Non Raceday Inquiry – HRNZ v AFH Hunter – 4 January 2011- Decision dated 12 January 2011

hearingid: 3e387bf65cc528e83b94f79660182249

informantnumber: 63982

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decisiondate: 31/12/2010

hearing_title: Non Raceday Inquiry - HRNZ v AFH Hunter - 4 January 2011- Decision dated 12 January 2011

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appealdecision: NO LINKED APPEAL DECISION

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Decision:

BEFORE THE JUDICIAL CONTROL AUTHORITY

UNDER THE RACING ACT 2003
AND IN THE MATTER of the New Zealand Rules of Harness Racing

BETWEEN HARNESS RACING NEW ZEALAND

Informant

AND MR HAMISH HUNTER, Public Trainer
Defendant

Information: No. 63982
Judicial Committee: Prof G Hall (Chairman), Mr D Steel (Member)
Appearing: Mr N Scott, Racecourse Inspector (for the informant)
Defendant: in person
Venue: Roxburgh Racecourse
Date of Hearing: 4 January 2011
Date of Decision: 12 January 2011
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DECISION OF JUDICIAL COMMITTEE
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[1] Mr Hunter appears before this Judicial Committee on a charge of presenting a horse to race with a prohibited substance in its system in breach of Rule 1004(1), (2) and (4).
[2] These Rules, which are preceded by the heading “Prohibited Substance Rules”, read relevantly:

(1) A horse shall be presented for a race free of prohibited substances.
(2) Where a horse is taken, or is to be taken, to a racecourse for the purpose of engaging in a race otherwise than in accordance with sub-rule (1) the trainer of the horse commits a breach of these Rules.
(4) A breach of these rules under sub-rule (2) … is committed regardless of the circumstances in which the prohibited substance came to be present in or on the horse.

[3] The penalties for a breach of these rules are set out in Rule 1004 which provides in subss (7) and (8):
(7) Every person who commits a breach of sub-rule (2) … shall be liable to:
(a) a fine not exceeding $10,000 and /or
(b) be disqualified or suspended from holding or obtaining a licence for any specific period not exceeding five years.

(8) Any horse connected with a breach of sub-rule (1) [or] (2) shall be disqualified from any race entered and/or liable to a period of disqualification not exceeding five years.

[4] Mr Hunter has admitted the breach. We thus find the charge proved.
[5] Mr Scott placed a summary of facts before this Committee, the salient features of which we now recount:

1. The defendant is the trainer of the horse FRANCO LEDGER, which was taken to the Forbury Park raceway, and correctly entered for and started in race 10 the Coach and Horses Inn/ Jeff and Colleen Young Mobile Pace at the Tuapeka Harness Racing Club’s annual race meeting held on 24 October 2010. FRANCO LEDGER won the race and earned a stake of $4,850. (exhibit B)
2. Following the running of the race, the stipendiary stewards directed that FRANCO LEDGER be post-race swabbed. The trainer accompanied the colt during the swabbing procedure. The colt was presented at the swabbing box at 5.45pm and voided urine at 5.55pm. The relevant swab card (30573) was correctly completed. (exhibit C)
3. All samples from the meeting were sealed and courier posted to the Racing Laboratory and were received on 27 October 2010 with all seals intact.
4. On the 5 November 2010 the Racing Analyst reported in writing that the post-race urine sample from FRANCO LEDGER on analysis had detected the substance Ranitidine. The Certificate of Analysis was produced as exhibit D.
5. Dr Andrew Grierson, the Chief Veterinarian consultant to Harness Racing, advised that Ranitidine is an anti-histamine that acts primarily on inhibiting basal and stimulated secretion of gastric acid in the stomach and can effect the cardio-vascular system (exhibit E). Anti-histamines are listed as prohibited substances in the Prohibited Substances Regulations issued under the Rules of Harness Racing.
6. Ranitidine is often prescribed by veterinary surgeons for trainers to treat horses with suspected stomach ulcers. It has a 48 hours withholding time.
7. On 6 November Mr Scott travelled to the stable property of Mr Hunter at Ryal Bush and carried out an interview. Mr Hunter was adamant he had never treated FRANCO LEDGER with any ulcer treatments or in fact any horses he had ever trained. He was not aware of the substance Ranitidine and had no idea how the horse may have come into contact with it.
8. Mr Hunter told Mr Scott that FRANCO LEDGER had not been off his property in the days prior to attending the Tuapeka race meeting. He said the only possible contact with the substance would have been when he stabled FRANCO LEDGER in the assigned horse-box on the course. Mr Hunter could remember looking in the feed bin, which contained a few grains in the bottom and did not see it as a problem. During the day he fed FRANCO LEDGER some of his own feed that he had brought with him to the races.
9. An examination of drugs cabinet at the Hunter stable was negative to any drug that might have been the source of the positive analysis. A later check with the stable veterinary surgeon established to Mr Scott’s satisfaction that Ranitidine had never been prescribed to any horse in Mr Hunter’s stable.
10. On his return to Dunedin, Mr Scott interviewed Mr Daryl Trainor, a licensed trainer under the Rules, who is a resident trainer on the Forbury Park racecourse. Mr Trainor was leasing horse-boxes from the Club and normally occupied the one that was assigned to Mr Hunter.
11. Mr Trainor readily admitted that he was stabling his horse SUPER SASSY in the same horse-box and was currently treating his horse with Ranitidine daily, and had been doing so for the previous 14 days.
12. Ranitidine had been prescribed by Dr Peter Gillespie, a veterinary surgeon, and was in tablet form and properly labelled. The dosage was 10 tablets crushed, mixed with molasses and poured over the evening meal. Mr Trainor then tipped the prepared feed into the permanent fixed plastic drum that was attached to the wall of the horse-box.
13. Mr Trainor said he had so treated SUPER SASSY in that box the previous night.
14. Mr Trainor said he had nine horses to feed, work and move to temporary accommodation by 9.00 am to free up boxes for visiting trainers attending the race meeting on 24 October 2010. He told Mr Scott that he usually wiped out his feed bins prior to a race meeting but he could not recall whether he had done so on that morning. He said ‘time was of the essence’ that day and he was virtually running to meet the time frame.
15. Mr Scott said the logical conclusion to draw was that FRANCO LEDGER had accessed contaminated feed left in the bin or residue sticking to the bin through the sticky molasses that the drug powder was mixed in. Mr Trainor was very apologetic that he had been a catalyst for the positive swab. On the other hand, Mr Hunter was relieved that the cause of the positive had been identified.
16. Dr Beresford, the Racing Analyst, said he could not make a prediction on the absorption of the substance in that period or the volume required. He accepted the result of the investigation might well be consistent with the explanations obtained.
17. Mr Hunter accepted that his horse may have had access to contaminated feed left in the feeder in that horse-box.

[6] We asked Mr Hunter to comment on the summary of facts. He said he agreed with the summary that Mr Scott had placed before this Committee but wished to elaborate upon it.
[7] Mr Hunter described the history of his involvement with racing at Forbury Park. He said he usually housed his horses in the tie-up stalls but because this was a day meeting, and with one horse starting in an early race and FRANCO LEDGER starting late in the day, he decided he could better care for the three horses he and his wife were bringing to the meeting by placing them in boxes. He explained because FRANCO LEDGER was a stallion, he placed him in the middle box with the geldings to either side.
[8] Mr Hunter said he checked all three feed-bins and acknowledged that he was aware there were a few grains in the feed-bin that was permanently affixed to the wall in the box in which he placed FRANCO LEDGER. He said there were so few grains, about 6 to 8 at best, he thought nothing of it and he added the feed he had brought to the course for FRANCO LEDGER to the bin. He agreed he had not wiped the feed-bin before doing this. He said he was now aware that Ranitidine had been given to Mr Trainor’s horse, together with molasses, and this would probably have stuck to the bin and FRANCO LEDGER would have licked it off. He said the only way he could have known of the presence of that substance was to physically put his hand into the bin. However, he had not thought there was a need to do this.
[9] Mr Hunter explained the lighting in the boxes was very poor and he had not seen any grain sticking to the side of the bins. He said the feed-bins were affixed to the far wall in a corner, which was the darkest place in the boxes. Mr Scott confirmed there was little natural light in the boxes and the lights themselves were very dim. So much so, that at night some trainers would affix lights to their heads to be able to work with the horses in the boxes.
[10] Mr Hunter expressed the view that had Forbury Park been good hosts, they would have ensured that there were no contaminated boxes for trainers to use. He explained it was some time after the meeting before he learnt that a resident trainer was using the boxes. He thus had given little or no thought to the possibility of contaminated feed.
[11] Mr Hunter described a life-time of involvement in the industry. He said he had grown up with horses and was now a professional trainer. He had some 27 horses on his property and this was his sole source of income. He stated he had been on numerous regional and national committees and had been a member of the Caduceus Club.
 

Submissions as to penalty
[12] Mr Scott submitted that there is no known record of a similar breach in recent times. A previous incident many years ago involved a positive analysis when a horse was stabled at the Trentham racecourse and was believed to have gained access to contaminated feed left in a feed bin. This resulted in no charge being laid but the horse was disqualified and the stake monies withheld.
[13] Although Mr Scott accepted the administration of Ranitidine was accidental, he submitted there was negligence on the part of Mr Hunter in that he did not ensure the fixed feed container was properly clean and thus that it was safe to release his horse into the horse-box. This onus, he said, must rest with the trainer who was occupying the box on raceday, in order to ensure the maintenance and ongoing integrity of the industry. Were it to be otherwise, horses racing, having gained pickings of contaminated feed, would discredit the industry in the eyes of the public.
[14] Mr Scott submitted that in considering an appropriate penalty in this case this Committee should have regard to the penalties imposed in the cases that involved trainers having administered their horses with the prohibited substance DMSO under the instructions of veterinary surgeons, which resulted in a positive analysis. In those cases the steepest penalty that had been imposed was a fine $750.
[15] Mr Scott submitted that the informant believed the appropriate starting point in fixing penalty in this case was a fine of $750.
[16] He accepted that the Judicial Committee was entitled to give credit to the defendant as follows:

• Mr Hunter co-operated fully throughout the inquiry;
• the defendant’s early admission and his agreeing to the matter being heard at the first opportunity and without the requirement of a formal hearing, thus significantly reducing any costs to the informant;
• the breach of the rule was accidental and not intentional;
• the defendant has a long association in the industry and employs several staff – but on this occasion he gave them the day off and attended to his three horses at the racecourse himself and was so fully engrossed in their welfare and preparations that he overlooked checking the feed bin;
• Mr Hunter is held in very high esteem within the industry and has not previously appeared on any charge of a serious nature;
• the stake money of $4,850 will be forfeited.
[17] Mr Hunter submitted that we consider these mitigating factors, plus the fact that he part-owned the horse and would personally lose $2,425 as a consequence of the disqualification of FRANCO LEDGER, which he accepted was inevitable.
[18] Mr Hunter said he believed he was “the innocent victim in all this”. He accepted he would lose the race, but said it was due to circumstances outside of his control. That said, he recognised it was his obligation to present the horse for racing drug free. Hence his admission of the breach. 
 

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Decision as to penalty
[19] Mr Hunter’s negligence is at the very bottom end of the scale. He simply failed to remove a few grains of feed from the feed-bin and failed to see in the poor light that some grains were sticking to the side of the bin, which may have alerted him to the fact that it was a sweet feed and in turn aroused a suspicion as to the nature of what was being fed to the horse that had previously been housed in the box.
[20] We reiterate there is no suggestion whatsoever of any deliberate administration of Ranitidine to FRANCO LEDGER. There are no aggravating factors.
[21] We have had no directly comparable cases placed before us. Consequently, we accept Mr Scott’s submission that a starting point of $750, based on his analysis of the level of penalty imposed in those cases where trainers had administered the prohibited substance DMSO to their horses under the instructions of veterinary surgeons, is appropriate.
[22] A number of the mitigating factors have been correctly identified by Mr Scott (at [16]) and we see no need to repeat these. But we additionally identify as mitigating the fact that the defendant was unaware that a resident trainer was using the box and that there was little natural light in the 40 to 50 year-old boxes to enable the defendant to identify the tiny residue in the feed bin. We are also concerned by the fact that the feed-bins are permanently affixed to the back walls of the boxes. Mr Scott believed the resident trainers had done this, as opposed to this being a deliberate decision by the Club. He explained that he had endeavoured to get the Club to remedy this in the past. He said it would then be possible to ensure that when resident trainers removed their gear from the boxes on raceday, the bins would be removed as well. Unfortunately, his efforts, he said, had been to no avail. We support Mr Scott’s actions in this regard and recommend that the new Chief Executive of the Forbury Park TC give this matter urgent attention.
[23] Mr Hunter’s life-long commitment to the industry also weighs heavily with us. Mr Hunter’s passion for the industry was very evident in his submissions. There is no need for the penalty to reflect the interests of specific deterrence but we identify the need to send a message to the industry that vigilance is necessary at all times with respect to the requirement in the Rules that horses be presented for racing free of drugs.
[24] The issue is what weight should we attach to the mitigating factors and, in particular, the unusual circumstances of the breach, the financial loss the defendant will suffer as a consequence of the disqualification of the horse, and the defendant’s unblemished record. We believe a reduction of just over one third from our $750 starting point is appropriate.
[25] We fine Mr Hunter the sum of $450.
[26] In addition, we order pursuant to Rule 1004(8) that FRANCO LEDGER be disqualified from Race 10 the Coach and Horses Inn/Jeff and Colleen Young Mobile Pace run at the Tuapeka Harness Racing Club’s meeting on 24 October 2010. We further order that the placings be amended and that the stakes money be paid out accordingly.
[27] The matter has been heard on a raceday. There is no order for costs.

Geoff Hall, Chairman
Dave Steel, Member

hearing_type: Non-race day

Rules: 4004(1), (2) and (4)

Informant: Mr N Scott - Racecourse Inspector HRNZ

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Respondent: Mr AFH Hunter

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