Rattray v Queensland Racing Integrity Commission
[2016] QCAT 439
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- Unreported Judgment
- Rattray v Queensland Racing Integrity Commission[2016] QCAT 439
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Rattray v Queensland Racing Integrity Commission[2016] QCAT 439
Rattray v Queensland Racing Integrity Commission[2016] QCAT 439
CITATION: | Rattray v Queensland Racing Integrity Commission [2016] QCAT 439 |
PARTIES: | Ken Leslie Rattray (Applicant) v Queensland Racing Integrity Commission (Respondent) |
APPLICATION NUMBER: | OCR150-16 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | 7 November 2016 |
HEARD AT: | Brisbane |
DECISION OF: | Member P Roney QC |
DELIVERED ON: | 18 November 2016 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
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CATCHWORDS: | GENERAL ADMINISTRATIVE REVIEW – DISCIPLINARY PROCEEDINGS – HARNESS RACING. CONTRAVENTION OF AUSTRALIAN HARNESS RACING RULE 190. Failure to present a horse for a race three prohibited substances; interpretation of section 191 of the Australian Harness Racing Rules as to the effect of evidentiary certificates; Whether on the proper construction of Rule 191 the rule does not permit or constitute reliance upon Certificates of Analysis as prima facie evidence of the presence of a prohibited substance; Where the Certificates of Analysis were issued by the same laboratory, albeit by different analysts; Whether there was evidence as to whether the analysts who conducted the analysis of a reserve urine sample was approved by a Controlling Body in the requisite sense; Circumstances in which a conviction entered on the basis of a guilty plea may be set aside. Appropriate penalty, whether six month’s disqualification a trainer’s licence is excessive. Australian Harness Racing Rules, R190, 191 Queensland Civil and Administrative Tribunal Act 2009, s.20 Racing Act 2002, s.4, 6, 7, 131, 132, 147, 191 Racing Queensland v Cullen [2011] QCAT 393 Kehl v Board of Professional Engineers of Qld [2000] QCATA 58 Meissner v The Queen (1995) 184 CLR 132 Queensland All Codes Racing Industry Board v Colahan [2015] QCATA 46 R v Dobie [2010] QCA 34 |
APPEARANCES: | |
APPLICANT: | Mr J Murdoch QC instructed by O'Connor, Ruddy and Garrett appeared for the Applicant |
RESPONDENT: | Mr J Horton QC instructed by Allens Linklater Lawyers appeared for the Respondent |
REASONS FOR DECISION
Introduction
- [1]The Applicant is a horse trainer of many decades’ experience. On Saturday 7 May 2016, the Applicant raced his horse Destreos (NZ) at Albion Park in Brisbane. The horse was poorly placed in that race. A pre-race urine sample had been taken from the gelding prior to the race, and that sample was found, upon analysis, to contain the prohibited substances Phenylbutazone and Oxyphenbutazone. Those substances are well known in the racing industry, and commonly referred to as “bute”. They constitute a medically recognised, non-steroidal anti-inflammatory, essentially intended for veterinary use to reduce swelling. They are not to be present however when a horse races.
- [2]It is common ground that a cabinet holding a medicine called Nabutone, which included the substance was found in his stables well after the event, however the Applicant disputes knowing that the substance had been administered to the horse, or that he had any knowledge that it was affected on the day.
- [3]Rule 190(1) of the Australian Harness Racing Rules to which the Applicant is subject, requires that a horse be presented for a race free of prohibited substances. Sub-rule (2) of Rule 190 provides that if a horse is presented for a race otherwise than in accordance with sub-rule (1), the trainer of the horse is guilty of an offence. Sub-rule (4) of Rule 190 provides that the offence is committed regardless of the circumstances in which the prohibited substance is found in the horse.
- [4]On 25 August 2016, the stewards held an inquiry into the circumstances in which the urine sample taken on 7 May came to have the prohibited substance present. The chairman of the stewards panel on that day was Mr David Farquharson. He was the chief steward responsible for Harness Racing.
- [5]At the conclusion of the inquiry, at which the Applicant was present but legally unrepresented, he was informed that the stewards had determined to charge him with contravention of Rule 190 whereupon the Applicant indicated that he pleaded guilty to the charge. He was convicted and the stewards imposed a penalty of six months disqualification upon the Applicant’s trainer’s licence, and which penalty, he swears, deprives him of his primary source of income, which is from training fees and prize money.
