Non Raceday Inquiry RIU v N A Chilcott 12 September 2013 – Decision dated 4 December 2013
ID: JCA15437
Decision:
BEFORE A JUDICIAL COMMITTEE OF THE JUDICIAL CONTROL AUTHORITY
UNDER THE RACING ACT 2003
IN THE MATTER of the New Zealand Rules of Harness Racing
THOMAS RODNEY CARMICHAEL, Chief Racing Investigator for the Racing Integrity Unit (RIU)
Informant
NICOLA ANN CHILCOTT, Licensed Public Trainer/ Open Horsewoman
Respondent
Information: Nos. 69186/69187
Appearing: Mr C Lange for the informant, Mr M Branch for the respondent
Judicial Committee: Prof G Hall, Chairman - Mr M McKechnie, Committee Member
DECISION OF JUDICIAL COMMITTEE
[1] The respondent, Ms Chilcott faced two charges.
[2] Information 69816 alleged: “On the 27th day of April 2012 Nicola Ann Chilcott was the trainer and person for the time being in charge of the horse PRECIOUS MACH which was presented to race in race 6 (New Zealand Herald Mobile Pace) at a race meeting conducted by the Auckland Trotting Club at Alexandra Park, when not free of a prohibited substance, namely 0-desmethyltramadol, being in breach of r 1004(1) and 1004(2) of the New Zealand Rules of Harness Racing; and that Nicola Ann Chilcott is therefore liable to the penalty or penalties that may be imposed pursuant to r 1004(7) and that the horse Precious Mach is liable to the penalty provided in r 1004(8).”
[3] Information 69817 alleged: “On or about the 27th day of April 2012, Nicola Ann Chilcott committed a breach of the provisions of r 1001(1)(q) of the New Zealand Rules of Harness Racing in that she did administer, or cause to be administered, to a horse PRECIOUS MACH which had been entered for and competed in race 6 at a race meeting conducted by the Auckland Trotting Club at Alexandra Park, a prohibited substance, namely 0-desmethyltramadol; and that Nicola Ann Chilcott is therefore liable to the penalty or penalties that may be imposed pursuant to r 1001(2); and that the horse Precious Mach may be subjected to the penalty provided in r 1001(3).”
[4] At the commencement of the hearing Ms Chilcott admitted the breach of r 1004(1) and 1004(2), which we find proved in accordance with r 1111(1)(d). The informant sought and was granted leave to withdraw information 69817.
[5] Rule 1004(7) sets out the penalties for a breach of the prohibited substance rule which include a fine not exceeding $20,000 and/or disqualification or suspension from holding or obtaining a licence for any period not exceeding five years.
[6] Rule 1004(8) provides for the mandatory disqualification of the horse from the race where a breach of r 1004(1) or (2) is found to be proved.
The facts and related submissions
[7] The facts, which we summarise, are outlined in the informant’s submissions:
PRECIOUS MACH was a 4 year-old bay mare owned by Mrs P Dunnell, Ms K Griffiths, Mrs J Griffiths and C McKay and trained by the defendant, Ms Chilcott.
PRECIOUS MACH won race 6 (New Zealand Herald Mobile Pace) at a race meeting conducted by the Auckland Trotting Club at Alexandra Park on 27 April 2012 by 6 1/2 lengths and the stake payable for the winner was $9,554.
A post-race swab was taken from the horse, which was initially tested at the New Zealand Racing Services Laboratory in Auckland and cleared. The swab was subsequently sent to Hong Kong for further analysis and tested positive for 0-desmethyltramadol.
Ms Chilcott was interviewed at her Cambridge Stables on 5 June 2012 and when advised of the positive swab promptly acknowledged that Tramadol was a human painkilling product that was prescribed for her by her doctor, but was unable initially to give any explanation as to why Tramadol had been detected in the urine swab of PRECIOUS MACH.
Later in the interview, Ms Chilcott acknowledged having Tramadol most nights when racing, which she kept not in her horse gear bag, but in a little plastic container in her driving bag.
On 8 June 2012, Ms Chilcott spoke with a journalist, Mr Knight, and was quoted as commenting that the only possible explanation was that she had taken some, had it on her hands, then passed it on to the horse when putting on its tongue-tie or bridle.
[8] Mr Colson called HRNZ and NZTR veterinary consultant, Dr Andrew Grierson. He stated that Tramadol and its metabolites were prohibited substances under the NZ Rules of Harness Racing.
[9] Dr Grierson said he was a practising veterinarian and that he accepted that Professor Thomas Tobin, to whom he believed the respondent was going to make reference, was a respected academic. Dr Grierson said that while it was not his field of expertise, he did not agree with some of Professor Tobin’s statements. He said there were limited studies on the effect of Tramadol on animals. He said there was no registered product licensed for use in animals containing Tramadol. He believed the effect of the drug would be greater when it was administered epidurally rather than orally, as it was poorly absorbed.
[10] Dr Grierson stated that he had spoken to a number of veterinarians and no one was aware of the drug having being used on a horse. He stated it was impossible to tell from one urine sample how much of the drug had been given to a horse. In his opinion, it could not be inferred that when a very low level was detected, it was not likely to have an effect on a horse. There was “good evidence” showing certain opioids of this group could have an excitement effect on horses at extremely low doses. The level of the drug detected was thus irrelevant, he believed. That it was detected was the most important fact.
