Vale v Queensland Racing
[2011] QCAT 642
•16 December 2011
| CITATION: | Vale v Queensland Racing [2011] QCAT 642 |
| PARTIES: | Mr Ricky John David Vale |
| v | |
| Queensland Racing |
| APPLICATION NUMBER: | OCR181-11 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 30 November 2011 |
| HEARD AT: | Rockhampton |
| DECISION OF: | Peta Stilgoe, Presiding Member Philippa Beckinsale, Member |
| DELIVERED ON: | 16 December 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The stewards’ decision to impose a penalty on Mr Vale is confirmed. |
| CATCHWORDS: | RACING – where elevated TCO2 levels – where procedure not followed strictly – whether substantial compliance with procedure – whether penalty appropriate Racing Act 2002, s 325A Wallace v Queensland Racing [2007] QDC 168 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | S Neaves, by direct brief |
| RESPONDENT: | A J Orchard, in-house counsel |
REASONS FOR DECISION
Mr Vale was the registered trainer of Rusty Hunter, which competed in Race 2 at Callaghan Park on 2 June 2011. Testing of a pre-race blood sample from Rusty Hunter revealed it had elevated levels of TCO2. The Stewards found Mr Vale in breach of ARR178 and disqualified him for nine months.
Mr Vale applied for a review of the Stewards’ decision on the basis that the method of collecting the blood sample was flawed. The two questions for determination by the tribunal[1] are:
a)Whether any action of Dr Williams had an adverse effect on Mr Vale’s opportunity to witness the sealing of the swab taken from Rusty Hunter.
b)The effect of the issues relating to the fact that the record of custody was signed by a person as sample collection official, not by the veterinarian responsible for its collection.
[1] Tribunal direction 22 September 2011.
Counsel for Mr Vale drew our attention to a number of specific complaints about the conduct of Dr Williams, the veterinarian. Mr Neaves says that Dr Williams:
a)Did not properly explain the collection procedure to Mr Vale.
b)Did not show Mr Vale that the plastic bag containing the sample equipment was intact.
c)Handled the vials used for collecting the sample in a way that gave rise to confusion and doubt.
d)When completing the procedure, placed himself in such a position that Mr Vale was unable to witness the procedure fully.
e)Did not give Mr Vale the opportunity to verify the sealed samples.
Because of the direction of 22 September 2011, we do not propose to consider the first three complaints about Dr Williams’ conduct in detail. We are mostly concerned with Dr Williams’ activities relating to the sealing of the swab.
The procedure for sealing the swab
It is true that Dr Williams did not explain the collection procedure to Mr Vale. When asked at the stewards’ inquiry whether he knew what the procedure was, Mr Vale answered “Well, I’m not an accredited vet, so not really.”[2] This is a disingenuous response as Mr Vale’s questioning of the witnesses demonstrates that he did know the procedure for testing:
a)He asked why there was only one swab attendant.[3]
b)He knew that swabs were usually taken in the swab box.[4]
c)He has been a trainer for seven or eight years.[5]
[2] Transcript page 17, line 24.
[3] Transcript page 12, line 1.
[4] Transcript page 15, line 43.
[5] Transcript page 18, line 17.
We are not persuaded that Dr Williams’ failure to explain the testing procedure had any adverse effect on Mr Vale’s opportunity to witness the sealing of the swab taken from Rusty Hunter.
It is also true that Dr Williams did not show Mr Vale that the plastic bag containing the sample equipment was intact. However, Mr Vale does not assert that there was any evidence of contamination with the sample equipment or that Dr Williams’ failure to demonstrate this fact affected his opportunity to witness the sealing of the swab taken from Rusty Hunter. Counsel for Mr Vale says that, because it is yet another example of a failure to comply with the procedure, we should give it some weight. We acknowledge that it is a failure in procedure but we cannot see how it impacts on the central question of whether it had an effect on Mr Vale’s opportunity to witness the sealing of the swab taken from Rusty Hunter.
There was a great deal of evidence about Dr Williams transferring vials between his pockets. Counsel for Mr Vale suggested to Dr Williams that the vials could have slipped out of sight during the procedure. Dr Williams denied that this was possible and there was no positive evidence that the vials did slip out of sight. No one has suggested that anything untoward did happen to the vials during the procedure. Again, we cannot see how it impacts on the central question of whether it had an effect on Mr Vale’s opportunity to witness the sealing of the swab taken from Rusty Hunter.
Mr Vale asserts that Dr Williams turned his back on Mr Vale when sealing the swab, which obstructed Mr Vale’s view of the procedure. There is evidence about this from four witnesses.
[10] In the stewards’ inquiry, Mr Vale said:
a)That Dr Williams had his back turned for the whole of the procedure.[6]
b)He was saddling his horse, so Dr Williams was doing the procedure without him seeing it.[7]
[6] Transcript page 7, lines 2-4; page 15, lines 30-35.
[7] Transcript page 10, line 10; pages 13-14, lines 45-1.
[11] Mr Vale confirmed his evidence under cross-examination during the hearing.
[12] Mr Cook, who is also a trainer, gave evidence at the stewards’ inquiry and before the tribunal. At the stewards’ inquiry, he said that Mr Vale and Dr Williams had their backs to each other.[8] At the hearing, Mr Cook confirmed that Mr Vale was facing the horse while Dr Williams completed the sampling procedure.
[8] Transcript page 25, line 10.
[13] The stewards heard from Mr Cochrane but, despite the tribunal issuing a notice to appear, he did not give evidence at the hearing. His evidence before the stewards was that Mr Vale was saddling Rusty Hunter with his back turned.[9]
[9] Transcript page 27, line 35-36.
[14] Dr Williams’ evidence is quite different. He says that he turned his back to the front of the stall to protect the process from breezes but that Mr Vale was always in a position to observe the sealing process if he wanted.
[15] Racing Queensland urged us to accept Dr Williams’ evidence on the basis that it was clear, he gave his evidence in a forthright manner and his evidence was consistent throughout the stewards’ inquiry and the hearing. As it turns out, it is not necessary to decide between the competing versions of events.
[16] The Procedure or taking and dealing with blood samples from horses, which is Appendix 3 to The Collection Procedures states:
“Advise the person in charge of the licensed animal to watch the sample collection procedure carefully.”
[17] We were provided with a photo of the area where Dr Williams conducted the procedure. The photo shows that there is little separating the stalls and, even if we accept that Dr Williams had his back to Mr Vale, there was nothing to prevent Mr Vale from shifting his position so that he could witness the procedure. Mr Vale conceded that he did not ask Dr Williams to shift; did not tell Dr Williams that he could not see the procedure; and did not stop saddling Rusty Hunter so that he could move into a position where he could observe the procedure.
[18] We were told that Mr Vale did not sign the acknowledgement “correctly” because he was not satisfied about the process but he didn’t want the procedure done again[10]. Mr Vale said that he signed in that way because he knew there was nothing in Rusty Hunter that would make the levels “that high” and that he had no concerns of a swab coming back positive.[11] We consider that an inadequate explanation. If Mr Vale did have concerns about the procedure, he could have then refused to sign the acknowledgement; signed it but noted his concern; mentioned the fact to Dr Williams at that time or later; or even mentioned that fact to his friends who were in the area at the time. We note, but make no other comment, on the fact that Mr Vale was not raising any objections about the procedure until Rusty Hunter returned a positive swab.
[10] Transcript page 7, lines 9-34; page 8, lines 1-4 and 34.
[11] Transcript page 9, lines 1-10.
[19] The Collection Procedures did not require Dr Williams to ensure that Mr Vale observed the procedure; it simply required him to advise Mr Vale to observe the procedure. It follows, then, that Dr Williams cannot be held accountable if Mr Vale chose not to observe the procedure and there is clear evidence that this is precisely what Mr Vale did:
a)He started saddling Rusty Hunter while Dr Williams was doing the procedure because he had recently been abused for being late into the enclosure.[12]
b)He was talking to two mates while saddling up.[13]
c)The horse had Mr Vale’s attention.[14]
[12] Transcript pages 6-7, lines 43-7; page 9, lines 33-35; page 14, lines 1-5.
[13] Transcript page 10, lines 7-10; page 14, lines 18-21.
[14] Transcript page 10, lines 33-34.
[20] The answer to the question “Whether any action of Dr Williams had an adverse effect on Mr Vale’s opportunity to witness the sealing of the swab taken from Rusty Hunter” must be “no”. It was Mr Vale’s own actions – in continuing to saddle Rusty Hunter – that had an adverse effect on his ability to witness the sealing of the swab.
The record of custody
[21] The Record Of Sample Custody And Dispatch (Form V36) contains a section that states:
“The Sample Collection Official whose signature appears below in the SCO Signature column certifies that they have personally taken or witnessed the sample being taken, taken custody of the sample, sealed the sample in accordance with the Procedures and secured it until delivery to an ARCB”
[22] This section of the V36 relating to the sample from Rusty Hunter has been signed by “J Ross”. There is no dispute that Ms Ross did not take the sample, witness the sample being taken or seal the sample as these procedures had been completed by Dr Williams. There was some doubt about whether Ms Ross or Dr Williams placed the samples in the locked refrigerator but there does not appear to be any dispute that the samples were placed in the locked refrigerator and that custody was passed to Mr Smith. Counsel for Mr Vale submits that Ms Ross’ signature, rather than Dr Williams’ signature, is not substantial compliance with The Collection Procedures and that, therefore, the finding should be set aside and Mr Vale’s conviction overturned.
[23] Section 352A of the Racing Act2002 provides that the evidence of an accredited veterinary surgeon that the method of taking and dealing with a sample was in substantial compliance with the requirements of the Act is, in the absence of evidence to the contrary, conclusive evidence of that fact.
[24] Dr Young is an accredited veterinary surgeon pursuant to s 352A. He provided a letter to the tribunal in which he states that the method of taking and dealing with Rusty Hunter’s sample was in substantial compliance with the requirements of the Act. Counsel for Mr Vale submitted:
a)The “certification” under s 352A cannot be provided retrospectively.
b)Dr Young can only certify matters that are within his expertise as a veterinarian and his certificate goes beyond that expertise.
c)There is evidence to the contrary, so the certificate, necessarily, is no longer conclusive evidence.
[25] There is nothing in the argument that certification cannot be provided retrospectively. Section 352A uses the language “was in substantial compliance”. There is no other way that the section can operate unless it is suggested that the accredited veterinarian must be present at the time of the procedure. In our view, that would render s 325A almost useless.
[26] A close reading of s 352A shows that the accredited veterinarian is charged with considering the “method of taking and dealing with the thing for analysis”. The usual duties of the veterinarian when completing the procedure are not limited to just taking the blood sample so it follows that the evidence of the accredited veterinarian are not limited but must include the whole process under The Collection Procedures.
[27] We are satisfied that an accredited veterinarian can give evidence that the procedure adopted, although technically non-compliant, is substantially compliant. That exercise necessarily requires a consideration of the evidence to the contrary. That this is so is highlighted in Pomfrett v Racing Queensland[15] where Dr Young gave a certificate stating that the procedure was not substantially compliant because the veterinarian, in that case, walked away from the observer and did not seal the security packets in the presence of the observer.
[15] [2011] QCAT 137.
[28] As was the case in Pomfrett, there is evidence to contradict the presumption that the procedure adopted was non-compliant. Section 352A(2) makes it clear that it is then a matter for the tribunal to determine whether the method of taking and dealing with the thing was such that the integrity of the analysis was not adversely affected.
[29] We are satisfied that the chain of custody was sufficiently intact that the integrity of the analysis has not been adversely affected. Even though the V36 was signed incorrectly, the evidence at the hearing was that Dr Williams delivered the sample into the locked refrigerator and it was then transferred to the ARCB official. There is no evidence that the sample was, or even could have been, interfered with in that period.
Miscellaneous matters
[30] Counsel for Mr Vale has made much of the fact that there were numerous instances of non-compliance in the way the samples were handled and that the sum of these amounted to substantial non-compliance. Those matters include: the failure to show Mr Vale that the plastic bag containing the sample equipment was intact; Dr Williams’ handling of the vials by placing them in his pocket; and the failure to show Mr Vale the numbers on the samples so that he could verify that the numbers matched.
[31] It is true that these factors indicate a lack of care in the collection of the samples but there is no evidence that these factors, in fact, led to the integrity of the sample being called into question. The tribunal requires more than mere suspicion and supposition; it requires clear evidence that something adversely affected the integrity of the sample.[16] There is no such evidence here. The stewards’ decision to find Mr Vale guilty of a breach of AR178 is confirmed.
[16] See Taylor v Queensland Racing [2011] QCAT.
Penalty
[32] Counsel for Mr Vale submits that the penalty should be no more than six months because:
a)Mr Vale is a young man who has been involved in racing his whole life.
b)He has only one previous conviction under this rule, on 16 January 2007. Since that time, there have been no other infringements.
c)He relies on the racing industry for his income.
d)Rusty Hunter did not win the race; there is no evidence of any betting moves reliant on an improved performance from Rusty Hunter; there is no suggestion or evidence of administration; and there is no evidence that Rusty Hunter did significantly improve.
e)A long period of disqualification will cause hardship.
f)The range for breaches of this nature is between four and six months. It is not appropriate to “load” the penalty because of the prior conviction.
[33] Racing Queensland submitted that the penalty of nine months was appropriate because:
a)A breach of AR178 commonly results in a period of disqualification.
b)The second offence for a breach of the TCO2 levels tends to attract a higher level than the first offence.
c)Mr Vale was disqualified for six months on his first offence. It is appropriate to impose a higher penalty in his second offence.
d)There is no evidence to show an absence of blameworthiness on the part of Mr Vale that would entitle him to mitigation in accordance with Wallace v Queensland Racing[17].
e)The stewards took into account all relevant personal circumstances.
f)Mr Vale is not reliant on racing for his livelihood.
[17] [2007] QDC 168.
[34] We accept that Mr Vale has been involved in racing his whole life and that he has had only one previous conviction, in 2007. We do not accept that a long period of disqualification will cause hardship. Mr Vale did not apply for a stay of the decision; he has been employed elsewhere for over five months.
[35] If Mr Vale did not have a previous offence for exceeding the allowable TCO2 levels, a penalty of six month would be appropriate. The real question is whether his previous conviction for the same offence justifies an increased penalty. In this regard, we have taken guidance from the way in which the criminal law in Queensland deals with offences. A conviction for a minor offence is only removed from a person’s record after five years.[18] The time lapse between offences of 4½ years, in our view, means that there should be some loading of the penalty. We are also of the view that, given his long history in the industry from a very early age, and his previous conviction, Mr Vale should have been aware of the significant consequences that result from the detection of TCO2 in a horse.
[18]Section 6 and the definition of “rehabilitation period” in s 3 of the Criminal Law (Rehabilitation of Offenders) Act1986.
[36] We are also puzzled at Mr Vale’s apparent lack of concern about the testing procedure. The testing of animals for prohibited substances is an integral part of racing in Queensland. It is no answer to a charge under AR178 for Mr Vale to say that he had other pressures that occupied his mind, or that he did not consider it necessary to raise concerns about the process until Rusty Hunter returned a positive sample. The obligation to present a sport in which the public has confidence lies on all participants in racing and it is unrealistic and unfair for Mr Vale to expect Racing Queensland to bear the responsibility for his lack of interest in essential procedures.
[37] The Racing Queensland records indicate that a loading of 50% is common for the second offence. In particular, we were referred to: Fleming, Hatch, Manzelman, L Smith and R Smith. The penalty of nine months imposed on Mr Vale does represent a 50% increase over his first penalty. We have no reason to set aside a penalty that is consistent with Racing Queensland practice.
[38] The stewards’ decision to find Mr Vale guilty of a breach of AR178, and the penalty of nine months, is confirmed.
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