Queensland Racing Integrity Commissioner v Wehlow
[2022] QCATA 126
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- Queensland Racing Integrity Commissioner v Wehlow[2022] QCATA 126
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Queensland Racing Integrity Commissioner v Wehlow[2022] QCATA 126
Queensland Racing Integrity Commissioner v Wehlow[2022] QCATA 126
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Queensland Racing Integrity Commissioner v Wehlow [2022] QCATA 126 |
PARTIES: | Queensland Racing Integrity Commissioner (applicant/appellant) v jared wehlow (respondent) |
APPLICATION NO/S: | APL090-21 |
ORIGINATING APPLICATION NO/S: | OCR015-20 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 3 August 2022 |
HEARING DATE: | 18 November 2021 |
HEARD AT: | Brisbane |
DECISION OF: | A/Senior Member Howe |
ORDERS: |
|
CATCHWORDS: | PROFESSIONS AND TRADES – LICENSING OR REGULATION OF OTHER PROFESSIONS, TRADES OR CALLING – THOROUGHBRED TRAINING – where a horse was tested following races – where the samples tested positive for a prohibited substance – where certain specific documentary evidence connecting the samples taken from the horse and sample numbers was missing – whether the missing evidence meant the chain of custody was fatally flawed – where a finding concerning the utility of the chain of evidence was a question of fact to be assessed on all the evidence – where there was certain other evidence connecting the horse to the original samples – whether the Tribunal could be satisfied on the balance of probabilities that the samples were from the horse concerned Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 146, s 147 Briginshaw v Briginshaw (1938) 60 CLR 336 DPP v Spencer [1999] VSC 301 Harrison & Anor v Meehan [2017] QCA 315 R v. Butler [2009] QCA 111 R v Gum [2007] SASC 311 Waltisbuhl v Qld All Codes Racing Industry Board [2016] QCAT 204 |
APPEARANCES & REPRESENTATION: | |
Applicant: | S McLeod QC instructed by QRIC inhouse legal |
Respondent: | M White instructed by Butler McDermott Lawyers |
REASONS FOR DECISION
- [1]Mr Wehlow was the trainer of the thoroughbred Mishnah which presented to race at Rockhampton on 31 January 2019 and on 14 February 2019.
- [2]Post-race urine samples were collected from the horse. Analysis subsequently showed samples, said to be from Mishnah, contained the prohibited substance dexamethasone.
- [3]Mr Wehlow was charged with two breaches pursuant to rule 178 of the Australian Rules of Racing, namely, Mishnah’s urine samples were found to contain a prohibited substance.
- [4]Mr Wehlow pleaded not guilty. An inquiry before Queensland Racing Integrity Commissioner (‘QRIC’) Stewards on 27 November 2019 found him guilty on each charge and he was fined $3,000.00 on each charge. The finding and penalties were confirmed on internal review on 6 January 2020.
- [5]Mr Wehlow applied to the Tribunal for external review. A finding by the Stewards that there was dexamethasone in the samples was not challenged, but whether or not the samples were from Mishnah was put in issue.
- [6]The learned member who determined the review found she could not be reasonably satisfied that the samples tested were the same samples that were taken from Mishnah on the relevant dates. She set aside the findings made below.
- [7]QRIC now appeal that decision. There are three grounds of appeal:
Ground 1
- [8]The Tribunal erred in finding that there was no evidence before the Tribunal connecting the urine samples taken from the horse, Mishnah, on 31 January 2019 and 14 February 2019 with one of the identifying numbers (‘the collection kit number’) on either of the ‘RSC V36 Record of Sample Custody and Dispatch Protocol; A’ (‘the RSC V36 document’) document completed on either 31 January 2019 and 14 February 2019.
Ground 2
- [9]The Tribunal erred in finding there was insufficient identification in the chain of custody of the urine samples taken on 31 January 2019 and 14 February 2019 to properly identify which sample was produced to the Racing Science Centre which generally related to the horse, Mishnah.
