Plaintiff v First Defendant

2 On 25 August 2021, the plaintiff rented a house in Mornington. That evening a number of people attended the house for an impromptu social gathering in breach of COVID-19 protocols. The police arrived and interviewed those present about potential breaches of directions given by the Chief Health Officer. The following morning, on 26 August, the stewards found out about the gathering and conducted an investigation that included interviewing the plaintiff. In an interview with stewards, the plaintiff admitted being present at the gathering and identified five other people as being present. She was found guilty by stewards and suspended for three months. During her interview, the plaintiff omitted any mention of a sixth person, another jockey, Mark Zahra ('Zahra'), who was also present at the house that evening.

3 The stewards recalled the plaintiff to a hearing to investigate why she had not mentioned that Zahra had been present. She gave an explanation which, it appears, the stewards did not accept and she was charged under the Rules with giving false and/or misleading evidence.[2] That charge was heard by the Victorian Racing Tribunal ('the Tribunal') which found the charge proven and the plaintiff received a further period of suspension of two months to be served cumulatively upon the initial three months' suspension.

4 Although there is no appeal to this Court from the Tribunal, the plaintiff has applied for judicial review of the Tribunal's determination and of the two month penalty. This Court does not sit on appeal from the Tribunal. It does not have a general appellate role to correct error. Still less is it the role of this Court to determine whether or not the charge was proven. That is a matter for the Tribunal.

5 This Court has a supervisory jurisdiction that serves to ensure that the Tribunal addresses the correct legal question and that the process of decision making accords with law, including giving the plaintiff, as a person potentially affected by the Tribunal's exercise of power, a fair opportunity to meet the case against her. In legal terms, in order to successfully invoke the jurisdiction the plaintiff must establish that the Tribunal committed a jurisdictional error, which is a kind of legal error that is not easily defined. It includes a denial of procedural fairness.

6 In challenging the determination of the Tribunal the plaintiff makes two basic points. First, she alleges that she was denied procedural fairness because the Tribunal found against her on a basis that had not been squarely raised by the stewards who brought the charge. Second, she contends that the charge as formulated does not disclose a breach of the Rules because it alleges an omission or a failure to volunteer information rather than the giving of evidence that is false or misleading.

7 For the reasons that follow, I have concluded that the application for judicial review should succeed and the determination of the Tribunal be set aside. The determination made by the Tribunal did not answer the case brought by the stewards, with the result that the Tribunal found against the plaintiff without her being given a fair opportunity to respond to the allegation ultimately found proven. This amounted to a denial of procedural fairness. The error of process stemmed from the form of the disciplinary charge which in turn resulted from a lack of specificity in the questions asked of the plaintiff in the stewards' inquiry.

8 As already noted, the charge arose out of the evidence given by the plaintiff in a hearing before the stewards on 26 August 2021.

9 At the commencement of the hearing, the Chairman told the plaintiff that the stewards had received information that the plaintiff had been at a social gathering the previous evening. Asked directly whether she was at a gathering the night before, the plaintiff responded:[3]

MS KAH: Yeah. Look, not intentionally. I did book a house. I have stayed there a few times before too. I haven't stayed here much of late (indistinct).

...

MS KAH: Okay. Yes, I was at a gathering, not intentionally. I booked the place to stay at. I've stayed there a few times before. I actually haven't stayed at home for much of the last sort of month or so.

CHAIRMAN: Okay. So what was the purpose of this last night then?

MS KAH: Look, I - like I said, I haven't stayed here much. Me and Clayton aren't very well in our relationship, so I've stayed there a few times, just somewhere to go for now, until - he's moving back into his place in [address supplied].

CHAIRMAN: Okay. So you and Clayton have parted company, so to speak, at the moment?

MS KAH: Yeah, yes (indistinct) things aren't really well between us, no.

CHAIRMAN: Okay. So what was the address of this place?

MS KAH: [address supplied]

CHAIRMAN: And how long were you there for? When did you arrive and when did you leave?·

MS KAH: I got there after the races Wednesday and left this morning about 10 o'clockish.

CHAIRMAN: Okay. And where would you be staying now then?

MS KAH: I've still got that place tonight but I'm actually back home at the moment.

CHAIRMAN: Okay. So did you invite the other people to attend?

MS KAH: No, that wasn't my intention. I did message Celine. We're quite good friends and I just thought I needed someone to talk to at the moment and I wasn't really planning on her staying but I just asked her to come over and the rest of them came over too.

CHAIRMAN: And who ended up being there?

MS KAH: Ethan Brown and Ben Melham and their friend, Rob Cummings.

CHAIRMAN: Yes. Was there another female there?

MS KAH: Yeah, there was another girl later on. Look, I'm not really quite sure who she is. I honestly - honest truth, I couldn't really tell you who she is, and that was not the intention for her to be there.

CHAIRMAN: So how did you get there from Sandown?

MS KAH: I drove myself there.

CHAIRMAN: Yes. And what car have you got, Jamie?

MS KAH: I have a Lexus.

CHAIRMAN: Right. And what happened during the night and how did things go?

