Racing Victoria Ltd v Kavanagh

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2017 0041

RACING VICTORIA LIMITED

Applicant

MARK KAVANAGH

and

DANNY O’BRIEN

First Respondent

Second Respondent

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JUDGES:	MAXWELL P, McLEISH JA and CAVANOUGH AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 June 2017
DATE OF FINAL SUBMISSIONS:	4 August 2017
DATE OF JUDGMENT:	17 November 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 334
JUDGMENT APPEALED FROM:	[2017] VCAT 386 (Garde J, President)

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OCCUPATIONAL REGULATION – Horse racing – Rules of racing – Interpretation – Prohibited substances – Cobalt detected in urine samples taken from horses – Trainers charged with causing cobalt to be administered to enhance performance – Whether absolute offence – Whether proof of knowledge or awareness required – Alternative charges based on proof of detection – Certified laboratory findings as prima facie evidence of detection – Whether certification procedure exclusive mode of proof – Charges dismissed by Victorian Civil and Administrative Tribunal – Appeal on questions of law – Appeal allowed in part – Racing Act 1958, Australian Rules of Racing AR 8(j), 175(h), 178, 178D, 178DD, 196(5), Local (Victorian) Rules of Racing LR 73A, Victorian Civil and Administrative Tribunal Act 1998 s 148.

EVIDENCE – Proof – Modes of proof – Regulatory offences – Prima facie evidence provisions – Provision for certified findings to constitute prima facie evidence – Whether proof by other means impliedly excluded – Certification procedure not exclusive – Australian Rules of Racing AR 178D.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr O P Holdenson QC with Mr A M Dinelli	Minter Ellison
For the Respondents	Mr D P Sheales with Mr T I Purdey	Lander & Rogers

MAXWELL P:

Summary

In June 2015, the stewards of Racing Victoria Limited (‘RVL’) laid 16 charges against the second respondent (‘O’Brien’) and four charges against the first respondent (‘Kavanagh’) for breaches of the Rules of Racing of Racing Victoria, as recognised in the Racing Act 1958 (the ‘Rules of Racing’).[1] The charges arose from the alleged detection of cobalt, at concentrations above the permitted threshold level, in urine samples taken from horses trained respectively by O’Brien and Kavanagh. The charges concerned four of O’Brien’s horses and one of Kavanagh’s (‘Magicool’).
[1]See, especially, Racing Act 1958 ss 3 (definition of ‘Racing Victoria’), 5E, 5F, 5G and 24A. The Rules incorporate the Australian Rules of Racing (‘AR’), made by the Australian Racing Board, and the Local Rules of Racing (‘LR’), made by RVL.

The most serious charge in each case was that the trainer had caused cobalt to be administered to the horse for the purpose of affecting its performance or behaviour in a race.[2] In the alternative, it was alleged that:

·cobalt had been detected in a sample taken from the horse following the running of a race, and the trainer had caused the cobalt to be administered;[3] and
·the trainer had brought the horse to a racecourse, and cobalt was detected in a sample taken following its running in a race.[4]

[2]AR 175(h)(i).

[3]AR 175(h)(ii).

[4]AR 178. The final alternative charge was of breaching AR 175(k). That charge was dismissed by the Tribunal and there is no challenge to that decision.

The charges were heard by the Racing and Disciplinary Board (the ‘RAD Board’) over eight days in November and December 2015. The RAD Board found that the most serious of the charges were proven. The other charges, being alternatives, were all dismissed.

O’Brien and Kavanagh (the ‘trainers’) then applied to the Victorian Civil and Administrative Tribunal (the ‘Tribunal’) for a review of the RAD Board’s decisions. That review was conducted by way of a hearing de novo.[5] The hearing before the Tribunal extended over 25 days between August and November 2016.
[5]Kavanagh v Racing Victoria Limited (Review and Regulation) [2017] VCAT 386 [4] (‘Reasons’); see also Racing Act 1958 s 83OH and Maund v Racing Victoria Limited [2016] VSCA 132 [37].

On 17 March 2017, the Tribunal upheld the trainers’ application for review and set aside the decisions and orders of the RAD Board. In their place, the Tribunal ordered that the charges against O’Brien and Kavanagh be dismissed. The decision of the Tribunal having been made by its President, Garde J, RVL now applies to this Court under s 148(1)(a) of the Victorian Civil and Administrative Tribunal Act 1998 for leave to appeal from that decision.

The critical finding made by the Tribunal was that neither trainer had had any knowledge of the administration of any prohibited substance to any of their horses. That finding was not challenged on this application. RVL’s grounds of appeal instead concern the Tribunal’s construction of the Rules of Racing, as in force at the relevant times (October–December 2014).

His Honour held that the ‘cause to be administered’ offences under AR 175(h) were not absolute liability offences but required proof that the person charged had some knowledge/intention/awareness/contemplation/foresight that the particular prohibited substance was to be administered. His Honour held, further, that the procedure laid down by AR 178D, enabling certified findings from two official racing laboratories to stand as prima facie evidence of detection, was the exclusive mode of proof. There having been non-compliance with specified steps in that procedure, his Honour held that RVL was not able to prove the detection of cobalt in the samples.

For reasons which follow, I respectfully agree with the first of his Honour’s conclusions. In my opinion, both the ‘cause to be administered’ offence, and the ‘administer’ offence with which it is associated, require proof of knowledge or awareness of the identity of the prohibited substance in question. Given his Honour’s findings of fact, the charges under AR 175(h) were correctly dismissed.

I respectfully disagree, however, with his Honour’s conclusion as to the mode of proof. There is nothing in the Rules, in my opinion, to suggest that the prima facie evidence provision was intended to exclude conventional methods of proof. All of the indications are to the contrary. It having been common ground that the evidence otherwise before the Tribunal established the presence of cobalt in the samples, the charges under AR 178 (which depended only on proof of detection) should have been found proved.

Accordingly, I would grant leave to appeal and allow the appeal in part. I would set aside that part of the Tribunal’s order which dismissed the charges under AR 178 and in their place order that each of those charges is found proved. The matter should be remitted to the Tribunal for consideration of penalty.

The offences

As already mentioned, each of the trainers was charged, in the alternative, with breaches of four rules. Those rules were, respectively, AR 175(h)(i), AR 175(h)(ii), AR 178 and AR 175(k). In order to provide the necessary context, I set out below the full text of AR 175(a)–(k) and AR 178:

AR 175
The Committee of any Club or the Stewards may penalise:
(a)Any person, who, in their opinion, has been guilty of any dishonest, corrupt, fraudulent, improper or dishonourable action or practice in connection with racing.
(aa)Any person, who in their opinion, engages in conduct that corrupts the outcome of a race or is intended to corrupt the outcome of a race. In this rule:
(i)conduct corrupts the outcome of a race if it:
(a)affects or, if engaged in, would be likely to affect the outcome of any race; and
(b)is contrary to the standards of integrity that a reasonable person would expect of persons in a position to affect the outcome of a race.

(ii)conduct means an act or an omission to perform an act.
(iii)engage in conduct means:
(a)do an act; or
(b)omit to perform an act.

(iv)outcome is to include any result within the race and is not to be limited to winning or placing in the race.

(b)Any person who corruptly gives or offers any money, share in a bet, or other benefit to any person having official duties in relation to racing, or to any owner, nominator, trainer, rider, or person having charge of or access to a racehorse.
(c)Any person having official duties in relation to racing, or a nominator, trainer, rider, or person having charge of or access to a racehorse, who corruptly accepts, or offers to accept, any money, share in a bet, or other benefit.
(d)Any person who wilfully enters or causes to be entered or to start for any race a horse which, or the owner or nominator of which, he knew to be disqualified.
(e)The owner, nominator, and trainer of any horse entered or run in any race, official trial, or jump-out under a fraudulently false description and any person having any interest in such horse or any of them.
(f)Any person who refuses or fails to attend or give evidence at any investigation, inquiry or appeal when directed or requested by the Principal Racing Authority or Stewards, acting under delegated authority from the Principal Racing Authority or other person authorised by the Principal Racing Authority, to do so.
(g)Any person who gives at any interview, investigation, inquiry, hearing and/or appeal any evidence which is false or misleading in any particular.
(gg)Any person who makes any false or misleading statement or declaration in respect of any matter in connection with the administration or control of racing.
(h)Any person who administers, or causes to be administered, to a horse any prohibited substance:
(i)for the purpose of affecting the performance or behaviour of a horse in a race or of preventing its starting in a race; or
(ii)which is detected in any sample taken from such horse prior to or following the running of any race.

(hh)Any person who:
(i)uses, or attempts to use, any electric or electronic apparatus or any improper contrivance capable of affecting the performance of a horse in a race, official trial, jump-out or training gallop; or
(ii)has in his possession, any electric or electronic apparatus or any improper contrivance capable of affecting the performance of a horse in a race, official trial, jump-out or training gallop.

For the purposes of this provision where an electric or electronic apparatus has been designed to deliver an electric shock it is deemed to be capable of affecting the performance of a horse in a race, official trial, jump-out or training gallop.
(i)Any person being an owner, nominator or licensed person who by advertisement, circular, letter, or other means offers to give information concerning his own or other horses in return for any monetary or other consideration, or any person who connives at such practice.
(j)Any person guilty of improper or insulting behaviour at any time towards the Committee of any Club or Association or any member thereof, or Stewards, or any official, in relation to their or his duties.
(k)Any person who has committed any breach of the Rules, or whose conduct or negligence has led or could have led to a breach of the Rules.
…
AR 178

Subject to AR 178G, when any horse that has been brought to a racecourse for the purpose of engaging in a race and a prohibited substance is detected in any sample taken from it prior to or following its running in any race, the trainer and any other person who was in charge of such horse at any relevant time may be penalised.[6]

[6]The reference to AR 178G is not relevant for present purposes.

Dealing first with AR 175(h), the charges as originally laid against each trainer alleged, in the alternative, that he had administered the prohibited substance, or had caused it to be administered, to the relevant horses. In the event, however, the only allegation maintained before the RAD Board, and the Tribunal, was that the trainer had caused the prohibited substance to be administered.[7]
[7]Reasons [452].

Thus understood, the alternative allegations under AR 175(h) were that:

·in contravention of AR 175(h)(i), the trainer had caused the prohibited substance to be administered to the horse for the purpose of affecting the performance or behaviour of the horse in a race; and
·in contravention of AR 175(h)(ii), the trainer had caused the prohibited substance to be administered to the horse, and it was detected in a sample taken from the horse following the running of a race.

The threshold question before the Tribunal was whether proof of either, or both, of these offences depended upon proof that the trainer had actual knowledge that the substance being administered was cobalt. The submission for RVL, both before the Tribunal and on this application, was that proof of knowledge was not required. The submission for the trainers, before the Tribunal and again on this application, was that proof of knowledge was required. His Honour upheld the trainers’ submission.

His Honour noted that AR 175(h)(i) required proof of purpose as a constituent element of the offence. His Honour continued:

The purpose must be either to affect the performance or behaviour of a horse or prevent it from starting If purpose is to be proven, intention is certainly relevant. It is difficult to see how purpose can be proven without proof of an express intention or an intention to be implied from the facts and circumstances. By contrast AR 175(h)(ii) does not require proof of purpose.[8]

[8]Reasons [475].

His Honour then referred to the earlier decision of the Tribunal in Corstens v Racing Victoria Limited.[9] In that case, the Tribunal was constituted by the former President, Ross J, and by Judges Bowman and Dyett. Their Honours approved a statement by Judge Williams in Homann,[10] that the offence against AR 175(h)(ii) was more serious than the offence against AR 178 since it required ‘the actual administration of the substance’.[11] In Corstens, the Tribunal said:

[I]n our view an offence under Rule 175 is the more serious as it involves, among other things, an intention on the part of the person charged, whereas intention is not a necessary element of a charge under Rule 178.[12]

[9][2010] VCAT 1106 (‘Corstens’).

[10][2009] VRAT 2.

[11]Corstens [2010] VCAT 1106 [12]–[13].

[12]Ibid [13].

His Honour turned to consider the meaning to be attributed to the word ‘cause’ in AR 175(h). After referring to Miller v Hilton[13] and O’Sullivan v Truth and Sportsman Limited,[14] his Honour concluded as follows:
[13](1937) 57 CLR 400 (‘Miller’).
[14](1957) 96 CLR 220.

Application of the principles of statutory construction and review of the decided cases concerning the word ‘cause’ for the purposes of AR 175(h) confirm that one person may be considered to have caused a particular result as a consequence of the actions of a second person if the first person:
(1) intentionally or consciously sought to produce the result;
(2)knew or intended that the actions of the second person would produce the result;
(3)had the purpose of bringing about the doing of the things that would amount to the result;
(4)contemplated or foresaw that the actions of the second person would or might give rise to the result; or
(5)refrained from making inquiries because the first person preferred not to know about the second person’s actions, or willfully shut his or her eyes for fear that he or she might learn the truth.

In my view, any one of these circumstances is sufficient to show that the first person caused the result. It is not essential under AR 175(h) that the prosecution prove that the first person or the second person knew that the substance to be administered by the second person was a prohibited substance. In the situation of willful blindness, neither the first person nor the second person may know that a prohibited substance is to be used at all.[15]

[15]Reasons [483]–[484] (citations omitted).

His Honour then set out his findings of fact, as follows:

(a)Dr Brennan was the principal perpetrator who injected vitamin complex into the drips administered to the O’Brien horses and Magicool. Dr Brennan either administered the drips personally, or directed other veterinarians to administer the drips.
(b)O’Brien and Kavanagh had no knowledge of the administration of any prohibited substance to any of their horses. They had no knowledge, inkling or suspicion that Dr Brennan was intending to use material from a bottle of vitamin complex of unknown provenance in the drips for their horses.
(c)Neither O’Brien nor Kavanagh or any person in their employ had any awareness of the intended administration of material from the vitamin complex bottle. They discovered the true position long after the event.
(d)While they discussed and were familiar in general terms with the contents of the drips administered by Dr Brennan, Dr Brennan did not disclose to them his use of the contents of the vitamin complex bottles. He did not record the administration of vitamin complex in the records relating to each horse.
(e)Neither O’Brien nor Kavanagh had ever shown any interest in cobalt or prohibited substances. They have unblemished records over a long period. Although both capable and experienced trainers familiar with the racing industry, neither had ever undertaken any research or made any inquiries about the administration of cobalt or any other prohibited substance. Administration of prohibited substances was not within their contemplation.
(f)O’Brien and Kavanagh reasonably expected Dr Brennan, a highly respected veterinarian, to adhere to the Rules of Racing and the ethical standards of a veterinarian. They did not expect the undisclosed use by him of a bottle of an unknown substance without proper labelling. This was a direct and serious breach of his professional duties as a veterinarian to them and to their horses. He had no excuse for doing so. It was not something that O’Brien or Kavanagh ever wanted, expected or suspected.
(g)As far as O’Brien and Kavanagh knew, the drip program was under trial as a substitute for the drench program. The programs had similar objectives, although the drip program was thought to be more effective, and better controlled.
(h)This is not a case of willful blindness, rather O’Brien and Kavanagh did not know anything about the administration by Dr Brennan of material from a vitamin complex bottle. They had no reason to suspect that a leading veterinarian would direct or permit anything of the sort to occur. They were surprised, if not stunned, when they learnt the truth. They continued to believe that Dr Brennan could not have done what was alleged long after the stewards’ inquiry had commenced.[16]

[16]Ibid [485].

On that basis, his Honour concluded, RVL had failed to prove that either of the trainers had ‘caused the administration of a prohibited substance’ to his horse(s).[17]
[17]Ibid [486].

Submissions on the appeal

In Miller, the High Court considered a provision which made it an offence for a person to ‘cause any vehicle to be driven’ on a controlled route.[18] The Court held that a father did not ‘cause’ his son to drive a vehicle on a controlled route when he did not know, or intend, that his son would drive the vehicle on that route. Rich J stated:

When it is expressly made an offence for one man to ‘cause’ another to commit what is forbidden as a crime we ought not to give any wide or general application to the word ‘cause’. In this subsection I take it to mean to procure or bring about. It refers to some intentional or conscious production of the effect. Consequences are infinite and I think that the present section meant to forbid only doing an act knowing or intending that it should produce the consequence that a vehicle is driven upon a road for the purpose of carrying persons or goods for hire if it turns out that the road is a controlled route.[19]

[18]Miller (1937) 57 CLR 400, 401.

[19] Ibid 413.

Dixon J similarly remarked:

In such a connection I think the word ‘cause’ does not extend beyond acts or omissions of a person who does or makes them either for the purpose of bringing about the doing of the things which amount to the principal offence, or at least contemplating or foreseeing that they will or may have that result. ... I think there must be some intention that a vehicle shall be driven on a route for the purpose of carrying passengers or goods for hire, or that this shall be contemplated or foreseen as a result of the act in fact causing it.[20]

[20]Ibid 415.

On this application, RVL submitted that principles drawn from the criminal law had no application to contraventions of the Rules of Racing, since such contraventions ‘do not involve criminal responsibility or create criminal offences’. It followed, according to the submission, that the High Court decisions provided no relevant assistance. Moreover, there was no place for the rebuttable presumption, applicable to statutes creating criminal offences, that mens rea must be proved before a person may be convicted.[21]
[21]He Kaw Teh v The Queen (1985) 157 CLR 523 (‘He Kaw Teh’).

Instead, RVL submitted, the construction of these provisions should be guided by the objects to which the Rules are directed. Reliance was placed on this Court’s recent statement in Racing Victoria Limited v Riley, as follows:

Horse racing in Australia is a highly regulated industry. This is hardly surprising, given the high level of public interest and participation and the consequent need to maintain public confidence in the industry. As has long been recognised, regulation is necessary both to ensure fair and open competition in racing and to maintain the health and wellbeing of horses and their jockeys.[22]

[22][2016] VSCA 230 [1] (‘Riley’). The Court cited R v Disciplinary Committee of Jockey Club;Ex parte Aga Khan [1993] 2 All ER 853, 857–8; Harper v Racing Penalties Appeal Tribunal(WA) (1995) 12 WAR 337, 347.

RVL also relied on the decision of the New South Wales Court of Appeal in Day v Sanders.[23] That case concerned the rules of harness racing but the relevant rule created a ‘presentation’ offence similar to that created by AR 178. It provided as follows:
[23](2015) 90 NSWLR 764 (‘Day’).

190 (1)A horse shall be presented for a race free of prohibited

substances.
(2)If a horse is presented for a race otherwise than in accordance with sub-rule (1) the trainer of the horse is guilty of an offence.
(3)If a person is left in charge of a horse and the horse is presented for a race otherwise than in accordance with sub-rule (1), the trainer of the horse and the person left in charge is each guilty of an offence.
(4)An offence under sub-rule (2) or sub-rule (3) is committed regardless of the circumstances in which the prohibited substance came to be present in or on the horse.[24]

[24]Ibid 768 [10].

The question for determination was whether a defence of honest and reasonable mistake was available in answer to a charge under sub-rule 190(2). Basten JA (with whom Leeming and Simpson JJA agreed) held that decisions taken from the criminal law were of only limited benefit in resolving that issue. His Honour said:

The present case does not involve the addition of a new offence to the general criminal law: it involves the creation by a regulatory body of an offence for breach of the rules governing the industry. While it is true that the available penalties include fines and deprivation of livelihood, the regulatory scheme bears a closer relationship to professional discipline than to the general criminal law. Indeed, it bears an even closer relationship to the law regulating sporting activities, although neither side took the court to that area of the law.
When considering the proper operation of a statutory provision which is silent as to the precise nature of the mental element required for an offence, it may be asked whether it would assist the purpose of the legislative scheme to put a person under strict liability or whether it can be said that, absent some conscious activity which may promote observance of the regulations, ‘there is no reason in penalising him, and it cannot be inferred that the legislature imposed strict liability merely in order to find a luckless victim.’[25]

[25]Ibid [70]–[71] (citations omitted).

Basten JA concluded that the relevant rule imposed absolute liability:

One might add that courts should be cautious about identifying where the ‘public interest’ lies in circumstances where there are undoubtedly conflicting interests and where the enforcement of a legitimate public interest may depend on contestable views about alternative measures. In the present case, there is a legitimate interest of every participant in harness racing (including the general public who bet on races) in a ‘level playing field’ involving ‘clean’ participants. As with all sports, there is a legitimate argument that these conditions can only be created by the imposition of absolute liability on the human participants.[26]

[26]Ibid [84] (emphasis added).

The respondents, for their part, submitted that the plain meaning of the words ‘administer’ and ‘cause’ in AR 175(h) imported the element of knowledge and intention into the rule. As a matter of ordinary language, it was contended, a person could not be said to ‘administer’ a prohibited substance without having some knowledge or belief about the identity of what was being administered. In relation to ‘cause to be administered’, the respondents relied on Miller for the proposition that the person said to have ‘caused’ the administration of a prohibited substance must have intended, or at least contemplated, that that was what would occur. Viewed in this way, it was said, the language of AR 175(h)

requires a system of organisation or implementation that is only compatible with the intended, knowing or believed administration of a particular substance.

The respondents contended that the principles developed in relation to criminal offences were ‘readily capable of application’ in ‘quasi-criminal or disciplinary prosecution for serious offences, such as the present case.’ In relation to AR 175(h)(i), they drew attention to the mandatory three year disqualification which applies when a breach of that rule is proved. Having regard to the penal consequences, they contended, ‘the purpose evident in the rule is the prohibition of wilful cheating on race day.’

In relation to AR 175(h)(ii), the respondents relied on what was said in Corstens,[27] both about the requirement of intention and about the relative seriousness of an offence against AR 175(h)(ii) as compared to the offence against AR 178. The latter offence — ‘the presentation offence’ — is committed when a horse is brought to a racecourse for racing and a prohibited substance is detected in a sample taken before or after the running of the race. Liability is imposed on the trainer and any other person in charge of the horse. Under AR 175(h)(ii), by contrast, liability falls on the person who administered the substance, or caused it to be administered. There being ‘higher culpability’ in that case, they argued, the judge was correct to find that knowledge or awareness had to be proved.
[27][2010] VCAT 1106.

Consideration

Although the submissions understandably concentrated on the phrase ‘causes to be administered’, the mischief to which AR 175(h) is directed is the administration of a prohibited substance. This point is made in an illuminating passage from the judgment of Dixon J in Miller, as follows:

In forbidding a person to cause a vehicle to be driven, the section is not dealing with conduct contributing to the occurrence of some physical event or condition independently of the intervention of the act of another person. It is dealing with the act of another person which by the earlier part of the provision has already been made an offence. Its purpose is to forbid any person from causing another person to commit that offence.[28]

[28](1937) 57 CLR 400, 414–5 (emphasis added).

The first question to be addressed, therefore, is the meaning to be given to the word ‘administers’ as used in the sense of giving something (to a person or an animal). Ordinary usage is typified by statements such as ‘the mother administered penicillin to her son’. In my view, such a statement conveys to the reader/listener that the mother knew what it was she was giving her son, not that she gave him something which happened (without her knowledge) to be penicillin. Again, if the mother left unlabelled tablets behind with an instruction to her daughter to ‘give your brother his tablets’, the sister in carrying out that instruction would not ordinarily be said to have ‘administered penicillin to her brother’.

To take a more immediately relevant example, if a drip was prepared containing cobalt and was left for the stable hand (who knew nothing about the presence of the cobalt) to give to the horse, I do not think it would ordinarily be correct to say that the stable hand ‘administered cobalt to the horse’. Rather, it would be said that the stable hand ‘gave the horse a drip which contained cobalt’.

On the assumption, however, that a person could meaningfully be said to have ‘administered’ a substance to a horse without knowing what it was, there is a choice of available interpretations. To decide which should be preferred, it is necessary to look at the particular context in which the word is used in these rules. For this purpose, it is necessary to examine the various ‘administration’ offences created by the rules.

An examination of the offence provisions in the rules (as they stood at the time) reveals that four of the six administration offences carry substantial, fixed penalties.[29] As has already been mentioned, the administration offence under AR 175(h)(i) carries a mandatory disqualification of three years. With the exception of the five year mandatory disqualification for ‘conduct that corrupts the outcome of a race’, three years is the longest period of disqualification specified for any breach of the rules.[30] (The offence under AR 175(h)(ii), on the other hand, carries no fixed penalty.)[31]
[29]See AR 196(5).
[30]Ibid.
[31]The other exception is AR 178AA(2).

The administration offence created by AR 177B(6) carries a mandatory disqualification of two years.[32] That rule provides that:

Any person who, in the opinion of the Stewards, administers, attempts to administer, causes to be administered or is a party to the administration of, any prohibited substance specified in sub-rule (2) to a horse being trained by a licensed trainer must be penalised in accordance with AR 196(5) …

[32]See AR 196(5).

The same mandatory two year disqualification attaches to the offence of administering an anabolic androgenic steroid. AR 8H(2) provides as follows:

Any person who:
(a)       administers an anabolic androgenic steroid;
(b)       attempts to administer an anabolic androgenic steroid;
(c)       causes an anabolic androgenic steroid to be administered; and/or
(d)is a party to the administration of, or an attempt to administer, an anabolic androgenic steroid,

to a horse commits an offence and must be penalised in accordance with AR 196(5).

Finally, there is a mandatory six month disqualification for the administration offence created by AR 178E(1), which provides as follows:

Notwithstanding the provisions of AR 178C(2), no person without the permission of the Stewards may administer or cause to be administered any medication to a horse on race day prior to such horse running in a race.

Several points may be made about these provisions. First, the fixing of such substantial, mandatory penalties conveys in the clearest terms how seriously the drafters of the rules viewed the administration of prohibited substances. This clear policy is reinforced by the fact that the administration of any medication whatsoever on race day carries a mandatory six month disqualification. (As noted earlier, two of the six administration offences do not carry mandatory penalties. With respect to my colleagues, I do not regard that fact as materially affecting the interpretive significance of mandatory penalties in the context of these rules.)

Secondly, the fixing of such penalties is a very strong indication that the conduct intended to be caught by these rules was intentional conduct, that is, conduct by a person with knowledge or belief about the identity of the substance being administered. In the absence of express words imposing absolute liability, I cannot think that the drafters of the rules were intending to expose to a mandatory two year disqualification a person who gave a horse a solid or liquid which — unbeknown to him/her — was, or contained, a prohibited substance.

Although the rules do not create criminal offences, the severity of the penalties is a key indicator here — as in the criminal law — that the offences include a mental element. What was said by the High Court in He Kaw Teh is pertinent in this context. For example, Brennan J said:

The presumption that some form of mens rea is an element in these offences is strengthened by the severity of the penalty and the enormity of convicting a person of one of these offences if he were innocently ignorant of the contents of a container he had imported or of the nature of a substance that he had imported if the contents or the substance turned out to be narcotic goods.[33]

[33]He Kaw Teh (1985) 157 CLR 523, 583; see also 535 (Gibbs CJ), 556–7 (Wilson J), 597 (Dawson J).

Thirdly, each of these four offence provisions attaches the same mandatory penalty to a person who administers a prohibited substance and to a person who causes a prohibited substance to be administered. The ‘causing’ offence and the ‘administering’ offence are thus seen as being of equal seriousness.

By parity of reasoning, therefore, it must be concluded that the ‘causing’ offences also depend on proof of knowledge. As in relation to the substantive administration offences, I cannot think that the drafters intended that a person who gave instructions to another person to administer a drip to a horse, wholly unaware that it contained a prohibited substance, should be automatically disqualified for two years following the detection of the prohibited substance in a urine sample.

This conclusion is reinforced by the fact that the rules make separate provision for offences which depend solely on proof of detection of a prohibited substance. Thus, under AR 178, detection of a prohibited substance in a race day sample taken from a horse exposes to penalty ‘the trainer and any other person who was in charge of such horse at any relevant time’. It was common ground before the Tribunal, and on this appeal, that AR 178 created absolute liability. That is, the mere detection of a prohibited substance is sufficient to expose the trainer to penalty. There is no requirement to show that the trainer had any knowledge of, less still any participation in, the administration of the prohibited substance.

The offence created by AR 177B(1) is likewise founded on detection, though it applies to samples taken at any time and provision is made for a ‘proper precautions’ defence. The rule relevantly provides as follows:

(1)When a sample taken at any time from a horse being trained by a licensed person has detected in it any prohibited substance specified in sub-rule (2):
(a)The trainer and any other person who was in charge of such horse at the relevant time may be penalised unless he satisfies the Stewards that he had taken all proper precautions to prevent the administration of such prohibited substance.[34]

[34]See also AR 177A.

In striking contrast to the administration offences, the offences resting solely on proof of detection do not carry a fixed or minimum penalty. This is doubtless because the degree of blameworthiness attaching to the trainer (and ‘any other person who was in charge’) will vary according to the circumstances under which the prohibited substance came to be in the horse’s system. Put another way, the conferral of a discretion with respect to penalty enables the harshness of absolute liability to be ameliorated in appropriate cases. The conduct constituting each of the four administration offences, on the other hand, is viewed as uniformly blameworthy (within each category) and hence as warranting a mandatory penalty.

On this analysis, the rules establish two distinct categories of offence. The first category comprises the four administration offences identified, for each of which the same fixed penalty applies whether the offender administered the relevant substance or caused it to be administered. For the reasons given, both the ‘administering’ offence and the ‘causing’ offence in each case depend on proof of knowledge. The second category comprises the ‘detection’ offences identified, for which there is no fixed penalty and no mental element.

The offence under AR 175(h)(i) falls into the first category. The conclusion that proof of knowledge is required for both variants of this offence — ‘administering’ and ‘causing’ — is reinforced by the language of AR 175(h)(i) itself. That rule is breached when a person administers a prohibited substance, or causes it to be administered, to a horse ‘for the purpose of affecting the performance’ of the horse in a race. As Cavanough AJA pointed out in the course of argument, the purpose must be shown to attach to the administration of the prohibited substance, or the action of causing it to be administered.

In my view, a person could not be shown to have had the relevant purpose — of enhancing performance — without knowledge or belief as to what it was that he/she was administering, or causing to be administered. In short, the mischief to which AR 175(h)(i) is directed is the intentional enhancement of the performance of a horse through the administration of a prohibited substance (whether or not the person responsible is aware that the particular substance is prohibited). The seriousness of intentional cheating of this kind is reflected in the three year mandatory disqualification fixed by AR 196(5)(vi). The higher penalty is explained by the fact that this offence involves not just administration but administration for a prohibited purpose.

It can now be seen that, as the Tribunal correctly held, the offence provisions in the rules involve

a nuanced hierarchy of offences where the more severe mandatory penalties match the gravity of the corresponding offences. It is logical that offences which involve the administration of prohibited substances intended to affect the results of races at race meetings are at the pinnacle of the offence hierarchy.[35]

[35]Reasons [474].

What, then, of the offence under AR 175(h)(ii)? That offence is committed when a person administers, or causes to be administered, to a horse a prohibited substance ‘which is detected in a sample taken from the horse prior to or following the running of any race’. This offence has two distinguishing features. First, unlike the other administration offences, it does not carry a fixed penalty. Secondly, unlike the offence under AR 175(h)(i), it does not depend upon proof of purpose.

I do not consider, however, that either of those differences would justify, let alone require, a different interpretation of the introductory words ‘administers or causes to be administered’ when used in connection with the sub-rule (h)(ii) offence, that is, as involving no mental element. Such an interpretation would be contrary to well-established rules of interpretation. First, it would mean that the introductory words of AR 175(h) would change their meaning depending on whether the offence charged was under (h)(i) or (h)(ii). Those words appear only once in the rule and the drafters must be taken to have intended the words to have a single meaning, which would apply whether sub-rule (i) or (ii) was engaged.

Secondly, to treat those words when used in relation to the AR 175(h)(ii) offence as involving no mental element would be contrary to the

fundamental rule of construction that any document should be construed as far as possible so as to give the same meaning to the same words wherever those words occur in that document.[36]

I refer here to my earlier conclusion that the words ‘administer’ and ‘cause to be administered’ are used consistently in the various administration offences as requiring proof of knowledge.

[36]Craig Williamson Proprietary Limited v Barrowcliff [1915] VLR 450, 452. See also Registrar of Titles (WA) v Franzon (1975) 132 CLR 611, 618; Firebird Global Master Fund II Ltd v Republic of Nauru (2015) 258 CLR 31, 86–7 [190].

Nor, with respect, does the requirement to prove knowledge under AR 175(h)(ii) mean that there is no additional work for that sub-rule to do, beyond what is covered by sub-rule (h)(i). Circumstances can readily be imagined where the stewards are able to prove (under (h)(ii)) that the offender knew what the substance was, without being able (or needing) to prove (under (h)(i)) what his/her purpose was in administering the substance.

On this analysis, neither trainer could have been proved to have contravened either AR 175(h)(i) or AR 175 (h)(ii) unless it were established that he had some knowledge or awareness of what the substance was which he was causing to be administered.

It follows that there was no error in his Honour’s interpretation of AR 175(h). On his findings of fact as to the trainers’ lack of knowledge that cobalt was to be administered, they could not have been found guilty of an offence under that rule.

