Non Raceday Inquiry RIU v MP Jones – Reserved Decision of Judicial Committee on Penalty dated 16 January 2015

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decisiondate: 13/01/2015

hearing_title: Non Raceday Inquiry RIU v MP Jones - Reserved Decision of Judicial Committee on Penalty dated 16 January 2015

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appealdecision: NO LINKED APPEAL DECISION

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BEFORE A JUDICIAL COMMITTEE

HELD AT CHRISTCHURCH

IN THE MATTER of Information No. A6401

BETWEEN KYLIE ROCHELLE WILLIAMS, Racecourse Investigator for the Racing Integrity Unit

Informant

AND MARK PETER JONES of Burnham, Licensed Public Trainer

Respondent

Judicial Committee: R G McKenzie, Chairman - S C Ching, Committee Member

Date of Decision: 16th January 2015

RESERVED DECISION OF JUDICIAL COMMITTEE ON PENALTY

Background

[1] In a written decision dated 14th October 2104, the Committee found a charge against Mr Jones proved in that, as the trainer and person in charge of the horse REMISS which was taken to the meeting of Forbury Park Trotting Club for the purpose of engaging in a race, Race 9 the Southern Golden Girls Series (Heat 4) Mobile Pace, he presented that horse with a blood TCO2 level of 36.2 mmol/litre, in breach of Rule 1004 (1), (1A) and (2) of the New Zealand Rules of Harness Racing.

[2] The Committee invited the parties to file submissions in writing in respect of penalty and costs, and submissions have now been received from the Informant and the Respondent.

The Penalty Rule

[3] The Penalty Rule is Rule 1004 (7) which provides:

Every person who commits a breach of sub-Rule (2) or (3) shall be liable to:

(a) a fine not exceeding $20,000.00; and/or

(b) be disqualified or suspended from holding or obtaining a licence for any specific period not exceeding five years.

Submissions of the Informant:

[4] Mr Lange filed the following submissions on behalf of the Informant

1. The Judicial Committee has found the breach of Rule 1004(1), (1A) and (2) of the New Zealand Rules of Harness Racing proven, namely that Mr Jones was the trainer of the horse REMISS which had been taken to the Forbury Park Trotting Club to race and failed to present the horse free of a prohibited substance as evidenced by a TCO2 level of 36.2 mmol/L.

2. Mr Jones has one previous breach of the Prohibited Substance Rule. In December 2010, Mr Jones was fined $2,000 after ALGEEPEE was presented to race with a TCO2 level of 38.2 mmol/L.

Approach to Penalty

3. A convenient starting point is the decision of the Appeals Tribunal in Lamb, 27 April 1998, which considered the predecessor to the Prohibited Substance Rule, the Drug Negligence Rule. The Appeals Tribunal in Lamb commented (emphasis added):

"There was no evidence upon which it could be established precisely how the drug came to be introduced into the horse. Whether it happened as a result of some mistake at the stables or was administered by a person unknown while the horse was unattended at the racetrack cannot be established. The matter must therefore be approached on the basis that there was no intentional administration of the drug by the appellant and no negligent administration of a substance or food to the horse which contained the drug."

4. The Appeals Tribunal went on to state:

"We do want to make it clear, however, that the days of modest fines for such offences are well gone. Substantial fines in the thousands rather than hundreds must be expected even for first offenders. Negligence which brings the sport and industry into disrepute must be deterred and it must be made clear that the cost associated with care in stables and supervision at the track will be well spent. It must be expected that repeat offenders and those guilty of high levels of negligence will incur periods of suspension. Those who rely on the ability to train for livelihood must not expect that fact alone will result in special considerations."

5. In Bentley, 4 July 1998, the Appeals Tribunal was considering an appeal by the Informant for a breach of the Drug Negligence Rule where a fine of $1,750 was imposed for a breach of the Drug Negligence Rule following the return of a positive swab for phenylbutazone. The Tribunal found Mr Bentley's failure to put in place expected standards of control and security over the horse was a major aggravating feature. The Tribunal went on to observe that a breach as a result of negligence must be viewed seriously by both Judicial Committees and by this Tribunal and later:

"..this Appeals Tribunal sends a very strong warning that, in future, inquiries involving a breach of Rule 1004(2) could well be met with a period of disqualification or suspension......

6. The Appeal Tribunal in Justice, 14 March 2012, stated at [81]:

"Once a breach is established, general deterrence and denunciation is appropriate in imposing penalty. There is a need to bring home to trainers/owners the heavy responsibility of presenting horses free of prohibited substances. Previous penalties have failed to do this, as illustrated in the decision of Bentley."

7. More recently in Mitchell the Appeals Tribunal, 17 July 2012, in an appeal against 12 months disqualification for a second, third and fourth breach commented at [5.71 to [5.9]:

"We have given careful consideration to this characterisation of Mr Mitchell's conduct in this case and as to whether it is warranted on the factual findings made by the Judicial Committee. While there can be no issue taken with the comments rightly made by the Judicial Committee as to the need for care and caution in the giving of substances to horses, we have reservations as to whether Mr Mitchell's conduct and its shortcomings as identified by the Committee in this case justified the level of culpability implicit in the phrase "reckless in the extreme". The shortcomings of Mr Mitchell's conduct outlined by the Judicial Committee certainly, in our view, warranted the imposition of a period of disqualification, particularly given the breaches were his second, third and fourth breaches of the Rules all committed within a period of three months, but we are left with the impression that the shortcomings did not entirely justify the level of culpability attributed to them by the Judicial Committee and the period of disqualification imposed may have been overly influenced by that assessment of culpability.

In the result, having considered the various factors which influenced the Judicial Committee in fixing penalty, the various cases referred to by the Committee and Counsel in their submissions and the warning given by the Racing Integrity Unit, we have come to the conclusion that the period of 12 months suspension imposed was excessive in the circumstances of the case and should be reduced. We are of the view however that a financial penalty should be imposed to give proper effect to the level of culpability we believe the offending involves, notwithstanding the reduction in the period of disqualification.

In the result the appeal is allowed to the extent that the disqualification of one year imposed on Mr Mitchell by the Judicial Committee and to commence on 19 April 2012 is quashed and in its place a period of disqualification for 9 months to commence as from 19 April 2012 is imposed. In addition, Mr Mitchell is to pay a fine of $1,500 on each of the three admitted breaches making a total fine of $4,500...'

8. In RIU v Keast & Westrum the Judicial Committee adopted a start point of 8 months’ suspension and a fine of $3,000 for repeated breaches of the Prohibited Substance Rule. The TCO2 level was 36.3 mmol/L. Both Respondents had an earlier breach which arose three weeks earlier.

9. It is accepted that the time period between the breaches by Mr Jones is significantly greater. It is also acknowledged that the TCO2 level has now been increased to 36.0 mmol/L.

10. In these circumstances the Informant accepts that it would be open to sanction the misconduct by the imposition of a fine but the level of fine should be in the vicinity of $7,000.

11. Whilst the Informant accepts that the final decision on appropriate levels of penalties rests with the Judicial Committee and Appeals Tribunal, the RIU ask that the intended approach for future cases be recorded in the decision to ensure industry participants do not view the approach in this case as a precedent for the future.

12. The RIU advises that with the increase in the TCO2 threshold, in future cases it will be seeking a significant increase in penalty imposed for a breach of the Prohibited Substance Rule. For a first breach of the Rule a short period of disqualification will be sought, coupled with a fine. For repeated breaches of the Rule, the RIU will be submitting lengthy periods of disqualification should be imposed.

Submissions of the Respondent

[5] Mr Brodie filed the following submissions on behalf of the Respondent:

1. It would be wrong to sentence Mr Jones on the basis that Remiss had been administered an alkalising agent notwithstanding the strict liability nature of the Rule. Mr Jones denies any personal involvement in any such administration.

2. This conviction is based on the presumption created by the Rules derived from the fact that some two hours before the race there was a marginally elevated TCO2 level which is not evidence of the TCO2 level at the time of racing. The presumption cannot displace the possibility of alternative explanations. If there are entirely innocent explanations then these should be taken into account in mitigation.

3. For sentencing purposes those explanations should not be disregarded. It is unfair for a trainer to suffer the consequences of this conviction if the elevated level is not due to the administration of a prohibited substance.

4. Apart from the TCO2 reading there is no evidence at all that this horse raced with a prohibited substance in the form of an alkalising agent. There is no evidence of any administration of bicarbonate of soda by Mr Jones. And on the other hand there are a number of factors here which point away from the conclusion that this horse has been deliberately fed bicarbonate of soda:

5. Mark Jones was not present on the day in question. He left for Nelson at 7.00 am in the morning which is 14 hours before the race started. A horse deliberately doped would normally occur 4 to 6 hours before the race start.

6. There was an extensive search carried out of the stables and no evidence of bicarbonate of soda was found and there was no evidence of bicarbonate of soda being purchased.

7. The Racecourse Inspector declined the opportunity to examine the continuous CTV record available from 14 cameras throughout the Respondent's establishment

8. Remiss was under control of independent people being Kimberley Butt, her boyfriend and Michelle Neilson at all times during the day in question. Administration could only have occurred with collusion, if at all. Remiss was transported to Forbury Park in an enclosed float with two other horses.

9. Remiss was reported to be agitated and sweating profusely on arrival and there was a problem with the ventilation in the float.

10. A very large number of samples taken from all of the Respondent's horses over the preceding three years with the one exception of Algeepee do not indicate any pattern of bicarbonate being administered.

11. There is no particular reason for selecting this horse to be treated. The stakes involved were very minor, only $2,700 for the first place. The Respondent did not bet on Remiss. The horse did not perform well. It ran last.

12. Remiss has returned relatively high TCO2 levels consistently over time. These are summarised in the letter from the NZRIU dated 8 July 2014.

13. There are a number of explanations for the high level which has led to the conviction but which are entirely consistent with innocence.

14. The following extract from an article "An International Bicarbonate Threshold - Is It feasible" authored by Professor CHG Irvine points to some but not all of those possibilities.

"Physiological and environmental effects on acid-base balance

A range of factors has been reported to affect blood bicarbonate TCO2. One factor is respiratory state. Acid-base balance is regulated both by the lungs which control blood PCO2 and the kidneys which control bicarbonate and hydrogen ion levels. Thus, changes in ventilation rate affect TCO2. For example, under hot conditions respiratory rate can increase up to 7-fold (McConaghy et al. 1995) causing a rise in blood pH and a marked drop in PCO2, plasma TCO2 and eventually bicarbonate (Guyton 1976). The extent of the fall in TCO2 in hyperventilating racehorses has been estimated not to exceed 0.6 mmol/1 (Lloyd et al. 1992) and would be due to complete dissipation of dissolved CO2. Excitement will also cause hyperventilation. High atmospheric CO2 can have the opposite effect, raising TCO2 and lowering blood pH (Guyton 1976). Changes in acid-base balance have been observed in people in a closed car in which atmospheric CO2 can be more than 10 times the normal level (Tomoda et at. 1997). A comparable situation for horses might be travelling together in a poorly ventilated horsebox with the horses being sampled at the conclusion of the trip.

Sweating also raises bicarbonate. Horse sweat is rich in chloride, so during sweating the coincident drop in blood chloride causes the kidney to absorb more bicarbonate ion than usual and hence blood bicarbonate levels rise. Heavy sweating, i.e. the loss of 20 1 or more, which does happen in endurance horses, can raise bicarbonate by over 5 mmol/l (Carlson 1975, quoted in Lloyd 1993). However, hot or excited horses would be unlikely ... 0.2 mmol/1 for each rise of 10 degrees Celsius (Frey et al. 1996). The effect of temperature may be due to increased sweating and hyperventilation.

Training can affect blood bicarbonate. A recent study showed that, during a 2-month training period, resting plasma TCO2 levels fall from 32-29 mmol/1 as horses approach peak fitness, but rebound to exceed 32 mmol/1 if the horses are over-trained (Hamlin and Hopkins 1997).

Although the effect of each of these factors is small, e.g. not one appears to be capable of raising bicarbonate to the extent occurring after a milkshake, they undoubtedly contribute to the variability in TCO2 or bicarbonate levels between individual horses. More importantly, even a slight variation in the regional mean and sd TCO2 would make large differences in the 'fairness' of an international threshold. For example, if the mean and sd TCO2 levels are 31.8 ± 1.8 mmol/1 (as in one of Australia's main centres; Reilly et al. 1996), then using a threshold of 35 mmol/1 and allowing a mmol/1 for measurement error will lead to one horse in 100 being a false positive because 36 mmol/1 is 2.3 sd above the population mean. In contrast, if the mean and sd TCO2 levels are 31.0 ± 1.5 (as in Hong Kong; Tang and Crone 1994), then using a threshold of 35 mmol/1 plus 1 mmol/1 error will lead to only one horse in 2,500 being a false positive because 36 mmol/1 is 3.33 sd above the population mean. Obviously, a threshold of 35 mmol/1 would be much 'fairer' in Hong Kong than in Australia.

15. A brief of evidence from Rebecca Sutorius which confirms these possible explanations was submitted to the Committee.

16. Dr A R Grierson wrote a letter dated 9 August 2013 written in the context of an elevated blood TCO2 level of 36.3 mmol/L returned by Mattjestic Reebeck on 23 June 2013.

17. Dr Grierson specifically asserts that

".. the level of 36.3 detected in the sample may have been a normally derived level extrapolating from the twelve results of the 30/6/13, 5/7/13 and 6/7/13 and not from milkshaking. This leads me to question whether the race day positive test of 36.3 mmol/L was from an administration of an alkalising agent."

He recognises distress after being removed from a property, profuse sweating, high body temperatures, over training and natural variation as factors which might have accounted for the level of36.3mmol/L

18. In a later hearing Dr Grierson sought to retreat from this explanation but the fact remains that he wrote a formal letter acknowledging the possibility of an innocent explanation for an elevated TCO2 level. That letter cannot be dismissed as inconsequential.

19. The veterinary Pathologist has identified a respiratory tract infection from a swab taken on 18 June 2013. The Massey University Study "Arterial blood gas analysis in 53 racehorses with a diagnosis of Small Airway Inflammatory disease" concludes

In hypercapnic Small Airway Inflammatory disease affected racehorses the concurrent increase in HCO3 and TCO2 concentration could possibly lead to false positive anti-doping controls. In fact, anti-doping authorities in many countries acknowledge TCO2 concentration in venous blood as a specific parameter capable of detecting fraudulent bicarbonate administration (milkshake) to improve performance prior to racing. However, since no significant differences in both HCO3 and TCO2 concentration in arterial vs venous blood were reported, it could be argued that the detection of an increase in TCO2 in a venous blood sample does not rule out the present of a lower airways inflammatory disorder such as Small Airway Inflammatory disease, which may cause a condition of compensated respiratory acidosis, in asymptomatic horses. In conclusion, in case of an increase in venous blood TCO2 at pre-race anti-doping control, it could be necessary to resort to further diagnostic investigations, such as BAL and arterial blood gas analysis, to rule out an inflammatory disorder of lower airways before sanctioning a competitor for fraudulent bicarbonate administration."

20. There is obviously some concern about the possibility of unfair convictions arising from the nature of the charge and the strict nature of liability. Prior to the hearing in this case Mr Jones was approached by Harness Racing New Zealand. A proposal was put forward for Remiss to be taken into care of another trainer and transported to a different meeting at Forbury Park then re-tested in similar circumstances. It was stated that if a similar result was returned the charge would then be dropped. Mr Jones heard no more of this after the initial inquiry but this approach does demonstrate that there is some unease in some quarters about the process.

21. The sample indicates only a very fine elevation over the permitted level, .2%. On 9 October 2014 The Board of Harness Racing New Zealand amended the Rules to increase the threshold level for TCO2 from 35.0mmol to 36.0 mmol. If the same events occurred today, there would not be a conviction at all after allowing 1mmol for instrument error. The testing system for TCO2 is the Mr Beckman ET-ISE Analyser. This has a margin of error of 1 mmol/L. The machine is no longer manufactured and is not supported by the supplier.

The explanatory statement which accompanies the Rule change states that the possibility of a false positive is far more remote, 1 in 2,021,729 compared to 1 in 15,793. This of itself is of concern because this Tribunal has frequently been presented with evidence suggesting a ratio of 1 in 33,726.33.

22. Statistically the chances of Remiss returning a false positive are very much less than that. This is because Remiss appears to have a much higher naturally occurring TCO2 level. It is well recognised that horses can naturally have differing levels. An article in the Equine Veterinary Journal "Factors contributing to plasma TCO2 and acid-base state in Ontario standardbred racehorses reports on studies on blood from 211 horses There were 16 horses that had a TCO2 reading of 37.0-42.9 mmol/l. A direct quote from it

"These results suggest that some horses may naturally demonstrate TCO2 levels close to, or in excess of, the 37 mmol/l testing threshold, even when no alkalinising substances have been given...

It is concluded that the normal range of TCO2 in a sub-population of Standardbred racehorses from Ontario is 17 mmol/L, ranging from 25.6-42.9 mmol/L and that some horses normally have a plasma TCO2 that closely approaches or exceeds the testing threshold of 37 mmol/L"

23. It is wrong and unfair to suggest that Remiss has only a 1 in 15,793 chance of returning a false positive. That is simply wrong.

24. He should not be sentenced on the basis that he has deliberately participated in administration of an alkalising agent. In McInerney v Templeton, the Court of Appeal in dealing with a conviction where the only evidence was that of the test result held:

“If, contrary to his contention and as we uphold, the rule is broad enough to capture those who take to a racecourse a greyhound which has been accidentally administered substances that result in the detection of traces of drugs to which the rules apply, even with all reasonable care has been taken, the rule is one directed to ensuring that the animals race on even terms, not just one directed to intentional doping.”

26. The blood test result in this case cannot without more be proof of intentional doping and he should not be sentenced on that basis.

27. With respect to the RIU submissions previous cases have very rarely resulted in a disqualification.

28 To now single out Mr Jones after the Rules have been changed would have the appearance of an injustice.

29 Mr Jones has been a competent and prominent reinsman and trainer over the years. He operates a substantial training operation with 45 to 50 horses in training. He employs 9 staff. He enjoys a good international reputation which generates significant overseas sales.

28. Following the publicity surrounding his conviction three owners have withdrawn horses at a direct cost of $2,000 per month each.

29. His business is well run and efficient. His record keeping is excellent and his tax and GST obligations are completely up to date.

30. He appears to be well regarded in the industry (two character references were submitted)

Further Submissions on Behalf of the Informant

1. The Informant has received the submissions by the Respondent in relation to penalty, where there are a number of matters which the Informant seeks to respond to.

Administration

2. Contrary to the Respondent's submission the breach of Rule 1004 does not allege that the Respondent admitted any substance to the horse. The Rule requires the Respondent, as the trainer of the horse, to ensure the horse is presented to race with a TCO2 level below the threshold.

Criticism of the Racecourse Inspector

3. At paragraph [7] the Respondent asserts that the Racecourse Inspector declined the opportunity to examine the CTV footage from the Respondent's establishment.

4. When Ms Williams attended the property there were discussions about the CTV footage, however she was told by the Respondent that he was unable to operate the CTV recordings. Ms Williams does not accept she declined the opportunity to examine the CTV records

5. At paragraph 20, the Respondent is correct to the extent he refers to there being a proposal for the horse to be transported to Forbury Park and be tested. The RIU position is the person who decided this would not take place was the Respondent.

Horse’s condition on arrival

6. It appears to be contended that the cause of the elevated TCO2 level was as a result of transportation and the horse sweating on arrival on course. Ms K Butt however refers to arriving at 3:00 pm and the sample was taken over 3 hours later after 7:00pm. There is no suggestion that the horse continued to be in a condition which may have elevated a TCO2 level after arrival on course or prior to testing.

Scientific Material

7. Unfortunately since receiving the Respondent's submission Mr Grierson has had a number of commitments within New Zealand and overseas. He is currently out of New Zealand. In addition counsel also has had a number of commitments.

8. What has been ascertained is that after Dr Grierson completed his first report relating to Mattjestic Reebeck further research was conducted. He contacted the authors of the 2008 paper asking for the information which was not in the public domain. Had he been aware of that statistical information he would have not come to the conclusion in his first report. This is accordance with the role of an expert to keep an open mind and to review earlier conclusions when additional information requires reconsideration.

9. Nor is the implied criticism of statistical information accepted. The data Dr Grierson is referring if from a 2008 study which calculates the chance of a false positive as follows:

(a) 36.0 1 in 15,793

(b) 36.2 1 in 33,726

(c) 37.0 1 in 2,021,729

Reasons for Penalty

[6] Mr Lange, in his penalty submissions on behalf of the Informant, does not seek disqualification. It is stated, in those submissions, that a fine “in the vicinity” of $7,000 should be imposed. The Committee agrees that a fine is the appropriate penalty in this case and its consideration of penalty has been based on that premise.

[7] Mr Lange refers to the fact, as does Mr Brodie on behalf of the Respondent, that an amendment to Rule 1004 is proposed in terms of which the TCO2 level below which a horse shall be presented for a race is increased from 35.0 to 36.0 mmol/l. There will be a margin of error as at present so that, as the Committee understands it, levels below 37.0 will not be prosecuted. The new Rule 1004 in now in force.

[8] The Informant submits that, with that increase in the TCO2 threshold, the RIU will be seeking “a significant increase” in penalties for breaches of the Rule. Mr Lange has asked this Committee to record in this decision the intended approach for future cases. The Committee is not prepared to do this. Rather, we must deal with the matter of penalty on the basis of the Rule as it existed at the date of the offence and on the basis of previous penalties under that Rule. It would not be appropriate for us to pre-empt the approach to be taken by future Judicial Committees dealing with the new Rule 1004 and penalties under it.

[9] In this case, there is no allegation of, either, negligence on Mr Jones’ part or any allegation of administration. The Informant has pointed out that the Rule requires the Respondent, as the trainer of the horse, to ensure that the horse is presented to race with a TCO2 level below the threshold.

[10] The thrust of Mr Brodie’s submissions, on behalf of Mr Jones, was that the Committee, in deciding penalty, should not consider that there had been any deliberate administration by Mr Jones or that Mr Jones had any involvement in administration, if any. Mr Brodie pointed out that, despite an extensive search of Mr Jones’ training establishment, no evidence of bicarbonate of soda was found and neither was there any evidence that any had been purchased by Mr Jones.

[11] Mr Brodie submitted that there are “entirely innocent explanations” which should be taken into account in mitigation.

[12] One possible explanation raised by Mr Brodie was that REMISS had become agitated on the float, was sweating profusely on arrival at the racetrack and there was a problem with ventilation on the float.

[13] Mr Brodie produced a statement from Rebecca Sutorius, Equine Veterinarian, in which it was suggested that other possible explanations could include respiratory tract infection / COPD (Chronic Obstructive Pulmonary Disease) / or impaired oxygen-CO2 exchange in the lungs, level of training, history of warm up/warm down before and after racing, blood plasma protein plasma levels, electrolyte imbalance, renal dysfunction and diet.

[14] It was also submitted on behalf of Mr Jones that REMISS has returned relatively high TCO2 levels consistently over time. Results of testing the mare over a period of a month between 5th June 2014 and 4th July 2014 showed levels between 31.5 and 36.2, including one at the trials and another in the paddock. Two of the readings were taken when the horse had left Mr Jones’ stable – 35.6 on 27th June 2014 and 34.8 on 4th July 2014.

[16] At the end of the day, this Committee has no evidence of administration before it and the reasons for REMISS having an elevated TCO2 level, simply, cannot be established. To allay Mr Brodie’s concerns, we state that we have arrived at a penalty on the basis that there is no evidence of administration. We, quite simply, have had no evidence presented to us as to the cause or likely cause of the high TCO2 level returned by REMISS. This is the case in most TCO2 cases.

[17] The Committee has found a number of recent cases to be of assistance in arriv

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