Non Raceday Inquiry RIU v CB Ramage 16 July 2012 – Decision dated 24 July 2012
ID: JCA13715
Decision:
BEFORE THE JUDICIAL CONTROL AUTHORITY
UNDER THE RACING ACT 2003
AND IN THE MATTER of the New Zealand Rules of Harness Racing
BETWEEN RACING INTEGRITY UNIT
Informant
AND MR CHRISTOPHER BRITTON RAMAGE
Open Horseman
Respondent
Information: A4802
Judicial Committee: Prof G Hall, Chairman, Mr R McKenzie, Committee Member
Appearing: Mr M Davidson, for the informant, the respondent in person
Venue: Forbury Park Raceway
Date of Hearing: 16 July 2012
Date of Oral Decision: 16 July 2012
Date of Written Decision: 24 July 2012
_____________________________________________________________________
DECISION OF JUDICIAL COMMITTEE
_____________________________________________________________________
[1] Mr Ramage appears before this Judicial Committee on a charge of being the holder of an open horseman’s licence issued under the New Zealand Rules of Harness Racing, having been required under these rules by Racecourse Inspector Mr Barry Kitto to supply a sample of his urine before 9.55 pm on the 21 June, 2012, at the driver drug testing room at the Forbury Park racecourse, failed to provide an appropriate sample for testing in breach of rr 512(2)(b) and 514(1) of the New Zealand Rules of Harness Racing.
[2] This Committee informed Mr Ramage that he had the right to be represented by a lawyer. He said understood this and had spoken to a lawyer in the week after he had been charged. He said he was content to proceed and would represent himself.
[3] Mr Davidson produced written permission to file the information in accordance with r 1103(4)(c) from the Operations Manager of the Racing Integrity Unit, Mr M Godber, alleging a breach of r 512(2).
[4] Mr Davidson sought permission to amend the charge from one alleging a breach of r 512(2)(b) to r 512(2)(a). Mr Ramage did not object and, as we did not believe it prejudiced him in his defence of the charge, we allowed the amendment.
[5] Mr Ramage confirmed that he did not admit the charge.
Rule 512(2)(a) reads as follows:
Every horseman commits a breach of these Rules who, having been required under the Rules by a Stipendiary Steward or Racecourse Inspector or Judicial Committee to supply a sample of his blood, breath, urine, saliva or sweat (or more than one thereof), at a time and place nominated by the Stipendiary Steward or Racecourse Inspector or Judicial Committee refuses or fails:
(a) to comply with such a request….
The informant’s case
[6] Mr Davidson stated that the charge arose out of circumstances that occurred on Thursday 21 June 2012, at the Forbury Park Trotting Club’s race meeting held at the Forbury Park racecourse.
[7] The respondent is the holder of an Open Horseman’s licence, which was issued under the New Zealand Rules of Harness Racing. He had been licensed since the 2000/2001 racing season.
[8] At the race meeting on 21 June work place drug testing was carried out in accordance with rr 212(l)(g) and 226(2)(d).
[9] Mr Davidson said Mr Ramage attended this meeting and at 5.35 pm he was given a Harness Racing New Zealand drug testing notification form, which he signed, requiring him to supply a sample of his urine.
[10] At 9.55 pm that evening he had failed to provide a sample of his urine and he was charged with a breach of Rule 512(2)(b) and 514(1).
[11] At the raceday hearing Mr Ramage stated he did not admit the breach. The Judicial Committee cancelled his horseman’s licence in accordance with r 514(1) and adjourned the hearing sine die in order that Mr Ramage could take advice.
[12] Mr Davidson called Mrs Mary Hay to give evidence. She stated she was a duly registered comprehensive nurse, registered under the Nurses Act 1977, thereby being an authorised person under r 105(1) of the New Zealand Rules of Harness Racing. Her nursing registration number was 66299 with the Nursing Council of New Zealand. Her current practising certificate was valid from 1 January 2012 until 31 December 2012. She stated she had been employed in a drug testing capacity on several previous occasions.
[13] Mrs Hay said she was employed by the RIU to take urine samples at the meeting at the Forbury Park racecourse on 21 June 2012 from 18 selected horsemen and women. She worked from the specially designated work place drug testing room in the administration building at the racecourse. From 1815 hrs until 2215 hrs she took 17 urine samples from horsemen and women who had driving engagements at the race meeting. She said there were no problems and all the testing was straightforward.
