Wallace v Queensland Racing

Racing Act 2002 ss 79, 91, 172(3).

Anderson v Nystrom [1941] St R Qd 56 - cited.

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 - followed.

Geraldton Fishermen's Co-Op Ltd v Munro [1963] WAR 129 - cited.

Harmer v Grace, ex parte Harmer [1980] Qd R 395 - applied.

Harper v The Racing Penalties Appeal Tribunal of Western Australia (No. 1963/93, 8/2/95, unreported; BC 9503397) - followed.

Hunt v Maloney, ex parte Hunt [1959] Qd R 164 - considered.

Kehoe v Dacol Motors Pty Ltd, ex parte Dacol Motors Pty Ltd [1972] Qd R 59 - cited.

Larsen v G J Coles and Co Ltd, ex parte G J Coles and Co Ltd (1984) 13 A Crim R 109 - applied.

Molloy v Hallam [1903] St R Qd 282 - cited.

Pingel v R and R Leach Pty Ltd [2002] QCA 275; [2003] 1 Qd R 533 - cited.

Pointon v Redcliffe Demolitions Pty Ltd (2002) 23 Qld Lawyer R 103 - considered.

R v Boudelah [1991] FCA 124; (1991) 28 FCR 176 - followed.

R v Disciplinary Committee of the Jockey Club, ex parte Aga Kahn [1992] EWCA Civ 7; [1993] 1 WLR 909 - cited.

R v Morrison [1998] QCA 162; [1999] 1 Qd R 397 - cited.

Renwick v Bell [2001] QCA 316 - cited.

Stevenson v Yasso [2006] 2 Qd R 150 - cited.

Thomas v McEather [1920] St R Qd 166 - cited.

Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561 - cited.

A. J. MacSporran SC and M. J. Taylor for the respondent

[1] This is an appeal from a decision of the Racing Appeals Tribunal on 30 May 2007 to dismiss the appellant's appeal from a decision of the stewards finding him guilty of a breach of AR 178 of the rules of racing and disqualifying him from training for six months. The appeal to this court is under the Racing Act 2002 s 193, and may be brought only on a question of law.

[2] The appellant was the trainer of a racehorse that was brought to a racecourse on the Gold Coast on Saturday 31 March 2007 for the purpose of engaging in a race. A blood sample was taken from the horse, and on analysis was found to have a total plasma carbon dioxide level greater than the permitted amount. Once made aware of the result of analysing the blood sample, the stewards of Queensland Racing convened an inquiry, in the course of which the appellant was charged under rule AR 178. That rule provides:

"When any horse that has been brought to a racecourse for the purpose of engaging in a race and a prohibited substance is detected in any sample taken from it prior to or following its running in any race, the trainer and any other person who was in charge of such horse at any relevant time may be punished."[1]

[3] Total plasma carbon dioxide is an alkalinising agent of the purposes of AR 178B(2) of the rules of racing, and the test results showed an amount greater than the maximum limit prescribed by AR 178C(1)(a). I was told that the significance of this is that it is an indicator that something has been done to the horse which would have the practical effect that it is likely to run better than it otherwise would.

[4] The respondent is a control body for the purposes of the Racing Act 2002. By s 79(2) the respondent as control body makes policies about the management of its code of racing, and makes rules of racing about the things dealt with in a policy. By s 79, the policies and rules of racing made by a control body for its code of racing are statutory instruments within the meaning of the Statutory Instruments Act 1992. Section 91(1) also provides that:

"A control body must make rules of racing for its code of racing, including matters that it believes necessary for the good management of racing under the code."

[5] The rules are required to be consistent with the Act and the control body's policies, and any provision of the Act inconsistent with the rules prevails over them (s 91(4), (5)). In this way rules which have been adopted more generally as the Australian Rules of Racing have been adopted by the respondent as the rules of racing applicable in Queensland.[2]

[6] The rules of racing also provide a power to punish in AR 196(1):

"Any person or body authorised by the rules to punish any person may, unless the contrary is provided, do so by disqualification, suspension, reprimand or fine not exceeding $75,000. Provided that a disqualification or suspension may be supplemented by a fine not exceeding $75,000."

[7] It was not submitted that the rules of racing and in particular AR 178 were not validly in force at the relevant time. Indeed, the appellant's primary submission was that the tribunal erred in law in failing to conclude that Chapter V of the Criminal Code applied in relation to the charge brought against the appellant, because of the terms of s 36(1) of the Code, which provides:

"The provision of this Chapter apply to all persons charged with any criminal offence against the statute law of Queensland."

[8] The appellant's first submission was that because the rules of racing were a statutory instrument, they were part of the statute law of Queensland: that followed from s 7(1) of the Acts Interpretation Act 1954, which provides:

"In an act, a reference (either generally or specifically) to a law (including the Act), or a provision of a law (including the Act), includes a reference to the statutory instruments made or in force under the law or provision."

[9] As the matter was argued on behalf of the respondent, the point in issue came down to a very narrow one: whether a breach of one of the rules of racing was not an offence because proceedings in respect of it could not be brought as a proceeding for a summary offence under the Justices Act. Senior counsel for the respondent conceded that the rules of racing were part of the "statute law of Queensland" for the purpose of s 36, and submitted that the issue was whether they created a "criminal offence" for the purpose of that section; although on the face of it the rules of racing by rule AR 178 identified an act which rendered doing the act liable to punishment, and so satisfied the definition of "offence" in s 2 of the Criminal Code, it was nevertheless not an offence of the kind contemplated by the Code, because that section had to be read with s 3, which contemplated that all offences would be either "criminal offences" or "regulatory offences".

[10] It was common ground between the parties that a breach of the rules of racing did not amount to a "regulatory offence", that expression being confined to offences created by the Regulatory Offences Act 1985; accordingly the appellant submitted that it must be a "criminal offence" within the dichotomy established by s 3(1). However, the respondent submitted that it was not a "criminal offence", because that comprised only crimes and misdemeanours and simple offences, the first two being indictable offences which could only be dealt with by way of trial on indictment, while the third was concerned with an offence in respect of which a person may be summarily convicted by a magistrates court: s 3(4). Subsection (5) provided that an offence not otherwise designated was a simple offence. That expression was a reference to all offences punishable on summary conviction, that is to say before a magistrate under the Justices Act, by fine, imprisonment or otherwise.[3]

[11] It was therefore submitted for the respondent that despite the breadth of the terminology in s 2, the concept of "offence" for the purpose of the Code, and hence the purpose of s 36, was limited to offences in respect of which a person can be tried either on indictment or under the Justices Act. In circumstances where the rules of racing provided a mechanism under which some other entity was entitled to impose a penalty, the circumstances which gave rise to the entitlement to impose the penalty did not amount to an "offence" for the purposes of the Criminal Code, and hence not a "criminal offence" for the purposes of s 36, so that s 36 did not have the effect of applying the relevant provisions (ss 23 and 24) of the Criminal Code to the process under which the stewards decided to impose a penalty for a breach of the rules of racing.

[12] Prior to the enactment of the Regulatory Offences Act in 1985, s 36 provided: "The provisions of this Chapter apply to all persons charged with any offence against the Statute Law of Queensland." Section 2 of the Criminal Code Act 1899 provided that from a specified date the provisions contained in the Code "shall be the law of Queensland with respect to the several matters therein dealt with." The intention was clearly to supersede the common law in relation to criminal matters, as well as earlier criminal statutes, but one of the difficulties recognised by Sir Samuel Griffith was that there were also imperial statutes which created criminal offences which were in force in Queensland. Hence, as quoted in Carter,[4] Sir Samuel Griffith noted to what became s 36 in the draft Code:

"So far as the rules declared in this Chapter differ from the common law, they would not apply to persons charged with offences committed against Imperial Law."

[13] Hence, the function of s 36 was to act as a limiting provision, to exclude the application of Chapter 5 from offences created under imperial statutes.

[14] The term "statute law", or for that matter the term "statute law of Queensland", is not defined in the Code, but it seems clear enough that in context it was used in s 36 in contradistinction to imperial statute law. Nevertheless, it seems to have been fairly readily recognised that s 36 made the provisions of Chapter 5 applicable to the operation of any criminal laws. In Molloy v Hallam [1903] St R Qd 282, Griffith CJ said during argument that s 23 "has general application to all our criminal laws."[5] In that case, it was applied to a provision of the Criminal Code itself, but it was applied to a prosecution under another Act in Kehoe v Dacol Motors Pty Ltd, ex parte Dacol Motors Pty Ltd [1972] Qd R 59, and applied to a prosecution in the magistrates court for an offence against a regulation under another Act in Hunt v Maloney, ex parte Hunt [1959] Qd R 164. Stanley J said at p 172:

"The undefined phrase 'statute law' must embrace statutes of Queensland then and thereafter in force in Queensland."

[15] In the same case, Mack J noted the inapplicability in Queensland of the various authorities on the subject of mens rea in respect of statutory offences in England, where there had in some circumstances been a distinction drawn between acts which were criminal in a real sense and those which were prohibited by penalty in the public interest, and said at p 183:

"The distinction between crimes or quasi-criminal offences or offences 'not criminal in any real sense' cannot be made in Queensland because s 36 of the Code applies s 23 to every statutory offence irrespective of type. Section 36 also prevents the subject matter and object of an Act from having overwhelming importance, and although the strength of the presumption may vary with the subject matter of an Act, s 23 must apply with equal force to every statute. Section 23 by s 36 must be read into every Act and in my opinion its operation can only be excluded by clear words."

[16] At the time of that decision s 36 contained the single sentence, and did not include the word "criminal" before the word "offence". If that word had been inserted promptly after the decision in Hunt v Maloney, and in response to it, it might well be said that the effect of the amendment was to reverse the conclusion arrived at by Mack J in that case. But the word was not inserted until the 1985 amendment made by the Regulatory Offences Act, at the same time as s 3 was amended to divide offences into two kinds, namely criminal offences and regulatory offences, and subsection (2) was also inserted in s 36 providing that with certain exceptions the Chapter did not apply to regulatory offences, that is offences under the Regulatory Offences Act. Plainly, therefore, the legislative intent was that the insertion of the word "criminal" into what became subsection (1) of s 36 was because what would be meant by "criminal offences" would be offences under the statute law of Queensland other than the Regulatory Offences Act, rather than offences which were criminal as distinct with other kinds of offences under the sort of dichotomy considered in some of the authorities referred to by Mack J.

[17] A similar question to the present was considered by the Full Court of the Supreme Court of Western Australia in Harper v The Racing Penalties Appeal Tribunal of Western Australia.[6] On this occasion, a trainer of two horses which were found to have a carbon dioxide reading in excess of the maximum permissible amount and who had been dealt with under the rules of trotting, sought to dispute the penalty imposed on the basis that there was a failure to apply s 24 of the Western Australian Criminal Code, the equivalent of our s 24. The Full Court held unanimously that s 24 did not apply in the circumstances, and discharged an order nisi for certiorari. The court referred to the Western Australian equivalents of our s 2 definition of offence, and s 36, which was in the form in which it was in Queensland prior to 1985. Anderson and Owen JJ, in a joint judgment with which the other members of the court agreed, said:

"Section 36 of the Criminal Code provides that the provisions of Chapter V (which includes s 24) 'apply to all persons charged with any offence against the statute law of Western Australia'. Hence s 24 of the Criminal Code will apply if an infringement of r 364 is 'an offence against the statute law of Western Australia'. This raises the question whether the rules of trotting are part of the statute law of Western Australia. 'Statute law' is not defined in the Code. It seems to be a term of wide import, having a meaning similar to the phrase 'written law' which is defined in s 5 of the Interpretation Act 1984. 'Written law' means an Act of parliament and 'subsidiary legislation'. The latter is defined to include rules and by-laws 'having legislative effect'. Therefore the term 'statute law' used in s 36 may be taken to include any written law having legislative effect. While the by-laws promulgated pursuant to the by-law making power in the Act must be considered to be written laws having legislative effect, we do not think the rules of trotting can be so regarded ... [Reference was made to a provision in the Act permitting by-laws to impose penalty on summary conviction by a court] ... These sections of the Act show that parliament intended that by-laws promulgated under the Act should have legislative effect as part of the statute law. However, this construction cannot be extended to a body of rules brought into existence by the club other than as by-laws. In our opinion the rules of trotting is in the latter category. It is not contemplated that a breach of the rules of trotting will be dealt with in the same way as a breach of the by-laws. In particular, it is not contemplated that a person who offends against the rules of trotting will be dealt with by complaint in the Court of Petty Sessions, or will be the subject of criminal sanction, or even that the penalties provided for in the rules of trotting will be limited in the way that the penalties which may be provided for in the by-laws are limited by s 8 of the Act ... It is apparent from a reading of the rules themselves, that they are intended to have coercive effect consensually or contractually, not by legislative force ... In our opinion the proper construction is that the rules of trotting are not by-laws and do not have legislative effect. They are not therefore part of the 'statute law of Western Australia' within the meaning of s 36 of the Criminal Code and s 24 of the Criminal Code has no application to them."

[18] The appellant sought to distinguish that decision on the basis that it relied on provisions of the Interpretation Act of Western Australia, which are not the same as the provisions in Queensland, and because of the express provision that the rules made by the control body under the Queensland Act were a statutory instrument, and the terms of s 7(1) of the Acts Interpretation Act. Nevertheless, it seems to me that the essential reasoning of the Western Australian decision is applicable in the present case. The rules of racing, like the rules of trotting, do not provide for offences which are to be prosecuted as simple offences under the Justices Act. They provide for any penalties to be imposed by a domestic tribunal, the stewards, on the authority of the rules rather than on the authority of the statute, and the rules are assumed to have essential consensual or contractual force. The Racing Act provides that it is the control body which is to make rules regulating racing, but there is nothing in the Act, it seems to me, which provides that the rules, once made, have any form of legislative force or effect.

[19] The Statutory Instruments Act 1992 defines statutory instrument in s 7 as any one of a list of types of instruments which is made under an Act or another statutory instrument. The list of instruments is lengthy, and includes things like "a proclamation" and "a notification of a public nature" which would not ordinarily be regarded as the exercise of a legislative as distinct from an executive power. The list includes "another instrument of a public nature by which the entity making the instrument unilaterally affects a right or liability of another entity." That is a very wide definition, and would extend far beyond anything which would ordinarily be regarded as a process of legislating. By way of contrast, s 9 identifies as "subordinate legislation" certain types of statutory rules,[7] that is, a regulation, rule, by-law, ordinance, or statute, or "an order in council or proclamation of a legislative character", or another statutory instrument declared to be subordinate legislation by an act or regulation, or another statutory instrument that fixes or determines the commencement of an act or the provision of an act or something that is otherwise subordinate legislation. This is obviously a much narrower concept.

[20] It is commonplace for criminal offences, or at least simple offences, to be created by instruments which would be within the definition of "subordinate legislation". It is I think easy enough to interpret the expression "statute law of Queensland" as extending beyond statutes of the Queensland parliament to include subordinate legislation made under such statutes, but it does not seem to me that the phrase would naturally extend to everything which would be a statutory instrument within the definition of the 1992 Act.

[21] It also seems to me that s 7(1) of the Acts Interpretation Act does not apply to the expression in s 36 of the Criminal Code. Section 7(1) is concerned with a reference to a law, and although I accept that that singular would include the plural, I do not think that s 7 was intended to operate in relation to a phrase as broad as "statute law of Queensland". I do not think it is an appropriate method of construction to say that the Racing Act is part of the statute law of Queensland, and therefore s 36 should be read as if it said that the provisions of Chapter V apply to the Racing Act, which by the application of s 7(1) would extend to any statutory instrument made or in force under the Racing Act, which includes the rules of racing. I doubt whether the concession by senior counsel for the respondent, that the rules of racing are part of the statute law of Queensland, was correct.

[22] Apart from this, the reasoning in the Western Australian case is also consistent with the notion that the very wide definition of "offence" in s 2 of the Criminal Code must be read down by the context in which it appears, particularly the provisions of s 3, which assume that everything which is regarded as an offence for the purposes of the Code fits into the categories of regulatory offence, indictable offence, or simple offence, with the last category being offences capable of being dealt with as a simple offence under the Justices Act. It may well be that a specific statutory provision could provide an alternative mechanism for dealing with particular simple offences other than prosecution under the Justices Act, but I cannot think of an example where that has been done, except perhaps for the case where a court or tribunal is given the power to punish for contempt, and even that is perhaps an anomalous example.

[23] Traditionally something like horseracing has been regulated by consensual or contractual rules enforced by domestic tribunals; it has not been regulated by some form of legislation which provides for prosecution for breach of the legislation in an ordinary criminal court. The fact that there is some statutory provision regulating the process by which horseracing is regulated, and that this has the effect that the rules come to fall within a very wide definition of statutory instrument, or indeed are made statutory instruments expressly by statute, does not I think change the essential nature of the rules or the enforcement procedure which they establish. When s 2 of the Code speaks of offences, in my opinion it is speaking of criminal offences in the convention sense, and that would not extend to breaches of something like the rules of racing, which are enforced only by a domestic tribunal.

[24] The joint judgment in Harper distinguished between provisions which contemplated prosecution in the Western Australian equivalent of a magistrates court for criminal offences created by the by-laws, to which Chapter V of the Code would apply, and offences against the rules of racing which are subject to disciplinary proceedings before the stewards, which their Honours regarded as being in a different category. I would respectfully agree, and adopt the same distinction here. Something which is subject to punishment under the rules of racing is not an offence for the purpose of s 2 of the Criminal Code, and it is not a criminal offence against the statute law of Queensland for the purpose of s 36(1). Accordingly, ss 23 and 24 do not apply.

[25] It is therefore strictly unnecessary for me to consider the respondent's alternative submission, that if Chapter V did apply their operation was impliedly excluded by rule AR 178. There is I think a distinction here between ss 23 and 24; s 24 expressly provides in subsection (2):

"The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject."

[26] There is no equivalent provision for s 23. Nevertheless, it was submitted that both provisions may be excluded under the general law, relying on Hunt v Maloney (supra). It is true that the existence of an implied exclusion of s 23 was recognised in that case, but that was in the context of express or implied exclusion by a later statute. In that case Stanley J when considering whether there was an implied exclusion focused attention on the provisions of the Health Act, because reliance had been placed on the express provisions of s 139 of that Act, or necessary implication from the provisions of the Act generally. There is no doubt that a provision of general application of a statute can be impliedly excluded in its operation to a provision of a different statute by implication from the terms of that statute as a whole, but that rule only applies to something which can be found in a later statute. The operation of a general provision of a statute cannot be impliedly (or for that matter expressly) modified by later subordinate legislation.[8] Accordingly, if s 23 is to be excluded it is necessary for the respondent to point to something in the Racing Act 2002 which excludes it, rather than something in the rules of racing, and no argument on that basis was advanced.

[27] The same conclusion applies in relation to s 24(2), although the wording "the law relating to the subject" in that provision could permit the section to be excluded in relation to an offence created under subordinate legislation by provision of that subordinate legislation.

[28] It was submitted for the respondent that the overwhelming public policy consideration was the need for public confidence in the fairness of racing, and that in this context a rule such as AR 178 had to carry strict liability otherwise it would be almost impossible to prevent the use of prohibited substances. It was essential to place the whole responsibility on excluding the use of prohibited substances in a horse on the trainer and those having charge of the horse, because they were the ones who were in the best position to ensure that the horse could be kept free from such substances. Reference was made to the passage in the judgment of Bingham MR in R v Disciplinary Committee of the Jockey Club, ex parte Aga Kahn [1992] EWCA Civ 7; [1993] 1 WLR 909 at 914:

"For a variety of reasons, including the large sums of money which stand to be won or lost on the outcome of a single race, horseracing is an activity particularly prone to criminality, cheating and chicanery of many kinds. Experience no doubt shows that strong measures of control and close vigilance are necessary pre-conditions of fair and honest competition."

[29] The difficulty with these submissions is that there is clear authority that an implied exclusion of the operation of s 24 is not to be found in the subject matter of a particular statute. A clear expression of this proposition is to be found in the judgment of the Western Australian Full Court in Geraldton Fishermen's Co-Op Ltd v Munro [1963] WAR 129 at 133:

"It is not permissible to find an implied exclusion by regarding the subject-matter of the particular statute. The most that such an examination can show is that it would be quite reasonable for parliament in the particular case as a matter of policy to have excluded s 24: but if on a fair interpretation of the words used it can be seen that the two sections can stand together, then the fact that an exclusion would have been reasonable, or even the fact that an exclusion might have been expected, cannot, in my opinion justify the adoption of a gloss on the words used so as to bring about such a result."

[30] There is ample Queensland authority to the same effect: in Thomas v McEather [1920] St R Qd 166, Real J said at p 177:

"The exact wording of the last clause of s 24 seems to me to rebut the contention that the rule therein stated can be excluded by the subject matter of the law, and the punishment provided for a breach, or otherwise than by express provision, or some provision of a law relating to a subject inconsistent with the coexistence of the rule as applicable to that subject."

[31] In Anderson v Nystrom [1941] St R Qd 56, Philp J at p 71 expressed agreement with this proposition, and his judgment had the support of EA Douglas J: p 62. See also Hunt v Maloney (supra) at p 172 per Stanley J. It is therefore necessary to focus attention on the later law which creates the offence, with particular reference to the specific section which creates the relevant offence.

[32] The only submission advanced by the respondent by reference to these considerations was that there was a contrast between the provisions of rule AR 178, which was described in some of the material as a presentation offence, and a rule under which a person could be dealt with more severely for actually administering a prohibited substance to a horse, what was referred to as an administration offence. It was pointed out that the appellant had been charged with the former offence which did not in terms have as an element that he was responsible for the administration of the prohibited substance to the horse. Further, rule AR 177 included its own exculpatory provision in AR 177B, and there was to be a contrast drawn between that and AR 178. Furthermore, prior to 1 October 2002 there was an exculpatory provision similar to AR 177B for AR 178, but the rules were amended to remove it.

[33] I accept that the existence of a specific exculpatory provision which is really inconsistent with the operation in relation to the offence of s 24 of the Code could well amount to an implied exclusion of the operation of that provision. The difficulty with this argument, however, is that once the express exclusionary provision is removed in relation to AR 178, the basis of that argument really disappears. Just looking at the terms of the statute before and after, it is not possible to know that the reason for the removal of the express exclusionary provision was not simply to allow s 24 to operate in its ordinary terms. The same applies to the contrast between AR 177 and AR 178; if AR 177B has the effect of excluding s 24, the difference may be explained by the absence of the exclusion of s 24 from the latter provision. On the whole, I am not persuaded that there is anything about the terms of the rules of racing which by necessary implication excludes the operation of s 24. The provision is not so inconsistent with or repugnant to the provisions of s 24 that the two cannot stand together.[9] Accordingly, if I had been of the opinion that s 36 applied ss 23 and 24 to the operation of the rules of racing, I would have rejected the respondent's submissions that their operation was impliedly excluded.

Application of s 23

[34] The next issue is whether the tribunal erred in its application of ss 23 and 24 of the Code.[10] As before the tribunal it was the second limb of s 23 which was relied on by the appellant, the event being that the horse had at the time of presentation a total plasma carbon dioxide level above the prescribed limit. During submissions, counsel for the appellant refined that somewhat, to speak of the event as being the presentation of a horse which had a total plasma carbon dioxide level above the prescribed limit. In my opinion that is not the way s 23 operates. The relevant act, or perhaps the relevant event, was the presentation of the horse for racing. The offence created by the rule is such a presentation when the horse has a particular feature or characteristic, but there is no question of the presentation of the horse having been an event which occurred by accident.

[35] There was a consideration of a similar situation by the Full Court in Larsen v G J Coles and Co Ltd, ex parte G J Coles and Co Ltd (1984) 13 A Crim R 109. In that case the appellant had been charged with selling a falsely labelled package of meat contrary to the provision of the Food Act. Connelly J with whom the other members of the court agreed said at p 111:

"There is in my opinion no event in this case within the meaning of s 23. The event which is contended for is that the meat sold was falsely labelled. But the very act was the sale of meat which was in fact falsely labelled whether the servant in question was aware of this or not. The event, for the purposes of s 23, is that which results from the willed act. It will be within the protection of s 23, as being an event which occurs by accident, if it was a consequence which was not in fact intended or foreseen and would not reasonably have been foreseen by an ordinary person: Kaporonovski [1973] HCA 35; (1973) 133 CLR 209 at 231 per Gibbs J as he then was. ... It is impossible in this case to separate the voluntary act of selling the meat and the sale of falsely labelled meat and to say that the latter is an event which occurred by accident. Plainly enough the appellant's servant intended to sell the piece of meat which the purchaser offered to buy with whatever label it had on it."

[36] The same applies here. It is not suggested that the presentation of the horse for racing was an unwilled act, or an event that occurred by accident, and it does not achieve that character simply because at that time the horse had a particular characteristic, namely a particular concentration of carbon dioxide in the blood. In my opinion there is no relevant event here and s 23 would not have assisted the appellant.

Application of s 24

[37] With regard to s 24, the respondent's submission is that there was an absence of evidence which raised an issue under s 24, because there was an absence of any positive belief that the horse was not in such a state at the time of presentation for racing that it exposed the appellant to a penalty under AR 178. There was evidence before the stewards and before the tribunal that he did not know the horse had an elevated total plasma carbon dioxide level at the time of its presentation, he could not explain how that came about, and had followed ordinary animal husbandry practices which would not, on the basis of expert evidence from a veterinary surgeon, give rise to an increased total plasma carbon dioxide level.[11]

[38] In my opinion that was sufficient evidence to raise the defence under s 24 for consideration. This is not a case like Larsen (supra), where it was held that s 24 was not raised by the evidence, in circumstances where there was no reason to think that any attention was given to the question of the state of the labelling at the time the product was sold. Here it seems to me that it would in the circumstances be reasonable to infer that there was an actual belief that there were no prohibited substances present in the horse at the time it was presented for racing,[12] and in those circumstances if s 24 applied it was necessary for the tribunal to conclude either that there was no such belief honestly held by the appellant, or that there were no reasonable grounds for that belief.

[39] In relation to this, the tribunal said at p 9:

"We cannot here identify that there was any mistake or even mistaken belief as no evidence was ever submitted as to how the level in the horse's system rose above the prescribed threshold. It would appear therefore that the appellant could never have had any belief whatever that was mistaken."

[40] That in my opinion was plainly not a proper application of s 24. Once there was evidence which suggested that there was a belief that the horse did not have any prohibited substance, it was necessary to show either that that belief was not honestly held, or that there were no reasonable grounds for it. In circumstances where there was no evidence to show how it came about that the plasma carbon dioxide level was elevated there was really no basis for concluding that the appellant could not have had reasonable grounds for that belief. The tribunal appears to have proceeded on the basis that in order to show a relevant mistake it was necessary for the appellant in effect to show how the horse came to have the elevated reading and that this did not prevent him from having reasonable grounds for a belief that it was not affected by a prohibited substance. That was not the correct approach. Furthermore, if there was evidence that a course of husbandry had been followed with the horse which would not have produced such a reading, and that care had been taken to prevent the horse from being doped, then knowledge of that course of husbandry and that care potentially could have provided reasonable grounds for a belief that the horse was not so affected at the relevant time.

[41] In these circumstances, if it were necessary for my decision I would have to consider whether on the evidence it was open to conclude that s 24 had been excluded, in order to decide whether the matter should be sent back to the tribunal. However, because I do not consider that s 24 applied to the matter that the stewards and ultimately the tribunal had to decide, it is unnecessary to consider that matter further.

[42] A penalty of six months disqualification of the trainer's licence was imposed by the stewards. There was an appeal to the tribunal against penalty, and this aspect of the appeal was also dismissed. The tribunal noted that the appellant had what could be described as "various previous convictions" but expressed the view that they were not such as to warrant the imposition of any loading upon a six month disqualification. The tribunal said the stewards had taken into account the appellant's personal situation[13] and his longevity as a horse trainer, and had determined on a penalty of six months' disqualification. The tribunal said that it had been regularly stated by the tribunal in relation to similar charges that disqualification was an appropriate deterrent to members of the racing industry and it would not be appropriate for there to be just a suspension. However, the tribunal said that it had previously acted against attempts by the stewards to increase the length of the disqualification unless there was some form of repeat offending being undertaken. The tribunal concluded its consideration by saying:

"We believe that the stewards acted properly in identifying that six months was an appropriate penalty and we do not consider that it was manifestly excessive in all of the circumstances."

[43] I must say that the penalty appears harsh to me, particularly in the light of the matters raised in Exhibit 51. There was no explanation in the reasons of the Tribunal of the significance of a disqualification rather than a suspension, and it is by no means apparent to me why a suspension would be inadequate as a measured form of deterrence, in a case where there was no personal wrongdoing alleged or proved on the part of the appellant. This, however, is not a matter on which I have heard full argument, and may not raise a question of law. What does concern me, however, is whether the Tribunal discharged its appellate function, in relation to the appeal against penalty, according to law.

