Non Raceday Inquiry RIU v A Neal and L Neal – Decision dated 7 May 2015

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decisiondate: 06/05/2015

hearing_title: Non Raceday Inquiry RIU v A Neal and L Neal - Decision dated 7 May 2015

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appealdecision: NO LINKED APPEAL DECISION

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Decision:

NON RACEDAY INQUIRY - RIU v A NEAL and L NEAL

IN THE MATTER of the New Zealand Rules of Harness Racing

BETWEEN RACING INTEGRITY UNIT

Andy Cruickshank, Racing Investigator

Informant,

And ANDREW NEAL AND LYN NEAL - Licensed Trainers, HRNZ

Respondents

Rules: 1004(1A), 1004(3), 1008, 1004(7), 1004(8)

Information: A7111

Judicial Committee: AJ Godsalve, Chairman – AJ Dooley, Committee Member

Appearing: Mr A and Mrs L Neal, Respondents

Registrar: Mr W Robinson

Venue: Cambridge Raceway, Cambridge

Date of Hearing: 7 May 2015

Date of Decision: 7 May 2015

DECISION OF JUDICIAL COMMITTEE:

The Charge

Information A7111 alleges that:

On the 30th day of January 2015, Andrew and Lyn Neal were the Licensed Trainers of the Standardbred Harness Race horse ‘Ventimiglia’ which was presented for and raced in Race 2, the Dunstan Nutrition Mobile Trot, at a race meeting conducted by Harness Racing Waikato at Cambridge, when the said Standardbred was found to have had administered to it a Prohibited Substance, namely Flunixin, being an offence under the provisions of Rules 1004 (1A) and 1004 (3) and punishable pursuant to Rule 1004 (7) and (8) of the New Zealand Rules of Harness Racing.

The Rules:

Rule 1004 (1A) of the Rules of Harness Racing provides:

A horse shall be presented for a race free of Prohibited Substances.

Rule 1004 (3) provides:

When a horse is presented to race in contravention of sub Rule (1A) or (2) the trainer of the horse commits a breach of these Rules.

Rule 1008 provides:

In the absence of any express provision to the contrary in any proceeding for a breach of these Rules:

(a) It shall not be necessary for the Informant to prove that the defendant or any person intended to commit that or any breach of the Rule: and

(b) Any breach of a Rule shall be considered as an offence of strict liability.

Rule 1004 (7) provides:

Every person who commits a breach of sub-rule (2) or (3) shall be liable to:

(a) A fine not exceeding $20,000; and/or

(b) Be disqualified or suspended from holding or obtaining a licence for any specific period not exceeding 5 years.

Rule 1004 (8)

Any horse connected with a breach of sub-rule (1), (2) or (3) shall be disqualified from any race entered and/or liable to a period of disqualification not exceeding five years.

The Plea

Following the reading of the Charge by the Chairman of the Committee, the respondents were each asked if they either admitted or denied the breach. Both respondents stated that they admitted the breach, and the Charge was therefore proved.

Summary of Facts - RIU

The respondents Andrew and Lyn NEAL are licensed Owner/Trainers under the Rules of the New Zealand Harness Racing.

On the 30th January 2015 “Ventimiglia” was correctly entered and presented to race by Mr and Mrs NEAL in Race 2, the Dunstan Nutrition Mobile Trot at the Harness Racing Waikato meeting at Cambridge.

“Ventimiglia” is a 4 year old brown mare (Majestic Son-Zactly) owned by the respondents Mr AP and Mrs LM NEAL.

“Ventimiglia” underwent a random post-race urine swab. Mr and Mrs NEAL do not contest the swabbing process.

“Ventimiglia” finished first of the seven horse field and won a stake of $3150.

All swab samples from the meeting were couriered to the New Zealand Laboratory and were analysed for the presence of substances prohibited under the Rules of New Zealand Harness Racing.

On the 12th February 2015 the Official Racing Analyst reported in writing that the sample from “Ventimiglia” had tested positive to Flunixin.

Flunixin is a non-steroidal anti-inflammatory drug, analgesic, and antipyretic used in horses, cattle and pigs. It is a Restricted Veterinary Medicine which is administered intravenously.

Flunixin is a Prohibited Substance within the meaning of these Rules and its presence in a race day sample is, prima facie, a breach of the Rules.

