Whitaker v Harness Racing Queensland
[2010] QCAT 693
•17 May 2010
| CITATION: | Whitaker v Harness Racing Queensland [2011] QCAT 693 |
| PARTIES: | Mr Gary Philip Whitaker |
| v | |
| Harness Racing Queensland |
| APPLICATION NUMBER: | RH004-09 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 7 May 2010 |
| HEARD AT: | Brisbane |
| DECISION OF: | Mr Richard Oliver, Senior Member Ms Kate Buxton, Adjudicator |
| DELIVERED ON: | 17 May 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The appeal is allowed. 2. The decision of the Stewards of 22 July 2010 is set aside. |
| CATCHWORDS : | Whether failure to comply with Step 7 of the collection procedures published by the Racing Animal Welfare and Integrity Board by not sealing the plastic bag amounts to substantial compliance Racing Act 2002, s 352A(3) |
APPEARANCES and REPRESENTATION (if any):
| APPELLANT: | Mr Gary Philip Whitaker represented by Mr Murdoch SC instructed by Gabriel Ruddy & Garrett |
| RESPONDENT: | Harness Racing Queensland represented by Mr Callaghan SC instructed by Schweikert Lawyers |
REASONS FOR DECISION
Introduction
The essential issue in this application for review is whether a Plasma Total Carbon Dioxide Certificate (“the certificate”) on which the Stewards relied in convicting the Appellant of on offence under section 190(1) of the Harness Racing Rules ought to have been relied upon as the proper basis for the conviction.
The certificate evidenced a pre race blood sample from the appellant’s horse as positive to TC02.[1]
[1] See certificate dated 5/6/09, exhibit 4B; certificate dated 7/6/09, Exhibit 6B.
It is common ground that a step in the collection protocol, which we will address in more detail below, was not followed. The Appellant argues that this precluded the Stewards from relying on the certificate and that the consequent conviction under section 190(1) of the Harness Racing Rules should be set aside.
The Respondent contends that there was substantial compliance, within the meaning of section 352A of the Racing Act 2002 (“RA”), with the collection protocol and that is sufficient for the certificate to evidence the offence.
This matter has progressed through the former Racing Appeals Tribunal to his Honour Judge Botting of the District Court, who set aside the decision of the former Tribunal and remitted the application back to QCAT for further consideration. We are asked to proceed on the basis of an agreed set of facts and on documents which formed the record of the Racing Appeal Tribunal proceedings.
The Arguments
The Appellant’s challenge to the certificate is based upon the way in which the relevant sample was dealt with and whether or not the process undertaken was compliant with the “collection procedures” published by the Racing Animal Welfare and Integrity Board[2] (“collection procedures”).
[2] Version 3, Effective 1 March 2008, exhibit 11.
The collection procedures are published by that Board pursuant to section 115(3) of the Racing Act 2002, and are required by section 143(3) RA to be adhered to. Relevantly, that section provides:
143 Way control body may take or deal with a thing for analysis
…
(3) If the results of the analysis are to be used by the control body for a purpose other than for research or survey purposes, the control body must take and deal with the thing for analysis under the integrity board’s procedures mentioned in section 115(3) as in force at the relevant time.
Strict compliance with the collection procedures is, therefore, mandatory. However, in determining the issue of compliance, section 352A is triggered.[3] Section 352A RA is headed “integrity of analysis of thing” and applies to these proceedings because the Stewards have sought to rely on the relevant certificate about the results of the analysis of the sample. Section 352A relevantly provides:
(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 accredited veterinary surgeon, of an accredited facility about whether substantial compliance with the relevant procedures has not adversely affected the integrity of the analysis.
[3] This is a matter which falls within subsection (1)(d) of that section.
The part of the process with which the Appellant raised concern involved the taking and dealing with the sample. Appendix 3 to the collection procedures sets out a nine step protocol for taking and dealing with samples. His complaint, put simply, and which is not disputed by the Respondent, is that part of the protocol was not completed. The relevant step is described as follows:
STEP 7 Pack the sample
Place the sealed 3-pocket security pouch inside the plastic bag that the sample bottles and associated equipment were delivered in.
