Non Raceday Inquiry RIU v CJ Fisher, DT McRAE and LS Faber – Decision of Non-Raceday Judicial Committee as to Penalties dated 2 September 2014
ID: JCA12828
Decision:
BEFORE A JUDICIAL COMMITTEE OF THE
JUDICIAL CONTROL AUTHORITY
UNDER THE RACING ACT 2003
IN THE MATTER of the New Zealand Thoroughbred
Rules of Racing
BETWEEN THE RACING INTEGRITY UNIT (RIU)
INFORMANT
AND CALVIN JOHN FISHER, DONALD THOMAS MCRAE and LENNARD SYDNEY FABER
DEFENDANTS
Judicial Committee: Murray McKechnie, Chairman & Professor Geoff Hall
Counsel: Mr Mike Colson and Mr Hugh McCaffrey, counsel for RIU
Ms Mary-Jane Thomas, counsel for Messrs Fisher, McRae & Faber
DECISION OF NON-RACEDAY JUDICIAL COMMITTEE AS TO PENALTIES
DATED THIS 2nd DAY OF SEPTEMBER 2014
1. THE PRESENT POSITION
1.1 A hearing took place at Riccarton Racecourse on 15 April this year. Thereafter both counsel filed extensive submissions. By a decision dated 14 July 2014 the Committee recorded that at the commencement of the hearing Mr McRae had pleaded guilty to a charge under Rule 801(1)(s)(i) of the Rules of Racing. A charge against Mr McRae under Rule 801(n) was withdrawn. Mr Fisher faced a charge under Rule 801(1)(n) that he did attempt to cause to be administered to a horse a prohibited substance namely erythropoietin (EPO) as set out in paragraph 6 of the Fourth Appendix to the Rules of Racing. The Committee found that charge was not made out and the charge was dismissed.
1.2 Both Messrs Fisher and Faber faced a charge under Rule 801(1)(s)(i) in that they did, permitted or suffered an act or acts deemed to be detrimental to the interests of racing. That allegation was that they were in possession of a vial of EPO which was found in Mr Faber’s Ashburton stables on 20 September 2013. The vial had come to Mr Faber from Mr Fisher. Both charges were found to be proved.
1.3 It is not necessary to make extended reference to the Committee’s factual findings. These are detailed in the decision of the 14 July 2014.
1.4 The penalty provisions are set out in Rule 801(2). That is as follows
(2) A person who commits a Serious Racing Offence shall be liable to:
(a) be disqualified for any specific period or for life; and/or
(b) be suspended from holding or obtaining a Licence for a period not exceeding 12 months. If a Licence is renewed during a term of suspension, then the suspension shall continue to apply to the renewed Licence; and/or
(c) a fine not exceeding $50,000.
2. SUBMISSIONS OF COUNSEL
2.1 Comprehensive written submissions have now been received from counsel in relation to the penalties which might be imposed upon Messrs Fisher, McRae and Faber. These submissions advocate contrasting levels of penalty.
2.2 For the RIU it is submitted:
(i) Mr Fisher – disqualification for thirty (30) months, costs of $4,000 and a contribution towards disbursements of $1,602.
(ii) Mr McRae – disqualification for thirty (30) months and costs of $500.
(iii) Mr Faber – disqualification for eighteen (18) months with costs of $4,000 and a contribution towards disbursements of $1,602.
2.3 For Mr Fisher it is said:
(i) There was no attempt at administration of the EPO;
(ii) That there have never been any previous issues in relation to compliance with the Rules of Racing;
(iii) That Mr Fisher has experienced significant public humiliation and that his financial position has been impacted to the point that he has had to close his Ashburton racing stable;
(iv) Mr Fisher has been involved in racing for over thirty (30) years and that any period of disqualification would affect his ability to continue his involvement with the industry.
2.4 For Mr McRae it is said:
(i) That he intimated a guilty plea as soon as full disclosure was available to his counsel;
(ii) Mr McRae is in poor health and receiving palliative care in a rest home in Invercargill;
(iii) His financial position is not strong;
(iv) That Mr McRae had the vial in his possession for a legitimate purpose which was to treat his own ill health;
(v) Mr McRae gave the vial to Mr Fisher in the belief that it might be used to treat a horse which was unwell.
