Bode v Queensland All Codes Racing Industry Board [2016] QCAT 529

CITATION: Bode v Queensland All Codes Racing Industry Board [2016] QCAT 529 PARTIES: Gerald Lansborough Bode (Applicant) v Queensland All Codes Racing Industry Board (Respondent) APPLICATION NUMBER: OCR224-15 MATTER TYPE: Occupational regulation matters HEARING DATE: 24 June 2016 HEARD AT: Townsville DECISION OF: Member Pennell DELIVERED ON: 5 December 2016 DELIVERED AT: Townsville DECISION MADE: The decision in respect of conviction and penalty is set aside and the charge preferred against the Applicant pursuant to Australian Racing Rules, Rule 175(q) is dismissed. CATCHWORDS: ADMINISTRATIVE REVIEW – principles applied – fresh hearing on the merits – racing – natural justice principles – rules of evidence – fresh evidence – allegations of misconduct, improper conduct and unseemly conduct – physical altercation between persons involved in the racing industry – whether defence of self defence should be accepted – conflicting evidence – denial of natural justice – independent witness not made available for cross- examination – undue weight placed upon a written statement. Queensland Civil and Administrative Tribunal Act 2009 (Qld) – s 3(d), s 17, s 19, s 19(c), s 20, s 24(1), s 28, s 28(2), s 28(3)(a), s 28(3)(b), s 28(3)(c), s 28(4) and s 28(3). Racing Act 2002 (Qld), s 4 and s 143. Australian Racing Rules, Rule 175(q). The King v War Pensions Entitlement Appeal Tribunal (1938) 50 CLR 228. -- 1 of 14 -- 2 Local Government Board v Arlidge [1915] AC 120. Briginshaw v Briginshaw (1938) 60 CLR 336. McDonald v Director-General of Social Security (1984) 1 FCR 354. Bushell v Repatriation Commission (1992) 175 CLR 408. Shi v Migration Agents Registration Authority (2008) 235 CLR 286. R v Wadley, ex-parte Burton [1976] Qd R 286. Gould v Isis Club Incorporated [2015] QSC 253. Russell v Duke of Norfolk [1949] 1 All ER 109. Ex Parte Angliss Group (1969) 122 CLR 546. Kioa v West (1985) 159 CLR 550. R v Brewer; Ex parte Renzella [1973] VR 375. Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58. Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577. Hall v The NSW Trotting Club Limited [1977] 1 NSWLR 378. APPEARANCES and REPRESENTATIONS: APPLICANT: Mr J Greggery of Counsel instructed by Purcell Taylor Lawyers. RESPONDENT: Mr M Henry of Counsel instructed by Landers and Rogers Solicitors. REASON FOR DECISION Introduction [1] On 29 August 2015, the Herbert River Jockey Club at Ingham conducted a race meeting. Bookmakers attended that race meeting, including Mr Lloyd Mitchell. He is a longstanding bookmaker in North Queensland, and has held his bookmaker’s licence for approximately 50 years. [2] Another Bookmaker at that meeting was Mrs Bode. She is the wife of Mr Gerard Bode (the Applicant). The Applicant is a licensed Bookmaker’s clerk and has held that type of licence for approximately 15 to 20 years. [3] Mr Mitchell and the Applicant had been good friends. Their friendship goes as far back as to when they were at school together. Each had been the best man at the other’s wedding. However, in the recent past their friendship has soured. [4] Late in the afternoon following the Ingham race meeting, both Mr Mitchell and the Applicant were involved in a fight with each other in the carpark at the racetrack. Mr Mitchell then complained to the Stewards that the Applicant had assaulted him. When he made his complaint, the Steward1 who took the complaint noted that Mr Mitchell had blood coming from his right ear. The Steward and Mr Mitchell revisited the carpark where the incident occurred. 1 Mr Woolaston. -- 2 of 14 -- 3 [5] That Steward was instrumental in the investigation into this matter. He spoke with Mr Holden, a security officer who provided a report to the Steward indicating that he had observed both Mr Mitchell and the Applicant wrestling on the ground. The same Steward later chaired the Stewards’ Inquiry (the Inquiry). Evidence at the Inquiry [6] An Inquiry took place into the incident chaired by Mr Woolaston. It was held on two separate days, 14 September 2015 and 29 October 2015. During the Inquiry, it was acknowledged by the Inquiry panel that the versions provided by both Mr Mitchell and the Applicant differed greatly.2 Mr Mitchell’s version [7] Mr Mitchell told the Inquiry that at the end of the day in question, he had packed his equipment and he went out into the carpark to get his vehicle. As he entered the car park he saw the Applicant coming towards him from the opposite direction. He thought that he and the Applicant would just pass each other because they have not spoken to each other for quite a while. [8] Mr Mitchell then told the Inquiry that as the Applicant approached him, the Applicant at the last moment changed direction and dropped his right shoulder into him and then punched him. The next thing he recalled was being on the ground with the Applicant on top of him. Mr Mitchell said that the Applicant punched