Non Raceday Inquiry RIU v MP Jones – Decision dated 16 October 2014

hearingid: e35e0032c42607f292893c8401f5d857

informantnumber:

horsename:

hearing_racingtype:

startdate: no date provided

newcharge:

plea:

penaltyrequired:

decisiondate: 03/10/2014

hearing_title: Non Raceday Inquiry RIU v MP Jones - Decision dated 16 October 2014

charge:

facts:

appealdecision: NO LINKED APPEAL DECISION

isappeal:

submissionsfordecision:

reasonsfordecision:

Decision:

BEFORE A JUDICIAL COMMITTEE

HELD AT CHRISTCHURCH

IN THE MATTER of Information No. A6401

BETWEEN KYLIE ROCHELLE WILLIAMS, Racecourse Investigator for the Racing Integrity Unit

Informant

AND MARK PETER JONES of Burnham, Licensed Public Trainer

Respondent

Date of Hearing: Wednesday, 8 October 2014

Venue: Addington Raceway, Christchurch

Judicial Committee: R G McKenzie, Chairman - S C Ching, Panelist

Present: Mrs K R Williams (the Informant)

Mr C J Lange (Counsel for the Informant)

Mr M P Jones (the Respondent)

Mr G M Brodie (Counsel for the Respondent)

Ms R Sutorious

Mr M Kermeen (Journalist, “The Press”)

Mr S W Wallis (Registrar)

Date of Decision: 16 October 2014

RESERVED DECISION OF JUDICIAL COMMITTEE

THE CHARGE

[1] Information No. A6401 alleges that the Respondent, Mr M P Jones, committed a breach of Rule 1004 (1), (1A) & (2) of the New Zealand Rules of Harness Racing as follows:

That on the 5th day of June 2014 Mark Peter Jones the trainer and person in charge of the horse REMISS which had been taken to the Forbury Park Trotting Club for the purposes of engaging in a race namely the SOUTHERN GOLDEN GIRLS SERIES (HEAT 4) MOBILE PACE, Race 9, and that you failed to present the said horse free of prohibited substances namely bicarbonate or other alkali substance as evidenced by a blood TCO2 level of 36.2 mmol/l. This is in breach of the Prohibited Substance Rule, Rule 1004 (1), (1A) and (2).

[2] Mr Lange produced a letter from Mr M R Godber, Operations Manager for the Racing Integrity Unit, authorising the filing of the informations pursuant to Rule 1103 (4) (c).

[3] Mr Brodie, on behalf of Mr Jones, agreed to take the charge as read and indicated that the charge was denied.

Summary of Agreed Facts

[4] Mr Lange produced a Summary of Agreed Facts signed by both Counsel:

1. REMISS is a 4 year old bay mare and was trained by Public Trainer Mr Mark Jones until 3 July 2014. REMISS is owned by R J Kane, R K McCutcheon, K F Schmack and G M Stoddart. REMISS has raced 14 times for 1 win and 3 placings and stakes of $6,959 as at 8 July 2014.

2. REMISS was correctly entered and presented to race by trainer Mr Jones at the Forbury Park Trotting Club meeting on 5 June 2014. The race started at 9:16 pm. REMISS was driven in the race by Miss S Ottley to finish 12th in Race 9, the Southern Golden Girls Series (Heat 4) Mobile Pace and did not win a stake.

3. Club Veterinarian Mr John Keenan took a pre-race TCO2 blood sample from REMISS at 7.16pm in the presence of Racecourse Investigator, Mr Barry Kitto, and stable representative, Miss Michelle Neilson. The blood samples were recorded with the Sample ID number 37591. Mr Jones does not contest the taking of the samples.

4. The sample was forwarded to the New Zealand Racing Laboratory for analysis. On analysis the sample had a total carbon dioxide (TCO2) concentration of 36.2 millimoles per litre in plasma.

5. On the 16th of June 2014, Racecourse Investigators Mr Robin Scott and Mrs Kylie Williams went to Mr Jones’ property, 259 Grange Road, R D 7, Christchurch, and advised him of the elevated TCO2 result returned by REMISS.

6. Mr Jones denied administration of any alkali by any means to REMISS.

7. Various items were taken from Mr Jones’ premises and forwarded to the Racing Laboratory for testing. The New Zealand Racing Laboratory advised that the only exhibit forwarded to them that contained a carbonate substance was “NutriMin” but “it would be insufficient to affect the TCO2 level of a horse if given at the normal dose rate of 10-60g”.

8. A TCO2 blood sample was taken from REMISS at the New Zealand Metropolitan Trotting Club Trials on 16 June 2014 on analysis had a total carbon dioxide (TCO2) concentration of 31.5 millimoles per litre in plasma.

9. REMISS was tested again on 20 June 2014, at the property of Mr Jones at 12.41pm. On analysis this sample had a total carbon dioxide (TCO2) concentration of 33.4 millimoles per litre in plasma.

10. REMISS was TCO2 tested at the Forbury Park TC meeting on 27 June 2014. On analysis this sample had a total carbon dioxide (TCO2) concentration of 35.6 millimoles per litre in plasma.

11. REMISS was TCO2 tested at the New Zealand Metropolitan Trotting Club meeting on 4 July 2014. On analysis this sample had a total carbon dioxide (TCO2) concentration of 34.6 millimoles per litre in plasma.

12. Mr Jones could not provide any reason for REMISS’s level to be elevated at the Forbury Park TC meeting on 5 June 2014 and stated that he has never knowingly administered to the horse any alkalizing agent by tubing or any other method for the purpose of illegally enhancing the horse’s performance.

Issues

13. The issue for determination by the Committee is whether a breach of Rule 1004 is committed where a pre-race blood sample is taken at 7:16 pm and on analysis has a TCO2 level of 36.2 millimoles per litre in plasma but the horse does not start in its race until 9:16 pm (at which time the TCO2 level may have been higher, lower, or the same).

Submissions on behalf of the Informant

[5] Mr Lange presented the following submissions on behalf of the Informant:

1. The Informant and Respondent have provided the Judicial Committee with an agreed statement of facts and issues.

2. The issue for determination by the Committee is whether a breach of Rule 1004 is committed where a horse starts its race at 9.16pm, but the pre-race blood sample was taken at 7.16pm and on analysis was found to have a TCO2 level of 36.2mmol/L.

The Charge

3. Mr Jones has been charged with a breach of Rule 1004(1)(1A) and (2) in the following terms:

“That, on 5 June 2014 Mark Peter Jones, the trainer and person in charge of REMISS, which had been taken to the Forbury Park Trotting Club for the purpose of engaging in a race, namely the Southern Golden Girls Series (heat 4) mobile pace, race 9, and that you failed to present the said horse free of prohibited substances, namely bicarbonate or other alkaline substance as evidence, by a blood TCO2 level of 36.2mmol/L. This is a breach of the Prohibited Substance Rule, R.1004 (1), (1A) and (2)”.

4. Rule 1004(1)(1A) and (2) provides:

PROHIBITED SUBSTANCE RULE

1004 (1) A horse shall be presented for a race free of prohibited substances.

(1A)A horse shall be presented for a race with a total carbon dioxide level at or below the level of 35.0 millimoles per litre in plasma.

(2) Where a horse is taken, or is to be taken, to a racecourse for the purpose of engaging in a race otherwise than in accordance with sub-rule (1) the trainer of the horse commits a breach of these rules.

5. The term prohibited substance is defined in s105 as:

a) Any substance capable of affecting the speed, stamina, courage or conduct of a horse by its actions upon the central or peripheral nervous system, or the cardio-vascular, respiratory, alimentary-digestive, musculoskeletal or urogenital systems;

b) Any substance set out in the Prohibited Substance Regulations;

c) Metabolites, artefacts and isomers of prohibited substances prescribed by paragraphs (a) and/or (b) hereof.

6. Clause 4 of the Prohibited Substance Regulations provides as follows:

4 The following substances are not prohibited when present at or below the following thresholds:

4.1 Alkalising agents, when evidenced by a total carbon dioxide (TCO2) at a concentration of 35.0mmol/L in plasma

Presented

7. It is understood that Mr Jones will advance that a horse is presented to race at the time it starts in the race or at the time it is presented in the assembly area. The informant submits that a horse is presented to race at the time it is to be taken or is taken to a racecourse for the purpose of engaging in a race.

8. Rule 1004 (1) and (1A) refers to a horse being presented for a race free of a prohibited substance from which is excluded TCO2 level at or below 35mmol/L.

9. Rule 1004(2) provides that when a horse is taken to a racecourse for the purpose of engaging in a race otherwise than in accordance with sub-rule (1) the trainer commits a breach of the Rules.

10. Rule 1004 (3) provides where a person is left in charge of a horse, and the horse is taken or is to be taken to a racecourse for the purpose of engaging in a race, otherwise than in accordance with sub-rule (1), the trainer of the horse and the person left in charge both commit a breach of the Rules.

11. REMISS was taken to a racecourse for the purpose of engaging in a race and a pre-race blood sample taken at 7:16pm. The race was due to start at 9:15 pm and the horses are required in the assembly area at 15 minutes before the start.

12. The term “presented” is not defined in the rules. The context of what is meant by presenting is found in sub-rules (2) and (3) and the purpose of the rule.

13. Sub-rule (2) and (3) refer to when a horse is to be taken or is taken to a racecourse for the purpose of engaging in a race the person in charge of the horse commits a breach of the rules. That is the horse is presented to race at the time it is to be taken or is taken to the racecourse to engage in a race.

14. Consistent with that interpretation is Rule 213 (1) (c) which enables the horse to be scratched before the race where the horse may have had administered to it a prohibited substance.

15. It is submitted the purpose of the Rule is to ensure that horses participate in racing free of prohibited substances.

16. The informant submits applying a purposive interpretation the time a horse is presented includes the time after arrival on course to race.

17. In Harness Racing v Kerr CA 148/96, 12/11/96 Keith J delivery the judgment of the Court at page 14 rejected a narrow literal interpretation of the rules and stated that the purpose of the predecessor to rule 1004 and the administration rule was to ensure that the performance in a race of a horse is not affected by drugs (as they were then known). The Court went on to comment that the words in the current administration rule which refers to any horse which is taken or is to be taken to a racecourse… was a matter of clarification rather than a change of meaning. The Court rejected a literal interpretation that would lead to an absurd result.

18. In McInerney v Templeton CP187/93 10/1199 Christchurch Registry, Panckhurst J in relation to the Greyhound rules which referred to any greyhound taken to any racecourse for the purpose of engaging in a race… at [13] referred to proscribed act is that of being in charge of a greyhound which is taken to a race meeting when the fact, or circumstance, of administration of a performance affecting drug to it is established. At [14] he referred to the plain purpose of the rule is to ensure that greyhounds compete on level terms and to ensure no dog has present in its system any drug capable of affecting performance.

19. The purpose of Rule 1004 is to require each horse to race free of prohibited substances and to ensure horses race on even terms. What that requires is that the horse at the time it is to be taken or is taken to the racecourse to race it is free of prohibited substances. Consistent with that approach Rule 213 (1) (c) empowers Stipendiary Stewards to scratch a horse before the race where the horse may have had administered to it a prohibited substance.

20. The defence interpretation would lead to absurd results. The interpretation advanced on behalf of the defendant would in effect mean that it would be necessary for pre-race blood samples to be taken immediately prior to the start to determine what the horse’s TCO2 level is at that exact time. That consequence would make the rule redundant as it would not be possible to undertake TCO2 testing at the time of the start of the race where horses have been warming up out on the track and are lining up for the start, or as they enter the assembly area.

RIU v L J Justice

21. The proceedings involving Mr Justice, involved a DMSO level above the threshold as ascertained from a post-race urine swab. In the course of the hearings, one of the issues was what was the horse’s level at the time it raced? Based on the expert, it was clear that the level would have been higher prior to racing than at the time the swab was taken.

22. On behalf of Mr Justice, it was submitted the horse was presented to race when it was required to be on course under clause 15(1) of the Programming Conditions Regulation. That required the horse to be on course one hour prior to the advertised start time of the first race or where it was entered in a subsequent race at least 90 minutes prior to the advertised start time. It was contended on behalf of Mr Justice the time the horse had to be free of prohibited substances was when it was required to be on course. The Judicial Committee, in its decision at [3.26] commented:

“We do not accept those interpretations of R.1004 (1). Given the purposes a rule is to ensure horses race free of prohibited substances, the logical point of presentation for a race which best achieves that objective is when the horse lines up for the start and begins to run in the race in which it is entered. In our view, such an interpretation is consistent with a natural and ordinary meaning of “presenting” a horse for a race and is contextually consistent with the objectives of R.100 4(1). A documented interpretation advanced by Ms Thomas would lead to the result that any ingestion or administration of a prohibited substance to a horse after it came onto the racecourse, or within the period of one hour before it was to run in the first race, or 90 minutes before it was to run in any other race would not amount to a breach of R.1004(1). Such a result would undermine entirely the purpose and intent of R.1004 (1) and we do not think the rule should be interpreted that way”.

23. On appeal, the Appeals Tribunal at [49] stated:

“The proper interpretation of the rule is that which best gives effect to the purpose or objective which the rule seeks to achieve. The primary objective must be to ensure that races take place with all horses free of prohibited substances. This approach to interpretation was emphasised in the judgment of the High Court in Kerr v Frampton. Judgment of the High Court was overturned in the Court of Appeal but the approach to the interpretation of the rules was not disturbed. The same approach has been taken under the rules of greyhound racing, see McInerney v NZ Greyhound Racing. That decision was affirmed in the Court of Appeal. The same reason has been adopted under the rules of thoroughbred racing. In our view, to best achieve the objective of ensuring that horses race drug free at testing, the testing of prohibited substances must take place, as near as possible to the conduct of the race. This cannot be achieved if a drug test were take place sometime significantly before the race took place”.

24. Later at [51], the Appeals Tribunal stated:

“The prospect of there being pre-race administration or ingestion of a prohibited substance going undetected would defeat the very objective which R.1004 (1) is intended to achieve. This, quite apart from the acute and practicalities spoken of above. Further, we agree with the position taken for the respondent in relation to Regulation 15 of the Harness Racing Programming Conditions. That Regulation has to do with the time at which the horse is to be on the racecourse and does not have direct reference to the requirement that horses should race drug free.

[52] We agree with the approach taken on this issue by the Committee”.

25. The decision of the Judicial Committee and Appeals Tribunal in Justice must be read in the context of the argument being advanced. There, on behalf of Mr Justice, it was contended that the horse was presented at the time it was required to be on course under the programming conditions and it was at that time that the informant was required to prove that the prohibited substance was in the horse, that is the prosecution had to prove that the substance was present at a prohibited level detected in a post-race sample at a time 90 minutes before the race.

26. Both the Committee and the Appeals Tribunal appropriately rejected that approach as then it would be open for the horse to be administered a prohibited substance after the 90 minute time period and that would not be a breach of the Rules.

27. Counsel is not aware of any case where the particular Rule relating to presentation has been considered in relation to pre-race samples, but again, however, it is submitted that the purpose of the Rule is to ensure that horses are brought to the racecourse to race free of prohibited substances and if they are detected in the horse prior to its racing a breach of the Rules is committed.

Submissions on behalf of the Respondent

[6] Mr Brodie presented the following submissions on behalf of the Respondent:

1 Regulation 1004, 1, 1A, 2 and 3 provide as follows:

“Prohibited Substance Rule

1004 (1) A horse shall be presented for a race free of prohibited substances.

(1A) A horse shall be presented for a race with a total carbon dioxide level at or below the level of 35.0 millimoles per litre in plasma.

(2) Where a horse is taken, or is to be taken, to a racecourse for the purpose of engaging in a race otherwise than in accordance with sub-rule (1) the trainer of the horse commits a breach of these Rules.

(3) Where a person is left in charge of a horse, and the horse is taken or is to be taken to a racecourse for the purpose of engaging in a race, otherwise than in accordance with subrule (1), the trainer of the horse and the person left in charge both commit a breach of these Rules.”

2 The prohibited substance regulations which came into force on 1 May 2014 state that the following shall be prohibited substances:

“1.2.6 Alkalinising agents

2. The metabolites, artefacts, isomers and analogues of the prohibited substances prescribed in paragraph 1 are prohibited substances.

3. … not relevant.

4. The following substances are not prohibited when present at or below the following thresholds:

4.1 Alkalinising agents when evidenced by total carbon dioxide (TCO2) at a concentration of 35.0 millimoles per litre in plasma.”

3 The presence of an alkalinising agent can be evidenced by the total carbon dioxide present in the blood. Although carbon dioxide is always present elevated levels may suggest that an alkalinising agent has been introduced, which has had the effect of increasing the carbon dioxide. Carbon dioxide cannot of itself be an unlawful substance because it occurs naturally in all tissue.

4 It is important to note that the combined effect of the rules and the regulations is not that the alkalinising agents are totally prohibited. The regulation provides that the alkalinising agent itself is not prohibited once the carbon dioxide level falls below the level of 35.0 mm. The regulation specifically recognises that where the blood CO2 level is below 35, an alkalinising agent is no longer defined as and ceases to be a prohibited substance. Although an alkalinising substance may be present it ceases to be prohibited if the level of CO2 in the blood falls below that level.

5 The only significance of carbon dioxide is that it provides a measure of any alkalising agent which may have been administered.

6 By drawing a cut off at 35, the logic is that below that level the CO2 which is detected, may be explained by reference to natural processes. Readings above that level may indicate the administration of an alkalinising substance.

7 Although only of marginal relevance given the strict liability nature of the definition there are a number of factors here which point away from the conclusion that this horse has been deliberately fed bicarbonate of soda:

(a) There is no direct evidence of any administration of bicarbonate of soda.

(b) There was an extensive search carried out of the stables and no evidence of bicarbonate of soda was found and there was no evidence of bicarbonate of soda being purchased.

(c) There are a number of staff present at all times. Administration would require collusion.

(d) Mark Jones was not present on the day in question. He left for Nelson at 7.00 am in the morning which is 14 hours before the race started. A horse deliberately doped would normally occur 4 to 6 hours before the race start.

(e) The horse was under the control of independent people, Kim Butt, her boyfriend and Michelle at all times during the day in question.

(f) The race horse inspector declined the opportunity to examine the continuous CTV record available from 14 cameras throughout the defendant’s establishment.

(g) A very large number of samples taken from all of the defendant’s horses over the preceding three years with the one exception of Alpeegee do not indicate any pattern of bicarbonate being administered.

(h) There is no particular reason for selecting this horse to be treated. The stakes involved were very minor, only $2,700 for the first place.

(i) The defendant did not bet on this horse and there was nothing to gain.

(j) The horse did not perform well. It ran last.

(k) The vet has identified a respiratory tract infection.

(l) This horse has returned relatively high TCO2 levels consistently over time.

8 The charge in this case is one of failing to present Remiss free of prohibited substances in breach of Rule 1004 (1), (1A) & (2).

9 It is not a charge of administering and it is not a charge of possession. Regulation 1001, (1) and (1A) both refer to a horse being presented for a race.

10 It is submitted that until the horse is actually taken to the race and put in charge of the Stewards, it has not been presented to a race at all and it is accordingly at this moment in time that CO2 levels must be measured. The significance in this case is that this horse was sampled at 7.15pm in the evening for a race which commenced at 9.30pm and in respect of which the horse was probably presented to the bird cage at about 9.15pm, that is two hours after the sample was taken.

11 The sample here indicates a very fine elevation over the permitted level, only .2 of a percent.

12 The agreed statement of facts records that at the time of the race the TCO2 level may have been higher, lower or the same as the level measured in the sample taken at 7:16 pm.

13 This is seen in the various readings for this horse in the four weeks after the relevant race but also, by the requirement that horses should not be administered within twenty four hours of race day.

