Tim Cook t/as Tim Cook Racing v Racing Queensland Ltd
[2013] QCAT 239
•11 April 2013
| CITATION: | Tim Cook t/as Tim Cook Racing v Racing Queensland Ltd [2013] QCAT 239 |
| PARTIES: | Tim Cook t/as Tim Cook Racing (Applicant) |
| V | |
| Racing Queensland Ltd (Respondent) |
| APPLICATION NUMBER: | OCR376-12 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 21 January 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Mr Richard Oliver, Senior Member Mr John Bertelsen, Adjudicator |
| DELIVERED ON: | 11 April 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The decision of the Respondent is set aside and instead the Applicant be disqualified for a period of 7.5 months (30 weeks). 2. The disqualification is subject to a condition permitting Mr Cook to carry out his occupation as a farrier and permitting him to attend licensed training facilities or racecourses to carry out work as a farrier, except that he cannot attend racecourses, on official race days, to work as a farrier. |
| CATCHWORDS: | Racing – presentation where the applicant presented a horse with an elevated total carbon dioxide level above the prescribed limit – where charged with a breach Australian Rules of Racing 178 – where applicant admitted to administering supplements to elevate the horses total carbon dioxide – where applicant failed to establish he was not blameworthy – where previous breach six years prior – whether previous breach should be ignored after a lapse of five years – where some credit given for intervening period without a similar breach. Manzelmann v Racing Queensland[2012] QCAT 45 Wallace v Racing Queensland (2007) QDC 168 Abbott v Racing Queensland [2012] QCAT 230 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Cook was represented by Mr Neaves of counsel. |
| RESPONDENT: | Racing Queensland Ltd was represented by Mr James of counsel. |
REASONS FOR DECISION
Mr Cook was the trainer of the horse Break of Dawn. Break of Dawn competed in race 2 at the Rockhampton Jockey Club race meeting on 25 October 2012. Subsequent to the race, a blood test was taken which showed that Break of Dawn had a total plasma carbon dioxide concentration in excess of 36millimoles per/L[1] which contravened Rule 178(c)(1)(a) of the Australian Rules of Racing which prohibits the presentation of a horse for a race if there is a total carbon dioxide (TC02) at a concentration in excess of 36mmol per litre in plasma.
[1] Racing Science Centre Reading 38.7mmol/L and Australian Racing Forensic Laboratory Reading 38.4mmol/L.
On 14 November 2012 Stewards held an inquiry into the circumstances of the presentation and at the conclusion of the inquiry charged Mr Cook with a breach of the Rule.
After considering all of the evidence including, the scientific evidence and the evidence of the stewards involved on race day, Mr Cook was found guilty of the presentation charge and was disqualified from holding a trainer’s licence for a period of 9 months.
On 20 November 2012 Mr Cook filed an application to review the decision made by Racing Queensland. The application is made under section 20 of the Queensland Civil and Administrative Tribunal Act 2009 and the function of the Tribunal on a review application is to produce the correct and preferable decision by way of a fresh hearing on the merits.
Mr Cook told the Stewards and this Tribunal that leading up to the race he consistently added supplements to Break of Dawn’s feed to increase the TC02 level and maintain a consistent level of somewhere between 33 and 34mmol/L to ensure that the horse performed at his optimum during a race. He did this by giving the horse potassium plus and nutradex every time it was fed. He would also give the horse bi carb, sulkavite and 10 Borocca tablets using a nasal tube direct into the stomach the day before the race.[2] He relied on QML test results to monitor the TCO2 levels.
[2] Transcript pate 8 line 10.
Prior to the race in question, an I-STAT sample was taken which recorded a TC02 level of 36mmol/L, which is at the limit. The I-STAT is not an official testing device but is used to obtain an indicative level to determine if further testing is warranted.
Because of the high level from the I-STAT test, unsurprisingly, Break of Dawn was required for a post race blood sample. Mr Cook says he was told about the post race sample about 15 minutes after the horse had raced. However by that time, one of his stable hands had given the horse a “drink of water.”[3] Nevertheless the horse remained at the track for a little over three hours before the final blood test was taken.
[3] Transcript page 7 line 30.
Immediately after the race, one of the stewards, Brian Malder, followed the horse from the enclosure back to its tie up stall. After its return to the tie up stall, it was then taken to a wash bay for a hose down and returned to the stall. Mr Malder in fact asked the strapper, Ms Labrook, if she knew why he was there to which she replied that she did not. Soon after that, another man arrived at the tie up stall with a bucket of water and he observed the horse drink. He also observed that the water in the bucket was not discoloured nor did he see either Ms Labrook or anyone else add any substances to the bucket.
During the inquiry, Mr Cook said that he had no idea why the horse’s TC02 level was elevated because he keeps a very close check on what is administered to the horse and is aware that anything higher than 36mmol/L is a breach of the Rules of Racing. During the inquiry he questioned Dr Young of the Racing Science Centre about the TCO2 levels. Dr Young ultimately said:
“The only real explanation as to how a horse and (sic) go from what you would expect to be its normal resting level up to approximately 36 pre-race, and its subsequent 38.7 post race, is as the result of the administration of alcoholising agents, an administration of alcoholising agents on the day of racing. The chances of a horse going to that sort of level naturally is 650,000 to 1 and beyond.”[4]
[4] Transcript page 11 line 35.
The result of this evidence is that the only reasonable explanation for the horse’s high reading is because of the alkalising agents administered to the horse by Mr Cook.
The difficulty with Mr Cook’s case here is that he acknowledges engaging in a regime of administering alkalising agents every feed and giving the horse a saline drench (nasal) with bicarb, sulkavit and berocca tablets to keep the horse at peak level. Mr Cook said that on information he has learned over his years of training is to ensure, as best he can, to maintain a level of 34mmol/L.
Mr Cook contends that one of the reasons for the high reading is that his brother Andrew, gave the horse an alkalising agent in the drink that was given to the horse after it was washed down. Mr Andrew Cook, who was assisting at the races, said that it was customary to prepare a bucket of water with a cup of nutradex and a cup of potassium plus as well as molasses for the horses to drink to assist in rehydration. He said that he did that on this occasion and the horse consumed the bucket of liquid.
A question for determination here is whether the horse was given the mixture after Mr Cook was told it would be required for a swab, which was very soon after the race. Mr Malder, one of the Stewards, says that he observed the horse getting a drink of water which certainly did not have molasses added to it because it was not discoloured. It is common knowledge and not contested that molasses added to the water would discolour the water. Thereafter, the horse was under continued observation until the blood sample was taken. Mr Wallis, another Steward, said he stayed with the horse until the sample was taken. He swears that he did not witness anyone administer Break of Dawn with any substance following race two and before the blood sample was taken.
Therefore, the only time the horse could have been administered with any substance after the race was when it had that first drink after being washed down. Mr Cook told the Stewards at the inquiry that the water given to the horse was supplemented with Nutradex, as is his usual practice if a horse does not place. However he did know that the I-STAT was high and was informed after the race the horse would be required for a swab.
On Mr Cook’s own evidence, the horse had been given alkalising agents regularly before going to the race track. The purpose of this was to try and maintain a TCO2 level of about 34mmol/L. As well, after the race Mr Cook says it was given the Nutradex in water and molasses. Although this is contrary to the evidence of Mr Malder, the Steward who was observing the horse after the race, who said that the water was clear but, in the end, we are of the view that this makes little difference. This case is different to Manzelmann v Racing Queensland[5] because Mr Manzelmann was not aware his horse was to be swabbed until after he had given it a drink which included Nutradex.
[5] [2012] QCAT 45.
When applying the test in Wallace v Racing Queensland,[6] Mr Cook has not established that there is a specific mitigating circumstance which would account for the high reading of TC02. The evidence here is quite to the contrary. There was a deliberate treatment regime in place with the intended purpose to increase the animal’s TCO2 levels. Either through miscalculation or reliance on QML results, which does not really give an accurate reading for horses, or the administration of Nutradex after the race all of which would explain the high reading of the horses TCO2, there is no other explanation forthcoming. We therefore find that there is no mitigating circumstance which would warrant a lesser penalty.
[6] (2007) QDC 168.
As to the penalty, Racing Queensland contend this breach of the rule should be regarded as a second breach warranting a higher penalty. It is now generally regarded that for a first breach involving TCO2 a 6 month disqualification is warranted, save for any specific mitigating circumstance. For a second breach the norm seems to be about 9 months.[7] However when considering previous breaches it is also important to have regard to the length of time that has elapsed between the breach under consideration and the previous breach.
[7] Abbott v Racing Queensland [2012] QCAT 230.
Mr Cook had a previous breach for excess TCO2 in December 2006. In January 2012 he was fined $5,000 for presenting a horse with a prohibited substance, prednisolone. Although the latter is a presentation charge it does not fall into the same category as a presentation charge involving TCO2. It is usual for a fine to be imposed for a substance like prednisolone rather than a licence disqualification. This was the approach taken in Manzelman where the previous breach did not involve TCO2 and a considerable time elapsed between the two breaches.
Although it is of concern that Mr Cook deliberately maintained a high level of TCO2 in the animal we accept he genuinely did not believe he would fall foul of the rule although this would, of itself, not be a mitigating factor.
We are urged by Mr Cook to regard this as a first offence. He relies on Vale v Queensland Racing[8] where the Tribunal had regard to minor offences in criminal law where a conviction is removed from ones history after five years. Although that is a useful comparison, we do not think it ought to be regarded as having strict application if the second offence occurred outside the five year period. In other words, if the first breach occurred, say a little over five years before the second breach then the first breach can be disregarded altogether. We think the preferable approach is that the length of the interval between breaches should be regarded as just one of the mitigating factors to be taken into account. Obviously the longer the interval the less weight the earlier breach will have in the consideration of the penalty to be imposed. The interval here of some six years is a significant interval and therefore although it cannot be disregarded altogether the applicant is entitled to some credit for this.
[8] [2011] QCAT 642.
Whereas a nine month disqualification would be the norm for the second breach that occurs within reasonable proximity of the first, we are of the view that in these circumstances, and also having regard to the positive prednisone test a disqualification of seven and a half months (30 weeks) would be appropriate.
At the conclusion of the hearing we made an order which had the effect of permitting Mr Cook to attend racing training complexes and race tracks to carry out his trade as a farrier, provided he did not do so on race days. The disqualification means that he can not earn income from training or racing horses. This is a significant financial impost to him and his family. He has asked the Tribunal to put a condition on his disqualification that permits him to continue to work as a farrier. We see no reason why such a condition should not be imposed.
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