him twice, firstly in the forehead and the second one struck him in the ear, although he was unable to say when the second punch happened. He went onto tell the Inquiry that initially the Applicant did not say a word to him, but he did recall that when the Applicant was on top of him he had his fist raised and he said to Mr Mitchell "Now, you are going to get yours, see." [9] Mr Mitchell then told the Inquiry that at that point a security officer intervened. He recalled trying to get up but he kept falling sideways. He thought that at that point he must have been heavily concussed. Although he thought that the security guard assisted him off the ground, it was not until about six days later that he learnt that it was a person called Doug Wheeler that helped him up. It was immediately after the incident that Mr Mitchell went to the Stewards’ room where he complained about what had happened. The person he spoke to was Mr Woolaston. Mr Woolaston saw that Mr Mitchell had blood dripping from the back of his right ear. A photograph was taken of the injury, which the Inquiry marked as Exhibit 1. [10] At the Inquiry, Mr Mitchell denied the allegations raised by the Applicant that he was the aggressor. He also denied that he said anything to the Applicant, nor did he punch the Applicant six times.3 The Applicant’s version [11] The Applicant told the Inquiry that he was working as a clerk for his wife at the Ingham races on the day of the incident. Their car had been parked in the adjacent school grounds. After the races, he had just packed some of their equipment into the car and was walking back to get the rest when the incident 2 Transcript of Inquiry at page 6, lines 46 – 47. 3 Transcript of Inquiry at page 16. -- 3 of 14 -- 4 occurred. When he got to the gate, he and Mr Mitchell crossed paths. He said that they both jostled each other after they passed. Mr Mitchell became extremely angry and started to repeatedly punch him, connecting up to six times. He provided the Inquiry with a medical certificate, which the Inquiry marked as Exhibit 2. He also told the Inquiry that he received a busted lip out of the incident. [12] He also told the Tribunal that he was not sure what triggered the incident between them, but thought that it may have been because of what happened earlier in the day. He explained that more than 40 years ago, he and Mr Mitchell and others had been partners in a share agreement on a fishing hut. Approximately 15 years ago, Mr Mitchell decided he no longer wanted to be part of that partnership. He no longer wanted to contribute to the ongoing expenses such as rates, road maintenance and repairs to the hut. [13] He went on to explain that recently there had been a decision to sell the fishing hut. Mr Mitchell’s signature was needed for the sale but he demanded $4,000 from $37,000 sale price or he would not sign. At the races that day, he had passed to Mr Mitchell a cheque arising out of the sale of the fishing hut, less an amount of $600. This small amount was his share of what was taken out of the settlement amount by the solicitor for outstanding costs. He added that sometime after he gave the cheque to Mr Mitchell, Mr Mitchell approached his wife. He demanded that he be paid the $600 that had been deducted or he would be going to a solicitor. The Applicant then approached Mr Mitchell and told him that his wife had nothing to do with the fishing hut. The Applicant told the Inquiry that this is where the entire incident started. [14] He went onto say that during the incident in the carpark; Mr Mitchell struck him in the face. He yelled at Mr Mitchell "Woo, woo, woo. Calm down". He then tried to subdue Mr Mitchell, but at no time did he retaliate by punching him. [15] The Applicant told the Inquiry that he felt that Mr Mitchell was out of control. For his own personal safety, and for the safety of Mr Mitchell, he pushed Mr Mitchell to the ground. It was around that time that a security guard arrived. He told the Inquiry that he immediately released before telling the security guard that Mr Mitchell had started the incident. [16] The Applicant told the security officer that Mr Mitchell had punched him and that at no time did he punch or harm Mr Mitchell. He was adamant that at no time did he punch Mr Mitchell, and that Mr Mitchell had blatantly lied when he made his initial complaint and he had also lied to Inquiry. The Inquiry [17] The Inquiry was in possession of an unsigned incident report provided by Mr Holden.4 Mr Holden was a security officer engaged by Sundown Support Services. The contents of the incident report were read into the Inquiry record.5 [18] When discussing the allegations that Mr Holden saw the Applicant on top of Mr Mitchell and he punched him twice, the Inquiry suggested to the Applicant 4 Tendered into the Inquiry as Exhibit 3. 