Pomfrett v Racing Queensland Ltd
[2011] QCAT 137
•15 April 2011
| CITATION: | Pomfrett v Racing Queensland Ltd [2011] QCAT 137 |
| PARTIES: | Mr Wayne Pomfrett |
| v | |
| Racing Queensland Ltd |
| APPLICATION NUMBER: | OCR013-11 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 11 March 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | Mr Brockwell Miller, Presiding Member Mr William LeMass, Adjudicator |
| DELIVERED ON: | 15 April 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | [1] The review be allowed. [2] The decision of the Stewards of the 21st day of January 2011 is set aside. |
| CATCHWORDS: | TCO2 presentation Rule 175B – substantial compliance Racing Act 2002, ss 143(3), 352A Whitaker v Harness Racing Queensland [2009] QRAT 14 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Wayne Pomfrett is represented by Mr Scott Neaves of counsel |
| RESPONDENT: | Racing Queensland Ltd was represented by Ms S Freeman of counsel |
REASONS FOR DECISION
This is the review of a decision made by the Stewards on the 21st day of January 2011 that Mr W Pomfrett, trainer, the applicant be disqualified for a period of six months, in breach of Rule 175B. He presented a horse, HUNTER MOON, to race at the Mackay Turf Club on the 19th day of October with a TC02 reading of 38.9.
The applicant contends that the certificate, (RS10/10 502) dated 22/10/2010 from Mr Batty of the Laboratory Racing Analytical cannot be relied upon to convict the applicant pursuant to section 178 of the Racing Act, because the proper procedures with respect to taking the sample were not adhered to by the persons charged with taking that sample.
On the 19th day of October 2010, the on course veterinary surgeon, Dr Westphal was directed by the Stewards, to take pre race samples from horses including the horse HUNTER MOON. The certificate referred to above was delivered with respect to the relevant sample numbered 300617 showing that the total TC02 or Plasma Total Carbon Dioxide contained in the horse’s blood was 38.9 (mmol/L), being in excess of the allowable concentration.
The transcript
The transcript reveals that Dr Westphal had not undertaken these Procedures before.[1] The Steward, Mr Jasprizza advised:
“I told her what horses needed to be sampled, I did ask if her if she knew the procedures and she told me that she was aware of ...”
[1] At page 7 of the transcript.
A discussion took place with respect to the Procedures and accreditation of veterinary surgeons performing this procedure, which ultimately concluded that accreditation was not required but as relevant is set out below:[2]
“THE CHAIRMAN: Well, there is no requirement for an accreditation, Mr Pomfrett. What do you mean “accredited”? They have access to this documentation. This documentation is freely available.
MR POMFRETT: Free available where?
THE CHAIRMAN: On the Internet, everywhere. The Racing Animal Welfare Integrity Board publish these documents – publish this document.
MR POMFRETT: Okay.
THE CHAIRMAN: Right. Every veterinary surgeon in Australia that’s registered as a veterinary surgeon knows about these procedures.”[2] Page 9.
Dr Westphal’s direct evidence concerning the Procedures to the enquiry is at page 11 as follows:
“Approach them with a sealed sample collection kit, show them the seal, the gloves on, open the seal in front of her and I proceeded and took a blood sample straight into the blood tubes that all had the numbers on them and she checked them and the numbers on the seal bag and then I went through and took the samples sealed the containers back up, showed her the paperwork, went through, she signed it that she was happy with everything that happened, she had witnessed it she was content with that.”
This must be contrasted with the evidence of the Doctor when later recalled. At page 57 trainer Pomfrett suggests:
“Then you went over to the wheelie bin, Cameron come back to where Tammy was and he brook the seal on the packaging and showed her that and then youse went over to the wheelie bin. Do you agree with that?
DR WESTPHAL: Yes but we were within sight of her.”
At page 58:
“DR WESTPHAL: I’m not sure mate. I thought that I did it all by the horse that day.
MR POMFRETT: Right but you are not sure?DR WESTPHAL: Not 100%.”
At page 59:
“So what Tammy is saying could be true? Could it be true?
DR WESTPHAL: Possible.”
[10] The transcript makes it abundantly clear that Dr Westphal took many samples both pre and post on the day and that whilst she was initially clear with respect to the procedures adopted for Hunter Moon, on later examination she was in fact entirely unsure.
[11] The evidence of the strapper Ms Tammy Cameron is given relevantly at page 20:
“THE CHAIRMAN: Did you witness the sealing of that particular sample on the day?
MS CAMERON: No
THE CHAIRMAN: Alright, why not?
MS CAMERON: She just took the blood and then told me to sign the form and then she took it away.
THE CHAIRMAN: Did she seal the samples in front of you or
MS CAMERON: No
THE CHAIRMAN: At the stall
MS CAMERON: No she still had the blood in her hand and I think those packages were still in the package. The containers were still in the package.”
[12] On page 22:
“MS CAMERON: She went to the bin. She was already at the bin and he showed me the package in front of the horse.”
[13] At page 23:
“MS CAMERON: And then she told me to write my name and sign and then she gave me the pink piece of paper.
MR POMFRETT: And went away and where were the blood vials when she went away?
