Queensland Civil and Administration Act 2009 section 22.

Wallace v Queensland Racing (2007) QDC 168 followed.

The applicant represented by Mr F Martin of counsel instructed by Greenhow & Yeates.

The respondent represented by Mr A J Orchard solicitor of Racing Queensland Ltd.

Australian Racing Rule 176 renders a trainer or any other person in charge of a horse liable to a penalty if a prohibited substance is detected in a sample taken from the horse either before or following it's running in any race. Implicit in the rule is an obligation on a trainer to take reasonable and proper precautions to ensure that horses trained by the trainer are presented to the track for racing free of prohibited substances.

Primed was a racehorse trained by the applicant Mr Webb. A prohibited substance was detected in a samples taken from Primed after racing on both the 24 July 2010 and 31 July 2010. The certificates of analysis of the samples were published on 9 August 2010 and 20 August 2010 respectively confirming the presence of two drugs, flunixin in the first and ibuprofen and flunixin in the second.

At a Stewards Inquiry held on 25 October 2010 at Toowoomba, Mr Webb accepted responsibility for presenting the horse with the prohibited substance on both occasions. However, he contended that no penalty should have been imposed because there was persuasive evidence before the stewards for them to conclude that Primed had been interfered with by an unknown third party.

The stewards did not consider the evidence persuasive and disqualified Mr Webb from training for a period of 4 months on both counts, but to be served concurrently.

On 27 October 2010 Mr Webb filed an application to review the decision of Racing Queensland in respect of the penalty imposed.

When Mr Webb was notified of the first positive swab of flunixin on 10 August 2010 in relation to the race on 24 July, he was in fact on holidays on the Sunshine Coast. He returned to his stables in Toowoomba a week or so later and was then contacted by Mr Birch of Racing Queensland and told about the second positive swab. On 25 August Mr Webb was interviewed by a Stipendiary Steward, Mr Hitchener about the positive swabs. Mr Webb denied any knowledge of how the horse could have been administered with the prohibited substances. Mr Hitchener then advised Mr Webb that if the horse ran at the races on Saturday 28 August it would definitely be swabbed.[1]

After this conversation Mr Webb contacted a police officer he knew, Mr Thompson, for some advice about security issues. Mr Thompson inspected the stable complex and noted that there was a high colourbond fence at the rear and on two sides of the complex with the house at the front. There were security cameras but only working on one side. The sensor lights were not connected because they were continuously tripping and coming on.

Mr Thompson told Mr Webb that it would take some time to make the security system fully operational but in the meantime he should take some simple precautions. As an interim security measure and on the advice of Mr Thompson, Mr Webb, on the evening of 28 August 2010, put cotton strands around the top and bottom of the stable door because Primed was entered to race the following day. The following morning he found that the cotton strands had been broken and reasonably assumed that the stable door had been opened. After checking with employees as to whether they were responsible, he contacted Racing Queensland and had the horse swabbed. The swab was positive for phenylbutazone and oxyphenybutazone both prohibited substances. Primed was scratched from the race on 28 August 2010.

This evidence has some importance: firstly, accepting the truth of what Mr Webb says, it supports the inference to be drawn that there was, and had been, outside interference. Secondly, because of Primed's form it was almost guaranteed that he would be swabbed thereby exposing Mr Webb to another breach of AR178. This must also be considered against a background of gossip and chatter within the racing fraternity, up to about 11 August 2010 that Mr Webb was to be charged twice for presentation. Mr Webb knew nothing of this gossip at the time, and it was only upon him being charged with these breaches that all was revealed to him. Although Mr Webb has accepted his responsibility under AR178, these factors, amongst others, must be taken into account when considering penalty.

Racing Queensland then undertook a thorough investigation into Mr Webb's allegations that the horse had been interfered with from a source outside the stable. After the investigation was complete the Steward Inquiry convened on 25 October and took evidence from a number of witnesses and it was, in my view, open to the stewards to conclude that Primed had been interfered with. Mr King, who undertook the investigation on behalf of Racing Queensland said, when asked by the stewards:

THE CHAIRMAN: Mr King, Mr Webb has alleged that someone has broken into his stables and administered these substances to Primed on these occasions. Did you find any evidence to support that allegation?

MR KING: No, I found no evidence to support it and I found no evidence to disregard it.

Despite this, the stewards said there was little evidence that they could rely on to support the allegations that Primed had been interfered with[2]. In a case such as this where the evidence is equivocal, at best, the benefit of the doubt, insofar as it relates to penalty should, in my view, be given to the applicant. After considering previous convictions and the lack of operating security in the stable complex, the stewards imposed the penalty.

Racing Queensland now submit that the penalty imposed should be upheld on the basis that Mr Webb failed to maintain proper and reasonable security in his stables, particularly in circumstances where Mr Webb now submits that the previous convictions in May were as a result of interference. Racing Queensland does not positively contend that we should find there was no outside interference. In fact, when one has regard to not only the evidence of Mr Webb, but also the clear evidence from Mr Phillips,[3] Mr Best,[4] and Ms Meier[5] there was knowledge within the industry in Toowoomba[6] that Mr Webb was to be charged with further offences before the results were published by the Racing Science Centre. The only inference to be drawn from this evidence is that someone knew that Primed would test positive. Mr Orchard did suggest that there may have been confusion with the May swabs, but when one considers the proximity of these conversations and the recent testing of Primed, it is more likely the conversations relate to the positive results the subject of this application. Not that it is critical to this determination I observe that the stewards did not address these matters in their reasons. Coupled with this is the certain knowledge that the horse would be swabbed irrespective of it's placing in the field because of it's form.

There is certainly an onus on Mr Webb to provide secure premises. A positive test has serious ramifications to the racing industry. The betting public have a right to assume that if a horse wins or places in a race they can have confidence the bet will be paid out. The owner of the horse is entitled to a similar expectation. In addition to this, animal welfare dictates that horses should not be administered prohibited substances prior to racing. To underpin this confidence, penalties are imposed where horses are presented with a prohibited substance. The extent of the penalty will depend on a number of factors, including precautions taken by trainers to prevent administration of prohibited substances as well as previous convictions for breaches of the rules of racing.

Here we are concerned with both of these factors. With respect to security, there must be an underlying assumption that the security provided must be reasonable in the circumstances of the particular case. Prior to the May incident Mr Webb had not had any security issues and apart from the camphor positive results, had not otherwise been breached under AR178.

The detection of hydroxycamphor in positive swabs in June 2008 and December 2008 did not relate to the administration of a prohibited substance nor did they result in a lack of security. Although Mr Orchard, on behalf of Racing Queensland, did not concede that camphor was no longer tested for, it is a known problem at racing stables that have proximity to camphor laurel trees. These trees provide an abundance of shade but some, not all, horses nibble the leaves and digest the chemical. In my view this cannot be regarded as a previous "offence" for the purposes of considering the proper penalty to be imposed.

Mr Webb has an explanation for the May 2010 positive swabs, which we are, in my view, compelled to accept for the purposes of this hearing. He suspected an employee of administering phenylbutazone and dismissed him. There were no further incidents until late July. Accepting that explanation, he then had no reasonable expectation that his horses would be further interfered with. Although there was ongoing angst in the racing community about the changeover from a grass track to custom turf, there is no evidence that this spilled over to actual interference with horses. Therefore, although there were threats to some people, there was no heightened expectation that horses were at risk.

Still, this does not relieve Mr Webb of his responsibilities to ensure that his stable was secure at all times, particularly after the May incident. He did however take some steps to ensure security by locking gates to the complex and it was surrounded by the high colourbond fence and to access to the stables one had to pass the caretakers house. It is accepted by Mr Webb that the complex lacked operational security cameras and automatic lights.

One has to be very careful not to judge Mr Webb's actions with the benefit of hindsight but consider what was reasonable given the circumstances that prevailed at the time of the July swabs.[7] He said that the cameras did not work because he was waiting for a part and the lights kept coming on and obviously needed adjustment or replacement. The cables to the lights had also been taken down and required replacement. Historically, in the absence of any other breaches of security, there was no apparent urgency to ensure the lights or cameras were operational.

Having said that, Racing Queensland's submissions that it is the responsibility of the trainer to ensure horses are presented free of prohibited substances to uphold the integrity of the industry cannot be ignored.

Both parties rely on Wallace v Queensland Racing[8] where McGill DCJ discussed cases where there is evidence of specific mitigating circumstances when considering penalty. He 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. 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 the 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"

1. Accepting that Mr Webb has provided a specific explanation exculpating him from blameworthiness in so far as it relates to the administration of the drugs, he falls within the first category of those referred to by his Honour. But, he must still accept some responsibility for the lack of security which may have deterred a third party from accessing the stables.

Turning then to penalty, in my view little weight should be given to the camphor positive swabs for the reasons given. Obviously, the Tribunal must take into account the May positive swabs even though Mr Webb has a reasonable excuse. As for the July swabs, this should be regarded as one breach, because if the result of the first swab had been notified to Mr Webb before the 31 July meeting the second presentation charge may have been avoided. In my view both incidents should be regarded as a second offence and one for which Mr Webb was not directly responsible. His lack of attention to detail with regards security at the stable is a factor to be taken into account but not one which could positively be said to be causative of the positive swab. By that I mean, Mr Thompson gave evidence that even if the cameras were working they would not have detected a person at Primed's box because of their location.

Mr Martin, council for the applicant, has made submissions as to the impact of a four month suspension, not only on Mr Webb but also on the local racing industry as a whole. This is something we can take into account. Mr Webb has at his stables, at any one time, 40-60 horses. Those horses have to be fed, shod, rugged, ridden, floated and vetted by various associated entities. Mr Webb has 8 full time employees and 9 part time employees, some married with children. We were told that some have been financially impacted by the recent floods. Loss of employment would be a harsh blow to them.

If the four month disqualification is maintained the stable will have to be shut down and horses either turned out to spell or go to other trainers. It seems that only a handful of horses could be picked up by other trainers in the area. We were told that Mr Michael Nowlan, the other major trainer in Toowoomba, has limited space at his stables. Mr Stewart, who Mr Webb's mainly trains for, confirmed this and also said that not only is there a shortage of stables but coupled with this also the time available for the trainers to train the horses. Racing Queensland submits that this was taken into account when deciding on penalty and the transcript of the decision supports this submission.

Mr Stewart also gave evidence in support of Mr Webb as a prominent and responsible trainer. Mr Webb has been training horses for some 30 plus years and has made a significant contribution to the industry in Toowoomba and on the Downs. He has few blemishes over this lengthy period. This must also be taken into account when considering penalty.

These considerations would have little relevance if the trainer was to blame for the presentation. As discussed, Mr Webb's only blame relates to lack of security. His lack of insight as to the need to ensure security, in such a large stable does cause some concern and that must be taken into account when determining penalty, as must the May positive swabs. A calculation has been undertaken that the disqualification would cost Mr Webb somewhere in the order of about $100,000 in gross income. Not only is there loss of income over a four month period, there would also be a time lag before he recoups income from horses winning or placing in races. In my view such a penalty is too harsh in these circumstances. This is particularly so when one has regard to the "knock on" effect to those who rely on Mr Webb for income.

In considering this matter afresh as we are required to do[9], I have come to the conclusion that an appropriate penalty would be $15,000 on each count.

Therefore the decision of the Tribunal will be that the application will be allowed and the penalty imposed by Racing Queensland will be set aside and in lieu thereof a penalty of $15,000.00 on each breach will be imposed.

[1] At an inquiry on 25 October 2010, Mr Webb pleaded guilty to two offences under AR178. The particulars of the charges were that Mr Webb:

...as the registered trainer of the thoroughbred Primed, did present that horse at the Toowoomba Turf Club on Saturday 24 July 2010, for the purpose of engaging in a race when a urine sample taken from it subsequent to its running in that race did detect the presence of the prohibited substances Flunixin.[10]

...as the registered trainer of the thoroughbred Primed, did present that horse at the Toowoomba Turf Club on Saturday 31 July 2010, for the purpose of engaging in a race when a urine sample taken from it subsequent to its running in that race did detect the presence of the prohibited substances Flunixin and ibuprofen.[11]

[2] The stewards imposed a penalty of 4 months' disqualification. Mr Webb has appealed the penalty. He says that, although he pleaded guilty to the charge, the tribunal should not impose a penalty:

1. Queensland Racing has a discretion not to impose a penalty.

2. There is sufficient evidence for the tribunal to conclude that the prohibited substances were administered by a third party without the knowledge or consent of Mr Webb.

3. Once there is evidence to suggest another explanation for the presence of a prohibited substance, the onus shifts to Queensland Racing to exclude that reasonable or plausible possibility.

4. Mr Webb falls into the first of the categories described by Judge McGill in Wallace v Queensland Racing[12] in that he can show a specific explanation which did not involve blameworthiness on his part which should operate to mitigate the penalty.

5. A disqualification of four months has a significant financial and social impact on Mr Webb, his family and employees and the owners of horses which are placed with Mr Webb.

[3] Racing Queensland accepts that Mr Webb did not administer, or cause to be administered, either flunixin or ibuprofen. It concedes there is evidence before the tribunal that suggests a third party's interference with Primed. As to penalty, however, it says:

1. Mr Webb did not take adequate precautions to ensure the safety and security of his horses. He did have a security system at the stables but it was not functioning until he took action in late August - after this event - to have it repaired.

2. As AR178 is an offence of strict liability, the failure to provide an adequate security system, particularly in circumstances where Mr Webb was on notice that security was an issue, puts this case in Judge McGill's third category: the explanation shows moral blameworthiness on the part of the trainer which would justify a more severe penalty.

[4] The parties spent considerable time on the security or lack thereof, and the ramifications of the security arrangements on the question of penalty. Ultimately, the argument became a circular one. It is necessary to set out the background to the issue of security:

1. On 29 July 2010, Mr Webb pleaded guilty to presenting two horses with phenylbutazone and was fined $5,000 on each charge. The swab the subject of those charges was taken on 26 May 2010. Mr Webb told the tribunal that he didn't administer the substance to either horse but he pleaded guilty because he understood that the charge was one of strict liability. Mr Webb told the tribunal that he thought he knew who administered the substance, and why, and by dismissing an employee, he took appropriate action to ensure that such a problem would not recur.

2. Primed was swabbed on 24 July and 31 July 2010. On 10 August 2010, an officer from Racing Queensland told Mr Webb that both swabs were positive.

3. Between May 2010 and July 2010, Mr Webb had no reason to believe that he was the target of any interference from a third party. The dogs did not bark; the horses did not get out; there were no personal attacks on Mr Webb, his employees, associates or family.

[5] In early August 2010, between the time the swab was taken and the time Mr Webb learned of the results, some intriguing events took place:

1. On 4 August 2010, an item appeared on the Wednesday Whinge website stating that a prominent trainer for a prominent owner was about to be breached for up to 6 offences by Racing Queensland.

2. Mr Burke, a committee member of the Toowoomba Turf Club had a conversation with two other committee members on 7 August 2010 about the item. As a result of that conversation, Mr Burke concluded that the item referred to Mr Webb.

3. On 8 August 2010, a jockey asked Mr Phillips, a trainer and acquaintance of Mr Webb: "Oh, did Mark get done another couple of times?"

4. On 10 August 2010, trainer Norm Hilton asked Mr Best, a jockey who rides for Mr Webb whether it was true that Mark Webb had a number of positive swabs.

5. On 11 August 2010, Mr Burke voiced his suspicions to Ms Meyer. He thought that Ms Meyer would communicate "the situation" to Mr Stewart, an owner who uses Mr Webb's training facilities.

[6] Mr Webb still took no action in relation to his security arrangements until around 25 August 2010 when he was interviewed by Racing Queensland about the positive swabs taken in late July. Acting on advice from an off-duty police officer, Mr Webb put a strand of cotton around the top and bottom of the door to Primed's stable on Friday, 28 August 2010. On Saturday morning, 29 August 2010, the cotton to the bottom of the door was broken. Mr Webb scratched Primed and took a urine sample from Primed. That sample tested positive for phenylbutazone and oxyphenylbutazone.

[7] Mr Martin, Counsel for Mr Webb, argued that once an alternative explanation for a positive swab is raised, it is for Racing Queensland to exclude that explanation. Mr Martin relied on: the decision by Racing New South Wales in Gai Waterhouse[13], the difference in wording between AR177B and AR178 and the general principles of Briginshaw v Briginshaw[14].

[8] I do not agree with Mr Martin's proposition. The general principles of Briginshaw are apposite to the standard of proof, not the onus of proof. The question of another plausible explanation in Waterhouse arose when the stewards were considering a breach of the rule, not the penalty. AR177B specifically provides that the trainer may be penalised "unless he satisfies the Stewards that he has taken all proper precautions...". There is no similar provision in AR178. If anything, Mr Martin's reference to AR177B clearly shows that the argument of excuse is much more difficult in AR178.

[9] In my view, the correct onus of proof is identified in Judge McGill's decision: "where the trainer is able to show..."[15].

[10] There are two parts to Judge McGill's test to justify a reduction in penalty: a specific explanation; that does not involve blameworthiness. I am satisfied that a third party interfered with Primed on or about 28 August 2010. I am also satisfied that there is evidence to suggest that a third party may have interfered with Primed in late July as part of a campaign against Mr Webb. I am not satisfied that Mr Webb can show that the positive swabs did not involve blameworthiness on his part which should operate to mitigate the penalty.

[11] It is implicit in the strict liability imposed by AR178 that a trainer has an obligation to take proper precautions so that his horses are presented for racing free from any prohibited substance. That concept has been the basis of many decisions by both Racing Queensland and this tribunal. Mr Webb's failure to have adequate security until the end of August 2010 operates, in my mind, so that he is not free of blame for the presentation of a horse with a prohibited substance.

[12] Despite Mr Webb's lax approach to security, I do not think that his actions elevate the gravity of the offence to one where Mr Webb's actions indicate moral blameworthiness which would justify a more severe penalty. I should, therefore, consider a penalty that falls within the normal range.

[13] Mr Webb's history of offences pursuant to AR178 is as follows:

[14] Racing Queensland provided the tribunal with a table of penalties imposed for three or more offences for positive swabs and pointed out that disqualifications of between eight and twelve months are not unusual.

[15] Mr Martin says that the tribunal should not take the breaches in relation to hydroxycamphor into account because:

1. Some horses ingest the substance naturally by eating the leaves from camphor laurel trees.

2. Mr Webb does stable horses near camphor laurel trees but he removed them as soon as he became aware of their propensity to eat the leaves.

3. His horses presented twice in a short period of time because he did not have stable capacity to remove all his horses from the vicinity of the camphor laurel.

[16] Mr Martin also says that the tribunal should disregard the penalties imposed in July 2010 because:

1. Mr Webb did not administer "bute" to his horses.

2. It was administered by a third party.

3. Mr Webb pleaded guilty because he was aware of the strict liability nature of AR178.

[17] Mr Martin says that, if we accept his analysis of the prior offences, the obvious penalty is the imposition of a fine, or a disqualification of no more than two months.

[18] Mr Martin's analysis of Mr Webb's previous offences shows a troubling lack of insight into the degree of responsibility required by AR178. Mr Webb's approach has consistently been reactive, rather than proactive. Indeed, gossip in early August that led Mr Webb to believe he was being "got at" was not enough to shock him out of his complacency so that he attended to his security system. It was not until he received notice of two positive swabs one week apart that Mr Webb took any real action to ensure his horses' safety.

[19] Mr Martin also told the tribunal of the significant financial effect that a 4 month disqualification will have on Mr Webb, the owners who place their horses with him, his employees and the racing industry in Toowoomba. Mr Webb's evidence is that he will lose about $100,000 in earnings before interest and tax over a 4 month suspension.

[20] There is no doubt that Mr Webb and his associates will suffer significant financial detriment if a period of disqualification is imposed but I am not convinced that it will be of the magnitude described. Similarly, while I accept the evidence of Mr Stewart, an owner who places a significant number of horses with Mr Webb was honestly given, I do not necessarily agree with his assertion that none of the horses usually trained by Mr Webb will be trained, or raced, during a 4 month hiatus. Racing Queensland asserts that these matters were taken into account in imposing a penalty of 4 months, rather than 8 or 12 months.

[21] Mr Martin provided the following comparatives:

1. Waterhouse. Ms Waterhouse was found guilty of presenting a horse with cocaine and fined $5,000.

2. Richards[16] Mr Richards presented a horse that had been treated with Buscopan in accordance with advice. The drug remained in the system beyond the period expected of the treating veterinarian. Although Mr Richards was guilty of the offence, no penalty was imposed.

3. Schweida Queensland Racing's table of penalties for three or more positive swabs show that Mr Schweida has been penalised three times, with a fine imposed each time.

[22] Richards and Waterhouse can be distinguished on their facts. Mr Richards' reliance on expert advice was reasonable and falls squarely within Judge McGill's category of a specific explanation that indicates a lack of blameworthiness. Waterhouse involved the presence of cocaine, a drug that is widespread within the community and could have been ingested accidentally and in circumstances where Ms Waterhouse had little control. Unlike Mr Webb, the period between Mr Schweida's offences was almost six years, indicating that Mr Schweida had at least some understanding of the requirements of AR178.

[23] The maximum fine imposed by Racing Queensland to date is $8,000. Even if the tribunal imposed that fine for each offence, it is a flea bite in comparison with Mr Webb's likely earnings over the proposed disqualification period. We have no information on the financial impact that a disqualification may have had on other respondents. It is, therefore, difficult to craft a penalty that enables the stable to continue operating (and provide an income for the various employees and dependents) but provides a sufficient warning to Mr Webb and deterrent to others. While the imposition of a disqualification for four months seems lenient, it has far reaching ramifications for the industry in Toowoomba. Although it is a decision in a vacuum, and very much a blunt instrument, I concur with Mr Oliver's decision to impose a penalty of $15,000 for each breach.

[4] Transcript 2 September 2010 P5 L25-45.

[5] Transcript 2 September 2010 P3 L35-45.

[6] Also the published article in the Wednesday Whinge Ex 13.

[7] Roads and Traffic Authority of NSW v Dederer [2007] HCA 42.

[8] (2007) QDC 168 at [69].

[12] [2007] QDC 168 at [69].

[14] [1938] HCA 34; (1938) 60 CLR 336.

[15] Wallace v Queensland Racing, supra.