MS KAH: Yeah, look, I was not really happy with the situation but I think after a couple of drinks, everyone thought it was fine for them to stay and obviously people were a bit loud and that's why the police got called in the end.

CHAIRMAN: So the police arrived, did they?

MS KAH: Yep, they knocked at the front door and the back door, I think, and then Ben was speaking to them first and I don't think he was probably in·a state to be speaking to them. He was a bit - we were all a bit pissed but I went out and spoke to them afterwards and obviously should have done that from the start because, like, I told them why I was there and I showed them my work permit as well.

10 A little later, after the plaintiff had told the stewards that she had intended to stay at the house by herself, the questions and answers continued:

CHAIRMAN: So did you intend to stay there on your own? Is that what you're putting to us?

MS KAH: Yes, I did.

CHAIRMAN: So then how did it unfold that you ended up with the other five people?

MS KAH: I just messaged Celine. Like I said, she's a close friend of mine and I just sort of needed someone to talk to, which is not a great excuse, but I was, yeah, not in a great headspace.

...

CHAIRMAN: ...Is there anything else you'd like to bring to our attention about what happened?

MS KAH: No, I know I've made the wrong decision by letting them there but, no, that's all I can tell you.

11 The interview then turned to the arrival of the police at the house and the plaintiff told the stewards what happened at that point. The questions continued:

CHAIRMAN: And have you heard from Victoria Police since?

MS KAH: Yeah, I just spoke to them just before this conversation.

CHAIRMAN: Yes. And what was the outcome of that? Are you able to tell us or is that confidential at this stage?

MS KAH: I just spoke to them. I just wanted to see if they needed anything else from me and pretty much went through the story I'm telling you now but I just wanted to make sure that they knew the full story.

12 As a result of the gathering, which was in breach of COVID-19 protocols and in light of her admissions, the plaintiff was charged and on the following day, 27 August, pleaded guilty to a breach of AR 232(b) of the Rules. She was suspended for three months.

13 Shortly thereafter the stewards came to understand that another jockey, Zahra, had also been at the house that night. This revelation prompted a further hearing with the plaintiff on 30 August 2021. At that hearing, the plaintiff was asked why she had not told them that Zahra was present on the night. After reading to her certain parts of her evidence given on 26 August, the stewards asked the plaintiff for an explanation. She said:

Well, look, you never actually asked me if Mark was there and I - from your question, when you said, "Who ended up being there?" I just thought you meant who ended up there, meaning, you know, there was the cops that came, it was late into the night and they were the people that were there. They were the reason why the cops came, why there was the noise complaint. If you'd asked me if Mark Zahra had popped in at all or was there earlier in the night, I wouldn't have any reason not to tell you that. I just - as you asked who "ended up" being there, I just replied with who was there and who - who was there into the late night and who was there into the morning and, like I said, the reason why the cops came.

14 The plaintiff accepted that she had seen Zahra at the house but said she had not seen him arrive or leave and that 'he wasn't there for long'.

15 At the conclusion of the interview, the plaintiff was given the opportunity to provide any further comment.

MS KAH: No, sir. Look, I've tried my best to be very up-front with you today and, look, honestly, if you'd asked me if Mark was - you know, if he was there at any time early in the night, I would have said that, but I just thought you asked who ended up being there, meaning the incident and the reason the police came.

CHAIRMAN: All right then. Other than - would you agree that during that part of the interview, it wasn't mentioned about the police and there were no questions about who was there before the police arrived? Would you agree with that?

MS KAH: Look, sir, I just answered the question that you said, "Who ended up being there?" and that's what I thought my response would be to who ended up there.

16 On 30 August 2021, following the interview, the plaintiff was charged with a single charge which was in the following terms:

Charge One: AR 232(i)

The Stewards charge you with breaching AR 232(i) which reads as follows:

AR 232 Failure to observe processes and directions of PRAs or Stewards

A person must not:

...

(i) give any evidence at an interview, investigation, inquiry, hearing and/or appeal which is false or misleading.

Particulars of Charge

1. You are, and were at all relevant times, a jockey licensed by Racing Victoria.

2. On Wednesday 25 August 2021, you were at a gathering at an "Airbnb" in Mornington (the Gathering).

3. On Thursday 26 August 2021, you were interviewed by Racing Victoria Stewards with respect to your attendance and the attendance of others at the Gathering (the Interview).

4 . During the Interview, you gave evidence along the following lines:

• That you, Celine Gaudray, Ethan Brown, Ben Melham and two other unlicensed persons were present at the Gathering.

5. The evidence you provided (as noted in particular 4) was false and/or misleading, given you failed to state that licensed jockey Mark Zahra also attended the Gathering, and was accordingly in breach of AR 232(i).

17 Because a breach of that provision is a 'serious offence', it was necessary for the charge to be heard by the Tribunal rather than the stewards, who have jurisdiction to hear charges for lesser breaches of the Rules.

18 As the grounds include a contention that the Tribunal recast the charge in an impermissible way, it is necessary to describe in some detail the course of the hearing by the Tribunal which was constituted by three judicial members. Both the stewards and the plaintiff were represented by Counsel.

19 The evidence before the Tribunal was constituted by a transcript of the hearings before the stewards on 26, 27 and 30 August and a copy of the plaintiff's licence renewal in which she acknowledges being bound by the Rules.

20 At the commencement of her submissions, Counsel for the stewards noted that AR 232(i) of the Rules had recently been amended by deleting the words 'in any particular' at the end of the phrase[4] and that this change made the rule 'arguably... broader'. Counsel then reminded the Tribunal that racing is highly regulated; the charge was not a criminal offence, and that the relevant 'standard of satisfaction' was that provided for in Briginshaw v Briginshaw;[5] and that, citing Maund v Racing Victoria Ltd,[6] the requirement of specificity in relation to a charge that the criminal law requires is not applicable but that the issue was one of procedural fairness.

21 Counsel then took the Tribunal through the transcript of the hearings before the stewards. She said that the Chairman's question 'Who ended up being there?' had no temporal limit and that it was the plaintiff, not the stewards, who had referred to the arrival of the police. The failure of the stewards to refer to the police in their questions was said to show that the involvement of the police was not the focus of their inquiry. It was submitted that the questions at that point of the hearing were about who had attended.

22 Counsel then took the Tribunal to the hearing before the stewards on 30 August and the explanation given by the plaintiff as to why she had not mentioned Zahra. Counsel submitted that this explanation should be rejected on the basis that the plaintiff had an obligation not to give false or misleading evidence and that the suggestion that the question was so narrow as to be asking about participants at a specific point in time was inconsistent with the questioning.

23 Asked by a member of the Tribunal as to whether a person could mislead by omission, Counsel answered in the following way:

Yes, in particular in this context, "Who was present?" if four people were present, and not naming the fifth person, it's misleading as to who was present. In the context of the other evidence that I've taken the Tribunal to about providing the full story about the other opportunities that Ms Kah had to provide any further evidence or any other information, she's made a decision there not to provide the information that Mr Zahra was present.

24 Asked by another member of the Tribunal whether the stewards' case was more than just an omission, Counsel agreed, saying that the plaintiff's explanation that she thought she was being asked about who was present when the police arrived was not plausible. It was said that to confine a breach of the obligation not to give false or misleading evidence to a particular question and answer would rob the rule of its utility and that the obligation was 'to provide truthful and fulsome evidence, as it were.'

25 Counsel was asked and agreed with the following question put by one of the members of the Tribunal:

Do you say it's false because, when asked who was there, she didn't give the full roll call, and misleading because she omitted Mr Zahra?

...in considering the question in context, both the broader context of the pandemic and the context of the focus of this interview and the other questions in the interview, it's clear that Ms Kah was being asked about who was present at the gathering as a general question, not just at a specific point of time. The effect of Ms Kah's evidence is that there were five persons present other than herself. That evidence was false, because Mr Zahra was also present for a period.

27 Counsel for the plaintiff submitted to the Tribunal that the charge was fundamentally flawed because under the common law a person could not be convicted of a charge of giving false evidence by omission. The following exchange then occurred:

JUDGE HICKS: If we look at the situation, it's determined by the question asked, is it not? I understand your submission is that your client is of the view that it wasn't asking who attended at that gathering and it all depends on what question is asked. At the end of the day, her evidence is accepted or at least casts a doubt about the matter or doesn't satisfy comfortable satisfaction, then that's the omission situation you're talking about, "But I thought they were referring to the end of the matter, not who attended." But if the question that someone is asked is, "Who attended at that place?" and you know, and she clearly does know that Mark Zahra did attend, that would be false, would it not?

MR SHEALES: Your Honour - - -

JUDGE HICKS: Your submission is, look, she was of the view that the question was asking not about who attended at the gathering, it was about who was there at the end of the incident and that's - - -

MR SHEALES: No, more fundamental than that. If you go to the charge, the way this offence is particularised is not upon a question. That's my point. If you go to particular 4:

"During the interview, you gave evidence along the following lines: that you, Gaudray, Brown, Melham and two other unlicensed persons were present.

Now, this is how they put their charge:

The evidence you provided (as noted in particular 4) was false and/or misleading, given you failed to state -

in other words "you omitted", and that charge is incompetent at law. You cannot put a charge that way and that is, with respect, the end of it, before you even get to a consideration of what was said, because, your Honour, in light of your query - I will deal directly with it - that's why the charge is incompetent and has to be dismissed because if they were alleging a particular question and a particular answer is false, that is completely different because then they are alleging positive falseness of an answer.

28 Asked whether the charge was 'doing both', that is, both alleging a particular false answer and an omission, Counsel said it was not. Counsel reiterated that the charge did not allege that a particular answer to a question was false or misleading and that the charge could not be reconstructed to produce that result. He submitted that it was necessary for the stewards to identify with particularity what are said to be the false statements by question and answer. Rather than taking that course, Counsel submitted that the drafter of the charge had sought to base the case on a failure to volunteer that Zahra was present. He said that a charge of giving false evidence could not be established by a failure to volunteer information. Counsel submitted that the charge must fail because a breach of AR 232(i) of the Rules could not be made out by an omission and the stewards had failed to identify a question and answer that they said was false.

