Anthony McVicker wrote:
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Paul's case proves my point and the result didn't open anything, it closed the last out opportunity any participant had
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I beg to differ. The decision of the Supreme Court in respect of Paul Anderton indicated that offences under rules relevant to the charges are offences of strict liability . In the VCAT decision, these offences were deemed to be ordinary liability offences. No decision on the basis of strict liability was made, but an instruction for VCAT to rehear the case on the basis of strict liability. What this means is best understood by firstly distinguishing between ordinary liability, strict liability and absolute liability. I offer my oversimplified (& non-legal) understanding of what these mean. Under ordinary liability, GRV must prove that there was an intention to live bait eg through actions, words etc. Obviously not proven at VCAT in Paul Anderton's case. Under strict liability, if a live rabbit is proven to have been used, there is a defence of "honest & reasonable mistaken belief" available. In summary, everything indicated to the trainer that it was a normal compliant trial. (Such things as; the indications were the rabbit was dead, went as a normal customer, paid the normal fee, my focus was my dogs, under the Rules track operations including all aspects of the lure are a track manager responsibility, I don't interfere in the operation of a trial). Under absolute liability, if a live rabbit is proven to have been used, there is no such defence available. My understanding of the live baiting cases (though haven't checked all) is offences were deemed to be absolute liability offences for all the RADB cases, and for all VCAT cases, except for Paul Anderton and Brett Mackie where ordinary liability was applied. None applied strict liability. So it seems that both the RADB and VCAT got this aspect wrong in every case, to the detriment of all defendants. This was despite considerable legal representative time spent on addressing the question of what type of liability is relevant. All this is sloppy at best, or a legal atrocity in terms of consequences for defendants. It could, and in my opinion, should have been prevented by clarification of the nature of offences in the drafting stage of the rules, and inclusion in notations, as is the practice for most legislation (eg the Corporations Act). It is done in other racing jurisdictions (From memory, Canadian harness racing rules is an example), and the failure to do so has had severe adverse financial implications for those charged (but a bonanza for lawyers). It now seems that Paul Anderton must now rely on the defence of honest and reasonable mistake, though there are also mitigating factors that were also not considered in the RADB decision that may be able to be considered. Brett Mackie had already served his disqualification under the RADB decision that deemed the offence to be one of absolute liability, when he appealed to clear his name and won. It would seem pointless for this to be revisited. For everyone else, where absolute liability (ie no defence of mistaken belief applies), fairness should provide the opportunity for their case to be reheard on a strict liability basis (as per the Paul Anderton decision). In their case, this would be a positive, as a rehearing by VCAT on the same basis as Paul Anderton should now be an option, and the defence of honest and reasonable mistake can now be used. I consider that not only has the Supreme Court judge finally got this aspect right, she was both astute and fair. Reverting the case back to VCAT to be reheard means that the Supreme Court will not be clagged with appeals (and the associated costs to the public purse via the court system and indirectly via GRV), and it has given the opportunity for a lower cost opportunity for a rehearing to those charged instead of an appeal to the Supreme Court An additional point that has not been clearly made out throughout all live baiting cases is the extent to which an offence has been committed by both the track operator and a participant, or just the track operator. A practical reading of the rules relevant to trial tracks indicates that participants cannot involve themselves in any management activity of a trial track unless registered as a track manager or assistant manager. Effectively it means that trial track activity is the responsibility of the manager or assistant manager. A question that has seemed not to have been addressed is whether a participant is using or causing to use a (deemed to be) live animal if he is there just as a customer, and it is the track operator who is the only person engaged in live baiting. In other words, is just being a customer of someone who breaches a rule enough to constitute 'using or causing to use' a live animal? Responsibilities, including those of regulators, should be clear, but are not. It would be interesting to compare current footage (not staged) of a trial at a private track and compare it to the Tooradin footage used as evidence, and compare the actions of those trialling their dogs. The Supreme Court decision does seem to give strong push for the revision of the disciplinary and legal framework as covered in the Paul Bittar report. As does the recent decision regarding cobalt in racing. This report has been parked since April 2016.
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