Non Raceday Inquiry RIU v T Newton – Decision dated 2 October 2014

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decisiondate: 03/10/2014

hearing_title: Non Raceday Inquiry RIU v T Newton - Decision dated 2 October 2014

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appealdecision: NO LINKED APPEAL DECISION

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Decision:

BEFORE A JUDICIAL COMMITTEE

AT PALMERSTON NORTH

IN THE MATTER of the New Zealand Rules of Thoroughbred Racing

BETWEEN RACING INTEGRITY UNIT

Neil Grimstone

Manager Integrity Assurance

Informant

AND Tracy NEWTON

Licenced Trainer

Respondent

DECISION OF JUDICIAL COMMITTEE DATED 2nd OCTOBER 2014

INTRODUCTION:

Ms Tracy Newton, a Class A licenced trainer has been charged by the Racing Integrity Unit with a breach of Rule 804(2) of the New Zealand Rules of Thoroughbred Racing.

DETAILS OF THE CHARGE:

It is alleged that being the trainer of “I’m Not Ticklish” which was brought to the Egmont Racing Club for the purpose of engaging in and did engage in, race two of a race meeting conducted by the Egmont Racing Club, when the said horse was found to have had present in its metabolism, a prohibited substance, namely methamphetamine and that she is in breach of the New Zealand Rules of Thoroughbred Racing Rule No. 804 (2) and is therefore subject to the penalty or penalties which may be imposed pursuant to Rules 804 (6) & (7). Rules 804 (2), (6) & (7) read as follows:

804 (2) When a horse which has been brought to a Racecourse or similar racing facility for the purpose of engaging in a Race or trial to which the Third Appendix hereto applies is found by a Tribunal conducting an inquiry to have had administered to it or to have present in its metabolism a Prohibited Substance, capable of affecting its speed, stamina, courage or conduct, the Trainer and any person who in the opinion of such Tribunal conducting such inquiry was in charge of such horse at any relevant time commits a breach of these Rules unless he satisfies that he had taken all proper precautions to prevent the administration or presence of such Prohibited Substance.

804 (6) A person who commits a breach of sub-Rule (2) or (3) or (4) or (5) of this Rule shall be liable to:

(a) Be disqualified for a period not exceeding five years; 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 $25,000

804 (7) Any horse connected with a breach of sub-Rule (2) or (3) or (4) or (5) of this Rule shall be, in addition to any penalty which may be imposed, disqualified from any Race or trial to which the Third Appendix hereto applies and/or be liable to a period of disqualification not exceeding five years.

The drug, methamphetamine, is a “prohibited substance” pursuant to the Fourth Appendix of the New Zealand Rules of Thoroughbred Racing.

It is to be noted at the outset that this inquiry is not concerned with an allegation of administration of the substance. The Racing Integrity Unit (RIU) does not so allege. This inquiry is focused on the presence of the prohibited substance and whether or not Ms Newton can satisfy this Judicial Committee that she “had taken all proper precautions to prevent the presence of such prohibited substance”.

This casts the onus of a positive defence on the respondent, Ms Newton. It is she who must satisfy us that she had taken all proper precautions and not the RIU. She must satisfy us on a standard known as the “balance of probabilities”. She need not satisfy us to the higher standard of proof which is required in criminal cases, that is, beyond reasonable doubt.

THE EVIDENCE OF THE INFORMANT:

The evidence was straightforward and by and large uncontested.

1. Before the Informant’s evidence was presented, Mr Peter Sue, as Ms Newton’s lay advocate, confirmed to the hearing (as did Ms Newton) that there was no dispute, firstly with the swabbing process and secondly, and probably more importantly, the fact there was methamphetamine present in the horse’s metabolism.

2. Mr Robert Bevege who was an RIU investigator in May 2014 gave evidence to the hearing of his role in the investigation following the positive test that was returned from a sample of urine taken from “I’m Not Ticklish” following the race. He interviewed Ms Newton and produced to the hearing a statement made by her to him on the 26th of June 2014.

3. In cross examination, Mr Sue challenged Mr Bevege as to the use of the letter “P” (when describing methamphetamine) and put to Mr Bevege that Ms Newton did not use that expression. Mr Bevege responded by saying, “I wrote down what she said”.

4. In response to a question from the Chairman, Mr Bevege confirmed that the statement was read to Ms Newton. One alteration was made on the first page and initialled by Ms Newton and she signed the statement at the end of it.

5. Mr Sue raised with Mr Bevege the fact that Ms Newton was flustered and upset. Mr Bevege said in response that every trainer that he has interviewed has become flustered and upset when advised of a positive drug test.

6. Mr Neil Grimstone the Manager of Integrity Assurance for the RIU then gave evidence. He provided the hearing with details of his experience as a Senior Police Officer. He said that he went to Ms Newton’s stables on the 23rd of June 2014 with the previous witness.

7. As a result of the advice that he gave Ms Newton about the positive test, Ms Newton then telephoned her partner Mr Peter Sue. Mr Sue arrived at the stable within a short space of time.

8. Mr Grimstone spoke to Mr Sue separately from Ms Newton and made some handwritten notes of the discussion. The following day, he referred to his notes and completed what is known as a “job sheet”, of which job sheet he read to the hearing.

9. Mr Sue challenged him with regard to the contents of the job sheet and said that it contained additional information that was not recorded in the handwritten notes. The points in the job sheet that Mr Sue took exception to were mainly references to the use of methamphetamine by him and Ms Newton. He said that he and Ms Newton disputed that they smoked methamphetamine the night before the races at Hawera. He accused Mr Grimstone of fabricating evidence. Mr Grimstone responded by saying that was his recollection of the conversation that he had with Mr Sue, in his motor vehicle.

10. Mr Grimstone was asked by the Committee about the betting patterns on the horse to which Mr Grimstone replied that there was nothing unusual. “I’m Not Ticklish” paid $12:20 for a win and $5 for a place.

DEFENCE:

1. Mr Sue advised the Committee that Ms Newton did not wish to give evidence but that he proposed to give evidence on her behalf. He said in a written statement which was produced to the hearing that among other things, Ms Newton, when being spoken to by Mr Bevege got flustered and that her mind started racing. He challenged the statement that Ms Newton had smoked methamphetamine the night before the races but said that she had smoked methamphetamine the night before the races at Te Rapa on 5th June 2014. He was, by implication, critical of the fact that despite a request being made, that a second statement was not taken from Ms Newton. That request was made by Mr Sue, when he saw the notes that Mr Grimstone had made at a later stage. He was also of critical of statements recorded by Mr Grimstone as referred to in his cross examination of Mr Grimstone as outlined above.

2. He went on to say that after being informed of the positive tests, that he and Ms Newton made inquiries of Dr Beresford of the New Zealand Racing Laboratory Services and their independent veterinarians as to how the horse may have been contaminated with the drug. He alleged that there was no factual proof before the hearing of Ms Newton “cross contaminating” the horse. He and Ms Newton suspected that someone intentionally drugged the horse. He said that he and Ms Newton were involved in a dispute relating to lease arrangements for the stable.

3. In cross examination, Mr Grimstone asked if he, Mr Sue, took any notes. Mr Sue responded by saying “I don’t why I should have – I’m not the defendant”.

4. Mr Grimstone then asked if he (Mr Sue) and Mrs Newton were using methamphetamine in May 2014. Mr Sue said “yes, we are casual methamphetamine users”.

SUMMARIES:

A. Mr Grimstone submitted that the facts were not in dispute.

• There was evidence of methamphetamine in both urine samples taken

• This is a strict liability offence

• Mr Bevege’s evidence confirmed that Ms Newton was a casual methamphetamine user

• Mr Sue admitted he was a casual methamphetamine user

• The RIU submitted that on balance the horse was contaminated due to the use of the methamphetamine by either Mr Newton or Mr Sue and therefore, Rule 804 (2) was breached.

B. Prior to Mr Sue summing up, the Chairman asked the parties to comment on the question of security at Ms Newton’s stable. Mr Sue responded by saying that on a scale of 1 to 10, with 10 being the tightest security available, and with 1 being the lowest, that the standard of security at the stables was in the lower quartile. He said that it was lax, very poor and that anyone could walk into the property. The neighbour had reported to them that they had seen people walking in and patting horses. In hindsight, Mr Sue said they should have got other stables a long time ago.

C. Mr Grimstone had no comment with regard to the security of the stables.

D. The Chairman then explained to Mr Sue for the second time during the hearing, the effect of the positive defence aspect of Rule 804 (2) and again reminded Mr Sue that the onus of proof of satisfying the Tribunal that they had taken all proper precaution to prevent the administration or the presence of such prohibited substance lay with Ms Newton.

E. In summary: Mr Sue said that he and Ms Newton were not disputing the facts, they were only disputing that the horse was cross contaminated in some way by Ms Newton. He said the contamination could have come from anybody, e.g. at the tie-up stalls, from the barrier boys, from any track work riders - anybody associated with racing. He said that “All we know is we did not cross contaminate it and we do not want the blame to fall on Ms Newton”. He then informed the Committee that the form of the horse was “flattened” post-race by the drug. In the next three starts, it finished 10, 20 and 55 lengths last, respectively.

DECISION AND REASONS:

1. We find as facts the following:

• That the horse “I’m Not Ticklish” had a prohibited substance in its metabolism when it ran in the “The Eltham Vets / Agri Feeds 1600” at the Egmont Racing Club’s meeting on 26th May 2014;

• That prohibited substance was methamphetamine;

• Methamphetamine is a prohibited substance as set out in the Fourth Appendix of the New Zealand Rules of Thoroughbred Racing;

• That the prohibited substance was not deliberately administered by Ms Newton.

2. We must now turn to consider whether or not Ms Newton has made out a positive defence in terms of Rule 804 (2) namely that she took all proper precautions to prevent the administration or presence of such a prohibited substance.

3. Regrettably, Ms Newton has not provided this Committee with any credible evidence that all reasonable precautions were taken. This Committee observes that on the admission of Mr Sue, the security around the stables was poor. For example we did not hear that the horse was boxed up for the night prior to the meeting or of any surveillance. On the basis of what we heard, there were in fact no precautions taken to prevent the horse from being drugged.

4. For the record, we are bound to say that a significant part of Mr Sue’s brief of evidence and his cross examination of the RIU witnesses, simply raised a number of unsupported possibilities upon which we give limited or no weight. The allegations of improper conduct by Mr Grimstone, in particular, do not help the respondent in any way. We do not agree that there was anything untoward about Mr Grimstone having written a job sheet the day following the interview based on his notes notwithstanding that the job sheet contained additional material. Mr Grimstone is entitled, as an experienced investigator to rely on his memory. It is noted that Mr Grimstone wrote up his “job sheet” the day following his discussion with Mr Sue. Having said that, it would have been more desirable for all concerned for the notes to have been written up and signed off by Mr Sue at that the time. Not a lot turns on this because Mr Sue is not the respondent.

5. The results of our findings are therefore as follows:

• The case against Ms Newton of taking “I’m Not Ticklish” to the Egmont Racing Club’s meeting on 26th of May 2014 with a prohibited substance, namely, methamphetamine in its metabolism is found proved. As a consequence of that finding, the horse “I’m not Ticklish” is disqualified from its first place in race 2.

• The amended placing are therefore:

1st – Horse number 8 “Katie McKeen”

2nd –Horse 3 “Heart of Darkness”

3rd – Horse 7 “The Bachelor”

4th – Horse 4 “Secret Whisper”

5th – Horse 5 “Show the Beel”

6. Stakes out to be paid in accordance with the amended placings.

PENALTY SUBMISSIONS:

Mr Sue was invited to apply for an adjournment to enable him to prepare penalty submissions in writing. This invitation was declined and Mr Sue stated that the matter could be dealt with on the basis of oral submissions. At this point, Ms Newton became quite agitated and left the hearing saying words to the effect that “You can do what you like, it is the end for us so far as training is concerned”.

RIU PENALTY SUBMISSIONS:

Mr Grimstone presented penalty submissions in writing.

He submitted that the horse should be disqualified (which we he have already done as an automatic consequence of the horse being found to have a prohibited substance in its metabolism – see 5 above).

He submitted that four principles of sentencing applied namely: punishment, deterrence, denouncement, and the need for rehabilitation of an offender.

Mr Grimstone said that there have not been any previous cases reported of methamphetamine being present in a horse’s metabolism before. He did however, refer us to four other cases where other drugs such as “Boldenone” and “Phenylbutazone” were used. In the cases that Mr Grimstone referred to, fines of $6000 were imposed.

Mr Grimstone further submitted that the presence of the drug was a significant animal welfare issue. Finally, he submitted that we should take into account the fact that Ms Newton did not admit the breach.

The RIU submitted that a final $8000 should be imposed and with a period of disqualification of 12 months. He also submitted that costs of $1000 payable to the Racing Integrity Unit should be awarded and that the costs incurred for the analysis of the “B” sample of $1,221.75 should be met by the respondent.

Mr Sue’s submissions on penalty were brief. He did not agree that Ms Newton should be fined or disqualified and neither should there be costs payable by her to Racing Integrity Unit or the Judicial Control Authority. He accepted that Ms Newton should pay for the costs of the analysis of the “B” sample.

PENALTY DECISION:

On the 26th of May 2014, the horse “I’m Not Ticklish”, a seven year old gelding trained by Ms Tracey Newton was correctly entered and started in Race 2, “The Eltham Vets / Agri Feeds 1600” at the Race Meeting conducted by the Egmont Racing Club at Hawera. The horse is owned by Ms Newton, her partner Mr Sue and another.

“I’m Not Ticklish” won the event earning a gross stake of $5000.

"I'm Not Ticklish" was subsequently swabbed. During the swabbing process the horse was accompanied by Mr Peter SUE. A urine sample was taken from the horse at 1.31pm, some twenty minutes after the race start time.

Mr SUE and the swab attendant have reported that there were no difficulties or irregularities with the collection or packaging of the samples taken from "I'm Not Ticklish".

At the conclusion of the meeting the samples were checked and placed in a tamper proof security bag with other samples taken that day and forwarded to the New Zealand Racing Laboratory.

On the 18th of June 2014 a Certificate of Analysis was received from the New Zealand Racing Laboratory Service advising the sample taken from "I'm Not Ticklish" had been analysed and found to contain the prohibited substance - methamphetamine.

Ms Newton was fully co-operative with Investigators, and was at a loss as to how her horse "I'm Not Ticklish" had tested positive for this substance.

As part of the investigation Mr SUE exercised his right to have the "B" sample tested by an independent laboratory off shore.

This analysis was completed at the Australian Racing Forensic Lab in New South Wales, Australia.

On the 17th of July 2014 a certificate was received from that laboratory confirming the "B" sample had also tested positive for methamphetamine.

As a consequence of the positive tests revealing methamphetamine in the metabolism of “I’m Not Ticklish”, Ms Newton was charged with the breach of Rule 804 (2) as outlined earlier in this decision. That charge has been found proved.

Methamphetamine is the most insidious drug and a scourge on society. It most certainly has no place anywhere near racing of any code or sport in general.

Having said that, it needs to be noted that neither Mr Sue nor Ms Newton has been on trial for using methamphetamine. However, as admitted users of the drug, they should have been particularly vigilant in taking all proper precautions to prevent the administration or presence of such prohibited substance. It is a most powerful stimulant and is certainly capable of affecting the speed, stamina and courage of a race horse. Even though there has been no allegation of administration of the drug by Ms Newton, having regard to its very nature, this committee regards the breach of the rule as serious, particularly against the background of Ms Newton’s admission of being a user of the drug, albeit a casual user as stated by her. We emphasise that Ms Newton has not been on trial for using the drug. Her use of it is just part of the background of the breach of the rule which we have been called upon to consider.

The penalty that we are imposing is to denounce the breach of the Rule and to also act as a deterrent to others contemplating the use of such a prohibited substance (or any prohibited substance for that matter) in horse racing.. It is intended to promote a sense of responsibility in the respondent and in others, in terms of security around race horses. It is not known how the drug was administered but the plain and simple fact of the matter is that the rule is one of strict liability and Ms Newton must carry the responsibility for the breach.

Rule 804 (6) provides that the person who commits a breach of Rule 804 (2) is liable to be: (a) disqualified for a period not exceeding of 5 years ; and/or (b) be suspended from obtaining a licence for a period not exceeding 12 months; or (c) a fine not exceeding $25,000.

In our view, a disqualification is the most appropriate penalty. The maximum period that we may impose is 5 years. We do not consider it necessary to impose a fine.

However having regard to the seriousness of the matter, we set our starting point for disqualification at 3 years. We must now turn to consider whether there are any further aggravating features which would warrant an uplift in the term of disqualification or as to whether or not there are any mitigating factors which would warrant a discount on our starting point. We do not find any particular aggravating fact which warrants an uplift.

Insofar as mitigating factors are concerned, it needs to be noted that was Ms Newton did not admit the offence. The charge has been proved against her. That does not mean that she should be penalised for having not admitted the offence. It simply means that she is not entitled to any discount on our starting point which may well have been afforded had the charge been admitted. She has not demonstrated any remorse.

After taking matters all into account, we find that there is no particular discounting factor which we can apply and thus, the period of disqualification is fixed at 3 years.

COSTS:

Costs must follow the event. Again, we emphasise that the award of costs is not to be seen as a further form of punishment. Costs “follow the event” and the “event” has been the unsuccessful defence of the charge.

We direct that Ms Newton shall pay costs as follows:

a) To the Racing Integrity Unit, the sum of $2,221.75 being a contribution to Racing Integrity Unit costs of $1,000.00 and the costs for the analysis of the “B” sample of $1,221.75.

b) In addition, Ms Newton is directed to make a contribution of the costs of the JCA in the sum of $700.00.

KG Hales           G Jones

Chairman          Panelist

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