hearingid: 0a7da7ea2573a45565f180f235428d7a

informantnumber:

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hearing_racingtype: thoroughbred-racing

startdate: 01/01/2001

newcharge:

plea:

penaltyrequired:

decisiondate: no date provided

hearing_title: Non Raceday Inquiry - G C Small - 18 Dec 08 1,2

charge:

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Decision:

The defendant is charged with two breaches of Rule 1004(1), (2) and (4) of the Rules of Harness Racing.  The first charge (Information 66288) preferred by Chief Racecourse Inspector Carmichael reads as follows –

“I, the above named informant allege that the above named Defendant committed a breach of Rule 1004(1) & (2); 1004(7) & (8) in that on the 14^th day of November 2006 Geoffrey Clement Small was  the trainer and the person for the time being in charge of the horse CHANGEOVER which had been presented to race at Addington Raceway  for the purposes of competing in a race, namely the NRM Sires Stakes Series Final (Race 8) at a race meeting conducted by the New Zealand Metropolitan Trotting Club, when the said horse was found to have had administered to it a prohibited substance, namely  Caffeine, Paraxanthine, Theobromine  and Theophylline.”

BEFORE A JUDICIAL COMMITTEE

AT AUCKLAND      

IN THE MATTER of the

New Zealand Rules of

Harness Racing

                                                BETWEEN                 Thomas Rodney CARMICHAEL                                                                             

Informant

AND                           Geoffrey Clemment SMALL

                                    Defendant

APPEARING:                                                Chief Racecourse Inspector Mr T. R. Carmichael for Harness Racing New Zealand

                                                                        Mr R. Lawson for Mr G. C. Small

                                                                        Mr G. C. Small

                                                                        Mr R. Carr – Manager ATC Trot 2006 Syndicate

                                                                        Ms R. Bak – Registrar

DATE OF HEARING:                                  18 December 2008

JUDICIAL COMMITTEE:                J. M. Phelan (Chairman)

                                                                        B. J. Rowe

DATE OF DECISION:                                 12 January 2009

                               DECISION OF THE JUDICIAL COMMITTEE

The defendant is charged with two breaches of Rule 1004(1), (2) and (4) of the Rules of Harness Racing.  The first charge (Information 66288) preferred by Chief Racecourse Inspector Carmichael reads as follows –

“I, the above named informant allege that the above named Defendant committed a breach of Rule 1004(1) & (2); 1004(7) & (8) in that on the 14^th day of November 2006 Geoffrey Clement Small was  the trainer and the person for the time being in charge of the horse CHANGEOVER which had been presented to race at Addington Raceway  for the purposes of competing in a race, namely the NRM Sires Stakes Series Final (Race 8) at a race meeting conducted by the New Zealand Metropolitan Trotting Club, when the said horse was found to have had administered to it a prohibited substance, namely  Caffeine, Paraxanthine, Theobromine  and Theophylline.”

Rule 1004(1) and (2) and (4)”

The second charge preferred (Information 66289) reads as follows.

“I, the above named informant allege that the above named Defendant committed a breach of Rule 1004(1) &,(2); 1004(7) & (8) in that on the 14^th day of November 2006 Geoffrey Clement Small was  the trainer and the person for the time being in charge of the horse WINFORU  which had been presented to race at Addington Raceway  for the purposes of competing in a race, namely the New Zealand Trotting Cup (Race 10) at a race meeting conducted  by the New Zealand Metropolitan Trotting Club, when the said horse was found to have had administered to it a prohibited substance, namely, Caffeine.

Rule 1004(1) and (2) and (4)”

The Rules referred to above, which come under the Prohibited Substance Rule, read as follows –

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

(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.

(4) A breach of these Rules under sub-rule (2) or sub-rule (3) is committed regardless of the circumstances in which the prohibited substance came to be present in or on the horse.”

Mr Small was represented at this hearing by Mr Lawson who advised that

Mr Small admitted both charges.  Accordingly both charges were found to be proved.

Mr Carmichael produced written authority from the General Manager of Harness Racing New Zealand (“HRNZ”) to file these Informations, and he also produced a Summary of Facts which is attached to this decision.

