Racing Queensland Limited v Campbell
[2011] QCAT 565
•8 November 2011
| CITATION: | Racing Queensland Limited v Campbell [2011] QCAT 565 |
| PARTIES: | Racing Queensland Limited |
| v | |
| Mr Michael Ross Campbell |
| APPLICATION NUMBER: | OCR130-11 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 8 August 2011 |
| HEARD AT: | Townsville |
| DECISION OF: | Keta Roseby, Presiding Member Wayne Pennell, Member |
| DELIVERED ON: | 8 November 2011 |
| DELIVERED AT: | Townsville |
ORDERS MADE: | 1. The decision of the First Level Appeals Committee is confirmed. |
| CATCHWORDS: | Racing – greyhounds – presenting greyhound with prohibited substance in breach of GAR 83 – review of decision of the First Level Appeals Committee on penalty – whether the penalty imposed was manifestly inadequate – fresh hearing on the merits Queensland Civil and Administrative Tribunal Act 2009, ss 20, 24(1) Kehl v Board of Professional Engineers of Qld [2010] QCATA 50 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr I Brown, In-house Counsel & Stipendiary Steward |
| RESPONDENT: | Mr T Schmitt, Wilson Ryan & Grose |
REASONS FOR DECISION
Racing Queensland has sought a review of a decision of the First Level Appeals Committee dated 17 June 2011 in respect of Mr Michael Campbell. The Committee found that Mr Campbell, a professional trainer, did not present the greyhound Rylee’s Revival free of a prohibited substance to the Townsville Greyhound Club meeting on 12 April 2011 and was thereby guilty of an offence. The Committee imposed a $2,000.00 fine on Mr Campbell.
Racing Queensland seeks a review in relation to penalty only and on the basis that the fine is “manifestly inadequate”.[1]
[1] Application to review a decision OCR130-11 at p4.
Background
Rylee’s Revival competed at the Townsville Greyhound Club meeting on 12 April 2011 and was the winner of race 3. Following the race a urine sample was taken from Rylee’s Revival and the results showed the presence of the prohibited substance dexamethasone.
Mr Campbell is the trainer of Rylee’s Revival and brought the greyhound to the meeting on 12 April 2011.
Stewards Inquiry
On 9 June 2011 the stewards conducted an inquiry and charged Mr Campbell under Rule 83 of the Greyhound Australasian Rules (GAR). GAR 83 states:
Greyhound to be free of prohibited substances
“ …
(2) The owner, trainer or person in charge of a greyhound –
(a) nominated to compete in an Event;
…
(d) shall present the greyhound free of prohibited substance.
(3) The owner, trainer or person in charge of a greyhound presented contrary to sub-rule (2) shall be guilty of an offence.”
At the inquiry, Mr Campbell pleaded not guilty and stated that: “I can guarantee that I did not use this drug; have never used this drug, and this dog did not leave my house with this drug in it.”[2]
[2] Stewards Inquiry, page 13.
Further, Mr Campbell gave evidence as to how, he believed, Rylee’s Revival had tested positive to dexamethasone. Mr Campbell recounted a discussion he had had with a Mr Rob Lound[3], following the race meeting in question, while watching replays of the races and that Mr Lound had told him that another dog (Shez Torquing) had “spewed up a heap of watery, slimy substance in that kennel and it ran out the front and it was running down and dripping on the doors of the kennel below.”[4] The relevance of this was twofold. Firstly, Mr Campbell’s evidence was that Shez Torquing was in the kennel above Rylee’s Revival[5]. Secondly, Shez Torquing had also tested positive for dexamethasone.[6]
[3]Mr Lound is a registered handler and works with Mr Campbell on race nights. He is also a lessee of the greyhound. See Stewards Inquiry, page 2.
[4] Stewards Inquiry, page 13.
[5] As was the evidence of Mr Lound: FLAC transcript, page 29.
[6] FLAC transcript, page 19.
Mr Campbell went on to say that: “The conclusion I draw from that is that my dog has more than likely licked either a small amount or a fair amount of this vomit that would have ran down into its kennel”[7] and “somebody somewhere along the line has failed to provide me with a 100 per cent safe environment to lock my dog into while it was waiting to be swabbed”.[8]
[7] Stewards Inquiry, page 13.
[8] Stewards Inquiry, page 17.
Mr Campbell also noted that “this dog was as sound as an ox. He’s only a young dog; it was his first start that night, you can see on that. He requires no medication, no help, no nothing.”[9]
[9] Stewards Inquiry, page 17.
[10] Mr Campbell did not produce any evidence to the inquiry, such as evidence from a vet, about his theory and the possibility or likelihood of that occurring. At the inquiry, Racing Queensland made telephone contact with a vet by the name of Dr Bruce Young at the Racing Science Centre. Dr Young stated that:
“I think there are probably a couple of things I would like to say on that. The first thing that we need to be mindful of is that the sort of levels that are excreted in the animal’s urine is low, relative to what you would see in medication, given the animal. So, if that was potentially a source, it’s a very small concentration in the source. But probably the most important point is that if we accept that that was potentially a source of dexamethasone, the dog would have to (1) ingest it; he would then have to absorb it; he would then have to metabolise it; and he then would have to excrete it into his urine.
All those bodily functions take some time. They don’t happen in minutes, they don’t happen in several hours. It will vary, depending on the compound, but to happen all within the confines of kennelling at a race meeting, I guess I would probably best describe it as fanciful for that to have happened.”[10]
[10] Stewards Inquiry, page 28.
[11] Mr Young went on to say during questioning: “Yes. The only thing that would change what I said earlier was the potential concentration of the compound would be higher, if it was in vomit like that. But nonetheless, the time to absorb, metabolise and excrete I don’t believe is sufficient to explain what was found in your dog.”[11]
[11] Stewards Inquiry, page 29.
[12] In terms of penalty, Mr Campbell told the inquiry that a “lengthy suspension would spell disaster for me”[12] due to the number of dogs he trained.
[12] Stewards Inquiry, page 30.
[13] The stewards subsequently found Mr Campbell guilty of the charge under the provisions of GAR 83(2) and noted that the theory proposed by Mr Campbell had not been substantiated on the evidence received from Dr Young.[13]
[13] Stewards Inquiry, page 31.
[14] In arriving at the penalty of a $1,500.00 fine and 2 months suspension the stewards took into account the submissions made by Mr Campbell, his good record and a press release issued by Racing Queensland Limited dated 30 August 2010.[14] The press release referred to trainers who had been “disciplined repeatedly” and the requirement that those trainers will be asked to “show cause before having their licence returned” as well as a more general comment that Racing Queensland would be “looking to further strengthen penalties and the testing regime across all codes of racing to ensure a sufficient deterrent, especially for repeat offenders.”
[14]Exhibit 19 in the FLAC hearing and contained within Exhibit 2. See FLAC transcript, page 21-22.
Appeal to First Level Appeals Committee
[15] Mr Campbell subsequently appealed to the First Level Appeals Committee, in respect of both conviction and penalty, and made application for a stay of the suspension of his licence. The application for a stay was denied and the appeal was heard on 16 and 17 June 2011.
[16] In the appeal, Mr Campbell tendered a letter from Dr Deseree Viero, a qualified vet and the club veterinarian at the Townsville track, that stated, among other things:
“If the dog that vomited had been medicated with topical preparations containing dexamethasone in either the ears or the eyes in the past 8 hours, the drug would be in the vomit due to the relative anatomical nature of the ears, eyes, nose and throat. If a second dog then ingested that vomit containing the dexamethasone at high concentration, it would be feasible to suspect that the drug could be absorbed from the gastric mucosa and into the bloodstream especially if the dogs metabolism was high when it was hot post race.”[15]
[15] Letter from Dr Viero dated 13 June 2001 contained within Exhibit 2.