29 In reply submissions before the Tribunal, Counsel for the stewards accepted that silence, in and of itself, is not a false statement but went on to say that:

...in answer to the question, Ms Kah identified five persons other than herself as being present. The omission is the name of the sixth person. So there is evidence, there is an answer here, there's a statement that is false in nature and it doesn't include all of the information.

30 Counsel then summarised the stewards' case in the following terms:

...it's not a matter of looking at the questions that were asked as a statute or as some fine distinction of forensic analysis. The issue for the Tribunal is, when considering the evidence given, the questions asked and the evidence given before the Stewards was the evidence, as identified in particular 4, that the respondent, Ms Gaudray, Mr Brown, Mr Melham and two other unlicensed persons were present, was that false, given that Mr Zahra was also present, false and/or misleading, given that Mr Zahra was also present, and the respondent knew that and simply decided not to provide that information when answering a direct question about who was present. That's the issue for the Tribunal, and in our submission the charge should be found proven to the relevant standard.

31 After describing the highlighted passage set out above at paragraph 9, as a very significant passage that 'effectively forms the basis of the particulars of charge', the Tribunal continued:

We would repeat that the question, "And who ended up being there?" is a clear enquiry as to who attended at the premises. The failure to answer that truthfully and completely is essentially what is being asserted in the particulars of charge. Your later explanation in the third interview makes it clear that you were at all relevant times aware that Mr Zahra had been present at the Airbnb on that night.

In our opinion, the words "false or misleading" are broad enough to include what could be described as falsity or being misleading by way of omission or silence. In the first interview, you were asked very important questions as to the identification of who had been present. In your answers, you did not name Mr Zahra, although you knew that he had been present. That was a false answer. It was a breach of the Rule.

We are not of the opinion that we need even go that far. The wilfully false answer to the Chairman's question "And who ended up there?" is sufficient to establish the breach. The Charge is clear. The Particulars are clear. The breach is clear.

We do not accept that you were somehow misled by the Chairman's use of the words "ended up". When viewed in context, and in the context of a COVID-19 situation, it was clear that the Stewards wanted the names of all persons, and particularly licensed persons, who had been present. That is understandable. They were dealing with a COVID-19 situation and the Protocols.

The Rules of Racing and the role of the Tribunal

33 The rules are constituted by both the Rules and the Local Rules of Racing.

34 Part 9 of the Rules is entitled 'Misconduct & Other Offences'. AR 226 and AR 227 of the Rules provide that:

AR 226 Penalty for breach

Without limiting any other rules or powers under these Australian Rules, if a person breaches any rule in this Part 9 the person may be penalised by a PRA or the Stewards.

AR 227 Breaches of the Rules

Without limiting any other powers, a PRA or the Stewards may penalise any person who:

(a) commits any breach of the Rules, or engages in conduct or negligence which has led or could have led to a breach of the Rules;

(b) attempts to commit, aids, abets, counsels, procures, connives at, approaches or requests another person to commit, conspires with another person to commit, or is a party to another person who commits, a breach of the Rules.

Division 6 - Misconduct by failure to observe official processes and directions

AR 232 Failure to observe processes and directions of PRAs or Stewards

A person must not:

...

(b) fail or refuse to comply with an order, direction or requirement of the Stewards or an official;

(c) while the Stewards are exercising their powers, performing their functions or carrying out their duties:

(i) refuse to obey a reasonable direction of the Stewards;

(ii) obstruct, hinder or delay the Stewards in exercising their powers, performing their functions or carrying out their duties; or

(iii) incite any other person/s to obstruct, hinder or delay the Stewards from exercising their powers, performing their functions or carrying out their duties, or fail to prevent any other person/s on premises the Stewards have entered under AR 22(1)(l) from doing so.

(d) while any investigator appointed by a PRA under AR 15(c) is exercising their powers, performing their functions or carrying out their duties:

(i) refuse to obey a reasonable direction of the investigator;

(ii) obstruct, hinder or delay the investigator in exercising their powers, performing their functions or carrying out their duties; or

(iii) incite any other person/s to obstruct, hinder or delay the investigator from exercising their powers, performing their functions or carrying out their duties.

...

(h) refuse or fail to attend or give evidence at an interview, investigation, inquiry, hearing or appeal when directed or requested to do so by a PRA, the Stewards or a person authorised by a PRA or the Stewards; and

(i) give any evidence at an interview, investigation, inquiry, hearing and/or appeal which is false or misleading.

36 A contravention of AR 232(i) is a 'serious offence' under the Rules and a charge under that provision must be heard by the Tribunal.

37 The Tribunal is established under s 50B of the Racing Act 1958 ('the Act'). The functions of the Tribunal include to hear and determine a charge made against a person for a serious offence.[7] The Chairperson must be a person who is a former or current judicial officer.[8] The Tribunal is not bound by the rules of evidence,[9] and must act fairly and according to the substantial merits of the matter. By s 50S of the Act, the Tribunal has the power to give a notice compelling production of documents and the attendance of witnesses.[10]

38 The Tribunal must allow a party a reasonable opportunity to call or give evidence; to examine, cross examine or re-examine witnesses; and to make submissions.[11] It may require a person to give evidence or answer questions on oath or affirmation.[12] In determining any matter within its jurisdiction, the Tribunal may decide all questions of fact; and make any decision or order that it considers is required in the interests of justice, including the imposition of any penalty under the Rules.[13] On request, it must provide a written statement of reasons for its determination.[14]

39 Section 50ZI(1) of the Act provides that a person must not make a statement to the Tribunal 'that the person knows to be false or misleading in a material particular.' A breach of s 50ZI(1) is a criminal offence. Section 50ZJ abrogates the privilege against self-incrimination.

40 The hearing by the Tribunal of a charge of a serious offence under the Rules is not a criminal hearing. That has a number of consequences, including as to the standard of proof and the need for specificity in the allegations, as was explained by the Court of Appeal in Maund as follows:

It is an important aspect of the rules of natural justice that a respondent to disciplinary proceedings be given sufficient notice of the case that he or she is required to meet. It is not, however, necessary that the notice of the proceeding be expressed with the specificity of an indictment in a criminal case or pleadings in a civil case. It is sufficient if the notice adequately indicates to the recipient the nature of the matter alleged, so that he or she may have a fair opportunity to meet or contradict the allegations contained in the charge.[15]

41 There are a number of matters that will inform what is adequate in a given case. Here, the allegation was a very serious one. As the stewards submitted, integrity of participants is an essential feature for the conduct of racing which is highly regulated for the protection of the public.[16] Stewards rely on the integrity of jockeys and a finding of giving false and misleading evidence is likely to carry a heavy stain on the person's reputation. The seriousness of the allegations is reinforced by the fact that the Rules designate a breach of AR 232(i) as a 'serous offence' which must be heard by the Tribunal and the potential penalties that may flow.

42 It is also relevant that the Tribunal, which deals with appeals and serious offences, has much of the architecture commonly associated with formal hearings: it can compel evidence, the privilege against self-incrimination is abrogated, the giving of false or misleading evidence to the Tribunal is an offence, and the Tribunal is chaired by a current or former judicial officer.

43 Given the seriousness of the allegation, and the nature of the body determining it, a charge for a breach of AR 232(i) of the Rules should be unambiguous and should state the misconduct alleged with the degree of specificity required to enable any person considering the terms of the allegation to understand its scope.[17] It should identify the alleged wrongdoing so that the person charged can understand its parameters. The charge should apprise the applicant not only of the legal nature of the offence but also of the particular acts, matters, or things alleged as the foundation of the charge.[18]

44 The prohibition in AR 232(i) is the giving of evidence that is false or misleading. False, in this context, would appear to mean a deliberate untruth. It is difficult to see how the giving of false evidence might be established by negligence or recklessness on the part of the witness. Thus, in order to find a contravention based on a false statement it is necessary for the Tribunal to be satisfied that the person knew that the evidence being given was untrue.

45 The concept of misleading evidence has the potential to be broader than false evidence although in many cases they will overlap. False evidence will often be given with the intention and effect that the audience receiving the evidence is misled, and the evidence will be both false and misleading. However, evidence that is not untrue if taken literally may, when understood in the context in which it is given, be misleading. In a different setting the phrase 'misleading or deceptive' has been held to cover conduct that leads or is likely to lead into error.[19] To an extent that also captures the concept of misleading evidence in AR 232(i) of the Rules.

46 No submissions were made as to whether a witness might mislead an inquiry or hearing by negligence or recklessness or some mental state short of intent. However, consistently with the giving of false evidence, it certainly covers evidence that a person gives with the intention of misleading the recipient.

47 Where there is an allegation that a licensed person deliberately gave untrue evidence to or intentionally misled stewards, or for that matter the Tribunal, it is essential that the allegation be clearly made by identifying the evidence that is said to be untruthful.[20]

1. The Tribunal erred as to a matter of law by finding the charge proven against the plaintiff as the particulars of the charge, if proven, did not and could not constitute a breach of AR 232(i).

2. The Tribunal failed to afford the plaintiff procedural fairness by entirely recasting the first defendant's case as to the basis on which the plaintiff's guilt was being alleged after the close of the evidence and all submissions.

3. The Tribunal erred as to a matter of law by determining that:

1. one specific answer given by the plaintiff to the stewards of the first defendant was "wilfully false" (the impugned answer);

2. "the failure to answer that truthfully and completely is essentially what is being asserted in the Particulars of Charge"; and

3. the plaintiff's guilt was established as a result of the impugned answer alone.

4. The Tribunal erred in its construction of AR 232(i) by determining that:

1. any evidence given in an interview that was capable of being determined to be false or misleading was not confined to the statements uttered by an interviewee during the course of the interview; and

b. a breach the Rule could be proved by omission or silence.

5. The Tribunal erred in its construction of AR 232(i) by effectively determining that the Rule (or the Rules generally) imposed an obligation of voluntary disclosure upon the plaintiff.

6. Alternatively to Ground 5, if AR 232(i) (or the Rules generally) imposed any obligation of voluntary disclosure upon the plaintiff when being interviewed by the stewards of the first defendant (which is denied), the Tribunal erred as a matter of law in determining that the plaintiff had breached any such obligation when being interviewed.

7. The Tribunal erred as to a matter of law in ordering that the two months' suspension of the plaintiff's jockey licence for the proven breach of AR 232(i) be effective cumulatively upon the three months' suspension of the plaintiff's jockey licence imposed by the first defendant on 27th August 2021 for a factually related breach of AR 232(b) by failing to give any or adequate weight to:

1. the principle of totality;

2. the principle of proportionality;

3. the proper application of the principle of parity;

4. the fact the plaintiff had offered to plead guilty to the offence upon the particularization being amended to include only misleading;

5. remorse;

6. the manner in which the plaintiff conducted her defence in that:

7. the factual basis of the first defendant's case was admitted by consent; and

8. the issues before the Tribunal were confined to questions of law.

49 Grounds 1 to 6 in the Originating Motion were reduced to two arguments: the first going to procedural fairness, and second, which is in many ways related, goes to the form of the charge and whether it discloses a breach of the Rules. It is convenient to commence with ground 2, before turning to ground 1.

50 By ground 2, the plaintiff alleges that the Tribunal failed to afford her procedural fairness by recasting the first defendant's case, as to the basis on which the plaintiff's guilt was being alleged, after the close of the evidence and all submissions.

51 The plaintiff submits that the stewards did not allege that any particular answer given by her to the questions asked of her was false or misleading. She submits that the stewards had relied on the effect of her evidence as being that there were six people present including herself and that that evidence was false, because Zahra was also present for a period.

52 The first defendant submits that ground 2 proceeds on two fallacies. First, that AR 232(i) of the Rules is limited to a single statement or answer, and second, that the Tribunal found the charge proven on the basis of one answer alone. The first defendant submits that it was the evidence of the plaintiff about who was present at the gathering that was false and that the particulars were not required to allege that a specific statement was false.[21]

53 The first defendant submits that the answers given by the plaintiff must be seen in the context of the nature of the inquiry being about who was present at the gathering, and the context of the gathering being during the COVID-19 pandemic. It submits that the plaintiff could have been under no misapprehension about the nature of the matter that was alleged.

54 It is important to recall the form of the charge. The two critical paragraphs were as follows:

4 . During the Interview, you gave evidence along the following lines:

• That you, Celine Gaudray, Ethan Brown, Ben Melham and two other unlicensed persons were present at the Gathering.

5. The evidence you provided (as noted in particular 4) was false and/or misleading, given you failed to state that licensed jockey Mark Zahra also attended the Gathering, and was accordingly in breach of AR 232(i).

55 The first thing that stands out about paragraph 4 of the particulars is that it does not identify the particular evidence given by the plaintiff but summarises its effect. The substance of the evidence comprehended by paragraph 4 was elicited over a number of questions and answers. As the extract of the transcript set out above shows, the plaintiff was told by the stewards that they had received information that the plaintiff had been at a social gathering the night before. The plaintiff explained that she had rented the house at which the gathering took place, the circumstances in which she had obtained the premises, and her reasons for doing so. She said she messaged Celine Gaudray and asked her to come over 'and the rest of them came to'. To the question 'And who ended up being there?', the plaintiff referred to Mr Brown, Mr Melham and Mr Cummings. She was then prompted by another question 'Was there another female there?' to which she answered in the affirmative.

56 Paragraph 5 then alleges that the evidence 'as noted in particular 4' was false and/or misleading given the failure to mention Zahra.

57 Importantly, the particulars do not allege that an answer given to a particular question was false or misleading. Still less is it alleged that the answer given to any particular question was 'wilfully false'. Further, it is not clear from the particulars whether it is being alleged that evidence was false or misleading when it was given, or whether having given that evidence, the plaintiff then came under an obligation to state that Zahra also attended and her failure to do so rendered her earlier evidence false or misleading. The point at which the plaintiff was expected or required to mention Zahra is not clearly spelt out.

58 Given the importance of establishing not only that the evidence was untrue or misleading but also the knowledge of the plaintiff that her evidence was false or misleading when it was given, it is critical to focus on the precise evidence that is said to be knowingly untrue or misleading. The charge perspicuously failed to do this.

59 It is notable that when this part of the hearing of 26 August was discussed in the Tribunal, counsel for the stewards paraphrased the questions by saying 'when questioned about who was present at that gathering, Ms Kah identified five persons other than herself as being present. She did not disclose that a sixth person, jockey Mark Zahra, had also been present.' Counsel for the stewards invited the Tribunal to reject the explanation given by the plaintiff on 30 August as to her understanding of the questions she was asked. However, there is a difference between rejecting the explanation given before the stewards and finding that the plaintiff had deliberately lied.[22]

60 The possibility must be accepted that, in the hearing of a charge in the Tribunal, an allegation may be broadened or altered. However, the potential for that to occur is subject to some important caveats. Any movement or shift in the case brought on behalf of the party bringing the case must be fair to the person charged. The charge should be clearly identified and, in the case of a serious charge, it may be preferable that it be done in writing so that there can be no doubt about its parameters. The affected party must have a reasonable opportunity to meet the new or different case.

61 In this case, the submissions made on behalf of the stewards reflected the terms of the particulars of the charge. That is, it was not put in the running that a particular answer was deliberately untrue. Rather, the stewards' case proceeded on the basis that the plaintiff was under an obligation to state that Zahra was present. The time at which the obligation arose was never clearly identified. The invitation to reject the plaintiff's explanation for not mentioning Zahra was not a substitute for a clearly formulated charge, nor did it put the plaintiff on notice that an allegation that the answer to the question: 'And who ended up being there?' was mendacious.

62 It is true that the members of the Tribunal raised with Counsel for the plaintiff the potential import of the stewards' question 'Who ended up being there?' I have described the various exchanges on this point above. For a number of reasons I have come to the conclusion that this exchange did not give the plaintiff a fair opportunity to meet the case as subsequently found against her by the Tribunal. The exchanges between the Tribunal and Counsel for the plaintiff were not a substitute for a properly formulated charge.

63 First, the role of the Tribunal. The function of the Tribunal was to determine a charge for a serious offence under the Rules. It had no role in the formulation of the charge. For it to do so would risk imperilling its independence and impartiality.

64 Second, when the focus of the Tribunal was directed to the specific question, Counsel for the plaintiff made clear that this was not the case the stewards had sought to make. Judge Hicks raised with Counsel for the plaintiff that the issue depended on the question asked and his Honour continued 'But if the question that someone is asked is, "Who attended at that place?" and you know, and she clearly does know that Mark Zahra did attend, that would be false, would it not?' In that respect, it is important to observe that the exchange involved a reformulation of the question that was actually asked.

65 The stewards did not seek to amend their charge in light of the exchange. That was reasonable and understandable given that the stewards had not chosen to articulate the charge by reference to a specific answer. Further, it was not expressly alleged by the stewards that the question 'And who ended up being there?' was asking the plaintiff to list all of the persons who were present at the house at any time during the night and that the plaintiff, when she gave her answer, knew that this was what she was being asked.

66 The failure of the stewards to pinpoint a false answer arose in this case because the questions asked by the stewards lacked specificity. The stewards may well have assumed that the plaintiff had provided a full list of the persons who were present at any time that night, however, they did not ask the plaintiff in a clear and unequivocal way to give that information. It is also notable that in answer to the question that the Tribunal ultimately focused on, the plaintiff did not refer to Ms Gaudray nor the unnamed female person she identified in answer to the next question. It could hardly be said that in failing to refer to those two people the plaintiff was giving a deliberately false answer to the question she was asked. The fact that the questions lacked a degree of specificity and did not expressly ask the plaintiff to list all of the people who were present on the night, did not of itself mean that the plaintiff's evidence could not be false or misleading. However, it called for some precision in the formulation of the charge so that the allegations were sufficiently clear. This matter also informs the outcome of ground 1.

67 Third, the contention that the plaintiff had deliberately lied in answer to the question was not raised in the charge or in the stewards' submissions. By the time it was raised, somewhat obliquely, the plaintiff had already made a decision not to call any evidence. In my opinion, the plaintiff was entitled to make forensic decisions on the basis of the case as charged and articulated by the stewards which, as I have said, did not include an express allegation that the plaintiff's answer to that question was deliberately untrue.

68 In the result, the plaintiff was not given a fair opportunity to deal with the case that was ultimately found by the Tribunal. I uphold ground 2.

69 Under her first ground the plaintiff submits that the particulars of the charge, if proven, could not constitute a breach of AR 232(i) of the Rules. She submits that the allegation in paragraph 5 of the particulars is that she failed to state that licensed jockey Zahra also attended the gathering. She says that the Tribunal misdirected itself by concluding that 'the words "false or misleading" are broad enough to include what could be described as falsity or being misleading by way of omission or silence.' This was said to be counter to a fundamental common law principle that liability does not attach to an omission, save the omission of an act that a person is under a legal obligation to perform.[24]

70 Before the Tribunal, the plaintiff put at the forefront of her submissions the contention that a contravention of AR 232(i) of the Rules could not be established by an omission. That submission was founded on two interconnected planks. The first, is the general common law presumption that a person cannot be convicted of a criminal offence by omission. The second, more specific submission, is that a person cannot be convicted of giving false evidence unless the prosecution identifies particular evidence that is said to be false.

71 That submission cannot be accepted without significant qualification. First, a contravention of AR 232(i) is not a criminal offence. Second, the law of perjury is an inadequate analogy because AR 232(i) is concerned with evidence that is false or misleading, whereas perjury is only concerned with the former. Third, in the context of giving evidence, an incomplete answer may, in certain circumstances, make the evidence both false and misleading, or merely misleading. Whether it does so will depend on matters including the question asked, or whether there is an obligation of disclosure. In such circumstances it may be unhelpful to describe the issue in terms of an omission

72 Of course the thing that must be false or misleading is the evidence given. What is withheld or not said may render evidence misleading or establish falsity but the focus must always be on the evidence that is given. At this point, one aspect of the plaintiff's submissions may be accepted. In order to find a contravention it is necessary that the person has given false evidence. As a matter of fairness, the evidence actually given and which is alleged to be false or misleading must be identified and the basis on which it is said to be false or misleading made clear.

73 In reaching that conclusion I acknowledge that a charge in a disciplinary context does not need to meet the requirements as to specificity that may be accepted in a criminal indictment.[25] However, a disciplinary charge serves a similar purpose to a criminal charge of putting the person on notice of the case they have to meet. They each ought provide 'fair information and reasonable particularity as to the nature of the offence charged'.[26] The charge proffered against the plaintiff did not clearly identify the basis on which the failure to state Zahra was present was false or misleading. It did not identify whether this was because of some unstated duty to disclose or volunteer the information in aid of the steward inquiry or because the plaintiff was asked, (and knew she was asked) to list a full complement of the attendees.

74 In my view, the form of the charge was unclear and led to the denial of procedural fairness that I have found. The charge was not properly formulated, lacked the necessary clarity, and I would uphold ground 1 to that extent. That said, I do not accept that a charge of giving false or misleading evidence could not be established where a witness omits information from an answer to a question or otherwise provides incomplete information. That was not clearly alleged in this case.

75 Ground 7 touches penalty. Given my conclusion on the other grounds, it is unnecessary to deal with it. I would add the following in brief answer to the ground. As already observed this Court does not sit on appeal. The penalty was open to the Tribunal. The particulars under ground 7 reveal no legal error on the part of the Tribunal in arriving at the penalty it did. I reject ground 7.

76 I would uphold ground 2 and to the extent noted above, also uphold ground 1. The determination of the Tribunal dated 15 September 2021 and the suspension of two months to commence on 25 November 2021[27] must be set aside.

77 I will hear from the parties on the form of orders to give effect to these reasons and on costs.

[1] Reference to specific rules are connoted by 'AR'.

[2] Australian Rules of Racing AR 232(i).

[3] The critical passages relied on by the parties are in bold.

[4] The rule before the amendment referred to evidence given to stewards that 'is false or misleading in any particular'.

[5] (1938) 60 CLR 336; [1938] HCA 54.

[6] [2016] VSCA 132 ('Maund').

[7] Racing Act 1958 ss 50C(c) and 50O ('Racing Act').

[8] Racing Act s 50G(1).

[9] Racing Act s 50Q(1)(j).

[10] Racing Act s 50S, a failure to comply with a notice is an offence s 50ZG.

[11] Racing Act s 50Y(1).

[12] Racing Act s 50Y(4).

[13] Racing Act s 50ZE(1).

[14] Racing Act s 50ZF(1).

[15] Maund [2016] VSCA 132, [44] (Maxwell P, Ashley and Kaye JJA) (citations omitted).

[16] Racing Victoria Ltd v Riley (2016) 51 VR 261; [2016] VSCA 230.

[17] Livers v Legal Services Commissioner [2020] NSWCA 317, [41] (McCallum JA, with Ward CJ in Eq and White JA agreeing) ('Livers').

[18] Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77; Russell v Duke of Norfolk [1949] 1 All ER 109; and R v Pharmacy Board of Victoria; Ex parte Broberg [1983] VicRp 17; [1983] 1 VR 211.

[19] See for example, Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640; [2013] HCA 54.

[20] Smith v NSW Bar Association [1992] HCA 36; (1992) 176 CLR 256, 269 (Brennan, Dawson, Toohey and Gaudron JJ) and 272 (Deane J); [1992] HCA 36 ('Smith'); O'Reilly v. Law Society of New South Wales (1988) 24 NSWLR 204, 231 (Clarke JA).

[21] Emphasis in first defendant's submissions.

[22] Smith [1992] HCA 36; (1992) 176 CLR 256, 269 (Brennan, Dawson, Toohey and Gaudron JJ); [1992] HCA 36.

[23] The arguments on this ground also subsumed grounds 4, 5 and 6 which turned on liability for an omission. No separate argument was put in support of ground 3.

[24] Citing DPP (Cth) v Poniatowska [2011] HCA 43; (2011) 244 CLR 408, 421 [29] (French CJ, Gummow, Kiefel and Bell JJ); [2011] HCA 43.

[25] Maund [2016] VSCA 132.

[26] John L Pty Ltd v Attorney-General NSW ([1987] HCA 42; 1987) 163 CLR 508, 521 (Mason CJ, Deane and Dawson JJ); [1987] HCA 42; Livers v Legal Services Commissioner [2020] NSWCA 317, [41] (McCallum JA, with Ward CJ in Eq and White JA agreeing).

[27] The date of the determination of the two month suspension was 17 September 2021.