Smith v Racing Queensland Limited
[2013] QCAT 23
| CITATION: | Smith v Racing Queensland Limited [2013] QCAT 23 | |
| PARTIES: | Aileen Smith | |
| v | ||
| Racing Queensland Limited | ||
| APPLICATION NUMBER: | OCR238-12 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 6 December 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | Jim Allen, Member John Bertelsen, Adjudicator |
| DELIVERED ON: | 16 January 2013 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The decision of Racing Queensland Limited dated 18 June 2012 in regard to penalty is set aside and in lieu Mrs Smith is fined $4,000. |
| CATCHWORDS: | Racing – application for review of penalty – where applicant pleaded guilty to presenting a horse in a harness race with a prohibited substance – caffeine Australian Harness Racing Rules, rules 190, 191 Wallace v Queensland Racing [2007] QDC 168 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Ms Smith appeared in person |
| RESPONDENT: | Racing Queensland Limited was represented by Mr D Farquharson, Chief Steward of Harness Racing |
REASONS FOR DECISION
Ms Smith is the trainer of Justaregularguy, which competed in and won race 6 at the Redcliffe Harness Racing Club on 2 May 2012. The horse was swabbed post-race and when part of the sample was analysed by the Racing Science Centre it was found to contain caffeine. The initial result was confirmed by analysis of another part of the sample by Racing Analytical Services Ltd.
Mrs Smith was charged at a Stewards Panel held on 18 June 2012 under rule 190(1) of the Australian Harness Racing Rules which states:
“A horse shall be presented to race free of prohibited substances”.
The tribunal notes that the offence in this case is created under rule 190(2) which states:
“If a horse is presented for a race otherwise than in accordance with subrule (1) the trainer is guilty of an offence.”
Ms Smith pleaded guilty to the charge and received a penalty of $5,000. She is seeking a review of the penalty on the ground that it was excessive.
The Tribunal’s role is to hear and decide the review by way of a fresh hearing on the merits[1] and to produce the correct and preferable decision[2]. The Tribunal performs the functions conferred on it by its Act and the enabling Act[3] and has all the functions of the decision-maker for the original decision[4]. The Tribunal may confirm or amend the decision, set aside the decision and substitute a new decision or set aside the decision and return the matter for reconsideration to the decision-maker[5].
[1]Section 20(2) of the Queensland Civil and Administrative Appeals Tribunal Act 2009.
[2]Section 20(1) of the Queensland Civil and Administrative Appeals Tribunal Act 2009.
[3]Racing Act 2002 and the Australian Harness Racing Rules.
[4]Section 19 of the Queensland Civil and Administrative Appeals Tribunal Act 2009.
[5]Section 24 of the Queensland Civil and Administrative Appeals Tribunal Act 2009.
The transcript of the Stewards Panel[6] discloses that following the initial swab result Mr Farquharson attended at Mrs Smith’s stables for an inspection and it was disclosed that three products; molasses, Hemo Cease and HCX were administered to the horse. When these were later tested by QML for Mrs Smith Hemo Cease was found to contain caffeine.
[6]Affidavit of Jaime Lee Knight affirmed 11 September 2012.
Mrs Smith explained that the horse had displayed a slight nose bleed post race one day and on advice from her veterinarian Hemo Cease had been purchased and administered. She confirmed that the veterinarian was aware that the horse would be racing. Mrs Smith stated that she had had her son do some internet research on the product and was not aware of it containing any prohibited substances and that a brochure which was put in as evidence disclosed a list of ingredients which did not include caffeine. Mrs Smith also stated that she had contacted the distributor’s representative and they had denied that the product contained caffeine.
Mr Farquharson provided a copy of an internet page describing Hemo Cease which noted that the product was undergoing the registration process for sale in Australia and is thus not available for sale until registration is granted. This page had a copyright date of 2010.
Racing Queensland had nevertheless been able to purchase the product in Queensland and have it analysed by the Racing Science Centre. It is noted that Racing Queensland was not able to purchase a sample from the same batch as Mrs Smith’s but the sample that was analysed was shown to contain another prohibited substance Synephrine which is also a cardiovascular stimulant.
[10] Mrs Smith has been a licensed trainer for in excess for 40 years and has only received one $50 fine for an unacceptable scratching in that whole period. Her record was described by the Stewards in the transcript as a good one. Mrs Smith trains three horses and derives no other income herself although her husband works but has some health problems.
[11] The offence here is one of strict liability so Mrs Smith is not required to have knowingly administered the prohibited substance. There are also considerations of deterrence and maintaining the integrity of the harness racing industry which need to be taken into account when formulating an appropriate penalty[7].
[7] Wallace v Queensland Racing [2007] QDC 168.
[12] Mr Farquharson submitted that caffeine is considered a serious drug as it is a pure alkaloid and a potent central nervous system stimulant which can temporarily increase capacity. This is confirmed by a certificate from Dr Karen Caldwell of the Racing Science Centre which was exhibit M at the Stewards Panel.
[13] He provided comparative penalties to the Tribunal in respect of convictions involving caffeine which showed that there had been 6 convictions since 1998. Five of these were with the same trainer and they all resulted in fines and periods of disqualification. The Tribunal was not provided with details of the circumstances in relation to the trainer who committed 5 offences but notes that the offences were within a short period of time: 18 December 2008 to 23 January 2009.
[14] The other conviction was a 6 month disqualification given to a Mrs Alice Berry[8] who administered an herbal remedy which she took herself to her horse. It was said that “she had no idea the substance contained caffeine nor did “caffeine” appear anywhere on the packaging or promotional material that the substance was sold with”. The Tribunal notes that the minimum penalty at the time was 12 months’ suspension or disqualification.
[8]Racing Appeals Authority 18 December 1998 Mr L Williams (Chairman) and Hon Sir James Killen (Deputy Chairman).
[15] In this case Mr Farquharson submitted that trainers should do research and placed reliance on the notation on the Hemo Cease product disclosure on the internet that indicated the product was still undergoing registration in Australia and was not for sale.
[16] Mrs Smith submitted that the presence of caffeine was unbeknown to her and that the fact that the product was for sale meant that it was cleared ie registered. That she had gone on her veterinarian’s advice. Mrs Smith made no submissions in regard what an appropriate penalty would be saying that was the job of the Tribunal.
[17] Mr Farquharson cast some doubt on the analysis by QML on the basis that QML was an accredited body under the Racing Act 2002. While the analysis by QML of the Hemo Cease could not if it had shown there was no prohibited substance displaced the certificates of analysis[9] the Tribunal accepts that QML is an independent body which is in the business of analysing samples such as this and that Mrs Smith is a witness of honour in regard to her statement that the product which she provided for testing was properly sealed. So the Tribunal accepts in this case that the most likely source of the caffeine which was found in the horse is the Hemo Cease.
[9]Sections 143 and 352A of the Racing Act 2002 and rule 191 of the Australian Harness Racing Rules.
[18] Unlike Mrs Berry, Mrs Smith acted on advice from her veterinarian and took some pains to ensure that the product did not contain any prohibited substance by having her son do internet searchings and reading the product labels. The Tribunal accepts Mrs Smith’s submission that if the product is for sale in Queensland then this indicates that it is registered for Australia. This was an area where Mr Farquharson saw that Mrs Smith should have been put on alert if she had done more thorough investigation. The Tribunal disagrees as, the fact is that the product was for sale and the web page was dated 2010. No evidence was produced to the Tribunal to verify that the product was not registered. It is known that not all internet sites are regularly updated and the physical fact of the product being for sale must take precedence over the words on an internet site. The fact that a representative of Racing Queensland was able to purchase the product over the counter shows that it was freely available.
[19] Mrs Smith has committed an offence of strict liability despite her best efforts. As the offence is connected to a regulatory regime which demands a very strong degree of compliance with the Rules to maintain the integrity of the racing industry there must be a penalty which in some circumstances would appear draconian.
[20] With reference to similar cases of presentation of horses with caffeine the starting point is a disqualification. Racing Queensland have submitted that a penalty of $5,000 is appropriate having regard to Mrs Smith’s good record and the circumstances of the case.
[21] The Tribunal considers the fact that Hemo Cease was freely available must take precedence over the indication on the webpage that the product had not been registered for sale in Australia and that Mrs Smith therefore had done all that she could have to avoid a breach of the Rule.
[22] In that case the appropriate penalty is a fine of $4,000 and the decision of Racing Queensland is set aside and in lieu Mrs Smith is fined $4,000.
2
0
0