Applicant v Respondent [2018] VSC 64 | Case summary

Supreme Court of Victoria|2018-02-28|Before: ZAMMIT J

ADMINISTRATIVE LAW - Judicial review - Victorian Civil and Administrative Tribunal - Greyhound racing - Review of decision of Racing Appeals and Disciplinary Board - Disciplinary offences - Whether proof of knowledge or awareness required - Whether defence of honest and reasonable mistake available - Appeal allowed in part - Miller v Hilton [1937] HCA 23; (1937) 57 CLR 400; Proudman v Dayman (1941) 67 CLR 537; Day v Sanders [2015] NSWCA 324; (2015) 90 NSWLR 764 referred to - Racing Victoria Ltd v Kavanagh followed -

STATUTORY INTERPRETATION - Delegated legislation - Rules of greyhound racing - Racing Act 1958 s 82, Greyhound Racing Victoria Local Racing Rules LR 18.5, Greyhounds Australasia Rules GAR 86(af).

1 The respondent, Mr Paul C Anderton, has been a greyhound trainer and breeder for somewhere in the vicinity of 45 years. At all material times he was registered with Greyhound Racing Victoria ('GRV').

2 In 2015 the Board of GRV suspended the respondent's licence and charged him with two disciplinary offences under the Local Racing Rules ('LR') and Greyhounds Australasia Rules ('GAR').[1] The charges arose out of the trialling of three greyhounds at Tooradin Trial Track ('Tooradin') on 11 November 2014. GRV alleges that the respondent used, or caused to be used, a live rabbit as a lure for the excitement of his greyhounds in contravention of LR 18.5 and GAR 86(af). GRV contends that these are offences of absolute or strict liability such that it is unnecessary to prove knowledge or awareness that the rabbit was alive.

3 In December 2015 the Board of GRV found the charges proved and disqualified the respondent from participating as a trainer for eight years. The respondent appealed to the Victorian Civil and Administrative Tribunal ('the Tribunal'). The Tribunal held that LR 18.5 and GAR 86(af) are offences of ordinary liability and, on its own findings of fact, that the respondent did not 'use' a live rabbit or 'cause' it to be used.[2]

4 GRV now seeks leave to appeal to this Court under s 148(1)(b) of the Victorian Civil and Administrative Tribunal Act 1998. GRV's proposed grounds of appeal raise for consideration the following questions of law. Firstly, are LR 18.5 and GAR 86(af) offences of ordinary, strict or absolute liability? And, secondly, are the charges proved against the respondent?

5 For the reasons that follow, I have concluded that LR 18.5 and GAR 86(af) are offences of strict liability, which do not rebut the presumption that the respondent may plead the defence of honest and reasonable mistake. However, whether the defence is made out is axiomatically a question of fact, which must be answered by the court or tribunal that has seen and heard the evidence. Accordingly, I would grant leave to appeal, allow the appeal in part and remit the matter to the Tribunal for determination.

6 The respondent became a licensed greyhound trainer when he was 15 years old. Since that time he has bred and trained greyhounds continually and, at various points in his career, has had anywhere from 25 to 70 dogs on his property. He has been involved in every aspect of greyhound racing from being a starter, judge, catching pen attendant and track attendant, to serving on various club committees, mentoring young trainers and, for one year, working as a steward for GRV.

7 Needless to say, the respondent is an experienced person in matters pertaining to greyhound racing, his standing in the industry being of great import to him.

8 On 11 November 2014 the respondent attended Tooradin and trialled three greyhounds. He was assisted in this endeavour by the track operator. It seems the operator's usual practice was to keep the 'bait' (ordinarily a rabbit) in a nearby shed. Prior to a trial, he would enter the shed, select a rabbit and euthanize it by a process known as 'cervical dislocation' (colloquially described as a 'karate chop to the neck'). He would then re-emerge with the dead rabbit, attach it to the mechanical lure, and operate the lure for the purposes of what was to follow.

9 It is not disputed that, on the day in question, the operator attached a live rabbit to the lure. Nor is it disputed that the rabbit was alive when the first two trials started, but not when the third trial started, such that it must have expired at some point during the second trial.

10 The most likely explanation for what happened is that cervical dislocation was performed but failed to sever, or fully sever, the rabbit's spine.

11 Unbeknownst to the operator and the respondent, animal rights activists had installed secret cameras at Tooradin, which recorded the trialling of the three greyhounds. The footage (which includes audio) showed the rabbit to be exhibiting small movements, which may have been signs of life, or else involuntary movements following some form of euthanasia.[3]

12 In early 2015, GRV was notified of the footage, which formed part of an impending Four Corners episode. Before the episode aired, GRV took action, pre-emptively suspending around 15 persons suspected of involvement in live baiting.[4] One such person was the respondent.

13 Five months later, on 28 July 2015, GRV charged the respondent with two disciplinary offences, namely breach of LR 18.5 and GAR 86(af), both of which are classed as 'serious offences'.[5]

14 On 23 November 2015, at a hearing of the GRV Racing Appeals and Disciplinary Board ('the Board'), the respondent pleaded not guilty to both charges.[6] The hearing was conducted on the basis that both offences imposed absolute liability on the respondent such that it was not necessary for GRV to prove he had knowledge or awareness that the rabbit was alive.

15 On 3 December 2015 the Board found both charges proven.

16 On 18 December 2015 the Board imposed penalty solely on charge 2. The respondent was disqualified for a period of eight years with five years of that period to be suspended on condition. The penalty was to take effect on 13 February 2015.