Staple the top of the plastic bag or seal with a heat sealer if one is available.
10. The only step which is an issue is the failure either to staple or to heat seal the top of the plastic bag. It is agreed that this was not done. No evidence was lead as to any other way in which the collection procedures were not adhered to.
11. The Appellant argues that, as with other parts of the procedure, the process of sealing the plastic bag is a step relevant to ensuring the security of the sample. Steps five and six involve the application of tamper evident seals and placement into a security pouch which is a plastic bag. Step seven requires packing and sealing.
12. The Respondent argues that step seven has no such effect because steps five and six ensure the security of the sample and step seven relates only to packing of the sample. The Respondent states that the heading to step seven should inform its interpretation, that is, “pack the sample”.
Discussion
13. In our view, the interpretation of step seven must be informed by an understanding of the collection procedures in general and by what those procedures seek to achieve. Each of the relevant steps seeks to ensure that, when the sample reaches the laboratory for testing, it is a sample from the correct horse, properly identified in the security documentation, and the sample has not been interfered with or contaminated either intentionally or inadvertently. It is with that purpose in mind that we must determine whether the failure to adhere strictly to the requirement that the plastic bag be either stapled or heat sealed can be saved by the application of section 352A.
14. It is, essentially, the submission of the Respondent that section 352A must be given some work to do or, put another way, there must be some tolerances within the protocol. “Substantial” compliance, rather than “strict” is all that is required. We agree that section 352A contemplates circumstances in which the protocol will not have been strictly adhered to but which will have been adhered to in a way that amounts to “substantial compliance”. It is not for us to analyse the collection procedures and attempt to envisage various circumstances in which certain conduct might amount to substantial compliance in order to test this theory. Rather, our task is to look at this particular conduct and see whether the compliance was substantial.
15. In our view, in order to meet that test, the non-compliance must be inconsequential. Whether the non-compliance is intentional or simply an oversight is not, for the purposes section 352A, relevant. What is relevant is the impact of the non-compliance, and the degree it varies from what is required to comply with the protocol or step in the protocol.
16. Certainly, if the non-compliance affects the integrity of the sample then it cannot be saved. This seems to be the purpose of section 352A(3) which directs the decision-maker to the evidence of an analyst or veterinary surgeon on this very issue. Subsection 3 can only have been intended to require that analyst or veterinary surgeon to provide evidence as to matters within their expertise which go to the integrity of the analysis. In this case, Doctor Bruce Young has undertaken an exercise in his letter dated 20 July 2009[4] which goes beyond the relevant scientific enquiry, being the fact of compliance. There is nothing in his letter which indicates the integrity of the analysis has been affected. Therefore, we have had regard to that evidence but it does not impact our decision as to whether there has been substantial compliance with the collection procedures.
[4] Exhibit 15.
17. Step seven, like other steps in the procedure, is designed as a barrier to contamination or interference with the sample. Any sealing or securing of the sample in the plastic bag, provides a further step which anyone intent on interfering with the sample would need to overcome. It operates to provide a deterrent to such behaviour. Sealing the bag containing the sample also makes unintentional breaking of the other seals more difficult. These are at least some of the functions of sealing or otherwise securing the plastic bag. The Integrity Board have prescribed each of the nine steps, including step seven, and all have work to do.
Conclusion
18. In our view, each of the steps in the collection procedure is important in order to discharge the function of the protocol as a whole. Step seven requires packing and sealing, a two stage process, both of which have a function. One of those functions was not discharged because the package was not sealed or secured in any way. This transgression is not immaterial. We cannot, therefore, be satisfied that there has been substantial compliance with the collection process.
19. It follows from our findings that the certificate relied upon to evidence the contravention of section 190(1) of the Harness Racing Rules cannot be relied upon and there is no basis for the conviction.
20. The appeal is allowed and the decision of the Stewards of 22 July 2010 is set aside.
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