[17] Dr Viero also provided a character reference for Mr Campbell which stated, among other things: “he has always been very conscientious when therapeutic substances are administered to his dog to ensure that the withholding periods are being adhered to. He follows my advice which is to allow extra time to be sure the drug is well out of the animal.”[16]
[16] Letter from Dr Viero dated 13 June 2001 contained within Exhibit 2.
[18] Mr Campbell also tendered a letter from Dr Gerard King which stated, among other things: “it is quite conceivable that a dog will swab positive if he ingests vomit from another dog if it contains dexamethasone.”[17]
[17] Letter from Dr King dated 13 June 2001 contained within Exhibit 2.
[19] Mr Lound gave evidence at the hearing of the appeal for Mr Campbell and recounted what he had seen in the swabbing kennels on 12 April 2011.[18]
[18] FLAC transcript, page 29.
[20] Dr Young gave further evidence in the appeal and when asked whether a dog licking vomit could prove positive within the 2 hour 20 minute time frame available. Dr Young stated that: “Look, it is possible. Is it probable? I’d say it’s highly improbable, not probable.”[19] Dr Young also acknowledged that the absorption could be accelerated in a post-race situation.[20]
[19] FLAC transcript, page 35.
[20] FLAC transcript, page 34.
[21] In submissions from Racing Queensland, it was noted that the evidence of Dr Young referred to the short time frames within which the ingestion would have needed to occur, whereas the letters from Dr Viero and Dr King did not state whether or not their opinions took this into account.
[22] The Committee took into account the oral submissions from the parties at the hearing, the transcript of the Stewards inquiry, various documents that were exhibits in the appeal, together with the evidence of Mr Lound and Dr Young given at the hearing of the appeal.
[23] The Committee accepted the evidence of Mr Lound that there was vomit in the kennel and that Rylee’s Revival licked the vomit. However, the Committee accepted the evidence of Dr Young and therefore found that Mr Campbell had failed to discharge the onus on him to prove that the source of the drug was in the vomit in the swabbing stall.[21]
[21] FLAC decision page 9.
[24] The Committee dismissed the appeal against conviction but varied the penalty by imposing a $2,000.00 fine.
[25] Racing Queensland now seeks a review of that decision of the Committee.
Review of the decision by the Tribunal
[26] The function of the Tribunal is to review the decision of the First Level Appeals Committee and produce the correct and preferable decision by way of a fresh hearing on the merits.[22] The Tribunal is not required to identify error in either the process or the reasoning that lead to the decision being made. There is a presumption the original decision is correct.[23]
[22] QCAT Act, s 20.
[23] Kehl v Board of Professional Engineers of Qld [2010] QCATA 50 at paragraph 9.
[27] The Tribunal must consider and take into account all of the evidence that has been put before it and determine the appropriate penalty for the conviction.
[28] Racing Queensland, in its submissions[24], made a number of references to the ‘standard penalty’ and that it should be applied in this particular case because there was, in its submission, “no evidence of exceptional circumstances to change the standard penalty”. When the Tribunal queried what was meant by ‘standard penalty’, Racing Queensland suggested that a standard penalty was the coupling of a suspension and a fine. No authority was provided for the proposition other than reference to the penalties imposed for previous convictions.
[24]Including the applicant’s written submissions provided to QCAT at the hearing on 8 August 2011, paragraphs 6 and 9.
[29] Rule 95(1) of GAR states that:
“A person found guilty of an offence pursuant to or a breach of these Rules shall, at the discretion of the Controlling Body or the Stewards be liable to any 1 or combination of a –
(a)fine not exceeding such amount as specified in the relevant Act or Rules for any one (1) offence;
(b)suspension;
(c)disqualification;
(d)cancellation of registration; or
(e)warning off
as the Controlling Body or Stewards see fit.”
[30] In respect of the penalties imposed for previous convictions, Racing Queensland provided the Tribunal with the following tables of data:
a)Details of the penalties referred to at the First Level Appeals in respect of positive swabs to dexamethasone;[25]
b)Queensland Greyhound Racing Authority Inquiry Data Sheet (Drugs Offences) from 5 January 1995 to 8 March 2007;[26]
c)Greyhound Racing Victoria Persons Offence Data – Drug (commencing 1 January 2007)[27] (“penalty precedents”).
[25] Exhibit 1: Affidavit of Jaime Lee Knight sworn 22 July 2011, para 5.
[26] Exhibit 1: Affidavit of Jamie Lee Knight sworn 22 July 2011, Exhibit RQL4.
[27] Exhibit 1: Affidavit of Jamie Lee Knight sworn 22 July 2011, Exhibit RQL5.
[31] What is clear is that the GAR clearly contemplates a variety of penalties, none of which is considered or referred to as ‘standard’. Further, the penalty precedents evidence that there is by no means a standard penalty imposed and that penalties, in respect of dexamethasone, vary significantly, no doubt depending on the particular circumstances of each individual case. Specifically, there are penalty precedents that consist only of a fine without the coupling of a suspension. It would appear, from the transcript, the decision of the First Level Appeals Committee hearing, and indeed the wording of the affidavit itself[28] that the Committee were only referred to (a) and not (b) and (c) penalty precedents.
[28] Exhibit 1: Affidavit of Jamie Lee Knight sworn 22 July 2011, para 5.
[32] We think it is dangerous to refer to any penalty as ‘standard’ as this can easily lead to the undesirable result of each case being categorised before the so-called ‘standard penalty’ is imposed. Each case deserves to, and must, be heard and determined on its merits and considered within the unique set of circumstances applicable to the parties of the day.
[33] In any event, in its submissions, Racing Queensland did not refer to the balance or mix of suspension coupled with fine that would achieve such a standard, simply that there be the dual penalty.
[34] On this point, the Tribunal became aware, during the hearing, that on Mr Campbell applying for a stay of the suspension his licence, his request was denied and, as a direct result, Mr Campbell served 9 days and 2 race meetings suspension before the First Level Appeals Committee hearing took place.
[35] The Tribunal is not aware of the reasons why the stay was not granted but suggests that, on the face of it, it would have been appropriate to grant the stay. In any event, the fact is that Mr Campbell has served a period of suspension. It is not apparent from the transcript or the decision of the Committee that the members of the Committee were aware of this fact. Accordingly, as the Committee decision stands, Mr Campbell has in fact been penalised a 9 day suspension and a $2,000.00 fine, not a “stand alone fine of $2,000”.[29]
[29]Applicant’s written submissions provided to QCAT at the hearing on 8 August 2011, paragraph 5.
[36] In its submissions, Racing Queensland suggested that the “stand alone fine of $2,000” was “not an appropriate deterrent”[30]. In oral submissions for Racing Queensland, it was suggested that merely a fine for such a “serious offence” would not be a sufficient deterrent. The alleged seriousness appeared to stem from the fact that the drug required prescription (said because it was used to treat ailments) and that it had an impact on a large number of body systems.
[30]Applicant’s written submissions provided to QCAT at the hearing on 8 August 2011, paragraphs 7 and 8.
[37] Racing Queensland submitted that, as the Greyhound code was experiencing a higher number of positive swabs (than the other two codes of racing), the current penalties being imposed were not acting as a deterrent.[31] Racing Queensland also submitted that the press release taken into consideration by the stewards at the inquiry was also relevant for “first timers”, not only for repeat offenders. The Tribunal takes the view that the press release was clearly directed at repeat offenders.
[31] Exhibit 1: Affidavit of Jamie Lee Knight sworn 22 July 2011, Exhibit RQL1.
[38] The bottom line for Racing Queensland was that it intends to enforce penalties so that it creates the appropriate deterrent and it says that the current penalties are not doing that. Racing Queensland contended that a suspension is required, as a minimum, to serve the deterrent aspect. It was suggested that as some trainers can more easily afford a fine, they require a suspension in order to act as a sufficient deterrent.
[39] At the hearing, Mr Campbell acknowledged the need for a deterrent and that the industry should be drug free. Oral submissions made on Mr Campbell’s behalf suggested that a $2,000.00 fine was sufficient to do that in his case.
[40] Again, the penalty that will serve as a deterrent must be determined on a case by case basis, not on a pre-determination that only a suspension will have the desired effect and, of course, only after all other relevant considerations have been taken into account.
[41] Racing Queensland also submitted that the Committee erred in “providing Mr Campbell with an option of penalty”.[32] On a reading of the transcript, it is clear that the Committee was calling for further submissions, from both parties, as to the options the Committee was considering, in terms of penalty.
[32]Applicant’s written submissions provided to QCAT at the hearing on 8 August 2011, paragraph 10.
[42] In terms of the factors that might be taken into consideration in determining the appropriate penalty, there was no dispute that Mr Campbell was of good character, that, in 30 years, he had no prior convictions to be taken into account,[33] that he was the leading local trainer and a suspension would have a significant impact on him financially. At the hearing of the appeal, Mr Campbell said: “An 8 weeks suspension for me, it’s game over. … By the time the 8 weeks lapses for my suspension, I could be left with very few, if any dogs. How do I rebuild from there? You don’t. It’s taken me too many years to get to this position now.”[34] In oral submissions for Mr Campbell, it was noted that Mr Campbell is a full time trainer and a suspension would therefore have a greater impact on him than many of the other trainers who are only part-time or recreational in nature.
[33]A prior conviction 10 years ago was not relevant for the purposes of determining penalty: Racing Act 2002 (Qld), s 338. FLAC transcript, page 22.
[34] FLAC transcript, page 15.
[43] Furthermore and importantly, Mr Campbell denied that he ‘presented’ Rylee’s Revival with a prohibited substance and offered an explanation as to why the greyhound had returned a positive swab. Vets for both parties said in evidence that it was possible, although Dr Young said not probable. It was raised in submissions for Mr Campbell that, in cases where the evidence is equivocal, the benefit of the doubt, in terms of penalty, should be given to the trainer[35] and that, in this case, the evidence was equivocal. We agree with this submission on both counts. The Tribunal considers that the evidence before the Committee, in terms of conviction, was equivocal and that this must be taken into account when determining penalty.
[35]Webb v Racing Queensland Limited [2011] QCAT 44 at page 3, paragraph 11. This case dealt with the horse racing equivalent of GAR 83.
[44] It was also noted in oral submissions for Mr Campbell that the kennelling arrangements at Townsville have since been altered to single storey.
[45] It is also relevant to note that dexamethasone acts as an anti-inflammatory and immunosuppressant[36] and is therefore not a performance enhancing drug per se.
[36] Per Dr Young in Exhibit 5 in the FLAC hearing and contained within Exhibit 2.
[46] In balancing all the considerations referred to above, we have come to the conclusion that the balance is met by imposing a substantial fine upon Mr Campbell. We agree with the comments of the Committee that:
“Even allowing for a strengthening for the deterrent element, the penalty imposed upon [Mr Campbell] was excessive in circumstances where [Mr Campbell] had a good record. The committee finds that the stewards gave too much weight to the Press Release and insufficient weight to [Mr Campbell’s] submissions about the drastic consequences that a suspension would have on his career as a professional trainer.”[37]
[37] FLAC decision, page 11.
[47] We disagree with Racing Queensland that a fine of $2,000.00 is manifestly inadequate and believe that the Committee struck the right balance between the deterrent element and the submissions made by Mr Campbell as to the impact on his livelihood, his good record and the letter from Dr Viero attesting to Mr Campbell’s practice in relation to adhering to holding periods when therapeutic substances are administered to his dogs. Therefore, the decision of the Committee is confirmed.[38]
[38] QCAT Act, s 24(1).
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