Evans v Queensland Racing Integrity Commission [2025] QCATA 80

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 150

Racing Integrity Act 2016 (Qld), s 252AB, s 252AH, s 252AU

Australian Building and Construction Commissioner v Pattinson [2022] HCA 13

Australian Securities and Investments Commission v Daly (Penalty Hearing) [2024] FCA 3

Green v The Queen [2011] HCA 49

Ivers (unreported, Greyhound Welfare & Integrity Commission, 28 February 2023)

Pivovarova v Michaelsen (2019) QCA 256

• [1] This is an appeal from a decision of the Queensland Racing Appeal Panel ('Panel'), imposing a twenty-four month disqualification on the appellant expiring on 11 March 2025. The sanction was imposed in relation to a charge alleging that the appellant had contravened Greyhounds Australasia Rule ('GAR') 163(a)(i), which provides:

An offence is committed if a person (including an official)

(a) In connection with greyhound racing:

(i) corruptly;

accepts, or offers to accept, offers, or gives, any money, share in a bet or other benefit to any person, including but not limited to a person having duties in relation to the breeding and/or the registration of greyhounds or any person having charge of, or access to, a greyhound;

• [2] The Panel found that the appellant had committed the offence by accepting two sums of $300 from Mr Clarke, first on 4 August 2022 to scratch the appellant's greyhound (Uncle Charlie) from a race and, second, on 11 August 2022 following Mr Clarke's greyhound (Aerobic Rouge) winning the race. When Uncle Charlie was scratched from the race it was replaced by Aerobic Rouge, which had drawn first reserve. Aerobic Rouge won the race.
• [3] An appeal from a decision of the Panel to the Appeal Tribunal is available 'only on a question of law relating to the extent of the disqualification action': s 252AU(2) Racing Integrity Act 2016 (Qld) ('RI Act').

• [4] The appellant's ground of appeal is expressed in terms of the disparity in the penalties as between the two years imposed on the appellant and the three years for Mr Clarke. In relation to Mr Clarke, the three years related to four offences arising under GAR 163(a)(i). It is submitted that Mr Clarke was the 'fundamental proponent' of the appellant's involvement in the conduct underlying the offences.
• [5] The respondent submits that the issue of parity as between the relative penalties does not raise a question of law. Reference is made to the decision in Pivovarova v Michaelsen,[1] which considered the meaning of s 150(3)(a) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) ('QCAT Act'). Relevantly, that provision allows for appeals from the Appeal Tribunal to the Court of Appeal 'only on a question of law'. It was held that s 150(3)(a) of the QCAT Act comprehended an appeal only on a question of law and not a mixed question of fact and law. Fraser JA stated that the meaning of the provision is influenced by contextual matters and added:[2]

It is significant that s 150(3)(a) applies only to appeals against decisions of the QCAT appeal tribunal, which will have considered and refused either an application for leave to appeal (s 150(1)) or an appeal (s 150(2)). That an applicant for leave to appeal to the Court of Appeal already has had one opportunity to challenge an adverse decision makes it seem more likely that the legislative intent was to narrowly confine the grounds of such an appeal.

• [6] The context is different in the present case. It is evident that the hearing before the Panel is in the nature of a merits review, replacing the earlier merits review process conducted before QCAT.[3] As such, in a strict sense, the hearing before the Tribunal is the first available appeal. There is another contextual matter that would indicate a less restrictive approach. An appeal to the Tribunal under s 252AU(2) of the RI Act is not only confined to a question of law; it is available only on a question of law 'relating to the extent of the disqualification action'.
• [7] Commonly, such an appeal will be on the basis that the penalty is manifestly excessive, which raises a question of law. Potentially, parity is at the heart of that question. In Green v The Queen ('Green'),[4] though in the context of criminal proceedings, French CJ, Crennan and Kiefel JJ stated at [28] (references omitted):

'Equal justice' embodies the norm expressed in the term 'equality before the law'. It is an aspect of the rule of law. ... It requires, so far as the law permits, that like cases be treated alike.

Consistency in the punishment of offences against the criminal law is 'a reflection of the notion of equal justice' and 'is a fundamental element in any rational and fair system of criminal justice'. It finds expression in the 'parity principle' which requires that like offenders should be treated in a like manner. As with the norm of 'equal justice', which is its foundation, the parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances.

• [8] It is to be imagined that it was intended that an appeal confined 'to the extent of the disqualification action' would incorporate, within the framework of a question of law, an appeal based on what is said to be a marked disparity in relation to penalty in like cases. Otherwise, 'the notion of equal justice' referred to in Green might be compromised. However, difficulties arise where, consistent with the parity principle, a reduction of a penalty would result in the imposition of an inappropriately lenient penalty. In that regard, see Green at [33] and the authorities there referenced. For the reasons given below, that issue does not arise in the present case.
• [9] As noted, the decision in Green related to criminal proceedings, where the observance of parity might be more apposite. On the other hand, the primary focus of disciplinary proceedings is not on punishment but rather on specific and general deterrence and, in the present context, preserving public confidence in the racing industry. In Australian Building and Construction Commissioner v Pattinson,[5] it was stated at [45]:

It may be recognised that some concepts familiar from criminal sentencing may usefully be deployed in the enforcement of the civil penalty regime. In this regard, concepts such as totality, parity and course of conduct may assist in the assessment of what may be considered reasonably necessary to deter further contraventions of the Act. ... Although these analytical concepts have been developed in the context of the punishment of crime ... they are not so closely tied to retribution as to be incompatible with a civil penalty regime focussed on deterrence.

• [10] In relation to conduct arising under GAR 163(a)(i), Mr Clark was disqualified for three years in relation to four offences. In addition to bribing the appellant, Mr Clarke was also found guilty of attempting to bribe three other greyhound trainers, in each case seeking to have them scratch their greyhounds. Those other trainers refused the bribe.
• [11] The appellant submits that there is a lack of parity for several reasons:

(i) there was greater culpability on the part of Mr Clarke. It is submitted that he was the 'fundamental proponent of the appellant's involvement' in that he had orchestrated the offending;

(ii) Mr Clarke had attempted to bribe three other trainers in relation to the same race;

(iii) Mr Clarke had engaged with a disqualified person in respect of placing bets on Aerobic Rogue in the race in question;

(iv) Mr Clarke accepted that he provided false evidence at a subsequent Stewards enquiry. The respondent acknowledged that at first instance Mr Clarke strongly denied any wrongdoing and gave a self-serving, inconsistent account of the relevant events. However, he subsequently admitted fault and later gave a full account of the events;

(v) Mr Clarke, unlike the appellant, had previously been disqualified. In that instance, the disqualification occurred in 2017 and was for three years. He was also charged with other offences, besides those arising under GAR 163(a)(i).

• [12] On the other hand, the respondent submits:

(i) Mr Clarke demonstrated remorse and cooperated with the racing stewards. He pleaded guilty to the four charges. On the other hand, the Panel found that the appellant showed no remorse for his offending and pleaded not guilty, in the face of a strong case against him. It is submitted that this is particularly relevant in the context of an offence of dishonesty and indicates a significant sanction to ensure specific deterrence;

(ii) Mr Clarke pleaded guilty to the four charges, while the appellant pleaded not guilty. Accordingly, the appellant lost the benefit of a discount for pleading guilty;

(iii) the appellant placed a bet of $200 on Aerobic Rouge to win the race, which was paying $7.50, so that he stood to win $1,500 on top of the $600 bribe;

(iv) the appellant had a relatively clear disciplinary history and was otherwise of good character. However, it is submitted that pursuant to s 9(2)(f), (3)(h) and (6)(h) of the Penalties and Sentences Act 1992 (Qld), in sentencing an offender the court must have regard to the offenders character, while in relation to disciplinary proceedings such as in the present case a person's prior good character is relevant only if it shows that future contraventions are unlikely. In any event, it is submitted that the Panel took the appellant's history into account as a mitigating factor.

• [13] In the context of the first of the respondent's submissions at [12], reference is made to the decision in Australian Securities and Investments Commission v Daly (Penalty Hearing),[6] which involved a civil penalty proceeding, where it was stated at [136] (references omitted):

That Mr Daly did not accept his culpability by agreeing before the liability hearing that he was liable for the contraventions alleged against him reflects another factor in considering what is the appropriate penalty in his case. It is consistent with the fact that even after he has been found to have contravened s 601FD of the Corporations Act, that Mr Daly has only superficially accepted responsibility for his actions. He lacks real insight into his conduct and in substance has demonstrated limited remorse. Those factors emphasise that there is a greater need in Mr Daly's case for specific deterrence and public protection. The lack of remorse or contrition demonstrated by Mr Daly, assessed in light of his conduct as a whole, is relevant in that it suggests a higher penalty is warranted for the penalty to achieve the objective of specific deterrence.

