Wonson v Greyhound and Harness Racing Regulatory Authority

JUDGMENT 1 BELL J: By these proceedings the plaintiff challenges the decision of the Greyhound and Harness Racing Appeals Tribunal (the Tribunal) which dismissed an appeal against his conviction before P R Callaghan SC, Major Inquiry Steward, of the Greyhound & Harness Racing Regulatory Authority (the Authority) for an offence under r 190(2) of the Australian Harness Racing Rules (the Rules). 2 Rule 190(2) makes it an offence to present a horse that is not free of prohibited substances for a race. 3 The plaintiff was the trainer of a horse, Lost in the Park, which raced at Harold Park on 24 September 2004. Following the race a sample of urine was taken from Lost in the Park. It was analysed and found to contain hydrocortisone at a concentration of 1.96 micrograms per millilitre. This is a concentration in excess of the permitted level for hydrocortisone. Analysis of the sample of urine conducted at another laboratory did not reveal the presence of hydrocortisone in an amount that exceeded the permitted level. 4 Mr Callaghan SC was satisfied that Lost in the Park had been presented other than free of a quantity of hydrocortisone in excess of the permitted concentration. He found the plaintiff guilty of the charge and disqualified him for a period of ten months. The Tribunal considered that there was no basis for disturbing Mr Callaghan's factual findings and dismissed the appeal. 5 In a supplementary statement filed pursuant to Pt 51A r 5 of the Supreme Court Rules 1970 the plaintiff claimed orders, including: "1. A declaration or other order(s) setting aside the decision of the Tribunal that David Wonson Snr is guilty of a charge contrary to r 190 of the Australian Harness Racing Rules of presenting a horse otherwise than free from a prohibited substance; 2. A declaration or other order(s) setting aside the order of the Tribunal pursuant to r 256(2)(c) of the Rules that the plaintiff be disqualified for a period of ten months; 3. A declaration or other order(s) that the decision was made such that the Tribunal failed to accord the plaintiff's procedural fairness thus rendering the decisions invalid; 4(a) An order that the Court is not satisfied that the plaintiff did not present a horse free of a prohibited substance; (b) Alternatively, an order setting aside the decision of the Tribunal and remitting the prosecution to a differently constituted Tribunal for re-determination." 6 Three grounds were set out in the supplementary statement in support of the relief that is claimed. The second ground was not pressed. The two remaining grounds are as follows: "1. The Tribunal denied the plaintiff procedural fairness by proceeding to make a finding of fact where there was no evidence upon which that fact could be found; … 3. The Tribunal made a finding that sample "B" was bacterially degraded without evidence in support of that finding of fact." 7 Harness racing in New South Wales is regulated under the Greyhound and Harness Racing Administration Act 2004 (the Act). The Authority is established pursuant to s 4 of the Act. Regulatory and disciplinary functions are conferred on it by ss 12 - 17. 8 The Tribunal is established under s 26 of the Act. Under s 19(1)(c) a person who is aggrieved by a decision of a steward of the Authority has a right of appeal in accordance with the regulations. The Greyhound and Harness Racing Administration (Appeals) Regulation 2004 (the Regulation) makes provision, for the purposes of s 19(1), for an appeal to the Tribunal against a decision to disqualify a person. 9 Section 21(1) of the Act provides that An appeal to the Tribunal pursuant to s 19 is by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence on which the decision appealed against was made, may be given: s 21(1). Clause 24 of the Regulation provides that the Tribunal, when hearing an appeal, is not bound by the rules or practice as to evidence and may inform itself of any matter in such manner as it thinks fit. 10 The Tribunal may dismiss the appeal, confirm the decision appealed against or vary the decision by substituting any decision that could have been made by the steward or make such other order in relation to the disposal of the appeal as it thinks fit: s 23(1). The decision of the Tribunal is final: 23(2). 11 Provision is made for the Authority to make rules for the control and regulation of harness racing in New South Wales under s 16 of the Act. The Rules promulgated in 1999 pursuant to the Harness Racing NSW Act 1977 were continued in force by operation of cl 20 of Schedule 6 of the Greyhound Racing Act 2002. They were further continued by operation of cl 17 of schedule 4 of the Act. 12 The offence created by r 190(2) is one of strict liability. Relevantly the rule provides: " 190 (1) A horse shall be presented for a race free of prohibited substances. (2) If a horse is presented for a race otherwise than in accordance with sub rule (1) the trainer of the horse is guilty of an offence. … (4) An offence under sub rule (2) … is committed regardless of the circumstances in which the prohibited substance came to be present in or on the horse." 13 Prohibited substances for the purposes of r 190(2) include anti-inflammatory agents, corticosteroids and hormones: r 188A(1)(b). Hydrocortisone is an anti-inflammatory agent, a corticosteroid and a hormone. Free hydrocortisone at a concentration of 1.00 micrograms per millilitre of urine or less is not a prohibited substance: r 188A(2)(f). 