Allen v Racing Queensland [2012] QCAT 722

CITATION: Allen v Racing Queensland Limited [2012] QCAT 722 PARTIES: Mr Anthony Thomas Allen (Applicant) V Racing Queensland Limited (Respondent) APPLICATION NUMBER: OCR227-12 MATTER TYPE: Occupational regulation matters HEARING DATE: 25 July 2012 HEARD AT: Brisbane DECISION OF: Richard Oliver, Senior Member Jeremy Gordon, Member DELIVERED ON: 16 August 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. The Stewards’ decision is confirmed. 2. The stay is to remain until the start of the 9th day after the date of delivery of this decision given above. CATCHWORDS: RACING – APPLICATION FOR REVIEW OF DISCIPLINARY DECISION – where applicant found guilty of careless riding in the opinion of the stewards – whether finding open on the evidence – where penalty not excessive having regard to riding history. Queensland Civil and Administrative Tribunal Act 2009, ss 19, 20 Racing Act 2002 Australian Rules of Racing 137(a) Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58 considered McMullen v Queensland Racing Ltd [2012] QCAT 286 applied; Briginshaw v Briginshaw (1938) 60 CLR 336 followed -- 1 of 6 -- 2 REPRESENTATION: Applicant: Mr J E Murdoch SC Respondent: Mr D Aurisch, on behalf of Racing Queensland REASONS FOR DECISION Background [1] Mr Anthony Allen is a third year apprentice jockey. [2] On 24 June 2012 he rode POSEN in a 1600 metre Maiden Handicap at the Sunshine Coast Turf Club’s Corbould Park. POSEN was the winner of the race and CHIEF BRIGHT STAR was second. [3] After the race a protest was lodged by the rider of CHIEF BRIGHT STAR Mr Alex Hearn, who complained of interference by Mr Allen’s mount just after the start of the race. [4] There was a stewards’ inquiry to consider Mr Hearn’s protest. The protest was dismissed but arising from the same incident the stewards decided to charge Mr Allen with careless riding under Rule 137(a) of the Australian Rules of Racing. [5] The relevant part of Rule 137 reads:- “Any rider may be penalised if, in the opinion of the Stewards, (a) He is guilty of careless, reckless, improper, incompetent or foul riding.” [6] The particulars of the charge were that:- “At the Sunshine Coast on Sunday 24 June 2012 in Race 3 as the rider of Posen, shortly after the start – just after the 1600 metres – you have permitted Posen to shift in when insufficiently clear of Chief Bright Star, which has had to be checked at that time.” [7] In laying the charge the stewards said:- “We do acknowledge there is a minor shift from the inside and take that into account. We believe the major portion of this interference is caused as a result of Posen being permitted to shift in there.” [8] Mr Allen pleaded not guilty to the charge, but the stewards found him guilty and suspended him for a period covered by 8 meetings. This was a “reviewable decision” under Local Rule LR(AC)1, therefore Mr Allen was able to appeal against both conviction and penalty to the First Level Appeal Committee of Racing Queensland. This appeal was heard on 2 July 2012 but was unsuccessful. [9] Following the First Level Appeal, the suspension took effect from midnight on 4 July 2012. Mr Allen applied to QCAT for a review on 3 July 2012 and -- 2 of 6 -- 3 by consent on 4 July 2012 the decision to suspend him was stayed by order of the Tribunal. QCAT’s approach [10] The review jurisdiction is conferred on QCAT by sections 150-154 of the Racing Act 2002. Sections 19 and 20 of the QCAT Act 2009 require the Tribunal to hear and decide the review by way of a fresh hearing on the merits, with the purpose of producing the “correct and preferable decision”; and in exercising the review the Tribunal has all the functions of the original decision maker. There is no presumption that the original decision is correct1. [11] The position therefore is as set out by the Tribunal in McMullen v Racing Queensland Limited [2012] QCAT 286. We must exercise the original discretion held by the stewards afresh. The question for us is not whether the stewards properly or reasonably reached the opinion that Mr Allen was guilty of careless riding, it is rather are we of the opinion that Mr Allen was guilty of careless riding? Considerations [12] In order to resolve this issue we heard from Mr Allen and from Mr Murdoch SC on his behalf. We heard from Mr Aurisch. We viewed the DVD footage of the race several times, in particular the footage from the head-on camera directed towards the barrier. We read the transcripts of the stewards’ inquiries of 24 June 2012 and of the appeal heard on 2 July 2012. And we read the documents in the file and those provided to us at the hearing. [13] POSEN was in starting barrier 5 and had three horses on the inside and six horses on the outside at the start. It is agreed by both sides that very soon after the gates opened, POSEN jumped awkwardly to the right. This caused pressure on CHIEF BRIGHT STAR ridden by Mr Hearn who had come out of barrier 4 and was immediately on POSEN’s inside. No criticism is levelled at Mr Allen in respect of this matter since this was a natural action of his mount. [14] It is agreed by both sides that Mr Allen acted properly to correct this action by steering POSEN to the outside away from CHIEF BRIGHT STAR and then straight ahead. [15] After this manoeuvre POSEN was ahead and outside of CHIEF BRIGHT STAR. A short time later, Mr Hearn had to check his mount CHIEF BRIGHT STAR because he was concerned about riding onto the heels of POSEN close in front. The stewards were of the view that this was because POSEN was coming across in front of him. It was submitted on Mr Allen’s behalf that this was not necessarily the case. 1 Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58 at [9]. -- 3 of 6 -- 4 [16] A straightforward viewing of the DVD footage suggests that Mr Allen did cause or permit