Non Raceday Inquiry RIU v JF Allen – Written Decision dated 9 September 2014
ID: JCA16181
Decision:
BEFORE A JUDICIAL COMMITTEE OF THE JUDICIAL CONTROL AUTHORITY AT DUNEDIN
UNDER THE RACING ACT 2003
IN THE MATTER of the New Zealand Rules of Greyhound Racing
BETWEEN RACING INTEGRITY UNIT
Informant
AND JOHN FRANK ALLEN
Respondent
Information number: A7054
Judicial Committee: Prof G Hall, Chairman - Mr K Hales, Member of Committee
Registrar: Mr B Kitto
Appearing: Mr N Grimstone, Manager Quality Assurance, for the informant
The respondent, Mr J Allen in person
Date of hearing: 28 August 2014
Date of oral decision: 28 August 2014
WRITTEN DECISION OF JUDICIAL COMMITTEE
[1] The informant alleges “that on the 15th day of July 2014, John Frank ALLEN was the licensed trainer of the greyhound SAN SEBASTIAN which was presented for and raced in race 2 at a race meeting conducted by the Otago Greyhound Racing Club at Forbury Park, when the said Greyhound was found to have had administered to it a Prohibited Substance, namely Morphine, being an offence under the provisions of rr 87.1 and 87.3 and punishable pursuant to rr 89.1 and 87.4 of the New Zealand Greyhound Racing Association Rules.”
[2] The relevant Rules provide:
87.1 The Owner, Trainer or Person in charge of a Greyhound Nominated to compete in a Race, shall produce the Greyhound for the Race free of any Prohibited Substance.
87.3 Without limiting any of the provisions of these Rules, the Owner and Trainer or person for the time being in charge of any Greyhound brought onto the Racecourse of any Club for the purposes of engaging in any Race which is found on testing, examination or analysis conducted pursuant to these Rules to have received a Prohibited Substance shall be severally guilty of an Offence.
87.4 Any Greyhound which competes in a Race and is found to be the recipient of a Prohibited Substance shall be disqualified from that Race.
89.1 Any Person found guilty of an Offence under these Rules shall be liable to:
a. A fine not exceeding $10,000 for any one (1) offence; and/or
b. Suspension; and/or
c. Disqualification; and/or
d. Warning Off.
Factual background
[3] The respondent, Mr Allen, is a licensed trainer under the Rules of the New Zealand Greyhound Association.
[4] On 15 July 2014 SAN SEBASTIAN was correctly entered and presented to race by Mr ALLEN in Race 2 at the Otago Greyhound Racing Club meeting at Forbury Park, Dunedin. SAN SEBASTIAN, which is solely owned by the respondent, finished 1st in the race winning a stake of $720 which was paid to Mr Allen.
5] Following the race the Greyhound was routinely swabbed. Mr Allen did not contest the swabbing process. All samples from the meeting were couriered to the New Zealand Racing Laboratory and were analysed for the presence of substances prohibited under the rules of the NZGRA. On 31 July 2014 the Official Racing Analyst reported in writing that the sample from SAN SEBASTIAN had tested positive for morphine.
[6] Mr Grimstone submitted that morphine is an opioid analgesic drug used to relieve intense pain. It is present in poppy derivatives, including poppy seeds. It is generally agreed that morphine is not performance enhancing. Morphine is a prohibited substance within the meaning of the Rules and its presence in a race day sample is prima facie, a breach of the Rules.
[7] Mr Allen was interviewed at his property in Kakanui on 6 August 2014. He was very cooperative and when informed of the nature of the positive test and that the substance concerned was morphine, he told the Investigators that he had fed the dog unlabelled bread, which must have contained poppy seeds.
[8] Mr Allen explained to the Investigators that he got his bread from a supplier in Christchurch and it was normally packaged in plastic bags. He would check the ingredients listed on the bag to ensure that he was not feeding his dogs any prohibited substances. He recalled getting a batch of bread around the time of the race that was not in bags and was therefore unlabelled.
[9] The RIU stated that inquiries with his supplier contradicted Mr Allen’s version of events and the RIU were of the view that he had been careless when checking the ingredients in the bread that he had fed to SAN SEBASTIAN.
[10] Mr Allen had had one other drug positive test back in 1993 for procaine but otherwise his record was unblemished.
[11] Mr Allen told the Committee that he had been involved in the Greyhound industry for 40 years both here and in Australia. He had 14 adult dogs in his kennel, 4 of which were currently racing.
[12] Mr Allen further stated that he had received a “huge shock” when told SAN SEBASTIAN had returned a positive. He recalled how he had gone to his usual bread supplier in Christchurch, a pig farmer, who obtained bread that was past its use-by-date from local supermarkets. On this occasion there was no wrapped bread available; it had all been unwrapped. He said he took 6 bags of unlabelled bread as he only went to Christchurch every 2 months or so and he was concerned about the inconvenience. Each bag would contain about 30 loaves. He said in his experience 90% of the bread did not contain poppy seeds and when he broke it up to feed to his dogs he checked for seeds. Poppy seeds were black, he explained, and the bread looked “ok”. It was obviously contaminated though. He openly accepted that he had been negligent in relying on his eyesight in inspecting the bread when he had been unable to check the ingredients.
[13] Mr Allen said SAN SEBASTIAN was a big dog and he only gave him 3 slices of bread the day before racing. He agreed with the Committee that when he was unable to be satisfied as to the ingredients of the bread in question, he should have given it only to the non-racing dogs. He said this was the first time he had used unlabelled bread.
[14] Mr Allen further stated that a possible explanation for his supplier telling the RIU that he had supplied only labelled plain white bread was that his supplier would have been unaware that a farm-worker had already unwrapped the bread to put it through the auger. On this occasion he had received a real mixture of bread, including raspberry and hot-cross buns.
Submissions as to penalty
[15] The RIU submitted that the breach could be dealt with by way of monetary penalty and sought a fine of $2,500. Mr Grimstone emphasised that the matter was not a situation where the drug was administered to enhance performance.
[16] The RIU referred in support of this penalty to two decisions where there was a nonintentional administration of morphine through the greyhound having been fed poppy seed bread: RIU v CR (2 November 2012) (fine of $2,000 and JCA costs of $350 and disqualification); and RIU v McA (3 October 2011) (fine $2,000 and JCA costs of $500 and disqualification).
[17] Of concern to the RIU was the carelessness of the respondent in feeding poppy seed bread. The two cases had been widely publicised within the Greyhound Racing Industry and it was common knowledge with Greyhound trainers that there was a need for care when feeding any type of bread to dogs. This led the RIU to seek a fine that was $500 more than the level of penalty adopted in the two cases cited.
[18] Mr Allen was noted to have been fully co-operative with the investigative process and other than a historical breach he had an unblemished record.
[19] The RIU also sought disqualification of the dog under r 87.4 and the return of the $720 paid as a winning stake.
[20] The RIU did not seek costs.
[21] Mr Allen questioned why his penalty should be greater than that in the cases cited by the RIU. He agreed it was widely known not to give racing dogs bread with poppy seed and he believed at the time the measures he had taken were sufficient. He accepted now they were not and that was why he had admitted the breach. He said the certificate from the Laboratory did not give a level, and it was quite likely to have been only a trace of morphine.
[22] Mr Allen believed his degree of culpability was the same as the two trainers in CR and McA. The levels of negligence were the same. He thus submitted a fine of $2000 was the appropriate penalty.
[23] Mr Allen briefly referred to his personal circumstances. He said he was retired and had only a few dogs, which mainly raced at Forbury Park. He said he had been very successful as an owner/breeder, which had help set him up in the industry. He expressed obvious remorse. Mr Grimstone confirmed Mr Allen’s statement that the dogs in his kennel were very well looked after.
Discussion
[24] We first make reference to the positive test in 1993 for procaine. Mr Allen explained that he prepared his own meat for his dogs and that a horse that had been used for this purpose had, unbeknown to him, been treated with penicillin. Mr Grimstone stated that the RIU did not regard the previous breach as an aggravating factor. We believe this is a wise concession. The circumstances of the 2 cases differ and the breach is sufficiently in the past to be of only historical significance. Although, that said, having previously fallen foul of r 87.1, we would have expected increased vigilance from the respondent on this occasion.
[25] To turn to the circumstances of the breach. Mr Allen explained he obtained his bread and meat from a pig farmer just out of Christchurch. We accept that on this occasion he received bread that was unlabelled. This created an obvious risk. Rather than giving this bread only to pups and non-racing dogs, Mr Allen decided that it was unlikely that poppy seed would be present in the bread and that he would rely on his eyesight to determine whether there were such seeds in the bread. Unfortunately his eyesight proved not to be up to this task and contaminated bread was fed to SAN SEBASTIAN. We accept this explanation.
[26] We do not believe Mr Allen’s culpability is greater than that of the trainers in CR and McA. They were on notice that the labelled bread contained poppy seeds, but failed to read the labels; Mr Allen was aware of the risk of poppy seeds being present, looked for seeds, and did not see them. A clear case of negligence, but not at a degree requiring comparatively heightened condemnation from this Committee.
[27] That brings us to the issue of the purpose of the imposition of penalty in this case. Mr Allen has to be held accountable, the integrity of the Greyhound industry demands no less, and there is a need for deterrence, both general and specific. We see no reason to differ from the penalties imposed in CR and McA.
[28] Mr Allen is fined the sum of $2000. As the hearing was held on a raceday, there is no order as to costs.
[29] SAN SEBASTIAN is disqualified pursuant to r 87.4 from race 2 at the Otago Greyhound Racing Club meeting at Forbury Park on 14 July 2014. Stakes are to be paid accordingly. Mr Allen has given an undertaking to the Committee that he will refund the $720 winning stake that was paid to him.
Dated at Dunedin this 9th day of September 2014.
Geoff Hall, Chairman
Appeal Decision: NO LINKED APPEAL DECISION
Decision Date: 28/08/2014
Publish Date: 28/08/2014
JCA Decision Fields (raw)
Dmitry: This section contains all JCA fields migrated from the raw data.
Data from these fields should be mapped appropriately to display amongst the standard fields above; please make note of any values below that are missing in the above standard fields but should be there.
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decisiondate: 28/08/2014
hearing_title: Non Raceday Inquiry RIU v JF Allen - Written Decision dated 9 September 2014
charge:
facts:
appealdecision: NO LINKED APPEAL DECISION
isappeal:
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reasonsfordecision:
Decision:
BEFORE A JUDICIAL COMMITTEE OF THE JUDICIAL CONTROL AUTHORITY AT DUNEDIN
UNDER THE RACING ACT 2003
IN THE MATTER of the New Zealand Rules of Greyhound Racing
BETWEEN RACING INTEGRITY UNIT
Informant
AND JOHN FRANK ALLEN
Respondent
Information number: A7054
Judicial Committee: Prof G Hall, Chairman - Mr K Hales, Member of Committee
Registrar: Mr B Kitto
Appearing: Mr N Grimstone, Manager Quality Assurance, for the informant
The respondent, Mr J Allen in person
Date of hearing: 28 August 2014
Date of oral decision: 28 August 2014
WRITTEN DECISION OF JUDICIAL COMMITTEE
[1] The informant alleges “that on the 15th day of July 2014, John Frank ALLEN was the licensed trainer of the greyhound SAN SEBASTIAN which was presented for and raced in race 2 at a race meeting conducted by the Otago Greyhound Racing Club at Forbury Park, when the said Greyhound was found to have had administered to it a Prohibited Substance, namely Morphine, being an offence under the provisions of rr 87.1 and 87.3 and punishable pursuant to rr 89.1 and 87.4 of the New Zealand Greyhound Racing Association Rules.”
[2] The relevant Rules provide:
87.1 The Owner, Trainer or Person in charge of a Greyhound Nominated to compete in a Race, shall produce the Greyhound for the Race free of any Prohibited Substance.
87.3 Without limiting any of the provisions of these Rules, the Owner and Trainer or person for the time being in charge of any Greyhound brought onto the Racecourse of any Club for the purposes of engaging in any Race which is found on testing, examination or analysis conducted pursuant to these Rules to have received a Prohibited Substance shall be severally guilty of an Offence.
87.4 Any Greyhound which competes in a Race and is found to be the recipient of a Prohibited Substance shall be disqualified from that Race.
89.1 Any Person found guilty of an Offence under these Rules shall be liable to:
a. A fine not exceeding $10,000 for any one (1) offence; and/or
b. Suspension; and/or
c. Disqualification; and/or
d. Warning Off.
Factual background
[3] The respondent, Mr Allen, is a licensed trainer under the Rules of the New Zealand Greyhound Association.
[4] On 15 July 2014 SAN SEBASTIAN was correctly entered and presented to race by Mr ALLEN in Race 2 at the Otago Greyhound Racing Club meeting at Forbury Park, Dunedin. SAN SEBASTIAN, which is solely owned by the respondent, finished 1st in the race winning a stake of $720 which was paid to Mr Allen.
5] Following the race the Greyhound was routinely swabbed. Mr Allen did not contest the swabbing process. All samples from the meeting were couriered to the New Zealand Racing Laboratory and were analysed for the presence of substances prohibited under the rules of the NZGRA. On 31 July 2014 the Official Racing Analyst reported in writing that the sample from SAN SEBASTIAN had tested positive for morphine.
[6] Mr Grimstone submitted that morphine is an opioid analgesic drug used to relieve intense pain. It is present in poppy derivatives, including poppy seeds. It is generally agreed that morphine is not performance enhancing. Morphine is a prohibited substance within the meaning of the Rules and its presence in a race day sample is prima facie, a breach of the Rules.
[7] Mr Allen was interviewed at his property in Kakanui on 6 August 2014. He was very cooperative and when informed of the nature of the positive test and that the substance concerned was morphine, he told the Investigators that he had fed the dog unlabelled bread, which must have contained poppy seeds.
[8] Mr Allen explained to the Investigators that he got his bread from a supplier in Christchurch and it was normally packaged in plastic bags. He would check the ingredients listed on the bag to ensure that he was not feeding his dogs any prohibited substances. He recalled getting a batch of bread around the time of the race that was not in bags and was therefore unlabelled.
[9] The RIU stated that inquiries with his supplier contradicted Mr Allen’s version of events and the RIU were of the view that he had been careless when checking the ingredients in the bread that he had fed to SAN SEBASTIAN.
[10] Mr Allen had had one other drug positive test back in 1993 for procaine but otherwise his record was unblemished.
[11] Mr Allen told the Committee that he had been involved in the Greyhound industry for 40 years both here and in Australia. He had 14 adult dogs in his kennel, 4 of which were currently racing.
[12] Mr Allen further stated that he had received a “huge shock” when told SAN SEBASTIAN had returned a positive. He recalled how he had gone to his usual bread supplier in Christchurch, a pig farmer, who obtained bread that was past its use-by-date from local supermarkets. On this occasion there was no wrapped bread available; it had all been unwrapped. He said he took 6 bags of unlabelled bread as he only went to Christchurch every 2 months or so and he was concerned about the inconvenience. Each bag would contain about 30 loaves. He said in his experience 90% of the bread did not contain poppy seeds and when he broke it up to feed to his dogs he checked for seeds. Poppy seeds were black, he explained, and the bread looked “ok”. It was obviously contaminated though. He openly accepted that he had been negligent in relying on his eyesight in inspecting the bread when he had been unable to check the ingredients.
[13] Mr Allen said SAN SEBASTIAN was a big dog and he only gave him 3 slices of bread the day before racing. He agreed with the Committee that when he was unable to be satisfied as to the ingredients of the bread in question, he should have given it only to the non-racing dogs. He said this was the first time he had used unlabelled bread.
[14] Mr Allen further stated that a possible explanation for his supplier telling the RIU that he had supplied only labelled plain white bread was that his supplier would have been unaware that a farm-worker had already unwrapped the bread to put it through the auger. On this occasion he had received a real mixture of bread, including raspberry and hot-cross buns.
Submissions as to penalty
[15] The RIU submitted that the breach could be dealt with by way of monetary penalty and sought a fine of $2,500. Mr Grimstone emphasised that the matter was not a situation where the drug was administered to enhance performance.
[16] The RIU referred in support of this penalty to two decisions where there was a nonintentional administration of morphine through the greyhound having been fed poppy seed bread: RIU v CR (2 November 2012) (fine of $2,000 and JCA costs of $350 and disqualification); and RIU v McA (3 October 2011) (fine $2,000 and JCA costs of $500 and disqualification).
[17] Of concern to the RIU was the carelessness of the respondent in feeding poppy seed bread. The two cases had been widely publicised within the Greyhound Racing Industry and it was common knowledge with Greyhound trainers that there was a need for care when feeding any type of bread to dogs. This led the RIU to seek a fine that was $500 more than the level of penalty adopted in the two cases cited.
[18] Mr Allen was noted to have been fully co-operative with the investigative process and other than a historical breach he had an unblemished record.
[19] The RIU also sought disqualification of the dog under r 87.4 and the return of the $720 paid as a winning stake.
[20] The RIU did not seek costs.
[21] Mr Allen questioned why his penalty should be greater than that in the cases cited by the RIU. He agreed it was widely known not to give racing dogs bread with poppy seed and he believed at the time the measures he had taken were sufficient. He accepted now they were not and that was why he had admitted the breach. He said the certificate from the Laboratory did not give a level, and it was quite likely to have been only a trace of morphine.
[22] Mr Allen believed his degree of culpability was the same as the two trainers in CR and McA. The levels of negligence were the same. He thus submitted a fine of $2000 was the appropriate penalty.
[23] Mr Allen briefly referred to his personal circumstances. He said he was retired and had only a few dogs, which mainly raced at Forbury Park. He said he had been very successful as an owner/breeder, which had help set him up in the industry. He expressed obvious remorse. Mr Grimstone confirmed Mr Allen’s statement that the dogs in his kennel were very well looked after.
Discussion
[24] We first make reference to the positive test in 1993 for procaine. Mr Allen explained that he prepared his own meat for his dogs and that a horse that had been used for this purpose had, unbeknown to him, been treated with penicillin. Mr Grimstone stated that the RIU did not regard the previous breach as an aggravating factor. We believe this is a wise concession. The circumstances of the 2 cases differ and the breach is sufficiently in the past to be of only historical significance. Although, that said, having previously fallen foul of r 87.1, we would have expected increased vigilance from the respondent on this occasion.
[25] To turn to the circumstances of the breach. Mr Allen explained he obtained his bread and meat from a pig farmer just out of Christchurch. We accept that on this occasion he received bread that was unlabelled. This created an obvious risk. Rather than giving this bread only to pups and non-racing dogs, Mr Allen decided that it was unlikely that poppy seed would be present in the bread and that he would rely on his eyesight to determine whether there were such seeds in the bread. Unfortunately his eyesight proved not to be up to this task and contaminated bread was fed to SAN SEBASTIAN. We accept this explanation.
[26] We do not believe Mr Allen’s culpability is greater than that of the trainers in CR and McA. They were on notice that the labelled bread contained poppy seeds, but failed to read the labels; Mr Allen was aware of the risk of poppy seeds being present, looked for seeds, and did not see them. A clear case of negligence, but not at a degree requiring comparatively heightened condemnation from this Committee.
[27] That brings us to the issue of the purpose of the imposition of penalty in this case. Mr Allen has to be held accountable, the integrity of the Greyhound industry demands no less, and there is a need for deterrence, both general and specific. We see no reason to differ from the penalties imposed in CR and McA.
[28] Mr Allen is fined the sum of $2000. As the hearing was held on a raceday, there is no order as to costs.
[29] SAN SEBASTIAN is disqualified pursuant to r 87.4 from race 2 at the Otago Greyhound Racing Club meeting at Forbury Park on 14 July 2014. Stakes are to be paid accordingly. Mr Allen has given an undertaking to the Committee that he will refund the $720 winning stake that was paid to him.
Dated at Dunedin this 9th day of September 2014.
Geoff Hall, Chairman
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