Summary of Facts:  

On 14 November 2006 Mr Small was the trainer and the person for the time being in charge of the horses “Changeover” and “Winforu” which were presented to race at the Addington Raceway in races 8 and 10 respectively.

At the time of the race meeting Mr Small’s horses were stabled at Mr J. M. Whittaker’s training establishment in Christchurch, and both horses had been there for some weeks prior to the 14 November 2006.  Neither Mr Small nor his stable employee lived at that property, but they were there during the day to carry out routine training and stable duties.

“Changeover” was correctly entered for and started in Race 8, the NRM Sires’ Stakes Series Final.  The horse was second favourite and won the race earning gross stake money of $87,590-00.

“Changeover” was post race swabbed following the running of the race.  At the time of the swabbing the horse was in the control of Mr. I. T. Small who was at that time the authorised representative of the Trainer, Mr Small.  When Mr I. T. Small was interviewed later he had no complaints to make regarding the swabbing procedure.

Following the usual procedures the swab was sent to the Racing Laboratory.  On 29 November 2006 the Official Racing Analyst, Dr Beresford, reported that the urine sample from “Changeover” had tested positive to Caffeine, Paraxanthine, Theobromine and Theophylline.  Caffeine is a xanthine alkaloid compound and is a central nervous system (CNS) stimulant.  It is a drug or prohibited substance within that meaning as set out in the Rules of Harness Racing.   Paraxanthine, Theobromine and Theophylline are metabolites of Caffeine.

Mr Small was interviewed about this matter on 30 November 2006 and he denied any intentional or accidental administration of any Caffeine based product to “Changeover”.  His Auckland stable complex was inspected, but no such product was found.  Feed buckets recovered from Mr Whittaker’s stables at Christchurch, together with race day samples of feed, have been analysed but no trace of Caffeine has been found.

At the request of the owners of “Changeover” the reserve sample was sent to Racing Analytical Services Limited in Melbourne for an independent analysis, and this analysis confirmed the positive test.  The owners also had tests carried out on the urine sample to confirm that it came from “Changeover”, which it did.

“Winforu” was correctly entered for and started in Race 10, the Christchurch Casino New Zealand Trotting Cup.  The horse finished in 11^th place and earned gross stake money of $4732-00.

“Winforu”, along with all starters in the New Zealand Trotting Cup, was the subject of a security operation that commenced at 6-00am on the day of the race, and was kept in place until the horses left the official enclosure at the racecourse just before the start of the race.

All starters in the New Zealand Trotting Cup, including “Winforu” were the subject of pre-race blood sampling.  Mr Small was present when these samples were obtained, and he signed the appropriate documentation.

Following the usual procedures the blood samples were sent to the Racing Laboratory.  On 29 November 2006 the Official Racing Analyst, Dr Beresford, reported that the pre-race blood sample from “Winforu” had tested positive to Caffeine.

Caffeine is a xanthine alkaloid compound and is a central nervous system (CNS) stimulant.  It is a drug or prohibited substance within that meaning as set out in the Rules of Harness Racing.  

Mr Small was also interviewed about this matter on 30 November 2006 and he denied any intentional or accidental administration of any Caffeine based product to “Winforu”.  As mentioned above, investigations failed to find any Caffeine products.

On behalf of Mr Small, Mr Lawson advised that they concurred with the Statement of Facts as presented by Mr Carmichael.

Submissions on Penalty: 

Mr Carmichael’s written submissions on penalty are also attached to this decision.  It was pointed out that these breaches of the Rules were offences of strict liability, but that there was no evidence of administration of any caffeine product to the horses by Mr Small or any of his staff, and that enquiries and tests had failed to find any trace of a prohibited substance.

However, both horses returned positive tests, and for this to occur there must have been an element of negligence for which Mr Small must be held responsible as he was, at the relevant times, present and in charge of both horses.

Mr Carmichael referred to a number of previous cases dealing with prosecutions under Rule 1004, and he submitted that an appropriate starting point when considering penalties is the decision in HRNZ v. Chmiel (2008) where a fine of $3000-00 was imposed.

Mr Lawson made written submissions on penalty, and these are also attached to this decision.  In mitigation Mr Lawson referred to the following matters.

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hearing_type: Old Hearing

Rules: 1004.1, 1004.7, 1114.2, 1114.2.a, 1004.8, 1115.4

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