Non Raceday Inquiry – R H Swain 22 Feb 09 Decsn 27 Feb 09

hearingid: 3bf943b8485765da72f478db4d17a313

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hearing_racingtype: thoroughbred-racing

startdate: 01/01/2001

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decisiondate: no date provided

hearing_title: Non Raceday Inquiry - R H Swain 22 Feb 09 Decsn 27 Feb 09

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Raceday Inquiry - R H Swain 22 Feb 2009

The Defendant is charged with one breach of Rule 1004(1), (2), (7) and (8) of the Rules of Harness Racing.  The charge (Information 63981) preferred by Racecourse Inspector Scott reads as follows –

“I, the above named informant allege that the above named Defendant

committed a breach of Rule 1004(1),(2), (7) and (8) in that on the 26^th day of April 2008 Robin Henry Swain was  the trainer and the person for the time  being in charge of the  horse ROMAN GLADIATOR which was presented to race in the Hecton Products Limited Southern Country Cups Final (Race 9) at a race meeting conducted by the Invercargill Harness Racing Club at Ascot Park when the said  horse was found to have had administered to it a prohibited substance, namely Dimethyl Sulphoxide (DMSO).”

BEFORE A JUDICIAL COMMITTEE

AT INVERCARGILL

IN THE MATTER of the

New Zealand Rules of

Harness Racing

                                                BETWEEN                Norman Thomas Scott                                                                               

Informant

AND                           Robin Henry Swain

                                    Defendant

PARTIES:                                                      Racecourse Inspector Mr N T Scott for Harness Racing New Zealand

                                                                        Mr R H Swain          

Mr B Bell (Specialist in equine surgery)                        

JUDICIAL COMMITTEE:                             Mr N Skelt (Chairman)

                                                                        Mr D Steel                                                      

DATE OF DECISION:                                 27 February 2009

Raceday Inquiry - R H Swain 22 Feb 2009

The Defendant is charged with one breach of Rule 1004(1), (2), (7) and (8) of the Rules of Harness Racing.  The charge (Information 63981) preferred by Racecourse Inspector Scott reads as follows –

“I, the above named informant allege that the above named Defendant

committed a breach of Rule 1004(1),(2), (7) and (8) in that on the 26^th day of April 2008 Robin Henry Swain was  the trainer and the person for the time  being in charge of the  horse ROMAN GLADIATOR which was presented to race in the Hecton Products Limited Southern Country Cups Final (Race 9) at a race meeting conducted by the Invercargill Harness Racing Club at Ascot Park when the said  horse was found to have had administered to it a prohibited substance, namely Dimethyl Sulphoxide (DMSO).”

DECISION OF THE JUDICAL COMMITTEE

The Defendant is charged with one breach of Rule 1004(1), (2), (7) and (8) of the Rules of Harness Racing.  The charge (Information 63981) preferred by Racecourse Inspector Norman Scott reads as follows :

“I, the above named Informant allege that the above named Defendant committed a breach of Rule 1004 (1), (2), (7) and (8) in that on the 26^th day of April  2008 Robin Henry SWAIN was the trainer and the person for the time being in charge of the horse ROMAN GLADIATOR which was presented to race in the Hecton Products Limited Southern Country Cups Final, Race 9 at a race meeting conducted by the Invercargill Harness Racing Club at Ascot Park when the said horse was found to have had administered to it a prohibited substance, namely Dimethyl Sulphoxide (DMSO).”

Rule 1004(1) and (2)

Rule 1004(7) and (8) – Penalty Provisions.

Rules 1004(1) and (2), 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.”

Mr Swain had endorsed on the Information that he admitted this breach of the Rules, and also that he did wish to attend the hearing. 

Summary of Facts:

Mr Scott produced the following documents which are relevant to this charge.

Exhibits as presented :

A.     Authority from General Manager HRNZ to bring a charge under Rule 1103 (4)

B.     Computer print out of Race 9 result, Hecton Products 2007 Ltd Southern Country Cups Final run by IHRC on 26/4/08

C.    Swab card 23394-ROMAN GLADIATOR 

D.    Certificate of analysis dated 28^th October 2008

E.     Prohibited Substance Regulation-HRNZ Regulations

F.     Extract from NZEVA’S – Recommended withholding times for Therapeutic Substances

G.    Transcript of interview of Mr Swain by Racecourse Inspector

H.    Statement submitted by Doctor Bell-Veterinary Surgeon to HRNZ

Mr Swain was the trainer, and the person in charge, of the horse ROMAN GLADIATOR which was correctly entered for and started in Race 9, Invercargill Harness Racing Club at Ascot Park on 26 April 2008.  ROMAN GLADIATOR finished first in this race earning a starter’s stake money of $18,500.

ROMAN GLADIATOR was post race swabbed and the sample sent to the Racing Laboratory.  On 28 October 2008 the Racing Analyst advised that the sample had tested positive to Dimethyl Sulphoxide (“DMSO”), which is a prohibited substance when present in urine at a concentration of more than 15 milligrams per litre.  The analysis detected a concentration of greater than 500 milligrams per litre.  The recommended withholding time for DMSO is 48 hours, based on a dose of 50 grams.

Mr Swain was interviewed about this matter on 28 August.  The administration was carried out by local Gore vet Ewan Miller, who tubed it into the stomach of ROMAN GLADIATOR on Mr Swain’s instructions.  200 grams was administered on the directions of a Veterinarian, Doctor Brendan Bell.  Mr Swain said that the administration of the drug took place on 24 April, probably around 12pm with the knowledge that the drug had a two day withholding period and that the time of the race to be run on the 26 April would have been 5pm or 6pm.

Doctor Bell made a statement confirming that he had dispensed DMSO to Mr Swain, and provided him with instructions for use and recommendations regarding withdrawal times.  Dr Bell explained that for the previous 2 years there had been the widespread understanding among veterinarians in New Zealand that it was acceptable to give up to 200ml to horses at least 48 hours before racing.  Dr Bell also said that he had previously practiced in U.S.A and had been using DMSO in horses for over fifteen years.  Mr Bell stated that the treatment of ROMAN GLADIATOR was for a respiratory condition, not as a performance enhancing drug.

It is also of particular interest that Dr Bell produced a letter from Dr Andrew Grierson (Convenor Medication Sub Committee, New Zealand Veterinary Association) who clearly stated, “ to date, there is no study where there are sufficient numbers to allow statistical analysis with any degree of confidence”.   He also stated that compounding the problem is the apparent variability between animals.

Submissions on Penalty:

Mr Scott said that a starting point when fixing a penalty in this case was a fine of $750-00, which was the fine imposed in the recent decision of HRNZ v Small and Crouth where the circumstances were similar.

Mr Scott said that the Mr Swain should

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hearing_type: Old Hearing

Rules: 1004.1, 1004.7, 1103.4, 1004.8, 1115.4

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