14 Rule 191 provides: " 191 (1) A certificate from a person or drug testing laboratory approved by the Controlling Body which certifies the presence of a prohibited substance in or on a horse at, or approximately at, a particular time, or in blood, urine, saliva, or other matter or sample or specimen tested, or that a prohibited substance had at some time been administered to a horse is prima facie evidence of the matters certified. (2) If another person or drug testing laboratory approved by the Controlling Body analyses a portion of the sample or specimen referred to in sub rule (1) and certifies the presence of a prohibited substance in the sample or specimen that certification together with the certification referred to in sub rule (1) is conclusive evidence of the presence of a prohibited substance. (3) A certificate furnished under this rule which relates to blood, urine, saliva, or other matter or sample or specimen taken from a horse at a meeting shall be prima facie evidence if sub rule (1) only applies, and conclusive evidence if both sub rules (1) and (2) apply, that the horse was presented for a race not free of prohibited substances. (4) A certificate furnished under this rule which relates to blood, urine, saliva, or other matter or sample or specimen taken from a horse shall be prima facie evidence if sub rule (1) only applies, and conclusive evidence if both sub rules (1) and (2) apply, that the prohibited substance was present in or on the horse at the time the blood, urine, saliva, or other matter or sample or specimen was taken from the horse. (5) Sub rules (1) and (2) do not preclude the presence of a prohibited substance in or on a horse, or in blood, urine, saliva, or other matter or sample or specimen, or the fact that a prohibited substance had at some time been administered to a horse, being established in other ways. (6) Sub rule (3) does not preclude the fact that a horse was presented for a race not free of prohibited substances being established in other ways. (7) Notwithstanding the provisions of this rule, certificates do not possess evidentiary value nor establish an offence, where it is proved that the certification procedure or any act or omission forming part of or relevant to the process resulting in the issue of a certificate, was materially flawed." 15 The sample of urine taken from Lost in the Park was analysed by the Australian Racing Forensic Laboratory (ARFL). It certified the presence of hydrocortisone at a concentration of 1.96 micrograms per millilitre (sample A). The ARFL is a drug-testing laboratory approved by the Controlling Body. 16 A portion of the sample of the urine taken from Lost in the Park was forwarded to Racing Analytical Services (RASL) in Victoria. It is also a drug-testing laboratory approved by the controlling body. RASL certified that sample contained free hydrocortisone at a concentration less than 1.0 micrograms per millilitre (sample B). 17 The inquiry before Mr Callaghan took place on 14 January 2005. The plaintiff pleaded not guilty to the charge. The plaintiff represented himself and Mr Bottle, Acting Chairman of Stewards, prosecuted the matter. 18 Allen Stenhouse, Official Analyst with ARFL, was called. He gave evidence of his qualifications including that he has been a racing chemist engaged in looking for drugs in sporting samples for the past twenty years. He said that the result of the analysis of the sample taken by ARFL was accurate within a tolerance of .1. He expressed a ninety-nine percent degree of confidence that the real concentration of hydrocortisone in the sample would fall between 1.86 and 2.06 micrograms per millilitre. His evidence as to the accuracy of the results obtained by ARFL was not challenged. 19 Mr Stenhouse was asked his opinion with respect to the results of the analysis performed by RASL by reference to the possibility that the sample had degraded. He replied: "In the internal survey that I mentioned there were quite a few samples that went around, and some were stabilised with a substance called sodium azide. Some were kept just with refrigeration, and others were frozen and kept for a month or two. … Surprisingly, the ones that were kept frozen for a while showed the greatest degradation. They seemed to drop even further. I do not really have any factual explanation, apart from suggesting that the freeze-thawing is known to increase the bacterial activity, which may have degraded the hydrocortisone in these samples. (T 3.3 - 5). 20 The sample sent to RASL in Victoria had undergone an extra freeze-thaw cycle (T 13.8). 21 Dr Craig Suann, the official veterinarian of Racing New South Wales, also gave evidence at the hearing before Mr Callaghan. He was asked a question concerning the degrading of hydrocortisone (T 19.4). He said this (T 19.5): "As far as I am aware - and Mr Stenhouse may know better - there is nothing published in literature that might explain why degradation of something like hydrocortisone would take place in a urine sample over time. There has been speculation that there might be microbial degeneration over time - that is, degeneration by bacteria that might be present in the urine. That might be enhanced by the presence of certain substrates that might increase bacterial activity. It might also be the result of freeze-thawing of the sample, which can happen in the light of the sample once it has been collected. But I stress that that is only speculation as to how that might occur. I am not aware of anything in the scientific literature that might support those views." 22 A letter under the hand of Mr Batty, Deputy Laboratory Director of RASL was in evidence before Mr Callaghan. Mr Batty reported that: "Initial quantitation of this urine sample gave a free hydrocortisone concentration less than 1.0 ug/mL. Subsequently this analysis was repeated on two further occasions, which detected a lower amount of free hydrocortisone each time it was analysed. One may assume therefore, that the level of free hydrocortisone in urine sample number N003659 is degrading with time. 23 Mr Callaghan in his reasons for decision observed (at [9]): "Mr Stenhouse explained the different results from RASL on the basis that there had evidently been degradation of the hydrocortisone in the second bottle of urine, probably through processes of freezing and thawing which it underwent when the specimen was first taken and when it was sent off for confirmatory analysis. Mr Stenhouse indicated that his opinion in this regard was based on experience and anecdotal information particularly from his involvement in the investigation directed to striking a limit for the level of free hydrocortisone in urine. Dr Suann later confirmed that there is no relevant published scientific material on this issue."

Mr Callaghan's went on to record at [17]: "Nevertheless, there are two certificates in this case and I have to take both of them into account with all of the other evidence before me in determining whether or not the charge has been proved to my reasonable satisfaction on a Briginshaw basis. In my opinion, in his evidence, Mr Stenhouse supported and detailed the ARFL procedures and results in a professional and convincing way and did so, haven given due weight to, and rationally explained, the differing RASL experience. I find his evidence and the ARFL results quite acceptable. I am comfortably and confidently satisfied that the horse was presented for its race not free of hydrocortisone above the stipulated level. Rule 190(2) constitutes an absolute liability offence. I find Mr Wonson guilty of the offence charged." 24 The plaintiff was represented by a solicitor before the Tribunal. No fresh evidence, or evidence in addition to or in substitution for the evidence that was before Mr Callaghan, was called before the Tribunal. Three submissions were put to the Tribunal on the plaintiff's behalf. The first submission was that the Sample B certificate was conclusive evidence that the hydrocortisone concentration was below the threshold upon the proper construction of r 191(2). The second submission was that the mere fact that the second sample returned a negative test ensured that the prosecution could not discharge the onus of proof (T 5.9). The third submission was that upon the whole of the evidence it had not been open to Mr Callaghan to be satisfied upon the Briginshaw standard that the offence had been proved (T 6.3). 25 The Tribunal was chaired by B R Thorley, Judge, who was assisted by two specialist assessors. Judgment was delivered on 2 March 2005. The Tribunal, after rejecting the first two submissions made on the plaintiff's behalf, went on to state: "This then brings us to the principal argument which Mr Hammond advanced, namely, that in the whole of the circumstances of this case, having regard to the onus of proof properly applicable, this Tribunal should not be satisfied with the prima facie finding demonstrated by the certificate from the Randwick laboratory. In this regard, Mr Hammond points to the evidence given by Mr Stenhouse in his endeavours to explain why it is that the Victorian certificate demonstrated a level below the permitted level of 1 microgram. Mr Hammond argues that Mr Stenhouse's evidence was purely speculative and it was not supported by any proven facts. In support of that argument, he referred this Tribunal to the decision of the New South Wales Court of Appeal in the case of Makita v Sprowles. The appeal to this Tribunal is, in accordance with the most recent enabling statute, one by way of a re-hearing. However, the fact is that most appeals heard by this Tribunal are appeals which come to us purely upon the transcript of the proceedings. Whilst there is the opportunity available in this Tribunal to receive additional evidence, or evidence in enhancement of that given before the enquiring steward or stewards, experience demonstrates that this is but seldom availed of. In that circumstance, the views of fact which have been made by the fact-finding body from which the appeal comes have to be given great weight, since it is that body which has had the opportunity of actually seeing the witnesses and accordingly to them such degree of credibility as is deemed appropriate. The reasons which have been given in extenso by Mr Callaghan indicate clearly that he went through that process. He has distinctly recorded in that his reasons for accepting the evidence of Mr Stenhouse, and hence that arguments advanced by the stewards which resulted in the finding adverse to Mr Wonson. We think those reasons are proper reasons, and reasons which we are not prepared to disturb. Other fact-finders may have viewed the matter differently, but Mr Callaghan was entitled to come to the views which he did, and he reached those views, in our opinion, without error. He has accepted the view of Mr Stenhouse, the chief analyst. That view is that there was found, not once but on a number of occasions by way of retesting, a level of hydrocortisone beyond the level which has been prescribed. That being so, it is clear that the offence has been made out." 26 In these proceedings Counsel for the plaintiff focussed attention on paragraph [9] in Mr Callaghan's reasons (as adopted by the Tribunal) and submitted: "There is an error of fact here, that is sample B had bacterially degraded. That conclusion enabled the decision-maker to conclude that it is unreliable as to its asserted fact and that enabled the decision-maker to conclude that sample A remained prima facie evidence of its asserted fact. The no evidence rule in natural justice stipulates that an error of fact can produce an error of law where the fact leads the decision-maker to an ultimate decision which was not available on the evidence." (T 7.43-8.2) 27 The contention is that Mr Callaghan wrongly concluded that sample B was bacterially degraded. It was said that any assertion of microbial degradation was no more than speculation having regard to the evidence of Dr Suann. It followed that there was no basis for the conclusion that sample B was unreliable and hence no basis for concluding that sample A was reliable. 28 In the plaintiff's submission the content of procedural fairness requires that (i) a decision be based upon logically probative and relevant material and (ii) where a disparity exists between the weight of evidence and fact finding it suggests the fact found could not reasonably have been found. Reliance was placed upon the judgment of Gleeson CJ and McHugh J in Minister for Immigration v Eshetu [1999] HCA 21; 197 CLR 611 at 626-627 and, in particular at [42] and to GTE (Aust) Pty Ltd v Brown (1986) 14 FCR 309 at 336-337. In that case Burchett J referred with approval to the judgment of Lord Diplock in R v Deputy Industrial Industries Commissioner; ex parte Moore [1965] 1 QB 456 at 488. 29 In this respect it is necessary to note the judgment of Spigelman CJ in Bruce v Cole (1998) 45 NSWLR 163 at 186-187: "Mr Conti also urged the adoption of a doctrine developed by Lord Diplock to the effect that a logically probative decision was a requirement of natural justice: see R v Deputy Industrial Industries Commissioner; ex parte Moore [1965] 1 QB 456 at 488; Mahon v Air New Zealand [1984] AC 808 at 821. Mr Conti relied on a passage in the judgment of Deane J in Australia Broadcasting Tribunal v Bond at 367. However, in Australia Broadcasting Tribunal v Bond , Mason CJ expressly left open the issue of whether this third limb should be added to the doctrine of natural justice. Indeed, it may not be consistent with the orthodox position set out in Mason CJ's judgment in Australia Broadcasting Tribunal v Bond to which I will refer below. … This doctrine must be confined in order to avoid impermissible merits review." 30 A consideration of the extent to which the requirements of procedural fairness admit of the review of factual findings in exceptional cases does not seem to me to be raised by this proceeding. The finding of fact inherent in the Tribunal's decision was that Lost in the Park was presented for a race with a prohibited substance (hydrocortisone) in excess of the permitted concentration of hydrocortisone. This was the issue identified by Mr Callaghan at [3] of his reasons. It was the single issue identified by the plaintiff's solicitor in his submission to the Tribunal (T 2.9). There was evidence to support the finding that Lost in the Park was presented for a race with hydrocortisone in excess of the permitted level. There was evidence of the results of the analysis of sample A. No challenge was made to the procedures adopted by ARFL or to the confidence with which Mr Stenhouse reported the tolerance for error. Such evidence as there was relating to sample B showed that it exhibited a lower concentration of free hydrocortisone each time it was analysed. There was no evidence from any person at RASL as to the procedures adopted in analysing sample B, the degree of confidence in the accuracy of the results or by way of explanation for the reducing concentration of hydrocortisone with each analysis (save that contained in Mr Batty's letter - namely that the sample was degrading with time). Sample B had been subjected to an additional freeze-thaw cycle. Mr Stenhouse gave evidence of the phenomenon of degradation in freeze-thawed samples. He offered an opinion as to a possible explanation for the observed phenomenon. 31 I do not consider that there is substance to the challenge advanced in ground one or to the allied challenge developed in oral submissions that no reasonable Tribunal could have arrived at the finding that the Tribunal did. 32 I do not understand Mr Callaghan to have made a finding that sample B was bacterially degraded. Had he made such a finding in the absence of evidence it would not, in any event, have amounted to an error of law: Waterford v the Commonwealth (1987) 163 CLR 54 at per Brennan J at 77. 33 I am not of the opinion that the plaintiff has made out a basis for the grant of the relief that he seeks. ORDERS

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