[44] The Racing Appeals Tribunal is established under Chapter V of the Racing Act 2002. Among its functions is to hear an appeal by a person aggrieved by a decision of the stewards where there is no right of appeal to an appeal committee under the rules, as is the case here: s 167(1)(c). Under s 172(3) "an appeal is by way of rehearing, unaffected by the decision appealed against, on the material before the entity that made the decision and any further evidence allowed by the tribunal."

[45] There are many ways in which an appellate body, commonly a court, is to operate under various legislative provisions. This provision is a particularly unfortunate one. It is in terms an unhappy amalgam of an appeal by way of rehearing in the conventional sense, and an appeal by way of hearing de novo. The reference to the material before the entity that made the decision clearly contemplates that there is not to be a hearing de novo, and that was obviously the approach of the tribunal in the present case; it had the benefit of a transcript of the proceeding before the stewards, and took that into account together with additional evidence put before it.

[46] The difficulty arises because of the expression "unaffected by the decision appealed against". In the ordinary case of an appeal by way of rehearing it is necessary for the appellant to show that the decision appealed against was wrong, and the Appeal Court, although ultimately making up its own mind on the matter,[14] has due regard to such advantages that the court or tribunal at first instance had because of the opportunity to see and hear witnesses, and to have the full consideration of all of the relevant evidence that was presented by the original hearing.[15] On an appeal under s 222 of the Justices Act 1996, which is an appeal by way of rehearing (s 223) this court must give due deference and attach a good deal of weight to the magistrate's view: Stevenson v Yasso [2006] 2 Qd R 150 at [36] per McMurdo P. Being unaffected by the decision appealed against would appear to suggest that the appeals tribunal is to disregard anything in the decision appealed against which reflects such advantages as the body at the first instance had, without replicating those advantages by itself hearing all of the evidence afresh.

[47] Unfortunately this unsatisfactory formula is not unprecedented. Something similar appeared in s 92(4) of the Queensland Building Tribunal Act 2000, and I attempted the task of working out what it meant in that context in Pointon v Redcliffe Demolitions Pty Ltd (2002) 23 Qld Lawyer R 103.[16] In that case I was able to conclude that the section meant an appeal by way of rehearing in the ordinary sense, although there were a number of specific features of that legislation which led to a different conclusion from what might otherwise have been suggested by the particular phrase in question. As I noted in that judgment, the same phrase appeared in s 147 of the Weapons Act 1990 which provided for an appeal to a magistrates court from certain decisions under the Act, where it appears that that has led to magistrates dealing with the appeals by conducting hearings de novo, or something very similar.

[48] Some of the considerations referred to in Pointon apply in the present case as well. Section 168(2) requires that the notice of appeal "state fully the grounds of appeal and the facts relied on." That is not really consistent with a hearing de novo. As in Pointon, the reference to further evidence is to further evidence "allowed" by the tribunal, which suggests that the tribunal has a discretion as to whether or not to allow further evidence. That is also inconsistent with a hearing de novo. The Racing Act makes express provision in s 174 for the tribunal to employ an expert consultant in relation to the hearing of the appeal, and obviously it may act on the opinions of that expert consultant. That is more consistent with a hearing de novo rather than a rehearing in the conventional sense, where the reception of the additional evidence is usually fairly limited.

[49] Section 186 of the Racing Act provides:

"(1) On an appeal, the tribunal may make any decision that the entity that made the decision appealed against could have made.

(2) Without limiting subsection (1), the tribunal may -

(c) set aside the decision appealed against and substitute its own decision."

[50] Subsection (1) is more consistent with a rehearing de novo, whereas the terms of subsection (2) are perhaps more consistent with a rehearing in the conventional sense. On the other hand the absence of a power to remit a case to the entity that made the decision is more consistent with a hearing de novo.

[51] Unlike the situation with the Queensland Building Tribunal Act 2000, there is nothing in the explanatory note to the bill that became the Racing Act 2002, so far as I can see, which throws any light on this issue, except that one of the issues discussed in the note was whether there would be a right of judicial review rather than a right of a de novo appeal or merits review of certain decisions (not including a decision subject to an appeal to the tribunal), which suggests that in that context at least someone was thinking in terms of the relevant issues.

[52] When considering the matter in Pointon (supra) I approached it essentially on the basis that the question was whether the legislation in that case provided for an appeal by way of rehearing or an appeal by way of hearing de novo. Since then, the High Court has emphasised that what is meant by the creation of a right of appeal depends very much on the terms of the particular statute in each case. In Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 the majority at [20] said:

"Appeal is not, as such, a common law procedure. It is a creature of statute. ... There are different meanings to be attached to the word 'rehearing'. ... Which of the meanings is that borne by the term 'appeal', or whether there is some other meaning, is, in the absence of an express statement in the particular provision, a matter of statutory construction in each case."

[53] The court then went on to turn to the particular provisions governing the appeal then under consideration and went on to discuss the nature of the "rehearing" provided in those and like provisions. The words "or whether there is some other meaning" are I think significant in the present context. They involve a recognition that the legislature is not confined to particular categories of method of appeal, but can in principle create whatever sort of appeal it likes.

[54] There is also the consideration that in principle it is desirable to give relevant meaning to all the words appearing in a statute.[17] The effect of the interpretation adopted in Pointon gives very little meaning to the words "unaffected by the decision appealed against". The position is particularly acute in relation to an appeal against a discretion, such as an appeal against the imposition of a penalty. Traditionally appeals of this nature have been decided in a way which gives particular significance to the decision at first instance. It is necessary to show that the discretion has in some way miscarried: Skinner v The King (1913) 16 CLR 336 at 342; House v The King (1936) 55 CLR 499 at 504-5. This approach is adopted even in the case of an appeal by way of rehearing in the conventional sense, such as in an appeal against sentence under s 222 of the Justices Act.