17 The respondent immediately appealed to the Victorian Civil and Administrative Tribunal ('the Tribunal') for a review of the Board's decision.[7]

18 That review was conducted by way of a hearing de novo. The Tribunal found, by way of a preliminary hearing, that LR 18.5 and GAR 86(af) were offences of ordinary rather than absolute or strict liability.[8] According to the Tribunal, the active nature of the language used in LR 18.5 and GAR 86(af) 'necessarily imports a mental element', at least insofar as the status of the animal is concerned.[9]

19 On 1 December 2016, at the substantive hearing, the respondent gave sworn evidence and was cross-examined. The Tribunal reserved its decision.

20 On 24 March 2017 the Tribunal allowed the appeal and set aside the orders of the Board. Having found the charges unproven, specifically with regard to the aforementioned mental element, the Tribunal dismissed the charges laid by GRV. The Tribunal also deemed it improbable that the respondent, by 'requesting' or 'assenting' to its use, had caused the rabbit to be used.[10]

21 It is necessary to set out the text of the provisions creating the disciplinary offences with which the respondent is charged.

22 The first of these, LR 18.5, is in the following terms:

18.5 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 the exciting of greyhounds on any Greyhound Trial Track or any other location.

23 As LR 18.5 refers explicitly to LR 18.4 it is convenient to set out that provision:

18.4 No live animal other than a greyhound shall be used or cause to be used in any manner on any Greyhound Trial Track or surrounding area as defined by the board.

24 Also relevant, since it relates to both LR 18.4 and 18.5, is LR 18.6:

18.6 (a) The manager, assistant manager, proprietor, lessee, or other occupier of a Greyhound Trial Track shall each be guilty of an offence under these rules if any situation described in LR 18.4 occurs.

(b) A person shall be guilty of a serious offence if they breach LR 18.

18.6(a) states that the liability flowing from any breach of LR 18.4 will be sheeted home to persons not directly involved but who are nevertheless in positions of responsibility at the relevant greyhound track. This indicates the seriousness of the mischief to which LR 18.4 is directed. The impression is reinforced by the stipulation in LR 18.6(b) that any breach of LR 18 will be a 'serious offence' as compared to other offences in the Rules.

25 The second provision, GAR 86(af), is in the following terms:

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

...

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

26 Relevantly, GAR 86 lists a variety of prohibited activities, many of which are couched in the language of mens rea. Thus, from a cursory glance, it can be seen that the drafters have employed terms like 'corruptly', 'fraudulently', 'improperly', 'wilfully', 'knowingly' and so on. This sort of language is conspicuously absent from GAR 86(af).[11]

27 On their face, and applying the ordinary rules of statutory construction, neither LR 18.5 nor GAR 86(af) contemplate any knowledge or awareness on the part of the person who 'uses' or 'causes' a live animal to be used. Indeed, as a matter of plain English, the starting point must be that the drafters did not intend these offences to include a mental element. However, this does not mean that LR 18.5 and GAR 86(af) are necessarily offences of absolute or strict liability, for there is still the question of whether a mental element is imported by 'use' or 'cause to be used'.

28 As it happens, this question has been substantially answered by a very recent decision of the Court of Appeal,[12] to which I will turn after setting out the submissions of the parties.

29 The starting point, for GRV, is that LR 18.5 and GAR 86(af) should be construed by way of the ordinary rules of statutory interpretation.[13] However, as civil disciplinary rather than criminal offences, they should not be subject to presumptions sourced from the criminal law (or else such presumptions should carry less weight than might otherwise be the case).

30 On this basis, GRV sought to distinguish He Kaw Teh v The Queen,[14] which stands for the proposition that criminal offences are presumed to include mens rea. It also sought to rebut the presumption, discussed in CTM v The Queen,[15] that the defence of honest and reasonable mistake will ordinarily be available.[16] To these ends, GRV cited Jerrick v Greyhound and Harness Racing Regulatory Authority, in which Smart AJ opined that there is 'considerable difficulty in importing criminal law concepts into the law relating to civil offences.'[17]

31 GRV submitted, in essence, that the interpretation of a disciplinary offence requires:

(i) consideration of the text of the provision itself (which will be paramount in the pursuant analysis);

(ii) consideration of relevant contextual materials, including the general purpose and policy of the provision, in particular the mischief to which it is directed; and

(iii) asking whether absolute or strict liability would further that purpose.

32 The above approach was applied by Basten JA in the analogous case of Day v Sanders.[18] Day dealt with the proper construction of the Australian Harness Racing Rules and, in particular, the offence of presenting a horse for a race not free of prohibited substances. As Basten JA stated:

The present case does not involve the addition of a new offence to the general criminal law: it involves the creation by a regulatory body of an offence for breach of the rules governing the industry. While it is true that the available penalties include fines and deprivation of livelihood, the regulatory scheme bears a closer relationship to professional discipline than to the general criminal law. Indeed, it bears an even closer relationship to the law regulating sporting activities, although neither side took the court to that area of the law. Disregarding analogous areas, the fact that the rule does not add a new offence to the criminal law further weakens any statutory presumption beyond the effect noted by Dixon J in Proudman v Dayman in relation to public health and safety measures.

In that circumstance, there is limited benefit to be found in discussing cases which involve the addition of a new offence, or new form of prohibition, to the general criminal law, including He Kaw Teh v The Queen and CTM v The Queen, to which the Court was referred. When considering the proper operation of a statutory provision which is silent as to the precise nature of the mental element required for an offence, it may be asked whether it would assist the purpose of the legislative scheme to put a person under strict liability or whether it can be said that, absent some conscious activity which may promote observance of the regulations, 'there is no reason in penalizing him, and it cannot be inferred that the legislature imposed strict liability merely in order to find a luckless victim.'[19]

This analysis lead Basten JA to conclude that there is 'a legitimate interest of every participant in harness racing ... in a "level playing field" involving "clean" participants ... [and] a legitimate argument that these conditions can only be created by the imposition of absolute liability on the human participants.'[20] His Honour therefore held that the subject offence was one of absolute liability such that the defence of honest and reasonable mistake was not available.[21]

33 GRV submitted that the same reasoning should apply to LR 18.5 and GAR 86(af). Self-evidently, these rules aim to prevent 'live baiting' and 'animal cruelty', both of which are essential if greyhound racing is to uphold its reputation in the community. In support of this proposition, GRV cited the recent case of Canty v Greyhound Racing Victoria, in which Kaye JA described live baiting as 'abhorrent' and observed that, 'as a result of the revelation of that practice, the image of [greyhound racing] has taken a battering.'[22]

34 GRV submitted that to construe LR 18.5 and GAR 86(af) as imposing absolute liability would further the purpose of animal welfare by requiring trainers and handlers to physically check or inspect the lure so as to ensure live bait is not being used. This 'reasonable avoiding action' would not be onerous.[23]

35 GRV submitted that the construction it favours is supported by the fact that most animal cruelty offences do not require proof of mens rea. To construe LR 18.5 and GAR 86(af) as requiring proof of knowledge or awareness would thus be to impose a greater burden on the prosecution than in a criminal context. This would violate the presumption that criminal offences require more in the way of proofs than disciplinary ones. Relevantly, in a string of cases from around Australia, courts have held offences of this kind to be offences of strict liability.[24]

36 In short, GRV submitted that the Tribunal erred by asking whether the respondent had 'requested' live bait or 'assented' to its use, when it should have asked whether by his conscious and voluntary actions he had 'used' it or 'caused' it to be used.[25]

37 The respondent submitted that the case against him had been conducted on the basis that he was liable not because of anything he had done but because he was the trainer of the greyhounds trialled on the live bait. He submitted that it had not been alleged that he touched, held or attached the rabbit to the lure, nor that he knew (or should have known) that it was alive. He pointed to the particulars of the charges, which did not allege that he asked for a live rabbit, directed or instructed that one be used, or assented to its use. Nor were any of these matters put to him in evidence before the Board or the Tribunal.

38 The respondent reiterated his evidence before the Tribunal. The key points, he submitted, were as follows:

(i) he had never used lived bait and had not been offered live bait by the operator;

(ii) the operator's practice was to use dead rabbits and, in particular, to 'cervically dislocate' them prior to a trial;

(iii) he had not seen the operator 'cervically dislocate' the rabbit and did not ask the operator whether it was dead or check the lure to see if it was dead;

(iv) he did not know the rabbit was (or might be) alive; and

(v) he did not have a 'common understanding' with the operator that a live rabbit would be used.

39 Next the respondent reiterated the 'uncontroverted' factual findings of the Tribunal. These were, he submitted, as follows:

(iv) the audio recording does not disclose any conversation between himself and the operator about a live rabbit;

(v) he was not near the operator when the latter carried the rabbit to the lure and he did not attend or look at the lure as it was being attached;

(vi) he was focused on his greyhounds and did not see the rabbit, nor deliberately refrain from looking at it, at the commencement of the first or second trials;

40 The respondent stressed three further findings of the Tribunal. First, it was 'probable' that the operator had attempted and failed to euthanize the rabbit.[26] Second, the respondent was a credible witness, whose 40 years in greyhound racing without complaint 'weighed in [his] favour'.[27] Third, a different piece of video footage on a different day showed a dead rabbit being used during a trial of the respondent's greyhounds, suggesting there was 'no regular practice of using live rabbits where [the respondent] was concerned.'[28]

41 The respondent submitted that the Tribunal was correct in construing LR 18.5 and GAR 86(af) as offences of ordinary liability.

42 Like GRV, the respondent submitted that LR 18.5 and GAR 86(af) should be construed using the ordinary rules of statutory interpretation, the correct approach being to start with the text, consider the purpose and policy of each provision, and ask whether imposing absolute liability would further that purpose. And, again like GRV, he relied on He Kaw Teh and Azadzoi as illustrating this approach.[29]

43 Unlike GRV, however, the respondent submitted that the word 'use' (in each provision) is a 'doing word' that connotes 'activity' or 'conduct' rather than 'passivity' or 'mere presence'. Accordingly, he submitted that the word implies a mental element on the part of the person charged, or at the very least a 'direct link' or 'connection' between the subject person and subject offence.

44 The respondent cited as authority for this last proposition the case of Sultan v The Queen.[30] That case concerned the offence, under s 300(2) of the Crimes Act 1900 (NSW), of using a false instrument, knowing it to be false, so as induce a third party to accept it as genuine and so perform (or not perform) an act to their detriment. There, the appellant had acted in the capacity of a mortgage broker, receiving over $400,000 in fees with respect to loans totalling $5,140,000. There had been no finding that the appellant did actually 'deal', 'employ' or 'carry into effect' the false instrument. The case turned on the prospect that it could be shown that the person (or persons) who did so was his agent.[31]

45 Relevantly, as to the word 'use' in the s 300(2), Spigelman CJ said:

The verb 'to use' is protean and takes its meaning from its context. It is a transitive verb. The specified object is 'instrument' which is defined in terms of a physical thing capable of containing information or writing or its equivalent. There is, in my opinion, no 'use' within the meaning of s 300(2) unless there is a direct link between the conduct of the accused and the deployment of the instrument for a purpose.

In my opinion, in s 300(2) 'use' involves the idea of actual deployment by the person charged or by his or her agent, or fellow participant in a joint enterprise. It is not enough that the person charged is merely present when the instrument is 'used' by another person. Presence could support an accessorial charge, but not a charge of 'use'.[32]

46 The respondent submitted that, if LR 18.5 and GAR 85(af) were to be construed in line with Sultan, it would be necessary to prove that the trainer had either:

(ii) instructed another person to carry out live-baiting; or possibly

(iii) knew that another person was carrying out live-baiting and permitted it to happen in connection with one of his greyhounds.

