Graham v Queensland Racing Integrity Commission
[2021] QCATA 125
•11 November 2021
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 HowardORDERS: 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 – IN GENERAL – JUDGE MISTAKEN OR MISLED – GENERALLY – where there were errors of law by the Tribunal below – where the Tribunal below relied upon a certificate from a non-accredited facility and did not consider relevant evidence – where a failure to consider material evidence can constitute an error of law
ASSOCIATIONS AND CLUBS – RACING CLUBS AND ASSOCIATIONS – GENERALLY – where it was argued that the trainer was careless in his administration of Tripart as the horse did not require its administration at the time of the race – where the trainer was advised to not cease administering Tripart – where the trainer was advised to continue with is feeding regime – where the evidence overall did not support a finding of substantial carelessness
Australian Harness Racing Rules, r 188A(1)(a), r 188A(1)(b), r 190, r 190(1), r 190(4), r 191(1), r 191(2), r 191(3), r 191(6), r 191(7)
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 24(1), s 142
Racing Act 2002 (Qld), s 4, s 5, s 40, s 115(3), s 131, s 131(2)(a), s 131(2)(b), s 131(2)(f), s 132, s 143, s 143(2), s 143(3), s 143(4), s 143(4)(a), s 143(4)(b), s 145, s 145(1), s 145(2), s 145(3), s 145(4), s 146(1), s 146(1)(a), s 146(1)(b), s 146(2), s 146(3), s 146(4), s 147, s 147(1), s 147(2), s 147(3), s 147(4), s 149, s 352A, s 352A(1), s 352A(2), s 352A(3)
Chopra v Department of Education and Training (2020) 60 VR 505
Collector of Customs v Agfa-Gevaert Ltd (1996) 141 ALR 59
Collector of Customs v Pozzolanic Enterprises Ltd (1993) 43 FCR 280
Eagil Trust Co Ltd v Piggott-Brown [1985] 3 All ER 119
Ericson v QBSA [2013] QCA 391
Harrison v Meehan [2017] QCA 315
Hooper v QRIC [2017] QCAT 236
McPhee v S Bennett Ltd (1934) 8 WCR 372
Mifsud v Campbell (1991) 21 NSWLR 725
Minister for Immigration v Li [2013] HCA 18, (2013) 297 ALR 225
Nexus Adhesives Pty Ltd v RLA Polymers Pty Ltd (2012) 97 IPR 160, [2012] FCAFC 135
Racing Victoria v Kavanagh [2017] VSCA 334
Rattray v Queensland Racing Integrity Commission [2018] QCATA 39
Scott v QRIC (No 2) [2018] QCAT 301
Urquart v Partington [2016] QCA 87
Vetter v Lake Macquarie City Council (2001) 202 CLR 349
Wallace v Queensland Racing [2007] QDC 168
APPEARANCES & REPRESENTATION:
Applicant/Appellant:
Murdoch JE QC, instructed by O’Connor Ruddy & Garrett Solicitors
Respondent:
Anderson RJ QC, instructed by Turks Legal
REASONS FOR DECISION
JUDGE ALLEN QC, DEPUTY PRESIDENT:
Introduction
I am grateful for the comprehensive statement in the reasons of Senior Member Howard of the factual background to this matter, the relevant evidence, the relevant legislative provisions and the competing contentions of the parties. The Senior Member’s detailed statement and analysis of those matters permit me to state my reasons for allowing the appeal in much shorter form than would otherwise have been the case.
The appellant has enumerated numerous grounds of appeal. In my view, the decisive grounds of appeal are as follows:
5.The decision failed to observe and apply Chapter 4, particularly sections 147 and 149 of the Racing Act 2002 (“the Act”). The Certificates of Analysis relied on by the Respondent were non-compliant with those statutory requirements and, accordingly, should not have admitted [sic] into evidence.
9.The decision relies on cases from other states to support findings that, if the Certificates of Analysis are materially flawed and thereby inadmissible, the results of the analysis which lays behind the Certificates can be relied on in any event.
Such grounds raise questions of law as to the proper construction and effect of the provisions of chapter 4, part 4 of the Racing Act 2002 (Qld) (the Racing Act) and rule 191 of the Australian Harness Racing Rules (the Rules), such that leave to appeal is not required.[1] I would, pursuant to section 146 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), allow the appeal on those grounds, set aside the decision of the learned Senior Member at first instance and substitute a decision setting aside the decision of the respondent and substituting a decision that the appellant is not guilty of the charge of contravening rule 190 of the Rules.
[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142.
The provisions of rule 191 of the Rules must be construed in the context of the legislative scheme established by those Rules and the provisions of the Racing Act as enacted at the relevant times. To the extent of any inconsistency between a provision of the Racing Act and the Rules, the provisions of the Racing Act prevail.[2] The error of the learned Senior Member at first instance was to fail to recognise the primacy of provisions of the Racing Act over the Rules when considering whether any of the four evidentiary certificates relied upon by the respondent could be relied upon in proof of the charge against the appellant. A proper consideration of the effect of the provisions of chapter 4, part 4 of the Racing Act should have led the learned Senior Member to conclude that the respondent’s failure to comply with those provisions meant that none of the evidentiary certificates were available, pursuant to rule 191 of the Rules or at all, in proof of the charge against the appellant. In the absence of those certificates having probative force, there was no evidence to prove the charge against the appellant and the correct and preferable decision of the Tribunal[3] should have been to set aside the decision and substitute a decision[4] that the appellant was not guilty of the charge that he breached rule 190 of the Rules.
[2]Racing Act, s 91(5).
[3]Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 19 and 20.
[4]Ibid, s 24(1).
Legislative scheme
Senior Member Howard has detailed the relevant provisions of the Racing Act, the Collection Procedures and the Rules.[5] I gratefully adopt Senior Member Howard’s analysis of the legislative scheme and refer, by way of emphasis, to the following provisions.
[5]At [55]-[78].
Sections 146 to 149 comprise chapter 4, part 4, division 3 of the Racing Act which is headed “Analysing things delivered for analysis”. They mandate a process for the handling of, documentation of, and certification of the results of analysis of “a thing for analysis” that “has been delivered to an accredited facility”. They also provide, in certain circumstances, for a process of forwarding of the “thing” to “a secondary facility for the accredited facility”.
Section 143 is found in chapter 4, part 4, division 2 of the Racing Act which is headed “Taking and dealing with things for analysis” and provides as follows:
143 Way control body may take or deal with a thing for analysis
(1)This section applies if a control body’s policy about drug control relating to licensed animals provides for the analysis of things.
(2)If the results of the analysis are to be used by the control body only for research or survey purposes, the control body may take or deal with the thing in a way the control body considers is consistent with the research or survey purposes.
(3)If the results of the analysis are to be used by the control body for a purpose other than for research or survey purposes, the control body must take and deal with the thing for analysis under the integrity board’s procedures mentioned in section 115(3) as in force at the relevant time.
Note—
See section 352A (Integrity of analysis of thing).
(4)The control body must deliver the thing for analysis to—
(a)if the thing is to be delivered under an agreement between the control body and an accredited facility—the accredited facility that is a party to the agreement; or
(b)otherwise—another facility that has the capacity to analyse things relating to licensed animals if the delivery is approved by an integrity officer.
The applicable requirements in sub-sections (3) and (4) are mandatory, as compared to the permissive provisions of sub-section (2) had analysis been for research or survey purposes.
The “thing for analysis”, within the terms of section 143(4) of the Racing Act, was the pre-race urine sample taken from Mafuta Vautin on 30 May 2015 (the sample) or, more accurately, that part of the sample submitted to a respective facility by the control body at the respective time.
It was not contended by the respondent, and there was no evidence upon which it could be concluded, that the delivery of the samples to any of the facilities was approved by an integrity officer pursuant to section 143(4)(b) of the Racing Act.
Section 143(4)(a) thus required that any part of the sample for analysis be “delivered under an agreement between the control body and an accredited facility” to “the accredited facility that is a party to the agreement”. “Agreement” means an agreement entered into under section 40 of the Racing Act.[6]
[6]Racing Act, s 142.
Section 145 of the Racing Act then relevantly restricted interference with the container in which the sample was held to interference by “an analyst employed by an accredited facility or a secondary facility for an accredited facility” as part of the process of analysis by that analyst.
The following provisions of chapter 4, part 4, division 3 of the Racing Act, dealing with the analysis of the sample and certification of the results of analysis are all predicated on the sample having “been delivered to an accredited facility”[7] or, in certain circumstances, forwarded on to a secondary facility for the accredited facility.
[7]Ibid, s 146(1).
It can readily be seen that the statutory scheme established by the Racing Act for the analysis of things such as the sample taken from Mafuta Vautin is predicated on accreditation of facilities and analysts authorised to carry out such analysis and accreditation of veterinary surgeons authorised to certify the results of that analysis.[8] Unsurprisingly, such provisions and the contents of the Collection Procedures are also directed towards maintaining the integrity of samples taken for analysis, including provision for means of taking and storing samples, maintaining and recording a chain of custody and prohibiting interference with samples by other than those expressly authorised to do so.
[8]Ibid, s 40; See also provisions of chapter 4, parts 2, 3 and 4.
There are sound policy reasons why the legislature would choose to enact such a statutory scheme regulating the admissibility of evidence by way of certificates of analysis. Because of the terms of rule 191 of the Rules, such certificates have a profound effect in proof of a presentation offence of the type with which the applicant was charged. There is good reason why the evidentiary value of certificates should depend upon full compliance with processes for collection and testing of samples by accredited persons at accredited facilities.
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 Rules
Racing 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.
The RSC certificate dated 26 June 2015 followed dealings by persons employed by that facility with the sample between its delivery to the facility on 1 June 2015 and the production of the certificate on 26 June 2015. Those dealings included receipt of the sample on 1 June 2015 and what the learned Senior Member at first instance described as “screening analysis” between 2 and 3 June 2015. The delivery of the sample to the RSC on 1 June 2015 was not authorised by section 143(4) of the Racing Act and was contrary to the legislative mandate as to what was required to be done with the sample. The dealings with the sample between 1 and 3 June 2015 were not authorised by sections 146(1) and 147 of the Racing Act. Section 149 of the Racing Act was not engaged so as to authorise a certificate of analysis according to its terms.
The RSC certificate dated 26 June 2015 was not produced according to the requirements of the Racing Act applicable to the use of certificates in proof of proceedings such as those brought against the appellant. It was not admissible as proof, pursuant to rule 191 of the Rules, in those proceedings and the learned Senior Member at first instance erred in finding otherwise.
ChemCentre certificate dated 7 July 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 “B sample” aliquot of the sample that was delivered to ChemCentre for analysis.
ChemCentre did become an “accredited facility” for any purpose pursuant to the Racing Act before 22 September 2015.
For the reasons already discussed above in respect of the RSC certificate dated 26 June 2015, the ChemCentre certificate dated 7 July 2015 was not produced according to the requirements of the Racing Act applicable to the use of certificates in proof of proceedings such as those brought against the applicant. It was not admissible as proof, pursuant to rule 191 of the Rules, in those proceedings.
I agree with the conclusion of the learned Senior Member at first instance to the same effect.[13]
[13]Reasons for decision (‘RFD’), [29].
RSC certificate dated 5 January 2016 and RASL certificate dated 8 March 2018
It appears that it was a further aliquot of the “A sample” that was analysed by the RSC with the results of such analysis contained in the certificate dated 5 January 2016.
There appears to be some doubt, and a subject of dispute between the parties, whether it was a further aliquot of the “A sample” or the “B sample” that was analysed by the RASL with the results of such analysis contained in the certificate dated 5 January 2016. Something might turn on that if one of the three earlier certificates was admissible as proof for the purposes of rule 191 of the Rules. But in my view none of the four certificates are admissible as proof for the purposes of rule 191 of the Rules.
I have already expressed my reasons for the inadmissibility of the 2015 certificates. Those same reasons have the effect of rendering the subsequent certificates inadmissible as proof for the purposes of rule 191 of the Rules. The unauthorised dealings with the sample (comprising the “A sample” and “B sample” aliquots) had the effect of rendering subsequent compliance with the legislative requirements for the admissibility of results of analysis of the sample impossible. It was no longer possible for “the thing for analysis” within the terms of section 143(4) of the Racing Act to be delivered to an accredited facility for analysis. That thing (the pre-race urine sample taken from Mafuta Vautin on 30 May 2015 comprising an “A sample” and a “B sample”) was delivered to the RSC and ChemCentre in 2015. The nature of that thing was then altered by sampling and analysis. At the very least it was diminished in that any subsequent testing was of a smaller aliquot/s of the A and/or B samples. I consider that the nature of the thing was also altered, having regard to the legislative intent in maintaining the integrity of such samples, by dealings with the samples in ways not authorised by the Racing Act. The certificates of 2016 and 2018 did not follow the procedures mandated by chapter 2, part 4, divisions 2 and 3 of the Racing Act and were not admissible as proof, pursuant to rule 191 of the Rules, in the proceedings.
The learned Senior Member at first instance also found that the 2016 certificate was not admissible as proof, pursuant to rule 191 of the Rules, but for different reasons concerning the wording of rule 191(2) and the identity of the persons who analysed the sample and certified the results of the analysis.[14] Given the conclusions I have reached as to the inadmissibility of the certificate, there is no utility in further considering this alternative ground for its inadmissibility.
[14]RFD, [40].
The learned Senior Member at first instance found that the 2018 certificate was admissible as proof, pursuant to rule 191 of the Rules. I find that the learned Senior Member erred in that regard for the reasons I have stated.
The “substantial compliance” saving provisions of section 352A of the Racing Act cannot lead to any contrary conclusions as to the admissibility of the certificates. The terms of section 352A(2) and the note to section 143(3) make it clear that section 352A is concerned with a departure from the Collection Procedures and does not deal with the non-compliance with provisions of the Racing Act that renders the certificates inadmissible as proof in this matter. That conclusion is supported by the requirement in section 352A(3) that evidence of substantial compliance come from “an accredited analyst, or accredited veterinary surgeon, for an accredited facility”.
Given the conclusions I have reached that none of the certificates were, prima facie, admissible as proof pursuant to rule 191 of the Rules, the possible operation of the exclusionary provision of rule 191(7) does not arise for consideration. However, if I am wrong about that, I agree with Senior Member Howard that the non-compliance with the provisions of chapter 4, part 4 of the Racing Act would amount to “the certification procedure or any act or omission forming part of or relevant to the process resulting in the issue of” the certificates being “materially flawed” such that none of the certificates could possess evidentiary value or establish the offence.
Use of the results of analysis otherwise as proof of the offence
The learned Senior Member at first instance held that, in the event that, contrary to his conclusion, the certificates of 26 June 2015 and 8 March 2018 did not constitute, respectively, prima facie and conclusive evidence pursuant to rule 191, rule 191(6) nevertheless permitted evidence of the results of analysis resulting in those certificates as evidence otherwise proving the offence, citing the decision of the Victorian Court of Appeal in Racing Victoria v Kavanagh[15].
[15][2017] VSCA 334.
I respectfully disagree with that conclusion. Kavanagh is readily distinguishable in the absence of provisions in the relevant Victorian legislation cognate with the provisions of chapter 4, part 4 of the Racing Act. On a proper construction of the relevant provisions of the Racing Act, they covered the field insofar as the admissibility of evidence of results of analysis is concerned. Such a construction does not permit the conclusion that, notwithstanding non-compliance with the provisions of chapter 4, part 4 of the Racing Act, the respondent might nevertheless use the results of analysis undertaken contrary to those provisions in proof of a charge. Such a conclusion is contrary to the plain wording and readily discernible purpose of the provisions. The learned Senior Member at first instance erred in concluding otherwise.
Other proposed grounds of appeal
Ground 1 is a broad contention of error by the learned Senior Member at first instance in concluding that the evidence was such as to establish the charge against the appellant. It does identify any question of law and should be characterised as raising a mixed question of law and fact such that leave to appeal is required.[16] The ground raises no important question of general importance and leave is not required to correct any substantial injustice to the appellant. I would refuse leave to appeal on such ground.
[16]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142.
Grounds 2 to 4 and 12 attack the reasoning of the Tribunal in its ultimate conclusion that the results of analysis resulting in the certificates of analysis established proof of the charge against the applicant. They refer to issues raised in evidence, including expert evidence, as to a distinction between “organic” and “inorganic” cobalt, the presence of cobalt in vitamin B12 supplements and the possible unreliability of results of analysis due to dehydration of the horse at the time of sampling of urine. Such grounds should be characterised as raising questions of fact or questions of mixed law and fact such that leave to appeal is required.[17] Leave is not required to correct any substantial injustice to the appellant. Further, to the extent that I have considered such matters, I am of the view that the learned Senior Member’s conclusions were reasonably open on the evidence and that such grounds would enjoy limited prospects of success. I would refuse leave to appeal on such grounds.
[17]Ibid.
Grounds 10 and 11 do raise questions of law but those questions have already been answered in disposition of ground 5 and accordingly no further separate consideration of those grounds is required.
Grounds 6 to 8, 13 and 14 raise further arguments relating to the issue of admissibility of the certificates of analysis as proof pursuant to rule 191 of the Rules. They identify no questions of law in addition to those already answered in disposition of ground 5 and should be characterised as raising questions of fact or mixed questions of law and fact such that leave to appeal is required.[18] No further consideration of such grounds is required to deal with the substantial merits of the appeal or correct any substantial injustice to the appellant and I would refuse leave to appeal on such grounds.
[18]Ibid.
Ground 15 alleges error of law by reason of manifest excessiveness of the penalty substituted by the learned Senior Member at first instance. It should be characterised as raising a mixed question of law and fact such that leave to appeal is required.[19] Given the appeal is being allowed and a decision of acquittal substituted, there is no utility in granting leave to appeal on such ground. It does not raise a question of general importance and leave is not necessary to correct any substantial injustice to the appellant. Furthermore, on my consideration of the reasons of the learned Senior Member at first instance, I discern no reasonable prospects of the appellant establishing specific error in the reasoning of the learned Senior Member regarding penalty or establishing that the penalty substituted by the Tribunal was manifestly excessive. I would refuse leave to appeal on ground 15.
SENIOR MEMBER HOWARD:
[19]Ibid.
Part 1: Background
Mr Darrel William Graham has been involved in the horse racing industry as a licenced driver and trainer. Mr Graham faced disciplinary charges arising from events on 30 May 2015 when he presented the gelding Mafuta Vautin (Mafuta Vautin or the horse) for a harness race at Albion Park raceway. Mafuta Vautin finished the race in first position. A pre-race urine sample taken from the horse was later analysed for cobalt. The maximum cobalt level allowed under the Australian Harness Racing Rules (AHRR) was then 200 micrograms per litre in urine.
Mr Graham faced a disciplinary charge in the following terms:
…that Mr Graham presented MAFUTA VAUTIN to race in Race 5 at Albion Park on 30 May 2015, when a pre-race urine sample taken from that gelding was found, upon analysis, to contain the prohibited substance Cobalt above the prescribed threshold.[20]
Initially, racing stewards found the charge substantiated and imposed a sanction of 15 months disqualification upon him. A review by QRIC confirmed the stewards’ decision. Mr Graham sought external review of the disciplinary decision in QCAT pursuant to the Racing Act 2002 (Qld) (the Racing Act or the Act). Following four days of hearing, the Tribunal made a decision on 31 July 2019 in effect confirming substantiation of the charge and suspending Mr Graham’s driver’s licence and trainer’s licence for 12 months.
[20]Section 21(2) documents, page 6 Steward’s Report 25 August 2016.
Mr Graham appeals the substantiation of the disciplinary charge and the sanction imposed upon him. He contends that the Tribunal erred in law in a myriad of stated ways in determining the review. QRIC contends that no appellable error is demonstrated in the appeal.
For the reasons explained below, I would allow the appeal on the basis of error of law and set aside the Tribunal’s decision. I would substitute a decision that the disciplinary charge is not established.
The grounds of appeal
Because they are lengthy, for convenience, the grounds of appeal are reproduced in Annexure A.
Most issues raised on appeal relate to the findings in substantiation of the disciplinary charge. Four primary issues are raised in relation to substantiation. The first is whether the Tribunal adopted the proper construction of the relevant legislative scheme. This issue is raised in challenging the admissibility of certificates of analysis. The other issues relate to whether certain findings made by the Tribunal were open on the evidence; whether the Tribunal failed to consider material evidence; and whether the Tribunal failed to deal with material issues. In relation to sanction, the issue raised is whether the sanction imposed was manifestly excessive.
At the commencement of the hearing of the appeal proceeding, Mr Graham’s representatives confirmed that all grounds of appeal are argued as errors of law.
The courts have not found it an easy task to formulate a test of universal application to explain the distinction between questions of law and questions of fact and questions of mixed law and fact. In Collector of Customs v Pozzolanic Enterprises Ltd,[21] the Full Federal Court attempted to explain the distinction between questions of law and questions of fact by reference to general propositions (although qualifying one of the propositions). The High Court of Australia, in Collector of Customs v Agfa-Gevaert Ltd[22] said that while general explanations may often assist, they are not of universal utility.
[21](1993) 43 FCR 280; 115 ALR 1.
[22]141 ALR 59, 63.
In Chopra v Department of Education and Training[23] the Victorian Court of Appeal, (recently cited by the Queensland Court of Appeal in Crime and Corruption Commission v Andersen & Anor[24]) summarised as follows:
The principles for distinguishing between questions of law, questions of fact and mixed questions of law and fact are well established. However, those principles are difficult to apply in practice. What is the proper meaning, as a matter of construction, of a statutory provisions is usually a question of law. Ordinarily, whether facts fully found fall within a statutory provision, properly construed, is a question of law. However, where a statute uses words according to their ordinary meaning and it is reasonably open to hold that the facts as found fall within those words, the question whether they do or not is one of fact.[25]
(footnotes omitted)
[23](2020) 60 VR 505.
[24][2021] QCA 222, [37].
[25](2020) 60 VR 505, 528, [88].
Argued solely as errors of law, I make the observation that the grounds of appeal could be drafted with greater clarity. That said, I would allow the appeal on the basis of error of law in construction of the statutory scheme for the reasons later explained.
To the extent that I am wrong in so characterising the grounds, if it was necessary to do so, I would grant leave to appeal in light of material error identified and the substantial injustice that would result if the error identified was not corrected.
The appeal process
Section 146 of the QCAT Act provides for the manner of deciding an appeal on a question of law only. An appeal, on a question of law only, is an appeal in the strict sense: there is no element of rehearing in s 146.[26] On the other hand, leave to appeal is required in respect of a question of fact or a question of mixed law and fact: s 142. If leave is granted, (because of arguable grounds of error and a substantial injustice requires correction), the appeal must be decided by way of rehearing by the appeal tribunal: s147.
[26]Ericson v QBSA [2013] QCA 391, [12]–[13]; Albrecht v Ainsworth [2015] QCA 220, [94] (although the decision was overturned on appeal in the High Court of Australia, the appeal did not affect the point in respect of which the decision is relied upon here). Cf. appeals against a decision on a question of fact or mixed law and fact are decided by way of rehearing pursuant to s 147.
In deciding an appeal in the strict sense, if the error of law disposes of the proceeding in its entirety, the appeal tribunal may confirm or amend the decision or substitute its own decision.[27] Further, if it identifies an error of law, it may substitute its own decision based on the material before the tribunal.[28] Otherwise, the appeal tribunal may set the decision aside and return the matter to the tribunal for determination according to law.
[27]Ericson v QBSA [2013] QCA 391, [12]–[13]; Albrecht v Ainsworth [2015] QCA 220, [94]; Harrison v Meehan [2017] QCA 315, [46]–[50].
[28]Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73; Allesch v Maunz (2000) 203 CLR 180, [22]; Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541, 556; Albrecht v Ainsworth [2015] QCA 220, [94]
The Court of Appeal has said that the appeal tribunal must determine all questions raised in an appeal argued before it,[29] although it need not necessarily discuss distinctly each of the questions if it is sufficiently clear how it reached its conclusions.[30] In my reasons for decision, I have discussed the substance of the grounds raised.
Part 2: The legislative framework provided for in the Racing Act and associated statutory instruments
[29]Urquart v Partington [2016] QCA 87, at [84-86].
[30]Harrison v Meehan [2017] QCA 315, at [46-50].
It is not contentious that the relevant version of the Racing Act 2002 (Qld) is the version current at 1 July 2014 and the relevant version of the Australian Harness Racing Rules (AHRR) is as amended up to and including 13 October 2014. References throughout these reasons for decision to the Racing Act and the AHRR are to these relevant versions unless otherwise stated.
The Racing Act
The main purposes of the Racing Act include maintaining public confidence in the racing of animals for lawful betting; and ensuring the integrity of all persons involved in racing, as well as the welfare of animals involved in racing.[31]
[31]Racing Act ss 4 and 5.
A control body has powers for its code of racing.[32] ‘Harness racing’ is a code of racing.[33] A ‘code of racing’ in relation to a control body is the code stated in the approval for the control body.[34] A control body must enter an agreement with an accredited facility for scientific and professional services for analysing ‘things relating to licensed animals for the presence of drugs and other substances.[35] A control body may make policy for its code of racing[36] and it must make rules of racing for each code of racing[37] consistent with the Act and any relevant policy.[38] To the extent of any inconsistency between the Act and the rules, the Act prevails over the rules.[39] Policies and rules of racing are statutory instruments.[40]
[32]Ibid s 34.
[33]Ibid sch 3, ‘code of racing.’
[34]Ibid sch 3, ‘code of racing’.
[35]Ibid s 40.
[36]Ibid s 80.
[37]Ibid s 91(1).
[38]Ibid s 91(4).
[39]Ibid s 91(5).
[40]Ibid s 79.
Chapter 4 is entitled ‘Integrity Control.’ The Racing Animal Welfare and Integrity Board (the Integrity Board) is established under Chapter 4, Part 1.[41] The Integrity Board’s functions include developing, adopting and publishing procedures about the manner in which things taken for analysis are taken and dealt with.[42] Relevantly, the Integrity Board has developed ‘The Collection Procedures.’
[41]Ibid s 114.
[42]Ibid s 115(3).
Accreditation of facilities is provided for in Chapter 4, Part 2. The chief executive may accredit a facility only if satisfied of specified matters,[43] including that its security systems ensure the integrity of analysis,[44] that its staff have the necessary expertise,[45]and other requirements under a regulation, including for quality assurance procedures, are complied with.[46] An accreditation certificate for a facility must set out the name of the facility; the name of the person who holds the accreditation; the name/s of each person who may take delivery of things for analysis; and is an accredited analyst or an accredited veterinary surgeon for the facility.[47] Similar details are required for any secondary facility for the accredited facility. Part 3 provides for disciplinary proceedings against accredited facilities, including for contravention of a provision of the Act, irrespective of whether the provision breached provides for the act to constitute an offence.[48]
[43]Ibid s 131.
[44]Ibid s 131(2)(a).
[45]Ibid s 131(2)(b).
[46]Ibid s 131(2)(f).
[47]Ibid s 132.
[48]Ibid s 135.
Of key importance here is Chapter 4, Part 4, entitled ‘Dealing with, and analysis of, things.’ It is set out in three divisions. Division 1 contains definitions for Part 4. ‘Deal’, is defined to mean ‘in relation to a thing for analysis, means mark, seal or deliver the thing for analysis’.[49]
[49]Ibid s 142.
Division 2 is entitled ‘Taking and dealing with things for analysis’. Section 143 applies if a control body’s policy about drug control regarding licensed animals provides for analysis of things. Pursuant to s 143(3), if results of analysis are to be used for a purpose, other than research or survey purposes, the control body must take and deal with the thing for analysis under the Integrity Board’s procedures referred to in s 115(3) (that is, The Collection Procedures).
Pursuant to s 143(4), the control body must deliver the thing for analysis to either:
(a)If the thing is to be delivered under an agreement between the control body and an accredited facility, the accredited facility that is party to the agreement; or
(b)Otherwise, to another facility that has the capacity to analyse things relating to licensed animals if the delivery is approved by an integrity officer.
Section 145 applies to a thing dealt with inter alia under s 143. It provides that (other than an integrity officer or analyst as part of the process of allowing things to be analysed),[50] a person must not interfere with a container in which a thing is placed by a control body under s 143 without a reasonable excuse. [51] A maximum penalty of 600 penalty units is specified. For section 145, ‘interfere with, a container’ means to open, alter or break the container or seal on the container or remove a mark or seal.[52] Relevantly, the prohibition does not apply to an analyst who interferes with the container as part of the process of allowing the thing to be analysed.[53] ‘Analyst’ is defined for s 145, to mean ‘an analyst employed by an accredited facility or secondary facility for an accredited facility.’[54]
[50] Ibid s 142(3).
[51]Ibid s 145(1).
[52]Ibid s 145(4).
[53]Ibid s 145(3).
[54]Ibid.
Chapter 4, Part 4, Division 3 is entitled ‘Analysing things delivered for analysis.’ It provides, among other things, for receipting the delivery of a thing by an accredited facility,[55] giving the thing to an analyst at the accredited facility,[56] and (if it cannot be analysed within a reasonable time) delivering it to an analyst at a secondary facility for the accredited facility.[57] Following analysis of a thing delivered for analysis to an accredited facility which has been the subject of analysis (at the accredited facility or a secondary facility), or receiving the results,[58] the analyst must (unless no drug or code substance was found or was found below the allowable level)[59] give a notice of results[60] to, if the thing was delivered by the control body, the accredited veterinary surgeon for the accredited facility; or, if the thing was delivered by the integrity officer, the integrity officer.[61]
[55]Ibid s 146(1)(a).
[56]Ibid s 146(1)(b).
[57]Ibid s 146(2), (3) and (4).
[58]Ibid s 147(1)
[59]Ibid s 147(4).
[60]Ibid s 147(3).
[61]Ibid s 147(2).
The notice of results must include a certificate signed by an accredited analyst stating all of the specified matters, including information to identify the thing analysed; the place at which, and the day when or period over which, the thing was analysed; relevantly, the fact that a code substance was found; and its name and information requested by the control body about the amount or concentration.[62] If the analyst fails to complete the analysis of the thing, notice of the failure to complete it must similarly be given to the control body or the integrity officer, respectively, stating that there was a failure to do so and the reason for the failure.[63]
[62]Ibid s 147(3).
[63]Ibid s 148.
If the notice of results is given to an accredited veterinary surgeon in accordance with the requirements of the Division, the accredited veterinary surgeon must give a signed certificate to the control body stating the pharmacology of the drug or substance; the effect of using it on the behaviour, performance or physical condition of the type of animal; and other specified information if a drug is found.[64]
[64]Ibid s149.
Chapter 9, ‘Miscellaneous provisions’ includes s 352A, entitled ‘Integrity of analysis of thing’. It applies to disciplinary proceedings taken in reliance upon a relevant certificate of analysis.[65] It applies to specified decisions including decisions made in a tribunal review. In making the decision, it is enough that the decision-maker is satisfied that the method of taking and dealing with a thing for analysis complied with s 143(3) to the extent that the integrity of the analysis was not adversely affected.[66] Evidence of an accredited analyst or accredited veterinary surgeon that the method of taking and dealing with the thing was in substantial compliance with s 143(3) is evidence of substantial compliance, and in the absence of contrary evidence, conclusive evidence of that fact.
[65]Ibid s 352A(1).
[66]Ibid s 352A(2).
The Collection Procedures
As above, the Integrity Board developed ‘The Collection Procedures’ pursuant to s 115(3) of the Racing Act. Version 4 was effective from 1 June 2012. The Collection Procedures provide for the taking of things for analysis for, including, monitoring compliance with the rules of racing.
Part 2 sets out the Racing Act requirements for taking and dealing with things for analysis, reciting sections 143, 144 and 352A. Part 3 sets out protocols for taking and dealing with things for analysis. Relevantly, Protocol A is generally to be used for samples taken for investigating a suspected breach of the control body’s rules. It applies except when it is not practical to split a thing for analysis into two portions at the time of collection.[67] Part 4 provides for a process for taking and dealing with things for analysis under Protocol A. Amongst other things, it provides for uniquely numbered traceable sampling equipment, security of samples, comprehensive records of the chain of custody, and tamper evident tags. It provides prescriptive procedures about who must take possession of samples and deliver them for testing, how that is to be done, to whom they are to be delivered, and the records to be kept.
[67]The Procedures, 3.1.
Part 4 specifies that samples are to be taken in accordance with the appendices. Appendix 2 specifies the ‘Procedure for taking and dealing with urine samples’.[68] Appendix 2 provides for three screw top sample bottles to be used, one of which contains the control solution, stating ‘The control solution is a solution used to detect contamination of the sampling equipment.’[69] ‘Step 3’ provides that, once taken, the sample must be split between the two empty rinsed bottles.[70] It is not controversial that the samples are commonly referred to respectively as the A and B samples and the control.
[68]The Procedures, 4.3.1.
[69]The Procedures, Appendix 2, ‘Urine Collection Equipment’, (c).
[70]The Procedures, Appendix 2, ‘STEP 3 Split the urine sample.’
The samples must be delivered to an accredited facility.
The AHRR
Rule 188A(1) provides for prohibited substances. They are substances capable of directly or indirectly causing an action and/or effect within one or more of specified mammalian body systems, including relevantly, the blood system. [71] Substances that fall within certain specified categories are prohibited substances, including Haematopoietic agents.[72] Rule 188(2) provides that specified substances are excepted from the provisions of Rule 188A(1) when at or below specified levels. Amongst those substances excepted by Rule 188A(2)(k) is cobalt at a concentration at or below 200 micrograms per litre of urine.
[71]Australian Harness Racing Rules r 188A(1)(a) (‘AHRR’).
[72]AHRR r 188A(1)(b).
Rules 15(1)(k) and 189 provides in general terms for testing by racing stewards for prohibited substances.
Under AHRR r 190, a horse must be presented for a race free of prohibited substances, and if it is not, the trainer is guilty of an offence. [73] If not so presented, an offence is committed regardless of the circumstances in which the prohibited substance came to be present.[74]
[73]AHRR r 190(1) and (2).
[74]AHRR r 190(4).
Rule 191 entitled ‘Evidentiary certificates’ is as follows:
(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 of 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 nor 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.
Relevantly, when two certificates are provided which meet the requirements of AHRR 191(1) and (2), the certificates are together conclusive evidence that a horse was presented for a race not free of prohibited substances. AHRR 191(3) contemplates circumstances in which only one certificate meets the requirements, and in which case, it shall be prima facie evidence evidence if sub rule 191(1) only applies.
AHRR r 191(6) provides that r 191(3) does not preclude the fact that a horse was presented for a race not free of prohibited substances ‘being established in other ways.’
That said, AHRR 191(7) provides that notwithstanding the provisions of the rule, certificates do not possess evidentiary value nor establish an offence, if 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.’
Part 3: The appeal against substantiation of the disciplinary charge
It is useful to summarise relevant aspects of the Tribunal’s decision before embarking upon a consideration of the grounds of appeal.
The Tribunal’s decision on substantiation of the disciplinary charges
The Tribunal considered that the AHRR provides for prohibited substances, the testing of horses for its presence, and how its presence might be proved,[75] The learned Member discusses provisions of the AHRR, namely AHRR r 188A and AHRR r 189, and sets out in full AHRR r 191.[76] It observed that Mr Graham’s submissions ‘rest on the validity or evidential value of the four certificates of analysis.’[77]
[75]RFD [5].
[76]Ibid [6]–[10].
[77]Ibid [11].
The Tribunal considered ‘the status of cobalt as a prohibited substance’[78] pursuant to AHRR r 188A. It observes that r 188A(2) provides that the specified substances at or below the amount set out therein are excepted from the general prohibition and that r 188A(2)(k), refers to cobalt at a concentration of 200 micrograms per litre of urine. It said, ‘That evidently presumes that cobalt is a prohibited substance in terms of rule 188A(1).’[79] It goes on then to say that it accepts expert evidence of Professors Mills and Chapman that cobalt is capable of affecting the body system of a horse, in particular the blood system, and that it is a haematopoietic agent.[80]
[78]Ibid [12].
[79]Ibid [13].
[80]Ibid [14].
There were four certificates of analysis:
(i) Racing Science Centre (RSC) dated 26 June 2015;
(ii) ChemCentre dated 7 July 2015;
(iii) RSC dated 5 January 2016; and
(iv) Racing Analytical Services Limited (RASL) dated 8 March 2018.
The Tribunal was satisfied as to substantiation of the disciplinary charge based upon two certificates of analysis before it: the RSC certificate of 26 June 2015 and the RASL certificate of 8 March 2018. It stated that those certificates constitute, under AHRR 191(3), conclusive evidence that the horse was not presented free of a prohibited substance, namely cobalt above the prescribed threshold. [81]
[81]Ibid [45].
Mr Graham’s submissions that each of the certificates was inadmissible
In reaching its conclusion, the Tribunal considered and largely rejected in respect of each certificate, multiple submissions from Mr Graham that each of the four certificates was inadmissible. [82] The arguments and the Tribunal’s conclusions about each of them are summarised in the following paragraphs.
[82]Ibid [11].
The organic and inorganic cobalt argument
In considering each of the certificates, the Tribunal appears to have rejected submissions and related evidence relied upon by Mr Graham, which it characterised as being to the effect that a distinction is to be drawn between the levels of inorganic and organic cobalt in the sample, and that only inorganic cobalt over 200 micrograms can fall within substances prohibited by AHRR rr 188A(1)(a) and/or 188A(1)(b). The Tribunal refers to reliance by Mr Graham on a certificate given by Dr Caldwell, an accredited veterinary surgeon, which stated that inorganic cobalt may act to stimulate the formation of red blood cells.[83]
[83]Ibid [17]–[19], [28], [31], [42].
Relevantly to the argument made by Mr Graham, the Tribunal states that evidence was presented to the effect that vitamin B12 contains organic cobalt and that Tripart, which had been administered to the horse, contained vitamin B12, ‘of which cobalt in organic form is an active component.’[84] The Tribunal records that Professor Mills questioned whether Tripart given the day before could result in high cobalt levels, because B12 disappears quickly through urination.[85]
[84]Ibid [18]
[85]Ibid.
The learned Member, noting that the AHRR makes no distinction between organic and inorganic cobalt, accepted evidence of Professor Mills that organic cobalt in B12 ‘influences the production of red blood cells and as such is capable of directly or indirectly causing an effect within a relevant body system of a horse.’[86] The Tribunal said, and appears to have concluded in respect of this issue, that:
Presumably the then permissible threshold of 200 micrograms took account of the fact that there could quite properly be some absorption of cobalt in organic or inorganic form.[87]
[86]Ibid [19].
[87]Ibid.
The Dehydration Argument
In the case of all four certificates, Mr Graham challenged the reliability of the analysis of the sample because of extreme dehydration of the horse. The Tribunal observed that AHRR r 191, and in particular, the effect of r 191(3) is not qualified by reference ‘to the condition of the horse at the time of testing.’[88] It referred to evidence of Professors Mills and Chapman to the effect that concentration of urine does not ‘impact the capacity to measure the cobalt level.’[89]
[88]Ibid [20].
[89]Ibid [20], [28], [31], [42].
The RSC certificate dated 26 June 2015—the accreditation argument
At the date of delivery (on 1 June 2015) of the sample to RSC for testing, although accredited for other purposes, RSC was not accredited to test for cobalt in urine. It obtained the relevant accreditation on the morning of 25 June 2015.[90]
[90]Ibid [21].
The Tribunal said that Mr Graham argued that, because part of the analysis resulting in the flagging of the sample for further testing for cobalt occurred before 25 June 2015, the certificate of analysis was inadmissible. The certificate stated that testing occurred between 1 and 26 June 2015. [91] The Tribunal said the evidence was to the effect that the earlier testing was ‘screening analysis’[92] and that ‘confirmation analysis’ was completed between the evening of 25 June 2015 and 26 June 2015 and the certificate issued on 26 June 2015.[93] The learned Member said that r 191(1) ‘seems to suggest’ that the ‘crucial point of reference in relation to approval is the time of certification,’[94] whereas for r 191(2) approval was required at the time of analysis and certification.[95]
[91]Ibid.
[92]Ibid [21]–[27].
[93]Ibid [22].
[94]Ibid [24].
[95]Ibid [22].
The learned Member went on to say that in any event, the ‘confirmation analysis’ and certification had occurred after accreditation was obtained, [96] and that ‘in my view, the fact of the earlier “screening analysis” is not relevant.’[97] It appears that the Tribunal considered in referring to the evidence of Ms Nelis about the testing process, that it is ‘evident that the purpose of the screening process is’ to identify samples requiring further analysis.[98] The Tribunal considers this interpretation consistent with terms of AHRR r 191(7) which provides for certificates not to possess evidentiary value where the certification procedure or process was materially flawed, on the basis that:
[26] ….It is to be imagined that it was not intended that rule 191(7) would invalidate an analysis in the present case the ‘confirmation analysis’, that is carried out in accordance with the rules and prescribed procedures and where the process for that analysis was not ‘materially flawed’, simply on the basis that some earlier screening analysis, of a different aliquot of the sample is questionable.[99]
[96]Ibid [25].
[97]Ibid.
[98]Ibid [22], [25].
[99]Ibid [26].
The ChemCentre certificate dated 7 July 2015 – the accreditation argument
The Tribunal accepted that the ChemCentre certificate was not certification for purposes of AHRR 191(1) or (2) because ChemCentre was not an accredited facility at the relevant time under s 132 of the Racing Act. Despite that, the Tribunal considered that it ‘might be considered as evidence going to proof by conventional means that the horse was not presented for a race not free of prohibited substances.’[100]
[100]Ibid [29].
Although specific findings to this effect were not made, on a fair reading, it appears that the learned Member rejected Mr Graham’s arguments that, because the analyst was not an analyst for the purposes of s 145 of the Racing Act, his dealing with the reserve or B sample rendered the B sample unlawfully compromised. The learned Member said that, leaving aside the intended reach of s 145(2), there is nothing in the AHRR which precludes sending a sample for analysis to a laboratory that is not approved by the control body.[101] Again, on a fair reading, the Tribunal appears to have therefore rejected the argument that the process or procedure of subsequent certification was ‘materially flawed’ in this manner within the meaning of AHRR Rule 191(7). [102]
The RSC certificate dated 5 January 2016 – the sample was compromised by unlawful interference with by ChemCentre and the certificate was not signed by the person who performed the analysis
[101]Ibid [30].
[102]Ibid [30].
In relation to the argument that the B sample was unlawfully dealt with or interfered with and therefore compromised for further testing purposes, the Tribunal said that it had earlier addressed the argument.[103]
[103]Ibid [31].
In considering the requirements of r 191(2) of the AHRR, the Tribunal stated that the object of the rule was to ensure that those involved in the second analysis and certification had not been involved in the first analysis and certification (given that the second certificate, if it met all requirements, is conclusive evidence of presentation of a horse not free of prohibited substance pursuant to AHRR Rule 191(3)). Further, it concluded that there was no requirement for the person who conducted the analysis to sign the certificate, provided that the analyser and the certifier both have the relevant approvals.[104]
[104]Ibid [35].
The decision accepted the evidence of Professor Hibbert to disregard the results of the analysis undertaken by Mr Wenzel at the Royal North Shore Hospital in Sydney. This was in error because Professor Hibbert did not challenge Mr Wenzel’s results. Professor Hibbert’s attack was confined to the lack of peer validation of Mr Wenzel’s methodology. The criticism was dealt with in response by Mr Wenzel who gave evidence that he was confident that he had sufficiently verified the reliability of his methodology. There was no evidence before the Senior Member hat contradicted the analytical results of Mr Wenzel’s testing.
The decision failed to observe and apply Chapter 4, particularly sections 147 and 149) of the Racing Act 2002 (“the Act”). The Certificates of Analysis relied on by the Respondent were non-compliant with those statutory requirements and, accordingly, should not have admitted into evidence.
The Analyst’s Certificate signed by Mark Jarrett on 26 June 2015, was erroneously admitted into evidence and relied on by the Senior Member. The Certificate declares that the analysis of the sample at the Racing Science Centre (“RSC”) was conducted between 1 June and 26 June 2015. Contrary to that evidence the Senior Member erroneously found that the analysis was undertaken on 25/26 June 2015. Under the Public Service Act 2008, s26(l)(h), Mr Jarrett, as a member of the public service, in a position of “public trust” who was required to act honestly. Hence, it was not open to the Senior Member to disregard Mr Jarrett’s declaration as to the period over which the analysis took place.
The finding of the Senior Member that no analyses took place before the NATA approval on 25 June 2015 is contrary to the unchallenged evidence before the tribunal. The finding is erroneous in law in that it is directly contradicted by the RSC’s own records of pre 25 June 2015 analysis which were in evidence. In particular, the document headed C13 SCREEN SINGLE which is the second sheet in EX9, (and which was signed As Analyst by Warwick Turner, Senior Chemist on 3 June 2015. states, among other things:
(a)Sample 15-15615 was analysed as per the stated method as a single and the result is listed in the table for Cobalt. The method stated in the box headed “Isolation Method” is:
Inorganic Elements by ICPMS
(b)The result in the same form is expressed in red print as:
SUSPECT FLAG FOR COBALT
(c)The penultimate page in EX9 contains an email dated 3 June 2015 (2.05pm) from Kate Sievers, Senior Chemist, Quality, RSC, to seven other RSC personnel asking them to note:
Sample number 15-15615 is under investigation in the laboratory for Cobalt. Check V36.
(d)A further email from one of the recipients Kim Duffy at 4.29pm on 3 June 2015, addressed to the sender and other recipients of the first email said:
Sample below has been isolated V36 checked and location changed in L1MS.
(a) The decision maker ostensibly overlooked the evidence which contradicts the respondents
evidence that the A portion of the urine sample was analysed overnight on 25/26 June 2015. The evidence was that:
The C13 sample movement record records the A portion of sample 379206 (laboratory number 15-15615) was sent to the ISO freezer on 3 June 2015 after the screening analysis took place. It was taken out of the freezer to SC(Q) Senior Chemist Quality on 26 June 2015.
The deposit of the sample on 3 June 2015 was signed for and witnessed.
The release of the sample on 26 June 2015 was signed for and witnessed.
This documentary evidence made at the time strongly suggests on the evening of 25 June 2015 the A portion of the sample remained in the freezer.
(b)As shown in paragraph [26] of the Reasons, the Senior Members proceeded on the basis that the aliquot of the sample analysed on 25/26 June 2015, was a different aliquot from that subjected to screening analysis. Having regard to the evidence cited in ground 8(a) above, that basis of reasoning was reliant on a false premise.
The decision relies on cases from other States to support findings that, if the Certificates of Analysis are materially flawed and thereby inadmissible, the results of the analysis which lays behind the Certificates can be relied on in any event. The error is established by these factors:
(a)The cases from other jurisdictions are distinguishable because the Queensland racing codes had, at the material time, their own unique statutory regime to regulate the integrity of racing animal swabbing and swab analysis;
(b)Chapter 4 Integrity Control of the Act, as then applicable, was mandatory in prescribing the measures to protect the integrity of the swabbing and testing regime in the racing codes. The relevant parts in the chapter were;
Part 1 Racing Animal Welfare and Integrity Board Part 2 Accreditation of facilities
Part 3 Disciplinary proceedings relating to accredited facility Part 4 Dealing with and analyses of things
(c)As a statutory requirement, the provisions of Chapter 4 prevailed over the provisions in the Australian harness Racing Rules (“AHR”) by reason of s91(5) of the Act where there is an inconsistency;
(d)The Senior Member fell into error by failing to give full force and effect to AHR191, sub-rule (7) in circumstances where the Senior Member was obliged by the sub-rule to exclude the Certificate of Analysis because they do not possess evidentiary value and cannot establish a breach of the rules. Rejection of the Certificates was required because the certification procedure and acts and omissions forming part of and relevant to the process resulting in the issue of the certificates, were materially flawed; and
(e)In any event, there was no evidence from the analysts who conducted the tests which were said to be evidenced by the Certificates.
10.The decision is contrary to law in that it relies on the confirmatory Certificate of Analysis from the ChemCentre in circumstances where the Certificate of Analysis was inadmissible by reason of the following uncontested matters:
(a)The ChemCentre was not at the material time, an accredited facility or accredited secondary facility within the meaning of the Act;
(b)There was no evidence of authorization made by an integrity officer (per sl43(4)(b) of the Act) to send the sample to the ChemCentre;
(c) The Act mandated that the control body deliver the thing for analysis to such a facility as described in (a) and (b) above: sl43(4) of the Act “the control body must deliver the thing for analysis”;
(d) The Act s 115(3) required the Racing Animal Welfare and Integrity Board to develop or adopt procedures about the way things for analysis are to be taken and deal with. The relevant procedures are contained in the Bundle of materials before the Senior Member at 601-646;
(e) Consistent with the requirements of sl43(4)(a) and (b) of the Act, the procedures required analyses at an accredited facility; see diagram 2 - Overview of the Procedures for looking and dealing with things for analyses: and
(f) The provisions of s352A(l) of the Act were not enlivened so as to make the Certificate of Analysis from the ChemCentre admissible.
The Certificates of analysis which were otherwise non-compliant with the provisions of the act, were not, as erroneously found by the decision rescued by AHR191(6). Further, AHR191(7) as a provision of a statutory instrument operates to prevent the non-compliant Certificates of Analysis being admitted into evidence.
The Senior Member erred in law by accepting into evidence the Certificates of Analysis:
RSC Bundle p 65
ChemCentre Bundle p 72
RSC Bundle p 83RASL 8 March 2018 (Affidavit Silvestri EX6 attachment)
(a) on evidence (Ross Wenzel’s Report of 26 July 2018) the sample taken from Mafuta Vautin was so compromised by the state of dehydration of the horse that the urine sample was incapable of yielding a reliable cobalt reading on analyses; and
(b) there was no evidence to contradict the finding of Ross Wenzel as to the state of the sample.
The confirmatory RASL Certificate has no evidentiary value and was erroneously admitted into evidence. Through Senior counsel, the respondent advised the Senior Member that it was the A portion of the urine sample which went to RASL. But the official record tracing the movement of the A sample at the RSC does not record the A sample coming out of the storage freezer at a time proximate to the sample going to RASL: Supplemental Bundle TAB 4. The RASL Certificate should not have been admitted by the Senior Member because it is unclear what sample went to RASL. Going on the official record it cannot have been the urine A sample from Mafuta Vautin;
(a) The decision misinterpreted, and misapplied, AHR191(2) in that the Certificate of
Analysis from the RSC Bundle p83 was admitted into evidence against the Applicant when the Certificate was not, as required by AHR191(2), certified by the person who conducted the relevant analysis for which results are reported in the Certificate;
]
(b) Paragraphs [24] and [25] of the reasons demonstrates that the Senior Member erroneously interpreted AHR191(2) to mean that the approval contemplated by the rule was from NATA when on the proper construction of the rule, the approval was to be from the relevant harness racing control body.
The penalty assessed by the Senior Member was so manifestly excessive as to be erroneous in law. In particular;
(a)The penalty is inconsistent with prevailing penalty standards in prohibited substance presentation cases, which utilize fines in comparable cases of trainers falling into error when feeding supplements from reputable suppliers under veterinary advice;
(b)The penalty was not reflective of the objects and purposes of the rules of harness racing; the weight of evidence was that cobalt was not performance enhancing in horses and it is not harmful to the health of horses. This demonstrates that the Senior Member failed to have any regard to that evidence;
(c)The penalty is contrary to the principles established in the Wallace case in that it erroneously rated the level of culpability of the Appellant;
(d)The penalty is so manifestly excessive relative to penalty precedents for cobalt cases in other Australian jurisdictions in which the Australian Rules of Harness Racing operate, that it demonstrates a failure to exercise the sentencing discretion according to law; and
(e)The penalty is so manifestly excessive in relation to penalty precedents in other horse racing jurisdictions that it demonstrates a failure to exercise the sentencing discretion according to law.
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