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Rattray v Queensland Racing Integrity Commission[2018] QCATA 39

Rattray v Queensland Racing Integrity Commission[2018] QCATA 39

CITATION:

Rattray v Queensland Racing Integrity Commission [2018] QCATA 39

PARTIES:

Kenneth Lindsay Rattray

(Appellant)

v

Queensland Racing Integrity Commission

(Respondent)

APPLICATION NUMBER:

APL429-16

MATTER TYPE:

Appeals

HEARING DATE:

29 August 2017

HEARD AT:

Brisbane

DECISION OF:

Judge Sheridan, Acting President
Member King-Scott

DELIVERED ON:

10 April 2018

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The appeal is dismissed.
  2. The respondent file and serve any submissions supporting any application for the tribunal to make an order of costs by 4.00 pm on Tuesday, 17 April 2018.
  3. The appellant file and serve any submissions in reply by 4.00 pm on Tuesday, 24 April 2018.

CATCHWORDS:

APPEAL – GENERAL ADMINISTRATIVE REVIEW – DISCIPLINARY PROCEEDINGS – ASSOCIATES AND CLUBS – RACING CLUBS AND ASSOCIATIONS – DISQUALIFICATION FOR CONTROL RULE BREACH – Australian Harness Racing Rules – Interpretation – Appeal on questions of law – Where appellant convicted of contravention of the Australian Harness Racing Rules – Where appellant entered a plea of guilty at Stewards Inquiry – Where appellant sought internal and external review of conviction and penalty – Where appellant remains aggrieved by conviction – Where no formal application of withdrawal of plea of guilty – Whether method of analysis of urine samples in compliance with Australian Harness Racing Rules – Whether valid agreement between controlling body and accredited facility – Whether analysts lawfully approved – Whether evidentiary value of certifications of analysis is lessened if non-compliance – Whether a conviction entered on the basis of a guilty plea may be set aside

Acts Interpretation Act 1954 (Qld), s 27A(3)

Australian Harness Racing Rules 1999, r 181, r 190, r 191, r 191(1), r 191(2)

Queensland Civil and Administrative Tribunal

Act 2009 (Qld), s 20

Racing Act 2002 (Qld), s 6, s 7, s 9AH, s 9AZ,  s 115, s 131, s 132, s 143, 147, s 359, s 412, s 427

Filmana Pty Ltd & Ors v Tynan & Anor [2013] QCA 256, considered

Kavanagh v Racing Victoria Ltd [2017] VCAT 386, considered

Meissner v The Queen (1995) 184 CLR 132, considered

Queensland All Codes Racing Industry Board

v Colahan [2015] QCATA 46, considered

R v Dobie [2010] QCA 34, considered

Racing Victoria Ltd v Kavanagh [2017] VSCA 334, considered

APPEARANCES AND REPRESENTATION:

APPELLANT:

J E Murdoch QC instructed by O'Connor Ruddy & Garrett Solicitors

RESPONDENT:

J M Horton QC, with A Hellewell, instructed by  the Queensland Racing and Integrity Commission

REASONS FOR DECISION

Background

  1. [1]
    Mr Rattray, the appellant in these proceedings and applicant in the initial review proceedings (the appellant), is a licensed harness racing trainer.  On 25 August 2016, he was charged with having breached r 190(1) of the Australian Harness Racing Rules (AHRR) which provided:

A horse shall be presented for a race free of prohibited substances.

  1. [2]
    Rule 190(2) provides that if a horse is presented for a race otherwise than in accordance with r 190(1), the trainer of the horse is guilty of an offence.
  2. [3]
    The particulars of the charge were that the appellant as the trainer of a horse, Destreos, had presented the horse to race at Albion Park on 7 May 2016 when a pre-race urine sample taken from the gelding was found, upon analysis, to contain prohibited substances phenylbutazone and oxyphenbutazone.
  3. [4]
    The appellant was charged following an inquiry before the Stewards conducted pursuant to r 181 of the AHRR (Stewards Inquiry).  The appellant pleaded guilty to the charge and was disqualified for a period of six months.[1]
  4. [5]
    Two certificates of analysis were tendered at the Stewards Inquiry, purportedly pursuant to r 191(1) and r 191(2) of the AHRR, which disclosed the presence of the prohibited substances in the samples tested.  The second certificate was referred to as the reserve certificate.[2]
  5. [6]
    The appellant was aggrieved by the conviction and penalty and sought an internal review of both.  The review of the conviction was sought on the basis that the certificates of analysis for the sample were carried out by the same laboratory, which, it was submitted, contravened r 191(1) and 191(2) of the AHRR.
  6. [7]
    The internal review considered both the penalty and conviction and affirmed the original decision.
  7. [8]
    The appellant then sought a review of the decision before the tribunal.  Pursuant to s 20 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act), the review was conducted as a fresh hearing, with the purpose of the review being to reach the correct and preferable decision.  The review was heard on 7 November 2016 and the learned Member delivered his decision on 18 November 2016.  The learned Member affirmed the conviction and reduced the penalty from six months to four months.
  8. [9]
    The appellant now appeals to this appeal tribunal against his conviction.  During the course of oral submissions before this tribunal, we were informed that the appellant, in fact, has served his period of disqualification but, nevertheless, remains aggrieved by his conviction.