Mr and Mrs NEAL were spoken to at their home address on Friday 20th February 2015. Mrs NEAL advised that she had administered the horse Flunixin 6 days prior to the race as they were treating it for a lingering cold. They were advised by their Veterinarian that there was a 4 day withholding period on the medication and conservatively waited 6 days before racing the horse again.

A 50ml bottle of Flunixin was located in a medical cabinet in the stable block area of the NEAL’s property. The bottle was approximately half full.

At this time Mr and Mrs NEAL requested that a level of Flunixin be provided by New Zealand Racing Laboratory Services.

A written report was issued by the Official Racing Analyst of 20th February 2015 in which the level of Flunixin is described as “greater than 200ng/ml being the upper level in the calibration range used”.

Mr and Mrs NEAL were spoken to again on 23rd February 2015 and were surprised to learn of the high level. They were unable to offer any explanation but did indicate the possibility that the horse had re-contaminated itself when its urine was reabsorbed through its feet while in the stall.

Mr and Mrs NEAL have been involved in the Harness Racing Industry for approximately 30 years and are the Trainers of a number of race horses. They have had one similar type of breach previously.

Documentary Exhibits - RIU

The following documents were submitted by the Informant Mr Cruickshank in support of the charge-

(a) Copy of Information A7111

(b) Authority to file Information per Mr M Godber, General Manager RIU

(c) Copy of Trainer History AP and LM NEAL

(d) Copy of Trainer Penalty Report AP and LM NEAL

(e) Copy RIU Sample Identity Record No. 102449

(f) Copy Certificate of Analysis NZ Racing Laboratory Services

(g) Copy letter NZ Laboratory Services/Mr M Godber

(h) Copy letter Chief Veterinarian HRNZ/Mr A Cruickshank

(i) Copy JCA Decision RIU v PM Williamson

(j) Copy JCA Decision RIU v CT Dalgety

(k) Copy JCA Decision RIU v GJ Anderson and AL Hoffman

Respondents Submissions

Mr NEAL spoke on behalf of the ‘partnership’. In response to a question from the Chair, Mr and Mrs NEAL acknowledged that they understood that as a training ‘partnership’ they were each accountable for actions on behalf of that partnership.

Mr NEAL read from handwritten notes he had prepared.

He said that the horse “Ventimiglia” had been at the work-outs at Cambridge Raceway on 17 January 2015 preparing for a race the next week. On the way home from the track to their property while in their horse-float, the horse had cut her head. She had opened a wound above her eye, and as a result the NEALS called their veterinarian. Since the vet was aware the horse was racing the following week he did not give her any local anaesthetic, preferring to stitch the wound using a tranquiliser. He gave the mare a shot of Flunixin that afternoon. On 23 January 2015 “Ventimiglia” raced at Alexandra Park and finished 5th. Mr NEAL said that the competition was stronger there than at Cambridge. The next morning the NEALS discovered that the mare had a white frothy discharge from her nose. They got their vet. Ian McKay to attend to her. He had looked at the mare the week prior. It was believed this was as a result of a seasonal condition which causes viral type infections. The NEALS administered 10 mls of Flunixin intravenously on Mr McKay’s advice, on the understanding that the withholding period was 4.2 days. Since the mare was due to race in 6 days they believed that they should be well outside that withholding period on the advice of their vet. “Ventimiglia” duly raced and won at the Cambridge meeting on 30 January 2015. Mr NEAL said that they were confident that she should run very well, and she was the 1/1 favourite in the race. He said she was swabbed after the race, saying that 95% of horses that either won or came 2nd were usually swabbed. He said that was no concern to them at the time.

On 17 February 2015 he said he and his wife were in Christchurch attending the Yearling Sales. They received a call from their stable girl who told them that Andy Cruickshank from the RIU had been to their property and told her that there had been an ‘irregularity’ in “Ventimiglia’s” swab. Mr NEAL said he and his wife were very surprised to hear this. He said they believed they had acted within the safety parameters when administering ‘Flunixin’ to the horse. Mr NEAL said he had also spoken to Mr Cruickshank later that day. He said he also spoke to the Chief Veterinary Adviser to HRNZ at Christchurch (Andrew Grierson) who said he should ‘go on the internet and look at Flunixin contamination’. Mr NEAL said that is what he and his wife did.

Note: Mr NEAL supplied the Committee with copies of documents for their perusal, namely:

(a) Banamine Contamination,

(b) Detection and Identification of Flunixin after Multiple Intravenous and Intramuscular Doses to Horses,

(c) The Pharmacokinetics of Equine Medications

Mr NEAL said that he and Mrs NEAL had done extensive research via the Internet into horses re-absorbing (Flunixin) via their feet after urinating. He added that he and Mrs NEAL had done everything ‘by the book’ when administering Flunixin to their horse. He said the mare was housed in the same box permanently, that she was outside in a yard or paddock during the day and her box was cleaned out each morning. He said that it was an enigma that there was a ‘threshold’ for Flunixin in the Thoroughbred Racing Rules but not in the Harness Racing Rules. In answer to questions from the Committee he said that their boxes had clay floors and that they used sawdust as a bedding in their boxes.

Mr NEAL stated that his research had shown that the showjumping Rules have a 6 day withholding period for this substance and that their advice is that Flunixin can be detectable for up to 15 days after being administered. He added that levels seemed to vary dramatically depending on what testing machines were used.

In reply to questions from the Committee Mr NEAL advised that he was unaware of any research in New Zealand by veterinarians or anyone else into reabsorption of (Flunixin). He added that a well-known local veterinarian surgeon, Mr Murray Brightwell, had commented that the ‘Abstract’ article in one of the documents referred to above may prove interesting to those involved in hearing this matter.

Mr NEAL also confirmed that between the day of the race in question, 30 January 2015, and the time he first became aware of an irregularity in the horse he did not have an opportunity to carry out any testing on any bedding from “Ventimiglia’s” box. He added that mares can often urinate more than male horses, and that their mare “Ventimiglia” seemed to urinate more than most when in her box and seemed to urinate throughout the box, not in ‘patches’.

Penalty Submissions - RIU

On behalf of the Racing Integrity Unit Mr Cruickshank made the following Submissions as to Penalty:

1. The respondents Andrew and Lyn NEAL are licensed Owner/Trainers under the Rules of New Zealand Harness Racing. They have been involved in the industry for approximately 30 years. Andrew is 56 years of age with a date of birth being 11.11.58. Lyn is 53 years of age with her date of birth being 8.03.62.

2. They have admitted a breach of the rules in relation to the standard bred Harness Race horse they own and train “ Ventimiglia “on the 30th January 2015 at the Harness Racing Waikato meeting at Cambridge.

3. The drug concerned, the details of its administration are all contained in the agreed Summary of Facts and these are not disputed.

4. The penalties which may be imposed are also fully detailed in the (attached) Charge Rule Penalty provisions document.

5. I believe that this breach can be dealt with by way of monetary penalty. To that end the RIU seek a fine of $6000.

6. In support of this penalty I will refer previous decisions of the JCA which may be of some assistance.

7. In RIU v CT Dalgety (20.2.13) in this matter the horse tested positive to Phenylbutazone. The administration of the Prohibited Substance was not identified. The Trainer had a previous breach of the Prohibited Substance Rule and was fined $6000 plus JCA costs $350 and the horse was disqualified.

8. In RIU v PM Williamson (10.12.12) in this matter the horse tested positive to Procaine. The administration of the Prohibited Substance was not identified. The penalty imposed was $3500 and JCA costs and the horse was disqualified.

9. In RIU v GJ Anderson and AL Hoffman (5.03.13) in this matter the horse tested positive to Morphine after having consumed some Opium Poppy Plant material that was in the tie up area. The penalty imposed was a fine of $1250 plus JCA costs of $400 and the horse was disqualified.

10. Mr and Mrs NEAL have one previous breach of the Prohibited Substance Rule. In this case which relates to a race on 1 December 2006 the horse returned a TCO2 level above that which is permissible. The penalty imposed was a fine of $8000 plus costs of $2500 and the horse was disqualified.

11. It is acknowledged that Mr and Mrs NEAL have been fully co-operative throughout the investigative process.

12. Under Rule 1004 (8) “Ventimiglia” is required to be disqualified from the race on 30 January 2015.

13. “Ventimiglia” won the race on 30 January 2015 and received a stake of $3,150. Repayment of the stake is required.

