Non Raceday Inquiry RIU v SJ Payne

hearingid: 1315020785e36bd7c6a3c28c6dbcec00

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decisiondate: 02/04/2015

hearing_title: Non Raceday Inquiry RIU v SJ Payne

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appealdecision: NO LINKED APPEAL DECISION

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Decision:

NON RACEDAY INQUIRY - RIU v SJ PAYNE

IN THE MATTER of the New Zealand Rules of Greyhound Racing

BETWEEN RACING INTEGRITY UNIT

Barry Kitto Investigator,

Informant,

and SCOTT JOHN PAYNE - Licensed Trainer NZGRA

Respondent

Rules: 87.1 and 87.4

Information: A4809

Judicial Committee: AJ Godsalve, Chairman - RM Seabrook, Committee Member

Appearing: Mr N Grimstone, (Chief Investigator) for the Informant

Mr SJ Payne, Respondent

Registrar: Mr W Robinson

Venue: Rotorua Racecourse

Date of Hearing: 27 March 2015 at 11am

Date of Decision: 7 April 2015

DECISION OF JUDICIAL COMMITTEE:

1. Mr Payne appeared before this Judicial Committee on the following charges:

THAT Scott John PAYNE , being the holder of an Owner-Trainers License issued under the New Zealand Greyhound Rules of Racing, on Wednesday the 24th December 2014, being the Trainer of a Greyhound, namely “Rotovegas Rara”, bought onto the racecourse of a Club, namely the Cambridge Raceway used by the Waikato Greyhound Racing Club, for the purpose of engaging in any race, namely Race 8, the Denis Cole Memorial Waikato Sprint, Heat 1, over 375 metres was found on analysis of a urine sample conducted pursuant to these Rules to have received a Prohibited Substance, namely Procaine, a Category 5 Prohibited Substance in breach of Rules 87.1 and 3 of the New Zealand Greyhound Rules of Racing and you are therefore liable to the penalty or penalties which may be imposed in accordance with Rule 89.1 a, b, c and d and the said Greyhound to the penalty in accordance with Rule 87.4 of the New Zealand Greyhound Rules of Racing 2014.

And further

THAT Scott John PAYNE being the holder of an Owner-Trainers License issued under the New Zealand Greyhound Rules of Racing, on Sunday the 4th day of January 2015, being the Trainer of a Greyhound, namely “Rotovegas Rara” brought onto the racecourse of a Club, namely the Manukau Stadium Raceway used by the Auckland Greyhound Racing Club, for the purpose of engaging in any race, namely Race 9, the Dogzone Stakes over 527 metres, was found on analysis of a urine sample conducted pursuant to these Rules to have received a Prohibited Substance, namely Procaine, a category 5 Prohibited Substance in breach of Rules 87.1 and 3 of the New Zealand Greyhound Rules of Racing and you are therefore liable to the penalty or penalties which may be imposed in accordance with Rule 89.a, b, c, and d and the said Greyhound to the penalty in accordance with Rule 87.4 of the New Zealand Greyhound Rules of Racing 2014.

And further

THAT Scott John PAYNE, being the holder of an Owner-Trainers License issued under the New Zealand Greyhound Rules of Racing, on Friday the 2nd of January 2015, being the Trainer of a Greyhound , namely “Rotovegas Rat” , brought onto the racecourse of a Club, namely the Cambridge Raceway, used by the Waikato Greyhound Racing Club, for the purpose of engaging in any race, namely Race 4, the Palamountains Exceed Sprint Series Final over 375 metres, was found on analysis of a urine sample conducted pursuant to these Rules to have received a Prohibited Substance, namely Procaine, a Category 5 Prohibited Substance in breach of Rules 87.1 and 3 of the New Zealand Greyhound Rules of Racing and you are therefore liable to the penalty or penalties which may be imposed in accordance with Rule 89.1 a, b, c and d, and the said Greyhound to the penalty in accordance with Rule 87.4 of the New Zealand Greyhound Rules of Racing 2014.

2. Rule 87.1 provides:

“The Owner, Trainer or person in charge of a Greyhound nominated to compete in a Race, shall produce the Greyhound for the Race free of any Prohibited Substance”.

Rule 87.3 provides:

“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 provides:

“any person found guilty of an Offence under these Rules shall be liable to:
a. A fine not exceeding $10,000 for any (1) Offence; and/or
b. Suspension and/or
c. Disqualification; and/or
d. Warning Off.

Rule 87.4 provides:

“ Any Greyhound which competes in a Race and is found to be the recipient of a Prohibited Substance shall be Disqualified from that Race”

Mr Payne acknowledged that he understood the above Rules. Each charge was read to him and he admitted each of these charges. We thus found each charge to be proved.

SUBMISSIONS OF MR N GRIMSTONE-RIU

Mr Grimstone submitted the following documents as exhibits:

1. Authority to file Information

2. Information No. A4809

3. Schedule of Charges

4. Official Race Results Waikato GRC-24.12.2014

5. RIU Sample Identity Record-64234

6. Certificate of Analysis sample-64234-16.01.2015

7. Dr Malcolm Jansen-Veterinary Advisor for NZGR-re Procaine Prohibited Substance

8. Categories of Prohibited Substances

9. Official Race Results Auckland GRC-04.01.2015

10. RIU Sample Identity Record-85132

11. Certificate of Analysis-sample-85132-16.01.2015

12. Official Race Results Waikato GRC-02.01.2015

13. RIU Sample Identity Record-64248

14. Certificate of Analysis-sample-64248-10.01.2015

15. Transcript of Interview-Mr Scott Payne-27.01.2015

16. RIU v AGENT-Judicial Decision

Summary of Facts – RIU per Mr N Grimstone

1. The Respondent Mr Scott PAYNE is Licensed as an Owner-Trainer under the NZ Greyhound Rules of Racing. He has held a Greyhound Trainers License since 2008. He has a Greyhound Training establishment at his home address at 34 Old Tauranga Direct Road, Hamurana, Rotorua.

2. I produce written authority from the General Manager, NZ Racing Integrity Unit to file an information in accordance with Rule 92.2 a as EXH..1.

3. I produce Information No. A4809 and a Schedule of Charges (3) which have been served on the Respondent Mr Payne as EXH’S..2 and ..3.

4. In the Information Mr Payne pleads ‘Guilty’ to the charges.

CHARGE 1

5. On Wednesday the 24th December 2014, Rotovegas Rara was correctly entered by the Respondent and presented to race in Race 8, the Dennis Cole Memorial Waikato Sprint Heat 1, at the Waikato Greyhound Racing Clubs meeting at the Cambridge Raceway, over 375 metres, which he won winning a stake of $1440.00. I produce a copy of the Official Race result as EXH..4.

6. The Respondent was not present at the raceway and had arranged for a friend, Mr David Geraets, who is licensed as an Owner/Handler, who assists him, to take the greyhound to the meeting. He advised Mr Geraets was acting on his instructions.

7. Rotovegas Rara was post-race swabbed in the presence of Mr Geraets who signed the RIU Sample Identity Record Card No. 64234 which I now produce as EXH..5. He was the authorised representative of the Respondent. The swabbing was straight forward without any problems.

8. All swabs from the meeting were couriered to the NZ Racing Laboratory and were analysed for the presence of Prohibited Substances under the New Zealand Greyhound Rules of Racing.

9. On the 16th January 2015, the Official Racing Analyst reported in writing, which I produce as EXH..6 that sample 64234 tested positive for Procaine.

10. Procaine is a Prohibited Substance in accordance with the New Zealand Rules of Greyhound Racing. I produce a copy of Dr M Jansen’s report EXH..7. He is the Veterinary Advisor to Greyhound Racing New Zealand. Procaine is listed as a Category 5 Prohibited Substance in the Official Information Bulletin of Greyhound Racing New Zealand, Issue 376 published in August 2014. I produce a copy as EXH..8.

11. Both the Respondent and Mr Geraets were interviewed. Mr Geraets advised that nothing occurred during his trip to Cambridge and return for the race. The Respondent said he was responsible and that Mr Geraets was acting on his instructions.

12. The Respondent could not explain the positive. The dog was healthy and had not received any procaine or procaine penicillin and was at a loss to explain how this happened.

CHARGE 2

13. On Sunday 4th January 2015, Rotovegas Rara was correctly entered by the Respondent and presented to race in race 9, the Dogzone Stakes at the Auckland Greyhound Racing Clubs meeting at Manukau Stadium, Auckland, over 527 metres which he won, winning a stake of $2160.00. I produce a copy of the Official Race result as EXH..9.

14. The Respondent was not present at the raceway but had arranged for a friend, Mrs Wendy Donaldson, who is licensed as an Owner/Handler, and assists him, to take the Greyhound to the meeting. He advised that Mrs Donaldson was acting on his instructions.

15. Rotovegas Rara was post race swabbed in the presence of Mrs Donaldson who signed the RIU Sample Identity Record Card 85132 which I produce as EXH..10 and she was the authorised representative of the Respondent. The swabbing again was straightforward without any problems.

16. All swabs from the meeting were couriered to the NZ Racing Laboratory and were analysed for the presence of Prohibited Substances under the New Zealand Greyhound Rules of Racing.

17. On the 16th January 2015, the Official Racing Analyst reported in writing, which I now produce as EXH..11 that sample 85132 had tested positive for Procaine.

18. Procaine is a Prohibited Substance as Outlined in Charge 1.

19. Both the Respondent and Mrs Donaldson were interviewed. Neither could forward any explanation for the positive swab. Mrs Donaldson advised that nothing occurred during the trip to Auckland and return with the greyhound.

CHARGE 3

20. On Friday 2nd January 2015, Rotovegas Rat was correctly entered by the Respondent and presented to race in race 4, the Palamountains Exceed Sprint Series Final at the Waikato Greyhound Racing Clubs meeting at Cambridge Raceway over 375 metres which he won, winning a stake of $1320.00. I produce a copy of the Official Race Result as EXH..12.

21. Rotovegas Rat was post race swabbed in the presence of the Respondent who signed the RIU Sample Identity Record Card 64248 which I produce as EXH..13. The swabbing was straightforward without any problems.

22. All swabs for the meeting were couriered to the NZ Racing Laboratory and were analysed for the presence of Prohibited Substances under the New Zealand Greyhound Rules of Racing.

23. On the 16th January 2015, the Official Racing Analyst reported in writing-which I produce as EXH..14 that sample 64248 had tested positive for Procaine. Procaine is a Prohibited Substance as outlined in Charge 1.

24. The Respondent Mr Payne was interviewed at his training establishment at 5.25 pm on Tuesday 27th January 2015. I produce a copy of his statement as EXH..15.

25. He was unable to give an explanation as to how any of these three positives have occurred.

26. He advised that Messers Geraets and Mrs Donaldson, who are in the ownership of both dogs, were acting on his instructions and that he, as the Trainer was the person responsible.

27. At the time of the positive swabs he was feeding his dogs meat which he obtained from Mr Alan Cleaver of 0800forddowncow which is a licensed animal abattoir. He was told there are three types of meat being beef, greyhound mix, and a greyhound penicillin mix for puppies that are not racing. He only purchased beef.

28. He had no meat left that the greyhounds were being fed over the Xmas/New Year period, as it had been replaced with new meat. Thus, there was no meat to analyse that the Greyhounds were being fed at the time of the Positive tests.

29. Inquiries were made from Mr Alan Cleaver. He acknowledged that he sells the three types of meat as suggested by the Respondent, being Beef, Greyhound Mix, and thirdly puppy mix which may contain Procaine Penicillin or other anti-inflammatory drugs but is only for greyhound puppies and non-racing dogs.

30. He was able to produce some documentation in relation to animals killed and identify animals which had Procaine Penicillin and did so. He was adamant that there would be no mix up with meat as animals which had received medications had their tails cut off at the farm and slice marks were made on the carcase to identify them. He relies on being told about contaminated meat from the person he purchases the stock from.

31. Be that as it may, contaminated stock is processed at the abattoir.

32. The source for these positives has not been able to be established.

33. Other greyhound Trainers interviewed indicated that they purchased meat from M Alan Cleaver and he would indicate to them if contaminated meat was in the puppy mix on the advice he received from the respective farmer/s.

34. (Mr Payne’s) kennels and the property in general are maintained to an extremely high standard. Property security is excellent. During the day the owners are away from the property. Entry can only be gained with some effort. It is high fenced. Vehicle entry cannot be gained as the front gate is electronically operated.

35. Enquiries with his Veterinary practise established that Rotovegas Rara and Rotovegas Rat had been last seen in July and December 2013 respectively. The Practise does not use Procaine Penicillin for dogs, only for cows. Mr Payne has not purchased Procaine Penicillin from the Practise. No medications containing Procaine Penicillin had been supplied to Mr Payne during November, December 2014, or January 2015.

Comment: At this time the Committee made a Ruling that Mr Grimstone should proceed with the Penalty Submissions prepared on behalf of the RIU. The reasoning behind this is detailed later, however principally it was because the submissions Mr Payne had prepared and submitted were a combination of his penalty submissions and circumstances around these charges. All parties agreed that this would be a prudent course of action.

PENALTY SUBMISSIONS - RIU per MR N GRIMSTONE

1. The Respondent Mr Scott Payne is currently licensed as an Owner Trainer under the New Zealand Rules of Greyhound Racing and has held Trainers Licences since 2008.

2. He is 42 years of age, Born 07/06/1972.

3. He has admitted three charges under the Rules as outlined in the Summary of Facts.

4. He acknowledges openly that he is the licensed trainer and the person responsible.

5. Two Owner/Trainers who took the dog ‘Rotovegas Rara’ to two race meetings were doing so on his instructions and he readily accepts responsibility for the outcomes. Because of work commitments he is sometimes unable to attend some race meetings.

6. At no time has he endeavoured to evade his responsibility and has been particularly co-operative throughout.

7. On 1st September 2014, the Board of Greyhound Racing New Zealand gave approval for new penalties in 5 different categories. It is in the Official Information Bulletin issue 376 of August 2014 of Greyhound Racing New Zealand. Procaine is a Category 5 Prohibited Substance. This category recommendation is for a period of disqualification, 3 months suspension and/or a fine of $4000. The purpose of the new penalty regime is to encourage diligence and compliance with the Rules.

8. Procaine is a Prohibited Substance as identified in the report of Dr Malcolm Jansen, Advisor to New Zealand Greyhound Racing.

9. The penalties which may be imposed under the New Zealand Greyhound Rules of Racing are as per Rule 89.1 a, b, c, and d and for the greyhound as per Rule 87.4.

Aggravating Factors

10. There are no aggravating factors apart from the offending itself.

Mitigating Factors

11. There is no evidence to support a deliberate intentional administration.

12. The fact that there are three positives involving two greyhounds over the short period of time (12 days) may indicate an accidental administration and although it cannot be proved, the abattoir where the greyhound meat was sourced, do legitimately process contaminated stock, which may or may not contain Procaine Penicillin and other anti-inflammatory drugs.

13. The Respondent has not previously offended against the Drug Rules and accepted responsibility for what has happened without demur.

14. He has co-operated throughout the investigation.

15. He has pleaded ‘guilty’ at the earliest opportunity.

16. He has consented to the matter being heard on a raceday to minimise costs.

17. We believe the matter can be dealt with by way of monetary penalty. The starting point for a monetary penalty is a fine of $4000 as recommended in Category 5 which would be a total of $12,000 for three offences.

18. It may be that the Committee takes a view that these three matters can be viewed in totality and not individually.

19. If that is the position then a monetary penalty of $3000 on each charge with a total fine of $9,000.

20. The Racing Integrity Unit’s position is that therefore the $9000 is a starting point and a reduction can be appropriate for totality and mitigating factors.

21. The extent of that reduction can be calculated by various means and this has been historically done as per the following cases:

(a) RIU v AGENT (24.12.14) In this matter a greyhound tested positive for Procaine Penicillin which was knowingly administered. The greyhound raced when the trainer mistakenly believed it was outside the withholding period. The penalty imposed was a fine of $3000 and the dog was disqualified.

(b) RIU v CLARK (25.08.14) In this matter the two greyhounds tested positive for Pheniramine which was mistakenly administered. The penalty imposed was a total fine of $2,600.

(c) RIU v TM PATTON (6.11.14) In this matter the greyhound tested positive for Diclofenac which was mistakenly administered. The penalty imposed was a fine of $1,400 and the dog was disqualified.

(d) RIU v JA McARTHUR (3.10.11) In this matter was the non-intentional administration of Morphine through having been fed poppy seed bread. Penalty imposed $2000 fine, JCA costs $500 and dog disqualified.

(e) RIU v CHILTON ROBERTS (2.11.12) In this matter was the non-intentional administration of Morphine through having been fed poppy seed bread. Penalty imposed was $2000 fine, JCA costs $350, and the dog was disqualified.

22. Further, the Racing Integrity Unit’s position that a reduction in this matter is appropriate however the final penalty is still required to send a deterrent message and this penalty should not be anything less than $6000 in total.

SUBMISSIONS OF RESPONDENT-SJ PAYNE

Committee Comment - As stated previously it was noted by the Committee that Mr Payne’s notes, as submitted prior to the hearing, entitled ‘Defence of Scott Payne-Rotovegas Racing’ contained a mixture of his submissions surrounding the offences and also his penalty submissions. In the interests of time, Mr Payne was asked to read his prepared submission in full at this stage of the hearing.

One of the documents (JCA Decision re RIU v Lawrence) was currently under Appeal and the hearing was instructed that other than tabling the document discussion about that matter would be restricted).

Along with his written submission Mr Payne also presented the following documents:

(a) Attachment 1. Letter written by Mr D Geraets.

(b) Attachment 2. Copies of Documents relating to Greyhound Racing NSW, NZ RIU.

(c) Attachment 3. Photograph of meat bin, copies of documents relating to Consumer Guarantees and Fair Trading Acts.

(d) Attachment 4. Copy of JCA Decision RIU v GA Lawrence.

(e) Attachment 5. Copy of Categories of Prohibited Substances.

(f) Attachment 6. RIU Media Release: Greyhound Morphine Investigation, dated 24 March 2015.

Document Submitted - Defence of Scott Payne - Rotovegas Racing

1. I am part owner and trainer of Rotovegas Rara and Rotovegas Rat. I am therefore responsible for charges: 001483900, 001483896 and 001483903. I plead guilty to breaching of Rules 89.1, a, b, c, and d, and also for the breaching of Rule 87.4. I have bred, reared, and broken in the dogs in question. I have six dogs currently in racing, and work full time as a Production Supervisor at Profiles Wood products (previous owner Carter Holt Harvey). I have been employed there for over 20 years and look after 15 staff. I would call myself a hobby trainer, hence the reason for me being unable to make it to the track more often. I own 50% of the litter. Co-owners Neil and Wendy Donaldson own a 25% share in the current Rotovegas litter and Wendy is licensed. On occasion she will take dogs to the track. They also come out in weekends to help with the dogs. Dave Geraets owns the other 25% of the Rotovegas litter. He also is a licensed person and helps with the dogs on a regular basis. The co-owners mentioned only do as I request of them, so I take sole responsibility for the dogs and any consequences handed out.

2. I have been training greyhounds for the past 8 years with neither having any issues or offences. I have had consistent training and feeding methods throughout this time as well and have been sourcing my food from the same suppliers. Up until mid-November 2014 (when) my meat supplier (said) he could no longer supply meat to me as the company he was sourcing it from was shutting down.

3. I received recommendations to purchase meat from Alan Cleaver as he had already been supplying to the greyhound trainers in the Auckland and Waikato regions for some time (800forddowncow). I contacted Mike Lozell knowing he was buying his meat from Alan. We had an in-depth discussion regarding the quality of meat sold by Alan in which he explained to me the 3 different variations that were available. Being fully aware of the RIU requirements stating greyhounds are prohibited from consuming meat containing Penicillin I was immediately attracted to the fact that this seemed like an obvious and in my opinion safe solution. I then contacted Alan, we had a discussion and I received some information I had already been previously advised. I explained that I race 6 dogs and therefore require the premium beef mince (I also stated that I want the same meat as what was being supplied to Dennis Schofield). The cost of this particular grade of meat was $2.50kg. The obvious inferior options were: Greyhound mix at $1.50kg and Breeders mix at $1.00kg. I ordered 100kg of Premium beef mince-total price being $250 dollars in which I gave to Dave Geraets to take to the track to pick the meat up for me-please see letter attached (Attachment #1) After returning to the track with the 4 boxes of meat (100kgs) we proceeded to check the boxes which were clearly marked in a black felt: BM (as photo shows ). Once my old meat supply had run out I fed out new meat with the same supplements as I had done previously. I feel the systems in place at Downcow have failed on this occasion whether it be just a matter of human error or for possibly labelling the boxes incorrectly. It may also be a matter of cross-contamination as no doubt Downcow rely on the farmer’s honesty in regards to which cows have been treated with penicillin or not.

4. Procaine penicillin is well known on occasion to be present in meat as it is commonly used to treat cows. This is a world-wide problem in the greyhound racing industry. There have been many cases over the years in which greyhounds are coming back with positive swabs due to procaine penicillin being found in meat supplies. Attached is a fact sheet (Attachment #2) which has recently been adopted into New South Wales. What makes interesting reading to me is the fact that they now allow 1000 Nano grams of penicillin per ml of urine. This is the level which is believed to by an obvious point of difference between the drug being administered and being present in the meat itself. In Great Britain they have banned feeding knackery meat within 24 hours prior to the dog racing or trialling. In New Zealand there is no such limit as NZGRA do not test in this way-it’s either present or not. Therefore if it is detected in the meat the outcome is extremely black and white. MZGRA also have very limited information that I can find in relation to recommendations in minimising the risk of returning a positive to this drug. There is a very small article in the monthly greyhound magazine (relating to my positive swabs and 3 positive morphine swabs) which was published after my case. Although insignificant this printing happened after our positive swabs. The RIU also put out a media release which states they are taking steps to improve trainer education. Apart from the magazine article I can find no relevant information or guidance that would have changed the outcome of my results.

5. Swab procedures. I have no issues with the 3 positive swabs in question as the on-track process was followed by all parties. I was notified on the 27th January 2015 by the RIU when they turned up to my property to investigate. This is close to 5 weeks after the 1st swab taken on the 24th December. During this period of time I had a total of 5 swabs taken. The 3 positives were taken on the 24th Dec, 02 Jan, 04 Jan and another two swabs taken on the 18th Jan and 15 Feb in which these two were clear. I would like to make it very clear that I have major issues with the time frame in regards to being advised of my positive swabs-notification 34 days after the 1st positive swab is just unacceptable. I have recorded evidence ( if required ) of Mike Godber saying it takes about 2 weeks to find evidence of an illegal substance and possibly another day or two to identify the prohibited substance. Based on this statement I therefore am inclined to believe that the RIU already knew of the positive in question so I should have been notified ASAP. There was not only a 4th but a 5th swab taken before they contacted me to advise me of the first three positives. I potentially could have had 5 positive results had last two swabs not been clear which could have led to even worse implications for me. The issues I have with this is simple-1. As soon as I was informed I would have scratched all my dogs scheduled to race and would not have nominated any more until I was certain of the cause of the first positive swabs. This opportunity however was taken away from me. By the time the RIU turned up and took a sample of the batch of meat I was feeding it was a understandably a totally new (and different) batch-hence the reason Barry (RIU) said it was not worth testing it. I asked Mike Godber a question via the Dog Zone show aired on Sky Racing channel “why does it take 3 positives and two clear swabs before I hear from the RIU”? He blatantly advised on national television that it doesn’t??? Well in this case it certainly did. This is not a game for me. I take this very seriously and feel the RIU have let both myself and owners down big time and I am extremely disappointed in how this matter has been dealt with. I understand this is a separate issue but would like some answer and assurance in the future.

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