The Court of Appeal’s recent decision in Racing Victoria Limited v Kavanagh addresses the state of knowledge required of a trainer to establish an administration offence under the Rules of Racing. The decision will be of interest to those following one of the biggest horse doping scandals in Australian history involving trainers with links to the Aquanita Racing stables.

Racing Victoria Ltd v Kavanagh [2017] VSCA 334

Horse racing in Australia is highly regulated with respect to the administration of drugs to horses. This is unsurprising given the high level of public participation and the consequent need to maintain public confidence in the industry. Stringent controls are necessary to ensure fair and open competition and to maintain horse welfare.

As a major doping scandal recently besieged the prominent Aquanita Racing stables at Caulfield racecourse, the Victorian Court of Appeal delivered its judgment in another matter attracting significant public attention, namely Racing Victoria Ltd v Kavanagh [2017] VSCA 334. By way of background, two high profile thoroughbred horse trainers, Mark Kavanagh and Danny O’Brien, were charged by the Stewards of Racing Victoria with prohibited substance offences under the Rules of Racing. The charges arose from the alleged detection of cobalt, at a concentration above the permitted threshold level, in race-day urine samples taken from the trainers’ horses.

The appeal was brought by Racing Victoria against a decision of Garde J, sitting as the President of the Victorian Civil and Administrative Tribunal. In the Tribunal, Garde J upheld a review application by Kavanagh and O’Brien of a Racing Appeals and Disciplinary Board decision that found the charges proven. Justice Garde found that the trainers’ veterinarian, Dr Tom Brennan, was the principal perpetrator who injected vitamin complex containing cobalt into the drips administered to Kavanagh and O’Brien’s horses. His Honour also found that neither Kavanagh nor O’Brien had any knowledge of the administration of any prohibited substance to any of their horses. Racing Victoria did not challenge these findings of fact on appeal.

Perhaps relevant to how the Aquanita case unfolds, one aspect of the appeal turned on the proper construction of the administration offences in the Rules of Racing. Among other charges, Kavanagh and O’Brien were charged with administration offences under rule AR 175(h)(i) and (ii) of the Australian Rules of Racing, which relevantly provides that the Stewards may penalise:

(h) Any person who administers, or causes to be administered, to a horse any prohibited substance:

(i) for the purpose of affecting the performance or behaviour of a horse in a race or of preventing its starting in a race; or

(ii) which is detected in any sample taken from such horse prior to or following the running of any race.

In particular, the Court of Appeal addressed whether it was necessary, on a proper construction of the phrase “administers or causes to be administered” in AR 175(h), to prove the trainer’s knowledge that the substance being administered was a prohibited substance. Racing Victoria contended that proof of knowledge was not required and the trainers said otherwise.

To complicate matters for those advising on administration offences under the Rules of Racing in the future, Maxwell P, McLeish JA and Cavanough AJA have each said something different on the question of knowledge.

President Maxwell addressed the ordinary meaning of the word ‘administer’ in the sense of giving something to a person or animal. His Honour noted that when a person administers a specified medication, the person knows what it was they administered. His Honour also said the substantial mandatory penalties indicated the trainer required knowledge about the identity of the substance being administered. The administration offence under AR 175(h)(i) carries a mandatory disqualification of three years. President Maxwell concluded that neither trainer could have been proved to have contravened either AR 175(h)(i) or AR 175(h)(ii) unless it was established that he had some knowledge or awareness of what the substance was which he was causing to be administered.

Justice McLeish disagreed with Maxwell P’s line of reasoning on this issue. Justice McLeish said, as a matter of ordinary language, a person administers a substance if the person gives or applies the substance to the horse; it does not, without more, mean that the person has to know what the substance is. His Honour reasoned that any intention or belief as to a particular substance must depend on the meaning of the word ‘causes’ rather than the word ‘administer’. After reviewing the High Court authorities of Miller v Hilton[1] and O’Sullivan v Truth and Sportsman Limited[2], McLeish JA said that the true question is not one of knowledge or intention about the nature of the substance in question but authority or direction to perform the act of administering it. His Honour rejected the contention that the language of causation imports a mental element into AR 175(h) requiring a person to be aware what substance is administered.

Justice Cavanough agreed with McLeish JA’s analysis as to the construction of causation in the administration offences in AR 175(h). Cavanough AJA noted:

McLeish JA agrees with the ultimate conclusion of Maxwell P that, on the Tribunal’s findings of fact, the charges against the trainers under AR 175(h)(i) and (ii) fell to be dismissed for want of satisfaction of the element of causation, but, according to McLeish JA, that ultimate conclusion was to be reached otherwise than on the basis that the expression ‘administers or causes to be administered’ in AR 175(h), in itself, is to be construed as imposing a requirement of knowledge as to the identity of the substance being administered. [Footnote omitted]

Justice Cavanough said something additional about knowledge with a focus on the ‘purpose’ limb in AR 175(h)(i). His Honour said that a trainer cannot be found to have administered a substance, or to have caused it to be administered, for the purpose of affecting the performance or behaviour of a horse in a race unless the person had knowledge or a belief about the effect or effects that the substance was likely to have on the horse.

Ultimately, each administration case will turn on its own unique facts. As noted by McLeish JA, if Kavanagh and O’Brien had simply given Dr Brennan free licence to administer whatever substances he wished to their horses, it would have been necessary to decide whether such licence permitted administration of prohibited substances.

As more facts surrounding the Aquanita case become public, it will be possible to speculate on how the Court of Appeal’s decision will impact on that matter.

The Court of Appeal otherwise allowed the appeal in part and has remitted the matter to Garde J for consideration of penalty in relation to presentation offences against the trainers. The presentation offence under AR 178 depends expressly on the detection of a prohibited substance in a race-day urine sample of the horse. Justice Garde found that Racing Victoria could not rely on the certified findings of scientific laboratories (as prima facie evidence of detection of a prohibited substance under the Rules of Racing) because they had not strictly complied with the procedures governing the testing of urine samples. In addition to the certified findings of the scientific laboratories, Garde J further found that Racing Victoria could not rely on any other evidence which his Honour accepted established the presence of cobalt in the horses’ urine samples. This was because his Honour determined that the procedures for governing the testing of urine samples for prohibited substances under the Rules of Racing were the exclusive means of proving the presence of a prohibited substance. The Court of Appeal rejected that finding and unanimously held that a certified finding of the detection of a prohibited substance was not the exclusive mode of proving the presence of a prohibited substance.

Justice Garde’s penalty decision is expected to be handed down shortly.