5 Transcript of Inquiry at page 8, line 31 to page 9, line 31. -- 4 of 14 -- 5 that Mr Holden was “adamant in what he saw”. The Applicant’s response to that was to say that Mr Mitchell’s punches rained upon him everywhere, he simply pushed Mr Mitchell away to stop Mr Mitchell from punching him.6 He said that Mr Mitchell went “absolutely ballistic” and started raining punches on him. He also said that Mr Mitchell was “absolutely out of control”. The only evidence relied upon to refute that version was from Mr Mitchell, which the Inquiry acknowledged, were the versions provided by Mr Mitchell and the Applicant, which conflicted with each other. [19] Apart from hearing evidence from the Applicant and Mr Mitchell, evidence was taken from Mr Wheeler and Mrs Bode. Mr Wheeler told the Inquiry that he did not see the incident between the Applicant and Mr Mitchell, although he did walk past the Applicant a short time before finding Mr Mitchell on the ground. He also saw a security officer in the area. Mrs Bode did not witness the incident. [20] The Inquiry told the Applicant that his denial of punching Mr Mitchell was in “total contradiction to the evidence given by the security officer on the day”7 and “evidence given by the security officer is quite conflicting to the evidence that you gave to the Stewards”.8 The Tribunal notes that Mr Holden gave no evidence to the Inquiry. All that the Inquiry had to rely upon was an unsigned and undated incident report. [21] The Inquiry adjourned until 29 October 2015. On that date, there were further discussions between the Inquiry panel and the Applicant about the incident. The Applicant disputed what Mr Holden said in the incident report. Comments made by the Inquiry to the Applicant consisted of –  “What would the security officer fabricate a story like that”.9  “that hasn’t been supported by the evidence anywhere. No one can produce a witness to say that was the case, but we have got an independent witness that says that he saw you on top of Mr Mitchell”.10  “…that is what Thomas Holden from Sundown Support Services saw. That is what he says he saw”.11  “we would like to know exactly what took place. We would like perhaps for Mr Holden, the security officer, to have seen the whole of the incident in its entirety, but unfortunately that is not the case here, so Stewards will have to, on the evidence that has been presented to them, determine whether there has been a breach of the rules”.12 [22] The Inquiry suggested that whilst it may accept the evidence of both Mr Mitchell and the Applicant, there have been incidents in the past that may have led directly to this incident taking place. The Inquiry Chairman commented13 that the Inquiry accepted that there may have been some animosity between 6 Ibid at page 10. 7 Ibid at page 32, lines 4 – 6. 8 Ibid at page 9, lines 34 – 36. 9 Ibid at page 37, line 19. 10 Ibid at page 37, lines 38 – 41. 11 Transcript of Inquiry at page 38, lines 15 – 16. 12 Ibid at page 48, lines 39 – 43. 13 Ibid at page 14, lines 35 – 43; page 16, lines 1 – 5. -- 5 of 14 -- 6 Mr Mitchell and the Applicant involving stand draws at race meetings. The issue relating to the fishing hut may have led directly to the incident, but it was not an appropriate reaction for two people who hold licenses to involve themselves in a physical altercation on a racecourse. He said that it was not appropriate and is improper conduct.14 [23] The Inquiry said that it is irrelevant whether any of the parties considered that the physical altercation was minute in nature. Matters such as this are dealt with absolute seriousness.15 However, the Inquiry acknowledged that it could not clearly establish which of the parties was the antagonist.16 Notwithstanding that, the Inquiry placed a significant amount of weight to the contents of the report provided to them by Mr Holden,17 particularly the part where it was written that he saw the Applicant strike Mr Mitchell twice in the head with his right hand.18 [24] The Inquiry concluded that the Applicant had breached Rule AR175(q). In its published decision,19 the Inquiry found – “Racing Queensland (RQ) Stewards today concluded an inquiry into an alleged physical altercation that took place near the entrance of the Ingham racecourse following the running of the last race on Saturday 29 August 2015 involving licensed bookmaker Mr Lloyd Mitchell and licensed bookmaker’s clerk Mr Gerald Bode. Evidence was taken from licensed bookmaker’s clerk Mr Gerald Bode, licensed bookmakers Mr Lloyd Mitchell, Mrs Anne Bode and Mr Douglas Wheeler. Stewards also considered a written report from Sundown Support Services security officer Mr Thomas Holden. Mr Gerald Bode was found guilty of a charge of improper conduct under AR175(q) in that following the running of the last race at Ingham on Saturday 29 August 2015 near the entrance to the racecourse he did improperly conduct himself by engaging in a physical altercation whereby he used excessive force when on top of licensed bookmaker Mr Lloyd Mitchell by striking him on at least two occasions to the head. Mr Gerald Bode was disqualified for a period of 3 months commencing immediately. In assessing penalty, Stewards took into account that this was his second breach under the rule. Mr Bode was advised of his right of appeal. Whilst Stewards acknowledged that Mr Lloyd Mitchell’s actions in this altercation were not in breach of the rules, he was nonetheless reminded that as a licensed person he is obligated to conduct himself in a professional and proper manner at all times.” Applicant’s appeal [25] The Applicant appealed that decision. The appeal was heard by the Racing Disciplinary Board (“RDB”). 14 Ibid at page 14, line 43. 15 Ibid at page 21, lines 21 – 23. 16 Ibid at page 55, lines 29 – 30. 17 Ibid at page 51, lines 42 – 46. 18 Mr Holden’s police statement dated 05/11/2015 at paragraph 8. 19 http://www.racingqueensland.com.au/Thoroughbred/Industry-Licensing/Stewards-and- Integrity/Stewards-Reports/2015/October/Stewards-Report-G-Bode -- 6 of 14 -- 7 [26] In delivering its decision on 25 November 2015, the RDB said – “This is an appeal hearing in relation to the sentence that was imposed. We have considered the matter, in particular the submissions that have been raised. We have taken into account the particular nature and circumstances of what happened and in that regard we have accepted the evidence of Holden that both men were very aggressive towards each other. We note that the only injuries that were sustained were minor. There were two injuries to both persons. As far as the deterrent aspect is concerned, we note that Mr Bode is 70 years of age. His only previous was in 2001 - some 14 years ago. We take, based on the fact that he was only reprimanded, that it was only a minor offence. So we take into account what we both consider to be his good record. The disturbing matter is of course that two men who were licensed were involved in an altercation that was seen by members of the public. We have to mitigate that of course in the fact that the evidence is that both men were acting aggressively towards each other but only one man was charged. Taking everything into account we consider that the sentence was manifestly excessive. We are prepared to reduce the penalty to a fine of $500.” [27] When arriving at its decision, the RDB was appraised of the contents of Mr Holden’s statement which he made to the police.20 That statement contained the comment that both Mr Mitchell and the Applicant were aggressive towards each other. The RDB accepted the contents of the Mr Holden’s police statement above the Applicant’s submissions insofar that he was acting in self-defence. [28] The consideration that the RDB gave to the Inquiry’s decision was that the penalty imposed upon Applicant was manifestly excessive. It appears that this was because the RDB accepted that both the Applicant and Mr Mitchell were aggressive towards each other What the Applicant seeks [29] In filing his application for a review, the Applicant said that when the decision was made, the Respondent failed to properly consider the following – 1. The standard of proof required for a finding of guilty when regard is had to Briginshaw v Briginshaw (1938) 60 CLR 336. 2. Failed to place any weight or have and regard to the report of Dr John Maguire. 3. Failed to explain why they accepted the version of Thomas Holden when it was inconsistent with the version of Lloyd Mitchell. 4. Failed to make any findings of fact with respect to what occurred in the lead up to what Thomas Holden states he saw. This is relevant to whether self-defence is raised on the issues. Given Thomas Holden saw both males acting aggressively after his intervention it was incumbent on the decision makers to exclude self-defence. 20 Made on 5 November 2015. -- 7 of 14 -- 8 5. Any other grounds of review that may arise when the transcript of the hearing is made available. Review process [30] The Tribunal's review jurisdiction is conferred on the Tribunal by an enabling Act to review a decision made or taken to have been made by another entity under that Act.21 An objective of the Tribunal is to enhance the quality and consistency of decisions made by decision makers.22 In regard to this matter, the enabling Act is the Racing Act 2002 (Qld).23 [31] In exercising its review jurisdiction,24 the Tribunal: (a) must decide the review in accordance with the Act and the enabling Act under which the reviewable decision was made; and (b) may perform the functions conferred on the Tribunal by the Act or the enabling Act under which the reviewable decision was made; and (c) has all the functions of the decision maker for the reviewable decision.25 [32] The Tribunal’s role in exercising its review jurisdiction is to reconsider the original decision and to make the correct and preferable decision. The review is conducted on the merits, by way of a fresh hearing. [33] In a proceeding for a review of a reviewable decision, the Tribunal may:26 (a) confirm or amend the decision; or (b) set aside the decision and substitute its own decision; or (c) set aside the decision and return the matter for reconsideration to the decision maker, with directions the Tribunal considers appropriate. [34] The question for the determination of the Tribunal is not whether the original decision was the correct or preferable one on the material before the decision maker, but rather whether that decision was a correct or preferable one based on the material before the Tribunal at the hearing.27 If the Tribunal were to reach a conclusion about this matter, then it must apply the principle just mentioned and reach a position based upon the evidence before the Tribunal. Rules of evidence [35] In all proceedings, the Tribunal must act fairly and according to the substantial merits of the case28 and is bound to proceed in unison with the principals of natural justice.29 [36] The Tribunal is not bound by the rules of evidence, or any practices or procedures applying to courts of record.30 It may inform itself in any way it 21 Queensland Civil and Administrative Tribunal Act 2009, s 17. 22 Ibid s 3(d). 23 Racing Act 2002, s 143. 24 Queensland Civil and Administrative Tribunal Act 2009, s 19. 25 Ibid s 19(c). Commonly referred to as “standing in the shoes” of the decision maker. 26 Queensland Civil and Administrative Tribunal Act 2009, s 24(1). 27 Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589. 28 Queensland Civil and Administrative Tribunal Act 2009, s 28(2). 29 Ibid s 28(3)(a). 30 Ibid s 28(3)(b). -- 8 of 14 -- 9 considers appropriate,31 and may admit into evidence the contents of any document despite the noncompliance with any time limit or other requirement under this Act, an enabling Act or the rules relating to the document or the service of it.32 [37] Although not bound by any rules of evidence, this does not mean that all rules of evidence may be ignored as of no account. Evatt J enunciated in The King v War Pensions Entitlement Appeal Tribunal (1933) 50 CLR 228 at 256 – “ ……in my opinion, the Tribunal did not act "according to substantial justice." This is the overriding statutory command, and it is almost a paraphrase of the general principle enunciated by Viscount Haldane in Arlidge's Case.33 Some stress has been laid by the present respondents upon the provision that the Tribunal is not, in the hearing of appeals, “bound by any rules of evidence.” Neither it is. But this does not mean that all rules of evidence may be ignored as of no account. After all, they represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth. No tribunal can, without grave danger of injustice, set them on one side and resort to methods of inquiry which necessarily advantage one party and necessarily disadvantage the opposing party. In other words, although rules of evidence, as such, do not bind, every attempt must be made to administer substantial justice.” Fresh Evidence Evidence of Dr Maguire [38] The Respondent submitted to the Tribunal that the proceedings should be in relation to the documents that were before the Inquiry and the appeal to the RDB. That comment was in response to the Dr Maguire’s addendum reports provided by the Applicant. The Applicant says that the information provided by Dr Maguire is relevant to the matter, and the Tribunal would be satisfied of its supporting weight to the application. [39] Dr Maguire had completed three documents34 for this matter, all in support of the Applicant. In those documents, Dr Maguire made comments relating to the Applicant’s current medical condition and whether that condition would have impact upon his ability to wrestle with Mr Mitchell on the ground and his ability to stand and regain his feet without assistance. Those comments were consistent throughout all the documents. [40] The Tribunal has been asked by the Respondent to accept the statement of Mr Holden who said that when he located the Applicant and Mr Mitchell, they were wrestling with each other on the ground. He identified the Applicant as being on top of Mr Mitchell. When he went over to them and told them to get off the ground. Both men then got up and started blaming each other for starting the altercation.35 31 Ibid s 28(3)(c). 32 Ibid s 28(4). 33 Local Government Board v Arlidge [1915] AC 120. 34 A single page letter addressed to the Applicant’s solicitor and dated 20 November 2015, a single page statement dated 5 February 2016 and a two-page document (undated). 