Proof of detection of prohibited substances

As already discussed, proof of the offence created by AR 175(h)(ii) requires proof that a prohibited substance was ‘detected in any sample taken from [the] horse prior to or following any race.’ Detection in a race-day sample is also the basis of the offence created by AR 178.

Other offence provisions under the rules also rest expressly on (proof of) detection. Thus:

·under AR 177, detection of a prohibited substance in a race-day sample leads to disqualification of the horse from any race in which it started on that day;
·under AR 177B(1), detection of a prohibited substance in a sample taken at any time may result in the trainer being penalised and/or the horse being disqualified.

With the exception of AR 175(h)(ii), the administration offences are not made to depend expressly upon proof of detection. Nevertheless, proof of detection of a prohibited substance will very often be relied on to establish an administration offence, as it was in this case in relation to the respective charges under AR 175(h)(i).[37]
[37]See also Riley [2016] VSCA 230 [4].

Under AR 8(j), the stewards have power

[t]o take or cause to be taken any sample from any horse and to make or cause to be made any test to determine whether any prohibited substance is present in the system of the horse.

AR 178D provides as follows:

(1)Samples taken from horses in pursuance of the powers conferred on the stewards by AR 8(j) shall be analysed by only an Official Racing Laboratory.
(2)Upon the detection by an Official Racing Laboratory of a prohibited substance in a sample taken from a horse such laboratory shall —
(a)notify its finding to the stewards, who shall thereupon notify the trainer of the horse of such finding; and
(b)nominate another Official Racing Laboratory and refer to it the reserve portion of the same sample and, except in the case of a blood sample, the control of the same sample, together with advice as to the identity of the prohibited substance detected.

(3)In the event of the other Official Racing Laboratory detecting the same prohibited substance, or metabolites, isomers or artefacts of the same prohibited substance, in the referred reserve portion of the sample and not in the referred portion of the control, the certified findings of both official racing laboratories shall be prima facie evidence that a prohibited substance has been detected in that sample for the purposes of these rules.
(4)Where an Official Racing Laboratory is unable, for any reason, to analyse a sample to detect and/or certify as to the presence of a prohibited substance in that sample, that Official Racing Laboratory or the stewards may refer the sample, or any portion of the sample, to another Official Racing Laboratory for analysis.
(5)If the Official Racing Laboratory to which a sample or portion of a sample was referred in accordance with AR 178D(4) detects a prohibited substance in that sample or portion of that sample, that Official Racing Laboratory shall —
(a)notify its finding to the stewards, who shall thereupon notify the trainer of the horse of such finding; and
(b)nominate another Official Racing Laboratory and refer to it a reserve portion of the same sample and, except in the case of a blood sample, the control of the same sample, together with advice as to the identity of the prohibited substance detected.

(6)In the event of the Official Racing Laboratory to which a sample was referred pursuant to AR 178D(5) detecting the same prohibited substance, or metabolites, isomers or artefacts of the same prohibited substance, in the referred reserve portion of the same sample and not in the referred portion of the control, the certified findings of both Official Racing laboratories shall be prima facie evidence that a prohibited substance has been detected in that sample for the purposes of these rules.

The sequence of events

The stewards took samples from the horses in exercise of their power under AR 8(j). In accordance with the procedures in place between April 2014 and August 2015, they referred the samples to Racing Analytical Services Ltd (‘RASL’), a not for profit organisation established to provide drug testing services to the Victorian Racing Industry.[38] RVL and RASL are located in the same building in Epsom Road, Flemington.[39]
[38]Reasons [18], [594].
[39]Ibid [18].

In April 2014, RASL did not have the equipment necessary to analyse for the presence of cobalt in equine urine samples.[40] It did not obtain that equipment until mid-2015. For a period of approximately 15 months, samples were sent out of Victoria when cobalt concentrations were to be measured.
[40]Ibid.

In the present case, RASL tested the samples for prohibited substances other than cobalt. It sent portions of each sample to ChemCentre, a racing laboratory in Western Australia. ChemCentre detected the presence of cobalt in the sample portions which it analysed. It notified those findings to RASL, which then referred a reserve portion of each sample to the Hong Kong Jockey Club Laboratory (‘HKJCL’) in Hong Kong. The HKJCL also detected the presence of cobalt in the reserve portions.

The judge’s findings

As can be seen, AR 178D(1) requires that all samples taken by the stewards in exercise of their powers under AR 8(j), ‘shall be analysed only by an Official Racing Laboratory.’ His Honour found that both ChemCentre and HKJCL were ‘Official Racing Laboratories’ under the Rules of Racing at all relevant times.[41]
[41]Ibid [552].

His Honour found that, because RASL (as an Official Racing Laboratory) could not test for cobalt, sub-rule (4) was engaged. That is, RASL was

unable … to analyse a sample to detect and/or certify as to the presence of a prohibited substance in that sample.[42]

Under sub-rule (4), therefore, RASL was authorised to ‘refer the sample, or any portion of the sample, to another Official Racing Laboratory for analysis’.

[42]AR 178D(4).

It was at this point, his Honour found, that the process broke down.[43] As sub-rule (5) makes clear, the obligations which it creates are imposed on the laboratory ‘to which a sample or portion of a sample [is] referred in accordance with AR 178D(4)’. In this case, that laboratory was ChemCentre. As a result, when ChemCentre detected cobalt in the referred portion of the sample, it was required to notify its finding to the stewards (who would thereupon notify the trainer of the finding) and

nominate another Official Racing Laboratory and refer to it a reserve portion of the same sample and, except in the case of a blood sample, the control of the same sample, together with advice as to the identity of the prohibited substance detected.[44]

[43]Reasons [591]–[592].

[44]AR 178D(5)(b).

In the present case, that did not occur. As mentioned earlier, ChemCentre notified RASL of its findings and it was RASL which then referred a reserve portion of the same sample to HKJCL.

In assessing the implications of the non-compliance, his Honour noted that the Rules of Racing had effect both under contract law and under statute and that, as a result, principles of both statutory construction and contractual interpretation were relevant.[45] As to contractual analysis, his Honour concluded that sub-rules (1), (2), (4) and (5)

have all the hallmarks of stipulations that are conditions subsequent to the exercise of the power given in AR 8(j). AR 178D expressly refers to samples taken ‘in pursuance of’ the exercise of the specified powers. While AR 178D(4) is facilitative, AR 178D(1), (2) and (5) all use mandatory language including words like ‘shall’, ‘only’ and ‘is to’. There is a clear intent that these provisions are to be adhered to when samples taken under AR 8(j) are analysed and certified.[46]

[45]Reasons [602] (citations omitted).

[46]Ibid [604] (citations omitted).

Turning to principles of statutory interpretation, his Honour said:

In construing AR 178D, the purpose of AR 178D and the language used in the provision provide important guides:
(a) AR 178D prescribes the procedure to be adopted when samples are taken from horses by the stewards in the exercise of the powers in AR 8(j). The object underlying the provisions in AR 178D is to ensure that samples taken from horses are subjected to scientific analysis by two approved specialist laboratories in accordance with a stipulated protocol directed by the Rules of Racing.
(b) The protocol is needed for the protection of owners, trainers and other persons bound by the Rules of Racing. At common law, samples could not be taken from a horse without the owner’s consent. Once a sample is taken, the sample is solely within the control of the stewards. The protocol ensures that the interests of all affected persons are safeguarded, and that all are fairly dealt with by testing samples in accordance with the prescribed procedure.
(c) The language found in AR 178D(1), (2), and (5) is of a mandatory nature. Imperative words are present in each of these provisions.
(d) Under s 45(2) and (3) of the Interpretation of Legislation Act 1984 (Vic), the use of the word ‘shall’ would ordinarily convey the meaning that the power must be exercised. What is required must be done.
(e)As stated by French CJ in Momcilovic v The Queen, the principle of legality requires that ‘statutes be construed where constructional choices are open, to avoid or minimise their encroachment upon rights and freedoms at common law’. O’Brien and Kavanagh carry on businesses as licensed horse trainers. A penalty of up to three years’ disqualification can result from a finding of a breach. A construction which would preserve their right to insist on compliance with AR 178D would appear appropriate.[47]

[47]Ibid [609] (citations omitted).

His Honour relied on additional interpretive principles, namely, that:

·if an enactment specifies in affirmative language a procedure to be followed, it should be treated as negativing the existence of any other more general authority as to the same matter;[48]
·effect must be given to each specific provision;[49] and
·in interpreting a penal provision, any ambiguity should be resolved in favour of the person to whom the provision is said to apply.[50]

[48]Ibid [610].

[49]Ibid [616].

[50]Ibid [471], [621].

His Honour was referred to the decision of the Full Court of the Supreme Court of Western Australia in Harper v Racing Penalties Appeal Tribunal of Western Australia.[51] In that case, the stewards relied on sub-rules (2)–(4) of AR 178D (as they then stood) as the basis for a finding that the trainer had contravened AR 178. Those sub-rules were in the same terms as in 2014, save that sub-rule (3) concluded with these words:

the certified findings of both official racing laboratories shall be prima facie evidence upon which the stewards may find that a prohibited substance had been administered to the horse from which the sample was taken.[52]

In the 2014 rules, by contrast, the certified findings are prima facie evidence of detection of a prohibited substance in the sample.

[51][2001] WASCA 217 (‘Harper’).

[52]Emphasis added.

Murray J (with whom Wallwork and Miller JJ agreed) referred to an earlier decision of his in Danagher v Racing Penalties Appeal Tribunal,[53] which concerned the equivalent rule then in force (AR 117B). In Harper, Murray J said:

I said of that rule in Danagher … that the rule did not preclude other evidence being adduced which might be capable of establishing administration and the presence of a prohibited substance, bearing in mind that in this context that means the presence of the substance TCO₂ at a concentration greater than that prescribed by AR 178C(a), the same substance at any lower concentration not being a prohibited substance for the purpose of the rules, but simply being regarded as an endogenous substance occurring naturally in respect of which under the rules administration to the horse is incapable of being established by reference to or inference from the concentration of the substance present. I said:
The only effect of AR 117B was to give to the analyst’s report to which it applied, an effect which secured its admission in evidence and gave it alone and unaided by other evidence, a prima facie evidentiary effect; made it, in other words, capable alone of establishing the facts in issue.

To my mind that conclusion may be appropriately expressed in respect of AR 178D(3). It is a prima facie evidence provision. It does not preclude reliance upon other evidence. Where it applies the certified findings are admissible without more. No evidence need be called of the process of analysis. No expert evidence need be called about the level of TCO₂ established as a result of the analysis. The certificates are admissible by themselves, and of their own force and effect they establish the fact in issue of the level of the concentration of TCO₂ and therefore, it may be, the fact of administration at the relevant time.[54]

[53](1995) 13 WAR 531.

[54]Harper [2001] WASCA 217 [37] (citations omitted).

In the present case, the judge said:

I agree with the view expressed by the Full Court in Harper that the introduction of certificates of analysis into evidence does not preclude reliance on additional evidence. Additional evidence might strengthen or weaken the weight to be given to the certificates of analysis.
However, in Harper, there was no issue about compliance with the requirements of AR 178D. In fact, there was an express finding that the procedures in AR 178D(1) and (2) were followed. There was no reason why the certificates of analysis should not be tendered in evidence. There was no noncompliance with AR 178D suggested or found.[55]

[55]Reasons [623]–[624] (citations omitted).