The Plea of Guilty

  1. [10]
    In affirming the conviction, the learned Member considered the plea of guilty and whether it was sufficient to found a finding of guilt.
  2. [11]
    The learned Member considered the circumstances in which the plea was made and whether there was any miscarriage of justice.  There has certainly never been any formal application by the appellant to withdraw the plea.  However, it is implicit in the manner in which the matter has progressed to this stage that the appellant has always disputed that he was cognisant of all the relevant facts at the time he entered the plea.
  3. [12]
    The respondent submits that if the plea is not set aside, then that disposes of the appeal.  Such is axiomatic. The respondent also submits that if the appellant was entitled to have the plea set aside, it only would be on the basis of the alleged misrepresentation by the Chairman of Stewards that they were entitled to have both samples tested at the same laboratory.[3]
  4. [13]
    The respondent submitted here, and before the learned Member, that:
    1. a plea entered below survives an application for hearing unless grounds are shown to set it aside; 
    2. a court will act upon a plea in an open hearing by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in exercise of free choice in the interests of the person entering the plea;
    3. 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;
    4. 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.
  5. [14]
    Authority for those propositions is found in the decisions of Meissner v The Queen (1995) 184 CLR 132, R v Dobie [2010] QCA 34 and Queensland All Codes Racing Industry Board v Colahan [2015] QCATA 46.
  6. [15]
    Before considering the matters further, it is instructive to review the discussions which took place at the Stewards Inquiry before the appellant entered his plea.
  7. [16]
    It is apparent from the transcript that the appellant questioned the integrity of the analysis and whether there was an independent analysis of the second sample.    He is recorded in the transcript of the Stewards Inquiry as follows:

MR RATTRAY:

The other thing was that you used to send the B sample away to an independent laboratory. Don’t you have to do that anymore?

THE CHAIRMAN:

There was a period of time from 2015 that Racing Queensland made the decision to have all confirmatory analyses done by the Racing Science Centre.

MR RATTRAY:

Yes.

THE CHAIRMAN:

That is in compliance with Rule 191(1). That says “another laboratory or another analyst.” So Racing Queensland made that decision to do that, and, as I say, it is in compliance with the rule, but that was a decision made at that time.

MR RATTRAY:

Do you think it should go to another laboratory or - you used to do it.

THE CHAIRMAN:

All it has to do is satisfy the requirements of Rule 191(1).

MR RATTRAY:

Yes. So that’s (inaudible).

THE CHAIRMAN:

So it is six of one and half a dozen of the other.

MR RATTRAY:

Yes.

THE CHAIRMAN:

So it can go to another laboratory. What – the confirmatory analysis objective is to have a different set of eyes or a different – a different set of eyes look at the sample.

MR RATTRAY:

Yeah, yeah.

THE CHAIRMAN:

Whether that be from Mark Jarrett to Samantha Nellis or whether it be from Samantha Nellis to David Batty in Victoria, it doesn’t matter. But it needs an independent person or an independent laboratory to look at the sample.

MR RATTRAY:

Yes.

THE CHAIRMAN:

So that was the decision made by Racing Queensland.[4]

  1. [17]
    The appellant accepted the explanation and, it is apparent from the transcript, that when entering the plea, he believed the evidence to be conclusive and that he was left with no alternative other than to enter a plea of guilty.
  2. [18]
    Rule 190(4) provides:

An offence under sub rule (2) or sub rule (3) is committed regardless of the circumstances in which the prohibited substance came to be present in or on the horse.

 The effect of that sub-rule is that neither negligence nor inadvertence is a               defence. Liability is strict.

  1. [19]
    During the hearing, the appellant protested his innocence but he could not provide an explanation as to how the substance found its way into the horse.
  2. [20]
    In the circumstances, depending upon the accuracy of the Chairman’s remarks, it could be argued that the appellant was misled by the Stewards and that induced the guilty plea.  In order to consider whether there has been a miscarriage of justice, sufficient to affect the validity of the plea, it is necessary to examine the method of analysis of both samples and whether r 191(1) and r 191(2) have been complied with.

The nature of the appeal regarding the admissibility of the Certificates

  1. [21]
    In his written submissions, the appellant challenges the admissibility of the two certificates on several grounds:
    1. the non-compliance by the Controlling Body, or accredited facility, with the obligations imposed by the Racing Act 2002 (Qld) (Racing Act) and the AHRR destroyed the evidentiary value of the certificates;
    2. the analysts who actually carried out the analyses were not approved by the Controlling Body;
    3. the acting Chief Executive Officer (CEO) of the control body purported to support the proposal for analysis by unnamed persons employed at the Racing Science Centre (RSC) without evidence of any delegation to the acting CEO; and
    4. there was no valid agreement between the Controlling Body and the testing facility at the time as required by s 40 of the Racing Act.

The Tribunal’s decision below

  1. [22]
    The learned Member rejected the appellant’s challenge to the admissibility of the certificates of analysis on the basis that, contrary to the requirements of the AHRR, both analyses were carried out at the same laboratory. 
  2. [23]
    It was accepted that the AHRR are statutory instruments and must be construed as such.  The relevant provisions to be considered were:

Evidentiary certificates

191. (1) A certificate from a person or drug testing laboratory approved by the Controlling Body which certifies the presence of a prohibited substance in or on a horse at, or approximately at, a particular time, or in blood, urine, saliva, or other matter or sample or specimen tested, or that a prohibited substance had at some time been administered to a horse is prima facie evidence of the matters certified.

(2) If another person or drug testing laboratory approved by the Controlling Body analyses a portion of the sample or specimen referred to in sub rule (1) and certifies the presence of a prohibited substance in the sample or specimen that certification together with the certification referred to in sub rule (1) is conclusive evidence of the presence of a prohibited substance.

(3) A certificate furnished under this rule which relates to blood, urine, saliva, or other matter or sample or specimen taken from a horse at a meeting shall be prima facie evidence if sub rule (1) only applies, and conclusive evidence if both sub rules (1) and (2) apply, that the horse was presented for a race not free from prohibited substances.

(4) A certificate furnished under this rule which relates to blood, urine, saliva, or other matter or sample or specimen taken from a horse shall be prima facie evidence if sub rule (1) only applies, and conclusive evidence if both sub rules (1) and (2) apply, that the prohibited substance was present in or on the horse at the time the blood, urine, saliva, or other matter or sample or specimen was taken from the horse.

(5) Sub rules (1) and (2) do not preclude the presence of a prohibited substance in or on a horse, or in blood, urine, saliva, or other matter or sample or specimen, or the fact that a prohibited substance had at some time been administered to a horse, being established in other ways.

(6) Sub rule (3) does not preclude the fact that a horse was presented for a race not free of prohibited substances being established in other ways.

(7) Notwithstanding the provisions of this rule, certificates do not possess evidentiary value or establish an offence, where it is proved that the certification procedure or any act or omission forming part of or relevant to the process resulting in the issue of a certificate, was materially flawed.

  1. [24]
    The learned Member held that r 191(2) did not prohibit an analyst from the same laboratory certifying the second sample.
  2. [25]
    The learned Member next considered whether the Controlling Body as required by the rules approved the analysts who carried out the analyses.  The appellant submitted that there was no evidence before the tribunal that the analysts had the relevant approval from the control body.   
  3. [26]
    In the submissions below, on behalf of the appellant it was submitted that Racing Queensland or the Board of Racing Queensland was the Controlling Body. 
  4. [27]
    The learned Member referred to s 6 and s 7 of the Racing Act and commented that the Controlling Body is the Racing Queensland Board. In fact, at the relevant time, the Racing Queensland Board was still known as the Queensland All Codes Racing Industry Board (QACRIB); post 1 July 2016 it became known as the Racing Queensland Board.[5]  The learned Member noted the concession by counsel for the appellant that if that entity had approved either or both of the analysts, it would have been a relevant approval.
  5. [28]
    Ultimately, the learned Member was satisfied that correspondence in 2015 between the Director of the RSC and the CEO (or acting CEO) of Racing Queensland evidenced a formal approval of individual analysts employed by the RSC.  The learned Member observed that there seems to be no question that the acting CEO of racing Queensland had 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.”  The learned Member observed, however, that “the correspondence lacked what might be expected to reflect a level of care and formality in its language in the approval process.”[6]
  6. [29]
    In case he was wrong about his earlier findings, the learned Member then proceeded to consider the other evidence that was available to prove the presence of the prohibited substance.  He considered there were two reasons why it seemed open to conclude the charge was otherwise proven.  Firstly, that the first certificate which established prima facie evidence of the presence of the prohibited substance together with the oral testimony of the relevant analyst and the conclusions reached on the analysis were consistent with what had been certified and was uncontradicted and unchallenged.
  7. [30]
    Secondly, the learned Member went on to say:

If, as the Appellant 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 analysis 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.

Proof of the charge absent the certificates

  1. [31]
    In arguing that the evidentiary value of the certificates had been destroyed due to noncompliance by the RSC with the AHHR, the appellant referred the appeal tribunal to the case of Kavanagh v Racing Victoria Ltd [2017] VCAT 386,[7] a decision of Garde J, President of the Victorian Civil and Administrative Tribunal.  In that case, cobalt at concentrations above the permitted threshold level was detected in samples taken from horses presented for racing by the appellant and another trainer. The trainers were charged by the relevant disciplinary board with having caused cobalt to be administered to the horses for the purpose of affecting their performance or behaviour in a race. 
  2. [32]
    VCAT conducted an initial review of this decision. The tribunal ordered that the charges against the trainers be dismissed on various grounds; the most relevant to the current case on appeal being the mode of proof of the charges and the effect of non-compliance with procedural requirements of the equivalent rules of racing in Victoria (Rules of Racing)[8] to the AHRR in Queensland.
  3. [33]
    The particular rule under consideration in Kavanagh[9] was AR 178D, which is, in effect, the equivalent of r 191 of the AHHR.  It prescribed the procedure to be adopted when samples were taken from horses by stewards in the exercise of their powers under AR 8(j), which is, in effect, the equivalent of r 15(k) of the AHHR, which empowers stewards to “inspect, examine or test in such manner as they consider appropriate any … horse”.
  4. [34]
    Although the AR 178D and r 191 are significantly different in wording, their operation in providing by way of certificate prima facie evidence (and, in the case of r 191(2), conclusive evidence) of the presence of a drug or substance is similar in effect. 
  5. [35]
    His Honour found that the words in the Rules of Racing were mandatory in nature.
  6. [36]
    In Kavanagh,[10] the official racing laboratory was required to notify the stewards of its finding of cobalt in the relevant samples, and also to nominate another official racing laboratory and refer to it a reserve portion of the same sample pursuant to AR 178D(4) and AR 178D(5).  The factual circumstances of the case were such that the stewards referred the samples to an official racing laboratory (the first laboratory) that was unable to test for the presence of cobalt.  That laboratory referred parts of the sample to another official racing laboratory (the second laboratory) which detected the cobalt. 
  7. [37]
    The second laboratory did not notify the stewards of its finding as required; they notified the first laboratory which then notified the stewards and referred the reserve portion of the same sample to a different laboratory. This gave rise to what was described by Garde J as a substantial departure from the requirements of AR 178D.[11]  He found that there was no secure transfer or continuity of the handling of the sample between the first and second official racing laboratories.[12] 
  8. [38]
    It was in this context that his Honour went on to consider whether, if the protocols relating to the analysis and production of a certificate prescribed by AR 178D were not followed, any resulting certificates of analysis could still be used as an evidentiary means of establishing the charge. 
  9. [39]
    In Kavanagh, his Honour said at [619] and [620] respectively:

If the Stewards are at liberty to depart from a requirement set out in AR178D(1), (2), (4) and (5) but can nonetheless rely on testing and analysis of samples obtained under AR8(j), the question arises whether the provisions of AR178D have any utility or efficacy.  Having regard to the role and language of AR178D, it would be surprising if its provisions could simply be ignored or disregarded without affecting the admissibility of the test results obtained by a non-compliant method.  What would be the purpose or utility of AR178D if its provisions could simply be ignored or contravened without any consequence?

While the need to give efficacy to the provision of a contract is not a strong indicator in every circumstance, AR178D directs Stewards and laboratories alike as to how testing is to be conducted and test results reported.  It’s hard to see why non-adherence to the requirements of testing, and analysis contained in AR178D (1), (2), (4) and (5) should not bring with it the consequence that the test results cannot be relied on by RVL.  Any other result would only give lip service to the need to comply with the Rules.

[Citations omitted][13]  

  1. [40]
    He found that the consequence of the substantial departure from the requirements of AR178D for the testing of the samples from the horses must be both the inadmissibility of the certificates and other evidence of analysis based on the samples taken.[14] 
  2. [41]
    This finding was subsequently set aside on appeal.  The Court of Appeal found that compliance with the relevant rule “would not have altered the course of events in any substantive way”, in that the testing was completed by accredited laboratories as required by the Rules of Racing.[15]  There was also evidence which established that each of the relevant horses had cobalt concentrations which could not have been achieved by the standard administration of legal substances.[16] 
  3. [42]
    The Court of Appeal found that it was highly improbable that “the drafters would have intended procedural noncompliance of this kind to render inadmissible other evidence which was independently capable of proving the presence of a prohibited substance.”[17]  It was stated by Maxwell P, with whom McLeish JA and Cavanough AJA agreed, that it could not have been intended that the certification procedure be the exclusive mode of proof.  The procedure was described as facilitative of relieving regulatory authorities from having to lead evidence from witnesses in order to prove a contravention – a ‘so-called evidentiary short-cut’.[18]  The purpose of such evidentiary provisions is to provide prima facie, or, in some jurisdictions, conclusive, evidence of the matters certified.[19]
  4. [43]
    Maxwell P stated:

It would be a remarkable thing, in my view, if non-compliance with one of the procedural steps in the ‘short-cut’ procedure under AR 178D prevented the stewards from establishing the relevant contravention by conventional means of proof.[20]

  1. [44]
    When the appeal came before this tribunal, the parties did not have the benefit of the Court of Appeal’s decision in Kavanagh.[21]  The effect of that decision is such that, even if a certificate becomes inadmissible, this does not prevent the presence of the prohibited substance being proved by conventional means.
  2. [45]
    The issue as to the reliance on other evidence was not fully decided in the learned Member’s reasons below. Rather, as noted above, the learned Member had said it seemed open to conclude the charge was otherwise proven.
  3. [46]
    For reasons that will become apparent, however, it is also not necessary for us to decide the issue.

Agreement with accredited facility?

  1. [47]
    The appellant contends that there was no agreement between the control body and the accredited facility.
  2. [48]
    Section 131 of the Racing Act gave to the chief executive of the all-codes board[22] the power to accredit a facility.  At the hearing below, a certificate of accreditation accrediting RSC as a facility to analyse things relating to licensed animals pursuant to s 132 of the Racing Act was tendered in evidence.[23]  No evidence was led by the appellant challenging the validity of that certificate.
  3. [49]
    Section 40 of the Racing Act required that:

A control body enter into an agreement with an accredited facility, independent of the control body, for the provision of integrated scientific and professional services:

  1. (a)
    for analysing things relating to licensed animals for the presence of drugs and other substances; and
  2. (b)
    for related matters.
  1. [50]
    Section 143 provided for the way a control body may take or deal with a thing for analysis.  If the results of analysis were to be used by the control body for a purpose other than research or survey purposes, the control body was to take and deal with the thing for analysis under the procedure prescribed in accordance with the Racing Act.  Pursuant to s 115(3) of the Racing Act, those procedures were to be prescribed by the integrity board, a body established under s 114 of the Racing Act. 
  2. [51]
    Section 143(4) provided that the control body must deliver the thing for analysis to:
    1. (a)
      if the thing is to be delivered under an agreement between the control body and accredited facility – the accredited facility that is a party to the agreement; or
    2. (b)
      otherwise – another facility that has the capacity to analyse things relating to licensed animals if the delivery is approved by an integrity officer.
  3. [52]
    The issue was whether there was a valid agreement between the RSC and the control body.  At the time the parties entered into the agreement in August 2006, the Queensland Harness Racing Board was a statutory body established under the Racing Act and was the relevant control body.[24]
  4. [53]
    The parties accepted an agreement existed between the State of Queensland and Queensland Harness Racing Board, which agreement was contained in a service agreement dated 1 August 2006.  The term of the agreement was for four years and expired on 30 June 2010.
  5. [54]
    Pursuant to the agreement, the State of Queensland through the Department of Public Works agreed to provide services to the Queensland Harness Racing Board through the RSC.  The agreement provided that the agreement may be varied at any time by an agreement in writing executed by the parties.
  6. [55]
    The parties accepted the validity of this agreement.  The appellant submitted, however, that the agreement had elapsed through effluxion of time. 
  7. [56]
    The respondent maintained that the agreement had been extended.  The respondent submitted that the agreement was initially extended for a period of one year to 30 June 2011 by an exchange of correspondence between Mr Kelly, Executive Director of Office of Racing,[25] and Mr Godber, CEO of Queensland Harness Racing Limited, on 22 and 30 March 2010 respectively.[26] 
  8. [57]
    The respondent maintained the agreement was further extended to 30 June 2012 by correspondence between Mr Kelly and Mr Orchard, Director of Integrity Operations, Racing Queensland Limited (RQL), on 9 and 21 June 2011 respectively.[27]  The letter of 21 June 2011 confirmed, as requested in the letter from Mr Kelly, that the board of RQL had resolved to extend the current Service Level Agreement until 30 June 2012 or until a new Service Level Agreement was negotiated.
  9. [58]
    The respondent submitted that in June 2012 there was a further variation of the agreement.  In a letter dated 21 June 2012 from the acting CEO of RQL to the director of the RSC, it was said the RQL Board at a meeting on 21 May 2012 agreed to enter into a Service Level Agreement on a month-by-month basis from 1 July 2012, with RQL retaining the option of terminating the agreement by providing the RSC with one month’s written notice.  By letter dated 27 June 2012, Mr Kelly responded on behalf of the RSC, indicating agreement to the extension on a month-by-month basis until terminated by one of the parties giving one month’s written notice and stating that the clauses addressing such variation would be incorporated into a deed of variation. The deed of variation, presumably unexecuted, was said to be attached.
  10. [59]
    There was a deed of variation signed on behalf of the RQL, as the Control Body, tendered before the learned Member.  The document tendered had not been executed by the State, on behalf of RSC.
  11. [60]
    All the correspondence evidencing the purported extensions or variations to the Service Level Agreement had not been available to the learned Member;[28] in particular, the letters dated 21 June 2011 and 27 June 2012.  It was certainly acknowledged by counsel for the appellant that the existence of the letter of 21 June 2011 weakened the appellant’s case on this point.
  12. [61]
    Given the exchange of correspondence in both June 2011 and June 2012, we are of the opinion that there was at all relevant times a valid s 40 agreement.