47 The respondent also relied on the recent case of Kavanagh v Racing Victoria Ltd.[33] (I discuss this case and its appeal disposition at [54] below.) Kavanagh concerned whether two racehorse trainers had 'administered' or 'caused to be administered' a prohibited substance to their racehorses in breach of AR 175(h) of the Australian Rules[34]f Racing.34 To cast light on AR 175(h), Garde J reviewed authorities on the word 'ca[35]e',35 most notably the High Court cases of _Mill[36] v Hilton_36 and O'Sullivan v Truth & Spo[37]sman Ltd.37

48 Miller dealt with a provision making it an offence for a person to 'cause to be driven' a vehicle on a 'controlled route'. Rich J (with whom Dixon and McTiernan JJ agreed) held that to 'cause' means to 'procure' or 'bring about' and refers to some 'intentional or conscious production of the effect.'[38] O'Sullivan concerned whether a newspaper had 'caused' a newsagent to offer for sale its publication. Kitto J (agreeing with the plurality) held 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'.[39]

49 Applying these authorities, Garde J concluded that for one person to 'cause' a second person to perform a prohibited act, it must be shown that the first person:

(i) intentionally or consciously sought to produce the result;

(ii) knew or intended that the actions of the second person would produce the result;

(iii) had the purpose of bringing about the doing of the things that would amount to the result;

(iv) contemplated or foresaw that the actions of the second person would or might give rise to the result; or

(v) 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.[40]

50 The respondent submitted that the factual findings of the Tribunal do not satisfy any of the above five ways in which a person may 'cause' another to perform a prohibited act. Only the wilful blindness scenario, the respondent submitted, was remotely relevant; but, even then, the evidence does not support such a finding.[41]

51 Like GRV, the respondent submitted that the 'purpose' of LR 18.5 and GAR 86(af) is the prevention of 'live baiting' (and, more broadly, the promotion of 'animal welfare'), but rejected the contention that the imposition of absolute liability would in any way further this purpose. He submitted that no animal would have its welfare improved if persons who had no knowledge or awareness of the prohibited act were to be punished. The respondent submitted that the only person who 'used' live bait was the operator and he had been duly punished. Accordingly, he submitted, it could not improve 'enforcement' to also hold the respondent liable (as compared, for example, to cases involving the importation of narcotics or speeding offences).

52 The respondent submitted that, even if this Court finds that LR 18.5 and GAR 86(af) are offences of strict liability, the respondent is not guilty because the defence of honest and reasonable mistake of fact is made out. This followed, he submitted, from the fact that he honestly and reasonably believed the operator had euthanized the rabbit by way of 'cervical dislocation'.

53 The respondent lastly submitted that, even if this Court finds that LR 18.5 and GAR 86(af) are offences of absolute liability, the respondent is not guilty because there must be a direct link between the subject person and the subject offence. This has not been shown, he submitted, and nor can it be shown that he caused the operator to use live bait by authorising or directing him to do so.

54 The foregoing submissions were received before the Court of Appeal handed down its decision in Kavanagh.[42]

55 During the course of oral argument, both parties acknowledged the relevance of Kavanagh, contending that the construction of the 'administration' offences in that case should guide this Court in its approach to LR 18.5 and GAR 86(af). Indeed, on the probability that Kavanagh shortly would be handed down, both parties requested leave to file supplementary submissions on the applicability of that case to the present one.

56 Before turning to those submissions, it is convenient to outline the reasoning of the majority in Kavanagh, which bears directly on the substantive question before me.

57 Kavanagh concerned whether two trainers had 'administered' or 'caused to be administered' a prohibited substance for the purpose of enhancing the performance of their racehorses. The charges were found proven by the Racing and Disciplinary Board. The trainers appealed to the Victorian Civil and Administrative Tribunal. By way of a hearing de novo the Tribunal found that neither trainer knew or was aware that a prohibited substance had been administered to any of their horses. That factual finding was not challenged on appeal.

58 The central issue on appeal was the proper construction of AR 175(h) of the Australian Rules of Racing and whether it necessary to prove knowledge or awareness of a prohibited substance.

59 The subject provision, AR 175(h), is as follows:

The Committee of any Club or the Stewards may penalise:

...

Any person who administers, or causes to be administered, to a horse any prohibited substance:

(i) for the purpose of affecting the performance or behaviour of a horse in a race or of preventing its starting in a race; or

(ii) which is detected in any sample taken from such horse prior to or following the running of any race.

It will be immediately apparent that the phrase 'administers or causes to be administered' in AR 175(h) is relevantly the same as 'uses or causes to be used' in LR 18.5. Of course, while the verbs 'administer' and 'use' are clearly different, this goes to the facts of each case and not to the construal of liability.

