Non Raceday Inquiry RIU v M Purdon 19 July 2012 – Decision dated 2 August 2012
ID: JCA12926
Decision:
BEFORE THE JUDICIAL CONTROL AUTHORITY
UNDER THE RACING ACT 2003 HELD AT HAMILTON
IN THE MATTER of the New Zealand Rules of Harness Racing Rule 305(a)
BETWEEN Mr N McIntyre – Stipendiary Steward
Informant
AND Mr M Purdon – Licensed Public Trainer
Defendant
Information No: A2403
Venue: Te Rapa Racecourse
Judicial Committee: Mr A J Dooley (Chairman), Mr J N Holloway (Committee Member)
Appearing: Mr N McIntyre – Stipendiary Steward, Mr R Neal – Stipendiary Steward, Mr M Branch – Representing Mr M Purdon, Mr L Hollis, Stable Foreman for Mr Purdon and Mr M Purdon (called as witnesses via a teleconference call)
Plea: Not admitted
Date of Hearing: 19 July 2012
Decision of Judicial Committee
Charge:
A charge was brought against the Defendant, Public Trainer Mr M Purdon alleging that he committed a breach of Rule 305(a) in that on 2nd June 2012, at a race meeting held by Cambridge-Te Awamutu Harness Racing Club, he failed to report a condition to the Stipendiary Stewards prior to Race 4 for his horse ESCAPEE, which competed in that race and that such condition may have affected its performance.
Rule – 305(a) reads:
Every person who holds a permit or licence under these Rules and every owner, driver, trainer or person in control of a horse shall:
(a) Report to the Stipendiary Steward in writing as soon as practicable and in any event no later less than one hour before the advertised starting time of a race, any condition which may affect the running of a horse in a race.
The Informant, Mr N McIntyre served the information on Mr Purdon on race day 2nd June 2012.
Mr Purdon, trainer of ESCAPEE reserved his plea regarding the charge and the race day JCA committee adjourned the hearing for a date to be decided and it was subsequently heard as a Non Race Day Inquiry on the 19th July 2012 at the Te Rapa Racecourse.
Stipendiary Stewards, Mr N McIntyre and Mr R Neal were present and presented evidence on behalf of the Racing Integrity Unit Ltd.
Mr Purdon, Public Trainer was represented at the hearing by Mr M Branch – Lawyer.
Mr McIntyre read the rule and Mr Branch acknowledged that Mr Purdon understood it. He confirmed to the committee that the charge was denied.
Evidence for Informant:
The following exhibits were submitted as evidence. These and the briefs of evidence of the informant’s witnesses were introduced with the consent of Mr Branch.
Exhibit 1
Transcript of interview conducted by Chief Stipendiary Steward, Mr Cameron George with Licensed Stable-hand, Michelle Fleming, employee of Mr Purdon, in the Stewards’ room on the 2nd of June.
Exhibit 2
Transcript of interview conducted by Senior Steward Mr Nigel McIntyre with Licensed Public Trainer and Open Horseman Mr Mark Purdon in the presence of Mr George and Mr Muirhead in the Stewards’ room on the 2nd of June.
Exhibit 3
Pre-race photo of ESCAPEE taken off Trackside.
Exhibit 4
Post-race photo of ESCAPEE in stabling area.
Exhibit 5
Photo of the false shaft used on ESCAPEE following the race.
Exhibit 6
Post-race Veterinary Certificate filed by the club’s veterinary Mr M.K. Brightwell (BVSc).
Exhibit 7
Official race result and Stewards’ report.
Mr McIntyre:
Mr McIntyre told the committee that post-race he noticed an injury to the horse ESCAPEE trained and driven by Mr Mark Purdon Licensed Trainer and Open Horseman. Following enquiries and a post-race veterinarian examination, Mr Purdon was charged with a breach of Rule 305(a) in that he had failed to report in writing a condition which may affect the running of a horse in a race.
It transpired that ESCAPEE had been fitted with race day gear which had caused rubbing to the offside hip area apparently attributable to a gaiting strap. This injury was treated by Stable-hand Miss Fleming and Mr Purdon was aware of it.
On the Thursday, ESCAPEE was warmed up in her race day gear and then returned to the stable where the gaiting was removed and a boring pole fitted in an effort to reduce further rubbing to the injury.
Miss Fleming noted after Thursday’s training that the injury had deteriorated and there was blood present.
On race day, Mr Purdon was aware when gearing up, that the condition was still present.
An immediate post-race inspection report by on course veterinarian, confirmed that had the condition been detected pre-race, it was highly likely ESCAPEE would have been scratched.
Witnesses:
Michelle Fleming, interviewed on race day by Stewards, Mr George and Mr McIntyre, explained that she was employed by Mr Purdon based at the Pukekohe stable and was responsible for the horse ESCAPEE.
She confirmed the injury to the horse’s offside flank area first occurred on the Tuesday of the week before the Jewels Meeting. She said that Mr Purdon had put a gaiting strap on her, and when the horse returned from training she had obviously been leaning on it and it had rubbed her quite raw.
She confirmed Mr Purdon was aware of this at the time.
On the Thursday ESCAPEE was again worked and after return to the stables, she found it had rubbed up more and there was blood present. The horse was definitely sore around the region of the injury, and each time after it trained, she treated the wound with aloe vera gel.
After racing on the Saturday, the injury again appeared as bad as it had been on Thursday after training. She said she had made it clear to Mr Purdon the horse had an injury, but there was no comment from Mr Purdon regarding the injury prior to the race.
Subsequently, Stipendiary Stewards Mr George and Mr McIntyre interviewed Mr Purdon on race day:
There was an existing history of ESCAPEE striking sulky wheels. He bought a modified cart up from the South Island, with a gaiting strap designed to prevent the horse offsetting herself in the cart and ensure that the horse trotted soundly and safely.
He trained ESCAPEE on the Tuesday, using the gear intended for racing on 2nd June. Following training he noticed “it rubbed her slightly” and “took the hair off”.
On the Thursday following, he warmed the horse up with the same gear. He brought her in and changed the gaiting strap for a boring pole as “I didn’t want it to rub her up again”. He said there was no sign of soreness.
In response to a question about his obligation to report any condition which may affect the running of the horse, Mr Purdon’s response was that “it had zero effect, Mr McIntyre, zero”.
On race day, Mr Purdon acknowledged he had noticed the injury when gearing the horse up pre-race because it had been present on Tuesday.
In response to a question from Mr George, “Ok so given that you noticed today and that potentially it could reoccur and rub raw again, surely you would think to notify us just in case it does have a bearing on the performance and let us measure it or not”, Mr Purdon responded, “Do you think you are a better judge of measuring performance than I am sir”?
Following a question “All that blood and how the horse is so raw and you weren’t worried about it?”, Mr Purdon responded, “ I wasn’t too worried about it to be honest”.
Mr Purdon agreed that there was an obligation to report anything which may have had an effect on the horse’s performance however in his view this “rub” had “zero effect”.
When asked if the horse had received any treatment during the week, Mr Purdon responded, “What would it need to be treated for?” and “Course it had no treatment, it only had a bit of blue put on it”.
A completed certificate by race day veterinarian Mr M K Brightwell following an examination of ESCAPEE post-race read:
“Large area rubbed raw below right hip. Had this been noted pre-race highly likely ESCAPEE would have been scratched on aesthetic grounds. Highly likely this lesion would have affected performance”.
The committee was provided with coloured photographs showing ESCAPEE’s offside rump area, pre and post-race and of the false shaft used during the race.
Under cross examination by Mr Branch, Mr McIntyre relayed the following:
In respect to rule 305(a), it was his opinion the rule was quite clear that an obligation existed for the trainer to report any condition present that may affect the horse’s performance. He agreed that it was the trainer who had to make the decision as to whether the condition may affect the horse’s performance.
Mr Purdon made the call not to advise the Stewards because he didn’t think it was going to affect the performance of ESCAPEE, and therefore didn’t have to tell the Stewards under the rules. Mr McIntyre confirmed the Stewards had to convince the committee that Mr Purdon’s decision not to advise was not justified.
Mr Purdon had consistently said throughout that there was no effect on the horse’s performance and that he is a leading trainer and fine horseman.
He confirmed that Mr Purdon had told him ESCAPEE was exhibiting no signs of soreness and that Mr Purdon was the best qualified person to make the call.
On the basis of Miss Fleming’s interview, which identified a problem on Tuesday, and further on Thursday when ESCAPEE was brought in off the track, Mr Purdon was concerned enough to remove the gaiting bar and replace it with a boring pole in an attempt to have it looking its best for Saturday. Following the Thursday training, Miss Fleming had noticed blood present, with the extent of the injuries being very close to that post-race on the 2nd June.
No one had denied there was a condition present. Based on this, it was a matter of whether that condition was likely to affect the horse - the charge concerned the horse’s condition one hour before the race.
He confirmed that the obligation to report under this rule, ceased one hour before the race.
Mr McIntyre confirmed that none of the Stewards had noticed the condition on ESCAPEE’s offside hip prior to the race.
