El-lssa v Racing Queensland Ltd [2011] QCAT 230

CITATION: El-lssa v Racing Queensland [2011] QCAT 230 PARTIES: Bobby El-Issa v Racing Queensland Limited APPLICATION NUMBER: OCR065-11 MATTER TYPE: Occupational regulation matters HEARING DATE: 18 April 2011 and 10, 11 May 2011 HEARD AT: Brisbane DECISION OF: Richard Oliver, Senior Member Susan Gardiner, Member DELIVERED ON: 3 June 2011 DELIVERED AT: Brisbane ORDERS MADE: 1. The Respondent’s decision that the Applicant is in breach of ARR 135(a) is confirmed; 2. The Respondent’s decision that the Applicant is in breach of ARR 137(a) is set aside; 3. The Respondent’s decision that the Applicant be disqualified for a period of 2 years is set aside and in lieu thereof he be disqualified for a period of 18 months from 1 April 2011. CATCHWORDS: Racing – whether Applicant in breach of Australian Racing Rule 135(a) in failing to ride his horse on the merits – whether reasons given by Applicant for his ride satisfactory – whether charge under ARR 135(a) and ARR 137(a) duplicitous – whether an association with a third party to effect the result of the race falls within the meaning of “improper” in ARR 137(a) – whether “improper” should be confined to the manner of riding Penalty – whether the absence of finding any association between the Applicant and a -- 1 of 16 -- 2 third party sufficient to support a disqualification of 2 years – where no comparative penalties provided to the Tribunal – consideration of the Stewards’ reasons for imposing penalty relevant – query whether Stewards took all relevant matters into account on penalty – penalty excessive Queensland Civil and Administrative Tribunal Act 2009, ss 20, 24 El-Issa v Queensland Racing Ltd OCR002- 10 19 February 2010 Kehl v Board of Professional Engineers of Queensland (2010) QCATA 58 Eckersley v Medical Board of Queensland(1998) 2 QDR 453 Walsh v Tattersall (1996) 139 ALR 27 Briginshaw v Briginshaw (1938) 60 CLR 336 Cody v F. H. Nelson Pty (1947) 74 CLR 629 Pepper v Attorney General [2008] 2 Qld R 353 APPEARANCES and REPRESENTATION (if any): APPLICANT: Mr Vasta QC and Mr Di Carlo of counsel instructed by O’Sullivan Saddington, Lawyers RESPONDENT: Mr Murcoch QC of counsel instructed by Racing Queensland REASONS FOR DECISION [1] On 26 February 2011, Mr El-Issa rode Bold Glance in race 7, the McGuires Hotel Falvelon Handicap, at Eagle Farm. The race distance was 1,200 metres. Bold Glance placed second to the winner Essington. [2] Immediately after the race the Stewards convened an inquiry into Mr El- Issa’s ride on Bold Glance. The initial impression of Chief Steward Birch, supported by the opinion of Steward Aurisch, was that Mr El-Issa did not ride Bold Glance in the last 200 metres of the race with the vigour expected of Mr El-Issa, or for that matter any professional jockey, in circumstances where Bold Glance was clearly in contention to the finish line. -- 2 of 16 -- 3 [3] The Stewards, nor any other observer of the race, had any criticism of Mr El-Issa’s ride up to the 200 metre mark. The consensus was that this part of the ride was perfect. [4] At the conclusion of the inquiry, on 1 April 2011, the Stewards charged Mr El-Issa with breaches of the Australian Rules of Racing as follows: ARR 135 (a) Every horse shall be run on its merits. (b) The rider of every horse shall take all reasonable and permissible measures throughout the race to ensure that his horse is given full opportunity to win or to obtain the best possible place in the field. ARR 137 Any rider may be penalised if, in the opinion of the Stewards, (a) He is guilty of careless, reckless, improper, incompetent or foul riding. [5] Stewards found Mr El-Issa guilty of breaches of both ARR 135(a) and ARR 137(a) and he was disqualified from riding for a period of two years in respect of each breach. The disqualifications were to be served concurrently. [6] In the Stewards’ report1 particulars of each charge were provided which include, for the breach of ARR 135(a) that: a) Passing the 200 metres until near the 100 metres when BOLD GLANCE was holding an advantage over ESSINGTON which was challenging BOLD GLANCE and when BOLD GLANCE was responding to his riding, he deliberately and consciously stopped using the whip and otherwise failed to ride BOLD GLANCE with sufficient vigour. b) Leaving the 100 metres when BOLD GLANCE was maintaining an advantage over ESSINGTON, he again, after using the whip in a backhand manner on only two occasions, deliberately and consciously stopped using the whip and otherwise failed to ride BOLD GLANCE with sufficient vigour. c) Over the concluding stages of this event Jockey El-lssa’s deliberate and conscious lack of vigour in riding BOLD GLANCE resulted in BOLD GLANCE not being fully tested and thereby not finishing the race off at its best. [7] The Stewards relied on the same particulars in respect of the alternate charge that is a breach of ARR 135(b). 1 Stewards Report -1 April 2011. -- 3 of 16 -- 4 [8] In respect of the breach of ARR 137(a), the Stewards found that Mr El- Issa’s riding was “improper”. The particulars of improper riding relied upon by the Stewards was the alleged relationship, between Mr El-Issa and a well known punter, Steven Fletcher. By reason of that relationship, it was in Mr El-Issa’s interest, as well as Mr Fletcher’s, for Mr El-Issa not to ride the horse “properly” so that the horse would not win. The impropriety, it is contended by Racing Queensland is the relationship which is particularised in the Stewards’ Report 2 . [9] After being convicted and penalised, Mr El-Issa filed an application to review a decision in the Tribunal on 1 April 2011. [10] The purpose of the review is for the Tribunal to produce the correct and preferable decision. To achieve this, the Tribunal must conduct a fresh hearing on the merits3 . In considering the matter afresh, it is the Tribunal’s function to review the decision and not the process by which it was arrived at nor the reasons for it. The Tribunal is not required to identify any error in either the process or reasoning that lead to the decision being made. There is no presumption the original decision is correct4 . The initial inquiry [11] Mr El-Issa commenced his riding carer in the mid 1990’s as an apprentice jockey. He has ridden consistently in Queensland in the past 6-7 years and is well known to the Stewards at Racing Queensland. He rode Bold Glance in a feature race at the Gold Coast (the Magic Millions) on 15 January 2011 and won. After that race, Bold Glance was given a “let up” with his first return to racing being the subject event on 26 February 2011. [12] For the race, Mr Birch and Mr Aurisch were positioned in the Steward’s tower located just past the finish line. Mr Birch said he had concerns about Mr El-Issa’s ride whilst watching the race live. His concern related to the jockey’s lack of vigour over the last two hundred metres of the race. Mr Aurisch, who was with Mr Birch, expressed the same concerns. As a consequence of these concerns immediately after the race, an inquiry was convened and Mr El-Issa was called into the Steward’s room. There is a transcript of the inquiry which was conducted in the presence of Stewards, Mr Birch, Mr Aurisch, Mr Hackett, Mr Dart and Mr Palmer, all of whom observed the race. [13] The inquiry commenced with Stewards discussing the race with Mr Hilton, Bold Glance’s trainer. He was asked his opinion Mr El-Issa’s ride on Bold Glance. Mr Hilton expressed disappointment with the concluding parts of the race and told the Stewards that he thought Mr El-Issa could have been 2 Stewards Report Pages 2-3. 3 QCAT Act, sections 20(1) & (2). 4 Kehl v Board of Professional Engineers of Queensland (2010) QCATA 58 at para 9. -- 4 of 16 -- 5 “a bit more vigorous/a bit more vigorous at the end”5 . Mr Hilton than went on to say: “I thought the horse was going to win while he was riding him hard, and he just looked to me that he stopped riding him in the last 20 and the horse stopped. But they did run 1:08 something. He said the horse was flat/flat out. That was his explanation to me”. [14] When asked about his instructions to Mr El-Issa, Mr Hilton said that he told Mr El-Issa that he should not go to early on Bold Glance and that if he was not in contention, “don’t bash him”. Upon viewing the video of the race, Mr Hilton held to his opinion that he thought Mr El-Issa rode the race well but for the last 50-20 metres and thought Mr El-Issa could have been more vigorous. [15] Mr El-Issa was then called into the Steward’s room and asked for an explanation about his ride on Bold Glance. The Chairman outlined his concerns about the race and said this: “I felt you were riding the horse hands and heels in the early part of the straight. From a point probably leaving the 200 metres I became concerned with your lack of vigour on the horse. You didn’t pull the whip until well inside the 100 metres. I felt you hit the horse on two occasions, from my live observations back hand, and I felt over the last 75 metres you were very cold on the horse as far as the vigour of Bobby El-Issa goes” 6 . [16] Mr El-Issa responded to these concerns in a very straightforward fashion. The first issue he raised was the time of the race. He said the last 600 metres was run in a record time and the fastest for Bold Glance. Then when asked why he didn’t press the horse further in the last 50 or so metres, Mr El-Issa said that he was looking after Bold Glance because had six or seven weeks off. [17] Mr Aurisch expressed similar concerns to those of Mr Birch as did Mr Hackett who was in the tower at the 400 metres mark, which was just before the home straight. In response to the concerns raised by the other stewards, Mr El-Issa said this: JOCKEY EL-ISSA: The horse has had six – a fair while off, and I was actually just trying to look after the horse. Norm’s going to back him up in a couple of weeks’ time. I actually though the race was going to be run totally different. Norm told me to punch him out and then look after him, like I made Tierqualo work a bit and I come back and everything happened perfect. Tierqualo got tired and I was left a bit – I thought Chris Munce would be outside the leader, it didn’t work out that way. I camped in behind them, took my time getting to Tierqualo. 5 Transcript 26.2.11 page 2 L 25. 6 Transcript 26 February P4 L25. -- 5 of 16 -- 6 I got just about probably 100 metres after Tierqualo and the horse felt flat to me but he was kicking away, so I kept him straight, I was waiting for Essington in the last shot because I knew he had 53 and I had 571/2. I just nursed him as long as I could and then rode him and give him a couple of backhanders and rode him hands and heels. I mightn’t have been as vigorous as what he’s been but I thought the horse was going to be too good for him, I nursed him as long as I could and went for him, but the horse had his ears pinned back and he was given me his all. He was giving me his all. I never once come back on him. I never – moving my hands on him. Watch the video. How I ride vigorously every race is going to be different, but I haven’t broken rules of racing. [18] There was further questioning of Mr El-Issa about the ride but essentially, his justification for how he rode Bold Glance came down to four points, firstly; the horse had run the best time it had ever run which was 1:08. Secondly; that Bold Glance was carrying 57.5 kilos whereas Essington was only carrying 53 kilos. Thirdly; the horse had come back from a short break having won the Magic Millions and was not in the top form. Finally, he relied on his judgement as a professional and experienced jockey that he knew that the horse was at its maximum effort and further pressure on the horse would be futile. Mr El-lssa conceded that he did not ride the horse with the same vigour as he did in the closing stages of the Magic Millions but his justification for this was that the Magic Millions was an entirely different race. [19] During the course of the hearing the video of the race was shown. Both Mr Birch and Mr El-Issa gave an explanation of their observations of the race with Mr El-Issa explaining what he was doing at various stages, in particular in the last 80 or so metres. The video speaks for itself and it is obvious that when one compares Mr El-Issa’s ride on Bold Glance at Eagle Farm on the 26 February 2011 to the ride at the Gold Coast on 15 January 2011, there is a marked difference in the vigour of Mr El-Issa in the closing stages of both races. The video demonstrates, consistent with the evidence of Mr Birch and Mr Aurisch, that in the last 50 metres of the race Mr El-Issa used the whip sparingly, was not vigorous with the use of his hands in pressing the horse forward to the finish line, and was somewhat higher in the saddle as compared to the Gold Cost ride. It appears that his concentration on the finish at the Gold Coast was much more intense. [20] Mr El-Issa contends that this Tribunal should not make comparisons between the Eagle Farm ride and the Gold Coast ride because they are two entirely different races, in different circumstances over different distances. However, such a contention is artificial in the sense that when one considers the responsibility of any jockey in any field on any day, the jockey’s responsibility is to get the very best out of the mount irrespective of the conditions. In fact, the rules of racing make provision for that in ARR 135. As Mr Murdoch QC pointed out, it would be a sad day for racing -- 6 of 16 -- 7 if it was left to jockeys to make value judgments as to whether or not the horse should be tested to its maximum capacity in circumstance where the jockey makes a judgement that the horse is not in contention. Naturally, in every race there comes a point when a number of horses in the field are clearly not in contention. However, in circumstances where there is very little between the horses in contention approaching the winning post, it is the jockey’s responsibility to ensure that the horse is tested to its maximum ability. [21] The Stewards, on viewing the race live and then viewing the video of the race had every reason, based on their experience 7 to be concerned about Mr El-lssa’s ride. [22] We should pause here to say something about the experience of the Stewards. In cross examination, Mr Vasta QC sought to question the experience of the Stewards in making judgements about Mr El-Issa’s ride. This was done on the basis that Mr El-Issa called some notable jockeys to give expert evidence as to his ride on Bold Glance. The Stewards’ function on race day is not an easy one. They view each of the races from various towers around the race track to insure that the rules of racing are compiled with. They do so to maintain the integrity of the racing industry and to protect both connections, punters, trainers and jockeys. Strict compliance with the rules of racing ensures fairness, compliance with trainer’s instructions, and in so far as possible, that every horse in the field is given the best opportunity to win or place. Nothing less is expected by the public. [23] Each of the Stewards who observed the race was called in this hearing. Their evidence satisfied this Tribunal that their combined experience is considerable in terms of their training, practical experience and observation of races over many many years. Specifically, the evidence of Mr Palmer who is a very experienced jockey. [24] Importantly, they watch the same jockeys on a week in week out basis, become familiar with their riding style and can quickly ascertain whether there is any change or inconsistency with that riding style which may alternatively have some impact on the outcome of the race. They are also familiar with the form of the competing horses. We have no hesitation in accepting their evidence in this matter. [25] The evidence of the Stewards, from their own observations, and the evidence taken in the initial inquiry and subsequent hearings establish that they had reasonable grounds to charge Mr El-lssa with a breach of ARR 135(a) as a result of his ride on Bold Glance at Eagle Farm. However we also have to consider whether Mr El-Issa’s explanation for his ride exculpates him from any breach of the Australian Racing Rules. This is not meant to shift the onus of proof to Mr El-Issa but when confronted with 7 Refer to the affidavits of Messers Birch, Ausrisch, Palmer and Hackett. -- 7 of 16 -- 8 the DVD evidence and the Stewards’ evidence, an explanation is called for. Time of the race [26] We accept Mr El-Issa’s evidence that during the race he appreciated that it was being run at a fast pace. This of course is evident from the times that were ultimately published and, of course, his reliance on his experience as a jockey of many years. He could reasonably appreciate that the field was travelling at a very fast pace. [27] What we do not accept is that Mr El-Issa could appreciate, to the second, the speed of the race. He would not, and could not have known that when Bold Glance passed through the finish post he had run 1:08, his fastest time ever over 1200 metres. However Mr El-Issa did became aware of this fact immediately after the race and before he went into the Steward’s room. To suggest that, at 50 metres out from the finishing post Mr El-Issa knew that Bold Glance had nothing left to give because he had run the race in the fastest time ever is, in our view, a reconstruction based on facts that became known to him subsequent to the race. To a degree, Mr El- Issa relies on Mr Hilton’s instruction not to “bash him” if he was not in contention. The objective evidence from the DVD clearly establishes that Bold Glance was in contention, in the last 50 metres. Whether or not he would have won the race is irrelevant to our inquiry. Because we find as a fact he was in contention it was the jockey’s responsibility under the rules, and his obligations to the trainer and the connections, to test Bold Glance ether with more vigorous riding, or with use of the whip. [28] The DVD also demonstrates that in the last 100 metres, by comparison both to Mr Munce’s ride on Essington, and Mr El-Issa’s ride at the Gold Coast, Mr El-Issa barely used the whip, with no more than three or more cuts in circumstances when he knew Essington was challenging Bold Glance to the finish line. Even if it is accepted that Mr El-Issa was aware of the fact that Bold Glance had run the distance in the best time ever, it was still his responsibility to further encourage and test the horse in the last 50 metres to the line. [29] We do not accept Mr El-Issa's evidence that because of the time the race was run there was no point in pressing the horse further to the finish line with only metres to go. Bold Glance’s fitness [30] Mr El-Issa also relied on the fact Bold Glance was not at peak fitness as a result of the his “let up”. In fact, Mr El-Issa knew very little about Bold Glance’s “let up” subsequent to the Magic Millions. On the evidence, we find, that Bold Glance had a short spell for two weeks but in that time, he was put on the walker and swam. He then came back into work and was properly trained up to the Eagle Farm race. We accept Mr Hilton’s evidence that the horse was as fit, if not fitter, than his presentation at the -- 8 of 16 -- 9 Gold Coast. Mr Hilton expected Bold Glance to win at Eagle Farm. Again, irrespective of whether he won or not, he certainly had the fitness to take him over the 1,200 metres and had sufficient fitness to be tested vigorously, in the closing stages of the race. As Bold Glance was in contention down the straight, the instruction to Mr El-Issa not to “bash him” became irrelevant. We reject any reliance by Mr El-Issa on the notion that Bold Glance was not up to the task because he had been out for some weeks. [31] We were impressed with Mr Hilton’s evidence. It was consistent with the evidence he gave before the Stewards and his observations about how Mr El-Issa rode Bold Glance in the final 200 metres we found of assistance and we accept it. Weight handicap [32] Bold Glance came in as a favourite in the race with the top weight of 57.5 kilos. This is obviously a handicap to the horse and a matter to be taken into account. However Mr El-Issa, as an experienced jockey also knows the horse is carrying this weight, and to his credit, as commented by the observers of the race, he nursed the horse comfortably to the home turn. As the horse came down the home straight there was no suggestion that the horse was seriously tiring. Mr Hilton observed, as did the Stewards that or about the 50 metre mark it appeared that Mr El-Issa stoped riding him. Irrespective, again, of the weight issue it was Mr El-Issa’s responsibility to test the horse all the way to the finishing post. This he did not do. The use of the whip [33] Mr El-Issa says that he is very conscious about the use of the whip due to his recent breaches of the rules in respect of whip use. He claims that he has accumulated fines of about $9,000 for breach of the whip rule. [34] Australian Racing Rule 137A sets out, quite specifically, how a whip can be used in a race, official trial or jump outs. Subsection (5) states that in the final 100 metres of a race, the whip can be used at the jockey’s discretion. [35] Mr El-Issa, to reiterate, is a very experienced jockey. It is his professional responsibility to be familiar with all of the rules of racing, insofar as they apply to jockeys, and specifically as to when he cannot use the whip. We therefore consider his reliance on a fear for being breached for overuse of the whip in the last 100 metres is without substance. Other evidence [36] Mr El-Issa called a number of very experienced jockeys to comment on his ride at Eagle Farm on 26 February 2011. He also called Mr Ferris -- 9 of 16 -- 10 Jermanus who was presented as a person with a particular expertise in timing or clocking of horses both in races and trials. [37] Mr Jermanus was given the video of the race which he viewed on “at least ten occasions” 8 and made the comment that in considering Mr El-Issa’s ride on Bold Glance, one had to take into account the time of the race, the manner in which the horse was ridden over the 200 metres from the winning post, the riding tactics, a break up of the times that is the first 100 metres, second 100 metres in the last 200 metres, the various weights between the horses in contention (Bold Glance and Essington) and the observations of the Stewards. His evidence did not really advance the case that Mr El-Issa’s ride was consistent with taking all of those factors into account. Mr Jermanus is a long term friend of Mr El-Issa and although his evidence was given in an objective manner his was not truly independent in that he had had given advice to Mr El-Issa about his riding style in recent years. Mr Jermanus’s evidence was not particularly helpful. [38] Ron Quinton is a retired jockey and has ridden in and won many races over his riding career. His expertise as a jockey could not be questioned. He is familiar with Mr El-Issa’s riding style having had Mr El-Issa as an apprentice when he first started riding. He viewed the race and said that from his this observation, Mr El-Issa did nothing to prevent Bold Glance from doing its best on the day. Mr Quinton seemed to be focused on the result of the race not so much, on Mr El-Issa’s riding of the horse in the last 50 metres. More importantly, he was not shown the DVD of the Magic Millions race where Mr El-Issa rode Bold Glance in a much more vigorous style. Unfortunately, Mr Quinton’s evidence was somewhat coloured by information that he had been given that Bold Glance was “soft in condition”. Had he seen the Gold Coast race, he would have been in a better position to compare the two rides 9 . He was of the view that Essington had Bold Glance covered and was going to win and that Mr El- Issa did nothing to stop Bold Glance from winning. He did agree with Mr Murdoch that the horse will “switch off” unless the pressure is maintained by the jockey, although he didn’t think that Bold Glance did this. [39] Leonard Dittman (also known as Mick), another well known jockey, gave evidence of a similar nature to Mr Quinton. He did not see the Gold Coast race either. 10 He looked at the Eagle Farm race in isolation. He didn’t notice any change in style in the riding from the 200 metres although he did accept that if it was known the horse did respond to pressure, it was the jockey’s obligation to apply pressure until the horse was no longer in contention. His opinion was that there was nothing improper about Mr El- Issa’s ride. [40] Michael Pelling is an experienced jockey having had a riding career of over 28 years as a jockey at professional level. He was given the DVDs of the 8 Exhibit 8 –paragraph 7. 9 Mr Quinton gave evidence by telephone so it was not possible to show him the Gold Coast race. 10 He also gave evidence by telephone. -- 10 of 16 -- 11 Eagle Farm race as well as the Gold Coast race. He was also given a copy of the transcript of the affidavits of the various Stewards. [41] He, like others was not critical of Mr El-Issa’s ride on Bold Glance until the home turn. But once again, Mr Pelling seemed to be somewhat misguided as to what he had to address. In this statement 11 he said: “I do not believe, irrespective of how many times jockey El-Issa hit the horse with the whip that Bold Glance was ever going to win the race. Once this horse had him covered Bold Glance was never going to win. In the end Munce’s horse had a relatively easy win”. [42] Mr Pelling also made comments about the fitness of the horse and the time it ran to support his conclusion. He was told when preparing his statement that the Bold Glance was “a little under done” and that the horse was not fit. He agreed with Mr Murdoch that on the Gold Coast, the horse responded to the whip and with vigorous riding. He accepted that there was a lack of vigour at the conclusion of the race at Eagle Farm. This is particularly so if it is assumed that the jockey knew that the horse responded to pressure. [43] We were impressed with Mr Pelling’s evidence. He was responsive to questions, thoughtful and had reviewed all of the relevant evidence so he was in a position to give an informed opinion about the ride. [44] Mr Pelling’s evidence on the whole is more consistent with the observations of the Stewards as opposed to the evidence of Mr Quinton, Mr Dittman and Mr Jermanus. Although, the views of Mr Dittman and Mr Quinton command respect having regard to their own involvement in the racing industry, as they were not armed with all of the relevant facts, which included the vision of the Gold Coast ride as well as accurate information about the condition of Bold Glance going into the race, their evidence does not carry sufficient weight to outweigh the opinions expressed by the Stewards. Furthermore, they seem to be predisposed to a question of whether Bold Glance would have won the race with the application of pressure and more vigorous riding as opposed as to how Mr El-Issa should have ridden the horse in closing stages when he was in contention. They conceded that the horse was in contention but being challenged by Essington. [45] We have therefore come to the conclusion that the reasons and justifications given by Mr El-Issa for the way he rode Bold Glance in the home straight should be rejected. The end result is that the Stewards’ evidence, coupled with that of Mr Pelling and Mr Hilton is to be preferred. This is also consistent with the objective evidence contained in the DVD, particularly when compared with Mr El-Issa’s ride in the Magic Millions. Australian Racing Rule 135 11 Exhibit 7 paragraph 11. -- 11 of 16 -- 12 [46] To establish that Mr El-Issa has breached of ARR 135(a) the Stewards have elected to prove that he deliberately and consciously did not allow Bold Glance to run on its merits. 12 The Stewards in adopting this course also assumed the burden of proof in proving the charge to the reasonable satisfaction of the Tribunal. 13 Given the seriousness of this charge and its obvious consequences, the standard of proof is high, meaning that although the charge does not have to be proved beyond a reasonable doubt, there has to be sensible, and probative evidence to support the allegation made because such conduct would involve moral turpitude 14 . [47] The alternate charge to this that every rider shall give his horse all reasonable and permissible measures to insure the horse is given full opportunity to win or obtain the best possible place in the field. This does not necessarily involve a deliberate or conscious act or moral turpitude on the part of the jockey. It means that a rider did not, perhaps, take an opportunity that was open to the rider or perhaps would have taken some other measure to give the horse the best opportunity in the field, for example, the rider in considering a number of options may have chosen the wrong option. [48] Here, it is contended by the Stewards that Mr El-Issa deliberately and consciously did not ride Bold Glance home when there was no obvious reason for him not to in circumstances when the horse was clearly in contention. [49] Mr El-Issa sought to explain his ride to the Tribunal whilst watching the video. However, as we have indicated his explanations about the time of the race, the extra weight, the freshness of the horse and that the horse had nothing left is inconsistent with what one objectively sees on the video, and is internally inconsistent with the ride at the Gold Coast. We do not accept his evidence about his manner of riding whilst the DVD was being played. He overstated his actual actions and his use of the whip. He was critical that the Stewards did not inspect Bold Glance to determine if there were any welts from the use of the whip, but once again the vision speaks for itself. We find that Mr El-Issa’s evidence lacked creditability. [50] We find that Mr El-Issa made no conscious effect when threatened by Essington, to put his mount under further pressure to see if it would respond in circumstances where the evidence from Mr Hilton and his earlier ride suggests that Bold Glance will respond to pressure. There is no use of the whip, no obvious use of the hands to urge the horse forward and his seat position is inconsistent with the Gold Coast ride. Having preferred the evidence of the Stewards, and the trainer, Mr Hilton, we have come to the conclusion that this was not a case of failing to give the horse all reasonable and permissible measures to obtain the best place in the field but a deliberate and conscious act on Mr El-Issa’s part not to ride 12 A Stewards report 1 April 2011 page 2. 13 Briginshaw v Briginshaw (1938) 60 CLR 336 at 362. 14 Justice v South Australian Trotting Control Board (1989) 50 SASR (613). -- 12 of 16 -- 13 Bold Glance on it’s merits. We are comfortably satisfied to the requisite standard that he is in breach of ARR 135(a). 15 Therefore the Stewards decision in this regard should be confirmed. We will deal with penalty later in these reasons. Australian Racing Rule 137(a) [51] Mr El-Issa was also charged with improper riding under ARR 137(a). The particulars of “improper” riding is, it is contented by Racing Queensland, his association with a known punter, Steven Fletcher. [52] In the days subsequent to the initial inquiry, 16 the Stewards took in a considerable body of evidence which included betting sheets from Mr Fletcher to draw an inference that there was a correlation between Mr Fletcher’s betting and Mr El-Issa’s ride on Bold Glance, and other horses for that matter. Mr Fletcher regularly laid bets on horses ridden by Mr El- Issa that is, the bets were placed for Mr El-Issa’s horses to lose rather than to win. On the day of the Eagle Farm race, Mr Fletcher backed Bold Glance to lose and Essington to win. [53] It was suggested by Mr Vasta that the Stewards had a keen eye on Mr El- Issa because they were armed with certain information from Betfair, namely that it had discovered a correlation between the horses ridden by Mr El-Issa and those laid by Mr Fletcher. Essentially what is being alleged in plain language is that the races were being fixed by Mr El-Issa riding to lose. [54] We don’t see any need to explore this association in this application for two reasons. Firstly, we consider that having found that Mr El-Issa has breached ARR 135(a) to then prosecute him under 137(a) would be duplicitous. Secondly; in so far as Racing Queensland seeks to rely on a association between Mr El-Issa and Mr Fletcher to establish improper riding within the meaning of ARR 137(a), we have come to the view that even if the association existed, it would not support the particulars of improper riding because Rule 137 is confined to the manner of riding by the jockey. Duplicity [55] The concept of duplicity is well known in the criminal law jurisdiction. As a matter of principle, we see no reason why it should not apply to disciplinary proceedings under the Australian Racing Rules simply because the sanctions for breach can be quite severe. We have support for that view in Eckersley v Medical Board of Queensland17 where the President was content to proceed on the assumption that the rule against duplicity in a charge of a criminal nature has application to a charge of professional misconduct before a disciplinary Tribunal. 15 Briginshaw, supra. 16 1 March 2011 and 1 April 2011. 17 (1998) 2 QDR 453. -- 13 of 16 -- 14 [56] In concluding that Mr El-Issa breached of ARR 135(a), the Tribunal has found that Mr El-Issa has engaged in a deliberate and conscious act. As was put to Mr Murdock, if this was the decision, then surely that must constitute improper riding. Mr Murdoch agreed with this proposition. [57] The general principle seems to be that where a number of acts of a similar nature are committed at the same time and place in such a way they could fairly be regarded as forming part of the same transaction then, they should be charged as a single breach 18 . [58] When the question of duplicity was raised with counsel for the Applicant, he contended that the charge under 137(a) would be duplicitous if Mr El- Issa was found to have breached 135(a). No authorities were provided to assist the Tribunal both in respect of whether the rule applies to disciplinary matters under review, or alternatively, the general principles that might apply in this situation. However it does seem to us that, as a matter of common sense, he cannot be charged with a breach of both rules the substance of which is essentially the same. [59] If we are wrong in this view, then the conviction under 137(a) must still be set aside because the particulars relied upon in support of the improper riding charge relate to matters which do not fall within the ambit of the rule. Rule ARR 137(a) must be construed having regard to the whole of the rule, and goes to the nature of the riding by the jockey. [60] The balance of ARR 137(a) refers to careless, reckless, incompetent or foul riding. All of these descriptors relate to the manner of riding. Sub rules (b), (c) and (d) similarly describe actions which involve the manner of riding. Ensuring the horse is ridden out to the end of the race; prohibiting the making of a celebratory gesture prior to the mount passing the winning post; and excessively slowing or checking the speed of the horse to cause interference. Each relate to the jockey’s manner of riding. [61] To suggest that “improper” should take on another meaning or connotation such as is contended for by Racing Queensland is repugnant to the overall context of the rule. It was submitted by counsel for the applicant that if the ejusdem generis rule were to be applied “improper” should have to take on the same meaning, in context as the balance of the words in the sub rule, which clearly relate to the manner of riding. We agree on the plain meaning of “improper” in context refer to the manner of riding but in applying the rule of construction reinforces our view. We are mindful that the ejusdem generis rule must be applied with caution19 . Penalty 18 Walsh v Tattersall (1996) 139 ALR 27. 19 Cody v F. H. Nelson Pty (1947) 74 CLR 629 and followed in Pepper v Attorney General [2008] 2 Qld R 353. -- 14 of 16 -- 15 [62] Mr El-Issa also seeks a review of the penalty imposed of a two year disqualification for the breach of ARR 135(a). [63] Given the seriousness of the breach, a disqualification is warranted. However we do have some difficulty in determining, afresh, the period of the disqualification. The difficulty arises because the Stewards have not been able to produce any comparative penalties because the Rule is rarely applied. [64] The Applicant also did not provide any comparative decisions but simply submitted that the penalty was excessive in the circumstances. Those circumstances included Mr El-Issa’s family situation with very ill young child who requires regular and ongoing medical care. Mr El-Issa’s only source of income is from riding. The disqualification prohibits him from not only riding in races but also attending the track to do time trials and track work. This will have significant financial consequences. In addition, his reputation as a professional jockey will be affected resulting in fewer rides on competitive horses. We take these submissions into account. [65] Racing Queensland rely on Mr El-Issa’s riding record which is replete with breaches of the Rules. Most are breaches of ARR 137(a) resulting in suspensions, monetary penalties and reprimands. His record demonstrates that Mr El-Issa has little regard for authority, the rules and in turn, the connections and trainers who are reliant on his skill and expertise to ride their mounts without the risk of protest or disqualification. It was hoped that his attitude would change after this Tribunal gave him the benefit of the doubt when he reviewed a decision by Racing Queensland to cancel his licence because he was not a fit and proper person to be licensed. 20 [66] Unfortunately the Stewards, in imposing the penalty of two years disqualification, give some guidance as to how they arrived at that decision. They said in the Stewards’ Report: “Stewards informed jockey El-Issa that his conduct had the capacity to cause considerable damage to the image of thoroughbred racing in Queensland. With this in mind stewards felt a penalty which reflected the serious nature of the offence and served to provide a specific and general deterrent which illustrated to the sports participants and its supporters that conduct such as this would not be tolerated was required.” [67] It is not clear to which charge the above comments relate, or whether they are in respect of both. The Stewards took into account his riding record but it is unclear what else was considered. This would have been helpful in this matter because there are no comparable cases to give support to the decision. We are, of course, obliged to consider the penalty by way of fresh hearing but cannot do so in a vacuum. 20 El-Issa v Queensland Racing Ltd OCR002-10 19 February 2010. -- 15 of 16 -- 16 [68] Although Mr Birch made it clear that the basis for the charge under ARR 135(a) was the objective observation of his ride on Bold Glance rather than his association with Mr Fletcher, the association found to support the charge under ARR 137(a) was still a consideration when the penalty was imposed. Given our findings, and the basis upon which Racing Queensland have chosen to proceed, that association can now have no bearing on the determination of penalty. [69] Racing Queensland has produced a printout from the national database which gives an indication of the length of disqualifications for a breach of ARR 135(a). The disqualifications range from between 3 months to 18 months but there is no detail as to the circumstances of the individual case nor the reasons for the imposition of the penalty. It is of limited assistance. Comparable case indicate that a breach of ARR 135(b) attracts a penalty of up to about 6 months depending on the circumstances. As this is a lesser charge not involving a deliberate and conscious act, a breach of ARR 135(a) is obviously more serious. [70] The imposition of a penalty must not only sanction the jockey’s conduct but it must also serve as a deterrent to others to ensure the integrity of the racing industry, as a whole, is maintained. In that respect we adopt the comments of the Stewards. As we have remarked earlier all those associated with racing are entitled to expect that every horse in every race will be run on its merits. [71] Taking all of these matters into account, including Mr El-Issa’s riding history with numerous suspensions, fines and reprimands, we have come to the decision that a penalty of 18 months disqualification will address these competing interests. Decision [72] Therefore in respect of the breach of ARR 135(a) the Tribunal proposes to confirm the Stewards’ decision. In respect of the breach of ARR 137(a) and the penalty for the breach of ARR 135(a) we propose to set aside the Stewards’ decision and substitute the Tribunal’s own decision. 21 The decision of the Tribunal is as follows: (a) The Respondent’s decision that the Applicant is in breach of ARR 135(a) is confirmed; (b) The Respondent’s decision that the Applicant is in breach of ARR 137(a) is set aside; (c) The Respondent’s decision that the Applicant be disqualified for a period of 2 years is set aside and in lieu thereof he be disqualified for a period of 18 months from 1 April 2011. 21 QCAT Act, section 24. -- 16 of 16 --