Non Raceday Inquiry – NZTR v L R Noble – 31 May 2010 – Decision

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startdate: 01/01/2001

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decisiondate: no date provided

hearing_title: Non Raceday Inquiry - NZTR v L R Noble - 31 May 2010 - Decision

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Decision:

NZTR v LR NOBLE

JUDICIAL COMMITTEE DECISION

INFORMANT:   Mr BF McKenzie, Racecourse Inspector

DEFENDANT:   Mr Lance Robert Noble, Licensed Trainer

ALSO PRESENT:   Mr JW McKenzie, Chief Racecourse Inspector

HEARING DATE:  31^st May 2010

HEARING VENUE:   Te Rapa Racecourse

JUDICIAL COMMITTEE:   BJ Scott Chairman, BJ Rowe

Mr Noble appeared before the Committee to answer a charge filed against him by Racecourse Inspector Mr BF McKenzie such charge being pursuant to Rule 804(2) of the New Zealand Rules of Racing and being lodged by Mr McKenzie under Information number 6866.

The charge read as follows:

“That the horse FIRST DATE was brought to the Racecourse at Rotorua for the purpose of engaging in the Townley Trenching and Electrical Rotorua 3yr 1400 metre race at the meeting of Racing Rotorua on Friday 16 April 2010, in which said race such horse started AND THAT FIRST DATE had had administered to it a prohibited substance, namely CLENBUTEROL, capable of affecting its speed, stamina, courage or conduct in breach of Rule 804(2) AND THAT you were the Trainer of the horse AND THAT by virtue thereof you are liable to the penalty or penalties which may be imposed upon you pursuant to Rule 804(6) of the New Zealand Rules of Racing unless you satisfy the Committee that you had taken all proper precautions to prevent the administration of such prohibited substance”

Rule 804(2) states:

“When a horse which has been brought to a Racecourse or similar racing facility for the purpose of engaging in a Race or trial to which the Third Appendix hereto applies is found by a Tribunal conducting an inquiry to have had administered to it or have had present in its metabolism a Prohibited Substance, capable of affecting its speed, stamina, courage or conduct, the Trainer and any other person who in the opinion of such Tribunal conducting such inquiry was in charge of such horse at any relevant time commits a breach of these Rules unless he satisfies the Tribunal that he had taken all proper precautions to prevent the administration or presence of such Prohibited Substance.”

Rule 804(6) states:

“A person who commits a breach of sub-Rule (2) or (3) or (4) or (5) of this Rule shall be liable to:

            (a)        be disqualified for a period not exceeding five years; and/or

(b)        be suspended from holding or obtaining a Licence for a period not exceeding 12 months.   If a Licence is renewed during a term of suspension, then the suspension shall continue to apply to the renewed Licence; and/or

(c)        a fine not exceeding $25,000.00.

Mr McKenzie also lodged pursuant to Information number 41769 a Request for a Ruling as follows:

“That the horse FIRST DATE was brought to the Racecourse at Rotorua and started in the Townley Trenching and Electrical Rotorua 3yr 1400 metre race at the meeting of Racing Rotorua on Friday the 16^th April 2010 AND THAT FIRST DATE had had administered to it a prohibited substance, namely CLENBUTEROL capable of affecting its speed, stamina, courage or conduct AND THAT by virtue there of and of the provisions of Rule 804(1) of the New Zealand Rules of Racing, the said horse shall be disqualified from the said race.”

Rule 804(1) states:

“A horse which has been brought to a Racecourse or similar racing facility and which is found by a Tribunal conducting an inquiry to have had administered to it or have had present in its metabolism a Prohibited Substance, capable of affecting its speed, stamina, courage or conduct, shall be, in addition to any other penalty which may be imposed, disqualified for any Race or trial to which the Third Appendix hereto applies in which it has started on that day.”

Mr Noble was present and acknowledged that he had been served with the charge and at the time of service was also provided with copies of both of the above Rules and a notification of the time and date of Hearing.

Mr and Mrs J as the owners of the horse FIRST DATE acknowledged in writing to this Committee that they were aware of the Hearing and the charge against Mr Noble and the request for a Ruling in respect to their horse.

SUMMARY OF FACTS presented by Mr J McKenzie:

1.         Mr McKenzie presented to this Committee the appropriate Authority from NZ Thoroughbred Racing Inc to proceed with the charge against Mr Noble and to request a ruling that the horse FIRST DATE be disqualified from the race in question.

2.         On Friday the 16^th April 2010, Rotorua Racing conducted a totalisator race meeting pursuant to the NZ Rules of Racing at the Arawa Park Racecourse.

3.         Race 9 on the programme was the Townley Trenching and Electrical Rotorua 3 yr 1400 metre event for a gross stake of $6,000.00.

