Appeal BA Johnston v NZGRA – 25 August 2011 – Decision dated 7 September 2011

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decisiondate: 12/09/2011

hearing_title: Appeal BA Johnston v NZGRA - 25 August 2011 - Decision dated 7 September 2011

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appealdecision: NO LINKED APPEAL DECISION

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Decision:

BEFORE AN APPEALS TRIBUNAL
HELD AT PALMERSTON NORTH

IN THE MATTER of the Rules of Racing of New Zealand Greyhound Racing Association (Incorporated)

BETWEEN BRENT ALAN JOHNSTON of Wanganui, Licensed Trainer

Appellant

AND NEW ZEALAND GREYHOUND RACING ASSOCIATION (INCORPORATED)
Thomas Rodney Carmichael, Chief Racing Investigator

Respondent

Tribunal: R G McKenzie (Chairman) - N Moffatt (Panellist)

Date of Hearing: Thursday, 25 August 2011

Present: Mr B A Johnston (the Appellant)
Mr C J George: (Chief Stipendiary Steward representing the Respondent), Mr M J Williamson (Registrar)

Date of Decision: 7 September 2011

RESERVED DECISION OF APPEALS TRIBUNAL

1. Background
1.1 Mr Johnston, the Appellant, is and was at all relevant times the trainer of the greyhound, IMPERATIVE.

1.2 On 16 May 2011, IMPERATIVE started in Race 2, GEON Wellington, for C1 greyhounds over a distance of 375 metres, at the meeting of Palmerston North Greyhound Racing Club held at Manawatu Raceway. IMPERATIVE finished 2nd in the race.

1.3 A post-race urine sample subsequently tested positive to the drug, Scopolamine, a prohibited substance under the Rules of Racing of Greyhound Racing New Zealand.

1.4 Mr Johnson was charged with a breach of Rule 87.1 and 87.3 which charge he admitted at a hearing before a Judicial Committee at Palmerston North on 21 July 2011.

1.5 Mr Johnston was fined the sum of $1,700 by the Judicial Committee.

1.6 Mr Johnston has appealed against the penalty imposed by the Judicial Committee on the following ground:
I feel that the amount was far too much with what was found in the dog’s swab and I also had a lack of time to prepare for hearing.

2. Appellant’s Submissions

2.1 Mr Johnston submitted that the fine was “pretty harsh” considering what the product was. He produced a label (Exhibit A) from a bottle of “Scourban Plus” on which, under the heading of “Withholding Periods” it was stated:
“Animals producing meat or offal for human consumption must not be sold for slaughter either during treatment or within 14 days of the last treatment.”

2.2 He stated that his practice was not to start dogs in races that were suffering from diarrhoea rather than treat them with “Scourban” and then race them.

2.3 Mr Johnston produced a bottle of “Scourban” (Exhibit B) that he had purchased in August 2010. The contents were “dry hard”, he said. He had produced the same bottle at the early stages of the investigation but the Judicial Committee had taken into account as an aggravating factor, in determining the penalty, that he had showed an unwillingness to assist the Respondent in its enquiries.

2.4 He submitted that, while he accepted that the greyhound had a prohibited substance in its system, he had not put it there and that he did not know how it got there. He submitted that he had been fined an extra $200 for not knowing how it got there. At the same time, the Judicial Committee had accepted that there was no evidence of deliberate administration, he said.

2.5 He referred to two earlier decisions of G (2009) and S (2010). In both cases, no penalty was imposed, he said.

2.6 Mr Johnston then produced an e-mail (Exhibit C) from a Mr Cleland Wallace at Massey University in which it was stated that:
“. . it is possible that [your greyhounds] might have ingested some scopolamine either directly through eating some black nightshade or indirectly through contact on the body then licking it off.”

The e-mail also stated that Scopolamine is also found in potatoes and tomatoes.

2.7 Mr Johnston pointed out to the Tribunal that Mr Carmichael, who appeared for the RIU before the Judicial Committee, sought a fine of only $1,500. He submitted that the fine of $1,700 was “severe” in circumstances where he did not know how the prohibited substance came to be in the dog’s system.

3. Respondent’s Submissions

3.1 Mr George submitted that it was of great concern that Mr Johnston did not know how the prohibited substance came to be in the dog’s system. It was expected that a trainer would have thorough knowledge of the administration of any substance, or where and what a dog eats.

3.2 Mr George then presented written submissions on behalf of the Respondent.

3.3 The Respondent contended that the amount of the prohibited substance detected is irrelevant to either the charge or the quantum of any penalty imposed for a breach of Rule 87.0. The amount of any prohibited substance detected in a race day sample is relevant only to substances that are clearly endogenous (originating within the body) and where an accepted threshold exists. Scopolamine is not an endogenous substance and, therefore, must have been administered or inadvertently ingested by the subject greyhound.

3.4 The Respondent referred to the case of Tucker v Auckland Racing Club (1955), which has long been the authority in drug negligence cases in racing. In that case, Mr Justice Shoreland said:
“That it is the nature and quality of the drug or stimulant found to have been administered and not the quantity of the drug detected that is struck at by the Rule”.

3.5 The Respondent submitted that what is required to establish a breach of the Prohibited Substance Rule was summarised in the Court of Appeal decision in the case of McInerney as follows:
“That is its breach requires proof that the person was in charge of the greyhound when it was taken to the race meeting. Of course, it must also be established that the greyhound had in fact been administered a performance enhancing drug. The person in charge need not be shown to have been involved in the administration; rather it is the fact of being in charge of the greyhound when it is taken to the race meeting that is the basis of the breach”.

3.6 The Respondent submitted that the position was clear – that the level of the drug detected is irrelevant to a breach of the Drug Negligence provisions in the Rules or any penalty that may be imposed as a consequence.

3.7 In relation to the ground of appeal that the Appellant had a lack of time to prepare for the hearing, the Respondent informed the Tribunal that the details of the charge were filed with the Judicial Control Authority on 5 July 2011 and served on the Appellant by a Stipendiary Steward of the Racing Integrity Unit on 15 July 2011, in accordance with Rule 32.3. The draft Summary of Facts was sent by e-mail to the Appellant on 17 July 2011.

3.8 Rule 32.3 provides as follows:
“Any charge, notice or other document served in accordance with Rule 32 shall be served at least six (6) days before the person is required to appear.

3.9 The Respondent submitted that that Rule had, therefore, been complied with (the date of hearing before the Judicial Committee was 21 July 2011).

3.10 The Respondent submitted that, in any event, although the matter was raised briefly by the Appellant before the Judicial Committee, there was no request for an adjournment on that ground.

3.11 On the matter of the level of the penalty, the Respondent submitted that the fine imposed by the Judicial Committee was at the “lower end of the scale” and consistent with penalties imposed for similar breaches of the Rule – more specifically, in the cases of Blackburn (2010) and Speight (2011) where the Defendants were each fined the sum of $1,500.

3.12 The Respondent referred to the decision of the Appeals Tribunal in RWWA v Beard (2001) where it was stated:
“An appellate Court does not interfere with the sentence imposed merely because it is of the view that the sentence is insufficient or excessive. It interferes only if it is shown that the sentencing judge was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence. The error may appear in what the sentencing judge said in the proceedings or the sentence itself may be excessive or inadequate as to manifest such error.”

3.13 In summary, the Respondent submitted that the Judicial Committee was correct in assessing the level of fine imposed, that the penalty was neither manifestly excessive nor inappropriate and that the fine of $1,700 was at the lower end of the scale and consistent with recent penalties for breaches of the Rule.

3.14 The appeal should be dismissed, the Respondent submitted.

4.0 Appellant’s Response

4.1 Mr Johnston pointed out that the cases referred to in the Respondent’s submissions involved caffeine, which was an “upper”. Scopolamine is a “downer”, he submitted.

4.2 Mr Johnston then told the Tribunal that he had been purchasing meat for his animals from the Wanganui Greyhound Racing Club and advanced this as a possible reason for the positive swab. He questioned how many other dogs could have been similarly affected. In answer to a question from the Tribunal, Mr Johnston replied that he was not aware of any positive swab returned by a greyhound eating meat from that source.

5.0 Costs

5.1 The parties were both asked for submissions in relation to costs, depending upon the outcome of the appeal.

5.2 Mr Johnston stated that it was not his request that the appeal be heard in Palmerston North. He said that he had to travel 1½ hours each way by car to attend the hearing.