Ground 3
- [10]The Tribunal erred in failing to have regard to the totality of the evidence because there was evidence before the Tribunal which demonstrated that the relevant collection kit number referred to in the RSC V36 documents connected the urine samples taken from the horse Mishnah on 31 January 2019 and 14 February 2019.
- [11]Counsel for the Queensland Racing Integrity Commissioner (‘QRIC’) submits ground of appeal 1 concerns a question of law.
- [12]Counsel for Mr Wehlow agrees, but points to grounds 2 and 3 as matters involving issues of fact or mixed law and fact.
- [13]The difference has bearing on both the course of appeal in the Tribunal and orders available to the Appeal Tribunal.
- [14]An appeal on a question of law is determined on the uncontested evidence or primary facts found at first instance. There is no element of rehearing. An appeal involving claimed errors of fact or mixed law and fact however must be decided by way of rehearing. That is a marked difference.
- [15]Where there is a mixture of grounds concerning law, questions of fact or mixed law and fact, it is often expedient to first proceed to consider any grant of leave sought. If leave is refused, grounds of appeal based on error of law may then be considered as required by s 146 QCAT Act, without any rehearing. If leave to appeal is granted however, any ground of appeal based on error of law can usefully be addressed during the course of the rehearing.[1]
- [16]I therefore turn to consider Grounds 2 and 3 together, first. They involve questions of fact or mixed law and fact. Leave to appeal is usually only granted where an appeal is necessary to correct a substantial injustice to the appellant and where there is a reasonable argument that there is an error to be corrected.2
- [17]For the reasons stated I find leave to appeal should be granted in respect of those grounds.
Application for leave to appeal
Grounds 2 and 3
- [18]It is not contested that the samples ultimately tested contained dexamethasone. What is in issue is whether the samples that were tested were the same samples that were taken from the horse Mishnah on 1 January 2019 and 14 February 2019.
- [19]QRIC rely on a number of documents to establish a chain of custody linking the urine tests taken from Mishnah on those dates and the ultimate analysis results.
- [20]I shall address the test taken on 31 January 2019 by itself. The same issues concerning chain of custody of sample arise with respect to the same horse and results following the race at Rockhampton on 14 February 2019.
- [21]Mishnah ran first at Rockhampton on 31 January 2019. A routine urine sample was taken based on that first.
- [22]A document entitled Record of Sample Custody and Dispatch dated 31 January 2019 was put in evidence by QRIC. It recorded 12 blood or urine samples taken that day, presumably from different horses. Each sample was given a unique collection kit number (sample number) and the number noted on the document. One such was collection kit number 444817 in respect of a urine sample taken from a gelding. No names of any horses are recorded against the various collection kit numbers listed however.
- [23]The next document relied on by QRIC is a document entitled Post-Race Sample – Mishnah. It bears no date. It refers to sample number Q444817, the same as one of the collection kit numbers from the Record of Sample Custody and Dispatch document.
- [24]The next document is a document entitled RSC V77 Witness Certification of Re-allocation of Portion B of a Urine Sample. This certifies that urine sample 444817 was divided into two bottles, each numbered 460041.The date of that document is 15 May 2019.
- [25]Next comes a Certificate of Analysis of sample 460041 dated 29 July 2019 certifying that the sample was found to contain dexamethasone.
- [26]Finally, there is a document from the Australian Racing Forensic Laboratory entitled External Confirmation Test Certificate, which is dated 22 August 2019. That confirms the previous analysis of dexamethasone found in sample 460041.
- [27]QRIC claimed this totality of evidence could be considered and a finding made that the horse Mishnah ran in Rockhampton on 31 January 2019 and gave a urine sample on the day which was analysed and found to contain a prohibited substance, dexamethasone.
- [28]There is no dispute between the parties that there was a document missing from the usual to prove continuity of evidence. There would usually have been a document entitled Sample Security Document for Taking a Sample for Analysis completed when samples are taken on site. There was no explanation why that was not available (if taken).
- [29]What also occurred was the complication of spoilage of the sample.
- [30]Urine samples are commonly split into A and B samples from outset. Here sample A was found to be contaminated and unusable when the samples took their turn for testing. Sample B was therefore divided into two new samples A and B in new bottles, and the new sample bottles each given the same new sample number of 460041.
