Non Raceday Inquiry NZTR – J L Waddell – 24 June 2010 – Decision

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hearing_title: Non Raceday Inquiry NZTR - J L Waddell - 24 June 2010 - Decision

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Decision:

NZTR v JASON WADDELL

Hearing before Non-Raceday Judicial Committee

At Te Rapa Racecourse on Thursday 24^th June 2010

JUDICIAL COMMITTEE   Mr Murray McKechnie Chairman and Mr Bryan Scott

PRESENT:                             Mr John McKenzie, Chief Racecourse Inspector

                                                Mr Bryan McKenzie, Racecourse Inspector

                                                Mr Jason Waddell, Licensed Jockey

                                                Mr John Oatham, Registrar

                                                Mr Aidan Rodley, Journalist

Decision of Judicial Committee

1.         Preliminary issue: Photograph

1.1       Mr Aidan Rodley the racing editor of the Waikato Times requested the Committee to permit the taking of a photograph. After hearing from Mr Waddell it was ruled that a single photograph could be taken before the commencement of the hearing.

1.2       In accordance with the ruling of the Committee the photograph was taken and the hearing then commenced.

2.         Plea and summary of facts

2.1       Mr Waddell indicated that he pleaded guilty to the charge laid under Rule 656(3) of the Rules of Racing and that plea was formally recorded by the Committee.

2.2       Mr John McKenzie presented a summary of facts which had previously been made available to Mr Waddell. Shortly stated the summary explained that Mr Waddell was required to provide a urine sample on the 29^th May this year at the Ellerslie Racecourse. When the sample was analysed by ESR there was a positive reading for the prohibited drug methamphetamine (widely known as ‘P’). On the evening of the 2^nd June this year Mr Bryan McKenzie visited Mr Waddell and advised him of the positive reading. Mr Waddell was handed a “stand down notice”.

2.3       There was a conversation between Mr Waddell and Mr Bryan McKenzie on the evening of the 2^nd June. Mr Waddell told Mr Bryan McKenzie that he had never taken methamphetamine. He said he knew all about it and would never touch it. Mr Waddell did say that he had taken ecstasy in the past and that he had been around people taking cocaine but not methamphetamine. There followed some further discussion between Mr Waddell and Mr Bryan McKenzie. Mr Waddell stated that he had been in Australia on the Saturday prior to the drug test. It was established that this was the weekend of the 22^nd /23^rd May when Mr Waddell was riding in Brisbane. He said that he had been at a party where drugs had been taken - that there was cocaine being used but not by him. He was further asked by Mr Bryan McKenzie if he had used or been anywhere when ‘P’ was being used in the few days before the tests at Ellerslie. Mr Waddell said he had not.

2.4       Mr Waddell, as was his right, requested the test of the ‘B’ sample. This was sent to Canterbury Health Laboratories for independent analysis and proved positive. A certificate was issued by Canterbury Health on the 12^th June this year. That advice was made available to Mr Waddell.

2.5       Mr Waddell was asked to comment on the summary presented by NZTR. He said he had no issue with it. He explained to the Committee that he had prepared some written material himself. This he handed forward. It was in two (2) parts under headings “Summary” and “Penalty”. Mr Waddell at the invitation of the Committee then read that part under the heading “Summary”. Mr Waddell’s written material made reference to his having previously made some mistake when riding in Singapore and saying that from this experience he had learned to always be truthful and helpful. He went on to relate events in Brisbane on the weekend of the 22^nd & 23^rd May this year. He said he had been to a party with a friend and after some time had noticed that drugs were being taken. He said he was offered cocaine but refused it. He said that after another hour or so in a moment of weakness he had taken a pill which he was told was ecstasy. Mr Waddell went on to relate that he was shocked when advised by Mr Bryan McKenzie on the 2^nd June that he had tested positive for methamphetamine. Mr Waddell asserted in his written material that he has never knowingly taken the drug methamphetamine. His explanation to the Committee is that while he took drugs on the 22^nd May this year in Brisbane he says he did not know it was methamphetamine and that he believed that it was something else. He says, in summary that he did not know how methamphetamine came to be in his system.

2.6       In answer to questions from the Committee Mr Waddell said that he had been tested for drugs while riding in Singapore on at least twelve (12) occasions. He related that in New Zealand he had been tested perhaps six (6) or eight (8) times. None of those tests have been positive. Mr John McKenzie told the Committee that Mr Waddell had not been drug tested in New Zealand for the last twelve (12) months and that there was no information received by NZTR during that period to arouse any suspicion against Mr Waddell.

2.7       There was some discussion concerning the period of time that the drug methamphetamine remains in the system of persons who have taken the drug – whether knowingly or otherwise. Mr McKenzie submitted that it was widely known that the drug might not show up if there were a drug test some 48 hours or more after the drug had been taken. The Committee has a general knowledge of the position having been involved in a number of previous cases involving the taking of methamphetamine. Mr Waddell for his part said that because of his slight physique and his metabolism that the 48 hour proposition did not necessarily apply. For its part the Committee without finding it necessary to make a determination on this point does indicate that it is highly sceptical that a single pill inadvertently taken on the 22^nd May this year would have resulted in a positive test for methamphetamine when the test was administered seven (7) days later at Ellerslie.

3.         The case for NZTR on penalty

3.1       Mr McKenzie (all references hereafter are to Mr John McKenzie) presented written submissions. He pointed to a number of recent cases. He emphasised however that these pre-dated the very significant rule change which took effect in October 2009. At that date Rule 803(2)(b) was amended so as to increase the maximum penalty for the misuse of serious drugs from twelve (12) months disqualification to five (5) years disqualification and to increase the maximum fine which could be imposed alongside any period of disqualification to $50,000.00. It followed in Mr McKenzie’s submission that the previous cases decided before October 2009 and in particular Cropp, Carmine, Miller and Yusof were of limited assistance.

3.2       The NZTR submission proposed a starting point of eighteen (18) months disqualification. The submission went to contend that where there were aggravating features that period should be increased and in some instances by a substantial amount.

3.3       Mr Waddell has been before Non- Raceday Judicial Committees previously. In Singapore in July 2005 he was suspended for having misled stewards in relation to the obtaining of a medical clearance. In April 2006 he appeared on a misconduct charge. That was not particularly serious and resulted in a modest fine. More recently in October 2009 he was suspended for six (6) weeks following misconduct at the Rotorua Races. It was not suggested by NZTR that any of those matters had any drug element involved.

3.4       Mr McKenzie pointed to matters in mitigation. There was the guilty plea. The absence of previous drug appearances and the fact that Mr Waddell had not persisted with his denial. In view of the submissions which Mr Waddell has made that latter aspect is of little significance. Mr McKenzie also pointed to Mr Waddell’s success as a rider. The Committee knows of Mr Waddell’s talent and his success both in New Zealand and overseas. He has recently had success in Australia and there is probably no more competitive riding environment than in Sydney. In summary Mr McKenzie said that the eighteen (18) month period he proposed should be reduced to twelve (12) months and that was the period of disqualification which NZTR sought.

4.         Mr Waddell’s submissions

4.1       Mr Waddell had prepared written submissions which dealt with the penalty question. He pointed to the position in the case of Ms Cropp who had pleaded not guilty where as he had pleaded guilty. He made reference to the Carmine decision. He said that he had been very co-operative.

4.2       It is of fundamental importance to recognise that both the decisions just referred to and indeed the Yusof decision earlier mentioned predate the change in the penalty regime which came into effect in October 2009. Little regard can be had to penalties that were imposed in relation to methamphetamine before October last.

4.3       Mr Waddell proposed a period of eight (8) months disqualification followed by four (4) months suspension. He indicated that during his period of suspension he would be willing to undergo random urine testing three (3) times a month. He said that he would be prepared to pay for it himself. He said, in summary, that he wanted to have this period of suspension in order to be able to assist others in the industry, to help with apprentice schools and to tutor and mentor younger members of the racing fraternity particularly junior jockeys. It was Mr Waddell’s plea to the Committee to allow this not just for the reasons already explained but also because he wanted to return to race riding as soon as he was able.

5.         Can there be disqualification followed by suspension

5.1       A good deal of time was spent in examining whether the proposition advanced by Mr Waddell could be adopted. In a decision given on the 9^th March 2009 NZTR v T Harris this question was explored by the Non-Raceday Judicial Committee. All parties to the hearing today were furnished with copies of that decision. The relevant rule under consideration at that time was Rule 1003(1). That provided for, in the relevant part, “a period of disqualification or suspension”. On that occasion, for reasons that is not necessary to explain, it was proposed that there be a period of disqualification followed by a period of suspension. The Committee held that given the wording of Rule 1003(1) it was not possible to both disqualify and suspend. The Committee considered that if the penalties of disqualification and suspension were expressed in the alternative then it might have been possible to proceed in the manner suggested.

5.2       The relevant rule now under the present rules is Rule 803(2)(b). In the relevant part that does provide for a disqualification and/or suspension: see (2)(b)(i)(ii). At first glance this would suggest that there can be both disqualification and suspension. Further discussion between members of the Committee, Mr McKenzie and Mr Waddell took place concerning the practical and administrative difficulties that might arise if the Committee sought to impose disqualification and suspension. In the first place the Committee recognises that if there is (as there will be) a disqualification then there is thereafter no current licence. It follows that there is artificiality in then seeking to suspend a licence which is no longer in existence. The Committee might express itself by saying that when the licence holder was no longer disqualified the licence could be returned “in a suspended state”. The Committee does not believe that this is appropriate. A licence holder who is disqualified, for whatever reason, must apply afresh and there could then be circumstances which might be relevant about which this Committee cannot rule. It would therefore be wrong for this Committee to say that a licence can be returned at the end of disqualification in a particular form. Nor does the Committee have the legal authority to impose such a condition.

5.3       In the course of the discussion about this issue of disqualification and/or suspension it was suggested that the Committee might impose an appropriate period of disqualification and then recommend that it be followed by a period of suspension. The Committee recognises that it could take that course. The Committee cannot however bind NZTR. As already explained there are relevant considerations about the restoration of a jockey’s licence upon which this Committee cannot express a view at this time and indeed there are matters about the granting of the licence which are not within the jurisdiction of this Committee.

5.4       For the reasons spoken of in the Harris case in March 2009 and canvassed here today there is a real attraction in Mr Waddell’s proposition. It makes sense that a jockey disqualified for a significant period should work their way back towards full-time riding rather than the situation that could arise where there is disqualification one day and restoration of licence the next. Of course that might not always be so as NZTR must concern itself with a number of considerations when deciding whether or not a person who has been disqualified should be relicensed. It could be that in considering an application for relicensing NZTR would, in the first instance, restore the licence on a restricted footing. Each case must be examined upon the individual circumstances as they present themselves.

5.5       For the reasons that we have sought to explain we do not believe that we can accede to the suggestion that there be disqualification followed by suspension. While this decision makes clear that there are attractions in the proposition that disqualification should be followed by suspension we do not believe that there is legal authority to proceed in that way. Nor do we make a formal recommendation to NZTR. However the Committee’s views ought to be clear from what has been set out here.

6.         The appropriate penalty

6.1       Since the adoption of the new penalty regime in October 2009 the case most relevant is that of NZTR v Harris decision 30^th March 2010. That was not a charge directly comparable to the present. Rather it was a case where the jockey had sought to put forward a false sample and had then failed to follow the directions of the Racecourse Inspector requiring that a bone fide sample be provided. There were two (2) charges. In total Mr Harris was disqualified for twenty one (21) months.

6.2       As explained earlier the decisions involving the drug methamphetamine: Cropp, Carmine and Yusof are of limited assistance as they pre-date the law change of October 2009. There is now a new penalty regime. The increase in penalty which took place in October 2009 was very significant: both in terms of the maximum period of disqualification and in terms of the monetary penalty. It is to be noted that both disqualification and a monetary penalty can be imposed.

6.3       Orthodox sentencing principles require that the assessment of the proper period of disqualification is calculated from “the bottom up” rather than “the top down”. Mr McKenzie submitted for NZTR that the appropriate starting point was eighteen (18) months. He then proposed a discount of six (6) months for the reasons set out above. Mr Waddell sought an eight (8) month disqualification followed by a four (4) month suspension. The eight (8) month disqualification is unrealistic and does not have proper regard to the law change in October 2009.

6.4       The prevalence of drug taking in the racing industry is a matter of concern to the JCA. The increase in penalties was widely publicised. It followed the case of NZTR v Cropp. That case received a great deal of publicity and the following law change was unsurprising. A rider of Mr Waddell’s seniority would have known perfectly well that the price to be paid for taking prohibited drugs had been substantially increased.

6.5       For reasons explained earlier the Committee is sceptical that the drug taking in this case was accidental in the way that Mr Waddell has tried to convey. A positive test on the 29^th May is unlikely to have resulted from an accidental taking of methamphetamine seven (7) days earlier.

6.6       In our considered view the proposed discount which has been suggested by Mr McKenzie of six (6) months – that is to say one third of the proposed starting point of eighteen (18) months is overly generous. Although Mr Waddell has no previous drug offending he has on three (3) previous occasions behaved in a way that has brought discredit upon the industry although one of those was not in New Zealand. In our judgment it needs to be made clear that the taking of methamphetamine by people licensed to ride in New Zealand will not be accepted and that the penalties will from this time on be at a level which reflects the concern of those who govern the industry and who were responsible for setting the penalty at a much higher level from October of last year. It is our view that the proper period of disqualification is fourteen (14) months. Mr Waddell has been suspended from the 2^nd June and the fourteen (14) months will run from 2^nd June 2010.

6.7       Mr McKenzie spoke about costs and indicated the sums which had been incurred by NZTR. These involve payments to ESR and in respect of the second sample, the “B” sample. There are also the costs of the proceedings today. Leaving that matter aside for the moment the issue of the samples and the costs for NZTR Mr McKenzie rounded out the figures to $500.00 and that sum will be adopted. In respect of the use of the premises here today there is a figure of $200.00. That will be reduced to $150.00 so in total Mr Waddell will pay costs to NZTR in the sum of $650.00. There are also costs payable to the JCA. Mr Waddell was asked about his financial position. It is not appropriate that the Committee goes into detail but accepts Mr Waddell’s advice that his financial position is not strong. The sum payable to the JCA will be $450.00.

Dated at Te Rapa this 24th day of June 2010.

Murray McKechnie                                         

Chairman

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