Queensland Racing Integrity Commission - INTERNAL REVIEW DECISION (Internal Review ... · 2019. 3. 5. · Queensland Racing Integrity Commission, Internal Review Decision 0061-18

Queensland Racing Integrity Commission, Internal Review Decision 0061-18 1

INTERNAL REVIEW DECISION (Internal Review Decision Notice in response to an Application for Internal Review)

PART 1: Details of Internal Review

Internal Review Number: Internal Review 0061-18

Applicant’s Name: John Pointon

PART 2: Decision History

Original Decision: Breach of Rule 118 of the Local Rules (Thoroughbred Racing)

Original Decision Makers: L Collins, J Williamson, M Heath

Date of Original Decision: 14 June 2018

Internal Review Decision:

Original decision on charge confirmed, original decision on penalty amended

- Six (6) month suspension with four (4) months to be wholly suspended for

a period of two (2) years

Internal Adjudicator: Mr Kane Ashby, Queensland Racing Integrity Commission

Date of Internal Review Decision: 12 July 2018

PART 3: Summary of Internal Review Application

The Applicant, Mr John Pointon trainer of RAUNCHY WOMAN when it presented to trial at the Rockhampton Jockey

Club on 27 October 2017, was charged under Rule 118 of the Local Rules (Thoroughbred Racing) and was

subsequently found guilty of the charge at a stewards’ inquiry conducted on 14 June 2018 when a post-trial urine

sample taken from RAUNCHY WOMAN was found to contain a prohibited substance, namely Cobalt in excess of the

permissible threshold as prescribed under Australian Rule of Racing 178C(1)(l).

Rule 118 of the Local Rules (Thoroughbred Racing) states:

“Where a horse is brought to a racecourse or recognised training track to engage in an official trial and a prohibited

substance is detected in any sample taken from it either prior to or following the official trial, the trainer or any other

person who was in charge of the horse at the relevant time may be penalised.”

The specifics of the charge being that the Applicant, as the trainer of RAUNCHY WOMAN, did present that horse to

trial at the Rockhampton Jockey Club on 27 October 2017 when a post-trial urine sample taken from RAUNCHY

WOMAN was found, upon analysis, to contain a prohibited substance, namely Cobalt above the permissible threshold

as prescribed under the Australian Rules of Racing.

The Applicant pleaded not guilty to the charge based upon evidence tendered at the inquiry. The stewards, after

considering all of the Applicant’s evidence and submissions, found the Applicant guilty of the charge as specified.

When considering penalty, the stewards took into account the following:


- the circumstances and nature of the offence;

- the Applicant’s plea of not guilty;

- the length of time the Applicant has been involved in the racing industry;

- the Applicant’s good record over the period of time he has been involved in the racing industry;

- that the Applicant derives his income from the racing industry;

- the number of horses the Applicant has in work;

- the Applicant’s personal circumstances; and

- that the breach occurred in a barrier trial without the involvement of prizemoney or wagering.

The stewards subsequently suspended the Applicant’s licence for six (6) months to commence on 14 June 2018 and

to expire on 14 December 2018.

The Applicant sought a review on charge and penalty and filed the following submissions in support of his Application:

“Grounds:-

1. The decision to find me guilty was not fair nor reasonable based on the evidence that was presented by Stewards

and to Stewards at the Enquiry.

2. The decision to find me guilty was such that the Stewards failed to take into account all relevant matters in

respect to the prohibited substance.

3. The Stewards failed to publish grounds on which the taking of the sample was to be produced and this is subject

to a separate submission and which was part of the exhibits.

4. The taking of the sample for analysis was not in accordance with any published procedure and even if it was in

accordance with procedure the sample was contaminated.

5. The evidence of Derek Major was also ignored and it ought not to have been ignored by Stewards in reaching

the findings.

6. I ought to have been permitted to be represented in these proceedings given the disabilities that I raised

and that I had in conducting hearings of this nature.

Penalty:-

1. The penalty imposed was excessive having regard to all of the circumstances and my history.

ENQUIRY IN RESPECT OF RAUNCHY WOMAN

1. Barrier trials - 27 October, 2017.

2. Positive to Cobalt.

3. Two year old filly.

4. Filly ran fourth in the trial.


5. Filly obtained Barrier Certificate.

6. There is no way that this horse was fed by John Pointon any substance that contained Cobalt and there is no

way that the horse ought to have swabbed positive to Cobalt.

7. There are grave concerns about the fact that John Pointon's Stables had been target of a disgruntled trainer.

8. Attached is a timeline of events which causes grave concern.

End April 2017 John Parker ends trainer's lease on his stables

6 May 2017 Horse "Annmarie" owned by John Parker is transferred to John Pointon's name.

27 - 29 July 2017 John Hackett approaches John Parker and John Pointon in Townsville at races to meet him at

servo to give information

Date to be confirmed Josh Elliot and John Hackett (stewards) visited John Parkers stables to access drug cabinet

that trainer left behind. Trainer was called to stables to view opening of cabinet and answer

questions. John Parker was told there would be no retribution on him or stable connections

and to call stewards for help if there was.

5 September 2017 John Parker takes a share in filly "Cardinski", trained and co-owned by John Pointon.

10 October 2017 John Parker takes a share in gelding "infantry", trained and co-owned by John Pointon.

27 October 2017 2yo filly Raunchy Woman has first barrier trial. Finishes 4th out of 5, and is beaten 10.9 lengths.

Receives barrier certificate. Stewards swab for cobalt.

7 December 2017 Stewards Luke Collins and Myles Heath visit John Pointon's stables to give notification of

irregular swab on Raunchy Woman.

8 December 2017 John Pointon and John Parker contact QRIC stewards (Josh Elliot and John Hackett) to notify

them of the concerns regarding a positive in a filly that did not have a barrier certificate, and the

fact that many of the horses in the stable had improved over a period of time coincident with the

barrier trial. Those same horses had recently gone off. Josh Elliot believed that the situation

sounded suspicious and suggested testing the whole stable. Luke Collins (steward) suggested that

it was simply poor management and no testing was needed.

18 December 2017 Stewards John Hackett and Simon Fletcher visit John Pointon's stables and discuss the irregular swab

John Hackett is reminded that he said that he would help if there were any repercussions from the help

provided to stewards by John Parker and John Pointon. John Hackett says that there is nothing they

can do, and they will not test other horses in the stable. If we want them tested it is up to us to do so.


19 December2017 John Pointon overhears John Hackett telling John Manzelmann (trainer) not to worry, that they were going

to help him (the day after they refused to help us)

26 December 2017 Receive notification that B sample is irregular.

9 January 2018 John Manzelmann told Stan Johnson that he had 2 positives for caffeine and he didn't know

where they were coiling from. Racing Qld were at Mackay races swabbing his horses to try to

help him find the extent of the problem.

25 January 2018 John Pointon notified by email that there was a case and he had a choice of pleading guilty or going to

inquiry.

12 February 2018 Luke Collins confirms by email that John Pointon has notified his office that he will be available for an

inquiry.