His Honour’s conclusion was in these terms:

The testing of the O’Brien horses and Magicool was such that no nomination by the first official racing laboratory of the second official racing laboratory ever took place. The samples were not controlled in the manner required by AR 178D. The role of the second racing laboratory was reduced to relative insignificance. It was merely a sub-contractor analysing aliquots derived from samples solely at the direction of another. It made no independent nomination of a second racing laboratory. It did not have control over the reserve portion of any sample. The non-compliances were not trivial, insubstantial or merely technical.
…
Whether the construction of AR 178D is under the principles relating to the interpretation of contracts, or whether considered as a matter of statutory interpretation, the result is the same. Substantial departure from the requirements of AR 178D must inevitably bring with it significant consequences, here the inability of RVL to rely on testing, analysis and certification arising from the exercise of the powers contained in AR 8(j). I reject the submission by RVL that contravention of AR 178D has no effect and that the analyses of samples taken under AR 8(j) should be admitted into evidence regardless.
All of the considerations point to the conclusion that the consequence of RVL’s substantial departure from the requirements of AR 178D for the testing of equine urine samples taken from horses under the power conferred on the stewards must be the inadmissibility of the certificates and other evidence of analysis based on samples taken under AR 8(j).
For the reasons which I have given, the objections by O’Brien and Kavanagh to the admissibility of the evidence and certificates of analysis provided by ChemCentre and the evidence and test reports by HKJCL provided in 2014 and 2015 must be upheld. That evidence was obtained by a procedure that substantially departed from that required by AR 178D. RVL cannot rely on the analyses of the samples taken from the O’Brien horses and Magicool under AR 8(j).[56]
[56]Reasons [630]–[633] (emphasis added).

Consideration

As noted above, his Honour expressed agreement with the view of the Full Court of the Western Australian Supreme Court that

the introduction of certificates of analysis into evidence does not preclude reliance on additional evidence.[57]

His conclusion, however, was that because of what he characterised as RVL’s ‘substantial departure’ from the requirements of AR 178D, RVL could not rely either on the certificates (as prima facie evidence) or on the other evidence which — as his Honour accepted — established the presence of cobalt in the samples.[58]

[57]See [73]; Reasons [623].

[58]Reasons [632].

In effect, his Honour found that the procedures laid down by AR 178D(2)–(3) and (4)–(6) (as applicable) provided the exclusive means of proving detection of a prohibited substance in a sample. That conclusion appears to be in direct conflict with the view expressed by the Western Australian Full Court.[59]
[59]See Harper [2001] WASCA 217.

The certificates apart, there was expert evidence before the Tribunal which established, to his Honour’s satisfaction, that each of the relevant horses ‘had total cobalt concentrations as alleged, and on the days alleged in the charges’.[60] His Honour further accepted that the concentrations of total cobalt found could not have been achieved by the standard administration of legal substances. On the contrary, his Honour said, the evidence was ‘entirely consistent with the administration of quantities of cobalt in the form of cobalt chloride from the vitamin complex bottles.’[61]
[60]Reasons [513].
[61]Ibid [513]–[514].

Moreover, as his Honour found, the testing for cobalt was done by accredited laboratories, as the Rules of Racing require. In short, compliance with AR 178D(5) would not have altered the course of events in any substantive way. The reserve portion of each sample would still have been sent to an accredited laboratory for confirmation testing. The only difference is that the nomination of the laboratory, and the sending of the reserve portion, would have been done by ChemCentre, not by RASL.

In my respectful opinion, it is highly improbable — given the purposes served by the Rules — that the drafters would have intended procedural non-compliance of this kind to render inadmissible other evidence which was independently capable of proving the presence of a prohibited substance. I would not impute such an intention to the drafters unless the language of the relevant rule pointed unambiguously, and inescapably, to that conclusion.

Most importantly, the procedures laid down by AR 178D are self-evidently facilitative. Comparable evidentiary provisions under other regulatory regimes are designed to relieve the regulatory authority of having to lead evidence from witnesses — including expert witnesses — in order to prove the contravention. Instead, a procedure is laid out leading to the production of certificates which constitute either prima facie evidence or conclusive evidence of the matters certified.

Evidentiary provisions of this kind have long been a feature of (for example) road safety legislation, facilitating proof of a driver’s blood alcohol concentration,[62] and legislation providing for the recovery of taxation debts, facilitating proof of the amount of tax assessed.[63] They are also an established feature of the regulation of both the horse racing and harness racing industries.[64] Although such provisions take a variety of forms, they have consistently been construed as facilitative only and as not excluding other means of proof.[65]
[62]See now Road Safety Act 1986 ss 57–58.
[63]Income Tax Assessment Act 1936 (Cth) s 177 repealed by Treasury Legislation Amendment (Repeal Day) Act 2015 (Cth) s 3 and sch 2 item 24; see now Tax Administration Act 1953 (Cth) sch 1 ch 4 pt 4–90 s 350–10 item 2; see, eg, Deputy Commissioner of Taxation v Loftus (2002) 49 ATR 131.
[64]See Day (2015) 90 NSWLR 764.
[65]See, eg, Wright v Morton [1998] 3 VR 316, 326; FJ Bloemen Pty Ltd v Commissioner of Taxation (1981) 147 CLR 360, 376.

It would be a remarkable thing, in my view, if non-compliance with one of the procedural steps in the ‘short-cut’ procedure under AR 178D prevented the stewards from establishing the relevant contravention by conventional means of proof. I am unable to discern any policy rationale which might explain such an unusual restriction of modes of proof. Certainly, counsel for the respondents were unable to suggest any such rationale.

All of the policy objectives of the Rules would seem to point in precisely the opposite direction. That is, the importance of preserving the integrity of racing, and ensuring the health and safety of both horses and jockeys, points compellingly in favour of the stewards being able to rely either on a short-cut to proof or on proof by ordinary methods. As I have said, the intention to make the certification procedure the exclusive mode of proof would need to have been expressed in the clearest terms before I would have accepted that this was what the drafters intended.

In my opinion, the imperative words used in sub-rules (2)–(6) are to be understood in the context of the short-cut procedure of which they form part. That is, if the stewards wish to rely on the prima facie evidence provisions in sub-rules (3) and (6) respectively, then the steps prescribed must be complied with — including, of course, by the participating laboratories. But, with great respect to the judge, I do not regard the use of words such as ‘shall’ in relation to those prescribed steps as reflecting an intention that this was to be the exclusive method of proof.

On this analysis, there is no occasion to apply the principle of interpretation established by decisions such as Anthony Hordern and Sons Limited v The Amalgamated Clothing and Allied Trades Union of Australia[66] and Saraswati v The Queen.[67] This is not a case of a general provision being used to circumvent the requirements of a specific provision. On the contrary, as I have said, the shortcut procedure is provided as an alternative to the more demanding methods of proof available under the general law.
[66](1932) 47 CLR 1, 7; see Reasons [610]–[614].
[67](1991) 172 CLR 1, 24.

In supplementary submissions, the trainers sought to draw a distinction between those parts of AR 178D which define the evidentiary effect of the certified findings — sub-rules (3) and (6) — and the other parts of that rule. They conceded that the use of certificates was ‘an optional mechanism available to the stewards in order to attract the benefit of the so-called evidentiary shortcut in AR 178D(3) and (6)’. They further conceded that, in a case where the certification procedure was not available, the stewards could rely on direct scientific evidence of test results.[68]
[68]Reasons [19].

They maintained, however, that before the stewards could rely on such direct scientific evidence, ‘the relevant handling and analysis of the sample must comply with the mandatory procedure in AR 178D(1), (2), (4) and (5)’. As can be seen, this is merely a variation on the ‘exclusive mode of proof’ argument, and must be rejected for the same reasons.

It follows, in my view, that his Honour was wrong to exclude the non-certificate evidence which established that — as the charges under AR 178 alleged —a prohibited substance (cobalt) was detected in a sample taken from each of the relevant horses.

For completeness, I should mention an alternative argument relied on by RVL, concerning the relationship between RASL and ChemCentre. As his Honour noted, there was evidence before the Tribunal that RASL’s accreditation allowed it to sub-contract testing that it was not able to perform.[69] According to RVL’s appeal submission, what occurred here was that RASL sub-contracted ChemCentre to conduct the testing for cobalt in the relevant samples. This meant, it was said, that the cobalt testing had been done by RASL itself, in which case what had occurred complied with sub-rules (2) and (3).
[69]Ibid [582].

The response of counsel for the trainers was that this had never been part of RVL’s case before the Tribunal and that it was first formulated in these terms in written submissions served on the trainers after RVL’s oral submissions had concluded. RASL’s accreditation was not even in evidence. This explained, counsel submitted, why the judge had not addressed this as a separate argument.

In view of my conclusion as to the effect of the non-compliance, it is unnecessary to reach a concluded view on this question. This was, it seems to me, a matter proper for investigation but it did not in fact form part of the case which the Tribunal was called on to decide.

The 2016 testing

In view of my conclusion about the admissibility of the evidence establishing the presence of cobalt in the various samples, it is strictly unnecessary to deal with those grounds of appeal which concern the retesting of the samples in 2016. Since, however, those grounds were fully argued, it is appropriate to deal with them briefly.

The initial testing of the samples took place in 2014 and 2015. The samples were then retested in 2016, by which time RASL was in a position to test for cobalt. The Tribunal noted that the object of the additional testing was ‘to seek to overcome non-compliance with AR 178D in the previous testing’.[70]
[70]Ibid [636].

His Honour ruled that RVL could not rely on the evidence of the 2016 test results.[71] This was said to be so for two reasons. First, the particulars of charge in each case had referred only to the results of the original testing, and RVL had not applied to amend the particulars to make reference to the 2016 results. Secondly, his Honour held that there was an implied requirement that any additional testing be carried out within a reasonable time. His Honour said:

While there is no specific time frame in AR 178D for sample testing to be undertaken, the law would ordinarily imply a requirement that the duties imposed by AR 178D be undertaken and completed within a reasonable time in all the circumstances. While this argument was not raised by O’Brien and Kavanagh, the obligation to act within a reasonable time is well-established in law.[72]

[71]Ibid [648].

[72]Ibid [644] (citations omitted).

His Honour’s conclusion was in these terms:

I am satisfied in the circumstances of this case that a period exceeding 15 to 18 months from the relevant races and six months after the RAD Board decision exceeds what is a reasonable time for sample testing. It would be unjust and unfair to owners, trainers and punters if they had to wait for such a period before it was known whether a horse was disqualified or prize money forfeited.[73]

[73]Ibid [646].

With respect, I consider that the Tribunal was in error in excluding the evidence of the 2016 test results. First, as RVL submitted, there is an important distinction between the particulars of a charge and the evidence by which the charge will be proved. Here, the particulars to each charge included the allegation that the charged person had caused cobalt to be administered, and that ‘cobalt, at a concentration in excess of the 200mg/per litre in urine threshold specified in LR68A, was detected in [the] urine sample’. Those allegations were sufficient to inform the trainer both of the legal nature of the offence charged and of the particular act relied

on.[74]

[74]See Johnson v Miller (1937) 59 CLR 467.

