Non Raceday Inquiry RIU v T R Barron – Reserved Decision dated 7 December 2018 – Chair, Mr D M Jackson

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hearing_title: Non Raceday Inquiry RIU v T R Barron - Reserved Decision dated 7 December 2018 - Chair, Mr D M Jackson

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BEFORE A JUDICIAL COMMITTEE

HELD AT CHRISTCHURCH

-IN THE MATTER of the New Zealand - Rules of Harness Racing

IN THE MATTER of Information No. A6425

BETWEEN Racing Integrity Unit

KYLIE WILLIAMS

Racecourse Inspector

Informant

AND-TONY RONALD BARRON

Public Trainer

Respondent

Judicial Committee: -DM Jackson (Chair)

S Ching (Member)

Rule Breach:-1004(1(A)(3)(4)

RESERVED DECISION OF THE JUDICIAL COMMITTEE DATED 7 DECEMBER 2018

1.-Mr Barron admits a charge that he breached Rules 1004(1A)(3) & (4) by presenting the horse ALE ALE KAI at the North Canterbury TOA Trials on 12 September 2018 with a prohibited substance in its system, namely Flunixin. Mr Barron admitted the breach at the first available opportunity and countersigned the Information recording same and a penalty hearing in respect of this charge was scheduled for and heard by this Committee on 30 November 2018 before the commencement of racing at Addington that evening.

2.-This is Mr Barron’s first breach of this rule in an otherwise lengthy and distinguished career of some 30 years or so.

3.-The rule provides:

“1004 …
.
(1A) A horse shall be presented for a race free of prohibited substances.
…
...
(3) When a horse is presented to race in contravention of sub-rule (1A) or (2) the trainer of the horse commits a breach of these Rules.
…
(4) A breach of sub-rule (1A), (2), (3) or (3A) is committed regardless of the circumstances in which the TCO2 level or prohibited substance came to be present in or on the horse.”

4.-Clause 5 of the Prohibited Substance Regulations provides that the therapeutic substance, Flunixin, is not prohibited when present at or below the mass concentration of 1000mcg per litre in urine.

5.-The consequences of a breach of the Rule are outlined in Rule 1004(7):

“every person who commits a breach of sub-rule (2) or (3) shall be liable to:

(a) a fine not exceeding $20,000.00 and/or

(b) be disqualified or suspended from holding or obtaining a licence for any specific period not exceeding five years.”

6.-The Rule also requires the mandatory disqualification of the horse pursuant to Rule 1004(8) and 1004D.

The facts

7.-The following facts were agreed.

8.-ALE ALE KAI is a three-year-old bay filly trained by Mr Barron. It is owned by Mrs J Crooks and Estate R Crooks. It has raced once and was unplaced as at 25 November 2018.

9.-ALE ALE KAI was correctly entered and presented to trial by Mr Barron at the North Canterbury TOA trial meeting on 12 September 2018 finishing in third place.

10.-Prior to the trial ALE ALE KAI was selected as one of the 21 horses to be pre-race blood tested. DOUBLE DASH a three-year-old filly trained by Mr Barron was also blood tested. ALE ALE KAI had a blood sample taken at 10.37am by the racecourse veterinarian Ms A Corser in the presence of Mr Barron. The samples were recorded with number 135813. Mr Barron does not contest the taking of the sample.

11.-On 24 September 2018 the New Zealand Racing Laboratory reported that swab 135813 had tested positive for Flunixin. The remainder of the swab was cleared of further testing on 2 November 2018. DOUBLE DASH was negative for any prohibited substances.

12.-On 8 November 2018 RIU investigators visited the training premises of Mr Barron. Mr Barron was out of the country of the time and his wife was advised of the positive swab returned by ALE ALE KAI. Mrs Barron had been at the trials when the filly was tested. Mrs Barron could not offer an explanation for the positive swab and advised that they had never used Flunixin in the stable. No Flunixin was found on the property.

13.-Mrs Barron advised that both ALE ALE KAI and DOUBLE DASH are stabled beside each other, are paddocked together and receive the same feed. There was no explanation for one filly to return a positive swab and for the other to be negative.

14.-Mr Barron was interviewed on 12 November 2018 and he could not offer any further information regarding the positive swab.

15.-Flunixin is a prohibited substance under the Rules of Harness Racing. It is a non-steroidal anti-inflammatory agent or NSAID. It is commonly used in equine veterinary medicine and is prescribed to relieve pain from any inflammatory process especially involving the musculoskeletal system, and for visceral pain and colic.

16.-Mr Barron has been in training since 1989/90. Mr Barron has trained 350 winners in his own right and 128 winners within training partnerships.

17.-The agreed summary of facts records that Mr Barron previously had a positive swab when training in partnership with his brother, Ken Barron after Ketamine was detected in a swab sample taken from TERRACOTTA in 2016. That horse was disqualified but no charges were lodged against the training partnership.

Penalty Submissions

18.-Mrs Williams submitted written penalty submissions for which the Committee is grateful.

19.-Mrs Williams submitted that Mr Barron should be penalised by way of fine in the amount of $3,000.

20.-Mrs Williams identified the JCA guidelines suggested starting point of $8,000 for a first offence and referred the Committee to various precedents, which involved factual situations which were for the most part similar to the breach here.

21.-Those precedents disclosed fines in the order of $3000 for charges of presenting a horse with a prohibited substance at a trial in circumstances where either a vet had administered the prohibited substance before the trial or otherwise the product was found at the property.

22.-In one particular case RIU v Brick 15 September 2016 (Thoroughbred), a horse presented with prohibited substances at the trials was disqualified and Mr Brick fined $3,000. The other cases to which the Committee referred were RIU v Neal, 7 May 2015 (Harness), a $5,500 fine for presenting a horse with Flunixin on race day, RIU v Evans, 24 May 2017 (Greyhound), a fine of $2,000 in respect of three charges for presenting dogs with Flunixin, RIU v Hall, 19 August 2017 (Thoroughbred), a charge of presenting a horse with Meloxicam at the trials which had been administered by a vet, and finally RIU v Lucock & Gillespie, 22 July 2018 (Thoroughbred), one charge of presenting a horse with Meloxicam at the trials for a $3,000 fine where the product was found on the property.

23.-Mrs Williams said that it was an aggravating feature of this offending that an anti-inflammatory or NSAID had been used at the trials because it may mask a horse’s injury or pain and thereby increase the risk of injury to that horse or the drivers participating in the trial should such a horse go amiss.

24.-In mitigation, Mrs Williams accepted that Mr Barron had admitted the breach at the first opportunity and had cooperated throughout the investigation. Further, Mr Barron’s vets had confirmed that they had not supplied or treated any of Mr Barron’s horses with Flunixin and Flunixin was not found on the premises. This was therefore a case where there was no indication of intent by Mr Barron to trial the horse with Flunixin in its system and otherwise there was no explanation for the presence of that substance in the horse’s system.

25.-Mrs Williams emphasised that despite the mitigating factors this was a charge of strict liability and that accordingly Mr Barron would have to accept that the onus was upon him to ensure that a horse in his care and control is completely drug free when presented at the trials and races.

26.-Mrs Williams sought the disqualification of ALE ALE KAI under Rule 1004(8).

27.-Mr Barron accepted the agreed summary of facts. He confessed that he had no idea how the substance had entered the horse’s system. He had never used Flunixin. Mr Barron was critical of the RIU for the length of time it took for the swab to be notified. However, Mrs Williams explained, in her reply, that the swab results were not received until 5 November 2018. The delay being caused by the timing of out of competition blood samples, which are not processed as quickly as race samples.

28.-Mr Barron emphasised his good record and his many years of running a clean and law abiding stable, including his training partnership with Ken Barron. His operation is now much smaller, running ten or so horses, and operating from rented stables (shared with another trainer). Mr and Mrs Barron staff their operation themselves. A fine will hurt them he submitted.

29.-Mr Barron submitted that the disqualification of the horse was punishment enough and that he ought not to be fined at all for this breach given his lack of intent or otherwise knowledge of how the Flunixin came to be in the horse’s system.

Fixing a Starting Point

30.-We accept Mrs Williams’ submissions and that a fine is called for on this occasion. We note that the JCA penalty guidelines call for a starting point of $8000 in a case of medium culpability. On this occasion Mr Barron’s culpability is low. This is not a case of negligent administration or poor timing. This is a case of the prohibited substance entering the stables by unknown means. That is not a defence however because Mr Barron must ensure that his horses present free of prohibited substances. Because the culpability assessment is in the lower range, the starting point can be moderated so that the starting point on this occasion will be $6,000.

Aggravating Factors

31.-Whilst we understand the submission made by Mrs Williams - that the use of anti-inflammatories at trials is to be discouraged - it is not, with respect, in and of itself an aggravating factor justifying an increase in fine in this case. That is because we have found that the administration of the Flunixin was not deliberate. We find that there are no aggravating factors of the offending or Mr Barron.

Mitigating Factors

32.-We find the following as mitigating factors: Mr Barron’s frank and prompt admission, his excellent record, his reputation and cooperation. We have also had regard to his reduced training operation and that this is now a small business which will be hurt by a large fine.

33.-For those factors combined we will deduct $3,000 from the fine for mitigation.

34.-In the circumstances therefore, Mr Barron will be fined $3,000.

Decision

35.-Mr Barron is fined $3,000 for this breach of the rule.

36.-The committee further orders that the horse ALE ALE KAI is disqualified per Rule 1004(8) effective Monday 10th December 2018.

37.-There will be no order for costs of the RIU or the JCA.

D M Jackson

Chair - --

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