Riley v Racing Victoria Ltd
[2015] VSC 527
•1 October 2015 (Revised 12 October 2015)
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2015 2119
| MARK RILEY | Appellant |
| v | |
| RACING VICTORIA LIMITED (ACN 096 917 930) | Respondent |
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JUDGE: | Bell J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 23 September 2015 |
DATE OF JUDGMENT: | 1 October 2015 (Revised 12 October 2015) |
CASE MAY BE CITED AS: | Riley v Racing Victoria Ltd |
MEDIUM NEUTRAL CITATION: | [2015] VSC 527 |
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APPEAL – order of Victorian Civil and Administrative Tribunal confirming disqualification of licenced horse trainer for three years – whether error of law – Rules of Racing – prohibition on administration of substances affecting performance or behaviour of horse – exceptions to prohibitions defined in highly precise concentration units and threshold amounts - alkalinising agents not prohibited when evidenced by total carbon dioxide not above concentration of 36.0 millimoles per litre – legal significance of first decimal place – whether, properly interpreted, Rules permit proof of guilt on basis of rounded-up laboratory results – whether scientific evidence other than certified laboratory results properly admitted and capable of supporting finding of guilt – interpretation of provisions and rules affecting capacity of persons to carry out business or occupation of licenced horse trainer – principle of legality – interpretation of rules penal in nature or operation – ‘rounding-up’, ‘rounding-down’, ‘truncation’ - Racing Act 1958 (Vic) ss 5F, 5G.
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APPEARANCES: | Counsel | Solicitors |
| For the appellant | Mr P Tehan QC and Mr S Mukerjea | Patrick W Dwyer Solicitor |
| For the respondent | Dr C Pannam QC and Mr M Stirling | Minter Ellison |
HIS HONOUR:
Mark Riley was the trainer of Gold For Kev when it ran in a race at Sandown Racecourse on 13 July 2014. Blood samples taken from the horse on behalf of the stewards were tested by two laboratories for the presence of prohibited substances above the maximum level permitted under the Rules of Racing. Adjusted for measurement uncertainty, the result reported by one laboratory was that a prohibited substance was present in the blood in a concentration just above the maximum level, but that result had been rounded-up. So adjusted, the result reported by the other laboratory was that the substance was clearly not present in a concentration above the maximum level.
On charges brought by the stewards in the Racing Appeals and Disciplinary Board, Mr Riley submitted that he could not be found guilty of breaching the Rules upon the basis of the positive but rounded-up result of the first test and should be exonerated upon the basis of the negative result of the second test. The Board rejected those submissions. Relying upon the test results and scientific evidence presented by the stewards, it found that Mr Riley had breached the Rules and (among other things) disqualified him from being a licensed trainer for three years.
On Mr Riley’s application for review, the Victorian Civil and Administrative Tribunal followed the same path of reasoning and confirmed the disqualification. Mr Riley now appeals to this court against VCAT’s decision on grounds of error of law. The central issue to be resolved is whether, on the proper interpretation of the Rules, a person can be found guilty of breach upon the basis of a test result that has been rounded-up.
Charges brought against Mr Riley
As a licenced trainer, the Rules apply to and may be enforced against Mr Riley by virtue of s 5F(1)(a) of the Racing Act 1958 (Vic). The disciplinary functions of the Board under the Rules are recognised, indeed are mandatory, under s 5G of that Act.
The functions of the Board under cl 6A of the Rules include the function of discharging the original jurisdiction in cl 6A(2)(e) of hearing charges brought by the stewards. Clause cl 6C(2) states that the stewards ‘may’ charge a person with a ‘Serious Offence’; it confers a discretion to charge or not to charge a person which, by necessary implication, must be exercised reasonably.
The Rules make provision (cl 8(j)) for the taking by or on behalf of the stewards of samples of blood from race horses and the testing (cll 8(j) and 178D) of those samples. In the charges brought against Mr Riley under cl 6C, the stewards relied upon these clauses in relation to the samples of blood that were taken from the horse and the results of the laboratory testing of those samples.
Three charges were brought against Mr Riley under cl 6C but only one is relevant to this appeal.[1] That charge was that, contrary to cl 175(h)(i),[2] Mr Riley administered, or caused an administration of, a prohibited substance for the purpose of affecting the performance or behaviour of the horse.
[1]After finding charge 1 proven, the Board considered charges 2 and 3 not to be applicable. Likewise, VCAT determined that charge 1 was proven and did not consider charges 2 and 3.
[2]Clause 175(h)(i) provided:
The basis of the charges was that the horse’s blood contained ‘alkalinising agents’ which are defined as ‘prohibited substances’ in cl 178B(2). The stewards contended that the blood of the horse contained a concentration of total carbon dioxide (‘TCO2’) that exceeded the maximum allowable level specified in cl 178C(1)(a), namely ‘36.0 millimoles per litre’.[3] As can be seen, that level of concentration is specified by reference to a number of millimoles per litre that goes to one decimal place. The Rules are silent on whether rounding-up of results from the second to the first decimal place is permitted.
[3]Clause 178C(1)(a) of the Rules provided:
The following prohibited substances when present at or below the concentrations respectively set out are excepted from the provisions of AR 178B and AR 178H:
(a)Alkalinising agents, when evidenced by total carbon dioxide (TCO2) at a concentration of 36.0 millimoles per litre in plasma.
The test result reported by one laboratory, Racing Analytical Services Ltd (‘RASL’), was that the concentration of TCO2 in the horse’s blood was 37.1 millimoles per litre. On the evidence, that result reflected a base measurement of 37.061 millimoles per litre which the laboratory rounded-up to 37.1 millimoles per litre in accordance with the applicable Australian Standard (‘AS2706-2003’).[4] After making an adjustment for measurement uncertainty of 1 millimole per litre in line with Racing Victoria Ltd policy, a reported concentration of 37.1 millimoles per litre would usually be treated as 36.1 millimoles per litre, which is just above the maximum level specified in cl 178C(1)(a).
[4]AS2706-2003, Australian Standard: Numerical values–Rounding and interpretation of limiting values (Standards Australia International Ltd, 2nd ed, 2003).
The test result reported by the other laboratory, Racing Science Centre (‘RSC’), was that the concentration was 36.2 millimoles per litre. After making the same adjustment for measurement uncertainty of 1 millimoles per litre, this concentration would (under the policy) usually be treated as 35.2 millimoles per litre, which is clearly below the maximum level.
Adjustment for measurement uncertainty is not positively required by the Rules but, quite properly, is adopted as responsible and sound scientific practice. According to the evidence, adjustment in the amount of 1 millimoles per litre is a matter of policy on the part of Racing Victoria (and the other codes of racing). The policy was adopted in about 2007.
At RASL, prior to about 2007, concentration measurements were rounded down to the lowest appropriate decimal place. When 1 millimole per litre was adopted as to adjustment for measurement uncertainty, that labaratory decided to apply the normal rules of rounding as specified in the Australian Standard, now AS2706-2003. This decision was made upon the basis that the new adjustment for measurement uncertainty in the amount of 1 millimoles per litre included an allowance for rounding in the amount of plus or minus 0.05 millimoles per litre. In this appeal, Racing Victoria has defended this approach. I will not be going into the relationship between adjustment for measurement uncertainty and rounding-up as the latter is a matter of interpretation under the Rules, not determination by policy.
As to RSC, there is no evidence as to whether its reported test result was rounded. As noted, it did report its result by reference to an adjustment for measurement uncertainty in the amount of 1 millimole per litre, in line with Racing Victoria policy.
Prior to 2011, the policy of Racing Victoria was that charges would not be brought against a person where one test was over and the other test was under the threshold. Under that policy, it was necessary for two official racing laboratories to provide certified evidence that a prohibited substance had been detected in equine blood or urine above the threshold level, after adjustment for measurement uncertainty. The policy was changed in 2011. Under the new policy, charges may (not must) be brought where one laboratory provides certified evidence that a prohibited substance has been detected in equine blood or urine above the threshold level, after adjustment for measurement uncertainty, even where another laboratory provides certified evidence that a prohibited substance has been detected below the threshold level, after that adjustment. This approach is supported by cl 178D(3), which provides that the certified findings of both laboratories are ‘prima facie evidence that a prohibited substance has been detected in [the] sample for the purposes of [the] Rules’. That is the situation in this case and charges were brought, although it was a marginal case and the evidence was strongly disputed.
As relevant to this appeal,[5] Mr Riley contended before the Board that, under the Rules, the RASL certificate was not valid evidence because the base measurement of 37.061 millimoles per litre should not have been rounded-up to 37.1 millimoles per litre. To the first decimal place, 37.061 is 37.0 millimoles per litre. After making an adjustment for measurement uncertainty of 1 millimoles per litre in accordance with Victoria Racing policy, the concentration should have been taken to be 36.0 millimoles per litre, which is not above the maximum level of 36.0 millimoles per litre specified in cl 178C(1)(a).
[5]Mr Riley pressed a number of grounds of defence before the Board which he abandoned in the subsequent hearing before VCAT and are therefore not relevant to this appeal.
The Board rejected these submissions. It determined that the rounded-up blood concentration level of TCO2 of 37.1 millimoles per litre reported by RASL, adjusted for measurement uncertainty to 36.1 millimoles per litre, taken together with scientific evidence, established that the maximum allowable concentration of 36.0 millimoles per litre had been exceeded. In the exercise of its original jurisdiction under cl 6A(2)(e) of the Rules, it found charge 1 proven. Pursuant to cl 196(5)(vi) and after finding that no special circumstances existed, (among other things) it imposed the mandatory disqualification period of three years.
Under s 83OH(1) of the Racing Act, Mr Riley applied to VCAT for a review of the decision of the Board.
Determination of VCAT
By agreement between the parties, the issues before VCAT were limited to whether the stewards had established that the blood of the horse contained a prohibited substance.
As they did before the Board, the stewards relied upon the test results of the two laboratories, especially the rounded-up result of RASL. In response, Mr Riley contended that the RASL certificate should be excluded as evidence because the base measurement had been rounded-up. Under the Rules, rounding-up was not permissible. Once this certificate was excluded, there was no case to answer because, after adjustment for measurement uncertainty under the policy, the concentration specified in the RSC certificate was clearly below the threshold.
In reply, the stewards advanced an alternative case. They contended that, if laboratory results could not be rounded-up and the RASL certificate was impugned, scientific evidence going beyond the certificates established that the threshold had been exceeded. The stewards particularly relied upon evidence given by Dr John Vine, a scientific consultant to RASL. As set out in VCAT’s reasons for decision, that evidence was:
We can be more than 99.99% confident that both the TCO2 concentration of 37.1 millimole per litre recorded by RASL and the calculated unrounded mean concentration of 37.061 millimoles per litre exceed the threshold concentration of 36.0 millimoles per litre or more precisely there is less than one chance in 185,000 that TCO concentrations of 37.1 millimole per litre and 37.061 millimoles per litre do not exceed the threshold concentration of 36.0 millimoles per litre and further that even with the RSC certificate level of 36.2 millimoles per litre one can be 84% confident that it exceeds the threshold of 36 millimoles per litre.[6]
The stewards also contended that Mr Riley should not get the benefit of both a rule-based prohibition on rounding-up and the policy-based adjustment for measurement uncertainty, for the latter included an allowance for rounding-up. If rounding-up was not permitted under the Rules, it was not appropriate to make an adjustment for measurement uncertainty under the policy.
[6]There are a number of discrepancies between this part of Dr Vine’s evidence as set out in VCAT’s reasons for decision and Dr Vine’s statement of evidence. However, those discrepancies are not material.
Mr Riley did not challenge the evidence of the stewards’ scientific witnesses nor make any evidentiary response to their alternative case. In respect of that case, he contended that the stewards’ evidence did not address the fundamental requirement of cl 178C(1)(a) that the concentration be proved to be above 36.0 millimoles per litre. As results could not be rounded-up, the concentration must be proved to be at least 36.1 millimoles per litre. He also contended that he had a legitimate expectation that the measurement uncertainty policy would be applied even if rounding was not permissible. It will not be necessary for me to consider whether such an expectation was legitimate.
Constituted by Senior Member RG Williams, VCAT rejected Mr Riley’s submissions and upheld the decision of the Board. As revealed by the published decision, he gave three reasons.
The first reason was the ‘straightforward conclusion’ (as Racing Victoria submitted) that 36.061 exceeded 36.0 millimoles per litre. This reasoning was revealed in the statement of the senior member that he considered ‘it to be a Herculean task to ask the Tribunal to accept the proposition that 36.061 is not in excess of 36.0’.
The second reason was that the Rules permitted rounding-up:
I consider that, it if is necessary to deal in end figures of no more than one decimal point, then the rounding-up is justified in cases of this nature for a number of reasons: first, it is scientifically accepted. Secondly: it is accepted as per Australian Standards. Thirdly: it is undertaken routinely by official racing laboratories as a proper method of calculation. Fourthly: it is consistent with the application of the 1.0 reduction for uncertainty. Fifthly: it is implicitly endorsed in the NATA protocol if one peruses that document in full and, finally, to not use the rounding-up technique could lead to absurd and unreal outcomes such as the proposition that 36.061 is not in excess of 36 [sic].
The third reason was that the stewards’ alternative case, based on the evidence of Dr Vine, should be accepted:
I consider that … the evidence of Dr Vine, which was accepted by the RAD Board and which insofar as is necessary I accept, amply proves to my comfortable satisfaction that samples of blood taken by the Stewards from Gold For Kev on 13 July 2014 contained levels of TCO2 in excess of the 36 millimoles per litre threshold and I point out that Dr Vine based his opinion, not only on the rounded-up reading of 37.1, but also on the lower unrounded reading of 37.061 and, I might say, even on the other laboratory reading of 36.2. Accordingly, I have no hesitation in finding that Charge 1 is established.
On the basis of those three reasons, VCAT made these orders:
1.The decision of the Racing Appeals and Disciplinary Board made following a hearing on 29 January 2015, in respect of Mark Riley, is affirmed.
2. The application for review is dismissed.
In consequence, the three years’ disqualification of Mr Riley’s trainer’s licence that was imposed by the Board was confirmed. It is from these orders that Mr Riley appeals to this court.
Grounds of appeal
By virtue of s 148(1)(b) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), Mr Riley’s appeal must be confined to questions of law.[7]
[7]Under s 148(1) of the Victorian Civil and Administrative Tribunal Act, appeals can only be brought by leave, which the court has granted. The court has also stayed the disqualification imposed upon Mr Riley that was confirmed by VCAT pending the hearing and determination of the appeal.
As specified in the notice of appeal, the questions of law in the appeal are:
A.Whether the Tribunal correctly construed the Rules of Racing relevant to the determination of whether there was a prohibited substance (AR178B) detected by an official racing laboratory (AR178D) within the meaning of AR178C.
B.Whether, on a proper construction of the Rules of Racing, the Tribunal ought to have found that alkalinising agents, when evidenced by an official racing laboratory of a total carbon dioxide (TCO2) at a concentration of 36.061 millimoles per litre of plasma, allowing for the measurement of uncertainty of 1.0, are excepted from the provisions of AR178B by virtue of AR178C(1)(a) excepting alkalinising agents at 36.0 millimoles per litre of plasma
C.Whether the Tribunal erred in law by taking into account irrelevant considerations namely,
(i) the ’rounding-up’ of detected concentrations of TCO2;
(ii) the evidence of Dr Vine.
D.Whether the Tribunal erred in law in finding that there was a case to answer by the applicant in relation to Charge 1.
Reflecting these questions, the grounds of appeal specified in the notice are:
1. The Tribunal misconstrued the Rules of Racing in that –
(a)the Tribunal erroneously held that alkalinising agents, when evidenced by an official racing laboratory of a total carbon dioxide (TCO2) at a concentration of 36.061 millimoles per litre of plasma, allowing for the measurement of uncertainty of 1.0, were not excepted from the provisions of AR178B by virtue of AR178C(1)(a) excepting alkalinising agents at 36.0 millimoles per litre of plasma.
2.Upon a proper construction of the Rules of Racing, it was not open to the Tribunal to find that alkalinising agents, when evidenced by an official racing laboratory of a total carbon dioxide (TCO2) at a concentration of 36.061 millimoles per litre of plasma, allowing for the measurement of uncertainty of 1.0, were not excepted from the provisions of AR178B by virtue of AR178C(1)(a) excepting alkalinising agents at 36.0 millimoles per litre of plasma, and therefore a prohibited substance within the meaning of AR178B, and in those circumstances erred in finding that Charge 1 was established. The Tribunal ought to have found that there was no case to answer by the applicant in relation to Charge 1.
3.Upon a proper construction of the Rules of Racing, one must apply the Rules to the one decimal point or below. The Tribunal erroneously construed AR178C(1)(a) as requiring or allowing for detection ‘in excess of 36.0’ to a second, third or more decimal fraction for there to be a prohibited substance when the Rule expressly provided for an exception to the contrary.
4.Upon a proper construction of the Rules of Racing, the rules did not permit account to be taken of: (i) the ‘rounding-up’ of detected concentrations of TCO2; and (ii) the evidence of Dr Vine, in circumstances where the detected reading of 36.061, allowing for the measurement of uncertainty of 1.0, meant that there was not a prohibited substance within the meaning of AR178C(1).
On analysis, the issues raised in these four questions and grounds may be examined under two categories:
(1)Whether rounding-up was permitted by the Rules (questions of law A, B and C(i) and grounds 1, 2, 3 and 4(i)); and
(2)If not, whether the alternative scientific case was established (question of law C(ii) and ground of appeal 4(ii)).
Was rounding-up permitted by the Rules?
Mr Riley’s fundamental contention was that, according to the proper interpretation of the Rules, TCO2 was not evidence of a prohibited substance in a horse’s blood unless it was proved to be present at a concentration above 36.0 millimoles per litre as specified in cl 178C(1)(a). Taking into account the specification of the first decimal place, TCO2 could not be proved to be present in the blood above a concentration of 36.0 millimoles per litre unless it was proved to be present at a concentration of at least 36.1 millimoles per litre. Therefore a test result could never be rounded-up to the next highest first decimal place, as it was in the present case. In practical terms, it always had to be rounded down to the next lowest decimal place. Racing Victoria submitted that, on the contrary, the Rules, properly interpreted, permitted rounding-up of the test result to the first decimal place in accordance with the rules of science as reflected in AS2706-2003.
In support of his contentions, and by reference to authorities of high standing, Mr Riley relied upon a number of well-established principles of interpretation. These included that, as a contract, the Rules were to be interpreted by reference to the plain and ordinary meaning of the words used;[8] the Rules were to be read as a whole;[9] effect was to be given to all parts of the Rules;[10] where alternative interpretations were available, unreasonable interpretations and interpretations consistent with protecting fundamental rights and liberties[11] and avoiding the enlargement of penal provisions should be preferred;[12] and the objective intention of the parties as revealed by the words of the Rules must be the focus of attention, as to which extrinsic materials were not admissible.[13] The content and application of these principles was not disputed and formed common ground in this appeal.
[8]Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337, 347–8, 352 (Mason J) (‘Codelfa Construction’).
[9]Chamber Colliery Co Ltd v Twyerould [1915] 1 Ch 268, 272 (Watson LJ); SA Maritime Et Commerciale of Geneva v Anglo-Iranian Oil Co Ltd [1954] 1 WLR 492, 495 (Somervell LJ), 496 (Romer LJ).
[10]Wilkie v Gordon Runoff Ltd & Anor (2005) 221 CLR 522, 529 [16] (Gleeson CJ, McHugh, Gummow and Kirby JJ).
[11]D C Pearce and R S Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 8th ed, 2014) Ch 5.
[12]Ibid 367–370 [9.8]–[9.11]; Australian Broadcasting Commission v Australian Performing Right Association Ltd (1973) 129 CLR 99, 109 (Gibbs J); Beckwith v The Queen (1976) 135 CLR 569, 576 (Gibbs J); R v Adams (1935) 53 CLR 563, 567–8 (Rich, Dixon, Evatt and McTiernan JJ).
[13]Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd & Ors (2004) 219 CLR 165, 179 [40] (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ); Codelfa Construction (1982) 149 CLR 337, 347–8, 352 (Mason J).
It is well to begin by acknowledging the general importance of the meaning of numbers in the scientific context and that, in that context, it is normal for numbers to be rounded-up or down to the relevant decimal place. On that subject, in Smith and Nephew plc v ConvaTec Technologies Inc,[14] a civil appeal in a patent case, Kitchin LJ (Briggs and Clarke LJJ agreeing) said:
[I]t is standard practice for scientists deliberately to express numerical values to a particular degree of accuracy and, as a result, the degree of precision with which any particular number is written conveys to the reader how the author intended the number to be understood. This may be important for a number of reasons. It may, for example, allow the author to convey the level of accuracy with which a calculation needs to be performed or it may indicate the experimental uncertainty in a measurement which needs to be taken. In all such cases the precision with which the number is expressed is understood by the reader to be dictated by the number of significant figures or decimal places the number has. It is also generally accepted that in order to compare one number which is expressed to a particular degree of precision with another which is expressed to a different or apparently greater degree of precision then it may be necessary to round the second number to the same degree of precision as the first, and to do so in accordance with the standard rounding convention …[15]
[14][2015] EWCA Civ 607 (24 June 2015).
[15]Ibid [19].
RASL adopted the approach described by Kitchin LJ as ‘generally accepted’. In accordance with AS2706-2003, it reported the test result of 37.061 in terms that were rounded-up to 37.1 millimoles per litre so that (after adjustment for measurement uncertainty) it could be compared with the threshold value in the Rules of 36.0 millimoles per litre. I do not write a word of criticism about RASL for doing so. This is not the issue.
The present case involves disqualifying a person from their business or occupation of horse trainer for three years pursuant to Rules that have statutory recognition. The issue is whether, when deciding whether a test result for a prohibited substance exceeds the permitted maximum, the Rules permit the result to be reported in rounded-up terms. The issue is of importance because, if test results can be so reported, the rights of individuals may be affected, as has occurred in the present case. If rounding-up is permitted, a trainer whose horse is found to have TCO2 in its blood at the concentration of, say, 36.06 millimoles per litre is to be treated in the same way as one whose horse has a concentration of 36.14 millimoles per litre. Both would be likely to have their licences cancelled and be disqualified for three years. Mr Riley was in the first category but not in the second: his adjusted reading was 36.061 not 36.14 millimoles per litre. There is obviously an element of arbitrariness in treating both such persons in the same way.
Because the court’s interpretation of the Rules may affect the rights of individuals to carry on the business or occupation of licenced horse trainer and result in the penalty of disqualification being imposed, two principles of interpretation are engaged. The first is the principle of legality and the second is the principle that applies when the provisions in question are penal in nature or operation.
For the purpose of the application of the principle of legality, the clauses of the Rules may be seen to be analogous to the provisions of legislation. Indeed, as I have observed, the Rules are required by and recognised under the Racing Act. As regards the provisions of legislation, I recently examined the principle of legality in DPP v Kaba.[16] In that case, I gave this summary of the principle:[17]
[16][2014] VSC 52 (18 December 2014).
[17]Ibid [165]-[167].
As we have seen, it was held in Zheng v Cai[18] that, when interpreting legislation, the court must ascertain the objective intention of the legislature by reference to the applicable rules of interpretation. One of the rules of interpretation which is applied when objectively ascertaining the intention of the legislature is the principle of legality. This was made expressly clear in Project Blue Sky v Australian Broadcasting Authority[19] and Lacey v Attorney-General.[20]
In the early Australian case of Potter v Minahan, O’Connor J adopted this formulation of the principle:[21]
[i]t is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness;[22] and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used.
More recently, in Lacey[23] French CJ, Gummow, Hayne, Crennan, Kiefel & Bell JJ stated that, according to the principle, it is presumed that, ‘in the absence of unmistakable and unambiguous language, the legislature has not intended to interfere with basic rights, freedoms, or immunities’.[24] The principle ensures that such rights, freedoms and immunities are not infringed by judicial supposition. In the language of French CJ in Momcilovic v The Queen,[25] it requires that ‘statutes be construed, where constructional choices are open, to avoid or minimise their encroachment upon rights and freedoms at common law’.[26]
[18](2009) 239 CLR 446, 455 [28] (French CJ, Gummow, Crennan, Kiefel and Bell JJ)
[19](1998) 194 CLR 355, 384 [78] (McHugh, Gummow, Kirby and Hayne JJ) (‘Project Blue Sky’).
[20](2011) 242 CLR 573, 591–2 [43] (French CJ, Gummow, Hayne, Crennan, Kiefel & Bell JJ) (‘Lacey’).
[21](1908) 7 CLR 277, 304 (‘Potter’), quoting from Sir Peter Benson Maxwell and J Anwyl Theobold, On the Interpretation of Statutes (Sweet and Maxwell, 4th ed, 1905) 122.
[22]2 Cranch., 390.
[23](2011) 242 CLR 573.
[24]Ibid 591–2 citing Project Blue Sky (1998) 194 CLR 355, 384 [78] (McHugh, Gummow, Kirby and Hayne JJ).
[25](2011) 245 CLR 1, 46 (‘Momcilovic’).
[26]Potter (1908) 7 CLR 277, 304 (O'Connor J); Bropho v Western Australia (1990) 171 CLR 1, 18 (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ); Coco v The Queen (1994) 179 CLR 427, 436-7 (Mason CJ, Brennan, Gaudron and McHugh JJ); Electrolux Home Products Pty Ltd v Australian Workers' Union (2004) 221 CLR 309, 329 [21] (Gleeson CJ).
It is established that the principle of legality applies to the interpretation of legislation which abrogates or curtails the right or freedom of a person ‘to carry on his business in his own way within the law’.[27] Mr Riley carries out the business or occupation of a licensed horse trainer and the Rules govern his right or freedom to do so. If he has properly been found guilty of breaching the Rules in question, disqualification of his capacity to carry out the business or occupation of a licensed horse trainer for three years is the known result. The principle of legality that applies to the interpretation of provisions of legislation therefore applies to the interpretation of the relevant clauses of the Rules, recalling that the Rules are recognised under the Racing Act. According to that principle, for the court to adopt an interpretation resulting in the termination of Mr Riley’s business or occupation as a licensed horse trainer for three years, the language of the Rules must be unmistakable or unambiguous.
[27]Commonwealth v The Progress Advertising and Press Agency Co Pty Ltd (1910) 10 CLR 457, 464 (O’Connor J); see also Committee of Direction of Fruit Marketing v Collins (1925) 36 CLR 410, 422 (Isaacs J), 425 (Higgins J), 427-8 (Rich J); Momcilovic (2011) 245 CLR 1, 177-8 [444] (Heydon J).
The second principle of interpretation applies to penal and like provisions. The principle was stated by Rich, Dixon, Evatt and McTiernan JJ in R v Adams[28] in these terms:
No doubt, in determining whether an offence has been created or enlarged, the Court must be guided, as in other questions of interpretation, by the fair meaning of the language of the enactment, but when that language is capable of more than one meaning, or is vague or cloudy so that its denotation is uncertain and no sure conclusion can be reached by a consideration of the provisions and subject matter of the legislation, then it ought not to be construed as extending any penal category.[29]
Nowadays the courts apply this principle with circumspection. Thus, in Beckwith v The Queen,[30] Gibbs J said:
The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences … The rule is perhaps one of last resort.[31]
[28](1935) 53 CLR 563.
[29]Ibid 567-8.
[30](1976) 135 CLR 569.
[31]Ibid 576.
In summary, the rule requires a penalising provision or clause to be unambiguously clear as to the scope of the prohibition that is imposed. Where an interpretation in favour of a wider prohibition and another in favour of a narrower prohibition are both reasonably open, the court will refuse to make a selection that enlarges the prohibition by adopting the wider interpretation. But the court should, if it can, resolve the issue by the application of the ordinary rules of interpretation and apply this rule only in the last resort.
The application of this rule is helpfully illustrated by cases concerning the interpretation of drink-driving legislation. In such cases, the court adopts a strict approach in relation to the interpretation of prohibitions and sentencing provisions specified by reference to particular decimal places. Without express and unambiguous statutory support, it does not permit convictions to stand or penalties to be imposed on the basis of rounded-up test results.
For example, Blanksby v Barnes[32] concerned the interpretation of s 50(1AB)(b) of the Road Safety Act 1986 (Vic). That provision authorised the court to impose a lower penalty on a driver convicted of drink-driving if the blood alcohol concentration was ‘not more than 0.10 grams per 100 millilitres of blood’. Hampel J held that, for sentencing purposes, a blood alcohol content reading of 0.101% was not more than 0.10%. In his Honour’s word’s, that was because the legislation
describes all blood alcohol readings by reference to two decimal places. This evidences an intention so to limit the measurement of blood alcohol levels by breath testing. This is amply illustrated by the fact that s. 52, which is described as ‘Zero Blood Alcohol’, in subs. (2) relies on a concentration of 0.00. It is, I think, clear that to call 0.00 zero, one must be limited to the second decimal place for, in truth, 0.001 is not zero except by the limitation of measurement by the Act. It follows, that the legislation intended to limit the measurement of blood alcohol readings to two decimal places and not be concerned with minute fractions which may be difficult to measure if taken, for example, to the fifth or tenth decimal places.[33]
[32][1998] 2 VR 164.
[33]Ibid 165.
As can be seen from this statement, Hampel J interpreted the sentencing provision so as to take account of the blood alcohol concentration reading only to the second decimal place. His Honour would not read the test result past that point. He ignored the third decimal place. Although this was not a rounding-up case, the logic of the decision, which I endorse with respect, suggests that, where it matters to an issue of penalty, the court should interpret a provision so that the concentration result is read only to the relevant decimal place and not beyond. In the present case, that would mean interpreting cl 178C(1)(a) of the Rules such that the adjusted RASL result of 36.061 is read as 36.0 and not as 36.1 millimole per litre. The court would not read the result past the first decimal place. It would ignore the second and third decimal places.
Similarly, in State of Vermont v Lamelle[34] the defendant was charged with violating a prohibition on operating a motor vehicle with a blood alcohol content of 0.10% or more. The information alleged a blood alcohol content of 0.15% which represented a rounding-up of the laboratory result of 0.149% to two decimal places.
[34]340 A.2d 49 (1975) (‘Lamelle’).
The Supreme Court of Vermont dismissed an appeal attacking the validity of the information because it contained the rounded-up percentage. Barney CJ, Smith, Keyser, Daley and Larrow JJ held that the rounded-up percentage was well over the statutory maximum of 0.10% and the defendant was not prejudiced. Therefore, the information was valid.
However, as relevant to the present case, the court also held that the result would have been different if the percentage had been rounded-up to the statutory threshold. Giving the judgment of the court, Keyser J said that such a charge would not have been allowed. The reason was:
if the actual test established a level of less than .10% and a rounding-off would result to elevate it to the minimum, or more, of the level prohibited by the statute, this would indeed be prejudicial to the accused.[35]
[35]Ibid 51 [5].
Lamelle was followed by the Court of Appeal of Indiana in Black v State of Indiana.[36] The appellant was convicted of driving with a blood alcohol content of 0.10%. The breathalyser recorded a reading of 0.10%. Hoffman, Garrow and Miller JJ quashed the conviction because police conceded in evidence given at trial that the breathalyser rounded-up results.[37] The reasonable possibility that the reading was actually below 0.10% could not be excluded and the appellant had to be given the benefit of the doubt.
[36]621 N.E.2d 368 (1993).
[37]Ibid 370-1 [5].
Lamelle was endorsed by the Supreme Court of Vermont in State of Vermont v Parah.[38] The defendant was convicted of driving with a blood alcohol content of 0.15% or more upon the basis of a breathalyser reading of 0.149%. Applying the rule of interpretation relating to penalty provisions, Allen CJ, Gibson, Dooley, Morse and Johnson JJ held that proof of breach could not be given by rounding-up a test result.[39]
[38]587 A.2d 403 (1991).
[39]Ibid 403 [1, 2].
In Commonwealth v Hourican,[40] the Appeals Court of Massachusetts refused to permit rounding down (or truncation) of a third decimal place in an opposite context but according to the same logic. Under road traffic legislation, replicate breathalyser tests had to report a blood alcohol concentration ‘within +/– 0.02%’ to be admissible as evidence. Two tests were 0.022% apart, which was outside the tolerance. The trial judge rounded the result down to two decimal places, namely 0.02%, which was within the tolerance. Green, Sikora and Carhart JJ upheld the appeal. As the legislation was penal, the lack of express statutory permission for treating 0.022% as 0.02% was fatal.[41] Under the proper interpretation of the legislation, a value of 0.022% had to be treated as greater than 0.02% because it mattered to whether the defendant would be penalised for an offence. The court had to take account of the third decimal place. This demonstrates that the rule can work in both directions, depending on the impact of the competing interpretations upon the rights of the individual.
[40]10 N.E.3d 646 (2014).
[41]Ibid 652 [11].
The process of stopping at the decimal place specified in the relevant provision rather than rounding-up has been called ‘truncating’. In the context of drink-driving offences specified by reference to blood alcohol concentrations expressed to the second decimal place, the difference between ‘truncating’ and ‘rounding’ was explained by the Supreme Court of New Jersey in State of New Jersey v Chun.[42] Giving the judgment of the court, Hoens J said:
Truncating, as opposed to rounding, involves simply reporting the first and second decimal places and dropping the third. For example, by truncating, a reading of 0.079 percent … would be reported as 0.07 and a reading of 0.089 percent … would be reported as 0.08. The effect of truncating, as opposed to rounding, is to under-report the concentration, to the benefit of the arrestee.[43]
As can be seen, rounding-down is the practical equivalent of truncation. Rounding-up is the opposite of truncation.
[42]943 A.2d 114 (2008) (Long, LaVecchia, Albin, Wallace, Rivera-Soto and Hoens JJ).
[43]Ibid 131.
Apparently contrary to these authorities is the judgment of Glidewell LJ and Rose J in Oswald v Director of Public Prosecutions.[44] Their Honours dismissed an appeal against a drink-driving conviction based in part on a refusal by justices to round down a blood alcohol reading to the statutory threshold. They treated the matter as a question of fact and upheld the justices’ finding on the basis of the evidence that the threshold had been exceeded. The judgment contains no analysis of the relevant principles of interpretation and is not of assistance here.
[44][1989] RTR 360.
The Rules are recognised under the Racing Act. Clause 175 states that ‘[t]he Committee of any Club or the Stewards may penalise’ (emphasis added) persons who are guilty of the proscribed acts. Taken together, cll 175(h)(i), 178B(2) and 178C(1)(a) proscribe acts relevant in this case. Under cl 196(5)(vi), the usual penalty for breaching cl 175(h)(i) is disqualification for three years. These clauses of the Rules are therefore penal in nature and operation. As well as the principle of legality, they are to be interpreted in accordance with the rule governing the interpretation of penal provisions.
Such are the principles of interpretation that must be applied when determining whether rounding-up of test results is permitted under the Rules, properly interpreted. To that question I now turn.
The acts specified in cl 175(h)(i) that may be penalised are that of administering or causing to be administered to a horse a prohibited substance for the (relevant) purpose of affecting its performance or behaviour in a race. In charges brought by the stewards under cl 6C(2), that is what must be proved. Under cl 6A(2)(e), the jurisdiction of the Board in respect of such charges is (relevantly) to determine that issue.
Clause 1 of the Rules defines ‘prohibited substance’ to mean ‘a substance declared by these Rules to be a prohibited substance, or which falls within any of the [declared] groups of substances … unless it is specifically excepted’. Clause 178B(2) defines prohibitive substances to include ‘alkalinising agents’ and a significant number of other substances. Clause 178C(1) excepts from the definition in cl 178B a significant number of substances that are described in scientifically technical terms.[45] The units of concentration and the threshold values have also been expressed in scientifically technical terms. The units of concentration are specified in milligrams or micrograms per litre or, in the case of the alkalinising agents that are relevant here, millimoles per litre (cl 178C(1)(a)). The thresholds of concentration are specified in numerical values that go to no decimal place (ie whole numbers), one decimal place (including cl 178C(1)(a)) and two decimal places. Clearly, the units and the thresholds of concentration, including the absence or presence of a decimal place or places, have been deliberately chosen and have significance and work to do.
[45]In full, cl 178C(1) of the Rules provides:
(1)The following prohibited substances when present at or below the concentrations respectively set out are excepted from the provisions of AR 178B and AR 178H:
(a) Alkalinising agents, when evidenced by total carbon dioxide (TCO2) at a concentration of 36.0 millimoles per litre in plasma.
(b) Arsenic at a mass concentration of 0.30 milligrams per litre in urine.
(c) Dimethyl sulphoxide at a mass concentration of 15 milligrams per litre in urine or 1.0 milligrams per litre in plasma.
(d) In male horses other than geldings, 5α-estrane-3β, 17α-diol in urine (including both the free substance and that liberated from its conjugates) at a mass concentration equal to or less than 5(10) estrene-3β, 17α-diol in urine (including both the free substance and that liberated from its conjugates.
(e) Salicylic acid at a mass concentration of 750 milligrams per litre in urine or 6.5 milligrams per litre in plasma.
(f) Hydrocortisone at a mass concentration of 1.00 milligrams per litre in urine.
(g) Testosterone (including both free testosterone and testosterone liberated from its conjugates):
(i)in geldings: at a mass concentration of 20 micrograms per litre in urine;
(ii)in fillies and mares: at a mass concentration of 55 micrograms per litre in urine;
(iii)in fillies and mares that have been notified as pregnant pursuant to the requirements of AR 64E(2): at any concentration.
(h) 3-Methoxytyramine (including both free 3-methoxytyramine and 3- methoxytyramine liberated from its conjugates) at a mass concentration of 4.0 milligrams per litre in urine.
(j) Boldenone in male horses other than geldings, (including both free boldenone and boldenone liberated from its conjugates) at a mass concentration of 15 micrograms per litre in urine.
(k) Theobromine at a mass concentration of 2.00 milligrams per litre in urine.
The Rules are autonomous. Nothing in the Rules permits relevant clauses to be interpreted or amended by reference to Racing Victoria policy. However, when interpreting the Rules, such policy might be relevant as part of the context, as here.
Clause 178D contains provisions in relation to the taking and analysis of samples of blood from horses. Those relevant to the present case are cl 178D(1)-(3) which provide 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.
As can also be seen, cl 178D(1) permits samples of equine blood (and urine) to be analysed by, and only by, ‘an Official Racing Laboratory’. By the definition in cl 1, such a laboratory is defined to mean:
an analytical racing laboratory that is accredited by the National Association of Testing Authorities or by a similar authority in an overseas country, and is approved by the Australian Racing Board and published in the Racing Calendar.
The evidence before VCAT, which was not challenged by Mr Riley, was that both RASL and RSC are NATA accredited laboratories.
In the present case, the samples of blood were taken from the horse, and analysed by RASL, pursuant to cl 178D(1). The RSC analysis was carried out pursuant to cl 178D(2). At least the RASL result was rounded-up pursuant to AS2706-2003. Both RASL and RSC referred to adjustment for measurement uncertainty in the amount of 1 millimole per litre in line with Racing Victoria policy. Under cl 178D(3), the certified findings of both laboratories were ‘prima facie evidence’, and no more, of the detection of a prohibited substance in the horse’s blood.
It was submitted for Racing Victoria that, on the proper interpretation of these Rules, the concentration of TCO2 in a horse’s blood may be evidenced for the purposes of cl 178C(1)(a) by laboratory results that are rounded-up to the first decimal place in accordance with AS2706-2003. Whether results so expressed actually prove (to the requisite high degree of satisfaction[46]) the concentration of TCO2 above the maximum level is a matter for the Board to determine on the evidence.
[46]See Briginshaw v Briginshaw (1938) 60 CLR 336, 361-3 (Dixon J).
In considering this submission, I take fully into account that the Rules adopt an objective and scientific approach to the determination of whether a prohibited substance is detected in the body of a horse above a specified threshold. As I have pointed out, the units of concentration and threshold amounts have been carefully expressed in cl 178C(1) in scientifically descriptive and numerical terms. They are highly specific, particularly in relation to the maximum levels of concentration, most of which require analysis of substances in concentrations that are expressed in threshold amounts going to one or two decimal places. It is obvious from the given concentration units and the very small threshold amounts that analysis of samples can only be carried out by scientists using scientific instruments and methods, as permitted by cl 178D(1). Racing Victoria submits that, by specifying this approach, the Rules must be taken to have adopted all that conventionally goes with science in the field of analytical chemistry, including the rounding-up or down of measurements (according to AS2706-2003) to the decimal place that is called for by the relevant threshold.
I cannot accept this submission because the relevant clauses of the Rules are equally susceptible to an opposite interpretation. Nothing in the Rules points unmistakably and unambiguously to an interpretation that rounding-up is permitted. The court will refuse to adopt an interpretation that, in effect, enlarges the category of proscribed acts to cover Mr Riley’s case when the Rules do not unmistakably and unambiguously so provide. Another reasonable interpretation is equally available. This is consistent with the interpretative principles that are applied by courts in such situations, especially the principle of legality and the principle applying to provisions or clauses that are penal in nature or operation, which I have set out.
In my view, it is necessary to appreciate and follow through the importance of the specification of the decimal place in the clauses of the Rules concerned. In the case of cl 178C(1)(a), which applies here, the specified concentration of TCO2 is 36.0 millimoles per litre, which is expressed to one decimal place. The analytical task is to determine whether TCO2 is present in the sample ‘at or below’ that level of concentration. If it is ‘at or below’ that level of concentration, the substance is not prohibited and no offence has been committed. If it is above that level of concentration, the substance is prohibited and an offence has been committed. Noting that the threshold is specified to one decimal place, a sample will contain TCO2 above 36.0 millimoles per litre if it contains TCO2 in an amount that is at or above the next highest level of concentration in the applicable decimal series. Again, noting the significance of the decimal place, the amount that is next highest to 36.0 millimoles per litre in the applicable decimal series is 36.1 millimoles per litre. It follows that, in terms of a positive result, what is analytically significant under the Rules is whether the concentration of TCO2 in the sample is 36.1 millimoles per litre or higher. Because the concentration value in cl 178C(1)(a) is specified in terms of one decimal place, results between 36.0 and (up to but not including) 36.1 millimoles per litre are negative, that is, not above 36.0 millimoles per litre.
This analysis can be illustrated by reference to the facts of the present case. The adjusted RASL result was that the sample contained TCO2 in the concentration of 36.061 millimoles per litre.[47] Was that in excess of the threshold of 36.0 millimoles per litre specified in cl 178C(1)(a)? No it was not. The clause does not admit consideration of analytical results going beyond the first decimal place. It requires consideration of whether the threshold has been exceeded in terms of that decimal place. Properly interpreted, cl 178C(1)(a) contains a rule of decimal specificity: a horse’s blood will contain TCO2 that is above the threshold concentration of 36.0 millimoles per litre only if it is present in a concentration of 36.1 millimoles per litre or greater. The adjusted RASL test result of 36.061 millimoles per litre is less than 36.1 and therefore not more than 36.0 millimoles per litre.
[47]On the evidence, the concentration of 37.061 millimoles per litre was the calculated mean of the concentration in two portions of the sample, being 37.192 and 36.930 millimoles per litre. The conclusion I have come to is that rounding-up is not permitted by the Rules (see below). Therefore, the mean value should have been calculated upon the basis that the analytical results of the tests of the two portions were 37.1 and 36.9 millimoles per litre. By my calculation, this mean is 37 millimoles per litre exactly, not 37.061 millimoles per litre. Adjusted for measurement uncertainty in the amount of 1 millimole per litre in line with Racing Victoria policy, that is 36 millimoles per litre exactly. This analysis does not appear to affect the outcome of the appeal.
With respect, I therefore cannot agree with VCAT that the question arising under cl 175C(1)(a) can simply be stated a whether ’36.061 is … in excess of 36.0’. That was to misstate the question. The question must be formulated after the clause has been properly interpreted with respect to the significance of the first decimal place. When so interpreted, the test result of 36.061 was not in excess of 36.0 millimoles per litre because it was not at least 36.1 millimoles per litre, that being the next number in the applicable decimal series above 36.0.
Likewise, the reasons given by VCAT for concluding that rounding-up ‘is justified in cases of this nature’ cannot be accepted. While rounding-up is generally accepted by scientists, mandated by AS2706-2003 and (may be) undertaken by official racing laboratories following NATA protocols, it is a different question whether it is permitted under the Rules. Interpretation of the Rules is not a question of fact. Further, the Rules are autonomous and not to be interpreted by reference to the policy-based adjustment for measurement uncertainty of 1 millimole per litre. When, in the interpretation and application of the Rules, due attention is paid to the importance of the specification of the threshold to one decimal place, it is not, with respect, ‘absurd and unreal’ to propose that ’36.061 is not in excess of 36 [sic]’.
I completely accept that the clauses of the Rules in question have important general purposes, both to the industry and the public. Those purposes include protecting and maintaining public confidence in the integrity of the racing industry by penalising those who would administer substances that affect a horse’s performance or behaviour. I take full account of these purposes when interpreting the Rules.
But the clauses of the Rules also operate to impinge upon the rights and interests of individuals engaged in the business or occupation of licensed horse training. Their legitimate rights and interests are also respected under the Rules and deserving of consideration. When a trainer is found guilty of breaching the prohibition in cll 175h(i), 178B(2) and 178C(1)(a), disqualification for three years is the likely penalty. According to well-established principles of interpretation, when two interpretations are reasonably open, courts refuse to interpret such clauses so as to enlarge the scope of a prohibition. To adopt an interpretation that sanctions rounding-up would have that effect of enlarging the prohibition in the Rules. It would bring Mr Riley’s circumstances within the scope of the prohibition when an equally available interpretation would exclude those circumstances, without undermining the general purposes of the Rules. I therefore conclude that, under cll 175h(i), 178B(2) and 178C(1)(a), rounding-up of test results is not permitted. With respect, VCAT erred in law in deciding to the contrary.
Alternative case
In the proceeding before VCAT, the stewards did not want to leave any scope for doubt. In response to Mr Riley attacking the RASL certificate and submitting that there was no case to answer on the RSC certificate, they presented what was described by Racing Victoria in this appeal as an alternative scientific case.
Much of what Racing Victoria submitted in this connection may be accepted. Under the Rules, the stewards are not prevented from proving that a prohibited substance was administered by evidence other than a certificate or certificates produced pursuant to cl 178D. Even where two certificates have been produced under cl 178D(3), one over and the other under the threshold, other evidence can be relied upon, including scientific evidence, for the certificates are but ‘prima facie’ evidence that a prohibited substance has been detected. So much is clear from the terms of the Rules and the judgment of Murray J (Wallwork and Miller JJ agreeing) in Harper v The Racing Penalties Appeal Tribunal of Western Australia.[48] Of course, what is good for one side is also good for the other. Persons charged may lead evidence refuting that a prohibited substance has been detected and do so even where a certificate or certificates have been produced under cl 178D. Certificates are prima facie evidence but not conclusive evidence of the fact in issue.
[48][2001] WASCA 217 (25 July 2001) [37]-[42].
Where two certificates are competing, such additional evidence may be indispensible, for it might not be a reasonable use of the power in the Rules to prosecute charges, or at least it might not be prudent, for the stewards simply to present the competing certificates to the Board without any rational way of resolving the conflict. This creates a serious but avoidable risk of an arbitrary finding that the threshold has been exceeded. That is especially when, in cases of this kind, guilt must be established to a high standard of civil satisfaction. If such additional evidence is not available, the question whether it is proper to bring the charges must obviously be considered.
There are issues of interpretation in relation to cl 178D, particularly the relationship between cll 175(h)(i), 178B(2) and 178C(1)(a) on the one side and cl 178D(3) on the other. Under cl 178C(1)(a), an alkalinising agent is excepted from being a prohibited substance when evidenced by TCO2 at a concentration of 36.0 millimoles per litre or less. Yet cl 178D(3) makes a certificate showing that TCO2 is present in less than that threshold concentration ‘prima facie evidence that a prohibited substance has been detected’. These issues were not fully explored in argument and I will say nothing further about them.
Taking cl 178D(3) at face value, as the parties did in this appeal, the certified findings of both laboratories (if valid) became prima facie evidence before VCAT that a prohibited substance had been detected. But that is all. The two certificates were not conclusive and certainly not unchallengeable. Clause 178D(3) does not indicate how the issue of whether a prohibited substance has been administered (ie above the threshold) is to be finally determined and this must be upon the basis of the evidence as a whole. Where an alternative scientific case is advanced in the absence of or going beyond certificates, that too must be considered upon the basis of the evidence as a whole.
The alternative case was explained in Racing Victoria’s submissions to this court as not being dependent upon the RASL certificate. It contended in written submissions that ‘even without the RASL certificate, the threshold of 36mol/L [sic] has been exceeded’. From paras 10 and 27(a) of those submissions, I understand the submission to be that evidence of the concentration calculations performed by RASL were admissible even if its certificate was impugned for impermissible rounding-up. It appears that reliance was being placed upon the underlying working calculations which, in relation to RASL, were in evidence. However, even in the alternative case there appears to have been considerable reliance upon the actual results specified in the RASL certificate, not just the workings, and the only source of the RSC reported result was the certificate.
Thus, as explained in Racing Victoria’s written submissions, the alternative case to VCAT was based upon the following evidence.
(1) the RASL certificate showing a TCO2 level of 37.1 mmol/L;
(2) the RSC certificate showing a TCO2 level of 36.2 mmol/L;
(3)the factual evidence of the laboratory support staff who undertook the testing of samples at RASL, Naomi Selvadurai and Jessica Brearley; and
(4)the opinion evidence of Dr Vine, which was based on the laboratory testing evidence, to the effect that:
(i)“we can be more than 99.99% confident that the TCO2 concentration of 37.1 mmol/L reported by RASL exceeds the threshold concentration of 36.0 mmol/L” …; and
(ii)that even with the RC certificate level of 36.2 mmol/L, one can be 84% confident that it exceeds the threshold of 36 [sic] mmol/L …
I have already noted that the main component of the alternative case was constituted by the evidence given by Dr Vine as to what the reported concentration values meant in terms of the probability that the two samples contained prohibited substances. In that connection, Dr Vine gave the two opinions referred to in sub-paras (4)(i) and (ii) of Racing Victoria’s written submissions that I have just set out. Dr Vine’s evidence was not objected to by Mr Riley and he presented no evidence of his own, scientific or otherwise.
As we have seen, VCAT accepted both opinions and gave this as the third reason for upholding the disqualification imposed by the Board. In previous decisions described by the parties as the ‘over and under’ cases, such evidence, or similar evidence, has been accepted by racing tribunals on previous occasions.[49] Neither before VCAT nor in the appeal did Mr Riley call these authorities into question. I am not here to be taken as implicitly endorsing them.
[49]In the Matter of an Appeal by Peter Tonkin (Unreported, Racing Appeals Tribunal of Victoria, Williams J, 27 May 2005) 3-5; In the Matter of an Appeal by Tony Pullicino (Unreported, Racing Appeals Tribunal of Victoria, Williams J, 8 August 2002) 70-1; In the Matter of an Appeal by Shannon Suvaljko (Unreported, Racing Penalties Appeal Tribunal of Western Australia, Mr D Mossenson (chairperson), Mr J Pryor (member) and Mr S Pynt (member), 17 February 2006) 9-10.
It appears from Dr Vine’s evidence in this case (and the ‘over and under’ cases) that, where one certificate is over and another is under the threshold, the stewards might rely upon the combination of the reported concentration values, or at least the underlying working calculations, and probability evidence to prove that a prohibited substance was administered in an amount above the threshold. In the alternative case before VCAT, this is what was done. VCAT accepted that case. Racing Victoria submitted on appeal that no error of law was committed in doing so.
In relation to the RASL certificate, Dr Vine opined in his statement that:
Therefore, we can be more than 99.99% confident that both the TCO2 concentration of 37.1 mmol/L reported by RASL and the calculated unrounded mean concentration of 37.061 mmol/L exceed the threshold concentration of 36.0 mmol/L. Or, more precisely, there is less than one chance in 185,000 that TCO2 concentrations of 37.1 mmol/L and 37.061 mmol/L do not exceed the threshold concentration of 36.0 mmol/L.
Dr Vine’s reference to the concentration reported by RASL will be noted. This is an instance of the RASL result being relied upon in the alternative case even though, apparently, the certificate was not. I leave this to one side.
The two concentration results given in this opinion are taken from the RASL certificate and workings, the rounded-up (37.1) and unrounded (37.061) results respectively. They do not take account of the adjustment for measurement uncertainty of 1 millimole per litre in line with Racing Victoria policy. It was Racing Victoria’s position in the proceeding before VCAT and this appeal that the relevant result was the analytical concentration in rounded-up terms and that an adjustment for measurement uncertainty should be made to that concentration in the amount of 1 millimole per litre. Therefore it is not clear to me why Dr Vine’s probability calculations were not performed upon the basis of a rounded-up and adjusted concentration of 36.1 millimoles per litre. As Dr Vine’s probability opinion was based upon unadjusted base results of 37.1 (rounded-up) and 37.061 (unrounded) millimoles per litre, I am not sure what his opinion told VCAT about the probability of an adjusted base result of 36.1 (rounded-up) and 36.061 (unrounded) being in excess of a threshold of 36.0 millimoles per litre.
In relation to the RSC certificate, Dr Vine opined in his statement that:
Similarly, we can be 84% confident that the TCO2 concentration of 36.2 mmol/L reported by the Racing Science Centre exceeds the threshold concentration of 36.0 mmol/L. In other words, there is less than one chance in six that the TCO2 concentration of 36.2 mmol/L reported by the Racing Science Centre does not exceed the threshold concentration of 36.0 mmol/L.
The concentration referred to in this opinion (36.2 millimoles per litre) was taken from the RSC certificate. We do not know whether it was rounded-up. The workings were not in evidence. The figure is not adjusted for measurement uncertainty. Given Racing Victoria’s position in that connection, it is not clear to me why Dr Vine’s probability calculations in relation to the RSC certificate were not carried out upon the basis of an adjusted concentration of 35.2 millimoles per litre. Of course this is well beneath the threshold and the calculations would presumably have revealed that there was only a small chance that the threshold was exceeded. Putting the matter another way, as Dr Vine’s probability opinion was based upon a base measurement of 36.2 millimoles per litre, I am not sure what the opinion told VCAT about the probabilities in relation to an adjusted base measurement of 35.2 millimoles per litre, which is well beneath the threshold.
With respect, I have some difficulty with the way that VCAT dealt with this evidence. Its reasoning seems to stop at the point of acceptance of the evidence, as if the evidence spoke for itself in only one direction. But the evidence appears to require serious evaluation (the necessity for which is not foreclosed by cl 178D(3), if it is applied). I have already mentioned the issues that arose because Dr Vine’s probability opinion was based upon unadjusted test results. There is also the issue that, on the unadjusted concentration of 36.2 millimoles per litre reported in the RSC certificate, some one in six persons charged would probably be found guilty of offending without the horse having TCO2 in its blood above the threshold. This represents a significant risk of wrongful disqualification that, I would have thought, required at least some consideration in the context of the whole of the evidence.
I will not finally determine or go further into these issues because I can determine this ground of the appeal upon the basis of Mr Riley’s primary submission that, once it was determined that rounding-up of concentration values was not consistent with the Rules, Dr Vine’s evidence, and the other scientific evidence, became inadmissible or at least incapable of proving that the horse’s blood contained a prohibited substance above the threshold.
As I have noted more than once, the main component of Racing Victoria’s alternative scientific case was constituted by the probability evidence of Dr Vine. In fact, it was an indispensible component of that case. On examination, this evidence lacked a necessary legal foundation. It did not take into account that the Rules did not permit rounding-up. With respect, I do not criticise Dr Vine for this, for only by this judgment has that issue been judicially determined.
For the reasons that I have given, under the Rules the threshold value of 36.0 millimoles per litre was not exceeded unless the concentration was proved to be at least 36.1 millimoles without rounding-up. Therefore the critical question for VCAT to determine was whether the stewards had established to its comfortable satisfaction that the horse’s blood had a concentration of TCO2 at or above 36.1 millimoles per litre.
Dr Vine’s evidence in respect of the RASL result was that VCAT could be 99.99% confident that the TCO2 concentration of 37.1 millimoles per litre reported by that laboratory ‘exceed[s] the threshold concentration of 36.0 mmol/L’. That confidence level includes a range of concentrations which were not above the threshold level in cl 178C(1)(a), properly interpreted, being the levels between 36.0 up to but not including 36.1 millimoles per litre. This evidence was incapable of proving, or assisting in proving, that the concentration of TCO2 in the horse’s blood was at least 36.1 millimoles per litre. It was an error of law for VCAT to take this evidence into account. The other scientific evidence took matters no further.
Dr Vine’s evidence in respect of the RSC result was that VCAT could be 84% confident that the TCO2 concentration of 36.2 millimoles per litre reported by that laboratory ‘exceeds the threshold concentration of 36.0 mmol/L’. That confidence level also includes a range of concentrations which were not above the threshold level in cl 178C(1)(a), being the levels between 36.0 and up to but not including 36.1 millimoles per litre. This evidence also was incapable of proving, or assisting in proving, that the concentration of TCO2 in the horse’s blood was at least 36.1 millimoles per litre. Again, the other scientific evidence took matters no further. It was an error of law for VCAT to take this evidence into account.
Conclusion
Mr Riley has established that VCAT erred in law in two respects. First, it misinterpreted the Rules by deciding that a person could be found guilty and penalised upon the basis of rounded-up laboratory results. Second, it took into account scientific evidence that was incapable of proving, or assisting in proving, that the person was guilty. Although two errors of law have been established, the common feature of both is the misinterpretation of the Rules.
The clause in question was cl 178C(1)(a), which specified a threshold concentration value of 36.0 millimoles per litre for TCO2 in a horse’s blood. Under that clause, if TCO2 was detected in a concentration of a sample of blood that was above that level, it was evidence of the presence in the horse of a prohibited substance called an alkalinising agent. If TCO2 was detected at or below that level, it was not. The main question in the appeal was, properly interpreting the Rules, what was the significance of the decimal place in the threshold?
It really mattered in this case whether exceeding the threshold could be established by reference to rounded-up results. Mr Riley’s guilt and near-certain disqualification turned on that question. Two laboratories conducted tests on a sample of the horse’s blood. Adjusted for measurement uncertainty in line with Racing Victoria policy, one result was that the threshold had been exceeded but only when it result was rounded-up while the other result was that the threshold had not been exceeded.
Disqualification is a serious penalty affecting the capacity of a person to carry out the business or occupation of a licenced horse trainer. When interpreting provisions or rules affecting the business or occupation or a person or that are penal in nature or operation, the governing principles of interpretation require the court to pay particular regard to the consequences. Unless the application of a prohibition is unmistakable or unambiguous, the courts refuse to enlarge the prohibition when another reasonable interpretation is equally available. Here the terms of the threshold are not unmistakable and unambiguous. Another reasonable interpretation is equally available. The court can and will adopt the interpretation of the Rules that guilt cannot be proved by reference to test results that have been rounded-up.
In the appeal from VCAT, the powers of the court include the power to make an order setting aside the order of VCAT and the power to make any order that VCAT could have made in the proceeding before it.[50] VCAT was exercising its review jurisdiction[51] in which it had the power to order that the orders of the Board be set aside.[52]
[50]Victorian Civil and Administrative Tribunal Act s 148(1)(a) and (b).
[51]Ibid s 42(1) and Racing Act s 83OH(1).
[52]Victorian Civil and Administrative Tribunal Act s 51(2)(c).
As the Rules, properly interpreted, did not permit a disqualification to be imposed upon the basis of rounded-up test results and the scientific evidence was incapable of supporting a finding of guilt, Mr Riley should be completely exonerated. Accordingly, the court will order:
(1) the appeal is upheld;
(2) the orders of VCAT dated 26 March 2015 are set aside; and
(3) the orders of the Board dated 23 February 2015 are set aside.
Formal orders will be made accordingly. I will hear the parties on the question of costs.
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The Committee of any Club or the Stewards may penalise:
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(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; …
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