[14] At 6.25 pm Racing Investigator Mr Barry Kitto introduced her to Mr Ramage at the drug testing station. Mr Ramage handed her a Harness Racing New Zealand drug testing form, a copy of which she produced as exhibit 8. Mrs Hay said Mr Ramage told her he was dehydrated and could not supply a sample of urine. She advised him to drink some water and return when he could supply a sample. Mr Ramage returned at 19.30 hrs, 21.30 hrs, 21.45 hrs to the drug testing station but stated he was unable to supply a urine sample, always saying he was dehydrated.
[15] Mrs Hay said that Mr Ramage started to argue with her as to why she would not take blood or saliva instead of urine. She said she told him, “We didn’t do that and to discuss same [sic] with Barry Kitto”. At the conclusion of driver drug testing for the evening, she said Mr Ramage had failed to supply her a sample of his urine.
[16] Mrs Hay said she was again employed to carry out work place drug testing at the Forbury Park Trotting Club’s race meeting on Friday 29 June. She stated Mr Ramage again presented a Harness Racing New Zealand drug testing notification form, which she produced as exhibit 9, at the work place drug testing room. She said Racing Investigator Mr Barry Kitto was present. Mrs Hay said Mr Ramage told her he was having trouble giving a sample. But at 17.20 pm he voided a urine sample number U118402 which was signed by Mr Ramage and Mrs Hay. This sample was sealed in his presence for forwarding to the ESR laboratory for analysis.
[17] In response to questioning by the Committee, Mrs Hay said that she had never previously encountered a person who was unable to give a sample due to dehydration. She said her experience was that the duration of a race meeting was sufficient time for a person to take on water and produce a sample. When questioned as to whether she had ever taken a sample other than urine, she said she had not.
[18] Mr Davidson also called Mr Barry Kitto to give evidence. He stated he was a Racing Investigator employed by the RIU at Dunedin.
[19] Mr Kitto said he attended the Forbury Park Trotting Club’s race meeting held at the Forbury Park racecourse on 21 June 2012. He organised work place drug testing for 18 horsemen and women who had driving engagements at this race meeting. From 18.15 hrs until 22.15 hrs 17 urine samples were taken. There were no reported problems and the testing was straightforward. Each person tested had been served with a Harness Racing New Zealand drug testing notification form to supply a sample of urine in accordance with rr 212(1)(g) and 226(2)(d).
[20] Mr Ramage was served with a notification form at 5.35 pm. He signed the form, acknowledging its receipt. Mr Ramage had driving engagements in Race 1 at 6.05 pm and Race 6 at 8.26 pm. Mr Ramage told Mr Kitto he was dehydrated and would not be able to supply a sample. Mr Kitto said he explained to the respondent that he was required to supply a sample and instructed him not to leave the racecourse without having done so. He also advised him to complete his first driving engagement before endeavouring to supply a urine sample.
[21] At 6.25 pm Mr Kitto accompanied Mr Ramage to the work place drug testing room and introduced him to the nurse on duty. At 7.55 pm Mr Ramage said to Mr Kitto he could not give a sample. Mr Kitto said he told him not to leave until he had and to supply a sample by the last race, which was at 9.55 pm. Mr Ramage said he was dehydrated and could not supply a sample. Mr Kitto said he asked him why he was dehydrated as he was not a jockey. Mr Ramage said he was always dehydrated. Mr Kitto told him that dehydrating served no purpose in Harness Racing and that he did not accept his explanation.
[22] Mr Kitto said at 9 pm he again advised Mr Ramage that he was required to give a urine sample and to report to him at 9.55 pm and not to leave the racecourse without doing so. Mr Kitto spoke with Mr Ramage at 9.56 pm outside the drug testing station. The respondent said he could not supply a sample. Mr Kitto said he then laid information No A4802 alleging a breach of rr 512(2)(b) and 514(1).
[23] On 29 June 2012, Mr Ramage attended the Forbury Park Trotting Club’s race meeting at the Forbury Park racecourse. Mr Kitto said the respondent advised him that he could give a urine sample. At 5 pm he signed a Harness Racing New Zealand drug testing notification form and Mr Kitto accompanied him into the drug testing room. At 5.20 pm the respondent voided urine after complaining he was unable to supply a sample. The sample was packaged and sealed by the nurse. Mr Kitto forwarded the sample U118402 to the ESR for analysis. They reported the sample was negative for drugs and the ESR report was produced as exhibit 11.
