Non Raceday Inquiry RIU v JW Bell and MJ Donoghue

hearingid: 9bdcec970cac0d29cf394c59d1473878

informantnumber:

horsename:

hearing_racingtype:

startdate: no date provided

newcharge:

plea:

penaltyrequired:

decisiondate: 20/03/2015

hearing_title: Non Raceday Inquiry RIU v JW Bell and MJ Donoghue

charge:

facts:

appealdecision: NO LINKED APPEAL DECISION

isappeal:

submissionsfordecision:

reasonsfordecision:

Decision:

NON RACEDAY INQUIRY-NZTR (Racing Integrity Unit) v BELL/DONOGHUE in Partnership

Heard at Tauranga Racecourse 21 March 2015 10.40am

Rules

804 (2)

Respondents/Other parties:

Mr JW Bell, Licensed Trainer of ‘BLAZE SMARTIE’

Mr MJ Donoghue, Licensed Trainer of ‘BLAZE SMARTIE’

Ms S Bell, Appearing to assist ‘The Partnership” of JW Bell/MJ Donoghue

Informant: Mr BJ Oliver representing Racing Integrity Unit

Registrar: Mr W Robinson, Stipendiary Steward

Judicial Committee: Mr A Godsalve, Chairman – Mr A Dooley, Committee Member

Date of Decision: 26 March 2015

DECISION:

The Training Partnership of Mr Bell and Mr Donoghue appeared before the Committee to answer a charge filed against them by Racing Integrity Unit Investigator Mr B Oliver, such charge being pursuant to Rule 804 (2) of the New Zealand Rules of Racing and being lodged by Mr Oliver under Information number A2225.

The charge read as follows:

‘On the 27th day of December 2014, at Rotorua, being the registered trainers for the time being in charge of the horse ‘ BLAZE SMARTIE’ which was bought to the Rotorua Racing Club for the purpose of engaging in, and did engage in Race 3 conducted by the Rotorua Racing Club, when the said horse was found to have in its metabolism prohibited substances, namely Nordazepam and Temazepam, and that they are in breach of the New Zealand Thoroughbred Racing Rule 804 (2) and they are therefore subject to the penalty or penalties which may be imposed pursuant to Rules 804 (6) and 804 (7)’.

Rule 804 (2) states:

‘When a horse which has been bought to a Racecourse or similar racing facility for the purpose of engaging in a Race or trial to which the Third Appendix hereto applies is found by a Tribunal conducting an enquiry to have had administered to it or have present in its metabolism a Prohibited Substance, capable of affecting its speed, stamina, courage or conduct, the Trainer and any other person who in the opinion of such Tribunal conducting such enquiry was in charge of such horse at any relevant time commits a breach of these Rules unless he satisfies the Tribunal that he had taken all proper precautions to prevent the administration of such prohibited substance.’

Rule 804 (6) states:

A Trainer of a horse commits a breach of these Rules if the Tribunal conducting an enquiry finds that the horse has had administered to it or has had present in its metabolism a Prohibited Substance of the type set out in paragraph 6 of the Fourth Appendix to these Rules.

Rule 804 (7) states:

‘A person who commits a breach of sub-Rule (2) or (3) or (5) of this Rule shall be liable to:
(a) Be disqualified for a period not exceeding five years and/or
(b) Be suspended from holding or obtaining a License for a period not exceeding 12 months. If a License is renewed during a term of suspension, then the suspension shall continue to apply to the renewed License; and/or
(c) A fine not exceeding $25,000.

Mr Bell and Mr Donoghue were both present at the hearing. Both acknowledged that they had been served with the charge and that they were cognizant of the relevant Rule/s and did not require them to be read at the Hearing.

Prior to asking the Respondents to enter a plea to the charges the Committee pointed out the provisions of Rule 310.

Rule 310 states:

‘A Training Partnership shall be deemed to be jointly and severally liable for any breach of the following rules regardless of whether all Trainers in that partnership were involved in the breach:

(d) 804 (2) and 804 (6).

Mr Bell and Mr Donoghue each then advised the Committee that they admitted the breach as per the charge. They together agreed that they represented the owners of the horse ‘BLAZE SMARTIE’ in all matters pertaining to the horses training and racing.

