Graham v Queensland Racing Integrity Commission - [2021] QCATA 125

QUEENSLAND CIVIL AND

ADMINISTRATIVE TRIBUNAL

CITATION:

Graham v Queensland Racing Integrity Commission [2021] QCATA 125

PARTIES: DARREL WILLIAM GRAHAM

(applicant/appellant)

v

QUEENSLAND RACING INTEGRITY COMMISSION

(respondent)

APPLICATION NO/S:

APL229-19

ORIGINATING APPLICATION NO/S:

OCR174-16

MATTER TYPE:

Appeals

DELIVERED ON:

11 November 2021

HEARING DATE:

17 February 2020

HEARD AT:

Brisbane

DECISION OF:

Judge Allen QC, Deputy President, Presiding Member
Senior Member Howard

ORDERS:
1. The appeal is allowed.

2. The decision of the Tribunal delivered on 31 July 2019 is set aside and the following decision is substituted:

The Tribunal sets aside the decision of the Queensland Racing Integrity Commission and substitutes a decision that the applicant is not guilty of the charge.

ASSOCIATIONS AND CLUBS – RACING CLUBS AND ASSOCIATIONS – DISQUALIFICATIONS – OF OWNER, TRAINER OR JOCKEY – where failure to present a horse free of prohibited substances – where urine sample was above the permitted level of cobalt – where the trainer faced disciplinary charges – where the Tribunal confirmed the substantiation of the trainer’s charge – where the trainer was suspended

ASSOCIATIONS AND CLUBS – RACING CLUBS AND ASSOCIATIONS – GENERALLY – where things for analysis were for disciplinary purposes – where the control body must take and deal with the thing – where a certificate was given in respect of the incorrect entry made by an authorised representative of the control body – where the incorrect entry did not compromise the integrity of the process

ASSOCIATIONS AND CLUBS – RACING CLUBS AND ASSOCIATIONS – GENERALLY – where things for analysis were for disciplinary purposes – where the control body must take and deal with the thing – where it was considered whether the substance was analysed by an accredited facility approved by the Controlling Body – where the statute was interpreted to intend to prevent persons involved in the first analysis from being involved in the second analysis – where the facility at which analysis took place was not an accredited facility and did not comply with statute – where the person who analysed the sample did not meet the statutory definition of an analyst – where the sample was unable to be further analysed due to non-compliance with statute

ASSOCIATIONS AND CLUBS – RACING CLUBS AND ASSOCIATIONS – GENERALLY – where things for analysis were for disciplinary purposes – where certificates of analysis were rendered inadmissible – where it was considered whether there could be proof established in other ways – where the results of the analysis were unable to be used for disciplinary purposes

ASSOCIATIONS AND CLUBS – RACING CLUBS AND ASSOCIATIONS – GENERALLY – where things for analysis were for disciplinary purposes – where it was considered whether the correct sample was tested – where the integrity of the analysis and chain of custody was questioned – where the integrity of the analysis and chain of custody was compromised and rendered subsequent compliance with legislative requirements impossible

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] QCATA 125
Decision Date: 11 November 2021

CaseChat Overview and Summary

The case of Graham v Queensland Racing Integrity Commission involved an appeal against a decision of the Queensland Racing Integrity Commission (QRIC) concerning the admissibility of certificates of analysis in a doping charge against the appellant. The appellant, Graham, challenged the admissibility of the certificates used by the QRIC to prove the charge, arguing that the Racing Science Centre (RSC), which conducted the analysis, was not accredited to analyse equine urine for cobalt prior to a specific date. The Queensland Civil and Administrative Tribunal (QCAT) heard the appeal and had to determine the admissibility of the certificates under the relevant statutory framework.

The central legal issues revolved around the interpretation of the Racing Act and its provisions related to accreditation of laboratories and analysts. Specifically, the court had to determine whether the RSC was an "accredited facility" for the purpose of analysis of equine urine for cobalt before 25 June 2015, and whether any analyst employed by the RSC met the definition of "analyst" as per the Racing Act. The court also needed to assess whether the subsequent accreditation and certification by NATA could cure any deficiencies in the RSC’s prior status.

The QCAT found that the RSC was not an accredited facility for the analysis of equine urine for cobalt before 25 June 2015, as no analyst employed by the RSC met the statutory definition of "analyst" for that specific analysis. The court held that the Racing Act required a continuing process of accreditation, informed by NATA, to maintain the facility's accreditation status. Consequently, the QCAT concluded that the certificates of analysis were not admissible as they were not produced by an accredited facility or by qualified analysts. The appeal was allowed, and the decision of the QRIC was set aside, substituting a decision that the appellant was not guilty of the charge.

The final orders of the tribunal were to allow the appeal, set aside the decision of the QRIC, and substitute a decision that the appellant was not guilty of the charge.