[24] When questioned by the respondent, Mr Kitto explained that he was intending to arrange for the respondent to give a sample early the next week after the failure to provide a sample. But this was the week of very inclement weather in the south and that had not proved possible. He agreed, however, that the respondent had volunteered to give a sample at that time.
[25] This Committee also questioned Mr Kitto as to whether he had previously encountered a driver who was unable to give a sample due to dehydration. He said his experience was the same as that of Mrs Hay in that the duration of a race meeting had proved to be sufficient time for a driver to take on water and produce a sample. He had been involved in testing since 1998 and had never had a driver who was unable to give a sample. When questioned as to whether he had ever required a sample other than urine, he said he had not.
The respondent’s case
[26] Mr Ramage said he accepted the evidence of the two witnesses as to what had occurred on the night, although he emphasised he had offered to give blood when it became apparent to him that he would be unable to provide a urine sample.
[27] The respondent explained that he had been a jockey and was used to wasting before riding. He said his practice had not changed when he moved from Thoroughbreds to Standardbreds. He believed the lighter a driver was the better a Standardbred horse would perform. He stated he could not understand why this was not accepted within the industry and he believed that trainers in time would come to understand the advantage a lighter driver has over a heavier one.
[28] Mr Ramage said he would starve himself for 3 or 4 days before a meeting and would only use water to rinse out his month. Wasting was a means he used to focus himself on the task at hand. He said he had drunk two coffees and water from the tap but still could not give a sample on the night. He remembered going to the toilet in Milton on the way to the course.
[29] The respondent also explained that he found it very difficult, if not impossible, to urinate in front of other people. He said he had always had this problem but had never sought medical advice. He just waited for others to urinate if he was in a public toilet. This was the first time he had ever been asked to give a urine sample and he said his anxiety was accentuated by the fact that the nurse was a female. He questioned whether a horsewoman would be asked to urinate in front of a male nurse. He accepted he had urinated as required on 29 June but said this was only after perseverance despite the fact that he was “busting”.
[30] Mr Ramage also explained that he had offered to give blood to the nurse and had told Mr Kitto this on the night. When questioned as to this, Mr Kitto accepted the respondent had done so but both he and the nurse had explained to him that he had to give a urine sample not blood. Mr Ramage said this practice was not only unfair but was “draconian”. He said the rules needed to be changed.
[31] Mr Ramage stated that he believed he had a right to give blood. He referred to the copy of the Application for the Renewal of Licence (exhibit A), which he had signed. He said it referred in the alternative to five different means of giving a sample: viz urine, blood, breath, saliva or sweat. He said he believed he a right to choose which type of sample he provided, and he had chosen to give blood on the night. However, both the nurse and Mr Kitto had refused to allow him to do this.
[32] In summing up, Mr Davidson said that the RIU had the right to demand any one of five types of samples provided in the rules, although in his experience, it was always urine. He believed that this was because the ESR preferred this, as it was the best “vehicle for analysis”. Urine was the request that had been made of the respondent on the night in question, and the respondent had failed to give a sample.
[33] Mr Davidson pointed out that the respondent had had 4 hours 20 minutes to provide a sample. On 29 June the demand had been made of Mr Ramage at 5 pm and he had urinated by 5.20 pm. He questioned whether the difficulties the respondent expressed with urinating in public were exaggerated.
[34] Mr Ramage reiterated he had been unable to supply a urine sample as he was both dehydrated and unable to urinate in public, and that he had the right to give blood.
Decision
[35] We accept the informant’s submission that the RIU has the right to demand any one of five types of samples, as provided in the rules. We are told that it is always urine and neither member of this Committee has any experience of blood, breath, saliva or sweat being required, despite provision therefor in the rules. A sample of urine was the request that was made of the respondent on the night in question, and the respondent failed to provide a sample.
[36] Mr Ramage has said he was dehydrated and that this is a usual occurrence on raceday due to his practice of wasting before driving. We see no reason not to accept the respondent’s statement that he was dehydrated, however, there was a period of 4 hours 20 minutes in which he could have taken on sufficient water to permit his being able to produce a sample.
