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Waltisbuhl v Queensland All Codes Racing Industry Board QCAT 204
Waltisbuhl v Queensland All Codes Racing Industry Board  QCAT 204
Queensland All Codes Racing Industry Board
Occupational regulation matters
11 March 2016
17 May 2016
DISCIPLINARY PROCEEDINGS – RACING – whether breach of Australian Harness Racing Rules – whether horse presented to race with a prohibited substance in its system – where 1 certificate over allowable level and another certificate below – where margin of error – where allegations horse was suffering from a virus – where Rule 191 provides for evidentiary value of certificates
Australian Harness Racing Rules, r 188A, r 190, r 191
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20
Racing Act 2002 (Qld), s 152A
Briginshaw v Briginshaw (1938) 60 CLR 336
Lambourn v Racing Queensland Ltd  QCAT 699
Lawlor v Racing Queensland Limited  QCAT 255
Mr S Neaves of Counsel appeared for Mr Wayne Waltisbuhl
Ms A Freeman of Counsel appeared for the Queensland All Codes Racing Industry Board
REASONS FOR DECISION
- Mr Wayne Waltisbuhl is a horse trainer. Following a steward’s enquiry on 5 August 2015, Mr Waltisbuhl was found to have breached r190(1) of the Australian Harness Racing Rules (‘the Rules’) by presenting a horse, BENNY MAGUIRE NZ, to race with a prohibited substance in its system on 7 July 2015. Alkalinising agents are prohibited substances pursuant to r188A(1)(b). However, they are prohibited only when the total carbon dioxide (‘TCO2’) present is in excess of 36 millimoles per litre (mmol/L) in plasma. Mr Waltisbuhl was disqualified for 12 months.
- Mr Waltisbuhl appealed to the Racing Disciplinary Board. In its decision on 1 September 2015, it confirmed the conviction for the disciplinary charge, but substituted a fine of $5000, in place of the disqualification period. Mr Waltisbuhl has now applied to the Tribunal for review of the decision of the Racing Disciplinary Board to find the disciplinary charge is substantiated.
- Mr Waltisbuhl does not seek to review the penalty imposed in the event the Tribunal confirms the decision to substantiate the charge.
- The facts are largely uncontroversial. A sample of BENNY MAGUIRE NZ’s blood was taken prior to the race. It was tested in two facilities. The testing in the first of those facilities, in Queensland, returned a result of TCO2 concentration of 37.1 mmol/L (the first certificate). The other half of the sample was sent to a testing facility in Melbourne. It was received by the facility the following day. It returned a TCO2 concentration of 36 mmol/L (the second certificate). Both certificates of analysis refer to a measurement uncertainty of 1.0 mmol/L at the threshold concentration of 36.00 mmol/L with greater than 99.99% confidence.
- Evidence was also presented that the horse was possibly suffering from a virus at the time. Dr Raeburn, a veterinary surgeon, gave evidence that this may have an effect on TCO2 levels in a horse. Dr Young, also a veterinary surgeon, gave evidence that such matters may impact on the TCO2 levels, but said this would not account for the extent of the elevation certified in the certificates of analysis. Evidence was also presented by Dr Young that a sample may deteriorate due to temperature variation and high altitude flying.
- The issue raised by Mr Waltisbuhl in the review revolves around how the evidence, in particular the two certificates, should be treated in considering whether the disciplinary charge is substantiated.
The review process
- The review by the Tribunal is provided for in the Racing Act 2002 (Qld). The purpose of a review is to produce the correct and preferable decision. The Tribunal must hear and decide the review by way of a fresh hearing on the merits. Essentially, the Tribunal makes the decision afresh or anew. It has all of the functions of the decision-maker for the reviewable decision being reviewed.
- Rule 191 makes provision about the evidentiary value of the certificates of analysis in the following terms:
191. (1) A certificate from a person or drug testing laboratory approved by the Controlling Body which certifies the presence of a prohibited substance in or on a horse at, or approximately at, a particular time, or in blood, urine, saliva, or other matter or sample or specimen tested, or that a prohibited substance had at some time been administered to a horse is prima facie evidence of the matters certified.
(2) If another person or drug testing laboratory approved by the Controlling Body analyses a portion of the sample or specimen referred to in sub rule (1) and certifies the presence of a prohibited substance in the sample or specimen that certification together with the certification referred to in sub rule (1) is conclusive evidence of the presence of a prohibited substance.
(3) A certificate furnished under this rule which relates to blood, urine, saliva, or other matter or sample or specimen taken from a horse at a meeting shall be prima facie evidence if sub rule (1) only applies, and conclusive evidence if both sub rules (1) and (2) apply, that the horse was presented for a race not free of prohibited substances.
(4) A certificate furnished under this rule which relates to blood, urine, saliva, or other matter or sample or specimen taken from a horse shall be prima facie evidence if sub rule (1) only applies, and conclusive evidence if both sub rules (1) and (2) apply, that the prohibited substance was present in or on the horse at the time of the blood, urine, saliva, or other matter or sample or specimen was taken from the horse.
