Non Raceday Inquiry RIU v NA Gorrie 25 October 2013 – Decision dated 14 November 2013

hearingid: 8d836ca27a3f1321990d016e359b112e

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decisiondate: 18/11/2013

hearing_title: Non Raceday Inquiry RIU v NA Gorrie 25 October 2013 - Decision dated 14 November 2013

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appealdecision: NO LINKED APPEAL DECISION

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BEFORE A JUDICIAL COMMITTEE HELD AT CHRISTCHURCH

IN THE MATTER of Information No: A5010

BETWEEN KYLIE ROCHELLE WILLIAMS - Racecourse Investigator for the Racing Integrity Unit

Informant

AND NEVILLE ANTHONY GORRIE - Licensed to Train Trainer HRNZ

Respondent

Date of Hearing: Friday 25th October 2013

Venue: Judicial Room, Addington Raceway, Christchurch

Judicial Committee: KG Hales, Chairman - RG McKenzie Committee Member

Present: Mrs KR Williams, the Informant - Mr NA Gorrie, the Respondent - Mr M Branch, Counsel for Mr Gorrie, - Mr S Renault, Registrar
Date of Decision: 14 November 2013

RESERVED DECISION OF JUDICIAL COMMITTEE

THE CHARGE
[1] Information No: A5006 alleges as follows:

(1) THAT, on 23rd June 2013, NEVILLE ANTHONY GORRIE, the Trainer and person in charge of the horse MATTJESTIC REBECK which had been taken to the Marlborough Harness Racing Club for the purposes of engaging in a race, namely The Hynds Maiden Mobile Pace, Race 4, on 23rd June 2013, and that he failed to present the said horse free of
prohibited substances namely bicarbonate or other alkali substance as
evidenced by a blood TC02 level of 36.3 mmol/L. This is in breach of the
Prohibited Substance Rule, Rule 1004(1)(1A)(2).

(2) And you are therefore liable to the penalty or penalties which may be
imposed in accordance with Rule 1004(7) and the horse is liable to the
penalty which may be imposed in accordance with Rule 1004(8) of the
New Zealand Rules of Harness Racing.

THE RULES
[2] Rule 1004 of the Rules of Harness Racing provides as follows:

(1) A horse shall be presented for a race free of prohibited substances.
(1A) A horse shall be presented for a race with a total carbon dioxide level at or below the level of 35.0 mmol/L in plasma.
(3) Where a person is left in charge of a horse, and the 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 and the person left in charge both commit a breach of these Rules.
(8) A horse connected with a breach of sub-rule (1), (2) or (3) shall be disqualified from any race entered and/or liable to a period of disqualification not exceeding five years.

THE PLEA
[3] The Respondent admitted the charge and it is therefore found to be proved.

THE BACKGROUND
[4] MATTJESTIC REBECK is a 5 year old brown gelding and is trained by Licence to Train Trainer Neville Anthony Gorrie. MATTJESTIC REBECK is owned by Mr N A Gorrie and Mrs D M Blair. MATTJESTIC REBECK has raced 7 times for one 2nd and one 3rd winning stakes totalling $2,497.

[5] MATTJESTIC REBECK was correctly entered and presented to race by Trainer Mr Gorrie at the Marlborough Harness Racing Club’s meeting on 23rd June 2013. It was driven by Open Horseman Mr James Keast and finished 3rd in the Hynds Maiden Mobile Pace winning a stake of $625. This stake has not been paid to the connections.

[6] MATTJESTIC REBECK was TCO tested twice before racing on 23rd June. The second sample was taken, after the horse returned a screening level of 34 on the ISTAT machine from the first sample. The official laboratory result from the first sample was 35.6 which was advised to the RIU on 26th June.
[7] The screening result from the ISTAT machine from the second sample showed a level of 37. The results from the laboratory on 26th June advised the official result as 36.3, over the accepted level set by Harness Racing New Zealand.

[8] As a consequence of these readings, Ms. Williams, together with Racing
Integrity Unit Investigator Mr Robin Scott, commenced investigations by
interviewing Mr Gorrie in the first instance and then arranging for further testing
to be undertaken.

AGREED SUMMARY OF FACTS
[9] An agreed Summary of Facts was presented to the hearing. That agreed Summary of Facts reads as follows:

The facts are as follows: MATTJESTIC REBECK is a 5 year old brown gelding and is trained by Licence to Train Trainer Mr Neville Anthony Gorrie. MATTJESTIC REBECK is owned by N A Gorrie and Mrs D M Blair. MATTJESTIC REBECK has raced 7 times for one 2nd and one 3rd and stakes of $2,497.

[10] MATTJESTIC REBECK raced on the first day of the Marlborough HRC meeting on 21st June 2013 and was pre-race TCO2 tested. The ISTAT showed a screening level of 35. The Racing Laboratory advised the result of 34.0mmol/l on the 26th June 2013.

[11] MATTJESTIC REBECK was correctly entered and presented to race by trainer Mr Gorrie in Race 4 the HYNDS MAIDEN MOBILE PACE, at the Marlborough Harness Racing Club meeting on 23rd June 2013 finishing 3rd and winning a stake of $625.

[12] MATTJESTIC REBECK was TCO2 tested twice before racing on the 23rd of June 2013. The first sample was taken at 10.31am and the second sample at 12.24pm. The race was programmed to start at 12.40pm. The second sample was taken after MATTJESTIC REBECK returned a screening level of 35 on the ISTAT machine from the first sample. The official Lab result from the first sample was 35.6 which was advised to the RIU on the 26th of June.

[13] The result of the ISTAT machine from the second sample showed a level of 37. The results (received from the Lab on the 26th of June 2013) confirmed an official result of 36.3, which exceeds the level set by Harness Racing New Zealand.

[14] The Certificate of Analysis from the New Zealand Racing Laboratory Services confirms the blood sample as 34183, which is signed by the Official Racing Analyst Rob Howitt and Racing Analyst Carolina Troncoso.

[15] Mr Gorrie did not contest the taking of the blood samples.

[16] On the 27th of June 2013 Racecourse Investigators Mrs Kylie Williams and Mr Robin Scott went to the property that Mr Gorrie trains from, 305 Lehmans Road, and advised him of the elevated TCO2 result returned by MATTJESTIC REBECK.

[17] Mr Gorrie was given a copy of the Certificate of Analysis, TCO2 Authorisation Forms and a copy of the Prohibited Substance Rule of the New Zealand Rules of Harness Racing.

[18] Mr Gorrie advised that the horse was taken to Blenheim by horse truck owned by Mr James Terre Keast. Mr Gorrie attended to MATTJESTIC REBECK throughout the two day race meeting. Mr Gorrie denied administration of any alkalinizing agent by any means to MATTJESTIC REBECK.

[19] Samples of feed and additives were taken from Mr Gorrie’s feed room and forwarded to the Racing Laboratory for testing. One of the samples forwarded to the Racing Laboratory was the substance, “Neutradex liquid contains sodium acid citrate which is an alkalinizing substance...”

[20] In days following the Marlborough race meeting Mr Gorrie’s Veterinarian Mr Mike Brown inspected the horse and took blood samples from it. Mr Brown did not note any anomalies with the horse.

[21] Further blood samples were taken on the 30th of June 2013. The results of these tests are as follow:

- 10.10am – 303 Lehmans Road – 34.0
- 11.07am – Rangiora Racecourse – 35.3
- 2.18pm – 303 Lehmans Road – 34.9
- 4.39pm – 303 Lehmans Road – 34.4

These samples were tested by the Racing Laboratory.

[22] Further samples were taken on the 5th and 6th of July 2013 where the horse was taken to an undisclosed location for further testing. The results of these tests are as follow: 5th of July 2013

- 9.01am – 303 Lehmans Road – 33.9
- 11.54am – undisclosed location – 34.2
- 2.04pm – undisclosed location – 33.7
- 3.54pm – undisclosed location – 33.9

6th of July 2013
- 8.56am – undisclosed location – 32.5
- 12.02pm – undisclosed location – 33.3
- 2.10pm – undisclosed location – 31.6
- 3.55pm – undisclosed location – 33.0

[23] Mr Gorrie could offer no reason as to how MATTJESTIC REBECK’s level came to be elevated and advises that he has never knowingly administered to the horse any alkalizing agent by tubing or any other method for the purpose of illegally enhancing the horses performance.

THE RESPONDENT’S CASE
[24] Mr M Branch, of counsel for Mr Gorrie, asked Mrs Williams why it was that Mr Gorrie had not been told of the ISTAT machine readings prior to the race so that Mr Gorrie could have had the opportunity of consulting the vet or the Stipendiary Stewards with a view to scratching the horse from the race.

[25] Mrs Williams responded by saying that at that time, it was not the policy of the Racing Integrity Unit to advise trainers or connections of the horse of any elevated readings but that in any event, the second sample which showed an elevated reading was taken at 12.24 pm. The race was scheduled to start at 12.40 pm and horses were due out on the track by 12.25 pm. By the time Mrs Williams had ascertained the reading from the ISTAT machine, it was effectively too late, as she said that it was not the policy of the Racing Integrity Unit to call horses in off the track when high readings were detected.

[26] Mrs Williams agreed, in response to a question from Mr Branch, that Mr Gorrie then requested that further tests be taken at his stables following the races.

[27] Mr Branch called Mr Gorrie to give a brief explanation as to the circumstances in relation to his horse. Mr Gorrie said that he was a hobby trainer and had been training standardbreds for approximately eleven years and that was a part time occupation. He is employed as the Racetrack Manager at the Rangiora Racecourse. He said that he was shocked at receiving advice of the positive results that MATTJESTIC REBECK returned. He said that the horse was a profuse sweater. He said it had been that way before it was gelded as well as after being gelded. He said that the horse had been taken from Rangiora to Blenheim by Mr JT Keast, Open Horseman, who drove the horse in the race at the Marlborough Harness Racing Club’s meeting. He could offer no explanation as to why the horse had returned an elevated TCO2 level and in particular, advised the hearing that he had not administered any such substances to the horse.

[28] Mr Erin Crawford provided character evidence for Mr Gorrie. Mr Crawford said that he had been on the Board of Harness Racing New Zealand for 8 years, having finished in July 2013. He told the hearing that he well recalled a former Chief Stipendiary Steward, Mr Cameron George, attending a meeting of Harness Racing New Zealand to advise on the use of the ISTAT machine. He said that Mr George told the Board that if elevated readings were produced, that trainers would be told of this, so that they would have the opportunity to scratch their horses rather than to race them with an elevated reading.

Mr Crawford also said that he was chairman of the Rangiora Racecourse Committee and that he had rented his own stables to Mr Gorrie. He said that he had no cause to doubt Mr Gorrie’s integrity and said how Mr Gorrie came under considerable personal stress as a result of learning of the elevated TCO2 readings produced by his horse.

[29] Mr Branch then produced to the hearing a helpful synopsis of his submissions in relation to the evidence. He submitted that it seems to have been accepted that evidence as to the administration and/or negligence (or the lack of either or both) is relevant to setting the appropriate penalty. However, he submitted that the decisions to date appear to reach the conclusion that the RIU cannot prove administration of an alkalizing substance but in contrast, neither can the trainer prove a lack of any negligence. He submitted that the latter conclusion (that the trainer has not established a lack of evidence) is reached because of the statistical information the RIU always puts forward in these cases, that is, given the statistical information there must be some negligence.

Effectively, Mr Branch said the RIU does prove negligence to some degree but Mr Branch said that there is no reason why statistical information should be accepted. Mr Branch maintained that the evidence of the trainer should be considered first as he said that this evidence will be direct evidence as to the material facts. Once an initial position has been reached on those facts then the RIU’s arguments (which in this case are restricted to statistical information) can be considered to see if that would alter, or call into question the evidence from the trainer. It was Mr Branch’s position that the only evidence from the RIU challenging a lack of negligence is the statistical information. In particular,
Mr Branch drew attention to the correspondence that the RIU had relied upon from Dr. AR Grierson, the Chief Veterinarian for Harness Racing New Zealand. Dr. Grierson formed an initial view in correspondence dated 8th and 9th August 2013 but then, after receiving new statistical information from Dr. Brynn Hibbert, Professor of Analytical Chemistry at the University of New South Wales, Dr. Grierson’s view shifted whereby, in essence, he stated that on the statistical information available, he would have drawn the conclusion that there had been an administration of alkalizing agents.

Mr Branch then asked the Committee to consider the value of statistics to prove a fact when there is no independent or separate evidence of that fact.

[30] In his written submission to us, Mr Branch said:

“9. The issue is canvassed in an article by Vincent Scheurer. Under the heading of “Prosecutor’s Fallacy”, the author says:

Prosecutor’s Fallacy
The second mistake arising from Professor Meadow’s evidence as to probabilities is known as the “Prosecutor’s Fallacy”. This consists of showing that the “innocent” explanation for certain facts is highly improbable – and then deducing that the “guilty” explanation is therefore the correct one. This type of mistake is particularly likely to occur in trials such as that of Sally Clark, where there are only two trials such as that of Sally Clark, where there are only two realistic options open to the jury – either the defendant committed murder, or her children died from unexplained, and comparatively rare, natural causes. For Sally Clark, once the jury accepted that there was only a 1 in 73 million chance that the deaths occurred due to SIDS, it was a short and easy step to conclude that this was the same probability as the probability of any other natural (but unexplained) cause of death; and that there was therefore a 1 in 73 million chance that she was not guilty of murder. It would be hard not to convict in those circumstances.

But, again, this reasoning is simply wrong. Even if we assume (for the purposes of this section, at least) that the probability of both of Sally Clark’s children dying due to natural causes was 1 in 73 million, this is simply of no assistance in trying to work out whether they actually died of natural causes or foul play. The fact that it is unlikely that a particular event will occur is not relevant when, after that event, one is trying to work out the cause. Once it is known that the two children are dead, the relevant question is not: “what is the probability that these deaths were natural?” but “is it more likely that these deaths were natural rather than deliberate?” In order to answer this question, the court would also have needed to assess the probability of the alternative explanation – of a mother murdering her first two children – and to compare that with the probability of two natural deaths. Common sense suggests that double murders by natural parents are also highly unusual; and indeed one of the witnesses who provided evidence during the pre-trial “committal proceedings” stated that, according to his own research into “repeat” unexpected infant deaths (i.e. second deaths in the same family):

• one third were caused by rare but known natural causes (therefore not SIDS) missed by the experts performing the necropsy;
• one third were associated with child abuse; and
• one third were true ‘SIDS” DEATHS.
So fully two thirds of the cases of repeat deaths arose due to natural causes, and only one third due to foul play. Looking solely at the data for sudden unexpected deaths, the relevant probability was therefore a 2 in 3 chance of innocence, rather than a 1 in 73 million chance of innocence.
10. Keeping those general concerns in mind, the following points can be made about the particular statistics used in this case:

a. The odds of a non-doped horse being above the prescribed limit are based on the extrapolation of raw data.
b. The appropriate assessment for this horse should be as to what the odds are of this horse returning a result of 36.3 when its independently assessed normal level (average over 2 days and 8 tests) was 33.26.
c. It appears that this very point was raised by Dr Grierson because of the comments in the email of 9 August 2013 where Gordon Sutton is talking about the fact that the population test results are only really valid for (only tested once) measurements.
d. The odds of this horse returning a result of 36.3 as a result of natural causes is the relatively low odds of 1 in 50,904.62. The RIU clearly takes the view that if odds are high, then the event could never occur. that is, there never seems to be a recognition that the statistical certainty will ever occur. The fallacy of that position is obvious For example, the odds of winning Lotto or Big Wednesday are 1 in 38.383 million and 1 in 31.781 million respectively. However, we know that despite these odds, there are winners of these prizes.
11. If the Committee ignores, or places little weight on the statistical information, then it is submitted that Dr Grierson’s original report must stand. The fact is that that evidence is entirely consistent with the evidence of Mr Gorrie and leads to the inevitable conclusion that this horse is (if any weight can be given to the statistical information) the 1 in a 50,000 horse.
12. It is also worth noting that that independent testing carried out produced a result of 34.2.

13. Dr Grierson then records that due to excitement to the horse caused by being at the races, the level jumped 1.3 in less than an hour.

14. If that “excitement factor” is applied to the independent test results, then a level of 35.5 is achieved. That level would breach the threshold.

15. So, the evidence by the RIU, viewed in the round, does not rebut or undermine Mr Gorrie’s position that no alkalizing agent was present in the horse. Indeed, the evidence by the RIU supports Mr Gorrie’s position.

16. It is submitted that this case is not materially different to the case involving Mr McInerney or Mr Waller.

17. In the case of Mr Waller, it was established that he had not been negligent so the horses should be disqualified but no penalty imposed.

18. It is submitted that it is simply wrong to impose a penalty (beyond the disqualification of the horse) if on the balance of probabilities the trainer has done nothing wrong.”
[31] As we perceive it, the essence of Mr Branch’s submission is that it is dangerous to draw conclusions based on statistical information alone and that we must give consideration to another explanation as to why MATTJESTIC REBECK was presented with an elevated TCO2 level. That other explanation is that the elevated level was caused by natural causes and that it is open to us to make that finding, on the balance of probabilities. If we make that finding then it is Mr Branch’s submission that no penalty should be imposed on Mr Gorrie, and that we should effectively “convict and discharge” Mr Gorrie, in a manner similar to that adopted by Ruth DCJ in Chilcott v Ministry of Primary Industries.

[32] As to whether or not a substance has been administered in these cases has always been, to a degree, problematical for the RIU and Judicial Committees. The end result has always been that no finding is made as to administration, but that the consequences remain the same. The trainer or other person in charge of the horse presented it to race with an elevated TCO level in breach of the Rules of Harness Racing and therefore, the consequences follow in terms of the Rules. Mr Branch argues that if there is no evidence of administration then there must be another reason, and that is that the horse’s own metabolism produced the TCO2 reading, i.e. that the elevated level came about through natural causes.

[33] That is an interesting argument, but it is the Committee’s view that it must fall short, because in order for such a submission to succeed, it must be supported by some scientific evidence. Mr Branch has not produced any such evidence. If we were to make such a finding, and to impose no penalty on Mr Gorrie, then that would be contrary to a long line of decided cases. Therefore, without supporting scientific evidence, Mr Branch’s submission must fail.

[34] In reaching this view, we record that we have carefully considered whether or not it is appropriate for this Committee to rely on statistical information. The statistical information essentially tells us that the chances of the horse being non doped are slim. We have read the article by Scheurer. However, we do not have to make a finding as to the administration. Mr Gorrie has admitted the breach and that, therefore, must be the end of the matter. The Rules do not provide for any other result other than to disqualify the horse and to impose a penalty in line with those penalties which have been imposed of recent times.

[35] We have not overlooked Mr Branch’s submissions. This Committee is familiar with the decision of McInerney v Templeton & Ors (HC Christchurch, CP187/98, 10 November 1999, Panckhurst J) and we have read the information provided with regard to the case against Chris Waller. We are not swayed by those decisions. In any event, the fact situations, particularly in the case of McInerney v Templeton & Ors are quite different.

SUBMISSIONS ON PENALTY
[36] Mrs Williams, on behalf of the Racing Integrity Unit, submitted that a fine of somewhere between $500 and $1,000 should be imposed. She submitted that as Mr Gorrie has no previous record for a breach of this Rule and that he is a hobby trainer, having held the licence for eleven years, racing only five horses for a total of 2 wins, 3 seconds and 3 thirds, and the manner in which he has conducted himself with the Racing Integrity Unit, that the fine should be towards the lower end.

We have to say that the Racing Integrity Unit’s submission to the quantum of fine is unrealistic. We must have regard to the fact that the maximum penalty for breaches of the Rule was increased of comparatively recent times from $10,000 to $20,000 and furthermore we must also have regard to the fines that have been imposed in recent cases where the explanations given by the respondents in relation to excess TCO2 levels were similar.

[37] The Racing Integrity Unit does not seek an order as to costs.

[38] By way of contrast, and this has already been traversed above, Mr Branch was firmly of the view that the only penalty to be imposed should be the disqualification of the horse.

PENALTY DECISION
[39] It is helpful to consider the penalties in two recent TCO2 cases. Firstly, the case of RIU v S (2012) in which the penalty of a fine of $2,000 imposed by the Judicial Conference was confirmed on appeal. In that case, the TCO2 reading was 37.2 mmol/L. The trainer admitted the charge and had a clear record. The Appeals Tribunal stated:
We believe the fine of $2,000 is at the bottom of the range that was legitimately open to the Committee. It is thus not inadequate.

[40] A recent case is that of RIU v "C" (September 2013). The relevant TCO2 level was 38.3. The trainer was a “hobby trainer”. He admitted the breach and had a clear record. The fine in that case was $2,500.

[41] The most recent case is that of RIU v "K & W". The relevant TCO2 level was 37.0 mmo/L. It was a second offence for one of the respondents. The breach was admitted and the respondents were fined $2,500.

[42] In none of the cases referred to was there any evidence of administration.

[43] We therefore take as a starting point for the imposition of penalty the Appeal Decision involving RIU v “S” (25 September 2012) where a fine of $2,000 was imposed at first instance, and confirmed on appeal.

[44] Against that, we must take into account the aggravating and mitigating factors.
In this instance, there are no aggravating factors which in our opinion would warrant an uplift on the starting point. Against that, we consider that there are mitigating features and those mitigating features are Mr Gorrie’s cooperation with the Racing Integrity Unit and his admission of the breach. We also acknowledge his good character.

[45] The Committee has also gained some assistance from the decision of the Appeal Tribunal in the case of RIU v S (2012). In its decision, the Appeal Tribunal stated:
Where the culpability falls on the spectrum of seriousness is best determined by reference to the extent to which the elevated level is in excess of the statutory limit.

[46] The mitigating factors allow us to provide a discount of $200 on the starting point, making the fine that of $1,800 and Mr Gorrie is fined $1,800 accordingly.

COSTS
[47] The Racing Integrity Unit does not seek an order as to costs, but the Respondent is directed to make a contribution to Judicial Control Authority for Racing costs in the sum of $450.

[48] DISQUALIFICATION

MATTJESTIC REBECK is disqualified from its third place in the Hynds Maiden Mobile Pace. The places of the race are thereby amended as follows:

1st - Horse No: 8 GRAYWACKEE STAR
2nd - Horse No: 2 HIT THE SPOT
3rd - Horse No: 9 FINE COURAGE
4th - Horse No: 7 WYATT EARP
5th - Horse No: 10 THUNDERBIRD TARA

Stakes are to be paid in accordance with the amended placings above.

Dated this 14 November 2013

……………………………….
K G Hales
Chairman

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