35 Statement of Mr Thomas Holden dated 5 November 2015 at paragraphs 7 – 10. -- 9 of 14 -- 10 [41] What Dr Maguire said regarding that evidence was that the Applicant had previously undergone bilaterally total knee replacements and had experienced significant complications following the surgery with extreme pain and stiffness. [42] Dr Maguire last reviewed the Applicant’s condition on 26 June 2015 and it was his assessment that because of the stiffness and the pain associated with his condition, it was highly unlikely that the Applicant would have wrestled on the ground as alleged by Mr Holden. Dr Maguire also said that it was highly unlikely that the Applicant could get up from the ground unassisted, and without that assistance he would not have been able to get to his feet. [43] The question arises as to whether the Tribunal could accept the evidence of Dr Maguire, and if so, does it place the Respondent at a disadvantage. The answer to that is no. Firstly, the Respondent did not seek to cross-examine Dr Maguire, therefore his evidence is unchallenged. [44] Secondly, in some cases, many days, weeks, months or even a year or more may have passed since the original decision was made by the decision maker and the finding of the matter being determined by the Tribunal. It would be conceivable that the Tribunal might reach a decision that ought to have been made by the decision maker at a significantly earlier time. [45] The legislation36 is quite clear on the point that the Tribunal is not bound by the rules of evidence and may inform itself in any way it considers appropriate, but in doing so, it must always observe the rules of natural justice. The Tribunal has the discretion to admit into evidence the contents of any document, providing of course it is relevant to the facts in issue and it does not impeach the rules already described. It must be noted that the application of natural justice by the Tribunal is not exclusive for either party, that principle must be applied to all parties to a proceeding. [46] When deciding a matter, the Tribunal is generally obliged to have regard to the best and most current information available. This rule of practice is no more than a feature of good public administration. Therefore, when the Tribunal elects to decide in substitution for the original decision, it would be surprising in the extreme if the substituted decision did not have to conform to such a standard.37 [47] It appears that there is no good reason why the Tribunal should not accept the evidence of Dr Maguire; after all, the reliance upon that evidence by the Applicant was not contested. Dr Maguire’s evidence regarding the Applicant’s mobility, or lack thereof, is an important feature of his proposition that the Applicant could not have undertaken the acts that Mr Holden allegedly saw. Discussion [48] The position adopted by the Respondent at the review hearing in the Tribunal was not to take the opportunity to cross-examine the Applicant or test the evidence that was before the Tribunal in support of his application. 36 Queensland Civil and Administrative Tribunal Act 2009, s 28. 37 Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 299. -- 10 of 14 -- 11 [49] Dealing firstly with the standard of proof required. The Applicant argued that the Respondent failed to properly consider the standard of proof as enunciated in Briginshaw v Briginshaw (1938) 60 CLR 336. Under common law, the duty is upon one party (usually the one bringing the proceedings against another) to make out its case against the other party and to prove to the court that their case has been established. The onus (or burden) of proof is a common law concept, developed with some difficulty over many years, to provide answers to certain practical problems of litigation between parties in a court of law. One of the chief difficulties of this concept has been the necessity to distinguish between its so-called legal and evidential aspects. [50] Regarding the standard of proof38 as provided in Briginshaw v Briginshaw in investigative matters, it is usually the role of an investigator to determine whether the alleged events occurred. To arrive at that conclusion, the investigator needs to determine whether there is enough evidence to prove the allegation or allegations made. The amount of evidence required is known as the “standard of proof”. [51] The investigation of this matter was undertaken by the Chair of the Inquiry, Mr Woolaston.39 As he conducted his investigation, Mr Woolaston knew that the Applicant did not deny that there was an altercation between himself and Mr Mitchell. He also knew that the Applicant claimed that Mr Mitchell was the aggressor and he only acted in self-defence against Mr Mitchell. The Inquiry was privy to those factors and that alone should have altered the exploration of all the evidence available at that time, in particular the evidence of the only independent witness, Mr Holden. [52] The Inquiry was provided with direct evidence at the Inquiry of a version of the incident from Mr Mitchell and the Applicant. Each had a different version as to what took place. Mrs Bode and Mr Wheeler gave direct evidence, but neither of them saw what happened, although it seems that Mr Wheeler happened upon the incident after the men separated. [53] The Inquiry Chair said “stewards place significant weight on the evidence given by the independent person”. This was in reference to Mr Holden’s incident report.40 [54] For the Inquiry to wholeheartedly accept that incident report, the Inquiry would have be satisfied that what Mr Holden said he observed is non-controversial when comparing it to the evidence of other witnesses, or other direct evidence. The Inquiry accepted the version of events as outlined in the unsigned and 38 Balance of probabilities. 