Non Raceday Inquiry – NZTR v A D Scott – 22 November 2010 – Decision

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decisiondate: 22/11/2010

hearing_title: Non Raceday Inquiry - NZTR v A D Scott - 22 November 2010 - Decision

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DECISION OF NON-RACEDAY JUDICIAL COMMITTEE 22ND NOVEMBER 2010
1. THE CHARGE
1.1 Mr Scott is a Licensed Trainer at Matamata. He is charged under Rule 804(2) of the Rules of Racing. It is said, in summary, that the horse Fireside raced at Matamata on the 29th October 2010 in a race named the [email protected] 3yr old 1200 meter event and that the horse won the race. When Fireside was subsequently required to undergo a routine test the prohibited substance Ketoprofen was found to be present.
1.2 Further NZTR has notified the ownership of the horse under Rule 804(1) and seeks a ruling that the horse be disqualified with the other consequences that follow from such disqualification i.e. the forfeiture of stake money and the alteration to the placings.
1.3 Mr Scott formally admitted the charge at the commencement of the hearing.
2. THE POSITION OF NZTR
2.1 Mr Bryan McKenzie is the informant. He presented a detailed summary of facts. All references in this decision are to Mr Bryan McKenzie.
2.2 Inquiries were undertaken by Mr McKenzie. These established that the stable acknowledged the administration of the prohibited substance. Mr McKenzie visited the stables and found all drug cupboards securely locked and that the records for drug administration had been meticulously maintained.
2.3 The substance in question Ketoprofen has a recommended withholding time of 96 hours. This is confirmed by advice from Dr Grierson the NZTR veterinarian. Mr Scott for his part acknowledged an acquaintance with the substance and he told the Committee that he was well aware of the recommended withholding time.
2.4 The stables operated by Mr Scott are known as Wexford Stables. For many years this was the base of the very successful O’Sullivan training establishment. First Mr Dave O’Sullivan and more latterly Mr Dave O’Sullivan in partnership with his son Paul. Mr Dave O’Sullivan’s son Mr Lance O’Sullivan was many times champion jockey of New Zealand and rode a great many of the successful horses from the Wexford Stables.
2.5 The records which Mr McKenzie examined established that the substance Ketoprofen was administered to the horse 100 hours and 19 minutes before the race in question took place. It can thus been seen that the withholding period was exceeded by some 4 hours.
2.6 Mr McKenzie stressed that he had received complete co-operation from Mr Scott and the personnel employed at Wexford Stables.
3. MR SCOTT’S POSITION
3.1 Mr Scott made a detailed statement to Mr McKenzie which was signed this morning before the hearing began. In that statement he explained that Ketoprofen is an anti inflammatory drug. It had been administered to Fireside because she had been slightly scratchy in her action. The horse was given 10 mls and Mr Scott said that this is the common dosage in the circumstances which were prevailing at the time.
3.2 Mr Scott insisted that the positive test came as a complete surprise to him. He said this had caused him considerable embarrassment not only with the owners of the horse but with the wider racing fraternity. He assured the Committee as he had Mr McKenzie that this was an inadvertent situation and that he had never previously had a situation where any horse had tested positive. Moreover he said that he did not know of any cases where a horse had tested positive outside the recommended withholding period. It is within the knowledge of the Committee that the recommended withholding period differs from one medication to another but these withholding periods are widely publicised and well known particularly amongst leading training establishments such as Wexford Stables.
4. DISCUSSION
4.1 Mr McKenzie said that the management and supervision of Wexford Stables was of the highest quality. He pointed to the success of the stable both historically and currently. He rightly drew attention to Mr Scott’s previous appearances before Judicial Committees. There are two (2) appearances of relevance. Both relate to breaches of Rule 1001. The first was in November 2003 and the second in February 2005. The circumstances are known to the Committee. Neither bears any meaningful comparison to the present situation. Moreover the most recent of those was more than five (5) years ago. While drawing attention to these matters Mr McKenzie did not suggest that they are aggravating considerations which should increase any penalty that might otherwise be appropriate. In large measure the Committee agrees with that submission and those previous appearances are in our view of little consequence in setting the appropriate penalty in this case.
4.2 There have been a number of cases in comparatively recent times involving horses returning positive swabs for prohibited substances. In the course of submissions the Committee drew attention to these. In this part of New Zealand these include NZTR v B & B (partnership), NZTR v M & M (partnership), NZTR v W, NZTR v N and NZTR v S. That latter case was heard here at Te Rapa as recently as the 28th October this year. Taking today’s case into account four (4) of those cases involve leading Matamata Stables. That is a matter of serious concern to the Committee.
4.3 Trainers at all levels must be aware that the Prohibited substance Rule imposes absolute liability. Starting horses close to the recommended withholding period must necessarily involve an element of risk. For the purposes of fixing penalty today the Committee accepts Mr Scott’s account which is supported by the records which Mr McKenzie examined. Nonetheless the horse was sent out to race close to the recommended withholding period and as can now be seen those circumstances involved an element of risk.
4.4 We are satisfied that there was no intentional breach of the rule. Further we are satisfied that this was not a case of negligence. On Mr Scott’s account it was a case where the withholding period recommended (it has no force of law) was not sufficient to protect the trainer and the connections of the horse from the positive swab which resulted.
4.5 The most recent cases which bear comparison with the present are NZTR v N and NZTR v S. Both of those cases involved Matamata based trainers although in the latter case the events occurred in the South Island stable of that trainer. Those stables, like this stable, were and are well run. Nonetheless these three (3) cases together show that even in the best managed establishments this rule can be breached.
 

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5. DECISION
5.1 Mr McKenzie sought a monetary penalty. He indicated that in the view of NZTR suspension and/or disqualification would not be appropriate. For its part the Committee accepts that this is not a case which merits suspension or disqualification and a monetary penalty is entirely appropriate. In fixing the level of that penalty regard must be had to the nature of the breach which resulted in the positive test. Where there has been a complete disregard of the rules or conduct amounting to negligence or perhaps bordering upon gross negligence a significant monetary penalty has been imposed. Where a trainer or trainers have appeared for repeated breaches of the rule suspension and/or disqualification may require consideration. One such case came before a Judicial Committee in comparatively recent times. Neither of those circumstances just outlined has application here. As noted earlier this case is closest to NZTR v N and NZTR v S.
5.2 For the reasons explained there will be a monetary penalty and by reference to the decisions mentioned the fine imposed will be at a figure of $6,000.00. Mr McKenzie sought costs for NZTR. Mr Scott was asked about costs and he indicated that he had no submissions to make. In these circumstances there will in addition to the fine be an order that costs be paid to NZTR in the sum of $750.00 and to the JC A in the sum of $600.00
6 DISQUALIFICATION
6.1 There will be a ruling pursuant to Rule 804(1) disqualifying the horse Fireside in respect of the [email protected] 3yr old 1200 meter race which took place at Matamata on Friday 29th October 2010 and all stake money shall be forfeited. The owners of the horse are directed to refund any stake money that has been paid.
6.2 As a result of the ruling just made the amended placings in the subject race will be as follows:
1st Guru Girl
2nd Chennai
3rd Papilo
4th Hassle Free
5th Unforseen
6.3 We thank Mr Bryan McKenzie for his helpful submissions and the very fair way in which he has presented the case today. We also acknowledge Mr Scott’s co-operation and willingness to assist the Committee.
6.4 There is one further thing that the Committee wishes to say. Today we do not have the unique presence of Mr John McKenzie and we shall miss that at hearings of this nature. Mr John McKenzie recently announced his retirement which has now taken effect. The Committee notes his long service and the integrity with which he represented NZTR.

DATED this 22nd day of November 2010

__________________________________ _______________________________
Murray McKechnie                          Richard Seabrook
Chairman

ADDENDUM
Ms Maryanne Twentyman a journalist with the Waikato Times has been present throughout this hearing today. She sought from the Committee a copy of Mr Scott’s statement. Mr McKenzie explained to the Committee during the course of the hearing that the statement had been prepared before today but it was clear that it was signed earlier today the 22nd November 2010. That statement was not read by Mr McKenzie. Copies of it were made available to the Committee.
Following Ms Twentyman’s request the Committee spoke with Mr McKenzie and Mr Scott and sought their views as to whether this statement should be available. In the course of that discussion Mr McKenzie explained that Ms Twentyman had received a copy of the summary of facts presented by NZTR and the penalty submissions which NZTR made to the hearing.
The statement made by Mr Scott speaks about his personal circumstances and the upset and concern that has resulted from this prosecution. There is reference to the widespread publicity. In the Committee’s view this statement was prepared by Mr Scott in order that he could indicate frankly to the Committee the position which he was in and how he felt. In those circumstances no useful purpose would be gained by putting that statement in the public domain and accordingly no copy of that statement is to be released.
 

hearing_type: Non-race day

Rules: 804(1)

Informant: Mr Bryan McKenzie

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PersonPresent: Ms Maryanne Twentyman, Journalist Waikato Times, Mr Callum MCGrath, Support Person, Mr John Oatham, Regisrar

Respondent: Mr Andrew David Scott

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