Non-Raceday Inquiry – JH Price

hearingid: 518fd49b324493d0f9aa86b575c6d2cd

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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 - JH Price

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The Defendant is charged with one breach of Rule 1004(1) and (2) of the Rules of Harness Racing.

The Defendant is charged with one breach of Rule 1004(1) and (2) of the Rules of Harness racing.  The charge (Information 64743) preferred by Chief Racecourse Inspector Carmichael reads as follows:-

"I, the abovenamed informant allege that the abovenamed Defendant committed a breach of Rule 1004(1) and (2) in that on 22nd April 2007, James Hewitt Price was the trainer and the person for the time being in charge of the horse WATCH HIM TROT which was presented to race in Race 1 at a race meeting conducted by the Taranaki Trotting Club, when the said horse was found to have administered to it a prohibited substance HEPTAMINOL.

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

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1. A horse shall be presented for a race free of prohibited stances.
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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 the sub-rule (1) the trainer of the horse commits a breach of these Rules.
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Mr Price had previously indicated that he admitted this breach of the rule and confirmed that at the hearing.

Mr Carmichael presented a "Summary of Facts" and other relevant documentation. Mr Price has admitted the offence of being the Licenced Trainer of a horse (WATCH HIM TROT), presented it to race and that a post race urine sample revealed the horse to have had administered to it a "prohibited substance", namely Heptaminol. Watch Him Trot was entered for and finished first in the Eprinex Mobile Trot at the Taranaki Trotting Club on 22 April 2007. The horse was having its first start and won the race. The prize money for first placing was $3,125.00. A post race urine sample was taken and upon analysis found to contain Heptaminol. Heptaminol is part of a veterinary medication sold commercially as Kynoselen. Following the passing of the prohibited substance regulations on February 19, 2004, Heptaminol was classified as a prohibited substance. Trainers were notified of this by notices in the New Zealand Harness Racing Weekly on 06 and 20 October 2004. Kynoselen was reformulated in late 2004 so as not to contain Heptaminol. Initially a bright green sticker was put on the new (non Heptaminol) bottles but this was later removed. Had this labelling been retained it may have minimised the problems that some trainers have now found themselves in.

Mr Price has held a trainers licence since about 1975 but has not been active in recent years due to business commitments. He is a pharmacist by occupation. He was interviewed by Mr Carmichael on 03 May 2007 and said that on 21 April 2007, prior to travelling from Pukekohe to New Plymouth, and some 27-hours pre-race, he asked another licenced trainer to inject Watch Him Trot with the recommended dose of Kynoselen. He said that there were three bottles of Kynoselen in a drawer in the stables. Two of these bottles were the new formula Kynoselen (which did not contain Heptaminol) and the other an old pre-2004 bottle which did contain Heptaminol. Mr Price said that the old bottle must have been inadvertently used and that an honest mistake had been made. He said that given his experience as a pharmacist over many years, the substance injected some 27-hours pre-race, would by the time that the horse raced, have no stimulant affect whatsoever.

Mr Carmichael referred the Committee to the case of TUCKER v AUCKLAND RACING CLUB AND OTHERS (Supreme Court, Auckland, 1955) where it was held that:

Mr Price presented detailed written submissions. He also made extensive oral submissions. Not all of the submissions were strictly relevant to the hearing. He acknowledged that he was responsible for the "old" bottle of Kynoselen being present in the drawer in the stables. This bottle was shown to the Committee. It had an expiry date of "04/01?. He acknowledged Mr Carmichael's version of events. He outlined his knowledge and use of Kynoselen. He said he had estimated "sometime in the past" that it was safe to use Kynoselen up to 24-hours pre-race time. He was critical that Harness Racing New Zealand had not notified trainers of a "withholding time for the use of Kynoselen. He said that following advice of the positive test for Heptaminol, he had spoken to a number of trainers and relevant professionals, none of whom could say what the "withholding time" was. He was critical that the analysis report did not contain quantitative details. He said following advice of the analysis he was able to find out what the "half life" of Heptaminol was, and then calculate from the dose given that at race time the level of Heptaminol remaining in the horse would be about 0.01 mgms ? or about ? of a millionth of the dose given ? a dosage that clearly could not have affected the horse.

Mr Price outlined his extensive background in both thoroughbred racing and harness racing, including the holding of various executive/administrative positions. He said his horses had always been swabbed when they won, probably due to his occupation. There have been no previous positive tests. He did not accept that he had been negligent in any way on this occasion. He did not see the syringe loaded, he only held the horse. He said he had been "fractionally wrong" (in his calculation of the safe time period to use Kynoselen).

Rule 1004 of the New Zealand Rules of Harness Racing provide for the following penalties in this case:

"(7) Every person who commits a breach of sub-rule (2) or (3) shall be liable to:

(a) a fine not exceeding $10,000; and/or

(b) be disqualified or suspended from holding or obtaining a licence for any specific period not exceeding five years.

(8) Any horse connected with a breach of sub-rule (1), (2) or (3) shall be disqualified from any race entered and/or liable to a period of disqualification not exceeding five years."

Mr Carmichael's written submissions on penalty are attached to this decision as are the written submissions of Mr Price.

Mr Carmichael made application for WATCH HIM TROT to be disqualified in accordance with the Mandatory provisions of Rule 1004(8) and the placings amended accordingly. He referred the Committee to four other recent cases involving positive tests for Heptaminol ? WENN, LAW, LARKINS and HARRIS.

The LARKIN and HARRIS cases are not relevant ? they were not about breaches of Rule 1004(1) and (2). The WENN case was in thoroughbred racing and involved a breach of the corresponding rule to Rule 1004, in that Code. Wenn was fined $4,000 and ordered to pay costs of $2,500. Mr Carmichael said he considered the penalty involved to be manifestly excessive. The LAW case (Decision 18 May 2007) did involve Rule 1004(1) and (2). LAW was fined $2,000. The Judicial Committee hearing that case reviewed breaches of the Rule for the previous 10-years. Breaches resulted in a substantial finding, including in the case of KERR (2005) where a fine of $4,000 was imposed.

Mr Carmichael declined to make any specific recommendation as to penalty. He accepted the administration of Heptaminol was accidental, but there was negligence hence the charge being brought. He said Mr PRICE had no breaches of the Rules accorded against him.

Mr Price acknowledged the horse had to be disqualified. As the owner of the horse he loses the winning stake of $3,125. He said the failure of Harness Racing New Zealand to notify trainers of the "withholding time" for Kynoselen was serious mitigating factor. He said he had received a substantial amount of abuse since of the knowledge of the positive swab was communicated throughout the Auckland area. He said his financial position was perilous but declined (for reasons which may well be understandable) to give specific details. He said he did not believe he should be fined, nor should costs be awarded against him.

In fixing penalty the Committee took into account the following matters:

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1. The submissions of Mr Carmichael.
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2. The submissions of Mr Price.
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3. The guilty plea, and the co-operation of Mr Price.
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4. Mr Price has no breaches of the Rules recorded against him.
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5. The penalty imposed in the LAW case, the circumstances of that case, and the reference in that decision to other penalties imposed for a breach of the Rule in question.
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6. The breach of the Rule was accidental and not intentional.
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7. The negligence of Mr PRICE in not disposing of the "old" bottle of Kynoselen years ago (expiry date April 2001) especially given the change in status of Heptaminol in 2004. If he had done so he would not have been charged ? the other bottles of Kynoselen in the drawer did not contain Heptaminol.
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8. The negligence of Mr Price in leaving that particular bottle in a position where it could inadvertently be used to inject a horse entered for a race.
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Taking all of those matters into account Mr PRICE is fined the sum of $2,500.00.

Mr Carmichael did not seek costs on behalf of Harness Racing New Zealand. J.C.A. costs are $400.00. Mr Price is ordered to pay costs of $400.00.

Rules 1004(8) and 1004(D) provide for the mandatory disqualification of Watch Him Trot. Accordingly WATCH HIM TROT is disqualified from first placing in the Eprinex Mobile Trot at the Taranaki Trotting Club on 22 April 2007 and the stake money is to be refunded to Harness Racing New Zealand and paid according to the amended placings. The amended placings are as follows:

1^st - Patient Spirit

2^nd - Born on the Tyne

3^rd - Lady Marieke

4^th - Zdenka

5^th - Flash Amber

6^th - Xtra Action

In his written and oral submissions Mr Price referred to various concerns about the supply and use of Kynoselen. Mr Carmichael appeared to accept that some of those matters had merit. The committee recommends Harness Racing New Zealand address the concerns raised by Mr Price with a view to taking any action deemed necessary.

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hearing_type: Old Hearing

Rules: 1004.1, 1004.8

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