Manzelmann v Racing Queensland Limited
[2012] QCAT 416
•6 September 2012
| CITATION: | Manzelmann v Racing Queensland Limited [2012] QCAT 416 |
| PARTIES: | John Manzelmann (Applicant) |
| v | |
| Racing Queensland Limited (Respondent) |
| APPLICATION NUMBER: | OCR273-11 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 11 January 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | Jim Allen, Member |
| DELIVERED ON: | 6 September 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The decision of the Stewards on 15 November 2011 is set aside. 2. Mr Manzelmann is not guilty of a breach of rule 178 in respect of the presentation of Rocket on By to race at the Cairns Amateurs race meeting on 2 September 2011. |
| CATCHWORDS: | Presentation of horse to race Rule 178 – compliance with the Collection Procedures Racing Act 2002, ss 143(3), 352A Whitaker v Harness Racing Queensland [2011] QCAT 693 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Manzelmann was represented by Mr Neaves, of Counsel |
| RESPONDENT: | Racing Queensland Limited was represented by Ms Freeman, of Counsel |
REASONS FOR DECISION
Introduction
Mr Manzelmann was the licensed trainer of the horse, Rocket on By when it ran first in race 6 at the Cairns Jockey Club on 2 September 2012. A urine sample collected from Rocket on By, by a sample collection official of Racing Queensland Limited[1] following the race was taken for analysis by the Queensland Racing Science Centre and a certificate of analysis showed that it contained prednisone, a prohibited substance[2]. This result was confirmed by another independent laboratory, Racing Analytical Services Ltd.
[1] Rule 8(j) of the Australian Rules of Racing Local Rules (Thoroughbreds).
[2] Rule 178B of the Australian Rules of Racing Local Rules (Thoroughbreds).
A Stewards Inquiry was conducted on 15 November 2011 and Mr Manzelmann was found guilty of a charge of presenting[3] Rocket on By to race at the Cairns Amateurs race meeting on 2 September 2011 at a time when urine analysis of a sample taken from the horse post race contained a prohibited substance, prednisone. Mr Manzelmann was penalised by way of a fine of $10,000[4].
[3] Rule 178 of the Australian Rules of Racing Local Rules (Thoroughbreds).
[4] Rules 8(e) and 196 of the Australian Rules of Racing Local Rules (Thoroughbreds).
Mr Manzelmann has made application to the Tribunal to review the decision both in terms of the finding of guilt and the penalty[5]. The review by the Tribunal is by way of a fresh hearing on the merits with the purpose of the review being to produce the correct and preferable decision[6]. The Tribunal stands in the shoes of the decision-maker, Racing Queensland Limited and must decide the review in accordance with the QCAT Act and the enabling Acts, the Racing Act 2002, the Australian Rules of Racing and the Collection Procedures and has all of the functions of Racing Queensland for the decision being reviewed[7].
[5] Section 150 of the Racing Act 2002.
[6] Section 20 of the Queensland Civil and Administrative Tribunal Act 2009.
[7] Section 19 of the Queensland Civil and Administrative Tribunal Act 2009.
The role of Racing Queensland Limited is to use its best endeavours to help the Tribunal so that it can make its decision and this includes providing the Tribunal with a written statement of reasons for the decision[8]. The Tribunal notes that Racing Queensland Limited has provided the Tribunal with a copy of the transcript of the proceedings held on 15 November 2011[9]. Copies of all the relevant documents in regard to the urine sample taken from Rocket on By and its analysis are exhibited to the transcript.
[8] Section 21 of the Queensland Civil and Administrative Tribunal Act 2009.
[9] Exhibit 1 Affidavit of Jamie Lee Knight sworn 14 December 2011.
The grounds for review stated in Mr Manzelmann’s application were that:
a)The decision does not properly consider the requirements of the Racing Act 2002 in that the protocols in relation to the taking of a sample and dealing with a sample as set out through that Act have not properly been followed;
b)The decision relies on a certificate of analysis which cannot be relied upon;
c)The decision does not properly consider the relevant case law, particularly Whitaker v Harness Racing Queensland and Pomfrett v Racing Queensland Limited, and
In the alternative, the penalty is excessive in that
d)The circumstances and history of Mr Manzelmann are not fully or properly taken into account;
e)Penalties for like offences are not consistent with the penalty delivered in this case.
The legislative framework
Ms Freeman, in accordance with the role of the decision-maker assisted the Tribunal by setting out the legislative framework in her submissions. In particular the requirements under subsection 143(3) of the Racing Act 2002 for taking and dealing with the sample under the integrity board’s procedures created under s 115 of the Act if the sample is to be used for a purpose other than for research or survey purposes.
Regulation 20 of the Racing Regulation 2003 sets out that the integrity board may publish such procedures by making them available for inspection at its business premises and on its website.
In accordance with section 115(3) of the Act, the Racing Welfare and Integrity Board has published “The Collection Procedures”.
Pursuant to these statutory provisions, strict compliance with the procedures is required if the control body seeks to rely upon the results of analysis to support a conviction of a breach of the Rules, subject to the operation of section 352A of the Act.
[10] Section 352A of the Act applies to a decision of this Tribunal on an application to review against a decision of a control body’s steward for which the steward relied on a relevant certificate about the analysis of a thing. That section states in subsection 352A(2) of the Act that in making its decision, it is enough for the decision-maker to be satisfied that the method of taking and dealing with the thing for analysis was in compliance with the requirements of section 143(3) to the extent that the integrity of the sample was not adversely affected. By subsection 352A(3) of the Act evidence of an accredited analyst or accredited veterinary surgeon, that the method of taking and dealing with the sample was in substantial compliance with the requirements of section 143(3) is evidence of that fact and, in the absence of evidence to the contrary, conclusive evidence of that fact.
[11] The application of the provision was considered in Whitaker[10]. Following the District Court decision of Judge Botting on appeal from the Racing Appeals Tribunal this Tribunal concluded that what was relevant was the impact of the non-compliance, and the degree it varies from what is required to comply with the protocol or step in the protocol as well as considering whether the non-compliance affects the integrity of the sample.
[10] Whitaker v Harness Racing Queensland [2011] QCAT 693.
[12] It was submitted that the newest form of this provision, as amended in 2010, indicates that the legislature intended that the concept of substantial compliance be considered in the context of the integrity of the analysis and whether this has been adversely affected as opposed to a focus upon whether formal procedures have strictly been complied with.
[13] In that regard the Tribunal notes the decision in Pomfrett[11] which was submitted by Mr Neaves to be relevant here. In that case the Tribunal considered that the failure to comply with the procedures was to a far greater extent than the failure in Whitaker. An opinion was obtained from an accredited veterinary surgeon, Dr Bruce Young which stated that the “method of taking and dealing with the sample was not in substantial compliance with the requirements of section 143(3) of the Racing Act 2002 (see also section 352A of the Racing Act)”.
[11] Pomfrett v Racing Queensland Ltd [2011] QCAT 137.
[14] The Collection Procedures[12] set out in Appendix 1 the procedures for taking and dealing with urine samples from horses. Mr Neaves in his submissions noted that there are several notations in bold type at the start of Appendix 1:
a)Advise the person in charge of the licensed animal, to watch the sample collection procedure carefully.
b)To ensure the person in charge of the licensed animal witnesses all steps, the one sample collection official must carry out all steps.
c)Prior to use, ensure the urine collection bowl has been cleaned in accordance with Appendix 8.
[12] Exhibit 4 Affidavit of Matthew John Haigh sworn 9 January 2012.
[15] There are particular areas of alleged non-compliance with the procedures in this matter and the Steps in Appendix 1 which they relate are as follows:
a)Step 2 “Initial preparations” of Appendix 1 requires the Sample Collection Official to put on gloves.
b)Step 3 “Rinse equipment with control solution” of Appendix 1 All equipment that will come into contact with the urine sample must be rinsed with the control solution supplied. This can be done in one of two ways which are set out in Step 3. The control solution is described in step 1 as a solution used to detect contamination of the sampling equipment.
c)Step 4 ”Split the sample” finishes with the words “remove gloves”.
[16] The requirement that the urine collection bowl be washed in accordance with appendix 8 is also in issue. Appendix 8 “Storage and cleaning of the Urine Collection Bowl” will be set out in total as the divergence from it is marked:
The urine collection bowl is a vital piece of equipment which is usually reused for the collection of urine samples.
In order to minimise the risk of contamination of the urine collection bowl, control bodies must ensure that the urine collection bowl is regularly cleaned and securely stored,
It is recommended that that urine collection bowl be stored in a lockable cupboard within the sample collection facility between urine sample collections and at the conclusion of collecting urine samples.
The urine collection bowl should be replaced as soon as it becomes corroded or damages,
Procedure for cleaning the urine collection bowls.
Step 1 prior to collecting urine samples at a race meeting
The sample collection official is to:
. remove the urine collection bowl from the locked cupboard; and
. Wet the entire bowl with water and clean the entire inner surface of bowl (including lip of bowl) and outer surface with a scour pad;
. Rinse the entire bowl and scour pad under running water; and
. dry urine collection bowl with disposable paper towelling; and
. store the urine collection bowl in a lockable cupboard, if not to be used immediately.
Step 2 After the urine sample collection procedure has been completed
The sample collection official is to:
. Thoroughly rinse the urine collection bowl with running water; and
. dry urine collection bowl with disposable paper towelling; and
. store the urine collection bowl in a lockable cupboard.
Step 3 After the last sample has been collected for the day
The sample collection official is to:
. wet the entire bowl with water and clean the entire inner surface of bowl (including the lip if bowl) and outer surface with a scour pad; and
. rinse the entire bowl and scour pad under running water; and
. dry urine collection bowl with disposable paper towelling; and
. Store the urine collection bowl in a lockable cupboard.
Please note that during the collection of a urine sample, the use of the control solution to rinse the urine collection bowl does not constitute cleaning of the urine collection bowl (refer to Appendices 1 & 2)
The Taking of the sample from Rocket on By
[17] The issues in regard to the urine sample were not raised by Mr Manzelmann at the Stewards Inquiry. As this is a review of the decision on the merits that does not preclude him from raising the issue before the Tribunal.
[18] Mr Manzelmann raised concerns that the urine sample was contaminated[13]. In his affidavit he stated that when Rocket on By was being asked to urinate for the purpose of collection of the sample by Mr Massingham, the collection sample official, the horse did not co-operate. That after some time trying, which he estimate to be about 40 to 45 minutes after Rocket on By raced, it was decided by Mr Massingham that the horse was not going to urinate and hence blood samples would be necessary.
[13] Exhibit 2 Affidavit of John Manzelmann sworn 30 December 2011.
[19] At that time the ‘pan’ used for collection of urine samples was discarded as no longer required. That Mr Massingham removed his gloves and prepared the vials for blood to be taken.
[20] That at a time when Mr Massingham was in fact holding the vials, the horse stretched out and began to urinate. At this time Mr Massingham grabbed the pan and collected urine.
[21] Once the pan had been decided not to be required as blood was to be taken, there was no need for particular care to be taken to ensure that no foreign matter came into contact with the sample. The pan was not washed with the control solution afresh before the taking of the sample. The pan was not protected in any way once it was discarded, and he believed that it could have been touched by Mr Massingham or come into contact with other objects in the swab room, or the ground.
[22] While Mr Manzelmann did not specifically see any object come into contact with the pan once it was thought to be no longer in use, he had shifted his attention to the preparation of the vials, as is required by him, as the witness to the procedure.
[23] In his evidence at the hearing Mr Manzelmann stated in regard to the circumstances of the taking of the sample that he had assumed Mr Massingham had put the bowl in the sink when it was no longer required. That he was not positive about whether or not Mr Massingham removed his gloves. He was the one who pointed out the horse was about to urinate and Mr Massingham had put the blood vials down and grabbed the pan.
[24] Mr Manzelmann confirmed to Ms Freeman that he had been in the swab room the whole time but that he could only see 80% of the time due to him needing to be able to see over a door and if the horse was on the wrong side of the door he could not see.
[25] Mr Manzelmann in questions from Ms Freeman stated he could not tell if the pan was rim side up when it was on the bench. He agreed that Mr Massingham was holding the pan by the handle when he took the sample and that he did not see him touch the pan.
[26] In summary, Mr Manzelmann raised the issue of non-compliance in regard to the removal of Mr Massingham’s gloves during the sample taking process and that the pan was not re-rinsed after it was set aside before the sample was taken.
Mr Massingham’s Evidence
[27] Racing Queensland Limited filed an affidavit sworn by Mr Massingham with his recollection of the events surrounding the collection of the urine sample[14]. He stated that he had fulfilled the position as a sample collection official for 20 years and he had a thorough understanding of the Racing Animal Welfare and Integrity Board’s Collection Procedures.
[14] Exhibit 3 Affidavit of Colin Robert Massingham sworn 9 January 2012.
[28] He confirmed he had taken the sample from Rocket on By after it completed race 6. His recollection in regard to the attempt to take the urine sample accords with that of Mr Manzelmann in regard to the horse not co-operating.
[29] Approximately 30 minutes after he started his attempt he began to make preparations for a blood sample to be taken. He placed the pan on the counter, beside the sink, bowl side down, in order to make the required preparations for blood sample to be taken. Mr Massingham later confirmed following evidence from Dr Caldwell which is discussed below that he placed the pan on a tea towel with the rim side up.
[30] Approximately 5 to 10 minutes later Rocket on By began to make motions to urinate at which point he picked up the pan from where he had placed it and collected a urine sample from Rocket on By in accordance with the procedure set out above. In his evidence at the hearing Mr Massingham stated that he had picked the pan up by the handle and that he did not touch other parts of the pan during the process of taking the sample.
[31] Mr Massingham confirmed that he did not re-rinse the pan with the control solution between placing it on the counter and collecting the sample as he did not believe that the pan had been contaminated nor did he believe that to be a requirement under the Collections Procedures.
[32] He stated that whilst the pan was resting on the counter it was at all times in his view and he did not leave the swab box and Mr Manzelmann was also present with him at all times. He did not recall any foreign matter, material or person coming into contact with the pan whilst it as in his possession. That he did not recall having any contact with any substance that to his knowledge contained prednisone on the date of the race or at the time of collecting the sample from Rocket on By.
[33] In regard to his gloves Mr Massingham said that he did not recall removing them at any stage throughout the process of taking a sample from Rocket on By. That he had not personally come into contact with the urine sample taken from Rocket on By. He always wears gloves on for the whole of the sample collection process, even when he is preparing for a blood sample to be taken. Mr Massingham confirmed at the hearing that he had not removed gloves during the whole of the procedure and that his main reason for keeping the gloves on is the Hendra virus.
[34] After he finishes taking each urine sample he stated that he rinses the bowl and places it on a tea-towel which he leaves beside the sink and then he rinses the bowl with the control solution at the start of each new sample collection, which he did both before and after taking a urine sample from Rocket on By.
[35] At the hearing Mr Massingham stated that the tea towel was changed every week and he takes it home. That he does not wipe out the bowl with a paper towel after the running water. That the tea towel was washed at home with the towel he uses to wash his hands and kept on a rack in the swab room. He confirmed that the tea towel was a procedure he had developed and that he did it so the pan was not put on a hard surface. Mr Massingham stated he could not recite every rule from the Collection Procedures.
[36] Mr Neaves asked Mr Massingham about Appendix 8 of the Collection Procedures, which is set out above. Mr Massingham stated that he did not know the rule in particular. Mr Neaves then took Mr Massingham through Appendix 8 step by step.
a)In regard to step 1 (Prior to collecting urine samples at a race meeting) Mr Massingham stated that he removes the bowl from the locked cupboard but does not do point 2 – cleaning of bowl with a scour pad. He stated that he sometimes uses a sponge to clean the bowl and the sponge is stored in the locked swab room.
b)He does not dry the collection bowl with paper towels as set down in point 4 to avoid contamination and instead places it upside down on the tea towel to dry.
c)In regard to step 2 (after the urine sample collection has been completed) Mr Massingham rinses the bowl, that he does not dry it with paper towels and he stores the collection bowl in the lockable swab room of which he holds the only key.
d)In regard to step 3 (after the last sample has been collected for the day) Mr Massingham stated he wets the bowl, rinses it without the use of a scour pad, dries it with the tea towel as opposed to disposable paper towels and stores it in the lockable room and takes the tea towel home.
[37] Mr Massingham in his affidavit noted that Mr Manzelmann, who witnessed the sample collection did not at any stage raise any concerns about the procedure adopted and confirmed that he had not attempted to take a sample from any other horse at the race meeting whilst he was collecting a sample from Rocket on By.
[38] Mr Matthew Haigh, stipendiary Steward swore an affidavit[15] on behalf of Racing Queensland Limited which included copy of The Collection Procedures as mentioned above. Mr Haigh worked at the meeting in question and his affidavit includes a printout of the results of all samples taken from horses on 2 September 2011 at that meeting which showed that of all of the sample taken at the meeting including both urine and blood the only positive result that day was for Rocket on By.
[15] Exhibit 4 Affidavit of Matthew John Haigh sworn 9 January 2012.
Dr Caldwell’s Evidence
[39] Dr Karen Caldwell, the Acting Manager Veterinary Services at the Racing Science Centre was provided with a copy of the transcript of the Stewards’ hearing which took place on 15 November 2012, Mr Manzelmann’s affidavit and Mr Massingham’s affidavit. Dr Caldwell provided an opinion which was annexed to a further affidavit of Ms Knight[16].
[16] Exhibit 5 Affidavit of Jamie Lee Knight sworn 10 January 2012.
[40] She stated that there was no requirement under the Collection Procedures Version 3 (the Procedures) for the urine collection pan to be re-rinsed with the control solution in the event of it being set down. That the pan would be rinsed a second time if the Sample Collection Official believed there has been some possibility of contamination of the pan and that Mr Massingham in his affidavit states he does not believe there was any possibility of contamination.
[41] That the rinsing of the pan with the control solution at the beginning of the collection process meets the requirements of the Procedures. The Procedures do not reference the manner in which a urine collection pan may be set down.
[42] Dr Caldwell notes that in accordance with the procedures the Sample Collection Official states he always wears gloves throughout the entire collection process. Dr Caldwell confirmed in questioning from Mr Neaves at the hearing that the wearing of gloves is a requirement under the procedures. Dr Caldwell was later asked if her opinion in regard to contamination would change if Mr Massingham had not been wearing gloves and held the pan by the handle, she stated “No, I don’t believe that is a likely source of contamination so that wouldn’t change my opinion on whether contamination occurred”.
[43] The pharmacokinetics of prednisone and prednisolone is described by Dr Caldwell as being very complex and it is not possible to conclusively establish which of the two compounds was administered or at what point in time. The presence of prednisone in a urine sample could be the result of the administration of either prednisone or prednisolone to the animal.
[44] That depending on the point of time post administration, in each case, both prednisone and prednisolone may be detected in urine or either compound may be detected alone. She stated that there are no veterinary medications containing prednisone registered for use in Australia. There are several veterinary medications containing prednisolone registered for use in Australia.
[45] Dr Caldwell’s opinion stated in the letter is that in regard to the suggestion of contamination of the urine sample that if the pan is set down on the bench in a bowl-side-down manner there is no reason to believe the pan has been contaminated in any way. Further, that the analytical finding of prednisone in the urine sample number 314986 is most likely the result of the administration of prednisolone or prednisone to the horse at some point prior to sampling. The Tribunal notes that this opinion does not take account of Mr Massingham’s evidence in regard to how he cleans and cares for the urine collection bowl.
[46] Mr Neaves submitted this does not give evidence of a substantially compliant method of taking and dealing with the sample, but rather it is a statement that the ‘most likely’ reason for the sample being positive is administration of the prohibited substance to the horse. It evinces that the administration to the horse is not Dr Caldwell’s only explanation as to how this sample came to show a positive reading to prednisone.
[47] At the hearing Dr Caldwell was asked whether placing the bowl on the tea towel might affect the integrity of the sample taken. She stated that in her experience in collection facilities it is common place for something to be placed on the bench typically it would be a paper towel for example. It means something other than the bench to place the bowl on. He (Mr Massingham) states in his affidavit that he places it on the tea towel after it has been washed, so I draw from that that it is a clean bowl going on the tea towel.
[48] She further suggested that given that after the bowl has been on the tea towel it is then rinsed with the control solution before the sample is collected in her mind there is not a concern with the use of the tea towel in that fashion.
[49] Dr Caldwell explained that once the control solution is rinsed through the bowl it would be returned to its container depending on the sequence in which they are performing the collection it would normally be rinsed through the other two bottles that comprise the three collection bottles. The control solution is then submitted for analysis to the secondary laboratory rather than the primary one. That in the case of the sample from Rocket on By the control solution was found to be negative.
[50] In terms of the tea towel becoming contaminated with prednisone Dr Caldwell’s opinion was that “she had seen nothing in what she had been presented with to have concerns this is the case. Again the presence of the control solution is there as a safety net if you like for these sorts of possibilities again it was negative. Furthermore, I would suggest that the transfer of a substance from a tea towel to the rim of a bowl and then to a urine sample is highly unlikely in my opinion to be of a concentration that would be indicative of a result in a laboratory. In most equine samples and this one certainly we are talking of a urine volume of more than 200 mls, I don’t consider that a concern in this case”.
[51] When asked how much prednisone would need to be on the tea towel to produce a result at all, Dr Caldwell stated “No I couldn’t tell you in quantitative terms. In addition to that it should be noted that there was no other positive finding of prednisone from samples taken that day or in recent times from that meeting”.
[52] Mr Neaves described to Dr Caldwell the procedure used by Mr Massingham in regard to cleaning of the urine collection bowl and asked whether she considered that it is compliant with appendix 8. She stated, “It is certainly not adhering in every way to appendix 8, No”.
[53] When asked to agree that appendix 8 is about ensuring the cleanliness of the swab bowl Dr Caldwell stated “it is designed to instruct how the bowl should be cleaned”.
[54] When questioned by Mr Neaves, Dr Caldwell stated that her comments in regard to the possibility of the contamination of the pan were made in reliance on it being dealt with consistent with the procedures as a whole including appendix 8 and confirmed that she had made no further enquiries in relation to the pan.
[55] When asked if she would have any concerns if Mr Massingham gave evidence that he doesn’t at any stage dry the bowl with a paper towel as is expressly requires by appendix 8, Dr Caldwell stated that “it is a divergence from the procedures as to my view on how that may affect the integrity of the sample I don’t believe that it is in anyway likely to do so”.
[56] In regard to the importance of step 1 of appendix 8 Dr Caldwell stated “it is to create a situation where you have a clean bowl at the commencement of the procedure. I would state that it is by virtue of the presence of the control solution that is the safety net for that”.
[57] Dr Caldwell agreed that the intention of “by use of a scourer under running water and the term including the lip of bowl” there is that safety blanket that ensures every part of the bowl is cleaned at that point of the procedure.
[58] Mr Neaves asked Dr Caldwell to agree to the proposition that simply rinsing the bowl under running water in its entire life wouldn’t be sufficient to take care of that bowl, Dr Caldwell stated that “it may or may not I guess that would depend on several factors the force of the water the period of time for which any hypothetical substance was on there”.
[59] Dr Caldwell was asked whether the tea towel being used all day without any change would be an issue in regard to its cleanliness and she stated “if the statement is that the tea towel is used after the pan has been rinsed is true then that is not likely to change be it an hour or perhaps five hours over the course of a race meeting in terms of contamination”.
[60] Dr Caldwell stated that the control solution is there to assess whether the tea towel was suitable for the purpose in terms of its origin and the way it is cleaned and cared for.
[61] When it was suggested to her that the control solution may not touch all the pan including the lip, Dr Caldwell, after explaining the pan’s construction and how it is handled, stated that “the control solution is likely to cross at the same point in the pan that the urine crosses the pan. So in that regard the control solution would come into contact with that part of the pan that the urine comes into contact with, therefore serve its purpose”.
[62] When asked by the Tribunal what was her knowledge of the step between the bowl being placed down and the taking of the sample in this particular case, Dr Caldwell stated that “As I understand it the bowl was placed on the bench with bowl side down so any surface that can come into contact with the urine didn’t contact any other physical surface and it remained under the supervision of the sample collection official until it was then taken up and the urine sample collected”.
[63] When asked whether she saw a break in the chain, Dr Caldwell stated “there is no requirement under the procedures for it to be re-rinsed and unless there was some specific reason to believe there had been contamination that I don’t believe it is necessary for it to be done. Further, that the compounds we are talking about are not airborne so it relies on physical contact”.
[64] Dr Caldwell clarified that to her “bowl side down means the base of the bowl on the bench and the rim exposed to the air at the top and rim side down is in a draining position upside down”.
[65] Dr Caldwell was asked to comment on the scenario of the pan being placed with its rim against the tea towel after the unsuccessful attempt at taking the urine sample which would mean that the subsequent urine on the second attempt would come into contact with the pan which hadn’t come into contact with the control solution close to being in contact with the tea towel.
[66] Dr Caldwell stated “the rim of the pan if it were inverted would not then be in contact with the control solution at that point. When we talk about the rim of a collection bowl we are talking about a small surface area. I think the possibility of picking up a substance on that small surface area and then being transferred to into a urine sample we are talking about contamination of the tea towel. We are very unlikely to be talking about direct contact between a tea towel and medication. Medications are banned in sample collection facility. The scenario you’re mooting is the tea towel is contaminated and then contaminates the rim of the pan and then diluted into a urine sample. I don’t believe it is very likely that would cause an indicative level”.
[67] When it was put to her by Mr Neaves that the tea towel was not part of the swab kit Dr Caldwell stated “nor do we supply paper towelling which may be used as a substitute”. Dr Caldwell stated “she had no opinion on the integrity of the tea towel and no reason to believe that it is contaminated”.
Discussion
[68] In considering Rule 178 the Chairman of the Stewards Inquiry noted that it is generally seen as a rule of strict liability in that the trainer or the person in charge of the horse at the time is responsible for ensuring that that horse is presented to race does race free of any prohibited substance.
[69] The source of evidence as to whether or not a horse is presented with a prohibited substance is the sample taken from the horse prior to or following its running in any race. The Collection Procedures which apply to the taking and dealing with these samples have been mentioned above and in accordance with section 143(3) of the Act “strict compliance with the collection procedures is, therefore, mandatory. However, in determining the issue of compliance, section 352A is triggered.”[17]
[17] Whitaker supra at para 8.
[70] In the Tribunal considering whether a step in the Collection Procedures has been complied with it has been said that “it must be informed by an understanding of the collection procedures in general and by what those procedures seek to achieve. Each of the relevant steps seeks to ensure that, when the sample reaches the laboratory for testing, it is a sample taken from the correct horse, properly identified in the security documentation, and the sample has not been interfered with or contaminated either intentionally or inadvertently.”[18]
[18] Ibid at para 13.
[71] In this case there are several matters raised by Mr Manzelmann which go to compliance with the procedures. Firstly, that Mr Massingham may have removed his gloves before finally taking the urine sample from Rocket on By. While this matter was canvassed widely, Mr Manzelmann was not positive in his oral evidence that Mr Massingham did remove his gloves and Mr Massingham was forthright in his evidence that he kept them on. The Tribunal accepts the evidence of Mr Massingham that he left his gloves on during the whole sample taking procedure and that matter will not be canvassed further.
[72] Secondly, the urine collection bowl was set aside due to Rocket on By not co-operating and Mr Manzelmann stopped concentrating on it and it was not re-rinsed prior to the eventual taking of the sample. The Tribunal notes that it was Mr Manzelmann who brought to Mr Massingham’s attention that the horse was about to urinate and that this would of necessity mean that the bowl would need to be accessed quickly to take the sample. This tends to indicate that at that point Mr Manzelmann had no issue with the urine collection bowl being used to take the sample.
[73] All parties agree that the bowl was not re-rinsed by Mr Massingham and the Tribunal accepts that it was placed bowl side up on the tea towel and that in a similar way to the circumstances in Smyth[19] it is not likely that this would in itself have resulted in any contamination. Dr Caldwell’s evidence in regard to the possibility of contamination as a result of the bowl being placed bowl also assisted the Tribunal. Therefore this part of the application will not be canvassed further.
[19] Smyth v Queensland Racing [2005] QRAT 007.
[74] The other issue is the method with which Mr Massingham deals with the urine collection bowl. This was alluded to in his affidavit in terms of the use of a towel which is not part of the Collection Procedures. The divergence in his procedure from Appendix 8 only became apparent at the hearing and this requires further consideration.
[75] It is clear that Mr Massingham had a procedure to deal with the cleaning and keeping of the urine collection bowl but he by his own admission was not familiar with Appendix 8. In particular he did not clean the bowl with a scour pad and did not dry it with disposable paper towels. While he complied with the spirit of ensuring the cleanliness of the bowl he did not comply with the Procedures.
[76] The failure to use the scourer means that the pan is potentially not cleaned to the extent it should be. The use of the tea towel to rest the collection bowl on following its rinsing each time means that it is possible for cross contamination from one sample to another.
[77] Dr Caldwell in her evidence relied on the control solution as a way of ensuring the integrity of the sample. The Tribunal does not accept that the failure of a sample collection official to comply with the requirements of one part of the procedures can be remedied by the use of another part of the procedure. This is a rule of strict liability and the Collection Procedures have been developed to ensure that the result of the sample can be relied on without having to go beyond the sample.
[78] Dr Caldwell acknowledged that what Mr Massingham did was “a divergence from the procedures”. She did not say that it was in substantial compliance with the requirements of section 143(3) which would have been conclusive in accordance with section 352A(3) of substantial compliance. Dr Caldwell stated “as to my view on how that may affect the integrity of the sample I don’t believe that it is in anyway likely to do so.”
[79] It was also raised that there had been no other positive samples from that race meeting. There is no place for extrinsic evidence such as this to be brought in regard to a sample, it either stands or falls based on the manner in which it was collected and whether or not that was in substantial compliance with the Collection Procedures.
[80] For the Tribunal to uphold the Stewards decision it is required to be satisfied in accordance with section 143(3) of the Act that the control body has taken and dealt with the thing for analysis under the integrity board’s procedures. There is clearly major divergence from the Collection Procedures in regard to Mr Massingham’s cleaning and care of the of the urine collection bowl.
[81] The Tribunal may in accordance with section 352A be satisfied of the compliance with the requirements of section 143(3) was to the extent that the integrity of the analysis was not adversely affected. The Tribunal considers that the practices of Mr Massingham which are clearly not compliant with Appendix 8 raise doubt about the integrity of the sample as a result of the possibility of cross-contamination. The purpose of using disposable paper towels is clearly so that the bowl is dried in such a way as to avoid this and the use of the tea towel is contrary to that requirement. The use of the scour pad is designed to ensure that the bowl is cleaned to the greatest extent possible after each use. Dr Caldwell has not provided evidence of substantial compliance in accordance with subsection 352A(3) and while her evidence has been considered it does not convince the Tribunal of the integrity of this sample.
[82] The Tribunal is not satisfied that the integrity of the analysis was not adversely affected as a result of the failure of Mr Massingham to comply with Appendix 8 of the Collection Procedures.
[83] The certificate of analysis in respect of Rocket on By therefore cannot be relied upon and the conviction of Mr Manzelmann must be set aside and a finding of not guilty substituted in regard to the charge of presenting Rocket on By to race.
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