Non Raceday Inquiry RIU v JE Harland 13 March 2013 – Decision dated 19 March 2013
ID: JCA10535
Decision:
BEFORE THE JUDICIAL CONTROL AUTHORITY
UNDER THE RACING ACT 2003
AND IN THE MATTER of the New Zealand Rules of Racing
BETWEEN RACING INTEGRITY UNIT (RIU)
Informant
AND MS JENNIFER HARLAND
Respondent
Judicial Committee: Mr T Utikere (Chairman), Mr T Castles (Committee Member)
Appearing: Mr B Bevege (for the Informant) – Ms J Harland (as the Respondent)
Registrar: Mrs B Belsham
Also Present: Mr G Clark (assisting Ms Harland)
Venue: Hatrick Raceway, Wanganui
Date of Hearing: 13 March 2013
Date of Full Written Decision: 19 March 2013
__________________________________________________________________________________
DECISION OF JUDICIAL COMMITTEE
__________________________________________________________________________________
[1] Ms Harland appeared before this Judicial Committee on the following charge(s):
1. THAT on the 21st day of December 2012, Jennifer Elaine Harland was the licensed trainer of the greyhound CALL ME RALPH which was presented for and raced in race two at a race meeting conducted by the Wanganui Greyhound Racing Club when the said greyhound was found to have had administered to it a Prohibited Substance, namely Pholcodine, being an offence under the provisions of Rules 87.1 and 87.3, and punishable pursuant to Rules 87.4 and 89.1 of the New Zealand Greyhound Racing Association Rules.
2. THAT on the 24th day of December 2012, Jennifer Elaine Harland was the licensed trainer of the greyhound DARLEK KHAN which was presented for and raced in race nine at a race meeting conducted by the Waikato Greyhound Racing Club when the said greyhound was found to have had administered to it a Prohibited Substance, namely Pholcodine, being an offence under the provisions of Rules 87.1 and 87.3, and punishable pursuant to Rules 87.4 and 89.1 of the New Zealand Greyhound Racing Association Rules.
The following two matters were put before the Judicial Committee as a Request for a Ruling:
1. THAT the greyhound CALL ME RALPH was brought to the Wanganui Greyhound Racecourse at Wanganui and started in the Harrison Hire Master C1 race at the meeting of that Club on the 21st December 2012 AND THAT such greyhound had had administered to it a substance, namely Pholcodine, capable of affecting its speed, stamina, courage or conduct AND THAT by virtue thereof under the provisions of Rule 87.4 of the New Zealand Rules of Greyhound Racing the said greyhound shall be disqualified from the said race.
2. THAT the greyhound DARLEK KHAN was brought to the Waikato Greyhound Racecourse at Cambridge and started in the Affordable Pet Accessories Sprint C4/5 race at the meeting of that Club on the 24th December 2012 AND THAT such greyhound had had administered to it a substance, namely Pholcodine, capable of affecting its speed, stamina, courage or conduct AND THAT by virtue thereof under the provisions of Rule 87.4 of the New Zealand Rules of Greyhound Racing the said greyhound shall be disqualified from the said race.
[2] The relevant rules read as follows:
Rule 87.1 - “The Owner, Trainer or Person in charge of a Greyhound Nominated to compete in an Race, shall produce the Greyhound for the Race free of any Prohibited Substance.”
Rule 87.3 – “Without limiting any of the provisions of these Rules, the Owner and Trainer or person for the time being in charge of any Greyhound brought onto the Racecourse of any Club for the purposes of engaging in any Race which is found on testing, examination or analysis conducted pursuant to these Rules to have received a Prohibited Substance shall be severally guilty of an Offence. “
Rule 89.1 – “Any Person found guilty of an Offence under these Rules shall be liable to:
a. a fine not exceeding $10,000.00 for any one (1) Offence; and/or
b. Suspension; and/or
c. Disqualification; and/or
d. Warning Off.”
Rule 87.4 – “Any Greyhound which competes in a Race and is found to be the recipient of a Prohibited Substance shall be Disqualified from that Race.”
[3] The definition of ‘Prohibited Substance’ reads:
a. Any substance capable of affecting a Greyhound by its action on the central or peripheral nervous system or any part of that system such as the autonomic nervous system, cardio-vascular system, respiratory system, alimentary-digestive system, musculoskeletal system or genitourinary system and includes without limitation analgesics, antihistamines, anti-inflammatory agents, blood coagulants, diuretics, hormones and their synthetic counterparts, stimulants, corticosteroids, anabolic steroids, local anaesthetics, muscle relaxants and tranquillisers.
b. Substances administered to disguise or make undetectable, or attempt to disguise or make undetectable, the administration of any of the substances in paragraph (a) above.
c. A metabolite, isomer or artefact of any of the substances referred to in paragraphs (a) or (b) above irrespective of whether such metabolite, isomer or artefact has any pharmacological effect or not.
d. Unusual or abnormal amounts of endogenous substances including but not limited to cortisol and testosterone.
[4] Ms Harland confirmed to the committee that she understood the relevant rules, accepted that Pholcodine fell within the definition of a ‘Prohibited Substance’, and that she admitted the breaches. As the breaches were admitted, we thus found the charge proved.
[5] Mr Bevege tabled the authority to lodge the Informations, copies of the Informations, the appropriate notices to the various parties, and the appointment of the Judicial Committee.
Facts:
[6] A précis of the relevant aspects, as they relate to the charges before the committee, follows:
[7] The respondent is a Licensed Trainer under the Rules of the New Zealand Greyhound Racing Association.
[8] On the 21st December 2012 she was the trainer and the person for the time being in charge of the greyhound “Call Me Ralph” which had been correctly entered for and started in race two at a race meeting conducted by the Wanganui Greyhound Racing Club at Hatrick Raceway.
[9] “Call Me Ralph” won the race and was selected as a post-race swab. The greyhound was handled for the race, and the subsequent swabbing procedures, by Mr Graeme Clark the partner of Ms Harland. He has signed the relevant portions of the swab card and did not report any irregularities in the swabbing process. A copy of Swab Card Number 72090 is produced as Exhibit 9.
[10] “Call Me Ralph” was 2/4 in the betting, in a field of eight greyhounds. Its form was very good leading into the race, so it would be fair to say that the win was not unexpected. Stake earnings earned for first place was $720.
[11] All samples from the meeting were packaged in accordance with the Regulations and forwarded by courier to the Racing Laboratory where they were received on 28th December 2012 with all seals intact.
[12] On the 24th December 2012 Ms Harland was the trainer and the person for the time being in charge of the greyhound “Darlek Khan” which had been correctly entered for and started in race nine at a race meeting conducted by the Waikato Greyhound Racing Club at Cambridge Raceway.
[13] “Darlek Khan” was selected as a pre-race swab. Again the greyhound was handled by Mr Clark and again he has signed the relevant portions of the swab card and did not report any irregularities in the swabbing process. A copy of Swab Card Number 63537 is produced as Exhibit 10.
[14] “Darlek Khan” was 6/7 in the betting in a field of eight and ran fourth. There were no stake earnings for fourth place.
[15] Again all samples from the race meeting were packaged in accordance with the Regulations and forwarded by courier to the Racing Laboratory where they were received on 28th December 2012 with all seals intact.
[16] On the 17th January 2013 the Official Racing Analyst reported in writing that the samples from “Call Me Ralph” and “Darlek Khan” had tested positive to Pholcodine. Copies of the Certificates of Analysis are produced as Exhibits 13A and 13B.
[17] Pholcodine is an opioid cough suppressant. It helps suppress unproductive coughs and also acts as an antifungal agent. It has a mild sedative effect, but has little or no analgesic effect. It is a Prohibited Substance within the meaning of the Rules and its presence in a race day sample is, prima facie, a breach of the Rules. A copy of data on Pholcodine is produced as Exhibit 15.
[18] Ms Harland was interviewed at her property on 18 January 2013. Her partner Mr Clark was present also. They were totally co-operative with the Investigator.
[19] Ms Harland readily admitted that she had purchased and used the “Stubborn Dry Tickly” cough mixture to treat kennel cough that had gone through all the dogs in her kennels. She had purchased the cough mixture which was a human medicine from a Chemist in Taumarunui.
[20] She stated that the two dogs concerned had been clear of kennel cough for two weeks prior to racing but that other dogs were still being treated with the mixture. She acknowledged that as all the dogs roam freely around the kennels that the two dogs had most likely eaten food and drink from dogs feed bowls that were still being treated. A written statement was taken from Ms Harland which is produced as Exhibit 17.
[21] Whilst Ms Harland has, strictly speaking, administered the product which is the source of the positive swabs to the greyhounds, the Informant accepts that she did not knowingly administer Pholcodine with the intention of affecting the performance of the greyhounds. For that reason she has been charged with a breach of the Drug Negligence provisions in the Rules, rather than the more serious charge of a deliberate administration. The Informant accepts that this treatment was not carried out with intent to affect performance but for therapeutic reasons.
[22] When given the opportunity to seek clarification on any matters raised by the Informant, Mr Clark stated that DARLEK KHAN raced in the penultimate race of a 20 race programme and that his other dog, WHAT WHERE WHEN, was racing in the last race and it was WHAT WHERE WHEN who had been selected for a pre-race swab. He indicated to the stipendiary steward that logistically this would not be possible as he would be handling DARLEK KHAN at the time of the pre-race swab so requested that DARLEK KHAN be swabbed instead. Mr Bevege accepted that this was a common practice within the greyhound industry as some trainers had to travel lengthy distances at night and this was also on Christmas Eve.
[23] Mr Clark identified this as relevant as it indicated that he or Ms Harland were not attempting to be deviant in having their dog swabbed. Mr Bevege indicated that this issue was not in dispute.
[24] When given the opportunity to address the committee, Mr Clark submitted that there was no deliberate attempt on the part of the Respondent to flout the rules, rather that she had done what she had done out of a pure love for the dogs. Mr Clark was interested in the levels of the Pholcodine compound as it had been just on three weeks since they had administered the cough mixture to the two dogs in question. This was in response to the worst bout of kennel cough they had ever struck.
[25] They had also relied on greyhound literature, promoted by the NZGRA, which indicated a withholding time of 160 hours as the extreme for cough mixture. Mr Clark stated that he had since become aware that Pholcodine can remain in the liver for some seven weeks and that they were obviously not aware of this. Ms Harland indicated that she obtained the cough mixture from a chemist after visiting the veterinary surgeon who diagnosed kennel cough, and that he suggested a cough suppressant be used.
[26] Mr Bevege also confirmed that the urine analysis only identifies if the prohibited substance is present at the time of testing, not how much of the substance is present. Mr Clark submitted that the lack of detail as to levels of prohibited substances in an animal’s system was not helpful in determining how recently such a substance had entered into the system.
[27] Further, Mr Clark stated that he and Ms Harland were annexed to their dogs on the property and were very thorough in their care of their dogs. He and Ms Harland could not comprehend how the prohibited substance could still be detected in both greyhounds’ systems such a long time after they had withdrawn the use of the cough mixture.
[28] In response to a question from the committee as to the ownership of the two greyhounds, Ms Harland identified that both CALL ME RALPH and DARLEK KHAN were currently owned by ‘Lifestyle Syndicate’, of which Ms Harland and Mr Clark are the beneficiaries.
Penalty Submissions by Informant:
[29] Mr Bevege advanced the following submission points as to penalty:
[30] As I have already indicated, this matter proceeds on the basis that Ms Harland has been negligent in using a product which is, strictly speaking, not intended as an animal remedy.
[31] On the basis of the strict liability nature of the Rule, and the Court of Appeal decision in NZGRA v M, Ms Harland has presented “Call Me Ralph” and “Darlek Khan” to race with a Prohibited Substance in their systems. This is a breach of the Rules.
[32] In her favour it must be said that Ms Harland readily admitted the use of the product that she had in good faith used.
[33] The most recent case involving the same Prohibited Substance is NZGRA v H; Penalty imposed $1600 fine.
[34] It is therefore the submission of the Informant that, depending on the personal circumstances of Ms Harland, that neither disqualification nor suspension is appropriate and that the matter can be disposed of by way of a fine.
[35] The aggravating factors in the case are the use of a product not intended as an animal remedy and the fact that there does not appear to have been any quarantine put in place at the kennels to separate sick dogs that were being treated from those others that had recovered and were entered to race. Against this, the Informant accepts that the penalty may be mitigated by:
(a) The frank admission regarding the use of the cough mixture
(b) The admission of the offence at the first opportunity and her willingness to have the matter determined prior to a race meeting, in an effort to minimise costs
(c) Her unblemished record in greyhound racing since she has held a licence.
[36] Rule 87.4 provides the mandatory requirement that a greyhound presented to race with a drug in its system shall be disqualified. It is therefore submitted that “Call Me Ralph” be disqualified from race two at Wanganui on 21 December 2012, and that “Darlek Khan” be disqualified from race nine at Waikato on 24th December 2012, and that placings be amended accordingly.
[37] It was also the Informant’s submission that if a fine was considered appropriate then a fine of between $1500 and $2000 be imposed as the RIU viewed both incidents occurring as a result of the one set of circumstances. If a period of disqualification was considered appropriate, the RIU submitted 4-6 months as appropriate.
[38] In response to a question from the committee as to whether the 4-6 month period of disqualification submitted by the RIU would, in its view, equate to earnings of $1500-$2000, Mr Bevege advised that Mr Clark had gained a Trainer’s Licence, but a disqualification would still provide hardship to Ms Harland as she would be unable to assist with the training of dogs on their property or attend a race meeting.
[39] Further, Mr Bevege advised the committee that while periods of disqualification could be found for previous breaches of other prohibited substances, no disqualification precedent for Pholcodine existed. He submitted that NZGRA v H was the only other case involving Pholcodine and that had resulted in a monetary penalty of $1600.
[40] The RIU were not seeking any costs as the hearing was being held in conjunction with a greyhound meeting at Hatrick Raceway.
Penalty Submissions by Respondent:
[41] In presenting penalty submissions for the respondent, Mr Clark advised that a financial penalty would be very difficult for Ms Harland to meet. While she undertook part-time work at the hospital, the imposition of a fine would require her to borrow money at high interest in order to make its payment. Financial arrangements had already been made to borrow money so that the $720 stake money could be repaid. He submitted that this was a penalty upon the respondent in itself.
[42] He believed this was an incident that lay at the bottom of the scale of offending and was purely accidental and unintentional in nature. Further, he submitted that while the incident had taken an emotional toll on Ms Harland, she accepted that a mistake had been made, and that she needed to take responsibility for that.
[43] In response to a question from the committee, Mr Clark indicated the respondent’s preference for a period of disqualification, as a fine of any amount would create additional undue hardship. He believed a period of disqualification of no more than 3 months was appropriate.
Decision:
[44] In coming to our decision we have carefully considered all of the submissions placed before us.
[45] Ms Harland is a Licenced Trainer of four years with approximately 20 greyhounds currently in training. She has an excellent record with regard to previous breaches of the rules.
[46] The relevant rules are very clear. Both greyhounds CALL ME RALPH and DARLEK KHAN, whilst under Ms Harland’s care, were presented to race with a prohibited substance in their systems.
[47] The respondent has been charged under the drug negligence provision rather than the intentional administration provisions; and the committee consider this appropriate. The committee accepts that Ms Harland made an honest mistake and had no intention to purposely administer a prohibited substance. This is supported by the offer to swab DARLEK KHAN in place of WHAT WHERE WHEN on 24 December 2012.
[48] In mitigation, the committee notes Ms Harland’s admittance of the breach and her co-operation with the investigation process, and her conduct within the context of the hearing being of an exemplary nature.
[49] However, this is an issue of strict liability. Ms Harland used a cough mixture intended for human consumption on both greyhounds; albeit upon the advice of a veterinary surgeon.
[50] There are two aggravating factors that the committee identified; the lack of quarantine on the premises as a result of the rampant bout of kennel cough, and the fact that two greyhounds were affected, although noting that both incidents stemmed from the same circumstance.
[51] In determining penalty we have also taken into account NZGRA v H, as it is the only previous case that we are aware of involving Pholcodine as a Prohibited Substance.
Penalty:
[52] Taking all matters into account we are satisfied that a period of disqualification is the most appropriate means to act as a deterrent on this occasion rather than a fine. In establishing a quantum, the committee has adopted a starting point of three (3) months.
[53] Taking into consideration the factors of aggravation and mitigation, the committee believe this should be increased by an additional month to recognise that two dogs tested positive to a prohibited substance, even though no additional stake earnings were obtained as a result of DARLEK KHAN’s placing.
[54] It is considered appropriate to delay the commencement of the disqualification period by seven (7) days to allow Ms Harland to attend to transitional matters. Accordingly, Ms Harland’s Trainer’s Licence is disqualified for a period of four (4) months from 20 March 2013 until 20 July 2013.
[55] We also make the following orders under the provision of Rule 87.4:
(a) The disqualification of “CALL ME RALPH” from Race 2 (Harrison Hire Master C1) of the Wanganui Greyhound Racing Club’s meeting on 21 December 2012;
(b) The disqualification of “DARLEK KHAN” from Race 9 (Affordable Pet Accessories Sprint C4/5) of the Waikato Greyhound Racing Club’s meeting on 24 December 2012;
(c) That placings be amended and stake money be refunded in accordance with the committee’s decision.
Costs:
[56] The Respondent is also ordered to pay costs to the Judicial Control Authority in the amount of $150.
Mr Tangi Utikere Mr Tom Castles
Chairman Committee Member
Appeal Decision: NO LINKED APPEAL DECISION
Decision Date: 10/03/2013
Publish Date: 10/03/2013
JCA Decision Fields (raw)
Dmitry: This section contains all JCA fields migrated from the raw data.
Data from these fields should be mapped appropriately to display amongst the standard fields above; please make note of any values below that are missing in the above standard fields but should be there.
hearingid: 012ee654bcdbdea1e1b4d27abf0e9bc2
informantnumber: A4151, A4152, A4153, A4154
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startdate: no date provided
newcharge:
plea:
penaltyrequired:
decisiondate: 10/03/2013
hearing_title: Non Raceday Inquiry RIU v JE Harland 13 March 2013 - Decision dated 19 March 2013
charge:
facts:
appealdecision: NO LINKED APPEAL DECISION
isappeal:
submissionsfordecision:
reasonsfordecision:
Decision:
BEFORE THE JUDICIAL CONTROL AUTHORITY
UNDER THE RACING ACT 2003
AND IN THE MATTER of the New Zealand Rules of Racing
BETWEEN RACING INTEGRITY UNIT (RIU)
Informant
AND MS JENNIFER HARLAND
Respondent
Judicial Committee: Mr T Utikere (Chairman), Mr T Castles (Committee Member)
Appearing: Mr B Bevege (for the Informant) – Ms J Harland (as the Respondent)
Registrar: Mrs B Belsham
Also Present: Mr G Clark (assisting Ms Harland)
Venue: Hatrick Raceway, Wanganui
Date of Hearing: 13 March 2013
Date of Full Written Decision: 19 March 2013
__________________________________________________________________________________
DECISION OF JUDICIAL COMMITTEE
__________________________________________________________________________________
[1] Ms Harland appeared before this Judicial Committee on the following charge(s):
1. THAT on the 21st day of December 2012, Jennifer Elaine Harland was the licensed trainer of the greyhound CALL ME RALPH which was presented for and raced in race two at a race meeting conducted by the Wanganui Greyhound Racing Club when the said greyhound was found to have had administered to it a Prohibited Substance, namely Pholcodine, being an offence under the provisions of Rules 87.1 and 87.3, and punishable pursuant to Rules 87.4 and 89.1 of the New Zealand Greyhound Racing Association Rules.
2. THAT on the 24th day of December 2012, Jennifer Elaine Harland was the licensed trainer of the greyhound DARLEK KHAN which was presented for and raced in race nine at a race meeting conducted by the Waikato Greyhound Racing Club when the said greyhound was found to have had administered to it a Prohibited Substance, namely Pholcodine, being an offence under the provisions of Rules 87.1 and 87.3, and punishable pursuant to Rules 87.4 and 89.1 of the New Zealand Greyhound Racing Association Rules.
The following two matters were put before the Judicial Committee as a Request for a Ruling:
1. THAT the greyhound CALL ME RALPH was brought to the Wanganui Greyhound Racecourse at Wanganui and started in the Harrison Hire Master C1 race at the meeting of that Club on the 21st December 2012 AND THAT such greyhound had had administered to it a substance, namely Pholcodine, capable of affecting its speed, stamina, courage or conduct AND THAT by virtue thereof under the provisions of Rule 87.4 of the New Zealand Rules of Greyhound Racing the said greyhound shall be disqualified from the said race.
2. THAT the greyhound DARLEK KHAN was brought to the Waikato Greyhound Racecourse at Cambridge and started in the Affordable Pet Accessories Sprint C4/5 race at the meeting of that Club on the 24th December 2012 AND THAT such greyhound had had administered to it a substance, namely Pholcodine, capable of affecting its speed, stamina, courage or conduct AND THAT by virtue thereof under the provisions of Rule 87.4 of the New Zealand Rules of Greyhound Racing the said greyhound shall be disqualified from the said race.
[2] The relevant rules read as follows:
Rule 87.1 - “The Owner, Trainer or Person in charge of a Greyhound Nominated to compete in an Race, shall produce the Greyhound for the Race free of any Prohibited Substance.”
Rule 87.3 – “Without limiting any of the provisions of these Rules, the Owner and Trainer or person for the time being in charge of any Greyhound brought onto the Racecourse of any Club for the purposes of engaging in any Race which is found on testing, examination or analysis conducted pursuant to these Rules to have received a Prohibited Substance shall be severally guilty of an Offence. “
Rule 89.1 – “Any Person found guilty of an Offence under these Rules shall be liable to:
a. a fine not exceeding $10,000.00 for any one (1) Offence; and/or
b. Suspension; and/or
c. Disqualification; and/or
d. Warning Off.”
Rule 87.4 – “Any Greyhound which competes in a Race and is found to be the recipient of a Prohibited Substance shall be Disqualified from that Race.”
[3] The definition of ‘Prohibited Substance’ reads:
a. Any substance capable of affecting a Greyhound by its action on the central or peripheral nervous system or any part of that system such as the autonomic nervous system, cardio-vascular system, respiratory system, alimentary-digestive system, musculoskeletal system or genitourinary system and includes without limitation analgesics, antihistamines, anti-inflammatory agents, blood coagulants, diuretics, hormones and their synthetic counterparts, stimulants, corticosteroids, anabolic steroids, local anaesthetics, muscle relaxants and tranquillisers.
b. Substances administered to disguise or make undetectable, or attempt to disguise or make undetectable, the administration of any of the substances in paragraph (a) above.
c. A metabolite, isomer or artefact of any of the substances referred to in paragraphs (a) or (b) above irrespective of whether such metabolite, isomer or artefact has any pharmacological effect or not.
d. Unusual or abnormal amounts of endogenous substances including but not limited to cortisol and testosterone.
[4] Ms Harland confirmed to the committee that she understood the relevant rules, accepted that Pholcodine fell within the definition of a ‘Prohibited Substance’, and that she admitted the breaches. As the breaches were admitted, we thus found the charge proved.
[5] Mr Bevege tabled the authority to lodge the Informations, copies of the Informations, the appropriate notices to the various parties, and the appointment of the Judicial Committee.
Facts:
[6] A précis of the relevant aspects, as they relate to the charges before the committee, follows:
[7] The respondent is a Licensed Trainer under the Rules of the New Zealand Greyhound Racing Association.
[8] On the 21st December 2012 she was the trainer and the person for the time being in charge of the greyhound “Call Me Ralph” which had been correctly entered for and started in race two at a race meeting conducted by the Wanganui Greyhound Racing Club at Hatrick Raceway.
[9] “Call Me Ralph” won the race and was selected as a post-race swab. The greyhound was handled for the race, and the subsequent swabbing procedures, by Mr Graeme Clark the partner of Ms Harland. He has signed the relevant portions of the swab card and did not report any irregularities in the swabbing process. A copy of Swab Card Number 72090 is produced as Exhibit 9.
[10] “Call Me Ralph” was 2/4 in the betting, in a field of eight greyhounds. Its form was very good leading into the race, so it would be fair to say that the win was not unexpected. Stake earnings earned for first place was $720.
[11] All samples from the meeting were packaged in accordance with the Regulations and forwarded by courier to the Racing Laboratory where they were received on 28th December 2012 with all seals intact.
[12] On the 24th December 2012 Ms Harland was the trainer and the person for the time being in charge of the greyhound “Darlek Khan” which had been correctly entered for and started in race nine at a race meeting conducted by the Waikato Greyhound Racing Club at Cambridge Raceway.
[13] “Darlek Khan” was selected as a pre-race swab. Again the greyhound was handled by Mr Clark and again he has signed the relevant portions of the swab card and did not report any irregularities in the swabbing process. A copy of Swab Card Number 63537 is produced as Exhibit 10.
[14] “Darlek Khan” was 6/7 in the betting in a field of eight and ran fourth. There were no stake earnings for fourth place.
[15] Again all samples from the race meeting were packaged in accordance with the Regulations and forwarded by courier to the Racing Laboratory where they were received on 28th December 2012 with all seals intact.
[16] On the 17th January 2013 the Official Racing Analyst reported in writing that the samples from “Call Me Ralph” and “Darlek Khan” had tested positive to Pholcodine. Copies of the Certificates of Analysis are produced as Exhibits 13A and 13B.
[17] Pholcodine is an opioid cough suppressant. It helps suppress unproductive coughs and also acts as an antifungal agent. It has a mild sedative effect, but has little or no analgesic effect. It is a Prohibited Substance within the meaning of the Rules and its presence in a race day sample is, prima facie, a breach of the Rules. A copy of data on Pholcodine is produced as Exhibit 15.
[18] Ms Harland was interviewed at her property on 18 January 2013. Her partner Mr Clark was present also. They were totally co-operative with the Investigator.
[19] Ms Harland readily admitted that she had purchased and used the “Stubborn Dry Tickly” cough mixture to treat kennel cough that had gone through all the dogs in her kennels. She had purchased the cough mixture which was a human medicine from a Chemist in Taumarunui.
[20] She stated that the two dogs concerned had been clear of kennel cough for two weeks prior to racing but that other dogs were still being treated with the mixture. She acknowledged that as all the dogs roam freely around the kennels that the two dogs had most likely eaten food and drink from dogs feed bowls that were still being treated. A written statement was taken from Ms Harland which is produced as Exhibit 17.
[21] Whilst Ms Harland has, strictly speaking, administered the product which is the source of the positive swabs to the greyhounds, the Informant accepts that she did not knowingly administer Pholcodine with the intention of affecting the performance of the greyhounds. For that reason she has been charged with a breach of the Drug Negligence provisions in the Rules, rather than the more serious charge of a deliberate administration. The Informant accepts that this treatment was not carried out with intent to affect performance but for therapeutic reasons.
[22] When given the opportunity to seek clarification on any matters raised by the Informant, Mr Clark stated that DARLEK KHAN raced in the penultimate race of a 20 race programme and that his other dog, WHAT WHERE WHEN, was racing in the last race and it was WHAT WHERE WHEN who had been selected for a pre-race swab. He indicated to the stipendiary steward that logistically this would not be possible as he would be handling DARLEK KHAN at the time of the pre-race swab so requested that DARLEK KHAN be swabbed instead. Mr Bevege accepted that this was a common practice within the greyhound industry as some trainers had to travel lengthy distances at night and this was also on Christmas Eve.
[23] Mr Clark identified this as relevant as it indicated that he or Ms Harland were not attempting to be deviant in having their dog swabbed. Mr Bevege indicated that this issue was not in dispute.
[24] When given the opportunity to address the committee, Mr Clark submitted that there was no deliberate attempt on the part of the Respondent to flout the rules, rather that she had done what she had done out of a pure love for the dogs. Mr Clark was interested in the levels of the Pholcodine compound as it had been just on three weeks since they had administered the cough mixture to the two dogs in question. This was in response to the worst bout of kennel cough they had ever struck.
[25] They had also relied on greyhound literature, promoted by the NZGRA, which indicated a withholding time of 160 hours as the extreme for cough mixture. Mr Clark stated that he had since become aware that Pholcodine can remain in the liver for some seven weeks and that they were obviously not aware of this. Ms Harland indicated that she obtained the cough mixture from a chemist after visiting the veterinary surgeon who diagnosed kennel cough, and that he suggested a cough suppressant be used.
[26] Mr Bevege also confirmed that the urine analysis only identifies if the prohibited substance is present at the time of testing, not how much of the substance is present. Mr Clark submitted that the lack of detail as to levels of prohibited substances in an animal’s system was not helpful in determining how recently such a substance had entered into the system.
[27] Further, Mr Clark stated that he and Ms Harland were annexed to their dogs on the property and were very thorough in their care of their dogs. He and Ms Harland could not comprehend how the prohibited substance could still be detected in both greyhounds’ systems such a long time after they had withdrawn the use of the cough mixture.
[28] In response to a question from the committee as to the ownership of the two greyhounds, Ms Harland identified that both CALL ME RALPH and DARLEK KHAN were currently owned by ‘Lifestyle Syndicate’, of which Ms Harland and Mr Clark are the beneficiaries.
Penalty Submissions by Informant:
[29] Mr Bevege advanced the following submission points as to penalty:
[30] As I have already indicated, this matter proceeds on the basis that Ms Harland has been negligent in using a product which is, strictly speaking, not intended as an animal remedy.
[31] On the basis of the strict liability nature of the Rule, and the Court of Appeal decision in NZGRA v M, Ms Harland has presented “Call Me Ralph” and “Darlek Khan” to race with a Prohibited Substance in their systems. This is a breach of the Rules.
[32] In her favour it must be said that Ms Harland readily admitted the use of the product that she had in good faith used.
[33] The most recent case involving the same Prohibited Substance is NZGRA v H; Penalty imposed $1600 fine.
[34] It is therefore the submission of the Informant that, depending on the personal circumstances of Ms Harland, that neither disqualification nor suspension is appropriate and that the matter can be disposed of by way of a fine.
[35] The aggravating factors in the case are the use of a product not intended as an animal remedy and the fact that there does not appear to have been any quarantine put in place at the kennels to separate sick dogs that were being treated from those others that had recovered and were entered to race. Against this, the Informant accepts that the penalty may be mitigated by:
(a) The frank admission regarding the use of the cough mixture
(b) The admission of the offence at the first opportunity and her willingness to have the matter determined prior to a race meeting, in an effort to minimise costs
(c) Her unblemished record in greyhound racing since she has held a licence.
[36] Rule 87.4 provides the mandatory requirement that a greyhound presented to race with a drug in its system shall be disqualified. It is therefore submitted that “Call Me Ralph” be disqualified from race two at Wanganui on 21 December 2012, and that “Darlek Khan” be disqualified from race nine at Waikato on 24th December 2012, and that placings be amended accordingly.
[37] It was also the Informant’s submission that if a fine was considered appropriate then a fine of between $1500 and $2000 be imposed as the RIU viewed both incidents occurring as a result of the one set of circumstances. If a period of disqualification was considered appropriate, the RIU submitted 4-6 months as appropriate.
[38] In response to a question from the committee as to whether the 4-6 month period of disqualification submitted by the RIU would, in its view, equate to earnings of $1500-$2000, Mr Bevege advised that Mr Clark had gained a Trainer’s Licence, but a disqualification would still provide hardship to Ms Harland as she would be unable to assist with the training of dogs on their property or attend a race meeting.
[39] Further, Mr Bevege advised the committee that while periods of disqualification could be found for previous breaches of other prohibited substances, no disqualification precedent for Pholcodine existed. He submitted that NZGRA v H was the only other case involving Pholcodine and that had resulted in a monetary penalty of $1600.
[40] The RIU were not seeking any costs as the hearing was being held in conjunction with a greyhound meeting at Hatrick Raceway.
Penalty Submissions by Respondent:
[41] In presenting penalty submissions for the respondent, Mr Clark advised that a financial penalty would be very difficult for Ms Harland to meet. While she undertook part-time work at the hospital, the imposition of a fine would require her to borrow money at high interest in order to make its payment. Financial arrangements had already been made to borrow money so that the $720 stake money could be repaid. He submitted that this was a penalty upon the respondent in itself.
[42] He believed this was an incident that lay at the bottom of the scale of offending and was purely accidental and unintentional in nature. Further, he submitted that while the incident had taken an emotional toll on Ms Harland, she accepted that a mistake had been made, and that she needed to take responsibility for that.
[43] In response to a question from the committee, Mr Clark indicated the respondent’s preference for a period of disqualification, as a fine of any amount would create additional undue hardship. He believed a period of disqualification of no more than 3 months was appropriate.
Decision:
[44] In coming to our decision we have carefully considered all of the submissions placed before us.
[45] Ms Harland is a Licenced Trainer of four years with approximately 20 greyhounds currently in training. She has an excellent record with regard to previous breaches of the rules.
[46] The relevant rules are very clear. Both greyhounds CALL ME RALPH and DARLEK KHAN, whilst under Ms Harland’s care, were presented to race with a prohibited substance in their systems.
[47] The respondent has been charged under the drug negligence provision rather than the intentional administration provisions; and the committee consider this appropriate. The committee accepts that Ms Harland made an honest mistake and had no intention to purposely administer a prohibited substance. This is supported by the offer to swab DARLEK KHAN in place of WHAT WHERE WHEN on 24 December 2012.
[48] In mitigation, the committee notes Ms Harland’s admittance of the breach and her co-operation with the investigation process, and her conduct within the context of the hearing being of an exemplary nature.
[49] However, this is an issue of strict liability. Ms Harland used a cough mixture intended for human consumption on both greyhounds; albeit upon the advice of a veterinary surgeon.
[50] There are two aggravating factors that the committee identified; the lack of quarantine on the premises as a result of the rampant bout of kennel cough, and the fact that two greyhounds were affected, although noting that both incidents stemmed from the same circumstance.
[51] In determining penalty we have also taken into account NZGRA v H, as it is the only previous case that we are aware of involving Pholcodine as a Prohibited Substance.
sumissionsforpenalty:
reasonsforpenalty:
penalty:
[52] Taking all matters into account we are satisfied that a period of disqualification is the most appropriate means to act as a deterrent on this occasion rather than a fine. In establishing a quantum, the committee has adopted a starting point of three (3) months.
[53] Taking into consideration the factors of aggravation and mitigation, the committee believe this should be increased by an additional month to recognise that two dogs tested positive to a prohibited substance, even though no additional stake earnings were obtained as a result of DARLEK KHAN’s placing.
[54] It is considered appropriate to delay the commencement of the disqualification period by seven (7) days to allow Ms Harland to attend to transitional matters. Accordingly, Ms Harland’s Trainer’s Licence is disqualified for a period of four (4) months from 20 March 2013 until 20 July 2013.
[55] We also make the following orders under the provision of Rule 87.4:
(a) The disqualification of “CALL ME RALPH” from Race 2 (Harrison Hire Master C1) of the Wanganui Greyhound Racing Club’s meeting on 21 December 2012;
(b) The disqualification of “DARLEK KHAN” from Race 9 (Affordable Pet Accessories Sprint C4/5) of the Waikato Greyhound Racing Club’s meeting on 24 December 2012;
(c) That placings be amended and stake money be refunded in accordance with the committee’s decision.
Costs:
[56] The Respondent is also ordered to pay costs to the Judicial Control Authority in the amount of $150.
Mr Tangi Utikere Mr Tom Castles
Chairman Committee Member
hearing_type: Non-race day
Rules: 87.1, 87.3, 89.1 and 87.4
Informant: Mr RP Bevege - Racing Investigator for RIU
JockeysandTrainer:
Otherperson:
PersonPresent: Mr G Clark - Assisting Ms Harland, Mrs B Belsham - Registrar
Respondent: Ms JE Harland - Licensed Trainer
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