RACING Queensland hs 28 days to appeal the decision which saw Sydney professional punter Stephen Fletcher cleared of a charge of being party to a fixed race in Brisbane and his 12-mopnth disqualification lifted.
The Queensland Civil and Administrative Tribunal (QCAT) could not be satisfied the evidence of RQ had satisfied them that the relationship between jockey Bobby El-Issa and Fletcher had resulted in a conspiracy to fix a race that enabled Fletcher to profit.
The Tribunal felt RQ had produced nothing but inferences drawn from Fletcher’s betting pattern to establish a link between he and El-Issa which indicated fraud or corruption.
Fletcher had been charged with being a party to the action of Bobby El-Issa on Bold Glance which finished second to heavily backed favorite Essington which Fletcher had backed to win $30,000. Evidence from Betfair revealed that he had laid Bold Glance to lose $55,000.
“I’ve spent a lot of money to clear my name and the next step is to get it back. I’ll be looking at my options to get costs back from Racing Queensland,” Fletcher told News Limited.
RQ has 28 days to decide whether to appeal the decision.
THE TRANSCRIPT OF THE QCAT DECISION READS:
Queensland Civil and Administrative Tribunal
CITATION: Fletcher v Racing Queensland Ltd [2011]
QCAT
PARTIES: Mr Stephen Fletcher
(Applicant/Appellant)
V
Racing Queensland Ltd
(Respondent)
HEARING DATE: 29 July 2011
HEARD AT: Brisbane
DECISION OF: Richard Oliver, Senior Member
Sandra Deane, Member
Keta Roseby, Member
DELIVERED ON: 13 September 2011
DELIVERED AT: Brisbane
ORDERS MADE: 1.The decision of Racing Queensland
made on 1 April 2011 is set aside.
CATCHWORDS: Racing - where applicant alleged to be a
party to a breach of AR135(a) — where
respondent relied on circumstantial evidence
to support charge and make a finding of guilt
— where correlation of lay bets with Jockey
El-lssa resulted in wins for the applicant
over a short period - where close
association alleged between Mr Fletcher
and Jockey EI-lssa - whether betting history
should be confined to Mr Fletcher’s ten top
lay bets or whether the betting history
should be considered over a broader period
— whether the evidence is sufficient to draw
an inference of guilt to satisfy the Briginshaw
test.
Queensland Civil and Administrative
Tribunal Act s 22
Racing Queensland Ltd v Bellamy [201 1]
QCATA 30
Spoules v Makita (2001) 52 NSWLR 705
Briginshaw v Briginshaw (1938) 60 CLR 336
APPEARANCES and REPRESENTATION (if any):
APPLICANT: Stephen Fletcher represented by Mr Byrne
QC instructed by McLachlan Thorpe
RESPONDENT: Racing Queensland represented by Mr
Murdoch SC instructed by Racing
Queensland.
REASONS FOR DECISION
Introduction
[1] Mr Fletcher is a professional gambler. He wagers on a range of sporting
events and relevantly here, horse racing. He bets on horses to win and
takes bets in a similar way to a bookmaker using an internet betting site
"Betfair'. He bets across horse races in most Australian states. His
financial exposure to gambling can be significant.
[2] The betting on horses to win or place is straight forward. However, the
laying of horses is a little more complex in that, using Betfair, Mr Fletcher
can act as a bookmaker by laying individual horses in a race. Unlike the
traditional bookmaker at the race course, he does not necessarily have
to bet on a full book of horses in a particular race but he can be selective
as to those horses which he will take bets on. The advantage of Betfair,
to a gambler like Mr. Fletcher, is that one can be both punter and
bookmaker.
[3] On 26 February 2011 Bold Glance was running in race 7 at Eagle Farm.
Using both betting methods through Betfair, Mr Fletcher laid Bold Glance
to lose at an average of $12.50 and backed Essington to win with bets
between $1.70 to $2.20 for the win. Mr Fletcher had about $30,000 on
Essington to win and stood to pay out about $55,000 if Bold Glance won.
[4] The _result in the race was that Essington won and Bold Glance came
second. Bold Glance was ridden by Bobby El-lssa.