14. None of the ‘B’ samples have been tested and the RIU are not seeking costs.

Respondents Submissions - Penalty

Mr NEAL opened his submissions on Penalty by asking the Committee to take into account the issue of negligence. He asked the question, ‘is what we have been charged with a result of negligence, or are we a victim of the system’?

He stated that he and his wife did not believe they had done anything ‘wrong’, and that they didn’t think they had any mistakes in respect of the positive swab of their horse. They believed they had administered Flunixin to their horse taking into account the withholding period so that she could race free of any prohibited substance/s. So, Mr NEAL, stated, that only left contamination as the source of Flunixin when the horse was swabbed after winning. He was adamant that he and Mrs NEAL had acted upon the best veterinary advice and used best practice guidelines when using this substance. Mr NEAL further asserted that ‘clinical studies’ had been done overseas which showed that horses without any substances in their systems had been put in boxes after horses which had been administered Flunixin had been in them. Tests had shown that the ‘clear’ horses had tested positive to Flunixin to a reading of 80 or 90 ngs of ‘Banamine’ (Flunixin). Mr NEAL posed the question that the box had been contaminated by the horse which had been known to have that substance in its system. He referred to the statement by Mr CRUICKSHANK that a reading of Flunixin in a horse of 200 ng/mL is a ‘high’ level, however Mr NEAL said when considering that some readings can be in the ‘thousands’, then 200 is actually a negligible level. He said the margin of error in these matters was not known to them.

Mr NEAL referred to three prior matters dealt with under these Rules.

In the matter of RIU v M Purdon, Mr Purdon had been fined $3000 after a horse he trained tested positive to Clenbuterol.

In the matter of RIU v Mr E Downey, Mr Downey had been fined $1800 after a horse he trained tested positive to Phenylbutazone.

In the matter of RIU v M Berger, Mr Berger was fined $2400 after a horse he trained tested positive to Phenylbutazone Clenbuterol.

Mr NEAL said he felt these matters were more in line with the offence he and Mrs NEAL had been charged with. He said that any level of Flunixin in a Standardbred constitutes an offence, where in Thoroughbred racing a level of up to 100 ng/mL is tolerated.

Mr NEAL referred to the prior matters Mr CRUICKSHANK had submitted. He said that these matters were hard to compare with what he and his wife had been charged with, as one was a TCO2 breach, one an Opium Poppy breach, and one concerned Procaine. He added that in these 3 matters there was no ‘timeline’ involved whereas their charge involving Flunixin did have a ‘timeline’ i.e. a withholding period, and that this drug was therapeutic to horses.

Disqualification of the Horse

1. Pursuant to Rule 1004 (8) the horse “ Ventimiglia” is disqualified from first placing in Race 2, the Dunstan Nutrition Mobile Trot at the Harness Racing Waikato meeting at Cambridge on 30th January 2015.

2. Repayment of prize money of $3,150 is ordered for distribution in accordance with the amended placings.

3. The Amended placings in the subject race will be:

1st MIGHTY SUNNY

2nd GREY STOKE

3rd WINSOME LUCK

4th MY SECRET STRIDE

5th A NIGHT IN PARIS

The Committee ordered that stakes for the Race be paid in accordance with that amended result.

Discussion re ‘Negligence’

In assessing an appropriate Penalty, the Committee felt it necessary to have the views of the parties relative to the issue of negligence made known. We stated that there is no evidence of this matter involving an ‘illicit’ deliberate or intentional administration of Flunixin. In these types of hearings, where negligence may be an issue, there are 3 levels of such negligence:

(a) deliberate

(b) gross

(c) a failure to take proper care

Mr CRUICKSHANK for the Informant stated that if there was negligence by Mr and Mrs NEAL then it was at the low end of the scale. He stated that he had been informed by Dr Andrew Grierson, Chief Veterinarian for Harness Racing New Zealand that a scientific view of this positive swab was that the Flunixin must have been administered or otherwise introduced into the horses system between 24-36 hours prior to the race in question.

Mr NEAL stated that for him and Mrs NEAL to be judged negligent then they must be shown to have made a ‘mistake’, and he did not think that was the case.

Decision on Penalty

(a) The relevant penalty Rule is Rule 1004 (7) which provides that:

Every person who commits a breach of sub-rule (2) or (3) shall be liable to

-a fine not exceeding $20,000; and/or

-be disqualified or suspended from holding or obtaining a licence for any specified period not exceeding 5 years

(b) The Committee notes that the maximum fine under Rule 1004 (7) was increased by Harness Racing New Zealand from $10,000 to $20,000 in 2011, reflecting the desire of that body to provide a greater deterrent.

(c) Therefore in the Committee’s view, penalties imposed for breaches of the Rule prior to March 2011 need to be looked at in the light of that.

(d) As a Committee we must not only assess the evidence presented before us but we must also take into account that there is a very strict onus on Trainers to ensure that a horse in their control is completely drug free when presented at the races. Mr and Mrs NEAL have clearly breached their responsibility in this regard.

(e) We have touched on the issue of negligence in this matter. As Trainers of some 30 years’ experience, Mr and Mrs NEAL are under a duty to exercise ‘reasonable care’ when presenting horses to race. While there is no evidence or suggestion that the NEAL’s intentionally administered a Prohibited Substance to the horse in question, we have to say that there has been a failure to take the care a responsible person or persons would usually take.

(f) We accept that the substance involved-Flunixin- has a legitimate therapeutic use in equine medicine and would not usually be associated with administration to attempt to gain any advantage in a racehorse.

(g) Turning to the Informant’s Penalty Submissions, we take note of the matter of RIU v CT Dalgety (20.2.13) and find that this case is of most assistance to us when assessing a penalty here. Mr Dalgety was fined a total of $6000 for a positive test to Phenylbutazone. This was his second breach of the Prohibited Substance Rule. The source of the administration of the drug was not identified.

(h) Mr and Mrs NEAL have a previous breach of this Rule. This was in 2006, prior to the increase in penalties referred to above. This was a serious breach involving TCO2 and the Committee in that matter expressed their concern at the ‘extremely high’ level of TCO2 detected, statistically ‘an extremely rare’ reading. That Committee gave ‘serious consideration’ to imposing a term of disqualification on Mr and Mrs NEAL however did not do so due to there being no allegation (by HRNZ) of deliberate administration. We have to treat this prior breach as an ‘aggravating factor’ when assessing an appropriate penalty here.

(i) The matter before us involves a different, less ‘toxic’ substance not usually associated with improving a horse’s performance. Nonetheless we are dealing with the second breach of the Serious Racing Offences section of the Harness Racing Rules by Mr and Mrs NEAL.

(j) Therefore we find it difficult to accept any of the three prior matters Mr NEAL has submitted to us in support of his penalty submissions.

(k) Turning to the matters put to us by Mr and Mrs NEAL as mitigating factors: it is clear that they sought appropriate veterinary assistance when the horse “Ventimiglia” displayed some signs of being unwell. Their use of Flunixin was at the direction of their veterinary surgeon. That is not disputed. However, what is beyond dispute, and has not been challenged, is that Flunixin was found in the horse’s system following it winning the race in question. That is ‘prima facie’ evidence alone sufficient to satisfy the provisions of Rule 1004 (1A) and 1004 (3).

Mr NEAL produced documents which he had located on the Internet relating to re-absorption and contamination of substances given to horses. We have given these matters consideration, however we are cautious about attaching much weight to them. They are not ‘evidence’ of anything and we have not seen any specialised veterinary opinion from any recognised professionals in New Zealand which would be open to scrutiny.

(l) To the NEAL’s credit, they have admitted that the horse ‘Ventimiglia” which they own and train won the race in question with Flunixin present in its system.

(m) Taking all of the above into consideration we are of the belief that there are no valid reasons for this Committee to deviate greatly from the Penalty Submissions of Mr CRUICKSHANK on behalf of the Racing Integrity Unit.

(n) We therefore are satisfied that a fine of $5500 is an appropriate penalty in this case. We believe that such a penalty will satisfy the principal requirements of sentencing- that is to say, to punish the offender/s, to deter the offender/s and others in the industry and the need to maintain integrity and public confidence in harness racing.

Penalty

Mr and Mrs NEAL are together fined the sum of $5500.

Costs
The RIU did not seek costs. As this hearing was held on a raceday there will be no JCA costs, accordingly there will be no order made as to costs.
 

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