Birch v Racing Queensland [2010] QCAT 521

CITATION: Birch v Racing Queensland [2010] QCAT 521 PARTIES: Mr Bruce Birch v Racing Queensland APPLICATION NUMBER: OCR213-10 MATTER TYPE: Occupational regulation matters HEARING DATE: 29 September 2010 HEARD AT: Brisbane DECISION OF: Brockwell Miller – Presiding Member Richard Oliver – Senior Member DELIVERED ON: 6 October 2010 DELIVERED AT: Brisbane ORDERS MADE: 1. The Application is allowed. 2. The decision of Queensland Racing is set aside CATCHWORDS : Assault on course official; whether evidence sufficient to support charge of assault; standard or proof where serious charge laid; standard of proof not satisfied. APPEARANCES and REPRESENTATION (if any): APPLICANT : Mr Bruce Birch was represented by Mr A P Simpson of Counsel instructed by Turnbell & Co Solicitors RESPONDENT: Racing Queensland was represented by Ms A C Freeman of Counsel instructed by Mr A J Orchard of Racing Queensland -- 1 of 4 -- REASONS FOR DECISION 1. Bruce Stuart Birch is a licensed trotting driver who was involved in an incident at Albion Park Race Track on 24 August 2010 which resulted in an enquiry being conducted and a charge being levelled against him by the Respondent. As a result of the determination of that Steward’s inquiry, he was convicted of a charge under Rule 231(1) and his Licence was disqualified for a period of two years. An application to review this decision has now been lodged in the Tribunal. 2. The Applicant has been charged under Rule 231(1) which states: “A person shall not threaten, harass, intimidate, abuse, assault or otherwise interfere improperly with anyone employed, engaged or participating in the Harness Racing Industry or otherwise having a connection with it.” 3. The particulars of that charge are contained on page 23 of the Transcript of Interview conducted on 26 August 2010. The stewards were “of the view that you have instigated an assault against Mr Baldwin by walking into his path, by raising your elbow and making contact with the upper arm of Mr Baldwin”. Those particulars it was believed were sufficient to constitute an assault within the meaning of that term as included in Rule 231(1). 4. The circumstances leading to the incident are adequately noted in the Transcripts of Evidence or Proceedings which were conducted on 24 August and 26 August 2010. Throughout the course of those interviews or inquiries, it was apparent that Mr Birch had been conversing on the walkway near the stabling area with two other persons involved in the racing industry. Mr Baldwin is a Veterinarian and employed as a Veterinary Steward by Racing Queensland Limited and at the relevant time was undertaking his duties at the race meeting in question. He provided an Affidavit dated 25 September 2010 which identifies that he knew the Applicant as a horse trainer (sic) who was based on the Gold Coast. Mr Baldwin confirmed that he had no previous disagreements with Mr Birch in performing his duties as a Veterinary Steward and that on the date in question after the completion of race 3, he was asked to examine a pacer “Me N Jim NZ” after that horse had placed third in the race in question. Mr Baldwin confirmed that he had been informed that the horse had raced roughly over the concluding stages of the event and galloped over the finish line and for sometime thereafter and that he examined the horse in the presence of Mr Cameron McClune, a Senior Steward employed by Racing Queensland Limited and Mr Richard Hooper, the trainer of the horse in question. Mr Baldwin confirmed that at the completion of his examination, he was told by Mr McClune to present his findings verbally in the Stewards room with Mr Hooper to be in attendance. In his Affidavit, Mr Baldwin confirmed that the pacer had “chronic bilateral leg injuries”. He confirmed that he had cause to discuss the condition of the horse with the trainer Mr Hooper on the previous Tuesday when that horse raced at the same paceway. He further confirmed that he had informed Mr Hooper at that point in time that if the horse was to pull up in a below satisfactory manner in the future, that he would then recommend to the Stewards that the horse be stood down from racing pending a veterinary clearance. -- 2 of 4 -- 5. It is significant that Mr Baldwin was in the process of walking to the Stewards room to provide his report which would presumably have been a recommendation to the effect that the horse be stood down from racing. At the time of the incident, Mr McClune and Mr Hooper had walked in front of Mr Baldwin by a margin of something of the order of between five and ten metres distance and had together passed the Applicant Mr Birch whilst he was conversing with other people. Mr Baldwin confirmed that as he passed that group of people, Mr Birch stepped into his path and elbowed him with his left elbow with the elbow contacting Mr Baldwin’s upper left arm. 6. Evidence was called from Mr Robert Brumm who was one of the persons conversing with the Applicant, Mr Birch. At the enquiry on 24 August, Mr Brumm confirmed that he did see Bruce Birch turn into Greg Baldwin but that he “honestly didn’t see any elbow but I couldn’t see it from where I was but I believe that is what happened”. Mr Brumm said that from what he saw, Mr Birch got into the path of Mr Baldwin but that he didn’t see any elbows or anything like that. Mr Brumm also provided an Affidavit in which he recalled an incident while he was standing near the stalls talking to Mr Birch. He stipulates that “I am of the opinion that Mr Birch deliberately spun around to instigate the collision with Mr Baldwin”. It was based on the evidence of Mr Brumm in his Affidavit and that evidence of Mr Baldwin that the charge was laid and subsequently proved against the Applicant, Mr Birch. What however is of some serious concern is that at the initial enquiry at which Mr Brumm was called to give evidence, he made no comment about the action being in anyway deliberate. It is this point that raises significant doubts about the recollection of Mr Brumm of the incident in question. 7. Mr Birch confirmed during the course of his evidence to the enquiry and his subsequent evidence to this Tribunal when he was called and sworn under oath to provide testimony, that there had been no ill will or feeling between he and Mr Baldwin, the veterinary surgeon, or that indeed he had ever had any reason to have any complaint about Mr Baldwin previously. He explained his actions as being simply a movement by him to walk away from the persons with whom he had been conversing and that in doing so, he turned and was confronted almost immediately by the looming figure of Mr Baldwin who was then almost upon him. He gave evidence, which seems to have been confirmed by other witnesses to the incident, that where he was standing there was room to manoeuvre but not significant room to avoid anyone who was walking quickly and who had not been keeping a proper lookout as seems to have been the situation with Mr Baldwin. Mr Birch says that there was contact made and this is confirmed by Mr Baldwin but both of them confirm that the contact was not significant as to cause anyone to stumble or fall, or for Mr Baldwin to be jolted from his path of travel. It was strictly, a “coming together of two persons who were almost upon each other at the relevant time”. 8. Counsel for the Respondent clearly identified that there was contact between the parties. Counsel believed that such contact should satisfy this Tribunal to the requisite standard 1 that the contact constituted an assault and that it was of course intentional. Evidence was given also by a Mr Turpin who considered that the movement of the elbow by Mr Birch was along the lines of a friendly gesture 1 Brigenshaw v Brigenshaw (1938) 60 CLR 336 -- 3 of 4 -- so there is no doubt that the elbow did move. The question then is “Was that movement sufficient to constitute an assault as proposed by counsel?” Counsel also suggested that there was a motive for Mr Birch’s purposefully moving into and making contact with Dr Baldwin. She opined that the Applicant would have known of the intention of Dr Baldwin to report his findings to the Stewards and to make a recommendation that the horse in question be stood down from future racing. 9. In the opinion of this Tribunal, such a contention cannot be sustained. Nowhere in the evidence before the Stewards or in Affidavit evidence before this Tribunal is there any suggestion that Mr Baldwin had signalled his intention to anyone that he was about to make such a recommendation. Indeed, the Senior Steward had requested Mr Baldwin to refrain from informing him of the decision or of indeed any finding whatever, until the Stewards could receive same verbally from Mr Baldwin. It is significant that Mr Baldwin was on his way to the Stewards room to make such a finding. 10. The other issue of consideration is that Mr Baldwin initially believed Mr Birch to be the trainer of the horse in question. Had this been the situation, then perhaps some form of motive could have been maintained but, in fact, Mr Birch was merely the driver of the horse and had no other connection with respect to the horse. 11. We have come the conclusion that the evidence before this Tribunal goes no further than to suggest that an accident occurred when two people were confronted by each other and surprised at the presence of the other without either person keeping a proper lookout in all the circumstances. 12. In considering this matter afresh as we are obliged to do, 2 and having regard to the seriousness of the charge and the necessary standard of proof 3 , we are of the view the evidence is not sufficient to persuade us that Mr Birch intentionally raised his arm in order to strike Mr Baldwin. The conduct of Mr Birch is not sufficient to constitute an assault within the meaning of the Rule in question and for that reason this Review must determine that the decision of the stewards should be set aside and charge against Mr Birch pursuant to Rule 231(1) should be dismissed. This Tribunal so orders. 2 QCAT Act section 20 3 Brigenshaw, supra -- 4 of 4 --