Currie v Queensland Racing Integrity Commission [2020] QCAT 240

Internal Review

17. The Applicant sought an Internal Review on charge and penalty on the basis that the Applicant was denied procedural fairness and the penalties imposed were manifestly excessive. The outcome sought by the Applicant was that the finding of guilt on all charges be set aside and the disqualification be set aside.

1. On 15 July 2019, the Internal Reviewer confirmed all 3 charges and made the following amendments to the penalties in respect of each charge:

1. The penalty amended from a fine of $15,000 to six (6) months disqualification;

20. The penalty amended from one (1) year to nine (9) months disqualification.

1. The penalty amended from 2 years disqualification to 12 months disqualification;
2. The Internal Reviewer declared that the periods of disqualification were to be served cumulatively with the result that the period of disqualification totalled twenty-seven (27) months.
3. The respective penalties for the charges concerning the horses WICKED TRILOGY and KARAHARAGA, were reduced on internal review to $5,000 fine in each case. No review is sought in respect of those penalties.
4. The present matter, an external review under s 246 of the Racing Integrity Act 2016, seeks only to review the penalty imposed on each charge.
5. The Applicant was one of Queensland's leading trainers and has held a trainer's license for approximately ten (10) years. At the time that these matters went before the stewards, the Applicant's disciplinary history demonstrated two (2) prior offences to AR178 that occurred in 2016 and 2017.
6. The particulars relevant to the 2016 matter involved a horse that provided a sample found to contain methamphetamine due to a meth using stable hand who had involvement handling the subject horse on race day: refer to the reasons for decision of Member Hanger 2018 QCAT (OCR033-17).
7. On 19 March 2017, Ben Currie was fined $3,000 when the horse SMOOCH returned a positive to an equine dental sedative 4-Hydroxy Xylazine.

1. The Veterinary Certificate particular to SHAKRIA regarding Testosterone states:

1. Testosterone is an anabolic androgenic steroid which increases protein production (anabolism) and decreases protein breakdown (catabolism). It does this by retaining nitrogen, sodium, potassium and phosphorus and decreasing urinary excretion of calcium.

2. Testosterone can increase bone and muscle mass, provided the horse has an adequate dietary intake of calories and protein. Testosterone can increase the production of red blood cells in horses by stimulating the erythropoietic stimulating factor. Testosterone can increase a horse's appetite and make the horse more aggressive and difficult to handle. Studies into the effect of testosterone and other anabolic steroids on the performance of horses are inconclusive.

3. Testosterone is classed as a Schedule 4 substance (Prescription Only Medicine or Prescription Animal Remedy) or Schedule 6 substance (Poison) if manufactured as an implant preparation for animals, according to the Standard for the Uniform Scheduling of Medicines and Poisons No. 15.

1. (a) The SHAKIRA charge concerned a race on 26 January 2018;

(b) The Racing Science Centre (RSC) analysts' certificate is dated 20 March 2018;

(c) The confirmatory certificate is dated 8 May 2018;

(d) The negative hair sample test result was certified on 6 June 2018;

(e) Mr Currie was notified of the positive result by the letter to his solicitors dated 27 November 2018. NOTE: this was the letter which advised Mr Currie that he was charged with a breach of AR178 and also with administration of the prohibited substance under AR175(h)(ii). The charge under the latter rule, was later abandoned by the stewards;

30. The Veterinary Certificate particular to DREAMSCOPE regarding Cocaine and Benzolecgonine states:

1. Benzolecgonine is a metabolite of cocaine. Cocaine can be extracted from the leaves of the coca plant or synthesised artificially.

2. Cocaine has a local anaesthetic effect and is a central nervous system stimulant. It also affects the cardiovascular system.

3. Cocaine is classified as a Schedule 8 substance (Controlled Drug) and coca leaf is classified as a Schedule 9 substance (Prohibited Substance) according to the Standard for the Uniform Scheduling of Medicines and Poisons No. 23.

1. (a) The DREAMSCOPE charge concerned a race at Toowoomba on 16 September 2018;

(b) The RSC issued a positive analyst's certificate on 26 November 2018;

(c) The confirmatory certificate is dated 10 December 2018;

(d) Mr Currie was notified of the positive test result by letter to his solicitors dated 14 December 2018. NOTE: this was the letter which advised Mr Currie that he was charged with a breach of AR178 and also with a breach of AR175(h)(ii). The charge under the latter rule, which was one of administration, was not proceeded with;

1. The Veterinary Certificate particular to EIGHT OVER regarding Cocaine, Methylecgonine and Benzolecgonine, states:

1. Cocaine is a plant alkaloid. Its effects include central nervous system stimulation, local anaesthesia and vasoconstriction.

2. Benzoylecgonine and methylecgonine (also called ecgonince methyl ester) are metabolites of Cocaine in the horse.

3. Cocaine is classified as a Schedule 8 substance (Controlled Drug) and coca leaf is classified as a Schedule 9 substance (Prohibited Substance) according to the Standard for the Uniform Scheduling of Medicines and Poisons No. 23.

1. (a) The EIGHT OVER charge concerned a race at Toowoomba on 2 February 2019;

(b) The RSC issued a positive analysts certificate on 15 March 2019;

(c) The confirmatory certificate is dated 26 March 2019;

(d) Mr Currie was notified of the positive test results by letter to his solicitors dated 5 April 2019. NOTE: this was the letter which advised Mr Currie that he was charged with a breach of AR178 and also with a breach of AR175(h)(ii). The charge under the latter rule, which was one of administration, was not proceeded with.

• [3] The Tribunal derives its jurisdiction to conduct an external review of the decision under s 246 of the Racing Integrity Act 2016 (Qld).
• [4] The Tribunal's function on such a review application is to produce the correct and preferable decision by way of a fresh hearing on the merits.[1] Because this is an administrative review proceeding, the Tribunal's function is to review the decision, not the process by which it was arrived at nor the reasons given for making it. Accordingly, the Tribunal is not required to identify an error in either the process or the reasoning that led to the decision being made. There is no presumption the original decision is correct.[2]
• [5] It was submitted on behalf of the Applicant that:

(a) He was one of Queensland's leading trainers and has held a trainer's license for approximately 10 years.

(b) Between 2012 and 2017 the Applicant started the following number of horses in races:

(c) All winners and numerous second place getters had urine and/or blood samples taken from them for analysis. Numerous other horses had pre-race blood samples taken from them after arrival at racecourses for racing commitments. These samples were taken as part of normal racing integrity protocols. Apart from the positive swabs which are the subject of this matter and the other four cases referred to above, the other samples were not notified as returning positives to prohibited substances;

(d) At the time that these matters went before the stewards, the Applicant had two prior AR178 offences.

• [6] In respect of the horse Shakira it was submitted on the Applicant's behalf that he did not administer the Testosterone and he believed that it had been administered before it came to Queensland from Victoria. The horse had previously been trained and raced in Victoria by another trainer Robert Smerdon. It arrived at the Applicant's stable, from Smerdon's stables about two weeks before it was presented to race on 28 January 2018.
• [7] Robert Smerdon, the trainer of Shakira until approximately 14 days prior to the horse's arrival at the Applicant's stables, was found guilty of multiple serious charges under the ARR related to dishonest, corrupt, fraudulent, improper or dishonourable conduct in relation to 78 pre-race, horse doping occurrences. Following an appeal decision dated 31 December 2019, Mr Smerdon was disqualified for life and a fine of $90,000 was imposed by the Victorian Civil and Administrative Tribunal. [3]
• [8] The evidence was that as an anabolic steroid, Testosterone has a long life in the body system of a horse.[4] It is submitted on behalf of the Applicant that there is a strong circumstantial case that the mare Shakira had been administered Testosterone while with Mr Smerdon and that she came to the Applicant's stables with the substance already in her. The horse raced when trained by the Applicant on several occasions after 28 January 2018. It was swabbed and tested on 13 June, 7 July and 4 August 2018, with no further positives to Testosterone or any other substance.

• [9] Dreamscope's urine sample was found to contain Cocaine and Methylecgonine and Benzolecgonine; the latter two substances are metabolites of Cocaine. In lay terms a by-product of Cocaine after it has metabolised. It seems to be generally accepted that it found its way into the horse's system by environmental contact. That is by contact with a stable hand or other handler, perhaps outside the stable.[5] The Respondent cannot dispute that assertion as it did not carry out any of its own investigations.
• [10] There was a period of three months between when Dreamscope raced and the notification to the applicant of a positive test. This allowed him no reasonable opportunity to investigate the source of the contamination of the horse.
• [11] In the cases of Dreamscope and Eight Over neither the Analyst's Report nor the Veterinary Certificate provide data as to the levels of cocaine in the system of the horse.
• [12] It was submitted on the Applicant's behalf that:

(a) At the material times, the Applicant had 100 horses in active training out of two stable complexes in Toowoomba. Eighty horses were housed in barns at Clifford Park racecourse.

(b) Another 20 were stabled at his parents' property a few kilometres away at Glenvale.

(c) He had about 20 full time and casual employees as stable hands and trackwork riders. The horses did not have their own dedicated handlers or riders. Staff handled any horse on an as required basis.

(d) Cocaine is a widely used illegal recreational drug in the Toowoomba area.

• [13] It was further submitted that the racing industry is not isolated from the community use of illegal drugs. The Respondent has dealt with numerous charges against trackwork riders in South East Queensland: Gold Coast, Sunshine Coast, Ipswich and Toowoomba, where urine samples have shown evidence of the use of methamphetamines and Cocaine. These are published on the Respondent's website. Examples were provided of six licensed individuals in the last two years who have been sanctioned by the Respondent. Two were from the Toowoomba area.

• [14] Eight Over's urine sample also was found to contain Cocaine and Methylecgonine and Benzolecgonine.
• [15] Again, no investigations were carried out by the Respondent as to whether Eight Over had contact with people, other than employees of Currie Racing, or environmental features that may have been a source of contamination with Cocaine.
• [16] It was submitted that there was a period of about two months between when Eight Over raced and the notification to the Applicant of a positive test. This allowed him no reasonable opportunity to investigate the source of the contamination of the horse.
• [17] It was submitted by the Applicant in respect of both Dreamscope and Eight Over offences that no adverse inference should be drawn against him arising from his inability to explain the source of the contamination. The individual horses in the stable do not have their own dedicated handlers. On the day any member of staff could have had contact with a horse.[6] The delays referred to above, three months in respect of Dreamscope and two months in respect of Eight Over, deprived the Applicant of the opportunity to conduct an investigation with any real prospect of success. The trail, it was submitted, was too cold.
• [18] The Respondent submits that the Applicant made no attempt to investigate how cocaine was administered to Dreamscope and how it could be avoided in the future. He took no precautions to prevent a recurrence which, in fact, occurred with Over Eight returning a positive swab on 2 February 2019, the Applicant having earlier notice following the results of Dreamscope's positive result for cocaine communicated to him on 14 December 2018.

• [19] Although AR178 imposes an absolute liability on the trainer and any other person in charge of a horse presented for racing with a prohibited substance, the use of the words 'may be penalised' provides a discretion not only as to penalty but whether any penalty should be imposed at all. The following decisions affirm such an approach.
• [20] In Wallace v Queensland Racing[7] McGill DCJ said:

In my opinion, however, there is a difference between a case where there is evidence to show a specific mitigating circumstance, and simply an absence of evidence of an explanation, either mitigating or aggravating depending on the extent to which it shows an absence or presence of blameworthiness on the part of the trainer.[8] Cases where the trainer was able to show a specific explanation which did not involve any blameworthiness on his part are really examples of the situation where the trainer has for the purpose of penalty been able to show a mitigating circumstance. It may well be appropriate for such cases to be treated more leniently than what might be described as the ordinary case, where there is no explanation for the elevated reading, and therefore no indication as to whether or not there is any personal blameworthiness on the part of the trainer. Obviously the third category of case would be one where there was some explanation which did show moral blameworthiness on the part of the trainer, which I would expect would justify a more severe penalty.

• [21] The test to be used in determining penalty in a "presentation" case, was considered by Carmody J in Queensland All Codes Racing Industry Board v Thomas.[9] His Honour said:

[77] Consequently, a respondent is not liable to a penalty if an overall assessment of the evidence rebuts the no fault inferred from a positive test and reasonably supports a finding that he or she acted under an honest and reasonable mistake that the horse being presented to race was drug-free or alternatively, had done all they could to stop the horse from testing positive for a banned substance.

...

[104] The salient penalisation factors are not spelled out in the AR's but clearly include the character and the degree of culpability of the applicant which, in this case, the RBD found was such as to warrant the transgression being overlooked and any penalty waived.

[105] Considerations irrelevant to liability, such as good character, lack of knowledge, accident or carelessness and even unexcluded possibilities may mitigate, if not sufficient to excuse or support a forensic finding consistent with innocence.

[106] The RDB was within its rights in re-exercising the discretion to choose not to impose any penalty at all, because the respondent was "a man of senior years with an unblemished record throughout his (long) history", he was "forthright in this approach", at the mercy of a rule "somewhat predatory in its conclusiveness", held in "great respect" by the stewards, not morally culpable, not even partially suspended from training, and already financially disadvantaged by the horse's disqualification. There is no House v The King error evident in this approach and, therefore, no power to disturb it.

• [22] The Applicant in his submission stresses that the charges of administration of the prohibited substances were abandoned by the Respondent. This is significant because, in the hierarchy of gravity, the culpability for a presentation charge under AR178 is, on the case authorities, significantly lower than for administration. See Racing Victoria Ltd v Kavanagh[10] per Maxwell P:

[45] In striking contrast to the administration offences, the offences resting solely on proof of detection do not carry a fixed or minimum penalty. This is doubtless because the degree of blameworthiness attaching to the trainer (and 'any other person who was in charge') will vary according to the circumstance under which the prohibited substance came to be in the horse's system. Put another way, the conferral of a discretion with respect to penalty enables the harshness of absolute liability to be ameliorated in appropriate cases. The conduct constituting each of the four administration offences, on the other hand, is viewed as uniformly blameworthy (within each category) and hence as warranting a mandatory penalty.

• [23] In an appeal by Gai Waterhouse (2 September 2005) the Racing New South Wales Appeal Panel, Mr P Capelin QC, Principal Member; Mr M Einfeld QC; Ms M Crawley; Mr J Hickman and Mr D Leo said, among other things:

Australian Rule of Racing 178 in its current form provides that when a horse is brought to a racecourse and a prohibited substance is detected in any sample taken from it prior to or following its running in a race it may result in the trainer being punished. The decision whether or not to punish the trainer is discretionary. The finding is mandatory but, flowing from that finding, the penalty is discretionary.

• [24] At the outset of the hearing the Respondent's Counsel no longer pressed that the total disqualification period should be 27 months, instead conceding that the period should be a total of 18 months, being the six month period of disqualification for Dreamscope to be served concurrently with the 12 month period of disqualification for Eight Over. That the period of disqualification of 12 months be served cumulatively with the period of disqualification of six months in respect of Shakira.
• [25] The Respondent submits that when regard is had to the circumstances giving rise to each charge it is evident that the applicant has not done all he could to stop the horses from testing positive for a banned substance. So much is apparent from Cocaine being detected in Dreamscope and Eight Over. The applicant seeks to rebut this onus by "shifting" the onus to the Respondent. Such an approach the Respondent submits is misconceived.
• [26] Furthermore, the Respondent submits that there is no evidence to support the Applicant's contention that he "had no reason to depart from the belief that the horses were being presented to race free of prohibited substances.[11]
• [27] The Respondent relies upon a decision of Mark Goodwin[12] who was convicted of a charge under AR rule 178 involving Testosterone. A six month disqualification period was imposed but the Stewards' Report contains no details of the offence or the circumstances in which it occurred. The Applicant's counsel submitted as a possible explanation that sometimes small hobby trainers who may be financially restrained prefer to accept a disqualification in lieu of a fine as being more palatable.

• [28] In respect to Shakira the Applicant denied that he nor any member of his staff had cause to administer Testosterone.[13] It was a drug that, at the time, was only available in an injectable form.[14] The Applicant advised that the mare was sent to him from Victoria. She had tested negative in Victoria on 24 November 2017 and raced again on 9 January 2018.[15] She arrived from Victoria two weeks before she raced and returned a positive swab on 28 January 2018. The Applicant advised that it was not his common practice to use Testosterone, that there was pressure on him to race the mare when it arrived from Victoria, that he did not think it necessary to wait a period of time in case the mare had something in her system. He thought two weeks was a reasonable time.[16] He did not think it was necessary to contact the previous trainer.[17] The effect of Testosterone on performance of horses is inconclusive, in other words it is not known to have any performance enhancing characteristics.[18] There seems no logical reason for the Applicant to administer it and then race the mare in the period of 14 days.
• [29] I am of the opinion that there is a rational explanation for the presence of Testosterone in the urine sample. The Applicant denies that there was any direct administration of Testosterone. The evidence is not contested that the Applicant only took possession of the horse 14 days before the race in which it returned a positive swab. Testosterone remains in the system for some considerable time. Despite the former trainer's deplorable history for doping horses in his stable, Testosterone may have been administered in Victoria on the then trainer's assumption that the mare was not going to be raced for some time. It is not an unreasonable inference to draw, that absent any other explanation, Testosterone was in the mare prior to her arrival at the Applicant's stables. In my opinion, such an explanation is more than mere speculation.
• [30] Had the mare returned a positive result without the explanation of her coming from interstate a fortnight earlier, then the only explanation would have been that Testosterone had been injected by someone in the stable with or without the Applicant's knowledge and a significant penalty would then have been justified.
• [31] The cases of Dreamscope and, more particularly, Eight Over are not so easily resolved.
• [32] I note that it is not possible to ascertain the quantity of cocaine found. I also note that the likely source was environmental contamination rather than direct administration.
• [33] Following notification of the positive swab in respect of Dreamscope, one would have expected some investigation and tightening of controls within the stable. I am not convinced by the explanation that the contamination could have come from outside the stable. It was suggested that racecourse staff possibly may have contaminated the horse. There was no evidence that other contaminations had occurred in this way.
• [34] The Applicant appears to have taken no steps to advise and/or warn his staff of the potential problems in this regard, nor did he put in place any safeguards.[19] Essentially, it appears that he ignored the problem.
• [35] The degrees of blameworthiness in Wallace have been conveniently categorised in Scott v Queensland Racing Integrity Commission (No 2) with the additional category of 'carelessness' as:

(c) No credible explanation, so no indication about blameworthiness one way or the other.

• [36] It would appear, at least in respect to Over Eight that the Applicant falls within Category (b) or (c). In the above case, Member Gordon referred to varying degrees of carelessness ranging from a mild lack of care to gross negligence. In this case the Applicant took no steps to investigate how Dreamscope came into contact with cocaine, and what steps he could take to prevent it from recurring again. That showed a degree of apathy that, in my opinion amounted to blameworthiness warranting an above average penalty.
• [37] The Applicant has provided a list of comparable charges and penalties under AR 178 (now AR 240 (2)) for substances, other than Cobalt, for the Thoroughbred Code, Harness Code and Greyhound Code. Generally, in respect of thoroughbreds all penalties were fines. There was also an example of one individual[21] charged with two breaches of the rule with five past offences yet he was still only penalised with a $3,000 fine on each charge. There were no charges relating to Testosterone. Unfortunately, the stewards' reports were not provided.
• [38] In Abbott v Racing Queensland [2012] QCAT 230 the Tribunal said that as a matter of fairness and natural justice the Tribunal should strive to achieve the greatest degree of consistency as is possible.
• [39] In all the circumstances, I consider the appropriate penalties to be:

(a) In respect of Shakira I set aside the penalty of six months' disqualification and impose no penalty;

(b) In respect of Dreamscope, I set aside the penalty of six months' disqualification and impose a penalty of $5,000.00;

(c) In respect of Eight Over I confirm the penalty of disqualification for a period of 12 months.

• [40] The Tribunal orders that:
  1. The penalty imposed in respect of Shakira be set aside and no penalty be imposed.
  2. In respect of Dreamscope, the penalty of six (6) months' disqualification be set aside and in lieu thereof the Applicant be fined $5,000.00;
  3. In respect of Eight Over the penalty of disqualification for a period of 12 months is confirmed;
  4. The period of disqualification to commence from 15 July 2019.

[1] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20.

[2] Kehl v Board of Professional Engineers of Qld [2010] QCATA 58, [9].

[3] Smerdon v Racing Victoria Ltd (No 2) [2019] VCAT 2059.

[7] [2007] QDC 168, [69].

[8] R v Morrison [1998] QCA 162; [1999] 1 Qd R 397, 422.

[9] [2016] QCATA 82.

[10] [2017] VSCA 334.

[11] Para 36(b), applicant's outline of submissions.

[12] Stewards Report: Mark Goodwin - Red Beretta dated 25 August 2016.

[18] See paragraph 28 of joint statement of facts at [2].

[20] [2018] QCAT 301, [48].

[21] Stewards Report: John Manzelmann dated 4 June 2020.