60 The reasoning of the majority is principally set out in the judgment of McLeish JA (with whom Cavanough AJA agreed).[43]

61 His Honour took a relatively broad approach to the word 'administer', noting that in the context of administering a medication or substance it can mean 'provide', 'apply', 'give' or 'deliver'.[44] Thus, as a matter of ordinary language, 'a person "administers" a substance to a horse if the person gives or applies the substance to the horse.'[45] On this view, such an action 'entails an awareness that there is a substance being administered', but not 'an awareness of what that substance is.'[46]

62 Next McLeish JA considered the word 'cause' in AR 175(h), reasoning that it must provide the real basis for the contention that proof of knowledge or awareness is required. His Honour developed this argument via a discussion of the aforementioned High Court cases of Miller[47] and O'Sullivan.[48]

63 It will be remembered that Miller concerned whether the operator of a general merchant business had 'caused to be driven' a vehicle on a 'controlled route'. It is convenient to adopt McLeish JA's summary of the facts:

The operator had left his son in charge of the business for a weekend, during which time the son received a message asking that a tractor, whose delivery had been promised by the father, be delivered urgently to a location in South Australia. The father had given no instructions to his son about the delivery of the tractor. The son delivered the tractor and in doing so drove on a controlled route without a licence. It was not clear whether it was in fact possible to travel to the relevant destination without driving on any controlled route. A magistrate convicted the father, on the basis that the son's trip on a controlled route was a natural and probable consequence of the father's act of leaving him in charge of the business, and that the father must be taken to have intended those consequences.[49]

The High Court respectfully agreed with the Supreme Court of South Australia that the conviction should be set aside. Relevantly, as McLeish JA puts it, the Court could not be satisfied that 'the father had intended that the vehicle should be driven on a controlled route or that he contemplated or foresaw this happening as a result of his own conduct'.[50]

64 Significantly, McLeish JA highlighted the reasoning of McTiernan J, who held that a 'mere casual connection, or relationship of cause and effect, resulting in a vehicle accidentally being driven on a controlled route would not suffice.'[51] This concept of sufficiency, when applied to the facts in Miller, suggested that:

causation would have been established had it been shown that the delivery could only be effected using a controlled route, that the father had expected the son to go by a controlled route, or that to take such route was incidental to a plan the father had conceived for having the job done. As the evidence stood, the father had no proven involvement in the choice of route and the decision to take a controlled route could have been taken independently by the son. No finding was made that the father intended, anticipated or expected that the son would use a controlled route. As such, it could not safely be inferred that the driving on a controlled route was other than an accidental consequence of the father's conduct.[52]

His Honour observed that McTiernan J would have upheld the appeal (and, indeed, Latham CJ did uphold the appeal) if it had been shown that the delivery could only be achieved by driving on a controlled route.[53] In those circumstances, in the words of McTiernan J, 'it would be no defence that [the father] did not know that it was a controlled route.'[54]

65 After synthesising the reasoning of the High Court in Miller, McLeish JA summarised its relevance to the 'cause' limb of AR 175(h):

Although the judgments differ in emphasis, Miller shows that, in a criminal statute, the word 'causes' when used in conjunction with offending by another person will generally not extend to describe every factor which contributes to that offending, or all those acts or omissions of which the offending might be a natural and probable or reasonable result. Rather, there must be either an intention that the offending act take place or contemplation or foresight that the person's conduct will lead to the offending act.

The critical question in Miller was not whether the father had caused his son to drive the vehicle, but whether he had caused him to do so on a controlled route, that being the relevant feature of the conduct that rendered it criminal. But it was clear that this requirement could have been satisfied without the father necessarily being aware that the road upon which he had caused his son to drive was a controlled route.

...

These observations need to be borne in mind when considering the references in the judgments to intending, contemplating or foreseeing the offending conduct. It is plain that what must be intended, contemplated or foreseen is the conduct itself (driving on a road that happens to be a controlled route) and not the criminal character of that conduct.[55]

Applying this line of reasoning McLeish JA concluded that 'even in the criminal context a person can intend, foresee or contemplate certain actions, so as to have "caused" them, without fully appreciating the details of those actions or the features that gave them their criminal character.'[56]

66 Next McLeish JA turned to O'Sullivan. It will be remembered that this case concerned whether a newspaper publisher had 'caused' its newspaper to be offered for sale (when the sale of it would breach certain regulations). A plurality of the High Court (Dixon CJ, Williams, Webb and Fullagar JJ) construed 'cause' as involving 'some express or positive mandate from the person "causing" to the other person, or some authority from the former to the latter, arising in the circumstances of the case.'[57] Further, their Honours said:

[The provision creating the offence] should be interpreted as confined to cases where the prohibited act is done on the actual authority, express or implied, of the party said to have caused it or in consequence of his exerting some capacity which he possesses in fact or law to control or influence the acts of the other. He must moreover contemplate or desire that the prohibited act will ensue.[58]

In this case, as McLeish JA observed, the offence was 'not made out because, while the publisher had contributed to the newsagents' decision to offer the paper for sale ... the vendors had made the decision to offer the newspaper for sale in the exercise of their own free will and quite independently of the publisher.'[59] In other words, as in Miller, the facts did not establish that the impugned acts were a sufficient cause of the prohibited activity.

67 Drawing Miller and O'Sullivan together, McLeish JA opined that:

a person relevantly 'causes' another person to do an act by authorising or directing that the act take place. The authority may be actual or implied, and the direction may be made through exerting some capacity of control or influence over the acts of the other person ... [T]he person [must] contemplate or desire that the conduct in question take place. But it is clear that the test of authority or direction is the principal guide. Once it is established that a person has authorised or directed another to engage in particular conduct, it will ordinarily follow quite readily that the person contemplated or intended that the other person would act as so authorised or directed. Conversely, if the relevant conduct was wholly outside the contemplation of the first person, it will not usually be possible to say that he or she authorised or directed the other person to engage in it.[60]

Relevantly, his Honour held that 'a person "causes" another person to administer a prohibited substance to a horse if the person either authorises that person to administer the substance to the horse or exerts a capacity of control or influence to direct the person to do so, in either case intending, contemplating or desiring that the authority or direction will be acted upon.'[61] Significantly, while this test excludes 'accidental administration' and 'mere casual connection', it imposes a 'heavy obligation on those who entrust horses to the care of third parties to be clear in what they authorise to be administered to those horses.'[62]

68 Applying this test to the facts in Kavanagh, McLeish JA concluded that:

it is not necessary that the person know what the substance is, in order to give the requisite authority, or to give the direction, for its administration and to contemplate that such authority or direction will be acted upon. The person may simply know of the existence of the substance and authorise its administration, ignorant as to what it is and still less aware as to its character as a prohibited substance. Such a person will have 'caused' the substance to be administered. Or the person may not even know of the existence of the substance yet give permission to another person to deal with the horse in terms that authorise the second person to administer to it substances of whatever kind, whether prohibited or not ... Again, by the width of the authority given, the first person in such circumstances 'causes' the second to administer whatever substances he or she thereafter administers to the horse.[63]

Such an approach furthers the identified purpose of AR 175(h) by holding trainers responsible, where they have given authority or direction, for the administration of prohibited substances to their racehorses. And in doing so, it furthers the broader purpose of the Rules, namely to uphold the integrity of the horse racing industry (which is financially dependent on its betting turnover). As Anderson and Owen JJ observed in Harper v Racing Penalties Appeal Tribunal (WA),[64] in a passage cited approvingly by McLeish JA in Kavanagh, '[the stewards] do not have the resources of the State to investigate and prove crime' and so will 'rarely be in a position to positively gainsay the asseverations of the trainer on the subject, or his denials', and yet '[they] are required to try to stop doping.'[65]

69 For these reasons, McLeish JA rejected the contention that the language of causation in AR 175(h) imports a mental element, finding that the Tribunal had erred in so holding. Nevertheless, since the Tribunal had found that neither trainer had 'any awareness or suspicion that [the veterinarian] intended to administer the contents of the vitamin complex bottle or any such bottle to their horses', his Honour concluded that the charges must be set aside; for, on those findings, 'it follows that the veterinarian had embarked upon his own course, neither authorised, nor directed or controlled by [the trainers], in administering the prohibited substance.'[66]

70 I note for completeness that Cavanough AJA agreed with McLeish JA and reiterated the test of authority or direction as follows:

What, then, is involved in the notion of causation for the purposes of AR 175(h)? I agree with McLeish JA that, for the purposes of that provision, a person will have caused a prohibited substance to be administered where he or she has authorised the administration of a substance or exerted a capacity of control or influence to direct that to be done (or, I would add, has requested that to be done), contemplating or desiring that the substance will be administered but not necessarily knowing what the substance is. I also agree with McLeish JA that for a person to give free licence to another person to administer to a horse belonging to the first person whatever substance the second person wished to administer might also, at least in some circumstances, amount to causation within the meaning of AR 175(h)(i) and (ii).[67]

71 GRV submitted that the reasoning of the majority in Kavanagh is relevant to the present case in four ways.

72 Firstly, by analogy with the verb 'administer' in AR 175(h), the verb 'use' in LR 18.5 and GAR 86(af) should not be construed as importing a mental element. There is no reason to treat these verbs differently and, in any event, both parties accepted that they are analogous. Moreover, both are used in the same context, namely the creation of an offence against the rules of racing. Applying Kavanagh, the verb 'use' in LR 18.5 and GAR 86(af) does not necessitate an awareness of the precise nature of the 'object' being used (including whether it is alive), only that it is being used.

73 Secondly, by analogy with the phrase 'cause to be administered' in AR 175(h), the phrase 'cause to be used' in LR 18.5 should not be construed as importing a mental element. Again, applying Kavanagh, to 'cause' a live animal to be used does not require proof of knowledge or awareness that the animal is alive. Rather, the test is one of authority or direction, which will be influenced by but not determined by proof of knowledge or awareness.

74 Thirdly, by parity of reasoning with the majority in Kavanagh, disciplinary offences should not be construed by the rigid application of principles from the criminal law. That this is so supports GRV's primary contention that the proper construction of LR 18.5 and GAR 86(af) does not include a mental element.

75 Fourthly, by parity of reasoning with Maxwell P and Cavanough AJA in Kavanagh (who reached different conclusions on this point), the fact that LR 18.5 and GAR 86(af) carry no mandatory or minimum penalty, and do not limit the Board's discretion to impose a penalty (or no penalty at all) appropriate to the circumstances of the case, strongly indicates that they are not offences of mens rea.

(a) the reasoning of the majority in Kavanagh should not dictate the outcome of this proceeding;

(b) this Court should uphold the finding of the Tribunal that LR 18.5 and GAR 86(af) are offences of ordinary liability; and

(c) even if Kavanagh is applicable, based on the factual findings of the Tribunal, it is not open to this Court to find the respondent 'used' live bait or 'caused' it to be used.

77 In support of (a) and (b) the respondent submitted that reasonable minds had differed as to the proper construction of AR 175(h). Thus, Garde J (at first instance) and Maxwell P held that it was necessary to prove knowledge or awareness of the prohibited substance, whereas McLeish JA and Cavanough AJA held that it was not (preferring the aforementioned test of authority or direction).

78 In support of (c) the respondent submitted that, even if it is not necessary to prove that he knew or was aware that live bait was being used, it still needs to be shown that he 'used' or 'caused' it to used. And, on the evidence, the only person who 'used' live bait was the operator. And nor does the evidence support the inference that the respondent in any way authorised or directed that live bait be used and so 'caused' the operator to do so.

79 This was an unusual case in several respects. Firstly, it is unusual in the prosecuting of a disciplinary offence for there to be audio-visual evidence of the commissioning of that offence, such evidence being sufficient to make out the elements of the offence. Here, with the addition of the oral testimony of the respondent, there was more than enough evidence for the Tribunal to be secure in its findings. Further, and unsurprisingly given the direct and reliable nature of the evidence, those findings are not challenged for the purposes of this appeal.

80 Secondly, it is unusual for the same question of statutory interpretation to arise in two analogous cases, the decision of the higher court supplying the answer to the court below. Here, the reasoning of the majority in Kavanagh is directly applicable to the construction of LR 18.5 and GAR 86(af), resolving any uncertainty as to whether these are offences of absolute, strict or ordinary liability.

81 It is convenient to divide my analysis into two sections. The first section will deal with the proper construction of LR 18.5 and GAR 86(af) and the second section with whether, on the factual findings of the Tribunal, the charges have been proved against the respondent.

82 The starting point must be the text of the rules themselves.

83 In my view, it is clear from the plain meaning of the text of LR 18.5 and GAR 86(af) that the drafters intended to create offences of strict liability, which do not require proof of knowledge or awareness as to the status (i.e. living or otherwise) of the animal being used. I say strict rather than absolute because there is a presumption, in the absence of express words to the contrary, that a person charged with a civil disciplinary offence will have open to them the defence of honest and reasonable mistake of fact. In short, unless rebutted by the relevant statutory instrument, strict liability will be the default position.[68]

84 The origins of this presumption appear to lie in the judgment of Dixon J in Proudman v Dayman.[69] As Dixon J said:

As a general rule an honest and reasonable belief in a state of facts which, if they existed, would make the defendant's act innocent affords an excuse for doing what would otherwise be an offence.

The strength of the presumption that the rule applies to a statutory offence newly created varies with the nature of the offence and the scope of the statute.

...

There may be no longer any presumption that mens rea, in the sense of a specific state of mind, whether of motive, intention, knowledge or advertence, is an ingredient in an offence created by a modern statute; but to concede that the weakening of the older understanding of the rule of interpretation has left us with no prima facie presumption that some mental element is implied in the definition of any new statutory offence does not mean that the rule that honest and reasonable mistake is prima facie admissible as an exculpation has lost its application also.

Doubtless over a wide description of legislation the presumption in favour of its application is but a weak one. But it still remains a presumption, and in relation to s 30 [of the Road Traffic Act 1939 (SA)] there appears to be no sufficient reason for treating it as rebutted.[70]

Similarly, in the present case, there is no sufficient reason for treating the presumption as rebutted. The text of LR 18.5 and GAR 86(af) does not rebut it. The identified purpose of the provisions does not rebut it. And arguments around 'enforcement' of the regulations fall short of what would be required to rebut it. As always, the text of the statutory provisions is the paramount consideration, whose clear meaning cannot easily be displaced.[71]

85 In this respect, the present case can be distinguished from the aforementioned cases of Day and Harper, in which the text of the rules supported the proposition that the defence of honest and reasonable mistake was not available. Thus, in Day, Basten JA stressed that:

The first factor is the requirement of subr (4) that the offence is committed by a trainer 'regardless of the circumstances in which the prohibited substance came to be present in or on the horse.' That language is inconsistent with the availability of a defence of reasonable precautions having been taken; if it would not be a defence to demonstrate the taking of reasonable precautions, it is difficult to understand how it could be a defence to believe that reasonable precautions had been taken.[72]

Meanwhile, in Harper, Anderson and Owens JJ emphasised the fact that the relevant rule provided that a person would be exculpated if they could 'satisfy the stewards that [they had taken] all reasonable and proper precaution to prevent the administration of a drug to the horse'.[73] Given the express inclusion of this defence, their Honours held it would be 'impossible to imply a term that the onus is upon the stewards to negate honest and reasonable but mistaken belief in this kind of case.'[74]

86 It is not clear to me that the 'purpose' of LR 18.5 and GAR 86(af) would be furthered by denying to persons charged the defence of honest and reasonable mistake of fact. The identified purpose of these rules is to prevent live baiting and other forms of animal cruelty and so to uphold the reputation of the greyhound racing industry. I accept GRV's submission that it would further this purpose to require trainers and handlers to physically inspect the lure so as to ensure live bait is not being used. However, the imposition of strict liability already achieves this, since a person who wishes to raise the defence of honest and reasonable mistake will need to discharge an evidential onus to this effect.

87 This will self-evidently require putting cogent evidence before the tribunal of fact (whether it be the Board or the Tribunal) that, at the relevant time, they had an honest and reasonable belief in a state of affairs that, if true, would exculpate them. Such an inquiry will necessarily involve asking whether there was any 'reasonable avoiding action' that could have been taken.[75] If such action was not taken then it will be difficult to maintain that the belief was reasonable. By contrast, if a person does have an honest and reasonable belief of this sort, I cannot see how holding them liable would further the purpose of the Rules.

88 As I have said, the text of the LR 18.5 and GAR 86(af) indicates that these are offences of strict liability, which do not rebut the presumption that the defence of honest and reasonable mistake is open to the respondent. To go any further and construe them as imposing absolute liability would, in my opinion, be to grant to the drafters the sort of intention that Basten JA in Day described as the legislature looking for a 'luckless victim'.[76]

89 I turn now to the question of whether GRV has proved either disciplinary offence against the respondent. It is first necessary to ask whether the respondent has 'used' a live animal in breach of LR 18.5 or GAR 86(af). If the answer to either of these questions is in the affirmative, i.e. if the respondent is liable under the 'use' limb of either rule, then it will not be necessary to consider liability under the secondary 'cause' limb of LR 18.5.

90 I note in passing that the GARs are expressly incorporated into the LRs (see LR 3) and that the LRs take precedence in the case of a conflict (see LR 6). I note also that the Rules fall within the definition of 'subordinate instrument' under s 38 of the Interpretation of Legislation Act 1984 and, as such, are governed by s 37(c) of that Act, which provides that words in the singular include the plural, save for where there is an intention to the contrary. Thus, the references to a 'person' in LR 18.5 and GAR 86(af) can be read as references to 'persons', meaning that two or more persons may 'use' an animal in contravention of the Rules. This principle of construction is replicated in GAR 4(1)(a).

91 The relevance of this is that the operator and respondent may equally be said to have 'used' live bait at Tooradin on 11 November 2014. It is no defence to claim that the operator was the principal and hence the sole person who 'used' the rabbit. The object of LR 18.5 and GAR 86(af) is a 'live animal' and an 'animal' respectively (the distinction, in my view, being immaterial since by definition an 'animal' must be 'alive' else it will be something else - a 'corpse', a 'body', and so on). The specific purpose to which this object is put, in LR 18.5, is as 'a lure for greyhounds'; and, in GAR 86(af), for 'any purpose connected with greyhound racing in a manner which is improper.'

92 Clearly, in the present case, the respondent 'used' a live rabbit as a lure for the trialling his greyhounds. To the extent that he has sought to distinguish himself from the operator, such that liability falls only on the latter, this contention is unsustainable. The respondent directly and physically participated in this purpose. It might be different if the respondent had been somewhere else and had asked the operator to trial his greyhounds on his behalf. In this circumstance, one would need to consider the 'cause' limb of LR 18.5, which would involve applying the test of authorisation or direction as set out in the reasoning of the majority in Kavanagh.

93 Yet this is not necessary because the respondent is plainly caught by the 'use' limb of the Rules. In this respect, the focus of the Tribunal on whether the respondent 'caused' a live rabbit to be used was erroneous, flowing as it did from its earlier erroneous construction of the Rules as requiring knowledge or awareness that the animal was alive. Applying the reasoning of the majority in Kavanagh, if it is possible to 'administer' a substance without knowing what it is, then it is equally possible to 'use' a live animal without knowing whether it is alive. The sole question is whether the respondent's conduct was directly responsible for the deployment of the animal for the prohibited purpose - and clearly it was.

94 This leads me to the tentative conclusion that GRV have prima facie proved the charges against the respondent. However, as I have said, the respondent may plead the defence of honest and reasonable mistake of fact. Whether the respondent has raised this defence as a real possibility, and whether GRV have negated it, are properly questions for the tribunal of fact.

95 For the above reasons, leave to appeal should be granted and the appeal allowed in part, the matter being remitted to Senior Member Butcher for determination on the question of whether the charges have been proved. I will hear the parties as to the appropriate form of order and as to costs.

[1] Together 'the Rules' under s 82 of the Racing Act 1958 ('the Act'). The Rules have effect both as a matter of contract law and as a form of delegated legislation.

[2] Anderton v Greyhound Racing Victoria Stewards [2017] VCAT 439 ('Anderton').

[3] Anderton v Greyhound Racing Victoria Stewards [2017] VCAT 439 [20] ('Anderton').

[4] The source of this power is LR 11.2.

[5] This is by reason of LR 18.6(b) and LR 47.1(f)

[6] The Board has jurisdiction to hear and determine 'serious offences' under s 83C(b) and 83M(1) of the Act and LR 47.2

[7] This right of appeal is provided by s 83OH(1) of the Act.

[8] Reasons for Order of Senior Member Butcher dated 23 September 2016.

[9] Anderton [2017] VCAT 439 [16]. The Tribunal dwells on the words 'use' and 'cause to be used' in LR 18.5 and 'uses' in GAR 86(f).

[11] LR 23.7 also uses the word 'wilfully' in contradistinction to LR 18.5.

[12] Racing Victoria Ltd v Kavanagh [2017] VSCA 334 ('Kavanagh').

[13] Kavanagh v Racing Victoria Ltd [2017] VCAT 386 [459].

[16] The exception is where considerations of policing, health and safety arise: see Proudman v Dayman [1941] HCA 28; (1941) 67 CLR 536, 540 (Dixon J) ('Proudman').

[18] [2015] NSWCA 324; (2015) 90 NSWLR 764 (Leeming and Simpson JJA agreeing) ('Day').

[19] Ibid [70]-[71] (citations omitted) (emphasis added) quoting from Lim Chin Aik v The Queen [1963] AC 160, 174.

[23] Azadzoi v County Court of Victoria [2013] VSC 161; (2013) 40 VR 390 [41] (Bell J) ('Azadzoi').

[24] See, eg, Tapp v Hodgetts (Unreported, Supreme Court of Victoria, Crockett J, 30 September 1988); Bell v Gunter (Unreported, New South Wales Supreme Court, Dowd J, 24 October 1997); Fleet v District Court of New South Wales [2002] NSWCA 25 [46] (Hodgson JA, Meagher and Sheller JJA agreeing); Person v Janlin Circus Pty Ltd [2002] NSWSC 1118; Mitchell v Marshall [2014] TASSC 43 (Blow J); Sutcliff v RSPCA (SA) Inc [2016] SASC 125 (Blue J).

[25] See Allen v United Carpet Mills Pty Ltd [1989] VicRp 27; [1989] VR 323, 328.

[26] Anderton [2017] VCAT 439 [32].

[29] The respondent, like GRV, also relied on He Kaw Teh [1985] HCA 43; (1985) 157 CLR 523 and Azadzoi [2013] VSC 161; (2013) 40 VR 390.

[30] (2008) 191 A Crim R 8 ('Sultan').

[32] Ibid [35]-[36] (Price and McCallum JJ agreeing).

[34] The Tribunal had previously held that 'administration' offences required proof of knowledge or awareness of the prohibited substance: Corstens v Racing Victoria Ltd [2010] VCAT 1106; Homann [2009] VRAT 2.

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