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Wanless v Queensland Racing Integrity Commission QCAT 284
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Wanless v Queensland Racing Integrity Commission  QCAT 284
queenslaND racing integrity commission
Occupational regulation matters
19 September 2019
5 November 2018
PROFESSIONS AND TRADES – LICENSING OR REGUALTION OF OTHER PROFESSIONS, TRADES OR CALLING – THOROUGHBRED TRAINING – where alleged that a horse was brought to a racetrack for the purpose of engaging in a race and a prohibited substance was detected in a sample – whether collection of sample complied with procedure for taking of sample – where evidence from stable hand that procedure not complied with – where evidence of sample collection official called into question – whether failure to comply with protocol by not using control solution to rinse collection bottles went to integrity of sample
Australian Rules of Racing, 178, 178B, 178C, 178D
Briginshaw v Briginshaw (1938) 60 CLR 336
Waltisbuhl v Queensland All Codes Racing Industry Board  QCAT 204
APPEARANCES & REPRESENTATION
P O'Sullivan, of Counsel
A Turner, in-house lawyer
REASONS FOR DECISION
- Mista Busy, trained by Leigh Wanless, won the Three-year-old maiden, 1110 metres, on 16 February 2017 at Rockhampton. Following the race a urine sample was collected by Ms Jacqui Summer, sample collections officer for analysis. Mista Busy had been floated to Rockhampton with other horses in Mr Wanless’s stable and his attendance at the track was supervised by James Wanless, a stable hand in the employ of Mr Wanless.
- Part of the urine sample was analysed by the Racing Science Centre and the certificate of analysis in respect of that sample showed that cobalt was present at greater than 200 micrograms per litre. Cobalt is a prohibited substance in accordance with the Australian Rules of Racing at concentration in excess of 100 micrograms per litre. The finding was notified to the Stewards and the other part of the urine sample and the bottle containing what is known as the control solution was then sent to Racing Analytical Services Limited in Victoria for analysis. The result of that analysis showed that the urine sample had cobalt at >200 ug/l with the control having cobalt at a concentration <1ug/l. In the case where the urine samples from both laboratories detect the same prohibited substance and it is not detected in the control sample, the certified findings of both official racing laboratories are prima facie evidence that a prohibited substance has been detected for the purpose of the rules.
- The stewards then conducted an inquiry into whether Leigh Wanless had breached 178 of the Australian Rules of Racing (‘AR.’): When any horse has been presented to a racecourse for the purpose of engaging in a race and a prohibited substance is detected in any sample taken from it prior to or following its running in any race, the trainer and any other person who was in charge of such horse at any relevant time may be penalised. James Wanless submitted two statutory declaration to the inquiry, one in regard to the circumstances of Mista Busy attending the race and the taking of the sample taken on 1 June 2017 and the other in regard to the feedings and supplement regime of the horse taken on 26 June 2017. Leigh Wanless submitted a statutory declaration dated 26 June 2017 in regard to James Wanless attending the race with the horse and the feeding and supplement regime of the horse.
- James Wanless’s statutory declaration in regard to the sample raised issues about the way the sample was taken. I note that a sample to be collected for the purpose of analysis is to be collected in accordance with the Commission Standard Operating Procedure (‘SOP’) [Collection of Samples and Things]. James Wanless specifically raised the issue that the control solution was used to wash out the collection bowl but was not used in regard to the two sample collection bottles. In particular James Wanless stated:
12. I refer to 7.5.3 on page 8 of 20 of the Standard Operating Procedure under the heading “Collecting Urine Samples”. I recall the sample collection officer was wearing gloves. I cannot recall whether the sample collection officer shook the bottle containing the control solution. She may well have.
13. I witnessed the sample collection officer emptying the control solution into the urine collection bowl and rinsing the bowl with that solution.
14. I witnessed the sample collection officer pouring all of the control solution from the bowl back into the bottle and putting the cap back on it.
15. I cannot comment on whether the sample collection officer ensured that all bottles were secure from interference while the urine was being collected.
16. I witnessed the sample collection officer collecting the urine sample from the horse.
17. The sample collection officer did not pour the control solution from the original bottle into the second bottle and then cap it. The sample collection officer did not pour the control solution then from the second bottle into the third bottle and cap it.
18. The control solution was poured from its original bottle into the bowl and back into the bottle at the beginning of the procedure.
19. The control solution was not used to rinse the second bottle.
20. The urine was poured direct from the pan into the second bottle and the third bottle.
21. I have seen this procedure at least 200 times during my time in the industry.
22 There was insufficient urine to fill each bottle three quarters full. Each bottle was about one quarter full.
- Jacqui Summers, the sample collection officer who took the sample swore an affidavit dated 9 September 2017 which was submitted to the Stewards Inquiry. Ms Summers in her affidavit set out that:
- (a)she had met the thoroughbred (Mista Busy) and rider with James Wanless at the mounting area;
- (b)James Wanless had taken control of the thoroughbred and she had in accordance with her responsibilities remained with the thoroughbred the entire way from the track to the swabbing stall to ensure no interference with the thoroughbred;
- (c)That James Wanless ‘also remand (sic) in the company of myself and the thoroughbred during the whole process’;
- Ms Summers exhibited the Sample Security Document for Taking a Sample for Analysis, signed by herself and James Wanless. Ms Summers then affirmed that she had taken and dealt the sample in accordance with The Standard Operating Procedures – Collections of sample and things, 2016. She then set out the procedure she had followed in regard to the collection of the urine sample from Mista Busy. She set out how the bowl was cleaned prior to first collection in accordance with 7.5.4 of Protocol A, after an individual sample had been collected, and finally after the last sample of the day had been collected. In particular, she stated the following:
11 in accordance with 7.5.1 of Protocol A, identification of animals to be sampled and, 7.5.2 of Protocol A, preparation and sealing procedure for all Protocol A sample collections.
- (a)I checked the identity of the animal by reference to a list of brands and markings supplied by stewards.
- (b)I showed James Wanless, who identified himself as the person in charge of Mista Busy, the plastic bag containing the sampling equipment was intact.
- (c)I put on the supplied gloves and wore those gloves whilst rinsing the equipment with the control solution and, collecting and splitting the sample;
- (d)I cut the plastic bag open just below the heat seal in view of the person in charge of MB, and then placed the plastic bag on the bench inside of the swab room.
- (e)I checked that the numbers on the three-pocket security pouch, security document and the three tamper evident seals are the same unique number.
- (f)I removed the control solution and collection pan from the bag inside the secure swab room.
- (g)I ensured all the equipment that would come into contact with the urine sample was rinsed with the control solution supplied.
- (h)I shook the bottle containing the control solution vigorously.
- (i)I poured all the control solution into the urine collection bowl and rinsed the bowl thoroughly, in full view of the person in charge of MB.
- (j)I then poured the control solution back into the supplied bottle that it had been poured from, and again shook the bottle vigorously.
- (k)I placed the bottle containing the control solution in my pocket and opened the swab stall for the animal and JW to enter.
- (l)I collected the urine sample. The reasons I collect the sample and then divide the control between bottles two and three is because generally the horse is ready to provide the sample immediately.
- (m)I poured all of the control solution that had been sued to rinse the collection bowl from the first plastic bottle (that had been in my pocket during the sample collection) into the second bottle, capped it and shook it vigorously.
- (n)I poured all of the control solution form the second bottle into the third bottle, capped it and shook it vigorously. The bottle now contained the control sample.
- (o)I ensured all bottles were secure from unauthorised interference while the urine sample was being collected.
- (p)After the urine sample was collected, I separated the sample into the two empty rinsed bottles and capped the bottles.
- (q)All of the urine collected was submitted.
- (r)I removed and disposed of the gloves in an appropriate and hygienic manner.
- (s)I placed one tamper evident seal over the cap of each bottle. I ensured the seal went over the cap and down both sides of the bottle to seal the cap in the bottle.
- (t)I completed the required details on the central pocket of the three-pocket security pouch.
- (u)I placed the sealed bottles containing the control solution and the urine into the pockets of the three-pocket security pouch.
- (v)I secured the opening of each pocket of the three pocket security pouch.
- (w)I placed the sealed three pocket security pouch inside the plastic bag that the sample bottles and associated equipment were delivered in.
- (x)I asked JW who was the person in charge of the licensed animal to sign the Security Document to acknowledge he witnessed the collection and packaging of the sample.
- (y)Once the security document was completed the duplicate copy was handed to JW.
- (z)I kept the samples and associated documents in a safe and secure place until they were personally delivered to an authorised representative of the Control Body or integrity officer.
- The Chairman of the Stewards at the inquiry made the following statement in answer to a statement of Mr O'Sullivan that if the matter finds itself in another Tribunal, that tribunal will not proceed in the absence of Miss Summers’ attendance:
All right. We note that. As far as the – I think one of the questions you would have of Miss Summers is the preparation of the affidavit. Certainly she was aware of the reason she had to write the affidavit in the first place because her procedure in this case was called into question. She asked me what form do they go in? I provided her with an affidavit that was prepared for a case – a positive swab case by someone else – and she said, “I will consult my notes and make the relevant changes as far as my recollection goes.” So certainly she – she knew why she was preparing the affidavit, and she asked for some assistance in that regard. But the – I guess how it relates to this case is something that she completed.
- The reason why this was raised was that Miss Summers was not available for cross-examination at the Stewards Inquiry. The affidavit of the other collection officer which she used as an aide for her affidavit was tendered in evidence at the hearing.
- James Wanless at the hearing in examination in chief confirmed his statutory declaration. He was asked why he said the procedure was not complied with and he said only one bottle rinsed out with control solution and that horse urine was put in the bottle without control solution. He stated that he disagreed with paras 11(g), (m), (n) and (p) of Miss Summers’ affidavit. He was asked why he signed a piece of paper at the end of the sampling exercise and he said he did not know why. He confirmed in cross-examination that he had been involved in the process 200 times and he had signed 200 certificates and he hadn’t known what he was signing. He confirmed that he understood now that by signing you are saying you have witnessed the collection procedure. He was then asked to go through the period from the finish of the race to sample collection. He had some trouble recalling events. He said he was moving around the stall standing out of the way and sometimes in the corner. He confirmed that he could observe Miss Summers the whole time. He could not recall her putting Miss Summers putting gloves on but agreed she did have them on. He recalled the washing of the bowl with the control solution but could not recall what she did with the bottle after washing the pan. He agreed that Miss Summers collected the urine sample. He was asked what Miss Summers did with the second bottle and whether it was open. He said. He said that she opened the bottle and poured the urine in and the same with the third bottle. He confirmed that he saw an unstopped bottle and the sample being put straight in. he said he had seem it done that way before. He was asked when he was shown a copy of the protocol and he stated that it was after they were notified of the positive swab.
- Miss Summers confirmed in examination-in-chief that she had done her training in November 2016 and explained the process of the training and that it had been performed by Dr Karen Caldwell. She said that she had been shadowed for month to make sure she was correctly doing it. She was asked how many samples she would take and said that there was one meeting a week with 6 to 8 races and had taken about 5 samples each week for the three months she was working as a sample collector. She was asked if there was a certain procedure she was expected to use and said that it was the Standard Operating Procedure. She said she was told we had to develop a procedure and that if there was a deviation she needed to note it. She was then asked to take the Tribunal through the procedure. She relevantly stated ‘take bowl take control solution. I open the control solution pour into pan rinse pan. Pour back into bottle. Put bottle in pocket, take sample and put in pan. Open bottle 2 pour control solution into that put lid on shale and then open bottle 3 and pour control solution into third bottle and seal. Sample put into bottle 1 and 2.’ She was asked if from her recollection she did it. She stated, ‘If there was a deviation I would have put it in race day book’ and the sample security document was signed by herself and James Wanless. She was asked if James Wanless raised any issues and she replied ‘no’.
- Miss Summers was asked in cross-examination if she was a sample collection officer and she stated ‘no’, that she had stopped in April 2017 because she had been offered a full time position in Brisbane. She was asked whether she had been asked to give evidence at the Stewards Inquiry and she said that ‘I said I had already submitted affidavit did not need to give oral evidence.’ She was asked how the affidavit had come into existence and she said ‘Racing Queensland gave me a template as I hadn’t given an affidavit before’ she confirmed that exhibit 5 was the template given to her and that she had the SOP from her training and used this with the template affidavit. She was asked what knowledge she had in regard to why affidavit required. She said she was told positive swab and I needed to provide affidavit. She said she was provided with a copy of James Wanless’s statement and the template affidavit. She stated that ‘I was asked to provide a truthful account of what I do when I take a sample. Asked me to provide a statement about what I recall and what I usually do. There has to be a positive result from the swab and they ask me to do affidavit of what I do when I collect a swab.’ She said she recalled attending the race. She said she did not recall the specifics of the exact swab and that everything that was different she would have put it in race book if she had missed step. She was asked if para 11 of her affidavit was a specific recollection of what happened. She stated that what is written in para 11 is what would have happened: ‘this is how I normally do things on that basis this is what I did on 16 February 2017.’ She confirmed that the affidavit she got was a template and that she wrote what she would have done and set it out on the template and that it was extracted from the SOP. She said the bits from the template are formality. She confirmed that she had seen a draft of her affidavit to the Commission and that they had changed the formatting of the document. She was asked to tell the Tribunal her recollection of race 3 on 16 February 2017 she said she didn’t recall the specifics of the swab that day. The following questions were then put to her:
- (a)After race 3 you failed to pour the control solution into the second bottle. She answered ‘I did not fail to do that’; and
- (b)After race 3 you failed to pour from the second bottle to the third bottle. She answered ‘I did not fail to deal with the control solution. I followed a routine.’
- As part of the process of making the internal review decision the reviewer sought advice from Dr Karen Caldwell, Acting Manager of the Racing Science Centre specifically relating to the training and experience of Ms Summers as a sample collection officer. Dr Caldwell stated:
Jacquie completed her training on 4 November 2016 – I was the one to train Jacqui and she was certainly trained to rinse all bottles with the control solution – this would have been taught both in the theory session and demonstrated in the practical observation session at a race meeting. Newly trained SCOs are advised to develop a routine, consistently perform the process in accordance with that routine and keep a record of any circumstances which result in a variance from the usual process. Having been trained in 2016, Jacqui was quite experienced at the time of collecting this sample.
- I note that the affidavit of Ms Summers is substantially the same as that of the precedent affidavit with the obvious changes for the name of the horse and the stable hand who had control of the horse. The procedure used by the author of the first affidavit was the Collection Procedure-Racing Animal Welfare as at 1 June 2012. The procedure set out in Ms Summers affidavit was that of the Standard Operating – Collections of Samples and things 2016. So there are some differences in references. The content of the affidavits in regard to the procedures is virtually identical. The main difference being in the way the control solution is used. The procedure set out in Ms Summer’s affidavit at para 11 (h) to (p) mirrors the procedure set out at 7.5.3 of Protocol A of the SOP. In particular 7.5.3 sets out how the urine sample is to be collected as follows:
Note: See 7.5.1(identification), 7.5.2 (Preparation and sealing).
Ensure the urine collection bowl has been cleaned in accordance with 7.5.4
Gloves must be worn while rinsing the equipment with control solution, collecting and splitting the sample.
All equipment that will come into contact with the urine must be rinsed with the control solution.
If any piece of sampling equipment is soiled (for example, if dropped to the floor), it should be washed under running water and re-rinsed with the control solution.
The preferred sequence for rinsing the equipment is as follows:
- (a)Shake the bottle containing the control solution;
- (b)Empty the control solution into the urine collection bowl and rinse the bowl thoroughly;
- (c)Pour all of the control solution from the bowl back into the original bottle and cap it;
- (d)Ensure all bottles are secure from interference while the urine is being collected;
- (e)Collect the urine sample;
- (f)Pour the control solution from the original bottle into the second bottle, cap it and shake;
- (g)Pour the control solution from the second bottle into the third bottle and cap. This bottle now contains the control solution.
Split the sample between the two empty rinsed bottles,
Where there is sufficient urine, fill each bottle to approximately three quarters full.
If there is insufficient to three quarters fill both bottles, split the urine so there is approximately one third of the urine in one bottle and two thirds in the other bottle.
After capping the bottles remove gloves for ease of applying the seals.