39 Although it is the fundamental principal of justice that no many should be judge in his own cause and although the investigator was the Chairman of the Stewards’ Inquiry and he had to decide whether the Applicant was guilty of the charge preferred against him, the scheme of the Rules of Racing clearly authorises the Inquiry Chairman to fulfil the dual role as accuser and judge provided that its members or any of them are not personally involved as accuser or explicitly biased in a particular instance: See R v Wadley, ex-parte Burton [1976] Qd R 286 per Wanstall SPJ. 40 Unsigned document tendered as Exhibit 3 to the Inquiry. -- 11 of 14 -- 12 unsworn incident report on its face value. Mr Holden was never made available as a witness. [55] There are two errors which arise from this. Firstly, history has shown that although a witness can provide a version of events in a written statement, their complete step-by-step observations are not always dictated into the statement. Invariably it is only when a witness gives oral evidence and is asked questions, that the miniscule details of the entire circumstances becomes known. [56] Several matters trouble the Tribunal about Mr Holden’s incident report when compared to his police statement. The incident report is a document that gives an overall interpretation of his observations and actions, as well as a basic description of the interactions he had with the Applicant and Mr Mitchell. The interpretation of comments made by Mr Holden in the statement is ambiguous and the true meaning of the comments or their clarification could only be established through him. [57] Mr Holden’s police statement41 expands upon the comments he made in the incident report. This is an example of how a version provided by a witness can change over time. The subtle differences or changes between his incident report and his police statement are identified as – (a) In Mr Holden’s police statement, he said, “Both men were very aggressive to each other”.42 This comment is not contained in his incident report. Mr Mitchell told the Inquiry that it was the Applicant who was the aggressor and not him. Mr Mitchell told the inquiry that the Applicant punched him in the forehead and “After that punch I don’t remember anything until he was on top of me on the ground” ……. “I don’t recall him punching me on the ground, but I was pretty out of it”. It seems that those comments are at odds with the observations of Mr Holden when he said that Mr Mitchell was very aggressive. (b) The police statement contains a comment that both the Applicant and Mr Mitchell “blamed each other”.43 That comment remains unexplained. What did Mr Holden mean by that comment, and what was it that they were saying? (c) Mr Holden was approached by Mr Woolaston who asked him what happened. Mr Woolaston asked him to submit a security incident report.44 At the Inquiry, Mr Woolaston told the Applicant and Mr Mitchell that a security incident report was provided to him,45 although that report does not appear to have been provided to the Applicant. (d) The statement by Mr Holden that he recalled Mr Mitchell having “…a minor injury to his left ear”46 is at odds with what Mr Woolaston observed. Mr Woolaston told the Applicant at the Inquiry that he saw blood coming from the right ear of Mr Mitchell.47 [58] The second error, and in the Tribunal’s view the most important error made, was the Inquiry’s failure to make Mr Holden available to give evidence and 41 Statement provided on 5 November 2015. 42 Mr Holden’s police statement at Paragraph 4. 43 Mr Holden’s police statement at paragraph 10. 44 Ibid at paragraphs 12 – 13. 45 Ibid at paragraph 16 and Transcript of Inquiry at page 3, lines 32 – 35. 46 Mr Holden’s police statement at paragraph 15. 47 Transcript of Inquiry at page 3, line 22. -- 12 of 14 -- 13 allow the comments he made in his incident report to be explored. The Inquiry told the Applicant that his version of the incident was “in total contradiction to the evidence of the security officer on the day”.48 By adopting that approach to the incident report, the Inquiry should have made Mr Holden available so that the Applicant could have the opportunity to test his evidence. [59] This is particularly important because of the Applicant’s self-defence position he maintained. The Inquiry was further alerted of the need to make Mr Holden available when the Applicant said “Well, I would like to meet this security fellow, I really would”.49 [60] There were three completely inconsistent versions of the incident available to the Inquiry and the RDB. Those versions were from Mr Holden, the