Analysts approved?

  1. [62]
    The next issue was whether the analysts were appropriately approved.  The appellant contended that the then-acting CEO of Racing Queensland, Mr Hall, had no appropriate authority to grant approval to either a testing centre or testing laboratory or to an individual analyst.  Pursuant to s 9AH of the Racing Act, the QACRIB had the power to delegate.  At the relevant time, all board members had been removed and the Honourable John Muir QC was appointed interim chairman on 4 June 2015. 
  2. [63]
    In the course of the hearing before us, an Instrument of Delegation dated 30 June 2015, which had recently come to light, was tendered.  It had not been available at the hearing before the learned Member.  It delegated to the CEO various powers including the power to “enter into contracts and agreements”, as well as the power to “do anything else necessary or convenient to be done in performing the functions or discharging the obligations imposed on the Board under the Racing Act.”[29] Such obligations would clearly include approving an analyst or testing laboratory. 
  3. [64]
    The appellant maintained that there was no minute of any decision of the Board to approve the execution of the delegation.  At the time, the Hon John Muir was the sole member of the Board.  On 4 June 2015 he appointed Mr Ian Hall to the position of acting CEO.  The Instrument of Delegation was executed by The Hon Mr Muir on 30 June 2015.  As Mr Muir was the sole delegator, we are of the opinion that the instrument is sufficient evidence of the decision of the Board to delegate.[30]
  4. [65]
    The approval of analysts was addressed in correspondence between the CEO of Racing Queensland and the Director of the RSC.[31]  This was the correspondence that the learned Member criticised as lacking the relevant level of care and formality that such an approval warranted.
  5. [66]
    The crux of the appellant’s objection before the learned Member was that the rule contemplated the confirmatory or referee analysis be undertaken by an analyst at another laboratory who is identified as being approved, not merely approved through a blanket approval of unnamed analysts employed at the laboratory.
  6. [67]
    Despite the lack of formality, we are satisfied that the analysts were appropriately approved.

Signature on certificate

  1. [68]
    Finally, it was belatedly argued that the person who analysed the second sample should be one and the same as the person who signs the certificate. The evidence was that although Ms Samantha Nelis signed off on the second certificate, the sample appeared to have been analysed by another chemist and, in fact, a third chemist was also said to be involved.  It was submitted that this could not be compliant with the requirements of r 191(2) which contemplated that if there was reliance on another analyst at the same laboratory, then the person who does the analysis is the person who must certify.
  2. [69]
    There is merit in this argument.  Rule 191(1) contemplates that a certificate can be issued by an approved person or an approved drug testing laboratory certifying the presence of a prohibited substance.  Pursuant to r 191(1), the analysis could be carried out by any number of analysts employed by the laboratory or under the supervision of the certifying person. The person or laboratory merely has to certify that the correct procedure and analysis has been carried out.
  3. [70]
    The term “analyse” does not appear in r 191(1); rather it refers to the sample or specimen “tested”. The term “analyse” is not defined but would clearly include a reference to the process whereby the individual carries out the scientific examination of the sample or the sample is examined by others.
  4. [71]
    When one comes to the second sample the requirements under r 191(2) are different. The rule requires another approved person or approved drug testing laboratory to analyse a portion of the sample and certify. Unlike r 191(1), the sub-rule appears to contemplate that the person certifying is one and the same as the person who performs the analysis of the sample. 
  5. [72]
    The evidence is that at least three chemists were involved in the analysis of the second sample, each essentially repeating the same process and checking the results.[32]  They were all employed at the same laboratory and it is not beyond possibility that one or more of them could have been involved in the analysis of the first sample.  According to the evidence, however, this was not the case.  If it had occurred then that would appear to offend the very purpose of r 191(2), which is to provide an independent confirmation of the first certificate.  It demonstrates the risk if r 191(2) is construed as permitting the analysis to be carried out by persons other than the one providing the Certificate of Analysis.
  6. [73]
    It was argued that the Certificate of Analysis by Ms Nelis does not comply with r 191(2).  If the Certificate was found to be materially flawed then pursuant to r 191(7) it cannot have any evidentiary value.
  7. [74]
    This point was not argued before the learned Member, nor was it a ground of appeal.  Indeed, it does not appear in the appellant's outline of submissions.  It was raised for the first time in the appellant's submissions in response.  As counsel for the respondent points out the term "analysis" is not considered or defined. There has been no evidence as to what actually is involved in an “analysis” and any determination of the issue would require some evidence.
  8. [75]
    This appeal had been confined to questions of law only.[33]  Leave to appeal was not sought and would be required only if issues of fact or mixed fact and law were involved.[34]  It would be unfair for this appeal tribunal to entertain arguments or, indeed, determine the matter on an issue raised so late in the proceeding.  The respondent has been deprived of an opportunity of adducing further evidence, if it so desired, on the new issue.[35]

Conclusion

  1. [76]
    Returning to the issue of the appellant’s plea of guilty, as stated earlier, the appellant questioned the integrity of the analysis on the basis that it was not conducted at a second laboratory. Essentially, he was questioning whether the analysis of the second sample was independent of the analysis of the first sample. On being assured that it was, the appellant says he entered a plea of guilty. 
  2. [77]
    It is clear from the evidence that, in this instance, the analysis was independently conducted by chemists who were not associated with the analysis of the first sample. It follows that there was no miscarriage of justice and as the appellant has never sought to withdraw his plea, the plea of guilty should stand.
  3. [78]
    The appeal is dismissed and the decision of the learned Member below is confirmed.
  4. [79]
    In its written submissions the respondent has sought its costs but has provided no submissions in support of the making of such an order.  Orders are made for the respondent to file and serve any submissions in support of its request for the tribunal to make an order of costs by 4.00 pm on Tuesday 17 April 2018 and for the appellant to file and serve any submissions in reply by 4.00 pm on Tuesday 24 April 2018.

Footnotes

[1] Respondent’s outline of submissions dated 10 March 2017, 2 [8].

[2] Appeal book, tab 4, p 169, QRIC Transcript of Inquiry dated 25 August 2016.

[3] Appeal book, tab 4, p 108, Affidavit of the Appellant sworn 11 October 2016, [46].

[4] Appel book, tab 4, p 182-3, QRIC Transcript of Inquiry dated 25 August 2016.

[5] Pursuant to s 6 and s 7 of the Racing Act 2002 (Qld), reprinted as in force on 1 July 2016, the Queensland All Codes Racing Industry Board continues in existence but under the name Racing Queensland Board.

[6] Rattray v Queensland Racing Integrity Commission [2016] QCAT 439, [32].

[7] Upheld on appeal.

[8] The Rules of Racing incorporated the Australian Rules of Racing, made by the Australian Racing Board.  Australian Rules are described as ARs.

[9] Kavanagh v Racing Victoria Ltd [2017] VCAT 386.

[10] Ibid.

[11] Kavanagh v Racing Victoria Ltd [2017] VCAT 385, [591]-[592]; Racing Victoria Ltd v Kavanagh [2017] VSCA 334, 22 [65].

[12] Kavanagh v Racing Victoria Ltd [2017] VCAT 385, [596].

[13] Kavanagh v Racing Victoria Ltd [2017] VCAT 386.

[14] Kavanagh v Racing Victoria Ltd [2017] VCAT 386, [632]; Racing Victoria Ltd v Kavanagh [2017] VSCA 334, 25 [74].

[15] Racing Victoria Ltd v Kavanagh [2017] VSCA 334, 26 [78].

[16] Kavanagh v Racing Victoria Ltd [2017] VCAT 386 [513]-[514]; Racing Victoria Ltd v Kavanagh [2017] VSCA 334, 26 [77].

[17] Racing Victoria Ltd v Kavanagh [2017] VSCA 334, 27 [79].

