Non Raceday Inquiry RIU v AN Grant 19 November 2015 – Decision dated 4 January 2016 – Chair, Mr G Jones

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hearing_title: Non Raceday Inquiry RIU v AN Grant 19 November 2015 - Decision dated 4 January 2016 - Chair, Mr G Jones

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BEFORE A JUDICIAL COMMITTEE
HELD AT AUCKLAND
IN THE MATTER of New Zealand Rules of Harness Racing
BETWEEN Mr B Kitto (Investigator for the Racing Integrity Unit)
Informant
AND
Mr A Grant (Licensed Trainer)
Respondent
JUDICIAL COMMITTEE: Mr G Jones (Chair) and Mr A Dooley (Committee Member)
VENUE: Alexandra Park, Auckland
PRESENT: Mr B Payn (Registrar), Mr C Lange (Counsel for the Informant), Mr N Grimstone, Mr B Kitto, Mr M Branch (Counsel for the Respondent), Mr A Grant, Dr A Grierson (witness) and Mr D Cunneen (witness)
DATE OF HEARING: 19 November 2015
DATE OF ORAL DECISION: 19 November 2015
DATE OF REASONS FOR DECISION and Penalty: 04 January 2016

DECISION OF THE JUDICIAL COMMITTEE

The Charge
[1] Following the running of race 10. the ALEX BAR & EATERY HANDICAP TROT 3YO+ C0,C1, 2200m (stake $12000) at the Alexandra Park Harness on 3 July 2015, a charge was laid against Harness Trainer, Mr A N Grant (the “Respondent”) by Mr B Kitto of the Racing Integrity Unit (the “Informant”). The Information alleged the Respondent:

On or about Friday the 3rd day of July, 2015, being the Trainer of the registered Standard bred Horse “MAJESTIC ONE” you did administer to “MAJESTIC ONE”, which was taken to a racecourse for the purpose of engaging in a race, namely Race 10, The Alex Bar & Eatery Handicap Trot, at the Auckland Trotting Club Inc., race-meeting held at the Alexandra Park Racecourse, a prohibited substance, namely Aminorex, which is a stimulant and is an equine metabolite of Phenyltetrahydroimidazothiazole, in breach of Rule 1001(1)(q) and you are therefore liable to the penalty or penalties which may be imposed in accordance with Rule 1001(2)(a)(b)(c) and “MAJESTIC ONE” is liable to the penalty or penalties which may be imposed in accordance with Rules 1001(3) and 1004(D) of the New Zealand Rules of Harness Racing.

[2] By way of memorandum dated 30 July 2015, Mr Godber, the General Manager: RIU authorised the filing of the charge against Mr Grant pursuant to Rule 1103 (4) (c) of the NZ Rules of Harness Racing.

[3] Information number A4812 which sets out the particulars of the charge was served on the respondent, on behalf of the informant, by Racing Investigator Mr B Oliver on 08 August 2015.

The Hearing and Preliminary Matters

[4] The charge was heard at Alexandra Park on 19 November 2015. Mr C Lange appeared at the hearing on behalf of the informant, the Racing Integrity Unit (RIU) and Mr M Branch appeared on behalf of the respondent, Mr A Grant.

[5] At the commencement of the hearing some procedural matters were dealt with, including an agreed amendment to the information; namely replacing the alleged prohibited substance from Aminorex to Levamisole. The amended charge was put to the respondent who confirmed that he did not admit the charge.

[6] The hearing commenced and the evidence of the first two witnesses was heard. During the evidence of the third witness, Counsel for the respondent requested a brief adjournment.

[7] When the hearing recommenced Counsel for the informant sought leave to amend the information by substituting the original charge for another. This was granted by the Judicial Committee pursuant to the Rules (reference Fifth Schedule paragraph 27):

Rule 27.1 provides that: an information may be amended by the Judicial Committee at any time before the Judicial Committee has given its decision.

Rule 27.2 provides that: an information may be amended by substituting one alleged breach of the Rules with another.

[8] Accordingly the information was amended from the alleged breach of Rule 1001(1)(q) [Administration] to an alleged breach of Rule 1004(3) [Presentation].

