Microsoft word - pearce - reasons for decision

TASMANIAN RACING APPEAL BOARD

Appeal No 17 of 2009/10

Mr T Cox (Chairman)
Appellant:
Mr P Pearce
Ms K Cuthbertson
Mr G Elliott
Appearances:
Mr S Larkins for the stewards
National Greyhound
Rule 83 (3)
Launceston
Penalty:
A four (4) month
disqualification
1 April 2010
Dismissed
REASONS FOR DECISION
This is an appeal against the conviction and penalty imposed by the stewards against the appellant for presenting a greyhound nominated to compete in an event that was not free of any prohibited substance contrary to GAR 83(3) which provides: “The owner, trainer or person in charge of a greyhound presented contrary to sub-rule (2) shall be guilty of an offence”. “The owner, trainer or person in charge of a greyhound nominated to compete in an Event. shall present the greyhound free of any prohibited substance.” A prohibited substance is defined, relevantly, in GAR 1 as: “a substance defined by the following criteria or which falls within any of the groups of substances declared herein unless it is an exempted substance. any substance capable of affecting a greyhound by its action on the . cardiovascular system. any substance(s) specified in Schedules 1 to 9 inclusive of the Standard for the Uniform Scheduling of Drugs and Poisons (Commonwealth) as amended from time to time.” The penalty imposed by the stewards was one of disqualification of the appellant’s licence to train greyhounds for a period of four months. The greyhound, Go Maggie Go, was disqualified from the race in question under GAR 83(4). 5. The notice to appeal raised a single, though not particularly helpful, ground, namely: “I did not administer any (drug) to the greyhound and feel I am not guilty of the charge”. Background to the appeal

6.
On 26 January 2010 the appellant, Patrick John Pearce, presented a greyhound, Go Maggie Go, to compete in Race 5, the “Simon’s Carpet One, Grade 5” at the North West Greyhound Racing Club meeting. Go Maggie Go won the race. After the race, swabs were taken from the greyhound. Initial testing conducted by Racing Analytical Services Limited (RASL) of one of the samples taken from the greyhound revealed the presence of Sotalol. Sotalol is a drug which falls into a group of substances called beta-blockers. It is primarily intended for human use and affects the heart, and in particular, the way that it beats. It is usually prescribed to control irregular heartbeats. 7. Stewards advised the appellant of the result by a letter dated 18 February 2010. The appellant was also advised that a reserve portion of the sample taken from the grey hound was available for confirmatory testing. He was advised that he had the right to have, at his own expense, an analyst nominated by him present during the confirmatory testing of the reserve sample. The appellant confirmed that he declined to have an analyst nominated by him present at the testing of the reserve sample. The reserve sample was tested and confirmed the presence of Sotalol. A letter and Certificate of Analysis signed by Mr David Batty and dated 23 February 2010 was forwarded to stewards who then convened an inquiry. Stewards’ Inquiry 18 March 2010
9.
The stewards heard evidence from the appellant and Dr John Howard Vine, the Laboratory Director of RASL. They also received the following exhibits: Letter from David Batty dated 17 February 2010 regarding RASL’s initial finding. Certificate of Analysis dated 17 February 2010 stating that a urine sample was shown to contain Sotalol. Letter sent by stewards to the appellant dated 18 February 2010 outlining the result of the initial testing and his rights regarding the confirmatory testing. Letter from David Batty dated 23 February 2010 regarding the results of the confirmatory testing of the samples. Certificate of Analysis dated 23 February 2010 confirming the presence of Sotalol in the urine sample and that Sotalol was not detected in the control sample. Letter sent by stewards to the appellant dated 25 February 2010 regarding the results of the confirmatory testing and requiring the appellant to attend an inquiry. A copy of the Sample Identity Document signed by the appellant, Mr Frank Bates and Dr Margaret Van der Weg relating to the sample taken from Go Maggie Go on 26 January 2010. A report from RASL regarding the testing of the samples. A letter from Greg Fahey to the stewards dated 17 March 2010 regarding the appellant’s character. Stewards also had regard to information brought to the inquiry by the appellant which consisted of printouts of information from MIMS and the Australian Medical Association regarding Sotalol. 11. The inquiry heard that samples were taken from Go Maggie Go following the race on 26 January 2010 by Mr Frank Bates. The appellant took no issue with the sample-taking
procedure, stating at the inquiry that he “was quite happy with the way the swab was done”
(Transcript - page 15 lines 8-9).
Testing procedure and results

12.
Dr Vine gave the following evidence at the inquiry in relation to the testing procedure and a) Sample V162825 was delivered to the Racing Analytical Services Ltd laboratory on 27 January 2010 by Australian Air Express. The sample consisted of 2 bottles of urine and a bottle of control fluid. The samples were inspected and the seals were noted to be intact. b) One of the samples of urine was subjected to routine screening. A number of screening tests were applied to the sample. One of these tests, MS49, a method which detects a wide range of basic and neutral drugs in either plasma or urine, indicated the presence of Sotalol in the sample tested. c) Confirmatory testing, by way of liquid chromatography mass-spectrometry and method MS62 was conducted on that same sample. Further, a sample of urine to which had been added a small amount of Sotalol was also analysed by the same method. Sotalol was confirmed to be present in both samples of urine. d) A letter and Certificate of Analysis were sent to the Stewards confirming the results and the availability of the reserve and control samples for analysis in the presence of an analyst nominated by the trainer if required. e) The reserve and control samples were analysed by the laboratory following receipt of information from Stewards that a witnessed analysis was not required. Before this analysis occurred, the sample pack was photographed from all sides, showing that the bottles within had not been tampered with. f) The 2 samples were analysed by way of liquid chromatography mass-spectrometry and method MS62. The results from the testing of the urine sample were again compared with the results obtained from testing a blank sample of urine to which Sotalol was added. The testing confirmed the presence of Sotalol in both the urine sample V162825 and the comparison sample. g) The control fluid was also tested. This sample is obtained in order to test whether the collection utensil has been contaminated. The collection utensil is washed out with the control fluid immediately before it is used and the control fluid is collected. The same testing was applied to the control fluid. No Sotalol was detected. It was Dr Vine’s opinion that the collection process did not suffer from any kind of contamination. h) Quantitative analysis of the sample was not undertaken. Dr Vine, however, was prepared to draw what he described as “very rough conclusions from the data in regard to the relative amounts”. It was clear, he said, that the urine sample taken from the greyhound probably contained less Sotalol than the comparison sample to which Sotalol had been added at a concentration of 20 nanograms per millilitre but he was unwilling to put a figure on it. The amount of Sotalol in the sample was, however, comfortably detected. i) Dr Vine was not aware of studies with regard to Sotalol or the use of Sotolol in greyhounds apart from studies carried out by his laboratory some years ago. In that study, Sotalol was administered to a greyhound both orally and intravenously. The study showed that Sotalol could be detected up to 24 hours after administration. There was no analysis during that study of the impact or action of the drug on greyhounds. j) Sotalol is a substance which falls into a group of beta-blockers. The listed effects of Sotalol include having an effect on the cardiovascular system, and therefore, in his opinion it was a prohibited substance. Further, it is a substance specified in Schedule 4 of the Standard for the Uniform Scheduling of Drugs and Poisons (Commonwealth). k) When questioned about the possibility of the greyhound having picked up the drug from a hose when being given a drink, Dr Vine thought that was unlikely. He stated that he did not think the drug was all that widely used and that he was not aware of any reported instances of environments being contaminated by Sotalol. Given that it was normally taken orally by tablet, there was not really much scope for it to be contaminating things like hoses or other items that the dog might come into contact with. He did concede that the levels of the substance found in the dog’s urine could possibly be as a result of contact with a person who had residue on their hand after taking a tablet. However he stated there are 2 possibilities when finding a small amount of a drug in a urine sample: either that the greyhound had received a very small dose of the material recently or a large dose of the material a relatively long time ago. It would be impossible, he stated, to distinguish between those two possibilities, even if a quantitative analysis had been conducted. There was no challenge to Dr Vine’s evidence during the inquiry, nor were the results of the analysis disputed.
The appellant’s evidence
14.
The focus of the appellant’s evidence was that he had not given Sotalol or indeed any other substance to his dog and that he was at a loss to explain how the drug came to be in his dog’s system. He told the inquiry that he kept careful control of his greyhounds, and that no one else had access to his dogs in the lead up to the race. He travelled to the race with his wife and a friend who lived on their property. None of them were prescribed or took the drug Sotalol. He expressed some concerns at the security of the kennels at the race track and posited the possibility that something may have been left on the ground. He also described the dog as a “shoveller” who picked up and ate items off the ground if given the opportunity. He wondered whether the hose that he used to give the greyhound a drink after the race, so that she would be able to produce a urine sample, was contaminated with Sotalol. 15. The appellant also undertook his own investigations of the possible effects of Sotalol on a greyhound. A vet, Geoff Baxter, told him that it was a beta-blocker that “would have stopped the dog”. He spoke to his GP, Dr Barrett, who told him that if he had given Sotalol to the greyhound “the dog could be dead or it would have went terribly bad in the race”. Dr Barrett highlighted the information in MIMS relating to adverse reactions to Sotalol which are recorded in the transcript as including dyspnoea, fatigue, dizziness, headache, fever, excessive bradycardia, and/or hypertension”. A number of other reactions were highlighted. The appellant also showed a copy of the printout to Dr Van der Weg, a vet working in the greyhound industry, who highlighted other parts of the document relating to adverse reactions. The importance of all this, the appellant said, was that the greyhound exhibited none of these reactions. She, in fact, won the race. His argument was that she could not have won the race if she had the drug in her system. There was no evidence given at the inquiry about how long it takes for Sotalol to appear in a dog’s urine in detectable quantities after it is administered. The appellant told the inquiry that Dr Van der Weg indicated the dog must have had the drug either within 15 minutes before the race or immediately after. It was not made clear how she arrived at those calculations. The appellant also referred to parts of the information provided by his GP that indicated that the medication took about two hours to reach full effect but commenced working after about 15 minutes. Neither of those witnesses were called, though the stewards were happy to accept what the appellant said. What the stewards quite rightly pointed out was that the information provided related to the impact of Sotalol on humans, and that the reactions highlighted were possible adverse reactions, and not ones that occurred in all cases. Importantly, there was no reliable evidence about how all of this applied to greyhounds. The appellant was charged with presenting a greyhound nominated in an event when it was not free of a prohibited substance. The appellant pleaded not guilty to the charge. Following
further discussion along similar lines to the evidence Mr Pearce had already given, he was found
guilty of the offence. The stewards, relying on the certificates of analysis which confirmed the
presence of Sotalol in the sample of urine taken from Go Maggie Go, were satisfied that she was
presented for the race with Sotalol in her system.
Appeal against conviction
18.
As noted already, the appellant’s ground of appeal against conviction was not clearly expressed. The appellant, in effect, relied on three grounds which can be summarised as follows: He did not administer Sotalol to the greyhound, nor was he aware that the substance was in the dog’s system, therefore, he should not be found guilty of the offence under GAR 83(3); The stewards could not be satisfied that the greyhound had Sotalol in her system during the race, therefore, they could not be satisfied that the appellant had presented the greyhound to compete in the event with a prohibited substance in her system; and That the analysis conducted by RASL incorrectly identified the presence of Sotalol in the urine samples.
Ground 1:

This argument, the only matter clearly raised in the appellant’s notice of appeal, is without merit. It is not an element of an offence under GAR 83(3) that the person charged administered the prohibited substance to the greyhound nor is it an element of the offence that the person charged knew that the substance was in the greyhound’s system. The stewards accepted that the appellant did not administer Sotalol to the greyhound. That is a matter of mitigation only, but not a defence to the charge. The offence is one of strict liability and knowledge is not an element that need be proved. It is a matter of fundamental importance to the racing industry as a whole that greyhounds and horses be presented to participate in events drug free. This ground fails.
Ground 2:

The appellant developed this argument during the course of the appeal. He submitted a letter to this Board from his General Practitioner, Dr Annette Barratt, and another from Dr Alistair Smith from Sandown Veterinary Clinic. Dr Barratt confirmed in her letter that the appellant, his wife and their immediate family have never been prescribed Sotalol. She also stated that in her opinion, “a human who had taken this medication would run more slowly than usual”. Further, she stated that “there is nothing in the literature to suggest that the medication would have any different effects on a greyhound and hence it would be more likely that a winning dog was accidentally exposed to trace amounts after the race.” Dr Smith states in his letter that “if administered to a greyhound at standard doses, Sotalol would have a negative affect (sic) on performance”. The appellant argued that the greyhound’s performance in the race was such that stewards could not have been satisfied that she had Sotalol in her system at all when presented to race and during the race itself. If the drug was in her system, the argument goes, her performance would have been adversely affected. The presence of the prohibited substance can only be explained by coming into contact with Sotalol after competing in the race. The appellant argued that he closely supervised the greyhound in the days leading up to the race and that there was no opportunity for the drug to be administered. He conceded that in the excitement of having won the race, his guard may have lowered momentarily and an opportunity for contamination could have arisen at that time. It follows, he argued, that Go Maggie Go was not presented with a prohibited substance in her system during the relevant time, that is, during the race itself. There are, however, a number of problems with this line of reasoning. It relies largely on the opinions of doctors and veterinarians who have not examined the greyhound and have not been privy to any information about the levels of Sotalol detected in the dog’s urine. For example, Dr Barrett assumes that the dog had levels of Sotalol in her system consistent with exposure to trace amounts of the substance after the race. As can be inferred from the information provided to the appellant by Dr Van der Weg, and reiterated by the appellant during the appeal, the substance would need to have been in the dog’s system for a period of time for it to have appeared in the dog’s urine. The appellant was unable to point to a time shortly after the race when this could have occurred. His wife caught the dog very shortly after the race, as is her habit. The dog’s earbrand was checked, and the appellant’s wife handed the dog to the appellant. Arrangements were made for photos to be taken. The dog’s muzzle was removed. She was photographed with the appellant’s wife and their friend who had travelled with the pair to watch the event. The dog was given a drink from a hose. The appellant and a steward, Frank Bates, then took the dog to the swabbing kennel. The appellant was present when the swabs were taken. The time that elapsed between the end of the race and the swabbing was about 30 minutes. The appellant expressed some concern about whether something may have been inadvertently left on the floor of the swabbing kennel. The stewards indicated that the kennels had been inspected before the race meeting and no problems had been identified. The suggestion that the drug entered the greyhound’s system after the event is not borne out by the appellant’s own observation that the greyhound exhibited no adverse behaviours after the race. This fact alone weakens the appellant’s argument that her strong performance during the race is sufficient to overcome the inference that Go Maggie Go had Sotalol in her system at the time of the race. The matters raised by the appellant do not, in our view, displace the inference that Go Maggie Go was presented with Sotalol in her system. This ground also fails.
Ground 3:

The appellant indicated during the appeal that he did not dispute the analysis conducted by RASL. He did, however, tender a letter from Dr Scott Rogers from the Montrose Veterinary Centre in which the possibility of testing error was raised. He, like Dr Barratt and Dr Smith, concluded that “the drug if given to greyhounds would cause the dog to run slower than would occur naturally”. He arrived at this conclusion by a process of “extrapolating from human studies and literature”. He then made the following comments about the analysis itself: “My major concern as a veterinarian is to do with the personal comment by [the appellant] that this was the first time the laboratory that undertook the analysis, had ever had a positive swab to this drug. I am not a board certified specialist in pathology, but unfortunately all screening tests performed (humans and animals) have a known sensitivity and specificity, and a certain number of false positive and false negative results per 1000 samples. Whenever I analyse the results of any laboratory test, or read the comments attached by the pathologist who undertook the testing, the clinical signs have to fit with the results of the testing. Certainly from the limited information I have been given I would be concerned that the clinical signs and history do not agree with the test results. Also the probability of the first test result recorded by this lab being a true indicator of the actual drug status of the tested greyhound seems to be very low. The veterinary profession plays an important role within the greyhound industry, with the welfare of the animal being our primary focus. Unfortunately no one test is 100% accurate, 100% of the time. Thus we have to make judgements with this knowledge, whilst still ensuring those who do abuse the rules and harm the welfare of greyhounds are held accountable. It is with this premise that I feel the results should be further investigated to rule out the chance of a false positive result or a cross contamination from another substance present in the urine.” Firstly, we cannot find any reference in the transcript to any comment that would support the appellant’s assertion that this was the first time that the laboratory had ever had a positive swab to the drug. At one stage during the inquiry, the Chairman of Stewards indicated that he had been “unable to find another case of Sotalol”. What was clear from the evidence of Dr Vine was that the laboratory had previously analysed samples of urine from greyhounds administered Sotalol in controlled conditions. No comment was made by Dr Vine to support the suggestion that this was the first time RASL had recorded the detection of Sotalol in a sample. Further, RASL conducted a number of tests on the samples taken in this case, including creating comparison samples of blank urine with known quantities of Sotalol added. The comment apparently made to Dr Smith by the appellant is not one that is supported by the evidence. Dr Smith’s concern that the clinical signs and history did not correspond with the test results must be treated with some caution. It is clear that one will never know how much Sotalol the greyhound had in her system. It may be that she never had the substance in her system in sufficient quantities to affect her performance or to cause any of the effects noted by the various doctors and veterinarians consulted in this case. However, we are satisfied that the testing conducted by RASL was properly conducted and rigorous. The testing of the control sample, the creation and testing of comparison samples, and the consistent results obtained across the portions of sample obtained from the greyhound are such that we are satisfied that Sotalol was in fact in the samples of urine taken from Go Maggie Go. This ground of appeal also fails. It follows that the appeal against conviction cannot succeed. We have not been persuaded that the stewards erred in finding the appellant guilty of the offence under GAR 83(3).
Appeal against penalty
20.
Stewards disqualified the appellant from training greyhounds for four months. That penalty has been in force since 18 March 2010. Stewards specifically referred to the following matters when arriving at their decision about penalty: a) That the appellant had been co-operative and provided assistance to the inquiry in trying to determine how Sotalol came to be in the dog’s system. b) The appellant had been involved in the greyhound industry for over 40 years. It was noted he had an unblemished, exemplary record. c) His involvement in the industry was as a hobby and for health reasons. d) That the appellant should be treated on the lower end of the scale for offences of this Stewards referred to a normal penalty range of 4 to 12 months disqualification for first time offenders under this rule. They also took into account that “breaches of the drug rules have always been dealt with by way of a disqualification of licence”. Although not specifically referred to by stewards when giving their reasons for penalty, a number of other mitigating factors were raised during the inquiry and accepted by them. They included: a) That the appellant had no knowledge that Sotalol was in the dog’s system when he b) That the appellant had no knowledge of how Sotalol came to be in the dog’s system. It was also specifically accepted that he did not administer the substance to the dog at all. The appellant also tendered a character reference from Mr Greg Fahey, who also has been involved in the greyhound racing industry. In summary, his letter made the following points: a) That he had known the appellant and his family since the 1970’s. b) That they operated the type of small family concern that the sport has been based on. c) They were meticulous in their training and handling and motivated by their love of the d) He was amazed at the thought that one of their dogs returned a positive sample. e) That the greyhound’s form was consistent with a previous win some 12 days earlier and inconsistent with the presence of a “stopper” in its system. The appellant also made the following points during the inquiry which were also relevant a) He was a keen supporter of the practice of swabbing dogs. He would prefer more dogs b) He had ensured that the greyhound had been watered prior to the testing to ensure that c) That the substance involved could not on any view be considered a performance enhancing substance. Its only impact could be to impair performance. Stewards referred us to a previous decision in relation to penalty in the matter of Connelly No. 19 of 2008/09. In that case, a penalty of four months disqualification was reduced to three months. The facts of that case involved the presence of human blood pressure medication in a sample taken from a greyhound. It was accepted, in that case, that the wife of the appellant had deliberately given some of the appellant’s medication to a number of greyhounds to cause harm to her husband and the owner of the dogs in his care in the context of a difficult marital relationship. The Board noted in that case that “Disqualification is generally the appropriate penalty for a breach of the drug rules”. They also noted the need for general deterrence and consistency in penalty. In Connelly, the Board levelled some criticism at the appellant for leaving “his wife, with whom he had a turbulent relationship, who he knew to be prone to unpredictable behaviour and who had already acted vindictively towards him, in a position where she had unsupervised access to an unlocked kennel containing dogs due to race that day”. No such criticism could be levelled at the appellant in this case. 26. A number of other decisions of the Board have considered penalties for like offences where the presence of the substance in the dog’s system was inadvertent or occurred as a result of recklessness on the part of those involved in the care of the dogs. Those decisions include Maddox No. 6 of 2001 (caffeine and metabolites in urine sample as a result of feeding the dog tea), Glover No. 12 of 2000 (caffeine and metabolites as a result of giving dog Fortex and it being retained in system longer than anticipated) and Hills No. 10 of 2006/07 (Heptaminol in urine as a result of administration of Kynoselen to dog and it being retained in the dog’s system longer than anticipated). In each of those cases a four month period of disqualification was imposed by the TRAB. In Glover, the Board made the following observation: In the decision of Bullock in 1991, involving a breach of the same rule, this Board, then under the chairmanship of the late Mr John Kable QC, said: “These cases historically have caused us difficulty, not because we have any sympathy whatsoever for people who do the wrong thing in this industry, but because the very strict rules of the industry create a circumstance where a person can be blame free and yet guilty of a particularly serious offence.” This observation is one that is particularly pertinent in this case. In this case, there are no readily apparent grounds upon which it could be suggested that the appellant was reckless nor could any particular criticism be levelled at the manner in which he cared for and supervised his greyhounds. 28. In our view, stewards correctly identified that this was a case that fell at the lower end of the scale. They erred, however, in determining that the starting point for determination of penalty in any such matter was one of four months disqualification. We are satisfied that the appropriate penalty is one of disqualification, but that the penalty should be varied to one of three months disqualification, taking into account all the mitigating and unusual features of this case. The appeal against conviction is dismissed. The penalty imposed by stewards is varied to one of three months disqualification. The disqualification of Go Maggie Go from the race in question must stand as a result of the operation of GAR83(4). In accordance with s 34(1A) of the Racing Regulation Act 2004, 25% of the appellant’s prescribed deposit is forfeited to the Secretary of the Department. The appellant is also ordered to pay 25% of the cost incurred in the preparation of the transcript in accordance with s 34(4A).

Source: http://www.racing.tas.gov.au/__data/assets/pdf_file/0004/49639/appeal_17_2010.pdf