- [31]The learned member said this in her reasons for decision about the chain of custody of the samples:
27 This connection is not specifically made, without the form completed when the sample was taken on site – presumably that had the identifying number recorded on it. I have no evidence before me of the connection between the urine sample taken from Mishnah and one of the identifying numbers on either of the documents titled “Record of Sample Custody and Dispatch” completed on either day that Mishnah ran in Rockhampton.
...
33 I am not satisfied that there is sufficient identification in the chain of custody of the urine samples taken on 31 January and 14 February 2019 respectively to properly identify which sample that was produced to the Racing Science Centre directly relates to the thoroughbred Mishnah.[2]
- [32]The learned member’s reasons for decision went no further.
- [33]As stated, it was not disputed that there was a form missing, the Sample Security Document for Taking a Sample for Analysis document.
- [34]The learned member appears to have concluded that the absence of that document, Sample Security Document for Taking a Sample for Analysis, was fatal to the QRIC case. Indeed, that was the submission made on behalf of Mr Wehlow before the member, that the absence of that document meant the learned member could not be satisfied that the case made by QRIC had been established to the requisite standard.
- [35]QRIC submitted that the learned member could still be persuaded about chain of custody. That the totality of the evidence revealed a sufficient connection between the horse Mishnah which ran in Rockhampton on the days in question and gave urine samples, and the analysed samples ultimately found to contain a prohibited substance, dexamethasone. The document entitled Post-Race Sample – Mishnah was referred to and relied on to fill the gap.
- [36]The member rejected the submission, simply saying without elaboration that there was insufficient identification in the chain of custody to allow her to be persuaded.
- [37]The submission should have been addressed. For the reasons given below, the QRIC submission had merit. The Tribunal fell into error in failing to consider it.
- [38]The Stewards’ decision, which was confirmed on internal review, was set aside. The matter is of some concern to QRIC, which seeks to maintain standards within the industry.
- [39]It is appropriate to grant leave to appeal.
The appeal
- [40]I proceed to determine the appeal by way of rehearing. I address the claimed error of law that there was evidence before the Tribunal connecting the urine samples taken from the Mishnah with one of the identifying numbers on a Record of Sample Custody and Dispatch document.
- [41]Issues concerning the chain of custody of evidence not infrequently arise in criminal prosecutions.
- [42]The matter was addressed in the South Australian Supreme Court in R v Gum [2007] SASC 311 in an appeal challenging the entitlement of the prosecution to put DNA analysis to a jury where a breach of chain of custody involving a DNA sample had occurred:
I acknowledge that the “chain of evidence” on the appellant's reference sample could have been more perfectly proved.... However, there is no rule that requires conclusive proof of a chain of evidence any more than of any other fact in issue. Whether a jury is prepared to draw relevant inferences is for it to say: see Dimitriou v Samuels (1975) 10 SASR 331 per Bray CJ.[3]
- [43]In DPP v Spencer [1999] VSC 301 the following commentary concerning circumstances of inconclusive proof (and whether the issue is one of law or fact) are helpful:
18 Counsel for the respondent, Mr Simon, submitted to the Magistrate that the Certificate of a Botanist should be disregarded, because the failure of the prosecution to call evidence from the person who couriered the material from Benalla Police Station to the State Forensic Science Laboratory meant that there was no evidence of continuity which would allow the magistrate to be satisfied beyond reasonable doubt that the items referred to on the Certificate of the Botanist were, in fact, the items that were located during the search of the respondent's premises.
…
QUESTION 1: WAS CONTINUITY PROVED?
27 Although the first question is couched in terms of it being a question of law, it seems to me to be a thinly disguised example of a question of fact. In my view it should not have been made an appeal question under s.92, but, having been referred to me, I will deal with it on the charitable assumption that the issue raised is a question of law.
...
It was for the learned magistrate to decide whether she was satisfied beyond reasonable doubt as to continuity of the exhibited plant material from the time of seizure to the time of analysis.[4]
- [44]Keane JA also said this in R v. Butler [2009] QCA 111, citing Dimitriou v Samuels and DPP v Spencer:
… whether or not there is reason to doubt the accuracy of the DNA result in 1997 because of the possibility that security or continuity of the samples was not maintained is a question of fact.[5]
- [45]In the matter at hand, the Tribunal was required to be satisfied, to the lower standard of the balance of probabilities, that Mishnah’s urine samples taken on 31 January 2019 and 14 February 2019 were subsequently tested and found to contain dexamethasone, a prohibited substance.
- [46]That finding required a consideration of all the evidence before the Tribunal. A missing document in the chain of custody of documents, which makes proof of the chain of custody inconclusive, will not necessarily prove fatal. It is a factor, most probably a very important factor, for consideration by the Tribunal, but it may be overcome after considering all the evidence.
- [47]That addresses Ground 1 of the appeal.
- [48]There is no challenge to the finding of dexamethasone in the urine samples. The issue is narrowed to whether or not the original urine samples can be connected to the horse Mishnah.
- [49]The documents relied on by QRIC to establish the connection are set out above. Of particular significance says QRIC, is the document entitled Post-Race Sample – Mishnah.
- [50]There are two such documents entitled Post-Race Sample – Mishnah, one in respect of the race on 31 January 2019 after which the horse’s urine sample was given collection kit number 444817, and another in respect of the race on 14 February 2019, recording collection kit number 453941.
- [51]The name of the horse (Mishnah) and the original samples numbers (respectively 444817 and 453941) appear on the same page. The date of the race concerned and the track, Rockhampton, are recorded. The sample being urine (rather than blood) is noted. The reason given is routine, post-race, which accords with the circumstances concerned. The finishing position, first, is stated. The name of the trainer, Mr Wehlow, is also recorded.
- [52]There are issues with the document however.
- [53]The author of the document is unknown and the circumstances of its creation are unexplained.
- [54]The date of the document is unknown.
- [55]The document lists test results for Sample A of collection kit number 444817. There is a recording of “6.0” in respect of Cobalt, and “0.01” for Arsenic. There is no record of any dexamethasone.
- [56]Similarly with respect to the document relating to collection kit number 453941 there is a recording of “8.0” in respect of Cobalt, and “0.01” for Arsenic under Sample A. Again, there is no mention of any dexamethasone. Dr Caldwell gave evidence below on behalf of QRIC that she specifically asked for testing for dexamethasone in both samples.
- [57]Given testing results appear on both documents, it is not unreasonable to surmise that the document was created after testing occurred. That occurred on 29 July 2019 for both samples. If the documents were created after 29 July 2019, what persuasive value do they have in linking the horse Mishnah with the original numbered collection samples?
- [58]If created before that, how do they show sample results, but record no dexamethasone?
- [59]Are the test results shown to be ignored? If the test results are to be ignored as meaningless, how much weight is to be given to the rest of the document? Why should it be regarded as anything more useful than the test results recorded on it?
- [60]None of these issues were explored below. I determine it is unsafe to give other than marginal weight to the unexplained, inaccurate, undated and anonymous Post-Race Sample – Mishnah documents.
- [61]After considering the totality of the evidence, including the Post-Race Sample – Mishnah documents, I am not satisfied on the balance of probabilities that the urine samples taken from the horse Mishnah on 31 January 2019 and 14 February 2019 were those tested and found to contain dexamethasone.
- [62]In doing so I am cognisant of the Brigginshaw principle[6] and have taken into account the strength of the evidence necessary to establish the facts concerned in the circumstances here where:
The consequences 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.[7]
- [63]Mr Wehlow faces a fine of $6,000. To many that might be considered quite significant. Additionally, confirmation of the charges as made out will impact where Mishnah placed in the races concerned, which may cause further detriment.
- [64]A finding of guilt may be of particular significance to Mr Wehlow. I note the evidence by his treating veterinary surgeon, Dr Johnstone, was that in his experience Mr Wehlow was very meticulous in his provision of treatment to his horses, and very particular about the withholding periods notified or suggested to him.
- [65]The appropriate order is to grant leave to appeal but to dismiss the appeal.