Orders

Orders of the court

1. The appeal is allowed.

2. The decision of the Tribunal delivered on 31 July 2019 is set aside and the following decision is substituted:

The Tribunal sets aside the decision of the Queensland Racing Integrity Commission and substitutes a decision that the applicant is not guilty of the charge.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The admissibility of the certificates of analysis relied on by the respondent in proof of the charge against the appellant must be considered in the context of the statutory scheme.Admissibility of the certificates of analysis as prima facie or conclusive evidence for the purposes of rule 191 of the RulesRacing Science Centre certificate dated 26 June 2015 On all the material before the Tribunal, and according to the way the parties conducted the proceedings at first instance and on appeal, it appears that it was the “A sample” aliquot of the sample that was delivered to the Racing Science Centre on 1 June 2015. There was uncontested evidence before the Tribunal that in mid-2015:(a)the relevant control body was Racing Queensland;(b)the control body had entered into an agreement with the Racing Science Centre (RSC) pursuant to section 40 of the Racing Act;(c)the agreement did not specify the drugs and other substances for which analysis was to be undertaken; (d)the RSC laboratory was independently accredited by the National Association of Testing Authorities (NATA); and (e)prior to 25 June 2015, the RSC was not accredited to analyse equine urine for cobalt.[9][9]Affidavit of S J Stephens affirmed 6 March 2017, paras 6 and 11–13; affidavit of S J Stephens affirmed 16 October 2017, paragraphs 2–5, 8 and 11 (Appeal Books, pages 311-312 and 297-298). The respondent did not seek to argue that, given that the RSC was party to an agreement with Racing Queensland pursuant to section 40 of the Racing Act and accredited pursuant to section 131 of the Racing Act generally[10], it was, even prior to 25 June 2015, an “accredited facility” within the terms of the Racing Act for purposes of dealing with the sample.[11] That is an appropriate concession by the respondent. It is clear the parties to the agreement relied upon NATA certification for capability for analysis of particular things as defining the current scope of accreditation pursuant to section 131 of the Racing Act[12]and that approach is consistent with a consideration of the terms of section 131(2)(a) and (b) and (f) which require satisfaction of certain matters involving “analysing things”. It is clear that the terms of section 131 contemplated a continuing process of accreditation, in practice informed by NATA accreditation, for the facility’s accreditation to analyse certain things. [10]See the accreditation certificate issued pursuant to s 132 of the Act dated 14 November 2013 at Appeal Book, pages 128–129.[11]Rather, the respondent argued, successfully at first instance, and unsuccessfully on appeal, that the “confirmatory analysis” and certification that occurred subsequent to NATA accreditation cured any difficulties of lack of prior NATA accreditation.[12]See the correspondence between the RSC and Racing Queensland dated 1 July 2015 at Appeal Book, pages 122–123. On a proper construction of the relevant provisions of the Racing Act, the RSC was not, prior to 25 June 2015, an “accredited facility” for the purpose of analysis of equine urine for cobalt. Prior to 25 June 2015, no analyst employed by the RSC met the definition of “analyst” in section 145(4) of the Racing Act for the purpose of analysis of equine urine for cobalt.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Graham v Queensland Racing Integrity Commission [2021] QCATA 125
PARTIES:	DARREL WILLIAM GRAHAM
(applicant/appellant)
v
QUEENSLAND RACING INTEGRITY COMMISSION
(respondent)
APPLICATION NO/S:	APL229-19
ORIGINATING APPLICATION NO/S:	OCR174-16
MATTER TYPE:	Appeals
DELIVERED ON:	11 November 2021
HEARING DATE:	17 February 2020
HEARD AT:	Brisbane
DECISION OF:	Judge Allen QC, Deputy President, Presiding Member Senior Member Howard
ORDERS:	1. The appeal is allowed. 2. The decision of the Tribunal delivered on 31 July 2019 is set aside and the following decision is substituted: The Tribunal sets aside the decision of the Queensland Racing Integrity Commission and substitutes a decision that the applicant is not guilty of the charge.
ASSOCIATIONS AND CLUBS – RACING CLUBS AND ASSOCIATIONS – DISQUALIFICATIONS – OF OWNER, TRAINER OR JOCKEY – where failure to present a horse free of prohibited substances – where urine sample was above the permitted level of cobalt – where the trainer faced disciplinary charges – where the Tribunal confirmed the substantiation of the trainer’s charge – where the trainer was suspended ASSOCIATIONS AND CLUBS – RACING CLUBS AND ASSOCIATIONS – GENERALLY – where things for analysis were for disciplinary purposes – where the control body must take and deal with the thing – where a certificate was given in respect of the incorrect entry made by an authorised representative of the control body – where the incorrect entry did not compromise the integrity of the process ASSOCIATIONS AND CLUBS – RACING CLUBS AND ASSOCIATIONS – GENERALLY – where things for analysis were for disciplinary purposes – where the control body must take and deal with the thing – where it was considered whether the substance was analysed by an accredited facility approved by the Controlling Body – where the statute was interpreted to intend to prevent persons involved in the first analysis from being involved in the second analysis – where the facility at which analysis took place was not an accredited facility and did not comply with statute – where the person who analysed the sample did not meet the statutory definition of an analyst – where the sample was unable to be further analysed due to non-compliance with statute ASSOCIATIONS AND CLUBS – RACING CLUBS AND ASSOCIATIONS – GENERALLY – where things for analysis were for disciplinary purposes – where certificates of analysis were rendered inadmissible – where it was considered whether there could be proof established in other ways – where the results of the analysis were unable to be used for disciplinary purposes ASSOCIATIONS AND CLUBS – RACING CLUBS AND ASSOCIATIONS – GENERALLY – where things for analysis were for disciplinary purposes – where it was considered whether the correct sample was tested – where the integrity of the analysis and chain of custody was questioned – where the integrity of the analysis and chain of custody was compromised and rendered subsequent compliance with legislative requirements impossible APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW…