Abbott v Racing Queensland Ltd [2010] QCAT 668

CITATION: Abbott v Racing Queensland Ltd [2010] QCAT 668 PARTIES: Mr Justin Kent Abbott v Racing Queensland Ltd APPLICATION NUMBER: OCR268-10 MATTER TYPE: Occupational regulation matters HEARING DATE: 29 November 2010 HEARD AT: Brisbane DECISION OF: Peta Stilgoe, Presiding Member William LeMass, Adjudicator DELIVERED ON: 21 December 2010 DELIVERED AT: Brisbane ORDERS MADE: The respondent’s decision of 20 October 2010 is set aside. CATCHWORDS : HARNESS RACING – where stewards found applicant did not race with vigour – where applicant had clear run to the finish line – where applicant did not whip horse – where applicant appeared to “hold up” horse – where applicant’s horse ran second to stable mate – whether applicant’s style of driving amounted to a failure to race with vigour – where stewards failed to call evidence from driver of stable mate Australian Harness Racing Rules (AHRR), AHRR147(1), AHRR150(1), AHRR149(1) APPEARANCES and REPRESENTATION (if any): APPLICANT : Mr S Baldwin, Solicitor Turnbull & Company RESPONDENT: Mr M Knibbs, Chief Stipindiary Steward -- 1 of 8 -- REASONS FOR DECISION [1] Mr Abbott is the owner and trainer of Jack And Simon. On 8 October 2010, in race 8 at the Gold Coast, he was also the driver. Mr Abbott seeks a review of the Stewards’ decision made on 20 October 2010 that, on 8 October 2010, he breached rule 147(1) of the Australian Rules of Racing (“the rules”): “a driver shall race a horse on its merits”. [2] The particulars of the breach are expressed as: “1. That you shifted your horse on the straightening to the inside of Jilliby Lightning, the stable mate and eventual winner, availing Jack And Simon to clear and uninterrupted running in the home straight, and then failed to drive your horse with any vigour when you had full opportunity to do so, and 2. That such driving prevented Jack And Simon from racing on its merits.” [3] Racing Queensland also contends that Mr Abbott breached rule 149(1): “A driver shall take all reasonable and permissible measures during the course of a race to ensure that the horse driven by that driver is given full opportunity to win or obtain the best possible place in the field.” [4] The particulars of that charge are: “1. That you shifted your horse on straightening to the inside of Jilliby Lightning, the stable mate and eventual winner, availing Jack And Simon to clear and uninterrupted running in the home straight, and then failed to drive your horse with any vigour when you had full opportunity to do so, and 2. That such driving did not ensure that Jack And Simon was given full opportunity to win or obtain the best possible place in the field.” [5] Racing Queensland says Mr Abbott’s actions were a blatant and deliberate attempt to hold back Jack And Simon. It says that the stewards were justified in their decision because Mr Abbott: a. Did not use the whip; b. Did not move his hands; c. Kept his reins taut at all times; d. Allowed Jack And Simon to run the last ¼ of the race at a slower pace than the horse could achieve and has, in other races, demonstrated it can achieve. The evidence [6] The parties are entirely at odds with their interpretation of the evidence in this matter. Racing Queensland urges the Tribunal to interpret the actions of the applicant as pulling the horse in order to deliberately throw the race to its stable mate and Mr Abbott urges the Tribunal to find that the very same actions constituted the urging of the horse in a more subtle manner over the final 200 metres. -- 2 of 8 -- [7] Racing Queensland provided the tribunal with a DVD of the race. Mr Knibbs, appearing for Racing Queensland, drew the tribunal’s attention to the following: a. Jack And Simon followed its stable mate Jilliby Lightning driven by Dean Belford, a horse also trained by the applicant, for almost the whole of the race of 1600 metres. Upon reaching the final 180 metres of the race, in the straight, Mr Abbott was able to obtain a clear and unimpeded running on the inside of Jilliby Lightning through the sprint lane. b. Mr Abbott’s clear run through the sprint lane. c. Mr Abbott’s conduct as a driver is in stark contrast to each and every other driver of the race in that all of those other drivers have taken to their horses vigorously with the whip to encourage them to a successful finish. Mr Abbott is not whipping the horse. d. Mr Abbott is seen on the inside rail to have an almost perfect finishing position but is sitting in his sulky appearing to be leaning back in his posture and from time to time moving his right hand. e. Jack And Simon makes up almost 3.5 metres but loses by a head. [8] Mr Knibbs also showed further DVD footages of races on 22 September 2010 and 29 September 2010. Relevantly the Tribunal could see that on 22 September 2010 Mr Abbott appeared to be leaning back in the sulky and may have used the rein. In the second race of 29 September 2010 Jack And Simon was driven by Mr Belford. The DVD of that race shows conclusively that Mr Belford used the whip. Mr Knibbs invited the tribunal to conclude that in view of the evidence it should be accepted that the horse can be vigoured with the whip and should have been given the same treatment on 8 October 2010. [9] Racing Queensland also relied on the transcript of the stewards’ inquiry. After viewing the race Mr Abbott states at page 7 of the transcript: I’ve gone forward on the horse but I haven’t abused him or wailed on him. I think that is why he has gone the best tonight. From an outsider looking in maybe it does look bad…” Oh it looks bad looking at that but it wasn’t – I’m dirty I done my money on the race” The Chairman: … now from that point there you laid back in the sulky Mr Abbott: I laid back in the sulky all the time.” [10] At page 12 of the transcript, this conversation is recorded: Mr Abbott: … I drove him different tonight and kept him brave instead of flogging him. He’s an old horse, The Chairman: Well that may or may not be the case but tonight the horse obviously has been driven without being urged forward by the whip in the run for the finish -- 3 of 8 -- Mr Abbott: Yes … Mr Abbott: Because every other time that he gets wailed on he usually stops” [11] At page 13: Mr Abbott: From the outside looking in guilty as sin but you have got to actually know the horse” [12] The stewards then adjourned the investigation to allow them to look at other material including other races and Mr Abbott’s betting accounts. The inquiry was reconvened on Wednesday 20 October 2010. At page 18 of the transcript the Chairman put to Mr Abbott: And in particularly its last start where it won quite easily it is quite clear Mr Belford probably has put the horse under the whip over the last 300 metres and has won quite well. Mr Abbott: I disagree with that … Mr Abbott: Yes he touched the horse on the tail passed 400 with the whip and he wanted to pull up when he was kicking away from Move It Move It he then jammed up again and so he was then hitting the shaft with the thing I told him not to hit the horse after I had driven the horse at the Gold Coast the previous start.” [13] The tribunal heard from three witnesses. Mr Belford had driven Jack And Simon in a winning race on 29 September 2010 and was driving Jilliby Lightning, the winner of the race in question. He told the tribunal: a. That on the race of 29 September 2010 Mr Abbott instructed him not to use the whip at all on Jack And Simon. b. During the race he in fact pulled the horse’s earplugs; c. Over the last 400 metres he did not, as it appears on the DVD, strike the horse with the whip but rather he repeatedly struck the sulky with the whip in order for the noise and vibration to urge the horse along. d. On 8 October, from the 200 metre mark Mr Abbott was “coming at me pretty strong” and “he was making good ground on me”. e. After some 5 races with Jack And Simon, Mr Abbott discovered that it was best not to use the whip on this horse but he (Mr Belford) thought the horse responded well on 29 September 2010 to the pulling of the ear plugs. [14] Mr Abbott was then called and gave his evidence. He said that: a. He was one of the top two trainers in the USA and had some 688 starts with 172 wins and 111 thirds. -- 4 of 8 -- b. On 8 October the weather at the Gold Coast was very wet and that he was required to wear goggles and a mask which were covered in mud by the end. c. At the 200m mark, he obtained a clear line and “reined up”. Mr Abbott explained that this meant he slapped the reins on the horse’s flank with his right hand, d. Following this he “juggled up the bit” (he pulled the bit into the horses mouth) and expected the horse to pull harder for the line. e. At the 100m mark, he reined the horse up again and at the 30 metre reined him up again but with his whip facing backwards and never touching the horse with the whip. f. That there is a very good reason why he drove Jack And Simon in the way that he did; the horse responds adversely to the whip; and g. He urged the horse in the final straight with all reasonable vigour. [15] Mr Wilson the Chief Steward was cross examined on his affidavit and transcript of the stewards’ inquiry. [16] Mr Abbott’s solicitor, Mr Baldwin, commenced his examination of the Mr Wilson by pointing out that the immediate heading of the transcript says that the persons called before the stewards’ investigation was Mr J Abbott and Mr Belford driver of Jilliby Lightning. Upon cross examination it was discovered that Mr Belford was never called to give evidence at the stewards’ inquiry. [17] When pressed by Mr Baldwin, Mr Wilson maintained that Mr Belford had hit the horse with the whip rather than hitting the sulky as was his evidence before this Tribunal. Mr Wilson stated that the video evidence showed clearly that the driver Abbott pulled the horse whilst leaning backwards and that on 2 occasions he leaned back reining in the horse. [18] Mr Wilson informed the Tribunal (as was mentioned on two occasions in the transcript) that in view of Mr Abbott’s admission that his driving style as learnt overseas is grossly different from the Australian expectations, the Rules require him to advise the stewards that he would not be using the whip on this occasion. Mr Abbott did not avail himself of that opportunity. [19] Mr Wilson gave evidence that the circumstances of leaning back and reining in the horse, combined with a straight run to the line and that Mr Abbott was immediately behind a stable mate were all damning in combination. As a very experienced steward and trainer of some 30 years Mr Wilson easily came to the conclusion that the horse had been pulled. [20] Mr Wilson conceded in cross-examination that it is possible to apply vigour to the horse without necessarily applying the whip. -- 5 of 8 -- [21] Much was made by the parties by the sectional quarter times; Mr Abbott says that on 8 October 2010, Jack And Simon did the best quarter time at 28 seconds since he had owned the horse. Whilst there was much detail about the measurement of the quarter time, the tribunal has concluded that its calculation largely depended upon guessing how far one was behind the leader (who triggers the quarter lap time) and as such there was no absolute conclusion which could be reached from this evidence. Consideration [22] The law with respect to this matter is succinct and has been correctly stated by the stewards. The application of facts to the law however is a much more difficult task. [23] That the stewards’ suspicions were aroused by the circumstances of the race is entirely understandable even for a lay person watching the DVD evidence. The stewards’ decision is even more understandable when the DVD evidence is explained through the eyes of Mr Wilson, the Chief Stipindiary Steward, where he indicated to the Tribunal that whilst the video is from a distance and quite grainy that the actions of Mr Abbott could well be interpreted as his leaning back pulling the reins and reining in the horse whereas, in other relevant races for this horse the driver Mr Belford appears clearly to be whipping the horse to a successful win on the 29 September 2010. [24] Mr Abbott did himself no favours by almost inviting the stewards to penalise him when he says words to the effect of, “from outside looking in guilty as sin but you actually have to know the horse, ” and in other places, “they’ll probably give me 6 months for the way I drive”. [25] However such statements are in another light, not damning but rather consistent with his statements and evidence that this horse Jack And Simon reacts unfavourably to the whip and in fact is the cause for it to go slower rather than faster. Mr Abbott gave evidence to the effect that the horse is an old horse, it has been beaten in the past. The difference of interpretation between the parties is clear from the transcript at page 21: The Chairman:… you place your horse in clear and unobstructed running. It appears to me you lift the reins. The horse runs to Jilliby Lightning quite easily. It then appears that you lean back in the sulky, which appears you are restraining the horse. The horse again makes ground despite that, and then appears probably about 60 metres out, you again take another hold and lean back in the sulky…can you explain why on those 2 occasions had to ease back. Mr Abbott: … I didn’t ease back … Mr Abbott: We must be watching a different race because when the sprint lane came up I reined him up. He didn’t pick up straight away. So then I grabbed the bit in his mouth and he started to – he started to pick up Jilliby Lightning… The Chairman: It’s difficult to say it was very close to the finish.” -- 6 of 8 -- [26] With respect to the standard of proof the tribunal had regard to Wadham v the Deputy Commissioner Ian Stewart Queensland Police Service1: The Decision in Aldrich v Ross sets out the “approach” to be taken by the Tribunal in deciding the review. The leading judgment delivered by Thomas JA provides: … …the Misconduct Tribunal is required to make its own decision on the available evidence rather than merely to determine the correctness of the original decision…That is not to say that considerable respect should not be paid to the perceptions of the Commissioner as to what is needed for the maintenance of internal discipline. It would be appropriate for the Misconduct Tribunal in making up its own mind to give considerable weight to the view of the original decision-maker who might be thought to have particular expertise in the managerial requirements of the police force. The requisite standard of proof to be applied by the tribunal being the civil standard on the balance of probabilities is set out in the decision of Briginshaw v Briginshaw & Anor.2 It was held by Dickson J: …The seriousness of the 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 the inexact proofs, indefinite testimony, or indirect inferences.3 [27] The great benefit of the stewards’ enquiry at the earliest possible date is to find out all versions of events independently of the parties’ later conversations or recollections. [28] That Mr Belford was not called to do this immediately is an unfortunate and grave mistake. It was Mr Belford who could have given to the stewards the corroborative evidence of Mr Abbott’s instructions not to take the whip to the horse on 29 September 2010. If he had been called to give evidence to the inquiry, Mr Belford would have, or may have, given either corroborative or conflicting evidence with respect to the central point of this matter (being the urging with the whip) at a time when it could never be suggested that he and Mr Abbott could have possibly discussed or colluded about the matter at a later time. [29] The Tribunal is indeed mindful of the considerable experience of the stewards and does not lightly interfere with their decisions given their considerable expertise in determining racing conduct. [30] In our opinion the evidence upon which we can reflect is the testimony and the video. [31] The video is grainy and taken at a distance, the indicia pointed out to the Tribunal is the applicant’s posture and the movement of his hands coming into the straight and his failure to engage the whip. 1 [2010] QCAT 578 2 (1938) 60 CLR 336. 3 Ibid 361. -- 7 of 8 -- [32] However weight must be given to the testimony of firstly Mr Abbott whom, at the first possible opportunity when interviewed by stewards, explains that his method of racing this horse and urging it to run the best it possibly can is not to whip the horse but to urge it on by keeping the bit in its mouth and reining the horse by way of slapping the horse with the reins. Mr Abbott gives this evidence consistently and regularly during the investigation. [33] Mr Abbott’s failure to engage the whip has been explained and corroborated by Mr Belford, albeit at a later time. The evidence with respect to his posture is consistent with his previous rides and his hand movements are far from distinct enough to satisfy the evidentiary test set out above. [34] If the tribunal was tempted to find that Mr Abbott was lying both to the stewards and the Tribunal and indeed his conduct was such that he attempted to pull the horse on the night in question then one part of his evidence is extremely clear. That is the still photo of the finish of the race handed up by Mr Abbott. [35] An examination of this photo shows that Jack And Simon was immediately behind the leader at about 180 metres before the finish. The photograph shows that Jack And Simon has caught the leader over this period of time and that his head and step is merely out of sync to the extent that had he had lunged at the correct time he may well have won the race. It is very close indeed. If a person was attempting to rein in a horse at this particular time it would seem unlikely that the horse would achieve so well. [36] It is of some significance that, whilst the stewards contend that Mr Abbott either pulled the horse or raced with no vigour, the horse in fact made up approximately 3.5 metres of ground only to be beaten by a head over the last 180 metres. So, whilst there is a difference of opinion about what actions were taken it is a conclusive fact that whatever actions were taken, this horse was able to make very substantial ground on the leader in its run to the finish and indeed may have only been beaten by 300 to 600mm. Whatever actions Mr Abbott took, they were sufficient to urge the horse forward even if they appeared not to and if those actions were calculated to pull the horse then to that extent, they were a grand failure; it almost won. [37] We find that, in all the circumstances, the benefit of doubt in this case must be given to Mr Abbott; his manner of riding Jack And Simon on 8 October 2010 was acceptable within the terms of the rules and consistent with his pattern of racing. The Tribunal concludes that Racing Queensland has not satisfied the appropriate standard to demonstrate that Mr Abbott did not act in accordance with the Rules and as such the application for review is allowed and Racing Queensland’s decision is set aside. -- 8 of 8 --