- [6]The Applicant applies to this Tribunal for a review both of the decision to convict him, seeking to set that decision aside, but also seeks a review of the penalty, submitting that a six month disqualification was excessive in the circumstances.
The hearing in QCAT
- [7]Section 20 of the Queensland Civil and Administrative Act 2009 (“QCAT Act”) provides that this hearing is to be a fresh hearing on the merits, and that the purpose of the review to produce the correct and preferable decision. There is no presumption to be made that any part of that decision is correct or that some error needs to be proven about the way in which the decision was arrived at.[1]
- [8]It is axiomatic that rules such as Rule 190 which requires horses to be presented free of prohibited substances is a rule designed to support the main purposes of the Racing Act 2002 (“the Act”), and which by s.4 of that Act include to maintain public confidence in racing animals, to ensure the integrity of persons involved and to safeguard the welfare of all animals involved in racing. Those purposes are relevant both to a consideration of the circumstances in which the alleged offence occurred here, and also the penalty which might be imposed where it is shown to be proven.
- [9]The hearing was conducted on the basis that I should treat all of the evidence which came before the stewards, and which is recorded in a transcript of the inquiry as part of the evidence to be considered here. Additionally, there were affidavits received into evidence here by the Applicant himself, but also by his solicitor, there was an affidavit by Mr Alan Lonergran, general counsel employed by the Racing Queensland Board trading as Racing Queensland and by Mr Farquharson, the chief steward, which primarily exhibited the documentation which was before the stewards’ inquiry, as well as the transcript, but also dealt with the accreditation issue to which I will turn to shortly. There was oral testimony from Samantha Nelis and Dr Crawford, a vet.
- [10]The application filed on behalf of the Applicant in this Tribunal on 25 October 2016 set out three grounds for why it is contended that the decision was wrong or not properly made. They were as follows:
“1. The decision to convict me of a breach of AHRR190(1) was made on the basis of two Certificates of Analysis or a urine sample taken from my horse issued by the Racing Science Centre.
2. On a proper reading of rules 191(1) and 191(2)AHRR the rule does not permit the stewards to rely on Certificate of Analysis issue by the same laboratory albeit by different analysts.
3. There was no evidence by the stewards at the inquiry as to whether the analyst who carried out the analysis of the reserve sample was approved by the controlling body under AHRR191(2).
4. In the circumstances there has been a material flaw in the certification procedure and the certificates do not possess any evidentiary value (see AHRR191(7)).
5. The conviction should be set aside.
6. The penalty of six months disqualification of my licence is manifestly excessive in the circumstances.”
- [11]As is evident, the first four grounds go to the question of if there ought have been a conviction entered, or perhaps more accurately whether on the evidence now before this Tribunal on this re-hearing he ought be convicted, and the final issue going to the question of the severity of the penalty.
The certification by different laboratories issue
- [12]As its simplest, the contention which is sought to be made is that the evidence which was before the stewards concerning the presence of the prohibited substance in the animal on race day was based upon the receipt by the stewards of Certificates of Analysis by persons who came from the same laboratory, and it is contended in those circumstances that on a proper reading of Rule 191, that is not permissible. More specifically, it was contended in circumstances in which two such certificates have been obtained, insofar as existence of the second Certificate, which involved the conduct of an analysis of a reserve sample taken from the horse on that day, that the operation of Rule 191(2), which deems that to be conclusion evidence of the presence of a prohibited substance, does not have the effect contemplated by Rule 191(2). That challenge did not however affect the operation of Rule 191(1) which provides in effect that “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”. In other words the challenge mounted is to the admissibility of evidence in a certificate concerning an analysis of a reserve sample which it was sought it relied upon as conclusive evidence, but did not threaten the evidentiary validity of the test on the primary sample, and the certificate issued in respect of that which sought to establish the presence of the prohibited substance on a prima facie basis.
