HRNSW STEWARDS DECISION
Inquiry of Mrs Kim Hillier and Mr Peter Hillyer
Stewards Panel: R Sanders (Chairman), M Prentice and T Quick (“the Stewards”)
Background:
On Thursday 28 August 2014 HRNSW Stewards opened an inquiry into the total carbon
dioxide (TCO2) levels being recorded in horses trained by Mrs Kim Hillier between the period
1 January 2013 up until 15 August 2014.
Of particular concern to HRNSW was the number of horses being presented by Mrs Hillier
that had recorded TCO2 levels near or exceeding the threshold of 35mmol per litre.
At the initial Inquiry Mrs Hillier was unrepresented and provided evidence regarding her
husbandry practices and regimes of horses leading into races.
The evidence tendered by Mrs Hillier pertaining to the husbandry practices of her horses
revealed that any horse under her care and management that was to be stomach tubed was
done outside of the 48 hour requirement of the Rules and done by an unlicensed person
namely her father Mr Peter Hillyer. Stewards will return to the use of an unlicensed person
to conduct such husbandry practices later.
The feeding regime of Mrs Hillier is not inconsistent with the normal regime of other trainers
and in addition to the normal premix feeds corn, chaff, Lucerne and wheaten. In addition she
administers, other additives such as Livamol, salt, sulphur and carbolene are mixed on an as
needs basis.
She further added that she uses a product called Acidbuf, which although seems to be
specifically for use on cattle and sheep, this is not the first time Stewards are aware of such
product being used in equine stables. The evidence pertaining to the use of Acidbuf,
however, was that it was not fed to the horses consistently and was added on an ad hoc
basis when Mrs Hillier believed the horses required it. Her initial evidence was that any
Acidbuf was withdrawn one week prior to any horse racing. That evidence then seemed to
change through the course of the Inquiry. There was also inconsistent evidence regarding
the procurement of the product by Mrs Hillier.
Some of the horses that were of concern to HRNSW were as follows (only sample of
readings listed):
HORSE
DATE
TCO2 Level
AREYOUTALKINGTO ME
-
2 8 14
19 7 14
29.8
35.3
TANNER
-
2 8 14
5 7 14
6 6 14
2 5 14
27 4 14
13 4 14
31.5
33.4
34.6
30.3
35.2
35.5
ALITTLE BIT FROSTY
-
1 8 14
27 7 14
31.0
36.7
BANK OF NOVA
-
15 8 14
11 7 14
9 5 14
31.9
35.5
34.2
MEAN COURAGE
-
8 8 14
26 7 14
23 5 14
21 3 14
36.5
32.5
29.6
31.0
BARLEY SHAKER
-
8 8 14
9 5 14
26 4 14
24 4 14
1 2 14
34.8
36.4
35.4
36.7
32.8
Without going through all of the horses of concern there were a number of other horses
under Mrs Hillier’s care which recorded higher than average levels. This brings in a question
about the husbandry practices employed by Mrs Hillier in her stables.
In summary it can be best described as this. Since 1 January 2013 Mrs Hillier has had 132
sealed samples analysed for TCO2 by an approved laboratory, namely Australian Racing
Forensic Laboratory (ARFL). The stable average based on that data was 32.4 however 16 of
those samples were above 35mmol per litre.
In July 2014 the Board of HRNSW concerned following a report which indicated an increase
in horses being presented with TCO2 level greater than 35mmol, introduced a policy that
would result in horses that had recorded elevated levels being required to be presented on
course earlier than what otherwise would be required by the Rules. That policy came into
force from 1 September 2014. However in the period between the Board’s introduction of
the policy and its formal implementation on 1 September 2014, trainers who recorded
elevated levels were provided with written notice of such. Between the period 9 July 2014
and 18 August 2014 HRNSW had analysed 272 by ARFL sealed blood samples for TCO2.
Of those 272 analysed samples, 7 of those had levels greater than 35mmol per litre.
Of particular concern to the Stewards which led to this inquiry commencing was that of the 7
samples greater than 35mmol, Mrs Hillier’s stable contributed 4 or 60% of those, while
individual trainers accounted for the remaining 3.
Of the 272 samples analysed between 9 July 2014 and 18 August 2014, 17 of those were
from Mrs Hillier’s stables. As previously outlined 4 of those 17 samples from Mrs Hillier’s
stables recorded TCO2 levels greater than 35mmol per litre. Consequently it then
establishes that 23.5% of the samples from Mrs Hillier’s stable returned TCO2 levels greater
than 35mmol per litre, compared with 1.2% of the remaining 252 samples (reflective of other
trainers practices) during that same period.
Given the concerns of the elevated TCO2 levels recorded by horses from Mrs Hillier’s stable,
HRNSW Investigator Mr Beekman attended the stable property on 2 August 2014 prior to
those horses racing and samples were taken and analysed to what could be determined as
baseline samples as the raceday regime was being closely monitored. There were no
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restrictions placed upon the pre-race procedures of Mrs Hillier other than those already
provided for by the Australian Harness Racing Rules. The horses tested recorded well within
the normal range.
During the inquiry evidence was also taken from HRNSW Regulatory Veterinarian Dr M
Wainscott.
Dr Wainscott highlighted that since 2012 he has kept records regarding the TCO 2 level of
standardbred horses that race in NSW. He gave evidence that the average NSW
Standardbred TCO2 level based on in excess of 8000 samples was 30.2 mmol per litre. He
added “when you get large amounts of data like that the data is spread around the average
and the way that data is spread is 65% of horses are plus or minus about 1.8% (standard
deviation) of the 30.2 and 95% of the horses will be plus or minus 3.6”.
What this means is that 95% of the NSW Standardbred population’s TCO2 levels fit between
the ranges of 30.2 plus or minus 3.6 which equates to a top level of 33.8 mmol. Based
purely on statistics, only 2.5% of horses should record a level above 33.8 mmol per litre
based on the population study of horses being presented for races.
Dr Wainscott also presented evidence that if you add another standard deviation of 1.8
taking your level as high as 35.6 that would account for 99.7% of the horses.
Dr Wainscott was questioned as to how a horse would achieve a level greater than 35 mmol
on raceday. Dr Wainscott presented evidence that TCO2 levels “above 35 indicates that a
horse has got what we call alkalosis, its alkalotic and the most likely cause to have that is to
have the administration of alkalinising agents by some means or form. “
With regard to the timeframe between when a horse could be administered alkalinising
agents and maintaining an elevated TCO2 level, Dr Wainscott stated, “what happens is that
you do get alkalosis happening in the kidneys very quickly eliminated and get everything
back to normal if you like back to how it was to a normal situation and that occurs in a matter
of within 24 hours.”
When questioned specifically as to the levels of Mrs Hillier’s horses, particularly ALITTLE
BIT FROSTY 36.7 and MEAN COURAGE 36.5, and as to how those levels could be
explained consistent with other levels recorded from these horses, Dr Wainscott’s evidence
was that, “there has been administration of an alkalinising agent in close proximity to the
time of sampling and by close proximity most probably within 24 hours before”.
When questioned regarding what Dr Wainscott was referring to by administration due to a
horse not willing to eat the required amount of sodium bicarbonate he answered “it’s often
administered by stomach tube it is quite common in the industry that a lot of trainers will
drench horses with bicarbonate especially after they hobble.”
When pressed by the Chairman in relation to a time frame for such administration to record
such elevated levels Dr Wainscott concurred with his earlier evidence that it would have to
be within 24 hours of such race. Dr Wainscott further stated that depending on the
alkalinising agents administered but certainly with sodium bicarbonate which is probably the
most common and well known one that it does peak some five or six hours after
administration and then by 24 hours the TCO2 levels are back down to normal. Dr Wainscott
further added that any horse administered alkalinising agents by a stomach tube in
accordance with the Rules would be negligible as a result.
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Following that inquiry the matter was adjourned and rescheduled to Thursday 6 November
2014. At the recommencement of the hearing Mrs Hillier was represented by Lawyer Mr
Frank of Frank Legal.
At this hearing Mr Peter Hillyer attended and gave evidence pertaining to his property and
his conduct in and around the stables given he does not hold the privilege of any licence.
Mr Hillyer admitted to stomach tubing horses at the request of Mrs Hillier however he was
adamant that all was done outside of the 48 hour requirement. This statements needs to be
considered in light of the evidence given by Mr Hillyer to which is referred later in this
decision. In summary his evidence was he just turned up and treated the horses he was told.
There is no evidence that Mr Hillyer was aware of the horse he was about to treat nor when
it was next racing. In fact the evidence depicts that Mr Hillyer was very busy working in his
own business and that he drenched the horses at the request of his daughter (Mrs Hillier)
whom already had the drenches mixed when he arrived.
The evidence of Mrs Hillier and Mr Hillyer regarding some facets of how and/or when the
horses were being stomach tubed is contradictive in particular about the person responsible
for making the drenches and what products or knowledge each may have of what is included
in the drench.
There was evidence that Mr Hillyer also was engaged to apply DSMO to horse’s legs.
Mr Hillyer further added that due to the water quality available on his rural property he had
an injection system which injected chemicals into the water of which bicarbonate was one of
those. Mr Hillyer provides the property from which his daughter, Mrs Hillier, trains from.
Further evidence was taken by Mr Shane Hillier, husband of Mrs Hillier and also a licensed
Trainer/driver. Mr Hillier gave evidence pertaining to husbandry practices around the
stables. He categorically stated in his evidence that he was not responsible for stomach
tubing horses nor does he mix the liquid to be drenched and administered to the horses.
After some considerable evidence the Inquiry was adjourned until Wednesday 26 November
2014 at which stage Mrs Hillier was issued with the following charges:
Charge 1
Pursuant to Australian Harness Racing Rule (AHRR) 239A – which reads:
A person whose conduct or negligence has led or could have led to a breach
of the Rules is guilty of an offence.
The particulars of the charge were:
That Mrs Hillier’s conduct as a licensed Trainer has led to a breach of the
AHRC Rule 90A(3.4)(b)(c) therefore invoking the provisions of AHRC Rule
91 by allowing an unlicensed person namely Mr Peter Hillyer to stomach
tube registered standardbred horses in your care between the period of 1
January 2013 and ending the period 1 September 2014 when during that
period Mr Peter Hillyer was not the holder of any licence with HRNSW.
Stomach tubing of a horse is one which assists with the training and care of
registered horses. Stomach tubing is a device which is not easy to perform
and in the opinion of Stewards has four particulars:
(1) it is for administering a substance to horses,
(2) it assists in the training and care of horses,
(3) it can also be a welfare issue if not done appropriately,
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(4) it can be subject to abuse if done close to a race and a breach of a Rule if
done within 48 hours of a race.
Charge 2
Pursuant to AHRR Rule 190B(4) which reads:
A Trainer who fails to comply with the provisions of Sub Rule (1) or (3) is
guilty of an offence. Part 1 of that Rule states the Trainer shall at all times
keep and maintain a log book –
(a)
Listing all therapeutic substances in his or her possession
(b)
Recording all details of treatments administered to any horse in
his/her care including as a minimum requirement:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
the name of the horse
date of administration of the treatment
name of (and brand name) of active constituent
the route of administration
the amount given
the name and signature of the person who administered
and/or authorised the treatment
The particulars being that:
Licensed Trainer Mrs Hillier failed to adequately maintain a log book in
accordance with AHR 190(B)(i) by not recording any treatment
between the period 28 June 2014 and 21 July 2014 further
particularised as Part (ii) of that Rule.
During the period covered by Exhibit number 18 which is the log book
which again commences 28 June 2014 and ended period 24 August
2014 she failed to adhere to the requirements of Rule 190(B) by failing
to list the treatments which the horses were given, the amount given
and the name and signature of the person(s) who
performed/administered the treatments.
Charge 3
Of which there are four particulars was issued pursuant to AHRR 240
which reads:
A person shall not whether alone or in association with others do, permit or
suffer anything before, during or after a race which in the opinion of the
Stewards or Controlling Body may cause someone to be unlawfully
advantaged or disadvantaged or be penalised or corrupt or otherwise
improper.
The Stewards stipulated they were dealing with the "improper” aspect of the
abovementioned Rule.
Particular 1 – That as the registered Trainer of AREYOUTALKINGTOME that
she did improperly in the opinion of Stewards either alone or in association
with others permit or suffered for that horse to be administered to it via a
stomach tube alkalinising agents within 24 hours of Race 1 conducted at a
Harness Meeting on 19 July 2014 in which AREYOUTALKINGTO ME
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competed and of which a pre race blood sample from that horse was found to
contain upon analysis a TCO2 level of 35.3mmol per litre.
Particular 2 – That as the registered Trainer of ALITTLE BIT FROSTY she did
improperly in the opinion of Stewards either alone or in association with
others permitted or suffered for that horse to be administered to it via a
stomach tube alkalinising agents within 24 hours of Race 2 conducted at a
Harness Meeting on 27 July 2014 in which ALITTLE BIT FROSTY competed
and of which a pre race blood sample from that horse was found to contain
upon analysis a TCO2 level of 36.7 mmol per litre.
Particular 3 – That as the registered Trainer of MEAN COURAGE she did
improperly in the opinion of Stewards either alone or in association with
others permitted or suffered for that hoarse to be administered to it via
stomach tube alkalinising agents with 24 hours of Race 9 conducted at a
Harness Meeting on 8 August 2014 in which MEAN COUARGE competed
and of which a pre race blood sample from that horse was found to contain
upon analysis a TCO2 level of 36.5 mmol.
Stewards issued charges in the alternative to Charge 3 and did so pursuant to AHRR
193(1);
Rule 193(1) reads
A person shall not attempt to stomach tube a horse nominated for an event
within 48 hours of the commencement of the race or event.
Particular 1 - That as the registered Trainer of AREYOUTALKINGTOME
Mrs Hillier did stomach tube that horse within 48 hours of the horse
competing in Race 1 at a Harness Racing Meeting on 19 July 2014.
Particular 2 – That as the registered Trainer Mrs Hillier did stomach tube the
registered standardbred ALITTLE BIT FROSTY within 48 hours of that horse
competing in Race 2 at a Harness Racing Meeting on 27 July 2014
Particular 3 – That as the registered Trainer Mrs Hillier did stomach tube the
registered standardbred MEAN COURAGE within 48 hours of it competing
at a Harness Racing Meeting on 8 August 2014.
Mrs Hillier entered no pleas to all the charges.
The Inquiry was adjourned to allow for written submissions. Mr Frank of Frank Legal made
submissions to the charges on 14 January 2015 on behalf of Mrs Hillier.
Mr Peter Hillyer was also issued with a charge pursuant to Rule 91(1) and (2).
Rule 91(1) reads:
Subject to sub rule (4) a person shall not carry on any activity
regulated by licence –
(a)
(b)
(c)
(2)
If that person is not the holder of a current licence
That person’s licence is suspended
Except in the terms and conditions of a licence
A person who fails to comply with any provisions of sub rule (1) is
guilty of an offence
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The particulars being that:
Mr Hillyer is an unlicensed person did during the period 1 January
2013 to 1 September 2014 assist licensed Trainer Mrs K Hillier in the
training, management and care of registered standardbreds by way of
stomach tubing a number of horses at her registered property.
Mr Frank also made submissions on behalf of Mr Hillyer.
The submissions of Mr Frank of 14 January 2014 in defence of the charge outline the
standard of proof to which the Stewards must be satisfied and referred to the High Court
Case of Briginshaw V Briginshaw (1938) 60 CLR 336.
Those submissions further addressed the High Court Decision of Neat Holdings Pty Ltd –vKarajan Holdings Pty Ltd and submitted that in serious matters clear or cognisant or strict
proof is necessary to be found guilty of such conduct on the balance of probabilities.
Mr Frank clearly and correctly points out that the onus lies with HRNSW Stewards to prove
such charges to the requisite standard. Mr Frank also submits that the variance in TCO2
levels for the subject horses based on test results taken over the period were recorded as:
AREYOUTALKINGTOME
ALITTLE BIT FROSTY
MEAN COURAGE
5.5mmol
5.6mmol
5.5mmol
Mr Frank submitted that Dr Wainscott under cross examination conceded that transport and
the stress of racing have been considered to be alternative reasons for heightening TCO2
levels in horses although it appeared these have almost always been shown to be
unfounded. TCO2 levels of horses are subject to variance even in a controlled environment.
Diets administered to horses have an influence on TCO2 levels. The product Acidbuf
includes ingredients which have an alkalinising effect. Honest husbandry practices activities
and management practices of a Trainer can impact upon the TCO2 reading of a horse.
External and even unknown reasons can also affect a horse’s TCO2 level and TCO2 levels
can vary dependent on the time of day in accordance with the seasons. Particular food
intake such as concentration of salts can affect TCO2 levels. 50 grams of bicarbonate
added to horses’ drinking water can elevate the TCO2 reading by one point while 200 grams
of bicarbonate can elevate a horse’s TCO2 level above 37mmol and in expressing an
opinion with regards to the results provided by the ARFL he was not aware of the
recalibration history of the testing regime.
He summarises Mrs Hillier’s evidence as - she administers the product Acidbuf and
Carbolene to her horses. Mrs Hillier has at all times admitted to failing to record her
treatment practices in a log book, that she does not stomach tube her horses and this is
carried out by her father Peter Hillyer and that she is not aware why horses trained by her
recorded elevated TCO2 levels and she denied that horses were being stomach tubed within
48 hours of the race.
In fairness the evidence given by Dr Wainscott under cross examination was not as succinct
as expressed in the submissions of Mr Frank. To assist extracts of the evidence are below;
MR FRANK: Apart from the deliberate administration of alkalinising agents.
DR WAINSCOTT: There have been a lot of supposed reasons which include
transport and stress of racing and on nearly every occasion these have proved to be
unfounded. There's several papers which allude to that. So there is a natural
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variation within – you know the horses will vary around a normal level to some extent,
but apart from the administration of alkalinising agents, there's nothing that would fit
the bill.
MR FRANK: And in fact, I think the industry standard would suggest that the bulk of
horses tested would be in the range of about 32, is that right?
DR WAINSCOTT: Our average on approximately 8000 samples, I think it is, the
average is 30 – between 30.5 and 31 and one of the statistical parameters is the
standard deviation which is about 1.8, so that just tells you that plus or minus 1.8
from that average includes 65 percent of the population and plus or minus 3.6 of that
average includes 95 percent of the population. So – if that's clear.
MR FRANK: And in simple terms?
DR WAINSCOTT: But if you see it in simple terms, 31 – if we said 31 and we called
the standard deviation 1½, 95 percent of the horses should be under 34.
MR FRANK: Right. So 95 percent of the horses are under 34.
DR WAINSCOTT: Yeah, but they are between – using those figures of 31 and a
standard deviation of 1.5, 95 percent of them would be between 28 and 34, and there
would be 2½ percent above 34 and 2½ percent below 28.
MR FRANK: ... I'm talking about a product like Acid Buf, for example.
DR WAINSCOTT: I had no information whatsoever on the use of Acid Buf in horses.
However, it does, certainly from the product information I have been able to get, have
a definite effect in keeping the pH of the stomach – of the rumen of a ruminant
higher, which is essentially an alkalinising effect.
MR FRANK: It's been suggested to me that 50 grams of bicarbonate added to
drinking water could elevate the readings by one point. Does that make sense to you
as a scientist in this area?
DR WAINSCOTT: 50 grams – it – it could. You would expect an effect within a few
hours orally – probably for hours, around about that time – four or five hours you will
get your maximum effect, and it may be in the order of a point. It's been shown that –
I've got data that shows that giving approximately 200 grams will get them up over 37
for a short period of time.
MR FRANK: Right. So ----DR WAINSCOTT: By stomach tube.
DR WAINSCOTT: All I can tell you is if they are given approximately – if you are
talking about a 500 kilogram horse, which most standardbreds would probably be a
little bit less than that, if they are given 250 grams, the bicarbonate can creep over 36
approximately 4 hours after administration, and then it's back down to normal – back
down under – back down to its pre-treatment levels 16, 18 hours later.
MR FRANK: Of course, creeping over 36 would depend upon what is the base –
base reading?
DR WAINSCOTT: Yeah, this is off a base reading of 30.
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MR FRANK: Of 30?
DR WAINSCOTT: It's three standard deviations. So that's, yeah, 99 – well, yeah, 99
percent of them should be under ----THE CHAIRMAN: 35.9.
DR WAINSCOTT: 5.4 plus 30.5, yeah, 35.9.
THE CHAIRMAN: So, as I said, so 36, you would expect 99.7 percent of the
population to be as high as 36, but on the other side, lower than what the machine
would read, down as low as 20 ----THE CHAIRMAN: You were asked some questions about alkalinising salts and the
science based on an effect on horses. Is there any evidence, or scientific evidence,
that an increase in alkalinising or – yeah, alkalinising, or total carbon dioxide level of
horses, assists the horse in breaking down lactic acid?
DR WAINSCOTT: Um, the – the proposed effect would be that it would act as a
buffer and limit the change in pH of the blood and the muscle and the reason that a
horse fatigued at the end of the run is that there is a build-up or a lowering of the pH
which prevents the normal functioning of the muscle cells.
THE CHAIRMAN: So it would have some effect on a horse by lowering the pH?
DR WAINSCOTT: Yeah. Yeah. Well, by maintaining the pH and preventing the drop,
which is the result of the exercise.
DR WAINSCOTT: You give it half a gram per kilogram, you are giving it 250 grams.
THE CHAIRMAN: All right. And it got a rise – its peak was four hours after, was it?
DR WAINSCOTT: This is an average of – this is the average on six horses.
THE CHAIRMAN: Yes. But ----DR WAINSCOTT: And it rose from a baseline of about 30 to just over 36, by the
looks of things. It's not all that clear on this graph, but it's certainly over 36, probably
about 36.5.
THE CHAIRMAN: Okay. But that's peaked at four hours?
DR WAINSCOTT: Peaked at about 4 to 6 hours.
Dr Wainscott, at the initial hearing on 28 August 2014 gave considerable evidence regarding
in particular, the levels and statistics pertaining to samples collected by HRNSW. Extracts of
his evidence;
DR WAINSCOTT: Since 2012 I've kept the records and the average TCO2 level of
about 8000-plus samples is around about 30.2, I think, was the last – for that period
from 2012 up till – I think those records go up to the end of July.
THE CHAIRMAN: So from 2012 to 2014, how many samples did you say?
DR WAINSCOTT: It's in excess of 8000.
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THE CHAIRMAN: Samples. The industry average is 30.2.
THE CHAIRMAN: Yes. So, you know, you are looking at a 0.3 percent would actually
be higher than the 35.6 on three standard deviations?
DR WAINSCOTT: On – yes.
THE CHAIRMAN: You wouldn't expect then percentages that have been seen for as
high as 23.5 percent of those horses being higher than 35, would you?
DR WAINSCOTT: No, you wouldn't, no.
THE CHAIRMAN: So just based on that statistical data and then the percentages that
apply for that, would you say in your opinion that a trainer who had a percentage of
around 23.5 percent of runners tested higher than 35 would be well outside the
standard deviation or the norm?
DR WAINSCOTT: Well, it is certainly outside what you would expect.
DR WAINSCOTT: Yes, I was given all the records for the horses trained by Mrs
Hillier going back to 1 January 2013 and from those horses we had taken 132
samples and the average for the stable was 32.4. Which although is higher than the
Statewide average, if you like, it is certainly within reasonable ----THE CHAIRMAN: Normal?
DR WAINSCOTT: Reasonable, yeah. Normal. There's certainly no issues with it
being 32.4. And of those 132 samples, 16 of those samples were equal to or above
35.
THE CHAIRMAN: All right. So 16 into 132, I'll have to work out that as a percentage.
In your opinion, though, Dr Wainscott, for a horse to get greater than 35, how can
that occur on race day?
DR WAINSCOTT: On race day? Above 35 indicates that the horse has got what we
call an alkalosis, it's alkalotic and the most likely cause to have that is to have the
administration of alkalinising agents by some means or form.
THE CHAIRMAN: So when you say it's the administration of some alkalinising
agents, there is obviously alkalinising agents in many forms, and you've already said
it's in pre-mix feeds and other things. Would pre-mix feeds alone be able to attribute
a horse to that level?
DR WAINSCOTT: No.
THE CHAIRMAN: What about the administration of Carbalene three days prior or
greater than 48 hours out?
DR WAINSCOTT: No. What happens is that if you do get an alkalosis happening, the
kidneys very quickly eliminate it and get everything back to normal, if you like, back
to how it was, to a normal situation, and that occurs in a matter of – very quickly,
within probably 24 hours.
THE CHAIRMAN: Is there anything that Ms Hillier said today in her evidence of what
her husbandry practices are that you could attribute to horses such as
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Areyoutalkingtome recording a 35.3, Tanner 35.5, Alittle Bit Frosty 36.7, Bank Of
Nova 35.5 or Mean Courage 36.5?
DR WAINSCOTT: No, there's nothing in the management practices that she's
outlined. No, there's nothing to explain why you would be getting a number of those
high levels.
THE CHAIRMAN: In your opinion, is there an explanation that could have led to
these horses – no, I will rephrase it. In your expert opinion as a veterinary surgeon
who obviously has done a bit of research, you've analysed 8000-plus samples in the
last couple of years – in your expert opinion, what is the only explanation for such
levels?
DR WAINSCOTT: That there's been an administration of alkalinising agents in close
proximity to the time of sampling and by close proximity, most probably be within 24
hours before.
Mr Frank on behalf of Mr Hillyer submitted that his involvement pertaining to the horses of
Mrs Hillier were that he supplies the premises at which she stables and trains horses; he
occasionally stomach tubes horses with saline on the instruction of Mrs Hillier, situated on
the property is a 1000 litre water tank and agitator which is used to obtain water for the
property. The system includes a bicarbonate injection unit – the ratio of bicarbonate to water
is 25 kilograms per 1000 litres of water and the water is used to supply drinking water to
some of Mrs Hillier’s horses on the property.
Mr Frank summarised Mr Hillyer’s evidence as: he is not a licensed person; he does not hold
a share in any harness racing horses; he previously trained horses for 20 odd years
including winners - and is currently a farmer.
The evidence demonstrates that Mr Hillyer is the only person whom is responsible for the
stomach tubing of horses in the management and care of Mrs Hillier. Extracts of the
evidence below support this:
THE CHAIRMAN: What about drenches or salines, do you do that?
MRS HILLIER: No. I saline, but do not.
THE CHAIRMAN: So you saline. When do you normally saline?
MRS HILLIER: I do them after they hobble. They usually hobble about Tuesday if
they are racing Friday, depending on when they race.
THE CHAIRMAN: What's in your saline?
MRS HILLIER: The five scoops of Salkavite. I don't do every one, I just do it when I
see that they are not – didn't perform – worked really good.
THE CHAIRMAN: So just five scoops of Salkavite into a drip – into a drench –
saline?
MRS HILLIER: In water – what it says on the container.
THE CHAIRMAN: Mmm, mmm.
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MRS HILLIER: Yeah.
THE CHAIRMAN: And who does that? Do you do that yourself?
MRS HILLIER: No.
THE CHAIRMAN: Who does that?
MRS HILLIER: I get my father.
THE CHAIRMAN: So your husband or your brother, they don't ----MRS HILLIER: No.
THE CHAIRMAN: They don't do that?
MRS HILLIER: No.
THE CHAIRMAN: Only your father?
MRS HILLIER: Yes.
THE CHAIRMAN: And he's licensed?
MRS HILLIER: No.
THE CHAIRMAN: So if he's not licensed, why is he doing the treatments of horses?
MRS HILLIER: Because he knows how to do it.
THE CHAIRMAN: Are they recorded in your diary when you do them – treatment
log?
MRS HILLIER: Yeah, usually.
Mr Hillyer’s evidence given on 6 November 2014 reaffirms that he is the person whom is
responsible for the stomach tubing of the horses:
THE CHAIRMAN: Now, in relation to your involvement in and around the stable for
your daughter, can you tell us what involvement you have in the stable?
MR HILLYER: I'm only – I supply the premises and I occasionally stomach tube, and
that's about it. I've got too much other interest.
THE CHAIRMAN: All right. So you occasionally stomach tube?
MR HILLYER: Occasionally.
THE CHAIRMAN: So when you say "occasionally" ----MR HILLYER: If Kim wants a horse done, she thinks it needs saline, well, I do it, if
I've got time.
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THE CHAIRMAN: Is that weekly?
MR HILLYER: Oh, probably fortnightly, if – it's hard to say. I don't keep a record. She
just rings me if she needs one. Like, if I've got time and I'm not busy, I'll do it, and
that's what it amounts to.
THE CHAIRMAN: So when you say "fortnightly", is it one a fortnight or a couple a
fortnight?
MR HILLYER: Oh, whatever she lines up and says, "Dad, I want to do three or four",
that's all we do.
Mr Frank on behalf of Mr Hillyer submitted that his involvement pertaining to the horses of
Mrs Hillier were that he supplies the premises at which she stables and trains horses; he
occasionally stomach tubes horses with saline on the instruction of Mrs Hillier, situated on
the property is a 1000 litre water tank and agitator which is used to obtain water for the
property. The system includes a bicarbonate injection unit – the ratio of bicarbonate to water
is 25 kilograms per 1000 litres of water and the water is used to supply drinking water to
some of Mrs Hillier’s horses on the property.
This is a circumstantial evidence case and the usual principles applying to a civil
circumstantial evidence case should apply even though this hearing takes place in a
domestic tribunal and not in a Court of Law.
Therefore, to refer to appropriate principles that may be drawn from civil cases dealing with
circumstantial evidence. Rothman J in the Supreme Court considered the authorities in his
judgement in Samaan (by her Tutor Samaan) v Kentucky Fried Chicken Pty Ltd [2012] NSWSC
389. The following passages from that judgement are of significance in the decision making
of the Stewards;
In Asim v Penrose 120101 NSWCA 366, the Court of Appeal reiterated
the principles exposed by Ipp JA in Palmer v Dolman [2005] NSWCA 361,
stating at [142]:
The relevant principle in regard to civil cases was expressed by the High
Court in the case of Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 5, in
a passage that has been repeated many times.
The passage is:
Of course as far as logical consistency goes many hypotheses may
be put which the evidence does not exclude positively. But this is a
civil and not a criminal case. We are concerned with probabilities,
not with possibilities. The difference between the criminal standard
of proof in its application to circumstantial evidence and the
civil is that in the former the facts must be such as to
exclude reasonable hypotheses consistent with innocence,
while the latter you need only circumstances raising a more
probable inference in favour of what is alleged. In questions
of this sort, where direct proof is not available, it is enough in
the circumstances appearing in the evidence give rise to a
reasonable and definite inference: they must do more than give
rise to conflicting inferences of equal degrees of probability so
that the choice between them is mere matter of conjecture But
if circumstances are proved in which it is reasonable to find a
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balance of probabilities in favour of the conclusion sought then,
though the conclusion may fall short of certainty, it is not to be
regarded as mere conjecture or surmise
In Chamberlain v R (No 2) (1984) 153 CLR 521 Gibbs CJ and Mason J said at 536:
When the evidence is circumstantial, the jury, whether in
a civil or in a criminal case, are required to draw an inference
from the circumstances of the case; in a civil case the
circumstances must raise a more probable inference in favour
of what is alleged
In Doney v R (1990) 171 CLR 207 Deane, Dawson,Toohey, Gaudron and McHugh JJ
said at 211:
that when a lesser standard of proof than beyond reasonable
doubt will suffice, 'the existence of other reasonable
hypotheses is simply a matter to be taken into account in
determining whether the fact in issue should be inferred from
the facts proved.
The inquiry in assessing the evidence is simply, taking due account of what was said in
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd, has the allegation been proved on a
balance of probabilities." (Emphases added)
In questions of this sort, where direct proof is not available the evidence being only
circumstantial, it is enough if the circumstances appearing in evidence give rise to a
reasonable and definite inference: they must do more than give rise to conflicting
inferences of equal degrees of probability so that the choice between them is a mere
matter of conjecture.
Findings:
The Stewards in considering the charges are mindful of the standard or proof
required in these matters and as expressed above.
Charge 1:
The evidence is clear that Mrs Hillier’s conduct and negligence has led to a breach of Rule
190(A)(3.4) (b) (c) and Rule 91 in that she engaged an unlicensed person namely Mr Peter
Hillyer to assist in the care control and management of her horses by having him administer
drenches (salines) via stomach tubes to horses in her registered stables in the period
leading into races. This is of a concerning nature when a trainer clearly fails to meet their
obligations under the Rules to have a person performing duties around their stables
licensed.
The Harness Racing Act (2009) and the Australian Harness Racing Rules specifically
require regulation of licensed people not only to ensure the good governance of the industry
but to ensure that those that avail themselves of a licence meet such standards as required
by the Controlling Body.
We therefore find the charge pursuant to Rule 293A proven.
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Charge 2:
It is clear that even by Mrs Hillier’s own admissions she has failed to maintain a logbook in
accordance with the requirements of Rule 190B(1) in that she failed to record any treatments
during the period 28 June to 21 July 2014 and that further any treatments recorded between
28 June 2014 and 24 August were not recorded appropriately.
Rule 190B is there for a purpose to ensure that at any time upon production of a logbook the
Controlling Body through its regulators the Stewards can ensure stable husbandry practices
comply with the Regulations and Rules.
An excuse of “I forgot” or “I was too busy” is not plausible especially given the notices that
have been sent to the Industry by the Controlling Body on numerous occasions pertaining to
the use of a logbook, and when there is evidence that other information relating to the
training of the horses is entered without issue.
We find that charge proven.
Charge 3:
The finding on this charge, places a heavy reliance on the unchallenged expert evidence of
Dr Martin Wainscott. There is no evidence before the Panel of a person or persons engaging
in non compliant conduct by administering alkalinising agents to a horse via a stomach tube
within 24 hours of the race.
The evidence is circumstantial. We refer to the outline of the standard to be applied by the
Stewards in such cases previously referred to earlier in this decision.
The Stewards must be comfortably satisfied that each element of the charge has been
proven and including that when drawing an inference it must also be proved to the
Briginshaw standard. In order to establish whether these offences are proven based largely
on circumstantial evidence, it is incumbent upon the Stewards to firstly identify the rational
inferences or hypothesis that are available and secondly establish which of those rational
inferences or hypothesis could be reasonably drawn from the circumstances.
There are many cases cited and the evidence of Dr Wainscott supports such evidence that
for a horse to receive levels greater that 35mmol per litre, alkalinising agents would have
had to have been administered on race day or within close proximity to the race by stomach
tubing or possibly administered orally.
In this case there has been no evidence by Mrs Hillier, her father or anyone associated with
the stable, that these horses were administered any alkalinising agents by any other means
either in the day preceding or on the morning of the races in question. There has been no
expert evidence tendered by Mrs Hillier to discredit or rebut the evidence tendered by Dr
Wainscott. Therefore his evidence should be accepted.
Having accepted Dr Wainscott’s evidence in our opinion the only explanation can be that
there has been non compliance with the Rules and as put by Dr Wainscott– that it has to
have been administered alkalinising agents via a stomach tube 24 hours prior to the race.
What is also largely of concern and evidence that needs to be considered and taken into
account, are the variances between the levels recorded for the three horses from what might
be said to be the normal levels.
AREYOUTALKINGTOME on the 19th July 2014 recorded a TCO2 level of 35.3mmol per litre.
As expressed earlier in this decision HRNSW Investigator Mr Beekman positioned himself
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on Mrs Hillier’s property on the 2nd August 2014. AREYOUTALKINGTOME was engaged in
the races at Leeton that day and a subsequent TCO2 level recorded was 29.8mmol per litre.
The variance of 5.5mmol per litre between these two results cannot be accounted for by
legal husbandry practices.
ALITTLE BIT FROSTY on 27th July 2014 recorded a TCO2 level of 36.7mmol per litre. Yet
one week later on 1st August 2014 the horse’s TCO2 level is 31.00 mmol per litre, a
difference of 5.7 mmol per litre. Again standard husbandry practices cannot account for the
different in these readings.
MEAN COURAGE on 8th August 2014 recorded a TCO2 level of 36.5mmol per litre. In the
preceding five months the horse has had three other samples taken one being 31mmol, one
being 29.6mmol and the other being 32.5mmol. Consequently, there is considerable
variance between the lowest level of 29.6 and the 36.5 level recorded on the 8th August
2014, a difference 6.9 mmol per litre. Consistent with the statements from the previous two
cases stated above, legal husbandry practices cannot be attributed to the variances.
To address these variances, Mrs Hillier relies upon her use of the products Carbolene,
Acidbuf and the watering system installed at the property from which she trains and other
outside factors. The failure by Mrs Hillier to correctly maintain her Log Book, clearly does not
assist her regarding the treatment of the mentioned horses, as she cannot give evidence
about amounts, time and dates of these additional supplements.
Mrs Hillier has not been able to provide any plausible explanation or theory on how these
horses have recorded such an elevated level of TCO2.
We find that on the balance of probabilities that charge 3 and the relevant particulars
are proven.
Alternative charge:
The Stewards issued a charge in the alternative to the charge issued pursuant to Rule 240,
that being under Rule 193 (1) with three particulars.
Given that the Stewards have found against Mrs Hillier on the charge pursuant to Rule 240,
there is no need to consider the charge issued under Rule 193 (1).
Charge against Mr Hillyer:
Stewards find that Mr Hillyer was performing the duties required by licence in that he
drenched horses in the care of registered trainer Mrs Hillier at her request, when not the
holder of a licence.
We find the charge against Mr Hillyer proven.
We will now consider the matter of penalty, and will take submission from both parties on
this matter.
Dated: 19 February 2015
Stewards: Mr R Sanders (Chairman), Mr M Prentice and Mr T Quick
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