[55] There are various reasons for this, but one important consideration is the assumption that the legislature by creating an appeal from the exercise of a discretion is not intending thereby to transfer the discretion to the appellate body, so that the assumption is that where there is a discretion to be exercised by the body at first instance that exercise of the discretion will stand unless on the rehearing something is shown to be wrong with the way the discretion was exercised, that is to say, unless it is shown that the discretion has miscarried in some way. It is I think difficult to reconcile these words in the statute with that assumption, and with that approach to an appeal against an exercise of discretion.

[56] There are of course practical disadvantages that attend a situation where the discretion has to be exercised afresh at an appellate level automatically; in particular it tends to devalue the significance of the function performed by the body at first instance, and tends to encourage appeals. Nevertheless, in principle a legislature can provide for an appeal by way of rehearing where any discretion is to be exercised afresh. The real consideration is whether the words in question do achieve that result in this case. Obviously it is not a consideration that there may be some disadvantages or some inconvenience arising from an appeal which proceeded on that basis. Whatever the effect of the inclusion of these words may be, unless they are essentially disregarded, which is what I did in Pointon, they are going to produce some disadvantage. But the question for the court is not what form of appeal should be provided by the legislature, but what form has been provided. The comments of the majority in Fox v Percy emphasise that what matters are the express terms in which the nature of the appeal is defined by the legislature.

[57] Giving effect to that approach in the case of an appeal against the exercise of a discretion, such as an appeal against penalty, seems to me to require the tribunal to depart from the ordinary approach on an appeal by way of rehearing to a review of an exercise of discretion. That is a two-stage process, with the first focussing on the decision appealed against, and the second stage, the exercise of a discretion afresh, only arising if it is shown that there was something wrong with the initial exercise of the discretion. It seems to me that in this context the only way to decide the matter unaffected by the decision appealed against is to proceed directly to the second stage, that is to say, to exercise the discretion afresh. If the tribunal in the rehearing only exercises the discretion afresh if it is first shown that the exercise of the discretion in the decision under appeal miscarried, then the appeal process is certainly affected by the decision appealed against.

[58] In the present case therefore the tribunal has approached its consideration of the appeal against penalty on the wrong basis; it has considered the question of whether the sentence imposed was manifestly excessive, rather than deciding for itself what the appropriate sentence was. It follows that there has been no proper exercise by the tribunal of its appellate function in relation to the appeal against penalty, and the tribunal has made an error of law in applying the wrong test to the appeal against penalty, and in failing properly to determine the appeal against penalty.

[59] The powers of this court in hearing and determining the appeal are those specified by the UCPR: s 193(2). The relevant rule is rule 785, which is applicable because Part 3 of Chapter 18 applies to an appeal to a court other than the Court of Appeal: r 782. One of the rules that is picked up by r 785 is r 770, which permits what is described there as a new trial in relation to part of a decision. There is therefore power in this court to send the question of the appeal against penalty back to the tribunal to hear and determine according to law. In my opinion, given the nature of the appeal and the particular expertise which is to be expected of the tribunal, and in view of the limited nature of the appeal to this court, it is appropriate to exercise that power in the present case, rather than for this court to decide for itself what is the appropriate penalty.

[60] In these circumstances I should say something about the three specific grounds relied on by the appellant in relation to the appeal against penalty. The first was that the tribunal erred in law in failing to give consideration to the arguments advanced on behalf of the appellant. It is true that there was not an express and specific response given in the reasons of the tribunal to the particular grounds advanced in argument before the tribunal, but it seems to me that the reasons taken as a whole deal sufficiently with them. Reference was made to earlier decisions of the tribunal, and to the penalties imposed "where similar charges had been levied", which suggests that the tribunal had in mind the considerations sought to be raised in the first ground of appeal to the tribunal.

[61] In relation to the question of whether there was a failure on the part of the stewards to allow the appellant to provide an explanation concerning previous convictions, in circumstances where the tribunal had conclude that the previous convictions were not material, it does not seem to me that there was any need to go on and consider that further ground. The third ground was that the penalty which had been imposed had been the penalty appropriate to an administration offence, but the tribunal at p 10 referred to the fact that an administration offence bears a much higher penalty. That suggests that the tribunal did not regard the penalty being imposed here as equivalent to a penalty for an administration offence, and suggests that the reference to "similar charges" in the discussion about penalty was a reference to charges under this rule rather than charges of an administration offence.

[62] I do not consider that courts should be astute when considering an appeal from a body such as the racing tribunal to find inadequacy in the reasons for the tribunal's decision, so long as there has been some reasonably clear explanation by the tribunal of why it has in fact come to the decision it reached. I do not think that it is desirable for courts to insist on tribunals reciting submissions which have been rejected just in order to say that they have been rejected. I do not consider that there was any error of law in the form of inadequacy of the reasons of the tribunal.

[63] The next matter which was advanced was that the tribunal erred in taking into account the need for a deterrent to members of the racing industry in imposing a disqualification, in circumstances where there was no reason to think that there was anything deliberate or even careless done by the appellant personally in relation to the offence. It was submitted that the evidence did not disclose any moral blameworthiness on the part of the appellant, and that in those circumstances no consideration of deterrence arose. I do not accept that submission; in my opinion the evident purpose of rule AR 178, as shown by the public policy considerations referred to by Bingham MR earlier, is to provide very strong incentives for trainers and others who are responsible for the wellbeing of a horse to take great care to ensure that the horse when presented for racing will be unaffected by prohibited substances.

[64] There are obviously plenty of people around whose interests might be advanced by the administration of prohibited substances to racehorses, and those people may well not be trainers or persons associated with them; one would hope that they were not. I suspect that the intention is not merely that trainers should be deterred from administering or permitting the administration of prohibited substances, but that they should be given a very strong incentive to take great care to ensure that prohibited substances are not administered by anyone else. That I think can fairly be described as a consideration of general deterrence, and seems to me the whole point and purpose of a rule such as this.

