1. Mr Paul Anderton is discharged from his undertaking given to the Tribunal on 23 December 2015.

1. Mr Paul Anderton is a registered greyhound trainer.
2. In proceeding Z960/2015, Mr Anderton seeks a review of the decision of the Greyhound Racing Victoria Racing Appeals and Disciplinary Board (The Board) made on 3 December 2015 finding two charges against him proved and the decision of the Board made on 18 December 2015 imposing a disqualification of Mr Anderton for a period of eight years, with five years of that disqualification suspended. The commencement date of the disqualification was effective from the date that Mr Anderton was suspended (13 February 2015).
3. By an order made by consent on 23 December 2015 the determination of the Board made on 18 December 2015 was stayed pursuant to section 50 of the Victorian Civil and Administrative Tribunal Act 1998. The order staying the Board's determination was sought and made upon:

(a) Mr Anderton's registration with Greyhound Racing Victoria remaining suspended pursuant to the decision of the Board of Greyhound Racing Victoria on 13 February 2015 under Local Racing Rule 11.2; and

(b) Mr Anderton's undertaking to the Tribunal, given by his lawyers Balbata and Associates, on his behalf, not to attend any registered greyhound trial track or any registered greyhound racetrack whilst either tracks race meetings are being conducted.

1. In proceeding Z989/2015, the stewards of Greyhound Racing Victoria sought review of the Board's decision made on 18 December 2015 on the grounds that:

(a) the penalty imposed by the Board is manifestly inadequate; and

(b) the Board erred in imposing a period of disqualification which was partly suspended.

1. The two charges brought against Mr Anderton are as follows:

(1) Mr Paul Anderton did, on 11 November 2014, at Tooradin use or cause to be used a live animal (namely, a live rabbit) as a lure for two greyhounds, being the first two of the three greyhounds trialled (namely, two black or dark coloured greyhounds handled by him), the live rabbit having been attached with two straps to the lure area by Mr Stuart Mills, on a greyhound trial track (namely, the Tooradin Trial Track located at 175 Harewood Road, Tooradin, Victoria).

(2) Mr Paul Anderton did, on 11 November 2014, at Tooradin use an animal (namely a live rabbit) for a purpose connected with greyhound racing in a manner which was improper, namely, he used that live animal as a lure for three greyhounds (namely, three black or dark coloured greyhounds handled by him), the live rabbit having been attached with two straps to the lure arm by Mr Stuart Mills, on a greyhound trial track (namely, the Tooradin Trial Track located at 175 Harewood-Mains Road, Tooradin).

1. Further particulars of the charges brought before the Board are stated as:

(i) The three greyhounds were trialled consecutively.

(ii) For the trials of the first two of the said three greyhounds, the rabbit was alive.

(iii) For the trial of the third of the said three greyhounds, the rabbit was dead, the rabbit having died whilst, and as a result of, being used as a live lure and being gnawed on by the first two of the three said greyhounds to trial.

(iv) It was 'improper' to use an animal as a lure as described in paragraphs (i) - (iii) herein.

1. I disregard the inconsistency in the address set out in the charges for the Tooradin Trial Track and the inconsistency between the allegation in charge 2 of Mr Anderton using a live rabbit as a lure for three greyhounds with particulars stating that the rabbit was dead for the trial of the third greyhound. There is no argument as to where the trials took place and no argument as to whether the rabbit was dead for the trial of the third greyhound.
2. I have some concern that the Board in its decision made on 3 December 2015 found that Mr Laurie Cunningham attached the rabbit to the lure. At all times before the trial the lure operator was named as Mr Stuart Mills, or, more discretely 'SM'. Again, there was no argument before the Tribunal as to the identity of the lure operator. Accordingly, I disregard this inconsistency.

1. The charges were brought under Rule 18(5) of Greyhound Racing Victoria Local Racing Rules (LR) and Rule 86(af) of Greyhounds Australasia Rules (GAR). I shall now refer to these rules as LR 18(5) and GAR 86(af) respectively.
2. LR 18(5) states:

Without derogating from the provisions of LR 18.4 (Vic), no person shall use or cause to be used any live animal as a lure for greyhounds or for exciting of greyhounds on any Greyhound Trial Track or any other location. (LR 18.4 states: No live animal other than a greyhound shall be used or caused to be used in any manner or in any Greyhound Trial Track or surrounding area as defined by the Board.)