4.         NZTR records show that the horse named FIRST DATE (3yr F No Excuse Needed – Stars In Her Eyes) was a starter in this race.   It is a horse trained by Matamata Licensed Trainer LR Noble.   It was No. 6 in the field.   It was ridden by Cameron Lammas and carried 55.5 its carded weight.   It was 7/7 in the betting.

5.         NZTR records show that FIRST DATE won this event by 1¼ lengths.   It paid $13.30 for the win and $3.80 for the place.   This was its first win in its career of four race day starts.   At its previous start at Waipa on the 25^th March 2010, it had finished fourth in a field of nine runners.   A copy of that result was presented as an exhibit to the Committee.

6.         After the race this horse underwent a routine swab.   The NZTR swab card involved is numbered 13651.   The NZTR Swab Card 13651 and the Swabbing Record Data Sheet for that meeting record all relevant details involving the swabbing procedure.   A copy of the Swab Card was presented as an exhibit and acknowledged by Mr Noble.

7.         Those records show that the horse was accompanied to the swab box by Licensed Stablehand William Gage-Brown.   The NZTR Swabbing attendant was Betty Newcombe and Veterinary Surgeon was Matthew Fisken.   Both of the latter persons are known to Mr McKenzie as being experienced and competent in their roles.   There are no adverse comments noted on the swabbing data.

8.         All swabs taken at that Race Meeting were duly forwarded to New Zealand Racing Laboratory Services in Auckland.   By Certificate of Analysis dated the 29^th April 2010, the Analyst has reported the presence of CLENBUTEROL in the urine sample of the horse relating to NZTR Swab Card No. 13651.   A copy of this Certificate was presented to the Committee and acknowledged by Mr Noble.

9.         CLENBUTEROL is a prohibited substance within the meaning of Rule 204 and the Fourth Appendix of the NZ Rules of Racing.   It is also a substance capable of affecting the speed, stamina, courage or conduct of a horse.   A copy of a letter from Dr Andrew Grierson, Chief Veterinarian for NZTR was presented to the Committee and acknowledged by Mr Noble.

10.       On the 29^th April 2010 NZTR Investigators JW and BF McKenzie attended at the stables of Mr Noble.   This is a very modern and impressive equine complex situated adjacent to the Matamata Racecourse.

            Photographs of the Training Complex and feed room were presented to the Committee and acknowledged by Mr Noble.

11.       Mr Noble has been licensed as a Trainer since 1991.   He is aged 42 years.   He is married with two young children.   He is a committeeman of Racing Matamata.   He has always enjoyed an extremely high reputation within NZ Racing and his own peers including NZTR Officials in terms of his overall integrity and commitment to the Racing Industry.

12.       Mr Noble was advised of the positive finding to the horse FIRST DATE.   He expressed surprise and shock at this news.   The two Investigators went with Mr Noble to the stables to commence inquiries into this matter.

13.       The Investigators were shown into the feed room where the feeds are stored and made up.   They were also shown an unlocked set of cupboards in that area.   In particular they noted, and later took possession of two containers.   One smaller container is labelled Bromotrimidine and was about a third full of a white powdered substance.   If the contents of this container are true to label, this is not a prohibited substance within the meaning of the Rules.

14.       The second larger container is labelled Airways Tmps.   The label container wording indicating the presence of CLENBUTEROL in this container.   This product is used for horses that may have airways or respiratory problems that could be associated with a cold or nasal discharge etc.   CLEBUTEROL, as previously reported, is a prohibited substance.

15.       Mr Noble was and remains adamant, the horse FIRST DATE in the period leading up to the race, had no health issues or problems and was on no form of medication including Airways Tmps.   The blackboard records and the daily diary were viewed.   There was no indication by any notations on or in either, that this horse was suffering from anything that would cause management or staff to administer this product.

16.       The Trainer agreed that the presence of this substance (Airways Tmps) in the unlocked cupboard in the feed room, gave rise to the distinct possibility that by some means, a quantity had found its way into the feed given to FIRST DATE.

17.       Extensive inquiries and interviews took place over the next two days with the Trainer Mr Noble and his foreman Richard Waru.   Also interviewed were stable staff.

18.       Discussions have also taken place with the stable Veterinarian Mr Bill Ewan from Marks Ewan and Associates.   Relevant photographs were taken of the products in question and the layout of the feed room.

19.       A written statement has been prepared in conjunction with Mr Noble.   At this stage he is unable to determine as to by whom, how or why this horse came to have administered to it this drug in question.

20.       Mr Noble requested that the reserve sample be forwarded to Australia for analysis.   This sample was analysed and found to be positive to CLENBUTEROL, by the Racing Laboratory in Sydney, and a copy of their analysis was presented to the Committee and acknowledged by Mr Noble.

21.       The two containers found at the stables have been forwarded to NZRLS for analysis to determine that the contents are true to label in terms of the presence of CLENBUTEROL.   A swab was taken from FIRST DATE at Matamata on the 30^th April 2010 and has been forwarded to NZRLS.   They too have been analysed and the product labelled Airpower Tmps was found to contain CLENBUTEROL.  

22.       At this stage there is no evidence to specifically identify the person or persons who administered the substance with CLENBUTEROL in it that resulted in the positive swab.

23.       In any event, Trainer Mr Noble accepts, in terms of his vicarious responsibilities pursuant to the Rules, this positive swab lies with him.

24.       Throughout all aspects of this inquiry, the Investigators and NZTR have received total co-operation, and a professional approach from Mr Noble.

Mr Noble did not have any questions of Mr McKenzie.

SUMMARY OF FACTS presented by Mr LR Noble:

1.         Mr Noble stated that he resides at Easdon Lodge, 7567 State Highway 27, RD3, Matamata.   He is 42 years old.   He is a Licensed Trainer with New Zealand Thoroughbred Racing.   He has held a Trainers Licence since 1991.   His training establishment is situated at this address.

2.         Mr Noble stated that he had been advised by NZTR Investigators on the 29^th April 2010 that the horse FIRST DATE, trained by him had returned a positive to the drug CLENBUTEROL following its win at Rotorua.   He had been handed a copy of the NZRLS Analysts Certificate dated the 29 April 2010 by the Investigators Messrs JW and BF McKenzie.

3.         Mr Noble confirmed that he trains the horse FIRST DATE (No Excuse Needed – Stars In Her Eyes).   FIRST DATE is a 2006 bay filly.   Mr Noble stated that he has trained the horse throughout its career.

4.         Up to and including FIRST DATE’S start and win at Rotorua on the 16^th April 2010, the horse had started in totalisator races on four occasions.   That was its first win and finish in a dividend bearing position.

5.         Mr Noble confirmed FIRST DATE was entered for and started in the Townley Trenching and Electrical Rotorua 3yr old maiden race over 1400 metres at Rotorua on Friday the 16^th April 2010.   It was for a stake of $6,000.00.

6.         Mr Noble was present at the Race Meeting and in charge of the horses.   FIRST DATE travelled to the Race Meeting with Majestic Horse Transport.   The stable employee in charge of FIRST DATE was William Gage-Brown.

7.         FIRST DATE was ridden in the race by Cameron Lammas.   It won the race by 1.30 L.   It carried 55.5 which was its carded weight.   It was 7.7 in the betting.

8.         Mr Noble stated that he was aware that the horse went to the swab box following its win on the day.

9.         With regards to this horse being positive to CLENBUTEROL, Mr Noble stated that he had shown the Investigators a container in the stable medicine cabinet labelled Airway Tmps Oral powder which labels its ingredients as “active constituents, Clenbuterol, hydrochloride 21.33, ug/g, sulfadiazine 335mg/g, trimethoprim 66 mg/g.   It is described as an oral broncho dilator, antibacterial for treatment of respiratory disease in horses.

10.       This product was prescribed by Mr Noble’s vets for a Keeper gelding on the 1^st September 2009.   This horse left Mr Noble’s stable on the 4^th September 2009.   The remaining medication was stored away in the cupboard where all the feed supplements are kept in the feed room.

11.       FIRST DATE (known as Star in the stable) and another horse, had coughs in early February and were put on the Airway Tmps oral powder for a few days and their coughs cleared up quickly.   The stable names of both horses were printed on the lid of the Airway Tmps container.

12.       Again there was some powder left in the container and it was returned to the cupboard.

13.       Mr Noble confirms that he had not authorised any horse in the stable to be administered with the Airway Tmps powder since early February.   The only horse on any medication at this time was on Bromotrimidine which is a powder which is used for coughs but is non-swabable which was kept in the same cabinet as the Airway Tmps and both are clearly labelled and are in different shaped containers.

14.       Mr Noble conducted individual interviews with his staff who were all adamant that they had not administered the Airway Tmps powder either directly to FIRST DATE or to her feed and neither had they seen anyone else do it.   Protocol within the stable dictates that all medications are only to be administered after either approval or a direct instruction from Mr Noble or his foreman Mr Richard Waru.   At this point Mr Noble is unable to ascertain how the CLENBUTEROL came to be in FIRST DATE’S sample.

15.       Mr Bryan McKenzie also conducted individual interviews with members of Mr Noble’s staff.   Again no one had any knowledge or could recall having used the Airway Tmps powder.

16.       Mr Noble is aware of the rules regarding prohibitive substances and his responsibilities as a Licensed Trainer.

Mr McKenzie did not have any questions of Mr Noble.

REQUEST FOR A RULING

Prior to making submissions as to penalty, Mr McKenzie requested this Committee to disqualify FIRST DATE pursuant to Rule 804(1) from the race in question and this Committee so orders that FIRST DATE be disqualified from the Townley Trenching and Electrical Rotorua 3yr 1400 metre race at Rotorua on the 16 April 2010.

PENALTY SUBMISSIONS presented by Mr J McKenzie:

Mr J McKenzie submitted as follows:

1.         NZTR has a robust protocol relating to the post-race testing of horses, usually involving the winners and stake placed horses.

2.         During the course of a racing season, NZTR sends for analysis approximately 3000 samples.   It is a matter of record that very few samples return a positive result.

3.         It is important to qualify that almost without exception a positive swab is generated as a result of negligence rather than by a wilful administration where a person sets out to dope a horse to gain an unfair advantage.

4.         Drug Testing of horses commenced in New Zealand around 1950.   The initial results were confirmation of the need for drugs to be eliminated from horses that are racing in New Zealand, to ensure that all competitors were competing on a transparent and fair playing field.

5.         The detection of a prohibited substance, as they are known now, sends an immediate reaction throughout the Racing Industry that a horse has won with the assistance of an unfair advantage, not apparent to other competitors, or equally important, to the punters who expect as much information and transparency as one can get before investing on the totalisator.

6.         It was clearly explained in a previous High Court decision in 1955.  

7.         Mr McKenzie submitted that he raised these issues because it is important that regardless of how a horse, is found to have had administered to it a drug or prohibited substance that is capable of affecting speed, stamina, courage or conduct, it is deemed to have had an unfair advantage.

8.         Mr McKenzie advised this Committee that Mr Noble had been totally co-operative in every way, and has assisted the Investigators in all facets of this inquiry.

9.         It was evident that when told of the analyst’s findings Mr Noble was totally amazed and at a loss to understand how FIRST DATE could have returned a positive swab.

10.       It is accepted by NZTR and its Investigators that Mr Noble has been the employer who through negligence of a staff member who has incorrectly administered Air Power Tmps, too close to race time that the positive swab has been analysed.

11.       For practical reasons, and the intention of those who drafted the Rules, the Trainer is at all times vicariously responsible for the well being of his horses, and that they race “drug free”.

12.       While negligence can result in a number of ways it was not through poor administration, within the stable, by the Trainer on this occasion.   The training establishment is very well presented, it is clean, well groomed and a separate feed room was tidy.   While the medication door was not locked, it was securely shut, and only for access by authorised personnel.

13.       NZTR accepts it was not a wilful administration by the Trainer, and exactly how the administration occurred may never be determined.

14.       The Guidelines for sentencing are set out in decisions of NZTR v P 1994, and NZTR v C 2009.   They have been recognised as an appropriate way to arrive at a penalty.   Each case will have a slightly different set of circumstances but in most cases, for breaches of Rule 1004 in the previous Rules and now amended Rule 804, (the drug negligence/prohibited substance rule) a fine has to date been the penalty deemed to be appropriate.   The quantum of fine has tended to increase for obvious reasons.

15.       The Rules of Racing were updated and came into effect in October 2009.   Maximum penalty provisions were increased to reflect what was appropriate for today’s standards as set out in Rule 804.

16.       It is submitted, there is nothing in this case that warrants a departure from a fine being imposed.   It is however the intention of NZTR to maintain drug free racing, and if a penalty of a substantial fine is not a deterrent, then strong submissions will be made for periods of suspension or disqualification to be imposed.

17.       It is a matter of fact that it is often the owner/s who suffer the greatest loss.   They celebrate the horses winning.   They receive public accolades and then through no fault of their own, are notified of the horses disqualification and associated penalties.

18.       In making submissions on the quantum of penalty, NZTR has taken into consideration the following issues:

            (a)        The training facility was presented at the highest level.

(b)        The conduct and co-operation of the Defendant, Mr Noble was totally professional, and quite understandably a real piece of shocking news on the advice of the analyst.

(c)        Mr Noble has been let down by a member of his staff, who has not been identified for one reason or another.   It can only be hoped that that employee has done so unwittingly and even today is not aware that he or she administered the product close to the race day.

(d)        Mr Noble without default accepted he was vicariously responsible for his training operation and the horses he trained.

19.       The new Rules of Racing in keeping with the standards required as at 2010, have increased the penalties in terms of fines to a maximum of $25,000.00.   A breach of this rule would in submissions from NZTR attract a penalty of between $7,500.00 - $10,000.00.

20.       It is submitted for the reasons stated above, that on this occasion the appropriate penalty is a fine of $6,000.00 and costs of $1,000.00 to NZTR plus any costs incurred by the

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