Appo v Queensland Racing Integrity Commission [2019] QCAT 313

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Appo v Queensland Racing Integrity Commission [2019] QCAT 313 PARTIES: BEAU-DENE APPO (applicant) v QUEENSLAND RACING INTEGRITY COMMISSION (respondent) APPLICATION NO/S: OCR172-19 MATTER TYPE: Occupational regulation DELIVERED ON: 11 October 2019 HEARING DATE: 16 September 2019 HEARD AT: Brisbane DECISION OF: Member King-Scott ORDERS: The Tribunal: 1. Confirms the Internal Review decision of the Queensland Racing Integrity Commission; 2. Returns the matter to the Queensland Racing Integrity Commission with the direction that it imposes so much of the 4 week period of suspension of the Applicant’s license that has not been served with a direction that such suspension commence at midnight on Sunday, 1 December 2019 and expire at a date as determined by the Commission. CATCHWORDS: GAMING AND LIQUOR – ADMINISTRATION – RACING – RACING COMMISSIONS, BOARDS AND TRIBUNALS – racing clubs and associations – disqualification of owner, trainer or jockey – jockey weighed-in as underweight – missing gel pad – no explanation as to how it went missing – whether Queensland Racing Integrity Commission must establish fault on part of jockey – strict liability – opportunity to check – whether lack of due diligence GAMING AND LIQUOR – ADMINISTRATION – RACING – RACING COMMISSIONS, BOARDS AND TRIBUNALS – stewards and committees of race clubs – functions and powers generally – whether horse should have been disqualified – weight calculated with allowance -- 1 of 10 -- 2 of 0.5 kg under AR 209(2)(a) Australian Rules of Racing – no account is to be taken of fractions of 0.5kg under AR 184 – whether jockey should have been suspended Australian Rules of Racing, AR 184, AR 209 Queensland Civil and Administrative Tribunal Act 2009 (Qld) Racing Integrity Act 2016 (Qld) Kehl v Board of Professional Engineers of Qld [2010] QCATA 58 Morris v Racing Queensland Ltd [2014] QCAT 76 Queensland All Codes Racing Industry Board v Thomas [2016] QCATA 82 Wallace v Queensland Racing [2007] QDC 168 APPEARANCES & REPRESENTATION: Applicant: J Murdoch QC Respondent: J Ford, instructed by the Commission REASONS FOR DECISION [1] Beau-Dene Appo is a licensed jockey. On 22 April 2019 he rode the winner of the last race at the Toowoomba Turf Club meeting. His mount Peridae was handicapped with the weight of 57 kg. At the conclusion of the race Jockey Appo weighed in at 56.2kg. He was 800 grams light. He was asked whether he was missing any gear and realised he was missing a gel pad which was positioned under his saddle. It weighed approximately 900 grams. [2] Following a Stewards’ enquiry, Peridae was disqualified under Australian Rules of Racing AR 209. Jockey Appo’s licence was suspended for four weeks to commence on Tuesday, 30 April 2019 and expire at midnight on Tuesday, 28 May 2019. That suspension was stayed by the Tribunal pending the outcome of this review. [3] Jockey Appo seeks to review the decision of the internal review which affirmed the Stewards’ decision. This Tribunal derives its jurisdiction to conduct an external review of the decision under s 246 of the Racing Integrity Act 2016 (Qld). [4] The Tribunal’s function on such a review application is to produce the correct and preferable decision by way of a fresh hearing on the merits.1 Because this is an administrative review proceeding, the Tribunal’s function is to review the decision, not the process by which it was arrived at nor the reasons given for making it. Accordingly, the Tribunal is not required to identify an error in either the process or the reasoning that led to the decision being made. There is no presumption the original decision is correct.2 1 Queensland Civil and Administrative Tribunal 2009 (Qld), s 20. 2 Kehl v Board of Professional Engineers of Qld [2010] QCATA 58, [9]. -- 2 of 10 -- 3 Background [5] Following the weigh-in the Stewards held an initial enquiry to determine whether Peridae should be disqualified. At that enquiry Jockey Appo could not explain the absence of the gel pad. He said he always checks to see if they (the trainer or stable hand) have put the gel pad down first. He was asked whether the mare was resettled behind the barriers. By that, I assume the Chairman was referring to whether any gear needed adjustment. Jockey Appo said nothing was required but added the girth was loose. [6] Mr Nathan Evans, represented the trainer at the enquiry, he was the person who took the saddle and gear from Jockey Appo, after the weigh-in, to the stables where he saddled Peridae. He could not explain the absence of the gel pad. He gave evidence that he put it on first followed by the two pieces of black packing and then the number cloth. [7] Jockey Appo asked more than once whether anyone had checked the track. It will be recalled that this was the last race of the day. There was a short adjournment for the stewards to watch the film of the race. When the enquiry resumed the decision was made to disqualify Peridae. That was after allowing a 500 grams deduction permitted under the Australian