[11] Ms Chilcott addressed the Committee. She stated she was flabbergasted when told PRECIOUS MACH, after testing clear in New Zealand, had been found on re-testing in Hong Kong to be positive to Tramadol.
[12] The respondent stated that the horse had not been treated for any injury before it won the race in question. She said no equine preparation contained Tramadol, and her pills, which she kept only at her home and in a plastic container in her driving bag, had never been near the stable.
[13] Ms Chilcott said she suffered from chronic back pain and could not get out of bed in the mornings without taking Tramadol, and “99 times out of 100” she took some on race night.
[14] Ms Chilcott reiterated the view she had first expressed to the journalist, Mr Knight, that the only logical explanation for the drug entering the horse’s system was that she had taken some, had it on her hands, then passed it on to the horse when putting on its tongue-tie or bridle immediately before the race.
[15] Mr Branch produced a signed statement, dated 26 June 2013, from Mr Grant Clayton, pharmacist, in which he said Ms Chilcott had returned a packet of Tramadol 50 mg capsules to the Duke St Pharmacy towards the end of April as six of the capsules were faulty, in that the foil was open, the capsules exposed and their gelatin covering compromised.
[16] Ms Chilcott said it was her belief that she had inadvertently got some of the pills’ contents on her hands through the blister pack being damaged to the extent that grains of the drug had escaped from their gelatin covering. In support of this explanation, the respondent produced a signed letter from Kentucky authority Professor Thomas Tobin, dated 14 June 2012, that stated contamination from human medication was an emerging problem worldwide because of new, sophisticated testing, and that most of the cases traced back to tongue-ties.
[17] Professor Tobin stated the 100 picograms per millilitre of the metabolite O-desmethyltramadol detected by the Hong Kong laboratory was equivalent to one second in a person’s life if he or she were 320 years old. One picogram was one part per trillion. He added that to his knowledge this was the lowest concentration of O-desmethyltramadol ever reported in a horse. In his opinion, there was no possibility whatsoever of a pharmacological effect on the racing performance of the horse.
[18] Professor Tobin further stated that Tramadol was poorly absorbed orally in the horse (3 per cent) and experiments he and his colleagues at Michigan State University undertook showed no statistically significant changes at increasing doses.
[19] Mr Branch addressed the issue of the respondent’s culpability by submitting that rather than there being a high degree of negligence, as had been submitted by the RIU, the transference in this manner of a drug used in humans was an outcome that could not reasonably have been anticipated. He emphasised that the New Zealand laboratory could not even identify the presence of the drug. It was only the minutest of traces.
Submissions on Penalty
[20] The informant acknowledged the RIU had been unable to establish how the drug Tramadol came to be in PRECIOUS MACH’s system. Having regard to the respondent’s explanation that the transference of the drug had occurred due to her having inadvertently contaminated the tongue-tie of the horse with Tramadol when applying it at the races, the informant submitted Ms Chilcott’s culpability could not be regarded as being at the lower end of the scale. Equally, however, the informant did not suggest that culpability was at the higher end of the scale. Her culpability was identified to be at a level that was appropriately met not by a fine, but by a short term of disqualification or a suspension, not only to denounce her conduct, but also to provide general and specific deterrence.
[21] In response to questioning from the Committee, the informant acknowledged that while it had stated in its written submissions that the respondent’s actions demonstrated a high degree of carelessness or negligence and her conduct had fallen well below the standards expected of licensed trainers, the RIU now accepted that the culpability of her actions was better described as moderate and that a penalty of a “mid-range suspension” was appropriate.
[22] The informant produced the respondent’s record, which was clear under this Rule.
[23] The informant referred the Committee to RIU v S (25 September 2012) where the Appeals Tribunal reinforced the following principles:
a) the duties on trainers with respect to prohibited substances are high and appropriately so and proper care and vigilance is required at all times at the stables and at the track ([35]);
b) an assessment of the circumstances as to how the prohibited substance came to be present in the horse is an appropriate consideration in assessing culpability for the purpose of penalty (42]);
c) where a breach involves low culpability, the appropriate sanction may be a monetary penalty; and cases at the other end of the spectrum involving high levels of negligence, in light of the decisions of Lamb (1998) and Bentley (1998), may be met with penalties of suspension or disqualification ([44]);
d) it is imperative for the future of the industry that racing be perceived to be, and indeed is, drug free. General deterrence and denunciation are appropriate purposes when imposing penalty and there is a need to bring home to trainers/owners the heavy responsibility of presenting horses free of prohibited substances ([45]).
[24] The respondent submitted that any penalty other than a fine was excessive in the circumstances of the case. Mr Branch emphasised credit had to be given to the respondent’s admission of the breach and her co-operation with the inquiry. He said her culpability was at the lowest possible end of the spectrum. The transference of the drug had occurred in the most unusual circumstances and only the minutest traces had been found by the laboratory in Hong Kong and these had been undetectable in New Zealand. He emphasised that there was no suggestion the stable had been careless and that the cross-contamination could not reasonably be anticipated.
[25] Ms Chilcott addressed the Committee in person. She said she had approximately 20 horses in the barn at any one time and had a staff of three, although this included herself. She said she would have to give the horses to someone else to train whilst she was suspended and, with the horses leaving the stable, this would be very disruptive, and she was concerned for the people she employed.
Submissions as to quantum of fine
[26] We took time for deliberation and stated that we believed a fine was the appropriate penalty. The parties were then asked to make submissions as to quantum.
[27] The informant identified a fine in the range of $6000 to $9000 as being appropriate for Ms Chilcott. Mr Lange referred the Committee to the recent case of NZTR v P (16 August 2013). A fine of $6000 was imposed upon a thoroughbred trainer where a horse had returned a positive to the anabolic steroid Boldenone in unexplained circumstances.
[28] Mr Branch referred to Da (9 February 2013) (unexplained presence of Phenylbutazone) where a fine of $6000 was imposed on a leading trainer, but there had been a previous breach, and Do (26 June 2011) where the fine was $1800. The prohibited substance in Do was also Phenylbutazone (Bute) and it appeared the source was a contaminated feed bucket, as the substance was legitimately being given to another horse in the stable.
[29] Mr Branch described the respondent’s financial circumstances, which we do not recount in this decision, but we have taken this factor into account. In particular, he said the respondent did not pay herself a wage and that a fine of $1000, which he submitted was the appropriate penalty, would “hurt”.
Decision as to penalty
[30] We adopt the principles set out in S (above). The duty upon the respondent to exercise proper care and vigilance when attending to a horse is an onerous one. That said, with reference to the manner in which the substance came to be in the horse’s system and the quantity of the drug, we impose penalty on the basis that the positive reading to 0-desmethyltramadol is a consequence of accidental transference from the respondent’s hands to the tongue-tie or bridle of PRECIOUS MACH. This was due to her handling the horse after the blister strip of the drug Tramadol had ruptured exposing the capsules, which, in turn, had punctured, and grains of the drug had escaped.
[31] With regard to the extent of Ms Chilcott’s breach of her duty of care, we accept the capsules were not kept with her driving gear but in the bag she left in the drivers’ room. However, as she has acknowledged, she did not always wash her hands after handling the capsules, as she had not foreseen the possibility of the drug being transferred to the horse through the medium of her hands. We note her comment that “people must take open pills all the time at the races and this highlights how careful you have to be. I’m over the top now. I wash my hands every time after taking my pills.” We agree with her that the need to wash her hands immediately after handling the Tramadol capsules is now clearly a necessity. However, it should have been an obvious precaution for her to take prior to the return of this positive test.
[32] The quantity of the drug detected in the horse’s system is extremely small. Professor Tobin describes it as being, to his knowledge, the lowest concentration of O-desmethyltramadol ever reported in a horse. The New Zealand laboratory could not detect its presence. Despite Dr Grierson querying the importance of the level of the drug detected, we believe this is a significant mitigating factor.
[33] Adopting this factual basis we believe Ms Chilcott’s degree of culpability cannot be said to be high, but rather falls within the low to moderate range. Despite the informant’s emphasis on the need for denunciation and deterrence, which we accept is a principal factor when sentencing for a breach of the prohibited substance Rule, this degree of culpability does not warrant the imposition of a short term of suspension or a disqualification. We accept the respondent’s submission that such a penalty would be particularly disruptive and could put the livelihood of her staff at risk. This outcome is simply not justified in the particular and peculiar circumstances of this case.
[34] We have regard to the decisions to which counsel made reference in their submissions. We accept that Ms Chilcott’s culpability is not higher than that in Do (2011) (above) but that case predates the amendment of the Rule increasing the maximum fine from $10,000 to $20,000. The informant in Do submitted a fine of $3000 was the appropriate penalty. The Committee took that figure as a starting point and reduced the fine to $1800 due to mitigating factors. The penalty imposed in that case could be seen to be lenient and is to be compared with decisions such as M (2011) (Phenylbutazone), a case arising out of a qualifying trial, where the trainer was fined $2,000. The penalty imposed in both P (2013) (above) and Da (2013) (above) was a fine of $6000.
[35] We believe the most helpful case is J (December 2011) where a fine of $3,500 was imposed on the trainer of the winner of a major race, the Interdominion Pacers Grand Final. This penalty was said by the Appeals Tribunal (March 2012) to be “well within the range open to the Committee to impose”. In this case a positive reading to DMSO (Dimethylsulfoxide) was returned in unexplained circumstances. The trainer was liable as the rule was held to be one of absolute liability.
[36] We accept the informant’s submission that the Rules require participation in the sport to be free of prohibited substances and that this is achieved by means of the imposition of strict obligations on trainers and the imposition of what Mr Lange described as “real” penalties. However, it is our view that a fine is an effective deterrent penalty in the somewhat unusual circumstances of this case. It is our view that the appropriate starting point having regard to the gravity of the breach and the respondent’s culpability is a fine in the range of $4000 to $4500, before regard is had to personal circumstances.
[37] We identify no aggravating personal factors but accept the respondent’s absence of any previous breach of this Rule, her co-operation in the inquiry and her admission of the breach at the hearing, and her financial circumstances to be mitigating considerations. We also have regard to the fact we intend to make an award of costs against Ms Chilcott.
[38] We impose a fine of $3300.
Costs
[39] In light of the fact that one consideration in determining the quantum of the fine is the total financial impost that would be faced by the respondent, we required the parties to provide written submissions as to costs. We accept, of course, that there is no punitive element to an award of costs.
[40] We are guided by the decisions in B (21 December 2011) and NZTR v McA (2011).
[41] On the face of r 1114(3), which establishes the jurisdiction to make orders for costs, the discretion is unqualified, with no presumption either way. However, it must be exercised on a principled basis.
[42] In McA, the Judicial Committee said:
On the face of it there seems no compelling reason in principle why those whose conduct has led to the institution of disciplinary procedures should not, within limits, bear the expense of those procedures if they are ultimately found to have breached the Rules as charged. Obviously given the nature and intended width of the discretion conferred by r 920(3) [of the Rules of Racing, which, although worded differently is of similar effect to r 1114(3)] that factor will not necessarily be the only consideration to be brought to account in deciding to award costs or in fixing the quantum in any case, but there seems no reason why that should not be the starting point for the exercise of the discretion in any given instance.
[43] We concur.
[44] The informant has identified the RIU’s costs as $3290 and the JCA’s as $2170. The informant noted that the respondent had submitted at the hearing that the administration charge should never had been laid and that its sole purpose was to elicit a guilty plea to the less serious charge. The informant pointed to the broad interpretation that had been given to the word “administration” in the High Court decision in McInerney v Templeton (10 December 1999) and submitted it was open to it to proceed with the administration charge but had elected “at a practical level”, having regard to the costs to the industry of a defended charge, not to do so. There was a factual basis, it said, for such a charge and the issue would have been whether there was a total absence of fault.
[45] The informant also stated that on 1 August 2013 the RIU had responded to the respondent’s email of 17 July indicating that if Ms Chilcott admitted the prohibited substance charge the administration charge would be withdrawn.
[46] The respondent submitted that no costs should be ordered. The submission first made at the hearing, that the more serious charge of administration should never have been laid as it was “without any basis whatsoever” and was designed solely to apply pressure to have Ms Chilcott plead guilty to the breach of the prohibited substance rule, was repeated.
[47] Mr Branch stated the respondent had had the more serious administration charge hanging over her head for some time and that people in the industry had drawn the conclusion that she was a drugs cheat. He stated it was well established that administration, which was a serious racing offence, required proof of mens rea.
[48] The respondent further submitted that it was relevant that the RIU had failed to prove the one fact that Ms Chilcott would not accept from the summary of facts: viz, that Tramadol had no legitimate therapeutic use in equine medicine. There had been no evidence discovered or produced, Mr Branch said, that supported that statement and yet the RIU refused to take it out and had refused to provide any reason for wanting it in. Indeed, he noted that Dr Grierson had specifically accepted that Tramadol had a therapeutic use in equine medicine, although Dr Grierson considered there were more effective products. This issue, he said, should thus have been able to be resolved by settling on the agreed facts and having the matter determined on the papers.
[49] We accept that the respondent indicated a willingness to admit a prohibited substance charge on 10 July 2013 subject to an agreement on the summary of facts. And on 17 July a further email was sent indicating an admission of the negligence charge provided a disputed statement in the summary of facts was removed and another added.
[50] We believe the significance of the disputed fact was overstated by both parties when regard is had to the accepted means by which the drug Tramadol came to be in the horse’s system (accidental transference by unwashed hands). It was never a factor that was going to have any significant impact upon the nature or quantum of the final penalty.
[51] We see no need to consider the competing submissions as to whether an administration charge is one of strict liability or requires proof of mens rea. That issue is simply not a matter that we need to determine in the context of an award of costs. We accept, however, that the laying of the administration charge was within the informant’s prosecutorial discretion and that no undue pressure was placed upon the respondent to admit the prohibited substance charge.
[52] We believe it is appropriate that Ms Chilcott make some contribution to the costs of the prosecution. Costs must be just and reasonable in the circumstances and we temper our award having regard to her indications on 10 and 17 July that she would admit the breach and the matter could be determined on the papers subject to the removal of the reference to the therapeutic use of the drug in horses. Regard is also again had to her personal circumstances and the quantum of the fine.
[53] We order that the respondent pay costs of $1400 to the RIU and $1400 to the JCA.
Disqualification
[54] As a consequence of our finding the breach of r 1004(1) and (2) proved, r 1004(8) provides for the mandatory disqualification of the horse from the race. We therefore order the disqualification of PRECIOUS MACH from 1st place in race 6 (New Zealand Herald Mobile Pace) at the race meeting conducted by the Auckland Trotting Club at Alexandra Park on 27 April 2012. In accordance with arrangements reached between counsel, this order for disqualification is stayed pending the judgment of the Court of Appeal in the extant proceedings with respect to the horse DELIGHTFUL CHRISTIAN (Harness Jewels meeting; 2 June 2012).
Dated this 4th day of December 2013
Geoff Hall Chairman
Murray McKechnie Member of Committee
Appeal Decision: NO LINKED APPEAL DECISION
Decision Date: 30/11/2013
Publish Date: 30/11/2013
JCA Decision Fields (raw)
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decisiondate: 30/11/2013
hearing_title: Non Raceday Inquiry RIU v N A Chilcott 12 September 2013 - Decision dated 4 December 2013
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appealdecision: NO LINKED APPEAL DECISION
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Decision:
BEFORE A JUDICIAL COMMITTEE OF THE JUDICIAL CONTROL AUTHORITY
UNDER THE RACING ACT 2003
IN THE MATTER of the New Zealand Rules of Harness Racing
THOMAS RODNEY CARMICHAEL, Chief Racing Investigator for the Racing Integrity Unit (RIU)
Informant
NICOLA ANN CHILCOTT, Licensed Public Trainer/ Open Horsewoman
Respondent
Information: Nos. 69186/69187
Appearing: Mr C Lange for the informant, Mr M Branch for the respondent
Judicial Committee: Prof G Hall, Chairman - Mr M McKechnie, Committee Member
DECISION OF JUDICIAL COMMITTEE
[1] The respondent, Ms Chilcott faced two charges.
[2] Information 69816 alleged: “On the 27th day of April 2012 Nicola Ann Chilcott was the trainer and person for the time being in charge of the horse PRECIOUS MACH which was presented to race in race 6 (New Zealand Herald Mobile Pace) at a race meeting conducted by the Auckland Trotting Club at Alexandra Park, when not free of a prohibited substance, namely 0-desmethyltramadol, being in breach of r 1004(1) and 1004(2) of the New Zealand Rules of Harness Racing; and that Nicola Ann Chilcott is therefore liable to the penalty or penalties that may be imposed pursuant to r 1004(7) and that the horse Precious Mach is liable to the penalty provided in r 1004(8).”
[3] Information 69817 alleged: “On or about the 27th day of April 2012, Nicola Ann Chilcott committed a breach of the provisions of r 1001(1)(q) of the New Zealand Rules of Harness Racing in that she did administer, or cause to be administered, to a horse PRECIOUS MACH which had been entered for and competed in race 6 at a race meeting conducted by the Auckland Trotting Club at Alexandra Park, a prohibited substance, namely 0-desmethyltramadol; and that Nicola Ann Chilcott is therefore liable to the penalty or penalties that may be imposed pursuant to r 1001(2); and that the horse Precious Mach may be subjected to the penalty provided in r 1001(3).”
[4] At the commencement of the hearing Ms Chilcott admitted the breach of r 1004(1) and 1004(2), which we find proved in accordance with r 1111(1)(d). The informant sought and was granted leave to withdraw information 69817.
[5] Rule 1004(7) sets out the penalties for a breach of the prohibited substance rule which include a fine not exceeding $20,000 and/or disqualification or suspension from holding or obtaining a licence for any period not exceeding five years.
[6] Rule 1004(8) provides for the mandatory disqualification of the horse from the race where a breach of r 1004(1) or (2) is found to be proved.
The facts and related submissions
[7] The facts, which we summarise, are outlined in the informant’s submissions:
PRECIOUS MACH was a 4 year-old bay mare owned by Mrs P Dunnell, Ms K Griffiths, Mrs J Griffiths and C McKay and trained by the defendant, Ms Chilcott.
PRECIOUS MACH won race 6 (New Zealand Herald Mobile Pace) at a race meeting conducted by the Auckland Trotting Club at Alexandra Park on 27 April 2012 by 6 1/2 lengths and the stake payable for the winner was $9,554.
A post-race swab was taken from the horse, which was initially tested at the New Zealand Racing Services Laboratory in Auckland and cleared. The swab was subsequently sent to Hong Kong for further analysis and tested positive for 0-desmethyltramadol.
Ms Chilcott was interviewed at her Cambridge Stables on 5 June 2012 and when advised of the positive swab promptly acknowledged that Tramadol was a human painkilling product that was prescribed for her by her doctor, but was unable initially to give any explanation as to why Tramadol had been detected in the urine swab of PRECIOUS MACH.
Later in the interview, Ms Chilcott acknowledged having Tramadol most nights when racing, which she kept not in her horse gear bag, but in a little plastic container in her driving bag.
On 8 June 2012, Ms Chilcott spoke with a journalist, Mr Knight, and was quoted as commenting that the only possible explanation was that she had taken some, had it on her hands, then passed it on to the horse when putting on its tongue-tie or bridle.
[8] Mr Colson called HRNZ and NZTR veterinary consultant, Dr Andrew Grierson. He stated that Tramadol and its metabolites were prohibited substances under the NZ Rules of Harness Racing.
[9] Dr Grierson said he was a practising veterinarian and that he accepted that Professor Thomas Tobin, to whom he believed the respondent was going to make reference, was a respected academic. Dr Grierson said that while it was not his field of expertise, he did not agree with some of Professor Tobin’s statements. He said there were limited studies on the effect of Tramadol on animals. He said there was no registered product licensed for use in animals containing Tramadol. He believed the effect of the drug would be greater when it was administered epidurally rather than orally, as it was poorly absorbed.
[10] Dr Grierson stated that he had spoken to a number of veterinarians and no one was aware of the drug having being used on a horse. He stated it was impossible to tell from one urine sample how much of the drug had been given to a horse. In his opinion, it could not be inferred that when a very low level was detected, it was not likely to have an effect on a horse. There was “good evidence” showing certain opioids of this group could have an excitement effect on horses at extremely low doses. The level of the drug detected was thus irrelevant, he believed. That it was detected was the most important fact.
[11] Ms Chilcott addressed the Committee. She stated she was flabbergasted when told PRECIOUS MACH, after testing clear in New Zealand, had been found on re-testing in Hong Kong to be positive to Tramadol.
[12] The respondent stated that the horse had not been treated for any injury before it won the race in question. She said no equine preparation contained Tramadol, and her pills, which she kept only at her home and in a plastic container in her driving bag, had never been near the stable.
[13] Ms Chilcott said she suffered from chronic back pain and could not get out of bed in the mornings without taking Tramadol, and “99 times out of 100” she took some on race night.
[14] Ms Chilcott reiterated the view she had first expressed to the journalist, Mr Knight, that the only logical explanation for the drug entering the horse’s system was that she had taken some, had it on her hands, then passed it on to the horse when putting on its tongue-tie or bridle immediately before the race.
[15] Mr Branch produced a signed statement, dated 26 June 2013, from Mr Grant Clayton, pharmacist, in which he said Ms Chilcott had returned a packet of Tramadol 50 mg capsules to the Duke St Pharmacy towards the end of April as six of the capsules were faulty, in that the foil was open, the capsules exposed and their gelatin covering compromised.
[16] Ms Chilcott said it was her belief that she had inadvertently got some of the pills’ contents on her hands through the blister pack being damaged to the extent that grains of the drug had escaped from their gelatin covering. In support of this explanation, the respondent produced a signed letter from Kentucky authority Professor Thomas Tobin, dated 14 June 2012, that stated contamination from human medication was an emerging problem worldwide because of new, sophisticated testing, and that most of the cases traced back to tongue-ties.
[17] Professor Tobin stated the 100 picograms per millilitre of the metabolite O-desmethyltramadol detected by the Hong Kong laboratory was equivalent to one second in a person’s life if he or she were 320 years old. One picogram was one part per trillion. He added that to his knowledge this was the lowest concentration of O-desmethyltramadol ever reported in a horse. In his opinion, there was no possibility whatsoever of a pharmacological effect on the racing performance of the horse.
[18] Professor Tobin further stated that Tramadol was poorly absorbed orally in the horse (3 per cent) and experiments he and his colleagues at Michigan State University undertook showed no statistically significant changes at increasing doses.
[19] Mr Branch addressed the issue of the respondent’s culpability by submitting that rather than there being a high degree of negligence, as had been submitted by the RIU, the transference in this manner of a drug used in humans was an outcome that could not reasonably have been anticipated. He emphasised that the New Zealand laboratory could not even identify the presence of the drug. It was only the minutest of traces.
Submissions on Penalty
[20] The informant acknowledged the RIU had been unable to establish how the drug Tramadol came to be in PRECIOUS MACH’s system. Having regard to the respondent’s explanation that the transference of the drug had occurred due to her having inadvertently contaminated the tongue-tie of the horse with Tramadol when applying it at the races, the informant submitted Ms Chilcott’s culpability could not be regarded as being at the lower end of the scale. Equally, however, the informant did not suggest that culpability was at the higher end of the scale. Her culpability was identified to be at a level that was appropriately met not by a fine, but by a short term of disqualification or a suspension, not only to denounce her conduct, but also to provide general and specific deterrence.
[21] In response to questioning from the Committee, the informant acknowledged that while it had stated in its written submissions that the respondent’s actions demonstrated a high degree of carelessness or negligence and her conduct had fallen well below the standards expected of licensed trainers, the RIU now accepted that the culpability of her actions was better described as moderate and that a penalty of a “mid-range suspension” was appropriate.
[22] The informant produced the respondent’s record, which was clear under this Rule.
[23] The informant referred the Committee to RIU v S (25 September 2012) where the Appeals Tribunal reinforced the following principles:
a) the duties on trainers with respect to prohibited substances are high and appropriately so and proper care and vigilance is required at all times at the stables and at the track ([35]);
b) an assessment of the circumstances as to how the prohibited substance came to be present in the horse is an appropriate consideration in assessing culpability for the purpose of penalty (42]);
c) where a breach involves low culpability, the appropriate sanction may be a monetary penalty; and cases at the other end of the spectrum involving high levels of negligence, in light of the decisions of Lamb (1998) and Bentley (1998), may be met with penalties of suspension or disqualification ([44]);
d) it is imperative for the future of the industry that racing be perceived to be, and indeed is, drug free. General deterrence and denunciation are appropriate purposes when imposing penalty and there is a need to bring home to trainers/owners the heavy responsibility of presenting horses free of prohibited substances ([45]).
[24] The respondent submitted that any penalty other than a fine was excessive in the circumstances of the case. Mr Branch emphasised credit had to be given to the respondent’s admission of the breach and her co-operation with the inquiry. He said her culpability was at the lowest possible end of the spectrum. The transference of the drug had occurred in the most unusual circumstances and only the minutest traces had been found by the laboratory in Hong Kong and these had been undetectable in New Zealand. He emphasised that there was no suggestion the stable had been careless and that the cross-contamination could not reasonably be anticipated.
[25] Ms Chilcott addressed the Committee in person. She said she had approximately 20 horses in the barn at any one time and had a staff of three, although this included herself. She said she would have to give the horses to someone else to train whilst she was suspended and, with the horses leaving the stable, this would be very disruptive, and she was concerned for the people she employed.
Submissions as to quantum of fine
[26] We took time for deliberation and stated that we believed a fine was the appropriate penalty. The parties were then asked to make submissions as to quantum.
[27] The informant identified a fine in the range of $6000 to $9000 as being appropriate for Ms Chilcott. Mr Lange referred the Committee to the recent case of NZTR v P (16 August 2013). A fine of $6000 was imposed upon a thoroughbred trainer where a horse had returned a positive to the anabolic steroid Boldenone in unexplained circumstances.
[28] Mr Branch referred to Da (9 February 2013) (unexplained presence of Phenylbutazone) where a fine of $6000 was imposed on a leading trainer, but there had been a previous breach, and Do (26 June 2011) where the fine was $1800. The prohibited substance in Do was also Phenylbutazone (Bute) and it appeared the source was a contaminated feed bucket, as the substance was legitimately being given to another horse in the stable.
[29] Mr Branch described the respondent’s financial circumstances, which we do not recount in this decision, but we have taken this factor into account. In particular, he said the respondent did not pay herself a wage and that a fine of $1000, which he submitted was the appropriate penalty, would “hurt”.
Decision as to penalty
[30] We adopt the principles set out in S (above). The duty upon the respondent to exercise proper care and vigilance when attending to a horse is an onerous one. That said, with reference to the manner in which the substance came to be in the horse’s system and the quantity of the drug, we impose penalty on the basis that the positive reading to 0-desmethyltramadol is a consequence of accidental transference from the respondent’s hands to the tongue-tie or bridle of PRECIOUS MACH. This was due to her handling the horse after the blister strip of the drug Tramadol had ruptured exposing the capsules, which, in turn, had punctured, and grains of the drug had escaped.
[31] With regard to the extent of Ms Chilcott’s breach of her duty of care, we accept the capsules were not kept with her driving gear but in the bag she left in the drivers’ room. However, as she has acknowledged, she did not always wash her hands after handling the capsules, as she had not foreseen the possibility of the drug being transferred to the horse through the medium of her hands. We note her comment that “people must take open pills all the time at the races and this highlights how careful you have to be. I’m over the top now. I wash my hands every time after taking my pills.” We agree with her that the need to wash her hands immediately after handling the Tramadol capsules is now clearly a necessity. However, it should have been an obvious precaution for her to take prior to the return of this positive test.
[32] The quantity of the drug detected in the horse’s system is extremely small. Professor Tobin describes it as being, to his knowledge, the lowest concentration of O-desmethyltramadol ever reported in a horse. The New Zealand laboratory could not detect its presence. Despite Dr Grierson querying the importance of the level of the drug detected, we believe this is a significant mitigating factor.
[33] Adopting this factual basis we believe Ms Chilcott’s degree of culpability cannot be said to be high, but rather falls within the low to moderate range. Despite the informant’s emphasis on the need for denunciation and deterrence, which we accept is a principal factor when sentencing for a breach of the prohibited substance Rule, this degree of culpability does not warrant the imposition of a short term of suspension or a disqualification. We accept the respondent’s submission that such a penalty would be particularly disruptive and could put the livelihood of her staff at risk. This outcome is simply not justified in the particular and peculiar circumstances of this case.
[34] We have regard to the decisions to which counsel made reference in their submissions. We accept that Ms Chilcott’s culpability is not higher than that in Do (2011) (above) but that case predates the amendment of the Rule increasing the maximum fine from $10,000 to $20,000. The informant in Do submitted a fine of $3000 was the appropriate penalty. The Committee took that figure as a starting point and reduced the fine to $1800 due to mitigating factors. The penalty imposed in that case could be seen to be lenient and is to be compared with decisions such as M (2011) (Phenylbutazone), a case arising out of a qualifying trial, where the trainer was fined $2,000. The penalty imposed in both P (2013) (above) and Da (2013) (above) was a fine of $6000.
[35] We believe the most helpful case is J (December 2011) where a fine of $3,500 was imposed on the trainer of the winner of a major race, the Interdominion Pacers Grand Final. This penalty was said by the Appeals Tribunal (March 2012) to be “well within the range open to the Committee to impose”. In this case a positive reading to DMSO (Dimethylsulfoxide) was returned in unexplained circumstances. The trainer was liable as the rule was held to be one of absolute liability.
[36] We accept the informant’s submission that the Rules require participation in the sport to be free of prohibited substances and that this is achieved by means of the imposition of strict obligations on trainers and the imposition of what Mr Lange described as “real” penalties. However, it is our view that a fine is an effective deterrent penalty in the somewhat unusual circumstances of this case. It is our view that the appropriate starting point having regard to the gravity of the breach and the respondent’s culpability is a fine in the range of $4000 to $4500, before regard is had to personal circumstances.
[37] We identify no aggravating personal factors but accept the respondent’s absence of any previous breach of this Rule, her co-operation in the inquiry and her admission of the breach at the hearing, and her financial circumstances to be mitigating considerations. We also have regard to the fact we intend to make an award of costs against Ms Chilcott.
[38] We impose a fine of $3300.
Costs
[39] In light of the fact that one consideration in determining the quantum of the fine is the total financial impost that would be faced by the respondent, we required the parties to provide written submissions as to costs. We accept, of course, that there is no punitive element to an award of costs.
[40] We are guided by the decisions in B (21 December 2011) and NZTR v McA (2011).
[41] On the face of r 1114(3), which establishes the jurisdiction to make orders for costs, the discretion is unqualified, with no presumption either way. However, it must be exercised on a principled basis.
[42] In McA, the Judicial Committee said:
On the face of it there seems no compelling reason in principle why those whose conduct has led to the institution of disciplinary procedures should not, within limits, bear the expense of those procedures if they are ultimately found to have breached the Rules as charged. Obviously given the nature and intended width of the discretion conferred by r 920(3) [of the Rules of Racing, which, although worded differently is of similar effect to r 1114(3)] that factor will not necessarily be the only consideration to be brought to account in deciding to award costs or in fixing the quantum in any case, but there seems no reason why that should not be the starting point for the exercise of the discretion in any given instance.
[43] We concur.
[44] The informant has identified the RIU’s costs as $3290 and the JCA’s as $2170. The informant noted that the respondent had submitted at the hearing that the administration charge should never had been laid and that its sole purpose was to elicit a guilty plea to the less serious charge. The informant pointed to the broad interpretation that had been given to the word “administration” in the High Court decision in McInerney v Templeton (10 December 1999) and submitted it was open to it to proceed with the administration charge but had elected “at a practical level”, having regard to the costs to the industry of a defended charge, not to do so. There was a factual basis, it said, for such a charge and the issue would have been whether there was a total absence of fault.
[45] The informant also stated that on 1 August 2013 the RIU had responded to the respondent’s email of 17 July indicating that if Ms Chilcott admitted the prohibited substance charge the administration charge would be withdrawn.
[46] The respondent submitted that no costs should be ordered. The submission first made at the hearing, that the more serious charge of administration should never have been laid as it was “without any basis whatsoever” and was designed solely to apply pressure to have Ms Chilcott plead guilty to the breach of the prohibited substance rule, was repeated.
[47] Mr Branch stated the respondent had had the more serious administration charge hanging over her head for some time and that people in the industry had drawn the conclusion that she was a drugs cheat. He stated it was well established that administration, which was a serious racing offence, required proof of mens rea.
[48] The respondent further submitted that it was relevant that the RIU had failed to prove the one fact that Ms Chilcott would not accept from the summary of facts: viz, that Tramadol had no legitimate therapeutic use in equine medicine. There had been no evidence discovered or produced, Mr Branch said, that supported that statement and yet the RIU refused to take it out and had refused to provide any reason for wanting it in. Indeed, he noted that Dr Grierson had specifically accepted that Tramadol had a therapeutic use in equine medicine, although Dr Grierson considered there were more effective products. This issue, he said, should thus have been able to be resolved by settling on the agreed facts and having the matter determined on the papers.
[49] We accept that the respondent indicated a willingness to admit a prohibited substance charge on 10 July 2013 subject to an agreement on the summary of facts. And on 17 July a further email was sent indicating an admission of the negligence charge provided a disputed statement in the summary of facts was removed and another added.
[50] We believe the significance of the disputed fact was overstated by both parties when regard is had to the accepted means by which the drug Tramadol came to be in the horse’s system (accidental transference by unwashed hands). It was never a factor that was going to have any significant impact upon the nature or quantum of the final penalty.
[51] We see no need to consider the competing submissions as to whether an administration charge is one of strict liability or requires proof of mens rea. That issue is simply not a matter that we need to determine in the context of an award of costs. We accept, however, that the laying of the administration charge was within the informant’s prosecutorial discretion and that no undue pressure was placed upon the respondent to admit the prohibited substance charge.
[52] We believe it is appropriate that Ms Chilcott make some contribution to the costs of the prosecution. Costs must be just and reasonable in the circumstances and we temper our award having regard to her indications on 10 and 17 July that she would admit the breach and the matter could be determined on the papers subject to the removal of the reference to the therapeutic use of the drug in horses. Regard is also again had to her personal circumstances and the quantum of the fine.
[53] We order that the respondent pay costs of $1400 to the RIU and $1400 to the JCA.
Disqualification
[54] As a consequence of our finding the breach of r 1004(1) and (2) proved, r 1004(8) provides for the mandatory disqualification of the horse from the race. We therefore order the disqualification of PRECIOUS MACH from 1st place in race 6 (New Zealand Herald Mobile Pace) at the race meeting conducted by the Auckland Trotting Club at Alexandra Park on 27 April 2012. In accordance with arrangements reached between counsel, this order for disqualification is stayed pending the judgment of the Court of Appeal in the extant proceedings with respect to the horse DELIGHTFUL CHRISTIAN (Harness Jewels meeting; 2 June 2012).
Dated this 4th day of December 2013
Geoff Hall Chairman
Murray McKechnie Member of Committee
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