POSEN to come across in front of CHIEF BRIGHT STAR. [17] However it was submitted to us on Mr Allen’s behalf that the footage was deceptive mainly for the lack of any reference points from which it could be seen whether POSEN was taking a straight course after Mr Allen had corrected the initial jump to the right. We accept this submission to some extent. [18] It is difficult to gauge the position or direction of the horses with respect to the rail because the rail was incomplete at the point of the incident. This is because the starting barrier was in a chute which joined the main course on a tangent and there was no temporary rail where the chute joined the course. [19] Also the camera appears to be at an angle rather than being directly head- on to the starting barriers. It seems possible that the starting barrier was not precisely at right angles to the camera. These two things mean that the barrier when visible in the footage does not accurately show the direction of the horses. [20] We also noted that the mowing marks on the course could not be relied upon because the incident in question occurred at a bend in the course where the horses were running across these marks rather than following them. [21] It was also submitted that relying on the juxtaposition of POSEN and the other horses is unreliable since the other horses are constantly moving their position on the course. We accept this. In order properly to assess the positioning and direction of POSEN in the relevant part of the footage, it is necessary to consider separately the position and direction of each horse of relevance. [22] It is also necessary to take into account that after the start the riders were not aiming straight and parallel to an imaginary temporary rail where the chute joins the main part of the course, but rather they were aiming towards the inside in order to get in the best position for the race. [23] Part of Mr Allen’s case is that a horse on the inside of CHIEF BRIGHT STAR was largely responsible for Mr Hearn needing to check his mount. The horse concerned was RABANAL ridden by Tegan Harris. It is said that immediately prior to the incident with which we are concerned, POSEN was taking a straight course but RABANAL was shifting towards the outside closer to CHIEF BRIGHT STAR. It was accepted by the stewards and in the appeal committee that there was a shift of RABANAL. However they thought it was minor and not enough to be a substantial cause of the interference to CHIEF BRIGHT STAR. We agree with this assessment on our viewing of the DVD footage. We are assisted in this by the fact that when Mr Hearn checked CHIEF BRIGHT STAR he pulled the right rein -- 4 of 6 -- 5 substantially. This shows he was pulling clear of POSEN rather than RABANAL. [24] A reference point which we found useful was the horse in dark colours to the outside of POSEN. Soon after the start this horse shifted away from POSEN to the outside creating a gap between them. However it corrected this. Immediately before the incident with which we are concerned, the gap between this horse and POSEN therefore narrowed appropriately. And after that the horse in dark colours can be seen to remain on a straight course. However at the time of the incident POSEN can be seen to shift away from this horse to the inside and into the path of CHIEF BRIGHT STAR. [25] POSEN’s movement at this time coincides with a sharper movement of its head to the right. [26] Therefore it can be seen that Mr Allen did cause or permit POSEN to shift to the inside into the path of CHIEF BRIGHT STAR. We are therefore reasonably satisfied2 on the evidence that Mr Allen’s riding was careless. [27] One submission made on Mr Allen’s behalf is that POSEN was five horses from the rail after the start and remained five horses from the rail after the incident. Therefore it is said that POSEN did not shift to the inside to a marked degree. Whilst we accept that the basic premise of this submission is correct, we can clearly see on the DVD footage that between the two times referred to, POSEN shifted close in front of CHIEF BRIGHT STAR. [28] Accordingly we confirm the decision reached by the stewards in respect of the substance of this matter. Penalty [29] This application for review is also in respect of penalty. It is agreed on both sides that careless riding may attract penalties from a reprimand upwards. A suspension for five meetings might be appropriate as a starting point although this will depend on the seriousness of the incident. If there is no mitigation a suspension for eight meetings might be the norm. If a rider is dislodged the usual penalty is one month’s suspension. Mitigating factors taken into account by the stewards might be a guilty plea, a good previous record and other relevant matters. [30] We accept that the penalty is set partly as a deterrent to riders, and that the stewards try to ensure the safety of riders by bringing disciplinary proceedings for this type of offence. They also have in mind the need to ensure that each horse has an equal chance in the race. [31] Mr Allen has a poor record. In the previous 12 months he has had 8 careless riding suspensions. Five of these are for this year. His record seems to be deteriorating rather than improving as one would expect. We 2 Briginshaw v Briginshaw (1938) 60 CLR 336. -- 5 of 6 -- 6 take into account that Mr Allen is one of the leading apprentices, and that his record must be judged against the number of his races which might be more than other jockeys. Whilst we do not consider the incident in this particular case to be one of serious category we do think it had the potential of becoming serious and could have caused injury. Bearing in mind Mr Allen’s poor record we do think the suspension of eight meetings is about right. We confirm the stewards’ decision. -- 6 of 6 --