Non Raceday Inquiry RIU v WG Coles and MG Coles – Decision dated 23 May 2016 – Chair, Mr S Ching

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hearing_title: Non Raceday Inquiry RIU v WG Coles and MG Coles - Decision dated 23 May 2016 - Chair, Mr S Ching

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BEFORE A JUDICIAL COMMITTEE

HELD AT TIMARU

IN THE MATTER of the New Zealand Rules of Thoroughbred Racing

IN THE MATTER of Information No. A4182

BETWEEN SIMON ANDREW IRVING, Racing Investigator for the Racing Integrity Unit

Informant

AND WARWICK GORDON COLES & MELVILLE G COLES, Licensed Trainers

Respondents

Judicial Committee: S Ching, Chairman - D Jackson, Committee Member

Present: K R Williams, RIU Racing Investigator for the Informant

W G Coles and M G Coles, the Respondents

S Renault, Stipendiary Steward (Registrar)

Date of Hearing: 20 May 2016

Venue: Timaru Racecourse, Timaru

Date of Decision: 23 May 2016

DECISION OF JUDICIAL COMMITTEE

The Charge

[1] Information No. A4182 alleges that, on the 19th February 2016 at Riccarton Racecourse, being the registered trainers (in partnership) and persons in charge of the horse, presented ‘Yogi’ to the Canterbury Jockey Club for the purpose of engaging in and did engage in Race 2 - the Autumn Races Suite Package Book Now Maiden, failed to present the said horse free of the prohibited substance namely Caffeine and its metabolites, in breach of the NZTR Rule 804(2) and therefore subject to penalty imposed pursuant to Rules 804(6) and 804(7).

The Plea

[2] The information was served on Mr M & Mr W Coles on 10 May 2016. Mr W Coles and Mr M Coles had signed the Statement by the Respondents on the Information form indicating that they admitted the breach of the Rule.

[3] Mr W Coles and Mr M Coles were both present at the hearing of the Information and confirmed that they admitted the breach.

[4] The charge was found proved accordingly.

The Rules

[5] Rule 804 (2) & (6) provides as follows:

(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 have had present in its metabolism a Prohibited Substance, as defined in Part A of Prohibited Substance Regulations, the Trainer and any other 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.

(6) A Trainer of a horse commits a breach of these Rules if the Tribunal conducting an inquiry finds that the horse has had administered to it or has had present in its metabolism a Prohibited Substance as defined in Part B of Prohibited Substance Regulations. [Amended 15 May 2015]

Agreed Summary of Facts

[6] The respondents, 50-year-old Warwick Gordon Coles and his 80-year-old father Melville Coles are a licensed Class A Training Partnership under the Rules of Thoroughbred Racing New Zealand. The pair have trained in partnership since 2001 at Washdyke, Timaru although Melville now has little to do with the training operation. Warwick is also the course manager at Washdyke Racecourse.

Warwick co-owned (with his partner Jill Dennison) and trained (in partnership) the 3yo gelding ‘Yogi’ which won Race 2, the ‘Autumn Races Suite Package – Book Now’ maiden at the Canterbury Jockey Club’s meeting at Riccarton Racecourse on the 19th February 2016. ‘Yogi’ earned gross stakes money of $5000.

The horse was post-race swabbed (#111501) and on the 10th March the NZ Racing Laboratory Services (NZRLS) issued a certificate of analysis detailing the sample positive to Caffeine and its metabolites Theobromine, Theophylline and Paraxanthine. Caffeine is a xanthine alkaloid compound and is a central nervous system (CNS) stimulant. It is substance listed in the Prohibited Substance Regulations for the NZ Rules of Racing.

‘Yogi’ was sold to Australian interests a week after the win and was exported to Australia on the 04th March.

On the 16th March the Coles’ were interviewed at Warwick Coles’ property near Washdyke Racecourse. Warwick did not contest the swabbing process, could offer no explanation for the caffeine positive and was adamant that he had not administered anything to ‘Yogi’ that contained caffeine. Neither he nor his partner bet on the horse. Melville is not involved in the feeding of the horses and could not offer any insight into the possible source of the caffeine either. A friend of the Coles’ who assists with the feeding was also spoken to and he also could proffer no explanation.

Samples of ‘Yogi’s’ daily feed obtained from the feed room on the property were sent to NZRLS for analysis. Included in these samples was the Nutritech supplement ‘Equi Calma.’ Warwick stated that the ‘Equi Calma’ was the only variable fed to ‘Yogi’ and not to his other racehorse ‘Opihi Ranger’ which had won two races in December 2015, returning two negative swabs.

On the 6th April NZRLS confirmed that the ‘Equi Calma’ sample contained caffeine and this was the likely source of the positive swab.

The active ingredients listed on the ‘Equi Calma’ container label does not include caffeine or any minerals or vitamins that contain caffeine - “A supplement to provide magnesium and B complex vitamins to help calm and quieten horses and provide B group vitamins essential for strong muscles, good appetite health and vigour. Particularly recommended during periods of stress, muscle fatigue, training and when calm behaviour is important.”

On the 12th April NZRLS confirmed that a newly purchased sample of ‘Equi Calma’ sent for analysis did not contain caffeine.

Visually the two samples looked identical in colour and consistency.

When contacted, a Nutritech manager stated that the Coles’ ‘Equi Calma’ batch was manufactured in January 2009 and therefore the company no longer holds this batch retention sample. Nutritech’s position is that there is no way caffeine can enter the manufacturing process and they do not have caffeine on site for manufacturing purposes. NZRLS confirms that the level of caffeine in the sample was unlikely to be through equipment contamination.

When spoken to following the results of the investigation Warwick stated that they could not recall where or when the ‘Equi Calma’ had been purchased by Melville. He had only fed ‘Yogi’ a scoop of the supplement with his breakfast feed for less than a week leading up to the race. He did this in response to ‘Yogi’ being fractious during his trip to the Riccarton races six days prior. He does not keep any source of caffeine in his feed room and could not think of any ‘enemies’ who may have contaminated the product although he did state that his feed room was only locked 80% of the time. He still could not think of any possible source of the contamination.

Informant’s Penalty Submissions

[7] Mr Irving presented the following submissions in relation to penalty:

1. The respondents, 50-year-old Warwick Gordon Coles and his 80-year-old father Melville COLES are Licensed Class ‘A’ Trainers in partnership under the Rules of Thoroughbred Racing New Zealand.

2. The pair have trained in partnership since 2001 at Washdyke, Timaru although Melville now has little to do with the training operation. Warwick is also the course manager at Washdyke Racecourse. They have normally trained 2-4 horses at any one time.

3. The COLES’ have admitted a breach of Rule 804.2.

4. The circumstances are detailed in the attached Summary of Facts which have been agreed.

5. The penalties which may be imposed are detailed in the attached Charge Rule and Penalty Provisions Document.

6. I believe that an appropriate penalty for this breach is a $6000 fine.

7. Caffeine is a xanthine alkaloid compound and is a central nervous system (CNS) stimulant. It is substance included under Part A (1.1.7) of the Prohibited Substance Regulations of the NZ Rules of Racing.

8. The NZ Chief Racing Veterinarian Mr Andrew Grierson advises that “Caffeine is a stimulant of the methylxanthine group together with theophylline and theobromine. These act by enhancing dopamine and noradrenaline activity in the central nervous system. They also produce a generalised arousal by antagonising the adenosine receptors. Caffeine is the most potent of the group. Caffeine increases efficiency in behaviour and locomotor activity. Optimal psychomotor stimulation results in increased alertness, attentiveness and responsiveness, facilitation of learning and memory and most importantly, a decrease in perception of fatigue.”

9. Caffeine is not listed as one of the ‘Active Ingredients’ of Nutritech Equi Calma and by definition the product is “A supplement to provide magnesium and B complex vitamins to help calm and quieten horses and provide B group vitamins essential for strong muscles, good appetite health and vigour. Particularly recommended during periods of stress, muscle fatigue, training and when calm behaviour is important.”

10. Although there is no requirement to establish the cause of administration for a breach of the Prohibited Substance Rule, the RIU investigation concluded that the positive swab resulted from the use of the Nutritech Equi Calma supplement administered by Warwick Coles and that it was most likely that the Caffeine has been introduced to the product post-manufacture. Where, when and how the Caffeine was introduced is unknown.

11. Although there was no quantification of the Caffeine levels by NZRLS, they made comment that it was the most contaminated feed supplement they had ever analysed and believed it to have resulted from deliberate adulteration of the product and not equipment contaminant. The lab also surmised why a trainer would deliberately administer that quantity of caffeine to their horse and not expect to produce a positive swab.

12. It is also acknowledged that Melville COLES now has little or no input in the feeding or training operation of the partnership, however Rule 310 details that both are “deemed to be jointly and severally liable for any breach of the rules regardless of whether all Trainers in that partnership were involved in the breach.”

13. As per the JCA Penalty Guidelines effective from the 01st May 2015 the starting point for a Thoroughbred or Harness Racing first ‘Presentation’ offence is $8000.

14. There appear to be no similar fact cases since the new ‘starting point’ was adopted.

15. Under Rule 804.8 ‘Yogi’ is required to be disqualified from the race.

16. The RIU are seeking no costs.

MITIGATING FACTORS

17. It is acknowledged that the COLES’ have been fully co-operative throughout the somewhat prolonged investigation and pleaded guilty to the breach at the first opportunity.

18. Upon visual comparison the two Nutritech Equi Calma samples look exactly the same in colour and consistency i.e. no obvious brown flecks of coffee or liquid having been introduced into COLES’ product.

19. The COLES’ train another horse ‘Opihi Ranger’ (for other owners) which returned negative post-race swabs from wins at Ashburton on 18th December and Kurow on 30th December 2015. COLES stated that the only different supplement he used on ‘Yogi’ and not ‘Opihi Ranger’ was the Equi Calma.

20. Warwick COLES owned ‘Yogi’ with his partner Jill Dennison. Their loss of stake earnings from the disqualification is $5000.

21. Warwick COLES does not punt, does not have a TAB account (neither does his partner) and did not bet on ‘Yogi’.

22. ‘Yogi’ was a $3.00 favourite for the race and there was nothing unusual about his performance in respect to his form-line or to his expected performance.

23. ‘Yogi’ was sold to Australia approximately one week after the win. The Bloodstock Agent confirmed that negotiations to purchase ‘Yogi’ only commenced following the win when he contacted COLES.

24. There was no evidence of any possible source of caffeine within the COLES’ feed room.

25. Both Warwick and Melville COLES have an exemplary record in the thoroughbred industry over many years. Melville has been training for almost 30 years and Warwick was a jockey prior to partnering his father in training 15 years ago.

AGGRAVATING FACTORS

26. It is submitted that Warwick Coles can only be culpable of ‘low-level’ carelessness, failing to take proper and reasonable care by giving ‘Yogi’ a supplement that was produced in January 2009, some seven years after manufacture. No expiry date was evident on the container (only a batch number) used by COLES, however on the purchased comparison sample a ‘Best Before’ date is listed as approximately one year from purchase.

CONCLUSION

27. Given the recommended starting point of $8000, the mitigating and aggravating factors as listed and the overall circumstances considered in this case, I believe a $6000 fine is an appropriate penalty.

Submissions of the Respondent

[8] Mr W Coles presented to the Committee written submissions as follows:

1. Firstly, we have admitted to the breach of Rule 804(2) however we unknowingly did this.

2. It was with all good intentions that I used the product “Equi Calma”, which it clearly states on the label, does not contain any prohibited substances. “Equi Calma” comes with a best before date but no expiry date so should have still been safe to use.

3. We have no prohibited substances in our feed room or stables whatsoever as Mr Irving and Mr Lamb could clearly see.

4. My father and myself have been training horses for many years with Melville having trained for 56 years, not 30 years as in the informant’s penalty submissions, and I have been there by his side since the age of 13, apart from 12 months in Australia.

5. As Mr Irving has submitted, we have had an exemplary record in the thoroughbred industry for around 56 years, so what has happened to us has come as a shock to us.

6. In my opinion having the race taken off the horse and losing the stake is penalty enough as I used the product “Equi Calma” in good faith.

7. In answer to a question from the Committee, the respondents admitted that there had been breaches of security at the stables and farm, when items had been stolen in the past but that there had been no issues recently.

Penalty submissions of the Respondent

[9] Mr W Coles submitted that their exemplary record and their admission of the breach be taken into consideration when assessing penalty. He also reiterated that having the horse disqualified and having to return the stake was penalty enough in this case.

Mr Coles also provided to the Committee a written character reference from Mr W D Phiskie.

Reasons for Penalty

[10] The relevant penalty Rule is Rule 804(7) which reads as follows:

(7) A person who commits a breach of sub-Rule (2) or (3) or (4) or (5) or (6) 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.

[11] Mr Irving was not able to refer the Committee to any previous breach of Rule 804(2) with similar facts to the present case since the new JCA Penalty starting point was introduced in May 2015. However, the Committee was able to refer to RIU v B & D in a breach of this Rule in March 2015 with very similar facts and circumstances. In this case the respondent’s horse had won a race at Rotorua for a winning stake of $4,375.00 and subsequently returned a positive to a prohibited substance. In this case the integrity of the training partnership was not challenged and they were highly regarded members of the thoroughbred racing industry. The respondents admitted the breach, were very cooperative with the investigators during the investigation and it was submitted that the prohibited substance found in the horse was as a result of an unexplained contamination. The penalty in this case was a fine of $6,000.

[12] The starting point for penalty for a breach of the Prohibited Substance Rule under Rule 804(2) is provided in the JCA Penalty Guide (effective May 2015). For a first presentation offence, the Penalty Guide starting point is a fine of $8,000. The Penalty Guide provides that “the starting point is just that: movement both above and below this point may (and usually will) occur”.

[13] The Committee are required to take into consideration aggravating and mitigating factors.

Mr Irving submitted that the Respondents were only culpable of “low level” carelessness, failing to take proper and reasonable care by giving YOGI a supplement that was produced in January 2009, some seven years after manufacture.

We find that the Respondents were negligent to a degree in regard to the use of a product that was seven years old at the time and well past its use by date. It may well be possible to consider that the “Equi Calma” fed to YOGI had been contaminated a long time ago and only came to light when YOGI returned the positive swab. In addition, the respondents’ admission that the feed room was only locked 80% of the time and that there had been security breaches in the past, is again to a degree, negligent.

[14] In mitigation the Committee took into consideration the unblemished and exemplary record of the Respondents, their full co-operation throughout the investigation and their admission of the breach at the first opportunity.

[15] In adopting the JCA Penalty Guide starting point for a breach of this Rule of $8,000 the Committee determined that the aggravating factors in this case as mentioned in paragraph [13] commanded an uplift in penalty, which we set at $1000. However, in mitigation the Respondents were entitled to a discount for their unblemished, exemplary record, their co-operation throughout the investigation and their frank admission of the breach. This discount we set at $3,000.

[16] The Committee determined that a fine of $6000 was an appropriate penalty in this case.

Penalty

[17] Accordingly the training partnership of M & W Coles is fined the sum of $6000.00.

Disqualification of the Horse

[18] Following the hearing, the Committee ordered that YOGI is disqualified from the following race, effective immediately.

Canterbury Racing at Riccarton 19 February 2016, Race 2, the Autumn Races Suite Package-Book Now Maiden. The amended result is as follows:

1st  -  (2)   Minutes To Midnite
2nd -  (13) Barclay Creek
3rd  -  (8)   Iona C
4th  -  (10) Graffitti
5th  -  (14)  soma

It is ordered that stakes be paid in accordance with the amended result.

Costs

[19] The RIU did not seek any award of costs in favour of the Racing Integrity Unit and, accordingly, no order is made.

[20] The hearing of the charges took place on a race day and, in the circumstances, no order for costs is made in favour of the Judicial Control Authority.

S Ching            D Jackson

Chairman         Committee Member

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