From looking at the pre and post-race photographs Mr McIntyre confirmed in his expert opinion that the rub had deteriorated. However, he believed the horse had not been placed under much pressure during its warm up, and therefore most of the damage was done when it was placed in a painful position when being rubbed by the gaiting strap, which caused the horse to gallop. As a result the horse was uncontrollable.
Evidence for Defendant:
Mr Branch produced the following briefs of evidence, which were accepted by consent.
Trevor Casey, owner of ESCAPEE, described visiting the stables on the Friday pre-race and noted there was a small amount of hair missing from her offside thigh area. When he asked about it, he was told that she had rubbed it against the gaiting bar. He gave further detail about the purchase of a new Spider sulky that has been modified to suit ESCAPEE when she races. This sulky is still enroute from the manufacturer.
Dr I Bridge veterinarian to Mr Purdon, visited the stables during the week prior to June 2nd, following a request from Mr Purdon to inspect another horse. Neither Mr Purdon nor stable foreman Mr Hollis, sought his advice on ESCAPEE’s condition.
On Tuesday 5th June, Dr Bridge was requested by Mr Purdon, to examine ESCAPEE. He described a 25 cm x 4.5 cm smooth hairless area over the right hind quarter and flank, midway between the Ilium and Stifle which did not appear inflamed. At the centre was a 2.5 cm scab. This was consistent with previous superficial irritation of the skin. The filly appeared capable of working and racing.
Veterinarian Mr T D Montgomery, also examined ESCAPEE on the 5th June at the request of Dr Bridge, seeking an independent opinion. He took photographs of the lesions which were produced.
He found the horse exhibited no evidence of pain or discomfort when being examined.
Mr Logan Hollis, stable foreman at Mr Purdon’s Pukekohe stable, in a brief of evidence, said he was aware of a chafe in the middle of ESCAPEE’s off side rear. The chaffing had come from a gaiting strap affixed to the cart the week before 2nd June to keep ESCAPEE straight in the cart. He had no concern over the rub and if he had, he would have advised Mr Purdon. He confirmed that Miss Fleming was directly responsible for ESCAPEE and that it was her favourite horse. She never approached him about concerns with the rub.
By teleconference call, Mr Hollis was cross examined by Steward Mr Neal. He confirmed he had no concerns to the mark on ESCAPEE’s rump, but there were issues about the horse trotting straight and true. He was the foreman in charge of the day to day running directly involved with ESCAPEE. He didn’t personally look after or brush the horse. Miss Fleming was primarily in charge of ESCAPEE.
He disagreed that there was any blood present to the injury. He saw her putting aloe vera on it but never saw any blood at all.
He thought that Miss Fleming may have had a grievance over being given notice by Mr Purdon. There was no particular reason for the notice, just a drop off in staff requirements and there was no issue with her performance.
Mr Purdon, in his brief of evidence, gave background evidence of the problems ESCAPEE had with it’s racing and modifications to the cart and alterations to gear worn in an effort to improve her performance.
On Tuesday 29th May he had trained her with the planned race day gear two gaiting bars. ESCAPEE trotted well until she came off the back of the pacemakers at the 400 metre mark. She tried to go too hard and made a break, which took him about 300 metres to restrain her back to her correct gait. Following this, he noticed the gaiting bars had rubbed her on both sides, with the offside being about 3 times as large as the near side.
Upon inspection, both sides were red but the skin was unbroken. Miss Fleming applied aloe vera over the affected areas.
On Thursday 31st May, Mr Purdon trained ESCAPEE in two heats. In the first, he only put the gaiting bar on the off side as that was the side that affected her gait if she offset herself in the cart. After the first heat, she was returned to the stables and had the gaiting bar removed and replaced with a boring pole. After being worked and washed and cleaned, he examined the area. There was one area the size of a breakfast jam lid that was glazed and had nearly broken the skin.
A further examination on Thursday afternoon satisfied him that there was no sign of pain or discomfort.
On race day, the area was darker, not red, but there was minor breaking of the skin in the affected area when he sprinted her in the warm up.
Under cross examination by Mr McIntyre, Mr Purdon confirmed the rubbing first occurred on the Tuesday, when the horse was worked with two gaiting straps. On the Thursday he placed one gaiting strap on the offside, and after working the first heat, brought the horse in to remove the gaiting strap and replaced it with a boring pole which she was familiar with. He didn’t want to aggravate the rub or worsen it prior to the race.
In the race day photograph taken of ESCAPEE after the warm up, he confirmed she had broken the skin during the warm up on the offside in a small area. During the race, the horse had broken shortly after the start and then over raced, but this had nothing to do with the horse touching the offside gaiting strap when in a gallop.
