Non Raceday Inquiry RIU v J & J Dickie – Decision dated 13 December 2019 – Chair, Mr M McKechnie

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hearing_title: Non Raceday Inquiry RIU v J & J Dickie - Decision dated 13 December 2019 - Chair, Mr M McKechnie

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Decision:

BEFORE A NON-RACEDAY JUDICIAL COMMITTEE

IN THE MATTER -of the New Zealand Rules of Harness ---------Racing

BETWEEN--THE RACING INTEGRITY UNIT (RIU)

INFORMANT
-

AND-JOHN DICKIE

Licensed Trainer

AND-JOSHUA DICKIE

Licensed Trainer

RESPONDENTS

Non Raceday Judicial Committee:-Mr Murray McKechnie Chairman & Mr Gavin Jones

Present:----Mr Oscar Westerlund RIU Investigator

Mr John Dickie

Mr John Mooney Advocate for Messrs John and Joshua Dickie

DECISION OF NON-RACEDAY JUDICIAL COMMITTEE AT ALEXANDRA PARK RACEWAY

DATED THIS 13th DAY OF DECEMBER 2019

1.-NATURE OF THE CHARGE

1.1-The Respondents, who train in partnership, have been charged under rule 1004(1A) and 1004(3) and (4) of the New Zealand Rules of Harness Racing.

1.2-On 23 August 2019 the horse Sertorius took part in Race 3, the Grand Park Mobile trot, at Alexandra Park. Sertorius returned a positive test for the prohibited substance Sotalol.

1.3-The Respondents have admitted the breach. By a ruling of a Non-Raceday Judicial Committee dated 2 November 2019 an Order was made that Sertorius be disqualified from Race 3 on 23 August 2019 and that such disqualification was to take effect from 4 November 2019.

1.4-A copy of the summary of facts is attached and should be read as part of this decision.

2.-POSITION OF MR JOHN DICKIE AND MR JOSHUA DICKIE

2.1-Mr John Dickie is 59 years old and is the father of Mr Joshua Dickie who is 28 years old. Mr John Dickie has been involved in the harness racing industry as a public trainer for some 40 years and Mr Joshua Dickie for some 13 years. Neither of the Respondents has any previous offending under the New Zealand Rules of Harness Racing. Mr Joshua Dickie has not been present at the hearing today. He has commitments at the race meeting to take place here at Alexandra Park this evening and after discussion with Mr Westerlund it was indicated that his appearance could be excused.

3.-THE POSITION TAKEN BY THE RIU

3.1-Mr Westerlund has filed helpful submissions dated 11 November 2019. In those submissions it is proposed that a fine of $4,000.00 be imposed. Further reference to the quantum of any fine will be made later in this decision.

3.2-Mr Westerlund’s submissions set out the four well-known principles of sentencing and submits that the first three of those well-known principles are of particular significance in this case. The submissions draw attention to three previous decisions of the JCA which it is said may be of assistance. These are:

i.-RIU v A Browne (NZTR September 2017) Sotalol positive. Total fine imposed $4,000.00 plus $1,500.00 costs for the testing of the B sample. That case was in thoroughbred racing and involved a prestigious hurdle race at Ellerslie.

ii.-RIU v DJ Simpson (HRNZ July 2019) A positive test for desmethylvenalfaxine positive. Total fine of imposed $1,750.00.

iii.-RIU v D Fahey and J Fahey (GRNZ September 2019) One positive for codeine. The total fine imposed $,2500.00 plus $1,200.00 costs for testing of the B sample.

3.3-Mr Westerlund’s submissions very plainly make clear that there are in the view of the RIU no aggravating circumstances. The submissions point to mitigating circumstances. These are:

i.- The Respondent’s prompt admission of the breach.

ii.-The complete co-operation throughout.

iii.-That the Respondents have since improved the systems at their stable to avoid further contamination in the future. By this it is understood, and Mr John Dickie confirmed it today, that all staff have been directed to use the toilets and not to urinate in any of the boxes.

iv.-That there has been no previous offending by either of the respondents over many years and that since they have trained in partnership for the last six years there have been no issues.

3.4-The Committee questioned Mr Westerlund as to how the proposed fine of $4,000.00 was arrived at. This by particular reference to the decision in RIU v Simpson mentioned above. In the Simpson decision, which the Committee has read carefully, there was contamination at Forbury Park raceway in Dunedin. That contamination was known to Mr Simpson who trained on course. That because there had been an earlier occasion when contamination had been found at that raceway. Mr Simpson pleaded not guilty although it is clear from a reading of the decision of the Non-Raceday Judicial Committee that no meaningful defence was advanced. Mr Westerlund was unable to explain why in the Simpson case the RIU had sought a $2,000.00 fine when in this case they seek a $4,000.00 fine. The only explanation Mr Westerlund could advance for the $4,000.00 figure was by reference to the penalty imposed in the case of RIU v Browne.

3.5-It is the Committee’s view that the Simpson case bears much closer analogy to the present circumstances than does the Browne case even although in the Browne case it was the same substance as was detected here namely Sotalol.

4. -THE CASE FOR MR JOHN DICKIE AND MR JOSHUA DICKIE

4.1-Detailed submissions have been filed by Mr John Mooney, a lay advocate but formally a member of the legal profession. Mr Mooney has a long-standing association with harness racing both as an owner and as an administrator.

4.2- Mr Mooney’s submissions draw attention to the need for consistency in sentencing and he then goes on to analyse the decisions referred to above in Browne, Simpson and Fahey. With reference to Simpson, the submissions draw attention to the fact that the RIU sought a fine in that case of $2,000.00. Further that here his clients have pleaded guilty whereas Mr Simpson did not. Further, that Mr Simpson must have been aware of problems at the Forbury Park raceway as events some two months earlier, known as the Ferguson case, had drawn attention to contamination at that venue.

4.3-Following the events at Forbury Park Raceway spoken of above, the RIU and Harness Racing New Zealand undertook to notify persons in the industry of difficulties that could arise with contamination from human medications as a result of persons urinating in boxes while on medication. Mr Mooney made available a circular from Harness Racing New Zealand dated 30 October 2018. This was circulated to all totalisater clubs and kindred bodies, including we were told, New Zealand Harness Racing Trainers and Drivers Association. For reasons that are not entirely clear but which do not reflect badly upon the Dickie partnership, that circular did not reach them. The Committee takes the view that the RIU and Harness Racing New Zealand and indeed other codes, should try to ensure that all persons engaged in training are made aware of the difficulties that can arise from cross-contamination where human medications can inadvertently enter the horse or dog as the case may be.

5. -DISCUSSION

5.1 -The Committee takes the view that the Browne case is of limited assistance. First it is in thoroughbred racing. Secondly, it involved a race of greater significance then was the case here. Thirdly and importantly, the Committee is conscious of the need for consistency within codes. In that regard, the Committee must have particular attention to what was said by the Non-Raceday Judicial Committee in Simpson. That was a very experienced Non-Raceday Committee.

5.2-Turning to Simpson it is the Committee’s view that the RIU submission seeking a fine of only $2,000.00 when a fine of $4,000.00 is sought here is difficult to explain or to justify. Further, this Committee takes the view that the penalty imposed in the Simpson case, being a fine of $1,750.00, was very lenient.

5.3- It is Mr Mooney’s submission for the Dickies that there should be no penalty imposed. The Committee cannot accept that there be no penalty.

5.4-The Committee is conscious that John and Joshua Dickie have an entirely unblemished record. They deserve and will be given credit for that. Furthermore, there is no suggestion that what occurred here was in any way deliberate or wilful. The horse has been disqualified and necessarily that involves the forfeiture of the winning stake.

5.5-The Committee has also had reference to the case of Chilcott in 2013 involving the prohibited substance Tramadol. In that case a fine of $3,300.00 was imposed.

6. PENALTY

6.1 -It is the Committee’s view that a modest fine is appropriate. That to give appropriate recognition to the significant mitigating considerations which have been outlined above. The appropriate fine in the Committee’s view is $2,000.00. It is noted in the submissions for the RIU that there is no claim for the testing of the samples in addition to the fine of $2,000.00. The Respondents will be required to pay the sum of $1,253.80 which is the figure advised by the RIU for the testing of the B sample in Australia.

6.2-In respect of today’s hearing the RIU do not seek costs.

6.3-It is the standard practice in Non-Raceday Judicial hearings that where a plea of guilty has been entered or where it is found that a charge is proved that the licence holders make a contribution towards the costs of the JCA. The general practice is to award a figure which in part reflects the outcome and it is not the practice to require the licence holder to pay indemnity costs. It happens that Mr Jones is on duty at Alexandra Park raceway this evening so little or no cost has been involved in his attendance. The Chairman does not reside in Auckland but is not adverse to visiting the City of Sails on occasions. In the circumstances just outlined a modest sum of $300.00 will be ordered to be paid towards the costs of the JCA. To summarise, fine $2,000.00, payment for B sample $1,253.80, no costs towards the RIU for today’s hearing. Contribution towards the costs of the JCA $300.00.

Dated this 13th day of December 2019

Murray McKechnie

Chairman

Signed pursuant to the 5th Schedule of New Zealand Rules of Harness Racing

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BEFORE A JUDICIAL COMMITTEE

APPOINTED BY THE JUDICIAL CONTROL AUTHORITY

IN THE MATTER of the New Zealand Rules of Harness Racing

BETWEEN

RACING INTEGRITY UNIT

Oscar WESTERLUND

Investigator

Informant

AND

John DICKIE and Joshua DICKIE

Licensed Trainers

Respondents

SUMMARY OF FACTS

The Respondents John and Joshua DICKIE are a licensed training partnership under the Rules of New Zealand Harness Racing (HRNZ).

On the 23rd August 2019 “Sertorius” was correctly entered and presented to race by John and Joshua DICKIE in Race 3 the Grand Park Mobile Trot R68-R94 1609 metres at the Auckland Trotting Club meeting at Alexandra Park.

“Sertorius” is a 6-year-old bay gelding (Muscles Yankee – Classic Armbro) owned by B & K Calder, L German and J Dickie and trained by John and Joshua DICKIE.

“Sertorius” underwent a random Post Race urine swab. John and Joshua DICKIE do not contest the swabbing process.

“Sertorius” finished first of the eight horse field winning a stake of $10,700.

All swab 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 New Zealand Harness Racing.

On the 11th September 2019 the Official Racing Analyst reported in writing that the sample from “Sertorius” had tested positive to Sotalol.

Sotalol is a non-selective beta-adrenergic blocker which modifies the heart rate to control anti-arrhythmic activity commonly used in man to control arrhythmia by prolonging the atrial and ventricular refractory periods.

Sotalol has recorded human side effects on other body systems however the predominant effect is the control of rhythm and output of the heart. The NZ Ministry of Health classifies Sotalol as a prescription medicine.

Sotalol 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.

John and Joshua DICKIE were spoken to at their Stables on Friday 13th September 2019. They were both shocked to learn of the positive result and unable to assist in determining how the Sotalol had got into the horses’ system.

Stable staff of John and Joshua DICKIE were also spoken to. A member of their staff who has worked for them for three years advised Investigators that he has been taking the medication ‘Sotalol’ for the last 12 years for cardiac arrhythmia.

He stated that he has urinated many times in the boxes that “Sertorius” is housed.

John and Joshua DICKIE were advised of their staff member’s revelation.

On the 13th September 2019 Investigators also took six sawdust samples from the boxes used by “Sertorius”. The samples were sent to the NZRLS for analysis.

Upon analysis the sawdust samples taken from the boxes used by “Sertorius” confirmed the presence of ‘Sotalol’.

John and Joshua DICKIE advised Investigators that they would like to have the B Sample tested.

The B Sample was then forwarded to the Australian Racing Forensic Laboratory in New South Wales.

A written report was issued by the Australian Racing Forensic Laboratory on the 22nd October 2019 which confirmed that ‘Sotalol’ was present in the B sample provided by “Sertorius”.

John and Joshua DICKIE were advised of the result on 25th October 2019.

A written statement was obtained from Joshua DICKIE on behalf of his training partner and owners consenting to the horse “Sertorius” to be disqualified from the said race on the 23rd August 2019.

“Sertorius” has since been disqualified by the JCA effective 4th November 2019 pursuant to rule 1004D (6).

It is believed that the probable cause of “Sertorius” positive has been via contamination by a staff member urinating in the stable boxes.

Dr Andrew Grierson the Chief Veterinarian for HRNZ confirmed there have been cases in NZ where human medications contaminating the bedding of horse boxes after stable staff urinated in them rather than using a toilet.

The training partnership of John and Joshua DICKIE have been involved in the Harness Racing Industry virtually their entire adult life.

They hold a Public Trainers license.

They have no previous charges for breaching the Prohibited Substance Rule.

On the 29th October 2018 the RIU had notified the respective codes to advise licence holders and clubs of the possibility of contamination through urination in boxes.

O. WESTERLUND

RIU Investigator

11 November 2019 

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