[37] Mr Ramage’s statement that he has difficulty in urinating in public (known as “shy bladder syndrome” or paruresis) was not supported by any medical or psychological evidence. We note that there is no “reasonable excuse” provision in the rules and it may be that even were a respondent able to establish on the balance of probabilities that he or she suffered from this condition, it may not provide a defence under the rules as presently written. However, we do not need to finally decide that point, and we expressly refrain from so doing.
[38] We are satisfied the elements of the charge are proved. A requirement pursuant to r 226 was made of the respondent on the evening in question to provide a urine sample. After a period of 4 hours 20 minutes Mr Ramage failed to comply with this request.
[39] The respondent states that he should be able to provide blood. However, the rules do not give the licence-holder the right to choose the manner in which he or she provides the sample. On the occasion in issue, the RIU, through the actions of Mr Kitto, stipulated that the sample that was to be provided was urine, so that was the sample that the respondent was to supply. As we have found, he did not.
[40] Mr Ramage has submitted that he was dehydrated and has difficulty in urinating in front of other people. Neither of these matters provides a defence to the charge, which we view as being one of strict liability.
[41] We find the charge proved.
Penalty:
[42] Mr Davidson produced the respondent’s record, which was clear under this rule. He acknowledged credit was to be given for this. He emphasised that work place drug testing in harness racing was for the protection of the integrity of harness racing and to provide a safe working environment for horsemen and horses.
[43] Mr Davidson stated that the circumstances in HRNZ v K (2011) were very similar to those in this case. The penalty in that case was 9 months’ suspension and a $400 fine. (As the matter was determined on race night there were no costs.) He submitted that this was the appropriate penalty for Mr Ramage.
[44] Mr Ramage submitted that no penalty should be imposed, as he had done nothing wrong. He emphasised he was always willing to give blood.
[45] When questioned as to his driving commitments, Mr Ramage explained he only drove for Mr Lynch who had 8 horses in his stable at the present time. He said he helped prepare these horses and would drive for Mr Lynch when required. He added, however, that sometimes he would not drive these horses, particularly if they were training well and it was thought that they would benefit from a more experienced driver. He said he would usually have a couple of drives whenever he attended a meeting.
[46] We agree with Mr Davidson that the circumstances in HRNZ v K are very similar to those here. Mr K only drove infrequently; as does Mr Ramage, who has had 256 drives since being licensed as a Graduation Driver in 1997/8, including 20 this season, 26 the last season and 13 the one before that. K also had a clear record under the rule. One point of difference is that K refused to attempt to provide a sample, whereas the respondent tried on 3 occasions to do so, but could not.
[47] There is a need to hold the respondent accountable for his actions and to deter other drivers from refusing to provide a sample. Mr Davidson is correct when he states we will never know whether or not the respondent had a drug in his system. Furthermore, we agree with his submission that work place drug testing in harness racing is necessary to protect the integrity of harness racing and to provide a safe working environment for horsemen, women and horses. This matter is reflected in our penalty.
[48] We find that HRNZ v K is a very useful guide to the penalty in this case and we similarly impose a 9-month suspension on Mr Ramage. The small factual difference between the cases with respect to attempts to provide a sample, and recognition of the respondent’s financial circumstances lead us to the view that a fine is not necessary in this case.
[49] Mr Davidson submitted that costs of $150 and $74.40 were appropriate to recompense Mrs Hay who had had to take a half day’s leave from her normal day-time nursing job, and to cover the expense of analysis, respectively. The RIU did not seek costs but he said an award in favour of the JCA was appropriate.
[50] We agree the respondent should pay the amounts of $150 and $74.40, together with approximately half of the JCA costs, which are over $700. We order costs in the sum of 574.40, which includes the sum of $350 to the JCA.
