RACING - APPLICATION FOR REVIEW - elevated TCO2 levels - difference in readings in certificates of analysis - whether prima facie case - whether measurement uncertainty is taken into account to establish a prima facie case under AR178D - where consistency in penalty is desirable

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

Racing Act 2002, s 4

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

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Peter Tonkin Racing Appeals Tribunal Appeal No 1 of 2005 (Victoria)

Abbott v Racing Queensland Limited [2012] QCAT 230

Hansen v Racing Queensland Limited (No 2) [2011] QCAT 610

David James Lawlor represented by Mr MT Tutt of Butler McDermott Lawyers

Racing Queensland Limited represented by Mr A James of Counsel

[1] Mr Lawlor is the trainer of Noorgoora Burr. Noorgoora Burr started in race 3 at Doomben on 12 May 2012 and won the race.

[2] Prior to the race a blood sample was taken and subsequent analysis at the Racing Science Centre on 14 May 2012 showed that there was a total plasma carbon dioxide (TCO2) concentration of 37.6mmol/L. A subsequent analysis of the reserve sample by Racing Analytical Services Ltd in Victoria on 15 May 2012 showed a TCO2 concentration of 36.6mmol/L. An elevated level of CO2 may enhance the racing performance of a horse by delaying the onset of fatigue and therefore improving its endurance. Excessive levels may harm the horse's health.

[3] Australian Racing Rule 178C provides that alkalising agents are prohibited substances when the total carbon dioxide is at a concentration of more than 36 millimoles per litre in plasma. The laboratories include in their certificates that there is an allowance for measurement uncertainty of 1 millimole per litre. In relation to the second sample, if the benefit of that uncertainty was given to Mr Lawlor, this would result in the concentration being below the threshold of 36 mmol/L.

[4] On the basis of the certificates of analysis, Stewards convened an inquiry on 6 June 2012 and after hearing from Dr Vine, the Director of Racing Analytical Services Ltd charged Mr Lawlor with a breach of AR178 which provides:

"When any horse that has been brought to a racecourse for the purpose of engaging in a race and a prohibited substance is detected in any sample taken from it prior to or following its running in any race, the trainer and any other person who was in charge of such horse at any relevant time may be penalised."

[5] After conducting the inquiry the Stewards found Mr Lawlor guilty of the charge and imposed a penalty of 6 months' disqualification.

[6] Mr Lawlor has sought a review of that decision in the Tribunal both as to the finding of guilt by the Stewards and the imposition of the penalty of 6 months' disqualification.

[7] The review proceeding is to be conducted by way of a fresh hearing on the merits with the object of producing the "correct and preferable decision". In conducting the review, the Tribunal has the functions of the original decision maker and there is no presumption that the original decision is correct.[1]

[8] Mr Lawlor contends that no prima facie case was established against him permitting the Stewards to charge him with a breach of AR178. He relies on AR178D which provides:

• (1) "Samples taken from horses in pursuance of the powers conferred on the stewards by AR8(j) shall be analysed by only an official racing laboratory.

• (2) Upon the detection by an official racing laboratory of a prohibited substance in a sample taken from a horse such laboratory shall:

  • (a) notify its finding to the stewards, who shall thereupon notify the trainer of the horse of such finding; and
  • (b) nominate another official racing laboratory and refer to it the reserve portion of the same sample and, except in the case of a blood sample, the control of the same sample, together with advice as to the identity of the prohibited substance detected

• (3) In the event of the other official racing laboratory detecting the same prohibited substance, or metabolites, isomers or artefacts of the same prohibited substance, in the referred reserve portion of the sample and not in the referred portion of the control, the certified findings of both official racing laboratories shall be prima facie evidence that a prohibited substance has been detected in that sample for the purposes of these rules."

[9] Mr Lawlor submits that the prohibited substance was, within the meaning of the rule for the purposes of this case, the measurement of total carbon dioxide in excess of 36mmol/L taking into account the 1mmol/L being the measurement uncertainty. There is no contention that the trainer should not get the benefit of the measurement uncertainty.

[10] Mr Lawlor submits that although the first sample was over the prescribed limit the second was not taking into account the measurement uncertainty, and therefore there is no prima facie case upon which the Stewards can charge Mr Lawlor with the presentation charge.

[11] What needs to be understood in applying AR178D(3) is the reference to "prohibited substance". AR178C defines TCO2 as a prohibited substance when present in excess of 36mmol per litre in plasma. So, applying that to AR178D for the purposes of subsection (3) the prohibited substance is TCO2 at a concentration of more than 36mmol per litre. Here, there are two certified findings from both official racing laboratories which established that a prohibited substance, as defined under AR178C, has been detected therefore there is prima facie evidence of the prohibited substance.

[12] It is not to the point, when considering the application of AR178D that the Stewards have regard to the reference in the certificate of analysis that:

"The expanded measurement uncertainty for TCO2 determinations at the threshold concentration (36.0 mmol/L) is 1.0mmol/L at > 99.99% confidence."

[13] The measurement uncertainty is a matter the Stewards take into account in deciding whether to convict a person for presenting a horse with a prohibited substance. We agree with the submissions of Racing Queensland that the certified findings of both official racing laboratories do nothing more than establish a prima facie case and this Tribunal is then entitled to look to other evidence to determine whether the charge has been established to their reasonable satisfaction.[2]

[14] Evidence in addition to the certificates of analysis in this case includes the frank admissions by Mr Lawlor that he feeds every horse that comes into his stable with bicarbonate in their feed each day, usually about 30 grams or 1 scoop. He also gave evidence that in his experience some horses have higher 'bicarb' readings than others even though he feeds the same amount to them. He denied drenching his horses with an alkalising agent.

[15] In coming to their decision the Stewards were entitled to look at all the evidence including the certified findings of both laboratories and the evidence of Mr Lawlor in deciding that he breached the rule.

[16] We accept Dr Vine's uncontested expert evidence that there are a number of reasons which would explain the difference in the concentrations measured by the two laboratories and that such differences were not 'abnormal'. These are that concentrations may decline over time due to leakage of the gas from the tube if the tube is not perfectly sealed and that when samples are subjected to changing air pressures and changing temperatures in the course of air freighting some loss of carbon dioxide may occur.

[17] In these circumstances we accept the validity of the measurements set out in the certificates.

[18] In Tonkin[3] Dr Vine's evidence, which was accepted, was to the effect that the reading in that case of 37.1mmol/L which had a measurement uncertainty of 1.2 mmol/L at a greater than 99.7% confidence was evidence that there was a 99.7% likelihood that the true value of TCO2 lay between 35.9 and 38.3 mmol/L and, that the likelihood that the value exceeded 36 mmol/L would not be as high as 99.7% but would still be in excess of 99%. In that case it was accepted that the corrected reading still represented a very high likelihood that the concentration exceeded the threshold.

[19] The Racing Science Centre certificate is evidence that there was a 99.9% likelihood that the true value of TCO2 lay between 36.6 and 38.6 mmol/L. This is evidence that the concentration exceeded the threshold.

[20] The Racing Analytical Services certificate is evidence that there was a 99.9% likelihood that the true value of TCO2 lay between 35.6 and 37.6 mmol/L. We accept that this is evidence that there is at least a high likelihood that the concentration exceeded the threshold.

[21] Having regard to both certificates, Mr Lawlor's admissions and Dr Vine's evidence, we are satisfied to the necessary standard that Mr Lawlor has breached AR178 as charged by the Stewards.

[22] Mr Lawlor submits that in determining penalty the Tribunal ought to take into account the particular circumstances of Mr Lawlor which include that Mr Lawlor:

1. has been in the industry for approximately 40 years with a substantially unblemished record;

2. was frank with the Stewards in that he admitted that he had an infringement some 15 years ago in Darwin;

3. relies upon training horses for his income;

4. if disqualified, will likely never train racehorses again;

5. is undergoing medical treatment for a very serious medical condition;

6. finds caring for and training his horses is therapeutic;

7. has monthly expenses of approximately $12,500 including stable rent of $2,000 and living expenses of approximately $3,000.

[23] Mr Lawlor accepts that for a first offence the 'norm' is now about 6 months' disqualification. Mr Lawlor submits that a substantial fine or a suspension or a suspended sentence with a 2 year head sentence is appropriate given his circumstances rather than a disqualification.

[24] The Tribunal has previously acknowledged the desirability of consistency in decisions[4] whilst considering each case on its own facts.

[25] Racing Queensland submit that factors to be considered include:

1. the TCO2 offence is a serious offence;

2. the occurrence of such offences brings the industry into disrepute;

3. the potential for bringing the industry into disrepute is increased during the Brisbane Winter Carnival race days such as 12 May 2012 and this weighs against leniency in penalty due to Mr Lawlor's personal circumstances;

4. Mr Lawlor admits giving bicarbonate to his horses and if when tested they exceed the tolerance he must bear the known consequences.

[26] The main purposes of the Racing Act 2002 is to maintain public confidence in the racing of animals in Queensland for which betting is lawful, ensure the integrity of all persons involved with racing or betting and to safeguard the welfare of all animals involved in racing.[5] Racing Queensland as a control body under the Racing Act 2002 is tasked with achieving these purposes.

[27] The Tribunal has previously recognised the importance of ensuring that horses are presented drug free.[6]

[28] Penalties are to be considered in light of their deterrence to the individual and to others in the industry and to increase the public's confidence that such behaviour will not be tolerated.

[29] The Tribunal accepts that hardship will often flow as a consequence of a disqualification.

[30] Taking into account all of the factors advanced by Mr Lawlor and Racing Queensland the Tribunal considers an appropriate penalty in the circumstances is a disqualification for 6 months.

[31] The respondent's decision of 6 June 2012 is confirmed.

[32] The review application is dismissed.

[1] QCAT Act, sections 19 and 20; Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58 at [9].

[2] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.

[3] Peter Tonkin Racing Appeals Tribunal Appeal No 1 of 2005 (Victoria).

[4] Abbott v Racing Queensland Limited [2012] QCAT 230.

[6] Hansen v Racing Queensland Limited (No 2) [2011] QCAT 610.