Although the charges as drawn included the original test results as particulars, this was neither necessary or appropriate. The reference to test results was a reference to the evidence by which the charge would be proved. It should not have been included in the particulars. Accordingly, there was no need for any amendment of the particulars to enable reliance on the 2016 results.

Secondly, I see nothing in the text of the relevant rules which would require — as a matter of necessary implication — the imposition of a ‘reasonable time’ limit on retesting. On the contrary, as RVL pointed out on the appeal, the rules themselves make express provision (in AR 178DD) for samples to be stored and tested at a later time. As Garde J noted, this was not a point raised in submissions on behalf of the trainers.[75] On ordinary principles, therefore, his Honour should have invited submissions from RVL before coming to a decision.
[75]Reasons [644].

Finally, his Honour concluded that AR 178D:

does not authorise the conduct of a third and fourth test if the first two tests are non-compliant with AR 178D.[76]

It follows from what I have said that this conclusion cannot be supported either. The express provision for the storage and retesting of samples speaks for itself. There is nothing in AR 178D which suggests that the procedure there provided for was to be available once, and once only, in connection with particular samples.

[76]Ibid [644].

McLEISH JA:

I have had the advantage of reading in draft the reasons for judgment of Maxwell P and Cavanough AJA. I agree that the appeal should be allowed in so far as it concerns the charges under AR 178, for the reasons given by the President. As

to the interpretation of AR 178D, I agree with the reasons of both Maxwell P and Cavanough AJA for concluding that it is open to the stewards to rely on any evidence that tends to establish the presence of a prohibited substance in a sample taken from a horse under AR 8(j), whether or not AR 178D has been complied with. Although it is not strictly necessary to consider the arguments raised in respect of the 2016 testing, I further agree with the conclusions of the President and Cavanough AJA on that subject.

I also agree with Maxwell P that the appeal should be dismissed in relation to the charges under AR 175(h). However, my reasons differ from those of the President. In particular, I respectfully disagree with the conclusion that neither of the offences under that rule can be made out unless it is shown that the person charged with having caused a prohibited substance to be administered had some knowledge or awareness of what the substance in question was. In my opinion, the question of causation does not turn on such specific knowledge, but on the circumstances which led the person who administered the substance to do so. While knowledge of what the substance was might bear on that question, in my view it is neither determinative nor a necessary prerequisite to establishing causation.

As the President points out, the mischief to which AR 175(h) is directed is the administration of a prohibited substance. The rule penalises both the person who does the administering and a person who causes another person to do so. The respondents cited dictionary definitions of ‘administer’ as meaning:

attend to the organisation or implementation of; dispense; deal out; perform the rites of; direct the taking of; attend to the running of; manage; be responsible for the implementation of; give out or perform the rites of (a sacrament); direct the taking of; provide; apply; give; deliver.[77]

They submitted that, viewed alongside the word ‘cause’, rule AR 175(h) requires a system of organisation or implementation that is only compatible with the intended,

knowing or believed administration of a particular substance.[78]

[77]Concise Oxford English Dictionary (Oxford University Press, 12^th ed, 2011); Australian Concise Oxford Dictionary (Oxford University Press Australia, 5^th ed, 2009).

[78]The respondents conceded that it is not necessary to show that the person knew or had any awareness that the particular substance was a prohibited substance.

However, the element of ‘organisation or implementation’ which the quoted dictionary definitions contain relates to the word ‘administer’ in the sense of administering an organisation, program or event. This definition is inapt in the context of administering a medication or substance. In that more pertinent context, the relevant definitions are ‘provide’, ‘apply’, ‘give’ or ‘deliver’. As a matter of ordinary language, a person ‘administers’ a substance to a horse if the person gives or applies the substance to the horse. Such an action plainly entails at least an awareness that there is a substance being administered. But it does not, without more, necessitate an awareness of what that substance is.

Seen in that light, the respondents’ contention that the language of ‘causes to be administered’ connotes an element of knowledge, intention or belief as to a particular substance must depend on the meaning of ‘causes’ rather than ‘administer’. In that regard, two High Court decisions were urged upon us as illuminating the issue.

In Miller,[79] the question arose whether the operator of a general merchant business had caused his son to drive a vehicle on a ‘controlled route’ without the required licence. The operator had left his son in charge of the business for a weekend, during which time the son received a message asking that a tractor, whose delivery had been promised by the father, be delivered urgently to a location in South Australia. The father had given no instructions to his son about the delivery of the tractor. The son delivered the tractor and in doing so drove on a controlled route without a licence. It was not clear whether it was in fact possible to travel to the relevant destination without driving on any controlled route. A magistrate convicted the father, on the basis that the son’s trip on a controlled route was a natural and probable consequence of the father’s act of leaving him in charge of the business, and that the father must be taken to have intended those consequences.
[79](1937) 57 CLR 400.

The High Court agreed with the Supreme Court of South Australia, by majority (Latham CJ dissenting), that the conviction must be set aside. Rich J observed that the word ‘cause’ ‘may have very many different meanings and applications’, but that in a criminal statute it should not receive any ‘wide or general application’. He took it here to mean ‘to procure or bring about’, referring to ‘some intentional or conscious production of the effect’.[80] Dixon J agreed that to ascribe criminal liability to a person only because the act in question resulted as a natural and reasonable consequence of their actions was going ‘much too far’.[81] He observed that the word in its context had the purpose of forbidding any person from causing another person to commit an offence, and explained:

In such a connection I think the word ‘cause’ does not extend beyond acts or omissions of a person who does or makes them either for the purpose of bringing about the doing of the things which amount to the principal offence, or at least contemplating or foreseeing that they will or may have that result.[82]

Since, on the facts upon which the Supreme Court had proceeded, it could not be said that the father had intended that the vehicle should be driven on a controlled route or that he contemplated or foresaw this happening as a result of his own conduct, the conviction was rightly set aside.

[80]Ibid 413.

[81]Ibid 414.

[82]Ibid 415.

McTiernan J, to similar effect, held that the word ‘cause’ ‘is not a technical term and does not need exposition’. A mere causal connection, or relationship of cause and effect, resulting in a vehicle accidentally being driven on a controlled route would not suffice. However, causation would have been established had it been shown that the delivery could only be effected using a controlled route, that the father had expected the son to go by a controlled route, or that to take such route was incidental to a plan the father had conceived for having the job done. As the evidence stood, the father had no proven involvement in the choice of route and the decision to take a controlled route could have been taken independently by the son. No finding was made that the father intended, anticipated or expected that the son would use a controlled route. As such, it could not safely be inferred that the driving on a controlled route was other than an accidental consequence of the father’s conduct.[83]
[83]Ibid 416–7.

Although the judgments differ in emphasis, Miller shows that, in a criminal statute, the word ‘causes’ when used in conjunction with offending by another person will generally not extend to describe every factor which contributes to that offending, or all those acts or omissions of which the offending might be a natural and probable or reasonable result. Rather, there must be either an intention that the offending act take place or contemplation or foresight that the person’s conduct will lead to the offending act.

The critical question in Miller was not whether the father had caused his son to drive the vehicle, but whether he had caused him to do so on a controlled route, that being the relevant feature of the conduct that rendered it criminal. But it was clear that this requirement could have been satisfied without the father necessarily being aware that the road upon which he had caused his son to drive was a controlled route. As noted, McTiernan J would have upheld the conviction had it been shown that the delivery could only have been achieved by driving on a controlled route. As he put it, ‘if it were proved that the respondent caused the vehicle to be driven on that controlled route as alleged it would be no defence that he did not know that it was a controlled route’.[84] In other words, the father would have caused his son to drive on a controlled route, whether or not he knew that to be the case, as a result of having left him in charge of the business at a time when the promise to deliver the tractor came to need to be fulfilled. Similarly, Rich J said that the provision in question prohibited ‘doing an act knowing or intending that it should produce the consequence that a vehicle is driven upon a road for the purpose of carrying persons or goods for hire if it turns out that the road is a controlled route’.[85] Latham CJ dissented only because, on his view of the facts, it had been shown that the trip could only be undertaken by driving on a controlled route.
[84]Ibid 417.
[85]Ibid 413 (emphasis added).

Next, Maxwell P notes that there are six ‘administration’ offences under the Rules of Racing and that four of them carry penalties described by his Honour as substantial fixed penalties or substantial mandatory penalties. His Honour observes that these penalties indicate how seriously the drafters of the rules viewed the administration of prohibited substances. His Honour treats the fixing of such penalties as a very strong indication that the conduct intended to be caught by these rules was intentional conduct, that is, conduct by a person ‘with knowledge or a belief’ about the identity of the substances being administered.[96] Further, his Honour notes that each of these four offence provisions attaches the same mandatory penalty to a person who administers a prohibited substance as to a person who causes a prohibited substance to be administered. From this, his Honour reasons that the ‘causing’ offences likewise depend on proof of knowledge. His Honour contrasts the ‘administration’ and ‘causing administration’ offences with certain other offences, being offences that depend solely on proof of detection of a prohibited substance (‘absolute liability’ offences) and that do not carry a fixed or minimum penalty. His Honour notes that the offence under AR 175(h)(i) carries the highest fixed penalty (three years’ disqualification) amongst the drug offences, and observes that this may be explained by the additional requirement to demonstrate a malign purpose. His Honour refers with approval to what Garde J said about a ‘nuanced hierarchy of offences where the more severe mandatory penalties match the gravity of the corresponding offences.’[97] Maxwell P acknowledges that the offence under AR 175(h)(ii) carries no fixed penalty and does not depend on proof of purpose. However, his Honour considers that this does not warrant a conclusion that the offence under AR 175(h)(ii) involves no mental element.
[96]Citing He Kaw Teh (1985) 157 CLR 523, 535 (Gibbs CJ), 556–7 (Wilson J), 589 (Brennan J); see especially 583 (Brennan J).
[97]Reasons [474].

Maxwell P concludes that neither trainer could have been proved to have contravened either AR 175(h)(i) or AR 175(h)(ii) unless it were established that he had ‘some knowledge or awareness of what the substance was which he was causing to be administered’. It follows, Maxwell P further concludes, that there was no error in the interpretation by Garde J of AR 175(h) and that, on Garde J’s findings of fact as to the trainers’ ‘lack of knowledge that cobalt was to be administered’, the trainers could not have been found guilty of either offence under that rule.

McLeish JA disagrees with the line of reasoning adopted by Maxwell P in this regard. His Honour opines that, as a matter of ordinary language, a person ‘administers’ a substance to a horse if the person gives or applies the substance to the horse; that such an action entails at least an awareness that there is a substance being administered; but that it does not, without more, necessitate an awareness of what the substance is. McLeish JA indicates that he does not consider that the provision of a mandatory penalty in most (but not all) of the rules forbidding a person from administering or causing to be administered a substance points to the importation of a mental element into AR 175(h) requiring the person to be aware what substance is being administered. His Honour considers that the use of the formulation in AR 175(h)(ii) itself, where no mandatory penalty applies, tells against that conclusion. Further again, McLeish JA opines that the implication of a required mental element is unnecessary in the case of AR 175(h)(i), whose ‘purpose’ requirement addresses this issue specifically. Further, his Honour cites and draws upon what was said in Harper v Racing Penalties Appeal Tribunal (WA)[98] about the general policy of the Rules of Racing in relation to doping.
[98](1995) 12 WAR 337, 347–8. See also Riley [2016] VSCA 230 [1].