[65] Obviously in a particular case a prohibited substance may be administered to a horse even though a trainer has taken all possible care to ensure that that would not occur, and in such a situation it may seem hard and unfair for the trainer to be punished. But the public policy considerations referred to are evidently seen by those responsible for framing and adopting rules such as these are justifying such a draconian provision. If such a provision is justified, and is to be meaningful, it must be enforced. In my opinion there was no error of law in taking into account these considerations by reference to the concept of deterrence. It is clear that the tribunal was considering general deterrence, not specific deterrence, in respect of which the appellant's argument would have been more persuasive.

[66] Further it was submitted that there was an error in treating the six month disqualification as a sort of benchmark or tariff for the offence, so that the question became whether some other penalty was appropriate in this case rather than what in the abstract was an appropriate penalty. There can be nothing objectionable about a court dealing with appeals against sentence by considering its own earlier decisions in relation to similar cases as a means of assessing the appropriateness of the penalty in the particular case. That is certainly the way in which the Court of Appeal approaches appeals against sentence, although it ordinarily speaks in terms of a range for a particular offence in particular circumstances rather than a specific sentence.[18] That I think is of no particular consequence, and is more a product of the fact that the Court of Appeal is essentially concerned with the question of whether a particular sentence falls outside the permissible scope of sentencing discretion.

[67] Considerations of fairness as between people in a similar situation suggests that it is appropriate for a tribunal when considering the question of penalty to have regard to penalties which have been imposed in similar circumstances in the past, so that persons who are in a similar situation will be treated fairly as between themselves.[19] If earlier decisions of the tribunal suggest that such fairness will prima facie be achieved by imposing a penalty of six month's disqualification, it is not inappropriate for the tribunal to approach its consideration in that way, and that involves no error of law.

[68] It was submitted that the tribunal had erred in failing to equate the position of the appellant with someone who was able to show a specific innocent explanation for the excessive reading which was obtained from the sample; that in circumstances where there was no evidence as to how the sample came to produce an excessive reading, there was no basis to treat the appellant any differently from someone whose horse had produced an excessive reading for a particular identified reason which showed an absence of blameworthiness on the part of the trainer.

[69] In my opinion, however, there is a difference between a case where there is evidence to show a specific mitigating circumstance, and simply an absence of evidence of an explanation, either mitigating or aggravating depending on the extent to which it shows an absence or presence of blameworthiness on the part of the trainer.[20] Cases where the trainer was able to show a specific explanation which did not involve any blameworthiness on his part are really examples of the situation where the trainer has for the purpose of penalty been able to show a mitigating circumstance. It may well be appropriate for such cases to be treated more leniently than what might be described as the ordinary case, where there is no explanation for the elevated reading, and therefore no indication as to whether or not there is any personal blameworthiness on the part of the trainer. Obviously the third category of case would be one where there was some explanation which did show moral blameworthiness on the part of the trainer, which I would expect would justify a more severe penalty. But I do not think that there was an error of law in failing to equate the present case with one where there was a specific exculpatory explanation for the elevated reading demonstrated either before the stewards or before the tribunal. Accordingly, I would reject the specific criticisms of the tribunal made on behalf of the appellant, but, for the reasons given earlier, I consider that the tribunal made an error of law in applying the wrong test to the appeal in respect of penalty.

[70] Accordingly, the appeal is allowed in part, and the determination of the appeal against the penalty imposed by the stewards is remitted to the tribunal to hear and determine according to law, that is to say, in accordance with these reasons. I will hear further submissions in relation to the question of costs of the appeal, but it does seem to me that the appellant has had fairly limited success overall.

[1] The rule appears in these ungrammatical terms in the outlines for both parties; neither party made available a copy of the rules.

[2] I gather that in fact the rules were adopted under previous legislation and have been continued in force by transitional provisions of the Act: s 377(1), s 403(2). This is irrelevant to their legal standing.

[3] Renwick v Bell [2001] QCA 316 at [16]. See also para [26] where it was said that the term in the Justices Act "applied generally to all offences against the statute law of Queensland."

[6] No. 1963/93, 8/2/95, unreported; BC 9503397. Five judges sat.

[7] A statutory rule is by s 8 a statutory instrument made by the governor or the governor-in-council, or approved or confirmed or consented to by the governor or the governor-in-council, or subject to being disapproved or disallowed by the governor or the governor-in-council.

[8] In Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561 Brennan J at p 567 said that to exclude a provision of Chapter V from a statutory offence, "s 36 must be repealed pro tanto."

[9] Harmer v Grace, ex parte Harmer [1980] Qd R 395 at 398.

[10] This is also addressed on a precautionary basis.

[11] This was the submission on behalf of the appellant, and not specifically disputed on behalf of the respondent.

[12] The state of the horse's blood chemistry is a state of things for the purposes of s 24: Harmer v Grace (supra) at p 399.

[13] In particular, as set out in Exhibit 51.

[14] Aldrich v Ross [2000] QCA 501; [2001] 2 Qd R 235 at 257; Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 at 551; State Rail Authority (NSW) v Earthline Constructions Pty Ltd [1999] HCA 3; (1999) 73 ALJR 306 at 327; Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [29].

[15] Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479; Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [23].

[16] This decision was mentioned without criticism by the Court of Appeal in Robertiello v Di Lione [2003] QCA 497 at [15].

[17] Irving v Gagliardi (1895) 6 QLJ 155 at 156; Pingel v R and R Leach Pty Ltd [2002] QCA 275; [2003] 1 Qd R 533 at 534.

[18] Although in R v Moss [1999] QCA 426 McPherson JA spoke of a "tariff" for a particular offence, as something it was desirable to maintain in the interests of consistency of sentencing.

[19] R v Boudelah [1991] FCA 124; (1991) 28 FCR 176 at 188 and cases there cited.

[20] cf R v Morrison [1998] QCA 162; [1999] 1 Qd R 397 at 422.