Racing Victoria Ltd v Kavanagh

[2017] VSCA 334

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2017 0041

RACING VICTORIA LIMITED

Applicant

v

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

1. 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.

1. 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).