Submissions for Prosecution:
In summing up, Mr McIntyre said there was no doubt that Mr Purdon was a leading trainer but even they made errors. It was clear that ESCAPEE worked on the Tuesday with gaiting straps fitted, and a rub appeared on the offside flank area.
On the Thursday following, in the first of two workouts for the day, ESCAPEE was trained with one gaiting strap fitted on the offside. Mr Purdon has obviously had enough concern to remove the gaiting strap and replace it with a boring pole in the second workout, so that the condition didn’t worsen. At that stage this should have red flagged to Mr Purdon that he was to notify the Stewards leading into the race.
Had this action been completed by Mr Purdon, it would have afforded the Stewards an opportunity to give their own veterinarian the right to examine and measure whether ESCAPEE should have started or not. They had not been afforded such an opportunity.
Submissions for Defence:
In summing up, Mr Branch told the committee is whether, in Mr Purdon’s opinion, at the time the horse went onto the track, or one hour prior, or anytime before that, there was anything which could, or may have affected the horse.
The whole idea was to manage the situation so that you never get to the point where the condition may possibly affect the horse. That’s what Mr Purdon had done. He had avoided this situation.
There were two possibilities where the Stewards might challenge Mr Purdon’s opinion. They were the presence of blood and if there was any soreness.
The presence of blood did not necessarily affect performance.
The issue is whether there was any soreness. Both Mr Purdon and Mr Hollis gave a contrary position to that of Miss Fleming on the presence of blood and soreness.
He suggested there was very little weight that could be placed on the evidence of Miss Fleming.
Following an inspection and photographs taken on the Tuesday 5th June, despite the veterinarians saying it looked bad, they said ESCAPEE could have raced again on the following Friday. While it might have looked bad on the Thursday, if they had looked at it, the vets probably would have cleared it to race. It was clearly a wound that could heal or be of no consequence in a short period of time.
He found it difficult to understand how a Stipendiary Steward failed to see the red patch of that size if he was to be close enough to read the brand.
Reasons for Decision:
The committee carefully listened to, and independently assessed, the evidence of both parties. We are satisfied of the following points:
1. Rule 305 (a) places a clear obligation on a licence holder to report to the Stipendiary Steward in writing as soon as practicable and in any event no later than one hour before the advertised starting time of a race, any condition which may affect the running of a horse in a race.
2. ESCAPEE’s performance in previous outings had resulted in Mr Purdon making certain adjustments to gear fitted to the horse in the period preceding the Harness
Racing Jewels on the 2nd June 2012.
3. On Tuesday 29th May, ESCAPEE was trained in gear including two gaiting bars, after which rubs were discovered on both sides of the horse in the flank area. This was treated with aloe vera by stable hand Miss Fleming.
4. On Thursday 31st May, ESCAPEE was trained in two heats. On the first occasion, a single gaiting bar was fitted to the offside. When returned to the stable and prior to the second heat, this gaiting bar was removed and a boring pole fitted. Following this training, the aggravation to the offside flank area had deteriorated and more aloe vera was applied by Miss Fleming.
5. On Saturday 2nd June, race day, Mr Purdon confirmed the condition was still present when gearing the horse up before racing.
6. The pre-race photograph of ESCAPEE’s offside flank area presented to the committee confirmed that this condition existed.
7. Race day veterinarian Mr Brightwell’s certificate following inspection post-race was clear. Had the lesion been inspected pre-race it was highly likely ESCAPEE would have been scratched on aesthetic grounds and further, the condition was highly likely to have affected the horse’s performance.
8. It is clear to the committee that Mr Purdon failed in his obligation as a licensed person under the New Zealand Rules of Harness Racing, to report this condition to the Stipendiary Stewards in accordance with Rule 305 (a).
Decision:
We find the charge against Mr Purdon has been established.
Penalty:
Submissions on Penalty:
The committee requests that the Informant provides written submissions on penalty to the Executive Officer by 5 pm Friday 10 August 2012. The Defendant will then have a further 7 (seven) days to respond with their written submissions on penalty to the Executive Officer (5 pm Friday 17 August 2012).
AJ Dooley J Holloway
Chairman Committee Member
2nd August 2012
Appeal Decision: NO LINKED APPEAL DECISION
Decision Date: 05/09/2012
Publish Date: 05/09/2012
JCA Decision Fields (raw)
Dmitry: This section contains all JCA fields migrated from the raw data.
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.
hearingid: 69e0c0d9a8012459b0d888a5ca9c9086
informantnumber: A2403
horsename:
hearing_racingtype:
startdate: no date provided
newcharge:
plea:
penaltyrequired:
decisiondate: 05/09/2012
hearing_title: Non Raceday Inquiry RIU v M Purdon 19 July 2012 - Decision dated 2 August 2012
charge:
facts:
appealdecision: NO LINKED APPEAL DECISION
isappeal:
submissionsfordecision:
reasonsfordecision:
Decision:
BEFORE THE JUDICIAL CONTROL AUTHORITY
UNDER THE RACING ACT 2003 HELD AT HAMILTON
IN THE MATTER of the New Zealand Rules of Harness Racing Rule 305(a)
BETWEEN Mr N McIntyre – Stipendiary Steward
Informant
AND Mr M Purdon – Licensed Public Trainer
Defendant
Information No: A2403
Venue: Te Rapa Racecourse
Judicial Committee: Mr A J Dooley (Chairman), Mr J N Holloway (Committee Member)
Appearing: Mr N McIntyre – Stipendiary Steward, Mr R Neal – Stipendiary Steward, Mr M Branch – Representing Mr M Purdon, Mr L Hollis, Stable Foreman for Mr Purdon and Mr M Purdon (called as witnesses via a teleconference call)
Plea: Not admitted
Date of Hearing: 19 July 2012
Decision of Judicial Committee
Charge:
A charge was brought against the Defendant, Public Trainer Mr M Purdon alleging that he committed a breach of Rule 305(a) in that on 2nd June 2012, at a race meeting held by Cambridge-Te Awamutu Harness Racing Club, he failed to report a condition to the Stipendiary Stewards prior to Race 4 for his horse ESCAPEE, which competed in that race and that such condition may have affected its performance.
Rule – 305(a) reads:
Every person who holds a permit or licence under these Rules and every owner, driver, trainer or person in control of a horse shall:
(a) Report to the Stipendiary Steward in writing as soon as practicable and in any event no later less than one hour before the advertised starting time of a race, any condition which may affect the running of a horse in a race.
The Informant, Mr N McIntyre served the information on Mr Purdon on race day 2nd June 2012.
Mr Purdon, trainer of ESCAPEE reserved his plea regarding the charge and the race day JCA committee adjourned the hearing for a date to be decided and it was subsequently heard as a Non Race Day Inquiry on the 19th July 2012 at the Te Rapa Racecourse.
Stipendiary Stewards, Mr N McIntyre and Mr R Neal were present and presented evidence on behalf of the Racing Integrity Unit Ltd.
Mr Purdon, Public Trainer was represented at the hearing by Mr M Branch – Lawyer.
Mr McIntyre read the rule and Mr Branch acknowledged that Mr Purdon understood it. He confirmed to the committee that the charge was denied.
Evidence for Informant:
The following exhibits were submitted as evidence. These and the briefs of evidence of the informant’s witnesses were introduced with the consent of Mr Branch.
Exhibit 1
Transcript of interview conducted by Chief Stipendiary Steward, Mr Cameron George with Licensed Stable-hand, Michelle Fleming, employee of Mr Purdon, in the Stewards’ room on the 2nd of June.
Exhibit 2
Transcript of interview conducted by Senior Steward Mr Nigel McIntyre with Licensed Public Trainer and Open Horseman Mr Mark Purdon in the presence of Mr George and Mr Muirhead in the Stewards’ room on the 2nd of June.
Exhibit 3
Pre-race photo of ESCAPEE taken off Trackside.
Exhibit 4
Post-race photo of ESCAPEE in stabling area.
Exhibit 5
Photo of the false shaft used on ESCAPEE following the race.
Exhibit 6
Post-race Veterinary Certificate filed by the club’s veterinary Mr M.K. Brightwell (BVSc).
Exhibit 7
Official race result and Stewards’ report.
Mr McIntyre:
Mr McIntyre told the committee that post-race he noticed an injury to the horse ESCAPEE trained and driven by Mr Mark Purdon Licensed Trainer and Open Horseman. Following enquiries and a post-race veterinarian examination, Mr Purdon was charged with a breach of Rule 305(a) in that he had failed to report in writing a condition which may affect the running of a horse in a race.
It transpired that ESCAPEE had been fitted with race day gear which had caused rubbing to the offside hip area apparently attributable to a gaiting strap. This injury was treated by Stable-hand Miss Fleming and Mr Purdon was aware of it.
On the Thursday, ESCAPEE was warmed up in her race day gear and then returned to the stable where the gaiting was removed and a boring pole fitted in an effort to reduce further rubbing to the injury.
Miss Fleming noted after Thursday’s training that the injury had deteriorated and there was blood present.
On race day, Mr Purdon was aware when gearing up, that the condition was still present.
An immediate post-race inspection report by on course veterinarian, confirmed that had the condition been detected pre-race, it was highly likely ESCAPEE would have been scratched.
Witnesses:
Michelle Fleming, interviewed on race day by Stewards, Mr George and Mr McIntyre, explained that she was employed by Mr Purdon based at the Pukekohe stable and was responsible for the horse ESCAPEE.
She confirmed the injury to the horse’s offside flank area first occurred on the Tuesday of the week before the Jewels Meeting. She said that Mr Purdon had put a gaiting strap on her, and when the horse returned from training she had obviously been leaning on it and it had rubbed her quite raw.
She confirmed Mr Purdon was aware of this at the time.
On the Thursday ESCAPEE was again worked and after return to the stables, she found it had rubbed up more and there was blood present. The horse was definitely sore around the region of the injury, and each time after it trained, she treated the wound with aloe vera gel.
After racing on the Saturday, the injury again appeared as bad as it had been on Thursday after training. She said she had made it clear to Mr Purdon the horse had an injury, but there was no comment from Mr Purdon regarding the injury prior to the race.
Subsequently, Stipendiary Stewards Mr George and Mr McIntyre interviewed Mr Purdon on race day:
There was an existing history of ESCAPEE striking sulky wheels. He bought a modified cart up from the South Island, with a gaiting strap designed to prevent the horse offsetting herself in the cart and ensure that the horse trotted soundly and safely.
He trained ESCAPEE on the Tuesday, using the gear intended for racing on 2nd June. Following training he noticed “it rubbed her slightly” and “took the hair off”.
On the Thursday following, he warmed the horse up with the same gear. He brought her in and changed the gaiting strap for a boring pole as “I didn’t want it to rub her up again”. He said there was no sign of soreness.
In response to a question about his obligation to report any condition which may affect the running of the horse, Mr Purdon’s response was that “it had zero effect, Mr McIntyre, zero”.
On race day, Mr Purdon acknowledged he had noticed the injury when gearing the horse up pre-race because it had been present on Tuesday.
In response to a question from Mr George, “Ok so given that you noticed today and that potentially it could reoccur and rub raw again, surely you would think to notify us just in case it does have a bearing on the performance and let us measure it or not”, Mr Purdon responded, “Do you think you are a better judge of measuring performance than I am sir”?
Following a question “All that blood and how the horse is so raw and you weren’t worried about it?”, Mr Purdon responded, “ I wasn’t too worried about it to be honest”.
Mr Purdon agreed that there was an obligation to report anything which may have had an effect on the horse’s performance however in his view this “rub” had “zero effect”.
When asked if the horse had received any treatment during the week, Mr Purdon responded, “What would it need to be treated for?” and “Course it had no treatment, it only had a bit of blue put on it”.
A completed certificate by race day veterinarian Mr M K Brightwell following an examination of ESCAPEE post-race read:
“Large area rubbed raw below right hip. Had this been noted pre-race highly likely ESCAPEE would have been scratched on aesthetic grounds. Highly likely this lesion would have affected performance”.
The committee was provided with coloured photographs showing ESCAPEE’s offside rump area, pre and post-race and of the false shaft used during the race.
Under cross examination by Mr Branch, Mr McIntyre relayed the following:
In respect to rule 305(a), it was his opinion the rule was quite clear that an obligation existed for the trainer to report any condition present that may affect the horse’s performance. He agreed that it was the trainer who had to make the decision as to whether the condition may affect the horse’s performance.
Mr Purdon made the call not to advise the Stewards because he didn’t think it was going to affect the performance of ESCAPEE, and therefore didn’t have to tell the Stewards under the rules. Mr McIntyre confirmed the Stewards had to convince the committee that Mr Purdon’s decision not to advise was not justified.
Mr Purdon had consistently said throughout that there was no effect on the horse’s performance and that he is a leading trainer and fine horseman.
He confirmed that Mr Purdon had told him ESCAPEE was exhibiting no signs of soreness and that Mr Purdon was the best qualified person to make the call.
On the basis of Miss Fleming’s interview, which identified a problem on Tuesday, and further on Thursday when ESCAPEE was brought in off the track, Mr Purdon was concerned enough to remove the gaiting bar and replace it with a boring pole in an attempt to have it looking its best for Saturday. Following the Thursday training, Miss Fleming had noticed blood present, with the extent of the injuries being very close to that post-race on the 2nd June.
No one had denied there was a condition present. Based on this, it was a matter of whether that condition was likely to affect the horse - the charge concerned the horse’s condition one hour before the race.
He confirmed that the obligation to report under this rule, ceased one hour before the race.
Mr McIntyre confirmed that none of the Stewards had noticed the condition on ESCAPEE’s offside hip prior to the race.
From looking at the pre and post-race photographs Mr McIntyre confirmed in his expert opinion that the rub had deteriorated. However, he believed the horse had not been placed under much pressure during its warm up, and therefore most of the damage was done when it was placed in a painful position when being rubbed by the gaiting strap, which caused the horse to gallop. As a result the horse was uncontrollable.
Evidence for Defendant:
Mr Branch produced the following briefs of evidence, which were accepted by consent.
Trevor Casey, owner of ESCAPEE, described visiting the stables on the Friday pre-race and noted there was a small amount of hair missing from her offside thigh area. When he asked about it, he was told that she had rubbed it against the gaiting bar. He gave further detail about the purchase of a new Spider sulky that has been modified to suit ESCAPEE when she races. This sulky is still enroute from the manufacturer.
Dr I Bridge veterinarian to Mr Purdon, visited the stables during the week prior to June 2nd, following a request from Mr Purdon to inspect another horse. Neither Mr Purdon nor stable foreman Mr Hollis, sought his advice on ESCAPEE’s condition.
On Tuesday 5th June, Dr Bridge was requested by Mr Purdon, to examine ESCAPEE. He described a 25 cm x 4.5 cm smooth hairless area over the right hind quarter and flank, midway between the Ilium and Stifle which did not appear inflamed. At the centre was a 2.5 cm scab. This was consistent with previous superficial irritation of the skin. The filly appeared capable of working and racing.
Veterinarian Mr T D Montgomery, also examined ESCAPEE on the 5th June at the request of Dr Bridge, seeking an independent opinion. He took photographs of the lesions which were produced.
He found the horse exhibited no evidence of pain or discomfort when being examined.
Mr Logan Hollis, stable foreman at Mr Purdon’s Pukekohe stable, in a brief of evidence, said he was aware of a chafe in the middle of ESCAPEE’s off side rear. The chaffing had come from a gaiting strap affixed to the cart the week before 2nd June to keep ESCAPEE straight in the cart. He had no concern over the rub and if he had, he would have advised Mr Purdon. He confirmed that Miss Fleming was directly responsible for ESCAPEE and that it was her favourite horse. She never approached him about concerns with the rub.
By teleconference call, Mr Hollis was cross examined by Steward Mr Neal. He confirmed he had no concerns to the mark on ESCAPEE’s rump, but there were issues about the horse trotting straight and true. He was the foreman in charge of the day to day running directly involved with ESCAPEE. He didn’t personally look after or brush the horse. Miss Fleming was primarily in charge of ESCAPEE.
He disagreed that there was any blood present to the injury. He saw her putting aloe vera on it but never saw any blood at all.
He thought that Miss Fleming may have had a grievance over being given notice by Mr Purdon. There was no particular reason for the notice, just a drop off in staff requirements and there was no issue with her performance.
Mr Purdon, in his brief of evidence, gave background evidence of the problems ESCAPEE had with it’s racing and modifications to the cart and alterations to gear worn in an effort to improve her performance.
On Tuesday 29th May he had trained her with the planned race day gear two gaiting bars. ESCAPEE trotted well until she came off the back of the pacemakers at the 400 metre mark. She tried to go too hard and made a break, which took him about 300 metres to restrain her back to her correct gait. Following this, he noticed the gaiting bars had rubbed her on both sides, with the offside being about 3 times as large as the near side.
Upon inspection, both sides were red but the skin was unbroken. Miss Fleming applied aloe vera over the affected areas.
On Thursday 31st May, Mr Purdon trained ESCAPEE in two heats. In the first, he only put the gaiting bar on the off side as that was the side that affected her gait if she offset herself in the cart. After the first heat, she was returned to the stables and had the gaiting bar removed and replaced with a boring pole. After being worked and washed and cleaned, he examined the area. There was one area the size of a breakfast jam lid that was glazed and had nearly broken the skin.
A further examination on Thursday afternoon satisfied him that there was no sign of pain or discomfort.
On race day, the area was darker, not red, but there was minor breaking of the skin in the affected area when he sprinted her in the warm up.
Under cross examination by Mr McIntyre, Mr Purdon confirmed the rubbing first occurred on the Tuesday, when the horse was worked with two gaiting straps. On the Thursday he placed one gaiting strap on the offside, and after working the first heat, brought the horse in to remove the gaiting strap and replaced it with a boring pole which she was familiar with. He didn’t want to aggravate the rub or worsen it prior to the race.
In the race day photograph taken of ESCAPEE after the warm up, he confirmed she had broken the skin during the warm up on the offside in a small area. During the race, the horse had broken shortly after the start and then over raced, but this had nothing to do with the horse touching the offside gaiting strap when in a gallop.
Submissions for Prosecution:
In summing up, Mr McIntyre said there was no doubt that Mr Purdon was a leading trainer but even they made errors. It was clear that ESCAPEE worked on the Tuesday with gaiting straps fitted, and a rub appeared on the offside flank area.
On the Thursday following, in the first of two workouts for the day, ESCAPEE was trained with one gaiting strap fitted on the offside. Mr Purdon has obviously had enough concern to remove the gaiting strap and replace it with a boring pole in the second workout, so that the condition didn’t worsen. At that stage this should have red flagged to Mr Purdon that he was to notify the Stewards leading into the race.
Had this action been completed by Mr Purdon, it would have afforded the Stewards an opportunity to give their own veterinarian the right to examine and measure whether ESCAPEE should have started or not. They had not been afforded such an opportunity.
Submissions for Defence:
In summing up, Mr Branch told the committee is whether, in Mr Purdon’s opinion, at the time the horse went onto the track, or one hour prior, or anytime before that, there was anything which could, or may have affected the horse.
The whole idea was to manage the situation so that you never get to the point where the condition may possibly affect the horse. That’s what Mr Purdon had done. He had avoided this situation.
There were two possibilities where the Stewards might challenge Mr Purdon’s opinion. They were the presence of blood and if there was any soreness.
The presence of blood did not necessarily affect performance.
The issue is whether there was any soreness. Both Mr Purdon and Mr Hollis gave a contrary position to that of Miss Fleming on the presence of blood and soreness.
He suggested there was very little weight that could be placed on the evidence of Miss Fleming.
Following an inspection and photographs taken on the Tuesday 5th June, despite the veterinarians saying it looked bad, they said ESCAPEE could have raced again on the following Friday. While it might have looked bad on the Thursday, if they had looked at it, the vets probably would have cleared it to race. It was clearly a wound that could heal or be of no consequence in a short period of time.
He found it difficult to understand how a Stipendiary Steward failed to see the red patch of that size if he was to be close enough to read the brand.
Reasons for Decision:
The committee carefully listened to, and independently assessed, the evidence of both parties. We are satisfied of the following points:
1. Rule 305 (a) places a clear obligation on a licence holder to report to the Stipendiary Steward in writing as soon as practicable and in any event no later than one hour before the advertised starting time of a race, any condition which may affect the running of a horse in a race.
2. ESCAPEE’s performance in previous outings had resulted in Mr Purdon making certain adjustments to gear fitted to the horse in the period preceding the Harness
Racing Jewels on the 2nd June 2012.
3. On Tuesday 29th May, ESCAPEE was trained in gear including two gaiting bars, after which rubs were discovered on both sides of the horse in the flank area. This was treated with aloe vera by stable hand Miss Fleming.
4. On Thursday 31st May, ESCAPEE was trained in two heats. On the first occasion, a single gaiting bar was fitted to the offside. When returned to the stable and prior to the second heat, this gaiting bar was removed and a boring pole fitted. Following this training, the aggravation to the offside flank area had deteriorated and more aloe vera was applied by Miss Fleming.
5. On Saturday 2nd June, race day, Mr Purdon confirmed the condition was still present when gearing the horse up before racing.
6. The pre-race photograph of ESCAPEE’s offside flank area presented to the committee confirmed that this condition existed.
7. Race day veterinarian Mr Brightwell’s certificate following inspection post-race was clear. Had the lesion been inspected pre-race it was highly likely ESCAPEE would have been scratched on aesthetic grounds and further, the condition was highly likely to have affected the horse’s performance.
8. It is clear to the committee that Mr Purdon failed in his obligation as a licensed person under the New Zealand Rules of Harness Racing, to report this condition to the Stipendiary Stewards in accordance with Rule 305 (a).
Decision:
We find the charge against Mr Purdon has been established.
sumissionsforpenalty:
reasonsforpenalty:
penalty:
Submissions on Penalty:
The committee requests that the Informant provides written submissions on penalty to the Executive Officer by 5 pm Friday 10 August 2012. The Defendant will then have a further 7 (seven) days to respond with their written submissions on penalty to the Executive Officer (5 pm Friday 17 August 2012).
AJ Dooley J Holloway
Chairman Committee Member
2nd August 2012
hearing_type: Non-race day
Rules: 305(a)
Informant: Mr N McIntyre - Stipendiary Steward
JockeysandTrainer:
Otherperson:
PersonPresent: Mr R Neal - Stipendiary Steward, Mr M Branch - Representing Mr Purdon, Mr L Hollis - Stable Foreman for Mr Purdon (via teleconference call)
Respondent: Mr M Purdon - Licensed Public Trainer
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