14 The Judicial Control Authority was required to consider the meaning of presentation in the case of RIU v L J Justice, 31 October 2011. The horse “Smoken Up” was shown to have a prohibited substance dimethyl sulphoxide (DMSO) in a sample of blood taken from the horse following the race. The blood sample upon which the prosecution was based was taken some twenty minutes after the race. It therefore became necessary to know at what moment in time a horse is presented for a race for the purpose of Rule 1004(1). A very experienced Judicial Committee comprising Bruce Squire QC as chairman and Professor Geoffrey Hall carefully considered the meaning of the expression “presented”:

“3.25 In her initial submissions, after noting the word “presented” is not defined in the Rules, for a range of reasons we do not need to detail here, Ms Thomas submitted that a horse was presented for a race when it “… came to the racecourse or at the very latest when (it) raced”. However in her later submissions of 8 September 2011 Ms Thomas took a different position and submitted by reference to Regulation 15(1) of that part of the Harness Racing Regulations dealing with Programming Conditions – General under the heading Race Meeting Attendance, that a horse was presented for racing when it came to a racecourse in terms of the requirements of that Regulation. Subject to specified variations, Regulation 15 requires the trainer of a horse engaged in a race at a totalisator race meeting to ensure the horse is available in the official stabling complex or its allocated stall at least 1 hour prior to the advertised starting time of the first race of the meeting where it is entered in that race or where it is entered in a subsequent race, at least 90 minutes prior to the advertised starting time of that race. Accordingly in Ms Thomas’ submission, when a horse is presented for a race under R.1004 (1) will depend on which race it is entered in. No later than 1 hour before the first race if entered to race in that race, otherwise no later than 90 minutes before the start of any other race for which the horse is entered. Later in her submissions by reference to the particular facts of this case, Ms Thomas appeared to take a third position namely that a horse is presented for a race when it comes to the racecourse.

3.26 We do not accept those interpretations of R.1004 (1). Given the purpose of the Rule is to ensure that horses race free of Prohibited Substances the logical point of presentation for a race which best achieves that objective is when the horse lines up for the start and begins to run in the race in which it is entered. In our view such an interpretation is consistent with the natural and ordinary meaning of “presenting” a horse for a race and is contextually consistent with the objectives of R.1004 (1). Adopting the interpretations advanced by Ms Thomas would lead to the result that any ingestion or administration of a Prohibited Substance to a horse after it came onto the racecourse, or within the period of 1 hour before it was to run in the first race or 90 minutes before it was to run in any other race, would not amount to a breach of R.1004 (1). Such a result would undermine entirely the clear purpose and intent of R.1004 (1) and we do not think the Rule should be interpreted that way.”

“The logical point of presentation for a race which best achieves the objectives of rule 1004 is when the horse lines up for the start and begins to run in the race in which it is entered. “In our view such an interpretation is consistent with the natural and ordinary meaning of “presenting” a horse for a race and is contextually consistent with the objectives of rule 1004(1).”

15 The authority specifically rejected a suggestion that the horse was presented when it came to the race course and referred to regulation 15 which requires a horse to be available in its stall at least one hour prior to the advertised starting time of the race. It also rejected a submission that a horse is presented for a race when it comes to the racecourse.

16 It is submitted that this must be correct. It would be unworkable of the rule did not have within it a defined moment in time when the level must be measured. If the start of the race is rejected as the appropriate time then what is the appropriate time? Is a horse which arrives at the meeting the day before the race presented to race? Given the wide fluctuations which might occur on TCO2 levels this would be inconsistent with the objective of the rule. To hold otherwise would also be to depart from this decision which was itself confirmed on appeal to Justice Hansen.

17 In that judgment the Court held

“In our view, to best achieve the objective of ensuring that horses race drug free the testing for prohibited substances must take place, as near as is possible, to the conduct of the race. This could not be achieved if the drug tests were to take place at some time significantly before the race took place.”

18 The High Court [sic] rejected t

sumissionsforpenalty:

reasonsforpenalty:

penalty:

hearing_type: Non-race day

Rules:

Informant:

JockeysandTrainer:

Otherperson:

PersonPresent:

Respondent:

StipendSteward:

raceid:

race_expapproval:

racecancelled:

race_noreport:

race_emailed1:

race_emailed2:

race_title:

submittochair:

race_expappcomment:

race_km:

race_otherexp:

race_chair:

race_pm1:

race_pm2:

meetid:

meet_expapproval:

meet_noreport:

waitingforpublication:

meet_emailed1:

meet_emailed2:

meetdate: no date provided

meet_title:

meet_expappcomment:

meet_km:

meet_otherexp:

tracklocation:

meet_racingtype:

meet_chair:

meet_pm1:

meet_pm2:

name: