Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Queensland Racing Integrity Commission v Belford[2017] QCATA 42

Queensland Racing Integrity Commission v Belford[2017] QCATA 42

CITATION:

Queensland Racing Integrity Commission v Belford [2017] QCATA 42

PARTIES:

Queensland Racing Integrity Commission

(Appellant)

 

v

 

Kenneth John Belford

(Respondent)

APPLICATION NUMBER:

APL251-16

MATTER TYPE:

Appeals

HEARING DATE:

26 September 2016

HEARD AT:

Brisbane 

DECISION OF:

Justice D G Thomas, President

DELIVERED ON:

27 April 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. Appeal allowed.
  2. The decision of the Racing Disciplinary Board dated 28 June 2016 is set aside.
  3. Kenneth John Belford is guilty of breaches of Rule 190(1) of the Australian Harness Racing Rules.
  4. Kenneth John Belford is disqualified from holding a licence as a trainer and/or driver for a period of six months. Any time during which Mr Belford has already served a period of disqualification shall count towards the equivalent period of disqualification.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – ERROR OF LAW – where appeal against Racing Board decision to set aside the conviction imposed by the Racing Stewards – whether Decision Making Policy subject of the charges was effective at the time of the charges – whether regard should be had to the measure of uncertainty in A-sample and B-sample certificates – whether the measure of uncertainty of the A-sample and B-sample was an appropriate consideration in the totality of the evidence – whether failure to consider the measure of uncertainty was an error of law and ground of appeal

APPEAL – RACING – HARNESS RACING – Australian Harness Racing Rules – standard of proof required to establish breach of Rules – whether civil standard or criminal standard – whether the measure of uncertainty of A-sample and B-sample satisfies the criminal standard of proof beyond reasonable doubt – whether the measure of uncertainty justifies the finding that the respondent presented a horse with a prohibited substance – whether conviction should be reinstated – whether period of disqualification appropriate

Australian Harness Racing Rules 1999 rr 188A, 190, 191

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142

Racing Act 2002 (Qld) ss 79, 80, 81, 83, 103, 155

Abbott v Queensland All Codes Racing Industry Board [2016] QSC 162

Briginshaw v Briginshaw (1938) 60 CLR 336

Dixon v Racing Queensland Limited [2012] QCAT 331

Lambourn v Racing Queensland Limited [2013] QCAT 699

Lawlor v Racing Queensland Limited [2012] QCAT 255

Manzelmann v Racing Queensland Limited [2013] QCAT 45

Ricky John Gordon t/a Ricky Gordon Racing Stables v Racing Queensland Limited [2013] QCAT 302

Riley v Racing Victoria Ltd [2015] VSC 527

Wallace v Queensland Racing [2007] QDC 168

Waltisbuhl v Queensland All Codes Racing Industry Board [2016] QCAT 204

APPEARANCES and REPRESENTATION (if any):

 

Applicant:

G R Rice of Queen's Counsel instructed by Lander & Rogers

Respondent:

J E Murdoch of Queen's Counsel instructed by O'Connor Ruddy & Garrett

REASONS FOR DECISION

  1. [1]
    The Queensland Racing Integrity Commission (‘QRIC’) seeks to appeal a decision of the Racing Disciplinary Board which sets aside the Stewards’ decision to convict and penalise Mr Kenneth Belford for a breach of Australian Harness Racing Rules (‘AHRR’) rule 190(1).
  2. [2]
    An appeal to the tribunal can only be on a question of law.[1] QRIC has appealed on the following grounds:
    1. The Board erred in finding that the ‘measurement of uncertainty is a matter which may be taken into account in deciding whether to convict a person for presenting a horse with a prohibited substance’ when the AHRR do not require such an application and the ‘measurement of uncertainty’ has no application in Queensland.
    2. The Board erred in finding that a B-sample certificate of analysis certifying a total plasma carbon dioxide concentration of over 36mmol/L, when adjusted for the degree of uncertainty, is required to establish a breach of the AHRR.
    3. The Board erred in failing to find that the B-sample certificate confirmed the A-sample certificate.
    4. Having erroneously made the decision to apply the ‘measurement of uncertainty’, the Board failed to turn its mind to whether the B-sample certificate was consistent with a finding of guilt.
    5. The Board erred in failing to have proper regard to the expert evidence.
    6. The Board erred in finding that the B-sample certificate contradicted the A-sample certificate of analysis, when there was no evidence before it to support such a finding.
  1. [3]
    Although articulated in a number of ways, the QRIC submissions can be narrowed to two central issues:
  1. The Board erred in considering it was relevant to take into account the ‘measurement of uncertainty’ in looking at the two certificates.
  2. The Board erred in deciding the appeal on the basis that conclusive evidence certificates were necessary to prove the charge and failed to consider the evidence as a whole.
  1. [4]
    QRIC has identified a number of other, minor, errors. It is appropriate to deal with them as preliminary points.

Background

  1. [5]
    Kenneth Belford is a trainer who presented Hot Tamale to race at Redcliffe on 29 July 2015. A pre-race blood sample from Hot Tamale was analysed on 30 July 2015. It showed a total recorded plasma carbon dioxide concentration of 37.5 mmol/L (‘the A-sample certificate’). A second analysis on 31 July 2015 showed a total recorded plasma carbon dioxide concentration of 36.6 mmol/L (‘the B-sample certificate’).
  1. [6]
    Mr Belford was charged under AHRR rule 190(1) with presenting a horse that was not free from a prohibited substance. He pleaded not guilty. The Stewards found him guilty and disqualified him for a period of six months.
  1. [7]
    Mr Belford appealed to the Board. The Board set aside the conviction.

The Australian Harness Racing Rules (AHRR)

  1. [8]
    Rule 190(1) states that a horse shall be presented for a race free from prohibited substances.
  1. [9]
    Rule 188A(1) sets out the prohibited substances. For the purposes of this appeal, alkalinising agents are prohibited substances.[2] However, rule 188A(2)(a) provides an exception to rule 190: an alkalinising agent, when it is evidenced by total carbon dioxide below 36.0 mmol/L in plasma, is not a prohibited substance.
  1. [10]
    Rule 191(1) states that a certificate from an approved person or laboratory which certifies the presence of a prohibited substance is prima facie evidence of the matters certified. Rule 191(2) states that, if another person or approved laboratory analyses a portion of the same sample and certifies the presence of a prohibited substance, that certificate, along with the first certificate, is conclusive evidence of the presence of a prohibited substance.
  1. [11]
    Rule 191(3) states that a certificate furnished under rule 191 shall be prima facie evidence if rule 191(1) only applies, and conclusive evidence if both rule 191(1) and rule 191(2) apply, that the horse was presented for a race not free of a prohibited substance.
  1. [12]
    Rule 191(6) states that rule 191(3) does not preclude the fact that a horse that was presented for a race not free of a prohibited substance may be established in other ways.

What standard of proof did the Board require?

  1. [13]
    The Board did not directly address the standard of proof required to establish a breach of rule 190. However, the parties have now raised the issue on appeal and I should deal with it.
  1. [14]
    Because this is an appeal about a civil penalty, the standard of proof would normally be the civil, Briginshaw,[3] standard.
  1. [15]
    Counsel for Mr Belford contends the standard should be the criminal standard – beyond reasonable doubt. He referred this appeal tribunal to the Queensland All-Codes Racing Industry Board Policy for Decision Making by Stewards A.B. Vol 1 page 172, which nominates the criminal standard of proof.
  1. [16]
    QRIC contends that the standard of proof is the civil standard of proof. QRIC refers to the meeting of the Queensland All Codes Racing Industry Board (now trading as Racing Queensland) on 24 November 2014 wherein the Board made the following resolution:[4]

2.2.1  Stewards Decision Making Policy

The CEO updated the Board and sought the Board’s approval to amend the Policy for Decision-Making by the Stewards with respect to the standard of proof applied when Stewards make decision on integrity related matters.

The Board approved to amend the standard of proof applied by the Stewards on integrity related matters to on the balance of probabilities.

Moved by Mr Kevin Dixon Seconded by Mr Greg Hallam

Motion carried

  1. [17]
    The resolution is reflected in the amended Policy for Decision-Making by Stewards annexed to an Affidavit of Mr Allan Richard Lonergan.[5]
  1. [18]
    Counsel for Mr Belford referred to the decision of Jackson J in Abbott v Queensland All Codes Racing Industry Board,[6] in which Jackson J ruled that the criminal standard of proof is the relevant standard. It appears that Jackson J was not appraised of matters that were put before me through the affidavits of Allan Richard Lonergan[7] or Michael Edward O'Connor.[8]
  1. [19]
    There is a dispute between the parties as to which version of the Queensland All Codes Industry Board Policy for Decision Making by Stewards was in force at the relevant time; 29 July 2015.

Code of Racing Policy Development

  1. [20]
    Generally, a control body (in this case Queensland All Codes Racing Industry Board, trading as Racing Queensland) performs its functions by making policies about the management of its code, making rules of racing and giving directions.[9]
  1. [21]
    The polices of the control body are to ensure there is guidance for persons involved in the code of racing and to also ensure transparent decision making relating to matters dealt with by the policies.[10]
  1. [22]
    The control body can make policies for the good management of racing.[11] Policies are statutory instruments.[12]
  1. [23]
    Where Racing Queensland wishes to amend a policy, it must make a new policy.[13] 
  1. [24]
    A policy must state “its name, the date it is made by the control body, the day it takes effect, its purpose, who will be affected by it, how the control body will make decisions about matters provided for by the policy and whether or not rules of racing are to be made for the policy.”[14]  These are statutory requirements for making new policy, which must be complied with.
  1. [25]
    A policy is made when the policy is entered into the control body’s minutes as having been made by it.[15]  For this purpose, the word ‘policy’ must refer to policy which has been formulated as required by, and in compliance with, the Act and Code. Otherwise the clear intention of the legislation would be defeated.
  1. [26]
    There is a requirement to have a policy for the way in which policies are developed which must, according to the Act, include the consultation which must be undertaken as part of the development of a policy.[16] 
  1. [27]
    Racing Queensland has the required policy for the way in which policies are developed. It is called the Code of Racing Policy Development (‘the Code’). The Code was made and came into effect on 1 May 2013, and was current at all relevant times.
  1. [28]
    The objective of the Code is said to be “to establish a transparent, systematic process for development of policy by Racing Queensland, to provide an opportunity for those likely to be affected by the policy to have input into its development”.[17]  This is, of course, as is required by section 78(3) of the Act. 
  1. [29]
    The Code continues “consultation is a core element. A formal consultation stage that provides for industry-wide input on policy content is built into the standard policy development process”.[18]
  1. [30]
    The importance of the requirement for consultation is demonstrated by the part of the Code which concerns the urgent making of policy. The relevant part provides that if exceptional circumstances require the urgent making of a policy in a timeframe that does not allow adequate time for formal consultation, the policy must be reviewed within three months and will not continue to have effect after six months unless there has been formal consultation on the review of the policy. Exceptional circumstances are specified to relate to matters that require immediate attention, and an example given is the result of a Court ruling that affects existing policy.[19]
  1. [31]
    As to urgent policy which is made when the consultation process has not been followed, the Code requires that board minutes record the reason for the urgency in making the policy, the date at which it will be reviewed, the date the reviewed policy was considered by the board and the decision.[20] 
  1. [32]
    The Code provides that the process for developing and endorsing policy will generally involve a number of stages. Nine stages are specified in the code. Consistent with the requirements of the legislation, those stages include formal consultation following publication of a notice of availability of a draft policy or other policy document for industry comment, review of consultation input, consideration of amendments for draft policy and provision of feedback on submissions, followed by endorsement of Racing Queensland.
  1. [33]
    The Code prescribes the detail regarding the consultation process which must be undertaken.
  1. [34]
    The Code sets out requirements for notification of the policy decision, commencement date and availability of policy to industry as well as to the Office of Racing.
  1. [35]
    Counsel for Mr Belford submitted, and it was not contested, that Racing Queensland did not comply with the Code of Racing Policy Development when purporting to formulate changes to the Policy for Decision Making by Stewards.
  1. [36]
    For example, there is no evidence, and it is not asserted by either party, that:
  • a notice of availability of the draft policy was provided as required.
  • a draft policy was the subject of any consultation process including formal consultation;
  • there was a review of the draft after consultation;
  • feedback was provided;
  • the policy decision was communicated to the industry;
  • there was a commencement date;
  • the Executive Director, Office of Racing received a copy of the policy.
  1. [37]
    There is no suggestion that there were exceptional circumstances which required the urgent making of policy without consultation. There are no board minutes which comply with the Code, in so far as it relates to policy made in exceptional circumstances. There is no evidence that, as required by the code, the policy was reviewed within 3 months.
  1. [38]
    In fact, Mr O'Connor’s affidavit exhibited a page from the Racing Queensland website that showed, as at the date of hearing, the policy was under review. This was indicative of the conclusion that the policy had not, by that date, been replaced with a new policy. Mr Lonergan, General Counsel for Racing Queensland Board trading as Racing Queensland, agreed that the Policy for Decision Making by Stewards was not endorsed by the Board of Racing Queensland.[21]
  1. [39]
    Of course if the policy was intended to have been made in exceptional circumstances where no consultation took place at the relevant time, being 29 July 2015, the period of six months provided for by the Code had lapsed in respect of the resolution of the Board, which was made on 24 November 2014.[22] 
  1. [40]
    The version of the Policy for Decision Making by Stewards which was published on the Racing Queensland website as at the relevant date, and is said to have commenced on 1 May 2013, recorded “the standard of proof that Racing Queensland Stewards will usually apply when making decisions on integrity-related matters will be beyond a reasonable doubt.”[23]
  1. [41]
    Section 83(6) requires that if the control body wishes to amend policy it must make new policy. The policy must comply with the requirements of the legislation and be formulated as required in the Code. The policy must state the information set out in section 83(1). None of the requirements necessary to perfect the making of policy (and the amendments to policy) were complied with. The failure to follow the required procedure and the failure to comply with the legislative requirements means that the changes to the Policy for Decision Making by Stewards were not effective.
  1. [42]
    Thus the relevant standard for the current proceedings is beyond a reasonable doubt.

The decision of the Board

  1. [43]
    As is sometimes the case in decisions of the Board, the reasons for decision are short and somewhat obscure. The relevant paragraphs which QRIC submits demonstrate an error are:

TCO2 has a threshold of 36mmol and above that threshold it is deemed to be unacceptable and a breach of the Harness Racing Rules but it must be borne in mind that for a certificate to issue the level must be within the parameters of plus or minus 1mmol? A reading of 36 mmol or under is excepted from these provisions and allowing for the plus or minus 1mmol, therefore to be over 36mmol it has to be 37.1mmol with the threshold being given.[24]

A reading of 36mmol or under is excepted from these provisions and allowing for the plus or minus 1mmol, therefore to be over 36 mmol it has to be 37.1mmol with the threshold being given.[25]

For a certificate to be either prima facie evidence or conclusive evidence the reading must be 36.1mmol/L or above allowing for a discrepancy of 1mmol/L.[26]

The measurement of uncertainty is a matter which may be taken into account in deciding whether to convict a person for presenting a horse with a prohibited substance.[27]

It appears to this Board that if the Stewards and Racing Queensland are to rely on the strict liability provisions then conclusive evidence is not present unless the second certification is over 36mmol/L when adjusted for the degree of uncertainty. This is not the case here and as such we have only prima facie evidence and not conclusive evidence of the charge from the two certificates.

Bearing in mind the case law quoted and other circumstances already referred to we uphold the Appeal herein.[28]

Preliminary points

  1. [44]
    Counsel for QRIC made an initial submission[29] that the comment in the Board’s decision ‘…that for a certificate to issue the level must be within the parameters of plus or minus 1mmol?’ is clearly incorrect, as a certificate issues regardless of the result. I agree that the Board’s statement is incorrect. The error does not, however, infect the validity of the decision.

Was the Board entitled to consider the ‘measurement of uncertainty’?

  1. [45]
    Counsel for QRIC submitted[30] that the Board considered it necessary to make an allowance of 1mmol before a certificate had any utility. Counsel submitted that the Board decided it was not going to treat the certificate as having any evidentiary utility unless it was certified within the maximum allowance; that is, unless the reading fell above 36mmol/L even allowing for the plus or minus 1mmol/L. Counsel further submitted that the effect of the decision is that the Board would not attribute any evidentiary utility – neither prima facie nor conclusive – unless, after deducting one point from the certified concentration, it was above the threshold.[31]
  1. [46]
    Counsel for Mr Belford submitted that the Board’s decision was consistent with the way QRIC argued the case: that the measurement of uncertainty was a matter the Board could take into account when deciding whether or not to convict.
  1. [47]
    The A-sample certificate of analysis, in the section marked Results of Analysis states:[32]

The total plasma carbon dioxide concentration was 37.5 mmol/L. The expanded measurement uncertainty for total plasma carbon dioxide determinations at the threshold concentration (36.0 mmol/L) is 1.0 mmol/L at greater than 99.99% confidence.

  1. [48]
    The B-sample certificate of analysis states:[33]

Sample Number TCO2 (mmol/L)

380244  36.6

Values are the mean of 4 measurements on each tube of blood and based on a 5 point calibration. The expanded measurement uncertainty for TCO2 determinations at the threshold concentration (36.0 mmol/L) is 1.0 mmol/L at >99.99% confidence.

  1. [49]
    The certificates, on their face, report the possibility of a 1.0mmol/L discrepancy, even though the possibility was small. This is an aspect of the reported value in the certificate. The Board was entitled to consider that potential for discrepancy when making its decision. How it did so, and whether it was so entitled, leads to the next ground of appeal.

Did the Board err in deciding the appeal on the basis that conclusive evidence certificates were necessary to prove the charge and fail to consider the evidence as a whole?

  1. [50]
    Counsel for QRIC submitted that, having wrongly decided that it could consider the measurement of uncertainty, the Board decided the appeal on the basis that conclusive evidence certificates were essential to proof of the charge. Counsel submitted that the Board did not address itself to the correct issue, which was whether the charge against Mr Belford was proven.
  1. [51]
    Counsel for Mr Belford again submitted that the Board’s decision was consistent with the way QRIC argued the case: that the two certificates complied with rules 191(1) and 191(3).
  1. [52]
    I do not read QRIC’s submissions to the Board in the way contended for by Counsel for Mr Belford. It is submitted that, applying the measure of uncertainty to the B-sample, there was a high likelihood that it did have TCO2 in excess of 36mmol/L. It is submitted that the B-sample was, therefore, evidence that supported the prima facie evidence established by the A-sample certificate.
  1. [53]
    I have been referred to earlier tribunal decisions that consider this question. In Waltisbuhl v Queensland All Codes Racing Industry Board,[34] the first certificate recorded a TCO2 concentration of 37.1 mmol/L. The second certificate recorded a concentration of 36 mmol/L. The tribunal reviewed the effect of rules 191(1), (3) and (4). It accepted that the first certificate was prima facie evidence of a breach.[35] It found that both certificates formed part of the evidence.[36] The tribunal then applied the margin of uncertainty to both samples and found there was a reasonable likelihood that the concentration of TCO2 exceeded the threshold level[37] and that the second certificate was consistent with a finding that it was more probable than not that the horse was over the acceptable level.[38]
  1. [54]
    In Lambourn v Racing Queensland Limited,[39] the first certificate recorded TCO2 levels in excess of the limit. The second certificate recorded a level below the limit. The tribunal found that only one of the certificates – the first – was prima facie evidence that the horse had elevated levels of TCO2.[40] The tribunal also found that the second certificate had evidentiary value,[41] the effect of which was to introduce doubt about the level of TCO2.[42]
  1. [55]
    Counsel for Mr Belford directed the appeal tribunal’s attention to the decision of Bell J in Riley v Racing Victoria Ltd,[43] in which the Court discounted both certificates by 1 mmol/L stating:[44]

Adjustments for measurement uncertainty is not positively required by the Rules but, quite properly, is adopted as responsible and sound scientific practice.

  1. [56]
    Counsel for Mr Belford submitted that I should disregard the decision of Waltisbuhl because there was no independent expert evidence in that case; the tribunal did not have the benefit of reading a 2011 paper by Professor Hibbert,[45] and the tribunal proceeded on the Briginshaw standard.
  1. [57]
    The approach in all three cases is consistent. In the context of considering the level of the reading, it is reasonable to have regard to the measure of uncertainty which is reported on the face of the certificates. This measure of uncertainty is part of the certificate. Even when the lowest possible level might be below 36 mmol/L, the certificate will still be evidence of the level of TCO2 in the horse and should be considered in the totality of the evidence when a Tribunal makes its decision.
  1. [58]
    I am not convinced that the Board decided, as a matter of law, that conclusive evidence certificates were necessary to prove the charge. However, there is no evidence that, having established that the B-sample certificate was not conclusive evidence of a breach, the Board then dealt with the question of whether there was sufficient evidence to support the prima facie evidence of the A-sample certificate. The failure to deal with that is an error of law for which the appeal should be allowed.