• [14] A primary submission of the appellant is that Mr Clarke had greater culpability, as he was the 'fundamental proponent of the appellant's involvement' in orchestrating the offending. However, this ignores that underlying GAR 163(a)(i) and related proceedings is the protection of the integrity of racing and public confidence in racing. As noted by the Panel: 'It is fundamental to the integrity of racing that the outcome of races are not manipulated in any manner'. The appellant does not say why the offering of a bribe, as distinct from its acceptance, has a greater impact on the integrity of racing. Both parties were trainers of greyhounds. The potential outcome is equally damaging, in that the bribe manipulated the race outcome. Also, it is noted that other trainers rejected the offer of a bribe. If the appellant had also refused, the race outcome would not have been affected.
• [15] The appellant also states that Mr Clarke engaged with a disqualified person in placing bets on Aerobic Rouge, evidently the point of differentiation being that the bets placed by the appellant were not with a disqualified person. The appellant further states that Mr Clarke provided false evidence at a Stewards enquiry. From the perspective of parity, it is not clear how this assists the appellant, given that Mr Clarke subsequently admitted fault and disclosed the relevant events, while the appellant pleaded not guilty and maintained his innocence at all times.
• [16] On the other hand, it is the case that Mr Clarke attempted to bribe three other trainers, was charged with a total of seven offences, four of which stemmed from contravention of GAR 163(a)(i), and had previously been disqualified. Against that, he was disqualified for a total period of four years, with three years being in relation to the GAR 163(a)(i) offences. In its reasons at [224], the Panel notes that the appellant did not plead guilty to the charge 'and therefore loses the benefit of a discount on the proposed penalty'. Presumably, the penalty in relation to Mr Clarke would have been more than three/four years had he not pleaded guilty.
• [17] The Panel also referred, at [224], to the lack of remorse shown by the appellant as an aggravating factor. In circumstances where a focus of disciplinary proceedings is on specific deterrence, a lack of remorse and/or insight is a significant factor. On the other hand, the respondent submits that Mr Clark demonstrated remorse and cooperated with the stewards. In his submissions in reply, the appellant does not directly challenge that submission, saying only that it is 'paradoxical' given Mr Clark's offending, initial false statements and his disciplinary history. Nevertheless, it remains that ultimately, he did cooperate and pleaded guilty.
• [18] Mr Clark was disqualified for twice the length of the period of disqualification of the appellant, even allowing for any discount given to Mr Clarke for the guilty plea. In those circumstances it has not been demonstrated that there is a lack of parity. Relevant to the conduct that attracted the charges under GAR 163(a)(i) and in the circumstances of the racing industry, there does not appear to be a significant difference between giving and accepting a bribe as between trainers. It is the case that Mr Clarke attempted to bribe other trainers, committed other offences at the time and had a prior suspension history. However, in relation to the GAR 163(a)(i) offences, his disqualification period was 50% longer than that of the appellant and, it would seem, there would have been a greater margin of difference had it not been for the pleas of guilty.
• [19] While not directly relevant to the question of parity, the respondent referred to one other case involving a charge under GAR 163(a). In Ivers,[7] there was a plea of guilty to four charges; two for conduct of offering to accept money to scratch a greyhound and two for conduct of placing bets for minors. While Mr Ivers offered to scratch a greyhound for money he did not do so. The consequence of those actions was that the relevant offence was one of attempted rather than actual bribery. But for the guilty plea the Commission would have imposed a three-year disqualification for the four offences, but reduced it to two years because of the guilty plea. It is noted that the decision does not detail any antecedents or other relevant factors and the sanction was global, not distinguishing between the charges of attempted bribery and placing bets for minors.
• [20] No error of law has been demonstrated. The appeal is dismissed.

[1] (2019) QCA 256.

[2] Ibid [4]; see also per Boddice J at [14] and per Crow J at [37].

[4] [2011] HCA 49.

[5] [2022] HCA 13 [45] per Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ.

[6] [2024] FCA 3 [136].

[7] Unreported, Greyhound Welfare & Integrity Commission v Ivers, 28 February 2023.