Smith v Queensland All Codes Racing Industry Board
[2016] QCAT 458
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- Unreported Judgment
- Smith v Queensland All Codes Racing Industry Board[2016] QCAT 458
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Smith v Queensland All Codes Racing Industry Board[2016] QCAT 458
Smith v Queensland All Codes Racing Industry Board[2016] QCAT 458
CITATION: | Smith v Queensland All Codes Racing Industry Board [2016] QCAT 458 |
PARTIES: | Don Smith (Applicant) |
v | |
Queensland All Codes Racing Industry Board (Respondent) | |
APPLICATION NUMBER: | OCR046-16 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | 22 November 2016 |
HEARD AT: | Brisbane |
DECISION OF: | Member Deane |
DELIVERED ON: | 1 December 2016 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | ADMINISTRATIVE LAW – DISCIPLINARY PROCEEDINGS – HARNESS RACING – whether trainer contravened Australian Harness Racing Rule 193(3) by administering ‘medication’ on race day – where TCO2 measurements elevated but not so high as to be a prohibited substance - whether horse received an alkalising agent on race day – where significant conflicting expert evidence - where trainer admitted administering a supplement on race day prior to the race Racing Act 2002 (Qld), s 152 A Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 24 Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58 Briginshaw v Briginshaw (1938) 60 CLR 336 Lawlor v Racing Queensland [2012] QCAT 255 |
APPEARANCES: | |
APPLICANT: | Don Smith |
RESPONDENT: | Queensland All Codes Racing Industry Board |
REPRESENTATIVES: | |
APPLICANT: | represented by Mr S. Neaves of Counsel |
RESPONDENT: | represented by Mr A. James instructed by Fowler Lawyers |
REASONS FOR DECISION
- [1]Mr Smith was the trainer of the standard bred, ‘A Good Chance’, on 16 May 2015 when it competed at Albion Park and finished third. A pre-race blood sample was taken and analysed. The sample showed total plasma carbon dioxide (TCO2) concentration of 36.0 mmol/L and the reserve sample showed 35.5 mmol/L. An elevated level of CO2 may enhance the racing performance of a horse by delaying the onset of fatigue and therefore improve its endurance. Excessive levels may harm the horse’s health.
- [2]The Stewards conducted an inquiry at which they:
- charged Mr Smith with a breach of rule 193(3) of the Australian Harness Racing (AHR) Rules contending that he administered or allowed or caused to be administered medication, meaning a treatment with drugs or any other substances, on race day;
- found Mr Smith had breached AHR Rule 193(3) on the evidence before them despite Mr Smith ‘pleading not guilty’;
- disqualified ‘A Good Chance’ from its finishing position and fined Mr Smith $5000.
- [3]Mr Smith appealed to the Queensland Racing Disciplinary Board (the Board). A hearing was held and the Board dismissed the appeal both on conviction and penalty as it was
comfortably satisfied that, it is not possible for a horse to return a level of 36 millimoles just by normal feeding and that, contrary to the rules, the horse received an alkalising agent on race day. [1]
- [4]Mr Smith has sought review of the decision.[2]
- [5]The review is conducted by way of a fresh hearing on the merits to produce the ‘correct and preferable decision’. In conducting the review, the Tribunal has the functions of the original decision maker and there is no presumption that the original decision is correct. [3] In such a review proceeding, I may confirm or amend the decision, set aside the decision and substitute my own decision or set aside the decision and return it to the decision maker with or without directions.[4]
- [6]Given the nature of the proceedings and the consequences, it is accepted that the standard of proof that Mr Smith contravened the AHR Rule is the balance of probabilities as moderated by the principles set out in Briginshaw v Briginshaw. [5] I must be reasonably satisfied that the evidence supports the conclusion that there has been a contravention. The standard is high but it is not as high as the criminal standard of proof i.e. beyond reasonable doubt.
- [7]Having considered all of the evidence, I am not reasonably satisfied that Mr Smith administered or allowed or caused to be administered medication on race day other than the supplement known as GB-10. I therefore set aside the decision of 23 March 2016 affirming the original decision and substitute my own decision.
- [8]The cause of the TCO2 measurements on 16 May 2015 has been the subject of significant expert evidence, at the Stewards’ inquiry, at the appeal before the Board and before me. The different expert witnesses who gave evidence on each occasion appear qualified to express opinions as to the cause of variations of TCO2 measurements and the factors, which affect the measurements.
- [9]Dr Major and Dr Vine, who gave evidence during the Tribunal proceedings attended a conclave and authored a joint report. There were some matters of agreement:
- alkalising agents at a TCO2 level above 36.0 mmol/L in plasma are a ‘prohibited substance’.
- the reported levels were not such as to exceed the permissible threshold to constitute a ‘prohibited substance’.
- both laboratories which tested the samples subscribe to an uncertainty of measurement of 1.0 mmol/L.[6]
- there is no evidence either way that the horse was medicated by stomach tube.
- the reported levels were sufficiently high to demonstrate that alkaline agents were probably ingested by the horse on race day.
- a reasonable estimate of GB-10 is at least 65% carbonates and bicarbonates.
- a horse’s TCO2 readings could naturally vary by up to 3.3 mmol/L (i.e. + or – 1.65 mmol/L from its daily average value) in a day.
- [10]There were significant matters of disagreement.
- [11]Dr Major’s evidence was that:
- the measurements of 36.0 and 35.5 mmol/L fell within the normal bell curve distribution of results for horses and that over-analysis of results within the range was dangerous.
- the normal range is up to 36.6 mmol/L.
- having regard to the nature of a bell curve there would be more measurements falling in the mid-range of the curve than at either end of the distribution curve.
- there were many factors that might affect a TCO2 measurement such as the nature of feed consumed, ambient temperature, breathing issues,[7] transportation, dehydration/withholding of water, stress, exercise and anaemia.[8]
- every time a measure is taken it is the result of a combination of factors and therefore it is difficult to quantify the impact of each factor.
- the relative effect of the variables cannot be apportioned to values that fall within the normal range.
- the cumulative effect of the supplement GB-10 having been administered daily over a period of some months prior to the race may have increased the TCO2 levels. Dr Major pointed to the range of measurements prior to and after 16 May 2015 and noted that the measurements after 16 May 2015 were mostly higher. [9]
- administering GB-10 to the horse would have a significant impact on the reported levels.
- [12]Dr Vine’s evidence was that:
- in his many years of experience, he had never known a horse to record a level of 36.0 mmol/L or greater without having been administered an alkalising agent.
- there was less than 1 in 16,000 chance that such a TCO2 level could occur in a horse without the administration of an alkalinising agent.
- feeding the horse GB-10 would have a minimal impact on reported levels. [10] He particularly relied upon research conducted in Hong Kong where horses were given 10 – 90 grams of calcium carbonate a day, which showed no statistically significant increase in TCO2. When questioned as to the circumstances of this research he was not able to provide details such as the number of horses given the supplement at the higher range and the duration over which it was administered.
- he agreed that some but not all of the factors identified by Dr Major impacted TCO2 levels .
- he also agreed that potentially a factor could cause a 1 - 2 mmol/L variance. In his opinion, they rarely caused a variance that big because various factors are occurring at the same time and overlap so that the net impact is that the values do not change much at all.
- [13]Both Dr Major and Dr Vine agreed that there was no way of knowing whether the recorded measurements were at the high point, in the middle or at the bottom of the diurnal range.
- [14]At the Stewards’ inquiry, before the Board and before me, Mr Smith did not lead any specific evidence about, or offer any explanation for, the level of TCO2 recorded in terms of the various factors identified by the experts as potentially impacting the TCO2 measurements. He maintained that the horse was prepared in accordance with its usual regime.
- [15]At the oral hearing, Mr Smith gave brief evidence, which I accept, to clarify that:
- as the horse was to race at 8.30pm on 16 May 2015 he would have, in accordance with his usual practice, given or caused the horse to be given its evening feed in the afternoon before being transported to Albion Park.
- the horse’s evening feed included 100 grams of GB-10 each day while the horse was in work.
- he gave the horse GB-10 after researching the claimed benefits of the product to the health and wellbeing of horses.
- [16]I am not reasonably satisfied that the horse was administered an alkalising agent on race day in breach of AHR Rule 193(3) as found by the Stewards and confirmed by the Board having regard to:
- the substantially differing views about the cause of variations in TCO2 measurements from a number of apparently well qualified experts, which suggests to me that the probable cause is far from settled.
- the substantially differing views about whether consumption of GB-10 would significantly affect the recorded levels.
- the limited evidence of the details of the Hong Kong study and its comparability to the current facts.
- the experts’ acceptance that a horse’s recorded levels of TCO2 have a natural diurnal range of 3.3 mmol/L and that it is impossible to tell from a single measurement whether the measure is at the high, mid or low point of the range.
- the experts’ acceptance that factors not associated with the administration of alkalising agents may affect measurements by 1 – 2 mmol/L.
- the definition of ‘prohibited substances’ as regards alkalinising agents, which provides that alkalinising agents are prohibited substances when evidenced by TCO2 present at more than 36.0 mmol/L in plasma.[11]
- the laboratories’ uncertainty of measurement of 1 mmol/L such that if Mr Smith is given the benefit of the measurement uncertainty the measurements would be 35 mmol/L and 34.5 mmol/L.
Was feeding GB-10 on race day a breach of AHR Rule 193(3)?
- [17]I find that Mr Smith administering or causing GB-10 to be administered in the afternoon prior to the race was in contravention of AHR Rule 193(3) because it was administered to the horse to treat his nervous stomach condition.
- [18]
- [19]‘Substance’ is not defined in the AHR Rules. I note that the term used is ‘substance’ not ‘prohibited substance’, which as set out earlier in these reasons is a defined term.
- [20]Mr Smith’s representative referred me to Racing Victoria’s policy about the intersection of the use of supplements on race day and AHR Rule 193. While the rules are national rules, Racing Queensland has not adopted a similar policy. In any event, in my view, the rules should be construed according to their ordinary meaning and without regard to extraneous material unless there is ambiguity. The definition of ‘medication’ focuses upon ‘treatment’. The term ‘substance’ should be construed having regard to its ordinary meaning in light of the context i.e. something other than a ‘drug’, which is used as a ‘treatment’.
- [21]At the Stewards’ inquiry, Mrs Smith gave evidence that the horse suffered a nervous stomach and diarrhoea and that the horse was treated with GB-10 to assist this condition. Under cross-examination at the oral hearing, Mr Smith confirmed that GB-10 was given to the horse ‘to help the wellbeing of the horse’ but avoided the word ‘treatment’. In view of the reason the horse was given GB-10, I find that GB-10 constitutes ‘medication’.
- [22]Mr Smith’s evidence is that Mrs Smith mixes the horse’s feed under Mr Smith’s direction. As set out earlier in these reasons, Mr Smith’s evidence is that 100 grams of GB-10 was administered to the horse in its evening feed in the afternoon prior to taking the horse to Albion Park to race on 16 May 2015.
- [23]Mr Smith’s representative referred me to Racing Queensland’s Animal Welfare Policy.[13] I am not satisfied that such a policy is capable of taking precedence over the express provision of the AHR Rules.
- [24]In the circumstances, I find that Mr Smith has contravened AHR Rule 193(3) but for different reasons to the Stewards and the Board. It is appropriate to make directions for submissions as to appropriate penalty.
Footnotes
[1] Appeal Decision dated 23 March 2016 at page 3.
[2] Racing Act 2002 (Qld), s 152 A.
[3] Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), s 19 and s 20. Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58 at [9].
[4] QCAT Act, s 24.
[5] (1938) 60 CLR 336.
[6] The Tribunal has previously accepted that a trainer ought to get the benefit of the measurement uncertainty in Lawlor v Racing Queensland [2012] QCAT 255.
[7] Dr Major’s evidence was that most horses have some level of respiratory disease.
[8] Dr McGregor, who gave evidence before the Board gave similar evidence as to the various factors which may impact TCO2 levels.
[9] Exhibit 6, attachment DJF4.
[10] Dr Young, who gave evidence before the Stewards’ inquiry gave similar evidence.
[11] AHR Rule 188A.
[12] AHR Rule 193(6).
[13] Attachment to Exhibit 9.