Ball v Queensland All Codes Racing Industry Board [2016] QCAT 369

CITATION: Ball v Queensland All Codes Racing Industry Board [2016] QCAT 369 PARTIES: Ronald Douglas Ball (Applicant) v Queensland All Codes Racing Industry Board (Respondent) APPLICATION NUMBER: OCR039-16 MATTER TYPE: Occupational regulation matters HEARING DATE: 11 August 2016 HEARD AT: Brisbane DECISION OF: Member Guthrie DELIVERED ON: 14 October 2016 DELIVERED AT: Brisbane ORDERS MADE: 1. The transcript of the inquiry will be received by the Tribunal in these proceedings. 2. The video footage and any sound which is not conversation (or spoken words) will be received by the Tribunal in these proceedings. 3. The audio of the conversation (or spoken words) that can be heard on the video footage will not be received by the Tribunal. The Tribunal further directs that: 1. The proceeding will be listed for a further half day oral hearing on a date to be advised. 2. Both parties must file in the tribunal a list of the dates they are unavailable to attend the resumed hearing by no later than 4:00 pm on 24 October 2016. -- 1 of 28 -- 2 CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – FUNCTIONS OF TRIBUNALS – where applicant is a trainer of greyhounds where application for review of a decision of the Racing Disciplinary Board – where tribunal conducts hearing de novo - where Racing Disciplinary Board considered video footage obtained by a third party – where audio on video footage obtained by a third party – where Racing Disciplinary Board considered transcript of trainer’s attendance before stewards’ inquiry – whether video footage should be excluded by the tribunal on review – whether audio footage should be excluded by the tribunal on review – whether transcript of inquiry should be excluded by the tribunal on review EVIDENCE – ADMISSIBILITY – EXCLUSIONS:IMPROPERLY OBTAINED EVIDENCE – where audio on video footage - where video footage obtained by alleged breach of the Invasion of Privacy Act 1971 (Qld) – where video footage obtained by alleged trespass – whether video footage admissible – whether audio on footage admissible EVIDENCE – ADMISSIBILITY – EXCLUSIONS: PRIVILEGES – SELF- INCRIMINATION PRIVILEGE – SCOPE OF PRIVILEGE – CIVIL PENALTY – where greyhound trainer spoke to panel of stewards – where transcript of inquiry – whether trainer should have been advised of right to silence - whether transcript of stewards’ inquiry should be admitted EVIDENCE – ADMISSIBILITY – GENERAL PRINCIPLES – OTHER MATTERS – EVIDENCE LAW – APPLICATION AND SCOPE OF RULES OF EVIDENCE – where Tribunal not bound by the rules of evidence - whether video footage should be admitted at the discretion of the tribunal – whether audio on video footage should be admitted at the discretion of the tribunal – whether transcript of inquiry should be admitted at the discretion of the tribunal Invasion of Privacy Act 1971 (Qld), s 4, s 42(2), s 43, s 44, s 46 -- 2 of 28 -- 3 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 9(4), s 17, s 19, s 20, s 28 Racing Act 2002 (Qld), s 149ZE, s 152, s 152A ABC v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 Briginshaw v Briginshaw (1938) 60 CLR 336 Bunning v Cross (1978) 141 CLR 54 Crime and Misconduct Commission v Assistant Commissioner Ross Barnett [2010] QCAT 690 Hartmann v Commissioner of Police (1997) 91 A Crim R 141 King v Greyhound Racing Victoria [2016] VCAT 701. McDermott v The King (1948) 76 CLR 501 New South Wales Bar Association v Evatt (1968) 117 CLR 177 Paull v Queensland All Codes Racing Industry Board [2016] QCAT 74 R v Australian Broadcasting Tribunal ex parte Hardiman (1980) 144 CLR 13 R v Henry [1992] QCA 336 R v Reginald James Kay [2016] QDC (unpublished) R v Swaffield (1998) 192 CLR 159 APPEARANCES: APPLICANT: Ronald Douglas Ball RESPONDENT: Queensland All Codes Racing Industry Board This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). REPRESENTATIVES: APPLICANT: Mr A Boe of Counsel instructed by Nyst Legal RESPONDENT: Mr J M Horton QC of Counsel and Mr D D Purcell of Counsel instructed by Clayton Utz Lawyers REASONS FOR DECISION Background [1] Mr Ronald Ball is a trainer of greyhounds for racing. It is common ground that on 16 February 2015, the Australian Broadcasting Corporation’s “Four Corners” program aired footage taken in Queensland of people live baiting -- 3 of 28 -- 4 greyhounds at a premises at 9 Wotan Road, Churchable. The footage was taken by cameras left by persons with a desire to capture footage of these events without the knowledge of those filmed. Racing Queensland says it received the footage from the Royal Society for the Prevention of Cruelty to Animals (RSPCA). [2] Following Mr Ball’s appearance before a panel of three stewards on 18 March 2015 at which the footage was shown, Mr Ball was issued with a show cause notice relating to claimed breaches of the Greyhound Australasia Rules (GAR): a) He used the live baiting of animals for a purpose connected with greyhound racing that was improper in breach GAR R86(af) including on or about August 2014 at 9 Wotan Road, Churchable. b) He used the live baiting of animals for the purpose of affecting the performance of a greyhound in breach of GAR R86(aa) including on or about August 2014 at 9 Wotan Rd, Churchable c) He engaged in conduct which is detrimental or prejudicial to the interest, welfare, image, control or promotion of greyhound racing in breach of GAR R86(q) including on or about August 2014 at 9 Wotan Road Churchable d) He provided, in an interview with Racing Queensland in Deagon, Brisbane on 18 March 2015, evidence that was false and misleading in breach of GAR R 86(d). [3] Following a show cause hearing, Racing Queensland found the claimed breaches of the GAR proven and decided to warn off Mr Ball for life. Mr Ball appealed that decision. The Queensland Racing Disciplinary Board (the Board) decided to vary the decision of Racing Queensland, determining that Mr Ball be warned off for ten (10) years. Mr Ball has applied to the Tribunal for review of that decision. [4] As a preliminary matter, Mr Ball argues that the following evidence which was taken into account by Racing Queensland and the Board should not be received by me, so that in determining the review, I would have no regard to it: a) Video footage recorded on a number of DVDs b) The transcript of the stewards’ inquiry on 18 March 2015 [5] In relation to the video footage, I note that the Board found: 1 Although the [Invasion of Privacy Act 1971] (s 43) renders inadmissible a ‘private conversation’ captured by the recording device associated with the ‘button camera’ it does not in turn render the associated visual images captured inadmissible for the purposes of this Board. 1 S 21(2) documents p.311. -- 4 of 28 -- 5 [6] The Board appears not to have taken into account the audio.2 [7] On 11 August 2016, I conducted a hearing in this review. I decided that I would determine the admissibility of evidence issues and give reasons for my decision before reconvening to finalise the review. The tribunal’s review jurisdiction, practices, and procedures [8] Division 3 of Part 1 of the QCAT Act contains the legislative provisions relevant to the tribunal’s review jurisdiction. The tribunal’s review jurisdiction is the jurisdiction conferred on the tribunal by an enabling Act to review a decision made by another entity under the Act.3 In this case, the enabling Act is the Racing Act 2002 (‘the Racing Act’). Pursuant to section 152 and 152A of the Racing Act, an aggrieved person may apply to the tribunal for a review of a decision of a constituted board following a decision by the disciplinary board. [9] In exercising its review jurisdiction, the tribunal must decide the review in accordance with the QCAT Act and the Racing Act and may perform the functions conferred on it by those Acts and has all the functions of the decision-maker for the reviewable decision being reviewed.4 [10] The purpose of the review of a reviewable decision is to produce the correct and preferable decision. The tribunal must hear and decide a review of a reviewable decision by way of a fresh hearing on the merits.5 [11] I have considered the written submissions filed by the parties as well as the oral submissions made at the hearing. With the consent of the parties, I have had regard to the documents filed by the respondent pursuant to s 21(2) of the QCAT Act, which comprised an initial bundle of documents and a supplementary bundle. No further statements of evidence have been filed in this review. [12] Section 28 of the QCAT Act provides: 28 Conducting proceedings generally (1) The procedure for a proceeding is at the discretion of the tribunal, subject to this Act, an enabling Act and the rules. (2) In all proceedings, the tribunal must act fairly and according to the substantial merits of the case. (3) In conducting a proceeding, the tribunal— (a) must observe the rules of natural justice; and (b) is not bound by the rules of evidence, or any practices or procedures applying to courts of record, other than to the extent the tribunal adopts the rules, practices or procedures; and 2 S 21(2) documents pp.309-314. 3 QCAT Act s 17. 4 QCAT Act s 19. 5 QCAT Act s 20. -- 5 of 28 -- 6 (c) may inform itself in any way it considers appropriate; and (d) must act with as little formality and technicality and with as much speed as the requirements of this Act, an enabling Act or the rules and a proper consideration of the matters before the tribunal permit; and (e) must ensure, so far as is practicable, that all relevant material is disclosed to the tribunal to enable it to decide the proceeding with all the relevant facts. (4) Without limiting subsection (3)(b), the tribunal 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. [13] I am guided by the reasoning of the Tribunal constituted by the Honourable JB Thomas in Crime and Misconduct Commission v Assistant Commissioner Ross Barnett.6 The Tribunal said that before it can be sensibly determined whether evidence should be received there are threshold questions as to whether it is relevant and what it is capable of proving.7 In relation to relevance the Tribunal said: It is true that the tribunal is not bound by the rules of evidence, it may inform itself in any way it considers appropriate and act with as little formality and technicality as the requirements of the Act and fair practice will permit. …However the tribunal is conscious of the fact that the rules of evidence “represent the attempt made, through many generations to evolve a method of inquiry best calculated to prevent error and elicit truth” (per Evatt J in R v War Pensions Entitlement Appeal Tribunal; ex parte Bott (1933) 50 CLR 228, 256). The curial rules of evidence may afford useful guidance even though they are not binding here.8 [14] In determining that the document in issue could be received, the Tribunal stated that such a determination was not determinative of the weight to be accorded to the evidence, which was a matter for the member hearing the matter.9 [15] In this case the material which Mr Ball asks that I not receive is relevant to the issues for determination. The video footage shows a live animal on a lure at a track. It shows greyhounds chasing a lure and there are people present, one of whom it has been found by the respondent to be Mr Ball. The footage is relevant to a consideration of whether Mr Ball has breached the GAR as alleged by Racing Queensland. Similarly, the transcript of what Mr Ball said to the stewards on 18 March 2016 is also relevant. He was questioned about his training practices, his opinion of live baiting and about the footage which was shown to him. [16] A finding that the material or any part of it should be received, does not prevent submissions being made as to the weight I should give the evidence. Issues about the reliability of particular evidence, for example, are 6 [2010] QCAT 690. 7 Crime and Misconduct Commission v Assistant Commissioner Ross Barnett [2010] QCAT 690, at [20]. 8 Ibid, at [22]. 9 Ibid, at [33]-[34]. -- 6 of 28 -- 7 matters that can be considered by the tribunal in assessing the weight to be accorded to that evidence. The nature of the proceedings [17] These proceedings are administrative/regulatory proceedings. They are not criminal proceedings. Disciplinary decisions are “entirely protective and, notwithstanding that [they] may involve great deprivation to the person disciplined, there is no element of punishment involved”.10 [18] I agree with the submission of the respondent that as a licensee in the greyhound racing industry, Mr Ball accepted to be subject to the GAR and Local Rules in consideration of an entitlement to participate in the greyhound racing industry. [19] The video footage was considered during the stewards’ inquiry. Mr Ball spoke to the stewards about matters of concern raised by the footage. GAR R 92(1) provides: The Controlling Body or Stewards may regulate their own procedure and are not bound by formal Rules and practices as to evidence, but may inform themselves as to any matter in such manner as they think fit. [20] The Board, pursuant to s 149ZE(2) of the Racing Act in hearing an accepted appeal:  was required to observe natural justice  was not bound by the rules of evidence  could inform itself in any way it considers appropriate and  was required to act as quickly and with as little formality and technicality as is consistent with a fair and proper consideration of the issues [21] The tribunal in this case, stands in the shoes of the Board. Standard of Proof [22] The standard of proof in this case is the civil standard as explained in the High Court’s judgment in Briginshaw v Briginshaw: 11 …The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no 10 New South Wales Bar Association v Evatt (1968) 117 CLR 177 at 183-184. 11 [1938] HCA 34; (1938) 60 CLR 336 as per Dixon J. -- 7 of 28 -- 8 third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences… [23] Dixon J made it clear that a third standard of proof was not created. However, I accept that the gravity of the consequences from a finding of fact will affect the answer to the question of whether it has been proved to the tribunal’s reasonable satisfaction. Whether the evidence obtained at the stewards inquiry should have been relied upon by the Board, and should be received by the Tribunal in the determination of the charges against Mr Ball Ground 1: Involuntariness Submissions of the parties [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 [25] GAR 90(1) states: R90 Inquiries (1) The Controlling Body or Stewards may require the attendance of and the giving of evidence by any registered person or any other person participating in or associated with greyhound racing who, in the opinion of the Controlling Body or Stewards may have knowledge of any of the matters which are the subject of an inquiry. -- 8 of 28 -- 9 [26] Mr Ball relies on McDermott v The King,12 citing Dixon J (as his Honour then was): At common law, a confessional statement made out of court by an accused person may not be admitted in evidence against him upon his trial for the crime to which it relates unless it is shown to have been voluntarily made. This means substantially that it has been made in the exercise of his free choice. [27] Mr Ball also relies on s 10 of the Criminal Law Amendment Act 1894: No confession which is tendered in evidence on any criminal proceeding shall be received which has been induced by any threat or promise by some person in authority, and every confession made after any such threat or promise shall be deemed to have been induced thereby unless the contrary be shown. [28] Mr Ball says that Racing Queensland cannot show that Mr Ball’s participation in the hearing was voluntary. Therefore, it would be demonstrably unfair, in terms of s 28(2) of the QCAT Act for the Tribunal to place any reliance on any admissions alleged to have been made by Mr Ball in the hearing, given the serious sanctions that have been imposed against him in reliance on them. [29] Mr Ball says that in the absence of statutory direction, the privilege against self-incrimination is not a rule of evidence, which can be dispensed with. It is a common law right, which is not to be taken away unless the legislative intent to do so clearly emerges whether by express words or necessary implication.13 [30] Mr Ball refers to R v Australian Broadcasting Tribunal ex parte Hardiman14 where the High Court was concerned with the course of proceedings before a Tribunal, which was not bound by the rules of evidence. Mr Ball refers to the joint judgment of Gibbs, Stephen, Mason, Aickin and Wilson JJ where their Honours held that “in an appropriate situation” a witness before the Tribunal “should be advised on his privilege against self-incrimination” and “he may exercise that privilege”.15 [31] The stewards did not tell Mr Ball during the interview that he had a right to silence. Mr Ball says he should have been told, “We are going to elicit information in order to convict you of the charges we will bring against you”. It is submitted that the action of the stewards was repugnant to the privilege and this led to the admissions being obtained involuntarily. [32] Mr Ball says that by the phone call on 16 March 2015 he was seduced to come to the inquiry. On 16 March 2015, the Chief Steward of Greyhounds within Racing Queensland telephoned Mr Ball and told him: 12 (1948) 76 CLR 501 at [10]. 13 Applicant’s submissions in reply [2] – [3]. 14 (1980) 144 CLR 13. 15 Ibid, at 34. -- 9 of 28 -- 10 a) Racing Queensland is currently investigating allegations that the practices of live baiting have occurred at a property at 9 Wotan Road, Churchable16 b) Upon review of the initial evidence, we believe that you are a person of interest and pursuant to Rule 90 of the Greyhound Rules; it appears to the stewards that you may have committed a breach of the Greyhound Australian Rules.17 c) Pursuant to Rule 90(1) of the GAR, the stewards hereby direct you to attend before us here at Racing Queensland, Deagon, on Wednesday, 18 March 2015, at 9 am for the purposes of an inquiry,18 d) [To] have available any – at that time any witnesses or evidence you wish to present19 [33] Mr Ball also says that during the course of the inquiry on 18 March 2015 he was seduced into making a series of admissions in the lead up to the showing of the footage. [34] Mr Ball says that if he had had a lawyer present they would have been able to say, “I now know that you’re trying to inculpate my client and I’d like to give him some advice on that.” Mr Ball says there was no formal notice of the subject matter of the inquiry. [35] Mr Ball relies on the reasons for decision of Horneman-Wren SC DCJ in R v Reginald James Kay20 in so far as His Honour determined that the two admissions made by Mr Kay after a break between recordings of the interview with police were unreliable. The basis for that decision was twofold. It was contended that Mr Kay was overborne as the investigating officer told him they had 500 hours of video footage but it was not played to him. It was contended that it was put to him that in light of there being 500 hours of video recordings he should just “fess up”. Further, it was said that whatever was said by an officer in the break between the recordings had also overborne him as he agreed to the officer’s recorded explanation of what she had said to him during the break which on her own evidence on the hearing of the application was not true. His Honour also noted that the officer’s statement that she thought the sport of greyhound racing needed a champion and she would have loved to see him be the champion of the sport was reasonably open to have been considered by Mr Kay as a statement from which he could take some hope of advantage.21 [36] Further His Honour said: The fact that immediately following this Mr Kay agrees to the explanation placed on the record by the officer as to what she said during the suspension in the 16 Transcript of Inquiry dated 16 March 2015 at p.2, lines 37-39. 17 Transcript of Inquiry dated 16 March 2015 at p. 2, lines 43-46. 18 Transcript of Inquiry dated 16 March 2015 at p. 3, lines 3-6. 19 Transcript of Inquiry dated 16 March 2015 at p 3, lines 10-11. 20 [2016] QDC, reasons delivered on 29 July 2016 but not yet published. A copy of the reasons was provided to the Tribunal by the respondent. 21 Ibid, [78]. -- 10 of 28 -- 11 recording, which explanation was entirely inaccurate, and which failed to state what had in fact been said demonstrates that he was prepared to accept, and not expose, inaccuracies. That, in my view, suggests that the applicant may have been overborne by what had been said during the suspension of recording and was prepared to act in a compliant manner. Findings [37] I have carefully considered the transcript of the conversation on 16 March 2015 and the transcript of the inquiry on 18 March 2015. Mr Ball has not given any evidence or provided any information himself since that day. In this case there is no evidence that the inquiry was stopped and started nor any suggestion that the stewards had any conversation with Mr Ball that was not recorded. Mr Ball has never confessed to live baiting. He has never said that he believed the animal on the lure in the footage to be alive. [38] When Mr Ball spoke to the stewards’ inquiry, he did not give evidence under oath. I accept that in the course of a person giving evidence whether that be before a court or a tribunal that a witness can invoke the privilege against self-incrimination. [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.22 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.23 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.24 [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.25 He also says that he understands that what he was called in for was an exceptional and serious inquiry.26 [42] GAR 90(5) states: 22 Transcript of Inquiry dated 16 March 2015 at p.2, lines 37-39. 23 Transcript of Inquiry dated 16 March 2015 at p. 2, lines 43-46. 24 Transcript of Inquiry dated 16 March 2015 at p.3, lines 10-11. 25 Transcript of Inquiry dated 18 March 2015 at p.7 line 1. 26 Transcript of Inquiry dated 18 March 2015 at p.9, lines 1-2, 41-42. -- 11 of 28 -- 12 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. [44] The Tribunal cannot know and should not speculate about whether the advice he obtained was competent. [45] Mr Ball was also told before he was asked any relevant questions that if a show cause was issued against him then he could seek legal advice.27 From the beginning of the inquiry live baiting is discussed, the Four Corners show is mentioned, and Mr Ball says he had seen the vision. [46] I do not consider that Mr Ball’s statements to the stewards’ inquiry reflect that his answers were given because he felt threatened or induced to respond. I accept that the Chairman referred to Mr Ball as having been a strong advocate for building up the professionalism in the sport28 However, Mr Ball did not make any admissions about having witnessed or having participated in live baiting thereafter. [47] In R v Swaffield in determining whether a confessional statement was voluntary, the focus was the effect of the conduct of those in authority in all the circumstances upon the will of the confessionalist.29 The principle, focusing is upon the will of the person confessing, must be applied according to the age, background and psychological condition of each confessionalist and the circumstances in which the confession is made, Voluntariness is not an issue to be determined by reference to some hypothetical standard: it requires a careful assessment of the effect of the actual circumstances upon the will of the particular accused.30 [48] I accept that Mr Ball is elderly but he is also an experienced trainer who has been in the industry for many decades. There is nothing in the transcript that causes me to be concerned that Mr Ball felt overborne by the panel to answer questions. I reach this conclusion taking into account that he was directed to attend and give evidence. [49] Assuming for present purposes that the stewards should have informed Mr Ball that he could remain silent or invoke the privilege against self- incrimination, I do not consider that the tribunal’s receipt of the transcript is unfair. In arriving at that decision, I have taken into account the 27 Transcript of Inquiry, p.10 at lines 7-10. 28 Transcript of Inquiry, p.19 at lines 13-16. 29 (1998) 192 CLR 159 at p.170. 30 Ibid at p.170 citing Collins v The Queen (1980) 31 ALR 257 at 307. -- 12 of 28 -- 13 circumstances I have already outlined in terms of the statements made to Mr Ball on 16 March 2015 and at the outset of the inquiry on 18 March 2015 including his ability to seek an adjournment to speak to his legal representative at any time and his having availed himself of that opportunity. I have also taken into account that there is nothing in the transcript to suggest that any statements that might be considered confessional are unreliable or that the receiving of the transcript would preclude a fair hearing. R v Reginald James Kay is a criminal proceeding, there was evidence of an inducement by the police and Mr Kay’s confessional statements followed. The present case is clearly distinguishable. Ground 2: Procedural fairness and legal representation. [50] I have already found that it was open for the stewards to make the decision not to permit Mr Ball’s lawyer to be present during the inquiry. However, Mr Ball goes further and says that the entire stewards’ hearing was procedurally unfair and so anything said during the inquiry should not be received by the Tribunal. [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 -- 13 of 28 -- 14 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. [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. [56] Further, I consider the applicant can rely on his submissions in relation to this ground when addressing the Tribunal on the weight it should give to particular evidence. [57] I conclude that the transcript of the stewards’ inquiry will be received by the Tribunal. Unreliability of the video footage [58] Mr Ball raises issues regarding the reliability of the footage. It is submitted that there are evidentiary gaps in the footage. The provenance of the footage has never been established. The original is not available nor is the recording device used to record it. There is no evidence about how the footage has been edited or how the timestamps appear on the footage (Although the Tribunal has been provided with both ‘unedited’ and ‘edited’ versions by the Board for convenience – the ‘edited’ being certain extracts from the ‘unedited’ versions). It is submitted that there is no means by which -- 14 of 28 -- 15 to test when the footage was captured or the authenticity of the footage. Mr Ball says that the timestamps of the two sets of footage, the button shot and the long shot, do not match. [59] Mr Ball relies on the expert report of forensic computer scientist Dr Bradley Schatz dated 26 October 2015. Dr Schatz states that it is possible to modify the time and date metadata or to edit the video to contain an arbitrary time and date. He further states that one may also make a video recording reflect a false time and date by setting a false time and date to the internal clock of the recording device. [60] He says that digital files are in general able to be perfectly modified without leaving a trace, although in many instances such attempted modifications may lead to file that contains inconsistencies. Similarly, inadvertent modifications may yield inconsistencies in the relevant time and date metadata. [61] Dr Schatz concludes that the information provided to him was insufficient for forming a concluded opinion about the accuracy of the internal clock of the recording device with respect to the actual time of filming. He states that access to the original recording devices and associated storage device would assist in forming a concluded opinion as to when the footage was created. Chain of custody documents would assist in establish the provenance of the evidence. Relevant details would include what device produced the original video, how the video was extracted from the original devices and what subsequent processes have been applied to the videos. His opinions have not been challenged so far as they go, but rather the Board submits that they are not relevant. The Board simply submits that the uncertainties Dr Schatz raises are necessarily true of any digital recording. [62] I do not consider that the applicant’s submission regarding the provenance of the video footage prevent its admission. I do not consider that it is unfair to Mr Ball to receive the footage given it is relevant to the issues for the determination by the Tribunal and there is no evidence that it has been doctored in any way so that what is depicted in the footage is not accurate. [63] It is open for Mr Ball to make submissions about the weight I should give to the video footage given the discrepancies in the time stamps and the other matters he has raised regarding the footage. Whether the video and audio footage must not be received because they were illegally obtained [64] It is common ground that the footage was taken covertly and that entry to the property in order to place the devices to take that footage was without the permission of the landholder and therefore arguably a trespass.31 Ground 1: Effect of the Invasion of Privacy Act 31 Respondent’s outline of submissions dated 11 July 2016. -- 15 of 28 -- 16 [65] Mr Ball says the footage should be excluded as it was obtained through the commission of an offence under s 43 of the Invasion of Privacy Act 1971 (‘the IPA’). Section 43 provides that ‘a person is guilty of an offence against the IPA if the person uses a listening device to overhear, record, monitor or listen to a private conversation…’ There is no dispute that a listening device within the meaning of the IPA, s 4, was used to record the audio and video footage. [66] The IPA addresses record of private conversations in a number of ways. Section 43 makes it an offence for a person to record a private conversation they are not party to, subject to certain exceptions which do not apply here. Section 46 provides that such a recorded conversation is ‘inadmissible’ in civil or criminal proceedings. Both of these provisions relate only to the recording of a private conversation. They have no application in relation to the images in the footage. I will therefore consider as a separate matter whether the audio in the footage should be received. [67] Section 43 of the IPA relevantly provides: 43 Prohibition on use of listening devices (1) A person is guilty of an offence against this Act if the person uses a listening device to overhear, record, monitor or listen to a private conversation and is liable on conviction on indictment to a maximum penalty of 40 penalty units or imprisonment for 2 years. ... (2) Subsection (1) does not apply- (a) where the person using the listening device is a party to the private conversation;… [68] Section 46 of the IPA relevantly provides: 46 Inadmissibility of evidence of private conversations when unlawfully obtained (1) Where a private conversation has come to the knowledge of a person as a result, direct or indirect, of the use of a listening device used in contravention of section 43, evidence of that conversation may not be given by that person in any civil or criminal proceedings. [69] It is necessary for me to consider firstly, whether the audio in the footage comes within the meaning of ‘private conversation’ for the purpose of the IPA, and if so whether s 46 of the IPA necessarily prevents the audio from being received into evidence. If either of those questions is answered in the negative, I must consider whether as a matter of fairness the audio should be received. Meaning of Private Conversation [70] Section 42 of the IPA provides: 42 Reference to listening devices and private conversations -- 16 of 28 -- 17 (1) A reference in this part to a listening device does not include a reference to a hearing aid or similar device used by a person with impaired hearing to overcome the impairment and to permit the person only to hear sounds ordinarily audible to the human ear. (2) A reference in this part to a party to a private conversation is a reference— (a) to a person by or to whom words are spoken in the course of a private conversation; and (b) to a person who, with the consent, express or implied, of any of the persons by or to whom words are spoken in the course of a private conversation, overhears, records, monitors or listens to those words. [71] “Private conversation” is defined in the IPA as: private conversation means any words spoken by one person to another person in circumstances that indicate that those persons desire the words to be heard or listened to only by themselves or that indicate that either of those persons desires the words to be heard or listened to only by themselves and by some other person, but does not include words spoken by one person to another person in circumstances in which either of those persons ought reasonably to expect the words may be overheard, recorded, monitored or listened to by some other person, not being a person who has the consent, express or implied, of either of those persons to do so.32 [72] Mr Ball asks me to carefully construe the terms of s 4 of the IPA, in particular, that section does not say “will be overheard” or “must be overheard”. Mr Ball has referred me to the observations of Gleeson CJ in ABC v Lenah Games Meats Pty Ltd:33 There is no bright line which can be drawn between what is private and what is not. Use of the term “public” is often a convenient method of contrast, but there is a large area in between what is necessarily public and what is necessarily private. An activity is not private simply because it is not done in public. It does not suffice to make an act private that, because it occurs on private property, it has such measure of protection from the public gaze as the characteristics of the property, the nature of the activity, the locality and the disposition of the property owner combine to afford. Certain kinds of information about a person, such as information relating to health, personal relationships, or finances, may be easy to identify as private; as may certain kinds of activity, which a reasonable person, applying contemporary standards of morals and behaviour, would understand to be meant to be unobserved. The requirement that disclosure or observation of information or conduct would be highly offensive to a reasonable person or ordinary sensibilities is in many circumstances a useful practical test of what is private. [73] Mr Ball says that firstly, a conversation may be relevantly ‘private’ regardless of where it occurs, i.e. in a public place or a private place or a private place with public access. Here they are occurring on private property where owners and trainers are training their dogs at a private facility. 32 IPA, s 4. 33 (2001) 208 CLR 199. -- 17 of 28 -- 18 [74] Secondly, the alleged conversations surround activities associated with alleged criminal or at least immoral conduct. Any such conversation would be highly offensive to a reasonable person of ordinary sensibilities. [75] Thirdly, it matters not whether there is formal speech or banter. [76] Fourthly, it is not definitive whether any part of the conversation is whispered, yelled or merely spoken. Consequently, where a conversation is private will be context specific by reference to a range of sometimes countervailing factors. [77] Mr Ball says the conversations appear to be communications between the owner of the property and others involved in the contended illegal activity. Given the content of the conversations, it is readily apparent that “the person/s desire[d] the words to be heard or listened to only by themselves and not by some other person.” They certainly could not have reason “to expect the words may be overheard, recorded, monitored or listened to by some other person”. [78] Mr Ball says that the relevant factual features of the subject conversations which suggest no such reasonable expectation and therefore establish the private nature of the conversations, include: a) The content of the conversations; b) The conversations are between individuals who are addressing on another with direct questions and comments; c) The conversations are on private property; d) There are no other persons within reasonable earshot of the conversations; e) There are no recording devices in the area, other than the device recording the ‘button shot” which is at extremely close range but in a concealed location; and f) There is no evidence that the participants gave express or implied consent to the presence of the recording device or were even aware of its presence. [79] Racing Queensland says that s 43 and 46 of the IPA are not operative in regulatory proceeding in circumstances in which the rules of evidence do not apply and in which the tribunal might inform itself as it considers appropriate. The terms of s 46 explicitly relate to criminal and civil proceedings. Racing Queensland says that the stewards’ inquiry and the current proceedings are administrative/regulatory in nature. [80] If that submission is not accepted Racing Queensland says that that audio track does not disclose private conversations as defined as each of the conversations recorded: -- 18 of 28 -- 19 a) Occurred in circumstances in which those persons ought reasonably to expect those words might be overheard or listened to by some other person on the property; b) Did not concern private affairs (ABC v Lenah Game Meats34) c) Occurred in circumstances which could not be private because other persons within earshot might have been able to overhear it. [81] Racing Queensland relies on the decision of this Tribunal in Paull v Queensland All Codes Racing Industry Board.35 In that case, Senior Member O’Callaghan considered what the applicant had said to the stewards about the conversations he had had on that day. In this case, the parties to the conversations on the footage are unidentified. Further, in that case it was not argued that the transcript of what Mr Paull said to the stewards should not be received.36 [82] SM O’Callaghan also accepted Racing Queensland’s submission that s 46 of the IPA would not operate to automatically exclude the audio evidence from these review proceedings where the rules of evidence do not apply. She went on to say that the principles underlying the rules should not however be disregarded and considered whether the tribunal should exercise a discretion to exclude the footage.37 [83] In R v Reginald James Kay38 Horneman-Wren SC DCJ reached the conclusion that audible conversations on the footage taken at 9 Wotan Road Churchable were not private conversations as defined by the IPA. In so doing, His Honour found that no particular content of any of the conversations suggested they were inherently private.39 He went on: Whilst the conversations are between individuals addressing one another, in a number of instances the conversations were clearly being listened to by persons other than the direct participants. In some instances third persons can clearly be seen following and reacting to the conversations between others. The reactions of those persons indicate that it was apparent to the participants in the conversation that their conversation was being listened to by third parties. In respect of those conversations, I would readily find that there was actual knowledge of the part of the participants that their words were being overheard and listened to by others, and that they impliedly consented to that. In some instances there are many persons present when a conversation is taking place. The conversations are, generally, conducted at quite an audible volume. Often the participants some distance from each other. These factors, taken with the toing and froing of people from the track, strongly suggest to me that in all of the conversations which I heard on the recording the participants ought reasonably have expected that their words may have been 34 (2001) 208 CLR 199 at [34]. 35 [2016] QCAT 74. 36 Ibid, at [33], [34]. 37 Ibid, at [36]-[37]. 38 [2016] QDC (as yet unpublished). 39 R v Reginald Kay [2016] QDC (unpublished) at [20]. -- 19 of 28 -- 20 overheard or listened to by persons other than the other participants in the conversation.40 Findings as to private conversation [84] There is little discernible conversation recorded on the footage. It is not argued that noises or sounds heard on the footage, which are not spoken words, should be excluded on the basis of s 46. The parties to what conversation is recorded on the footage have not been clearly identified. The audio that is recorded involves conversations that occurred at the Churchable property between persons present at the property. The Churchable property contains a training track for greyhounds. It is private property. The owner of the property has signed a statutory declaration stating that he did not give anyone permission, authority or consent to enter his premises or record any activity on it.41 [85] I accept that the conversations were not in whispered tones. I could not hear in the audio any effort to restrict the hearing of any particular conversation from others in earshot. Further, I accept that the content of the conversations was not of an inherently private nature. The discernible conversations are about matters connected with greyhound racing, attendance at greyhound meets and matters occurring on the property linked with greyhound training. I consider that those speaking probably did not care whether or not anyone attending the property with permission of the owner overheard the conversations because they were likely attending the property in the knowledge of the training methods being used. [86] However, I do not consider that my acceptance of those matters prevents a finding that the conversations met the definition of “private conversation” in the IPA. I do not consider that ABC v Lenah Game Meats is of much assistance to me. In this case I am construing a statutory definition. [87] In my view, those engaged in conversation impliedly consented to anyone entering the property with the owner’s permission hearing or overhearing those conversations. I do not consider given where the conversations took place and the nature of them that the persons speaking and responding ought reasonably to have expected the words they spoke may be overheard, recorded monitored or listened to by ‘some other person not being a person who has the consent, express or implied of those persons’. [88] In R v Henry42 the Court of Appeal refused an application for leave to appeal a decision to admit the recording of a conversation between two parties in a cell at the watchhouse. The judge at first instance considered the definition of “private conversation” in the IPA. His Honour focused on the words “in circumstances in which either of those persons ought reasonably to expect the words may be overheard” and considered the circumstances 40 Ibid, at [21] and [22]. His Honour noted Senior Member O’Callaghan’s decision in Paull v Queensland All Codes Racing Industry Board [2016] QCAT 74 at [35]. 41 Statutory declaration of Tom Noble. 42 [1992] QCA 336. -- 20 of 28 -- 21 in which the conversation occurred. One of the parties to the conversation admitted that he had noticed the camera in the cell. His Honour said:43 While the watchhouse ought to be a place of security, it is not a place of sanctuary and it does not seem to me that inmates there can reasonably expect that officers in and around the watchhouse will not listen to things that are being said. Consequently, on the material, I doubt very much that this is a situation where there was a private conversation involved. [89] The Court of Appeal said: The point is, it must be recalled, that the section refers to a reasonable expectation that the words may be overheard, In the circumstances, one would think it was obvious to anyone who found himself in a cell that what he said might be overheard by the police who were in charge of that place. Much will in many cases depend on the particular character of the cell, and of the attention being given to it by those whose task it is to guard it; but there is nothing in this case to suggest that His Honour was incorrect in finding that the persons involved in the conversation might reasonably expect to have been overheard.44 [90] While the court of appeal did not make any reference to the words “by some other person, not being a person who has the consent, express or implied, of either of those persons to do so” in the definition, on the facts of that particular case, it was surely accepted that the parties to the conversation did not give consent express or implied to the police officers overhearing or recording their conversation. [91] I consider that my reasoning is consistent with the Court of Appeal’s decision that it is the circumstances of the conversation in issue. I also consider that s 42(2) of the IPA supports my interpretation of the definition of “private conversation”. A party to a conversation can include a person who, with implied consent of any of the persons by or whom words are spoken in the course of a private conversation overhears, records, monitors or listens to those words. This in my view would include all of those present on the property with the permission of the owner. The recording of the conversations was not done by a party to the conversation nor by anyone it is suggested had the consent express or implied of any party to the conversation. I also consider that my interpretation and my findings in this matter are consistent with the protective intent of the legislation. The method of and the recording of conversations in this case, is in my view, the intrusion of privacy the IPA was enacted to protect.45 [92] In this regard, I have reached a different conclusion to that reached by the learned Senior Member in Paull v Queensland All Codes Racing Industry Board and His Honour, Horneman-Wren SC DCJ in R v Reginald James Kay. 43 [1992] QCA 336, p.3. 44 Ibid, at p.4. 45 Second Reading Speech, Hansard 13 October 1971 pp.1061-1064. -- 21 of 28 -- 22 Does s 46 prevent the reception of the conversation recorded on the footage? [93] Having found that the spoken word audio on the footage amounts to private conversation which has been recorded in breach of the IPA, the next question is whether its admission into evidence is necessarily prohibited in these proceedings by s 46. [94] Racing Queensland argues that this provision effectively creates a rule of evidence which I am not bound to apply and that these regulatory proceedings are not “civil or criminal proceedings”. Mr Ball argues that they are civil proceedings, and that I am bound by the rule in s 46. “Civil proceedings” is not defined in the IPA. [95] In Hartmann v Commissioner of Police46 the New South Wales Court of Appeal held that the protection provided by s 17(2) of the Royal Commissions Act 1923 (NSW), which provides that witnesses before a Royal Commission are protected from their evidence being used against them “in any civil or criminal proceedings”, extended to disciplinary proceedings. The Court of Appeal held that: The words "in any civil or criminal proceedings" in s17 are not to be narrowly construed but are to be read as expressing the legislature's intention that statements of evidence, or documents, or oral evidence produced to or given to the Police Royal Commission are not available as evidence against the person providing or giving the statement, document or evidence in any future proceedings, howsoever they are categorised. The expression "any civil or criminal proceedings" was intended to encompass the full category of possible future proceedings.47 [96] Although the context to those comments was protection of the privilege against self-incrimination, the IPA also has a protective function. The IPA was enacted to protect against intrusion of privacy. I do not consider that the legislature intended the words “civil or criminal proceedings” to be read narrowly, so as to exclude administrative, disciplinary or other proceedings. I consider that had it so intended it could have provided enacted a restricted definition of “civil proceedings”. [97] I find that the audio, insofar as it contains the spoken word or conversation, is inadmissible under s 46 of the IPA. There is no discretion to admit it. Section 46 is clear. Even if I am wrong in that regard, I consider that in light of the provisions of the IPA it would be unfair to consider the audio of the conversations in this case. I also note that the Board did not consider the audio. Discretion to receive into evidence of illegally obtained video footage 46 (1997) 91 A Crim R 141. 47 Ibid, 147. -- 22 of 28 -- 23 [98] Turning then to a consideration of the video footage. It is accepted that it was obtained by persons who likely committed a trespass onto private property and who also breached the IPA as I have found. [99] It is accepted that even in a court where the rules of evidence apply, improperly or illegally obtained evidence is not automatically inadmissible. The court has a discretion to admit evidence. Both parties have referred to the High Court decision of Bunning v Cross48 In that case the court said that the following statement represents the law in Australia: 49 Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence. He must consider its exercise. In the exercise of it, the competing public requirements must be considered and weighted against each other. On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand there is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion. [100] Racing Queensland submits that the fact that the footage was taken by persons arguably committing a trespass does not automatically exclude evidence which is relevant and therefore prima facie admissible.50 Racing Queensland says there are several reasons why the discretion ought be exercised to receive the footage:51 a) It is not alleged that Racing Queensland was complicit in any improper conduct in the taking of the footage. The discretion to receive is commonly called upon to be exercised to preclude material being received in evidence where law enforcement authorities were involved in some way in the improper or illegal conduct that led to the evidence being elicited. b) QCAT is able to consider material before the Board, is not bound by the rules of evidence and may inform itself in any way it considers appropriate provided natural justice is afforded to the applicant. c) There is no suggestion that the footage is anything other than accurate. The expert report of Dr Schatz does not go so far as to suggest the footage has been altered only that it could be; d) Improperly or illegally obtained evidence is not rendered inadmissible merely by that fact. Its receipt into evidence is a matter for the exercise of discretion. The policy underlying the principle is that law ought not be seen as condoning or encouraging the unlawful conduct of those whose task it is to enforce it. [101] Racing Queensland relies on SM O’Callaghan’s reasons in Paull v Queensland All Codes Racing Industry Board and the decision of the Victorian Civil and Administrative Tribunal in King v Greyhound Racing 48 (1978) 141 CLR 54. 49 Bunning v Cross at p. 72 citing The Chief Justice in Reg v Ireland (1970) 126 CLR 321. 50 R v Ireland (1970) 126 CLR 321; Cleland v R (1982) 151 CLR 1 and Bunning v Cross (1978) 141 CLR 54. 51 Respondent’s Outlie of Submissions dated 11 July 2016, [63]. -- 23 of 28 -- 24 Victoria.52 In both of those decisions, video footage obtained by people entering land without permission of the landowner to obtain that footage in a covert manner was determined to be admissible. [102] Mr Ball says:53 a) The fact that the Stewards or Racing Queensland were not complicit in improper/unlawful conduct associated with obtaining the footage does not absolve them of the responsibility to not adduce or rely upon (communicate or publish) evidence in their investigation and decision- making that is unreliable or offends the public interest. Section 44 of the IPA is referred to. b) The exercise of the relevant discretion involves more detail and nuance than merely identifying and relying upon ‘public iniquity’ as the determinative factor. c) The Tribunal’s statutory obligation to ensure fairness in the conduct of a proceeding requires consideration of the application of these principles to the audio-visual evidence. d) Admission of improperly obtained evidence in a proceeding has ramifications far beyond the plight of the accused. That ‘public policy’ aspect concerns nothing less than the principle of judicial integrity and the avoidance of the administration of justice being brought into disrepute.54 e) A reckless disregard for proper process or the law will invoke the exercise of the direction by a court or tribunal.55 [103] Mr Ball says that there are two discretions to consider. The first is the fairness discretion which may arise where the use of the evidence could preclude or impair a fair hearing by virtue of the unreliability or where there has been some unfairness in the investigative process.56 The second is the public policy discretion, where the task is to weigh the desirability of bringing a wrongdoer to conviction against the undesirable effect of curial approval or even encouragement, of unlawful conduct.57 [104] Mr Ball says there are five issues that I must take into account in determining the admissibility of the video footage:58 52 [2016] VCAT 701. 53 Applicant’s outline of submissions dated 17 June 2016 [45] to [50] inclusive. 54 Applicant’s outline of submissions [49] R v Lobban (2000) 112 A Crim R 357 at 367; Pollard v The Queen (1997) 176 CLR 177 at 203; Ridgeway, at 32; Swaffield at 175- 180, 190, 212 cited. 55 Applicant’s outline of submissions [50] citing R v Pohl [2014] QSC 173 at [26]; R v Toon [2015] QSC 117 at [28]; R v Barbaro [2015] QSC 346 at [18]; R V P & Anor [2016] QSC 49 at [63]. 56 R v Swaffield; R v Pavic (1998) CLR 189; Applicant’s outline of submissions 17 June 2016. 57 Bunning v Cross (1978) 141 CLR 54 at 75. 58 Applicant’s outline of submissions [52]. -- 24 of 28 -- 25 a) The nature and purpose of the process in this review is adversarial and quasi-criminal. It is a process that involves serious allegations and findings of guilt and punishment with serious consequences to reputation and livelihood consistent with criminal or civil penalty proceedings. b) The standard of proof must be one approaching beyond reasonable doubt, consistent with the application of the principle in Briginshaw.59 The application of such a standard precludes the admission of evidence that lacks reliability, poses unfairness to the accused and/or was improperly obtained. c) The video footage was obtained by the commission of an indicatable offence of trespass. The audio recordings were obtained through the commission of other indictable offences. Its publication is a further offence under s 44 of the IPA. d) Although the captured footage is arguably cogent and the identified illegality does not affect its cogency, it also concerns a serious offence within the context of the racing industry. However, relying on Bunning v Cross, ‘cogency should generally be allowed to play no part in the exercise of the discretion where the illegality involved in procuring it is intentional and reckless.’60 The public interest in prosecuting a ‘public iniquity’ should not be overstated. It is an interest reposed in the prosecution of almost all public offences; and e) It is readily apparent that he evidence is central to the case against the applicant on the relevant charges. [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. 59 Briginshaw v Briginshaw (1938) 60 CLR 336 at 362. 60 Bunning v Cross (1978) 141 CLR 54 at p.54. -- 25 of 28 -- 26 [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. [113] The footage is cogent evidence. Mr Ball refers to the following part of Stephen and Aikin JJ’s judgment in Bunning v Cross in relation to the consideration of the cogency of evidence: To treat cogency of evidence as a factor favouring admission, where the illegality in obtaining it has been either deliberate or reckless, may serve to foster the quite erroneous view that if such evidence be but damning enough that it will of itself suffice to atone for the illegality involved in procuring it. For this reason cogency should, generally, be allowed to play no part in the exercise of discretion were the illegality involved in procuring it is intentional or reckless.61 [114] I accept that there appears to be disregard for the law by those obtaining the footage. However, the disregard for the law was not the act of those “whose duty it is to enforce it”.62 Stephen and Aikin JJ highlighted this underlying principle earlier in their judgment highlighted earlier in their judgment and it is in this context that I consider I must read the passage referred to by Mr Ball relating to the consideration of the cogency of the evidence: 61 Ibid, at p.79. 62 Bunning v Cross (1978) 141 CLR 54 at p.78. -- 26 of 28 -- 27 Moreover the courts should not be seen to be acquiescent in the fact of the unlawful conduct of those whose task it is to enforce the law. …no deliberate disregard of the law appears to have been involved. … If the unlawfulness was merely the result of a perhaps understandably mistaken assessment by the police of the inferences to be drawn from what they observed of the appellant’s conduct this must be of significance in any exercise of discretion. Although such errors are not to be encouraged by the courts they are relatively remote from the real evil, a deliberate or reckless disregard of the law by those whose duty it is to enforce it.63 [115] I consider the cogency of the footage weighs in favour of it being received, although I have not given the cogency more weight than the other factors weighing in favour of the footage being received. [116] I do not consider that by its use of the footage the Board is compounding the illegal act. The GAR give the stewards and controlling bodies broad powers to control the greyhound industry. I do not consider that having come into the possession of footage which raises concerns about training practices in the industry and potential breaches of the GAR the stewards could have ignored it or not investigated those concerns. I do not consider it could be said to be a compounding of the illegal act to investigate issues that the footage raised. Some of the footage was aired on national television and prompted public outrage. The main purpose of the Racing Act is to provide for control bodies to manage, operate, develop and promote codes of racing in a way that ensure public confidence in the racing industry in Queensland. The investigation and subsequent Board hearing which considered the footage was clearly consistent with that object. I do not consider that the Board in receiving the footage which formed part of the stewards’ inquiry could be said to be further compounding the illegal act. It was a matter for the Board, not bound by the rules of evidence, to have regard to any relevant information it considered appropriate. Again, I consider that the fact that neither the stewards or any controlling body was involved in capturing the footage supports my view. [117] In this case, there is no suggestion that the evidence could have been otherwise obtained. Those conscious that they are breaching the GAR are not likely to disclose it. I consider that this weighs in favour of it being received. [118] I have considered the argument that the allegations against Mr Ball are not, on a ‘crime scale’, more serious offences than the trespass and breach of the IPA by others and so that weighs against admitting the footage. Accepting for present purposes that submission, I must also weigh that the practice of live baiting reflects negatively on the industry, not just in terms of its treatment of animals or its disregard for animal welfare but also on the integrity of the industry. The public who place bets on the races, for those who do, must be confident that no greyhound has been given any unfair advantage. The practice undermines public confidence in the industry. While I accept that the prosecution of criminal offences also serves a public 63 Bunning v Cross (1978) 141 CLR 54 at p.78. -- 27 of 28 -- 28 interest. I have also weighed that it was not Racing Queensland or the authorities who committed the trespass or breach of the IPA. [119] Weighing all of those matters, I find that the video footage including any sound which is not conversation (or spoken words) will be received by the Tribunal. Conclusion [120] I will receive the video footage but not the audio of conversation or spoken words on that footage. I will also receive the transcript of the inquiry. [121] The preliminary issue being determined, the proceeding will be listed for a further half day oral hearing. -- 28 of 28 --