Non Raceday Inquiry RIU v J Keast and H Westrum – Decision dated 23 June 2014
ID: JCA12003
Decision:
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
KYLIE WILLIAMS, Racecourse Investigator for the Racing Integrity Unit (RIU)
Informant
JAMES KEAST and HENRIETTE WESTRUM, Licensed Public Trainers
Respondents
Information: No. A5014
Appearing: Mr C Lange for the Informant
Ms M Thomas for the Respondent
Judicial Committee: Prof G Hall, Chairman - Mr S Ching, Committee Member
DECISION OF JUDICIAL COMMITTEE
[1] The RIU has alleged that the respondents are in breach of r 1004(1), (1A) and (2) in that being the trainers or persons in charge of WESTBURN CREED they took that horse to the Kaikoura Trotting Club’s meeting on 4 November for the purposes of engaging in race 4, the Speights Mobile Pace, and they failed to present the horse free of prohibited substances, namely bicarbonate or other alkali substance as evidenced by a blood TCO2 level of 36.2 mmol/L.
[2] During a directions telephone conference on 5 March, counsel for the respondents, Ms Thomas, confirmed her earlier email to the Committee (27 February) to the effect that the respondents admitted the breach.
[3] The parties agreed that the matter could proceed by way of written submissions as to penalty with the opportunity being given to supplement these with oral submissions should this be necessary. The Committee stated it was willing to proceed on this basis but if the parties wished to make extensive oral submissions, then a formal hearing might be required.
[4] The Committee received written submissions from the parties. It became apparent from the material accompanying these submissions that there was a point at issue with respect to whether a nasal disorder (a respiratory illness) suffered by WESTBURN CREED was a possible explanation for the elevated TCO2 level. The Committee convened a telephone conference on 29 April during the course of which it appeared there was common ground between the parties both as to the factual basis of the charge and penalty. The parties indicated that they believed they could reach an agreed position with respect to these issues and the Committee agreed to Ms Thomas’s request that the parties be given time to discuss this matter further.
[5] The Committee was also concerned that neither party had addressed in any depth in their written submissions the possibility of the imposition of a period of suspension, and accordingly we asked the parties to consider this issue as well.
[6] Ms Thomas notified the Registrar of the Committee on 15 May that the respondents and the informant had been unable to agree on either issue. She also indicated that the respondents were unable to attend a disputed facts hearing due to cost. She asked for further directions from the Committee.
[7] In a memorandum dated 25 May we stated we intended to proceed to impose penalty, having regard to the disclosed TCO2 levels of WESTBURN CREED over time, and on the basis that the cause of the elevated reading was unknown. We requested that the parties each prepare a brief submission addressing the issue of the imposition of a suspension, or a combined penalty of a suspension and a fine, by 30 May.
[8] We received these further submissions on 29 May and 3 June.
Facts
[9] We commence by setting out the relevant rules and summarising the facts.
[10] Rule 1004 states:
(1) A horse shall be presented for a race free of prohibited substances.
(1A) A horse shall be presented for a race with a total carbon dioxide level at or below the level of 35.0 millimoles per litre in plasma.
(2) Where a horse is taken, or is to be taken, to a racecourse for the purpose of engaging in a race otherwise than in accordance with sub-rule (1) the trainer of the horse commits a breach of these Rules.
(7) Every person who commits a breach of sub-rule (2) or (3) shall be liable to:
(a) a fine not exceeding $20,000; and/or
(b) be disqualified or suspended from holding or obtaining a licence for any specific period not exceeding five years.
(8) Any horse connected with a breach of sub-rule (1), (2) or (3) shall be disqualified from any race entered and/or liable to a period of disqualification not exceeding five years.
[11] Rule 1311 states:
(1) Any person who is suspended from holding or obtaining a licence shall, during the period of suspension, be prohibited from doing any act or thing which he would otherwise be authorised to do regardless of whether he is the holder of any other licence, permit or authority under these Rules which authorises or permits the driving of such act or thing.
(2) Notwithstanding sub-rule (1) hereof, a person who has been suspended from holding or obtaining a trainer’s licence shall not during the period of suspension train any horse, assist or be involved in any capacity in the training of any horse, assist or be involved in any capacity in the breaking or gaiting of any horse, or without the written consent of the Board assist or be involved in any capacity with the preparation or presentation of a horse to race at a race meeting, picnic meeting, trial, workout or gymkhana.
[12] WESTBURN CREED is a 7 year-old Bay gelding owned by I R Court and is trained in partnership by the respondents, Mr Keast and Ms Westrum. WESTBURN CREED has raced 45 times for three wins and ten placings and stakes of $24,702.
[13] WESTBURN CREED was initially trained by Mr I R Court and on 25 May 2013 (Mr Keast in his statement of 20 November says it was 20 May but the exact date is not significant) was transferred to the respondents, who hold a Public Trainers’ Licence under the New Zealand Rules of Harness Racing.
[14] WESTBURN CREED was correctly entered to race in Race 4, the SPEIGHTS MOBILE PACE, at the Kaikoura Trotting Club meeting on 4 November 2013. WESTBURN CREED was driven by Mr Keast and finished 6th and did not win a stake.
[15] Pre-race blood samples were taken from WESTBURN CREED at 12:13 pm on 4 November 2013. A pre-race screen test on an Istat portable screening device gave a result of 34 mmol/L. A second pre-race blood sample was taken at 1:18 pm and an Istat screening test gave a result of 35 mmol/L. The pre-race blood samples were forwarded to New Zealand Racing Laboratory Service (NZRLS) for formal analysis.
