Currie v Queensland Integrity Racing Commission [2020] QCAT 305

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: PARTIES: Currie v Queensland Integrity Racing Commission [2020] QCAT 305 BENJAMIN MARK CURRIE (applicant) v QUEENSLAND INTEGRITY RACING COMMISSION (respondent) APPLICATION NO/S: OCR260-19 MATTER TYPE: Occupational regulation matters DELIVERED ON: 4 August 2020 HEARING DATE: 2 June 2020 HEARD AT: Brisbane DECISION OF: Member Howe ORDERS: The decision of 9 July 2019 is set aside. The applicant is guilty of three counts of causing a horse to be administered with medication on 7 April 2018 in breach of Australian Rule of Racing 178E(1). Effective from 20 May 2019 the applicant is disqualified as a trainer for a period of six months. CATCHWORDS: PROFESSIONS AND TRADES - LICENSING OR REGULATION OF OTHER PROFESSIONS, TRADES OR CALLINGS – where horses were administered with a substance orally over the tongue on race day – where the administration was caught on CCTV film – where it was not established that other horses were also administered medication on race day - where the administration was by an employee – where the trainer had allowed another person complete autonomy to care for the horses at the stables – where the trainer had failed to appropriately supervise events occurring at the stables Racing Act 2002 (Qld) s 4(1) Racing Integrity Act 2016 (Qld) s 3(1) Australian Rules of Racing AR.1, AR.178E(1), AR.196 Barbaro v The Queen [2014] HCA 2 Briginshaw v Briginshaw (1938) 60 CLR 336 -- 1 of 15 -- 2 Day v Sanders [2015] NSWCA 324 Hollis v Vabu Pty Ltd [2001] HCA 44 Johnson v Miller [1937] HCA 77 Prince Alfred College Incorporated v ADC [2016] HCA 37 Racing Victoria Ltd v Kavanagh [2017] VSCA 334 APPEARANCES & REPRESENTATION: Applicant: J Murdoch QC instructed by O’Connor Ruddy & Garrett Respondent: S McLeod QC instructed by QIRC in-house legal REASONS FOR DECISION [1] The applicant (‘Currie’) was a licensed thoroughbred trainer carrying on business in Toowoomba under the name Currie Racing. [2] His father Mark Currie (‘MC’) was also a licensed trainer at the time performing work for Currie Training. [3] The parties have agreed on the following facts. [4] In March and April 2018 Currie Racing had approximately 100 horses in active training stabled at two separate locations, Clifton Park racecourse and stables with 24 stalls or boxes separated into a Red Barn and a Green Barn at Glenvale several kilometres from Clifford Park (‘Glenvale’). [5] Staff at Glenvale were employed by Currie Racing. Gregory Britnell (‘Britnell’) and Cameron Schwenke (‘Schwenke’) were staff members there. [6] On 24 March 2018 five horses at Glenvale were accepted to race that day. On 7 April 2018 seven horses at Glenvale had been accepted to race that day. [7] Stewards and other Queensland Integrity Racing Commission (‘QIRC’) officers entered Glenvale on 7 April 2018. Subsequently CCTV footage was seized from there. [8] CCTV footage bearing date 23 March 2018 (claimed by QIRC to record events occurring there on 24 March 2018) showed amongst other things MC early in the morning using a syringe to squirt paste over the tongue of a horse in box 2 of the Green Barn and later in the morning MC using a syringe to squirt paste over the tongue of a horse taken from an unidentified box in the Red Barn. [9] Further CCTV footage bearing date 6 April 2018 (claimed by QIRC to record events there on 7 April 2018) showed amongst other things Britnell entering the box of a horse Gully Command in the Red Barn and squirting Boost paste over the tongue of the horse; shortly after that Britnell entering the box of a horse Give Us A Cuddle in the Green Barn and squirting Boost paste over the tongue of the horse; immediately after that Britnell entering the box of a horse With A Promise and squirting Boost paste over the tongue of the horse. [10] QIRC found used Boost paste tubes in a bin outside Glenvale on 12 April 2018. [11] Swab samples of saliva, urine and blood were taken from each of the named horses above on 7 April before the horses raced and again later that day and each swab returned a negative result for any prohibited substance under Australian Rule of Racing AR.177B. -- 2 of 15 -- 3 [12] When questioned by QIRC officers Currie said he did not instruct anyone to give the horses Boost paste pre-race on either aforesaid date. [13] As required by AR.178F a treatment book recording the treatments administered to racehorses was kept at Glenvale at Currie’s direction. The book was at Glenvale at the material times. Inside the front cover of the book was noted “All runners given ‘Boost’ after gallop – Tuesday, Thursday and Saturday. Half paste given after race with 10ml ‘bute’ paste.” [14] Britnell admitted to giving Boost paste to horses racing that day as set out above. Britnell said it was his own decision to do that, that neither Currie nor MC were aware of what he did. [15] Schwenke also said Currie knew nothing about administration of paste over the tongue. [16] Currie was charged by stewards with 12 counts under AR.178E(1) in respect of the five horses on 24 March 2018 and the seven horses on 7 April 2018 . [17] The particulars of the charges were as follows: (a) Caused to be administered Mr Currie as trainer is ultimately responsible as registered trainer and through his inaction he is vicariously liable for the actions of his staff members. Mr Currie in the course of the Stewards’ inquiry 28 May 2018 accepted at page 174 that as trainer he is responsible for his staff members. (b) Medication Under AR.1 of the Australian Rules of Racing ‘medication’ means any treatment with drugs or other substances. [18] Boost paste when administered over the tongue (by syringe tube) to a horse meets the definition of medication contained in AR.3. Supplements such as Boost paste are permitted to be given to horses on race day but only if given in their feed permitting the horse to consume the supplement voluntarily. [19] It was not alleged that Currie administered any medication to a horse on race day himself, but that he caused the administration of medication on race day. [20] Stewards found Currie guilty on each of the 12 charges. They imposed a penalty of 12 months’ disqualification for the charges arising from the actions on 24 March 2018 and 12 months’ disqualification for the charges arising from the actions on 7 April 2018, a total of 24 months. [21] On internal review liability was confirmed but the penalty in respect of the 24 March 2018 incidents was reduced to six months, but the charges to be served cumulatively, a total of 18 months’ disqualification. [22] MC faced similar charges under 178E(1) to Currie in respect of 24 March 2018 and 7 April 2018: he was found to have breached the provision and was penalised by a total disqualification period of 2 years. [23] On external review in the Tribunal the matter was returned to QIRC for reconsideration pursuant to s 23(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). MC pleaded guilty to one charge that he caused the administration of medication to horses on race day of 24 March 2018 and one charge -- 3 of 15 -- 4 that he caused the administration of medication to horses on race day of 7 April 2018 and his licence as trainer was suspended for 12 months in respect of each charge, wholly suspended for 12 months and fined $7,500. [24] Schwenke was disqualified for three months and Britnell disqualified for two years. The submissions of the parties QRIC [25] QRIC says the subject horses were administered boost paste by Currie’s employees on the relevant dates. As the licensed trainer he was ultimately responsible for each animal under his care and control. At the stewards’ enquiry on 28 April 2018 Currie accepted that as a licenced trainer he was also responsible for his employees and his employees were under his care and control. [26] Currie gave directions to his employees about carrying out their day-to-day duties. It is inherently unlikely that an employee would undertake tasks without instruction by his employer. [27] It can be reasonably inferred that Currie specifically instructed his father and Britnell to administer boost paste on the race days of 24 March 2018 and 7 April 2018. Alternatively it was the routine of the stables established by Currie to administer boost paste to horses on race day. In the further alternative Currie refrained from making enquiries about his employees’ conduct because he preferred not to know and wilfully shut his eyes to the administration of boost paste in his stables. [28] In any of these scenarios Currie caused the boost paste to be administered to the subject horses in breach of AR.178E(1). [29] Even if none of these scenarios is established to the satisfaction of the Tribunal, Currie is vicariously liable as employer for the tortious actions of his employees acting within the scope of their employment. Currie [30] Currie agrees that three of the horses named in the 12 charges were administered with boost paste on the race day of 7 April 2018. He does not agree that there is any evidence to support the other charges of administration of boost paste to horses on race days. [31] Regardless of that admission Currie submits that there is no evidence, direct or indirect, upon which the tribunal can be comfortably satisfied that Currie “caused” boost paste to be administered by Britnell to the three horses. [32] The tortious principle of vicarious liability does not apply in occupational disciplinary matters. [33] In any case the administration of boost paste on race days was contrary to Currie’s express written instructions. The Rules of Racing [34] By AR.1: “Medication" means any treatment with drugs or other substances. [35] AR.178E: -- 4 of 15 -- 5 (1) Notwithstanding the provisions of AR.178C(2), no person without the permission of the Stewards may administer or cause to be administered any medication to a horse on race day prior to such horse running in a race. (2) The Stewards may order the withdrawal from a race engagement any horse that has received medication in contravention of subrule (1) of this rule. [36] AR.196: (1) Subject to subrule (2) of this Rule any person or body authorised by the Rules to penalise any person may, unless the contrary is provided, do so by disqualification, suspension, reprimand, or fine not exceeding $100,000. Provided that a disqualification or suspension may be supplemented by a fine. … (5) Where a person is found guilty of a breach of any of the Rules listed below, a penalty of disqualification for a period of not less than the period specified for that Rule must be imposed unless there is a finding that a special circumstance exists whereupon the penalty may be reduced: … AR.83(d) – 2 years AR.84 – 2 years AR.135(d) – 3 years AR.175(aa) – 5 years AR.175(h)(i) – 3 years AR.175(hh)(i) – 2 years AR.177B(6) – 2 years AR.178E – 6 months AR.178H(2) – 2 years For the purpose of this sub-rule, a special circumstance is as stipulated by each Principal Racing Authority under its respective Local Rules. CCTV Footage [37] As stated, most facts in the matter are agreed and non-contentious. Those concerning the CCTV footage are not however. [38] The parties agree, and I find, that on 7 April 2018 Britnell administered boost paste over the tongue to three horses racing later that day. He conceded that in an interview conducted on 19 April 2018 after being shown “CCTV footage” which I conclude was the footage bearing the date 6 April 2018. I find he accepted the CCTV footage he was shown dated 6 April 2018 was in fact that of race day 7 April 2018. What reasonably follows from that I conclude is that the CCTV footage (clearly shot from the same camera and filming position) of 23 March 2018 was in fact footage shot on 24 March 2018. I shall refer to the footage hereafter as variously that of the 24 th and the 7 th . [39] I have carefully watched the CCTV footage from Glenvale stables for both the 24th and the 7th . [40] The picture displayed is far from clear. The camera is set some distance away from and external to the stalls of the horses. Little can be seen of what takes place inside the stalls. The stalls are mostly in shadow and dark. It is significant that in some of the footage Britnell in particular apparently enters stalls and appears to walk past the -- 5 of 15 -- 6 horse in the stall without stopping. The position of feed bins in the stalls is unknown. It is not disputed that boost paste is permitted to be given to horses on race days if given to them in their feed. [41] Other than for the CCTV footage of the 7th showing Britnell applying paste over the tongue to three horses, which paste he accepts was Boost paste, I am not persuaded by the CCTV footage that all or most of the other horses were also given Boost paste over the tongue. Given that, the footage does not support QIRC’s allegation that it suggests a routine or systemic stable practice to administer substances orally over the tongue in contravention of AR.178E(1). That is an inference not reasonably available relying only on the footage of the 24 th and 7th . [42] Britnell said to the stewards in the subsequent enquiry that he gave Boost paste over the tongue to the three horses because he knew from experience they would not eat it in their feed. He didn’t try to put it in their feed because he knew they would not eat it.1 Given Boost paste was not performance enhancing he “didn’t think it would be that big a deal.”2 I conclude it is more probable than not that Britnell routinely gave those horses that consistently refused to eat it in their feed the paste over their tongue regardless whether it was race day or not because the difference was a matter of limited significance in his eyes. [43] In respect of the 24th footage claimed to show MC administering boost paste over the tongue to a horse in box 2 of the green barn and later administering boost paste to a horse in an unidentified box in the red barn, the identities of the horses (significant because it is therefore unknown whether they were racing that day) is not established other than on the basis that the same horses in the stalls on the 24th were also stabled in the same stalls on the 7th footage. It is agreed however that the horses at Glenvale were regularly moved around the stalls in the barns. I am therefore not satisfied that the footage of the 24th establishes that MC breached AR.178E(1) because the horses he administered paste to over the tongue may not have been racing. [44] The allegations against Currie are serious and the outcome and consequences of these proceedings equally so. The strength of the evidence necessary to persuade me about the truth of the allegations made must be proportionally persuasive in turn,3 and the CCTV footage falls short of such save as far as it confirms that Britnell administered boost paste to three horses over the tongue on their race day of the 7 th . Vicarious liability [45] QIRC claims Currie is vicariously liable for the actions of his employees and that AR.178E(1) imposes vicarious liability on a trainer. [46] Vicarious liability is a common law remedy. To date it has been limited to tortious claims and to some limited extent to an employer’s liability for the criminal conduct of an employee: Common law courts have struggled to identify a coherent basis for identifying the circumstances in which an employer should be held vicariously liable for negligent acts of an employee, let alone for intentional, criminal acts. There have been concerns about imposing an undue burden on employers who are not themselves at fault, and on their business enterprises. On the other hand, the 1 Agreed Bundle Page 1163 Line 43. 2 Agreed bundle Page 1182 Line 39. 3 Briginshaw v Briginshaw (1938) 60 CLR 336, 362. -- 6 of 15 -- 7 circumstances of some cases have caused judges to exclaim that it would be "shocking" if the defendant employer were not held liable for the act of the employee. No doubt largely because of these tensions vicarious liability has been regarded as an unstable principle, one for which a "fully satisfactory rationale for the imposition of vicarious liability" has been "slow to appear in the case law".4 [47] As explained by the High Court in Hollis v Vabu Pty Ltd5 the principle of vicarious liability is in fact based on policy considerations only: 34. In Darling Island Stevedoring and Lighterage Co Ltd v Long[42], Fullagar J expressed the view, surely correctly, that the modern doctrine respecting the liability of an employer for the torts of an employee was adopted not by way of an exercise in analytical jurisprudence but as a matter of policy.6 [48] The main purposes of the Racing Integrity Act 2016 (Qld) are to maintain public confidence in the racing of animals in Queensland for which betting is lawful, to ensure the integrity of all persons involved with racing or betting under that Act or the Racing Act 2002 (Qld) and to safeguard the welfare of all animals involved in racing.7 [49] I do not accept that AR.178E(1) invokes the common law principle of vicarious liability when it prohibits a trainer from causing medication to be administered to a horse on race day prior to the horse running. What conduct qualifies as causing medication to be administered to a horse in the context of the Rules of Racing is a matter of construction of the provision in the context of the statutory instrument as a whole. [50] In that regard both Counsel referred to and relied on the Victorian Supreme Court of Appeal decision of Racing Victoria Ltd v Kavanagh8 which considered in some detail the meaning of the expression “caused to be administered” in the context of analogous offences under the Victorian Rules of Racing. Caused to be administered [51] In Kavanagh two trainers, Kavanagh and O’Brien, were charged by stewards after cobalt was detected above the permitted threshold level in urine samples taken from horses trained by them. [52] At first instance Garde J, sitting as President of the Victorian Civil and Administrative Tribunal, upheld a review application by the trainers against a decision of the Racing Appeals and Disciplinary Board that had found the charges proven. Garde J found that the trainers’ veterinarian had injected a vitamin complex containing cobalt into the drips administered to the horses and neither trainer had had any knowledge that the veterinarian was going to administer a substance from a vitamin complex bottle to any of their horses. [53] That finding was not challenged when Racing Victoria appealed the decision to the Victorian Supreme Court of Appeal. The grounds of appeal instead concerned the construction of the Rules of Racing. The most serious charge was that the trainers had 4 Prince Alfred College Incorporated v ADC [2016] HCA 37, [39]. 5 [2001] HCA 44; 207 CLR 21. 6 Ibid, [34] (Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ). 7 Racing Integrity Act 2016 (Qld), s 3(1). 8 [2017] VSCA 334. -- 7 of 15 -- 8 caused cobalt to be administered to the horses for the purpose of affecting their performance or behaviour in a race in breach of AR.175(h)(i). [54] AR.175(h)(i) provided that the Committee of any Club or the Stewards may penalise: any person who administers, or causes to be administered, to a horse any prohibited substance: (i) for the purpose of affecting the performance or behaviour of a horse in a race or preventing its starting in a race; or (ii) which is detected in any sample taken from such horse prior to or following the running of any race. [55] Garde J had held that the “cause to be administered” offences under AR.175(h)(i) were not absolute liability offences but required proof that the person charged had some knowledge, intention, awareness, contemplation or foresight that the particular prohibited substance was to be administered. [56] In the Court of Appeal Maxwell P said the critical finding by VCAT was that neither trainer had had any knowledge of the administration of any prohibited substance to any of the horses. Maxwell P agreed with the decision of Garde J that both the “cause to be administered” offence and the “administer” offence with which it was associated required proof of knowledge or awareness of the identity of the prohibited substance in question. [57] Maxwell P said the meaning to be given to the word “administer” was the first question to be addressed and that required looking at the context within which the word was used in the Rules of Racing. In turn that required examination of the various “administration” offences created by the rules. [58] He noted the harsh fixed penalties associated with causation offences compared with detection offences. Detection offences created absolute liability and by contrast to (most of) the administration offences did not carry a fixed or minimum penalty. Accordingly the rules established two distinct categories of offence, the administration offences and the detection offences. The latter involved absolute liability for which there was no fixed penalty and no mental element required for commission; the blameworthiness attaching to the trainer would vary according to the circumstances and hence the discretion with respect to penalty to ameliorate the harshness of absolute liability.9 [59] The former however, with (mostly) fixed penalties, showed: … that the conduct intended to be caught by these rules was intentional conduct, that is, conduct by a person with knowledge or belief about the identity of the substance being administered.10 [60] Accordingly: 40 Although the rules do not create criminal offences, the severity of the penalties is a key indicator here — as in the criminal law — that the offences include a mental element. What was said by the High Court in He Kaw Teh is pertinent in this context. For example, Brennan J said: 9 Kavanagh, [45]. 10 Ibid, [39]. -- 8 of 15 -- 9 The presumption that some form of mens rea is an element in these offences is strengthened by the severity of the penalty and the enormity of convicting a person of one of these offences if he were innocently ignorant of the contents of a container he had imported or of the nature of a substance that he had imported if the contents or the substance turned out to be narcotic goods. [61] The administration offences and the causing to be administered offences carried the same penalty and accordingly the latter also depended on proof of knowledge. [62] I note his Honour’s comment that he had been referred to the decision of Day v Sanders11 which concerned harness racing and a presentation offence. There Basten J (with whom the other Judges sitting in the New South Wales Court of Appeal agreed) had stated that decisions taken from the criminal law were of limited benefit in resolving issues concerning the racing regulatory schemes: 70 The present case does not involve the addition of a new offence to the general criminal law: it involves the creation by a regulatory body of an offence for breach of the rules governing the industry. While it is true that the available penalties include fines and deprivation of livelihood, the regulatory scheme bears a closer relationship to professional discipline than to the general criminal law. Indeed, it bears an even closer relationship to the law regulating sporting activities, although neither side took the court to that area of the law…. 71 In that circumstance, there is limited benefit to be found in discussing cases which involve the addition of a new offence, or new form of prohibition, to the general criminal law, including He Kaw Teh v The Queen[27] and CTM v The Queen,[28] to which the Court was referred. When considering the proper operation of a statutory provision which is silent as to the precise nature of the mental element required for an offence, it may be asked whether it would assist the purpose of the legislative scheme to put a person under strict liability or whether it can be said that, absent some conscious activity which may promote observance of the regulations, “there is no reason in penalizing him, and it cannot be inferred that the legislature imposed strict liability merely in order to find a luckless victim.” [63] It is worth observing that the penalty referred to by Brennan J in the quote taken by Maxwell P from He Kaw Teh were described by Brennan J as of great severity and “truly criminal in character”, amounting in some cases to life imprisonment, a far cry from the penalty matters in Kavanagh and that at hand. [64] It is also helpful at this stage perhaps to note that Maxwell P repeated a statement by Garde J below that the Tribunal was not dealing with “a case of wilful blindness” on the part of the trainers.12 [65] McLeish JA disagreed with Maxwell P that a causation or administration offence under the rules could not be made out unless it was shown that the person charged with having caused a prohibited substance to be administered had some knowledge or awareness of what the substance in question was. He said: In my opinion, the question of causation does not turn on such specific knowledge, but on the circumstances which led the person who administered 11 [2015] NSWCA 324. 12 Kavanagh, [18(h)]. -- 9 of 15 -- 10 the substance to do so. While knowledge of what the substance was might bear on that question, in my view it is neither determinative nor a necessary prerequisite to establishing causation.13 (underlining added) [66] McLeish JA considered in some detail the earlier High Court decision of Johnson v Miller14 concerning the operator of a general merchant business and whether the merchant had “caused” his son whom he left in charge of the business for a weekend to drive a vehicle on a “controlled route” without the required licence. The son received a message asking that the tractor be urgently delivered as promised by the father. The father had given no instructions to the son about the delivery. The son delivered the tractor but in doing so drove on a controlled route without a