1. As an aside, no proof was put before the Tribunal that the Tooradin Trial Track was a registered Greyhound Trial Track as required by the LR's. Again, there was no argument on this point so nothing more comes of it. It should, however, be noted that LR 18.4 applies only to any 'Greyhound Trial Track or surrounding area as defined by the Board' whereas LR 18.5 refers to 'any Greyhound Trial Track or any other location'. LR 18.4 does not assist in the interpretation of LR 18.5.
2. GAR 86(af) states:

A person (including an official) shall be guilty of an offence if the person -

(af) uses an animal for any purpose connected with greyhound racing in a manner which is improper.

1. There was no debate on the question of whether the hypothetical use of a live rabbit as a lure was improper. This was taken as a given.
2. The question, then, is whether Mr Anderton used or caused to be used a live rabbit as a lure for his greyhounds at Tooradin Trials Track on 11 November 2014.
3. The location and date are not in contention. What is in contention is whether:

(b) if it was alive, did Mr Anderton 'use' it or 'cause it' to be used.

1. The Board found that the charges against Mr Anderston are offences of absolute liability not requiring proof of knowledge by Mr Anderton (or 'Mr Cunningham') that the rabbit was alive. Therefore, Mr Anderton's knowledge of the rabbit's vitality was not an issue before the Board. In a preliminary finding made on 23 September 2016, I found that the offences are not ones of absolute or strict liability but ones of ordinary liability wherein the active nature of the words 'use' and 'cause to be used' in LR 18.5 and 'uses' in GAR 86(af) necessarily import a mental element.

1. The standard of proof is the normal civil standard of balance of probabilities. In matters such as this, the principles stated in Briginshaw v Briginshaw[1] in particular the following passages have been applied:

The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality.[2]

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.[3]

1. However, in Karakatsanis Racing Victoria Ltd[4] Osborne JA observed at paragraphs 38 and 39:
   1. In Greyhound Racing Authority v Bra__gg ([2003] NSWCA 388) Santow JA expressed in the following way the applicability of the Briginshaw concepts to the functions of a tribunal concerned with questions of the type in issue in this case.

The notion of 'inexact proof, and indefinite testimony or indirect references [scil. inferences]' needs to be translated to a comfortable level of satisfaction, fairly and properly arrived at, commensurate with the gravity of the charge, achieved in accordance with fair processes appropriate to and adopted by such a body.

1. This formulation captures the relevant sense in which the application of the principles stated by Dixon J in Briginshaw must be qualified in cases such as the present.

In recent cases before this Tribunal[5] the 'comfortable level of satisfaction' formulation has been applied.

1. The events giving rise to the charges were recorded by way of a video camera concealed on the track just behind the point where the lure is prepared before a trial and where it comes to rest at the end of a trial. This was a covert recording made by person or persons not identified to the Tribunal. There was no argument as to the authenticity of the recording.
2. The video shows a person accepted as being Mr Mills walking across the track to the lure mechanism holding a rabbit in one hand by its back legs. Mr Anderton does not accompany him. Mr Anderton is putting his first greyhound to be trailed that day into the starting box. The recording is not only video but also audio of what appears to be a good standard. Incidental sounds, including the twittering of birds can be heard. There is no recording of any conversation between Mr Mills and Mr Anderton. The rabbit hangs limply in Mr Mills' hand. It does not struggle or scream. As Mr Mills straps the rabbit to the lure, there are some small movements which may be signs of life or alternatively involuntary movements following some form of euthanasia. A common procedure and one which Mr Anderton gave evidence of seeing Mr Mills carry out on previous occasions, is cervical dislocation. It is not necessary to go into the details of this procedure. Suffice to say, no video shows Mr Mills carrying out this or any other procedure on the rabbit in question. However, I am satisfied that the rabbit does not exhibit the behaviour of a fully alive rabbit which has not been the subject of some procedure in an attempt to euthanase it.
3. Professor Ronald Slocombe, emeritus professor of veterinary pathology at the University of Melbourne gave extensive evidence as to the movements one would expect of a rabbit upon which a procedure had been successfully performed and the time such movements may persist. These expected movements were compared with the movements and timing observed on the video and Professor Slocombe concluded that the rabbit was alive at the commencement of the first and second trials. There was no expert evidence to controvert Professor Slocombe's evidence. Therefore, it must be accepted that the rabbit was alive. However, the minor nature of the movements lead me to conclude that there had been some attempt to euthanase the rabbit prior to its use on the lure. I am satisfied that had there been no such attempt, the rabbit's movements would have been more pronounced.

DID MR ANDERTON KNOW THE RABBIT WAS ALIVE AT THE START OF THE FIRST TRIAL?

1. Mr Anderton gave evidence that he did not know that the rabbit was alive. This is uncontroverted.
2. Mr Anderton gave evidence that he did not request the use of a live rabbit. This is uncontroverted.
3. Mr Anderton gave evidence that he was not offered the use of a live rabbit. This is uncontroverted.
4. The audio recording does not disclose any conversation between Mr Mills and Mr Anderton.
5. The video shows Mr Mills coming into view carrying the rabbit as referred to earlier. It is hypothesised that he brought the rabbit out of a shed on the far side of the track. Mr Anderton was not near him at this time. Mr Anderton did not come to the lure and view the rabbit. He was attending to his greyhound in the starting box.
6. I am not satisfied that Mr Anderton saw the rabbit prior to the start of the first trial. Further, I am not satisfied that he deliberately avoided seeing the rabbit at this time or that he deliberately refrained from making inquiries concerning the rabbit for fear that he might learn the truth.
7. At the end of the first trial, the lure with the rabbit attached and the greyhound with the rabbit in its jaws comes back into view. Mr Anderton came over and put a collar and lead on the greyhound and then removed the greyhound by holding the collar, in his right hand and grasping the greyhound's left flank with his left hand and pulling its flank. This is evidently a common manoeuvre for removing greyhounds from lures. There was some slight movement of the rabbit of which Mr Anderton says he took no notice. At the time Mr Anderton was removing the greyhound having the rabbit in its jaws and the greyhound being pulled away. I cannot be satisfied that Mr Anderton observed any movement by the rabbit after he had removed the greyhound. Immediately on removing the greyhound, Mr Anderton walked away with the greyhound.

DID MR ANDERTON KNOW THE RABBIT WAS ALIVE AT THE START OF THE SECOND TRIAL?

1. Had there been any evidence that Mr Anderton observed the rabbit moving, albeit slightly, at the end of the first trial, this would have been the first component of the second incident, that is the second trial. The video does not disclose any further evidence of Mr Anderton approaching the rabbit before the start of the second trial. I cannot be satisfied that Mr Anderton knew that the rabbit was alive at the start of the second trial. Again, he was attending to his greyhound at the starting box. It is common ground that the rabbit was dead at the end of the second trial.

1. If anyone can be said to have used a live rabbit, it is Mr Mills. He was the operator of the trial, he provided the rabbit, he attached the rabbit to the lure and he operated the lure. Mr Anderton was not involved in any of these activities.
2. In the recent case of Kavanagh v Racing Victoria Limited [2017] VCAT 386. Garde J sitting as President of this Tribunal discussed the meaning of the word 'cause' and judicial decisions on the word 'cause'. At paragraphs 478 to 484, His Honour said[6]:
   1. The word 'cause' is a protean word in the English language. It has many different meanings and shades of meaning and can form different parts of speech. When used as a verb, it means to be the cause of or bring about.[99]
   2. Courts have often considered the concept of 'causing' a particular act, event or outcome, in the context of regulatory offences.[100]
   3. In Miller v Hilton,[101] the High Court considered a provision which made it an offence for a person to 'cause to be driven' a vehicle on a 'controlled route'. The Court held that a father did not 'cause' his son to drive a vehicle on a controlled route when he did not know or intend that his son would drive the vehicle on that route. Rich J stated:

When it is expressly made an offence for one man to 'cause' another to commit what is forbidden as a crime we ought not to give any wide or general application to the word 'cause'. In this subsection I take it to mean to procure or bring about. It refers to some intentional or conscious production of the effect. Consequences are infinite and I think that the present section meant to forbid only doing an act knowing or intending that it should produce the consequence that a vehicle is driven upon a road for the purpose of carrying persons or goods for hire if it turns out that the road is a controlled route. [102]

1. In the same decision, Dixon J similarly remarked:

In such a connection I think the word 'cause' does not extend beyond acts or omissions of a person who does or makes them either for the purpose of bringing about the doing of the things which amount to the principal offence, or at least contemplating or foreseeing that they will or may have that result. ... I think there must be some intention that a vehicle shall be driven on a route for the purpose of carrying passengers or goods for hire, or that this shall be contemplated or foreseen as a result of the act in fact causing it. [103]

1. In O'Sullivan v Truth and Sportsman Ltd,[104] the High Court considered whether a newspaper had caused a newsagent to offer for sale its publication. Kitto J said:

It is important to recognise that what is here being considered is the 'causing' of an act which involves an intention to do it on the part of the person who does it. The inquiry may well be different in the case of an event independent of such an intention.

The truth is, I think, that one person cannot be said to cause another's act unless not only does the former express it as his will that the act shall be done by the latter but the latter's decision to do it is a submission to the former's will, that is to say a decision to make himself the instrument of the former for the effectuation of his will.[105]

1. Application of the principles of statutory construction and review of the decided cases concerning the word 'cause' for the purposes of AR 175(h) confirm that one person may be considered to have caused a particular result as a consequence of the actions of a second person if the first person:

(1) intentionally or consciously sought to produce the result;[106]

(2) knew or intended that the actions of the second person would produce the result;[107]

(3) had the purpose of bringing about the doing of the things that would amount to the result;[108]

(4) contemplated or foresaw that the actions of the second person would or might give rise to the result;[109] or

(5) refrained from making inquiries because the first person preferred not to know about the second person's actions, or wilfully shut his or her eyes for fear that he or she might learn the truth.[110]

1. In my view, any one of these circumstances is sufficient to show that the first person caused the result.
2. Mr Mills has evidently been involved in the use of live rabbits at the Tooradin Track. I am not able to conclude a presumption that this was also such a case nor am I able to draw an inference that it was. I conclude that it is probable that an attempt had been made to euthanase the rabbit. Mr Mills was not called to give evidence in the proceeding.
   • Mr Anderton is now aged 62. He first became a licensed greyhound trainer when he was aged 15.
   • Mr Anderton worked for Greyhound Tracing Victoria for about one year in 2005 as a steward leaving the employment on good terms.
   • Other than the year with Greyhound Racing Victoria, Mr Anderton has been continuously engaged in training greyhounds from the age of 15.
   • Mr Anderton has conducted training sessions for Greyhound Racing Victoria.
   • Mr Anderton has held various offices with greyhound racing clubs and has been made a life member of one such club and having honorary membership of another.
   • Mr Anderton has carried out activities for the welfare of greyhounds.
   • Mr Anderton has not been charged with any offence before this matter, nor has he received any warnings or reprimands over the course of some 45 years active involvement as a greyhound trainer.
3. I conclude that this profile weights in Mr Anderton's favour when assessing the probability of whether he used or caused to be used a live rabbit. I conclude that the probability of Mr Anderton requesting the use of a live rabbit or assenting to its use (thereby causing it to be used) or indeed using a live rabbit is low.
4. This assessment is strengthened by the fact that it was agreed that another covert video of Mr Anderton trialling a greyhound at the Tooradin Track clearly showed a dead rabbit on the lure. This suggests that there was no regular practice using live rabbits where Mr Anderton was concerned.
5. Having regard to all of the above, I am unable to be satisfied to the requisite standard that Mr Anderton had any knowledge of a live rabbit being used or that he in any way caused it to be used. Indeed, I am still not satisfied that the rabbit was deliberately left alive. It follows that I am not satisfied that Mr Anderton used a live rabbit in an improper manner.
6. The decision of the Greyhound Racing Appeals Disciplinary Board, made on 3 December 2015 is set aside. It follows that the decision made on 18 December 2015 is also set aside and that proceeding Z989/2015 is dismissed. The lifting of the suspension of Mr Anderton's registration remains a matter for Greyhound Racing Victoria. However, Mr Anderton is discharged from his undertaking to the Tribunal.

[1] [1938] HCA 34; (1938) 60 CLR 336.

[4] [2013] VSCA 305; (2013) 42 VR 176.

[5] King v Greyhound Racing Victoria [2016] VCAT 701, Kavanagh v Racing Victoria Limited [2017] VCAT 386.

[6] Footnotes numbered as in the original decision:

[99] Susan Butler (ed), Macquarie Dictionary (Macquarie Dictionary Publishers Pty Ltd, 6th ed, 2013).

[100] See for example Alphacell Ltd v Woodward [1972] UKHL 4; [1972] AC 824; Simpson v Gatacre [1992] NSWLEC 9; Window v Phosphate Cooperative Co of Australia [1983] VicRp 88; [1983] 2 VR 287; Allen v United Carpet Mills Pty Ltd [1989] VicRp 27; [1989] VR 323.

[101] [1937] HCA 23; (1937) 57 CLR 400.

[102] (1937) 57 CLR 401, 413.

[104] [1957] HCA 8; (1957) 96 CLR 220.

[105] [1957] HCA 8; (1957) 96 CLR 220, 230-231. See also Samuels v Centofanti [1967] SASR 251, 266.

[106] Miller v Hilton [1937] HCA 23; (1931) 57 CLR 400, 413.

[110] Le v DPP [2007] VSCA 72; (2007) 171 A Crim R 196, 202 [23].