What does the whole of the evidence reveal?

  1. [59]
    The parties indicated that for the purpose of this appeal, the Board would no longer be in existence and in a position to reconsider the matter were the order of the Appeal Tribunal to be that the matter be returned to the Board. Thus, I should go ahead to consider the matter and substitute my decision. The appeal is by way of rehearing.[46]  With that in mind, and for that purpose, each party has made submissions about the evidence.
  1. [60]
    Counsel for Mr Belford relied on the evidence from Professor Hibbert in submitting that, like Lambourn, the second certificate is a negative result within the range of uncertainty and therefore contradicts the presumption from the first certificate. Counsel for QRIC submitted that the second certificate confirmed a finding that Mr Belford presented Hot Tamale with levels of TCO2 in excess of the permitted limit.
  1. [61]
    The Board had prima facie evidence, in the A-sample, that Mr Belford presented a horse with a prohibited substance. That conclusion is not in dispute.
  1. [62]
    The B-sample certificate was also evidence as to whether Mr Belford presented a horse with a prohibited substance. Depending upon the effect of the evidence, it might support or rebut the prima facie evidence constituted by the A-sample. It was not conclusive evidence but, as I have already identified, the accuracy of that test was ±1.0mmol/L with a degree of confidence greater than 99.9%. What does that mean?
  1. [63]
    The Board had a copy of a report from Professor D Brynn Hibbert,[47] which provided calculations and a commentary.
  1. [64]
    Dr John Vine gave evidence explaining the statistic further to the Board: that for the measured reading of 36.6 mmol/L, there is a 1 in 313 chance the true reading will not be more than 36 mmol/L.[48]  Putting it another way, it is 99.68% certain that the reading is at least 36 mmol/L.
  1. [65]
    Adopting Professor Hibbert’s calculations, Dr Vine agreed with Professor Hibbert’s calculation of 1/313.[49] He concluded, therefore, that there was not much probability that the second measured reading of 36.6 mmol/L was actually below 36 mmol/L.[50]
  1. [66]
    A 1 in 313 chance of a reading being below a particular value is a 0.32% chance that it is actually below that value. That means there was a 0.32% chance that the second reading of 36.6 mmol/L was, in fact, less than 36 mmol/L, which, again expressed in positive terms is a 99.68% likelihood that the level was over 36 mmol/L.
  1. [67]
    The A-sample was prima facie evidence that Mr Belford presented a horse with a prohibited substance. Taking into account the statistical probability of the B-sample certificate being less that 36mmol/L, I am persuaded that, even on the criminal standard of proof, the results of the 2 samples are evidence beyond reasonable doubt that Mr Belford presented a horse with a TCO2 level in excess of 36.0 mmol/L and, therefore, that he presented a horse with a prohibited substance.
  1. [68]
    Mr Belford’s conviction should be reinstated.

Penalty

  1. [69]
    Once a breach is established, the appeal tribunal has a discretion to impose a penalty. If a trainer is able to show a specific explanation for the presence of TCO2 which indicates a lack of blameworthiness, then the appeal tribunal may exercise some leniency in the penalty.[51]
  1. [70]
    Counsel for Mr Belford submitted that there was a reasonable explanation for the elevated TCO2 levels, which was outside Mr Belford’s control. There was evidence that Hot Tamale received green amino the night before, which may have accounted for the elevated TCO2 reading.
  1. [71]
    The Board accepted that green amino may raise TCO2 levels. It also accepted that the green amino packaging gave no warning that it might affect the concentrations of TCO2.
  1. [72]
    Mr Belford referred to a report from Dr Norton to the Stewards Inquiry in which she replicated the administration of green amino on Hot Tamale.[52] She opined that the administration of green amino, and withholding water for 6 hours, increased the TCO2 levels. The Stewards Inquiry, and the Board, was invited to draw the conclusion that Mr Belford lacked blameworthiness in presenting Hot Tamale with the elevated levels of TCO2.
  1. [73]
    I do not accept that Dr Norton’s report provides an explanation for Hot Tamale’s presentation with excessive levels of TCO2.
  1. [74]
    In his report, Professor Hibbert stated that Dr Norton’s results could not be accepted because the instruments she used had not been validated and not calibrated for equine plasma.
  1. [75]
    Dr Vine had the same concerns.[53] He also noted that Dr Norton did not record the time of collection of the samples, only the time of testing. He said the first analysis was ‘astonishingly high’ for a horse that had not been treated with alkalinising agents. He questioned Dr Norton’s conclusion that transporting horses affects the TCO2 levels. He noted that Dr Norton recorded TCO2 levels of 41.8 mmol/L, 39.9 mmol/L, 39.1 mmol/L, and 37 mmol/L; values which have a less than a 1 in 2,000,000 chance of being recorded in a horse not being treated with alkalinising agents. Further, Hot Tamale’s first test result, at 41.8 mmol/L, was well outside the readings to be expected from a horse with no alkalinising agent in its system.
  1. [76]
    Dr Vine also thought that if the green amino was administered in a single dose, it may have caused a slight elevation in the TCO2 levels but could not have been enough to raise the level from 30 mmol/L to over 36 mmol/L.[54]
  1. [77]
    In Dr Norton’s test, the green amino was administered by tube. Mrs Belford administered the dose by adding it to Hot Tamale’s feed. As the Chairman of Stewards remarked, the Stewards were being asked to compare apples with oranges.[55]
  1. [78]
    The green amino was not administered according to the directions. It can either be given as a drench or added to the feed in 50g doses twice daily for three days,[56] or used as a drench 12 hours prior to strenuous exercise.[57] Mrs Belford did neither. Instead, she mixed the whole 300g packet into Hot Tamale’s feed the night before the race.[58] In fact, Hot Tamale had access to the green amino right up until 3 pm on the day of the race.[59] The Chairman of the Stewards Inquiry commented that this was probably contrary to the rules, which provide that a horse is not to receive additives or supplements on race day.[60]
  1. [79]
    The decision in Dixon v Racing Queensland Limited,[61] upon which Mr Belford relied, also concerned high levels of TCO2 that may have been caused by the administration of green amino. The tribunal set aside the Stewards’ decision to impose a six-month disqualification. Instead, even though it found Mr Dixon guilty, the tribunal imposed no penalty.
  1. [80]
    This decision from 2012 highlighted the fact that green amino might cause elevated TCO2 levels.
  1. [81]
    Mr Belford has extensive experience in the industry. He has been a full time trainer for decades. His last positive swab was over 25 years ago.
  1. [82]
    Mr Belford submits that a fine is the appropriate penalty. In Waltisbuhl, the tribunal confirmed the Board’s penalty of $5,000. Mr Belford also relies on a $6,000 fine on trainer G Elkins,[62] a $6,000 fine on trainer F Weston,[63] and a $6,000 fine on trainer E Maiualo[64] as support for the imposition of a fine.
  1. [83]
    QRIC submits that a period of disqualification reflects the serious nature of the offence. It submits that Lawlor v Racing Queensland Limited,[65] and Manzelmann v Racing Queensland Limited,[66] support the imposition of a period of disqualification.
  1. [84]
    In Manzelmann, the tribunal accepted that the ‘norm’ for a first offence involving TCO2 is 6 months’ disqualification.[67] Mr Manzelmann’s penalty was reduced to 3 months because he could establish a lack of blameworthiness. In Ricky John Gordon t/a Ricky Gordon Racing Stables v Racing Queensland Limited,[68] Mr Gordon could not point to any factors that might explain the presence of elevated TCO2. Like Mr Belford, Mr Gordon submitted that his long years in racing and the significant financial consequences of a disqualification justified a lighter penalty. The tribunal disagreed, confirming the Stewards’ penalty of 6 months disqualification.[69]
  1. [85]
    Consistency is an important consideration when considering the appropriate penalty. Mr Belford has not substantiated lack of blameworthiness. In the circumstances, a 6 month disqualification should be imposed. Any time during which Mr Belford has already served a period of disqualification shall count as the equivalent period of disqualification.

Footnotes

[1] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142.

[2]  Australian Harness Racing Rules 1999, r 188A(1)(b).

[3] Briginshaw v Briginshaw (1938) 60 CLR 336.

[4]  Affidavit of Allan Richard Lonergan, sworn 21 September 2016, paragraph 6.

[5]  Ibid, exhibit AL-2.

[6]  [2016] QSC 162.

[7]  Sworn 21 September 2016.

[8]  Sworn 23 September 2016.

[9]Racing Act 2002 (Qld), s 78(2).

[10]  Ibid, s 78(3).

[11]  Ibid, s 80 (as at July 2015).

[12]  Ibid, s 79.

[13]  Ibid, s 83(4).

[14]  Ibid, s 83(1).

[15]  Ibid, s 83(2).

[16]  Ibid, s 81(a).

[17]  Code of Racing Policy Development, p 1.

[18]  Ibid, p 2.

[19]  Ibid, p 2.

[20]  Ibid, p 4.

[21]  Transcript of hearing, 26 September 2016, page 1-21, Lines 10-12.

[22]  Affidavit of Allan Richard Lonergan, sworn 21 September 2016, paragraph 6.

[23]  Affidavit of Michael Edward O'Connor, sworn 2 December 2015, Exhibit MOC3: Policy for Decision Making by Stewards.

[24]  Racing Disciplinary Board decision dated 28 June 2016 (‘Decision’) at p 3.

[25]  Decision, p 3.

[26]  Decision, p 4.

[27]  Decision, p 5.

[28]  Decision, p 7.

[29]  Transcript of hearing, 26 September 2016, page 1-30, line 32 to page 1-31, line 9.

[30]  Transcript of hearing, 26 September 2016, page 1-32, line 44 to page 1-33, line 24.

[31]  Ibid, page 1-33, lines 39 – 45.

[32]  Agreed Bundle of Documents, filed 29 August 2016, Volume 1, document 8.

[33]  Ibid, document 16.

[34]  [2016] QCAT 204.

[35]  Ibid at [20].

[36]  Ibid at [22].

[37]  Ibid at [26].

[38]  Ibid at [27].

[39]  [2013] QCAT 699.

[40]  Ibid at [10].

[41]  Ibid at [16].

[42]  Ibid at [17].

[43]  [2015] VSC 527.

[44]  Ibid at [11].

[45]  Hibbert, Armstrong and Vine, Total TCO2 measurements in horses: where to draw the line, A.B. Vol 1 p 201.

[46] Racing Act 2002 (Qld), s 155(5).

[47]  Report dated 23 November 2015.

[48]  Ibid, page 16, lines 39 – 44.

[49]  Ibid, page 16, lines 36 – 43.

[50]  Ibid, page 16, lines 43 – 44.

[51] Wallace v Queensland Racing [2007] QDC 168 per McGill DCJ at [69].

[52]  Agreed Bundle of Documents, filed 29 August 2016, Exhibit 20 tendered to the Stewards Inquiry, 29 September 2015.

[53]  Ibid, Exhibit 21 tendered to the Stewards Inquiry, 5 October 2015.

[54]  Racing Queensland Transcript of Proceedings 8 October 2015, page 43, lines 23 – 28.

[55]  Racing Queensland Transcript of proceedings 8 October 2015, page 52, lines 25 – 27.

[56]  Racing Queensland Transcript of proceedings 24 August 2015, page 11, lines 16 – 17.

[57]  Ibid page 11, lines 27 – 36.

[58]  Ibid page 9, lines 37 – 41.

[59]  Racing Queensland Transcript of proceedings 8 October 2015 page 39, lines 29 – 36.

[60]  Racing Queensland Transcript of proceedings 24 August 2015 page 25, lines 10 – 15.

[61]  [2012] QCAT 331.

[62]  9 March 2011.

[63]  9 September 2010.

[64]  9 July 2009.

[65] Lawlor v Racing Queensland Limited [2012] QCAT 255.

[66] Manzelmann v Racing Queensland Limited [2013] QCAT 45.

[67]  Ibid at [16].

[68] Ricky John Gordon t/a Ricky Gordon Racing Stables v Racing Queensland Limited [2013] QCAT 302.

[69]  Ibid at [10] – [12].

Close

Editorial Notes

  • Published Case Name:

    Queensland Racing Integrity Commission v Kenneth John Belford

  • Shortened Case Name:

    Queensland Racing Integrity Commission v Belford

  • MNC:

    [2017] QCATA 42

  • Court:

    QCATA

  • Judge(s):

    Thomas P

  • Date:

    27 Apr 2017

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.