Taylor v Racing Queensland Limited
[2011] QCAT 576
•13 September 2011
| CITATION: | Taylor and Anor v Racing Queensland Limited [2011] QCAT 576 |
| PARTIES: | Mr Darren Taylor Mrs Kaye Taylor |
| v | |
| Racing Queensland Limited |
| APPLICATION NUMBER: | OCR137-11 / OCR138-11 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 6 September 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe, Presiding Member James Allen, Member |
| DELIVERED ON: | 13 September 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. Application to review dismissed. 2. The parties shall file and give to each other their written submissions on penalty within 14 days of the date of the decision. 3. The decision on penalty shall be determined on the papers by written submission, without an oral hearing. |
| CATCHWORDS: | RACING – GREYHOUNDS – where sample lost in laboratory – where remaining sample split and retested – where positive result – whether substantial compliance – whether s 352A Racing Act2002 relevant Racing Act 2002, s 352A Whitaker v Harness Racing Queensland [2009] QRAT 014 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr S Neaves, barrister |
| RESPONDENT: | Mr A J Orchard, in house legal officer of Racing Queensland Limited |
REASONS FOR DECISION
Mr Taylor, and his mother, Mrs Taylor, own and train greyhounds. They both had winners in the Rockhampton race meeting on 26 February 2011. The urine samples for both dogs were sent to Brisbane for testing. In both cases, Sample A tested positive to boldenone and its metabolic. Boldenone is a prohibited substance. The laboratory could not issue certificates because, when it attempted to cross reference the results to the samples, the samples could not be found.
The laboratory decided to split Sample B, test one part as a new sample A and use the balance as Sample B. The new Sample A tested positive to boldenone and its metabolic in each case. New Sample B for Mrs Taylor’s dog tested positive to boldenone and its metabolic. New Sample B for Mr Taylor’s dog tested positive for the metabolic only. The laboratory issued certificates showing a positive result.
At a hearing on 1 July 2011, the Stewards found both owners guilty of a breach of Greyhounds Australasia Rule 83(2)(a)(d):
The owner, trainer or person in charge of a greyhound nominated to compete in an event shall present the greyhound free of prohibited substance.
Mr Taylor was disqualified for 4 months. Mrs Taylor was disqualified for 3 months. They have applied to the tribunal to review those decisions.
There is no dispute that the samples were obtained from the dogs in compliance with The Collection Procedures[1]. There is also no dispute that the samples tested positive to boldenone. The Taylors say there are three factors which, when combined, are grounds for setting aside the Stewards’ decision:
a)The loss of Sample A.
b)The decision to split Sample B.
c)The independence of Ms Perrett, who witnessed the split.
[1]Procedures for the collection of samples produced by the Racing Animal Welfare and Integrity Board under s 115 of the Racing Act 2002.
As to the loss of Sample A, the Taylors point out:
a)On Racing Queensland’s own evidence[2], the step of checking the result against the sample is “a very important step” and a certificate cannot issue unless that step is completed.
b)Because it was a very unusual occurrence, the mere fact that Sample A was lost must raise doubt about the integrity of Sample B.
c)Because the laboratory is accredited and has very stringent management and security procedures, the loss of Sample A gives rise to questions over the whole testing process.
[2] Dr Young, Transcript page 10 line 45 to page 11 line 20.
As to the decision to split Sample B, the Taylors say that:
a)Because the split sample was given a new testing number, it represents a new sample and that new sample must be collected in compliance with the requirements of The Collection Procedures.
b)The splitting of the sample cannot be retrospectively legitimised by writing a protocol that arose because of these particular circumstances.
c)The absence of a protocol before these circumstances arose suggests that this is not an event that can be “covered off” by a protocol.
As to the independence of Ms Perrett, the Taylors say that:
a)Because the split sample is a new sample, and The Collection Procedures have to be followed, the witness must be a witness who has the Taylors’ interests in mind.
b)Ms Perrett is part of the integrity system so she cannot be truly independent.
c)Ms Perrett was aware of the problem and the draft protocol written in response to it so, once again, she cannot be truly independent.
Counsel for the Taylors urged the tribunal to rely on the decisions of Whitaker v Harness Racing Queensland[3], Pomfrett v Racing Queensland Limited[4], and Wakefield v Queensland Racing[5] to find that strict compliance with the procedure is necessary for a valid certificate to issue and failure to follow the protocols that existed at the time is fatal.
[3]Whitaker v Harness Racing Queensland [2009] QRAT 014; Queensland Harness Racing Limited v Whitaker [2009] DCA No. 2220 of 2009; Whitaker v Harness Racing Queensland [2010] QCAT 693.
[4] [2011] QCAT 137.
[5] [2008] QRAT 014.
[10] Racing Queensland says that the tribunal must draw a distinction between the collection and the testing of the samples. Collection of the sample is within the control of Racing Queensland as provided for by the Racing Act 2002.
[11] Racing Queensland says that:
a)It has no control over the testing procedures.
b)Once a sample is delivered to an accredited facility, then it is the facility that determines the testing procedure.
c)The laboratory determined that the loss of Sample A created a problem and it determined a procedure that would deal with the problem.
d)The resulting procedure was transparent and there is no evidence to suggest that the integrity of the new samples has been compromised.
e)There is no evidence to suggest that the certificates were factually wrong.
f)There is no evidence to contradict the presumption that the Taylors’ dogs did present with a prohibited substance.
[12] Racing Queensland submitted that the tribunal should have no regard to s 352A of the Racing Act2002 because that section relates only to the collection of samples and not the testing. While that is true, the existence of the section informs the way the tribunal considers the cases referred to the tribunal and the philosophy that underpins the testing regime.
[13] Wakefield involved testing a Sample A that had leaked. The laboratory tested the sample even though it did not comply with The Collection Procedures which specify: “Do not use defective or leaking equipment”. The sample was positive to a prohibited substance and Wakefield was found guilty. In the absence of s 352A, which permitted substantial compliance, the tribunal overturned the Stewards’ decision. The fact that the laboratory had access to, but did not split Sample B, was irrelevant to the tribunal’s consideration because the sample did not comply with The Collection Procedures and there was no room for the exercise of a discretion.
[14] Pomfrett was determined on a particular set of facts concerning the veterinarian’s activities in collecting the sample. We do not find it of assistance in this case.
[15] Whitaker also involved a breach of The Collection Procedures. The sample had not been sealed in compliance with Step 7 – stapling the top of the bag or heat sealing it. At the time of the tribunal’s decision, s 352A read:
(2)In making the decision, it is enough for the decision maker to be satisfied that, in taking and dealing with the thing for analysis, the control body has substantially complied with the integrity board’s procedures (the relevant procedures) mentioned in section 115(3) as in force at the relevant time.
(3)In considering whether there has been substantial compliance with the relevant procedures, the decision maker must have regard to the evidence of an accredited analyst, or an accredited veterinary surgeon, of an accredited facility about whether substantial compliance with the relevant procedure has not adversely affected the integrity of the analysis.
[16] The tribunal, as decision maker, was not satisfied that the control body had substantially complied with the relevant procedures.
[17] The current version of s 352A is quite different:
(2)In making the decision, it is enough for the decision maker to be satisfied that the method of taking and dealing with the thing for analysis was in compliance with the requirements of section 143(3) to the extent that the integrity of the analysis was not adversely affected (substantial compliance).
(3)Evidence of an accredited analyst or accredited veterinary surgeon, for an accredited facility, that the method of taking and dealing with the thing for analysis was in substantial compliance with the requirements of section 143(3) is evidence of that fact and, in the absence of evidence to the contrary, conclusive evidence of that fact.
[18] It is the clear intention of the Legislature that, if there is a certificate from an accredited analyst or veterinarian, the decision maker should not look behind the method of taking samples unless there is evidence that the procedure was not substantially compliant.
[19] By analogy, where there is a certificate from an accredited analyst or veterinarian that the testing procedure was substantially compliant with the requirements of the accredited testing authority, the tribunal should not look behind the certificate unless there is clear evidence that something adversely affected the integrity of the testing procedure.
[20] The fact that both Samples A were missing is not evidence of a conspiracy, or some general laxity in the laboratory procedure, it is simply evidence that the samples went missing. We cannot agree with the submission that their absence somehow taints the remaining Samples B, particularly when the video of the splitting procedure demonstrates that the security measures for the samples were intact at the start of the process.
[21] We understand the argument that the absence of a procedure means that the accredited body did not contemplate a situation where one of the samples would be lost and, therefore, the event was so unusual that there cannot be a mechanism that would ensure substantial compliance. That is really another way of saying that the testing authority must comply strictly with its own procedures and there can be no room for anything less than actual compliance. We have already determined that this cannot be the philosophy that underpins the testing regime.
[22] We agree with the submission that Ms Perrett is not the ideal candidate for the “independent” witness referred to in the laboratory’s new procedure. It would be preferable, in future, for that witness to be a person entirely unconnected with Racing Queensland, the laboratory or the integrity board. It would also be preferable that any video of the splitting of sample be one seamless record, rather than a series of shorter videos of each step.
[23] Despite these criticisms, we are satisfied that the splitting of Sample B was undertaken in a way that ensured the integrity of the two new samples. Dr Young, who undertook the procedure, provided a statement. Ms Perrett provided a statement. Ms Perrett’s statement records that the procedure was videoed by Dr Caldwell. The video is in evidence. Counsel for the Taylors does not submit that there is any evidence to suggest that the procedure resulted in a contaminated sample.
[24] We are satisfied that compliance with Protocol 37A (although written retrospectively) created a clear evidentiary link between the sample which was taken on race day and the final re-allocated sample which was tested and, therefore, the subject of the certificate of analysis. We are satisfied that the samples taken from the Taylors’ dogs on 26 February 2011 are the same samples that were split in the laboratory and, therefore, are the same samples that tested positive to boldenone.
[25] Although we were initially attracted by the submission that the splitting of Sample B, and the allocation of a new number, created two new samples, the handling of which must comply with The Collection Procedures, it is an argument that cannot withstand scrutiny. The Collection Procedures are designed to ensure the integrity of the sample collected from the field and to give owners and trainers confidence that the sample to be tested is the sample taken from the particular animal. Once the sample arrives at the laboratory, the importance of The Collection Procedures falls away and the internal checks and balances of the laboratory become relevant. As we have already identified, we are satisfied that the internal procedures of the laboratory ensured the integrity of the samples.
[26] We accept the evidence of Dr Young, an accredited veterinary surgeon, that the method of taking, handling and testing of the samples was in substantial compliance with the requirements that ensure the integrity of the samples. In the absence of evidence to the contrary, we accept that the certificate is conclusive evidence of the fact that the samples tested positive for boldenone. The application to review should be dismissed.
[27] In accordance with the tribunal’s direction of 9 August 2011, we direct that the parties file written submissions as to penalty within 14 days of the date of this decision.
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