Non Raceday Inquiry RIU v K N Larsen – Reserved Decision dated 16 January 2017 – Chair, Mr M McKechnie

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decisiondate: 17/01/2017

hearing_title: Non Raceday Inquiry RIU v K N Larsen - Reserved Decision dated 16 January 2017 - Chair, Mr M McKechnie

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Decision:

BEFORE A NON RACEDAY JUDICIAL COMMITTEE

IN THE MATTER of the New Zealand Rules of

Harness Racing

BETWEEN

RACING INTEGRITY UNIT (the RIU)

Christopher John Allison

Racing Investigator

INFORMANT

AND

Kirk Neilson LARSEN, Public Trainer/Open Horseman

RESPONDENT

HEARING AT ALEXANDRA PARK AUCKLAND

16 DAY OF DECEMBER 2016

RESERVED DECISION OF NON-RACEDAY JUDICIAL COMMITTEE

DATED THIS 16 DAY OF JANUARY 2017

Mr Murray McKechnie, Chairman

Mr Tangi Utikere, Member

Mr Christopher Lange, Counsel for Racing Integrity Unit

Mr Christopher Allison, Informant

Mr Kirk Larsen

1. INTRODUCTION

1.1 Mr Larsen is a public trainer and open horseman based in Invercargill. On 23 June 2016 he entered the horse MELINA LOWE in Race 8 at the Forbury Park Trotting Club Meeting held in Dunedin. The horse won the race. It was short in the market and paid $4.00 to win and $1.20 for a place. Subsequently the horse tested positive for the prohibited substance Ketoprofen.

1.2 At an earlier telephone conference before the Committee on the 2 December 2016 Mr Larsen indicated a plea of guilty and that was recorded at that time.

1.3 A summary of facts was prepared by Mr Allison and that is attached to this decision (4 pages).

1.4 The Committee considered that it was appropriate to hear the case against Mr Larsen at the same time as the case against Messrs Robert Dunn, John Dunn and Craig Smith. Those three (3) licenced persons were also charged as a result of events which occurred at Forbury Park Raceway on 23 June 2016. The Committee heard penalty submissions in relation to Mr Larsen and then in relation to Messrs Dunn and Mr Smith at Alexandra Park Raceway in Auckland on 16 December. Mr Larsen had filed detailed and helpful written submissions. These were supported by extensive references. These established very plainly that Mr Larsen is a highly respected member of the harness racing fraternity in the South Island.

1.5 It was agreed that Mr Larsen could attend the sentencing hearing by telephone link and that was arranged.

1.6 Mr Lange counsel for Harness Racing New Zealand (HRNZ) is domiciled in Christchurch and it was agreed that he too could attend the hearing by telephone link. Mr Lange had prepared and filed detailed and measured submissions as to penalty. These have been carefully considered by the Committee.

2. THE POSITION TAKEN BY MR LARSEN

2.1 Ketoprofen is an anti-inflammatory medication. It is permitted when prescribed by a veterinarian. It is administered by intravenous injection. It is a prohibited substance under the New Zealand Rules of Harness Racing. There is a withholding period recommended by the veterinary profession. This is something beyond four (4) days: the exact withholding period seems a little uncertain. A number of licenced trainers treat their horses with Ketoprofen. It was Mr Larsen’s position, supported in unequivocal terms by his veterinary Dr Brendan Bell, that Ketoprofen has never been part of the treatment regime adopted for horses under Mr Larsen’s care. Mr Larsen adamantly denies administering any Ketoprofen to MELINA LOWE and told the Committee that he has never used that drug.

2.2 Mention was made earlier of Messrs Robert and John Dunn and Mr Craig Smith. For a comprehensive understanding of the events that occurred on 23 June 2016 at Forbury Park both this decision and the decision in relation to Messrs Dunn and Mr Smith should be read together. Presently it is sufficient to record that MELINA LOWE was stabled at Forbury Park alongside a number of horses from the Dunn stable. It has for many years been the practice of the Dunn Stable to treat their horses with Ketoprofen following their race day engagement. The Committee was told that the administration of Ketoprofen does not take place until after the completion of the last race. As earlier recorded MELINA LOWE won Race 8.

2.3 In answer to questions from the Committee it was established that horses from the Dunn stable started in Races 2, 5, 7, 10 & 11. Horses from Mr Larsen’s stable started in Races 5, 7 & 8.

2.4 The Committee accepts the advice of Mr Larsen and his veterinarian that Ketoprofen has no place in his stable. As to Mr Larsen’s general character and integrity that is demonstrated by the extensive references put before the Committee. Further, attention is drawn to the last paragraph in the summary of facts.

2.5 The Committee was told that there were no irregular or unusual betting patterns on Race 8 at Forbury Park on 23 June 2016.

2.6 In his detailed written submissions Mr Larsen advanced the explanation that MELINA LOWE was administered Ketoprofen as a result of an inadvertent mistake by persons at Forbury Park not associated with his stable. There is no direct evidence to support his. The decision of this Committee involving Messrs Dunn and Mr Smith records how Ketoprofen came to be with the horses they had stabled at Forbury Park and that this prohibited substance was present without the approval of a stipendiary steward or member of the RIU. As already recorded the Dunn horses and the Larsen horses were stabled essentially “side by side”. Neither Mr Robert Dunn nor Mr John Dunn was present at Forbury Park on 23 June 2016. The horses were in the care of Mr Craig Smith. He was extensively interviewed. He said that each of the Dunn horses were administered Ketoprofen following the last race. It had earlier been decided that the horses would stay at Forbury Park overnight. The next morning they were to return to a property at Mosgiel. This decision was taken by Mr Robert Dunn as it was considered that there were safety issues taking the horses back to Mosgiel and releasing them into a paddock late in the evening. Mr Craig Smith denied any administration of Ketoprofen to MELINA LOWE.

2.7 It is not for the Committee to determine how Ketoprofen came to be in MELINA LOWE. No definitive decision can be made on the material available to the Committee. It is however appropriate for the Committee to make plain that it is satisfied that Mr Larsen did not administer Ketoprofen to MELINA LOWE nor did any person do that under Mr Larsen’s direction. It follows that the circumstances in which Ketoprofen came to be in the system of the horse MELINA LOWE cannot be definitively determined.

3. POSITION OF THE RIU

3.1 Mr Lange filed extensive submissions. These make reference to a number of precedents involving horses presented with prohibited substances. The Committee is familiar with those decisions. None present a precise comparison with the unusual circumstances that exist here.

3.2 Mr Lange pointed to Mr Larsen having left the horse MELINA LOWE unattended for a period during the evening. This was when he was driving a horse in an earlier race and when he was having a cup of tea. There is no obligation upon a licenced trainer to remain with his or her horses throughout. It is perhaps regrettable that there was not an employee of the trotting club in the stabling area. Since these proceedings were initiated the RIU has received advice from the Forbury Park Trotting Club that there will henceforth be a person or persons in the stabling area throughout the evening’s racing. Advice has been given to the RIU by the Forbury Park Trotting Club that the pedestrian access to the stabling area was manned by a security guard during the May race meeting but not during the June and July meetings this year. The provisions of such security guards is no guarantee that persons who are determined to evade the rules will be detected and nor would it be a complete protection against inadvertent administration of a prohibited substance to a horse who was not the truly intended recipient.

3.3 The submissions prepared by Mr Lange set out a number of mitigating circumstances. It is appropriate to set these out verbatim. They are as follows:

a) When spoken to by Racing Integrity Unit Racing Investigators Mr Larsen was cooperative and made his stables openly available for inspection;

b) Mr Larsen’s stable was clean, tidy and presented in immaculate condition;

c) Mr Larsen kept medications in a locked secure cabinet;

d) The stable has good security with secure fencing, video surveillance nearby, an aggressive dog and a neighbouring house situated beside the main stable block;

e) There was no evidence of Ketoprofen at his stable;

f) Veterinary records failed to show any purchases of Ketoprofen and the owners accounts also failed to show any signs of the usage of Ketoprofen;

g) Mr Larsen has an excellent record over a 31 year old involvement in the Harness Racing industry with no previous breaches of any note;

h) Mr Larsen’s stable is run in a very professional and organised manner;

i) Mr Larsen has admitted a breach of the Rules at the first available opportunity;

j) Mr Larsen’s conduct throughout the investigation has been totally professional and he has been cooperative at all times.

4. DISCUSSION

4.1 For reasons explained above the Committee is satisfied that Mr Larsen had no part in administering Ketoprofen to MELINA LOWE. As set out in Mr Larsen’s submissions the mare had a strong form line going into the race. She was firmly supported on the totalisator. There was no obvious motive for the connections to breach the prohibited substance rule(s).

4.2 Ketoprofen entered the subject horse MELINA LOWE in circumstances that it would seem can never be conclusively established. In assessing the culpability of Mr Larsen the Committee must determine what part, if any, he had in the breach of the prohibited substance rule. The Committee believes Mr Larsen had no part in the breach of the rule. His leaving the horse unattended for short periods is not a significant aggravating circumstance. Trainers with relatively small teams must necessarily be away from the stabling area for periods of time. Further there is no rule which requires licenced trainers or their staff to be in the presence of their horses at all times. The circumstances set out here are reflected in the financial penalty which the Committee has arrived at and which is set out in the succeeding paragraph.

5. DECISION

5.1 Rule 1004(D) provides that there is a mandatory disqualification of MELINA LOWE. An order is made accordingly. The horse that finished second in Race 8 at Forbury Park on 23 June 2016 was HIGHVIEW ILLUSION. That horse shall now be placed first. The horse that finished second was BETTORDEAN. That horse will now be placed second. The horse that was placed fourth was ONE COOL CHICK. That horse will now be placed third. The horse that was placed fifth was RAPHOE. That horse will now be placed fourth.

5.2 The Judicial Committee Authority (JCA) guidelines dated 1 May 2015 provide a starting point of a fine of $8,000 for a breach of the relevant rule. That is Rule 1004(1A). In his submissions Mr Lange listed a number of mitigating circumstances. Those are set out above. Mr Lange went on to say in his submissions that these were highly relevant and that the RIU would leave the penalty for the breach at the discretion of the JCA. Mr Lange submissions recognised the unique circumstances of this case. In all of the cases cited to the Committee, whether in harness racing or in thoroughbred racing, the licence holder has made some significant mistake, wilful or unintended or has acted deliberately in breach of the rules. None of those circumstances are present here. The Committee therefore takes the view that the financial penalty to be imposed here should be very modest. This should not be seen as a precedent beyond this case as it is most unlikely that the circumstances that have led to this prosecution will be replicated at any time in the future. An appropriate fine is $250.

5.3 The RIU does not seek a costs award against Mr Larsen.

5.4 The JCA has been put to considerable expense in preparing for and conducting this hearing. For reasons which must now be plain that is not a consequence of misconduct on the part of Mr Larsen. For that reason a very modest contribution will be required from Mr Larsen towards the costs of the JCA. That sum is $200.

5.5 This decision should be read alongside the reserved decision of this Committee in RIU v Robert Dunn, John Dunn and Craig Smith also dated the 16 day of January 2017.

DATED this 16 day of January 2017

Murray McKechnie

Chairman

(signed pursuant to the Fifth Schedule to

the New Zealand Rules of Harness Racing) 

BEFORE THE JUDICIAL COMMITTEE

AT INVERCARGILL

IN THE MATTER of the New Zealand Rules of Harness Racing

BETWEEN

RACING INTEGRITY UNIT

Christopher John ALLISON

Racing Investigator

Informant

AND

Kirk Neilsen LARSEN

Public Trainer/Open Horseman

Respondent

SUMMARY OF FACTS

1. I produce written authority from Mr. Mike Godber the General Manager of the Racing Integrity Unit to file an information for a breach of Rule 1004 (1A) in accordance with Rule 1108(2) of the Rules of Harness Racing New Zealand.

2. The Respondent in this matter Mr. Kirk Larsen aged 51 has been licensed with Harness Racing New Zealand since 1985 and he is the current holder of a Public Trainer’s Licence and an Open Horseman’s licence.

3. Mr. Larsen correctly entered and started the registered Standardbred MELINA LOWE in Race 8 the Stunin Cullen Forbury Park Sprint Series (Heat 4) Mobile Pace at the Forbury Park Trotting Club meeting held on Thursday the 23rd of June 2016. Total stake money for the race was $6000. The breakdown of stake money was 1st $4,000, 2nd $900, 3rd $440 4th $229 others $86.

4. MELINA LOWE who was also driven by Mr. Larsen won the race which was run over 1200 metres by a nose in a time of 1.25.8. MELINA LOWE was 2/1 in the betting. She subsequently paid $4.00 to win and $1.20 for a place.

5. On the night of the races MELINA LOWE was a 4 year old brown mare. MELINA LOWE had started 32 times for 3 wins 7 seconds and 3 thirds for total stake money of $22,663.50. She has since turned 5 years old and had 2 subsequent races for 2 sixth placings (as at 10th October 2016). MELINA LOWE is owned by Paul and Brendan Duffy.

6. Following the race MELINA LOWE was requested to be swabbed by the Chairman of Stewards Mr. Liam Tidmarsh. A urine sample numbered 78663 was obtained from MELINA LOWE at 9.16pm in the presence of stable representative Mr. Keith Hotton.

7. The sample was subsequently sent to the New Zealand Racing Laboratory Services for analysis.

8. On the 18th of July 2016 the New Zealand Racing Laboratory Services advised the sample numbered 78663 contained the prohibited substance Ketoprofen. The concentration of the Ketoprofen exceeded 200 micrograms per litre of urine which was the upper limit of the calibration range of method used. The regulatory limit is 100 micrograms of Ketoprofen per litre of urine. The control sample was clear.

9. Dr. Andrew Grierson the Chief Veterinarian for Harness Racing New Zealand forwarded a report which contained the following information; Ketoprofen is a drug of the propionic acid class of non-steroid anti-inflammatory agents. Ketoprofen has an analgesic, antipyretic and anti-inflammatory action. Ketoprofen is a prohibited substance under the Prohibited Substances Regulations in the Rules of Harness Racing New Zealand.

10. On the 20th of July 2016 Racing Investigators visited Mr. Larsen at his stable at Branxholme on the outskirts of Invercargill.

11. When advised of the positive test Mr. Larsen was surprised and advised the Racing Investigators he has never used any product containing Ketoprofen and although he had heard of it he was unaware of its purpose. He was at a total loss to explain how the sample detected Ketoprofen.

12. Mr. Larsen was co-operative throughout the investigation and openly made his stable available for inspection immediately he was advised of the positive result.

13. The inspection failed to detect any sign of any product containing Ketoprofen at his stables.

14. Mr. Larsen’s stable was presented in excellent order and was clean, tidy and immaculately maintained. Medications which contained withholding periods were kept in a locked secure cabinet.

15. The stable was secure with good fencing, sensor activated security lights, security camera surveillance from a neighbouring business and a large aggressive dog. Mr Larsen’s residence overlooks the stabling area and another dwelling house is situated directly beside his stable block.

16. Mr. Larsen supplied details of his trainer’s diary which showed no documentation of the product Kelaprofen which contains Ketoprofen.

17. Enquiries with Mr. Larsen’s veterinarian Dr Brendon Bell confirmed Mr. Larsen has never purchased any product containing Ketoprofen from his clinic either for MELINA LOWE or any other horse trained by him. Mr. Larsen only uses Dr. Bell’s veterinary clinic services in Southland. He has used the services of Dr. Bill Bishop in the Canterbury region for specialised surgery only.

18. Dr Bell advised he is very reluctant to issue Ketoprofen and it is used infrequently for clients he services.

19. Dr. Bell is a highly respected veterinarian throughout New Zealand and he went to some length to advise the Racing Integrity Unit Investigators that Mr. Larsen was very careful with any products he had purchased from him.

20. The owners of MELINA LOWE Mr. Paul and Brendan Duffy openly forwarded their training accounts for MELINA LOWE which failed to show any signs of them being invoiced for any product containing Ketoprofen.

21. MELINA LOWE was not suffering from any injuries or issues which required the use of Ketoprofen or any other pain killer or anti-inflammatory.

22. Mr. Larsen accepted the swabbing process was conducted correctly and declined the opportunity to have the “B” sample tested.

23. During the evening of the races Mr. Larsen left his horses unattended for a period when he went for a cup of tea and also when he was out on the track with another stable runner in an earlier race.

24. The Racing Integrity Unit conducted further enquiries with licence holders who were stabled either side of Mr. Larsen on the night of the races.

25. Enquiries with one of the stables confirmed they use Ketoprofen on their horses post-race and they had Ketoprofen on course the night of the races.

26. They vehemently deny they used the product during the evening and were aware of Rule 1004 (6) which allows the administration of a substance half an hour after the last race.

27. Enquiries with the Racing Integrity Unit Betting Analyst failed to detect any irregular betting patterns.

28. A total of 21 exhibits made up of feed, feed supplements and medications were sent to the New Zealand Racing Laboratory Services for testing and analysed for the presence of Ketoprofen. All exhibits showed no presence of Ketoprofen.

29. Three other licence holders are facing pending charges in relation to enquiries during this matter.

30. The cause of the positive test is still currently unknown.

31. Mr. Larsen has an excellent training record over his 31 year career in the Harness Racing Industry with no breaches of any rules of note throughout these years.

32. Mr Larsen is highly respected in the Southern Harness Racing industry. 

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