the exposition of the learned member’s consideration of only one of the range of matters to which she had regard in exercising the discretion; and, with respect, it was factually accurate. The appellant has therefore failed to identify any appellable error in the decision to admit the video evidence. Otherwise, the appellant’s complaint seems to be about his claimed inability to “go beyond” the expert evidence which he put before the Tribunal. At best, this goes to the weight afforded to the video evidence. For the following reasons, however, this submission has no real substance. At the final hearing, the appellant led evidence from an expert forensic computer scientist. That evidence was accurately summarised by the learned member in the reasons. In the Tribunal decision, she noted the effect of the expert evidence as follows: [29] Dr Schatz was unable to form a concluded opinion regarding whether the particular videos in question were shot at the time and date indicated in the overlayed video. He refers to points of consistency which are, he says, consistent with the file being the unaltered original file, whereby the times and dates reflect the time and date the internal clock of the recording device at the time the video was recorded. He goes on: As for the accuracy of the internal clock of the recording device with respect to the actual time of filming, the information provided and the file are insufficient for forming a concluded opinion. [30] Dr Schatz further states that access to the original recording devices and associated storage devices would assist in forming a concluded opinion regarding when the video footage was created. [31] I do not consider that Dr Schatz’s report is support for the proposition that the events depicted in both sets of footage did not occur on the same day and over the same period of time on that day but, rather that, as a general proposition, date and time stamps may not be accurate because they reflect the internal clock of the recording device. In this case, Dr Schatz is unable to state that the internal clock on the video recording device was accurately set. There was no challenge to the learned member’s consideration of this evidence, or the conclusions she drew from it. Moreover, as is recorded in her reasons, the learned member herself viewed the video footage, and considered she was able, on the basis of having herself seen the videos, to be satisfied that what was shown on both sets of footage occurred on the day they were recorded, and that the same events were depicted despite the time stamps being slightly different. Thirdly, as had been noted by the learned member in the 2016 decision, it was open for the appellant to give evidence about what was purportedly portrayed in the footage. -- 16 of 18 -- 17 At the final hearing before the learned member, the appellant made a considered decision, with the benefit of legal advice, not to give evidence. Having made that forensic decision in the conduct of the final hearing, the appellant cannot, in the circumstances of this case, now complain that he was somehow denied the opportunity to give evidence explaining what was seen in the video. The appellant has not identified any error in the learned member’s approach to weighing the evidence before her on this issue. Accordingly, Ground 3 is not made out. Ground 4 The appellant submitted that the learned member’s “consideration of a lack of evidence from the appellant on certain key points constituted an error”.23 In argument, the appellant could only point to the following paragraph of the Tribunal decision as exemplifying this alleged error, namely:24 I accept that Mr Ball’s initial response to the suggestion that he is the white haired man in the footage was not a clear and definite admission that he is the man in the footage. However, as the inquiry continued and further footage was shown to Mr Ball, I consider, by his responses, that he accepted that he was the man in the footage seen observing the dogs. In my view, he admitted that the dogs shown in the footage were his. It follows from his admission in that regard that he also admitted he was the man seen in the footage watching the dogs. I do not consider that his statements suggest he was simply acquiescing. I consider it highly improbable that Mr Ball would say they were his dogs but at the same time maintain a denial that he was the man in the footage. That would mean that he allowed some other person to train them. He did not make any such statement at the Inquiry. I also consider it unlikely that Mr Ball, an experienced trainer, would allow someone else to be engaged in the training of dogs he had been engaged to train and that such a person would so resemble himself that he might mistake himself for that person. For the appellant, it was submitted:25 On the issue of the circumstantial identification of the appellant (comparing his admissions as to training procedure against the footage), Member Guthrie concluded that the appellant could have produced evidence of someone else training his dogs, but failed to do so (at paragraph 53, reasons dated 3 March 2017). It is submitted that the conclusion drawn by Member Guthrie from this lack of evidence is that he did not challenge this aspect of identification. This conclusion was impermissible, it is submitted. With respect, that contention is not borne out on the face of the impugned paragraph of the Tribunal decision. The learned member simply did not say what is contained in the submission, nor was that, on any fair reading, the substance of what she said. Beyond that, the appellant’s complaint seems to be that the learned member somehow erred by having regard to the evidence which was actually before her and noting that the appellant had not given evidence to rebut, directly or inferentially, the conclusions to be drawn from that evidence. 23 Appellant’s submissions, para 60. 24 Ball [2017], [53]. 25 Appellant’s submissions, para 62. -- 17 of 18 -- 18 These were not criminal proceedings in which the appellant had some overarching right to silence. This was, rather, a case in which the appellant was peculiarly placed to know and give evidence about relevant central facts, such as his presence on the Churchable property on the day in question. As noted above, the appellant made a conscious, considered decision, on legal advice, not to give evidence at the final hearing. The learned member committed no error insofar as she commented on the appellant’s failure to give evidence on those facts. Even if this were a criminal matter (which it is not), it is well recognised that the absence of evidence by an accused on a fact peculiarly within the knowledge of the accused may be the subject of judicial comment.26 Accordingly, Ground 4 must fail. Disposition For the foregoing reasons, there will be the following orders: 1. The appellant has leave to amend the application for leave to appeal or appeal in accordance with paragraph 9 of the appellant’s outline of argument filed on 25 July 2017; and 2. The appeal is dismissed. 26 Azzopardi v The Queen (2001) 205 CLR 50, [64] (Gaudron, Gummow, Kirby and Hayne JJ). -- 18 of 18 --