2.5 For Mr Faber it is said:
(i) Mr Faber was never going to use the substance in the vial without having spoken to a veterinarian;
(ii) That Mr Faber’s case does not bear comparison with those where there has been proved administration of a prohibited substance;
(iii) That Mr Faber has had no previous problems in complying with the Rules of Racing;
(iv) Mr Faber is struggling financially; that he has moved from Ashburton, found work outside the racing industry and has not renewed his Trainers Licence.
2.6 On the issue of costs and the RIU request to have the Defendants meet some of the disbursements incurred counsel for the Defendants submits that the charge of attempting to administer extended the hearing. Further it is said that this charge never had any realistic prospect of being proved against Mr Fisher.
2.7 On the subject of costs, it is pointed out by counsel for the Defendants that on a previous occasion where significant disqualification was imposed the Non-Raceday Judicial Committee on that occasion tempered the costs award against a licensed jockey. The reference is NZTR v TH 30 March 2010.
2.8 The Committee has been referred to a large number of previous decisions of Non-Raceday Judicial Committees and Appeal Tribunals. This is the first occasion that any persons have been prosecuted in New Zealand under the Rules of Thoroughbred Racing or Harness Racing in relation to the possession of EPO. In Australia in November 2010 a racing appeal was heard in Victoria in relation to horses that had tested positive for DPO which is a synthetic EPO. Clearly there had been administration of the prohibited drug by some means. The licence holder was not charged with having administered the DPO. The citation is RVL Stewards v Laming 11 November 2011. Guilty pleas had been entered to three (3) charges and a penalty of three (3) years disqualification was imposed on each charge, the terms to be concurrent. Those periods of disqualification were upheld on appeal.
2.9 The Committee has been referred to a number of New Zealand decisions. All of these have been considered. There are a number of relevant decisions, not referred to in the submissions of counsel, which are known to the Committee. Those referred to by counsel and known to the Committee which are of most assistance are the following:
(i) McKenzie v MW Appeals Tribunal 21 December 2000. This decision had to do with the falsification of registration papers for a racehorse;
(ii) HRNZ v P 22 August 2005. This was a decision of a Non-Raceday Judicial Committee in relation to harness racing where a prohibited substance had been administered to a horse;
(iii) NZTR v B 7 March 2008. A Non-Raceday Judicial Committee heard a charge against a jockey who had attempted to influence the outcome of a race. There was a very prompt admission of responsibility;
(iv) NZTR v D 2008. A Non-Raceday Judicial Committee heard a charge of misconduct in relation to the operation of the totalisator;
(v) NZTR v B & H 31 October 2008. This decision of a Non-Raceday Judicial Committee had to do with the serious misconduct of two jockeys who had been involved in drug testing;
(vi) McKenzie v C 11 March 2009. A Non-Raceday Judicial Committee considered a charge where a licenced jockey had tested positive for a Class A drug;
(vii) NZTR v TH. Reference was made to this decision earlier on the question of costs. A Non-Raceday Judicial Committee was considering the conduct of a jockey who had refused to comply with a request to provide a urine sample;
(viii) JW v NZTR 6 August 2010. An Appeals Tribunal was considering a penalty imposed upon the trainer of a horse which had tested positive for the prohibited substance Caffeine.
3. DISCUSSION
3.1 EPO is a pernicious substance. It is appropriate to quote from Dr Andrew Grierson, the Chief Veterinarian for NZTR. He advised at the hearing that took place on 15 April this year as follows:
Internationally the Prohibited Substance Erythropoietin or EPO has the highest possible classification of a Class 1 drug. Controlling bodies worldwide view any trainer found in possession of EPO have committed a grave offence.
Refer paragraph 2.6 of the decision of 14 July 2014.
3.2 At the time that the discussions took place between Messrs McRae, Fisher and Faber the use of EPO in international sport was notorious. It was the very notoriety of the substance which was the subject matter of the discussion between Messrs McRae and Fisher when the former handed the vial to the latter. Later discussions between Messrs Fisher and Faber had reference to a number of the characteristics of EPO, among them that it did not test positive and was being used by leading trainers with the clear implication that this was done in order to enhance racehorse performance.
3.3 The Committee wishes to make it plain that racehorse owners and trainers must not be involved with prohibited substances. In the circumstances of this case the finding of the vial led to the scratching of horses from the Faber stable and significant adverse publicity.
3.4 Messrs Fisher and Faber cannot excuse themselves by the reference to the questions asked of the veterinarian. The state of knowledge which each possessed and which is the subject of detailed analysis in the decision of 14 July this year was such that both should have had no involvement with this vial of EPO.
3.5 It is accepted that there was no attempt to administer. It is pointless to speculate on what circumstances might have been in existence before an attempt at administration may have been made.
3.6 In approaching the well- known sentencing principles that have been established over many years this Committee considers that the aspect of deterrence is of particular significance. First because of the pernicious nature of EPO and secondly because this is the first occasion upon which that drug has been known to have been associated with horse racing in New Zealand. It must be made plain to all who are involved in the industry that EPO has no place whatever its claimed medicinal qualities might be.
3.7 The circumstances of each of the three (3) Defendants are different. So too, in our view, is their level of culpability. Mr McRae gave the vial to Mr Fisher in the belief that it might be used to treat a horse which was unwell. Mr McRae’s health is seriously compromised. His financial position is not strong. He is not actively involved in horse racing. He spoke frankly to the investigating officer from the RIU. He pleaded guilty at the first reasonable opportunity.
3.8 Mr Fisher has been involved in racing at various levels for many years. He sought to persuade the Committee that he had not spoken about Lance Armstrong and the Tour de France. That was not accepted by the Committee. He plainly spoke to Mr Faber on a number of occasions. He made no effort on his own part to have the vial examined. In the Committee’s view Mr Fisher was the person primarily responsible for the EPO reaching the trainer’s stable with the consequences that followed thereafter.
3.9 Mr Faber ought not to have taken the vial from Mr Fisher. After there had been further conversations between Messrs Fisher and Faber it is plain to the Committee that Mr Faber must have known that what was in the vial was highly suspect even if he did not know precisely that it was the substance EPO. His suspicion about the substance was demonstrated by his misleading the veterinarian as to how the vial came into his possession.
3.10 The Committee recognises that periods of disqualification will have significant impact. Particularly in the case of Mr Fisher who has long been associated with horse ownership. The submissions for Mr Faber advise that he has surrendered his Trainers Licence and in those circumstances disqualification might not impact upon him to the same extent as would be the case if he were actively involved in horse training.
3.11 The Committee has concluded that disqualification is appropriate in each case but at different levels. The periods proposed by the RIU are not appropriate. In as much as the Australian decision in Laming is a guide the position there was much more serious in that three (3) horses had tested positive for the prohibited substance. As to costs there is some force in the submission by counsel for Mr Fisher that the hearing and the submissions which followed were extended by reason of the charge of attempting to administer the prohibited substance which charge the Committee dismissed. This consideration is reflected in the costs awards which the Committee has arrived at.
3.12 It is also appropriate that Messrs McRae, Fisher and Faber make some meaningful contribution towards the considerable costs incurred by the JCA. The figures set in that regard have not been fixed upon an indemnity basis. The aggregated figures arrived at represent approximately half the costs incurred by the JCA. This in setting up and conducting the defended hearing and having regard to the fees of the committee members in considering the very detailed material placed before it by both the RIU and the Defendants and the need to issue detailed decisions.
4. PENALTY DECISION
4.1 In respect of Mr McRae he will be disqualified for a period of twelve (12) months. He is ordered to pay the sum of $400 towards the costs and disbursements of the RIU and $400 towards to costs of the JCA.
4.2 Mr Fisher is disqualified for twenty (20) months. He is ordered to pay the sum of $4,000 towards the costs and disbursements of the RIU and the sum of $5,000 towards the costs of the JCA.
4.3 Mr Faber is disqualified for a period of twelve (12) months. He is ordered to pay the sum of $4,000 towards the costs and disbursements of the RIU and $5,000 towards the costs of the JCA.
4.4 All periods of disqualification are to take effect immediately.
DATED this 2nd day of September 2014
Murray McKechnie
Chairman
Signed pursuant to Rule 920(5)
Appeal Decision: NO LINKED APPEAL DECISION
Decision Date: 28/08/2014
Publish Date: 28/08/2014
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: 28/08/2014
hearing_title: Non Raceday Inquiry RIU v CJ Fisher, DT McRAE and LS Faber - Decision of Non-Raceday Judicial Committee as to Penalties dated 2 September 2014
charge:
facts:
appealdecision: NO LINKED APPEAL DECISION
isappeal:
submissionsfordecision:
reasonsfordecision:
Decision:
BEFORE A JUDICIAL COMMITTEE OF THE
JUDICIAL CONTROL AUTHORITY
UNDER THE RACING ACT 2003
IN THE MATTER of the New Zealand Thoroughbred
Rules of Racing
BETWEEN THE RACING INTEGRITY UNIT (RIU)
INFORMANT
AND CALVIN JOHN FISHER, DONALD THOMAS MCRAE and LENNARD SYDNEY FABER
DEFENDANTS
Judicial Committee: Murray McKechnie, Chairman & Professor Geoff Hall
Counsel: Mr Mike Colson and Mr Hugh McCaffrey, counsel for RIU
Ms Mary-Jane Thomas, counsel for Messrs Fisher, McRae & Faber
DECISION OF NON-RACEDAY JUDICIAL COMMITTEE AS TO PENALTIES
DATED THIS 2nd DAY OF SEPTEMBER 2014
1. THE PRESENT POSITION
1.1 A hearing took place at Riccarton Racecourse on 15 April this year. Thereafter both counsel filed extensive submissions. By a decision dated 14 July 2014 the Committee recorded that at the commencement of the hearing Mr McRae had pleaded guilty to a charge under Rule 801(1)(s)(i) of the Rules of Racing. A charge against Mr McRae under Rule 801(n) was withdrawn. Mr Fisher faced a charge under Rule 801(1)(n) that he did attempt to cause to be administered to a horse a prohibited substance namely erythropoietin (EPO) as set out in paragraph 6 of the Fourth Appendix to the Rules of Racing. The Committee found that charge was not made out and the charge was dismissed.
1.2 Both Messrs Fisher and Faber faced a charge under Rule 801(1)(s)(i) in that they did, permitted or suffered an act or acts deemed to be detrimental to the interests of racing. That allegation was that they were in possession of a vial of EPO which was found in Mr Faber’s Ashburton stables on 20 September 2013. The vial had come to Mr Faber from Mr Fisher. Both charges were found to be proved.
1.3 It is not necessary to make extended reference to the Committee’s factual findings. These are detailed in the decision of the 14 July 2014.
1.4 The penalty provisions are set out in Rule 801(2). That is as follows
(2) A person who commits a Serious Racing Offence shall be liable to:
(a) be disqualified for any specific period or for life; and/or
(b) be suspended from holding or obtaining a Licence for a period not exceeding 12 months. If a Licence is renewed during a term of suspension, then the suspension shall continue to apply to the renewed Licence; and/or
(c) a fine not exceeding $50,000.
2. SUBMISSIONS OF COUNSEL
2.1 Comprehensive written submissions have now been received from counsel in relation to the penalties which might be imposed upon Messrs Fisher, McRae and Faber. These submissions advocate contrasting levels of penalty.
2.2 For the RIU it is submitted:
(i) Mr Fisher – disqualification for thirty (30) months, costs of $4,000 and a contribution towards disbursements of $1,602.
(ii) Mr McRae – disqualification for thirty (30) months and costs of $500.
(iii) Mr Faber – disqualification for eighteen (18) months with costs of $4,000 and a contribution towards disbursements of $1,602.
2.3 For Mr Fisher it is said:
(i) There was no attempt at administration of the EPO;
(ii) That there have never been any previous issues in relation to compliance with the Rules of Racing;
(iii) That Mr Fisher has experienced significant public humiliation and that his financial position has been impacted to the point that he has had to close his Ashburton racing stable;
(iv) Mr Fisher has been involved in racing for over thirty (30) years and that any period of disqualification would affect his ability to continue his involvement with the industry.
2.4 For Mr McRae it is said:
(i) That he intimated a guilty plea as soon as full disclosure was available to his counsel;
(ii) Mr McRae is in poor health and receiving palliative care in a rest home in Invercargill;
(iii) His financial position is not strong;
(iv) That Mr McRae had the vial in his possession for a legitimate purpose which was to treat his own ill health;
(v) Mr McRae gave the vial to Mr Fisher in the belief that it might be used to treat a horse which was unwell.
2.5 For Mr Faber it is said:
(i) Mr Faber was never going to use the substance in the vial without having spoken to a veterinarian;
(ii) That Mr Faber’s case does not bear comparison with those where there has been proved administration of a prohibited substance;
(iii) That Mr Faber has had no previous problems in complying with the Rules of Racing;
(iv) Mr Faber is struggling financially; that he has moved from Ashburton, found work outside the racing industry and has not renewed his Trainers Licence.
2.6 On the issue of costs and the RIU request to have the Defendants meet some of the disbursements incurred counsel for the Defendants submits that the charge of attempting to administer extended the hearing. Further it is said that this charge never had any realistic prospect of being proved against Mr Fisher.
2.7 On the subject of costs, it is pointed out by counsel for the Defendants that on a previous occasion where significant disqualification was imposed the Non-Raceday Judicial Committee on that occasion tempered the costs award against a licensed jockey. The reference is NZTR v TH 30 March 2010.
2.8 The Committee has been referred to a large number of previous decisions of Non-Raceday Judicial Committees and Appeal Tribunals. This is the first occasion that any persons have been prosecuted in New Zealand under the Rules of Thoroughbred Racing or Harness Racing in relation to the possession of EPO. In Australia in November 2010 a racing appeal was heard in Victoria in relation to horses that had tested positive for DPO which is a synthetic EPO. Clearly there had been administration of the prohibited drug by some means. The licence holder was not charged with having administered the DPO. The citation is RVL Stewards v Laming 11 November 2011. Guilty pleas had been entered to three (3) charges and a penalty of three (3) years disqualification was imposed on each charge, the terms to be concurrent. Those periods of disqualification were upheld on appeal.
2.9 The Committee has been referred to a number of New Zealand decisions. All of these have been considered. There are a number of relevant decisions, not referred to in the submissions of counsel, which are known to the Committee. Those referred to by counsel and known to the Committee which are of most assistance are the following:
(i) McKenzie v MW Appeals Tribunal 21 December 2000. This decision had to do with the falsification of registration papers for a racehorse;
(ii) HRNZ v P 22 August 2005. This was a decision of a Non-Raceday Judicial Committee in relation to harness racing where a prohibited substance had been administered to a horse;
(iii) NZTR v B 7 March 2008. A Non-Raceday Judicial Committee heard a charge against a jockey who had attempted to influence the outcome of a race. There was a very prompt admission of responsibility;
(iv) NZTR v D 2008. A Non-Raceday Judicial Committee heard a charge of misconduct in relation to the operation of the totalisator;
(v) NZTR v B & H 31 October 2008. This decision of a Non-Raceday Judicial Committee had to do with the serious misconduct of two jockeys who had been involved in drug testing;
(vi) McKenzie v C 11 March 2009. A Non-Raceday Judicial Committee considered a charge where a licenced jockey had tested positive for a Class A drug;
(vii) NZTR v TH. Reference was made to this decision earlier on the question of costs. A Non-Raceday Judicial Committee was considering the conduct of a jockey who had refused to comply with a request to provide a urine sample;
(viii) JW v NZTR 6 August 2010. An Appeals Tribunal was considering a penalty imposed upon the trainer of a horse which had tested positive for the prohibited substance Caffeine.
3. DISCUSSION
3.1 EPO is a pernicious substance. It is appropriate to quote from Dr Andrew Grierson, the Chief Veterinarian for NZTR. He advised at the hearing that took place on 15 April this year as follows:
Internationally the Prohibited Substance Erythropoietin or EPO has the highest possible classification of a Class 1 drug. Controlling bodies worldwide view any trainer found in possession of EPO have committed a grave offence.
Refer paragraph 2.6 of the decision of 14 July 2014.
3.2 At the time that the discussions took place between Messrs McRae, Fisher and Faber the use of EPO in international sport was notorious. It was the very notoriety of the substance which was the subject matter of the discussion between Messrs McRae and Fisher when the former handed the vial to the latter. Later discussions between Messrs Fisher and Faber had reference to a number of the characteristics of EPO, among them that it did not test positive and was being used by leading trainers with the clear implication that this was done in order to enhance racehorse performance.
3.3 The Committee wishes to make it plain that racehorse owners and trainers must not be involved with prohibited substances. In the circumstances of this case the finding of the vial led to the scratching of horses from the Faber stable and significant adverse publicity.
3.4 Messrs Fisher and Faber cannot excuse themselves by the reference to the questions asked of the veterinarian. The state of knowledge which each possessed and which is the subject of detailed analysis in the decision of 14 July this year was such that both should have had no involvement with this vial of EPO.
3.5 It is accepted that there was no attempt to administer. It is pointless to speculate on what circumstances might have been in existence before an attempt at administration may have been made.
3.6 In approaching the well- known sentencing principles that have been established over many years this Committee considers that the aspect of deterrence is of particular significance. First because of the pernicious nature of EPO and secondly because this is the first occasion upon which that drug has been known to have been associated with horse racing in New Zealand. It must be made plain to all who are involved in the industry that EPO has no place whatever its claimed medicinal qualities might be.
3.7 The circumstances of each of the three (3) Defendants are different. So too, in our view, is their level of culpability. Mr McRae gave the vial to Mr Fisher in the belief that it might be used to treat a horse which was unwell. Mr McRae’s health is seriously compromised. His financial position is not strong. He is not actively involved in horse racing. He spoke frankly to the investigating officer from the RIU. He pleaded guilty at the first reasonable opportunity.
3.8 Mr Fisher has been involved in racing at various levels for many years. He sought to persuade the Committee that he had not spoken about Lance Armstrong and the Tour de France. That was not accepted by the Committee. He plainly spoke to Mr Faber on a number of occasions. He made no effort on his own part to have the vial examined. In the Committee’s view Mr Fisher was the person primarily responsible for the EPO reaching the trainer’s stable with the consequences that followed thereafter.
3.9 Mr Faber ought not to have taken the vial from Mr Fisher. After there had been further conversations between Messrs Fisher and Faber it is plain to the Committee that Mr Faber must have known that what was in the vial was highly suspect even if he did not know precisely that it was the substance EPO. His suspicion about the substance was demonstrated by his misleading the veterinarian as to how the vial came into his possession.
3.10 The Committee recognises that periods of disqualification will have significant impact. Particularly in the case of Mr Fisher who has long been associated with horse ownership. The submissions for Mr Faber advise that he has surrendered his Trainers Licence and in those circumstances disqualification might not impact upon him to the same extent as would be the case if he were actively involved in horse training.
3.11 The Committee has concluded that disqualification is appropriate in each case but at different levels. The periods proposed by the RIU are not appropriate. In as much as the Australian decision in Laming is a guide the position there was much more serious in that three (3) horses had tested positive for the prohibited substance. As to costs there is some force in the submission by counsel for Mr Fisher that the hearing and the submissions which followed were extended by reason of the charge of attempting to administer the prohibited substance which charge the Committee dismissed. This consideration is reflected in the costs awards which the Committee has arrived at.
3.12 It is also appropriate that Messrs McRae, Fisher and Faber make some meaningful contribution towards the considerable costs incurred by the JCA. The figures set in that regard have not been fixed upon an indemnity basis. The aggregated figures arrived at represent approximately half the costs incurred by the JCA. This in setting up and conducting the defended hearing and having regard to the fees of the committee members in considering the very detailed material placed before it by both the RIU and the Defendants and the need to issue detailed decisions.
4. PENALTY DECISION
4.1 In respect of Mr McRae he will be disqualified for a period of twelve (12) months. He is ordered to pay the sum of $400 towards the costs and disbursements of the RIU and $400 towards to costs of the JCA.
4.2 Mr Fisher is disqualified for twenty (20) months. He is ordered to pay the sum of $4,000 towards the costs and disbursements of the RIU and the sum of $5,000 towards the costs of the JCA.
4.3 Mr Faber is disqualified for a period of twelve (12) months. He is ordered to pay the sum of $4,000 towards the costs and disbursements of the RIU and $5,000 towards the costs of the JCA.
4.4 All periods of disqualification are to take effect immediately.
DATED this 2nd day of September 2014
Murray McKechnie
Chairman
Signed pursuant to Rule 920(5)
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