SUMMARY OF FACTS presented by Mr B Oliver

1. Mr Oliver presented to this Committee the appropriate Authority from the Racing Integrity Unit to proceed with the charge against the Bell/Donoghue Partnership.

2. Mr Oliver further presented a document from Andrew Grierson BVSc, Chief Veterinarian for New Zealand Thoroughbred Racing, outlining the chemical composition, uses, and quantities of the substances mentioned in the charge.

3. A further document, ‘Certificate of Analysis-Amended’ was presented. This document, from New Zealand Racing Laboratory Services, along with the original Certificate, also presented (amended due to a typographical error) confirmed the detection of Nordazepam and Temazepam in the Urine sample submitted for analysis.

4. The defendants John William BELL and Mark John DONOGHUE are Class A Licensed Trainers operating as a partnership from their Cambridge base.

5. On the 27th of December 2014, the horse ‘BLAZE SMARTIE’ a 3 year old gelding, was correctly entered and started in Race 3, the Crankworx Rotorua 25-29 March Sprint at a race meeting conducted by the Rotorua Racing Club at Arawa Park. The horse is owned by K.W.Cheung and Mrs H.S.C. Wai from Hong Kong.

6. ‘BLAZE SMARTIE’ finished first earning gross stake money of $4,375.00.

7. ‘BLAZE SMARTIE’ was selected for a post-race swab. During the swabbing process the horse was accompanied by a stable employee. A urine sample was taken at 2.50pm, 21 minutes after the Race start time. The stable employee and the swab attendant have reported that there were no difficulties or irregularities with the collection or packaging of the samples taken from BLAZE SMARTIE.

8. At the conclusion of the meeting the samples were checked by a Racecourse Investigator and then placed in a tamper proof security bag with other samples taken that day and forwarded to the Racing Laboratory in Auckland.

9. On the 16th of January 2015, a Certificate of Analysis signed by Rob Howitt, the Official Racing Analyst from the New Zealand Racing Laboratory advised that the sample taken from ‘BLAZE SMARTIE’ on the 27th December 2014 at the Rotorua Racing Club meeting had been analysed and contained the prohibited substances, Nordazepam and Temazepam.

10. These drugs are human prescription drugs used for the treatment of anxiety and insomnia. Temazepam has been around since 1969 and is a widely prescribed hypnotic. Nordazepam is a metabolite of Temazepam and is amnesic, anticonvulsant and a muscle relaxant with sedative properties.

11. Mr Bell and Mr Donoghue were interviewed at their stable property on 29th of January 2014. Both expressed surprise and concern when informed of the positive test. Neither trainer had heard of these drugs. Both were fully co-operative as were their staff who were interviewed on that and subsequent days. The stable veterinarian could not shed any light on the situation.

12. At Mr Bell’s request, the ‘B’ sample was forwarded to the Australian Racing Forensic Laboratory in Sydney for analysis. On the 20th of February 2015, that laboratory confirmed the analysis that the New Zealand Laboratory had made that Nordazepam and Temazepam were in the ‘B’ sample.

13. Despite interviewing people involved in the preparation of this horses food, his water, and those responsible for his care and grooming, Investigators are no closer to establishing how this drug got into the horses system.

14. Investigators believe that in all probability the positive swab is an unintentional contamination from an unknown source and were likely to be of low volume.

15. John Bell, the Senior Trainer in the partnership, has held various training permits since 1985 except for the period 1998-2011 when he did not hold a license. He is 64 years of age. Mark Donoghue joined Mr Bell in a training partnership in November 2014. He has held a trainers license since 1995. He is 43 years of age. Neither trainer has appeared on any charges of this nature.

In response to a question from the Committee, Mr Oliver acknowledged that he had received per email a Certificate of Analysis from the Australian Racing Forensic Laboratory regarding the ‘B’ sample from the subject horse. He stated that the respondents had viewed this Certificate and had accepted the veracity of it.

SUMMARY OF FACTS for Mr Bell and Mr Donoghue:

Ms Summer Bell:

My name is Summer Alexandra Bell, I am John’s daughter and while not technically an employee I am very involved in dad’s business due to the relatively small scale of the operation-and the fact that my mother has been very ill for the last 5 plus months. My usual occupation is as a winemaker.

Firstly, let us thank you (the Tribunal/JCA) for your understanding with regards to the adjournment last weekend.

Thank you for your summation of events Mr Oliver and also for all your assistance and care during the investigation.

As I am sure you all understand, the positive swab is still of huge concern to us as there has been no determination as to where it may have come from.

We absolutely understand that under Rule 804 (2) the mere presence of the drug is enough to warrant consequences under the NZ Rules of Racing-unless we satisfy the Tribunal that we had taken all proper precautions to prevent the administration or presence of such prohibited substance. We propose to satisfy the Tribunal of the same.

However, to make it absolutely clear to all present: while we accept the charges outlined by Mr Oliver (in order to expedite this process) and understand that we responsible for the horses in our care, wherever they are, please note that in accepting the charges we do not admit to any administration of a prohibited substance to ‘BLAZE SMARTIE’ - not by my father, John Bell or any of his staff.

We believe Point 11 of Mr Oliver’s summary is key to where we must begin our defence.

Point 11 states that ‘Investigators’ believe that in all probability the positive swab is an unintentional contamination from an unknown source and were likely to be of low volume.

Also key is Point 4 of Mr Oliver’s submission which states that ‘it appears that some sort of contamination has occurred rather than a deliberate attempt to administer the drug to the horse’.

While we cannot deny the presence of a prohibited drug with regards to the Charge-Rule 804 (2) – the key concern for us was always the volume/level present, so we could establish whether we were looking at a contamination or something more sinister - e.g. a therapeutic dose being administered without our knowledge.

As per Mr Oliver’s statement-in his opinion the likely low levels present would indicate a contamination as opposed to administration of a large therapeutic dose. This opinion was very reassuring as we were very worried that the horse had been tampered with.

May I point out that also with regards 804 (2) , if there is to be a zero tolerance policy with regards to volume present of a prohibited drug, and issues with regards consistency, as per cases we have been provided to show most! Similar recent cases (Pinfold 10.08.13 and Sargent 28.10.10) that there may need to be an amendment to clause 804 (2) in order to ensure consistency is indeed able to be achieved by the Tribunal.

With regards to the presence of two different drugs, Nordazepam and Temazepam.

Andrew Grierson, Chief Veterinarian NZTR postulates in his letter which I have here, that ‘it seems likely the parent (drug) Diazepam would be administered for both metabolites Temazepam and Nordazepam to be present in one urine sample, rather than both Temazepam and Nordazepam being administered concurrently’.

So we believe we are not looking at administration or contamination by two separate drugs but a sole drug, Diazepam.

Diazepam, as you have been advised is a human anti-depressant also available in veterinary medicine.

I think it is very important to note at this time that the horse is already of a very placid nature-so much so that we have on occasion taken his temperature to make sure he was not sick and the staff all joke about having to poke him to see if he’s awake.

While we do not disagree that this drug can affect the conduct of an animal (as per Rule 804(2)) we do pose the question as to what benefit there would be in administering a prohibited substance such as Diazepam to a horse that is already so laid back? And at the levels it was found (supposed contamination levels) how this could be of any benefit to the horse at all on race day? At what level of presence is this drug actually effectual in effecting changes of ‘conduct’ in an animal?

With the outlined effects of these drugs-central acting sedation, central acting muscle relaxation-we believe no benefit. And especially no benefit with regards to raceday based on the already placid nature of the horse.

RECORD KEEPING

The stable keep very good records, as do our veterinarians. The procedures performed and supplements administered/given to each horse is logged in an excel spreadsheet at the stable, this data capture method was implemented in July 2014. Mr Oliver has seen this spreadsheet and also another horse’s spreadsheet make comparisons as to the relative low maintenance horse that is “BLAZE SMARTIE’. Of course everything our vets do for our horses is also logged by them and billed out to us directly. Any administration of any drug by our veterinarians is always discussed and must be confirmed to proceed with the Trainers prior to administration to the horse.

Mr Oliver has questioned the veterinarian and it was confirmed that no such drug or drugs had ever been administered to ‘BLAZE SMARTIE’.

Both Ian McKay and Rob Hitchcock (both vets at Cambridge Equine Hospital) confirm that while Diazepam (the suspected parent drug) is available in Veterinary medicine in NZ it is very highly regulated and can only be dispensed by a veterinarian.

If anything had been administered to the horse our vets are the only people who could have administered it in a therapeutic dose unless of course we suspect foul play.

As Mr Oliver has pointed out, he believes -as we do, that the drug did not come from the vets or any treatment they have done on the horse.

None of our staff are believed to be on Diazepam and we have faith that our staff would tell the truth. We have an outstanding, close knit team, all of whom have been affected by this process, and all of whom have been advised that support would be offered if they were indeed requiring medical assistance to function normally in their day to day lives so we believe that there should be little to no motivation to lie about whether they are on anti-depressants.

TIMELINESS OF ADVICE

When we queried Mr Oliver as to what the usual procedure/process is by the NZTR and RIU with regards to advising trainers of the positive swab he advised that he was not aware of any written procedure for the investigation of positive swabs.

We asked for the date the NZTR/RIU were advised of the positive swab, this was the 16th of January 2015.

It is important to note that ‘BLAZE SMARTIE’ was swabbed again on the 17th of January 2015 after a placing in a race at Te Rapa. A negative swab.

This swab was taken 22 days after the positive swab was taken on 27th December 2014.

As you are aware we were not told of the positive swab until the 29thof January 2015.

Surely if we were deliberately administering a prohibited drug it would still be ‘swabbable’ as we were, as yet, unaware of the positive swab results.

I was advised by Mr Rob Howitt (Official Racing Analyst) of the New Zealand Racing Laboratory Service that it would take 2 senior chemists 2 days to complete all the various tests-when requesting the ‘B’ sample be tested. We understand that there will be some down time over the New Year period however a four week delay seems like a very long time.

We had CCTV installed in November (which unfortunately was no good to us in this case as when we were advised of the positive swab the footage had been deleted automatically by the system in order to make room for the next 4 week interval of recording) If we had been advised of proceedings by NZTR earlier we may have had a whole lot of camera footage to be able to look at. Even 5 days would have given us the opportunity to have this data at our disposal. Lost opportunity.

In response to a question from the Committee Ms Bell confirmed that prior to BLAZE SMARTIE’ racing at Rotorua on 27th December 2014 the horse was not receiving any medication of any nature other than normal supplements which are outside any veterinary involvement.

Mr JW Bell

Mr Bell told the Committee he was ‘gobsmacked’ when the horse ‘BLAZE SMARTIE’ won the race in question at Rotorua. He said he had all contact with the owners of the horse who live in Hong Kong. He added that they as trainers had added $1000 to the stake of another race that day to make it a total of $8000. This is done so that if a horse won that race it may ‘qualify’ it to be able to race in Hong Kong. The horse they trained in that race did not win. They had not added anything to the stake of ‘BLAZE SMARTIE’S’ race. He added that ‘BLAZE SMARTIE’ had fought ‘like a tiger’ to win his race by a short margin. Mr Bell said that subsequent to this win, the horse had started at Te Rapa a few weeks later and finished 2nd and had been swabbed again. The first he knew of the ‘positive’ by ‘BLAZE SMARTIE’ was when Mr Oliver and another RIU member had visited him at their stables and told him they had ‘bad news’, that ‘BLAZE SMARTIE’ had tested positive after his win at Rotorua.

Mr MJ Donoghue

Mr Donoghue said that ‘BLAZE SMARTIE’ was a very laid back horse and that made it very hard to understand the positive swab to the type of substance involved. He said that he had taken the horse to the Te Aroha trials not long before he won at Rotorua, that it was a very busy day, and that he had had to ‘wake’ the horse up to saddle him for his trial. The horse had finished strongly from the back of the field for 2nd that day.

Mr Donoghue told the Committee that on 27th December, their stable foreman had been in charge of getting the horse from their stables to Rotorua racecourse.

Comment by Committee

At this time in the hearing it was pointed out by the Committee that while the horse involved had returned a positive swab, none of the parties had challenged Mr Oliver’s submissions. The Committee made the point that it had not been stated that either of the trainers or their staff had administered the substance to ‘BLAZE SMARTIE’. There had never been any suggestion that there was any measure of ‘intent’ by either Mr Bell or Mr Donoghue and clearly there would have been different charge/s if that had been the case.

PENALTY SUBMISSIONS:

Mr B Oliver for Racing Integrity Unit:

1. The Integrity of Racing is paramount and all participants in the Racing Industry need to be aware of this. An industry that is reliant on the gambling dollar needs to always uphold its integrity to retain the public’s confidence.

2. Regardless of how they got there, the presence of drugs in a horse in a race undermines the very core of this integrity.

3. The detection of a prohibited substance as they are known now, sends an immediate reaction throughout the Racing Industry that a horse has won with the assistance of an unfair advantage, not apparent to other competitors, or equally important, to the punters who expect as much information and transparency as one can get before investing on the Totalisator.

4. On this occasion, investigators and the trainers are unable to explain how a drug designed for human consumption and obtainable only by prescription through a chemist has appeared in the urine sample. It appears that some sort of contamination has occurred rather than a deliberate attempt to administer the drug to the horse.

5. However, both Nordazepam and Temazepam are prohibited substances under the Rules of Racing (Fourth Schedule) in that they are substances capable at any time of acting directly or indirectly on the nervous system or under the category of anti- anxiety agents and sedatives.

6. The two most similar cases where the source of the prohibited substance was not established were ‘P’ (2013) and ‘S’ (2010). In each of these cases horses that won races were, when urine samples were analysed, found to have run with a prohibited substance in them. On each occasion the source of the prohibited substance was not detected and the trainer was fined $6000.

7. I am firmly of the opinion that the drugs found in ‘BLAZE SMARTIE’ were as a result of an unexplained contamination. I don’t believe that either trainer of this horse was the source of the contamination and I am unlikely to ever find out where the drug came from.

8. Neither trainer has a previous history of Rule breaches similar to this offence.

9. Rule 804 (8) provides for the disqualification of ‘BLAZE SMARTIE’ from Race 3 at Rotorua on the 27th of December 2014. Attached is an amended result of that race for your consideration.

10. The RIU seeks no costs other than the cost of having the ‘B’ sample analysed in Sydney. An order is sought for $1250 being part cost of the ‘B’ sample analysis. The RIU has not yet received an invoice for this analysis, it is believed it will be in the region of $1500, however only the sum of $1250 is sought.

11. In my opinion it has been a tragedy for the Bell family that this has happened. I have been to their stables and inspected them and their recording system and everything I have seen has been immaculate.

Ms SA Bell:

We absolutely understand the mere presence of the drug is enough to warrant penalty under the NZ Rules of Racing. We also understand that we are responsible for the horses in our care, wherever they are. However as I am sure you understand, it is very difficult for the horses to be under constant surveillance at all times. E.g. at the Cambridge Jockey Club, many passers-by at the races, people patting and rubbing the horse, also we are a small family stable with many friends and acquaintances coming and going on a day to day basis.

PENALTIES

I believe it is also important to note Point 12. Of Mr Oliver`s Summary states “…Neither trainer has appeared on any charges of this nature.”

We must ask that this please be taken into account when deciding on penalty … if any.

NZ Thoroughbred Racing Rule 804(2) states that… “UNLESS YOU SATISFY THE COMMITTEE THAT YOU HAD TAKEN ALL PROPER PRECAUTIONS TO PREVENT THE ADMINISTRATION OF SUCH PROHIBITED SUBSTANCE.”

We must state that we believe that we had in place measures and had taken proper precautions to protect both our horses and our staff.

We had CCTV installed in November (which unfortunately was no good to us in this case as when we were advised of the positive swab the footage had been deleted (automatically by the system) in order to make room for the next 4 week interval of recording. We have since increased capacity to hold 6 weeks data). If we had been advised of proceedings by NZTR earlier we may have had a whole lot of camera footage to be able to look at. Lost opportunity.

We have security gates, these were installed at the end of December 2014. These of course act as a deterrent however a determined individual can of course still jump a fence. I know you understand that we cannot be next to our horses 24/7.

All our feed is purchased from reputable grain merchants. One person, a trusted Stable Foreperson prepares their feed.

While gloves were always available at the stable for feed preparation (kept in the cleaning area), the Stable Foreperson has been instructed they must now wear the gloves at every feed preparation. All staff have been met with after the positive swab results and they have also been advised they must wear gloves if they are ever mixing feeds. These gloves are now kept in the feed room.

Our Stable Foreperson is very thorough with feed prep with each horse receiving its own named feed bin every day. She logs all feed supplements and all drugs used in the log book in the locked ‘drug room’.

We have Standard Operating procedures that all our staff and contractors are aware of. I have a copy here. It outlines our expectations of our staff and provides them parameters that they understand they must work within. Please note that I have updated the SOP’s post positive swab, to read (4a.) that every feed prepped must be done wearing the gloves provided.

All paddocks are labelled, covers are labelled and all boxes have blackboard paint on the door where the horses name is written. No confusion as to which horse you’re working with.

All drugs come from our well respected veterinarians Ian McKay and Rob Hitchcock from the Cambridge Equine Hospital or purchased directly from the Cambridge Equine Hospital.

Stable drugs were held in a locked box in the feed room however we have now contained these in a separate room, which is locked, in a locked box and there is also a log book there for the stable foreperson or trainer to fill out when accessing these drugs. The keys to this ‘drug’ room are locked inside a locked office, inside a locked ‘smoko’ room facility. If you need anything from this room, you really need to think about it!

Please be advised that neither the prohibited drug Diazepam or either of the metabolites, Nordazepam and Temazepam have ever been held or administered at our stable so it could not have been an accidental administration. All our staff have advised Mr Oliver during the interviews that it is not a prescription drug that they take.

Short of advising people not to pat or touch our horses or advising that we must be notified and data captured each time a horse bites or licks a sweaty farrier for example (no disrespect to farriers – it’s a physical job), how does one safeguard against these very innocent interactions?

We interpret the Rule 804(2) as per a speeding ticket, you exceed 100km/h limit there is a high probability you will receive a fine. There is always however room for the discretion of the officer with regards to penalty administered. I trust this is also the case here. Penalty applied at the discretion of yourselves on a case by case basis. If not, as mentioned earlier, perhaps an amendment to the Rule 804(2) may be required.

We believe that we are already suffering penalties:

Loss of Race winnings

Recompense owner, Nominations and acceptance fees, Transport, and Race day expense

Reputation – damage

Humiliation – damage via industry gossip

Possible loss of current and future business not only with the owner of ‘BLAZE SMARTIE’ but with other Hong Kong clients.

And at a more human, basic, level – the negative effect on both trainers and all staff with regards to the process.

CASES REFERRED TO BY MR OLIVER: Pinfold 10.08.13 and Sargent 28.10.10

We have been directed to two different cases by Mr Oliver that he advises are most? similar to our own. While they are similar in that the horses all swabbed for a prohibited substance, and they all were cases that were unable to be closed on finding evidence of administration of the swabbed drug – we do not believe they are similar with regards to the action – and quite possibly volume – of the drugs present in the cases. Something we must ask you to

sumissionsforpenalty:

reasonsforpenalty:

penalty:

hearing_type: Non-race day

Rules:

Informant:

JockeysandTrainer:

Otherperson:

PersonPresent:

Respondent:

StipendSteward:

raceid:

race_expapproval:

racecancelled:

race_noreport:

race_emailed1:

race_emailed2:

race_title:

submittochair:

race_expappcomment:

race_km:

race_otherexp:

race_chair:

race_pm1:

race_pm2:

meetid:

meet_expapproval:

meet_noreport:

waitingforpublication:

meet_emailed1:

meet_emailed2:

meetdate: no date provided

meet_title:

meet_expappcomment:

meet_km:

meet_otherexp:

tracklocation:

meet_racingtype:

meet_chair:

meet_pm1:

meet_pm2:

name: