Non Raceday Inquiry – Request for Rulings 12 September 2013 – Decision dated 4 December 2013

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decisiondate: 30/11/2013

hearing_title: Non Raceday Inquiry - Request for Rulings 12 September 2013 - Decision dated 4 December 2013

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BEFORE A JUDICIAL COMMITTEE OF THE JUDICIAL CONTROL AUTHORITY UNDER THE RACING ACT 2003

IN THE MATTER of the New Zealand Rules of Harness Racing

RE: The request for a ruling in respect of the horses

DELIGHTFUL CHRISTIAN      Information No A4803

PRECIOUS MACH                 Information No A4804

DREAMY EAGLE                   Information No A4805

BARRY ALEXANDER KITTO, Racing Investigator for the Racing Integrity Unit (RIU)

Informant

Judicial Committee: Murray McKechnie, Chairman - Prof Geoff Hall, Committee Member

Counsel: Christopher Lange, Counsel for RIU

Murray Branch, Counsel for the connections of PRECIOUS MACH

HEARING AUCKLAND 12 SEPTEMBER 2013

DECISION OF JUDICIAL COMMITTEE DATED THIS 4th DAY OF DECEMBER 2013

1. COURSE OF PROCEEDINGS

1.1 The Racing Integrity Unit (RIU) has sought rulings in respect of the above named horses. Those requests were made pursuant to Rule 1004D of the New Zealand Rules of Harness Racing. The requests were made in October 2012.

1.2 The proceedings before this Committee have been protracted. The rulings that the RIU have requested relate to testing for prohibited substances. That testing was undertaken in Hong Kong. The Hong Kong Jockey Club Racing Laboratory had not previously been used for conducting tests at the request of Harness Racing New Zealand (HRNZ). It is sufficient to shortly summarise what has occurred. That is best done by reference to each horse in turn:

DELIGHTFUL CHRISTIAN

DELIGHTFUL CHRISTIAN raced at Cambridge Raceway at the Harness Jewels Meetings on the 2nd June 2012 and was found to have administered to it, or ingested by it, a prohibited substance, namely CACO – IRON – COPPER or arsenic at a mass concentration exceeding 0.30mg/L of urine. The ruling requests that DELIGHTFUL CHRISTIAN be disqualified from 1st place in Race 3, the Zone Bar Sky City 2yr old fillies Diamond Mobile Pace, a Group 1 race over 1609m. The winning stake was $75,000.

By a ruling of the Committee dated 19th October 2012 directions were given as to the service of the proceedings upon the connections of all three (3) horses. Thereafter a series of telephone conferences took place and the Committee issued a number of directions and minutes as to the conduct of the hearing. The connections of DELIGHTFUL CHRISTIAN commenced proceedings in the High Court to obtain judicial review of the RIU decision to seek the ruling pursuant to Rule 1004D. By a judgment dated 15th May 2013 Simon France J dismissed the application for judicial review. That judgment has been appealed to the Court of Appeal. No date has been set for the hearing of the appeal. Sometime after the judgment of Simon France J the connections of DELIGHTFUL CHRISTIAN by their solicitor Mr Ryan advised in writing that they would take no further part in the proceedings before this Committee. No application was made to the High Court to stay these proceedings.

PRECIOUS MACH

PRECIOUS MACH raced at Cambridge Raceway at the Harness Jewels Meeting on the 2nd June 2012 and was found to have administered to it, or ingested by it, a prohibited substance, namely CACO – IRON - COPPER or arsenic at a mass concentration exceeding 0.30mg/L of urine. The ruling requests that PRECIOUS MACH be disqualified from 4th place in Race 1, the R A & J V Yarndley 4yr old mares Diamond Pace, a Group 1 race over 1609m. The stake for 4th placing was $6,375.

Mr Barry Purdon represented the connections of PRECIOUS MACH at a number of the telephone conferences which took place before the Committee. At the hearing which took place before the Committee on 12th September 2013 at Ellerslie Racecourse Mr Purdon did not enter a formal appearance for the connections of PRECIOUS MACH. Mr Branch, counsel for the connections of DREAMY EAGLE explained to the Committee that the connections of PRECIOUS MACH adopted the submissions which he advanced on behalf of the connections of DREAMY EAGLE.

DREAMY EAGLE

DREAMY EAGLE ran at the Northland Harness Racing Club race meeting at Alexandra Park Auckland on 24th February 2012 when it was said that the horse has had administered to it a prohibited substance, namely CAPSAICIN and DIHYDROCAPSAICIN. The ruling requested that DREAMY EAGLE be disqualified from 1st place in Race 7, the Kea Campers 2012 Northland Cup. The winning stake in the race was $5,130.

1.3 Following the various telephone conferences spoken of and the directions and minutes issued by the Committee a hearing took place at Ellerslie Race Course on 12th September this year. In terms of the pre-hearing rulings issued the evidence for the RIU was furnished by way of affidavits and signed statements. This agreed arrangement for the furnishing of evidence avoided the very significant expense that would have resulted if all persons involved in the swabbing of the three horses and the subsequent testing had been required to attend the hearing in person. Mr Barry Kitto the RIU investigator and the informant in these proceedings had made statements. He was called to give evidence at the hearing and was cross examined by Mr Branch.

1.4 At the hearing on 12th September Mr Branch advised that he appeared as counsel for the connections of PRECIOUS MACH. Further he advised that he had some submissions to advance on behalf of the connections of DREAMY EAGLE. Post the hearing on 12th September both counsel have filed further material and reference will be made to that later in this decision.

2. THE HIGH COURT CHALLENGE BY THE CONNECTIONS OF DELIGHTFUL CHRISTIAN

2.1 It is appropriate to set out the grounds for review which were advanced and how each of these was dealt with. The Committee respectfully suggests that this summary which follows accurately reflects the detailed judgment of Simon France J. Four (4) grounds were advanced, as follows:

(i) That the rule under which the request for a ruling was sought was invalid. The rule had been amended in 2011. It was said to be inconsistent with the Racing Act 2003.

An allied submission was made that the establishment of the RIU which had commenced operation in February 2011 was inconsistent with provisions in the Racing Act and with the policies of the NZ Racing Board. Both grounds of challenge were rejected. With reference to the position of the RIU the Judge did not accept the proposition that it was required to have regard to the NZ Racing Board statutory objectives when deciding to seek the request for a ruling.

(ii) The proceedings before the Committee result from tests which took place in an equine laboratory administered by the Hong Kong Jockey Club. Samples from New Zealand had not previously been sent to that laboratory. It was contended that this was the only laboratory in the world accredited to undertake such a test and that in those circumstances no second or B sample test could be undertaken.

In relation to the approval of the Hong Kong laboratory His Honour held that he did not consider a dispute about the validity of a positive test from that laboratory could call into question a decision under the NZ Rules of Harness Racing to approve the Hong Kong laboratory. His Honour remarked that the standing of the Hong Kong laboratory was not in question nor was any issue raised in relation to the process by HRNZ in approving that laboratory. The Committee pauses to note that this issue was raised by Mr Branch at the hearing on 12th September and in subsequent submissions. More will be said of that later. As to the apparent inability to test the B sample His Honour held that this was not a matter for the Court but rather for this Committee. Reference was made to a laboratory in Perth which it was suggested might test the B sample. His Honour went on to observe that the rules do not require a reserve sample to be available for testing and that there was no challenge made before him to the legality of that rule. Again this is an issue that was raised before the Committee by Mr Branch.

In respect of DELIGHTFUL CHRISTIAN the evidence before this Committee establishes that a request was made of HRNZ to test the B sample. No facility exists in New Zealand to test for the substance which had been identified in Hong Kong. The B sample from DELIGHTFUL CHRISTIAN has not been tested.

(iii) Whether participants in harness racing had a legitimate expectation to be consulted before the new Hong Kong testing procedures were followed.

Extensive evidence was put before the High Court. This was analysed by His Honour in considerable detail. His Honour made this observation at paragraph 73:

[73] Before turning to the respondents’ evidence, I observe that if the applicants’ evidence is taken at its highest, then to outside eyes and in this modern day approach to drug detection, the harness authorities appear to have placed themselves in quite an unexpected situation. It is counter-intuitive to hear that industry participants have an expectation of being told before authorities use better drug detection equipment, or start testing for a drug that is already prohibited. Perhaps not surprisingly therefore, the respondents’ understanding of the position is somewhat different

The Judge concluded that there was no legitimate expectation and went on to observe that had such been found the Court might not necessarily have granted relief. His Honour said at paragraph 96:

“HRNZ never said anything to suggest arsenic was not prohibited. No one in the industry knew arsenic was not being tested for so they could have no expectation that it was not prohibited. A decision to start testing for an already prohibited drug cannot be likened to changing the classification of a substance from permitted to prohibited”.

(iv) That it was invalid to seek a ruling from the JCA.

This ground of challenge was rejected. His Honour noted that it was not in dispute that there was sufficient evidence to support the charge and that those involved had been properly interviewed and given an opportunity to comment. Nor did the Judge accept that whether or not the prohibited substance helped the horse to win was something that might be relevant in determining whether to seek a ruling. At paragraph 106 of the judgment His Honour stated:

[106] The officials are entitled to accept and work within what is an unchallenged regulatory scheme. Faced with a positive result, they are not obligated to consider whether disqualification would be a fair outcome in the particular case. The fact that the JCA itself has no discretion if the charge is proved is not to be avoided by instead loading the prosecution discretion with such considerations. The applicants’ real complaint is with mandatory disqualification but that rule was not challenged.

At paragraphs 107 and 108 His Honour spoke of the policy that underlies the rules in the following terms:

[107] These rules reflect a policy choice that an absolute regime is the best disincentive, and the best way to instil public confidence. The applicants do not directly challenge the legitimacy of this mandatory disqualification rule, but seek instead to undermine it by transferring the policy considerations to the prosecutor. I do not consider that is legitimate and so reject this aspect of the case.

[108] The final submission was that a decision to charge was unreasonable, in the sense that it is not a decision any reasonable decision maker could reach. Given my conclusion that it is a decision contemplated by the scheme of the rules, this submission cannot succeed. When the Stewards are provided by an approved laboratory with evidence to put before the JCA of a horse winning a race with a prohibited substance in it, it is difficult to see how a decision to charge would ever be classified as legally unreasonable, absent some extreme situation.

3. THE EVIDENCE PRESENTED TO THIS COMMITTEE BY THE RIU

It is convenient to deal with each horse in turn:

3.1 DELIGHTFUL CHRISTIAN

Affidavits were made by a number of deponents. We take each in turn:

Cameron George.

At the relevant time Mr George was a stipendiary steward. He deposed to his discussions with Mr Edward Rennell the CEO of HRNZ and the decision to appoint the Hong Kong Jockey Club Racing Laboratory as an HRNZ approved laboratory. Mr George further deposed that he was present at the Harness Jewels meeting on the 2nd June 2012 and directed the taking of post-race samples. Those were sent to Hong Kong. On 4th July 2012 a report was received advising that the mass concentration of total arsenic in urine sample 53537 was 0.46milligrams per litre of urine and the control sample was negative. Thereafter Mr George appointed Mr Kitto to conduct an investigation.

Thomas Carmichael

Mr Carmichael is a racecourse investigator of many years’ experience based in Hamilton. He was present at Cambridge Raceway on 2nd June 2012 and oversaw the taking of the swab from DELIGHTFUL CHRISTIAN. He then arranged for the securing of those swabs and their dispatch to New Zealand Racing Laboratory Services Limited laboratory in Auckland.

Darryl Roberts

Mr Roberts was a swabbing steward at Cambridge Raceway on 2nd June 2012 and took the sample from DELIGHTFUL CHRISTIAN. He completed the documentation and handed that to the veterinary surgeon Dr Leonard Smith.

Leonard Smith

Mr Smith was the veterinary surgeon present on 2nd June 2012 at Cambridge Raceway and outlined the procedures which he followed in relation to the swab from DELIGHTFUL CHRISTIAN.

Geoffrey Beresford

Dr Beresford is a racing analyst, holds significant academic qualifications and is a fellow and former past president of the Association of Official Racing Chemists which is an international organisation. He has twenty eight (28) years’ experience in analytical chemistry in the racing industry. He received the relevant samples from Mr Carmichael on 5th June 2012. With reference to disputed issues Dr Beresford deposed that he knew of the ChemCentre Laboratory in Perth and that the laboratory was accredited to undertake the analysis of arsenic in urine but that the analysis had not been validated in equine urine. He went on to depose further in paragraphs 8, 9 and 10 as follows:

8. My view is, and I advised the RIU of this, the difference between human and equine urine would not appreciably affect the uncertainty of measurement of the arsenic level to the extent that the result would be unreliable at the reported level of arsenic in the urine sample from DELIGHTFUL CHRISTIAN of 0.47mg/L, that is 0.17mg/L above the threshold of 0.30mg/L.

9. In effect, it was my opinion that the ChemCentre analysis would produce a reliable result of the level of arsenic at the levels being considered. I was aware also the ChemCentre had undertaken B sample analysis for arsenic in two Australian cases.

10. I am also aware that Mr Hughes and Green requested the reserve sample be analysed at NZLRS. NZLRS is unable to undertake testing for arsenic. This information was passed on to the RIU and I understand to Mr Hughes and Green. Had we received the reserve sample for analysis NZLRS would have been unable to analyse the sample for the prohibited substance arsenic identified in the original analysis by the HKJC Racing Laboratory.

David Kwan Kon Leung

Mr Leung is a consultant employed by the Hong Kong Jockey Club Racing Laboratory. He is a qualified chemist with a Master of Science degree in organic chemistry from the University of Wisconsin. He has been a qualified racing chemist for twenty five (25) years. Mr Leong deposed to the receipt of the samples from New Zealand and the result of the analysis. That was arsenic at 0.47mg/L of urine. He further deposed that no other prohibited substance was detected. The control sample was negative for arsenic. The reserve sample remains with the Hong Kong laboratory. As to the concentration of arsenic Mr Leung deposed in paragraphs 11, 12, 13 and 14 of his affidavit as follows:

11. I am aware that the Harness Racing New Zealand Prohibited Substance Regulations refers to “Arsenic at a mass concentration of 0.30 milligrams per litre of urine” and the HKJCRL has reported the “mass concentration of total arsenic”.

12. Article 6 of the International Agreement on Breeding, Racing and Wagering (IABRW) of the International Federation of Horseracing Authorities, prescribes a threshold for arsenic as “0.3 microgram total arsenic per millilitre in urine” which equates to 0.30 milligrams per litre of urine.

13. Arsenic can exist in many different forms (organic, inorganic, or different valent forms). The Harness Racing New Zealand regulations refer to arsenic as opposed to total arsenic. The term total arsenic includes all forms of arsenic. Since the form of arsenic has not been specified in the New Zealand threshold, in my opinion implicitly it can only mean all forms of arsenic that is “total arsenic”.

14. The analysis by HKJCRL tests for all forms of arsenic. There should be no material difference between “mass concentration of total arsenic” and “mass concentration of arsenic”.

Mr Lange put before the Committee on 12th September an email received from Mr Terence Wan the head of the Hong Kong Racing Laboratory. In the relevant part that email is as follows:

I should point out that two sets of test reports and analytical reports have been issued for Sample 53537. The first set dated 26 June 2012 contained only the result for Sample 43537 (we had not known your preference to analyse the Control Sample concurrently with the A-sample), while the set dated 4 July 2012 contained the results for both Sample 53537 and the Control Sample. There was also a typing error in Paragraph 2.2 of the analysis report dated 26 June 2012, which was corrected in the analysis report dated 4 July 2012 (our fax to Cameron George on 4 July 2012 refers). To avoid any confusion, I would recommend the set of test report (No.12-0827R) and analysis report dated 4 July 2012 be used for the proceeding.

Your arsenic threshold is established from the international threshold for arsenic published in Article 6 of the International Agreement on Breeding, Racing and Wagering (IABRW) of the International Federation of Horseracing Authorities, which is “0.3 microgram total arsenic per millilitre in urine”. I understand New Zealand is currently a full signatory to Article 6 of the IABRW. While the wordings in your regulation is “arsenic at a mass concentration of 0.30 milligrams per litre in urine”, since arsenic can exist in many different forms (organic, inorganic or different valent forms), it is not entirely clear that your stated threshold actually refers to total (or all forms of) arsenic and not an unspecified form of arsenic. Since the form of arsenic has not been specified in your threshold, I believe implicitly it can only mean “total arsenic”. From our perspective, since “total arsenic” is aligned with IABRW, precisely defined, and we have measured, this is what we must report. But there should be no material difference between “mass concentration of total arsenic” and “mass concentration of arsenic”.

The email from Mr Wan was in response to a request for information from Mr Lange. Mr Lange asked two (2) questions. These were:

(i) From your perspective is there any difference between arsenic at a mass concentration and arsenic at mass concentration of total arsenic?

(ii) If there is a difference between arsenic at mass concentration of total arsenic at 0.47mg/L of urine mean that the level of arsenic in the sample exceeded arsenic at a mass concentration of 0.30mg per litre in urine?

BARRY KITTO

Mr Kitto is the informant in these proceedings and a racecourse investigator of many years’ experience. In respect of the request for a ruling in relation to DELIGHTFUL CHRISTIAN he swore an affidavit dated the 8th day of August 2013. That affidavit outlined an interview on the 11th July 2012 with the connections of the horse Messrs Green & Hughes. On the 20th July 2012 Mr Kitto spoke with the veterinarian Dr Ivan Bridge and a transcript of that interview was provided. In short Dr Bridge acknowledged that he had administered by injection 30mls of CACO-IRON-COPPER to DELIGHTFUL CHRISTIAN on the 1st June 2012. The veterinarian told Mr Kitto that he did not know that the product had arsenic at that time but had become aware of that at a later date. Mr Kitto went on to relate that the connections of DELIGHTFUL CHRISTIAN originally requested that the reserve sample be analysed at a laboratory independent of the Hong Kong Laboratory and preferably by the New Zealand Racing Laboratory in Auckland. It was explained that this was not possible. Mr Kitto then advised that two laboratories were available, the Hong Kong Laboratory or ChemCentre in Perth. There were a series of email exchanges and on the 9th August Mr Green advised that the connections requested the reserve sample be analysed at the Auckland laboratory operated by New Zealand Racing Laboratory Services Limited and to have a representative observe the identification of the sample. The next day Mr Kitto advised that New Zealand Racing Laboratory Services was unable to test for arsenic. On the 22nd August Mr Kitto advised the connections that inquiries of the ChemCentre in Perth indicated that it had undertaken reserve sample analysis in Australian cases. Mr Kitto asked the connections that if they wished to nominate an alternative laboratory to please do so urgently. No further advice was received from the connections of DELIGHTFUL CHRISTIAN.

3.2 PRECIOUS MACH

Cameron George

This affidavit too was much the same effect as that filed in relation to DELIGHTFUL CHRISTIAN and spoke of Mr George being present at Cambridge Raceway on 2nd June 2012.

Thomas Carmichael

Mr Carmichael was present on 2nd June 2012 at Cambridge Raceway and oversaw the swabbing of PRECIOUS MACH following Race 1. He secured the samples and made those available to New Zealand Racing Laboratory Services.

Elizabeth Newcombe

Ms Newcombe was a swabbing steward on duty on 2nd June 2012 and deposed to her involvement in obtaining the sample from PRECIOUS MACH.

Leonard Smith

Mr Smith is a veterinarian and took the sample from PRECIOUS MACH on 2nd June 2012 and completed all the relevant paperwork.

Dr Geoffrey Beresford

Dr Beresford as noted above is highly qualified and experienced. The samples from PRECIOUS MACH were delivered to him on 5th June 2012. The samples were forwarded to the Hong Kong Jockey Club Racing Laboratory on 12th June 2012. On 13th July 2012 Dr Beresford received from Mr Bryan Oliver Racecourse Investigator a glass bottle of CACO – IRON - COPPER containing a small volume of liquid. This was tested for arsenic. On those tests Dr Beresford concluded that arsenic was present and that the liquid as a sample of the CACO – IRON –COPPER product the volume of the product remaining in the bottle was found to be 3.4 milligrams.

Barry Kitto

Mr Kitto is the informant and gave evidence of an interview with the trainer of PRECIOUS MACH Ms Nicola Chilcott. That interview took place on 10th July 2012. Mr Bryan Oliver racecourse inspector was also present. A transcript of the interview was made available to the Committee.

Thomas Carmichael

Mr Carmichael is a racecourse investigator. On 2nd June last year he was on duty at Cambridge Raceway and was directed by a stipendiary steward to take the sample from PRECIOUS MACH. He held the samples and then made them available to the New Zealand Racing Laboratory in Auckland.

Bryan Oliver

Mr Oliver is a racecourse investigator appointed by HRNZ. He deposed to the interview with Ms Chilcott on 10th July 2012. At that time he retrieved from her stables a near empty 100m glass bottle labelled CACO – IRON - COPPER. On 12th July 2012 he delivered that item to Dr Beresford.

David Kwan Kon Leung

Mr Leung is employed by the Hong Kong Jockey Club Racing Laboratory. His qualifications were spoken of above. He deposed to the outcome of the swab from PRECIOUS MACH. Arsenic was detected in the urine sample at a mass concentration of total arsenic at 1.46 milligrams per litre of urine. No other prohibited substance was detected. The control sample was negative for arsenic. The reserve sample remains with the Hong Kong Laboratory. As to what is a mass concentration of arsenic Mr Leung deposed in paragraphs 11, 12, 13 and 14 of his affidavit as set out on page 7.

3.3 DREAMY EAGLE

Cameron George

This affidavit mirrors those spoken of above and reports the findings of the Hong Kong Laboratory.

John Muirhead

Mr Muirhead was a stipendiary steward on duty at Alexandra Park on 24th February and directed the swabbing of DREAMY EAGLE post-race.

Darryl Roberts

Mr Roberts was the swabbing steward on duty on 24th February and took part in the swabbing procedure.

David Kwan Kon Leung

Mr Leung is the consultant employed by the Hong Kong Jockey Club Racing Laboratory. He deposed to the testing of the DREAMY EAGLE swab sample No 54105 and that CAPSAICIN and DIHYDROCAPSAICIN were detected in the urine sample and further that no other prohibited substance was detected. The control sample was negative for both CAPSAICIN and DIHYDROCAPSAICIN. The reserve sample was sent to the Melbourne Racing Laboratory on 14th September 2012.

Dr Geoffrey Beresford

Dr Beresford’s qualifications and experience were set out above. He deposed to having received the samples that were to be sent to Hong Kong. Further he deposed to having received a courier bag from Mr Oliver Racecourse Inspector and deposed to the contents of those. Dr Beresford gave it as his opinion that the CAPSAICIN and DIHYDROCAPSAICIN came to be in the swab taken from DREAMY EAGLE.

Matthew Williamson

Mr Williamson is a Stipendiary Steward employed by RIU. He delivered the sample from the Racecourse Inspector Mr Oliver to the New Zealand Racing Laboratory.

Hayden Jamieson

Mr Jamieson is the veterinarian, who on 24th February 2012 took the sample from DREAMY EAGLE.

Statement of Barry Kitto

Mr Kitto’s written signed statement which he affirmed before the Committee set out the investigation following the analysis of DREAMY EAGLE’S urine sample. On 11th July 2012 he visited the training property of Mr Barry Purdon and conducted an interview. A transcript of that interview was made available to the Committee. Mr Kitto related that on the following day, 12th July, Mr Purdon contacted him to advise that he had found a tin of the product “STOP CRIB” and that the contents of this may have been responsible for the positive swab. The item was subsequently delivered by arrangement to the Racecourse Investigator Mr Oliver. Mr Kitto went on to relate how Mr Purdon requested that the reserve sample be analysed. Arrangements were made for the Hong Kong Laboratory to send the reserve B sample to the Melbourne Laboratory. The test taken there detected CAPSAICIN and DIHYDROCAPSAICIN. Mr Kitto produced a copy of the Melbourne Laboratory report.

Bryan Oliver

Mr Oliver is a racecourse investigator appointed by HRNZ.

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