On or about Friday the 3rd day of July, 2015, being the Trainer of the registered Standard bred Horse “MAJESTIC ONE” you did present “MAJESTIC ONE” to race in contravention of sub-rule (1A) which requires that a horse is presented for a race free of a prohibited substance, and MAJESTIC ONE was presented to race in Race 10, The Alex Bar & Eatery Handicap Trot, at the Auckland Trotting Club Inc., race-meeting held at the Alexandra Park Racecourse, with a prohibited substance, namely Levamisole, which is a stimulant and is an equine metabolite of Phenyltetrahydroimidazothiazole, in breach of Rule 1004 (1), (A) and (3) and you are therefore liable to the penalty or penalties which may be imposed in accordance with Rule 1001(7)(a)(b)( and “MAJESTIC ONE” is liable to the penalty or penalties which may be imposed in accordance with Rules 1001(3) and 1004(D) of the New Zealand Rules of Harness Racing.

[9] The respondent was asked whether the subject matter of the amended information was admitted and he replied in the affirmative. As is the case with an admitted breach, we find the charge proven.

[10] The relevant rules relating to the amended charge are:

Rule 1004(1A) – “A horse shall be presented for a race free of prohibited substances.”

Rule 1004(3) – “When a horse is presented to race in contravention of sub-rule (1A) or (2) the trainer of the horse commits a breach of these Rules.”

Rule 1004(D) – “Any horse which has been taken to a racecourse for the purpose of engaging in a race which is found to have administered to it or ingested by it any prohibited substance shall be disqualified from that race.”

The relevant Penalty provisions provide that:

Rule 1004(7) – “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.”

Rule 1004(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] In circumstances where a charge is amended, Rule 27(c) of the Fifth Schedule provides that the Judicial Committee may:
(i) accept the evidence already given as applying to the amended information;
(ii) direct any witness who has already given evidence to be recalled to enable or the Judicial Committee or the parties to further question the witness; and
(iii) if it considers that a party would be disadvantaged by reason of any amendment adjourn the hearing of the information.

[12] The original charge that the respondent faced is different to the amended one in that Rule 1001(1)(q) requires there to have been an ‘administration’ of a prohibited substance, whereas the amended charge simply requires that a horse be ‘presented’ free of a prohibited substance. Notwithstanding the relative differences between original and amended charge, the evidence for both is broadly similar but for the requirement to establish the administration ingredient.

[13] Accordingly we accept the evidence that was already given by the two witnesses; namely, Dr A Grierson and Mr D Cunneen on the basis that their testimony was thoroughly tested by way of examination, cross examination and re-examination. The evidence of the third witness, Mr Kitto was incomplete but did include his examination in chief and cross examination.

[14] Dr Grierson advised the committee that he was the Chief Veterinarian for Harness Racing New Zealand and that he had more than 30 years experience in the industry. Dr Grierson stated that Levamisole has the chemical name phenyltetrahydroimidazothiazole and is metabolised into one of three compounds in horses including the amphetamine Aminorex. He said that Levamisole does have a place in veterinary medicine as a therapeutic substance and is used sometimes for parasite control and more commonly to treat viral respiratory infections. He said the product Scanda contains Levamisole and Aminorex; and is a stimulant and equine metabolite of Levamisole.

[15] Dr Grierson advised that Aminorex is a prohibited substance as defined in the Harness New Zealand prohibited substance regulations.

[16] Dr Grierson said that the NZ Equine Veterinary Association's recommended withholding time for Aminorex is 4.2 days.

[17] He stated that to detect both Levamisole (phenyltetrahydroimidazothiazole) and Aminorex concurrently in urine, the administration was most likely to have occurred sometime within the 24 hour period prior swabbing. He said that there have been a number of scientific studies carried out concerning the withholding time and to his knowledge there has never been a positive detection outside the 4.2 day guideline.

[18] Mr Cunneen told the committee that he previously worked for the respondent as a stablehand for several months including the period of June and July 2015. He said that part of his duties included administering doses of Scanda at various times to horses on the property, usually on the instructions of the respondent. He said that respondent was not present when he dosed the horses.

[19] Mr Cunneen stated the dose was generally half a syringe and was administered orally. He said that this usually occurred on the weekend before the respondents horses raced, but he emphasised that he was not 100% sure when the horses were drenched.

[20] Under cross examination by Counsel for the respondent Mr Cunneen revealed that he may have mistakenly dosed MAJESTIC ONE, believing it was another horse named MURPHY BROWN. He stated that after being interviewed by RIU investigators he advised the respondent of his possible mistake. He said that he also advised someone from the RIU, but was unable to recall who that person was.

[21] We understand that it was on the basis of Mr Cunneen’s revelation that the informant sought to amend the information. In any event the committee agreed to the amendment and proceeded to hear the matter as if it was an admitted breach.

Summary of Facts
Mr Lange presented an agreed summary of facts. The relevant points are outlined as follows:

[22] The respondent, Mr Grant is the holder of a Junior Horseman and Public Trainers Licence issued under the NZ Rules of Harness Racing. He is the trainer and part owner of the Registered Standard bred horse MAJESTIC ONE. He has been licensed in the Harness Racing Industry since 1 August 2010.

[23] On 29 June 2015, MAJESTIC ONE was entered in race Race 10, the Alex Bar and Eatery Handicap Trot, to be held at the Auckland Trotting Club at Alexandra Park on 3 July 2015.

[24] On 3 July 2015 MAJESTIC ONE did race in Alex Bar and Eatery Handicap Trot and finishing in 1st place winning a stake of $6300.00. MAGESTIC ONE was 2/2 in the betting (i.e. the second favorite on both win and place totes).

[25] Following the race, at 10.55pm, MAJESTIC ONE was swabbed, by urine sample, in accordance with the relevant rules and swabbing instructions.

[26] The sample was assigned sample number 106307 and on 6 July 2015 was forwarded to the NZ Racing Laboratories for analysis.

[27] Following analysis Aminorex and Phenyltetrahydroimidazothiazole were detected. Phenyltetrahydroimidazothiazole is the chemical name for Levamisole.

[28] Aminorex is a prohibited substance as defined in the prohibited substance regulations.

[29] The NZ Equine Veterinary Association's recommended withholding time for Aminorex is 4.2 days.

[30] On Wednesday 22 July 2015, Racing Investigators Mr Brian Oliver and Mr Barry Kitto visited Mr Grant’s training establishment at Pukekohe.

[31] When advised of the result of the analysis Mr Grant acknowledged that he had previously drenched MAJESTIC ONE with a product called Scanda, by way of syringe over tongue. He believed this would have occurred on both the Saturday and Sunday prior to MAJESTIC ONE racing on 3 July 2015. He also raised the possibility of having given MAJESTIC ONE a further dose on the Monday prior to racing on 3 July 2015. But he believed that in doing so he was outside the 4.2 day with holding period.

[32] Mr Grant produced from his gear room a 2.5 litre container of Scanda and a 60ml syringe he used to administer the drench to MAJESTIC ONE. .

[33] Both these items were forwarded to the NZ Racing Laboratory. On analysis they were found to contain Phenyltetrahydroimidazothiazole (the chemical name for Levamisole).

[34] The product Scanda contains Levamisole and Aminorex; and is a stimulant and equine metabolite of Levamisole. Scanda is primarily an oral drench for Sheep and Cattle. But veterinary advice indicates that Levamisole does have a place in veterinary medicine as a therapeutic substance and is used sometimes for horse parasite control and more commonly to treat viral respiratory infections.

Preliminary Decisions and Rulings
[35] Given that the respondent admitted the charge and therefore having found the charge proven the committee made the following

Rulings:
a) That MAJESTIC ONE is disqualified from placing first in The Alex Bar & Eatery Handicap Trot at Alexandra Park on 3 July 2015; and
b) That placings are amended and stake money is to be paid accordingly;
c) That the disqualification is to take effect from 10 pm on Friday 20 November 2015;
d) That the deferment of the disqualification is pursuant Rule 1301 (1) and (2) which enables the committee to defer commencement of a disqualification.
e) That in accordance with the respondents request the Exhibits’, namely the syringe and container of Scanda be reinstated.

[36] In consideration of deferring the disqualification the committee took into account that the horse GINTARAS who ran second to MAJESTIC ONE will need to have its handicap reassessed. WE were advised GINTARAS was an acceptor for the meeting at Alexandra Park on 20 November 2015 and betting for that meeting was open. The committee also received and took into account a submission from the Harness Racing NZ Handicapper that if MAJESTIC ONE was to be disqualified it occur after racing on 20 November 2015.

[37] The committee invited all parties to lodge written submissions as to penalty and costs. The committee later agreed to a request for an extension for lodging submissions.

[38] By 24 December 2015 the committee received from both Counsel very extensive submissions as to penalty and costs.

Penalty Submissions - Mr Lange on behalf of the Informant
The salient points are summarised as follows:

[39] Mr Grant was initially been charged with a breach of rule 1001(1)(q) of the New Zealand Rules of Harness Racing (“the Rules”).

[40] During the hearing Mr Cunneen acknowledged he may have given the drench to the wrong horse when giving the drench to the horses in a paddock. The RIU then sought the charge be amended to one of a breach of the prohibited substance rule which Mr Grant admitted.

[41] Mr Lange reiterated the facts of this case which he emphasised Mr Grant has admitted. He added that Mr Kitto interviewed Mr Grant and a transcript of that interview was produced as an Exhibit at the hearing.

[42] Mr Lange submitted that Mr Grant, on interview, acknowledged using the product Scanda and was going to use it to worm his horses. He stated he was put onto the product by his vet and was told it had a four day withholding period and he used it twice, five days out from racing. He went onto explain that he purchased a 2.5 litre container and he was intending to treat 12 horses by administering 20mls per day for two days.

[43] In relation to the race on Friday 3 July, he commented that the horses would have been given the product on the Saturday and Sunday 27 and 28 June and he stated that his veterinarian had told him that the dosage should be no more than 25mls because of a Selenium factor and that he was better off doubling up, meaning giving the dose two days in a row and he thought he had used all the product. He went on to state that the administration could not be accidental, that he does it himself, his staff would have not done it and if they did anything like that it would be on his instruction.

[44] During his interview he acknowledges he did not keep any records of administering the Scanda.

[45] Mr Lange submitted that, Dr West, Mr Grant’s vet, recalls being asked by Mr Grant of a product which he did not stock and told him it was available at RD1. He recommended a 50ml dose in one administration and advised him of a withholding time of 6 days.

Approach to Penalty

[46] Mr Lange submitted that 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):

[47] “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.”

[48] The Appeals Tribunal went on to state:
“We do want to make it clear, however, that the days of modest fines for such offenses 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".

[49] 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….

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

“Once a breach is established, general deterrence and denunciation is appropriate in opposing 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.”

[51] In determining the appropriate sanction the Committee may be guided by the guidelines which indicate a fine of $8000. However it is submitted the Committee should commence from assessing the level of culpability in the case before it. Breaches of the prohibited substance rule cover a wide range of conduct from inadvertent administration to gross negligence.

[52] In addition Mr Lange referred to clause 5 of the fifth schedule which sets out in detail the purpose of proceedings, including:

(a) to ensure that racing is conducted in accordance with the code rules;
(b) to uphold and maintain the high standards expected of those participating in the sport of racing and the racing industry;
(c) to uphold and maintain the integrity of the sport of racing and the racing industry;
(d) to protect the participants in the sport of racing, the racing industry, and the public

[53] With respect the approach of only imposing a monetary sanction for a first breach of the prohibited substance rule has failed to ensue racing is conducted within the rules, uphold and maintain the high standards expected, the integrity of the sport and protect the participants, the racing industry and the public.

[54] Breaches of the rules which undermine the integrity of the sport have the potential to impact on all participants in the racing industry. In Harper v The Racing Penalties Appeal Tribunal of WA (1995) 12 WAR 337 Owen and Anderson JJ in delivering their judgment in the Supreme Court of Australia commented:-

“If it is correct to think that the financial wellbeing of the industry depends significantly on the maintenance of betting turnover, the need to maintain integrity in horse racing, and to do so manifestly, is easily seen to be imperative and of paramount importance. It may well be anticipated that unless racing is perceived to be fair and honest, people may be discouraged from betting.” And later:-
“It seems to me that a very significant policy consideration for the turf club when framing its Rules is a requirement that races should be won by honest means so as to maintain public support for the industry which it controls. Indeed the level of public support affects the livelihood of licensed persons.”

Level of culpability

[55] The level of culpability it is submitted should be assessed as high.

[56] Mr Grant when purchasing the drench was told by his vet it had a six day withholding period. Due to the long withholding period there was a need for extra care in its use.

[57] Mr Grant asserts in his interview he gave a 20 ml dose over two days Mr Cunneen was giving larger doses on one day which he appears to be unaware of this.

[58] When examine by the laboratory the 2.5 litre container of drench had 1.5 litres left. Mr Grant on interview stated that 14 horses had been drench. Based on 2 x 20ml administrations this accounts for 560 ml. If the administration was in 50 ml doses this would account for 700ml. that leaves 300-400 ml unaccounted for. This is sufficient for further 6-10 horses.

[59] Mr Grant kept no records or diary of when the horses were administered;

[60] Mr Grant appeared to be unaware of issue his staff may have been having in identifying horses.

[61] The above factors indicate a high level of culpability in the context of the prohibited substance rule. As the trainer Mr Grant had the responsibility to ensure all horses are presented to race free of all prohibited substances. The above facts indicate a cavalier attitude by an individual with such responsibilities.

[62] The RIU submits that where the administration arises for a high level of culpability, the appropriate start point is a short period of disqualification in the vicinity of 3-6 months or alternatively at least a period of suspension.

Penalty Submissions - Mr Branch on behalf of the Respondent:
The salient points are summarised as follows:

[63] Mr Branch submitted that it is is appropriate to first start with the facts relied upon by the Informant and then look at the inferences that the Informant seeks to draw from the admissible and inadmissible facts relied upon.

[64] These facts can be broken down into the following categories:

(a) Admitted facts;
(b) Statement of Mr Grant;
(c) Evidence of Dr Grierson;
(d) Evidence of Dr West.
[65] Each is expanded on below.

Admitted facts

[66] The admitted facts were handed up to the Judicial Committee on the day of hearing.

[67] Those admitted facts are not disputed.

Mr Grant

[68] It is submitted that Mr Grant did not give evidence and nor was he cross-examined. Accordingly, the evidence is incomplete and therefore no adverse inferences can be drawn.

[69] Mr Grant has said what he said, but it is another matter entirely if the Informant attempts to put its own “spin” on what he has said (in his statement to the RIU).

[70] In cross-examination of Mr Kitto, it was put to him that Mr Cunneen had cooperated with the investigation and that Mr Kitto had thanked him for being honest and up-front. In reply to the questioning, Mr Kitto stated that both Mr Cunneen and Mr Grant had acted in that way.

Dr Grierson

[71] Dr Grierson’s evidence as included in the informant’s submissions is accepted and it should also be recorded that he stated that the product had a legitimate therapeutic purpose.

Dr West

[72] The statements attributed to Dr West are not accepted by the respondent as Dr West did not give evidence and was not available for cross-examination.

Interpretation of the evidence by the Informant

[73] The following responses are made to the Informant’s position set out in the submissions:

(a) there is no evidence that the product was given to the horse just that it got into its system.
(b) it is not accepted that Mr Grant said that he purchased the product intending to treat 12 horses.
(c) there is no evidential importance in Mr Grant’s view that it could not have been accidental. That was his view because he believed his instructions in relation to administration had been acted on and he did not know that Mr Cunneen thought the Scandia had no withholding period.

[74] Mr Cunneen did acknowledge that he had heard of Levamisole. Further, the container from which Mr Cunneen was filling the product from made it clear than Levamisole was contained within the product.

[75] The claim that Mr Grant was told by his vet that it had a six day withholding period is disputed and not referable to any admissible evidence. In any event, the long withholding period (which Mr Grant thought was four days) is irrelevant. Whether the withholding period is one day, four days or six days, the level of care is the same. That is, to ensure that the product does not enter the horse’s system within the withholding time. But in any event, the evidence from Dr Grierson is that the positive was caused by an administration within the 24 hours immediately prior to the horse racing. Accordingly, the issue of whether Mr Grant was told four days or six days is irrelevant.

[76] Whether the dose was 20mls or 30mls is irrelevant. That has not caused the issue. There is no suggestion that a 20ml dose 24 hours before the race would not have produced a positive and yet 30mls would have. That would make nonsense of the withholding period, which is a total ban on administration.

[77] Counsel for the RIU has tried to do some calculations based on some assumptions as to the number of horses and frequency. However, there does not appear to be any evidential basis for the calculation. For example, Mr Grant’s transcript makes no mention of 14 horses being drenched, nor does it say that the horses were only drenched once from the time the product was purchased.

[78] With reference Mr Cunneen’s interview transcript; Mr Cunneen said he had been told by Mr Grant to give 25mls but had given 30mls. This is consistent with Mr Cunneen not being careful because he did not know there was a withholding time.

[79] It is correct that Mr Grant was unaware that Mr Cunneen, as a result of not being conscious of the need to take care, may have given a larger dose. However, it appears that the dose was a maximum of 30mls. Again, the amount given has no relevance to the positive being recorded. The issue is that Levamisole found its way into the horse’s system within the withholding period.

[80] It is accepted that Mr Grant kept no records or diary of when the horses were administered and that this is not best practice. However, that lack of care did not cause the problem. The diary would only have helped if there had been an administration made within the withholding period. That is, the diary would show that the administration was deliberate, although inadvertent. In this case we have an accidental or unexplained administration, and in those circumstances a diary would not have assisted. It is submitted that in addressing the level of care, it is a fundamental requirement that in order to be relevant the lack of care must have caused the outcome. If there is not that link then the evidence is irrelevant. In law there must be a causative effect. If the act did not cause the result then it is not actionable.

[81] The conclusion Counsel for the RIU seeks to draw is unsupported by the evidence. A trainer i

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