Rules of Racing (‘the Rules’). I will refer to this later in these reasons. [8] Jockey Appo was unable to provide any explanation for the absence of the gel pad. Still no one had checked the track. It appeared that the stewards had watched the film of the race which, obviously, showed nothing amiss. Jockey Appo was charged under AR 209(2)(b). For completeness I set out the entire rule. (1) A rider must ensure that his or her horse does not carry less weight than what it is required to carry in a race. (2) Subject to subrule (3), if a horse carries less weight than what it is required to carry in a race: (a) it will be disqualified from the race, provided that the Clerk of the Scales must allow the rider of the horse 0.5kg; and (b) notwithstanding subrules (1) and (2)(a), any person at fault in relation to the failure to carry the correct weight may also be penalised. (3) Subject to compliance with AR 208, a horse shall be deemed to have carried its weight from the start of the race to the winning post if, in the opinion of the Stewards, the rider remains in contact with the horse or any part of the horse’s gear from the start of the race to the winning post. [9] He pleaded not guilty. The Stewards then adjourned to consider their decision. On resuming there was further discussion and questioning of Jockey Appo where he resiled from his earlier statement that he had checked to see whether the gel pad was present under the saddle. He said that he had 8 rides that day and really didn’t remember, he said he checked the saddle and the saddle looked right. The stewards then found Jockey Appo guilty and he was suspended for a period of 4 weeks. That suspension has been stayed by the Tribunal. -- 3 of 10 -- 4 [10] Prior to commencement of the hearing in the Tribunal, the parties met at Doomben Racecourse where the sequence of events was demonstrated to the parties by Jockey Appo and stable staff. The Tribunal was advised that the layout of the jockey’s room and position of scales and mounting yards are nearly identical to all race courses in Queensland. [11] The demonstration involved Jockey Appo taking his equipment from the jockey room to the scales where the weigh-in was demonstrated. The saddle, gel pad, black sheets and number sheet were then taken by a stable hand to the stables where the saddling of the horse was demonstrated including the application of the gel pad, which was slightly smaller in area than the saddle, but in Jockey Appo’s case was folded in half before being applied to the horse’s back. This was Jockey Appo’s preferred method of using the gel pad. It was not suggested by anyone at the hearing, that used in this manner, it was more likely to dislodge or fall off. [12] The sequence was followed after the gel pad with the 2 black sheets being applied then the number cloth and then the saddle the breast plate, girth and surcingle were then tightened. The girth and surcingle were elasticised straps tightened around the horse’s girth. It was apparent from this exercise that the gel pad could not be seen as it was concealed by the number cloth and black sheets. It could be felt by physically holding up the sheets and squeezing the hand under the saddle between the saddle cloths and the horse’s back. [13] Jockey Appo then demonstrated moving from the jockey’s room to the parade ground where the requirement was that all horses being paraded were required to remain moving around the ring. Jockey Appo gave evidence at the hearing that it was in the mounting yard that he noticed the girth was loose and he tightened it whilst walking beside the mare. [14] Troy Sweeney, the on course race day farrier, states he observed Mr Evans returning from the direction of the jockey’s room to the stables with the saddle and gear and saddle cloth number 4. Included in that gear he states was the gel pad. Mr Sweeney was not required for cross-examination. [15] From the time jockeys weigh-in to when they weigh-out their movements are significantly restricted and observed by the stewards. They are not allowed to communicate, or come in to contact, with people other than authorised persons such as stewards, trainers and/or, during the race, other jockeys. [16] The relevant Rules are: Division 4 –Weighing-out AR 184 Method of weighing-out and weighing-in When calculating a rider’s weight in weighing-out and weighing-in: (a) no account is to be taken of fractions of 0.5kg; and (b) the following items must be included by the rider in the weight: (i) all items of clothing worn by the rider except for the rider’s helmet, goggles, other face protection and gloves; (ii) the saddle, lead bag, associated packing (excluding the saddle cloth); and (iii) any other gear attached or to be attached to the saddle. -- 4 of 10 -- 5 AR 185 No equipment change after weighing-out Unless permission from the Stewards is obtained, a rider or any other person must not add to, remove from, or change any equipment that the rider has been weighed-out in. AR 191Responsibilities in relation to weight and penalties Nominators and trainers are responsible for their horses carrying proper weight and penalties, and in all cases where penalties have to be carried for winning, or allowances are claimed, the nominator, trainer or rider must notify that to the Clerk of the Scales before the rider is weighed-out. AR 192 Departure from jockeys’ room and mounting enclosure prior to race A rider: (a) must mount the horse to be ridden by the rider in any race within the enclosure or place identified by the Stewards; and (b) must not leave the jockeys’ room or the enclosure or place referred to in sub-rule (a) to proceed to the starting position for a race without the approval of the Stewards. AR 193 Limits on a rider in relation to race communications Except with permission of the Stewards, Judge or Starter, after a rider has left the jockeys’ room to ride in a race and until the rider dismounts (if not required to weigh-in) or weighs-in (if required to weigh-in): (a) a person, other than the trainer or nominator (or their authorised agent) of the horse, an official in the course of his or her duties, or during the race another rider, must not speak to or communicate in any way with the rider; (b) a person, other than an official in the course of his or her duties, or the trainer of the horse prior to the race must not touch the rider, the rider’s horse, or any of its equipment; (c) the rider must not speak to or communicate in any way with any person other than the trainer or nominator (or their authorised agent) of the horse, an official in the course of his or her duties, or during the race another rider. Division 5 –Starting AR 194 Horse to be in mounting yard 15 minutes before start time Unless otherwise permitted by the Stewards, every horse must be presented in the mounting yard no later than 15 minutes prior to the advertised start time for a race. AR 195 Parading and proceeding to the start of a race Every horse must parade and proceed to the starting position of a race as directed by the Stewards, and unless the Stewards otherwise direct, without delay. [17] The effect of the above Rules is to place the jockey under close and constant surveillance from the time he leaves the jockey room to weigh in until he returns to the winning stall post-race and subsequently weighs out. On the other hand, there is no surveillance of the trainer or stable hand who takes the saddle, saddle cloths, race number cloth and, in this case, the gel pad to the stables to saddle the horse. -- 5 of 10 -- 6 [18] Jockey Appo described the girth as requiring tightening when the horse was parading prior to the race. If there was an opportunity for the gel pad to dislodge it was before the girth was adjusted by Jockey Appo. It may be that the gel pad slipped loose prior to the mare arriving in the mounting yard. If the girth and surcingle were tight, it is difficult to understand how the gel pad could have slipped out whilst proceeding to the barrier, in the course of the race or returning to the mounting yard. [19] Jockey Appo cannot provide an explanation as to how the gel pad came loose or when it came loose nor can anyone else provide an explanation. No inspection of the track was carried despite Jockey Appo’s request of the stewards to do so. [20] In my opinion, it is unrealistic to expect a jockey to carry out a thorough physical examination by placing his hands under the saddle to check that the saddle cloths and gel pad are all in place. It is reasonable that if the saddle was loose that would have been detected when Jockey Appo was given a leg up on to the mare. [21] Mr Murdoch, counsel for the Applicant submits that AR209(2)(b) is not an absolute liability rule. Fault needs to be proved by the Commission. That submission was not disputed by the Commission. However, in my opinion, absolute (no fault) liability should be distinguished from strict (minimum fault) liability. The latter may permit some evidence of lack of fault and lack of due diligence would be sufficient to result in a determination of guilt. [22] In Queensland All Codes Racing Industry Board v Thomas3 Carmody J said, in considering a trainer’s liability under AR 1784 for presenting a horse for a race with a prohibited substance: [22] In other words, a positive result constitutes, not just evidences, a contravention; and the act a person in charge of a racehorse is liable for under AR.178 is voluntarily allowing (or not preventing) the detection of a prohibited substance in the system of a racehorse before or after racing. [23] On this basis, it is immaterial whether the presentation was desired, intended, accidental, foreseen or even foreseeable. Effect, timing, quantity, source and purpose are all irrelevant to liability even if the respondent can establish that he had not acted intentionally or negligently. The only role fault or blameworthiness plays is as an aggravating or mitigating penalisation factor. [24] The thrust of RQ’s argument seems to be that, because AR.178 is aimed at stopping cheating and protecting animal welfare, it imposes an onerous and active – not merely passive – duty of care on trainers and other racehorse handlers to take effective steps to prevent the ingestion or administration of prohibited substances. To ensure that duty is met, proof of presentation (a failed drug test) breaches AR.178 and enlivens RQ’s power, coupled with an imperative command, to penalise the culprit. [25] This concept of strictness goes much further than establishing a presumption of guilt. It tends to conflate the very different notions of liability and penalty by, in effect, making a horse handler absolutely (not merely strictly) liable to a mandatory sanction for a presentation offence despite a reasonable excuse or extenuating circumstances 3 [2016] QCATA 82. 4 Now AR 240. -- 6 of 10 -- 7 [23] It is submitted that Jockey Appo’s obligation to ensure that the horse carried the correct weight in the race, must be limited to: (a) Weigh-out at the correct weight; and (b) Observe AR 185, i.e. don’t change any equipment after weighing-out. I would go further and say the obligation extends to being diligent, for example checking his gear again, if put on notice that something was amiss. For example, when he noticed the girth being loose when the mare was in the mounting yard, as was the case. [24] It is submitted that Jockey Appo had no other means available to him to ensure the horse carried the correct weight. He is criticised by the stewards for not checking his gear when he mounted the horse. In my opinion an experienced jockey would know if the saddle was loose and, from my observations, the gel pad could only have been dislodged if the girth was loose. [25] Under the Rules not only is the rider potentially liable but also others if a horse carries less weight than required. See sub-rule 2(b). [26] The person responsible for saddling the mare and placing the gel pad in place was Nathan Evans. He was questioned by the stewards and stated that he had placed the gel pad on the horse. He was not questioned further, and his evidence was accepted by the stewards. [27] I was referred to the case of Morris v Racing Queensland Ltd,5 where, on an extremely hot day, Morris, a jockey, weighed in under-weight. There the Tribunal noted: Because of the weather conditions Mr Morris told the Stewards, and we accept, that he lost a considerable amount of fluid from the time that he came off the scales, gathered his horse, rode out to the starting barrier and then conducted the race and came back for the weigh in. He told the Stewards, and again we accept, that he did not carry any extra weight other than his saddlery components and his normal riding gear. There is no suggestion by the Stewards that the cause of the loss of weight was for any other reason. Therefore, even if the charge against Mr Morris were to be maintained it is difficult to see how he could be blamed for the loss of weight which put him outside the tolerances in the circumstances. [28] The Tribunal in Morris were referred to the decision of Wallace v Queensland Racing6 which considered rule AR 178. [29] In that case, McGill DCJ considered the liability of the trainer but in the context of a charge which imposed a strict liability. These comments were made in respect to penalty. Cases where the trainer was able to show a specific explanation which did not involve any blameworthiness on his part are really examples of the situation where the trainer has for the purpose of penalty been able to show a mitigating circumstance. It may well be appropriate for such cases to be treated more 5 [2014] QCAT 76. 6 [2007] QDC 168. -- 7 of 10 -- 8 leniently than what might be described as the ordinary case, where there is no explanation for the elevated reading, and therefore no indication as to whether or not there is any personal blameworthiness on the part of the trainer. [30] The Tribunal applied that statement in Morris and set aside what the Tribunal considered a technical breach of the rule. [31] The Commission here relies upon Wallace where McGill DCJ said in relation to the rule, keeping in mind that it imposed a strict liability: [64] There are obviously plenty of people around whose interests might be advanced by the administration of prohibited substances to racehorses, and those people may well not be trainers or persons associated with them; one would hope that they were not. I suspect that the intention is not merely that trainers should be deterred from administering or permitting the administration of prohibited substances, but that they should be given a very strong incentive to take great care to ensure that prohibited substances are not administered by anyone else. That I think can fairly be described as a consideration of general deterrence, and seems to me the whole point and purpose of a rule such as this. [65] Obviously in a particular case a prohibited substance may be administered to a horse even though a trainer has taken all possible care to ensure that that would not occur, and in such a situation it may seem hard and unfair for the trainer to be punished. But the public policy considerations referred to are evidently seen by those responsible for framing and adopting rules such as these are justifying such a draconian provision. If such a provision is justified, and is to be meaningful, it must be enforced. In my opinion there was no error of law in taking into account these considerations by reference to the concept of deterrence. It is clear that the tribunal was considering general deterrence, not specific deterrence, in respect of which the appellant’s argument would have been more persuasive. [32] I can see little to distinguish AR 178 considered in Wallace and Thomas and AR 209. In both cases it was the party’s obligation to ensure that something did not occur, although the word ensure was not expressed in AR 178 but the intent is the same. Both impose a discretionary power to penalise using the phrase – may be penalised. In most cases, the power has been applied in a mandatory manner – must be penalised.7 In both decisions the party was unable to give an explanation of how the offence was caused. In both decisions, the breach was clearly established, a high plasma carbon dioxide level in the horse’s blood and a jockey who weighed in underweight. [33] Jockey Appo was not able to give an explanation as to when or how the gel pad dislodged from the mare, if indeed it did. At the steward’s enquiry Jockey Appo suggested that he may have been a victim of foul play but that allegation was not pursued at the Tribunal. Had the gel pad been discovered on the track then the strong inference would have been that it arose from lack of diligence on the part of the jockey, stable hand or both. [34] Putting aside a deliberate act of sabotage, it is difficult to imagine that there was any expectation on Jockey Appo’s part or anyone else, for that matter, of any benefit to be gained by removing the gel pad. Its absence was always going to be detected. It is 7 Queensland All Codes Racing Industry Board v Thomas [2016] QCATA 82. -- 8 of 10 -- 9 difficult to avoid the inference that its dislodgement could only be as a consequence of lack of diligence on someone’s part. [35] It seems that lack of diligence was either the jockey or the stable hand. The fact that Jockey Appo noticed the girth was loose should have put him on notice to check that everything was in place. [36] The fact that the girth needed tightening leads to the inference that the gel pad may have been dislodged prior to the mare coming to the parade ring. It was at that time that Jockey Appo should have checked his saddle and gear. It is regrettable that after a long day of riding he may not have been as alert as he should have been. I am of the opinion that the decision should be affirmed. Method of applying fractions [37] A further argument raised on Jockey Appo’s behalf was that the mare should not have been disqualified. Allowing for the 500 grams grace and on application of the further rule not to take fractions into account it is argued that Jockey Appo did not weigh in light. [38] The mare was handicapped at 57 kg. At the conclusion of the race Jockey Appo weighed in at 56.2kg. He was 800 grams light. An allowance of 500 grams is allowed under AR 209 (2)(a). [39] AR 184 provides, inter alia: When calculating a rider’s weight in weighing-out and weighing-in: (a) no account is to be taken of fractions of 0.5kg; and [40] Jockey Appo weighed in at 56.2 kg, he is allowed 0.5 kg grace so that his weight is adjusted to 56.7 kg leaving him 0.3.kg short of the handicap weight. [41] Obviously, the 0.5kg grace allowed under AR 209 (2)(a) is only invoked when the rider weighs in under-weight. On the other hand, the disallowance of fractions of 0.5kg would be applied generally. Handicap weights are calculated to half kilograms. The Rules do not assist with whether fractions of 0.5 kg should be rounded up or down. [42] In my opinion, applying the fraction rule Jockey Appo’s weight should have been adjusted to 56 kg when he weighed in. No account should have been taken of the 0.2 kg. Then applying 0.5 kg grace his weight would have been adjusted to 56.5kg. Alternatively, applying the 0.5 kg grace his weight should have been adjusted to 56.7kg. As horses are handicapped in 0.5kg amounts applying the fraction rule the fraction of 0.5 kg of the 0.7 kg is 0.2 kg, which then should be discarded. The weight should have been adjusted to 56.5 kg not 57kg. In any event, rounding the fraction off to the nearest 0.5kg does not assist Jockey Appo’s case. [43] In my opinion, the stewards applied the rule correctly. [44] Therefore the decision of the Tribunal is that the decision of the Commission is confirmed. The period of suspension has been stayed. -- 9 of 10 -- 10 [45] The penalty of suspension for 4 weeks was not unreasonable and in accordance with precedents for this type of offence. Jockey Appo’s period of suspension was stayed by the Tribunal on 3 June 2019 pending a review of the Internal Review decision. The Tribunal is unaware of what period if any of the suspension had been served before the stay was obtained. In the circumstances, the Tribunal returns the matter to the Commission with the direction that it imposes so much of the 4 week period of suspension that has not been served to commence at midnight on Sunday, 1 December 2019. -- 10 of 10 --