Applicant and Mr Mitchell. The only independent version was that of Mr Holden. By not making Mr Holden available, the Applicant was denied the opportunity test his evidence. The denial of the opportunity is a denial of natural justice. The Principles of natural justice [61] The principles of natural justice are well established. The requirements of those principles are not inflexible but depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting and the subject matter that is being dealt with.50 The Applicant says that the Inquiry should have considered the hypothesis of him acting in self-defence of an unprovoked attack by Mr Mitchell. [62] In speaking of the rules that applied to a Stewards’ Inquiry, Samuels JA in Hall v The NSW Trotting Club Limited [1977] 1 NSWLR 37851 said that it was necessary to first establish what rules of natural justice the Stewards were required to observe. In his view, he said that - “stewards were bound to inform the appellant of the nature of the accusations made against him, and to give him a fair opportunity to make any relevant statement which he may desire to bring forward and a fair opportunity to correct or controvert any relevant statement brought forward to his prejudice” Samuels JA added52 that – “…..it was the duty of the Stewards to give a fair hearing to the person charged; they must of course, until he has been heard in his defence, keep their minds open in the sense of being ready and willing to be persuaded by the party charged”. Conclusion [63] It seems that the Applicant was provided with a fair opportunity to present his case to the Inquiry as much as he could. He was also provided a fair opportunity to correct any relevant statement, or challenge anything to his prejudice. 48 Ibid at page 32, lines 4 – 6. 49 Ibid at page 38, line 3. 50 Gould v Isis Club Incorporated [2015] QSC 253; Russell v Duke of Norfolk [1949] 1 All ER 109 at 118 per Tucker LJ quoted in Ex Parte Angliss Group (1969) 122 CLR 546 at 552; Kioa v West (1985) 159 CLR 550 at 563 per Gibbs CJ, 594 per Wilson J, 612-615 per Brennan J. 51 At page 388. 52 In agreeing with Adam J in R v Brewer; Ex parte Renzella [1973] VR 375 at 381. -- 13 of 14 -- 14 [64] However, the nature of the investigation into the incident would have almost immediately made the Inquiry aware that the Applicant adopted a position that he was acting in self-defence. That position has been unchanged over time. [65] Significant weight was given to the incident report made by Mr Holden, which contained allegations and an assertion of matters of fact, despite not making him available as a witness. By doing that, the Inquiry acted without fairness to the Applicant. [66] A further consideration is the reliance by the Applicant on the principle of self- defence. The Applicant was prosecuted pursuant to Rule AR175(q) of the Australian Racing Rules, which provides that if any person involved in the racing industry may be penalised if they are found guilty of any misconduct, improper conduct or unseemly behaviour. [67] The Respondent contended that regardless of the findings of the Inquiry and the RDB about each action that may have occurred, the Applicant had engaged in misconduct, improper conduct or unseemly behaviour.53 The Respondent’s argument is that the offence for which the Applicant was convicted is an offence of strict liability and it is consistent with the good management of racing in Queensland and the objective of the legislation.54 [68] The Respondent told the Tribunal that it need not make a finding as to what occurred prior to what Mr Holden said he saw. Effectively, the Respondent’s position is that regardless of whether the Applicant’s version of what occurred is accepted, his involvement in the incident amounts to a breach of Rule AR175(q) and the decision of the Inquiry and the RDB should stand. That is, his actions amounted to misconduct, improper conduct or unseemly behaviour. [69] If that is a position to be particularly adopted in this matter, then a concerning issue is whether the offences under the Australian Racing Rules abrogate the statutory right of an individual to defend themselves against unprovoked assault. The Tribunal is not convinced. The conduct of lawful self-defence cannot in itself be a wrongdoing. If it is not a wrongdoing, then it cannot be misconduct, improper misconduct or unseemly behaviour. [70] Having regard to all the circumstances of this matter and the reasons already given, the Tribunal’s view is that the correct and preferable decision is to set aside the decisions of the Inquiry and the RDB and substitute it with a decision that the charge be dismissed. DECISION [71] That the decision in respect of conviction and penalty is set aside and the charge preferred against the Applicant pursuant to Australian Racing Rules, Rule 175(q) is dismissed. 53 Submissions of the Respondent dated 23 June 2016 at paragraph 19. 54 Racing Act 2002 (Qld), s 4. -- 14 of 14 --