- The SOP states that the purpose of this procedure is to describe the preferred process for collection of samples from registered/licensed racing animals and for the taking of things for analysis. The collection of samples and things for analysis is a cornerstone of the wider responsibility to ensure public confidence in standards of integrity and animal welfare in the racing industry. The Racing Science Centre (‘RSC’) provides training for personnel who may collect samples or things using this procedure. This SOP describes the preferred procedure for the collection of samples and things where the RSC is the testing facility providing the sampling equipment and receiving the samples or things for analysis. Protocol A is said to be the preferred procedure for collecting samples and things for analysis that can be split into two portions. Such as biological samples taken or produced by a horse or greyhound. The SOP at 7.4.1 sets out the responsibilities of persons collecting samples. It relevantly states:
- (a)maintain the secure custody of sampling equipment, collected samples and any associated documentation;
- (f)COs, (which includes sample collection official at SOP page 6) may be asked to give evidence regarding the collection of a sample at stewards inquiries and subsequent proceedings;
- (g)it is recommended that COs develop a routine that is consistently performed when collecting samples and make a note to themselves, for example in their race book from the meeting, of any circumstances which differ from their usual sample collection routine; and
- (h)advise stewards of any unusual event or circumstance that could affect the integrity of the samples collected.
The SOP at 7.4.3 sets out measures designed to prevent contamination of the sampling area. It then states ‘These measures are distinct from the use of the control solution which is used to ensure any contamination of the sampling equipment is detected.’
- This information is crucial in this matter because it makes it clear that the purpose of rinsing all of the items which are being used in the collection of the sample with the control solution. That is, the bowl and the two bottles which are to contain the urine sample is so that the control sample can be tested and if the prohibited substance is detected in the control sample then the sampling process lacks integrity and the finding of a breach of the rules based on the samples becomes unsafe. This conclusion is clear from AR.178D which requires for the certified findings of the samples to be prima facie evidence that a prohibited substance has been detected, that the prohibited substance not be in the control sample. That is because the control solution rinses the collection bowl and the sample bottles before the urine sample is collected so if the prohibited substance is found in the control sample then the either the collection bowls or the sample bottles were contaminated and the integrity of the sample is compromised.
- Here the requirements of AR.178 have been met and the certified findings of the Racing Laboratories, that is, the Racing Science Centre Queensland and Racing Analytical Services Ltd, are prima facie evidence of a breach of AR.178 in regard to Mista Busy in Race 3 3 at Rockhampton on 16 February 2017. Prima facie evidence is defined as ‘a state of affairs that may be assumed to apply in the absence of rebuttal by better evidence.’
- The relevant standard for the Tribunal when making finding in regard to evidence is the Briginshaw standard. The Tribunal has previously stated in regard to the application of the standards in these types of cases ‘In doing so as, I am entitled to consider the totality of the evidence. The consequence 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.’
- What has been called into question is the integrity of the control sample and, if I find that the two bottles in which the urine sample were collected for analysis were not rinsed with the control solution, then there is doubt as to whether or not the collection bottles were contaminated before the urine sample was taken.
- Mr James Wanless’s evidence in his statutory declaration and at the steward’s inquiry and the hearing was that the collection bottles were not rinsed with the control solution and he did not waver from this position. He was asked why he had not raised the matter at the time of the taking of the sample and why he signed the Sample Security Document for Taking a Sample for Analysis. His honest answer was that he was not aware of the specifics of the protocol until it was provided to him after the finding of the prohibited substance and that he did not really know what he was signing. I note that what he signed stated: ‘I, J. Wanless witnessed the whole process of collecting the sample, placing it in 1 or more containers and sealing the container or containers’. This is in fact then does not go to the question of whether the control solution was sued to rinse the collection bottles or whether the sample was taken in accordance with the protocol and therefore is not inconsistent with James Wanless’s evidence.
- On the other hand, Ms Summers swore an affidavit which purportedly set out her recollection of the taking of the sample from Mista Busy following race 3 at Rockhampton and she affirmed that she had, in accordance with Protocol A, rinsed the collection bowl with the control solution at para 11(i) of her affidavit and later poured into the second bottle at para 11(m) and then poured the control solution from the second bottle into the third bottle at para (n). As mentioned above MS Summers gave evidence at the hearing that ‘She did not recall the specifics of the exact swab and that everything that was different she would have put in race book if she had missed step.’ She was asked if para 11 of her affidavit was a specific recollection of what happened. She stated that what is written in para 11 is what would have happened: ‘this is how I normally do things on that basis this is what I did on 16 February 2017.’ Therefore, as far as the affidavit affirms that what is set out is her recollection of the swab the material is not reliable. Ms Summers gave honest evidence at the hearing and the highest it went was that is what would have happened. She was asked at the end of her cross-examination a series of questions to comply with the rule in Browne v Dunn and, despite confirming that she could not recall the specifics of the swab that day, she denied that she failed to pour the control solution into the second bottle and then failed to pour from the second bottle to the third bottle. I note Dr Caldwell’s material in support of Ms Summers and that she would comply with the procedure.