- [13]By the submissions by Senior Counsel for the Applicant, the admissibility of both certificates was challenged on the basis that there was no evidence that either analyst who carried out those analyses was approved by the Controlling Body within the terms of Rule 191. I mention that because as may be seen from the Statement of Grounds of Appeal, that the challenge which went to the question of whether the analyst was approved, was a challenge only to the analysis conducted upon the reserve sample, not the primary sample. But I will proceed on the basis that that challenge is to both samples, both analyses, and both certificates.
- [14]The certificate that related to the primary sample was issued under s.147 of the Act and was authorised and signed by Mr Mark Jarrett who held the degree Bachelor of Applied Science and asserted that he was an accredited analyst pursuant to s.132(3)(c) of the Act. The certificate identified the sample number, the date when it was received, the period over which it was analysed and the method of analysis. It certified that the urine sample was shown to contain the prohibited substance. The footer to the document identifies the organisation “Racing Science Centre, Office of Racing”, however it is clear that the certificate is that of Mr Jarrett.
- [15]The second certificate using the reserve sample was in almost identical form and contained all of the aforementioned elements, but referred to a different sample number, different receipt periods and different periods of analysis. The author of that certificate, and the certifier for the purposes of Rule 191 was Samantha Nelis. She too held the degree of Bachelor of Applied Science, and described herself as a principal chemist, and an accredited analyst under s.132(3)(c) of the Act.
- [16]The clear language of Rule 191(2) contemplates a system of certification for evidentiary purposes by a person other than the person who did the first or primary analysis and certification under Rule 191(1) or a different drug testing laboratory to that which did the first test. In this case, two analysts both conducted their analysis at the Racing Science Centre, Hamilton, and it may be inferred that each of them was employed or engaged by that organisation. There is however no ambiguity in Rule 191(2), because it makes clear that the second sample may be tested by a natural person who is an approved analyst, and certificate issued by that person, or a different laboratory to the first. The evidence did not go to explain how, in practice, different “laboratories” might be engaged to analyse, conduct the analysis and certify, although it is conceivable that an organisation might be the issuer of a certificate and not an individual analyst.
- [17]It is common ground that the Australian Harness Racing Rules are statutory instruments and are to be construed accordingly. It does not seem to me that I am to construe the language of those sections having regard to what may or may not have been a past practice using separate testing laboratories to do the two tests or other issues relating to guidelines for testing and accreditation. In my view therefore, the latest certificate does not cease to have effect (Rule 191(2)) because of the identity of the person who certified having come from the same organisation as the first.
- [18]One submission made for the Applicant was that it was implicit that the second analyst was required to be independent. Certainly there is no express requirement in the rule that the second analyst be “independent” from the first in the sense that they worked for different organisations. There is no suggestion here that as analysts, with statutory authority to act, they colluded, or in some way are not independent in the way in which they each conducted their analyses and arrived at their conclusions.
- [19]There was oral evidence before me by the second analyst Samantha Nelis. She identified the persons who assisted her. She also identified those involved in the first analysis. None of those individuals was involved in the second analysis.
The issue of approval of analysts by the Controlling Body
- [20]The next issue concerns whether there was evidence that the analyst of the reserve, or indeed the primary sample were approved by the Controlling Body.
- [21]The language of both Rules 191(1) and (2) require the certificate to be from a person or laboratory “approved by the Controlling Body”. For reasons that are unclear, in Sub-rule (1) the words “Controlling Body” appear in capitals but in Sub-rule (2) they do not.
- [22]According to the submission by Senior Counsel for the Applicant, the “Controlling Body” is defined as an organisation which by convention is in control of Harness Racing in Queensland. He submitted that Racing Queensland or the Board of Racing Queensland was the Controlling Body. Neither party in their submissions provided copies of documents which showed the relationship between the rules, and other operable statutory provisions which identified who was the Controlling Body for the purposes of Rule 191 at the material time.
- [23]According to s.6 and 7 of the Act the Controlling Body is the Racing Queensland Board, trading as Racing Queensland (formerly known as the Queensland All Codes Racing Board trading as Racing Queensland). Counsel for the Applicant concedes that if that entity or a relevant predecessor Controlling Body had approved either or both the analysts here, it would have been a relevant “approval”, but argued that it would have been an easy matter to prove and that in this case it was not proved. He argued that there was no presumption of approval that arises by virtue of the contents of the certificates themselves. In that regard, it is to be noted that in each certificate, the analyst purports to be an accredited analyst under s.132 of the Act. It is to be observed that that provision is concerned with circumstances in which the Chef Executive, not a Controlling Body, grants accreditation to a facility or a person who, for an accredited facility is an accredited analyst.
