RACING - APPLICATION FOR REVIEW OF PENALTY - where applicant pleaded guilty to presenting a horse in a harness race with a prohibited substance in excess of threshold

Queensland Civil and Administrative Tribunal Act 2009, ss 19, 20

Racing Act 2002

Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58 considered

Aldrich v Boulton and Ross [2000] QCA 501 considered

McKenzie v Acting Assistant Commissioner Wright [2011] QCATA 309 followed

[1] Mr Justin Abbott is a trainer who held a trainer's and driver's licence under the Australian Harness Racing Rules made under the Racing Act 2002.

[2] Mr Abbott presented a horse OCTOBER SON in a harness race at Albion Park on 14 February 2012 when a pre-race blood sample was found on analysis to have a total carbon dioxide (TCO2) level in excess of the limit of 36 millimoles per litre.

[3] Mr Abbott was charged under Rule 190 of the Australian Harness Racing Rules which reads:

"(1) A horse shall be presented for a race free of prohibited substances.

(2) If a horse is presented for a race otherwise in accordance with sub-rule (1), the trainer of the horse is guilty of an offence."

[4] Prohibited substances are defined in Rules 188 and 188A. Rule 188A states that alkalinising agents are prohibited substances except when their presence is evidenced by total carbon dioxide (TCO2) at a level at or below a concentration of 36 millimoles per litre. In other words, above that level there is evidence of prohibited alkalinising agents in the horse.

[5] Mr Abbott pleaded guilty to the charge and his licence was disqualified for 10 months. He claims that the penalty was excessive and applies for its review by this Tribunal.

[6] OCTOBER SON was a "bleeder", which refers to a tendency to bleed through the nose because of pulmonary haemorrhage when exercising. Under Rule 101 of the Australian Harness Racing Rules a horse which suffers a bleeding attack will be barred from racing for 3 months after the first such attack and barred for life if there is a second attack. For this reason and possibly for animal welfare reasons, it is common practice to control such tendency to bleed using medication. One such medication is furosemide, which is available under the brand name "Lasix". This is an alkalinising agent and diuretic which is used to reduce blood pressure in the lungs. It is a recognised and accepted treatment for the condition.

[7] The effect of Rule 188A is that administration of Lasix or similar medication is specifically prohibited if its administration results in the TCO2 level going above the 36 millimoles per litre limit.

[8] Carbon Dioxide (CO2) occurs naturally in the blood of mammals and the normal level in horses is between 28 and 31. One way to increase the level of CO2 in a horse is to administer sodium bicarbonate. This, being an alkalising agent, will alter the acid/alkaline "pH" balance in the blood. An elevated level of CO2 may enhance the racing performance of a horse by delaying the onset of fatigue and therefore improving its endurance.

[9] The review jurisdiction is conferred on QCAT by sections 150-154 of the Racing Act 2002. Sections 19 and 20 of the QCAT Act 2009 require the Tribunal to hear and decide the review by way of a fresh hearing on the merits, with the purpose of producing the "correct and preferable decision"; and in exercising the review the Tribunal has all the functions of the original decision maker. There is no presumption that the original decision is correct[1].

[10] The sample was analysed the day after the race and was found to contain a TCO2 level of "above 39 millimoles per litre" at the Racing Science Centre laboratory which is local to the Albion racecourse. Another part of the sample was then analysed one day later, this time by the Australian Racing Forensic Laboratory in New South Wales and was found to be 38.7 millimoles per litre. On behalf of Racing Queensland it was submitted that the relevant reading was the first one because samples degrade over time or in flight. Despite there being nothing in the documentation to show that the sample was flown to NSW rather than taken by road, there is supporting evidence that the samples degrade in time[2]. For this reason we think it is right to regard the first reading of above 39 as the more accurate reading.

[11] It was also submitted that this was an "extremely high level" of TCO2. We accept this submission. It is indicated by four things:

• (a) the fact that the device used to measure the level is off the scale over 39[3];

• (b) Mr Birch told us he had never before seen a reading as high as 39;

• (c) the level was described by the Chairman of the stewards' enquiry as being "a very, very high level"[4]; and

• (d) the evidence of Dr Baldwin referred to below.

[12] It was Mr Abbott's case both in the stewards' hearings and in the application before us that the high level of TCO2 found in OCTOBER SON arose naturally and by accident. He claimed that since the horse was a bleeder and was on Lasix, this would have increased the level of CO2. Also because the horse was a bleeder he had not permitted the horse to drink water for almost five hours before the race, to reduce the horse's blood pressure. This is a standard procedure in such circumstances.

[13] Mr Abbott explained that he was recognised as particularly skilled in looking after horses who were bleeders. For this reason he looked after and had presented many of them to races. However, on no previous occasion had it been found that a horse which he had presented to a race had a TCO2 level over the limit. He had considered therefore what he had done differently on this occasion. He had given OCTOBER SON a treatment for ulcers, Mylanta. He therefore suspected the Mylanta was responsible for the high level of TCO2[5].

[14] Mr Abbott denied that any substance was given to the horse in an attempt deliberately to increase the level of CO2.

[15] Mr Abbott called a veterinary surgeon Dr Baldwin as his witness and asked whether the administration of Mylanta and withdrawal of water could account for a high level of TCO2 as in this case. However, Dr Baldwin did not think so. Indeed Dr Baldwin was quite forthright in telling us that unless a horse was extremely ill (which would mean it could not race at all) it was virtually impossible to get a TCO2 level of 39 without administering some 400 to 500 grams of sodium bicarbonate to it. He said the level of sodium bicarbonate in Mylanta was negligible; the administration of that drug and withholding water might raise the level to 32 at the most, but would not account for the high level found here.

[16] We have some difficulty with this part of Dr Baldwin's evidence. His evidence was not given in a formal way because there was no written report from him; instead it was given "off the cuff" in a telephone call at the hearing. He was not examined or cross examined fully. Whilst we were told at the hearing by Mr Birch that Dr Baldwin was aware of the circumstances of this case, when commenting on what could raise the level of TCO2 to 39, it was not clear whether he was referring to a horse on Lasix like OCTOBER SON, or whether he was only speaking about horses not on Lasix.

[17] Dr Baldwin did say at the beginning of his evidence that it was possible to get a high level of TCO2 by administering alkalising agents other than sodium bicarbonate, such as Lasix. Dr Baldwin's view about this is supported from two other sources. Firstly there is a paper from the Michigan Office of Racing Commissioner submitted by Mr Abbott which states that the administration of Lasix can affect levels of CO2. Secondly there is Mr Abbott's evidence given to the stewards' inquiry that in the United States the normal limit of permitted TCO2 of 37 is increased by 2 points to 39 for a horse which is on Lasix, a fact which seems to have been accepted by the chairman of the inquiry[6].

[18] On this evidence therefore, we must conclude that the administration of Lasix can raise the natural levels of TCO2 in a horse to a high level.

[19] The paper from the Michigan Office of Racing Commissioner also indicates that the level of TCO2 in a horse can be affected by number of other factors such as administration of other medication or supplements, or the type of feed. The paper also points out that the level of TCO2 can be increased by dehydration arising for example if the horse is not permitted water prior to the race, which is what happened with OCTOBER SON.

[20] Since there were two factors here capable of raising the level of TCO2 and one of them capable of raising the level to a high level, we think the correct approach in this case is not to regard the high reading of TCO2 as an aggravating factor.

[21] The stewards considered that there was an animal welfare issue which was an aggravating factor in this case, but we also disagree with this. On the available evidence before us, a standard and acceptable procedure was followed to reduce the blood pressure of the horse. If those or similar procedures had not been followed, OCTOBER SON would not have been able to race and its future would be uncertain.

[22] The stewards also considered that the betting on the race by Mr Abbott was an aggravating factor in this case. Again we disagree with this. The implication is that the confidence shown by Mr Abbott's bet of $700 when he was on a weekly salary of $600 per week, indicated that he must have known that a performance enhancing drug had been administered to the horse. Despite Mr Abbott's salary level we do not regard the bet as so large as to raise suspicion. Mr Abbott explained to the stewards that he was optimistic because of the successful trial[7] and we accept this explanation.

[23] The stewards regarded Mr Abbott's disciplinary history as an aggravating factor. This refers to an offence when he failed to present GOOD BOYS for a post-race blood test after its win. This resulted in a fine of $4,000 on 9 July 2011. Mr Abbott argued that this offence should not be taken into account, but we disagree. Whilst it is not exactly the same offence, it is the same type of offence. The offence was under Rule 189(9) which requires a person to fail to comply with a steward's direction as to testing. The stated aim of that rule is to test whether a prohibited substance is in a horse. Mr Abbott explained to us how that offence occurred (the owner removed the horse from the meeting without his knowledge), but ultimately it was Mr Abbott's responsibility to comply with the steward's direction, and so any mitigation by reason of the circumstances is limited.

[24] Mr Birch explained to us and we accept, that there is a significant problem in the harness racing industry with the use of sodium bicarbonate and this is bringing the sport into disrepute. He told us that there had been a reduction in confidence in the sport's integrity, illustrated by the fact that the betting turnover through TAB for harness races is declining. For this reason in an attempt to protect the sport and to improve its image there has been a clamp down in cases such as these. For example the last time a fine was imposed (rather than a disqualification) for an offence of this type was in 2009. Since then, disqualification has been accepted as the norm and in suitable cases a long period of disqualification has been regarded as appropriate.

[25] We consider that it is right for us to take into account the views and aims of Racing Queensland in this respect. These views and aims are informed by a close knowledge of the industry and consideration of the appropriate sanction policy to apply from time to time. Section 19 of the QCAT Act states that in our review we have all the functions of the decision maker. Those functions include the maintenance of public confidence in racing for which betting is lawful, and to ensure the integrity of all persons involved with it[8]. The Supreme Court in Queensland stated in Aldrich v Boulton and Ross[9] that a Tribunal when conducting a rehearing may give due recognisance of the decision maker's requirements for internal discipline and management. It is also important for us to consider previous penalties imposed by Racing Queensland in order to achieve consistency in this review, in so far as is fair to do so.

[26] Mr Abbott tried to argue that the problem in the harness racing industry with the use of sodium bicarbonate was rather less than as stated by Mr Birch. For example, he said it never reaches the papers and was nothing like problems reported in New South Wales. We prefer the views of Racing Queensland in this respect as presented to us by Mr Birch as it is likely to be more authoritative and with a better overview.

[27] Mr Abbott pleaded guilty to the offence. However the offence is one of strict liability (it does not require knowledge or intention), and it would have been difficult to challenge the test results. In any case we are mindful of QCAT appeal authority that states that discounts for pleading guilty are difficult to justify in the disciplinary context except in so far as they demonstrate honesty, remorse or acceptance of responsibility[10].

[28] Mr Abbott has no alternative skills, his whole life is working with horses and he has been out of work because of his suspension. There are very limited work opportunities available to him during his suspension. This has resulted in a poor financial position.

[29] There was a reference from Mr Abbott's employer Mr Dixon stating that Mr Abbott shows great capabilities around the horses, that he has been found to be reliable and trustworthy in Mr Dixon's work situation, and requesting a suspension only so that Mr Abbott could continue to work in his stable.

[30] It is a matter of fairness and natural justice that we should strive to achieve the greatest possible degree of consistency. This can never be perfect, and in this case we are at some disadvantage because the full facts of comparable cases were not available before us. We have to do our best in the circumstances.

[31] Mr Abbott relied on a number of comparable cases, and provided the stewards' reports produced at the time. His information was therefore rather better than that provided by Racing Queensland which was a spreadsheet of previous penalties with only selected and sparse information about each case.

[32] We accept Mr Birch's submission that the correct comparables are those from the harness racing industry, and that we should disregard any comparables from thoroughbred racing. This is because the problem with sodium bicarbonate being a drug which enhances a horse's endurance, is particularly relevant in the harness racing industry.

[33] From the available evidence it is clear (and Mr Abbott accepts this) that for a first offence the norm is about 6 months' disqualification. It also appears from the spreadsheet that the norm for a second offence is 8 to 10 months' disqualification.

[34] We do take into account that Mr Abbott had committed a previous offence of a similar type. Our starting point is therefore disqualification for a little less than 9 months bearing in mind the limited mitigating factor in respect of that previous offence. We do not discount for the guilty plea because we do not think Mr Abbott had much choice in that respect, so we do not think the plea demonstrates honesty, remorse or acceptance of responsibility. We think however it is right to reduce the period from the starting point a little further because of the particular damage to him that a period of disqualification causes and because of the good reference from his employer. We think the appropriate penalty is disqualification for 8 months.

[1] Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58 at [9].

[2] Page 26 at [20] in the transcript of inquiry of 28 February 2012.

[3] Page 26 at [20] in the transcript of inquiry of 28 February 2012.

[4] Page 26 at [15] transcript of inquiry 28 February 2012.

[5] Page 17 at [40] transcript of inquiry 28 February 2012.

[6] Page 10 at [5] transcript of inquiry of 28 February 2012.

[7] Page 16 at [45] of the transcript of inquiry on 28 February 2012.

[8] This conclusion is reached from the aims of the Racing Act 2002 set out in section 4 which are to be achieved through Racing Queensland as the "control body" under the Act.

[9] [2000] QCA 501 at [43].

[10] McKenzie v Acting Assistant Commissioner Wright [2011] QCATA 309 at [24].