- It was submitted by Ms Turner on behalf of the Commission that:
- (a)Ms Summer’s evidence should be relied upon in terms of the procedure she would have performed, and if there was any irregularity it was of an involuntary nature and does not affect the integrity of the sample;
- (b)James Wanless could not recall some specific details such as whether Ms Summers had her gloves on.
- (c)Dr Caldwell’s evidence supported that Ms Summers would have taken the samples in accordance with procedure; and
- (d)James Wanless had observed 200 samples being taken, should have been aware of the proper procedure, and he had signed the declaration.
- Mr O'Sullivan submitted on behalf of Mr Wanless that: the tribunal has to be comfortably satisfied and that the Commission bears the onus; the evidence that the procedure has not been followed and the integrity of the sample has been called into question; Ms Summers could not recall doing something but that is what she would have done; and James Wanless’s evidence should be preferred.
- I am satisfied that James Wanless was a witness of honour and had a recollection that urine was poured straight from the collection bowl into the bottles which had not been rinsed with the control sample. Ms Summers did not have any recollection of the actual swab the affidavit she affirmed was at best misleading and it was only at the hearing that she confirmed that what was written in the affidavit was what she would have done. I prefer the evidence of James Wanless which is an actual recollection of the events of the day.
- The Commission has argued that if I was to find that the control solution had not been sued to rinse the bottles this was involuntary and inconsequential and did not go to the integrity of the sample. Whether it was involuntary or not is irrelevant. As I set out above, the control solution plays a very important role in the integrity of the sampling and analytical process therefore it is not in consequential that the control solution was not used to rinse the bottles. The purpose of the SOP is to ensure public confidence in the standards of integrity of the racing industry and that requires that the SOP be used appropriately so that the integrity of the sampling and analysis process can be assured. While it is clear that the Protocol is a preferred method the use of the control solution to rinse all of the equipment which is used is in the sampling process is required to ensure that the bowl and bottles were not contaminated before the sample was taken.
- I cannot be comfortably satisfied that the charge has been substantiated where the control sample has not served its purpose. There is evidence accepted by me which has rebutted the prima facie evidence of the certificate of analysis and I am therefore not satisfied that the charge of a breach of rule AR.178 has been substantiated.
- The decision of the Commission is set aside and the charge against Leigh Wanless is not substantiated.
 Statement of Reasons (‘SOR’), p 43.
 AR. 178B and AR.178C(1)(l), except where the level of cobalt is at or below 100 micrograms per litre in urine or 25 micrograms per litre in plasma.
 SOR, p 51.
 SOR, p 55 and 56.
 SOR, p 54.
 SOR, p 57.
 Exhibit 2.
 SOR, p 12 and 13.
 SOR, p 64, para 4.
 SOR, p 64, para 5.
 SOR, p 64, para 6.
 SOR, p 64.
 SOR, p 65, para 8.
 SOR, p 65, para 9.
 SOR, p 65, para 10.
 SOR, p 66.
 SOR, p 17.
 Exhibit 6.
 SOR, p 84.
 Exhibit 2, p 8.
 Exhibit 2, p 1.
 Exhibit 2, p 3.
 Exhibit 2, p 5.
 Exhibit 2, p 6.
 Australian Law Dictionary (Oxford University Press, 2nd ed., 2013).
 Briginshaw v Briginshaw (1938) 60 CLR 336.
 Waltisbuhi v Queensland All Codes Racing Industry Board  QCAT 204, .
 SOR, p 40.
- Published Case Name:
Leigh Wanless v Queensland Racing Integrity Commission
- Shortened Case Name:
Wanless v Queensland Racing Integrity Commission
 QCAT 284
19 Sep 2019