[18] Ibid, 29 [86].

[19] Ibid, 27 [80]-[81].

[20] Ibid, 27 [82].

[21] Racing Victoria Ltd v Kavanagh [2017] VSCA 334.

[22] Racing Act 2002 (Qld), s 9AZ.

[23] Appeal book, p 303, Accreditation certificate issued pursuant to s 132 of the Racing Act, dated 22 September 2015.

[24] Racing Act 2002 (Qld), reprinted as in force on 1 July 2006, s 359.

[25] State of Queensland through Department of Employment, Economic Development and Innovation.

[26] Section 412 of the Racing Act 2002 (Qld), reprinted as in force on 1 December 2009, resulted in Queensland Harness Racing Limited replacing the Queensland Harness Racing Board.

[27] Section 427 of the Racing Act 2002 (Qld), reprinted as in force on 1 July 2010, resulted in Racing Queensland Limited replacing Queensland Harness Racing Limited.

[28] Exhibit 14, bundle of correspondence relating to extension of Service Agreement.

[29] Exhibit 13, Queensland All Codes Racing Industry Board Instrument of Delegation, clause 3; schedule 1.

[30] Acts Interpretation Act 1954 (Qld), s 27A(3).

[31] Rattray v Queensland Racing Integrity Commission [2016] QCAT 439, [29]; These reasons at [28].

[32] Transcript of Proceedings, Ken Lindsay Rattray v QRIC (QCAT, OCR150-16, Member Roney QC, 7 November 2016), p 1-40.

[33] Transcript of Proceedings, Rattray v QRIC (QCAT, APL429-16, Sheridan DCJ, Member King Scott, 29 August 2017), p 1-3.

[34] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 143, s 147.

[35] Filmana Pty Ltd & Ors v Tynan & Anor [2013] QCA 256, [45].

 

Close

Editorial Notes

  • Published Case Name:

    Rattray v Queensland Racing Integrity Commission

  • Shortened Case Name:

    Rattray v Queensland Racing Integrity Commission

  • MNC:

    [2018] QCATA 39

  • Court:

    QCATA

  • Judge(s):

    Acting President Sheridan J, Member King-Scott

  • Date:

    10 Apr 2018

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Filmana Pty Ltd v Tynan [2013] QCA 256
2 citations
Jump To
Cite 1 - [2013] QCA 256
Cite 2 - [2013] QCA 256
Kavanagh v Racing Victoria Ltd [2017] VCAT 386
6 citations
Jump To
Cite 1 - [2017] VCAT 386
Cite 2 - [2017] VCAT 386
Cite 3 - [2017] VCAT 386
Cite 4 - [2017] VCAT 386
Cite 5 - [2017] VCAT 386
Cite 6 - [2017] VCAT 386
Kavanagh v Racing Victoria Ltd [2017] VCAT 385
2 citations
Jump To
Cite 1 - [2017] VCAT 385
Cite 2 - [2017] VCAT 385
Meissner v The Queen (1995) 184 CLR 132
2 citations
Jump To
Cite 1 - (1995) 184 CLR 132
Cite 2 - (1995) 184 CLR 132
Queensland All Codes Racing Industry Board v Colahan [2015] QCATA 46
2 citations
Jump To
Cite 1 - [2015] QCATA 46
Cite 2 - [2015] QCATA 46
R v Dobie [2010] QCA 34
2 citations
Jump To
Cite 1 - [2010] QCA 34
Cite 2 - [2010] QCA 34
Racing Victoria Ltd v Kavanagh [2017] VSCA 334
10 citations
Jump To
Cite 1 - [2017] VSCA 334
Cite 2 - [2017] VSCA 334
Cite 3 - [2017] VSCA 334
Cite 4 - [2017] VSCA 334
Cite 5 - [2017] VSCA 334
Cite 6 - [2017] VSCA 334
Cite 7 - [2017] VSCA 334
Cite 8 - [2017] VSCA 334
Cite 9 - [2017] VSCA 334
Cite 10 - [2017] VSCA 334
Rattray v Queensland Racing Integrity Commission [2016] QCAT 439
2 citations
Jump To
Cite 1 - [2016] QCAT 439
Cite 2 - [2016] QCAT 439

Cases Citing

Case NameFull CitationFrequency
Darrel William Graham v Queensland Racing Integrity Commission [2019] QCAT 1985 citations
Graham v Queensland Racing Integrity Commission [2021] QCATA 1252 citations
Graham v Queensland Racing Integrity Commission (Costs) [2023] QCATA 972 citations
Rattray v Queensland Racing Integrity Commission (No 2) [2019] QCATA 1492 citations
1

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