(5) Sub rules (1) and (2) do not preclude the presence of a prohibited substance in or on a horse, or in blood, urine, saliva, or other matter or sample or specimen, or the fact that a prohibited substance had at some time been administered to a horse, being established in other ways.
(6) Sub rule (3) does not preclude the fact that a horse was presented for a race not free of prohibited substances being established in other ways.
(7) Notwithstanding the provisions of this rule, certificates do not possess evidentiary value nor establish an offence, where it is proved that the certification procedure or any act or omission forming part of or relevant to the process resulting in the issue of a certificate, was materially flawed.
What is the significance of the result in the second certificate?
The parties submissions
- Mr Waltisbuhl’s Counsel submits that the evidence is insufficient to warrant conviction under r 190(1). He submits that where two samples are tested, and the first is above the threshold for TCO2, but the second is below the threshold, then the Applicant ought to be found not guilty.
- While conceding that the first reading constitutes prima facie evidence of a breach under r 191(1), he submits that if the second certificate did not confirm it, there is no reason to consider either certificate less (or conversely, more) reliable than the other. Accordingly, he submits that the second certificate creates, at the least, doubt that the horse was not presented free of a prohibited substance. It is further submitted for Mr Waltisbuhl that applying the Briginshaw standard, the correct and preferable finding is that Mr Waltisbuhl was not guilty of the disciplinary charge.
- Mr Waltisbuhl submits that the decision in Lambourn v Racing Queensland Ltd is relevant. In that case, Member Favell referred to a second sample as introducing doubt about the first sample, and acting as rebuttal evidence. Mr Waltisbuhl argues that the decision in Lawlor v Racing Queensland Limited, which the Board relies upon, should be distinguished because it concerns a thoroughbred racing decision and the rules to be applied are different (although similar), but more importantly, in that case, both of the samples were indicative of a prohibited substance being present prior to administering the margin of uncertainty.
- The Board’s Counsel submits that because of the first certificate, under r 191(1) a prima facie case has been established against Mr Waltisbuhl. Thereafter, it says the proper approach is to consider whether, having regard to the whole of the evidence, a breach has been established. It acknowledges that, in some circumstances, a second certificate which introduces doubt about the level of TCO2 at the relevant time may be adequate rebuttal evidence, negating prima facie evidence of breach of r 190(1). However, in this case, the Board submits that the second certificate at 36 mmol/L was still a high reading based on the evidence of Dr Young. Therefore, it says it is consistent with, and maybe considered supportive of, a finding of a breach. It relies upon Dr Young’s evidence to the effect that, although Dr Raeburn said that the horse was suffering from a virus and probable associated dehydration at the time of the test, that could not account for the high level of the reading.
- The Board argues that the comments relied upon by Mr Waltisbuhl from Lambourn represent the views of only one Member of that Tribunal, and that Lawlor should be preferred. The Board said that the margin of uncertainty is a matter which may be taken into account in deciding whether to convict a person presenting a horse with a prohibited substance. However, it argued that there was evidence which might explain the difference in concentrations measured by the two laboratories. These reasons include degradation of the samples because of changing air pressures and temperatures in the course of transportation.
- Further, in accordance with the reasoning in Lawlor, it argued that the second certificate was evidence that there was a 99.9% likelihood that the concentration of TCO2 in the sample lay between 35 and 37 mmol/L, consistent with a reasonable likelihood that the concentration exceeded the threshold.
- The decision of Lambourn concerned a similar disciplinary charge under the Rules. One of the certificates recorded a TCO2 level above 36 mmoles, at 37.1mmoles/L, and the other below it at 35.9mmoles/L. One Member of the Tribunal, Member Favell, refers to the second (and also in that case, lower) second certificate as introducing doubt, and being rebuttal evidence. He found that r 191 was akin to an evidentiary aid only and did ‘not impose an onus on the applicant to establish his innocence.’ He went on to say that he considered r 191(7) was not ‘necessarily relevant to the question of two competing certificates.’
- Lawler was a decision concerning a disciplinary charge under the Thoroughbred Racing Rules, which do not apply here. Under those Rules, two certified findings from official racing laboratories were required to establish prima facie evidence of the presence of a prohibited substance. In that case, the Tribunal accepted that the two certificates, both of which were over the prescribed limit, established a prima facie case and the Tribunal was then entitled to look to the other evidence to determine whether the charge was established to its reasonable satisfaction. Other evidence included admissions of the trainer in that case. Further, in relation to the margin of uncertainty of the measurement, the Tribunal concluded that the certificate could be considered evidence that there was a 99.9% likelihood that the true value of TCO2 lay between 1.0 mmol/L above the recorded reading, and 1.0 mmol/L below the recorded reading in the certificate. In that case, the Tribunal accepted, that a certificate at 36.6, was therefore evidence that there was ‘at least high likelihood that the concentration exceeded the threshold.’
- I have considered r191. Relevantly, under r 191(1), (3), and (4) respectively, a certificate which certifies the presence of a prohibited substance is prima facie evidence that a prohibited substance has been administered to a horse; (if the sample was taken at a meeting) it is prima facie evidence that the horse was presented for a race not free of a prohibited substance; and it is prima facie evidence that a prohibited substance was present in the horse at the time the sample was taken. If a second certificate returns a reading over the threshold of 36mmol/L, then under r 191(2), (3), and (4), that certificate is conclusive evidence of those matters. This general position is the case, unless it is proved that the certification procedure or process resulting in the certificate was materially flawed. If the process was flawed, the certificate/s would not be, in either instance, either prima facie or conclusive evidence, as the case may be, under r191, of the relevant matters.
- In Mr Waltisbuhl’s case, the charge is that he presented BENNY MAGUIRE NZ to race with a prohibited substance in his system. There is one certificate which is, at 37.1mmol/L, over the threshold limit imposed under r 188A; and another at 36.00mmol/L which is under the threshold limit. There is no suggestion here that r 191(7) applies. The sample was taken at a race meeting on 7 July 2015.
- Pursuant to r191(1) and (3), I accept that the first certificate is prima facie evidence that BENNY MAGUIRE NZ he was presented for a race not free of a prohibited substance on 7 July 2015.
- There being a prima facie case, I must consider whether I am reasonably satisfied in accordance with the Briginshaw standard whether the disciplinary charge has been established. In doing so, I am entitled to consider the totality of the evidence. The consequences of a substantiation of the disciplinary charge are serious for a trainer, and therefore a breach of the requirements should not be found on flimsy evidence.
- Both certificates form a part of the evidence.
- Here, the first certificate reading is above the prescribed level, and the second certificate reading is below the prescribed level. Dr Raeburn suggested that the readings may have increased as a result of the virus in the horse’s system, and associated dehydration. He gave no evidence about the extent to which any increase may result from such circumstances. Dr Young was asked to consider the extent. In his opinion, it could not account for the significantly elevated level of TCO2 recorded in both readings. The Board points to a reading of 29.8 mmol/L recorded by BENNY MAGUIRE NZ on 16 June 2015.
- There is no evidence about the extent to which the deterioration during transportation of the second sample may have affected the outcome of that test. That said, the result in the second certificate is lower than the first result in the first certificate. Nevertheless, the second certificate indicates a concentration of TCO2 at the highest possible level below the level which is prohibited.
- The uncontested evidence of Dr Young, which I accept, is to the effect that the difference in concentrations measured by the two laboratories is likely explained by degradation of the second sample due to the changing air pressure and temperatures during its transportation to Melbourne. There is evidence that BENNY MAGUIRE NZ was suffering from a virus at the time. I accept that he was suffering from a virus. However, the uncontested evidence of Dr Young is that, even so, that could not account for the level of elevation of the levels. Once again, I accept Dr Young’s evidence and find accordingly.
- If the margin of uncertainty is applied to the two samples, then the result in the first certificate represents a reading between about 36.1 to 38.1 with 99.99% certainty (although not precisely so, given that at 36 mmol/L it is plus or minus 1). I have no evidence before me about the margin of uncertainty for a reading of 37.1mmol/L. On the basis of the first certificate, even taking into account the margin of uncertainty, there is a very high likelihood that BENNY MAGUIRE NZ was over the threshold TCO2 level.
- The result in the second certificate, applying the margin of uncertainty, is between 35 to 37 mmol/L. This suggests a reasonable likelihood that the concentration of TCO2 exceeded the threshold level. Further, I have accepted that the difference in the readings is likely explained by degradation of the second sample during transport to Melbourne. At 36 mmol/L, the second certificate reading at the highest possible level below the prohibited level. I am satisfied that the second sample is evidence which is consistent with a finding that it is more probable than not that BENNY MAGUIRE NZ’s TCO2 level was over the prescribed level when he was presented for the race.
- Having regard to the Briginshaw standard, I find the disciplinary charge established against Mr Waltisbuhl.
- Accordingly, the decision made by the Racing Disciplinary Board is the correct and preferable decision. I make orders confirming it.
 Rule 188A(2)(a).
 Exhibit 1, p 8-11.
 Exhibit 1, p 84.
 Exhibit 1, p 11.
 Exhibit 1, p 20, per Dr Young.
 Section 152A.
 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 20(1).
 Ibid, s 20(2).
 Ibid, s 19(c).
 Australian Harness Racing Rules, r 190(1).
 The Rules, r 190(2).
 Briginshaw v Briginshaw (1938) 60 CLR 336.
  QCAT 699.
 Ibid, paras  and .
  QCAT 255.
 Exhibit 1, p15.
 Exhibit 1, p11.
 Exhibit 1, p 20, lines 8 – 36.
 Lambourne v Racing Queensland Ltd  QCAT 699, at .
 Ibid, at [18-19].
 Ibid, at .
 Lawlor v Racing Queensland Limited  QCAT 255, .
 Ibid, .
 Rules, 191(7)
 Exhibit 1, p 11.
- Published Case Name:
Waltisbuhl v Queensland All Codes Racing Industry Board
- Shortened Case Name:
Waltisbuhl v Queensland All Codes Racing Industry Board
 QCAT 204
17 May 2016