13 March 2018 John Pointon notified by phone that inquiry would be next Thursday, and by email that inquiry would be

Thursday 28 March 2018 at Rockhampton. He was notified by phone that the stewards present would be

Daniel Aurisch from Brisbane, Luke Collins from Rockhampton, and Myles Heath (cadet) from

Rockhampton.

26 March 2018 Luke Collins informed John Pointon by phone that Daniel Aurisch would no longer be attending,

and it would just be Luke Collins and Myles Heath hearing the inquiry.

9. Any aspect of this time line can be further explained.

10. As has been expressed previously there was significant concern about whether the stable was being targeted. That is a serious

issue that needs to be addressed by Stewards on this hearing as it was properly raised and not acted on by Stewards.

Personal Particulars

11. John Pointon has been training for approximately 48 years with no positives or supervision.

12. That is an exemplary record and certainly one that Stewards should have regard to particularly when you view this

matter that it was an official trial to try and get this filly passed fit to race.

13. There is no basis and no reasonable basis to suggest that anyone would bother feeding Cobalt at excess levels to an

animal in these circumstances.

The Sampling & Testing Procedure

14. The failure to publish the method of collection and the testing regime of samples is also a deficiency in this

whole process and a deficiency having regard to the requirements of the Racing Act.

(a) The Racing Queensland website had published the following:


"Information previously related to Stewarding and integrity such as Vet Guidelines, the Racing Disciplinary

Board, banned substances, stewards reports, first level appeals, horse movement; sample collection,

betting, and approved racing gear, etc. can be found on the QRIC website."

Clearly a review of QRIC website dos not make those policies available to the public but More importantly

to Licensees. Licensees must have complete access to these procedures so that they can be clear about

these procedures.

(b) The Act specifies as follows:

100

(1) The main purpose of this chapter is to provide for the way a control body may perform its functions of

managing its code of racing.

(2) Generally, the control body performs its function by –

(a) making policies about the management of its code of racing...

(b) making rules of racing; and

(c) giving directions.

(3) A control body's policies ensure there is guidance for persons involved in the code of racing and

transparent decision-making relating to matters dealt with by the policies.

101 Policies and rules of racing are statutory instruments

The policies and rules of racing made by a control body for its code of racing are statutory instruments within the

meaning of the Statutory instruments Act 1992.

Part 2 Policies

Division 1 [omitted]

102 Policy for code of racing

(1) A control body may make a policy for a code of racing because -

(a) …..

(b) The control body believes it is good management to have the policy.

103 Form of each policy

(2) A control body makes a policy when the policy is entered into the control body's minutes as having been

made by it.

104 Availability of policies

A control body must ensure that its policies are publicly available.

Without limiting subsection (1), for each of its policies, the control body must -


(a) give a copy of the policy to the chief executive within 14 days after its makes the policy; and

(b) make the policy available for inspection, free of charge, at its business address during its ordinary office

hours and on its website; and

(c) give a copy of the policy to a person if the person asks for a copy.

(c) To suggest that the Standard Operating Procedures are intended for internal use only shows quite clearly that the

Policies and Procedures and in particular the Standard Operating Procedures are being kept secretive by QRIC. That is

a complete contradiction of the Act.

(d) Flow can anyone have faith in the Procedures if the Standard Operating Procedures are not provided and not

published.

(e) it also occurs to us that the Standard Operating Procedures must have been adopted by QRIC and there must

have been some record made by QRIC of the adoption of those Procedures.

(f) It is requested that you provide any documentation that relates to adopting the Standard Operating Procedure that

you have referred to and which you have provided.

(g) Another matter that is really important in terms of QRIC's Policies and Procedures is that Protocol A, which is

relevant in this matter, has noted on it at the bottom of the page "QRIC/2016/3055 Version 1".

(h) We request that the documents adopting the Policy and Procedure be provided.

(i) It is also noted on page 20 that the version history is shown on that page and as of 30 June 2016, version 0.01 is said

to be authored by Karen Caldwell from the Racing Science Centre and contributing authors are shown as:

Dr Martin Lenz

Dr Gemma Silvestri

Dr Vivienne Fisher

Dr Bruce Young

Mr Simon Stephens

Mr Alan Davey

Mr Jamie Dart

it is then said to be endorsed by Alan Davey, Racing Integrity Advisor.

(j) Again, those documents adopting the Policy arid Procedure have not been provided and should be made publicly

available.

(k) The next issue is that you require the trainer or the trainer's representative who takes the horse for the swab

analysis to sign the sample security document for taking a sample for analysis (Protocol A).

(l) In this case, as in every case, the person present for the swab needs to confirm that they witnessed the whole process

of collecting the sample, placing it in one or more containers and sealing the container/s.


(m)Surely QRIC want people to be familiar with its Policies and Procedures and the persons should not be required

to sign a document (Protocol A) if the Policies and Procedures are not published to those who are being asked to

sign documents. That is completely unfair.

(n) It is also noted on a review of the Standard Operating Procedures referred to above that there are various warnings in

relation to persons who come in close proximity to animals and biological materials and there is also a warning about the

Hendra virus. Surely QRIC is not going to conceal such important matters from trainers and their workers.

(o) Surely QRIC must ask itself is it fair that we only warn our collective people of the dangers/concerns that can

arise. We submit that no further comment is required on how serious the Hendra virus needs to be treated by QRIC.

(p) The collection officer needs to be authorised by the Commissioner to collect samples or things as required by

section 6.

(q) If that is not published as to who are authorised persons, how is a trainer or employee of the trainer to know

whether the person is an authorised collection officer.

(r) Likewise, it refers to authorised officer as a person appointed by the Commissioner as an authorised officer.

(s) if that is not published, how is a person to know whether the person they are dealing with is an authorised officer.

(t) We then draw your attention to section 7 which deals with procedure and the collection protocols and then

traceable sampling equipment.

(u) Surely any fair reading of section 7 is something that ought to be published to those who are licensed and who

are subject to this procedure.

(v) We draw your attention to section 7.4 which is the Management of the Sampling Process and Facility. There are parts

of 7.4.1 that clearly require the Stewards to advise the person who they are dealing with of their requirements. To suggest

again that those requirements are not available for public scrutiny just demonstrates how inadequate the process is if you

are suggesting that the Protocols and the Sampling Procedure is not and will not be made available to licensees and their

employees.

(w) lf you then go to section 7.5 Collecting Samples under Protocol A, we draw your attention to section 7.5.2(b)

which specifically provides "Show the person in charge of the licensed/registered animal that the plastic bag

containing the sampling equipment is intact".

Section 7.5.2(j) provides "Complete the Security Document. The person in charge of the licensed/registered animal

signs to acknowledge that they have witnessed the collection and packing of the sample and is given the pink copy

of the completed Security Document'.

(x) Again, those two paragraphs highlight that a person who is dealing with a collection officer needs to know that

what they are doing is correct but more to the point they need to know what is the Protocol/Policy so that they can

confirm that the Protocol/Policy is being followed, Surely you do not expect someone to sign off on a document when

you have not published your own Policies and Procedures.

