The following Orders are made on the basis that that Mr Richard Laming has previously pleaded guilty to Charges under the Australian Rules of Racing (AR) 240(2) and AR 104(1), contained in the Notice of Charges of the Racing Victoria Limited Stewards, dated 20 December 2019, and described further in these Reasons.

1 The Tribunal makes Orders under s 83OH of the Racing Act 1958 (Vic) and s 51(2)(c) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic).

2 The decision of Victorian Racing Tribunal made on 19 February 2021 in respect of the penalties imposed on Richard Laming is set aside and the following penalties are imposed instead:

(a) For the breach of AR 240(2), Richard Laming is disqualified as a licensed trainer for a period of 10 months; and

(b) For the breach of AR 104(1), Richard Laming is suspended as a licensed trainer for a period of 2 months.

3 The Tribunal orders that the penalties shall be served concurrently and commence on 1 March 2022 or such earlier date as Mr Laming notifies Racing Victoria Limited in writing.

4 No order as to costs.

1 Mr Richard Laming is a trainer licensed by Racing Victoria Limited (RVL) who trained the horse Iam Ekstraordinary (the Horse).

2 Mr Laming pleaded guilty to breaching two Australian Rules of Racing (the Rules or AR), being AR 240(2) and AR 104(1).

3 On 19 February 2021, the Victorian Racing Tribunal (VRT) imposed the following penalties on Mr Laming:

(a) a suspension for 3 months for a breach of AR 240(2), relating to the detection of Cobalt in excess of 100µg/L in a pre-race urine sample taken from the Horse prior to the running of the City of Ballarat Maiden Plate over 1,200 metres at the Ballarat racecourse on 23 May 2018 (the Race);[1] and

(b) a fine of $1,000 for a breach of AR 104(1), relating to Mr Laming's failure to keep proper treatment records.

4 On 19 February 2021, Mr Laming filed an application in the Victorian Civil and Administrative Tribunal (Tribunal), under s 83OH(1) of the Racing Act 1958 (Vic) (Racing Act), to review the VRT's penalty decision on the basis that the penalty of 3 months' suspension is excessive.

5 On 17 March 2021, the RVL filed an application in the Tribunal, under s 83OH(2) of the Racing Act, to review the VRT's penalty decision on the basis that the penalty was not the correct and appropriate penalty. The RVL sought a penalty of 10 months' disqualification for the breach of AR 240(2) and a 2-month concurrent suspension for the breach of AR 104(1).

6 The Tribunal heard both applications for review together. Its task is to determine the correct and preferable penalty in relation to the breach of both AR 240(2) and AR 104(1).

AR 240 Prohibited substance in sample taken from horse at race meeting

(2) Subject to subrule (3), if a horse is brought to a racecourse for the purpose of participating in a race and a prohibited substance on Prohibited List A and/or Prohibited List B is detected in a sample taken from the horse prior to or following its running in any race, the trainer and any other person who was in charge of the horse at any relevant time breaches these Australian Rules.

(1) A trainer must record any medication or treatment administered to any horse in the trainer's care by midnight on the day on which the administration was given.

Without limiting any other rules or powers under these Australian Rules, if a person breaches any rule in this Part 11 [which includes AR 239] the person may be penalised by a PRA[2] or the Stewards.

10 Section 83OH of the Racing Act relevantly provides:

83OH Review by VCAT of decisions of the Victorian Racing Tribunal

(1) A person whose interests are affected by a decision made by the Victorian Racing Tribunal may apply to VCAT for review of that decision in relation to a penalty imposed on the person by the Victorian Racing Tribunal.

(2) A Steward may apply to VCAT for review of a decision made by the Victorian Racing Tribunal in relation to a penalty imposed by the Victorian Racing Tribunal.

11 Section 51 of the Victorian Civil and Administrative Tribunal Act 1998 relevantly provides:

(1) In exercising its review jurisdiction in respect of a decision, the Tribunal -

(a) has all the functions of the decision-maker; and

(b) has any other functions conferred on the Tribunal by or under the enabling enactment; and

(c) has any functions conferred on the Tribunal by or under this Act, the regulations and the rules.

(2) In determining a proceeding for review of a decision the Tribunal may, by order -

(a) affirm the decision under review; or

(b) vary the decision under review; or

(c) set aside the decision under review and make another decision in substitution for it; or

(d) set aside the decision under review and remit the matter for re-consideration by the decision-maker in accordance with any directions or recommendations of the Tribunal.

12 The relevant particulars of the Charge under AR 240(2) were, in summary, that:

(a) Mr Laming was the trainer of the Horse at all relevant times;

(b) On 23 May 2018, the Horse ran in the Race;

(c) Cobalt was detected in a pre-race urine sample taken from the Horse at a mass concentration in excess of 100µg/L of urine;[3]

(d) Cobalt, exceeding a mass concentration in excess of 100µg/L of urine, is a prohibited substance under Part 2 of Schedule 2 of the Rules;

(e) At the relevant time of the above conduct, it was an offence under AR 178 (as then in force) to engage in such conduct; and

(f) By reason of AR 8(2)(e) of the Rules, any offence committed under or in breach of the previous Rules is deemed to be an offence committed or in breach of the current Rules.

13 AR 240(2) is described as a presentation offence and as such is lower in the legal hierarchy of prohibited substance offences than AR 245(1), an administration offence.

14 It is not in dispute that the analysis of the sample taken from the Horse detected Cobalt in a concentration greater than the prescribed threshold, therefore a prohibited substance was detected.

15 The relevant particulars of the Charge under AR 104(1) were, in summary, that:

(a) On 20 June 2018, Stewards of RVL conducted an inspection of Mr Laming's stables and were handed a treatment diary (the Treatment Diary) by Mr Marnu Potgieter (Marnu), his assistant trainer. That evening, Marnu provided a revised Treatment Diary which included treatments that had been administered to the Horse in May 2018 that had not been recorded in the Treatment Diary when Stewards undertook their inspection;

(b) The failure to record treatments in the Treatment Diary breached AR 104(1);

(c) At the relevant time of the above conduct, it was an offence under AR 178F(5) (as then in force) to engage in such conduct; and

(d) By reason of AR 8(2)(e) of the Rules, any offence committed under or in breach of the previous Rules is deemed to be an offence committed or in breach of the current Rules.

16 The position taken by each party could not have been more at odds, both as to the interpretation of the factual circumstances and the application of the law. I will therefore deal with the applications before the Tribunal as follows:

(a) Set out selected extracts as follows:

(i) Interviews conducted by the Stewards of Mr Laming and his stable hand, Ms Amy Mercer (Ms Mercer);

(ii) Oral Evidence given in the hearing of the Charges before the VRT by Mr Laming, Marnu and Ms Mercer; and

(iii) Findings made by the VRT when imposing penalties;

(b) Summary of authorities relied upon by each party; and

(c) Written and oral submissions made by the Counsel for each party.

17 Mr Laming was first interviewed by the Stewards on 20 June 2018, just a month after the injection incident,[4] when he was first advised of the results of the analysis of the pre-race urine sample taken from the Horse on 23 May 2018.

18 During his first interview, I am satisfied that Mr Laming endeavoured to answer all questions put to him in an open and frank manner. However, he clearly expressed a limited knowledge of the stable operations, relying primarily upon his assistant trainer Marnu. In response to questions about Cobalt and how the Horse could have an elevated reading, he said:

(a) He had no knowledge about the presence of Cobalt in any substances administered to horses under his care;

I've got no idea how it'd even be there, mate. We don't use it; unless it's in something that we feed or something, I got no idea, mate.[5]

We give three multivitamins a week ... it's in our record books ... I've got no idea why it'd be in there.[6]

(b) He did not attend the stables or the race on 23 May 2018 and had no knowledge of the timing or treatment of the weekly shots administered to the Horse or any horses, which was entirely Marnu's responsibility;

(c) When asked of his knowledge of Cobalt, he said:

I don't have any ... a lot of trainers have been caught for it. I don't know a lot about it. I've never used it. I know it's in quite a few drugs. That's all I know, mate. I don't know nothing about it.[7]

(d) He had not spoken to anyone about Cobalt, including his vet;

(e) His assistant trainer Marnu was responsible for:

(i) The treatment of medication in the horses, and he in turn would sometimes delegate treatments to other staff;

(ii) Making the feeds and adding supplements/powders to horses;

(iii) The daily feeding and any supplements given to horses, which he had worked out with him 'a long time ago';[8]

I don't know exactly how much or what it all is, but you just go through and Marnu will be able to tell you everything.[9]

(f) He no longer administers treatments himself as he is too busy;

(g) In response to a number of questions, Mr Laming said: 'You'll have to ask Marnu';

(h) When asked whether it was possible that the Horse could have received 10ml of the vitamin treatment on race day, he replied:

No. Definitely not ... you're not allowed to needle them on race day, you know that, and of course we wouldn't do it ... Marnu's not that silly ... I don't understand how it's elevated [the Cobalt] ... I want to know just as much as you do why ... I've got no idea and we definitely didn't do it on race day. That's ridiculous.[10]

(i) He placed trust and confidence in Marnu because he cannot do all the treatments:

So by all means, ask him all these questions and you'll get the answers. I never know what he does and what he doesn't. We've got 60 horses in work.[11]

(j) The Steward referred to a recent incident where one of Mr Laming's horses had a nebulizer on it when the Stewards walked in; when asked whether anything had been done since to prevent any mishaps or administration in contravention of the Rules, Mr Laming replied - 'No, nothing'.[12]

19 Mr Laming contacted Stewards for a further interview on 21 June 2018 after he had checked his diary and made some inquiries. He confirmed that 23 May 2018 was Marnu's day off, so he was running the stalls at the track. He also confirmed with Dr Roberts, his veterinarian, and the vet records that Ms Mercer had administered vitamins to all the horses on 21 May 2018, including the Horse. Mr Laming raised the possibility of that administration giving a raised Cobalt reading. At this stage he was adamant that no injection was given on the race day:

I've spoken to my staff members ... they can't work out why it would have happened, so it's out of my control.[13]

20 Mr Laming was told that samples from other products at his stables were also taken for analysis:

That's good. Not a problem. ... That's terrific ... I was going to contact ... the people that make the feed and ask for a breakdown of the supplements that they put in it as well.[14]

21 Ms Mercer was first interviewed by the Stewards on 20 and 21 June 2018, just a month after the injection incident, and re-interviewed on 14 August 2020, over two years later. The account given on each occasion was very different. At the first interview the Stewards noted that Ms Mercer was 'pretty adamant that the horse couldn't have been treated race day',[15] and even said 'there was no way that it's possible'.[16] However, when re-interviewed on 14 August 2020, she had no clear recollection of the event and said:[17]

I'm not sure. I could have made a mistake ... I can't guarantee I didn't make a mistake ... It's a massive mistake.

22 Marnu did not work one day a week and she believed that was Wednesday. In his absence, she did the injections 'off the worksheet'. The Worksheet for 23 May 2018 indicated that was a race day for the Horse, which meant no injection, but she said:[18]

I can't guarantee I didn't mess up ... I had made a mistake previously ... a horse had been put in the wrong box ... a few months previously ... and I just wandered in, did the thing, did the injection and didn't realise until I've done the injection and I'm like 'this isn't the correct horse,' so I had made a mistake before. We had had a discussion with the staff after that about being more ... conscientious in putting horses in the correct boxes ... I had made that mistake before but nothing eventuated from that because I think it was a pre trainer horse that I gave the injection ... it was a non-event.

23 Generally, she would have someone with her when injecting the horses but sometimes she did them on her own, depending on how easy the horse was to inject; she did the injections during the day when she had time. If Marnu was not present, she would not speak to Mr Laming before giving injections because 'that was my job'.[19]

24 Ms Mercer said that Marnu was making the Treatment Diary electronic, and she did not update them because:[20]

For some reason I lost permissions to the electronic diary for the month [of] May ...

I believe I either mentioned or meant to mention it to him and just thought, 'Oh, I'll update when I get access again,' because I tended to do the same treatments week by week. Like it didn't change ... Because to be honest, I found the electronic system really overwhelming.

25 According to the updated Treatment Diary, the Horse had been injected on both Monday 21 May 2018 and Wednesday 23 May 2018. When asked why she would have given the second dose, Ms Mercer replied:[21]

I really can't tell you, but it is 100% possible I made a mistake really, because maybe if on the 21st I had gone, 'I missed this horse' I would have gone, 'oh I missed that horse the other day' and just fixed my mistake.

26 Accordingly, Ms Mercer postulated that she might have mistakenly thought she had missed injecting the Horse on 21 May 2018, so then made the injection on 23 May 2018. But in such a case she would have failed to follow the Worksheet on both days.[22] She could not remember whether there was any indication on the horse box indicating it was a race day.[23]

27 Ms Mercer said she probably would not have made a note at the time but would have remembered when she updated the Treatment Diary.

28 She could not remember whether she had a discussion with Mr Laming about whether she injected the Horse.

29 At the hearing of the Charges before the VRT, under cross examination, Mr Laming:[24]

(a) Agreed that vitamin injections were given to horses in racing preparation and, in May 2018, the Horse was in racing preparation; the treatment regime had been worked out between himself and Dr Roberts;

(b) Agreed that in May 2018, he had instructed Marnu (his assistant trainer) to give vitamin injections on a weekly basis;

(c) Agreed he did not know what day vitamin injections were given each week; the injections were staggered throughout the week, depending upon what horses were racing and on what days;

(d) Said that he left Marnu to pick the day a horse got a vitamin treatment, by reference to the Worksheet;

(e) Agreed that there were no entries for May 2018 in the Treatment Diary when the Stewards attended in June 2018; Ms Mercer was having difficulty with the introduction of a new system; and he did not give her any training (that was the responsibility of Marnu);

(f) Said it was the fault of Marnu and Ms Mercer that the treatments were not entered in the Treatment Diary:[25]

They both made a mistake and they both know that it should have been updated and should have been in there. It's since been rectified.

(g) Said that it was Marnu's job to ensure that the treatments were in the Treatment Diary; he did not check the Treatment Diary from time to time but only checked them at the end of the month when they did the accounts:[26]

Q: The stewards arrived on 20 June to interview you would you have checked the treatment records at the end of May?

A: More than likely. I was away a lot of the time through that. Though with horses in different states, so I don't know it would be a correct answer whether I did or didn't.

Q: So you don't recall whether or not you noticed that there were no treatments for the month of May in the treatment diary?

A: If I had have checked it, I would have recalled that there wasn't, so then it would have been fixed up, but I didn't know until the Stewards told me.

Q: So are you saying that you didn't check the treatment diaries in order to bill your owners at the end of May?

A: I don't do all the invoicing either ... No, I don't do the invoicing. I never said I do any invoicing. That's what the accounts people do.

Q: You checked the treatment diaries from month to month but just not in May is that your evidence?

A: Well I must have missed the month of May because if I had seen it I would have picked up on it and I would have had it rectified so yes I obviously didn't look at it because I would have had it fixed. It didn't get brought to my attention until the Stewards told me.

(h) Said that it was Marnu's responsibility to implement the programme of treatments and he supervised that regime:[27]

A: He put the regime in place and then that was it. Everyone knew their job and Marnu and [Ms Mercer] did the injections and if Marnu was away, then [Ms Mercer] had to do it.

(i) Agreed that he did not speak to Ms Mercer or have any direct contact with her about the vitamin treatments, but said she knew what to do as Marnu had told her;

(j) He had 'no idea' whether Ms Mercer had checked the Worksheet on the day;[28]

(k) Agreed that he did not check with Marnu to see what days he gave the treatments, and the only way he would know was to ask him or check the Treatment Diary;

(l) Agreed that he had given Marnu 'an open license to administer the vitamin injections when he wanted' and that Marnu had 'delegated his responsibility to [Ms Mercer]';[29]

(m) Agreed that he 'provided no active oversight or supervision of Marnu or [Ms Mercer] in relation to the processes implemented and the processes they were following to administer the vitamins';[30]

(n) Disagreed that by delegating control of the treatment regime in relation to vitamins to Marnu and Ms Mercer there was very little accountability of these employees in relation to that vitamin treatment; he said that they were given responsibilities which they did 'week in and week out without any issue' but 'mistakes happen';[31]

(o) Mr Laming was pressed on the specific question of whether he contemplated that a mistake could again be made whereby a horse was put in the wrong box:[32]

Q: After the previous incident with Amy Mercer, I suggest to you that it must have been in your contemplation that a horse could be put in the wrong box again?---

A: People make mistakes. So if she had have done it, she might have done it or she might not have done it.

Q: I suggest to you that it was in your contemplation that that mistake could occur again?

A: It could happen, yes, it could have. Have you ever been in a stable at 3.00, 4.00 in the morning?

Q: Mr Laming, can you answer the question: was it in your contemplation that a horse could be put in the wrong box?

(p) Agreed that he knew Marnu was ordinarily absent from the stables on a Wednesday, that Ms Mercer got her instructions from Marnu; and he presumed Marnu would have given her a list of the treatments to do for the time he was away:[33]

Q: Did you appreciate that [Ms Mercer] was just relying upon her memory as to which horses she would inject from time to time?

1. It should have been by the list, not her memory, but that's a mistake that she made.

Q: But you didn't speak to her about her processes, did you?

(q) He agreed that a horse could be put in the wrong box; and

(r) In relation to the names of horses on their box, when Ms Mercer had previously mistakenly administered a treatment where a horse was put in the wrong box, he said there should have been names on the box but did not know; and after that mistake he said he made a change so that all names were on the doors with their brands; he said all runners were meant to have their name on the box but he did not know whether this was the case;[34] and he later said that when he returned after both incidents (the May 2018 and earlier incident), names were on the boxes.

30 At the hearing before the VRT, Ms Mercer gave evidence[35] that she had been working for Mr Laming for about 5-6 years; had been a licensed stable hand for about 9 years; gave at least 5,000 injections per year and was well aware that a horse could not receive an injection the day before or the day of a race day. In May 2018, the handwritten system of Worksheets was being computerised. She was having trouble with the software upgrade and no longer had permission to access the electronic Treatment Diary to put in the treatments which she had done. She thought she brought the problem to Marnu's attention but could not really recall.

31 Under cross examination,[36] she said that she originally got instructions about the injection regime from Mr Laming, before Marnu arrived:[37]

Q: It's possible isn't it that Iam Ekstraordinary was put in the wrong box on the day of the race, wasn't it?

Q: And you'd mistakenly injected a horse a few months earlier. Is that right?

Q: You brought this obviously to Mr Laming's attention?

Q: What did Mr Laming ask you to do as a result of that?

A: I believe we spoke to the staff about being more - what's the word -aware of what horse they had and what box it went into.

Q: But you didn't have a specific practise in terms of treating the horses with the vitamin shot?

Q: There wasn't a particular time of day you did that?

Q: It's possible that you didn't look at the worksheet that morning, isn't it?

Q: Is that something that would happen regularly? Why wouldn't you have looked at the worksheet?

Q: So is it possible that you just didn't print it out?

(a) She did not speak to Mr Laming at around this time about the injections and he was not asking her about how the treatments were going or anything to that effect; she dealt with Marnu at this stage;

(b) She would also ride trackwork, which she did on that morning;

(c) She had lost access to the Treatment Diary for the whole month of May, and she believed she told Marnu:[38]

Q: Did Marnu express any concerns to you that you weren't recording treatments in the month of May?

A: He said he would fix it I believe and I don't have a great recollection of that time.

Q: So you don't remember if he ... did anything about you expressing this concern?

A: I think he tried maybe to action it but I still couldn't get in. For the month of May, I could not get into the treatment diary.

Q: It's the case that no one appreciated that no treatments had been entered into the treatment diary until the stewards arrived on 20 June, isn't it?

Q: So no one was looking at the treatment diary in that period, were they?

Q: Did Marnu ask you about the fact that there were no vitamin treatments recorded?

A: He probably did and I would have said that I couldn't get into it.

Q: Even if for some reason you didn't know Iam Ekstraordinary was racing on the day, do you accept that if you recorded it in the treatment diary, this incident would have been unlikely to occur?

Q: You wouldn't always check the worksheets would you? ---you just said that you didn't always print them out?

A: No, I didn't say I didn't always print them out I said it was not common for me to not have printed them out.

Q: So it was unusual that you didn't have the worksheet on this occasion?

Q: It wouldn't really matter if you checked the worksheet if the horse had been put in the wrong box, would it?

Q: So the only instruction to you in terms of the vitamin injection was to do it once a week, other than not on the clear day and on race day. Is that right?

33 The VRT made the following findings regarding Mr Laming's conduct:[39]

Dealing firstly with the breach of AR 240, we would refer to our observations concerning your stable practises. We would repeat that they were careless, inadequate and displayed indifference. They have been rightly described as 'shambolic'. Of course, you are not to be penalised for an offence (negligence) with which you have not been charged. However, the circumstances surrounding this charge are relevant. There was a real lack of checks and balances in your system. This includes your lack of record keeping ...

The above matters place your breach of AR 240 in a realistic contextual setting. This is not a situation of one slip made in otherwise a well-run and carefully operated stables.

34 In relation to penalty, the VRT made the following observations:[40]

You have pleaded guilty, and that is a factor in your favour which we take into account.

In relation to your personal situation, you are aged 38 years. You have been a licenced trainer for most of your adult life. You do not have an unblemished record. You already have had a substantial disqualification, namely three years, in relation to a prohibited substance (EPO). That was imposed in November 2010. You also received a two-month suspension in September 2018.

Accordingly, you are entitled to little or no discount in relation to your record. Principles of both specific and general deterrence apply in relation to penalty.

Rules such as AR 240 are made for good purpose. Horses demonstrated to be presenting with a prohibited substance in their system is bad for the image of racing. They damage the important perception of a level playing field. That is bad enough in the best of circumstances. When it is contributed to by careless and slipshod stable practises, it warrants the imposition of an appropriate penalty.

[VRT imposed three months' suspension and disqualified the Horse from the relevant race.]

We now turn to the breach of AR 104(1). The keeping of proper stable records is most important. It assists the stewards in the performance of their duties. In the present case, the failure to do so was particularly pronounced.

35 I will return to several aspects of the evidence given by Mr Laming and Ms Mercer below.

36 Mr Laming's relevant offending is set out in the table below:[41]

AR 104(1): failing to record in the treatment diary a calcium drip administered.

AR 178: Positive sample for Triamcinolone Acetonide (corticosteroid).

AR 178F(1):failing to record injection in treatment diary.

Fine: $4500 ($3,500 for AR 178 breach; $1,000 for AR 178F breach)

AR 178E: administered Accent (an antibiotic commonly used in racing stables for the treatment of lower respiratory tract infection) by inhalation with a nebuliser on race day.

AR 178A: possession of a needle which could be used to administer a prohibited substance.

AR 177B: Out of competition positive samples for DPO.

37 Between 2010 to date, Mr Laming has engaged in conduct contravening five prohibited substance rules and associated offences with penalties ranging from fines to periods of suspension and disqualification.

38 The circumstance of the above offending is summarised below.[42]

39 On 11 October 2020, Mr Laming pleaded guilty and was fined $1,000 by the Stewards for a contravention of AR 104(1) for failing to record in the treatment diary a calcium drip administered to the horse Excelman (NZ) by his veterinary surgeon on 8 October 2020.

40 In an interview with the Stewards on 11 October 2020, Mr Laming made the following comments:

Sometimes you guys should be putting the buck on the vet who didn't put it in the book

I take it, Richard, it's now in your diary, recorded?

I don't know to be honest. I haven't checked. I presume - Adam hasn't been here to put it in, so I don't know if he's done it.

41 The RVL submit that these comments indicate that Mr Laming failed to take responsibility for the maintenance of treatment records and continues to blame his staff and his vet. I agree.

42 In October 2018, Mr Laming pleaded guilty to a presentation charge under what was then AR 178 for presenting the horse Sly Romance to race at Flemington on 19 May 2018 with Triamcinolone Acetonide (a corticosteroid) detected in a pre-race blood sample. Mr Laming also pleaded guilty to a charge under what was then AR 178F(1) for failing to record in his treatment diary that Sly Romance had received an injection of Kenacort (Triamcinolone Acetonide) and Hyaluronic Acid to the knees and fore fetlocks. The Racing Appeals and Disciplinary Board (RAD Board) imposed a fine of $4,500 for these offences.

43 The RAD Board noted that the last known treatment of Sly Romance with this medication by a veterinarian was on 13 April 2018, some 36 days earlier. The RAD Board further noted:

Accordingly, how Sly Romance proved positive on 19 May 2018 is a matter of some debate. The situation is not assisted by the breach of AR 178F, the failure to keep proper records.

44 I note that the Sly Romance offences were committed shortly prior to the offences before the Tribunal.

45 In August 2018, Mr Laming pleaded guilty to a charge under what was then AR 178E, which prohibits the administration of any medication to a horse on race day. The RAD Board suspended Mr Laming for two months for this offence.

46 The horse Patient, trained by Mr Laming, was accepted to run in Race 5 at Sandown on 7 February 2018. The Stewards inspected Mr Laming's Clyde stables on race day morning and observed Patient being administered Accent (an antibiotic commonly used in racing stables for the treatment of lower respiratory tract infection) by inhalation with a nebuliser. Patient was withdrawn from racing that day. The RAD Board was satisfied that Mr Laming had directed in a worksheet that staff administer Patient with medication via a nebuliser on 7 February 2018, when he knew Patient would race that day. The RAD Board did not accept this was a case involving little or no blameworthiness, because of Mr Laming's worksheet instructions and the lack of inquiry he made with his vet or assistant trainer Marnu, as to the result of the vet's scope and whether Patient was fit to race. The RAD Board said in this decision:

Trainers are obliged to exercise due diligence to ensure that substances administered to the horses in their care comply with the rules of racing and that in collaboration with veterinarians, clear guidelines and instructions are given to staff who administer treatments. The material before the Board revealed questionable instructions, communication break downs and a failure to keep staff properly informed.[43]

47 The RAD Board found that it was more likely than not that, but for the Stewards' intervention, Patient would have raced that day in contravention of the medication rule and that material before the Board revealed 'questionable instructions, communication break downs and a failure to keep staff properly informed'. Mr Laming's Counsel in this case informed the RAD Board that Mr Laming, in recognition of previous shortcomings, had recently installed a management system to properly record stable procedures and practices.

48 In March 2015, Mr Laming was fined $200 in South Australia for a contravention of what was then AR 178A(1), for being in possession of a needle which could be used to administer a prohibited substance.

49 Mr Laming ended a three-year disqualification in November 2013 after pleading guilty in 2010 to three charges under what was then AR 177B(1) (now AR 242). Competition blood samples taken from Benelli on 11 June 2009 and 2 July 2009, and a sample taken from War Dancer on 11 June 2009, each contained a prohibited substance, darbepoetin alfa (DPO). DPO is a synthetic of EPO said to increase red blood cell concentration and the oxygen-carrying capacity to the muscles.

50 Mr Laming was 28 at the time with no priors. The RAD Board disqualified him for three years on each of the three charges, to be served concurrently. When imposing this penalty, the RAD Board said it was mindful of the fact that the offences under AR 177B(1) were not administration offences.[44]

51 Mr Laming appealed the RAD Board's decision to the Tribunal on the basis that the appropriate punishment for each contravention of AR 177B(1) was a fine. The Tribunal determined that the RAD Board had imposed an appropriate penalty, noting that the RAD Board, in its initial decision, had not conflated the circumstances of more serious offences with the offences upon which Mr Laming fell to be punished, and was 'mindful' of the fact that Mr Laming was not being charged with administration offences.

52 It is appropriate to set out at this early stage a brief summation of the written and oral submissions made to the Tribunal by Mr Sheales on behalf of Mr Laming. Ultimately, I have rejected Mr Sheales' submissions as to the Tribunal's sentencing discretion and the factual circumstances and legal principles which can be properly considered and applied. The authorities relied upon by Mr Sheales are considered below.

53 Mr Sheales submitted that the VRL misdirected the Tribunal, as a matter of law, and thereby sought to rely upon matters which are impermissible having regard to the following:[45]

(a) The principles enunciated by the High Court in De Simoni[46] and the Court of Appeal in R v Newman & Turnbull;[47]

(b) The principles enunciated by the High Court in Veen v R (No 2);[48]

(c) The relevance of specific deterrence and general deterrence in the absence of a proven mens rea;

(d) Circumstances where a plea of guilty and co-operation with investigating authorities attracts no mitigation of penalty; and

(e) The VRL's misdirection to the Tribunal to consider irrelevant matters of fact.

54 By reference to the cases of De Simoni and Newman & Turnbull, Mr Sheales submitted that the Tribunal must not:

(a) Have regard to the original charge for breaching AR 244(2), which the VRT dismissed; and

(b) Impute a state of knowledge and/or intent into the charge under AR 240(2) which is only relevant to the more serious charge.

55 As a matter of statutory construction, Mr Sheales submitted that:

[16] A breach of AR 240(2) does not contain an element to be proved that the conduct damages the image and/or integrity of the sport. It does not follow that a breach of AR 240(2) would have that effect as a matter of fact. In the instant case the conduct of the appellant neither damages nor adversely affects either. Should the conduct alleged against a person be also alleged to have either of those effects, clearly relevant matters for the purpose of penalty determination if proved, charges seeking to prove that effect must be preferred and proven.

a result of a mistake with no culpability attaching to Laming, [accordingly] the continual urging of RVL's submissions to impose a disproportionate penalty is an invitation to the Tribunal to fall into error.[49]

(b) AR 240(2) creates an offence of absolute liability without proof of knowledge or intent. Accordingly, these matters can only be considered in mitigation, not as aggravating circumstances.

(c) Mr Laming pleaded guilty to each of the offences at the earliest stage; he co-operated with the Stewards; he has never disputed the underpinning facts of these two offences; and all these matters are relevant in mitigation of sentence.

(d) Mr Sheales was only aware of two cases in which a person had pleaded not guilty to a charge under AR 240 or its equivalent, both of which raised an issue with non-compliance with the testing requirements and, in the case of the precedent matters referred to, all involved a plea of guilty which had therefore been factored into the penalties.

(e) Regarding the breach of AR 104(1), which was a failure to have uploaded treatments during May 2018, this is irrelevant to the charge under AR 240(2) because it related to a time frame unrelated to the presentation charge:[50]

1. Laming was in the process of putting in a new computer system that would enable access by app on smart phones to all staff;
2. The new system was having teething use and data problems;
3. He operates three training establishments and cannot be in three places at once;
4. He had delegated the entry of data to staff, which he had no reason to believe had not been undertaking their duties.

57 Mr Sheales referred to the interview between Ms Mercer and the Stewards on 14 August 2020,[51] and submitted to the effect that, in relation to the charge under AR 240(2), Mr Laming had done all he could reasonably be expected to do in employing and instructing competent staff, whom he trusted:

(a) Ms Mercer admitted the possibility of having made a mistake, notwithstanding that the correct information was contained on the Worksheet;

(b) She admitted a prior mistake, after which a staff meeting had been called to remind them and reinforce that they must be conscientious;

(c) All relevant information was contained on the Worksheet;

(d) Ms Mercer had been properly instructed, she knew her job and had performed thousands of injections under a program where vitamin injections were given once a week;

(e) Mr Laming was not physically present for each injection;

(f) There is no suggestion that Mr Laming directed or authorised Ms Mercer to inject on or the day before race day and no suggestion that he knew that an error might have been made; and

(g) Ms Mercer made an honest mistake and had been previously and appropriately instructed by Mr Laming.

58 In my view, all the objections raised by Mr Sheales have been appropriately addressed by Mr Hooper, Counsel for the RVL. In particular, I concur with the RVL that Mr Sheales has wrongly conflated an offence's mental element with its blameworthiness. Strict or absolute liability offences do not prevent consideration of the offending in its broader context to assess the relevance of deterrence, both specific and general deterrence, and moral culpability. To this end, I will indicate further below, the extent to which I adopt the submissions made on behalf of the RVL.

59 As indicated above, each Counsel invited the Tribunal to interpret and apply certain authorities in a fundamentally different way, in support of their respective positions. I will expand upon the submissions made by each Counsel below. However, in summary, in determining the correct and preferable penalty:

(a) Mr Sheales says that the nature of the strict liability offence in this case precludes any consideration of specific or general deterrence.

(b) Mr Hooper says it is necessary and appropriate to have regard to the total circumstances of the offending, assess the degree of 'blameworthiness', if any, and apply specific and general deterrence if warranted.

60 A principle acknowledged and advanced by both Counsel was expressed by Gibbs CJ in the High Court decision of De Simoni:[52]

the general principle that the sentence imposed on an offender should take account of all the circumstances of the offence is subject to a more fundamental and important principle, that no one should be punished for an offence of which he has not been convicted. ... The combined effect of the two principles, so far as it is relevant for present purposes, is that a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence.

61 Mr Sheales asserted that 'to import any aspect of a state of mind of a person found guilty of an offence of absolute liability as a feature of aggravation offends the principles enunciated in De Simoni'.[53] I concur with Mr Hooper that such assertion clearly misconceives the principles in De Simoni.

62 Mr Sheales also relies upon the following extract from Veen (No 2)[54] where the majority of the High Court said:

14. There are two subsidiary principles which should be mentioned. The first is that the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v. Ottewell (1970) AC 642, at p 650. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner's claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community's understanding of what is relevant to the assessment of criminal penalties.

63 Mr Sheales submits to the effect that it would be wrong to apply to Mr Laming the (first) principle enunciated above in Veen (No 2) as this would necessarily result in the risk of a disproportionate penalty by reason that another person (namely Ms Mercer) committed an innocent mistake which attached no culpability to Mr Laming.

64 Although both cases of De Simoni and Veen (No 2) concerned criminal offending, there is no reason why the approach enunciated in these cases cannot apply to an offence of strict liability.

65 The fallacy of Mr Sheales' submission lies in the presumption that no culpability can attach to Mr Laming where he did not commit, authorise, intend or know of the relevant breach.

66 The VRL accepts that neither AR 240(2) nor AR 104(1) requires proof of a mental element. However, the circumstances which gave rise to the breaches, as found by the VRT, are a relevant feature of the offending. Accordingly, it is incorrect to say that such reasons are excluded on the authority of De Simoni where that conduct does not constitute a more serious offence. The VRT rejected the more serious (administration) offence. Their factual findings for the charges under AR 240(2) and AR 104(1) are nevertheless relevant in the context of assessing the extent to which specific and general deterrence influence applicable penalties.

67 I agree that that is precisely the effect of the VRT findings and reject the submissions of Mr Sheales that deterrence has little to no role to play.

68 Hence the Tribunal is entitled to consider all the circumstances, which may constitute aggravating features, such as:

(a) blameworthiness;

(b) relevant prior offending; and

(c) shambolic stable practices,

when arriving at the correct and preferable penalty. It is not credible to describe Mr Laming's behaviour as merely inadvertent, isolated, or aberrant.

69 I also concur with Mr Hooper's submission that the VRT's findings enable the assessment of the extent of culpability and the need for specific and general deterrence, albeit that such considerations may play a lesser role in circumstances where there have been unconscious infringements of the rules. Such an approach is consistent with the observations made in Kavanagh v Racing New South Wales[55] referred to below.

70 Mr Hooper also referred to the decision of Weinberg JA and Priest JA in Farah v The Queen[56] where they said:

60 This proposed ground of appeal invokes what is generally described as the rule in De Simoni.

61 Circumstances of aggravation which, in themselves, amount to a discrete and serious crime that could have been made the subject of a separate charge but were not so charged, cannot be relied upon as aggravating factors in fixing sentence. So, for example, in R v Newman ('Newman'), it was held that a sentence imposed for aggravated burglary included within the sentencing remarks, and the sentence itself, a component for an aggravated assault on a person within the house in respect of which the accused had not been charged.

62 There will often be only a fine line between treating a particular fact as an aggravating circumstance (which may be permissible) and acting in contravention of both De Simoni and Newman.

71 The application of the principles in De Simoni requires an analysis of the alternative offences said to have been possible charges and, importantly, whether they are more serious than the offence for which the defendant, or Mr Laming in this case, is presently being penalised. Based on the submissions being advanced by Mr Hooper, I am satisfied that there is no possibility that Mr Laming would be subject to sentencing for a different or more serious offence.

72 In Currie v Queensland Racing Integrity Commission[57] the Queensland Civil and Administrative Tribunal (QCAT) recently considered the kinds of issues now raised in this case.

73 Mr Currie, a racehorse trainer, was charged and convicted of three presentation offences under AR 178 (what was then AR 240) relating to three different horses and different prohibited substances (not including Cobalt). The case illustrates the broad discretion available to the sentencing judge in a presentation case. In my view, the approach adopted by the QCAT Member is directly relevant to Mr Laming's circumstances. Each of the presentation offences in Currie's case were penalised differently, according to the behaviour and knowledge of Mr Currie at the relevant time. The QCAT Member noted that:[58]

[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.[59]

74 The QCAT Member applied a previously recognised hierarchy of 'blameworthiness' as follows:[60]

[35] The degrees of blameworthiness in Wallace have been conveniently categorised in Scott v Queensland Racing Integrity Commission (No 2)[61] with the additional category of 'carelessness' as:

(a) No blameworthiness at all.

(b) Carelessness [ranging from mild lack of care to gross negligence].

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

(d) Moral blameworthiness shown.

75 Regarding the horse, Shakira, Mr Currie denied that either he or any member of his staff had caused Testosterone to be administered. The QCAT Member found that there was a reasonable explanation as the horse had been brought from interstate and it was 'not an unreasonable inference to draw, that absent any other explanation' the Testosterone was already in the mare prior to arriving at the applicant's stables. The QCAT Member imposed no penalty for this offence and further noted:[62]

[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.

76 Regarding the horses Dreamscope and Eight Over, the QCAT Member noted that the circumstances of presentation was not as easily resolved:

[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. Essentially, it appears that he ignored the problem.

[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 [which in fact is what happened in Over Eight]. That showed a degree of apathy that, in my opinion amounted to blameworthiness warranting an above average penalty.

77 By so differentiating the trainer's conduct, the QCAT Member imposed no penalty in relation to Shakira; a fine of $5,000 in relation to Dreamscope; and a 12-month disqualification was confirmed in relation to Eight Over.

78 In my view, the sentencing approach applied in Currie's case aptly applies the principle approved in De Simoni. The QCAT Member carefully considered the relevance of both mitigating and aggravating circumstances in each case to arrive at the correct and preferable penalty, without there being any suggestion that Mr Currie was being penalised for a more serious offence.

79 The QCAT Member also cited three authorities which reinforce the approach adopted and the care which must be taken to identify relevant aggravating or mitigating circumstances.

80 In Wallace v Queensland Racing[63] 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.[64] 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.

81 Similar distinctions were made by Carmody J in Queensland All Codes Racing Industry Board v Thomas[65] when determining penalty in a 'presentation' case:

[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 his 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.

82 In the case of the horse Shakira, Mr Currie had provided a plausible explanation for the presence of the unauthorised substances which in no way reflected blame upon Mr Currie. In the case of the other two horses, the timing, prior knowledge of Mr Currie and circumstances of the presentation, reflected a varying degree of blameworthiness upon Mr Currie.

83 Finally, the QCAT Member acknowledged that the administration charges were abandoned by the Respondent in that case. The administration charge against Mr Laming was dismissed by the VRT. In Racing Victoria Ltd v Kavanagh[66] Maxwell P drew the following distinction between presentation and administration offences:

[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 circumstances 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.

84 In Day v Sanders,[67] when considering the analogous harness racing rule (AHRR 190) to AR 240(2), Basten JA said:

85. A proper reading of r 190(2) is that it imposes on a trainer an absolute responsibility for the horse presented for a race being free of prohibited substances with the result that, if the trainer presents a horse that does not satisfy that condition, he or she is guilty of an offence.

88. None of this is to say that the state of mind and the reasonableness of the applicants' conduct is irrelevant, but merely that it is irrelevant to the question of liability. Rather, its relevance is limited to the question of penalty. [emphasis added]

85 Accordingly, when a prohibited substance is detected in any sample taken from a horse prior to or following its running in a race, the finding (and breach of AR 240(2)) is mandatory. However, the decision whether to punish the trainer is discretionary.[68]

86 Mr Sheales approached sentencing discretion from another direction, by reference to Kavanagh v Racing NSW.[69] Fagan J considered the 'special circumstances' which must be established to avoid the operation of prescribed mandatory minimum disqualification provisions upon findings of liability for serious offending, such as administering offences:

Specific deterrence of the plaintiff could have no possible relevance where the Tribunal's findings of fact show that his breaches were inadvertent. Disincentive, by the spectre of punishment, cannot operate to deter unconscious infringements. With respect to general deterrence, there could be some purpose to imposing punishment on an inadvertent offender by way of discouragement to others who might commit the same offence with knowledge or belief that a prohibited substance was administered, or without having made reasonable inquiries. But as a matter of principle this consideration could not be taken into account in fixing penalty without qualifying it by regard to the potential unfairness of making an example to others out of a person who is himself without blame. This is the same qualification as applies when a sentencing judge treats an immature offender, or one with low cognitive function or severely disadvantaged background, as an unsuitable vehicle for general deterrence.

87 In my view, the above extract of Fagan J is consistent with the circumstances of the horse Shakira, described in Currie's case, and does not otherwise diminish the relevance of blameworthiness and culpability in particular factual circumstances, which in turn may warrant a level of specific or general deterrence.

PENALTIES IMPOSED AGAINST TRAINERS FOR PRESENTING HORSES WITH COBALT

88 In December 2015, the RAD Board found charges proven against trainers Kavanagh and O'Brien relating to the administration of Cobalt. Originally the charges laid by the Stewards encompassed charges of administration, or alternatively causing administration, or alternatively (strict liability) presentation. Upon review before the Tribunal,[70] all charges were dismissed.[71] The Tribunal accepted that the Cobalt positive results were caused by the trainers' vet, Dr Tom Brennan, who had acted without the knowledge or consent of Kavanagh and O'Brien by administering (or instructing staff to administer) IV drips containing the 'vitamin complex' to the horses (containing Cobalt). Dr Brennan did not record the treatments. The Tribunal found that this was not a case of wilful blindness as the trainers relied on the reasonable expectation that a leading vet would adhere to the Rules; his failure being a serious breach of professional duties. The Tribunal also found that the stable management of O'Brien and Kavanagh was such that neither trainer nor their staff administered drips to horses. This was exclusively done by veterinarians. Furthermore, Dr Brennan did not provide either trainer or their stable staff with any bottles of vitamin complex.[72]

89 On appeal by the RVL, the Tribunal's finding, that neither trainer had any knowledge of the administration of any prohibited substance to any of their horses, was not challenged. However, the Court of Appeal disagreed with the Tribunal's conclusion as to the mode of proof. Accordingly:[73]

It having been common ground that the evidence otherwise before the Tribunal established the presence of cobalt in the samples, the charges under AR 178 (which depended only on proof of detection) should have been found proved.

90 Consequently, the appeal was allowed in part and the (presentation) charges under AR 178 remitted to the Tribunal for consideration of penalty.

91 In Kavanagh v Racing Victoria Limited (No 2),[74] the Tribunal imposed fines of $4,000 on Mr Kavanagh, in relation to the charge for which he had been found guilty; and an aggregate fine of $8,000 on Mr O'Brien, being a fine of $2,000 in relation to each of the four charges for which he had been found guilty.

92 In assessing appropriate penalties, his Honour referred to the analysis adopted in the Victorian Racing Appeal Tribunal decision in McDonough's case,[75] by Judge Williams who noted that prohibited substance cases generally fall into three categories:

(a) First, where the tribunal can establish a 'positive culpability' on the part of the person responsible, which may amount to deliberate wrongdoing or ignorance or carelessness;

(b) Secondly, where the tribunal is left in the position of having no real idea as to how the prohibited substance came to get into the horse either because of no evidence or no credible evidence; and

(c) Thirdly, a trainer may provide an explanation which the tribunal accepts and which demonstrates that the trainer has no culpability at all.

As to the third category where there is little or no culpability, one would expect any penalty to reflect the absence of culpability or its low level. Within this category of cases there may in appropriate situations be instances where it is deemed not to be appropriate that the sentence express denunciation or general deterrence at all and indeed where it is appropriate to impose no penalty at all.

94 Significantly, Judge Williams contemplated circumstances where 'denunciation or general deterrence' may be relevant.

95 In McDonough's case, the Tribunal found that the trainer fell into the third category as did the Tribunal in the Kavanagh No. 2 case:[76]

47. In evaluating the factors to be taken into account in determining penalty, I am assisted by the analysis adopted in _McDonough's cas_e. Dr Brennan's conduct falls into the first category. His positive culpability for offences under AR 175 was established before the RAD Board and affirmed by the Tribunal. He is the perpetrator responsible for administration of the prohibited substance.

48. The circumstances place both Kavanagh and O'Brien in the third category.

50. As a case within the third category described in McDonough's case, there is little or no personal culpability, and it is reasonable to expect any penalty to reflect this fact. It is also important to uphold the integrity of the racing industry, and for the Tribunal to be seen to do so.

96 In written submissions[77] the VRL also referred to the case of Mr Peter Moody, who committed an administration offence under what was then AR 175(h)(ii), when the Cobalt threshold limit was 200µg/L. Analysis of the urine sample collected from Mr Moody's horse Lidari detected 360 to 410µg/L of Cobalt. The RVL noted that it was unclear how the prohibited substance found its way into the horse, but the Board was satisfied that it occurred because of the stable operations. The Board concluded that:[78]

It was readily apparent from the evidence ... that there was significant carelessness, for which Mr Moody was responsible ... [and that some of Moody's answers] ... underline this high level of carelessness.

97 The RAD Board imposed a 12-month suspension, of which they suspended 6 months for a 12-month period. I concur with the RVL submissions that Moody's degree of carelessness was 'distinctly less culpable than Mr Laming's gross negligence' having regard to:

(a) Mr Moody's breach of the Rules occurred in 2014, the same year that Cobalt first became a prohibited substance (at the necessary threshold); whereas, at the time of Mr Laming's subject breach, Cobalt at the prescribed threshold had been a prohibited substance for approximately four years and, in that time, there have been numerous cases of trainers having been charged for breaches of prohibited substance rules relating to Cobalt;

(b) Mr Moody appeared to show some level of insight into his behaviour, admitting that he probably should have gone through his whole stable process to identify who had been feeding what horses what substances and when; and conceding, under cross examination, that his account reflected that he had been 'completely incompetent';

(c) Mr Laming made no admissions and his response to the recent October 2020 breach of AR 104(1) demonstrates this continued lack of insight into, or understanding of, his responsibilities as trainer; and

(d) Mr Laming has a prior record of relevant offending, whereas Mr Moody had a relatively good record, the Board noting that while he had some presentation and race day treatment offences, they needed to be put in the context of a large racing stable with a substantial number of racehorses over many years.

98 The penalty regime applied for Cobalt offences in harness racing have been more severe than the average penalties in the thoroughbred racing industry.

99 The VRL submit to the effect that there is no logical or rational reason for such disparity and that the Tribunal should take account of such penalties as a guide for the correct and preferable penalty. The RVL's submission is compelling. The difference in approach is historically idiosyncratic but hardly justified. I note the following comments of Judge Williams in McDonough's case, after looking at the history of the strict liability offences:[79]

And now both the thoroughbred and harness racing provisions relating to this offence are substantially the same and they are strict liability offences designed no doubt to preserve the integrity of and public confidence in the industry.

100 The Tribunal was referred to four recent cases.[80]

101 First, in Heath Bourke,[81] a post-race urine sample of a horse, Basha Bourke, trained by Mr Bourke, measured Cobalt in excess of 200µg/L. Mr Bourke, a 45-year-old who had been a registered person since 1991, pleaded guilty to a breach of Australian Harness Racing Rule (AHRR) 190(1).[82] The VRT said that the positive sample would appear to be the result of use of products containing vitamin B12. Mr Bourke had a very good record and cooperated with Stewards. He was suspended for a 12-month period.

102 Secondly, George Schembri[83] was a licensed trainer of 28 years. A pre-race urine sample of a horse, Dangerous Women, trained by Mr Schembri, revealed a Cobalt concentration in excess of 100µg/L. Mr Schembri pleaded guilty to a breach of AHRR 190(1). Mr Schembri had a relatively good record over a long period of time and the VRT also took account of a range of extenuating personal circumstances, as well as evidence given that changes were made following the incident to ensure that it would not happen again. He was suspended for a 12-month period (6 months of that period to be served concurrently with a 15-month disqualification already being served).

103 I concur with the VRL submissions to the effect that the circumstances of Mr Laming's offending are significantly more serious than the above cases because:[84]

(a) Mr Laming has a poor record over a comparatively short period;

(b) Mr Laming's dissociation from his stable practices meant that he could provide little relevant information to the Stewards; he also did not advise the Stewards of Ms Mercer's possible mistaken injection, or encourage Ms Mercer to do so, despite Ms Mercer speaking with Mr Laming's lawyers about the matter in early 2020;

(c) Mr Laming did not identify any changes to his stable practices to ensure that this does not happen again and did not demonstrate any insight into the consequences of his actions and the importance of improving his stable practices;

(d) Neither of the cases involved Mr Laming's level of 'shambolic' stable practices; and

(e) Unlike Mr Schembri, there is no evidence of any other special circumstance in Mr Laming's case that could serve to mitigate Mr Laming's culpability.

104 The following two recent decisions of the VRT in the harness racing industry also concerned the presentation of horses with excess concentrations of Cobalt and charges under AHRR 190(1). There was no explanation given for how the horse in each case came to have the Cobalt reading.

105 In Harness Racing Victoria v Farrugia,[85] the trainer, Farrugia, was a 79-year-old hobby trainer who generally only raced horses he bred. He had over 40 years' experience in the harness racing industry.

106 Farrugia pleaded guilty to a charge of presenting a horse to race not free of cobalt. A pre-race urine sample measured 128µg/L of urine where the allowable threshold was 100µg/L.

107 At the interview with Stewards, Farrugia gave no explanation for the elevated reading, although several possible scenarios were raised. This was the second infringement of the same rule. The VRT imposed a period of suspension of 15 months.

108 Harness Racing Victoria v Scott & Scott[86] concerned charges against licensed driver John Scott and trainer Hellen Scott. Mr Scott was also Ms Scott's authorised representative as Ms Scott was injured and was not involved with the horse on the relevant day.

109 Ms Scott had a good record and had been a very successful trainer with no relevant prior convictions; she pleaded guilty and cooperated fully with stewards. The VRT found:

There is no evidence of 'nobbling' or third party interference, either deliberate or accidental. The treatment regime or a mistake in relation to it seems to be the most likely cause of the elevated reading. Trainers must be vigilant as to the substances fed to their horses and the feeding regime employed. General deterrence is an important consideration. Great care must be exercised by trainers, no matter how successful they are or how good their record. The image of a level playing field is particularly successful.

110 The VRT sentenced Ms Scott to 12 months' suspension, of which 6 months was suspended for a 24-month period.

111 The VRT described Mr Scott's record as 'far from impressive, with numerous prior offences [including] offences involving prohibited substances and the like.' His most recent like offence had resulted in a 2-year disqualification. However, in the subject case, the VRT found that Mr Scott had no intention of being the authorised representative of his wife and took the role at her request at short notice:

As the result of an unanticipated request, he simply left work and, as his wife's representative, took the horse to Shepperton, where he was to drive it. That seems to us to be a low level of culpability.

Further, there is no suggestion that he played any role of significance in drawing up or administering the horse's treatment regime. He was a full-time worker elsewhere and a licenced driver. The level of his culpability would seem to be that of someone who should have been more vigilant as to what was happening with horses which may come under his supervision.

112 The VRT sentenced Mr Scott to 6 months' suspension of which three months were suspended for 24 months.

New South Wales (NSW) & Northern Territory (NT)

113 The RVL referred the Tribunal to the penalties imposed on trainers for breach of AR 240(2) in NSW.

114 In the recent matter of Michelle Russell (decision of 21 October 2020), Ms Russell, a trainer, pleaded guilty to two presentation charges under AR 240(2) in relation to the prohibited substances Cobalt and Heptaminol, both detected in the horse Taliano when presented for race.

115 A pre-race urine sample collected from the horse disclosed Cobalt at a mass concentration of 147µg/L and 166µg/L in urine from the respective analytical laboratories.

116 Ms Russell had no previous breaches under the same or similar rules, having been a participant in the racing industry for approximately 20 years, initially as a jockey and from 2007 as a trainer. In relation to the excess Cobalt charge, the Stewards determined the appropriate penalty was a period of 12 months' disqualification. In relation to the Heptaminol charge, the Stewards imposed a 2-month suspension to be served concurrently with the 12-month disqualification.

(a) Mr Laming has a significantly poorer record, with numerous breaches of prohibited substance rules, despite being a trainer for a similar period to Ms Russell; and

(b) Ms Russell's case did not involve Mr Laming's level of shambolic stable practices.

118 The RVL submit that the presence of a prohibited substance, such as Cobalt, relevantly undermines the integrity of the racing industry nationwide. Accordingly, it is appropriate for the Tribunal to have regard to penalties imposed in NSW and avoid any discrepancy in penalties, which may give rise to a perception of undue leniency in any jurisdiction. I agree.

119 Finally, Mr Sheales referred to a recent appeal heard by the NT Racing Appeals Tribunal also concerning a breach of AR 240(2).[87] In that case the original penalty of 6 months' disqualification was set aside and substituted for a fine of $10,000. In my view, the reasons for decision in this appeal identify a number of circumstances which are distinguishable from Mr Laming's circumstances and readily account for the modified penalty. In addition to a guilty plea, the Tribunal Chairman found that Mr Lefoe:

(a) Cooperated during the stable inspection and subsequent inquiry;

(b) Maintained detailed recording of treatments which assisted the proceeding;

(c) Accepted his wrongdoing and demonstrated genuine remorse;

(d) Had a good record over 8 years of training; and

(e) Had a history of a long overall involvement as a licensed participant in the racing industry and contributing member of the NT racing community.

ANALYSIS OF THE RULES AND APPLICATION AND PURPOSE OF PENALTY

120 The Tribunal's assessment of an appropriate penalty is guided by several legal principles, but the starting point is the purpose of the Rules generally and the prohibited substance (strict liability) Rules in particular.

121 The purpose and object of the prohibited substance rules are fundamental and well recognised. In the Kavanagh No. 2 case, President Garde J identified the purpose of the Rules and the imposition of penalty as follows:[88]

18. The foundational purpose of the Rules is to regulate the horse-racing industry and its integrity, which is 'necessary both to ensure fair and open competition in racing, and to maintain the health and wellbeing of horses and their jockeys'.[89]

19. The purpose of the Rules and the objectives that the Rules seek to achieve are of fundamental importance to the racing industry. They should be upheld at all times.

20. The imposition of a penalty is not undertaken primarily as a punishment. Penalties under the Rules are imposed to protect the image of the racing industry and uphold its integrity.[90] A number of the offences under the Rules are strict liability offences and do not require mens rea. Those offences include AR 178. No maximum penalty is prescribed for a contravention of AR 178.

122 The purpose identified by President Garde J encompasses the following objectives, namely that:

(a) The integrity and image of racing is protected;

(b) Racing is conducted on a level playing field;

(c) Horses race without the influence of drugs and prohibited substances;

(d) Racing is conducted safely in relation to the horse and the jockey; and

(e) Racing is conducted fairly with respect to the betting public.

123 Clearly all these objectives are potentially undermined by the breach of the prohibited substance Rules. It follows that it is critically important to assess the circumstances in which a breach of a strict liability offence occurs. Such an assessment is in no respect analysing Mr Laming's intention or knowledge of the breach.

124 AR 240(2) does not require a finding as to how the prohibited substance came to be in a horse's system. It does not require proof of the trainer's knowledge or intent to commit the breach. This is the very essence of the strict liability offence.

(a) Did not intend for the breach to occur;

(b) Had no knowledge of the breach when it did occur; and

(c) Did not play any direct role in the commission of such breach.

126 However, there is also no question that, as the responsible trainer, Mr Laming did bear the responsibility to ensure that every reasonable measure was taken to ensure that his horses did not present with Cobalt above the permissible limit.

(a) The findings made by the VRT;

(b) The relevant admissions made by Mr Laming and Ms Mercer; and

(c) Mr Laming's relevant prior history of offending.

128 The findings of the VRT in relation to Mr Laming's stable practices have been extracted above. In conjunction with Dr Roberts, Mr Laming had approved a regime of injections that involved three different forms of (potentially) Cobalt containing substances. However, the implementation of such regime was haphazard, with no direct control or intervention by Mr Laming. Having approved a particular regime, he effectively delegated its implementation to other staff with minimal, if any, oversight on his part. I concur with Mr Hooper's submissions that this practice occurred in circumstances where Mr Laming:[91]

(a) Knew there is no therapeutic use or benefit for administering Cobalt to horses;

(b) Was aware of prior Cobalt cases against other trainers and the seriousness of any breach of prohibited substance rules; and

(c) Had a very poor disciplinary record: most notably, when Mr Laming was disqualified in 2010 for a period of three years on each of three separate charges, to be served concurrently, for breach of what was then AR 177B (addressed above), which was not an administration offence.

129 The inadequacy of Mr Laming's stable and record keeping practices was manifest in the series of prior breaches in February and May 2018; and again, in the subsequent offence in October 2018, when he breached AR 104 by failing to record a calcium drip administered to a horse in his care, while on notice of the charges which are now before the Tribunal. I accept the VRL's submission to the effect that Mr Laming's prior breaches and most recent breach are consistent with an ongoing inability or unwillingness to:

(a) Take responsibility for his obligations as trainer;

(b) Change his behaviour; or

(c) Change the lax practices in his stables.

130 Consistent with the circumstances set out by the VRT and its findings, the current breaches before the Tribunal occurred in circumstances where:

(a) Mr Laming relevantly employed two people, Marnu, a licensed assistant trainer; and Ms Mercer, a licenced stable hand, to whom he effectively delegated control of his treatment regime and record keeping;

(b) The earlier incidents in 2018 did not result in any identified change in stable practices;

(c) Cobalt was administered to the Horse by Ms Mercer on 21 May 2018 and again on 23 May 2018 in a vitamin injection;

(d) There was a virtually complete absence of records at that time; and, when interviewed by the Stewards almost four weeks later, Mr Laming did not seem to realise that no relevant records had been kept for about six weeks;

(e) There was an inadequate or unreliable system in relation to indicating which horse or horses were to race on a particular day; neither Mr Laming nor Ms Mercer had an adequate or reliable memory as to the labelling of horse boxes with horse names and race day, where applicable;

(f) Neither Mr Laming, nor Marnu, were present at the stables prior to the Horse being removed from the stables, put in the float and taken to the races that day at Ballarat, and neither attended at Ballarat;

(g) Mr Laming admitted to knowing very little as to the particulars of what was going on in his stables;

(h) Early in her employment, Ms Mercer was instructed by Mr Laming not to administer injections on the day prior to or on race days; and

(i) The stable practices, which the VRT accepted were shambolic, were not subject to any direct control or intervention by Mr Laming.

131 While not specifically referenced in the VRT's reasons, during her interview with the Stewards on 14 August 2020 and again during the hearing before the VRT, Ms Mercer admitted to injecting the wrong horse within Mr Laming's stables because it had been put in the wrong box. This incident occurred only a few months prior to the subject incident. When cross examined about this earlier incident, Mr Laming conceded that he must have contemplated that the same mistake could be made again. Under re-examination, he said that he understood by 'contemplation', that 'I've got trust in someone else'.[92]

132 In my view, Mr Laming's shocked disbelief at the occurrence of the subject offences reflects a serious abrogation of responsibility and propensity to merely scapegoat his staff: having appointed competent staff, his behaviour was consistent with a belief that he had removed himself from any responsibility for what he believed were entirely the mistakes of his staff. Mr Laming did not engage in any active oversight or supervision of his staff. Mr Laming's failure or refusal to accept responsibility was compounded by his apparent attitude of 'mistakes happen' and his reluctance to act upon past breaches of the Rules by exercising vigilance in examining stable practices and record keeping and implementing appropriate measures to eliminate avoidable errors.

133 It is particularly reprehensible that Ms Mercer was placed in the invidious position of having no effective means of updating or accessing the Treatment Diary during May 2018, whilst a new computer system was being implemented. Mr Laming appeared to have no idea what was happening regarding the failure to record treatments in a timely manner and/or have them available. There appear to have been no protocols in place for such an eventuality.

134 In response to Mr Sheales' rhetorical question, what more could Mr Laming have done, Mr Hooper made several pertinent suggestions.

135 Firstly, Mr Laming could have made sure that the Treatment Diary was up-to-date and regularly checked; he may then have caught the mistake before the horse raced. The failure to complete the Treatment Diary during May 2018 meant that Ms Mercer was effectively operating on her memory alone: having already administered an injection on the Monday, she again administered an injection on the Wednesday, within the same week and on a race day, not apparently checking the Worksheet or having an up-to-date Treatment Diary available to check. Counsel submitted that there is clearly a link between Charges AR 240 and AR 104. The treatment records were blank. The Worksheet is not the treatment record which in this instance failed to record the mistaken treatment on this day as well as the earlier treatment. The VRT conceded that the penalties imposed should be concurrent precisely because there is a connection between the two Charges.

136 I accept that the Charges in this case are clearly connected in the way described by Mr Hooper. If injections are in fact administered and not recorded, then a trainer will not know that there has been an inadvertent or deliberate administration. The treatment records are vital as proof as to what has or has not happened.

137 Secondly, Mr Laming could have marked the stalls or boxes to make sure it was clear when a horse was racing. In his evidence Mr Laming was equivocal: they were meant to be marked, but whether they did he said 'I don't know' and later said he checked and they were on the boxes. I am not satisfied that either Mr Laming or Ms Mercer gave reliable evidence of their respective recollections.

138 Thirdly, someone could have supervised Ms Mercer, particularly where neither Mr Laming nor his assistant trainer were present.[93] Calling a staff meeting after the first mistake did not prevent a similar mistake being made by the same staff member merely 3 months later. The nature and purpose of the staff meeting was also very vague.

139 Fourthly, the daily Worksheet does not exist in a vacuum and was clearly inadequate or unreliable in the context of an otherwise 'shambolic' stables.

140 Finally, I would add that, unlike the steps taken by Mr Schembri, Mr Laming's response to the incidents the subject of both Charges was cavalier in the extreme, consistent with an attitude that he accepted no responsibility whatsoever and only his staff were accountable and to blame. It is not apparent that any practical measures have been implemented to prevent another similar 'mistake' occurring in future.

141 Taking all the circumstances surrounding the subject breaches into account and the lack of vigilance following prior breaches, I accept the VRL characterisation that Mr Laming's wanton carelessness places his conduct in the same or close to the category of Mr Currie's conduct, in relation to the horse Eight Over. In the absence of adequate steps having been taken, the degree of Mr Laming's blameworthiness and culpability should be categorised as gross negligence, which is at the high end of the spectrum.

142 The circumstances of the AR 104(1) breach reflect not only a complete system failure of proper record keeping but also a total absence of any proper checks and balances which should have alerted Mr Laming to such failure. Considering Mr Laming's prior and post conduct around similar failures, I accept the RVL submission that Mr Laming's breach of AR 104(1) is a serious breach which warrants a suspension of his licence. Specific deterrence is particularly relevant to deter his apparent continuing reckless indifference to his serious responsibilities to maintain a proper and contemporaneous record of the treatment of his horses.

143 As noted in R v Donnelly,[94] a guilty plea does not always result in a sentencing discount. The law is merely that a judge must have regard to the plea and the stage of the proceedings at which it was entered. In this case, Mr Laming entered an early plea. There was little sensible option in the circumstances where no issue was raised to the testing procedure or Cobalt measurement. More significantly, Mr Laming did not demonstrate any meaningful insight into his behaviour, or any contrition for the situation brought about the breaches. Rather, as indicated above, he merely blamed others, and would not countenance any change in practice on his part which could have prevented the presentation breach. In addition, there was further offending in relation to treatment records, for which he was fined $1,000.

144 I accept that Mr Laming's plea of guilty should be given little weight. He has not demonstrated any insight, remorse, or acceptance of responsibility for his negligent stable practices.

145 I accept that Mr Laming answered all questions put to him by the Stewards during his first interview on 20 June 2018, and made further searches and inquiries and reported back to the Stewards the next day. However, he also demonstrated a significant lack of knowledge regarding the implementation of treatment regime, including the practices around recording treatments by his vet. He clearly thought it was adequate and appropriate to simply refer Stewards to his assistant trainer. It is noteworthy that Mr Laming subsequently breached his obligation to record a treatment in October 2020.

146 The presentation breach occurred in circumstances of deficient stable practices and the risk Mr Laming took in choosing to administer a weekly and, as accepted by the VRT, 'haphazard' vitamin regime involving three different injectables, all containing Cobalt, a prohibited substance. This vitamin regime was not subject to any direct control or intervention by Mr Laming notwithstanding the 'wrong box' incident that occurred shortly before the relevant offence.

147 I accept that the penalty imposed should provide a general deterrent, appropriately reflecting the significant consequences of stable standards falling so far short that they expose the industry to a serious integrity risk. Eliminating the presence of prohibited substances in horses is critically important to the promotion and maintenance of a fair and safe racing industry. Underlying all strict liability offences is a presumption and expectation that industry participants will actively, conscientiously and with due diligence, observe and do everything within their power to enforce the Rules.

148 There is no question that a licensed trainer is entitled to delegate to staff in whom they have confidence and reasonably believe are competent. However, such delegation does not relieve a licensed trainer of their responsibility for active supervision of their staff and being aware and kept informed of potential risks and poor practices.

149 I accept that the penalty in this case, particularly considering Mr Laming's poor compliance record, should be sufficient to convey a strong message to the racing industry and the wider public that licensed trainers cannot divest themselves of their responsibilities by the act of delegation. Regular active operational oversight is essential. It should also send the message that licensed trainers must take an active interest in the maintenance of treatment records, consistent with the wording of AR 104, it is the trainer who is responsible for the keeping of treatment records, not his staff.

150 While the Tribunal must not penalise Mr Laming for his previous offences, they are directly relevant to the importance of specific deterrence in arriving at the correct and preferable penalty.

151 I agree with the RVL that the details of the relevant offending, as set out above, reveal that the presentation offence is not an uncharacteristic aberration within Mr Laming's stables. He was already on notice, on various occasions in the last 10 years (three years of which he was disqualified), that his stable practices posed risks in relation to both routine vitamin injections and other treatments. The evidence before the Tribunal does not indicate that he satisfactorily supervised Ms Mercer or Marnu regarding their vitamin treatment practices. Furthermore, when issues in his stable were identified, Mr Laming did not change his practices or implement new processes and procedures to ensure any such 'mistakes' did not happen again.

152 Further, Mr Laming failed to notice there had been a complete absence of entries in the Treatment Diary for the month of May 2018. This is because there was a period of almost two months where he did not look at his treatment records. Pursuant to the Rules, it is Mr Laming's responsibility, not that his staff, to ensure that accurate and up-to-date treatment records are kept. Mr Laming apparently failed to make any changes to his practices to avoid the further breach of Rules for which he was interviewed by the Stewards on 11 October 2020 regarding a further breach of AR 104 - failure to keep treatment records - for failing to record a calcium drip treatment given to a horse in his care on 8 October 2020. Mr Laming pleaded guilty to the charge. The RVL pointed out that this latest offence occurred almost contemporaneously with the VRT handing down its reasons on liability in this matter, in which the VRT clearly highlighted the deficiencies in Mr Laming's stable practices, including his poor record keeping.

153 I concur with the RVL that the details of the relevant offending in the context of past and subsequent offending, demonstrate a continuing attitude of indifference to his responsibilities as a trainer and, as described by the VRT, a 'high degree of ignorance' as to what was going on in his stables.

154 In my view it is a very unsatisfactory scenario where there is an apparent discrepancy in penalties imposed across the different racing codes. I cannot see any reason why there should not be parity in penalties in respect of a presentation offence across the three codes. The culpability of Mr Laming is more significant than the harness racing cases cited above. If the Tribunal were to apply a comparable parity, the penalties would be significantly more onerous than those recommended by the VRL. However, this is a matter which would benefit closer examination by the respective racing tribunals in future.

155 In this instance, for the reasons given above, I am comfortably satisfied that the imposition of the penalties recommended by the RVL are the correct and preferable penalties. To this end I have placed particular emphasis upon:

(a) Mr Laming's prior breaches and his continuing reckless indifference to his responsibilities as a licensed trainer, which calls for an appropriate measure of specific deterrence;

(b) Mr Laming's high degree of moral blameworthiness and culpability;

(c) The approach taken in Currie's case and the authorities referred to; and

(d) The individual and aggregate penalties are consistent with penalties imposed by other thoroughbred racing jurisdictions under the Rules, as cited above.

156 Accordingly, with respect to Mr Laming's breach of AR 240(2), I propose a 10-month period of disqualification; and with respect to Mr Laming's breach of AR 104, a 2-month suspension, to be served concurrently.

[1] The actual Cobalt reading exceeded 200µg/L or more than twice the maximum permitted limit.

[3] The analysis performed on the urine sample revealed a Cobalt concentration in excess of 200µg/L as reported in the statement of Mr Paul Zahra: TB 2/2 465, [16].

[8] Mr Laming said that all horses racing would get weekly treatments of 10ml of Coforta; Hemoplex and Folic B12, which was a regime developed by the veterinarian Dr Roberts: TB 2/2 574:34-40.

[16] TB 221:35-36. When re-interviewed by the Stewards, Ms Mercer said she had been 'overwhelmed' and 'exhausted' at the time of the first interview, TB 221:39; 222:16.

[28] Ms Mercer's evidence before the VRT was that she may not have checked the Worksheet.

[34] Ms Mercer's evidence before the Stewards was that she could not recall whether the boxes indicated that it was a race day.

[39] TB Tab 1, Page 5 of Decision of VRT following Hearing of Charges 2 and 3 on 17 & 18 August 2020.

[41] Written submissions of RVL dated 10 June 2021, [36].

[42] The Tribunal has extracted these summaries from the written submissions of RVL dated 10 June 2021.

[43] Written submissions of RVL dated 10 June 2021, [43].

[44] Written reasons of Senior Member John Dixon dated 1 February 2011 in the matter of Laming v Racing Victoria Limited [2011] VCAT 112 [9].

[45] Written submissions on behalf of Mr Laming dated 30 August 2021.

[46] R v De Simoni (1981) 147 CLR 383.

[48] [1988] HCA 14; (1998) 164 CLR 465, 477.

[49] Written submissions for Mr Laming, [21].

[50] Written submissions for Mr Laming, [31].

[52] (1981) 147 CLR 383, 389.

[53] Written submissions for Mr Laming, [23].

[54] [1988] HCA 14; (1998) 164 CLR 465, 467.

[55] [2019] NSWSC 40, [61]-[62] & [67]; also see Day v Sanders; Day v Harness Racing New South Wales [2015] NSWCA 324, [86]-[88].

[56] [2019] VSCA 300, [62].

[57] [2020] QCAT 240 (Currie's case).

[59] The Currie case then cites a number of decisions, including the case of Wallace and Kavanagh referred to below.

[61] [2018] QCAT 301, [48].

[63] [2007] QDC 168, [69], referred to in Currie's case, [20].

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

[65] [2016] QCATA 82, [77], [104]-[106] referred to in Currie's case, [21].

[66] [2017] VSCA 334, [45].

[67] [2015] NSWCA 324; (2015) 90 NSWLR 764, [85] and [88].

[68] The Racing New South Wales Appeal Panel, 2 September 2005, comprising Mr P Capelin QC, Principal Member; Mr M Einfeld QC; Ms M Crawley; Mr J Hickman and Mr D Leo, referred to in Currie's case, [23].

[69] [2019] NSWSC 40, [61]-[62] & [67]; also see Day v Sanders; Day v Harness Racing New South Wales [2015] NSWCA 324, [86]-[88].

[70] Kavanagh v Racing Victoria Limited [2017] VCAT 386 (Kavanagh No. 1 case). The Tribunal was constituted by President Garde J.

[71] Racing Victoria Limited v Kavanagh and O'Brien [2017] VSCA 334, [6].

[73] Racing Victoria Limited v Kavanagh and O'Brien [2017] VSCA 334, [9].

[74] 2018 VCAT 291 (Kavanagh No. 2 case).

[75] McDonough (HAR) - App 04 2008 [2008] VRAT 6 (24 June 2008).

[76] Kavanagh No. 2 case, [47], [48] & [50] (citations omitted).

[77] Written submissions of RVL dated 10 June 2021, [51]-[54].

[80] The RVL's written submissions, [56]-[57] and subsequent oral submissions.

[82] AHRR 190(1) provides: 'A horse shall be presented for a race free of prohibited substances'.

[86] VRT decision of 16 September 2021.

[87] In the Matter of an Appeal by Mr Garry Lefoe 15 June 2021.

[88] Kavanagh No. 2 case, [18]-[20].

[89] Racing Victoria Ltd v Riley [2016] VSCA 230; (2016) 51 VR 261, 263 [1], citing R v Disciplinary Committee of Jockey Club ex parte Aga Khan [1992] EWCA Civ 7; [1993] 2 All ER 853, 857-858; Harper v Racing Appeal Tribunal (1995) 12 WAR 337, 347; Racing Victoria Limited v Kavanagh [2017] VSCA 334, [83].

[90] In the matter of Kent Fleming, Racing Appeal Panel of New South Wales (13 July 2017), [55].

[91] The RVL's written submissions [9]-[10].

[93] Ms Mercer gave evidence that this would often happen but there was no evidence that this was a requirement.

[94] (1998) 1 VR 645, 650.