Queensland Racing Integrity Commissioner v Wehlow - [2022] QCATA 126

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Queensland Racing Integrity Commissioner v Wehlow [2022] QCATA 126

PARTIES:

Queensland Racing Integrity Commissioner

(applicant/appellant)

v

jared wehlow

(respondent)

APPLICATION NO/S:

APL090-21

ORIGINATING APPLICATION NO/S:

OCR015-20

MATTER TYPE:

Appeals

DELIVERED ON:

3 August 2022

HEARING DATE:

18 November 2021

HEARD AT:

Brisbane

DECISION OF:

A/Senior Member Howe

ORDERS:

1.       Application for leave to appeal granted.

2.       Appeal dismissed

CATCHWORDS:

PROFESSIONS AND TRADES – LICENSING OR REGULATION OF OTHER PROFESSIONS, TRADES OR CALLING – THOROUGHBRED TRAINING – where a horse was tested following races – where the samples tested positive for a prohibited substance – where certain specific documentary evidence connecting the samples taken from the horse and sample numbers was missing – whether the missing evidence meant the chain of custody was fatally flawed – where a finding concerning the utility of the chain of evidence was a question of fact to be assessed on all the evidence – where there was certain other evidence connecting the horse to the original samples – whether the Tribunal could be satisfied on the balance of probabilities that the samples were from the horse concerned

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 146, s 147

Briginshaw v Briginshaw (1938) 60 CLR 336

DPP v Spencer [1999] VSC 301
Harrison & Anor v Meehan [2017] QCA 315

R v. Butler [2009] QCA 111
R v Gum [2007] SASC 311
Waltisbuhl v Qld All Codes Racing Industry Board [2016] QCAT 204

APPEARANCES & REPRESENTATION:

Applicant:

S McLeod QC instructed by QRIC inhouse legal

Respondent:

M White instructed by Butler McDermott Lawyers

REASONS FOR DECISION

Mr Wehlow was the trainer of the thoroughbred Mishnah which presented to race at Rockhampton on 31 January 2019 and on 14 February 2019.
Post-race urine samples were collected from the horse. Analysis subsequently showed samples, said to be from Mishnah, contained the prohibited substance dexamethasone.
Mr Wehlow was charged with two breaches pursuant to rule 178 of the Australian Rules of Racing, namely, Mishnah’s urine samples were found to contain a prohibited substance.
Mr Wehlow pleaded not guilty. An inquiry before Queensland Racing Integrity Commissioner (‘QRIC’) Stewards on 27 November 2019 found him guilty on each charge and he was fined $3,000.00 on each charge. The finding and penalties were confirmed on internal review on 6 January 2020.
Mr Wehlow applied to the Tribunal for external review. A finding by the Stewards that there was dexamethasone in the samples was not challenged, but whether or not the samples were from Mishnah was put in issue.
The learned member who determined the review found she could not be reasonably satisfied that the samples tested were the same samples that were taken from Mishnah on the relevant dates. She set aside the findings made below.
QRIC now appeal that decision. There are three grounds of appeal:

Ground 1

The Tribunal erred in finding that there was no evidence before the Tribunal connecting the urine samples taken from the horse, Mishnah, on 31 January 2019…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] QCATA 126
Decision Date: 3 August 2022

CaseChat Overview and Summary

The Queensland Racing Integrity Commissioner brought proceedings against Wehlow, a trainer of thoroughbred horses, following tests that revealed the presence of a prohibited substance in a horse he trained. The issue before the court was whether the absence of specific documentary evidence connecting the samples taken from the horse to the sample numbers rendered the chain of custody fatally flawed, thereby invalidating the test results. The court had to determine if the finding regarding the utility of the chain of evidence was a question of fact to be assessed on all the evidence, and whether there was other evidence that could connect the horse to the original samples. The court held that the absence of the specific documentary evidence did not necessarily render the chain of custody fatally flawed. It was a question of fact to be assessed on all the evidence, including other evidence that connected the horse to the original samples. The court found that there was sufficient evidence to connect the horse to the original samples, and therefore, the Commissioner could be satisfied on the balance of probabilities that the samples were from the horse concerned. The application for leave to appeal was granted, but the appeal was ultimately dismissed.

The court's decision hinged on the assessment of the evidence presented, including the documentary evidence that was missing and the other evidence that connected the horse to the original samples. The court found that the missing documentary evidence did not necessarily undermine the chain of custody, and that the other evidence was sufficient to connect the horse to the original samples. The court also noted that the finding concerning the utility of the chain of evidence was a question of fact to be assessed on all the evidence, and that the Commissioner was entitled to make a finding on the balance of probabilities. The court's decision was based on a careful assessment of the evidence presented, and it ultimately found that the Commissioner was entitled to be satisfied on the balance of probabilities that the samples were from the horse concerned. The application for leave to appeal was granted, but the appeal was ultimately dismissed, as the court found that the decision of the Commissioner was not wrong.

Orders

Orders of the court

1. Application for leave to appeal granted.

2. Appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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