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Queensland Racing Integrity Commission, Internal Review Decision 0022-18 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 0022-18
Applicant’s Name: Olivia Cairns
Original Decision: Breach of Rule 178AA(1)(b) of the Australian Rules of Racing
Original Decision Makers: D Aurisch, P Gillard, P Lane
Date of Original Decision: 21 February 2018
Internal Review Decision: Original decision of charge and penalty confirmed - $2,500.00 fine
Internal Adjudicator: Mr Kane Ashby, Queensland Racing Integrity Commission
Date of Internal Review Decision: 13 April 2018
PART 3: Summary of Internal Review Application
The Applicant, Ms Olivia Cairns, as the trainer of TICKETS TO RIDE when it presented to race at the Mackay Turf
Club on 7 October 2017, was charged under Australian Rule of Racing 178AA(1)(b) at a stewards’ inquiry conducted
on 21 February 2018 when a pre-race blood sample taken from TICKETS TO RIDE was found to contain elevated
Total Plasma Carbon Dioxide (TC02) levels of 36.3mmol/L and 36.2mmol/L respectively.
Australian Rule of Racing 178AA(1)(b) states:
“(1) A person must not administer an alkalinising agent, in any manner, to a horse which is engaged to run in any
race, official trial or jump-out:
(b) at any time during the one Clear Day prior to 12:01am on the day of the scheduled race, official trial, or jump-out.”
The specifics of the charge being that the Applicant, as the trainer of TICKETS TO RIDE, did administer an alkalinising
agent to TICKETS TO RIDE during the one Clear Day period prior to 12:01am on the day TICKETS TO RIDE was
scheduled to race at the Mackay Turf Club on 7 October 2017. The blood sample taken from TICKETS TO RIDE,
upon analysis, was found to contain the aforementioned elevated TCO2 levels reported at 36.3mmol/L and
36.2mmol/L.
The Applicant pleaded not guilty to the charge and made brief submissions in defence of the charge.
Stewards heard evidence from Dr Karen Caldwell, Acting Manager of Veterinary Services at the Racing Science
Centre, and, when considering the matter, placed significant weight on the evidence tendered by Dr Caldwell, in
particular her evidence regarding the excretion period of alkalinising agents and also the amount of alkalinising agents
that would need to be administered to achieve the levels recorded by TICKETS TO RIDE.
Queensland Racing Integrity Commission, Internal Review Decision 0022-18 2
Stewards were satisfied the Applicant had administered alkalinising agents to TICKETS TO RIDE within the one
Clear Day period and found the Applicant guilty of the charge.
When considering penalty, Stewards took into account the personal circumstances of the Applicant, penalty
precedents and the negative impact breaches of this nature have on the racing industry.
Stewards subsequently imposed a fine in the amount of $2,500.00.
The Applicant sought a review of charge and penalty by way of written submissions which, in summary, state the
Applicant believes the pre-race samples taken by QRIC at Mackay on 7 October 2017 did not comply with the
Australian Rules of Racing, the stewards failed to take into account the Applicant’s explanation and circumstances
surrounding the elevated TCO2 levels and the stewards have not applied the correct reasoning and therefore could
not, on the evidence presented to them, be persuaded on the balance of probabilities that such alleged action was in
fact undertaken by the Applicant.
The Applicant filed the following submissions in support of her Application for an Internal Review:
“BACKGROUND
The appellant, Ms Olivia Cairns, trainer of “Tickets to Ride” - a thoroughbred engaged to race in a 1560m event at
Mackay on 7 October 2017 which was the subject of a pre-race blood sample taken that day, did attend an enquiry
at the request of stewards to enquire why the horse’s TC02 level was elevated. The blood result of Tickets to Ride
returned readings of what was deemed to be elevated TC02 levels being reported at 36.3mmol/L and 36.2mmol/L.
The enquiry was conducted by a panel of three stewards including Mr Daniel Ausrisch, Mr Paul Gillard and Mr Peter
Lane at Mackay on 21 February 2018. At the conclusion of the enquiry, the appellant was charged by stewards under
AR178AA(1)(b) which reads: A person must not administer an alkalinising agent, in any manner, to a horse which is
engaged to run in any race, official trial or jump-out at any time during the one Clear Day prior to 12:01am on the day
of the scheduled race, official trial, or jumpout.
The appellant was not issued with any formal documentation at the time of hearing. A Penalty Notice dated 21
February 2018 was later sent via email by Mr Daniel Ausrisch on the afternoon of Friday, 23 February 2018. Any
Notice of Appeal would therefore be due by Monday, 12 March 2018 noting “Applications for internal review must be
lodged no later than 14 days after receiving notice of a decision.”
On 21 February 2018, the appellant submitted a written request for a transcribed copy of the enquiry. Despite
repeated follow-ups, a copy of the transcription was not provided, but the electronic recording was sent via digital
drop-box (sometimes referred to as an online backup service) on Monday, 5 March 2018.
Due to the delay in QRIC satisfying procedural fairness and pursuant to Section 243(3) of the Racing Integrity Act
(Qld) 2016, the appellant sought an extension of time to provide written submissions, which was granted on Monday,
5 March 2018, specifically “The Internal Review Registrar has advised a two week extension has been granted to
allow you to decide whether or not you will lodge an appeal”. The appellant therefore presumes written submissions
are now due 14 days after receipt of the transcript recording and the due date for submissions is close of business
on Tuesday, 20 March 2018.
Queensland Racing Integrity Commission, Internal Review Decision 0022-18 3
FIRST ELEMENT NOT ACKNOWLEDGED BY STEWARDS PRIOR TO COMMENCEMENT OF ENQUIRY OR
REQUEST THEREOF
The appellant has reviewed the exhibits relied upon by stewards during the enquiry conducted on 28 February 2018.
In particular, reference is made to the document entitled “RSC V36 Record of Sample Custody and Dispatch Protocol
A,” being kits listed at 2. were received in Security Bag No: 043570 which does record that upon receipt of the samples
by Adriana Sencio, representative of QRIC in the document entitled “QRIC RSC V47 Sample Dispatch to Referee
Laboratory,” Adriana Sencio states at part 6. of the aforementioned form that there was non-compliance, details being
“424811, 484882, 424883, 424884, 424885: Details on central pocket incorrect/inconsistent: racing code”. The
document was not specifically referred to by stewards when exhibits were being introduced as evidence at the
commencement of the enquiry.
The appellant has reviewed the Stewards’ Reports regarding any enquiry for pre-race swabs conducted on 7 October
2017 and notes there are no other disciplinary reports relating to the other sample numbers referred therein.
It is therefore the reasonable inference of the appellant that the pre-race samples taken by authorities at Mackay on
7 October 2017 did not comply with the Australian Rules of Racing, as opposed to such notation on that form was an
indication or directive by QRIC that there was non-compliance by licensee’s with rules of racing regarding the
presence of any prohibited substances in the pre-race samples taken that day. Therefore, any reliance on such
samples taken under those sample numbers cannot be relied upon by QRIC for any disciplinary enquiries or breaches
to any rules of racing. There has been significant judicial findings and opinion in this regard.
Should the appellant be incorrect in concluding that the sample taken from Tickets to Ride, namely sample number
424884 was not taken in compliance with the Australian Rules of Racing, then the following submissions are made
in defence to the charge under AR178AA(1)(b).
AUSTRALIAN RULES OF RACING AS THEY RELATE
Prohibited Substances are dealt with under AR177 and TC02 levels are specifically indicated under AR.178C being:
“1. The following prohibited substances when present at or below the concentrations respectively set out are excepted
from the provisions of AR.178B and AR.178H:-
(a) Alkalinising agents, when evidenced by total carbon dioxide (TCO2) at a concentration of 36.0 millimoles
per litre in plasma.
As there is an element of uncertainty with respect to the testing and subsequent results, the expanded measurement
of uncertainty for total plasma carbon dioxide determinations at the threshold concentration (36mmol/L) is +/- 1.0
mmol/L. This threshold is stipulated by the testing laboratories, and stated in pathology results issued by the
Australian Forensic Laboratory and Racing Science Centre, QRIC in this matter.
The appellant notes the TC02 level is below the threshold with the allowable measure for uncertainty and therefore
stewards have charged the appellant under AR178AA(1)(b). As taken from The QRIC Stewards’ Report: Olivia
Cairns - Tickets to Ride, the following exert is noted:
“Today evidence was taken from the trainer of TICKETS TO RIDE Ms Olivia Cairns, expert evidence was
also given via telephone by Dr Karen Caldwell the Acting Manager of Veterinary Services at the RSC.
Queensland Racing Integrity Commission, Internal Review Decision 0022-18 4
After considering all of the evidence, Ms Cairns was issued with a charge under AR.178AA(1)(b) which reads:
A person must not administer an alkalinising agent, in any manner, to a horse which is engaged to run in any
race, official trial or jump-out at any time during the one Clear Day prior to 12:01am on the day of the
scheduled race, official trial, or jumpout.
The specifics of the charge being that Ms Cairns did administer an alkalinising agent to TICKETS TO RIDE
during the one Clear Day period prior to 12:01am on the day TICKETS TO RIDE was scheduled to race at
Mackay on 7 October 2017. The subsequent testing of that gelding at this race meeting resulted in the
elevated TC02 being reported at 36.3mmol/L and 36.2mmol/L.
EVIDENCE SUBMITTED BY MS OLIVIA CAIRNS AT ENQUIRY
The appellant plead not guilty to any charge, having not been notified of any charge or formally asked to respond to
any charge until it was issued at the conclusion of the enquiry, specifically a breach of AR178AA(1)(b).
Extensive submissions were made by the appellant regarding her feed and supplement regime and administration of
salines, citrates and electrolytes. Ms Cairns also offered a copy of her stable’s treatment book, however stewards
paid no adequate regard to the contents of those records “as they do not relate to this horse on the day of the offence”.
The appellant provided a detailed explanation as to why the treatment book provided at enquiry did only commence
from early November 2017 which included:
- In or around August/September 2017 following inspection of the stables and compliance with rules of racing,
the former diary utilised by the appellant was, in the opinion of Mr Hackett unsatisfactory.
- After direction by Mr Hackett, the appellant did start using the individual treatment pages from the QRIC
website. Ms Cairns explained that despite a concerted effort to adopt the method requested by Mr Hackett
to use in recording all treatment, the appellant explained that method was unworkable as there were loose
pages throughout the stable.
- The appellant explained that she then reverted back to a diary system similar to that earlier method which
she had maintained for many years prior to Mr Hackett directing her to cease reliance on the diary system.
It is therefore not unreasonable for the appellant’s treatment book to have a period of incomplete or missing entries.
The appellant was forthright in explaining that her treatment regime has not significantly altered in the twenty years
that she has held a trainer’s license.
When asked by Mr Daniel Ausrich to explain why the TC02 level was so elevated, the appellant responded:
“Well I can try. But I don’t know why it is that high. I don’t use pre-mix feeds, I mix my own feeds. I add all
my own supplements. I do feed a fair amount of electrolytes, and a fair amount of different electrolyte. I have
been through them since this was brought to my attention and quite a few of them do have citrate in them
which will also lift this level. … I was able to, cause most of my horses usually when I get bloods done sit
around the 33/34 mark, um and they are commonly all around that area so that would probably come back
to my feeding.
Queensland Racing Integrity Commission, Internal Review Decision 0022-18 5
I was able to scratch up a blood of, not this horse, but I have his brother and his resting level was 33 so that
pretty well just confirmed what I already knew but just so that you could see it. Um I feed 2 lots of electrolytes
twice a day as a standard thing. I use Electropaste and um Salkavite. Well Electropaste that there a paste
and then if I give a saline I will use Salkavite and a Lectade sachets or Vytrate sachets – they’re the same
electrolyte they are just a different name but they have exactly the same contents in them um or I will use –
um there is a drench called Kentucky Gold which has a small amount of bicarb in it um, so ah well Neutradex
was another thing I also use. So all these things probably make my horses sit around that higher resting level
given, usually being 33/34 mark.”
The appellant further discussed why she believed the subsequent TC02 reading of Tickets to Ride taken on 28
October 2017 is not a true reflection of the normal resting level of that horse and stated that
“That day that you got the blood from Gladstone. That would not be that horses resting rate. He travelled 5
hours that day, it was a terribly hot day, he sweated, he is not a good traveller so I don’t know if you can
probably say that well here was 36 and there he was 31. I don’t think that’s probably fair. I mean to get, you
probably should taken some blood out of him at rest at the stable to get a resting rate. Um because I don’t
believe that would have been, I mean that’s, that is a fair comparison. And I don’t believe that that would
have been his resting rate, given the circumstances of that particular day. I think it would have been more
fairer to probably take another blood from him from here. But anyway we cant change that.
THE APPELLANT’S REASONS FOR THE ORIGINAL DECISION TO BE OVERTURNED AND DISMISSED
The appellant submits that stewards failed to realise or take into account fully and appropriately the appellant’s
explanations and circumstances surrounding the elevated TC02 levels in that stewards failed to properly:
(a) Explain to and inform Dr Karen Caldwell complete details of the appellant’s feed and supplement regime;
(b) Explain to and inform Dr Karen Caldwell of the appellant’s explanation that all of her horses’ levels do sit
around the 33-34 mark at rest, and further, such evidence was not adequately considered by Dr Caldwell;
(c) acknowledge the many other factors which do affect a horse’s TC02 level Dr Caldwell and maintained in
her entirety of evidence that an alkalising agent, specifically bicarbonate, must have been administered
within one clear day of the race;
(d) Acknowledge that there is no direct evidence that Ms Cairns did administer an alkalinising agent to
TICKETS TO RIDE during the one Clear Day period prior to 12:01am on the day TICKETS TO RIDE was
scheduled to race at Mackay on 7 October 2017;
(e) Consider and accept the explanation given by the appellant regarding the subsequent results of the
horse’s TC02 taken at Gladstone on 28 October 2017;
(f) Consider and acknowledge the appellant’s explanation regarding the possibility that someone else may
have administered any alkalinising agent to her horse;
(g) Adequately and appropriately consider all precedents relevant to a charge by QRIC under
AR178AA(1)(b) and ultimately did only rely upon decisions adverse to trainer’s in similar situations.
Queensland Racing Integrity Commission, Internal Review Decision 0022-18 6
REGARDING SUBMISSION A – STEWARDS FAILED TO PROPERLY EXPLAIN TO AND INFORM DR KAREN
CALDWELL COMPLETE DETAILS OF THE APPELLANT’S FEED AND SUPPLEMENT REGIME.
Extensive submissions were made by the appellant regarding her feed and supplement regime and administration of
salines, citrates and electrolytes. In addition to providing verbal evidence of the daily feed and supplementation
regime, the appellant also offered her treatment books to confirm such regime, which she states has not been
significantly altered in the twenty years she has been a professional trainer. However, stewards paid no adequate
regard to the submissions made by the appellant, nor to the contents of those records “as they do not relate to this
horse on the day of the offence”. The explanation regarding the date of the treatment book is discussed above.
After hearing evidence from the appellant, Mr Daniel Aurisch telephoned Dr Karen Caldwell for the purposes of
obtaining expert evidence. In explaining the appellant’s evidence provided during the enquiry and for consideration
by the expert of the individual circumstances involved in this matter, Mr Ausrich’s explanation did not, in any way,
reflect the true feeding and supplement regime of the appellant’s daily practices.
In introducing Dr Caldwell to the enquiry, Mr Ausrisch simply “Ah Dr Caldwell we have heard evidence from Ms Cairns
that her regime, normal stable regime, or feeding regime and supplements ah for this horse and many others in her
stable ah involves some salkavite, ah some Kentucky gold and neutradex.”
The introduction of the expert to the enquiry ought to have appropriately included details of Ms Cairns’ evidence,
including:
(a) Ms Cairns mixes her own feed;
(b) Ms Cairns does not feed pre-mixed commercial feed;
(c) Ms Cairns adds her own supplements to the feeds;
(d) Ms Cairns uses a number of electrolytes and a number of different electrolyes;
(e) Ms Cairns’ stable practice at the relevant time was to administer one scoop of Kelatolyte to both the
morning and evening feed and also one scoop of Salkavite to the evening feed;
(f) Ms Cairns uses the product Kentucky Gold, which is a saline drench which does contain some
bicarbonate;
(g) Ms Cairns does give a saline which consists of Salkavite and Vytrate or Lectade;
(h) Ms Cairns administers Electropaste which is an oral paste;
(i) Ms Cairns uses Neutradex.
During the telephone expert evidence, the appellant did attempt to explain to Dr Caldwell directly what her feed and
supplement regime involved but was limited to only having the opportunity to state “I mix all of my own feeds, I don’t
use pre-mixed feeds, I mix my own and I add my own supplements.” The appellant’s brief explanation was dismissed
by Dr Caldwell “Yeah look (inaudible) horses included in the study and that would have captured a spectrum of stable
practices from people who mix their own feeds to using purely commercial propriety feeds. Um that’s the purpose if
you like of taking a large sample of (inaudible) in setting the threshold is to take account of those variabilities that will
exist. It is unknown what study Dr Caldwell was making reference and thereby basing her expert opinion upon.
Queensland Racing Integrity Commission, Internal Review Decision 0022-18 7
REGARDING SUBMISSION B – STEWARDS FAILED TO PROPERLY EXPLAIN TO AND INFORM DR KAREN
CALDWELL OF THE APPELLANT’S EXPLANATION THAT ALL OF HER HORSES’ LEVELS DO SIT AROUND
THE 33-34 MARK AT REST, AND FURTHER, SUCH EVIDENCE WAS NOT ADEQUATELY CONSIDERED BY DR
CALDWELL;
Stewards asked Dr Caldwell to explain typically where a normal horses TC02 level would be expected to sit and
secondly, what amount of citrate or bicarbonate it would take to raise the level to the levels being considered in this
matter.
Dr Caldwell’s response was, “Sure so we expect that a normal horse to sit somewhere in the range of 28 to 32
millimoles per litre ah and that’s based on a study of a large number of horses ah um some time ago when the
threshold was established. Ah now the general rule of thumb with working on around about 50 grams of bicarbonate
is considered to increase that level by approximately 1 millimole, so that’s the magnitude that we are talking to get to
get to ah the range or the vicinity of 36 millimoles per litre so that’s a significant amount. Ahm and so, look all of these
things are based on probabilities and the probability of a normal horse having a level that exceeds 35.5 millimoles for
example is in the vicinity in 1 in 3000 without receiving significant amounts of alkalising agents.
With respect to the second limb of the question, Dr Caldwell stated that “Yeah look really regardless of what you give
um a horse will return to a normal level within about 24 hours. Um that decreases more quickly, you will see um
significant decreases within about 12 hours for bicarbonates um citrates have a delayed but longer lasting effect but
they also will reduce within about 24 hours presuming you are not continuing to, to add and the that of course is the
genesis for the one clear day rule of the administration of alkalising agents. Um such that if you are abiding by that
rule, ah the chances of presenting a horse on race day with a level anywhere near the threshold level as we discussed
is very small.
The following transcription is noted for consideration of the internal review officer to illustrate the nature and extent
of the expert’s unwillingness to consider the actual evidence in this matter and instead refer in generalities and
findings from a “study” which it is presumed to be a reference to the article provided by Lloyd in relation to
standardbreds, published in 1993.
Ms Cairns: Well my horses and all of my horses I would never have anything between 28 and 32 ever. Maybe if I
when they come from the paddock they would be around that level but when my horses are in full work they sit
between mostly 33 to 34. Ah I have got a blood test here of this horse’s full brother. I didn’t have a test of him but
this is his brother and his bicarb blood level was 33. That’s just a random blood through the week and …
Dr Caldwell: Yeah just on that point, there’s the instruments that they used for clinical determinations of bicarbonates
level are very different to those used for determining TC2 levels for the purposes of enforcing race day rules and they
are not a reliable comparison in that regard.
Ms Cairns: Well and didn’t you just say that they sit between 28 and 32 ?
Dr Caldwell: Yes but I am saying that if the value that you’re referring to has been derived from a commercial
pathology laboratory.
Queensland Racing Integrity Commission, Internal Review Decision 0022-18 8
Ms Cairns: It’s a Brisbane laboratory. Sorry? It’s a Brisbane laboratory, its not just a vet blood. It’s a Brisbane
laboratory IDEXX.
Dr Caldwell: Sorry yes. I’m saying that yes, The instruments that they use are ah the reliability of that level cannot
be compared to the instruments that are used for the purposes of regulating this on race day – they are designed for
use of clinical assessments and they are based on a calculated measure ahm from bicarbonate levels - they operate
very differently to the instrumentation used in racing and you cant make a direct comparison between a reading
obtained through those ….but those values cant be interpreted as being comparable to the levels that are recorded
off the instruments used for the purposes of regulating race day levels.
Ms Cairns: Well the point I am trying to make is that most, well not most, all of horses would probably sit higher than
your average pre-mixed horse because I do mix my own feeds. I don’t use pre-mix feeds, I add all of my own
supplements. And that’s just, just the way they are.
Dr Caldwell: Yeah look (inaudible) horses included in the study and that would have captured a spectrum of stable
practices from people who mix their own feeds to using purely commercial propriety feeds. Um that’s the purpose if
you like of taking a large sample of (inaudible) in setting the threshold is to take account of those variabilities that will
exist.
The appellant’s blood test was not irrelevant to the hearing and it was provided to illustrate to stewards and the expert
that the bicarbonate levels of her horses in full work simply are above the level prescribed under the 1993 study.
REGARDING SUBMISSION C - STEWARDS FAILED TO ACKNOWLEDGE THE MANY OTHER FACTORS
WHICH DO AFFECT A HORSE’S TC02 LEVEL AND DR CALDWELL MAINTAINED IN HER ENTIRETY OF
EVIDENCE THAT AN ALKINISING AGENT MUST HAVE BEEN ADMINISTERED WITHIN ONE CLEAR DAY OF
THE RACE;
after Ms Cairns did directly inform Dr Karen Caldwell of a pathology report of the subject horse’s full brother, Anzus,
as conducted by IDEXX showing a resting bicarbonate level of 33 – a blood test which was taken at the early stages
of Anzus’ campaign;
In the report relied upon by Dr Caldwell “referred to only as the report of Lloyd”, it is noted that at the time of publishing
in 1993 “It is fair to say that the TC02 level of the average horse has increased overall over the past few years but
the range is still within acceptable boundaries and there is still a considerable buffer for horsemen to adequately feed
their horses with modern feedstuffs.” Given the timing of the report and the explanation provided by the appellant,
Dr Caldwell has erred in providing her opinion that the horse “probably was administered an alkalising agent within
24 hours of the race”.
To that end, the expert, Dr Caldwell, erred in acknowledging Lloyd’s opinion that TC02 levels are affected by factors
including overtrained, undertrained and scientifically trained horses. It was reported also that “there appears to be
no doubt that feed high in alkalising agents can affect the TC02 levels in a horse”.
It was further acknowledged in that study that “it is fair to say that the TC02 level of the average horse has increased
overall over the past few years but that range is still within acceptable boundaries and there is still a considerable
buffer for horseman to adequately feed their horses with modern feedstuffs.”
Queensland Racing Integrity Commission, Internal Review Decision 0022-18 9
The charge as recorded in The QRIC Stewards’ Report: Olivia Cairns – Tickets to Ride states that “expert evidence
was also given via telephone by Dr Karen Caldwell the Acting Manager of Veterinary Services at the RSC.” A search
of the Queensland Government – Veterinary Surgeons Board of Queensland indicates Ms Caldwell holds a Bachelor
of Veterinary Science, degree issued 1999 and registered place of business is Racing Science Centre, PO Box 513,
Albion, 4010. Ms Caldwell holds no accreditation with regards to any speciality field. The Register of Veterinary
Surgeons Board of Queensland as at 14/11/2017 does not record Ms Caldwell as holding any speciality in veterinary
pathology, anatomic pathology, veterinary medicine - Equine nor Veterinary Surgery - Equine.
The expertise and explanation provided by Dr Caldwell does, on the face of the evidence, indicate that the extent of
the expertise was a heavy reliance being placed on a study conducted by Lloyd in 1993.
It has been well documented that there are many factors other than the purposeful administration of bicarbonates or
citrates which can elevate a horse’s TC02 level, including, but not limited to:
(a) Dietary factors;
(b) Environmental factors;
(c) Health concerns;
(d) The fact that some horses have naturally high TC02 levels;
(e) The age of the horse;
(f) Whether the horse is a gelding;
(g) Its level of fitness and stage of ;
(h) Dehydration of the horse.
Presumably, Dr Caldwell The total carbon dioxide concentration in the blood is not the same as the bicarbonate
concentration. It is understood that the TC02 level is usually about 5% or 1mmo/L higher than the true bicarbonate
value.
REGARDING SUBMISSION D – STEWARDS FAILED TO PROPERLY ACKNOWLEDGE THAT THERE IS NO
DIRECT EVIDENCE THAT MS CAIRNS DID ADMINISTER AN ALKALINISING AGENT TO TICKETS TO RIDE
DURING THE ONE CLEAR DAY PERIOD PRIOR TO 12:01AM ON THE DAY TICKETS TO RIDE WAS
SCHEDULED TO RACE AT MACKAY ON 7 OCTOBER 2017.
Stewards have not applied the correct reasoning and could not, on the evidence presented to them, be persuaded
on the balance of probabilities that such alleged action was in fact taken by the appellant.
The standard of proof to be applied when considering whether a licensee has contravened a rule under the Racing
Code is the balance of probabilities as moderated by the principles set out in the decision of Briginshaw v Briginshaw1.
1 (1938) 60 CLR 336
Queensland Racing Integrity Commission, Internal Review Decision 0022-18 10
The decision maker must be reasonably satisfied that the evidence supports the conclusion that there has been a
contravention. The standard is high but it is not as high as the criminal standard of proof i.e. beyond reasonable
doubt. The decision maker must determine whether there is a sufficient amount of evidence to prove allegations2.
Of particular note is that in Briginshaw v Briginshaw3, the High Court cautioned against a purely mechanical
comparison of mathematical probabilities and stated at pages 361–2 that the balance of probabilities test requires
the tribunal to:
"feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a
mere mechanical comparison of probabilities independently of any belief in its reality … [A]t common law … it is
enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal."4
REGARDING SUBMISSION E – STEWARDS FAILED TO PROPERLY CONSIDER AND ACCEPT THE
EXPLANATION GIVEN BY THE APPELLANT REGARDING THE SUBSEQUENT RESULTS OF THE HORSES
TC02 TAKEN AT GLADSTONE ON 28 OCTOBER 2017
Stewards referred to a subsequent pre-race blood test (exhibit 13) which was taken from Tickets to Ride at the
direction of Mr D Ausricht on 28 October 2017 at Gladstone and the appellant was asked to explain why that level
was so much lower, being 31.1mmo/L and specifically whether there were any changes made in the regime at all in
the lead up the Gladstone race, the appellant replied that
“The only thing I did from when, I think it was you that rang me, was I went through my salts and drenches
or salines and electropaste and all that sort of thing. And I, instead of, cause I will feed, at that time I was
feeding Kelatolyte and I feed that morning and night and I’d feed salkavite morning and night as well cause I
mix all of my own feeds… So I cut that back to just feeding salkavite at night and a kelatolyte in the morning.
So I kind of halved the daily electrolyte that they would get standard. …I still used well I can’t tell you what I
used that particular day cause I don’t have a diary to tell you but um but I would have done exactly the same
thing. These will tell that I haven’t changed. I haven’t done anything different in 20 years. I’m o ld school, I
mix my own feeds, I add of my own supplements. I don’t do anything to jeopardise my license. Um, that’s
that’s it.”
The appellant further referred to stewards reference to the subsequent TC02 level and advised stewards that, “That
day that you got the blood from Gladstone. That would not be that horses resting rate. He travelled 5 hours that day,
it was a terribly hot day, he sweated, he is not a good traveller so I don’t know if you can probably say that well here
was 36 and there he was 31. I don’t think that’s probably fair. I mean to get, you probably should taken some blood
out of him at rest at the stable to get a resting rate. Um because I don’t believe that would have been, I mean that’s,
that is a fair comparison. And I don’t believe that that would have been his resting rate, given the circumstances of
that particular day. I think it would have been more fairer to probably take another blood from him from here.
2 Smith v Queensland All Codes Racing Industry Board [2016] QCAT 458 3 Et.al. 4 How does Briginshaw vs Briginshaw affect the balance of probabilities? Harriett Witchell, 29 October 2013
Queensland Racing Integrity Commission, Internal Review Decision 0022-18 11
But anyway we cant change that. You know I have held a license for 20 years. I have never ever had anything like
this against my name, not I would I do anything that compromised it. And I have treatment books here back to
November. They are only back to November or the beginning of November because I always had a diary, for years
and years and years and it was accepted by every steward that ever looked at it and then Mr Hackett last year told
me that it wasn’t good enough and that I had to do it a different way and printed off the sheets that they have on the
racing Queensland website. So from then on it just became chaos because you had thousands of sheets floating
around the stables so I give away with them and started these record books back at the beginning of November. Now
they are after the date that I was told that I had an elevated level but they will show you that I pretty well do the same
thing all the time. You know, if you want to go through them.”
Dr Caldwell did err in considering the efficacy of the pathology report of IDEXX of the subject horse’s full brother in
that she stated that they cannot test for TC02 in the manner which racing authorities do. It is noted that that whilst
Dr Caldwell refers to a racing authorities testing of TC02, her evidence was that the administration of sodium
bicarbonate would increase a horses TC02 level by 2 points. She further stated that the blood test conducted by
IDEXX cannot in any way be used to compare a horses TC02 level because “that is entirely different”. It is submitted
that whilst TC02 level testing is entirely different, a test regarding bicarbonate specifically ought be taken at that level
as it is in fact testing one particular reading within a horse’s biochemistry. It is noted that the evidence provided by
Dr Caldwell did relate specifically to the administration of sodium bicarbonate when explaining how and why a horse’s
TC02 level would be elevated.
Dr Karen Caldwell is noted in the stewards report as being an expert. It is with respect that we note Dr Caldwell does
not possess expertise qualifications. This element is addressed in more detail later in these submissions.
REGARDING SUBMISSION F – STEWARDS FAILED TO PROPERLY CONSIDER AND ACKNOWLEDGE THE
APPELLANT’S EXPLANATION REGARDING THE POSSIBILITY THAT SOMEONE ELSE MAY HAVE
ADMINISTERED ANY ALKALINISING AGENT TO HER HORSE;
During the enquiry Mr Daniel Ausrcisch did ask the appellant if there was any possibility that someone else may have
administered an alkalising agent to Tickets to Ride within the one clear day of the race.
n circumstances where the appellant had, at and around the time of the subject alleged offence, provided full details
to stewards of threats made to the appellant, her horses and her partner, including threats of physical violence.
Stewards were made aware during the enquiry that the person referred to during the enquiry did have at that time,
intimate knowledge of the horses in her stable including the names of each horse and their stable location as that
person had been doing some of the stable’s shoeing. The appellant explained that the person referred to during the
enquiry did also reside two houses away from the appellant and given the shear nature of such person in question,
licensing authorities have not renewed that person’s license to train for a good number of years;
REGARDING SUBMISSION G – STEWARDS FAILED TO PROPERLY, ADEQUATELY AND APPROPRIATELY
CONSIDER ALL PRECEDENTS RELEVANT TO A CHARGE BY QRIC UNDER AR178AA(1)(B) AND
ULTIMATELY DID ONLY RELY UPON DECISIONS ADVERSE TO TRAINER’S IN SIMILAR SITUATIONS.
Queensland Racing Integrity Commission, Internal Review Decision 0022-18 12
It is noted there are only two prior enquiries5 recorded on QRIC’s stewards reports in this nature. One trainer was
charged under AR178AA(1)(b) and the other trainer was found to have not been in breach of said rule or any other
Australian Rule of Racing.
Did fail to acknowledge the decision at enquiry in the matter of Peter Gardiner – The Gringo, dated 21 November
2017, of which such trainer presented to answer elevated TC02 at 36.0mmo/L, similar to the result in question for
Tickets to Ride. In the matter of Gardiner, the horse “The Gringo” placed third in a Class 1 - 1530m race at Ipswich
on 21 July 2017. During the enquiry, Mr Gardiner explained his feed and supplementation regime for the relevant
period prior to “The Gringo” competing in the aforementioned race. Mr Gardiner also provided the results of pathology
reports taken from the subject horse by his veterinarian in the period prior to 21 July 2017.
It is well accepted that a trainer should get the benefit of the measurement uncertainty. It is noted that Dr Caldwell
does make brief reference to this general rule but the outcome of the enquiry illustrates an entirely different situation.
Australian Racing Rule 178C provides that alkalising agents are prohibited substances when the total carbon dioxide
is at a concentration of more than 36 millimoles per litre in plasma. The laboratories include in their certificates that
there is an allowance for measurement of uncertainty of 1 millimole per litre. If the benefit of that uncertainty was
given to Ms Cairns, this would result in the concentration being below the threshold of 36 mmol/L i.e. 35.3mmo/L and
35.2mmo/L.
As stewards were not satisfied the appellant had breached AR178C as the level did not exceed the 1.mmo/L error
margin of 37, it is submitted that stewards ought not be satisfied on the balance of probabilities that Ms Cairns did in
fact administer an alkalising agent within the one clear day of the horses race, for the many factors outlined above.
OUTCOME SOUGHT BY APPELLANT
The appellant believes she has satisfactorily addressed the issues not adequately considered by stewards and the
expert and that the charge made under AR178AA.(1)(b) be rescinded and the outcome of the enquiry ought
appropriately have been:
1. When considering the evidence the Stewards had to take into account that the measurement of uncertainty
for TC02 determinations at the threshold concentration of 36.0 mmol/L is 1.0mmol/L. When considering the
level returned by Tickets to Ride, the panel were not satisfied that a breach of AR.178 existed.
2. The Stewards also could not be satisfied to the requisite standard that Ms Cairns had breached AR.178AA
(1)(b) for administering an alkalinising agent to Tickets to Ride at any time during the one Clear Day prior to
12.01am on the day of the scheduled race.”
The Applicant further submitted that the correct decision ought be that the Applicant did not breach Australian Rule
of Racing 178 or 178AA(1)(b) and that the decision made by the stewards on 21 February 2018 should be overturned,
the penalty of $2,500.00 should be rescinded and no charge be issued to the Applicant.
5 Stewards’ Report - Peter Gardiner - The Gringo, dated 21 November 2017 and Stewards’ Report – Eric Hayes – Sonador Fire,
dated 29 January 2018.
Queensland Racing Integrity Commission, Internal Review Decision 0022-18 13
PART 4: Reasons for Internal Review Decision
The Applicant, Ms Olivia Cairns, the trainer of TICKETS TO RIDE presented the horse to race at Mackay on 7 October
2017. A pre-race blood sample collected from TICKETS TO RIDE was analysed by the Racing Science Centre (RSC)
and the Australian Racing Forensic Laboratory (ARFL) which reported the total carbon dioxide concentration was
36.3 and 36.2mmol/L respectively. The expanded measurement of uncertainty for total plasma carbon dioxide (TCO2)
determinations at the threshold concentration of (36.0 mmol/L is 1.0 mmol/L at greater than or equal to 99.99%
confidence.6
TICKETS TO RIDE started favourite at $2.90 and finished sixth beaten 2.7 lengths from the winner.
Dr Bruce Young, Manager of Veterinary Services at the Racing Science Centre, stated “The total plasma carbon
dioxide concentration is a measure of the amount of carbon dioxide present in the non-cellular or liquid portion of the
blood. The total plasma carbon dioxide concentration can be increased by the administration of alkalinising salts such
as bicarbonates, citrates, succinates and lactates. The alkalinising salts may be in the form of a drench called a
‘milkshake’. The most commonly used alkalinising salt is sodium bicarbonate. Alkalinising salts are also present in
some proprietary feed additives although the amount present are much less than those alleged to be administered in
‘milkshakes”. The administration of alkalinising salts prior to racing may enhance or manipulate the racing
performance of a horse by delaying the onset of fatigue and improving the endurance of the horse. Large doses of
alkalinising salts can also adversely affect the horse’s physical condition by causing a metabolic alkalosis, colic and
diarrhea.7
During the stewards’ inquiry conducted on 21 February 2018, the Applicant was asked to explain why TICKETS TO
RIDE’s TC02 levels were so elevated to which the Applicant stated “Well, I can try but I don't know why it is that high.
I don't use premixed feeds. I mix my own feeds. I add all my own supplements. I do feed a fair amount of electrolyte
and a fair amount of different electrolytes. I have been through them since this was brought to my attention and quite
a few of them do have citrate in them which will also lift this level. I was able to - because most of my horses usually
when I get bloods done sit around the 33, 34 mark, and they are commonly all around that area, so that will probably
come back to my feeding. I was able to scratch up a blood - not this horse but his brother, and his resting level was
33, so that pretty well just confirmed what I already knew. But just so that you could see it. I feed 2 lots of electrolytes
twice a day as a standard thing. I use electro paste and Salkavite - or electro paste (inaudible) paste and then if I
give a saline I will use Salkavite and Electade sachets or Vitrade sachets. They are the same electrolyte. They are
just a different name but they have exactly the same contents in them. Or I will use - there is drench called Kentucky
Gold, which has a small amount of bicarb in it. So - and Nutradex was another thing that I also use. So all these
things probably make my horses sit around that higher resting level given being usually at the 33, 34 mark.”8
The inquiry heard a pre-race blood sample taken from TICKETS TO RIDE at its next start at Gladstone on 28 October
2017 upon analysis reported a TCO2 level of 31.1mmol/L.9 The Applicant stated “That day you got the blood from
Gladstone, that would not be that horse's resting rate. He travelled five hours that day. It was a terribly hot day. He
sweated. He’s not a good traveller, so I don't know if you can probably say - or here he was 36 and there he was 31.
6 Exhibit 4 and 12 7 Exhibit 5 8 Transcript of Stewards’ inquiry dated 21 February 2018, page 4 and 5 9 Exhibit 13
Queensland Racing Integrity Commission, Internal Review Decision 0022-18 14
I don't think that's probably fair. I mean to get - probably should have taken some blood out of him at rest at the stable
to get a resting rate, because I don't believe that would have been - I mean, that's a fair comparison, and I don't
believe that would have been his resting rate, given the circumstances of that particular day. I think it would have
been fairer to probably take another blood from him from here. I know we can't change that.”10
The Applicant was asked “In the lead up to the Gladstone race, had you changed your regime at all?” to which the
Applicant replied “The only thing I did from when - I think it was you that rang me - is that I went through my salts and
drenches and salines and Electropaste and all that sort of thing, and I - instead of - because I will feed - at that time
I was feeding Kaladalite and I feed that morning and night, and I feed Salkavite morning and night as well, because
I mix all my own feeds. So I cut that back to just feeding Salkavite at night and Kaladalite in the morning. So I kind of
halved the daily electrolyte that they would get standard. I still use - I can't tell you what I used that particular week
because I haven't got a diary to tell you - but I would have done exactly the same thing. Like these will show you that
I haven't changed. I haven't done anything different for 20 years. I'm old school. I mix my own feeds. I have my own
supplements. I don't do anything to jeopardise my licence.”11
The Applicant, in response to a question “Would there have been anyone else that could have administered
alkalinising agents to the horse” stated that she had, at that time, had various altercations with a drama with a
gentleman over a paddock and further stated “It was around that exact time when you rang me - like before then that
it happened. Now, I can't control it. Since then I've - because I did notice feed was going missing. I have a locked
feed room and I have feed boxes outside the feed room, and I noticed that feed was going - or to me it looked like
feed was going missing. So since then I have put padlocks on all my feed boxes. Apart from putting cameras in my
stables, there is not a lot I can do. I can't control it. Like I can't stop anybody coming in in the middle of the night. I
can’t live in the stables 24 hours a day. But this particular man is a common pest. Breaks all the rules of racing.”12
The Applicant, in evidence, stated “I have since learned through all this that I've always thought it was 48 hours you
couldn't administer anything to horse before a race, and I found out it was only one day. So my horses don't get
anything from 48 hours on like that I give them at all. I always thought it was two days. So that's how careful I am. I
always thought it was two days. I have only just recently learnt that it is actually one day, and if you actually go through
these books and look at race meetings and dates, they will tell you that. And all the stuff before that would have told
you that as well. It's just that I had a little bit of drama with Mr Hackett and my system of treatment books.” The
chairman of the inquiry stated “But if you drop off within the one clear day - we will hear from Dr Caldwell. We will get
Karen Caldwell who is the Veterinary Manager of the Racing Science Centre shortly. They can't possibly be up near
the threshold if you drop off one clear day out” to which the Applicant replied “Well, my horses sit - with the way I feed
they sit around say 33, 34. Most of them do. So say if this horse was sitting at 34 and old mate comes in and throws
something into his feed - and this horse - this particular horse would eat dog poo if you put in his feed been. If he
came in and threw a handful of bicarb in his feed, it would lift that horse's level. I - there were some tests done in a
stable I worked in as a kid years ago, but they did bloods and like gave a horse some bicarb, did bloods and worked
10 Transcript of Stewards’ inquiry dated 21 February 2018, page 5 11 Transcript of Stewards’ inquiry dated 21 February 2018, page 6 12 Transcript of Stewards’ Inquiry dated 21 February 2018, page 6 and 7
Queensland Racing Integrity Commission, Internal Review Decision 0022-18 15
out one scoop - electrolyte scoop of bicarb will take a horse up two points. That's not much bicarb. So if old mate has
come and done that to my stable or to my horse, it could very easily take that horse up to that level.”13
During the stewards’ inquiry, Dr Karen Caldwell, Acting Manager of Veterinary Services at the Racing Science Centre,
in evidence stated “We expect a normal horse to sit somewhere in the range of 28 to 32 millimoles per litre, and that's
based on a study of a large number of horses some time ago when the threshold was established. Now, the general
rule of thumb, working on around about 50 grams of bicarbonate is considered to increase that level by approximately
1 millimole. So that's the magnitude that we are talking about to get to the range or the vicinity of 36 millimoles per
litre. So that is a significant amount. So, look, all these things are based on probabilities, and the probability of a
normal horse having a level that exceeds 35½ millimoles, for example, is in the vicinity of 1 and 3000 without receiving
significant amounts of alkalinising agents.” The chairman of inquiry questioned “With regard to - if a horse is at the
level we see here, how long would it take for the horse to return to what would be considered - between 28 to 32 -
back to normal?” to which Dr Caldwell replied “Yes, really regardless, of what you give, a horse will return to a normal
to a level within about 24 hours. That decreases more quickly. You will see significant decreases within about 12
hours for bicarbonates. Citrates have a delayed but longer lasting effect, but they also will reduce back to a normal
level within about 24 hours, presuming you are not continuing to add. That of course is the genesis for the one-clear
day rule on the administration of alkalinising agents, such that if you were abiding by that rule, the chances of
presenting a horse on race day with a level anywhere near the threshold level, as we discussed, is very small.”14
The Applicant stated “Well, my horse - and all of my horses - I would never have anything between 28 and 32 - ever.
Maybe if I - when they come from the paddock they would be around about that level, but when my horses are in full
work they sit between mostly 33, 34. I have got a blood test here of this horse’s full brother. I didn't have a test of
him, but this is his brother and his bicarb level was 33. That's just a random blood through the week.” Dr Caldwell
stated “Just on that point, the instruments that are used for clinical determinations of bicarbonate levels are very
different to those used for determining TCO2 levels for the purpose of enforcing race day rules. They are not a reliable
comparison in that regard” to which the Applicant stated “It is a Brisbane laboratory. It is not just a vet blood. It is a
Brisbane laboratory - I think the point that I'm trying to make is most of - well, not most - all of my horses would
probably sit higher than your average premixed horse because I do mix my own feeds. I don't use premixed feeds. I
add all my own supplements, and that's just - that's just the way they are.” Dr Caldwell added “Yes. I'm saying that
the instruments they use, the reliability of that level cannot be compared to the instruments that are used for the
purposes of regulating this on race days. They are designed for clinical assessments, and they are based on a
calculated measure from bicarbonate levels. They operate very differently to the instrumentation used in racing. You
can't make a direct comparison between a reading obtained through those - and I appreciate they are a very well
renowned pathological laboratories - clinical pathology laboratories - but those values can't be interpreted as being
comparable to the levels that are recorded off the instrument used for the purposes of regulating race day levels.
There were thousands of horses included in the study, and that would have captured a spectrum of stable practices
from people who mix their own feeds to using purely commercial proprietary feeds. For the purpose, if you like, of
capturing a large sample size, when you are looking at setting a threshold it is to take account of those variabilities
that will exist.”15
13 Transcript of Stewards’ Inquiry dated 21 February 2018, page 7 and 8 14 Transcript of Stewards’ Inquiry dated 21 February 2018, page 8 and 9 15 Transcript of Stewards’ Inquiry dated 21 February 2018, page 9 and 10
Queensland Racing Integrity Commission, Internal Review Decision 0022-18 16
The reviewer acknowledges in the Internal Review decision of Hayes IR0011-18 the Queensland Civil Administration
Tribunal decision of Smith v Queensland All Codes Racing Industry Board16 in which the Tribunal heard expert
evidence from Dr John Vine and Dr Derrick Major. Despite there being evidence of some contention, Dr Vine and Dr
Major agreed the reported TCO2 levels in Smith (36.0 and 35.5mmol/L) were sufficiently high to demonstrate that
alkaline agents were probably ingested by the horse on race day.17
The Applicant’s full submissions in defence of the charge are outlined in Part 3 of this decision.
The Applicant’s legal representative submitted “The appellant has reviewed the exhibits relied upon by stewards
during the enquiry conducted on 28 February 2018. In particular, reference is made to the document entitled “RSC
V36 Record of Sample Custody and Dispatch Protocol A,” being kits listed at 2, were received in Security Bag No:
043570 which does record that upon receipt of the samples by Adriana Sencio, representative of QRIC in the
document entitled “QRIC RSC V36 Sample Dispatch to Referee Laboratory,” Adriana Sencio states at part 6. of the
aforementioned form that there was non-compliance, details being “424811, 484882, 424883, 424884, 424885:
Details on central pocket incorrect/inconsistent: racing code”. The document was not specifically referred to by
stewards when exhibits were being introduced as evidence at the commencement of the enquiry. The appellant has
reviewed the Stewards’ Reports regarding any enquiry for pre-race swabs conducted on 7 October 2017 and notes
there are no other disciplinary reports relating to the other sample numbers referred therein. It is therefore the
reasonable inference of the appellant that the pre-race samples taken by authorities at Mackay on 7 October 2017
did not comply with the Australian Rules of Racing, as opposed to such notation on that form was an indication or
directive by QRIC that there was non-compliance by licensee’s with rules of racing regarding the presence of any
prohibited substances in the pre-race samples taken that day. Therefore, any reliance on such samples taken under
those sample numbers cannot be relied upon by QRIC for any disciplinary enquiries or breaches to any rules of
racing. There has been significant judicial findings and opinion in this regard.”18
The reviewer notes the Applicant was provided with the opportunity during the stewards’ inquiry to ask any questions
regarding the samples that had been collected, or any of the documentation that related to the subject sample and
stated “No, Sir.”19 The reviewer acknowledges the non-compliance noted on the RSC V36 form was not specifically
referred to during the inquiry. The reviewer sought advice from Dr Caldwell regarding the non-compliance noted on
the RSC V36 form, to which Dr Caldwell stated “The SCO has written ‘MTC’ - I think we can reasonably infer that this
references Mackay Turf Club. Technically the information intended to be written next to ‘RACING CODE:’ is the code
of racing (so thoroughbred in this case). By convention most SCOs write “RQT” - meaning Racing Queensland
Thoroughbreds, just “TB” or “Gallops” is also OK. Arguably “Turf Club” can also only refer to thoroughbred meeting
but in the interests of drawing the line somewhere, our sample receipt team are instructed to make the note of
“incorrect/inconsistent” if there is not a clear reference to thoroughbreds. The 3-pocket pouch is used Australia-
wide. Possibly other jurisdictions rely on the entry on the pouch to indicate the relevant code of racing to the
laboratory receiving the samples but in Queensland the associated V36 custody document is our reference point for
that information. The Australian Rules of Racing make no reference whatsoever to practical aspects of the sample
16 [2016] QCAT 458 17 Smith v Queensland All Codes Racing Industry Board [2016] QCAT 458 at [9] 18 Application for an Internal Review dated 19 March 2018 19 Transcript of Stewards’ Inquiry dated 21 February, 2018 page 3
Queensland Racing Integrity Commission, Internal Review Decision 0022-18 17
collection and sealing, let alone what information is recorded on the centre pouch. In my opinion the MTC reference
is of no significance to the integrity of analysis of these samples.
The reviewer is satisfied on the evidence that non-compliance noted at section (6) on the RSC V36 form was an
inadvertent error related to the racing code. The reviewer accepts as noted at section (6) of the form that ALL seals
were intact and consistent on receipt of the samples at the RSC. The reviewer accepts the Applicants employee Ms
Claire Usher signed the ‘Sample Security Document For Taking A Sample For Analysis’ acknowledging she
witnessed the whole process of collecting TICKETS TO RIDE’s pre-race blood sample (424884), placing it in one or
more containers and sealing the containers at Mackay Turf Club on 7 October 2017.20
The Applicant’s legal representative submitted “Prohibited Substances are dealt with under AR177 and TC02 levels
are specifically indicated under AR.178C being: As there is an element of uncertainty with respect to the testing and
subsequent results, the expanded measurement of uncertainty for total plasma carbon dioxide determinations at the
threshold concentration (36mmol/L) is +/- 1.0 mmol/L. This threshold is stipulated by the testing laboratories, and
stated in pathology results issued by the Australian Forensic Laboratory and Racing Science Centre, QRIC in this
matter. The appellant notes the TC02 level is below the threshold with the allowable measure for uncertainty and
therefore stewards have charged the appellant under AR178AA(1)(b).”
For clarity, Australian Rule of Racing 178C(1)(a) states:
“The following prohibited substances when present at or below the concentrations respectively set out are excepted
from the provisions of AR 178B and AR.178H: (a) Alkalinising agents, when evidenced by total carbon dioxide (TCO2)
at a concentration of 36.0 millimoles per litre in plasma.”
Australian Rule of Racing 178AA(1) and 178AA(2) in part states:
“(1) A person must not administer an alkalinising agent, in any manner, to a horse which is engaged to run in any
race, official trial or jump-out:
(a) at any time on the day of the scheduled race, official trial or jump out and prior to the start of such event; and
(b) at any time during the one Clear Day prior to 12.01am on the day of the scheduled race, official trial, or jump out.
(2) Any person who:
(a) administers an alkalinising agent;
(b) attempts to administer an alkalinising agent;
(c) causes an alkalinising agent to be administered; and/or
(d) is a party to the administration of, or an attempt to administer, an alkalinising agent, contrary to AR.178AA (1)
commits an offence and may be penalised.”
The aforementioned rules are defined between exceeding the TCO2 threshold pursuant to Rule 178C(1)(a) and
administering, attempting, causing or is a party to administering an alkalinising agent within the one ‘Clear Day’
pursuant to Rule 178AA(1)(b), whereby stewards are satisfied a horse has, or is likely to have been, administered
any alkalinising agent contrary to Rule 178AA(1). The Rule 178AA(1) was introduced into the Australian Rules of
20 Exhibit 1
Queensland Racing Integrity Commission, Internal Review Decision 0022-18 18
Racing to regulate horses from being ‘topped up’ with alkalinising agents during the one ‘Clear Day’ period and
therefore gaining an unfair advantage on their competitors.
The Applicant’s legal representative submitted “Stewards failed to properly explain to and inform Dr Caldwell
complete details of the Applicants feed and supplement regime. The introduction of the expert (Dr Caldwell) to the
enquiry ought to have appropriately included details of Ms Cairns’ evidence, including:
Ms Cairns mixes her own feed;
Ms Cairns does not feed pre-mixed commercial feed;
Ms Cairns adds her own supplements to the feeds;
Ms Cairns uses a number of electrolytes and a number of different electrolyes;
Ms Cairns’ stable practice at the relevant time was to administer one scoop of Kelatolyte to both the morning and
evening feed and also one scoop of Salkavite to the evening feed;
Ms Cairns uses the product Kentucky Gold, which is a saline drench which does contain some bicarbonate;
Ms Cairns does give a saline which consists of Salkavite and Vytrate or Lectade;
Ms Cairns administers Electropaste which is an oral paste;
Ms Cairns uses Neutradex.”
The reviewer acknowledges it is not uncommon that many stable practices mix and add their own supplements,
including electrolytes to their feeding regime. Dr Caldwell in evidence stated “There were thousands of horses
included in the study, and that would have captured a spectrum of stable practices from people who mix their own
feeds to using purely commercial proprietary feeds. For the purpose, if you like, of capturing a large sample size,
when you are looking at setting a threshold it is to take account of those variabilities that will exist.” The reviewer
accepts the evidence of Dr Caldwell stating “regardless, of what you give, a horse (TCO2) will return to a normal to
a level within about 24 hours. That decreases more quickly. You will see significant decreases within about 12 hours
for bicarbonates. Citrates have a delayed but longer lasting effect, but they also will reduce back to a normal level
within about 24 hours, presuming you are not continuing to add.” The reviewer accepts the Applicant’s evidence that
TICKETS TO RIDE was not administered anything within 48 hours of the subject race, stating “I have since learned
through all this (subject inquiry) that I've always thought it was 48 hours (prior to racing) you couldn't administer
anything to horse before a race, and I found out it was only 1 day. So my horses don't get anything from 48 hours on
like that I give them at all. I always thought it was 2 days.”
The Applicant’s legal representative submitted “Stewards failed to properly explain to and inform Dr Karen Caldwell
of the Applicants explanation that all of her horses levels do sit around 33-34 mark at rest, and further, such evidence
was not adequately considered by Dr Caldwell.”
The reviewer notes the Applicant provided no documented evidence in support that her horses generally sit around
33-34. The Applicant provided a random blood sample from TICKETS TO RIDE’s brother ‘Anzus’ that returned a
TCO2 level of 33. The reviewer accepts the evidence of Dr Caldwell stating “We expect a normal horse to sit
somewhere in the range of 28 to 32 millimoles per litre, and that's based on a study of a large number of horses some
time ago when the threshold was established.” The reviewer finds this is consistent with TICKETS TO RIDE’s pre-
Queensland Racing Integrity Commission, Internal Review Decision 0022-18 19
race blood sample collected at its next start at Gladstone on 28 October 2017 which upon analysis reported a TCO2
level of 31.1mmol/L.21
The Applicant’s legal representative submitted “Stewards failed to acknowledge the many other factors which do
affect a horse’s TC02 level and Dr Caldwell maintained in her entirety of evidence that an alklinising agent must have
been administered within the one clear day of the race.”
The reviewer acknowledges it has been debated in many tribunal hearings since the inception of the TCO2 threshold
as to what impact, if any, transportation, dehydration/withholding of water and stress/excitement has on TCO2 levels.
In the Internal Review Decision 0098-17 of Donald Smith v Queensland Racing Integrity Commission dated 28
December 2017, Dr Caldwell stated “Certainly, we hear anecdotally of horses that are stressed for whatever reason,
particularly on course at a given time, so, travel, excitement, all sorts of factors. And while those things can produce
variations in the TCO2 level, they’re not of a magnitude that is realistically explicable or explains the sorts of elevations
that we see when we get towards the threshold levels. So, yeah, there can potentially be any effect, but it’s unlikely
to be of a significant magnitude.” Dr Caldwell added “A normal horse’s TCO2 level to sit somewhere around 28 to 32
millimoles per litre and on the basis of a whole lot of studies that were done, a threshold was set, and that’s based
on statistics. So where you talk about statistical data, there’s no absolutes, there’s only probabilities. But the
probability is that a normal horse as part of a population that were examined, which included standardbreds and
thoroughbreds, will have a normal level between 28 and 32. Now, that can obviously be elevated by the administration
of alkalinising agents, be they bicarbonates, citrates, acetates, or lactates - there’s a whole lot of them. We do know
that, again through a number of studies that have been done, that regardless of what you give, whether it’s
bicarbonates or citrates, and even if you give significant amounts of those substances, but levels will return to normal
within 24 hours, and the reason for that is that the horse’s system is trying to equilibrate constantly. There’s an ideal
level - acid-based level - at which the body likes to function, if you like, and it works constantly to return itself to that
sort of level. So levels will - after an administration, levels will return to normal within 24 hours, regardless really of
what’s been given.” Dr Caldwell further explained the plus or minus 1 millimole in the testing of TCO2, stating “So
traditionally that’s applied in the trainer’s favour as against the threshold under the rules. So while the threshold is
36, we typically call a presentation charge 37 or over. But the reality is that at a level of 36, a level that’s 1 millimole
either way, the probability is equal. So, if a sample has a reading of 36, that could be an actual reading of 37, it could
equally be an actual reading of 35. But the most likely reading in any sample is the number that’s actually reported.”
The Applicant’s legal representative submitted “Stewards failed to properly acknowledge that there is no direct
evidence that Ms Cairns did administer an alkalinizing agent to TICKETS TO RIDE during the one clear day period
prior to 12:01am on the day TICKETS TO RIDE was scheduled to race at Mackay on 7 October 2017. Stewards have
not applied the correct reasoning and could not, on the evidence presented to them, be persuaded on the balance of
probabilities that such alleged action was in fact taken by the appellant.” The reviewer accepts it is not an uncommon
occurrence in drug related inquiries that no explanation is provided how the substance found its way into the horse’s
system. The reviewer finds the Applicant is responsible for presenting her horses to race without any alkalinising
agents being administered during the one ‘Clear Day.’ Both the Certificate of Analysis for the sample the subject of
this review detected TC02 at a level of 36.3 and 36.2mmol/L. This is in complete contrast to the sample collected
from TICKETS TO RIDE at its next start at Gladstone on 28 October 2017 which returned a level of 31.1mmol/L.
21 Exhibit 13
Queensland Racing Integrity Commission, Internal Review Decision 0022-18 20
The Applicant’s legal representative submitted “Stewards failed to properly consider and accept the explanation given
by the Applicant regarding the subsequent results of the horses TCO2 taken at Gladstone on 28 October 2017.” The
reviewer notes the pre-race blood sample obtained from TICKETS TO RIDE at Gladstone on 28 October 2017 was
a race day sample that returned a TCO2 level of 31.1mmol/L. This is despite the Applicant stating “That day you got
the blood from Gladstone, that would not be that horse's resting rate. He travelled 5 hours that day. It was a terribly
hot day. He sweated. He’s not a good traveler, so I don't know if you can probably say - or here he was 36 and there
he was 31. I don't think that's probably fair. I mean to get - probably should have taken some blood out of him at rest
at the stable to get a resting rate, because I don't believe that would have been - I mean, that's a fair comparison,
and I don't believe that would have been his resting rate, given the circumstances of that particular day. I think it
would have been fairer to probably take another blood from him from here. I know we can't change that.” The reviewer
acknowledges the Applicant’s evidence stating “My horses don't get anything from 48 hours” (out from race time) and
the evidence of Dr Caldwell stating “Really regardless, of what you give, a horse will return to a normal to a level
within about 24 hours (subsequent to administering alkalinizing agents). The reviewer finds that despite TICKETS
TO RIDE travelling five (5) hours in hot conditions to Gladstone on 28 October 2017, as evidenced by the Applicant,
the horse returned a TCO2 level of 31.1mmol/L, which is reflective of the normal TCO2 level of a horse on race day
as evidenced by Dr Caldwell between 28 to 32mmol/L.
The Applicant’s legal representative submitted “Stewards failed to properly consider and acknowledge the Applicants
explanation regarding the possibility that someone else may have administered any alkalinizing agent to the horse”
The reviewer accepts the Applicant’s evidence that around the time of the subject sample the Applicant had received
threats of physical violence from a person that had knowledge of the horses in her stable. The threats related to a
dispute over the use of a paddock. Notwithstanding, the reviewer finds there is no direct evidence to substantiate the
Applicant’s claim that a third person was responsible for the elevated levels.
In weighing up the evidence, the reviewer is satisfied that the sample the subject of this review was collected from
TICKETS TO RIDE at Mackay on 7 October 2017. This is supported by the Applicant’s employee, Ms Usher
witnessing the entire process of collecting the sample, placing it in one or more containers and sealing the container
or containers and subsequently signing the Sample Security Document For Taking A Sample For Analysis at Mackay
on 7 October 2017. The reviewer finds the Applicant failed to provide a plausible explanation for the elevated TC02
levels during the stewards’ inquiry conducted on 21 February 2018. The Applicant’s only possible explanation was a
third person was responsible for the elevated levels. The reviewer acknowledges the Applicant’s evidence stating “I
have since learned through all this (the subject inquiry) that I've always thought it was 48 hours (prior to racing) you
couldn't administer anything to horse before a race, and I found out it was only 1 day. So my horses don't get anything
from 48 hours on like that I give them at all. I always thought it was 2 days. So that's how careful I am. I always
thought it was 2 days. I have only just recently learnt that it is actually 1 day, and if you actually go through these
books and look at race meetings and dates, they will tell you that.” This evidence indicates it is reasonable to conclude
a period exceeding 48 hours existed between the last known administration of alkalinising agents to TICKETS TO
RIDE and the time of the subject samples collection. The reviewer finds based on the evidence of Dr Vine and Dr
Major in Smith that agreed the reported TCO2 levels in Smith (36.0 and 35.5mmol/L) were sufficiently high to
demonstrate that alkaline agents were probably ingested by the horse on race day. This is supported by Dr Caldwell’s
evidence stating “regardless, of what you give, a horse (TCO2) will return to a normal to a level within about 24 hours.
Queensland Racing Integrity Commission, Internal Review Decision 0022-18 21
That decreases more quickly. You will see significant decreases within about 12 hours for bicarbonates. Citrates have
a delayed but longer lasting effect, but they also will reduce back to a normal level within about 24 hours, presuming
you are not continuing to add.” The reviewer finds on the evidence it would be reasonable to infer that the last known
administration of alkalinising agents to TICKETS TO RIDE was not the sole reason for the horse’s elevated TC02
levels of 36.3 and 36.2mmol/L. The reviewer finds, on this factor alone, it would be reasonable to conclude that an
administration of alkalinising agents was administered to TICKETS TO RIDE closer to race time than the evidence
suggests. The reviewer finds there is no direct evidence to substantiate the Applicant’s claim that a third person was
responsible for the elevated levels and having considered the evidence and aforementioned factors is satisfied the
charge is proven.
The Applicant has held a trainer’s licence for a period of twenty (20) years. The Applicant’s disciplinary history notes
a prior offence under the subject rule, albeit dating back to 2000, which incurred a three-month penalty that was
reduced to a monetary fine of $2,000.00. The Applicant, in evidence, stated “That wasn't my horse. I just took to the
races for someone. That was my horse. It had nothing to do with me.” The chairman of the inquiry stated “It’s actually
on your record. There is - I think initially it was a 3 month penalty reduced to a 1200 fine” to which the Applicant
replied “But it wasn't my horse. The other bloke that I took it to the races for - I can't remember his name. He paid it.
He paid it all” the Chairman added “Get penalised or ---.” the Applicant replied “Yes, but I - I didn't. He paid for it. All
I did I was - I took the horse to the races that day for this bloke and he got a positive swab.”22 The Applicant’s
disciplinary history further showed a more recent offence under the subject rule in July 2012 where no penalty was
incurred.
The precedent penalty scale for an offence pursuant to Rule 178AA(1) in Queensland have previously incurred
monetary fines of $2,500.00.
The Rule 178AA(1) was introduced into the Australian Rules of Racing to regulate horses from being ‘topped up’ with
alkalinising agents during the one ‘Clear Day’ period and therefore gaining an unfair advantage on their competitors.
Dr Young stated “The administration of alkalinising salts prior to racing may enhance or manipulate the racing
performance of a horse by delaying the onset of fatigue and improving the endurance of the horse.” The reviewer
finds, based on the expert evidence, it is reasonable to infer that when TCO2 levels reach the vicinity of 36.0mmol/L
it’s a clear attempt to cheat and gain an unfair advantage.
The Applicant’s legal representative submitted on penalty “Stewards failed to properly, adequately and appropriately
consider all precedents relevant to a charge by QRIC under AR178AA(1)(B) and ultimately did only rely upon
decisions adverse to trainers in similar situations. It is noted there are only two prior enquiries recorded on QRIC’s
stewards reports in this nature. One trainer was charged under AR178AA(1)(b) and the other trainer was found to
have not been in breach of said rule or any other Australian Rule of Racing. Did fail to acknowledge the decision at
enquiry in the matter of Peter Gardiner -The Gringo, dated 21 November 2017, of which such trainer presented to
answer elevated TC02 at 36.0mmo/L, similar to the result in question for Tickets to Ride. In the matter of Gardiner,
the horse “The Gringo” placed third in a Class 1 - 1530m race at Ipswich on 21 July 2017. During the enquiry, Mr
Gardiner explained his feed and supplementation regime for the relevant period prior to “The Gringo” competing in
22 Transcript of Stewards’ Inquiry dated 21 February 2018, page 15 and 16
Queensland Racing Integrity Commission, Internal Review Decision 0022-18 22
the aforementioned race. Mr Gardiner also provided the results of pathology reports taken from the subject horse by
his veterinarian in the period prior to 21 July 2017.”
The official stewards report findings in the matter of Mr Gardiner stated “When considering the evidence, the Stewards
had to take into account that the measurement of uncertainty for TC02 determinations at the threshold concentration
of 36.0 mmol/L is 1.0mmol/L. When considering the level returned by THE GRINGO, the panel were not satisfied that
a breach of AR.178 existed. The Stewards also could not be satisfied to the requisite standard that Mr Gardiner had
breached AR.178AA (1)(b) for administering an alkalinising agent to THE GRINGO at any time during the one Clear
Day prior to 12.01am on the day of the scheduled race.”23
The reviewer finds each case is treated on its merits and set of circumstances. In weighing up the aforementioned
factors related to penalty, the reviewer finds the original $2,500.00 penalty for an offence under the subject rule is
lenient considering the serious nature of the offence, and that the administration of alkalinising salts prior to racing
may enhance or manipulate the racing performance of a horse by delaying the onset of fatigue and improving the
endurance of the horse.
Accordingly, the reviewer considered amending the penalty by way of an increased penalty. However, taking into
account the mitigating circumstances of the evidence, in particular, the Applicant’s claim (albeit not substantiated)
that a possibility existed that a third person was responsible for the elevated TCO2 levels, the reviewer is not
completely satisfied an increase in penalty is warranted in such circumstances. Notwithstanding, the Applicant is
required to ensure the security of her stables is of a standard that limits unauthorised exposure and therefore in the
circumstances the reviewer finds the original penalty fair and reflective of the evidence and accordingly confirms the
original decision on charge and penalty.
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 enquiries@qcat.qld.gov.au
23 Official Stewards’ Report dated 21 November 2017
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