- [24]In that context, the sworn assertion by Mr Farquharson that an accreditation certificate dated 14 November 2013 was a relevant accreditation is incorrect, because that certificate was not issued by the Control Body of Racing Queensland but was issued by the Director General of the Department, and presumably of the kind contemplated by s.131 of the Act, not Rule 191.
- [25]Neither party addressed the question of what the proper meaning of the word “approved” is where it appears in Rules 191(1) and (2). There is nothing in the rules themselves which expands upon that notion, or explains to what level or in what way such approval might be provided.
- [26]The Macquarie Dictionary definition of the verb “approve” is “to pronounce or consider good...to confirm or sanction officially; ratify, speak or think favourably”. The definition of the noun “approval” is “the act of approving; approbation” and a second, relevant here is “sanction; official permission”. It seems to me that of those definitions, that which is concerned with confirming or sanctioning officially or to ratify is that to which the language of these rules are directed.
- [27]The Respondent sought to establish the relevant act of approval by reference to business records of the Racing Queensland Board. The first of those was an agreement made in August 2006 between the Harness Racing Board, the predecessor of Racing Queensland, and the State of Queensland.
- [28]The part to which I was directed were the recitals to that agreement, which asserted that the Racing Science Centre was an accredited facility under section 132 of the Act, and that the parties acknowledged that the Department may provide the services of the Racing Science Centre to the Queensland Harness Racing Board. The second document, admitted into evidence a business record, is a Deed dated June 2012 which added little to the generality about the arrangement set out in the earlier agreement, but seems to operate to extend it.
- [29]Principally, the Applicant relied upon two letters, the first dated 14 December 2015 from the Director of the Racing Science Centre to the Chief Executive Officer of Racing Queensland, and the second, a response to that letter by the Acting CEO. The first letter identified an earlier letter which is not before me dated 6 November 2015. If I had seen that letter it may have provided some context. Neither Mr Stevens nor Mr Hall gave any evidence before me. In the first letter Mr Stevens advised that the Racing Science Centre proposed to commence in-house confirmation testing of positive samples for all racing codes from 15 December 2015. Confirmation testing is testing of the kind which would attract the operation of Rule 191(2). It referred to the fact that there had been a protocol developed to conduct the confirmatory testing in a way which reflected an appropriate level of independence between analyses as envisaged in the rules of racing and he had secured advice that there was no inconsistency with other testing requirements. The following paragraph then appears:
“Please note Rule 191 of the Australian Harness Racing Rules indicates that the analysis needs to be undertaken by another person or drug testing laboratory approved by the controlling body. As such, we request that you endorse by return correspondence the arrangement that each analyst employed by the Racing Science Centre from time to time, is approved by Racing Queensland, noting that officers employed in this capacity possess the requisite qualifications and training to perform the responsibilities of analysts.”
- [30]The 14 December letter goes on to ask that Racing Queensland advise whether they are comfortable with those arrangements to enable the in-house testing arrangements to commence.
- [31]The reply from Racing Queensland of 30 December 2015 refers to that letter which is said to be concerning the “proposal that the Racing Science Centre commences in-house confirmation testing of positive samples...” and then states that it supports “these arrangements to enable the in-house testing to commence from the above date”.
- [32]There seems to be no question as to whether Mr Hall, as the Acting CEO of Racing Queensland, had the appropriate authority to grant an approval to either a testing centre, a testing laboratory as a whole, or to individual analysts employed at a particular centre. Although this correspondence lacked what might be expected to reflect a level of care and formality in its language in the approval process, I am satisfied that those exchanges evidence a formal approval of the requisite kind of individual analysts employed at the Racing Science Centre thereafter.
What the evidence other than the certificate shows
- [33]In what follows I will proceed on the basis that I am wrong about whether those analysts were appropriately approved, or alternatively that it was not established by conclusive evidence that the prohibited substance was present in reliance upon the second certificate.
- [34]In the latter case there are two reasons why it seems to me open to conclude that the charge was proven. The first is that the first certificate, which establishes prima facie evidence of the presence of the prohibited substances, together with the oral testimony before me in relation to the fact of there having been a relevant analysis, and as to the conclusions reached based upon that analysis which were consistent with what was certified, is uncontradicted and unchallenged evidence of the presence of the prohibited substances. Neither the analyst Samantha Nelis, nor the other witness who gave oral testimony, Dr Caldwell, a vet, was cross-examined on their evidence as to the circumstances of the making of the request for, and the conduct of relevant analyses, and as to the correctness of the conclusions which were reached by the analysts.
- [35]There was no direct oral evidence before me concerning the precise circumstances of the conduct of the analysis of the first sample except to identify those who did the analysis, and their qualifications, however it seems to me that the conclusion established by the certificate founded upon the analysis of Sample A does establish a prima facie case for the presence of the prohibited substance.
- [36]Ms Nelis’ direct evidence before me establishes that she conducted a second analysis based upon the reserve sample and found unequivocally that the prohibited substance was present. It therefore seems to me that the evidence establishes the elements of the offence brought under Rule 190, even if the second certificate was not admissible.
- [37]If, as the Applicant contends, neither analyst was approved by the Controlling Body, and therefore that certificates themselves did not establish either a prima facie case, or a conclusive case as to the presence of the prohibited substance, nevertheless the evidence before me establishes that analyses of the urine samples taken on race day revealed the presence of the prohibited substance, irrespective of whether any certificates produced in consequence of those analyses met the requirements of Rule 191.
- [38]I accept that during a stable inspection on 21 July 2016, the Integrity Regulations Unit identified a bottle of Nabudone, which contained the prohibited substance. That bottle was found in the medicine treatment fridge at the stable. The substance had been prescribed by a vet, Dr Bishop, but had not been prescribed for use with any particular horse. The Applicant had conceded that he was the only person responsible for administering substances to the horses in his care, and that he made sure that that was the case.
- [39]The Applicant stated at the inquiry that he did not know how the substance had got into the horse’s system, that he had no clue about that. However, a treatment diary had not been maintained so as to record what doses of “bute” had been administered to any of the horses. The Applicant conceded that he had used the substance to treat the horse when recovering from a stone bruise, but only on a date more than two months after the race day when this swab sample was taken. In his affidavit evidence before this Tribunal the Applicant swore that the only time he had given “bute” was on that date in July and he did so on the advice of a vet. He swore that the other evidence he gave to the stewards’ inquiry about the circumstances was the truth.
- [40]On the evidence, I accept, that notwithstanding that the Applicant cannot explain the presence of the prohibited substance in the system of that horse on 7 May 2016, that it was present, and that in other respects the elements of the charge under Rule 190 were made out.
The relevance of the guilty plea
- [41]Finally then, there is the question of what is the effect of the Applicant’s plea of guilty to the charge when he was before the stewards’ inquiry. In the Applicant’s outline of submissions filed 7 November 2016, it was recognised, by reference to the transcript of the stewards’ inquiry, that after the inquiry the Applicant was informed that the stewards felt he should be charged under Rule 190, and the nature of the charge was articulated. He was asked if he had understood the charge to which he responded affirmative. He was asked how he wished to plead to that and responded initially by indicating he did not know how to plead, but then indicating that he did have to plead guilty to the charge, saying that although he knew he was not guilty of administering the substance to the horse, that since the horse went there in his possession affected that he would be “lying if (he) said (he) wasn’t guilty of that rule” (sic).
- [42]Having identified the making of that plea, the conviction which followed and the penalty imposed, the Applicant did not advance any argument in writing as to why that plea, of itself, would not be sufficient to found a finding of guilt. At the invitation of the Tribunal, oral submissions addressed this issue, it being contended:
- That the plea of guilty was made on the basis of statements made to the Applicant which were inaccurate;
- That he was not entitled to legal representation before the stewards’ inquiry and had no such representation;
- A combination of these features constituted a miscarriage of justice.
- [43]The inaccurate statements which were said to have been made to him were identified as being:
- The response to the Applicant’s question to the stewards about whether it was necessary to send the reserve urine sample to an independent laboratory, to the effect that “there was a period of time from 2015 that Racing Queensland made the decision to have all confirmatory analysis done by the Racing Science Centre” and further that the language in Rule 191 referring to another laboratory or another analyst was complied with by reason of Racing Queensland’s decision to have all confirmatory analysis done by the Racing Science Centre;
- The response to the Applicant’s question as to whether the stewards thought it should go to another laboratory, in the way that it “used to be done”, that it could go to another laboratory, but that the objective of the confirmatory analysis was to have a different set of eyes look at the sample, and which analyst did it did not matter, but that it needed to be “an independent person or an independent laboratory to look at that sample” and that was the decision made by Racing Queensland.
- [44]For the reasons I have already expressed I do not accept that those were inaccurate statements as to the effect of Rule 191. Nor is there anything to suggest that anything that he was told in those extracts which was of a factual character was false.
- [45]At page 18 of the transcript of the inquiry the Applicant said that he was not querying the proposition that the Racing Science Centre had four senior chemists who were internationally qualified. Ms Nelis then explained that they were careful to ensure that those involved in the analysis of the two samples separated.
- [46]For the Respondent it was submitted, and I accept, relying upon authority, including Meissner v The Queen (1995) 184 CLR 132 at 157; Queensland All Codes Racing Industry Board v Colahan [2015] QCATA 46 and R v Dobie [2010] QCA 34 that:
- A plea entered below survives an application for rehearing unless grounds are shown to set it aside;
- A court will act upon a plea in an open hearing by a person who is a full age and apparently of sound mind and understanding provided the plea is entered in exercise of a free choice in the interests of the person entering the plea;
- There is no miscarriage of justice if a court does act on such a plea, even if the person entering it is not in truth guilty of the offence;
- The onus is on the person seeking to have the plea set aside to show that it ought be, and that allowing it to stand would cause a miscarriage of justice.
- [47]There is nothing in the present case to suggest that the accused did not appreciate the significance of the plea that he was making or that he did so in circumstances in which it would constitute a miscarriage of justice not to permit him to withdraw it.
- [48]Nevertheless, for the reasons that I have referred to above, even were I prepared to allow the plea to be set aside I would nevertheless uphold the finding that he committed the offence based upon the evidence which was before me.
The compromised analyst and chain of custody points
- [49]Two other matters were addressed in the written submissions for the Applicant. The first is that the independence of the analyst who conducted the analysis of the reserve sample was compromised by reason of her participation in the inquiry, and that therefore the certificate that she signed should not be admitted. It is suggested that although this Tribunal would be conducting a full and fair hearing, that the “damage has been done...the defect is one that cannot be cured by a further hearing”. There is no substance to this submission because a rehearing was conducted by this Tribunal and findings have been made based upon the entirety of the evidence before it. No part of the review conducted by this Tribunal was affected by any purported want of independence by Ms Nelis, or any participation she has had. Moreover, her independence was not challenged in cross-examination of her before me.
- [50]The final issue, and again one which was not raised in the application filed in the Tribunal, was that there was some break in the chain of custody of the subject horse, rendering the certificates inadmissible.
- [51]This argument depends upon some purportedly implied rule that the Regulator is not entitled to interfere with the trainer’s possession, control or custody of a horse on race day. It is suggested that the trainer’s chain of control of the horse on this occasion was broken when two stewards employed by the Regulator took possession of the animal on that day.
- [52]The evidence does not establish that the Applicant’s possession, control or custody was entirely removed from him at any time on that day. Nor is it suggested that even if it were removed partially or entirely in favour of those stewards, that that had any implication for the question of whether the horse was affected by a prohibited substance, or whether the urine sample was properly taken from the subject horse. Indeed no part of the Applicant’s case was to make any suggestion that there was any inappropriate conduct by the stewards, or any other party associated with the events of that day. In other words, no one is suggesting the horse was tampered with by the stewards or anyone else. I therefore reject the contention advanced.
Penalty
- [53]For the Applicant it was contended, and there appears to be no dispute on the evidence from the experts who gave evidence in relation to the character of “bute”, that it was a drug employed for therapeutic purposes, and that it was not something which could improve the performance of a horse or prevent a horse from doing its best.
- [54]The Applicant contended that that having regard to other examples where the misuse of this substance had been shown, the appropriate penalty was a fine. The Applicant points to his financial situation, the existence of other financial commitments, and the depravation to him of his livelihood that results from the disqualification. It is contended on his behalf that he has a record of a breach and punishment for a similar offence in 2011 but that even earlier infringements should not be taken into account. Reference is made to the necessity to permit and encourage rehabilitation by industry participants.
- [55]It was submitted for the Applicant that what has been seven weeks of effective disqualification to the date of the hearing should be sufficient penalty. By my calculation, to the date of the hearing in this Tribunal, from 25 August 2016, is a period of 10½ weeks, not seven. At the date of delivery of these reasons, which have been expedited and delivered without the benefit of a transcript or a copy of the record of the hearing, his disqualification will have been for 12 weeks, and on 25 November he will have effectively served a period of half of the term of the disqualification.
- [56]I have been provided with little in the way of comparative sentences by the stewards for similar offences in similar circumstances.
- [57]Having regard to what occurred before the stewards in their inquiry in this case, the following matters are relevant to penalty:
- The stewards appeared to accept that the Applicant did not administer the substance to the horse;
- The stewards accepted that he was being truthful in his expressed incredulity as to how the horse came to be affected by the substance;
- The stewards acknowledged the bona fides of the Applicant in pleading guilty to the offence notwithstanding that there was no explanation for how the horse had been administered the substance;
- The Applicant had been a licenced trainer for 40 years and although there were claimed to be infringements for previous drug related matters prior to 2000 in Tasmania and Victoria, the only recent infringement was in 2011. It came to pass after discussion between the parties before me, that it was agreed these earlier infringements said to have occurred in Tasmania and Victoria were not properly attributable to the Applicant;
- The stewards only treated the 2011 offence as relevant, and that if there were earlier offences they had “long gone”, and in the period since that, he had over a long career attempted to “do the right thing”;
- The stewards acknowledged that he should be shown some leniency because of the way he had conducted himself before the stewards’ inquiry.
- [58]Notes to the Internal Review Decision dated 5 September 2016 observe that the penalty precedents in Queensland relating to this substance range from three to six months disqualification.
- [59]The Applicant’s previous disqualification in 2011 was for a period of five months when a horse was found to have excessive total carbon dioxide (TC02).
- [60]The Respondent concedes, having regard to the penalty precedents that were referenced in its written outline, that the penalty here was in the upper end of the range. Indeed it is at the highest end of the range. Reference was made thought to the fact that he had a history of previous offences, in 1997, 1998 and 2011, all of which resulted in disqualification. Reference was made to the necessity for deterrence.
- [61]When pressed on what were the circumstances present here that justified imposition of a disqualification at the highest end of the range, Senor Counsel referred to a transcript of an appeal heard before the Racing Appeals Tribunal in Melbourne in 1998, that is 18 years ago, in which observations were made concerning previous convictions of the Applicant for being in charge of a horse returning elevated TC02 levels in March and December 1997. Counsel pointed to a finding by the Appeals Tribunal that in relation to the latter offence, the Applicant had lied to the stewards when asked whether he had been previously convicted of any offence related to prohibited substances.
- [62]There are two things to be said about this. As the Racing Appeals Tribunal recognised in that case, he was not being punished for misleading the stewards, “if in fact they were mislead on that occasion”. The second is that those events were a very long time ago and involved an entirely different substance and having an entirely different effect to the present.
- [63]Notwithstanding that he had one previous conviction five years ago and others about two decades ago which led to his disqualification, it seems to me that the most appropriate outcome, having regard to all of the circumstances, including the necessity for deterrence, is to impose a period of disqualification for a period of four months from 25 August 2016. His disqualification will therefore end on 24 December 2016.
- [64]I therefore order that:
- The Respondent’s decision that the Applicant was in breach of Rule 190 of the AHRR be confirmed;
- The Respondent’s decision that the Applicant be disqualified for a period of six months be set aside, and in lieu thereof that he disqualified for a period of four months from 25 August 2016.
Footnotes
[1] Racing Queensland v Cullen [2011] QCAT 393; Kehl v Board of Professional Engineers of Qld [2000] QCATA 58.