licence. A magistrate convicted the father on the basis the son’s trip on a controlled route was the natural and probable consequence of the father’s act of leaving him in charge of the business and that the father must be taken to have intended those consequences. [67] The High Court agreed by majority that the conviction should be set aside. Rich J said that the word “cause” should mean “to procure or bring about…some intentional or conscious production of the effect”. [68] McTiernan J was of the opinion that a mere causal connection or relationship of cause and effect resulting in a vehicle accidentally being driven on a controlled route was not enough. [69] McLeish JA said: Although the judgements differ in emphasis, Miller shows that, in a criminal statute, the word “causes” when used in conjunction with offending by another person will generally not extend to describe every factor which contributes to that offending, or all those acts or omissions of which the offending might be a natural and probable or reasonable result. Rather, there must be either an intention that the offending act take place or contemplation or foresight that the person’s conduct will lead to the offending act.15 [70] McLeish JA went on to say that in judgments referring to intending, contemplating or foreseeing the offending behaviour: It is plain that what must be intended, contemplated or foreseen is the conduct itself (driving on a road that happens to be a controlled route) and not the criminal character of that conduct.16 [71] I agree with that statement by McLeish JA. [72] McLeish JA also noted the advisability that cautious use be made of criminal responsibility in the context of disciplinary matters and went on to say: 119 … That consideration reinforces my conclusion that the analysis of causation in the cases to which I have referred does not lead to the result for which the respondents contend. But it does not deny the applicability, in the context of the Rules of Racing, of a test of authority or direction to determine whether a person has caused a substance to be administered to a horse. That test excludes accidental administration and mere causal connection, but it still imposes a heavy obligation on those who entrust horses to the care of third 13 Ibid, [101]. 14 [1937] HCA 77: (1937) 59 CLR 467. 15 Kavanagh, [108]. 16 Ibid [110]. -- 10 of 15 -- 11 parties to be clear in what they authorise to be administered to those horses. Such a responsibility is consistent with the purposes of the Rules of Racing and in particular the avoidance of administration of prohibited substances. 120 Applying this test, it is not necessary that the person know what the substance is, in order to give the requisite authority, or to give the direction, for its administration and to contemplate that such authority or direction will be acted upon. The person may simply know of the existence of the substance and authorise its administration, ignorant as to what it is and still less aware as to its character as a prohibited substance. Such a person will have ‘caused’ the substance to be administered. Or the person may not even know of the existence of the substance yet give permission to another person to deal with the horse in terms that authorise the second person to administer to it substances of whatever kind, whether prohibited or not. In doing so, the first person contemplates that the permission that has been given will be acted upon, albeit without necessarily foreseeing the specific course that will be adopted. Again, by the width of the authority given, the first person in such circumstances ‘causes’ the second to administer whatever substances he or she thereafter administers to the horse. (underlining added) [73] Under the Racing Act 2002 (Qld) s 4(1) the main purpose of the Act is to provide for control bodies to manage, operate, develop and promote codes of racing in a way that ensures public confidence in the racing industry in Queensland. Section 111 requires each control body to have Rules of Racing for the good management of the code. [74] As stated above by s 3(1)(a) and (b) of the Racing Integrity Act 2016 (Qld) the main purpose of that Act is to maintain public confidence in the racing of animals in Queensland for which betting is lawful, to ensure the integrity of all persons involved with racing or betting under that Act or the Racing Act 2002 and to safeguard the welfare of all animals involved in racing. [75] Those purposes are arguably appropriately achieved by requiring trainers to appropriately supervise those to whom they hand responsibility for horses in their control and the “cause to be administered” offences should be construed in such a way as to facilitate that. [76] I respectfully adopt the statements and reasoning of McLeish JA above as applicable to the “cause to be administered” offence under AR.178E(1) in consideration here. [77] The third judge in Kavanagh, Cavanough AJA, agreed with McLeish JA on the question of causation. [78] Currie cloaked his father MC with great authority over his horses stabled at Glenvale. [79] Currie denied having any knowledge that horses were to be given Boost paste pre- race nor giving any instructions to anyone to do that. In fact he says he gave written instructions about Boost paste in the front of the treatment book kept at Glenvale and those instructions did not say to give Boost paste to horses on race days. I note however that there was no specific warning not to give Boost paste on race days in the book. Britnell thought that because Boost paste was not performance enhancing he “didn’t think it would be that big a deal”17 giving it on race days. 17 Agreed bundle Page 1182 Line 39. -- 11 of 15 -- 12 [80] Apart from that short note written in the front of the treatment book Currie had no other involvement in the care or supervision of the horses at Glenvale despite being their registered trainer. [81] McLeish JA in Kavanagh referred to the heavy obligation on those (trainers) who entrust horses to the care of third parties to be clear what they authorise to be administered. [82] Further he said it is by the width of the authority given that a person “causes” the second to administer whatever substances he or she thereafter administers to the horse. [83] Cavanough AJA said in Kavanagh in the context of the charge under AR.175(h)(i): I also agree with McLeish JA that for a person to give free licence to another person to administer to a horse belonging to the first person whatever substance the second person wished to administer might also, at least in some circumstances, amount to causation within the meaning of AR. 175(h)(i) and (ii).18 [84] I concur with the reasoning of the majority in Kavanagh and adopt what was said there in applying it by analogy to the construction of AR.178E(1) in determining whether a person has caused another to administer a substance in breach of that rule. Whether a person causes such will depend on the circumstances leading the person who wrongly administered the substance to do so. The state of mind of the person alleged to have caused the medicine to be administered by another in breach of AR.178E(1) is not the principal focus of inquiry.19 [85] I turn then to explore the circumstances of authority, direction or control granted others by Currie with respect to administration of substances to horses at Glenvale. Circumstances of authority, direction or control [86] In Kavanagh Maxwell P referred to a statement by Garde J in the VCAT decision below that in that matter it was not a case of wilful blindness on the part of the trainers. Accordingly it was not necessary to consider what the result would have been had that been the case. [87] Garde J listed five ways in which a person might ‘cause’ another person to perform a prohibited act. The last was refraining from making inquiries because the first person preferred not to know about the second person’s actions, or wilfully shut his or her eyes for fear that he or she might learn the truth. [88] MC was clear as to the width or scope of his authority at Glenvale. He told the stewards he ran the stables for Currie. Currie acknowledged that MC took charge of the horses at Glenvale. [89] MC said the employees there took their instructions from him. The employees confirmed that. MC said he gave the day to day instructions to those employees.20 18 Kavanagh, [152]. 19 Ibid, [124] ( McLeish JA). 20 Agreed bundle Page 782 Line 31. -- 12 of 15 -- 13 [90] Schwenke said he had worked at Glenvale for six months and in that time he had only seen Currie there on five or six occasions. He said Currie only looked after the horses stabled at Clifton Park. [91] Britnell said when he was at Glenvale all his orders came from MC21 but at the track he took instructions from both Currie and MC. MC said Currie only trained the Glenvale horses when they went to the track.22 [92] Currie did not know which horse occupied which box at Glenvale because he did not “really go down there too often.”23 [93] Currie effectively abnegated all responsibility for and over the Glenvale horses to MC when they were at those stables. Included in what was effectively a delegation of his authority was the supervision of Glenvale staff to ensure they complied with the Rules of Racing. But MC’s supervision of the staff was marginal at best. MC’s response to a question put to him by stewards at the inquiry asking whether he issued instructions to staff at Glenvale was “No, well, we’ve all got our job, we just know what we’re doing.”24 [94] I conclude there was no adequate supervision by MC of the staff at Glenvale. Similarly there was no supervision of MC and therefore the staff at Glenvale by Currie. [95] In respect of the administration of Boost paste, more was needed than simply writing a note in the front of the treatment book about recommended times of administration. [96] Even accepting that Currie’s attention at Clifton Park rather than Glenvale was necessary given the number of horses he trained, he could have exercised some supervisory control over Glenvale had he bothered. There was the CCTV footage always available. At the stewards’ enquiry he conceded, after being shown CCTV footage, that it was only then that “…I’ve seen what is going on.”25 He had not bothered to look at the footage before that. [97] By the complete abnegation of responsibility for staff compliance with the administration regime required by the Rules of Racing, I conclude that Currie may be said to have caused the administration of medicine to horses on the race day of the 7th within the meaning of AR.178E(1). Penalty [98] By AR.196(5) there is a mandatory penalty of six months’ minimum disqualification unless there is a finding that special circumstances exist. [99] At the time of the offence Currie was one of Queensland’s leading trainers and a very experienced trainer. He should have been well aware of the Rules of Racing including AR.178E(1). He has not breached the rule before. [100] The charge is serious. Any breach of AR.178E(1) detrimentally affects the integrity of the thoroughbred racing industry. [101] MC was similarly charged with breaches of AR.178E(1) arising out of the same incidents at Glenvale and was initially disqualified as a trainer for a period totalling 21 Agreed Bundle Page 1158 Line 45. 22 Agreed Bundle Page 763 Line 1. 23 Agreed Bundle Page 799 L44. 24 Agreed bundle Page 781 Line 21. 25 Agreed bundle Page 851 Line 13. -- 13 of 15 -- 14 two years. He applied for external review to the Tribunal and during the course of the review the matter was returned to QIRC for reconsideration. In result he pleaded guilty to one charge of causing the administration of a medication to horses on 24 March 2018 on the day they raced and to one charge of causing the administration of a medication to horses on 7 April 2018. [102] He was suspended for 12 months in respect of each charge, wholly suspended for 12 months, and fined $7,500. [103] Britnell was disqualified for two years. His culpability under AR.178E(1) is clear. [104] Schwenke was charged under AR.178E(1) and received a disqualification of three months. [105] I am not privy to the special circumstances relied on whereby MC and Schwenke received less than the minimum disqualification period set for AR.178E(1) of six months. A lesser period of disqualification than six months could only be given if special circumstances existed.26 [106] I am urged to take the imposition of those reduced penalties into account here given MC and Schwenke were both on-site and by proximity far more closely linked with the actual commission of the breaches of AR.178E(1) than Currie. [107] I am also referred to a number of other penalty decisions involving breaches of AR.178AA which it is submitted is analogous to a breach of AR.178E(1). The penalties there ranged from fines of $2,500 to $5,000. Under the Rules of Racing however, AR.178AA does not warrant a minimum disqualification period as does AR.178E(1). [108] There appear to be no comparable Tribunal decisions on penalty. [109] The High Court said concerning comparable penalties in Barbaro v The Queen:27 …in seeking consistency sentencing judges must have regard to what has been done in other cases. Those other cases may well establish a range of sentences which have been imposed. But that history does not establish that the sentences which have been imposed mark the outer bounds of the permissible discretion. The history stands as a yardstick against which to examine a proposed sentence.28 [110] The final penalties imposed on MC and Schwenke for the offences under AR.178E(1) were less than the prescribed minimum. I note them but I do not regard them as establishing any sort of benchmark without knowing why they were so reduced. [111] The causation offences are more serious than the presentation offences and that is reflected in the fixed minimum terms for the former. The minimum fixed penalties suggest the breaches they target are to be strongly disincentivised and emphatically discouraged. [112] Maxwell P said as much in Kavanagh when discussing administration offences under the equivalent Victorian Rules of Racing: 26 AR.196(5). 27 [2014] HCA 2; (2014) 253 CLR 58. 28 Ibid, [41]. -- 14 of 15 -- 15 Several points may be made about these provisions. First, the fixing of such substantial, mandatory penalties conveys in the clearest terms how seriously the drafters of the rules viewed the administration of prohibited substances. This clear policy is reinforced by the fact that the administration of any medication whatsoever on race day carries a mandatory six month disqualification.29 [113] And: 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.30 [114] I am unable to identify any special circumstances in this matter justifying less than the minimum period of disqualification under AR.178E(1). [115] I do not categorise Currie as someone free from blame, yet he does not fall into the same category as someone guilty of actual physical administration, such as Britnell, and therefore a like penalty is not called for. I take into consideration the time he has already spent under disqualification consequent on the order made in the internal review proceedings. [116] I conclude it is appropriate that he be given one mandatory minimum penalty for the three breaches of AR.178E(1) which occurred on 7 April 2018 of six months’ disqualification. His disqualification should apply from the time of the initial disqualification order made by the stewards on 20 May 2019. 29 Kavanagh, [38]. 30 Ibid, [45]. -- 15 of 15 --