Lambourn v Racing Queensland Ltd
[2013] QCAT 699
•6 September 2013
| CITATION: | Lambourn v Racing Queensland Ltd [2013] QCAT 699 |
| PARTIES: | Trevor Ian Lambourn (Applicant) |
| V | |
| Racing Queensland Ltd (Respondent) |
| APPLICATION NUMBER: | OCR056-13 |
| MATTER TYPE: | Occupational Regulation Matters |
| HEARING DATE: | 1 May 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Favell (Presiding) Adjudicator Bertelsen |
| DELIVERED ON: | 6 September 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The Stewards’ decision made on 28 February 2013 that Mr Lambourn be disqualified for 8 months is set aside. |
| CATCHWORDS: | RACING – where elevated TCO2 levels – Rules 190, 191 Australian Harness Racing Rules – Racing Act 2002 ss 150 -154 Aldrich v Boulton and Ross [2009] QCA 501 Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr J E Murdoch SC instructed by Gabriel Ruddy & Garrett Solicitors |
| RESPONDENT: | Represented by Mr A I James, of Counsel instructed by Racing Queensland |
REASONS FOR DECISION
Paul Favell, Presiding Member
I have had, prior to completing these reasons, the advantage of reading the reasons of Adjudicator Bertelsen. I am grateful for his summary of the facts and references to the applicable Rules and law. I respectfully agree with the findings of fact as set out by Adjudicator Bertelsen.
The review jurisdiction of QCAT is conferred by sections 150 - 154 of the Racing Act 2002.
This review, because of sections 17, 18, 19 and 20 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) is a reviewable decision to be determined by way of a fresh hearing on the merits to produce the correct and preferable decision. There is no presumption that the original decision is correct.[1]
[1] Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58 at [9].
Section 19 of the QCAT Act provides that in a review such as this the tribunal has all the functions of the decision maker. Some of those functions are to maintain public confidence in racing for which betting is lawful and to ensure the integrity of all persons involved with it.[2] In Aldrich v Boulton and Ross[3] the Supreme Court recognised that a Tribunal when conducting a rehearing may give due recognisance of the requirements of the decision maker. In my view it is important to consider previous penalties imposed by Racing Queensland so as to ensure consistency in so far as it is fair to do so. It is also important to have regard to concepts such as general deterrence, applicable circumstances, previous convictions and general sentencing rules.
[2] Racing Act 2002 s 4.
[3] [2009] QCA 501 at [43].
It has been said in the past that:
the presentation rule is a very blunt instrument. Its net catches the guilty and the people but for the rule would otherwise be innocent. Those who take reasonable care and those who flout the rules are dealt with on the same basis as to guilt. The only way of discriminating and providing some sense of justice is by variation of penalties. It is a pretty thin basis upon which to penalise what in many cases are mistakes of honest people but that has been the industry norm and the tribunal will reluctantly for the precedent in this case."[4]
[4] Ryan J [2006] QCAT 6 at page 6.
Rule 190 of the Australian Harness Racing Rules (AHRR) requires a horse to be presented for a race free of prohibited substances. If it is not so presented the trainer of the horse is guilty of an offence.
The Tribunal is confronted by two certificates of the total plasma carbon dioxide concentration (TCO2) in the blood sample taken from Forced Entry. One recorded a TCO2 in excess of the prescribed limit and the other recorded a TCO2 less than the prescribed limit. Both certificates are valid and there is nothing, in my view, to suggest that either one is in error.
Prohibited substances are defined in Rules 188 and 188A. Rule 188A provides that alkalinising agents are prohibited substances except when their presence is evidenced by TCO2 at a level at or below a concentration of 36 millimoles per litre.
Rule 191 provides that:
(1) "A certificate ...from a 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 a blood,....specimen tested... 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 specimen taken from a horse at a meeting shall be prima facie evidence if sub rule (1) only applies, ....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, 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.”
(emphasis added)
Because Rule 191(1) only applies to a certificate "which certifies the presence of a prohibited substance" and a prohibited substance is an alkalising agent “except when their presence is evidenced by a level of TCO2 at a level at or below a concentration of 36 millimoles per litre" it cannot be said that the two certificates before the Tribunal have the same effect. The one that certifies the existence of TCO2 above 36 millimolles per litre is “prima facie” evidence of the matters certified and the other is not.
"Prima Facie" is a Latin expression meaning “on its first encounter, first blush or at first sight.” The literal meaning is "at first face" or "first appearance". In Modern Australian it means at first examination a matter that is evident from the facts. In common law jurisdictions it means evidence unless rebutted would be sufficient to prove a particular proposition of fact.
In Australia, the High Court in ABC v O'Neill[5] when considering the term in the context of injunctive relief said:
"The relevant principles in Australia are those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd.”[6]
This Court (Kitto, Taylor, Menzies, and Owen JJ) said that on such applications the court addresses itself to two main enquiries and continued:
"The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is a probability that at trial of the action the plaintiff will be held entitled to relief...
By using the phrase "prima facie case" their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. That this was the sense in which the Court was referring to the notion of a prima facie case is apparent from an observation made by Kitto J in the course of argument, "How strong the probability needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences to flow from the order he seeks."
By using the phrase "prima facie case" their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the status of the status quo pending the trial. That this was the sense in which the Court was referring to the notion of a prima facie case is apparent from an observation made by Kitto J in the course of argument, "How strong the probability needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences to flow from the order he seeks."
[5](2006) 227 CLR 57 at [65] per Gummow and Hayne JJ, Gleeson CJ and Crennan J agreeing at [19].
[6] (1968) 118 CLR 618.
Because of Rule 191(3) and the absence of a certificate to which Rule 191(2) applies there is not conclusive evidence that the horse was presented for a race not free of prohibited substances. Because of Rule 191(4) and the absence of a certificate to which Rule 191(2) applies there is prima facie evidence but not conclusive evidence that TCO2 "was present in or on the horse at the time the blood... sample or specimen was taken from the horse.”
That having been said, what then is the standing of the certificate which certified that the TCO2 level was less than 36 millimoles per litre? (the second certification)
In my view it still certifies the contrary of the certification of that certificate which certified a level greater than 36 millimoles per litre (the first certification).
In my view, Rule 191 does not detract from the evidential value of the second certification.
In my view, despite Rule 191 the second certificate introduces doubt about the level of TCO2 in the blood at the relevant time. It is rebuttal evidence.
In my view Rule 191 does not impose an onus on the applicant to establish his innocence. Rule 191 is a procedural rule and nothing more. It is akin to an evidentiary aid.
In my view, Rule 191(7) which provides that "notwithstanding the provisions of [Rule 191] 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," is not necessarily relevant to the question of two competing certificates. There is nothing here to indicate that the certification procedure was materially flawed.
In my view, the points raised in respect of the mouldy or rancid feed are not relevant to the question of the reading of TCO2 but rather are a consideration in penalty. That is because of Rule 190. If it is proved the horse was presented for a race other than free of prohibited substances the offence is proved.
We have not been referred to any decision on this point nor have I have not found any decision concerning the interpretation and effect of rule 191. I am conscious of not having any learning specifically on the point but in the circumstances here I am unable to be satisfied that the applicant has breached rule 191 AHRR because I am not satisfied on the Brigginshaw[7] test that a horse was not presented for the relevant race free of prohibited substances. I am not satisfied that the respondent has proved the case against the respondent.
[7] (1938) 60 CLR 336.
If I am wrong about my approach and finding I would have agreed with Adjudicator Bertelsen about the penalty aspect for the reasons he has given and the considerations I discussed earlier.
Because my decision on liability differs from that of Mr Bertelsen and because of section 115 of the QCAT Act, the decision here is my decision that the Stewards’ decision made on 28 February 2013 that Mr Lambourn be disqualified for 8 months is set aside.
John Bertelsen, Adjudicator
The applicant, Mr Lambourn is the trainer of Forced Entry, a standard bred gelding presented to harness race at the Gold Coast on Friday, 15 February 2013. The horse raced and came second. A prerace blood sample had been taken and analysed some 3 days later on Monday, 18 February 2013 at the Racing Science Centre, Brisbane (RSC) returning a total plasma carbon dioxide concentration (TCO2) of 37.1 millimoles per litre (mmol/L), that being in excess of the prescribed limit of 36 mmol/L pursuant to Rule 188A(1)(b) and (2)(a) Australian Harness Racing Rules (AHRR).
A reserve sample or B portion sample was sent to Australian Racing Forensic Laboratory Sydney (ARFL) on Monday, 15 February 2013 as an external confirmation of the RSC result. The B portion was analysed on Tuesday, 19 February 2013 recording a result of TCO2 at 35.9mmol/L. This sample was analysed as received.
Mr Lambourn was promptly charged with a breach of AHRR by Stewards.
Rule 190 AHRR states:
(1)A horse shall be presented for a race free of prohibited substances.
(2)If a horse is presented for a race otherwise than in accordance with sub rule (1) the trainer of the horse is guilty of an offence.
A Stewards inquiry was held on 28 February 2013. After considering a substantial body of evidence the Stewards determined that the charge had been proved, found Mr Lambourn guilty and imposed a disqualification penalty of 8 months.
A stay of the Stewards decision was sought and granted by the Tribunal with Mr Lambourn then seeking a review of the decision before the Tribunal. Pursuant to section 17 of the Queensland Civil and Administrative Tribunal Act 2009 the Stewards decision is a reviewable decision and as such pursuant to section 20 of the QCAT Act the function of the Tribunal is to produce the correct and preferable decision by way of a fresh hearing on the merits.
Two issues were raised by Mr Murdoch, Counsel for Mr Lambourn. Firstly that whilst the positive TCO2 test result 37.1mmol/L was prima facie evidence of guilt that there was compelling rebuttal evidence namely the TCO2 test result 35.9mmol/L taken a day later that contradicted the first test result. Secondly, that there was mouldy or rancid feed that the horse consumed shortly prior to racing that sufficiently explained the initial, or at least cast doubt on, the elevated TCO2 level 37.1 and that such was a circumstance that could reasonably be regarded as beyond Mr Lambourn’s control.
The test results
AHRR 191 states relevantly:
(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 a 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.
Clearly the first TCO2 test result is positive (above 37mmol/L – 36mmol/L plus a tolerance of 1). It is prima facie evidence of the presence of a prohibited substance. If a second test is confirmatory of the first then that is conclusive evidence of the presence of a prohibited substance.
There was no “error” at either the RSC or at the ARFL i.e. both laboratories conducted their tests to a high standard, had good reputations and were both NATA accredited. That was confirmed by both Dr Young, Manager Veterinary Services, RSC and Emeritus Professor Brynn Hibbert, an expert witness called on behalf of Mr Lambourn. Rather argument turned on changes that may have occurred within the blood samples themselves and the state of the blood samples at the time of testing (particularly the B portion sample) given the time lapse between the first and second tests and the environmental influences to which the B portion may have been subjected variously described by Dr Young as transport by road and air, transport time, air pressure during air travel, handling (sample should remain upright), temperature during storage or transportation. To this end Dr Young suggested that the 2 tests were not “analytical equivalents”; that portion A, first test, was typically a more reliable indicator of the total samples true TCO2 concentration. This conclusion appears to have been reached by Dr Young reviewing all the RSC positive TCO2 findings for the past 4 years. Dr Young stated “my review identified that in 71% of those cases, the numeric value reported by the confirming laboratory was lower than that of the originating laboratory”.
There was no evidence that the strict protocols adopted by RSC designed and implemented to maintain the integrity of the B sample were not adhered to. Rather what was put forward was the possibility of environmental influences affecting the B sample, such as to result in a lower than otherwise expected TCO2 level. It was merely suggested that this was “typical”.
Professor Hibbert on the other hand asserted that both results here were of equal quality and that each gave comparable information about the blood sample taken. Professor Hibbert referred to his own 2008 study of 73 thoroughbred horses which indicated in graph format that in only 4 cases were there B samples at least 1.2 millimoles less than the A sample; that in each of the 4 cases both results were over 37 millimoles; that a difference of 1.2 millimoles or greater was only a 1 in 20 probability; that such is within expected limits without assuming any particular change in the sample. He concluded “I am of the opinion that both results are of equal quality and each gives comparable information about the sample of blood taken from Forced Entry.”
Professor Hibbert went on to say that whilst “both results could not be simultaneously correct both had equal validity and that in fact the second test did not confirm the initial test.”
If the confirmatory B sample (in the absence of extraneous compelling evidence) cannot be viewed as being as accurate, or as professor Hibbert put it of “equal validity” then there would appear to be little utility in a B sample test. One might then ask what is the purport of rule 191 other than to say 2 confirmatory results elevate evidence from prima facie to conclusive.
There was some argument and discussion about the standard of uncertainty measurement of a TCO2 result being 0.22 millimoles and the uncertainty of plus or minus 1 millimole as adopted by Stewards. Suffice to say the Stewards convention of allowing a 1 millimole tolerance from a TCO2 test result before benchmarking it against the prescribed threshold of 36mmol/L is long standing and accepted and would appear to be some acknowledgement in practice of the imprecise nature of this sort of testing.
Here the certificate issued by AFRL places the respondent, Racing Queensland, in the position of relying on prima facie evidence of a prohibited substance being administered i.e. the RSC test result.
Mr James, Counsel for Racing Queensland argued that rules 191(5) and (6) stated that the presence of a prohibited substance could be “established in other ways” and that the second ARFL test result, albeit below the benchmark, was one such other way given that the test result there was 35.9, a relatively high result particularly when compared to the normal resting horse range of 28-32 mmol/L. The Tribunal is of the view that such is an additional consideration that can be taken into account but is limited and secondary in nature.
The mouldy/rancid feed
From the outset Mr Lambourn contended that mouldy/rancid feed was, or likely to have been, a contributing factor to Forced Entry’s elevated TCO2 levels.
On Friday morning 8 February 2013, Peter Gesler, stock and feed agent, supplied feed for horses being trained by Mr Lambourn at the training facility 398 Kuss Road, Lower Mt Walker. It was a mixture of barley, corn, sunflower seeds and lupins coated in minerals and oil. On Monday, 11 February 2013 Mr Lambourn discovered then informed Mr Gesler that the feed was bad i.e. mouldy. On Tuesday, 12 February 2013 when Mr Gesler picked up the bad feed he observed it was mouldy and rancid. Mr Lambourn being concerned that a horse may become ill retained a sample.
In the period 11 February to race day 15 February 2013, Mr Lambourn did not observe any ill effects on Forced Entry. That being the case he did not see fit to contact his veterinarian Dr Anthony of West Vets regarding any possible adverse effect resulting from Forced Entry’s consumption of mouldy/rancid feed. Mr Lambourn became concerned that Forced Entry did not perform to expectations when raced on 15 February 2013. However he did not think to contact Dr Anthony at this point either. It was only after being notified of the first blood sample positive result that Mr Lambourn contacted Dr Anthony, that is, sometime after 18 February 2013. Subsequently in early March 2013 the mouldy/rancid feed sample retained by Mr Lambourn was analysed, at the behest of Dr Anthony, by SGS Food & Agriculture Laboratory Toowoomba. That entity’s certificate of analysis identified the presence of fumonisin (a mycotoxin produced by a fungus associated with corn) at 1.7ppm, a reading well above acceptable levels.
Dr Anthony in his veterinary report dated 27 March 2013 stated “fumonisin toxicity following ingestion of mouldy corn or corn by-products causes well recognised disease of horses…” ; that Forced Entry was fed a grain ration that was demonstrated to contain fumonisin at excessive levels; that there were no known studies specifically designed to look at TCO2 levels following ingestion of fumonisin; that one study (Smith et al 2002) looked at cardio vascular changes associated with fumonisin administration; that study measured bicarbonate levels at one of many variables determining the effect of this toxin on the cardiovascular system; that the data showed that horses receiving a low dose of fumonisin showed a 10% elevation in bicarbonate levels. Horses receiving a higher dose did not however show an elevation of bicarbonate levels. Forced Entry’s TCO2 elevation may have been a consequence of ingestion of mouldy feed containing up to 1.7ppm fumonisin.
The difficulty in relying on the analysis by SGS Laboratory is the delay from 11 February to 6 March 2013 when the analysis commenced and whether the sample examined was in fact from the original mouldy/rancid grain.
Dr Anthony stated in evidence that the “study was not designed to look at the effect of fumonisin on TCO2 levels” but that “fortunately the study does look at multiple variables, one of which is bicarbonate, and bicarbonate levels are directly proportionate to TCO2.”
When put to him that the report (Smith et al) was inconclusive Dr Anthony answered “I think on the basis that the study was not designed to look at TCO2 levels, and given the number of horses that were looked at then yes I would think that it is not conclusive but it is all that we do have to draw on in the literature”.
Here the Tribunal is asked to accept a probable 10% elevation in bicarbonate levels consequent upon the presence of fumonisin in mouldy/rancid feed ceased to be administered to Forced Entry some 4 days prior to race day and in circumstances where the horse exhibited no ill effects prior to race day, on race day nor in the days following race day. That places fumonisin in the realm of possibility only rather than an adequate explanation for elevated TCO2 levels. The Tribunal considers the nexus between the mouldy/rancid feed and TCO2 levels is simply not strong enough to ground a finding of not guilty on the evidence produced with respect to this issue. However it can properly be considered on penalty.
Penalty
Rule 190(4) (the presentation rule) imposes strict liability on Mr Lambourn. As stated in Ryan J v Queensland Racing:
As this Tribunal has accepted before the presentation rule is a very blunt instrument. Its net catches the guilty and the people who but for the rule would otherwise be innocent. Those who take reasonable care and those who flout the rules are dealt with on the same basis as to guilt. The only way of discriminating and providing some sense of justice is by variation of penalties.
Mr Lambourn took very good care of horses entrusted to him as trainer and particularly since February 2012 he appears to have been acutely aware of his responsibility approppo prohibited substances. From that time he ceased to feed his horses citrates. He has had since that time in excess of 150 starters of which about 1 in 5 have been pre race swabbed. It was not until 15 February 2013 that a positive swab was returned and marginally at that.
Forced Entry had been blood tested on 2 occasions since February 2012 revealing bicarbonate levels of 33mmol/L.
Mr Lambourn has been licensed as a harness trainer/driver for about 4 years bar a disqualification period of 5 months from September 2011 to February 2012. Prior to that he was involved in the thoroughbred industry for some 15 years as an apprentice jockey, jockey and stable hand during which time he was never disqualified.
In the oft cited decision of Judge McGill DCJ in Wallace v Queensland Racing 3 categories of blameworthiness relative to penalty were identified.
1.Specific explanation which does not involve blameworthiness (showing a mitigating circumstance). Such a situation calls for leniency.
2.No explanation – no indication one way or the other of any personal blameworthiness.
3.Explanation which indicates moral blameworthiness.
The explanations offered by Mr Lambourn were never going to be enough to warrant a not guilty finding but in terms of imposition of penalty the following is relevant.
(i)The first test result is minimally/marginally over limit.
(ii)There is a second test result of equal validity that would by itself exonerate Mr Lambourn.
(iii)The mouldy/rancid feed was a possible factor leading to elevated TCO2 levels.
(iv)As stated in Webb v Racing Queensland Limited [2011] QCAT 44, “where the evidence is equivocal, at best, the benefit of the doubt, insofar as it relates to penalty, should, in my view, be given to the applicant” (Mr Lambourn).
In terms of the categories identified in Wallace Mr Lambourn would appear to sit somewhere between categories 1 and 2 i.e. Mr Lambourn has not been able to provide specific explanation which does not involve blameworthiness but nor is there any indication of any personal blameworthiness. This being the case the normal within range penalty ought not apply and a more lenient approach ought be taken.
In the circumstances the Tribunal considers that an appropriate penalty is Mr Lambourn is disqualification for 4 months.
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