Lovelock-Wiggins v Racing Queensland Limited - [2012] QCAT 296

CITATION:

Lovelock-Wiggins v Racing Queensland Limited [2012] QCAT 296

PARTIES:	Taylor Lovelock-Wiggins
v
Racing Queensland Limited

APPLICATION NUMBER:

OCR147-12

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

15 June 2012

HEARD AT:

Brisbane

DECISION OF:

R King-Scott, Presiding Member
K Buxton, Member

DELIVERED ON:

12 July 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The Appeal is allowed.

2. The decision of the Stewards of 16 April 2012 is set aside.

CATCHWORDS:

Offence of failing to deliver a sample as directed – whether jockey given the opportunity to comply – where directed to provide a sample “some time tonight” – proceedings cut short before end of the night

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Mr Lovelock-Wiggins was represented by Mr S Zillman of counsel instructed by McInnes Wilson Lawyers
RESPONDENT:	Racing Queensland was represented by Ms J Fitzgerald of counsel

REASONS FOR DECISION

Mr Lovelock-Wiggins is a nineteen year old apprentice jockey. He was the subject of a Stewards’ Inquiry that took place 16 April 2012. At that inquiry he was found guilty of two charges in relation to the provision of urine samples in accordance with the Australian Racing Rules.
The first related to a sample of urine provided on 14 February 2012. That sample returned a positive result. Although Mr Lovelock-Wiggins does not seek review of this decision for the sake of completeness we will briefly state the circumstances relating to the first charge. It related to the provision of a sample that when analysed, contained a banned substance synephrine, a drug commonly used for weight loss, which was banned by Australian Racing Rule 81B. The laboratory testing concluded that the sample was suspicious and was, at least in some respects, not consistent with human urine.
The second charge was failing to deliver a sample as directed by the Stewards. The charge related to events that took place at Ipswich on 9 March 2012. No specific grounds of review or submissions are raised by Mr Lovelock-Wiggins in relation to those findings.
On the 16 April 2012 he was found guilty of both charges. He seeks review of the Stewards’ decision to disqualify him for failing to provide a sample.
In relation to the first charge he was stood down from racing for a period of approximately 5 weeks (from 9 March 2012 to 16 April 2012) and the penalty imposed for this offence was time served.
The decision under review is the decision to find Mr Lovelock-Wiggins guilty, under Australian Rule 81A(1)(b), for failing to deliver a sample at Ipswich on 9 March 2012.
The particulars relied upon by the Stewards in their finding were that the direction to provide the sample was given sometime before 2pm; a four hour time period was provided. Mr Lovelock-Wiggins was able to consume a significant amount of fluid in that time and he failed to provide a sample sufficient for testing. He was disqualified for a period of 6 months from 16 April 2012. The disqualification was stayed, by the Tribunal, pending the outcome of this review.
The purpose of this application for review is for this Tribunal to reach the correct and preferable decision. In doing so, it must hear and decide the review by way of a fresh hearing on the merits.[1]
[1] QCAT Act, s 20.
In order for the Australian Rules of Racing to meet the stated objectives of controlling and regulating the industry, those who participate in the industry ought to be both aware of, and capable of complying with, those rules. Mr Lovelock-Wiggins argued that, because he was dehydrated and “wasting” in an attempt to achieve and maintain an unnaturally low weight and because of an anxiety condition he was incapable of producing the sample. He produced medical evidence in support of that contention, which we have no reason to doubt.
However, the fact remains that jockeys are, from time to time, required to provide samples. If they are in such a physical state that they are incapable of doing so they will find themselves in breach of the rules. There is no reason to conclude that there was anything sinister in Mr Lovelock-Wiggins’ inability to produce a sample.
Counsel for Mr Lovelock-Wiggins conceded that an inability to provide a sample is no defence to the charge which was one of strict liability.
Rule AR81A relevantly provides:
Any rider commits an offence and may be penalised if –
(a) a sample taken from him is found upon analysis to contain a substance banned by AR81B; or
(b) he refuses or fails to deliver a sample as directed by the Stewards, or tampers with or in any way hinders collection of such sample.
Mr Lovelock-Wiggins was directed to provide a urine sample. The direction was made at 1.35 pm.[2] At 2.20pm, Mr Lovelock-Wiggins approached Stipendiary Steward Fletcher and advised he could provide a sample and at the invitation of Mr Fletcher he chose a urine sample collection kit.
[2] See affidavit of Simon James Fletcher affirmed 14 June 2012.
At 5.15pm, the Stewards Panel reconvened. At that time, Mr Lovelock-Wiggins had not provided a sample. Mr Lovelock-Wiggins said he had tried several times but to no avail. The Chairman of the Stewards Panel then said:
We have got to give consideration to the time that has lapsed and whether you would be ìn breach of failing to provide a sample when directed to. So I think to be fair to all parties, we will give you an extra half hour to provide and if we don’t receive a sample, we would deem that as you failing [sic] to provide a sample when directed to, which we would then deem quite serious.[3]
[3] Transcript, Ipswich Turf Club Stewards’ Room, 9 March 2012, p3, ll.5-10.
Mr Lovelock-Wiggins earlier had given a small sample but nothing sufficient to be tested. Nothing turns on this event.
Having given Mr Lovelock-Wiggins an extra half hour, there was further discussion involving Mr Lovelock-Wiggins’ Master, Mr O’Dea, and the Chairman in Mr Lovelock-Wiggins’ presence. The following passage then appears in the transcript:
THE CHAIRMAN: I appreciate your comments. But obviously where do we go from here then, Mr O’Dea, when he has been directed to provide a sample? Are you happy to stay here till midnight tonight?
APPRENTICE LOVELOCK-WIGGINS: Well, I’m going to try, obviously and I would have gone to the toilet if I could have. After I had [inaudible] fluids there’s nothing I could do, I’m trying and the only thing I can do is – or could see – the only I could think of is tomorrow morning or tonight when I get home or whenever is available. I’ve been trying and I have been wasting and I haven’t drunk anything up until up to now.
THE CHAIRMAN: To be fair – and I haven’t discussed this with the Panel members – but I’m not working over the weekend, so I’m happy to stay here all hours.
APPRENTICE LOVELOCK-WIGGINS: Yeah.
THE CHAIRMAN: Okay.
APPRENTICE LOVELOCK-WIGGINS: Yeah.
THE CHAIRMAN: What we will say to you then is for you to go out there with Mr Fletcher and still try and provide, but we will be taking a sample from you some time tonight.
The meeting then adjourned after some further discussion and resumed at 6.15pm. The Chairman then said:
... Earlier today we did direct you then, Apprentice Lovelock-Wiggins, to provide us a sample after you were then given information that you were stood down from today’s meeting. That was some 4 hours ago. You haven’t provided us a sample. Any reason you can put forward there?
APPRENTICE LOVELOCK-WIGGINS: No, as I stated before, Sir, nothing.
THE CHAIRMAN: We have got to give consideration whether you were in breach of Australian Rule 81A(1)(b) …
As I’ve stated, we have given you ample opportunity to provide that sample.
APPRENTICE LOVELOCK-WIGGINS: Yep.
THE CHAIRMAN: Around 4 hours. You will be free to leave tonight. As I said, we’ll give consideration as to your failure to provide that sample when directed. I will be furnishing a report to Mr Birch as to what’s taken place.
Mr Lovelock-Wiggins did not seek any further time but stated several times in the transcript after the passage quoted above that he had tried several times but had been unable to provide a sample. There was some further discussion and then the meeting adjourned to consider whether there had been a breach of the rules.
Subsequently, at a meeting of Stewards (differently constituted) on 16 April 2012, in regard to the charge under review, the Stewards found Mr Lovelock-Wiggins guilty. The Chairman went on to say:
You had been given a direction shortly after 2 o’clock to provide a urine sample. You were provided with a 4 hour period to do so by virtue of being stood down. There were no weight restrictions upon you and you were able to consume a significant amount of fluid in order to provide the sample. You failed to do so. We formally find you guilty of that charge.
It has been held that the rule to deliver a urine sample as directed is one of strict liability: see Queensland Racing v Pearson No 1957 of 2008, Clare DCJ, 23 February 2009 (unreported).
It is apparent that no time limit is provided for by the rule that as Clare DCJ observed in Pearson (supra) made the nature of the direction relevant.
Her Honour went on to state:
Mr Pearson was originally directed to provide a specimen before leaving to go home that night. It appears this was before 4 p.m. Stewards later told him that “We won’t be leaving until you produce a specimen”. He was allowed more than four and a half hours to ingest fluid before he was told at 8.45 that he had to provide a sample before 9 p.m. He was given a further 20 minutes but failed to provide a sample.
In the instant case, Mr Lovelock-Wiggins, initially, was not given a time limit. At 5.15pm, more than 3.5 hours after the initial direction, he was told that he would be given an extra half hour. That was then extended to an indeterminate time –
Some time tonight.
Then, on resuming at 6.15pm, the Stewards announced that Mr Lovelock-Wiggins was free to leave but no further direction was made.
As the offence Mr Lovelock-Wiggins is charged with is one of strict liability, it is incumbent on the Stewards to ensure that an appropriate direction is made. If the direction is not given or is equivocal, then the offence is not made out. In Hammond v Lavender [1976] 11 ALR 371 Mason J (as he then was), with whom the other members of the Court agreed, said at 375.
There is in an offence so constituted no room for the notion that a person, by announcing his refusal to provide a specimen of breath, dispenses with the necessity for a direction under sub-s (8)(e)(i) and thereby commits the offence, although no such direction is given. The obligation is not merely to provide a specimen of breath but to provide it when and in the manner directed. The existence of a direction is therefore an essential element in the requisition with which the person directed is bound to comply. Unless and until it is given there is not in my view “a requisition duly made” within the meaning of sub-s (11)(a).
In the instant case, it is irrelevant that Mr Lovelock-Wiggins did not request further time and that he may not have been able to provide a sample by the end of the evening in any event. He was directed to provide a sample "some time tonight". That direction is informed by the Chairman's earlier indication that he was "happy to stay here all hours". In the absence of any further amendment or qualification to the direction the proceedings were cut short before the end of the night in circumstances where Mr Lovelock-Wiggins did not have the opportunity to comply.
We, therefore, are of the opinion that Mr Lovelock-Wiggins was not in breach of the rule for his failure to deliver a urine sample as directed.
The appeal is allowed and the decision of the Stewards of 16 April 2012 for failing to deliver a sample as directed at Ipswich on 9 March 2012 is set aside.