Doughty v Racing Queensland Limited [2012] QCAT 678

CITATION: Doughty v Racing Queensland Limited [2012] QCAT 678 PARTIES: Kelly Anne Doughty (Applicant) v Racing Queensland Limited (Respondent) APPLICATION NUMBER: OCR332-12 MATTER TYPE: Occupational regulation matters HEARING DATE: 5 December 2012 HEARD AT: Brisbane DECISION OF: Kate Buxton, Member Joanne Browne, Member DELIVERED ON: 20 December 2012 DELIVERED AT: Brisbane ORDERS MADE: The Respondent’s decision to penalise the Applicant under AR178 by the imposition of $4,000.00 fine is affirmed. CATCHWORDS: Racing – where the Applicant presented a horse which provided a positive sample containing the banned substance Isoxsuprine – where horse disqualified under AR177 as a result of the positive test to the prohibited substance – penalty imposed on Applicant trainer under AR178 – where Applicant submitted that the positive sample the result of cross- contamination – whether the Applicant established that she was not blameworthy – whether the imposition of a penalty of a $4,000.00 should be varied or set aside APPEARANCES and REPRESENTATION (if any): APPLICANT: Mrs Doughty represented by Mr Johnson of Johnsons Solicitors RESPONDENT: Racing Queensland Limited represented by Mr Wade Birch -- 1 of 6 -- 2 REASONS FOR DECISION [1] Mrs Doughty has, for many years, trained race horses and is the licensed trainer of the Black Superman. The Black Superman ran first in the QTIS 3 year old maiden handicap 1,100 metre race at the Gold Coast on 11 August 2012. Following the race a sample of urine was taken and tested for analysis. That sample contained the substance Isoxsuprine. Pursuant to AR177, the Black Superman was disqualified from the race due to the presence of the prohibited substance. [2] Following a Stewards‟ Inquiry, Mrs Doughty was penalised under AR178 as a result of the detection of the prohibited substance in a horse which she had trained. The Stewards imposed a $4,000.00 fine. It is against this decision that the Applicant seeks review. Offence of presenting the horse [3] Mrs Doughty invites this Tribunal to depart from the findings made by the Stewards at the Inquiry in two key ways: a) The Stewards ought to have found her without blame and, indeed, ought to have exercised their discretion not to impose a penalty. b) The presence of the prohibited substance was the result of contamination from, not administering of, the banned substance. [4] The purpose of this Application is not to determine whether the Stewards fell into error but to reach the correct and preferable decision. In coming to that decision the Tribunal must hear and decide the review by way of a fresh hearing on the merits.1 [5] Mrs Doughty has not been charged with the offence of administering a prohibited substance. Instead, she has been charged with a presenting offence. AR178 provides: „When any horse that has been brought to a race course for the purpose of engaging in a race and a prohibited substance is detected in any sample take from it prior to or following its running in any race, the trainer and any other person who is in charge of such horse at any relevant may be penalised.’ [6] Dr Squires, a veterinary surgeon, who, from time to time, treated horses trained by Mrs Doughty, gave evidence at the Stewards Inquiry, together with a letter containing further information which Dr Squires provided to the Stewards on 24 November 2012,2 to the effect that the Black Superman‟s positive test to Isoxsuprine was inadvertent and was due to stable contamination. He posed various reasons for that which relate to another horse in Mrs Doughty‟s stables, Kristron, being treated for a 1 QCAT Act, section 20. 2 Exhibit 20 to the Transcript of the Stewards‟ Inquiry. -- 2 of 6 -- 3 particular condition with a paste containing Isoxsuprine. He provides some supporting evidence as to the way in which Isoxsuprine may be transferred throughout a stable inadvertently and concludes the chain of contamination was „unknown‟. Dr Squires indicated that measures not present in Ms Doughty‟s stable could have avoided contamination. [7] The Stewards were not comfortably satisfied that the Black Superman‟s sample contained the banned substance as a result of contamination. The Stewards noted the evidence of Dr Squires, and also took into account the evidence that there was some distance between where the two horses were stabled and that they had never been in each other‟s box. The Stewards also noted that it was the trainer‟s duty to ensure that a horse was presented drug free. [8] It is the view of this Tribunal that the source of the prohibited substance is not determinative of whether or not Mrs Doughty is guilty of the offence. AR178 allows for a penalty to be applied if the prohibited substance is detected in the sample taken from the horse. The penalty “may”3 be applied whether that substance was present in the sample as a result of a deliberate act or inadvertence, whether with the knowledge of the trainer or without. The question of „blameworthiness‟ arises only in determining whether and to what extent a penalty is appropriate. [9] Mrs Doughty‟s solicitor submitted that the Stewards‟ Inquiry had miscarried because the Stewards had not exercised a discretion whether to penalise Mrs Doughty as a result of her contravention of AR178. He submitted that, as a result of this failure to exercise a discretion in circumstances where the relevant provision is permissive rather than mandatory, the Inquiry was a nullity and should be set aside. This review process allows an Applicant (on review) to make any submissions and to provide any evidence considered relevant to the Tribunal‟s function in coming to its own view. We do not accept the submission advanced on Mrs Doughty‟s behalf – even if the Stewards failed to turn their mind to the exercise of a discretion, such a failure would not impact upon this Tribunal‟s function in reaching the correct or preferable decision. [10] In any event, a review of the transcript of the Inquiry demonstrates the Inquiry being conducted in a fair and measured way insofar as Mrs Doughty was informed of the relevant provisions and given an opportunity to make her submissions in relation to them. The Stewards adjourned at relevant periods and returned to give their findings on the decision they were required to make. It is difficult to imagine what function the Stewards could have been exercising during these adjournments other than exercising the discretion in relation to both whether and to what extent a penalty should be applied. 3 AR178 is permissive, not mandatory. A penalty “may” be applied if the circumstances of the offence are made out. -- 3 of 6 -- 4 [11] On the basis of the evidence as a whole, it does seem likely that the Isoxsuprine was present in the horse‟s sample as a result of its application to another horse, in Mrs Doughty‟s stable (Kristron), of a medicine containing that substance. We accept, on the balance of probabilities, that this is the most likely factual scenario. It is submitted on behalf of Mrs Doughty that it follows (in circumstances where the Tribunal has formed this view) that she is not blameworthy and therefore ought not have any penalty, or ought have a significantly less severe penalty, applied to her. We do not accept this proposition. [12] It is the function of the trainer to ensure that the horse does not present with a prohibited substance and the function of AR178 is to penalise a trainer when, through act or omission, this has occurred. If Mrs Doughty runs a stable where contamination is allowed to occur she cannot be said to be without blame. She is the trainer responsible for the conduct of procedures within that stable including the administration of relevant medicines. The fact that Dr Squires indicates that measures could be taken, including the use of gloves whilst medicines are administered, and that those measures had not been taken by Mrs Doughty prior to the relevant presentation, indicates that responsibility should lie at the feet of Mrs Doughty. [13] It is therefore appropriate to apply a penalty to Mrs Doughty as a result of the presentation of the Black Superman with a banned substance on 11 August 2012. Penalty [14] The factors which the Stewards considered relevant in determining penalty did not include the circumstances of Mrs Doughty‟s horse having tested positive to a banned substance as a result of stable contamination. The mitigating factors which the Stewards did consider were as follows: a) Mrs Doughty is a trainer who has held that position for fifteen (15) years. b) Mrs Doughty employs six (6) staff. c) Mrs Doughty runs a family business and both she and her partner derive their sole income from the industry. d) Mrs Doughty runs a large stable and has numerous runners and those runners are swabbed regularly. This is the first breach in relation to presentation for a banned substance. e) Mrs Doughty was co-operative during the Inquiry. [15] The aggravating factors found relevant by the Stewards were: a) Mrs Doughty did not plead guilty to the charge. -- 4 of 6 -- 5 b) The horse raced at a major provincial meeting where large sums of money were wagered on the event. c) The seriousness of the rule. d) The effect of a positive test upon the image of horse racing. e) The duty of Racing Queensland to ensure that the integrity of the sport is maintained. [16] The Stewards clearly took into account Mrs Doughty‟s relevant history and circumstances together with the issues of general and specific deterrence. The issue of whether the horse‟s sample was positive as result of contamination rather than having been administered with the drug was not taken into account. [17] In both Wallace v Racing Queensland Limited4 and Dixon v Racing Queensland Limited5, the lack of blameworthiness was determined to be relevant to the issue of penalty. However, in each of those cases, the trainer had a genuine but mistaken belief as to a set of facts. Here, it is the omission of Mrs Doughty to ensure that contamination could not occur in her stable which lead to the horse presenting with a banned substance. This not a case where there was no explanation given for the presentation but it is also not a case where there is a lack of blameworthiness all together. This case falls in between those two instances. The explanation is a relevant factor which we do take into account in addition to the other positive and negative issues identified by the Stewards during the Inquiry. [18] It is the task of this Tribunal to reach a view about a penalty which is appropriate in all the circumstances. It is also desirable for this Tribunal to make decisions which are consistent, although it is trite (but bears re- statement) that no two cases are identical. A table of comparative decisions6 was presented on behalf of Racing Queensland Limited. Having regard to that list of comparable penalties and, in particular, the fact that many of these are now of historical interest and having regard to their age we must settle on a figure which strikes the proper balance between the mitigating factors and the general and specific deterring factors relevant in this case. [19] It is not appropriate to disqualify Mrs Doughty from training in circumstances where this is her first presentation in where she has otherwise, for the past fifteen (15) years, managed her stables in a way which has resulted in a previously unblemished record. A fine is the appropriate penalty and the fine must be sufficient as to deter both her and others but also at a level which takes into account those important 4 [2012] QDC 168 per his Honour Judge McGill. 5 [2012] QCAT 331. 6 Exhibit 5. -- 5 of 6 -- 6 mitigating factors which we have mentioned. This Tribunal is of the view that a fine of $4,000.00 is the appropriate penalty to be applied to Mrs Doughty in these circumstances. The Tribunal therefore affirms the Stewards‟ decision to impose a fine under AR178 in the sum of $4,000.00. -- 6 of 6 --