(y) As you are aware, the Policy then goes into the "mechanics" of how to collect the urine samples. Again, why

would QRIC not want this to be publicly available as part of its Policies and Procedures?


(z) We hope that our reference to the above document makes it abundantly clear that the Policy and Procedure

should be available and freely available to those who are subjected to the procedures and it should be available on

the -website and freely available to anyone who asks for copies.

(aa) Surely there is nothing to hide in this Policy and Procedure and as previously stated in other matters, this Policy

and Procedure seems to have been adopted from the Racing Science Centre Policy and Procedure.

15. These are serious issues in respect of the collection and analysis of samples because it deals with persons'

livelihoods and they need to be followed to the letter of the law. Near enough is simply not good enough.”

The outcome sought by the Applicant was that the Applicant be found not guilty of the charge.

PART 4: Reasons for Internal Review Decision

The Applicant, Mr John Pointon, was the trainer of RAUNCHY WOMAN when it presented for an official trial at the

Rockhampton Jockey Club on 27 October 2017. A post-trial urine sample collected from RAUNCHY WOMAN was

subsequently analysed by the Racing Science Centre (RSC) and Racing Analytical Services Limited (RASL) which

reported the sample was shown to contain Cobalt in excess of the regulatory threshold pursuant to Australian Rule

of Racing 178C(1)(I) at 100 micrograms per litre in urine (mcg/L). The aforementioned Accredited Racing

Laboratories each reported Cobalt at 137mcg/L and 131mcg/L respectively.1

The Cobalt threshold was reduced from 200mcg/L to 100mcg/L in September 2016 as per Rule 178C(1)(l) of the

Australian Rules of Racing.

The aforementioned trial was an ‘Official Trial’ as defined under the Australian Rules of Racing. RAUNCHY WOMAN

was trialing to obtain a barrier certificate.

For reference, the definition of ‘Official Trial’ under the Australian Rules of Racing states:

“Official Trial” means a trial:

(a) that is approved and advertised by the Principal Racing Authority,

(b) that is conducted in accordance with the conditions set by the Principal Racing Authority;

(c) that is supervised by the Stewards; and

(d) for which official entries are taken and results are officially recorded.

During the stewards’ inquiry conducted on 14 May 2018, the Applicant pleaded not guilty to the aforementioned

charge pursuant to Local Rule 118 and, when questioned as to any defence for such plea, the Applicant stated “I

believe that there are a number of circumstances. We have discovered that there is 40 kilometres from Rockhampton

there is a registered cobalt/nickel mine, and we believe that during the flood our bore water was under - our bore was

under water for at least 10 to 12 days, and we believe that the water from the cobalt mine - which is a registered mine

- came down the Fitzroy and came straight across to us. We believe that that is one of the reasons why she may

have had it in her system.”

1 Exhibit 6 and 13


The Applicant added “Also when we received the notification of the swab, it was six weeks later and we had no -

there was no way we could test any feed because we probably - we have gone through probably - approximately 4

tonne at least. We are in the process of trying to get information from Riverina as to that batch number. Whether we

- whether we can get some information from that. Because that filly was a prolific drinker, we believe that if that was

the case she has probably received a lot of cobalt from that. There has been some bore water tested in Rockhampton

by the officials, and as said 10 litres of water contains 1.7 milligrams, 100 litres contains 17 milligrams of cobalt.”2

The inquiry heard RAUNCHY WOMAN allegedly exhibits a syndrome called psychogenic polydysphagia - commonly

known in the industry as a bed wetter. The Applicant stated “That particular horse drinks an abnormal amount of

water, and they call them bed wetters because they drink an abnormal amount of water and the stable gets wet.” The

Applicant added “We have those blue plastic 44s, and we cut them in half. So that's, what, a hundred litres if you feel

it right to the top. I would estimate that when she was really drinking water and bedwetting, it would have been - she

would drink three parts of one of those of a daytime.” In response to a question “So who has determined that this

horse is a bed wetter?” to which the Applicant replied “Well, we have, but we spoke to our veterinarian (Dr Brad

Johnson) and he said that is what they class them as - a bed wetter.” The Applicant was further questioned “Okay.

But he (Dr Johnson) hasn't - he hasn't seen it for himself?” to which the Applicant replied “No.”3

The Applicant stated “We have taken bore water tests. We have taken bore water out and we want - we want to let it

stand for a couple of days, and then we want to take it again. So we are not just going to take it on the one day.

Apparently the Water Board around here has taken tests on numerous bores in this valley, and they have tested

cobalt - high levels of cobalt. And that water from that nickel mine and cobalt mine would come straight - would run

straight into the river, and when it flooded we would - we would get the first lot of the water to come through our place.

It comes straight through - it comes off Nine Mile Road there and comes straight through that lagoon and comes

straight through our place.” In response to a question “So when are we are talking - the mine and your property

flooded last? So that would be April 2017? Just before the Capricorn Yearling Sales last year?” to which the Applicant

replied “Yes.” In response to a further question “And your bore, it is alleged it is contaminated with this water? From

that point through to this - when the sample was taken that the contamination is in the bore water?” to which the

Applicant replied “We believe, yes. It may be - who knows. We don't know, but if the water - if the cobalt went down

the bore, it's obviously going to soak into the whole of the property and all around the area, and that stream would

be still sucking it out. As to what level it is now we don't know, but we know that there are several bores around that

have levels of cobalt in them.”4 The inquiry heard all horses on the Applicant’s property drink the bore water. In

response to a question “So bore water is provided to all of your horses, be it broodmares, be it quarter horses, be it

racehorses?” the Applicant replied “Yes. Everyone gets the - it's out of the bore water. It's the only water we have to

(inaudible) that.”5 The Applicant added all racehorses in the stable receive the same feeding regime stating “All get

the Riverina (Riverina Racehorse Performance Blend), all get the same water, all get the same chaff.”6

2 Transcript of Stewards’ Inquiry dated 14 May 2018, page 4 and 5 3 Transcript of Stewards’ Inquiry dated 14 May 2018, page 9, 10, 18 and 19 4 Transcript of Stewards’ Inquiry dated 14 May 2018, page 12 and 13 5 Transcript of Stewards’ Inquiry dated 14 May 2018, page 9 6 Transcript of Stewards’ Inquiry dated 14 May 2018, page 10 and 11


The inquiry heard the cobalt/nickel mine is approximately 40km north north-west of Rockhampton with a population

of 59,000. The Applicant was questioned how far his property was from Rockhampton, to which the Applicant stated

“Would only be probably 4 k. It takes - it takes 17 minutes from when we drive out of our gate to the race track.” In

response to a question “Well, that's more than 4 kilometres?” the Applicant replied “Yeah, but as the crow flies.”7

The stewards conducted a stable inspection of the Applicant’s licensed premises on 7 December 2017 at 36 Fogarty

Road, Fairy Bower, for the purpose of informing the Applicant of the irregularity in the subject urine sample. A further

stable inspection of the Applicant’s licensed premises was conducted on 18 December 2017. The inspection reports

particular to the subject matter listed the substances and vitamins present during the respective inspections, which

included V.A.M - a substance that contains Cobalt.8

During the inspection, the stewards located Red Cap Solution (Beach Port Minerals) and the Applicant was

questioned about its use and stated “That wasn't to race horses; that was to all our outside broodmares and quarter

horses.” The Applicant was questioned “So racehorses never got it?” to which the Applicant replied “Racehorses

never got - never get it. If you put that in horses' feed they wouldn’t eat it anyway. But we put it in our broodmares'

water troughs, and it would be all - all the outside horses. Not all the outside horses either, but our broodmares got

it. But I wouldn't - I wouldn’t be sure that you would never put it in a racehorse feed and get them to eat it because

they wouldn't eat it.” In response to a question “But if you put it (Red Cap Solution) in the racehorses’ water what

would happen then? Would they drink that too?” the Applicant replied “Yeah, I guess they would. Well, I - that thirsty,

wouldn’t they, they’d have to.” The Applicant was further questioned “In the treatment book record provided that there

was no - there was no treatment administered or any substance administered (to any racehorse) of Beach Port

Minerals?” to which the Applicant replied “I don't believe that Beach Port is any help to - would be any help to a

racehorse. The only reason we feed it to broodmares is that they - it helps them eat dry roughage, and it improves

on the quality of their coat and that, but I fail to see how it would improve their ability. The same with cattle. If you - it

goes in the water in cattle and it will - it doesn't make them put on weight; it just makes them eat the dry roughage.”9

For reference ‘Red Caps’ manufacturers website, in part, states:

Benefits of Red Cap

Application flexibility - can be used in water supply or mixed with feed.

Key trace elements to aid in muscle protein, muscle strength and function, coat health and condition, growth

rate, reproduction, lactation and also the immune system.

Amino acids and electrolytes in the Red Cap help a horse’s recovery after strenuous exercise.

Target Analysis:

7 Transcript of Stewards’ Inquiry dated 14 May 2018, page 18 8 Exhibit 14 and 15 9 Transcript of Stewards’ Inquiry dated 14 May 2018, page 7 and 8


Every batch of Beachport Liquid Minerals product has an individual analysis by a NATA accredited Laboratory

available. The table below are the target analysis results. The essential elements target results table lists Cobalt at

3000 Mg/L.

During the inquiry, Ms Zoe Newman, Sample Collection Officer of the Queensland Racing Integrity Commission,

provided an affidavit that was read into evidence that was particular to the collection process for the sample the

subject of this review. The affidavit read:

“My name is Zoe Newman and I’m a Sample Collection Officer for the Queensland Racing Integrity Commission. On

Friday, 27 October 2017 I was the Sample Collection Officer working at the Rockhampton Jockey Club barrier trials.

My role is to collect urine samples both pre-and post trials and to also assist the vet when blood samples are required

to be collected.

I was required to take a urine swab sample from Raunchy Woman after it completed Trial 2. At this time the horse

was accompanied to the swab by licenced person Prue Howard. I was the QRIC representative that accompanied

Raunchy Woman from the enclosure until completion of the sample collection process. I asked Prue Howard to give

the horse a wash and drink from the hose before we started the swab collection process.

I then proceeded to start the swab collection process. At this time I directed Prue Howard to watch the process of the

swab from start to finish. I put gloves on and showed her that the swab kit was sealed and she agreed. I told Prue

Howard to watch me cut the sample kit open. Then I got the control sample bottle out of the kit and put the rest of the

kit down on the bench.

I then opened the control sample in front of Prue Howard and showed her that it was sealed and then proceeded to

pour the control into the pan and wash it all around the pan in front of her before then pouring it back into the bottle

and doing the lid up on it and putting it in the back pocket of my pants. So the control is with Miss Howard and myself

at all times.

Prue Howard then accompanied me into the swab box with Raunchy Woman where we then waited for the horse to

urinate. When the horse urinated, I collected the urine in the pan. I then asked Prue Howard to come out and watch

the rest of the sample process. I stood on an angle so Prue Howard had an unrestricted view of the entire process.

I put the pan onto the bench and removed the control sample from my back pocket, placing it on the bench also. I

proceeded to open the remaining 2 bottles and rinse them with the control sample, placing the lid on the last bottle,

which now holds the original control sample, and pour urine into the other two and put lids on them.

When the lids were sealed on the bottles, I showed Prue Howard all the numbers on the sample bag, paperwork and

tamperproof stickers. I asked her to view the numbers and ensure that she was happy that the numbers matched.

After she looked at these I asked her if she was happy. They matched, in which she answered, "Yes".

After running the paperwork, matched the kits and tamperproof stickers, I placed the tamperproof stickers on all

bottles in full view of Prue Howard. When this was completed I filled out the front of the sample bag which contained

the control body, the date, the sample taken and sex of the animal. Following this I put the sealed bottles inside the

bag and sealed it.


When the bag was sealed, I lifted the bag from the bench to show Prue Howard both sides of the bag once again to

view it was sealed completely. I again asked Prue Howard, "Are you happy the bag is sealed", in which she replied,

"Yes". I filled the paperwork out in front of Prue Howard. When I completed all the paperwork I asked her if she was

satisfied that I have completed the sample collection process correctly and she said, "Yes".

As Prue Howard agreed, I asked her to print her name on 11 and signature on 12. When the process was completed

I gave Prue Howard the pink copy of the paperwork and let her and the horse out of the swab box and thanked her

for her time.

I always follow sample procedure with all the animals - horses and greyhounds I swab. This is a procedure I was

taught and adhere to when I collect samples. On the rare occasion something arises that changes the normal

procedure I note it in my race book or trial sheet and also inform the race or trial day chief steward.”10

Ms Prue Howard, stable employee and partner of the Applicant, accompanied RAUNCHY WOMAN to the swab area

on the subject day. Ms Howard, in evidence, stated “In regard to the affidavit, the first thing was that after - Zoe said

after she showed me that the whole package was sealed - and you opened that in front of me, and then you talk the

kit back into the swab room while I stayed outside with the horse, and you took the kit inside and returned outside

with the control bottle and the pan, and you said to - that you showed me it was sealed and you asked me was I

happy? I have never been asked by any swab steward - any swab attendant to confirm it was sealed. I didn't even

realise it was sealed. I have never once been asked that. So that was a surprise when I saw that there. I have not

been asked ever if the bottle was - that I was happy that the bottle was sealed.” Ms Howard stated “I didn't see that

the control bottle was sealed. And I've never been asked about that in the past either.”11 Ms Howard confirmed Ms

Newman asked her to give RAUNCHY WOMAN a wash and drink from the on-course hose before the

commencement of the collection process.12

Ms Howard provided a version of statements and questions particular to the swabbing process on the subject day

stating “The swabbing process itself starts out in the open, so that - in the open air. In that area outside near the swab

box. Which is an alleyway from - between the tie-ups and - so the process is that you (Miss Newman) open the kit.

And wash out the pan in the open air. So the washing is done outside in the open air. So I was holding a horse that

had just raced. So once you had opened the bag in front of me, you took the kit back into the swab room. So once -

once you had opened the bag you took the kit back into the swab room. So then - so you come back to me with the

control bottle and the pan. And so while you are doing that the rest of the kit is in the swab room. So we are outside

and it's inside. So we have spoken about the fact that I don't - I didn't see that the control bottle was sealed. I've never

been asked about that in the past either. So you wash the pan out in the open, which is underneath the tree. In order

to wash out the pan you have to hold the bottle and the cap and the pan - the cap from the bottle and the pan. So

you give it a quick rinse. So you are having to hold all three things in two hands. So you then while holding all this get

the lid back on - so you've got - you have gloves on. It's all come out of a sealed environment and then it is stored in

your back pocket. Which has not been sealed or have gloves on or anything like that.

10 Exhibit 19 and Transcript of Stewards’ Inquiry dated 14 May 2018, page 21, 22 and 23 11 Transcript of Stewards’ Inquiry dated 14 May 2018, page 23 and 27 12 Transcript of Stewards’ Inquiry dated 14 May 2018, page 24


So I then went with you to the swab box to wait for the horse to urinate. So all the time that we were outside and then

we were in the swab box, the kit was in a different room. The rest of the kit was in a different room. So it was alone.

So anyone can come and go. So once the horse has urinated, we both entered the swab room. Rinsing the bottles

is done as a - a quick poor from one bottle into the other. Yes, it's very, very (inaudible). So you showed me the

numbers and asked me were they the same numbers that I saw outside.” Ms Newman disputed the sample numbers

being witnessed outside stating “No, no, no, no. I don't ask the numbers outside. Personally on this day, that is not

something I ask anyone to do because I don't believe I would remember the number and - I don't ask - Okay - but the

control sample I have in my pocket. The other two bottles are sealed, and I always crack the seal in front of you after

the horse has urinated inside.” Ms Howard added “So then - the last thing that I have was that I - I'm asked to sign

the document and I sign it because I'm told that this is the process even though I - I said in the past that I'm not happy

with it because it is done - the pan is carried around outside where there is dust underneath a tree with the potential

for it to be contaminated, and where the kit is kept separate to - it's no longer in my site so there is no continuity of

evidence.”13

In response to a question “Mrs Newman, on this particular day do you recall that the control bottle was not sealed?”

Ms Newman replied “No. It was sealed. I have never had one to this day that has not been sealed, and that is

something that I would note and I would (inaudible) Luke. I would put the sample completely out and get a new kit.”

In response to a question “Because if there is something wrong with the sample kit, or indeed the procedure, we can

then take a further sample. It might not be a urine sample; we might take a blood sample” Ms Newman replied “Yes”.

In response to a further question “And again you put gloves on prior to that before dealing with the sample?” Ms

Newman replied “Yes. I always pick up my gloves, put them on and then open the bag.”14

During the stewards’ inquiry conducted on 14 June 2018, the Applicant submitted analysis reports on tests of the

bore and horse pool conducted by Eurofins. The analysis report dated 17 May 2018 demonstrates one bore detected

Cobalt at <0.001mg/L.15 The analysis report dated 1 June 2018 demonstrates a second bore detected Cobalt at

0.010mg/L and the horse pool at 0.002mg/L.16

The Applicant submitted a letter dated 6 June 2018 from ‘Rocky Feed and Seed’ which stated:

“John Pointon, a long-time customer, has been using Riverina Racehorse Blend for approximately two years. He

purchases an average of 16 bags weekly which we deliver to him. We have contacted Riverina about sample testing

but they informed us the samples of their batches of feed are only kept for three months.”17

Dr Karen Caldwell, Acting Manager of Veterinary Services, Racing Science Centre, provided evidence particular to

the alleged consumption of water RAUNCHY WOMAN consumed and the sampling collection process. Dr Caldwell

stated “It’s certainly not what you’d consider a normal intake for a horse. You’d expect a horse ordinarily to drink

maybe 25 litres. Of course, and I have, you know, read the proposition at the previous sitting of this inquiry that horses

can be subject to various conditions which can increase their drinking with a variety of causes potentially.

13 Transcript of Stewards’ Inquiry dated 14 May 2018, page 24 to 30 14 Transcript of Stewards’ Inquiry dated 14 May 2018, page 33 15 Exhibit 21 16 Exhibit 22 17 Exhibit 23


But certainly an intake of that sort of volume, you would be looking for some sort of cause about it. It’s certainly in

excess of what you would consider a normal horse would consume.”18

In response to a question “Would you say the figures of 160 to 200 litres a day, would that be physically possible for

a horse to actually drink that much?” Dr Caldwell replied “Oh, look, there would be disorders where horses for

whatever reason drink more than the range. It’s certainly, I would think, getting up towards the upper range. But I

don’t think you could say it’s impossible. Like, by definition, those syndromes represent abnormal consumption.” In

response to a question “Would you expect that a horse drinking 160 litres to 200 litres a day would be in any way

competitive in an official trial?” Dr Caldwell replied “Oh, look, I guess that’s going to depend somewhat on when it’s

drunk the water, obviously. If it’s had a massive bellyful of water prior to performing, that would tend to suggest you

would have a reduction in performance. And, as I say, I think that the evidence was 160 litres, which is - you know,

we’re talking about 200. Well, that’s certainly getting very much to be an outlier level consumption. I mean, you know,

certainly the literature speaks of, you know, six times a normal amount of fluid. So, you know, you can get into - into

the territory of a lot of fluid being consumed. Exactly at what point that starts to be inconsistent with being able to

perform.”

In response to a question “Obviously you’ve had - you have knowledge of cobalt literature and so on in regard to

testing that’s been done. Do you have knowledge of what’s a normal amount of cobalt to be in normal drinking water?”

Dr Caldwell replied “Ah, look, no. I believe that it’s a very small amount. And, you know, an example of that is that

the control solution that we use is filtered water and that comes from the water supply in Brisbane. It goes through a

series of filters but it is filtered drinking water in Brisbane. And, as we see in analysing numerous control solutions

that the amount found in that is generally not detectable at all by the equipment used. Very occasionally very small

amounts are detected, literally sitting just above the point where the instrument can see something but generally

below the level where it can actually put a number on it. So they’re minute to say the least.”19

Dr Caldwell was asked to comment on what impact the analysis of the bore water containing 0.010mg/L of Cobalt

would have on the Cobalt levels in the subject sample considering the quantity of water alleged to have been

consumed by the subject horse. Dr Caldwell stated “Um, look, again, it’s difficult to be definite about it. Absorption of

cobalt from the gastrointestinal tract is not particularly efficient so it doesn’t necessarily mean that the more you

consume orally, the higher your levels will be. There’s a plateauing off to some extent. But it also depends on over

what period of time that was consumed. I mean, certainly we have research work where supplements, for example,

have been given orally and we know that you can’t give enough, or you can’t consume enough cobalt orally to get

over the regulatory threshold, but that is possible. And if you take the highest level of cobalt in the water that’s tested

and multiply that out by the extreme amounts of water that this horse is purported to be drinking, then, look, potentially

that’s enough to get over the threshold. But, pardon me, it’s certainly not impossible. We then get to questions of

probability, I guess, as to, well, that water is drunk over a period of time or is it drunk only over a couple of separate

opportunities to drink? There are a lot of variables in there which make it difficult to answer that question definitively.”

18 Transcript of Stewards’ Inquiry dated 14 May 2018, page 55 19 Transcript of Stewards’ Inquiry dated 14 May 2018, page 60, 61 and 62


Dr Caldwell added “Against that is the fact that if you’re drinking that much water, the urine that you’re producing is

very, very dilute. And that will decrease the concentration of cobalt and everything else in your urine. And again quite

significantly. The greater the magnitude of water intake, the greater the magnitude of the dilution of the urine. So, in

the absence of any experimental work using these sorts of parameters, I just - I can’t say with any certainty whether

or not that’s reasonable or not.”20

Dr Caldwell’s evidence particular to the sample collection process stated “Look, it’s been collected in accordance

with procedure on how samples are to be collected, based on the information that Mrs Newman provided. I think,

namely, the two major points that were raised were the issue of whether the person witnessing the process should

be shown the seals on the bottles and also the question of whether or not that a pan being exposed to the environment

after the point at which it’s rinsed with the control is in effect a concern or not. Yeah, look, as far as the seals on the

bottles go, they are a component of the bottles that we source, and at the Racing Science Centre we put those bottles

together ourselves, so that’s a quality control aspect of our production of the bottles that those seals are activated, if

you like, when the cap goes on the bottle and the caps are actually put onto the bottles at the Racing Science Centre.

So, in that regard, I guess it’s not a requirement of the process that that is examined per se on-site, although there is

some obligation on a trained Sample Collection Official to use equipment which is suitable for the purpose of collecting

a sample, and that includes to ensure that the kit that they’re using is sealed and, to a lesser extent, that the bottles

are sealed as well. But, as I say, we look after the sealing of the bottles and then we seal those bottles within the

plastic bag that contains the kit. So, hence the emphasis on the plastic bag containing the kit being sealed rather

than the bottles themselves. And I guess in terms of whether that should be pointed out to a licensee, the easiest

way to explain the intention of the procedure, I guess, is perhaps to make an analogy to roadside breath-testing

where, you know, you see the officer take off the plastic from the tube that you’re going to be asked to blow into, but

you’re not asked to observe that that plastic wrapper was in fact intact before. So there’s a general principle that

you’re given the opportunity to watch all stages of the process. But the obligation to ensure that those bottle seals

are intact falls partly on the Sample Collection Official and partly on us at the Racing Science Centre in producing

those bottles in that manner. So, it’s there to be viewed but it’s not something that we’d expect licensees to check off

before the sample’s collected, if you like. The (collection) pan’s used throughout Australia. As I’m sure everybody in

the room is aware, it has been suggested that that’s a problem in terms of how samples are collected. Look, the

evidence just doesn’t suggest that. We look at a lot of control solutions, obviously, and there’s just no evidence that

the pans are leaking cobalt into samples to found that sort of concern.”21

In response to a question “I think it was made obvious that the process on this occasion, or on other occasions, has

commenced in the walkway outside the swab facility. In your experience, is there any issue with regard to exposure

to air or dust, having the procedure done that way?” Dr Caldwell replied “Well, no, and, look, that’s borne out also by

the fact that of the thousands and thousands of samples that are analysed, there just isn’t any science, any evidence

to suggest that that’s an issue. You know, we’re talking about a threshold here which requires a substantial exposure

to be breached and there just - you know, on any given day there is any number of horses tested for their cobalt

levels. They’ve all been out, exposed to the same, whatever conditions there are on a given day, however windy it

is, under the trees that are outside the swab stall at Rockhampton. You know - well, that’s the main point, I guess.

20 Transcript of Stewards’ Inquiry dated 14 May 2018, page 63 21 Transcript of Stewards’ Inquiry dated 14 May 2018, page 56 and 57


But there just isn’t any evidence to suggest that that’s in any way an issue. And, secondly, the process is designed

to be practical for the purpose for which it’s employed, which is to collect samples at a race meeting. So, we try to

draw a sensible and a reasonable balance in order to get these samples between races, to have people able to

conduct their business on a race day in a reasonable manner. We don’t want to have to say to people, “You have to

send two people to the swab stall, one to hold onto the horse and another one to witness the process.” You know,

these are just reasonable, practical considerations and I think that they make for a fit for purpose process.”22

In response to a further question “With regard to the kit being kept separate when a control’s being taken and Mrs

Newman and Ms Howard were with the horse in the swab box, that that kit was kept in the swab room rather than

the swab box with the persons and the horse. Is there any issue with regard to continuity of evidence, I think it was

termed?” Dr Caldwell replied “Yeah, look, I mean, yes, those bottles are out of sight of those persons. If the licensee

chooses to be in the stall with the horse, and that’s the benefit that we see in the process that as Mrs Newman’s

conducted it in that the seals on those bottles are then intact when she goes back to them, and again, it’s part of the

training. But if you go back to those bottles and those seals are not intact, well, that’s exactly the sort of thing that

you would be bringing to the attention of the stewards on the day. So, the way that she’s managed that again is just

a reasonable approach. For the practical purpose it’s not always feasible and probably not desirable for the Sample

Collection Official to attempt to hold onto everything when they’re in a sampling box with a horse trying to collect a

sample. So, leaving those bottles in the swab room area and expecting those seals to be intact when you are ready

to go back to them is the preferred, or the reasonable means to conduct a sampling procedure in that way.”23

The reviewer acknowledges in the Internal Review of Currie v QRIC24 it was noted Queensland Racing’s ‘Collection

of Sample and Things’ SOP version 4.1 was superseded on 1 July 2016. This version was replaced with the

‘Collection of Sample and Things’ SOP Version 1. The current version in part states “The purpose of this procedure

is to describe the preferred process for collection of samples from registered/licensed racing animals and for the

taking of other things for analysis.”

The reviewer, having considered all of the evidence particular to the collection of the subject sample, finds there is

no direct evidence to support the Applicant’s submissions that the sample collection process was not in total

compliance with the preferred process outlined with in the SOP. The reviewer accepts the Applicant’s employee, Ms

Howard, signed the ‘Sample Security Document For Taking A Sample For Analysis’ acknowledging she witnessed

the whole process in collecting RAUNCHY WOMMAN’s post-trial urine sample (419566), placing it in one or more

containers and sealing the containers at the Rockhampton Jockey Club on 27 October 2017. There is no evidence

that Ms Howard or the Applicant raised any concerns at any relevant time (or on previous occasions as submitted by

Ms Howard) with the sampling collection procedures. The reviewer finds no evidence to determine that the integrity

of the sample’s collection procedures was compromised to any extent that would adversely affect the integrity or

analysis of the sample.

22 Transcript of Stewards’ Inquiry dated 14 May 2018, page 57 and 58 23 Transcript of Stewards’ Inquiry dated 14 May 2018, page 58 and 59 24 Internal Review Decision 0056-16 and Internal Review Decision 0003-17


The Applicants legal representative, Mr Peter Boyce, tendered a report from Dr Derek Major dated 13 May 2018

particular to the bore water, feed and environment as a potential defence to the elevated levels of Cobalt in RAUNCHY

WOMAN’s urine sample.25 The report, in part, states:

“Observations on this Case

• Cobalt is a (race element essential to life and is ubiquitous in the environment.

• There is mounting scientific evidence that cobalt in horses does NOT produce the speculated effects on red blood

cells or performance, or in fact have any effect at all.

• Urine is not the appropriate medium for the detection of cobalt misuse in the racing horse. Blood plasma

measurement is the only reliable way to assess a horse's exposure to cobalt.

• It is regrettable that due to the time elapsed prior to notification it is not feasible to conduct further tests on the blood,

urine and feed which might have helped elucidate the cause of the elevated urine cobalt level.

• On the information presented, the most likely explanation for this horse's urinary cobalt level is either:

Ingestion of cobalt salts in the feed or water OR

Sample contamination at the time of collection

Bore water

I have obtained records of bore water sampling in the Rockhampton district from Queensland Department of Natural

Resources Mines and Energy Ground Water Database (attached). From my reading bore water in the Rockhampton

district may contain up to 0.17 milligrams per litre of dissolved cobalt. This means that:

10 litres water contains 1.7 milligrams

100 litres water contains 17 milligrams

The filly's estimated daily water intake is 160 litres which equates to 27.2 milligrams of cobalt DAILY INTAKE. The

actual cobalt level in the water this filly is drinking is unknown at this point. If it approached these levels it would

represent around 50 times the recommended level of 0.5 milligrams per day and would be a significant factor in the

urine level reported in this filly. It is noteworthy that Mr Pointon's premises are located less than 40 kilometres from a

commercial cobalt mine and it is reasonable to suspect that elevated cobalt levels may be present in the soil and/or

ground water.

Feed

Actual feed levels of cobalt may well be significantly higher than the stated "minimum added" on the feed bag. In one

notable case involving the high profile and well respected jockey Ron Quinton the cobalt level was found to be 50

times the stated level (i.e. up to 28 milligrams per kilogram).

Environment

25 Exhibit 20


Cobalt is ubiquitous in the environment and it is reasonable to suspect that with its proximity to the commercial

reserves of cobalt in the mine there is an increased risk of environmental contamination of the collection vessel during

sample collection.”26

The reviewer acknowledges irrespective of the argument as to the effects of Cobalt being performance enhancing as

submitted by Dr Major, Cobalt is deemed a prohibited substance when levels exceed the regulatory threshold under

the Australian Rules of Racing. In this instance, the Applicant has presented RAUNCHY WOMAN to an official trial

with a prohibited substance present in its system, namely Cobalt at a level above the prescribed threshold, pursuant

to Australian Rule of Racing 178C(1)(l) and therefore is satisfied Cobalt is a prohibited substance for the purpose of

the respective Rules.

Professor Paul Mills submitted a report in a recent Cobalt Internal Review27 which was in conflict with Dr Major’s

report particular to the appropriate means to test Cobalt. Professor Mills’ report, in part, stated:

“Dr Major suggested that plasma was the more appropriate medium to measure cobalt concentrations in the horse.

The concern is that we are not looking at cobalt pharmacokinetics, but the probability that a urinary cobalt

concentration will exceed the threshold (-1 in 100 000 of exceeding 100 pg/L according to Professor Hibbert). There

are also noted concerns with longer term cobalt potentially sequestering in the red blood cells. Irrespective, urine was

the medium established according to the rules of racing and many thousands of horses have demonstrated that a

mean concentration of <10 is pg/L and well below the threshold.”

The reviewer notes that in investigations that involve some form of feed or supplementation contamination, generally

a pattern is formed whereby a series of horses from the stable test positive or unusually high levels to the relevant

substance, as in the case of Mr Ron Quinton. There is no evidence in the subject review that any form of feed or

supplement contamination was evident. The Applicant was feeding Riverina Racehorse Performance Blend, not

Barastoc Phar Lap feed as in the Quinton inquiry.

Dr John Vine (MSc PhD FRACI FAORC) in the Scott Internal Review28 stated:

“The initial threshold for cobalt (200mg/L) in equine urine was derived from statistical analysis of cobalt concentrations

in a population of post-race urine samples. The process requires the determination of the mean (average) urinary

cobalt concentrations in the population together with its standard deviation. This latter parameter is a measure of the

variance of the population data. That variance includes factors such as the amount of cobalt which has been fed or

administered to the horses and the variability of the way cobalt is absorbed, distributed, metabolised and excreted by

those horses - Racing thresholds are calculated by adding a multiple of the population standard deviation to the

population mean (after transformation to a normal distribution if necessary). The multiple used is chosen on the basis

that the calculated risk of a false-positive result is at a sufficiently low level so as to be fair to industry participants.

This approach has been used successfully and effectively in racing for many years both nationally and internationally

for a range of threshold substances.”

26 Exhibit 20 27 Internal Review Decision 0062-18 28 Internal Review Decision 0001-16


The reviewer accepts the population of post-race samples obtained to establish a Cobalt threshold was inclusive of

all states and territories. The initial Cobalt threshold was reduced from 200mcg/L to 100mcg/L in September 2016 as

per Rule 178C(1)(l) of the Australian Rules of Racing.

The reviewer notes the inquiry heard that between the commencement of the aforementioned floods in April 2017 up

until the 30 November 2017, the Applicant’s horses were sampled on seven (7) occasions. The sample results

demonstrated Cobalt levels of 7.9, 56.8, 22.5, 10 and 27.7mg/L.29 During the initial stewards’ inquiry conducted on

14 May 2018, the Applicant stated “The grey horse (INFANTRY) did show some signs (of bedwetting). He wasn't as

bad as the filly (RAUNCHY WOMAN), but he did show signs.” The reviewer notes INFANTRY’s Cobalt level during

this period returned a Cobalt reading of 27.9mg/L.

The Applicant’s complete submissions in defence of the charge are outlined in Part 3 of this decision.

The Applicants legal representative submitted “There are grave concerns about the fact that John Pointon's Stables

had been target of a disgruntled trainer.” The reviewer finds there is no direct or supportive evidence to substantiate

such claim.

The Applicant’s legal representative submitted “The failure to publish the method of collection and the testing regime

of samples is also a deficiency in this whole process and a deficiency having regard to the requirements of the Racing

Act.” The Applicant’s legal representative referred to sections 100 to 104 inclusive of the Racing Act.

The Applicant’s legal representative submitted “Another matter that is really important in terms of QRIC's Policies

and Procedures is that Protocol A, which is relevant in this matter, has noted on it at the bottom of the page

"QRIC~2016 of 3055 Version 1." The Applicant’s legal representative added “We request that the documents

adopting the Policy and Procedure be provided.”

The reviewer acknowledges such sections of the Racing Act and submissions in the subject matter were debated in

the Internal Review of Garland.30 In Garland, the QRIC’s Principal Legal Officer stated “I note in your correspondence

that you are relying upon the Racing Act (Qld), in particular Section 100 to Section 104, whereby you assert certain

policies and procedures should be made publicly available. I have considered your submissions and I am of the

opinion that your interpretation of the Racing Act 2002 (Qld) and its application to the Commissions internal policies

and procedures is wrong at law. The Commission is not the control body as referred to in the Racing Act and therefore

these sections have no application to the Commission.”31

The reviewer, having considered the Applicant’s submissions, accepts the evidence of QRIC’s legal officer and finds

the Standard Operating Procedure is intended for internal use only by the Commission and therefore is not required

to be published.

In weighing up the evidence, the reviewer finds there is no clinical diagnosis to confirm the Applicant’s evidence that

RAUNCHY WOMAN exhibited a syndrome called psychogenic polydysphagia - commonly known in the industry as

a bed wetter.

29 Exhibit 24 30 Internal Review Decision 0038-18 31 QRIC email correspondence to Butler McDermott Lawyers dated 7 December 2017


The reviewer further finds there is no direct evidence to determine RAUNCHY WOMAN consumes between 160 to

200 litres of water per day, other than the evidence provided by the Applicant. The reviewer acknowledges Dr

Caldwell’s evidence, in particular stating “Against that is the fact that if you’re drinking that much water, the urine that

you’re producing is very, very dilute. And that will decrease the concentration of cobalt and everything else in your

urine. And again quite significantly. The greater the magnitude of water intake, the greater the magnitude of the

dilution of the urine. So, in the absence of any experimental work using these sorts of parameters, I just - I can’t say

with any certainty whether or not that’s reasonable or not.”

The reviewer finds that between the commencement of the aforementioned floods in April 2017 and up until the 30

November 2017, the Applicant’s horses were sampled on seven (7) occasions. The sample results demonstrated

Cobalt levels of 7.9, 56.8, 22.5, 10 and 27.7mg/L.32 This is inclusive of a sample from INFANTRY that returned a

Cobalt reading of 27.9mg/L. This is important when considering the Applicant’s evidence that such horse also

demonstrated signs of bedwetting stating “The grey horse (INFANTRY) did show some signs (of bedwetting). He

wasn't as bad as the filly (RAUNCHY WOMAN), but he did show signs.”

The reviewer finds, considering the Applicant’s evidence that his feeding and supplement regime is consistent and

that all horses in the stable consume the same bore water, finds there are significant discrepancies in the level of

Cobalt in the sample the subject of this review and that of the aforementioned horses’ Cobalt levels, inclusive of

INFANTRY, which all fall well below the permitted threshold of 100mcg/L under the Australian Rules of Racing. The

reviewer acknowledges a reasonable inference drawn for the Cobalt levels of 137mcg/L and 131mcg/L in the subject

sample may be the administration of Cobalt or supplements containing Cobalt close to trial time.

The reviewer finds no direct evidence to support the samples collection process was not in total compliance with the

preferred process outlined in the SOP, and therefore is satisfied the integrity of the sample was not compromised to

any extent that would adversely affect the integrity or analysis of the sample. The reviewer, having considered the

extensive volume of evidence and taken into account the aforementioned factors, accepts the Applicant presented

RAUNCHY WOMAN to an official trial when a prohibited substance was present and accordingly finds the charge

proven.

The Applicant has held a trainers licence for an extended period of approximately 48 years. The Applicant’s

disciplinary history during such period is exemplary particular to any prohibited substance offence. The reviewer

notes there are no precedents particular to an offence pursuant to Local Rule 118. Cobalt precedents for a

‘presentation’ offence (to race) within the Queensland racing industry previously incurred a minimum penalty of a

twelve-month disqualification period. Notwithstanding, in some recent matters penalties of a nine month

disqualification period have been imposed with consideration to the relevant circumstances of individual cases, that

of Queensland Civil Administration Tribunal decisions, the entry of a guilty plea and an unblemished disciplinary

history on extended training careers.

The reviewer acknowledges the sample the subject of review was from an official trial and not a race meeting and

therefore accepts there is no benefit in securing any prizemoney or wagering on the subject matter.

32 Exhibit 24


Notwithstanding, the reviewer notes the Applicant in evidence stated “We usually have ready to run horses, too. We

have. But this time of year we usually have roughly between 8 and 10 ready to run horses. But because of this, this

year we haven’t bought any.” In response to a question “So you buy ones usually yourself, get them ready to run and

on-sell them” the Applicant replied “Yes.”33

In weighing up the matter of penalty, and taking into account the aforementioned factors, further consideration was

provided to the Applicant’s submissions and mitigating circumstances, the level of Cobalt detected, the fact the

subject sample was from an official trial and not a race, the Applicant’s personal circumstances, not-guilty plea and

in particular the Applicant’s exemplary disciplinary history over an extended period of time as a licensed trainer.

The reviewer finds each case is treated on its merits and set of circumstances and acknowledges there are no

precedents for a Cobalt offence pursuant to Local Rule 118. In carefully considering the matter of penalty and having

regard to the precedent penalties for a race day Cobalt presentation offence, and particularly taking into account the

subject sample was from an official trial and not a race-meeting and that of the Applicant’s exemplary disciplinary

history over an extended period of time, the reviewer finds the original penalty of a six (6) month suspension be

confirmed of which four (4) months of such penalty be suspended in accordance with the provisions of Australian

Rule of Racing 196(4) for a period of two (2) years on the condition the Applicant does not reoffend in that period.

For reference, Australian Rule of Racing 196(4) provides:

(4) Any person or body authorised by the Rules to penalise any person may in respect of any penalty imposed on a

person in relation to the conduct of a person, other than a period of disqualification or a warning off, suspend the

operation of that penalty either wholly or in part for a period not exceeding two years upon such terms and conditions

as they see fit.

PART 5: Review Rights following Internal Review Decision

In accordance with section 246 of the Racing Integrity Act 2016, as the applicant for an internal review of the original

decision, you are able to apply to the Queensland Civil and Administrative Tribunal (QCAT) for an external review of

the internal review decision.

An external review is commenced by lodging the appropriate forms with QCAT. In accordance with section 33 of the

Queensland Civil and Administrative Tribunal Act 2009, an application for an external review of an internal review

decision is to be made within 28 days from the day this internal review decision notice is provided to the applicant.

For further information regarding the processes for an external review of the decision, please contact QCAT:

Queensland Civil and Administrative Tribunal

Registry Location: Postal Address: Phone: Email:

Level 9, 259 Queen Street, BRISBANE QLD 4001 GPO Box 1639, BRISBANE QLD 4001 1300 753 228 [email protected]

33 Transcript of Stewards’ Inquiry dated 14 June 2018, page 69

mailto:[email protected]

Documents

Queensland Racing Integrity Commission - INTERNAL REVIEW DECISION (Internal Review ... · 2019. 3. 5. · Queensland Racing Integrity Commission, Internal Review Decision 0061-18