Bellamy v Harness Racing Queensland [2010] QCAT 176

CITATION: Bellamy v Harness Racing Queensland [2010] QCAT 176 PARTIES: Jay Carl Thomas Bellamy v Harness Racing Queensland APPLICATION NUMBER: OCR 045-09 MATTER TYPE: General administrative review matters HEARING DATE: 18 March 2010 HEARD AT: Brisbane DECISION OF: Mr Brock Miller DELIVERED ON: 18 March 2010 DELIVERED AT: Brisbane ORDERS MADE: The disqualification imposed upon the Applicant is set aside and the Review by the Applicant is allowed. CATCHWORDS : Australian Harness Racing Rules, circumstantial evidence, determination of the stewards could not be maintained, disqualification set aside. APPEARANCES and REPRESENTATION (if any): Mr J Murdoch SC, on behalf of the Applicant Mr P Callaghan SC, on behalf of the Respondent REASONS FOR DECISION The Applicant, Jay Bellamy, is a licensed Harness Racing driver who participated in a race at the Gold Coast Paceway on Thursday, 10 September 2009. In that race, the horses Harkham, Makalong Shadow and Perfect Liner (who was driven by the Applicant) participated. Lucas Sullivan was the owner -- 1 of 7 -- ` 2 of the horses Harkham and Perfect Liner. Lisa Hodge was the owner of Makalong Shadow and the partner of trainer David Turner who trained both Harkham and Makalong Shadow. As a result of investigations into the performance of those horses and others in the race in question and the evidence provided during the course of a very substantial and thorough Stewards Inquiry, trainer D. Turner, owner Lucas Sullivan and owner Lisa Hodge were charged with various infringements against the relevant legislation and significant penalties were imposed on all of those parties. It is apparent that appeals were lodged by those parties but such appeals were withdrawn before the hearing of this Review. As a result of the determination of the Stewards at the Inquiry, driver Jay Bellamy, the Applicant in this Review, was also charged with a number of offences under the Rules. The first charge was under Rule 147(1) which requires a driver to race a horse on its merits and the particulars of the charge were that the Applicant: (a) after his horse paced roughly in the early stages, then allowed it to improve to a three-wide leading position and then restrained, maintaining that position, rather than endeavouring to obtain a more advantageous position which, in doing so, resulted in the horse racing three-wide without cover for the entire race, which was detrimental to its chances; and (b) the manner in which he drove Perfect Liner, assisted Harkham and Makalong Shadow to dictate a slow tempo in the early and middle stages of the race, which was advantageous to Harkham and disadvantageous to Perfect Liner and other runners. A second charge was also levelled under the provisions of Rule 149(2) which identifies that a person shall not drive in a manner which in the opinion of the Stewards is unacceptable and the particulars of the charge in that respect were: -- 2 of 7 -- ` 3 (a) after your horse paced roughly in the early stages, you then allowed it to improve to a three-wide leading position and then restrained, maintaining that position, rather than endeavouring to obtain a more advantageous position which, in doing so, resulted in the horse racing three-wide without cover for the entire race, which was detrimental to its chances; and (b) the manner in which you drove Perfect Liner, assisted Harkham and Makalong Shadow to dictate a slow tempo in the early and middle stages of the race, which was advantageous to Harkham and disadvantageous to your horse and other runners; and (c) that by remaining three-wide in the leading position you repeatedly and unnecessarily looked around unduly during the race to monitor the position of other runners. A third charge was then also levelled under the provisions of Rule 243 which identifies that “a person employed, engaged or participating in the Harness Racing industry shall not behave in a way which is prejudicial or detrimental”. The particulars of that charge was “a manner in which you had communications with Lucas Sullivan and which advantaged Harkham and disadvantaged Lamborgindi as well as other runners”. The Applicant pleaded not guilty to all of those charges. He was found guilty of the three charges and his licence was disqualified for periods of 12 months under the first charge and 6 months under the second charge with those penalties to be served concurrently and under the third, pursuant to Rule 243, his licence was disqualified for a period of 3 years with that penalty to be served cumulatively which in effect imposed a 4 year disqualification. Against those three charges, this Review was lodged. It is not necessary for this Tribunal to embark on the issues which led the Stewards to enquire into the various activities of the other three co-accused and convicted persons. Suffice to say, there was more than adequate -- 3 of 7 -- ` 4 information and evidence available for the charges against them to have been laid and for the penalties to be imposed. A number of issues in those matters related to the provision of false and misleading evidence and refusal to answer questions when required so to do. At the outset of this Review, the parties’ legal counsel had conferred and identified certain matters that could be accepted by the Tribunal as being factual. In that respect, a Summary of Evidence of the Applicant Jay Bellamy was prepared and submitted and marked as Exhibit 2. A Summary of Evidence of Lucas Sullivan was submitted and marked Exhibit 3 and a seven page Summary of what could be described as “Inferences to be Drawn” was tendered and marked Exhibit 6. The only reference to the Applicant Jay Bellamy in that Inference document was to the effect that he was the driver of Perfect Liner (item D, page 1) and that he drove his horse in a manner which was designed to ensure that Harkham won the race and that Lamborgindi (the favourite) could not do better than third place (item K, page 4). Whilst it was not noted in the Inference documents, there was reference during the course of the Inquiry to the issue that prior to this incident, both the owner Lucas Sullivan and the Applicant Jay Bellamy had flatted together and shared a house. It should be noted here that Mr Bellamy at all times acknowledged that Lucas Sullivan had been and was a friend. The suggestion by Mr Callaghan Senior Counsel on behalf of the Respondent, Harness Racing Queensland, was to the effect that all of the evidence when read together would give a strong circumstantial inference that the Applicant drove the horse in such a manner as to warrant this Tribunal determining that the conviction and penalty should stand. It was stressed to the Tribunal that whilst the evidence was only circumstantial, it was so closely interwoven with the activities of the other parties in their betting operations that the Tribunal could come to no other conclusion than that the original decision should stand. Circumstantial evidence no doubt is something that all Tribunals must seriously consider and provided there is some basis for concluding the weight of this evidence could lead to no other reasonable conclusion, then it would be more -- 4 of 7 -- ` 5 than appropriate for the decision of the Stewards to be upheld. In support of that argument, evidence was adduced as to the extremely slow time of the race in question when Harkham and Makalong Shadow were the two horses running first and second throughout with Perfect Liner running in a three-wide position and with evidence adduced from Mr Alan Pearson, a steward with more than 40 years experience in various aspects of Harness Racing. A statement by Mr Pearson was tendered and marked Exhibit 1 and it confirms that he had been involved in hundreds of Inquiries where drivers had failed to drive the horse on its merits or failed to give the horse a full opportunity to win or obtain the best possible place or driven in an unacceptable manner. He had been provided with various material such as the DVD of the race, the race results, the extract of the Race Book for the meeting which had the more recent starts of each of the runners identified and details of all betting activities undertaken by Lucas Sullivan and other persons associated with him. It was Mr Pearson’s view that the pace of the race was unusually slow for a mile race and that the Applicant’s horse Perfect Liner paced roughly for a short distance but then settled well and that in Pearson’s opinion, was capable of making an effort to win the race. Mr Pearson opined that Bellamy positioned Perfect Liner outside Makalong Shadow such that Perfect Liner sat equal in the lead in the three-wide position for a majority of the race and that by its position on the track, it made it extremely difficult for Lamborgindi to win the race as that horse would have needed to go at least four-wide which in his opinion would make it very unlikely to succeed in winning the race. There seems no doubt that Perfect Liner was in that three-wide position and that the Applicant had on a number of occasions indicated throughout the race that he had been looking back and around. It is this evidence of Mr Pearson and the continued looking around and the earlier fact of the close association between the Applicant and the owner Lucas Sullivan that eventually persuaded the Stewards that Mr Bellamy was party to the attempt to manipulate the race in question and should therefore have been charged and found guilty of the charges. -- 5 of 7 -- ` 6 If that were all the evidence and none of it could have been refuted by the Applicant, then this Tribunal would have no hesitation whatsoever in upholding the determination of the Stewards as that would not just be circumstantial evidence, it would be positive evidence to a failure by the Applicant to take every possible step within his power to give his horse the best possibility of winning. The Applicant’s Counsel, Mr Murdoch SC, went to great lengths to identify many issues all of which, in his opinion, pointed to the simple fact that the horse Perfect Liner was simply not good enough to have performed better than it did in the race in question. The full form analysis of that horse identified that its form simply was not good. It had been unable to perform adequately in numerous starts prior to this event and was, in Mr Murdoch’s opinion, simply “out of its class”. Furthermore, he stipulated that there was no suggestion that Mr Bellamy was at fault in the initial stages when Perfect Liner “paced roughly”. He suggested that Perfect Liner made every possible attempt to race forward to try to earn prize money. Even the Applicant, Jay Bellamy, conceded that, in his opinion, the favourite Lamborgindi, was more likely than not the winner of the race but that horse appears to have been shuffled backwards and not to have made much of an attempt to improve its position until the race was nearly finished. It was suggested that Mr Bellamy failed in his duty by not taking Perfect Liner more forward than he had. During the course of his evidence to the Stewards’ Inquiry, the Applicant Bellamy identified that the driver of Makalong Shadow, which was racing on the inside of Perfect Liner and thereby keeping it in the three-wide position, had “flicked his horse up”. Bellamy identified that he grabbed hold of his horse and was then hoping that the favourite would come around him and give him cover and perhaps bring him into the race. It was his opinion that the favourite Lamborgindi “had a leg on them”. His evidence simply was that he was hopeful of another horse alleviating his problems of being in the three-wide position but that never eventuated. -- 6 of 7 -- ` 7 He also gave evidence that the driver in question continued to use his whip in a flicking motion to try to persuade Bellamy that he would not be allowed to outpace Makalong Shadow. Further evidence was suggested that he should have raced his horse into the death seat challenging for the lead, but one could not seriously expect that to occur when the pace of a race was so slow and the ability of the horse Perfect Liner was so ordinary. There is no doubt that all of the evidence submitted during the Stewards Inquiry pointed to a conspiracy of events and persons but in the opinion of this Tribunal, it is not easily determinable that Mr Bellamy the Applicant, was a party to that series of events. Indeed, there is circumstantial evidence that he could have been involved but on the information that was presented to the Stewards and on the material presented to this Tribunal, it does not seem appropriate that such a conclusion was capable of being drawn. Other than for his association with Mr Sullivan and the fact that his horse did race three-wide in a very slowly run race there is nothing that would support the Stewards contentions with the exception of the evidence of Mr Pearson. Unfortunately, it seems quite apparent that Mr Pearson had not properly identified the form of Perfect Liner previously and had not been able to identify a reason as to why the favourite Lamborgindi made no attempt to improve its position, particularly when the race was only over one mile. In the opinion of this Tribunal, the determination of the Stewards cannot be maintained and for those reasons, the disqualification imposed upon the Applicant is set aside and the Review by the Applicant is allowed. -- 7 of 7 --