McLeish JA agrees with the ultimate conclusion of Maxwell P that, on the Tribunal’s findings of fact, the charges against the trainers under AR 175(h)(i) and (ii) fell to be dismissed for want of satisfaction of the element of causation, but, according to McLeish JA,[99] that ultimate conclusion was to be reached otherwise than on the basis that the expression ‘administers or causes to be administered’ in AR 175(h), in itself, is to be construed as imposing a requirement of knowledge as to the identity of the substance being administered.
[99]See, further, below [152].

I acknowledge that there is force in the points made by Maxwell P in the present respect, but, in the end, I respectfully prefer the approach taken by McLeish JA. I would adopt the reasoning of McLeish JA in support, and I would add the following comments.

In my view, the very fact that there is no ‘fixed’ or ‘mandatory’ penalty for two of the six ‘administration/causation’ offences, namely the offence under AR 175(h)(ii) and the offence under AR 178AA,[100] sorely tests the thesis that the penalty regime points to the posited mental element being implicit for all six of those offences. Moreover, it is a feature of each of the four ‘fixed’ or ‘mandatory’ penalty offences that something beyond, or something different from or more specific than, administering (or causing the administration of) a prohibited substance must be established. For AR 175(h)(i), there must be a malign purpose of one of the three specified kinds; for AR 177B(6), the prohibited substance must be one of the prohibited substances specifically listed in AR 177B(2); for AR 178E, the thing which must not be administered is ‘any medication’, as distinct from a ‘prohibited substance’, and the offence applies to pre-race administration on race day only; and for AR 178H, the substance must be an anabolic androgenic steroid. By contrast, AR 175(h)(ii) applies in relation to any ‘prohibited substance’. Although AR 177AA is confined to an ‘alkalinising agent’, AR 177AA(5) exempts certain forms of alkalinising agents, and thus tends to confirm that the drafters regarded alkalinising agents generally as being less serious than many other prohibited substances.
[100]AR 178AA prohibits administering, et cetera, an alkalinising agent.

Further, for one of the four ‘fixed’ or ‘mandatory’ penalty offences, namely the offence under AR 178E (race day medication), the prescribed period of disqualification is only six months. None of the ‘fixed’ or ‘mandatory’ penalties for drug offences is as high as the five year disqualification period prescribed by AR 196(5)(v) for a breach of AR 175(aa), which prohibits conduct that corrupts or is intended to corrupt the outcome of a race.

More importantly, none of the ‘fixed’ or ‘mandatory’ penalties is completely inescapable. AR 196(5) provides that the relevant specified period of disqualification must be imposed ‘unless there is a finding that a special circumstance exists whereupon the penalty may be reduced’. AR 196(5) leaves it to the local rules of each racing jurisdiction to stipulate what a ‘special circumstance’ may be. For Victoria, LR 73A provides that a special circumstance may be found if the person has assisted the authorities; or has pleaded guilty at an early stage; or if the person establishes that, at the relevant time, the person was suffering from causally relevant impaired mental functioning or was under causally relevant duress and that the impairment or the duress substantially reduces his or her culpability; or (most significantly) if, ‘in the interests of justice, the circumstances may be deemed or considered to be special’. In my view, this latter provision leaves plenty of scope for the decision-maker to find a ‘special circumstance’, especially where the mental state of the accused is found to involve no, or little, moral blameworthiness.

Further again, the ‘fixed’ or ‘mandatory’ penalties that apply, prima facie, to four of the ‘administration’ offences might be thought to be included mainly because, by and large, a person actually administering a substance or actually causing it to be administered will have a much greater opportunity to guard against inadvertent doping than a mere ‘presenter’ of a horse, not because of any implied requirement of knowledge of the identity of the substance.

In addition, I note that there are other variations of language as between the provisions which create, respectively, the six ‘administering/causing’ offences. AR 175(h)(i) and (ii) apply where the person ‘administers’ or ‘causes to be administered’ a prohibited substance. By contrast, AR 177B(6) applies not only to ‘administering’ or ‘causing’ but also where the person is ‘a party to the administration of’ a prohibited substance. AR 178AA(2) includes those three concepts and adds a reference to a person who ‘attempts to administer [an alkalinising agent]’. AR 177B(1) contains a strange amalgam of concepts. It imposes liability on a trainer upon mere detection of a prohibited substance in a sample taken from a horse in training, but subject to a defence of taking ‘all proper precautions to prevent the administration of such prohibited substance’.[101] These additional variations make it even less safe, in my view, to draw support from the other ‘administration’ provisions for a construction of AR 175(h) that would identify in its opening words (alone) an implicit requirement that, in all cases, the accused must have, to use the expression of Maxwell P, ‘some knowledge or awareness’ of what the substance was that was being, or was to be, administered to a horse. As senior counsel for RVL acknowledged at the hearing, the much amended Rules of Racing have many authors and may be likened to a ‘patchwork quilt’.
[101]Emphasis added.

Next, as already mentioned, the particular provisions of the Rules of Racing relating to prohibited substances are lengthy and complex. There are several long lists of substances which are declared to be prohibited either absolutely or in defined circumstances. Some descriptions and definitions are very broad in their language. Others are highly specific and technical. In some cases, a reader would need a good grasp of chemistry and of animal biology in order to fully understand the import of the relevant provision. Putting aside AR 175(h)(i), which has its own ‘purpose’ element, it seems to me, on balance, that the other prohibitions in the Rules of Racing against administering or causing the administration of prohibited substances do not envisage that it must be established that the accused person had some knowledge or awareness of the identity of the substance which the accused person was administering or causing to be administered, and all the more so where, as in the case of AR 175(h), the offence extends to administering any prohibited substance. How clear or detailed or scientifically accurate would such knowledge or awareness need to be? The following passage from the recent judgment of the High Court in Re Canavan & Ors,[102] relating to provisions of the Commonwealth Constitution that deal with eligibility to be elected to the Commonwealth Parliament, can readily be adapted and applied in the present case:

At the conceptual level, questions would necessarily arise as to the nature and extent of the knowledge that is necessary before a candidate, or a sitting member for the purposes of s 45(i), will be held to have failed to take reasonable steps to free himself or herself of foreign citizenship. In this regard, the state of a person’s knowledge can be conceived of as a spectrum that ranges from the faintest inkling through to other states of mind such as suspicion, reasonable belief and moral certainty to absolute certainty. If one seeks to determine the point on this spectrum at which knowledge is sufficient for the purposes of ss 44(i) and 45(i), one finds that those provisions offer no guidance in fixing this point. That is hardly surprising given that these provisions do not mention the knowledge of a person or the person’s ability to obtain knowledge as a criterion of their operation.

[102][2017] HCA 45 [55] (emphasis added) (citations omitted).

What, then, is involved in the notion of causation for the purposes of AR 175(h)? I agree with McLeish JA that, for the purposes of that provision, a person will have caused a prohibited substance to be administered where he or she has authorised the administration of a substance or exerted a capacity of control or influence to direct that to be done (or, I would add, has requested that to be done),[103] contemplating or desiring that the substance will be administered but not necessarily knowing what the substance is. I also agree with McLeish JA that for a person to give free licence to another person to administer to a horse belonging to the first person whatever substance the second person wished to administer might also, at least in some circumstances, amount to causation within the meaning of AR 175(h)(i) and (ii). However, as McLeish JA holds, on the unchallenged findings of fact made by Garde J, that is not this case. In this case, on the unchallenged findings of fact made, causation could not properly be established against the trainers. There was no finding that the trainers gave an open-ended licence to Dr Brennan. On the findings that were made, the trainers had no awareness or suspicion whatsoever, nor even an inkling, about the existence in Dr Brennan’s possession of the one and only substance that brought about the elevated cobalt readings. Nor, on those findings, did the trainers have any awareness or suspicion or even an inkling about Dr Brennan’s proposed inclusion of that substance in the drips. On those findings, the trainers no more caused the administration of a prohibited substance than if some unidentified, trespassing rogue (in racing parlance, a nobbler) had slipped some prohibited substance (whether cobalt or something else), unnoticed, into otherwise clean drips.[104]
[103]Picking up the example given by Kitto J in O’Sullivan (1957) 96 CLR 220, 230–1, to which McLeish JA refers.
[104]Cf Alphacell Ltd v Woodward [1972] AC 824, 835B–D, 845C–D, 846E–847B, 847E–G. Alphacell was relevantly cited by Garde J at Reasons [479].

As McLeish JA says, this conclusion as to causation means that it is not strictly necessary to consider the further issues in the appeal insofar as those issues relate only to the charges under AR 175(h)(i) and (ii).

Nevertheless, I make the following observations about the ‘purpose’ limb of AR 175(h)(i). It seems to be accepted on all sides that charges under AR 175(h)(i) involve some kind of mental element.[105] As indicated above, I consider that the words in the chapeau of AR 175(h) convey a basic mental element, namely that the person must intend that a substance be administered to a horse. It seems to me that the ‘purpose’ provision in sub-paragraph (i) of AR 175(h) expands that basic mental element, with the result that a person cannot be found to have administered a substance, or to have caused it to be administered, for the purpose of affecting the performance or behaviour of a horse in a race or of preventing a horse starting in a race, as the case may be, unless it be established that the person had knowledge or a belief about the identity of the substance, at least to the extent of having knowledge or a belief as to the effect or effects that the substance was likely to have on the horse.
[105]See Reasons [475]; see above [47]–[48] (Maxwell P); [121] (McLeish JA).

In the present case, on the Tribunal’s unchallenged findings of fact, it could not be said that the trainers caused a prohibited substance to be administered to the horses for a purpose proscribed by AR 175(h)(i). If they did not have any idea of the existence or the proposed use of the cobalt, how could they have had any purpose at all in relation to it? It is no answer to say, as RVL tries to say, that, on the trainers’ own evidence, they hoped or intended that the drip program would aid the recovery of the horses from strenuous training or racing. Even if such a mindset should have been attributed by the Tribunal to the trainers, and even if such a mindset could otherwise amount to a purpose of ‘affecting the performance or behaviour of a horse in a race’,[106] it could not amount to a relevant purpose in this case because, on the Tribunal’s unchallenged findings of fact, the trainers’ purpose would have attached only to the (clean) drip program as envisaged by the trainers, not to the extraneous substance that was inserted into the drips by Dr Brennan without the trainers’ knowledge or suspicion. That substance was the only substance to which the charge under AR 175(h)(i) related. There was, therefore, no connection between any purpose that the trainers may have had and the only substance that was the subject of the charge under AR 175(h)(i).
[106]See AR 175(h)(ii). I share the doubts of McLeish JA about this, but cf In the matter of Mr Sam Kavanagh, Dr Tom Brennan and Dr Adam Matthews (Unreported, Racing Appeal Panel of New South Wales, 6 May 2016) [74]–[78].

The findings of non-compliance with AR 178D

Maxwell P has recounted the findings of Garde J to the effect that, in 2014–2015, in carrying out the testing of samples taken from the horses under AR 8(j), the racing authorities failed in certain respects to comply with the procedural steps specified in AR 178D.

Ground 4 of RVL’s notice of appeal asserts that Garde J erred in law by not accepting RVL’s contention that AR 178D was in fact complied with. That contention, in turn, was based in part on evidence to the effect that RASL sub-contracted to ChemCentre the conduct of testing for cobalt in the relevant samples.

Maxwell P accepts the trainers’ submission that RVL raised this contention too late in the proceedings at the Tribunal and that, therefore, it did not form part of the case which the Tribunal was called on to decide. I agree with Maxwell P to that extent. However, in my opinion, RVL’s contention was bound to fail in any event. At the relevant time, RASL itself was unable to test for cobalt in equine urine. In those circumstances, in my view, the terms of AR 178D(4) precluded any argument based on sub-contracting. However, for the more general reasons given by Maxwell P, to which I will turn under the next heading, any non-compliance with AR 178D that there may have been in this case does not avail the trainers.

Under cover of a notice of contention,[107] the trainers assert that Garde J wrongly rejected their claim that there was a further respect in which the racing authorities had failed to comply with AR 178D in relation to the 2014-2015 testing. The trainers had claimed that neither ChemCentre nor HKJCL was an ‘Official Racing Laboratory’ within the meaning of the definition of that term in AR 1 of the Rules of Racing. According to the trainers, that definition implicitly required that the relevant laboratory be accredited in relation to its specific method of testing for the particular substance under consideration – in this case, cobalt in equine urine; and, so the trainers asserted, neither ChemCentre nor HKJCL was so accredited at the relevant time.
[107]Any question as whether, or in what circumstances or ways, a respondent to an appeal from the Tribunal to the Court of Appeal may proceed by way of notice of contention need not be considered in this appeal: cf Secretary to Department of Justice v Osland (2007) 26 VAR 425, 454 [111] (Ashley JA); Dover Beach Pty Ltd v Geftine Pty Ltd (2008) 21 VR 422, 451 [37] (Ashley JA); E Nekvapil, Thompson Reuters, Victorian Administrative Law, vol 1 (at update 180) [VCAT.148.460] and cases there cited.

Garde J dealt comprehensively with the trainers’ arguments in this regard.[108]
[108]Reasons [515]–[552].

I accept the submission by RVL that there is no error of law, nor any error at all, in the reasoning of Garde J concerning the definition of ‘Official Racing Laboratory’.

It follows that, in my view, this appeal falls to be dealt with on the basis that, in the course of the 2014–2015 testing, there was such non-compliance with AR 178D by the racing authorities as was found by Garde J, but no more than that.

It should also be noted that, as appears from the reasons of Garde J,[109] in 2016 RVL arranged for the retesting of the samples. RVL did so in response to the objections raised by the trainers to the 2014–2015 testing as being non-compliant with AR 178D. Those objections were first raised while the Tribunal’s review was in its pre-hearing stages. Hence, of course, the retesting occurred subsequent to the laying of the charges and subsequent to the hearing and determination of the charges at first instance before the RADB. The retesting was completed by July 2016. Generally speaking, it was confirmatory of the results of the 2014-2015 testing. The Tribunal’s hearing commenced on 1 August 2016 and concluded on 4 November 2016.
[109]Ibid [20(c), (d)], [21(c), (d)], [22(c), (d)], [23(c), (d)], [24(c), (d)], [494]–[496], [635]–[636].

The significance of the non-compliance with AR 178D

As Maxwell P recounts, Garde J held that, as a result of the racing authorities’ non-compliance with AR 178D in relation to the 2014–2015 testing, RVL could not rely on any evidence about that testing, even fresh scientific evidence about it.

Garde J further held that the original 2014–2015 testing (though unable to be relied upon in support of the charges) exhausted the powers of the authorities under AR 178D to test the samples. For that reason, among other reasons, Garde J held that the 2016 testing did not assist RVL to overcome the deficiencies in compliance with AR 178D that existed in the conduct of the first two tests.[110]
[110]Ibid [648].

Garde J made no distinction between the various types of charges so far as the implications of non-compliance with AR 178D were concerned.

As already indicated, it is not strictly necessary for this Court to consider the correctness or otherwise of Garde J’s approach to AR 178D insofar as his Honour applied his analysis to the charges under AR 175(h)(i) and (ii). The charges under AR 175(h)(i) and (ii) fell to be dismissed in any event for other reasons. However, the correctness or otherwise of Garde J’s approach to the effect of non-compliance with AR 178D continues to have significance for the outcome of this appeal in relation to the charges under AR 178. Further, this Court’s views about the implications of non-compliance with AR 178D in relation to AR 175(h)(i) and (ii) may be useful for future comparable cases.

For a time during the pendency of this appeal, I thought that it might be necessary to distinguish between ‘administration’ offences and ‘detection’ offences in relation to the implications, if any, of non-compliance by the racing authorities with AR 178D. In the wording of the ‘administration’ offences there is no reference to ‘samples’ or ‘detection’. The relevant issue is simply whether the person administered (or caused to be administered) a prohibited substance. I agree with Maxwell P, substantially for the reasons stated by his Honour, that non-compliance with AR 178D is not fatal to an administration charge. On the other hand, having regard to the wording of the ‘detection’ offences, ‘detection’ appears to be an element of each such offence.[111] I thought it arguable that, in relation to the ‘detection’ offences, the expression ‘is detected’ meant, in effect, ‘is detected in accordance with AR 178D’.[112]
[111]Cf Queensland Racing Integrity Commission v Kadniak [2017] QCATA 102 [4] (Carmody J).
[112]Cf Thompson v Byrne (1999) 196 CLR 141, 156–7 [37]–[38]; DPP v Colbey [2006] VSC 357 [25], [32], [33]; Tony Buti and Saul Fridman, ‘Drug Testing in Sport: Legal Challenges & Issues’ (1999) 20(2) University of Queensland Law Journal 153, see especially, 162–3.

At the invitation of the Court, the parties addressed that possibility in supplementary written submissions.

Having considered those submissions and having reflected further on the issue, I am persuaded by RVL’s argument that the requirement in each of AR 175(h)(ii) and AR 178 that a prohibited substance be ‘detected’ in a sample taken from a horse under AR 8(j) amounts to no more than a requirement that a prohibited substance be present in such a sample. The respondents themselves, in their supplementary written submissions, seem to accept this. If this construction of the Rules is correct, as I am now satisfied it is, then it is open to the stewards to rely on any sufficient scientific or other evidence that tends to establish the presence of a prohibited substance in the relevant sample, whether or not AR 178D has been complied with.

All the more clearly, the stewards may rely on any relevant evidence to establish an ‘administration’ charge.

In passing, I would observe that, in my view, these questions were not foreclosed by Harper.[113] Both AR 178 and AR 178D were in quite different form at the time of Harper.
[113][2001] WASCA 217.

It is unnecessary to determine the question whether the powers of the authorities under AR 178D to test the samples were exhausted by the 2014–2015 testing. Even if they were, nevertheless the 2016 testing may have been authorised as an exercise of the powers of the authorities under AR 178DD, which is set out below and to which I will shortly come.[114] Alternatively, the 2016 testing may have been authorised by AR 178D and AR 178DD in combination. In any event, the scientific and other evidence concerning the 2016 testing remained relevant and cogent as to the presence of excessive quantities of cobalt in the samples.[115]
[114]The trainers themselves asserted in their written case that the 2016 test results (described as the ‘Fresh Evidence’) were ‘obtained after the stewards exercised the power granted to them pursuant to AR 178DD’.
[115]Incidentally, counsel for the trainers conceded before this Court that the retesting in 2016 was done in accordance with the protocol under AR 178D.

Nor do I accept the trainers’ argument[116] that RVL’s reliance on the 2016 testing amounted to the raising of a new case against the trainers or was otherwise inappropriate or unfair in the context of the review proceedings at the Tribunal.[117]
[116]Raised as the second point of the trainers’ notice of contention.
[117]Cf Dawson v Greyhound Racing Victoria [2017] VSC 123.

Garde J gave two additional reasons for rejecting the evidence of the 2016 testing, namely (i) that the 2016 testing could not be relied on without an amendment to the particulars; and (ii) that it is implicit in the Rules of Racing that additional testing had to be done within a reasonable time and, on the facts, the 2016 testing had taken place beyond a reasonable time. In attacking those particular reasons, RVL sought to rely in part on AR 178DD, which provides:

AR 178DD

(1) The Stewards may direct that samples taken from a horse pursuant to AR 8(j) be stored, in whole or in part, and shall be disposed of only as they direct.

(2) Notwithstanding any other provision of the rules, the Stewards may direct that a stored sample, in whole or in part, be submitted or re-submitted for any test to determine whether any prohibited substance was as the relevant time present in the system of the horse from which the sample was taken.

(3) For the avoidance of doubt, when a prohibited substance is detected in a stored sample submitted or re-submitted for testing in accordance with sub-rule (2) the provisions of AR 177A, AR 177B and AR 178 shall apply.

(4) When a prohibited substance is detected in a stored sample submitted or re-submitted for testing in accordance with sub-rule (2) and that sample was taken from the horse prior to or following its running in any race, the provisions of AR 177 do not apply, provided that the horse concerned may be disqualified from any race in which it started on the day the sample was taken.

In response, the trainers sought to turn AR 178DD to their own advantage. They argued that the 2016 testing could only have been done under AR 178DD. They submitted that testing or retesting under AR 178DD can only be conducted to support a charge under one or other of the provisions of the Rules of Racing specifically mentioned in AR 178DD(3). Those provisions include AR 178 but not AR 175(h). I pause to say that I do not accept this argument. It gives far too much work to a provision which commences ‘For the avoidance of doubt’. Then, counsel for the trainers referred to AR 178DD(4), asserting that it showed that the testing or retesting of a stored sample must be separately particularised if it is to be relied upon in support of any charge. Again, I would not accept that argument. AR 178DD(4) operates only as a potential mitigator of the automatic operation of AR 177, which in turn relates only to the disqualification of horses from races where samples from the horses have tested positive to prohibited substances. AR 178DD(4) does not apply to charges against human participants in racing.

Garde J did not mention AR 178DD. It seems that neither side referred to it before his Honour.

However that may be, I agree with Maxwell P that Garde J erred in law insofar as his Honour held that the 2016 testing could not be relied on without an amendment to the particulars. I further agree with Maxwell P that Garde J erred in law insofar as his Honour held that it was implicit in the Rules of Racing that any additional testing had to be performed within a reasonable time. No such implication could stand with AR 178DD.

In any event, the evidence of the 2016 testing proved to be unnecessary. Garde J was completely satisfied by reference to the evidence given concerning the 2014–2015 testing, alone, that the samples had total cobalt concentrations as alleged.[118] Those concentrations were substantially in excess of the threshold.
[118]Reasons [494]–[515].

Subject to those observations, I agree with the reasons of Maxwell P in relation to the issues regarding the implications of non-compliance with AR 178D.

Conclusion

I agree with Maxwell P that leave to appeal should be granted and that the appeal should be allowed in part. I agree with the further orders proposed by Maxwell P.

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[2017] VSCA 334

17 November 2017