El-Issa v Racing Queensland Limited [2011] QCATA 280

CITATION: El-Issa v Racing Queensland Limited [2011] QCATA 280 PARTIES: Mr Bobby El-Issa (Appellant) v Racing Queensland Limited (Respondent) APPLICATION NUMBER: APL206 -11 MATTER TYPE: Appeals HEARING DATE: 31 August 2011 HEARD AT: Brisbane DECISION OF: Justice Alan Wilson, President Peta Stilgoe, Member DELIVERED ON: 9 September 2011 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal granted. 2. Appeal dismissed. CATCHWORDS: APPEAL – LEAVE TO APPEAL – RACING – APPEAL AGAINST PENALTY – where the applicant was charged with breaches of rr 135(a) and (b) and 137(a) of the Australian Rules of Racing (AAR), found guilty and disqualified from riding for a period of two years – where the applicant appealed the Stewards’ decision to the QCAT – where the Tribunal confirmed the Stewards’ findings in relation to AAR 135(a) but set aside the Stewards’ decision in relation to AAR 137(a) – where the applicant seeks to appeal that decision – whether Reasons for decision sufficient – moral turpitude – whether discretion properly exercised – whether Members incorrectly considered allegation of moral turpitude – whether leave to appeal should be granted – whether grounds for appeal Australian Rules of Racing, rr 135(a), -- 1 of 7 -- 2 135(b), 137(a) Queensland Civil and Administrative Tribunal Act 2009, s 142(3)(b) Coroneos v Medical Board of Queensland [2002] QCA 347, cited Dinsdale v R (2000) 202 CLR 321, cited El-Issa v Racing Queensland Limited [2011] QCAT 230, cited Justice v South Australian Trotting Control Board & Ors (1989) 50 SASR 613, cited APPEARANCES and REPRESENTATION (if any): APPLICANT: A J H Morris QC with S Di Carlo RESPONDENT: J Murdoch SC REASONS FOR DECISION The President [1] In this matter the Appeal Tribunal consisted of Ms Stilgoe, QCAT Member and me. I have had the benefit of reading her Reasons in draft. I agree with her conclusions, and the order she proposes. [2] The learned QCAT Members who reviewed the original decision took pains to distinguish between the charges brought against Mr El-Issa under different rules of racing. In particular, they decided not to ‘explore the association’ alleged by the Stewards to exist between him and a well- known punter, and forming the particulars of the charge under Australian Rules of Racing (ARR), r 137. [3] But they went further: at [54] of their Reasons of 3 June 2011 they made the specific finding that even if that association existed, it would not support the charge under that rule. It is plain, from the passage in which this finding is made, that they were at pains not to let any inference arising from that charge, or any evidence related to it, affect the exercise of their discretion when they came to decide the appropriate penalty under ARR 135(a). [4] When they came to discuss penalty at the end of the Reasons, at [62]- [71], they cited a passage from the Stewards’ decision but in a context which, again, makes it clear they were not allowing themselves to be influenced by any evidence or anything related to the charge under ARR 137. Indeed, at [68], they make it clear that that is the case: ‘that association (that is, the jockey’s alleged association with the punter) can now have no bearing on the determination of penalty’. -- 2 of 7 -- 3 [5] It is also said, for Mr El-Issa, that a reference in the decision to ‘moral turpitude’1 has wrongly affected the sentencing discretion. No further reference to it appears, however, in the passages at [62]-[71] where the factors affecting penalty are discussed. The reference at paragraph [70] of the importance, to the sport, that every horse shall be run on its merits is simply a reference to ARR 135(a) itself, and does not suggest a finding of moral turpitude. The particular findings about what was wrong with the way Mr El-Issa rode the horse are set out in paragraph [50]: the finding, at the end of that paragraph, that the breach of the rule involved a ‘… deliberate and conscious act … not to ride Bold Glance on its merits’ is, for the reasons which precede it, reasonably open. I agree with the Reasons, and conclusions, Ms Stilgoe has expressed about this submission. [6] It was said, too, that a disqualification was excessive and Mr El-Issa should simply have been suspended. At [63], however, the learned Members make the specific finding that the breach is ‘serious’ and, in light of the other factors they then set out, it cannot be said that disqualification is excessive. [7] The attack made upon the exercise of the discretion about penalty does raise a question of law in the sense explained by Ms Stilgoe, and I agree that leave to appeal ought be granted. For the reasons just set out, however, I do not think the decision involves any error in the exercise of that discretion and the appeal should be dismissed. In particular, the passages in the Reasons which were seized upon by the appellant as indicating some confusion on the part of the learned Members or, at worst, the possibility that they allowed extraneous or irrelevant considerations to affect the sentencing discretion do not, again for the reasons just set out, reveal any error. Ms Stilgoe [8] Mr El-Issa rode Bold Chance into second place behind Essington in Race 7, the Maguires Hotel Falvelon Handicap at Eagle Farm on 26 February 2011. [9] The Stewards convened an inquiry into Mr El-Issa’s ride immediately after the race because they were of the view that he did not ride Bold Glance appropriately over the last 200 metres of the race. [10] At the conclusion of the inquiry, Mr El-Issa was charged with breaches of rr 135(a) and (b) and 137(a) of the ARR, found guilty and disqualified from riding for a period of two years. The particulars of both charges under AAR 135 were: 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 1 At paragraph [46]. -- 3 of 7 -- 4 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. [11] The particulars of the charge under AAR 137(a) were: [Mr El-Issa] did ride in an improper manner in that he deliberately and consciously failed to exercise sufficient vigour on BOLD GLANCE inside the final 200 metres when challenged by ESSINGTON for the leading position, and he did so to ensure the success of wagers placed by an associate, namely Mr Stephen Fletcher who had backed the winner ESSINGTON to win and had laid BOLD GLANCE. [12] Mr El-Issa appealed the Stewards’ decision to the QCAT. The learned Members who heard the matter confirmed the Stewards’ findings in relation to AAR 135(a) but set aside the Stewards’ decision in relation to AAR 137(a). They also set aside the Stewards’ penalty of a two-year disqualification, and substituted a period of disqualification of 18 months. [13] Mr El-Issa has appealed that decision. Although the submissions filed with the application raised issues about the learned Members’ findings on the substantive charges, it became clear at the hearing of the appeal that Mr El-Issa now only challenges the period of his disqualification – and, also, contends that he should have been suspended, and not disqualified. [14] Because the appeal involves questions of mixed law and fact, leave to appeal is necessary.2 The learned Members’ Reasons for the decision contain, with respect, some passages that may be open to more than one construction and they were seized upon by Mr El-Issa’s representatives as signifying errors of law. [15] Alternatively, the way the Reasons are expressed leaves open, it is said, the possibility that in the exercise of their discretion the learned Members took the wrong factors into account so that the exercise of their discretion miscarried. Further, it is an accepted principle that the imposition of a manifestly excessive penalty is an error of law.3 Uncertainty about the precise meaning of certain passages in the Reasons, and their effect on the decision and the discretionary elements of it, and the attack upon penalty as manifestly excessive mean that leave to appeal should be granted. 2 QCAT Act, s 142(3)(b). 3 As it applies to tribunals, see Coroneos v Medical Board of Queensland [2002] QCA 347. -- 4 of 7 -- 5 [16] Counsel for Mr El-Issa argues that the learned Members took into account considerations of moral turpitude when there was no evidence to support such a finding. The basis for the argument is: a) The learned Members found that, given the seriousness of the charge under ARR 135(a): ‘there has to be sensible, and probative evidence to support the allegation made because such conduct would involve moral turpitude’;4 b) Moral turpitude involves conduct that is contrary to community standards of justice and honesty; c) The learned Members adopted the comments of the Stewards;5 d) The comments of the Stewards were fatally flawed because they had regard to Mr El-Issa’s association with a punter, Mr Fletcher; e) There was no cogent evidence of that association before the learned Members; f) Because there was no evidence that Mr El-Issa actively restrained Bold Glance, there was no other evidence of moral turpitude before the learned Members; and, g) The learned Members give no clear or cogent reasons why they imposed a penalty at what is said to be the very top of the range usually applied in these cases. [17] Mr El-Issa is prepared to accept a ‘normal’ penalty of two to three months but, he argues, there is no basis for the extreme penalty imposed by the learned Members. [18] Counsel for Racing Queensland argued that the relevant moral turpitude was articulated in the Stewards’ inquiry as something different from the alleged association with Mr Fletcher: To not allow a horse to run on its merits strikes at the very heart of the integrity of the sport of thoroughbred racing. Every participant in the sport that derives a livelihood from the sport bears the burden of maintaining its integrity. … To offend in circumstances such as these in a feature race in Queensland’s premier race venue with nationwide coverage is inexcusable. … The connections of Bold Glance … trusted that you would conduct yourself with their best interests at heart … you betrayed that trust … . Conduct such as this has the capacity to cause considerable damage to the image of thoroughbred racing and turn away supporters of the sport … .6 [19] It was argued that these comments translate into the learned Members’ decision and that the adoption of the Stewards’ comments was not 4 El-Issa v Racing Queensland Limited [2011] QCAT 230 at [46]. 5 At [70]. 6 Transcript of proceedings 1 April 2011 at pp 68-69. -- 5 of 7 -- 6 irrationally chosen but related specifically to the charge under ARR 135(a). In that context, it is argued, the Stewards’ comments were appropriate and free of error. [20] Counsel for Racing Queensland also argued: a) The alleged relationship with Mr Fletcher was only relevant in the context of the charge under ARR 137(a), and the Reasons do not suggest the learned Members wrongly allowed it to affect their discretion in deciding an appropriate penalty; b) A breach of ARR 135(a) is not a ‘run of the mill’ charge. It is rarely laid and a finding of guilt is rare; c) While a penalty of two to three months may be appropriate for a charge under ARR 135(b), it is not appropriate for the more serious charge under ARR 135(a). d) Given Mr El-Issa’s poor record, the penalty imposed by the learned Members was appropriate. [21] I agree with Racing Queensland’s submissions that, despite the comments of O’Loughlin J in Justice v South Australian Trotting Control Board & Ors7 moral turpitude is not a necessary element of a charge under ARR 135(a). Nevertheless, it is a serious charge. While it may not be necessary to prove ‘conduct that is contrary to community standards of justice and honesty’, it is necessary to prove, as the learned Members observed, a deliberate or conscious act. That can be an act of omission. [22] The learned Members’ Reasons may not have the clarity of expression that one might expect in a perfect world. That, in itself, is not a reason for this Tribunal to substitute its own penalty, nor is it enough that the Appeal Tribunal may have a different view of the appropriate penalty.8 Mr El-Issa must point to an error in the exercise of the learned Members’ discretion. [23] The task of imposing a penalty involves a balance between the severity of the offence, the need for deterrence, and any mitigating factors. The learned Members knew that the penalty for an offence under ARR 135(a) ranged from between 3 and 18 months.9 [24] I am satisfied that the learned Members specifically excluded Mr El-Issa’s alleged association with Mr Fletcher from their considerations on penalty.10 I am also satisfied that the learned Members properly considered: that this offence is a very serious one;11 that there was a need for deterrence;12 and, the mitigating factors of Mr El-Issa’s personal 7 (1989) 50 SASR 613 at 623. 8 Dinsdale v R (2000) 202 CLR 321. 9 At [72]. 10 At [68]. 11 At [66]. 12 At [73]. -- 6 of 7 -- 7 circumstances.13 They also, properly, had regard to factors of aggravation evidenced by Mr El-Issa‘s poor riding record.14 [25] The learned Members’ decision to impose a penalty at the higher end of the range can be explained. I am unable to conclude that the learned Members should have given a different weight to the factors they considered and I can find no manifest error in the exercise of their discretion. The appeal should be dismissed. 13 At [67]. 14 At [68]. -- 7 of 7 --