[5] Immediately after the race the Stewards convened an inquiry because
they were concerned about the manner in which Bold Glance’s jockey,
Bobby EI-lssa, rode the final 200 metres. As a consequence of that
inquiry, Mr El-Issa was charged with failing to ride a horse on its merits
in breach of AR.135(a) and was disqualified from riding for a period of 2
and reduced the disqualification period from 2 years to 18 months.1
[6] During the course of that inquiry Mr Fletcher was charged with being a
party to Mr El-Issa’s breach of AR135(a). He was disqualified for a
period of 12 months. Mr Fletcher now seeks a review of that decision.
The Issues
[7] The issue for determination is whether Mr Fletcher is a party to the
breach of AR135(a) by reference to the particulars of the charge relied
on by Racing Queensland. They are as follows:-
(a) Jockey El-lssa rode BOLD GLANCE in a manner to deprive it of its
real and legitimate opportunity of winning the race in that after
passing the 200 metres when BOLD GLANCE was challenged by
ESSINGTON, he deliberately and consciously rode Bold Glance
with insufficient vigour which resulted in the BOLD GLANCE not
being fully tested and thereby not finishing the race off at its best.
(b) Mr Fletcher wagered on ESSINGTON to win and laid BOLD
GLANCE such that Jockey El-lssa depriving BOLD GLANCE of its
opportunity to win the race to permit ESSINGTON to win assisted
Mr Fletcher to obtain a financial benefit of in excess of $30,000 and
retain a stake of in excess of $55,000.
(c) Mr Fletcher was aware of jockey El-lssa’s intention that he not run
BOLD GLANCE on its merits.
(d) Mr Fletcher made jockey EI-lssa aware of his intention to back
ESSINGTON and lay BOLD GLANCE.
(e) At all material times Mr Fletcher a professional punter, and Jockey
EI-lssa were close associates.
[8] One other issue is raised by Mr Fletcher and that is, as a matter of law,
as Mr Fletcher is not a licensed person, he cannot be a “party to" a
breach of the Rules of Racing.
[9] The parties agree that the case against Mr Fletcher is wholly
circumstantial, meaning that Racing Queensland has not lead any direct
evidence to support the particulars of the charge as formulated by
Racing Queensland.
[10] Essentially what this hearing then comes down to is whether we prefer
the spread of bets over the 12 month period as a more accurate
determination if one is to rely on statistical evidence, or whether we
confine our consideration to the 3 month period as promoted by RacingQueensland through the evidence of Mr Birch.
[11] We have come to the decision that Racing Queensland has not been
able to prove to our reasonable satisfaction that Mr Fletcher was a party
to the breach of AR135(a) by Mr EI-Issa and therefore its decision of 1
April is set aside.
The Tribunal’s function
[12] The function of the Tribunal in a review proceeding is to come to the
correct and preferable decision by way of a fresh hearing on the merits2.
[1s] The allegations against Mr Fletcher are of the most serious kind. This
Tribunal found that Mr El-Issa deliberately and consciously did not allow
Bold Glance to run on its merits. This conduct involved moral turpitude
on his part and therefore, the standard of proof was such that there
needed to be sensible and probative evidence to support the allegations
made. In this application, the Stewards did not resile from the
seriousness of such charge. ln the EI-Issa hearing, the following
exchange occurred between counsel for Mr EI-lssa and Mr Birch:-
"WeIl what you were saying was the association with Fletcher was
dishonest and it was corrupt and it was fraudulent aren't you?
with respect to the second charge, yes, exactly what we say” 3
[14] Although the standard of proof is on the balance of probabilities the
standard is to be moderated by the principles set out in Briginshaw v
Briginshaw (1938) 60_CLR 336. Therefore the Tribunal must have regard
to the nature of the allegations made and the consequences of a finding
of guilt which will have a direct impact on Mr Fletcher’s livelihood. The
standard of proof in these circumstances is high but not to the criminal
standard4
Was Mr Fletcher a “Party”?
[1s] Because of our findings with respect to the substantive charge against
Mr Fletcher it not necessary for the Tribunal to address this question.
Did Mr El-lssa ride Bold Glance in a manner to deprive it of its real and
legitimate opportunity of winning the race after passing the 200 metre
mark?
[16] There can be no dispute about this question and sensibly both parties
have acknowledged that the particular of itself does not establish any
complicity between Mr Fletcher and Mr El-Issa.
Was the financial benefit to Mr Fletcher of $30,000 for the win on
Essington and saving of $55,000 on Bold Glance as a result of his
knowledge that Mr El-lssa would deprive Bold Glance of an opportunity
win and permit Essington to win?
[17] This particular needs to be reframed to give it conceptual sense in the
proceeding. The contention is that before the race there must have been
some communication between Mr Fletcher and Mr El-Issa so that Mr
Fletcher would have known that Bold Glance-would not win. It cannot
follow as a matter of logic from the way the case is mounted against him,
that Mr Fletcher would also know that if Bold Glance lost or placed,
Essington would win. There is no evidence, circumstantial or otherwise
to support such a contention.
[18] The “swing" as it has been described was not disputed by Mr Fletcher,
nor could it be. But of itself, it proves nothing other than the fact of the
transactions. Clearly there is a benefit to Mr Fletcher as matters
eventuated. This may also give rise to a strong suspicion of complicity
but of itself it does not satisfy the standard of proof. This suspicion must
also be considered in Mr Fletcher’s overall betting activities which ·are
discussed later in this decision.
Was Mr Fletcher aware that Mr-El-Issa was not going to run Bold Glance
on its merits?
[19] To establish this particular there must be proven facts from which an
irresistible inference, because of the seriousness of the allegation, can
be drawn to establish this knowledge on the part of Mr Fletcher. `
[20] The facts relied on by Racing Queensland are: the. relationship between
Mr Fletcher and Mr EI—Issa; Mr Fletcher’s high strike rate on lay bets on
horses ridden by Mr El—Issa; the high level of confidence manifested by
Mr Fletcher when laying bets on horses ridden by Mr EI-Issa and the
high level of confidence displayed by Mr Fletcher when placing or taking
bets on 26 February 2011. The truth of these facts is not in contention.
[21] The relationship alleged by Mr Fletcher is of a casual kind. There is
spasmodic telephone contact and on rare occasions personal contact
between Mr Fletcher and Mr El-lssa. The evidence does not establish
that the contact relates to horse racing or form. lt is to the contrary and is
limited to inquiries about family and Mr Fletchers opinions about other
sporting events. The direct evidence establishes that the contact is
always initiated by Mr El-lssa. The relationship itself does not lead to the
inference contended for by Racing Queensland, but it must be
considered in the overall context of all of the evidence upon which it is
said an adverse inference can be drawn.
[22] It is true that Mr Fletcher did enjoy a high strike rate with Mr El-Issa’s
rides. He also enjoyed a good result on 26 February. This result is
generally consistent with his overall betting results over a 12 month
period.
[23] Racing Queensland have chosen to look at the high strike rate for a
discrete period between 1 December 2011 to 26 February 2011. The
analysis for this period by Mr Clark from Betfair showed an unusual
correlation between laid bets made by Mr Fletcher on horses ridden by
Mr El-Issa which had lost.
[24] There can be little doubt that, at first blush, the correlation between Mr
Fletcher’s lay bets on mounts ridden by EI-lssa call for some
explanation. The empirical evidence produced by Mr Birch5 showed that
between 1 December 2010 and 20 February 2011 of the 21 events
involving Mr Fletcher, he was successful on 17 winning lay bets which
resulted in a success rate of 89.47%. In respect of horses not ridden by
Mr El-Issa upon which lay bets were placed the result was 51.60%.
[25] During the same period Mr Fletcher made a profit from thoroughbred
racing in Queensland of $63,883.85 and of this, $44,032.00 was
attributed to lay bets on horses ridden by Mr El-Issa. If this evidence is
looked at in isolation, and even without any probative evidence of
contact between Mr Fletcher and Mr El—lssa, it may be possible to draw
an inference that there had been collusion.
[26] This three month period should not, in our view, be considered in
isolation where the case against Mr Fletcher is purely circumstantial. Mr
Byrne put this proposition to Mr Birch, Chief Steward, during cross
examination. When it was suggested to him that it would be prudent to
consider Mr Fletcher’s betting history overall jurisdictions for more than
a 3 month period, Mr Birch disagreed. lt was further suggested to him
that the larger the statistical information available the more likely the
accuracy of the outcome. Mr Birch agreed with this because the
proposition itself is obviously correct. He also agreed that the narrower
the information base, the more likely the result is to be inaccurate, He
readily conceded that it was the top ten lay bets made on horses ridden
by Mr EI-Issa that led him to conclude that there must have been
collusion between them. He also conceded that if the top ten lay bets,
used as the statistical base, were ignored there was very little evidence
upon which one could rely to satisfy the high onus of proof where fraud
is alleged. Mr Birch maintained his position and relied on the information
contained in his affidavit.6
[27] By contrast, Mr Fletcher produced a report by Mr McMahon who looked
at the broader picture. Mr McMahon is a statistician who holds
qualifications in statistics and mathematics. He is currently employed by
the Australian Bureau of Statistics as a Statistician. He has had 12 years
experience as a licensed bookmaker’s clerk and his expertise was not
challenged. We are satisfied that Mr McMahon’s evidence meets the
requirements for expert evidence proscribed by Spoules v Makita.7To be
fair to Mr Birch he was not promoted as an expert, his calculations andstatistical analysis of the ten top lays was factual evidence upon which
an inference could be drawn of a relationship which, as we have said,
would obviously raise suspicions.
[2s] Mr McMahon was given records of Mr Fletcher’s betting history across
all his betting activities on his Betfair account. His report8 sets out the
betting history for Queensland and provides a comparison with that
betting history over the previous 12 months. On the lay bets in
Queensland, it is immediately apparent that most if not all of the lay bets
were horses where Mr Fletcher gave generous odds, or referred to as a
"roughie" 9 For example, Mr Fletcher, like any normal bookmaker, was
prepared to wager $31,000 on State of Being to win $835. Translated,
this simply means the starting price of the horse was approximately 50 to
1; Another example is Paris Blue where Mr Fletcher was prepared to
risk $34,244 to win $433 which is about 75 to 1. If a bookmaker, betting
on a full book, was doing this at the race course there would be nothing
untoward about it. However, unlike a bookmaker at the race course,
who is required to accept bets on all horses in the race, Betfair permits
individuals to lay only specific horses of their choice. Had the horses set
out in the schedule not been ridden by Mr El-Issa, again, there would be
nothing untoward about Mr Fletcher’s betting in that 3 month period.
[29] The table also compares how the Brisbane based horses compared with
Mr Fletcher’s overall betting activity. ln the column entitled “potential
profit rank on bets, combined accounts — 26/02/10 to 26/02/11 it can be
seen that only one horse ranked below 1000 that is State of Being which
was backed on 8 December 2010. Its ranking was 780. Bold Glance, in
the race of 26 February 2011 ranked 6,483 in the overall ranking of all
bets placed. The note to that schedule is also informative. It states:-
(a) Only one of the nominated Bobby El-lssa rides features in the top
1000 of Mr Fletcher’s potentially most profitable wages for the
period 26 February 2010 to 26 February 2011 (780);
(b) Only 4 rate in the top 5,000; and
(c) 2 are outside the top 10,000 (22,963 bets considered)
[30] The report then explains that when Betfair is compared with other
gambling outlets, for instance Unitab, it is difficult to compare the odds
given because one is not comparing like with like. Mr McMahon puts it
as follows:-
"Pari-Mutuel betting is a system which all bets of a particular type
are placed _together in a pool. Taxes, operating expenses etc are
then removed from the pool and dividends are calculated by sharing
the remaining pool among all winning bets. Australian totalisers are
an example of Pari-Mutuel betting markets. Taxes, operating
expenses etc that are removed from the pool are generally in thevicinity of 17% of the pool but can vary by market.
It is generally inappropriate to compare an Australian pari—mutuel
betting market with a Betfair market as Betfair markets do not have
the taxes or operating expenses built into their prices. As a result
Betfair markets more closely resemble a "fair market" that is a
market to 100%, The absence of a 17% take out means that on
average, the prices from the Betfair market at 100% will be 17%
higher than those being offered by Australian totaliser " 10
[31] Mr McMahon then did an exercise with that adjustment to compare Mr
Fletcher's lay bets on Betfair and on Unitab. The table demonstrates
that in the main the odds given by Mr Fletcher through Betfair compared
favourably with the odds that a punter would achieve by placing the bet
to win or place with Unitab on adjusted odds that is, adjusting by about
17%.11 The conclusion that Mr McMahon draws from this table is that Mr
Fletcher offered a price better than the 100% Unitab market 5 times out
of 10 and offered a price worse than the 100% Unitab market 5 times
out of 10.
[32] We are urged to conclude, from the McMahon report that when
considered over a 12 month period there is nothing unusual about Mr
Fletcher's betting pattern even though, in Queensland, all of the lay bets
on the top 10 lays are mounts ridden by Mr EI-lssa.
[33] In deciding this issue on the basis that this is a circumstantial case, the
question is whether we prefer the spread of bets over the 12 month
period as a more accurate determination if one is to rely on statistical
evidence, or whether we confine our consideration to the three month
period as promoted by Racing Queensland through the evidence of Mr
Birch.
[34] There can be no doubt that the broader picture gives a more accurate
reflection of Mr Fletcher’s betting habits. That picture is also consistent
with Mr Fletcher‘s innocence because it demonstrates that the bets
layed on the El-lssa rides were not out of the ordinary for him. We
accept Mr McMahon’s analysis which also supports this view.
Did Mr Fletcher make Mr El-lssa aware of his intention to back Essington
and Iay Bold Glance.
[35] There is no direct evidence to support this contention other than Mr
Fletcher’s denial.
[36] We are urged to draw the inference from the ten top lay bets however for
the reasons set out above we are not satisfied to the requisite standard
that the inference is capable of being drawn.
Were Mr Fletcher and Mr El-Issa close associates?
[37] We need say little more about this to what was said in paragraph 21
above. Once again there is no evidence to support the conclusion
contended for. At best the relationship was one of a casual nature and
the fact that Mr Fletcher is a professional punter and Mr El-lssa is a
jockey does not lead to an inference that they were close associates.
Conclusion
[38] The difficulty with the position taken by Racing Queensland is that there
is no other probative evidence other than the inferences to be drawn
from Mr Fletcher’s betting pattern in Queensland to establish an
association between himself and Mr El-lssa leading to a conclusion of
fraud or corruption. There are no admissions of any association other
than telephone contact from time to time to talk about family issues,
there are no phone records to support recent contact proximate to the
event in question, there is simply no hard evidence, and Racing
Queensland concedes this, to establish a relationship of the kind where
Mr Fletcher knew that Mr El-Issa was not going to ride Bold Glance on
its merits, so he could then lay Bold Glance and bet on Essington. lt is
certainly coincidental that this pattern has emerged and, although one
can be suspicious, given the standard of proof required where such
serious charges are laid, more is necessary.
[39] By contrast, if we were to accept the statistical evidence of Mr McMahon
then the coincidental nature of the relationship establishes a pattern of
betting which is consistent with innocence or, alternatively a failure to
discharge the onus of proof to establish a relationship of corruption and
fraud.
[40] Coupled with this, we also take into account Mr Fletcher’s immediate
cooperation with the Stewards. He effectively volunteered all the
information that he could to support his contention that not only does he
bet on horses ridden by Mr El-lssa but horses also consistently ridden by
other jockeys in other jurisdictions. The strike rate is not as impressive
as that with Mr EI-Issa but what it does show, is that there is a pattern
adopted by him consistent with that which he adopted with Mr El-Issa.
[41] Despite Racing Queensland’s suspicions, and the coincidental nature of
the relationship resulting in profits for Mr Fletcher, we cannot be satisfied
the evidence produced by Racing Queensland is so compelling to
establish to our reasonable satisfaction that there was a relationship
between these two gentlemen resulting in a conspiracy to fix a race for
Mr Fletcher’s profit.
[42] We therefore propose to set aside the decision and order that the charge
be dismissed.