Webber v Racing Queensland Ltd
[2011] QCAT 581
•22 November 2011
| CITATION: | Webber v Racing Queensland Ltd [2011] QCAT 581 |
| PARTIES: | Mr Mark Anthony Webber (Applicant) |
| v | |
| Racing Queensland Ltd (Respondent) |
| APPLICATION NUMBER: | OCR224-11 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 14 November 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | Brockwell Miller, Presiding Member Richard Oliver, Senior Member |
| DELIVERED ON: | 22 November 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. That the Stewards’ decision that Mr Webber was in breach of AR81A is confirmed. 2. That the Stewards’ decision that Mr Webber be suspended for 12 months be changed to a suspension of 9 months. |
| CATCHWORDS: | Racing – where applicant found to have prohibited substance on analysis – where departure from human sampling collection protocol – whether departure sufficient to invalidate certificate of analysis – where recognition for good conduct should be a factor in imposing penalty – where penalty reduced from 12 months to 9 months suspension |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Webber was represented by Mr Ring, solicitor, National Jockey’s Association |
| RESPONDENT: | Racing Queensland Ltd was represented by Mr Orchard, solicitor, of Racing Queensland |
REASONS FOR DECISION
Mr Webber travelled to Betoota in Western Queensland for the week-end races on Saturday, 28 August 2011. Mr Gillard, a senior steward with Racing Queensland also attended the Saturday races. Part of Mr Gillard’s duties that day was to take urine samples from the jockeys competing at the race meeting. One of those jockeys was Mr Webber.
Mr Webber provided a sample and on analysis it was found to contain a prohibited substance in excess of that permitted by Australian Racing Rule 81B. As a consequence of that, Mr Webber was charged with a breach of AR81A and suspended for a period of 12 months from 17 October 2011.
Mr Webber has sought a review of the decision of Racing Queensland. The purpose of the review proceeding is for the Tribunal to produce the correct and preferable decision. In doing so it must hear and decide the review by way of a fresh hearing on the merits.[1]
[1] QCAT Act, s 20.
There are two issues for determination. The first issue is whether Mr Webber provided an initial partial sample of urine before returning to Mr Gillard to provide a further sample sufficient for the purposes of conducting an analysis. The second issue is whether by reason of the admitted departure from the protocol for human sample collection, the process is materially flawed and the integrity of the sample is compromised to the point where it should not be accepted.
Background
On the morning of 27 August 2011, Mr Webber knew that he was required to provide a urine sample. Some time that morning, between 11am and 11:50am Mr Webber went to the Steward’s room, met with Mr Gillard to provide a urine sample. Mr Gillard gave Mr Webber a clear plastic sample pack which consisted of a clear open collection cup and two clear sealed plastic bottles. Mr Webber opened the plastic bag and took the collection cup out of the bag and, with Mr Gillard, went to the facilities some three metres from the Steward’s room and attempted to provide a sample. He was unable to provide any or any sufficient sample for the purposes of analysis.
There is a divergence in the evidence at this point in that Mr Webber says he provided a small sample of urine however Mr Gillard says he did not supply any whatsoever. We will return to this topic shortly. They both returned to the Steward’s room and Mr Gillard put the collection cup back in the plastic bag together with the two sealed plastic bottles and placed it on a table in the Steward’s room. Mr Gillard asked Mr Webber if he was happy to leave the kit in the Steward’s room and come back later to provide a further sample to which Mr Webber agreed.
Within 15 to 35 minutes later, Mr Webber returned. There is some dispute as to the time interval. Mr Webber contends that he had sufficient time to return to his camp, shower his son, undertake some more wasting, walk around and then return to Mr Gillard. That, according to Mr Webber, took some 30 to 40 minutes. Mr Gillard, on the other hand says that Mr Webber returned in about 15 minutes. In the meantime, Mr Gillard had taken a sample from another jockey and was packing that sample when Mr Webber returned.
On his return, Mr Webber says he was again given the bag, took out the plastic cup and went with Mr Gillard to the facilities and provided a small sample. Both agree that Mr Gillard said the sample may not have been sufficient and that he asked Mr Webber to try again. After a further small sample was taken, they both walked back to the Steward’s room where Mr Gillard checked the temperature strip on the cup and then broke the sealed bottles and put the contents of the cup into clear plastic bottles.
There is very little difference in the evidence given by both Mr Gillard and Mr Webber save for the timing and whether Mr Webber gave an initial sample. Mr Webber’s recollection is somewhat vague in that when asked questions during the hearing, he said that when he returned on the second occasion he provided the sample into the screw top bottle and not the cup. When questioned further about this, he then said that the sample was provided into the cup and not the sealed bottles. He then accepted that he saw Mr Gillard transfer the contents of the cup to the sealed bottle.
[10] Mr Webber supports his evidence that he provided an initial sample on the first attempt on the basis that after spending some time wasting he felt ready to go, that is provide a sample and then made his way over to Mr Gillard. The difficulty with this evidence is that if a sample was provided initially it is unlikely firstly, that the open cup would be placed back in the plastic bag and secondly the temperate marker on the cup would have been activated and render it useless for the purposes of taking the second sample.
[11] After the collection procedure was completed, the sample was analysed by Racing Analytical Services Ltd which showed a positive result of a prohibited substance.
[12] From the commencement of the inquiry, Mr Webber’s position was that he had provided an initial sample. Mr Whyburn, Mr Webber’s then solicitor told the Stewards at the initial inquiry that Mr Webber attempted to give a sample, couldn’t give a sufficient amount because he was wasting and was dehydrated. He submitted that on Mr Webber’s return 40 to 45 minutes later, and using the same beaker with a small amount in it, he provided a further sample. He described, presumably on instructions, that the container had a top on it and it was then put in the bag which he (Mr Webber) didn’t see being sealed.[2]
[2] Transcript 19 September 2011 page 4 line 30.
[13] As we have indicated, this was consistent with Mr Webber’s oral evidence that he provided his sample in to a bottle with a secure cap rather that the open cup.
[14] Mr Gillard was clear in his recollection of events that day, his evidence has been consistent throughout as to the circumstances of the sampling and we therefore prefer his evidence. When compared with the inconsistencies in Mr Webber’s evidence, Mr Gillard’s evidence should be preferred.
[15] Having said that, we see that it makes little difference to the outcome whether the sample provided was given in two stages or one because, for the reasons set out below, we consider the departure from the protocol was not sufficient to vitiate the whole of the collection procedure.
Did the departure from the collection protocol invalidate the certificate of analysis?
[16] The collection protocol provides:-
“Should the provider not be able to supply, if “QML” dispose of the jar, and instruct provider to return when able to supply. If it is a “RASL” kit instruct provider to keeping his possession for second attempt when able to supply”.
[17] Mr Webber also relied on the Australian Standard, AS/AZS 4308: 2008 which provides:-
“2.2.3 Security
Procedures shall be in place to provide for the designated collecting site to be secure. If a collecting site can not be dedicated to the collection of urine, then that portion of the facility used shall be secured during collection.”
[18] Mr Ring, solicitor for Mr Webber, also relied on the division in the Australian Standard relating to “Integrity and Identity of the collection specimen”. 2.2.3 sets out the collection procedure and relevantly:-
“(b)In the presence of the donor, the collector shall ensure that the specimen is secure at all times prior to it being sealed and labelled
…
(h)If the integrity of the specimen can not be established, then another urine specimen shall be collected and both forward to the laboratory for drug and specimen integrity testing. Both the original and further specimens shall be uniquely labelled and accompanied by their individual chain-of-custody forms which are cross referenced in the permanent record system.”
[19] The departure from the collection protocol is that upon Mr Webber not being able to provide a sufficient quantity initially, rather than letting Mr Webber take possession of the kit, it was kept in safe keeping by Mr Gillard.
[20] Mr Gillard proffers a number of reasons for this departure. Mr Gillard says that he asked Mr Webber whether he was happy to leave the kit with Mr Gillard while he went to do other things with the intention to return to the Steward’s room later in the day. Mr Webber agreed with this proposal and that evidence is not challenged. The reason Mr Gillard wanted to keep the kit was to ensure its integrity and that it was not contaminated either in the jockeys’ room which was used by the jockeys that were there on the day, or it be taken back to Mr Webber’s camp where it might otherwise be contaminated. Whereas Mr Gillard intended to remain in the Steward’s room until the commencement of the races and the kit was safe there with him.
[21] We are satisfied that although the plastic bag had been opened the integrity of the kit remained intact whilst in Mr Gillard’s presence. The only time it was not under his direct supervision was when he went with another jockey to take a sample and was out of the room for no more than a minute. There were no other people using the Steward’s room during this time and the prospect of the kit being interfered with was remote.
[22] The protocols are there to be complied with. Although, as Mr Orchard points out, unlike the taking of samples from racing animals, there are no legislative requirements in Queensland for samples from humans to be collected in accordance with a particular protocol. Good sense dictates however, that once a protocol is in place, compliance with that protocol is highly desirable to ensure the integrity of samples being taken particularly, when an offence is committed if the analysis contains a banned substance of the type referred to in AR81B.
[23] Mr Ring has referred us to In the matter of the appeal of John Keating.[3] Keating was concerned with a departure from the collection protocols in place in New South Wales. The testing kit was opened and when Mr Keating could not provide a sample the kit was then placed in a refrigerator and retrieved some time later for Mr Keating to try to again give a sample. He did so and the sample was positive to a prohibited substance. Mr Keating denied taking the prohibited substance. The Appeal Panel was critical of the procedure because the control bottle was removed from the sample pack and the seal was broken.
[3] Racing New South Wales Appeal Panel, 13 September 2010.
[24] The protocol in that case was different to this one. Here, the kit should have been given to Mr Webber but for the reasons stated it remained with Mr Gillard. It was virtually in his physical possession at all times. The protocol does not mandate a new kit be given to the jockey if a sample cannot be provided. Also the seals in the sample bottles were not broken so the sample in the bottles could not have been contaminated. On the evidence we have found that the cup had not been used prior to Mr Webber providing the sample.
[25] We agree with the general observation that where liability is strict for participants concerning banned substances, maintenance of the integrity of the sample is of paramount importance. Stewards need to be very careful to ensure the protocols are followed. However we also agree that a minor departure from the protocol is not sufficient to compromise the integrity of the sample for the purposes of reliance on the certificate of analysis.
[26] In the end, we are satisfied that the departure was not sufficient to cast any doubt on the integrity of the sample and therefore we propose to confirm the decision of the Stewards.
Penalty
[27] Mr Webber was suspended from racing for 12 months. The basis of that suspension was a previous disqualification and suspension in 2006. We need not reiterate the hardship that this suspension will cause to Mr Webber that is sufficiently set out in the transcript and is accepted by us as it was by Racing Queensland in coming to their decision.
[28] He is a single parent with two young boys, has no other skills or trade qualifications other than riding and has been a jockey for all of his working life.
[29] The only matter of concern for us is the statement by the Stewards that because he got “nine months last time – and this is now … your fourth conviction for a drug offence” a 12 months suspension was imposed.
[30] When having regard to Mr Webber’s history, it is obvious that he has had problems with the use of prohibited substances in the past. His history of use of cannabis and amphetamines supports this view. There can be no doubt that the safety of all jockeys in the racing industry is a paramount consideration when imposing sanctions for use of prohibited substances. Those that use these substances put others at risk or injury during a race.
[31] However, it is also clear that Mr Webber has made a concerted effort to remain out of trouble for a period of five and a half years. He has had a difficult history, is now in secure employment and is at risk of losing considerable income by not being able to ride for the full 12 month period. His good record for the past five and a half years is something, in our view, which the Stewards ought to have specifically taken into account in coming to the decision that they did. In hearing the matter afresh it is a factor we should take into account.
[32] Mr Orchard has helpfully provided us with comparable decisions which show a range suspension from 2.5 months to 21 months and in particular with respect to Oates and Appo each received 9 months for a third breach.
[33] Giving Mr Webber some recognition for his good conduct in not coming before the Stewards for five and a half years we consider an appropriate penalty in the circumstances is a nine month suspension.
[34] Therefore, the orders of the Tribunal will be:
That the Stewards’ decision that Mr Webber was in breach of AR81A is confirmed.
That the Stewards’ decision that Mr Webber be suspended for 12 months be changed to a suspension of 9 months.
0
0
0