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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.


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.


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.


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.


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.


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.


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.


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.”


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


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


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.


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.


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


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


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


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


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


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-


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


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.


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


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 [email protected]

23 Official Stewards’ Report dated 21 November 2017

mailto:[email protected]

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