[16] On analysis by NZRLS, the 12:13 pm sample returned a TCO2 level of 36.0 mmol/L and the sample taken at 1:18 pm a TC02 level of 36.2mmol/L.
[17] On 11 November 2013, Racecourse Investigators Mr Robin Scott and Mrs Kylie Williams went to the respondents’ property in Amberley, and advised them of the elevated TCO2 results returned by WESTBURN CREED.
[18] Mr Keast was given a copy of the Certificate of Analysis, TCO2 Authorisation Form and a copy of the prohibited substance rule of the New Zealand Rules of Harness Racing. Mr Keast advised that the horse was taken to the races by public trainer, Mr Robbie Holmes, with Mr Keast making his own way to the race meeting. Mr Holmes attended to the horse when the first sample was taken, while Mr Keast attended to the horse when the second sample was taken by Club Veterinarian, Mr Corin Murfitt.
[19] In the course of his interview on 25 November 2013 with Mrs Williams, Racecourse Investigator, Mr Keast stated that he and Ms Westrum did not put bi-carbonate of soda in WESTBURN CREED’s feed (annexure “C” to the summary of facts).
[20] Samples of what was believed to be bicarbonate of soda were taken from Mr Keast’s feed room and forwarded to NZRLS for testing which confirmed the substance was bicarbonate of soda. In their signed statement of 25 November 2013 Mr Keast and Ms Westrum confirmed that the Racecourse Investigators found two containers of bicarbonate of soda on the property as well as a drenching tube and a bucket in which they mixed a saline drench. The respondents stated they regularly drenched any horses that had raced or trialled and also drenched horses post fast work if they had had a hard run. In the drench was a mixture of: Humidimix, Selamin Gold, Vitaspeed, DMSO and about 1 tablespoon of Baking Soda.
[21] Mr Keast and Ms Westrum advised the Investigators they had changed their stable practices since their previous breach of this rule on 7 July 2013 (WALLY’S GIRL, decision 21 October 2013). They said they now added DMSO to the drench and that instead of drenching horses two days prior to racing, they now drenched three days prior to racing. They said they also fed Sodium Chloride (Salt) to their horses in order to lower TCO2 levels after advice given to them by Veterinarian, Mr Mike Brown. They stated they did not tube any of their racehorses on raceday and WESTBURN CREED was previously salined on 1 November, three days before racing at Kaikoura.
Respondents’ record
[22] The respondents have previous breaches of the prohibited substance rule. Mr Keast has two previous breaches; Ms Westrum has one.
[23] In August 2004, Mr Keast was found to have breached r 1004 as the person in charge of a horse WHODUNNIT which had administered to it Propantheline Bromide. The Judicial Committee imposed a fine of $2,000. In the course of the penalty decision the Committee noted:
In respect of the Defendant James Keast for the breach of Rule 1004 this Committee believes that disqualification is not appropriate given the evidence of his limited involvement and it is unfortunate for him that he is caught by the strict liability provisions of the Rules. The Committee agrees with submissions by his Counsel, Mr Rapley, that it was purely by chance that he came to be with the horse under instructions from his employer. No evidence was given to show any involvement with feeding on the day nor at any time and although technically the breach has been established, the Committee is entitled to exercise its discretion in regard to the quantum of penalty. The breach is nevertheless one for which a penalty should be imposed, but in this case it should be treated as at the lower end of the scale and accordingly a fine of $2,000 is imposed to reflect this. There will also be an order for costs.
[24] The second breach involved both Mr Keast and Ms Westrum. On 21 October 2013, they admitted a breach of the prohibited substance rule following a horse, WALLY'S GIRL, being found to have TC02 level of 37.0 mmol/L. The Committee imposed a fine of $2,500 and in the course of its decision commented:
In this case, there was no evidence whatsoever before the Committee that the elevated TC02 1evel returned by WALLY'S GIRL was the result of the administration of any alkaline substance to the mare. Neither was there any evidence that the respondents had been negligent in any degree, which may have given rise to a conclusion that WALLY'S GIRL had ingested some substance administered by a person or persons unknown that has brought about the elevated level. There was no evidence that the respondents had been negligent in failing to put in place all reasonable security measures.
The Committee has to decide on an appropriate penalty on the basis that it is impossible to determine how the mare came to have an elevated TC02 reading. The Committee accepts that an assessment of the circumstances in which the prohibited substance came to be present in a horse is an appropriate consideration in assessing culpability for the purpose of arriving at penalty. However, simply put, there was no evidence presented to the Committee in this case to enable us to make such an assessment.
Informant’s submissions
[25] The informant submitted that the appropriate starting point for the Committee was the decision of the Appeals Tribunal in L 27 April 1998, which considered the predecessor to the prohibited substance rule, the drug negligence rule. The Appeals Tribunal in L commented:
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.
[26] The Appeals Tribunal stated further:
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.
[27] In B 4 July 1998, the informant appealed against a fine of $1,750 that had been imposed for a breach of the drug negligence rule following a positive swab for phenylbutazone. The Appeals Tribunal found B’s failure to put in place expected standards of control and security over the horse was a major aggravating feature. The Tribunal observed that a breach as a result of negligence was to be viewed seriously and sent “a very strong warning that, in future, inquiries involving a breach of r 1004(2) could well be met with a period of disqualification or suspension”.
[28] The informant also referred the Committee to two recent decisions. The Appeals Tribunal in J 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 B.”
[29] M 17 July 2012 was a successful appeal against 12 months’ disqualification for a second, third and fourth breach of the prohibited substance rule, in that penalty was reduced to nine months’ disqualification together with $4500 in fines. The Appeals Tribunal commented at [5.7] to [5.8]:
We have given careful consideration to this characterisation of [M]'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 [M]'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 [M]'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 hove 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. ...
[30] The informant invited the Judicial Committee to proceed on the basis:
(a) The elevated TCO2 level in the present case arose from an administration of an alkali substance;
(b) The administration to the horse could have only occurred where the trainer failed to put in place expected standards of control and security over the horse;
(c) The failure to put in place expected standards of control and security over the horse is negligent, and a major aggravating feature;
(d) That the breach is the second breach within a short time period;
(e) The penalty to be imposed needs to be one that provides general deterrence to other trainers that might be like-minded to act.
[31] The informant submitted that as this was a second breach of the prohibited substance rule where the respondents had failed to put in place appropriate standards of control and security over the horse, an appropriate starting point was six months’ disqualification. A credit of between one and two months was submitted to be appropriate for the admission of the breach. In light of the approach adopted in M, it was said to be also open to the Committee to impose a financial penalty.
[32] The informant also invited the Committee to make an order in relation to costs of the informant and the JCA.
[33] In their supplementary written submission the informant repeats their submission that a short period of disqualification is appropriate. They emphasised that the TCO2 levels for WESTBURN CREED were between 32.0 and 34.1 when it was trained by Mr Court and, other than the first test, (some six weeks after the horse was transferred to the respondents’ stable) between 35.2 and 36.2, and when the horse went to Mr Rochford the level reduced to 31.3 to 32.8.
[34] Having regard to the repeated breach of the prohibited substance rule in a short time frame, the RIU submitted the sentencing purposes of denunciation and deterrence required that the respondents should be prevented from any participation in the sport of harness racing, whereas suspension would only preclude the respondents from being involved in training horses.
[35] Were the Committee to impose a suspension, the informant submitted, “the term of suspension should be significantly longer than that that would have been imposed had Mr Keast and Ms Westrum been disqualified.”
Respondents’ submissions
[36] Ms Thomas in her submissions on behalf of the respondents disputed the allegation that the administration could only have occurred due to the trainer having failed to put in place the expected standards of control and security over the horse, that this failure to do so was negligent and accordingly was a major aggravating factor.
[37] Ms Thomas accepted that the respondents had breached the prohibited substance rule a short time previously. However, she submitted that as no intentional administration had been established, a penalty placing emphasis on general deterrence was not appropriate.
[38] With respect to the gravity of the breach, the respondents emphasised the level at 36.2 mmol/L was only 0.2 above the threshold. She referred to HRNZ v J where it was stated that the national average for standardbred horses was 30.9 mmol/L. All of WESTBURN CREED’s results, she observed, were above this figure. She said the only conclusion to be drawn from the data was that WESTBURN CREED consistently had a level in excess of the national average and thus clearly had a high TCO2 level.
[39] As to WESTBURN CREED’s long-term levels, the respondents submitted that when the horse’s medical history was considered, it could be said that the levels dropped after surgery in 2012 and increased again over the period the nasal growth was found to have returned.
[40] The respondents identified a number of factors that pointed to an absence of fault. Ms Thomas said there was no evidence of administration and that the only allegation of such was in the annexure of Dr Grierson (letter of 20 February) to the effect that the level was best explained statistically by the administration of an alkalising agent. She pointed to the fact that the informant at para [7] in his submissions on penalty had acknowledged that “the investigation has been unable to determine the actual cause of the elevated TCO2 level”. There were other explanations for the level, she submitted, other than “milk-shaking” or other similar performance enhancing techniques. This was supported by the opinion of veterinarian, Mr Turner in his email of 28 November 2013 to Mrs Williams. Moreover, she believed Dr Grierson had not disputed that generally a respiratory illness could lead to elevated levels but rather had opined that the figures for WESTBURN CREED did not support this conclusion in this case.
[41] Ms Thomas elaborated upon her argument stating: WESTBURN CREED was suffering from a respiratory problem, a condition which is linked to elevated levels; WESTBURN CREED underwent surgery in mid 2012 at Canterbury Equine Vets; for approximately the next year WESTBURN CREED’s levels decreased; approximately a year later in October 2013 the veterinarian, Mr Brown, confirmed the respiratory problem had returned (as noted in an unsigned and undated statement from Mr Brown headed “Re: WESTBURN CREED J Keast/ H Westrum”, which was sent to the Registrar by the respondents — this form is not satisfactory but in the absence of any objection from Mr Lange, we accept its authenticity); WESTBURN CREED’s levels again increased.
[42] The respondents have provided affidavits dated 20 March 2014 attesting to the fact they are farriers by trade, that this is the primary source of their income, and they are reliant on access to licensed properties to operate their business. They estimated that approximately 90 per cent of their business was racehorse related. A disqualification, Ms Thomas, has submitted, would be disproportionate to the gravity of the breach.
[43] The respondents referred to J to S where the penalties were linked to the TCO2 levels, and which stated that where the level was between 36.2 and 37.2 a fine at the level of $500 was appropriate. (We interpolate at this point that the maximum penalties for a breach of r 1004 were increased in November 2011.)
[44] M was also noted. M had a previous TCO2 breach in 2010 and was appearing for sentence on three charges in respect of different horses where the level was 36.4 (2) and 36.5. He was disqualified for nine months, which the respondents accepted was appropriate in the circumstances. The present respondents’ position, she emphasised, was very different to that in M and a period of disqualification was not warranted. To impose a disqualification would be out of line with previous penalties.
[45] Ms Thomas concluded her penalty submission by stating that while the respondents accepted that the administering of a prohibited substance was a serious issue for horse racing, and that the integrity of harness racing was paramount, disqualification was not appropriate, despite the previous breach in 2013. There were no actions or omissions on the part of the respondents that were to be deterred, and the TCO2 level was very low. The latest breach was significantly less serious than the one for which they were punished in 2013 and disqualification would be a significantly disproportionate penalty.
[46] In her brief response to Mr Lange’s further submission as to penalty, Ms Thomas resisted the imposition of disqualification and disputed the informant’s contention that any period of suspension should be substantially longer than the otherwise appropriate period of disqualification. She stated that a suspension only should be imposed, rather than a fine and a suspension, due to the respondents’ financial position and emphasised that a suspension itself would have “a significant financial impact” upon the respondents.
Decision
[47] As the respondents have admitted the breach we find the breach proved in accordance with r 1111(1)(d).
[48] The details of all TC02 testing for WESTBURN CREED are annexed to this decision.
[49] Mr Keast and Ms Westrum when interviewed on 11 November raised the possibility that an obstruction in the nasal cavity could explain the extended TCO2 level. Dr Grierson has opined that if an obstruction was present it had no effect on raising the TC02 level, and the elevated TCO2 level is best explained by the administration of an alkalising agent.
[50] We note that Mr Keast stated in the 11 November interview, and this was reiterated in respondents’ statement of 25 November, that they do not put bi-carbonate in the horse’s feed and, although they do tube the horses, the last time WESTBURN CREED was tubed was three days prior to the races. They have also stated that they have never knowingly administered to the horse any alkalising agent by tubing or any other method for the purpose of illegally enhancing the horse’s performance.
[51] Dr Grierson, the Chief Veterinarian for HRNZ, has stated in a letter dated 9 December 2013 to Mrs Williams (annexure “D” to the summary of facts) that the administration of a drench containing DMSO with alkalising agents three days before racing would not elevate TCO2 levels on the day of racing. He expressed the opinion that the administration of an alkalising agent (presumably within the three day time frame, although this is not stated) could best be explained “statistically” (see follow up letter 20 February 2014 — annexure “E”) as the likely cause of the elevated TCO2.
[52] As Mr Lange acknowledges in his penalty submission, the RIU investigation has been unable to determine the actual cause of the elevated TCO2 level. The informant has submitted that the results of pre-race blood samples demonstrate WESTBURN CREED does not have a high TCO2 level, rather the results indicate the horse’s TCO2 level became elevated during the period the respondents trained the horse. The TCO2 level again reduced after the horse left their care.
[53] The informant alleges that the probable cause of the elevated TCO2 level is administration but is unable to point to any evidence that supports this conclusion other than the opinion of Dr Grierson that this is the most likely scenario when regard is had to the history of the horse. This opinion is revised in the follow up letter to be the best explanation “statistically” of the level of 36.2.
[54] On the other hand, it is accepted that WESTBURN CREED has always had a TCO2 level higher than the national average of 30.9, as recorded in J. The horse had been treated for a respiratory problem and veterinarian, Mr Turner in his email of 28 November 2013 to Mrs Williams expresses the view that a nasal obstruction is an explanation for the elevated levels due to the obstruction of the nasal passages making it more difficult for the horse to inhale oxygen and exhale carbon dioxide. He states: “I understand that systemic illness, involving the respiratory system may cause metabolic alkalosis.”
[55] We accept also Mrs Thomas’s submission that Dr Grierson does not expressly discount the possibility of a nasal obstruction being the cause of an elevated TCO2 level, rather that in this particular case, the TCO2 the readings, he believes, do not support the conclusion that this is the likely cause.
[56] In the absence of a disputed facts hearing, we approach the imposition of penalty on the basis that the cause of the elevated TCO2 level is not known. The onus under r 1004, however, is on the trainer to present a horse free of any prohibited substance. Hence the respondents’ admission of the breach.
[57] We have received little assistance from the parties as to length of suspension or as to the quantum of any fine. The informant submits the suspension should be longer than any period of disqualification we might have contemplated, whilst Ms Thomas resists this notion and emphasises the respondents’ financial position.
[58] We have regard to the cases. M is clearly more serious than the case before us. There were multiple breaches in a short time frame and the levels were higher. However, Mr Keast and Ms Westrum have breached the prohibited substance rule within a shorter period of time than had M.
[59] In S the Committee found that the informant had “not been able to present any evidence whatsoever of administration” and the Committee was not prepared to make a finding of administration in the absence of any such evidence. The Appeals Tribunal held this conclusion was open to the Committee. In this respect S is similar to the present case and indeed the previous charge faced by the respondents
Appeal Decision: NO LINKED APPEAL DECISION
Decision Date: 03/07/2014
Publish Date: 03/07/2014
JCA Decision Fields (raw)
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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.
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decisiondate: 03/07/2014
hearing_title: Non Raceday Inquiry RIU v J Keast and H Westrum - Decision dated 23 June 2014
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appealdecision: NO LINKED APPEAL DECISION
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Decision:
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
KYLIE WILLIAMS, Racecourse Investigator for the Racing Integrity Unit (RIU)
Informant
JAMES KEAST and HENRIETTE WESTRUM, Licensed Public Trainers
Respondents
Information: No. A5014
Appearing: Mr C Lange for the Informant
Ms M Thomas for the Respondent
Judicial Committee: Prof G Hall, Chairman - Mr S Ching, Committee Member
DECISION OF JUDICIAL COMMITTEE
[1] The RIU has alleged that the respondents are in breach of r 1004(1), (1A) and (2) in that being the trainers or persons in charge of WESTBURN CREED they took that horse to the Kaikoura Trotting Club’s meeting on 4 November for the purposes of engaging in race 4, the Speights Mobile Pace, and they failed to present the horse free of prohibited substances, namely bicarbonate or other alkali substance as evidenced by a blood TCO2 level of 36.2 mmol/L.
[2] During a directions telephone conference on 5 March, counsel for the respondents, Ms Thomas, confirmed her earlier email to the Committee (27 February) to the effect that the respondents admitted the breach.
[3] The parties agreed that the matter could proceed by way of written submissions as to penalty with the opportunity being given to supplement these with oral submissions should this be necessary. The Committee stated it was willing to proceed on this basis but if the parties wished to make extensive oral submissions, then a formal hearing might be required.
[4] The Committee received written submissions from the parties. It became apparent from the material accompanying these submissions that there was a point at issue with respect to whether a nasal disorder (a respiratory illness) suffered by WESTBURN CREED was a possible explanation for the elevated TCO2 level. The Committee convened a telephone conference on 29 April during the course of which it appeared there was common ground between the parties both as to the factual basis of the charge and penalty. The parties indicated that they believed they could reach an agreed position with respect to these issues and the Committee agreed to Ms Thomas’s request that the parties be given time to discuss this matter further.
[5] The Committee was also concerned that neither party had addressed in any depth in their written submissions the possibility of the imposition of a period of suspension, and accordingly we asked the parties to consider this issue as well.
[6] Ms Thomas notified the Registrar of the Committee on 15 May that the respondents and the informant had been unable to agree on either issue. She also indicated that the respondents were unable to attend a disputed facts hearing due to cost. She asked for further directions from the Committee.
[7] In a memorandum dated 25 May we stated we intended to proceed to impose penalty, having regard to the disclosed TCO2 levels of WESTBURN CREED over time, and on the basis that the cause of the elevated reading was unknown. We requested that the parties each prepare a brief submission addressing the issue of the imposition of a suspension, or a combined penalty of a suspension and a fine, by 30 May.
[8] We received these further submissions on 29 May and 3 June.
Facts
[9] We commence by setting out the relevant rules and summarising the facts.
[10] Rule 1004 states:
(1) A horse shall be presented for a race free of prohibited substances.
(1A) A horse shall be presented for a race with a total carbon dioxide level at or below the level of 35.0 millimoles per litre in plasma.
(2) Where a horse is taken, or is to be taken, to a racecourse for the purpose of engaging in a race otherwise than in accordance with sub-rule (1) the trainer of the horse commits a breach of these Rules.
(7) Every person who commits a breach of sub-rule (2) or (3) shall be liable to:
(a) a fine not exceeding $20,000; and/or
(b) be disqualified or suspended from holding or obtaining a licence for any specific period not exceeding five years.
(8) Any horse connected with a breach of sub-rule (1), (2) or (3) shall be disqualified from any race entered and/or liable to a period of disqualification not exceeding five years.
[11] Rule 1311 states:
(1) Any person who is suspended from holding or obtaining a licence shall, during the period of suspension, be prohibited from doing any act or thing which he would otherwise be authorised to do regardless of whether he is the holder of any other licence, permit or authority under these Rules which authorises or permits the driving of such act or thing.
(2) Notwithstanding sub-rule (1) hereof, a person who has been suspended from holding or obtaining a trainer’s licence shall not during the period of suspension train any horse, assist or be involved in any capacity in the training of any horse, assist or be involved in any capacity in the breaking or gaiting of any horse, or without the written consent of the Board assist or be involved in any capacity with the preparation or presentation of a horse to race at a race meeting, picnic meeting, trial, workout or gymkhana.
[12] WESTBURN CREED is a 7 year-old Bay gelding owned by I R Court and is trained in partnership by the respondents, Mr Keast and Ms Westrum. WESTBURN CREED has raced 45 times for three wins and ten placings and stakes of $24,702.
[13] WESTBURN CREED was initially trained by Mr I R Court and on 25 May 2013 (Mr Keast in his statement of 20 November says it was 20 May but the exact date is not significant) was transferred to the respondents, who hold a Public Trainers’ Licence under the New Zealand Rules of Harness Racing.
[14] WESTBURN CREED was correctly entered to race in Race 4, the SPEIGHTS MOBILE PACE, at the Kaikoura Trotting Club meeting on 4 November 2013. WESTBURN CREED was driven by Mr Keast and finished 6th and did not win a stake.
[15] Pre-race blood samples were taken from WESTBURN CREED at 12:13 pm on 4 November 2013. A pre-race screen test on an Istat portable screening device gave a result of 34 mmol/L. A second pre-race blood sample was taken at 1:18 pm and an Istat screening test gave a result of 35 mmol/L. The pre-race blood samples were forwarded to New Zealand Racing Laboratory Service (NZRLS) for formal analysis.
[16] On analysis by NZRLS, the 12:13 pm sample returned a TCO2 level of 36.0 mmol/L and the sample taken at 1:18 pm a TC02 level of 36.2mmol/L.
[17] On 11 November 2013, Racecourse Investigators Mr Robin Scott and Mrs Kylie Williams went to the respondents’ property in Amberley, and advised them of the elevated TCO2 results returned by WESTBURN CREED.
[18] Mr Keast was given a copy of the Certificate of Analysis, TCO2 Authorisation Form and a copy of the prohibited substance rule of the New Zealand Rules of Harness Racing. Mr Keast advised that the horse was taken to the races by public trainer, Mr Robbie Holmes, with Mr Keast making his own way to the race meeting. Mr Holmes attended to the horse when the first sample was taken, while Mr Keast attended to the horse when the second sample was taken by Club Veterinarian, Mr Corin Murfitt.
[19] In the course of his interview on 25 November 2013 with Mrs Williams, Racecourse Investigator, Mr Keast stated that he and Ms Westrum did not put bi-carbonate of soda in WESTBURN CREED’s feed (annexure “C” to the summary of facts).
[20] Samples of what was believed to be bicarbonate of soda were taken from Mr Keast’s feed room and forwarded to NZRLS for testing which confirmed the substance was bicarbonate of soda. In their signed statement of 25 November 2013 Mr Keast and Ms Westrum confirmed that the Racecourse Investigators found two containers of bicarbonate of soda on the property as well as a drenching tube and a bucket in which they mixed a saline drench. The respondents stated they regularly drenched any horses that had raced or trialled and also drenched horses post fast work if they had had a hard run. In the drench was a mixture of: Humidimix, Selamin Gold, Vitaspeed, DMSO and about 1 tablespoon of Baking Soda.
[21] Mr Keast and Ms Westrum advised the Investigators they had changed their stable practices since their previous breach of this rule on 7 July 2013 (WALLY’S GIRL, decision 21 October 2013). They said they now added DMSO to the drench and that instead of drenching horses two days prior to racing, they now drenched three days prior to racing. They said they also fed Sodium Chloride (Salt) to their horses in order to lower TCO2 levels after advice given to them by Veterinarian, Mr Mike Brown. They stated they did not tube any of their racehorses on raceday and WESTBURN CREED was previously salined on 1 November, three days before racing at Kaikoura.
Respondents’ record
[22] The respondents have previous breaches of the prohibited substance rule. Mr Keast has two previous breaches; Ms Westrum has one.
[23] In August 2004, Mr Keast was found to have breached r 1004 as the person in charge of a horse WHODUNNIT which had administered to it Propantheline Bromide. The Judicial Committee imposed a fine of $2,000. In the course of the penalty decision the Committee noted:
In respect of the Defendant James Keast for the breach of Rule 1004 this Committee believes that disqualification is not appropriate given the evidence of his limited involvement and it is unfortunate for him that he is caught by the strict liability provisions of the Rules. The Committee agrees with submissions by his Counsel, Mr Rapley, that it was purely by chance that he came to be with the horse under instructions from his employer. No evidence was given to show any involvement with feeding on the day nor at any time and although technically the breach has been established, the Committee is entitled to exercise its discretion in regard to the quantum of penalty. The breach is nevertheless one for which a penalty should be imposed, but in this case it should be treated as at the lower end of the scale and accordingly a fine of $2,000 is imposed to reflect this. There will also be an order for costs.
[24] The second breach involved both Mr Keast and Ms Westrum. On 21 October 2013, they admitted a breach of the prohibited substance rule following a horse, WALLY'S GIRL, being found to have TC02 level of 37.0 mmol/L. The Committee imposed a fine of $2,500 and in the course of its decision commented:
In this case, there was no evidence whatsoever before the Committee that the elevated TC02 1evel returned by WALLY'S GIRL was the result of the administration of any alkaline substance to the mare. Neither was there any evidence that the respondents had been negligent in any degree, which may have given rise to a conclusion that WALLY'S GIRL had ingested some substance administered by a person or persons unknown that has brought about the elevated level. There was no evidence that the respondents had been negligent in failing to put in place all reasonable security measures.
The Committee has to decide on an appropriate penalty on the basis that it is impossible to determine how the mare came to have an elevated TC02 reading. The Committee accepts that an assessment of the circumstances in which the prohibited substance came to be present in a horse is an appropriate consideration in assessing culpability for the purpose of arriving at penalty. However, simply put, there was no evidence presented to the Committee in this case to enable us to make such an assessment.
Informant’s submissions
[25] The informant submitted that the appropriate starting point for the Committee was the decision of the Appeals Tribunal in L 27 April 1998, which considered the predecessor to the prohibited substance rule, the drug negligence rule. The Appeals Tribunal in L commented:
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.
[26] The Appeals Tribunal stated further:
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.
[27] In B 4 July 1998, the informant appealed against a fine of $1,750 that had been imposed for a breach of the drug negligence rule following a positive swab for phenylbutazone. The Appeals Tribunal found B’s failure to put in place expected standards of control and security over the horse was a major aggravating feature. The Tribunal observed that a breach as a result of negligence was to be viewed seriously and sent “a very strong warning that, in future, inquiries involving a breach of r 1004(2) could well be met with a period of disqualification or suspension”.
[28] The informant also referred the Committee to two recent decisions. The Appeals Tribunal in J 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 B.”
[29] M 17 July 2012 was a successful appeal against 12 months’ disqualification for a second, third and fourth breach of the prohibited substance rule, in that penalty was reduced to nine months’ disqualification together with $4500 in fines. The Appeals Tribunal commented at [5.7] to [5.8]:
We have given careful consideration to this characterisation of [M]'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 [M]'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 [M]'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 hove 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. ...
[30] The informant invited the Judicial Committee to proceed on the basis:
(a) The elevated TCO2 level in the present case arose from an administration of an alkali substance;
(b) The administration to the horse could have only occurred where the trainer failed to put in place expected standards of control and security over the horse;
(c) The failure to put in place expected standards of control and security over the horse is negligent, and a major aggravating feature;
(d) That the breach is the second breach within a short time period;
(e) The penalty to be imposed needs to be one that provides general deterrence to other trainers that might be like-minded to act.
[31] The informant submitted that as this was a second breach of the prohibited substance rule where the respondents had failed to put in place appropriate standards of control and security over the horse, an appropriate starting point was six months’ disqualification. A credit of between one and two months was submitted to be appropriate for the admission of the breach. In light of the approach adopted in M, it was said to be also open to the Committee to impose a financial penalty.
[32] The informant also invited the Committee to make an order in relation to costs of the informant and the JCA.
[33] In their supplementary written submission the informant repeats their submission that a short period of disqualification is appropriate. They emphasised that the TCO2 levels for WESTBURN CREED were between 32.0 and 34.1 when it was trained by Mr Court and, other than the first test, (some six weeks after the horse was transferred to the respondents’ stable) between 35.2 and 36.2, and when the horse went to Mr Rochford the level reduced to 31.3 to 32.8.
[34] Having regard to the repeated breach of the prohibited substance rule in a short time frame, the RIU submitted the sentencing purposes of denunciation and deterrence required that the respondents should be prevented from any participation in the sport of harness racing, whereas suspension would only preclude the respondents from being involved in training horses.
[35] Were the Committee to impose a suspension, the informant submitted, “the term of suspension should be significantly longer than that that would have been imposed had Mr Keast and Ms Westrum been disqualified.”
Respondents’ submissions
[36] Ms Thomas in her submissions on behalf of the respondents disputed the allegation that the administration could only have occurred due to the trainer having failed to put in place the expected standards of control and security over the horse, that this failure to do so was negligent and accordingly was a major aggravating factor.
[37] Ms Thomas accepted that the respondents had breached the prohibited substance rule a short time previously. However, she submitted that as no intentional administration had been established, a penalty placing emphasis on general deterrence was not appropriate.
[38] With respect to the gravity of the breach, the respondents emphasised the level at 36.2 mmol/L was only 0.2 above the threshold. She referred to HRNZ v J where it was stated that the national average for standardbred horses was 30.9 mmol/L. All of WESTBURN CREED’s results, she observed, were above this figure. She said the only conclusion to be drawn from the data was that WESTBURN CREED consistently had a level in excess of the national average and thus clearly had a high TCO2 level.
[39] As to WESTBURN CREED’s long-term levels, the respondents submitted that when the horse’s medical history was considered, it could be said that the levels dropped after surgery in 2012 and increased again over the period the nasal growth was found to have returned.
[40] The respondents identified a number of factors that pointed to an absence of fault. Ms Thomas said there was no evidence of administration and that the only allegation of such was in the annexure of Dr Grierson (letter of 20 February) to the effect that the level was best explained statistically by the administration of an alkalising agent. She pointed to the fact that the informant at para [7] in his submissions on penalty had acknowledged that “the investigation has been unable to determine the actual cause of the elevated TCO2 level”. There were other explanations for the level, she submitted, other than “milk-shaking” or other similar performance enhancing techniques. This was supported by the opinion of veterinarian, Mr Turner in his email of 28 November 2013 to Mrs Williams. Moreover, she believed Dr Grierson had not disputed that generally a respiratory illness could lead to elevated levels but rather had opined that the figures for WESTBURN CREED did not support this conclusion in this case.
[41] Ms Thomas elaborated upon her argument stating: WESTBURN CREED was suffering from a respiratory problem, a condition which is linked to elevated levels; WESTBURN CREED underwent surgery in mid 2012 at Canterbury Equine Vets; for approximately the next year WESTBURN CREED’s levels decreased; approximately a year later in October 2013 the veterinarian, Mr Brown, confirmed the respiratory problem had returned (as noted in an unsigned and undated statement from Mr Brown headed “Re: WESTBURN CREED J Keast/ H Westrum”, which was sent to the Registrar by the respondents — this form is not satisfactory but in the absence of any objection from Mr Lange, we accept its authenticity); WESTBURN CREED’s levels again increased.
[42] The respondents have provided affidavits dated 20 March 2014 attesting to the fact they are farriers by trade, that this is the primary source of their income, and they are reliant on access to licensed properties to operate their business. They estimated that approximately 90 per cent of their business was racehorse related. A disqualification, Ms Thomas, has submitted, would be disproportionate to the gravity of the breach.
[43] The respondents referred to J to S where the penalties were linked to the TCO2 levels, and which stated that where the level was between 36.2 and 37.2 a fine at the level of $500 was appropriate. (We interpolate at this point that the maximum penalties for a breach of r 1004 were increased in November 2011.)
[44] M was also noted. M had a previous TCO2 breach in 2010 and was appearing for sentence on three charges in respect of different horses where the level was 36.4 (2) and 36.5. He was disqualified for nine months, which the respondents accepted was appropriate in the circumstances. The present respondents’ position, she emphasised, was very different to that in M and a period of disqualification was not warranted. To impose a disqualification would be out of line with previous penalties.
[45] Ms Thomas concluded her penalty submission by stating that while the respondents accepted that the administering of a prohibited substance was a serious issue for horse racing, and that the integrity of harness racing was paramount, disqualification was not appropriate, despite the previous breach in 2013. There were no actions or omissions on the part of the respondents that were to be deterred, and the TCO2 level was very low. The latest breach was significantly less serious than the one for which they were punished in 2013 and disqualification would be a significantly disproportionate penalty.
[46] In her brief response to Mr Lange’s further submission as to penalty, Ms Thomas resisted the imposition of disqualification and disputed the informant’s contention that any period of suspension should be substantially longer than the otherwise appropriate period of disqualification. She stated that a suspension only should be imposed, rather than a fine and a suspension, due to the respondents’ financial position and emphasised that a suspension itself would have “a significant financial impact” upon the respondents.
Decision
[47] As the respondents have admitted the breach we find the breach proved in accordance with r 1111(1)(d).
[48] The details of all TC02 testing for WESTBURN CREED are annexed to this decision.
[49] Mr Keast and Ms Westrum when interviewed on 11 November raised the possibility that an obstruction in the nasal cavity could explain the extended TCO2 level. Dr Grierson has opined that if an obstruction was present it had no effect on raising the TC02 level, and the elevated TCO2 level is best explained by the administration of an alkalising agent.
[50] We note that Mr Keast stated in the 11 November interview, and this was reiterated in respondents’ statement of 25 November, that they do not put bi-carbonate in the horse’s feed and, although they do tube the horses, the last time WESTBURN CREED was tubed was three days prior to the races. They have also stated that they have never knowingly administered to the horse any alkalising agent by tubing or any other method for the purpose of illegally enhancing the horse’s performance.
[51] Dr Grierson, the Chief Veterinarian for HRNZ, has stated in a letter dated 9 December 2013 to Mrs Williams (annexure “D” to the summary of facts) that the administration of a drench containing DMSO with alkalising agents three days before racing would not elevate TCO2 levels on the day of racing. He expressed the opinion that the administration of an alkalising agent (presumably within the three day time frame, although this is not stated) could best be explained “statistically” (see follow up letter 20 February 2014 — annexure “E”) as the likely cause of the elevated TCO2.
[52] As Mr Lange acknowledges in his penalty submission, the RIU investigation has been unable to determine the actual cause of the elevated TCO2 level. The informant has submitted that the results of pre-race blood samples demonstrate WESTBURN CREED does not have a high TCO2 level, rather the results indicate the horse’s TCO2 level became elevated during the period the respondents trained the horse. The TCO2 level again reduced after the horse left their care.
[53] The informant alleges that the probable cause of the elevated TCO2 level is administration but is unable to point to any evidence that supports this conclusion other than the opinion of Dr Grierson that this is the most likely scenario when regard is had to the history of the horse. This opinion is revised in the follow up letter to be the best explanation “statistically” of the level of 36.2.
[54] On the other hand, it is accepted that WESTBURN CREED has always had a TCO2 level higher than the national average of 30.9, as recorded in J. The horse had been treated for a respiratory problem and veterinarian, Mr Turner in his email of 28 November 2013 to Mrs Williams expresses the view that a nasal obstruction is an explanation for the elevated levels due to the obstruction of the nasal passages making it more difficult for the horse to inhale oxygen and exhale carbon dioxide. He states: “I understand that systemic illness, involving the respiratory system may cause metabolic alkalosis.”
[55] We accept also Mrs Thomas’s submission that Dr Grierson does not expressly discount the possibility of a nasal obstruction being the cause of an elevated TCO2 level, rather that in this particular case, the TCO2 the readings, he believes, do not support the conclusion that this is the likely cause.
[56] In the absence of a disputed facts hearing, we approach the imposition of penalty on the basis that the cause of the elevated TCO2 level is not known. The onus under r 1004, however, is on the trainer to present a horse free of any prohibited substance. Hence the respondents’ admission of the breach.
[57] We have received little assistance from the parties as to length of suspension or as to the quantum of any fine. The informant submits the suspension should be longer than any period of disqualification we might have contemplated, whilst Ms Thomas resists this notion and emphasises the respondents’ financial position.
[58] We have regard to the cases. M is clearly more serious than the case before us. There were multiple breaches in a short time frame and the levels were higher. However, Mr Keast and Ms Westrum have breached the prohibited substance rule within a shorter period of time than had M.
[59] In S the Committee found that the informant had “not been able to present any evidence whatsoever of administration” and the Committee was not prepared to make a finding of administration in the absence of any such evidence. The Appeals Tribunal held this conclusion was open to the Committee. In this respect S is similar to the present case and indeed the previous charge faced by the respondents
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