5.3 Mr George said that the RIU would be seeking only accommodation costs of $300 and not any travel costs or costs in relation to the hearing.
6.0 Reasons for Decision

Ground of appeal that the fine was excessive

6.1 Mr Johnston submitted that the fine was “pretty harsh” considering what the substance was.

6.2 The only submission that Mr Johnston made in relation to this ground was to refer to two earlier decisions in each of which the defendant had not been fined, but had been ordered to pay costs only. The Tribunal has paid little regard to those cases, as it believed that special circumstances existed and, in any event, they were both decided prior to the Judicial Control Authority formally hearing charges brought by Greyhound Racing New Zealand. Therefore, those cases were of little or no assistance to the Tribunal in this appeal.

6.3 Mr Johnston, in his submissions, put forward some of the matters that he had put before the Judicial Committee in the first instance – in general terms, that he did not administer the substance and that he had no knowledge of how the prohibited substance came to be in the dog’s system. He again put forward two possible scenarios as to how the Scopolamine may have come to be in the dog’s system – by ingesting the substance through nightshade or some other plant, or by eating contaminated meat. Such submissions did not assist his appeal as to penalty, the Judicial Committee having found that he was guilty of drug negligence and having assessed the penalty accordingly.

6.4 Mr Johnston submitted that there was no evidence that he administered the prohibited substance. The Judicial Committee clearly accepted that, as does this Tribunal. He further submitted that the fine had been increased on the basis that he could not pinpoint how the substance came to be in the dog’s system. The Tribunal rejects that submission.

6.5 The Judicial Committee, in its decision, said:
“The aggravating factor however, is the lack of acceptance of a simple fact situation, and as a consequence his unwillingness, seemingly, to assist the Racing Integrity Unit in its enquiries. That has made the Racing Investigator’s task that much more difficult. Therefore, it is appropriate for that aggravating feature to add a premium to our starting point making the fine $1,700.”

6.6 The Judicial Committee described Mr Johnston’s attempts to explain how the substance came to be in the greyhound’s system as “disingenuous”.

6.7 The Tribunal notes that Mr Carmichael, representing the RIU at the hearing before the Judicial Committee, sought “a penalty in the vicinity of a $1,500 fine”.

6.8 The Tribunal accepts that the starting point of $1,500 adopted by the Judicial Committee was appropriate having regard to the circumstances of the case, Mr Johnston’s admission of the breach, his previous good record and having regard to previous penalties imposed for breaches of the Rule and, finally, Mr Carmichael’s penalty submission.

6.9 However, the Tribunal is concerned that the Judicial Committee has added a “premium” (the Committee’s own term) as it did. There is a difference between, on the one hand, refraining from deducting something from what would otherwise have been an appropriate penalty for a particular breach and, on the other hand, adding something to what would otherwise have been such a penalty. In this case, even accepting (and we do not necessarily accept) that Mr Johnston may not have cooperated with the RIU in the course of its enquiries, we see that more as being the absence of a mitigating factor rather than an aggravating factor. The Tribunal finds that the Judicial Committee erred in adding $200 to the fine that it would have otherwise have imposed.

Ground of appeal that the Appellant had a lack of time to prepare for the hearing

6.10 Mr Johnston did not address this ground of appeal at the hearing before this Tribunal. However, the Tribunal is satisfied that the Rules as to service and hearing date (see paragraphs 3.7, 3.8 and 3.9 above) have been complied with. Moreover, if Mr Johnston considered that he had not been given sufficient time to prepare for the hearing, then that is a submission he ought properly to have made to the Judicial Committee in conjunction with a request for an adjournment at that stage.

7.0 Decision

7.1 The appeal as to penalty is upheld in part.

7.2 The fine imposed by the Judicial Committee is varied by reducing it from $1,700 to $1,500.

8.0 Costs

8.1 There will be no order as to costs.

R G McKenzie       N Moffatt
CHAIRMAN           PANELLIST
 

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PersonPresent: Mr C George - Chief Stipendiary Steward representing the Respondent, Mr MJ Williamson - Registrar

Respondent: TR Carmichael - Chief Racing Inspector

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