Appeal Decision: NO LINKED APPEAL DECISION
Decision Date: 24/07/2012
Publish Date: 24/07/2012
JCA Decision Fields (raw)
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Data from these fields should be mapped appropriately to display amongst the standard fields above; please make note of any values below that are missing in the above standard fields but should be there.
hearingid: 5ba3425ddd3a34e0ee2ffd16e37f6002
informantnumber: A4802
horsename:
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startdate: no date provided
newcharge:
plea:
penaltyrequired:
decisiondate: 24/07/2012
hearing_title: Non Raceday Inquiry RIU v CB Ramage 16 July 2012 - Decision dated 24 July 2012
charge:
facts:
appealdecision: NO LINKED APPEAL DECISION
isappeal:
submissionsfordecision:
reasonsfordecision:
Decision:
BEFORE THE JUDICIAL CONTROL AUTHORITY
UNDER THE RACING ACT 2003
AND IN THE MATTER of the New Zealand Rules of Harness Racing
BETWEEN RACING INTEGRITY UNIT
Informant
AND MR CHRISTOPHER BRITTON RAMAGE
Open Horseman
Respondent
Information: A4802
Judicial Committee: Prof G Hall, Chairman, Mr R McKenzie, Committee Member
Appearing: Mr M Davidson, for the informant, the respondent in person
Venue: Forbury Park Raceway
Date of Hearing: 16 July 2012
Date of Oral Decision: 16 July 2012
Date of Written Decision: 24 July 2012
_____________________________________________________________________
DECISION OF JUDICIAL COMMITTEE
_____________________________________________________________________
[1] Mr Ramage appears before this Judicial Committee on a charge of being the holder of an open horseman’s licence issued under the New Zealand Rules of Harness Racing, having been required under these rules by Racecourse Inspector Mr Barry Kitto to supply a sample of his urine before 9.55 pm on the 21 June, 2012, at the driver drug testing room at the Forbury Park racecourse, failed to provide an appropriate sample for testing in breach of rr 512(2)(b) and 514(1) of the New Zealand Rules of Harness Racing.
[2] This Committee informed Mr Ramage that he had the right to be represented by a lawyer. He said understood this and had spoken to a lawyer in the week after he had been charged. He said he was content to proceed and would represent himself.
[3] Mr Davidson produced written permission to file the information in accordance with r 1103(4)(c) from the Operations Manager of the Racing Integrity Unit, Mr M Godber, alleging a breach of r 512(2).
[4] Mr Davidson sought permission to amend the charge from one alleging a breach of r 512(2)(b) to r 512(2)(a). Mr Ramage did not object and, as we did not believe it prejudiced him in his defence of the charge, we allowed the amendment.
[5] Mr Ramage confirmed that he did not admit the charge.
Rule 512(2)(a) reads as follows:
Every horseman commits a breach of these Rules who, having been required under the Rules by a Stipendiary Steward or Racecourse Inspector or Judicial Committee to supply a sample of his blood, breath, urine, saliva or sweat (or more than one thereof), at a time and place nominated by the Stipendiary Steward or Racecourse Inspector or Judicial Committee refuses or fails:
(a) to comply with such a request….
The informant’s case
[6] Mr Davidson stated that the charge arose out of circumstances that occurred on Thursday 21 June 2012, at the Forbury Park Trotting Club’s race meeting held at the Forbury Park racecourse.
[7] The respondent is the holder of an Open Horseman’s licence, which was issued under the New Zealand Rules of Harness Racing. He had been licensed since the 2000/2001 racing season.
[8] At the race meeting on 21 June work place drug testing was carried out in accordance with rr 212(l)(g) and 226(2)(d).
[9] Mr Davidson said Mr Ramage attended this meeting and at 5.35 pm he was given a Harness Racing New Zealand drug testing notification form, which he signed, requiring him to supply a sample of his urine.
[10] At 9.55 pm that evening he had failed to provide a sample of his urine and he was charged with a breach of Rule 512(2)(b) and 514(1).
[11] At the raceday hearing Mr Ramage stated he did not admit the breach. The Judicial Committee cancelled his horseman’s licence in accordance with r 514(1) and adjourned the hearing sine die in order that Mr Ramage could take advice.
[12] Mr Davidson called Mrs Mary Hay to give evidence. She stated she was a duly registered comprehensive nurse, registered under the Nurses Act 1977, thereby being an authorised person under r 105(1) of the New Zealand Rules of Harness Racing. Her nursing registration number was 66299 with the Nursing Council of New Zealand. Her current practising certificate was valid from 1 January 2012 until 31 December 2012. She stated she had been employed in a drug testing capacity on several previous occasions.
[13] Mrs Hay said she was employed by the RIU to take urine samples at the meeting at the Forbury Park racecourse on 21 June 2012 from 18 selected horsemen and women. She worked from the specially designated work place drug testing room in the administration building at the racecourse. From 1815 hrs until 2215 hrs she took 17 urine samples from horsemen and women who had driving engagements at the race meeting. She said there were no problems and all the testing was straightforward.
[14] At 6.25 pm Racing Investigator Mr Barry Kitto introduced her to Mr Ramage at the drug testing station. Mr Ramage handed her a Harness Racing New Zealand drug testing form, a copy of which she produced as exhibit 8. Mrs Hay said Mr Ramage told her he was dehydrated and could not supply a sample of urine. She advised him to drink some water and return when he could supply a sample. Mr Ramage returned at 19.30 hrs, 21.30 hrs, 21.45 hrs to the drug testing station but stated he was unable to supply a urine sample, always saying he was dehydrated.
[15] Mrs Hay said that Mr Ramage started to argue with her as to why she would not take blood or saliva instead of urine. She said she told him, “We didn’t do that and to discuss same [sic] with Barry Kitto”. At the conclusion of driver drug testing for the evening, she said Mr Ramage had failed to supply her a sample of his urine.
[16] Mrs Hay said she was again employed to carry out work place drug testing at the Forbury Park Trotting Club’s race meeting on Friday 29 June. She stated Mr Ramage again presented a Harness Racing New Zealand drug testing notification form, which she produced as exhibit 9, at the work place drug testing room. She said Racing Investigator Mr Barry Kitto was present. Mrs Hay said Mr Ramage told her he was having trouble giving a sample. But at 17.20 pm he voided a urine sample number U118402 which was signed by Mr Ramage and Mrs Hay. This sample was sealed in his presence for forwarding to the ESR laboratory for analysis.
[17] In response to questioning by the Committee, Mrs Hay said that she had never previously encountered a person who was unable to give a sample due to dehydration. She said her experience was that the duration of a race meeting was sufficient time for a person to take on water and produce a sample. When questioned as to whether she had ever taken a sample other than urine, she said she had not.
[18] Mr Davidson also called Mr Barry Kitto to give evidence. He stated he was a Racing Investigator employed by the RIU at Dunedin.
[19] Mr Kitto said he attended the Forbury Park Trotting Club’s race meeting held at the Forbury Park racecourse on 21 June 2012. He organised work place drug testing for 18 horsemen and women who had driving engagements at this race meeting. From 18.15 hrs until 22.15 hrs 17 urine samples were taken. There were no reported problems and the testing was straightforward. Each person tested had been served with a Harness Racing New Zealand drug testing notification form to supply a sample of urine in accordance with rr 212(1)(g) and 226(2)(d).
[20] Mr Ramage was served with a notification form at 5.35 pm. He signed the form, acknowledging its receipt. Mr Ramage had driving engagements in Race 1 at 6.05 pm and Race 6 at 8.26 pm. Mr Ramage told Mr Kitto he was dehydrated and would not be able to supply a sample. Mr Kitto said he explained to the respondent that he was required to supply a sample and instructed him not to leave the racecourse without having done so. He also advised him to complete his first driving engagement before endeavouring to supply a urine sample.
[21] At 6.25 pm Mr Kitto accompanied Mr Ramage to the work place drug testing room and introduced him to the nurse on duty. At 7.55 pm Mr Ramage said to Mr Kitto he could not give a sample. Mr Kitto said he told him not to leave until he had and to supply a sample by the last race, which was at 9.55 pm. Mr Ramage said he was dehydrated and could not supply a sample. Mr Kitto said he asked him why he was dehydrated as he was not a jockey. Mr Ramage said he was always dehydrated. Mr Kitto told him that dehydrating served no purpose in Harness Racing and that he did not accept his explanation.
[22] Mr Kitto said at 9 pm he again advised Mr Ramage that he was required to give a urine sample and to report to him at 9.55 pm and not to leave the racecourse without doing so. Mr Kitto spoke with Mr Ramage at 9.56 pm outside the drug testing station. The respondent said he could not supply a sample. Mr Kitto said he then laid information No A4802 alleging a breach of rr 512(2)(b) and 514(1).
[23] On 29 June 2012, Mr Ramage attended the Forbury Park Trotting Club’s race meeting at the Forbury Park racecourse. Mr Kitto said the respondent advised him that he could give a urine sample. At 5 pm he signed a Harness Racing New Zealand drug testing notification form and Mr Kitto accompanied him into the drug testing room. At 5.20 pm the respondent voided urine after complaining he was unable to supply a sample. The sample was packaged and sealed by the nurse. Mr Kitto forwarded the sample U118402 to the ESR for analysis. They reported the sample was negative for drugs and the ESR report was produced as exhibit 11.
[24] When questioned by the respondent, Mr Kitto explained that he was intending to arrange for the respondent to give a sample early the next week after the failure to provide a sample. But this was the week of very inclement weather in the south and that had not proved possible. He agreed, however, that the respondent had volunteered to give a sample at that time.
[25] This Committee also questioned Mr Kitto as to whether he had previously encountered a driver who was unable to give a sample due to dehydration. He said his experience was the same as that of Mrs Hay in that the duration of a race meeting had proved to be sufficient time for a driver to take on water and produce a sample. He had been involved in testing since 1998 and had never had a driver who was unable to give a sample. When questioned as to whether he had ever required a sample other than urine, he said he had not.
The respondent’s case
[26] Mr Ramage said he accepted the evidence of the two witnesses as to what had occurred on the night, although he emphasised he had offered to give blood when it became apparent to him that he would be unable to provide a urine sample.
[27] The respondent explained that he had been a jockey and was used to wasting before riding. He said his practice had not changed when he moved from Thoroughbreds to Standardbreds. He believed the lighter a driver was the better a Standardbred horse would perform. He stated he could not understand why this was not accepted within the industry and he believed that trainers in time would come to understand the advantage a lighter driver has over a heavier one.
[28] Mr Ramage said he would starve himself for 3 or 4 days before a meeting and would only use water to rinse out his month. Wasting was a means he used to focus himself on the task at hand. He said he had drunk two coffees and water from the tap but still could not give a sample on the night. He remembered going to the toilet in Milton on the way to the course.
[29] The respondent also explained that he found it very difficult, if not impossible, to urinate in front of other people. He said he had always had this problem but had never sought medical advice. He just waited for others to urinate if he was in a public toilet. This was the first time he had ever been asked to give a urine sample and he said his anxiety was accentuated by the fact that the nurse was a female. He questioned whether a horsewoman would be asked to urinate in front of a male nurse. He accepted he had urinated as required on 29 June but said this was only after perseverance despite the fact that he was “busting”.
[30] Mr Ramage also explained that he had offered to give blood to the nurse and had told Mr Kitto this on the night. When questioned as to this, Mr Kitto accepted the respondent had done so but both he and the nurse had explained to him that he had to give a urine sample not blood. Mr Ramage said this practice was not only unfair but was “draconian”. He said the rules needed to be changed.
[31] Mr Ramage stated that he believed he had a right to give blood. He referred to the copy of the Application for the Renewal of Licence (exhibit A), which he had signed. He said it referred in the alternative to five different means of giving a sample: viz urine, blood, breath, saliva or sweat. He said he believed he a right to choose which type of sample he provided, and he had chosen to give blood on the night. However, both the nurse and Mr Kitto had refused to allow him to do this.
[32] In summing up, Mr Davidson said that the RIU had the right to demand any one of five types of samples provided in the rules, although in his experience, it was always urine. He believed that this was because the ESR preferred this, as it was the best “vehicle for analysis”. Urine was the request that had been made of the respondent on the night in question, and the respondent had failed to give a sample.
[33] Mr Davidson pointed out that the respondent had had 4 hours 20 minutes to provide a sample. On 29 June the demand had been made of Mr Ramage at 5 pm and he had urinated by 5.20 pm. He questioned whether the difficulties the respondent expressed with urinating in public were exaggerated.
[34] Mr Ramage reiterated he had been unable to supply a urine sample as he was both dehydrated and unable to urinate in public, and that he had the right to give blood.
Decision
[35] We accept the informant’s submission that the RIU has the right to demand any one of five types of samples, as provided in the rules. We are told that it is always urine and neither member of this Committee has any experience of blood, breath, saliva or sweat being required, despite provision therefor in the rules. A sample of urine was the request that was made of the respondent on the night in question, and the respondent failed to provide a sample.
[36] Mr Ramage has said he was dehydrated and that this is a usual occurrence on raceday due to his practice of wasting before driving. We see no reason not to accept the respondent’s statement that he was dehydrated, however, there was a period of 4 hours 20 minutes in which he could have taken on sufficient water to permit his being able to produce a sample.
[37] Mr Ramage’s statement that he has difficulty in urinating in public (known as “shy bladder syndrome” or paruresis) was not supported by any medical or psychological evidence. We note that there is no “reasonable excuse” provision in the rules and it may be that even were a respondent able to establish on the balance of probabilities that he or she suffered from this condition, it may not provide a defence under the rules as presently written. However, we do not need to finally decide that point, and we expressly refrain from so doing.
[38] We are satisfied the elements of the charge are proved. A requirement pursuant to r 226 was made of the respondent on the evening in question to provide a urine sample. After a period of 4 hours 20 minutes Mr Ramage failed to comply with this request.
[39] The respondent states that he should be able to provide blood. However, the rules do not give the licence-holder the right to choose the manner in which he or she provides the sample. On the occasion in issue, the RIU, through the actions of Mr Kitto, stipulated that the sample that was to be provided was urine, so that was the sample that the respondent was to supply. As we have found, he did not.
[40] Mr Ramage has submitted that he was dehydrated and has difficulty in urinating in front of other people. Neither of these matters provides a defence to the charge, which we view as being one of strict liability.
[41] We find the charge proved.
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[42] Mr Davidson produced the respondent’s record, which was clear under this rule. He acknowledged credit was to be given for this. He emphasised that work place drug testing in harness racing was for the protection of the integrity of harness racing and to provide a safe working environment for horsemen and horses.
[43] Mr Davidson stated that the circumstances in HRNZ v K (2011) were very similar to those in this case. The penalty in that case was 9 months’ suspension and a $400 fine. (As the matter was determined on race night there were no costs.) He submitted that this was the appropriate penalty for Mr Ramage.
[44] Mr Ramage submitted that no penalty should be imposed, as he had done nothing wrong. He emphasised he was always willing to give blood.
[45] When questioned as to his driving commitments, Mr Ramage explained he only drove for Mr Lynch who had 8 horses in his stable at the present time. He said he helped prepare these horses and would drive for Mr Lynch when required. He added, however, that sometimes he would not drive these horses, particularly if they were training well and it was thought that they would benefit from a more experienced driver. He said he would usually have a couple of drives whenever he attended a meeting.
[46] We agree with Mr Davidson that the circumstances in HRNZ v K are very similar to those here. Mr K only drove infrequently; as does Mr Ramage, who has had 256 drives since being licensed as a Graduation Driver in 1997/8, including 20 this season, 26 the last season and 13 the one before that. K also had a clear record under the rule. One point of difference is that K refused to attempt to provide a sample, whereas the respondent tried on 3 occasions to do so, but could not.
[47] There is a need to hold the respondent accountable for his actions and to deter other drivers from refusing to provide a sample. Mr Davidson is correct when he states we will never know whether or not the respondent had a drug in his system. Furthermore, we agree with his submission that work place drug testing in harness racing is necessary to protect the integrity of harness racing and to provide a safe working environment for horsemen, women and horses. This matter is reflected in our penalty.
[48] We find that HRNZ v K is a very useful guide to the penalty in this case and we similarly impose a 9-month suspension on Mr Ramage. The small factual difference between the cases with respect to attempts to provide a sample, and recognition of the respondent’s financial circumstances lead us to the view that a fine is not necessary in this case.
[49] Mr Davidson submitted that costs of $150 and $74.40 were appropriate to recompense Mrs Hay who had had to take a half day’s leave from her normal day-time nursing job, and to cover the expense of analysis, respectively. The RIU did not seek costs but he said an award in favour of the JCA was appropriate.
[50] We agree the respondent should pay the amounts of $150 and $74.40, together with approximately half of the JCA costs, which are over $700. We order costs in the sum of 574.40, which includes the sum of $350 to the JCA.
hearing_type: Non-race day
Rules: 5512(2)(b) and 514(1)
Informant: RIU
JockeysandTrainer:
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Respondent: Mr C Ramage - Open Horseman
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