MS CAMERON: In her hand
MR POMFRETT: In her hand
MS CAMERON: And he had hold of the packaging.”
[14] At page 24:
“MR POMFRETT: So what happened then, you come back to me to help me saddle the horse and Ms Westphal walked away
MS CAMERON: Yep
MR POMFRETT: With the vials in her hand
MS CAMERON: YepMR POMFRETT: And the mail person had the rest of the security packaging
MS CAMERON: Yep and that was all I saw.”
[15] The conclusion to be drawn from the above evidence is that Dr Westphal did not complete all procedures at the side of the horse. The blood was taken at the side of the horse, it was put into the sample tubes and then for some reason, perhaps with difficulty holding all of the sample kit blood tubes and documentation, Dr Westphal went to a nearby wheelie bin and completed documentation. She then returned to the strapper Cameron and requested that she sign the security documentation at a time when the blood tubes had not been placed in the packets and thereafter left the area still with the samples not in security packets but in her hand to be later sealed and sent to the laboratory.
[16] Exhibit 2 is the “sample security document for taking a sample or analysis”. We note that this document has been signed by both Dr Westphal and Ms Cameron and states:
“Tammy Cameron witnessed the whole process of collecting the sample, placing it in one or more containers and sealing the container or containers.”
Dr Westphal has signed,
“I Emily Westphal am the person who placed the sample in one or more of the containers and sealed the containers according to the procedures published by the Racing Animal Welfare Integrity Board.”
[17] Both of the above statements are factually incorrect in light of the transcript and evidence.
The law
[18] The Racing Act 2002 deals with samples for analysis as follows.
Section 143(3) Way control body may take or deal with a thing for analysis
If the results of analysis are to be used by the control body…the control body must* take and deal with the thing for analysis under the Integrity Board’s procedures mentioned in 1153 as in force at the relevant time (*my emphasis)
115(3)
Further, the Integrity Board has the function of …
(a) developing or adopting procedures..
(b) publishing the procedures
[19] The Integrity Board has published procedures as follows entitled The collection procedures.
[20] The introduction states:
“Persons who are responsible for taking and dealing with things for analysis must* comply with the procedures. The procedures reflect current knowledge technology and modern forensic and administrative practises.”
*my emphasis
[21] The relevant section is Appendix 3, the appropriate steps are as follows:
Step 6: Seal the entrance of the 3 pocket security pouch
Place the sealed bottles into the pockets of the 3 pocket security pouch.Secure the opening of each pocket of the security pouch.
Step 8
Ask the person in charge of the licensed animal to sign the Security Document to acknowledge that they witnessed the collection of the sample.
[22] It is clear that the collection procedures outlined above have not been complied with, in that the person in charge of the licensed animal has signed the security documents at a time prior to which the sealed bottles had been placed in the pocket of the security pouch and sealed.
[23] Whilst all of the above sections and procedures are mandatory the following must also be considered:
Section 352A Integrity of analysis of thing
(2) In making the 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 analysis was not adversely affected (substantial compliance).
(3) Evidence of an accredited analyst or accredited veterinary surgeon, for an accredited facility, that the method of taking and dealing with the thing for analysis 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.
[24] The Director of Integrity Operations Queensland Ltd, Mr Orchard, sought the evidence of an accredited veterinary surgeon to satisfy 352A(3) above and on 8 March 2011 Mr Orchard received correspondence from Dr E Bruce Young to the effect 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).” The Tribunal is indebted to Mr Orchard for shortening proceedings by bringing this to the Tribunal’s attention.
[25] The procedures described above had been the subject of prior litigation and the parties have referred in their submissions to the matter of Whitaker v Harness Racing Queensland.[3] This matter was the subject of an appeal to the District Court of Queensland which was remitted to QCAT for a further decision.
[3] [2009] QRAT 14, Racing Appeal Tribunal.
[26] The matter was considered by Senior Member Oliver and Member Buxton. At paragraph 13 the Members state:
“Each of the relevant steps seeks to ensure that when the sample reaches the laboratory for testing, it is a sample from the correct horse properly identified in the security documentation and the sample has not been interfered with or contaminated either intentionally or inadvertently.”
[27] At 16:
“Certainly, if non compliance affects the integrity of the sample then it can not be saved.”
[28] At 17:
“The integrity board have prescribed each of the 9 steps including step 7 and all have work to do.”
Conclusion
[29] In this matter the failure to comply with the Procedures is to a far greater extent than the failure in the matter of Whitaker (ibid).
[30] Whitaker had only one failure and that was to seal or staple the top of the bag.
[31] In this case it is apparent to the Tribunal that vials containing the horses blood samples were under the control of the licensed Veterinarian and kept by her separate and apart from the “sealed 3 pocket security pouch” both before and after the execution of the security pouch by the “person in charge of the licensed animal” which was signed at a time when the security packet did not contain the samples and hence was meaningless.
[32] Putting aside the correspondence from Dr Young with respect to substantial compliance, it is clear that there was a very real possibility that samples held by the Vet outside the security packet could have, at some stage, been substituted or mixed up with other samples taken from other horses as a real, not just hypothetical possibility.
[33] Therefore it follows that the certificate referred to in paragraph 2 above cannot be relied upon and accordingly the conviction must be set aside.
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