Non Raceday Inquiry – HRNZ v GA Martin 4 December 2009 – decision

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startdate: 01/01/2001

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hearing_title: Non Raceday Inquiry - HRNZ v GA Martin 4 December 2009 - decision

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BEFORE A JUDICIAL COMMITTEE AT AUCKLAND

IN THE MATTER of the New Zealand Rules of Harness Racing (HRNZ)

BETWEEN Thomas Rodney CARMICHAEL

Informant

AND Geoffrey Allan MARTIN

Defendant
 
APPEARING:
 
Mr T.R. CARMICHAEL (HRNZ)
Mr R. LAWSON representing Mr Martin
Mr G.A. MARTIN

DATE OF HEARING: 4th December 2009

JUDICIAL COMMITTEE: B.J. ROWE - Chairman,  G. HALL

DATE OF DECISION: 4th December 2009

________________________________________
DECISION OF THE JUDICIAL COMMITTEE
________________________________________

The charge (Information 68127) filed by Chief Racecourse Inspector CARMICHAEL reads as follows:

"On the 7th day of July 2009 at Alexandra Park, Geoffrey Allan MARTIN was the temporary trainer of the horse WILLOUGHBY which had been presented to race in Race 2 at a race meeting conducted by the Northland Harness Racing Club when a pre race blood sample from the said horse upon analysis was found to have a TC02 level of 36.9mmol/L"

BEFORE A JUDICIAL COMMITTEE AT AUCKLAND

IN THE MATTER of the New Zealand Rules of Harness Racing (HRNZ)

BETWEEN Thomas Rodney CARMICHAEL

Informant

AND Geoffrey Allan MARTIN

Defendant
 
APPEARING:
 
Mr T.R. CARMICHAEL (HRNZ)
Mr R. LAWSON representing Mr Martin
Mr G.A. MARTIN
 

DATE OF HEARING: 4th December 2009

JUDICIAL COMMITTEE: B.J. ROWE - Chairman,  G. HALL

DATE OF DECISION: 4th December 2009

________________________________________
DECISION OF THE JUDICIAL COMMITTEE
________________________________________

The charge (Information 68127) filed by Chief Racecourse Inspector CARMICHAEL reads as follows:

"On the 7th day of July 2009 at Alexandra Park, Geoffrey Allan MARTIN was the temporary trainer of the horse WILLOUGHBY which had been presented to race in Race 2 at a race meeting conducted by the Northland Harness Racing Club when a pre race blood sample from the said horse upon analysis was found to have a TC02 level of 36.9mmol/L"

Rule 1004 is the Prohibited Substance Rule. The relevant parts read as follows:

(1) A horse shall be presented for a race free of prohibited substances,
(1A) A horse shall be presented for a race with a total carbon dioxide level at or
below the level of 35.0 millimoles per litre in plasma.
(3) Where a person is left in charge of a horse, and the 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 and the person left in
charge both commit 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.
(7) Every person who commits a breach of sub-rule (2) or (3) shall be liable to:

(a) a fine not exceeding $10,000.00 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.

Although Rule 1004 (1A) refers to a level of 35.0 millimoles per litre in plasma (35.0 mmol/L) there is an "analytical error" factor of 1.2 mmol/L making the maximum permissible TC02 level 36.2 mmol/L.

Mr MARTIN admits the breach of the Rule.

Mr CARMICHAEL produced a letter from the General Manager of HRNZ giving authority to charge Mr MARTIN with this breach of the Rules. He also produced a copy of the record of the official placings in Race 8, the swab cards showing details of pre-race and post race blood samples taken from WILLOUGHBY, a copy of the certificate of analysis from Dr 8ERESFORD of the New Zealand Racing Laboratory showing the levels of TC02 detected in those samples and a schedule showing the levels of TC02 detected in all blood samples taken from WILLOUGHBY.

Summary of Facts:

Mr CARMICHAEL produced and read a written summary of facts which is further summarised as follows:

The official trainer of WILLOUGHBY is Mr C. FORRESTER from Christchurch. Mr FORRESTER campaigned WILLOUGHBY and one other horse in the North Island from about 15th May 2009, initially being based at Foxton, but from 23rd May based at Mr MARTIN'S stables in Cambridge. Mr FORRESTER returned to Christchurch on the 4th of July and Mr MARTIN became the temporary trainer of WILLOUGHBY. On the 7th of July WILLOUGHBY was correctly entered for and started in Race 2 at a race meeting conducted at Alexandra Park by the Northland Harness Racing Club. Mr MARTIN transported the horse to Alexandra Park. Mr FORRESTER attended the meeting. WILLOUGHBY started favourite and won the race.

The schedule of all TC02 test results for WILLOUGHBY includes:
33.3 mmol/L - Forbury Park 7.5.09 31.2 mmol/L - Kumeu 15.5.09
35.4 mmol/L - Auckland 19.6.09

Because of the above average TC02 level in the 19th June blood sample, pre-race and post race blood samples were taken from WILLOUGHBY on 7th July, the latter sample being taken about three hours after the pre-race sample. The samples were taken, processed and analysed in accordance with the relevant rules and protocols.
The pre-race sample had a TC02 level of 36.9 mmol/L and the post race sample 37.3 mmol/L.

Mr MARTIN was interviewed on 19th July. He denied the administration of any alkali with the intention of affecting the normal TC02 level of WILLOUGHBY. He said that as instructed by Mr FORRESTER he had placed four handfuls of a white powder on the horse's feed on the morning of 7th July. He said Mr FORRESTER assured him there was no "drug" in the powder and the horse would not return a positive swab. Mr MARTIN was unable to explain the TC02 levels recorded.

Mr MARTIN was able to hand Mr CARMICHAEL a small amount of the white powder referred to. Upon analysis the powder was identified as Calcium Formate. No Sodium Bicarbonate was found in the powder nor any indication of carbonate substances. The analyst, Dr BERESFORD, further reported - "the Merck index lists the use of Calcium Formate as a preservative in food and silage. There does not appear to be a veterinary application for this substance. In common with other salts or organic acids, Calcium Formate may have alkalinising properties but this has not been demonstrated",

A further blood sample was taken from WILLOUGHBY at Auckland on 10th July and upon analysis was found to have a TC02 level of 31.7 mmol/L.

Mr LAWSON said Mr MARTIN accepted the facts as presented by Mr CARMICHAEL. He said Mr MARTIN had been given the white powder by Mr FORRESTER with direct instructions as to its use. Mr LAWSON said the analysis of the powder in effect meant it would not have affected the TC02 level and further that TC02 levels in harness horses is an inexact science. Referring to the elevated TC02 level detected in the 19th June sample, Mr LAWSON said that the trainer of a horse was normally notified when its TC02 level was found upon analysis to be close to the permissible limit. Mr CARMICHAEL confirmed that was the case but explained he had been overseas on holiday until the 6th of July.

Penalty Submissions:

Mr CARMICHAEL said it had previously been submitted on behalf of HRN2 that "In cases where the level was between 36.3 mmol/L and 37.2 mmol/L and the person charged with the breach promptly admitted the charge and has a good record, the case can appropriately be dealt with after giving credit for all mitigating factors, by a fine of not less than $500.00". He referred to the J.C A guidelines where a fine of $750.00 is the recommended starting point for a first breach of this rule. He said Mr MARTIN had been incautious or reckless in feeding a white powder to the horse which was to race within five or six hours of such administration. He said Mr Martin had been totally co-operative, pleaded guilty and agreed to the matter being determined on a race day, thus saving costs to the industry and himself. He said Mr MARTIN had previously breached this Rule in 2004 and was fined $500.00. He said he would normally have sought a period of disqualification but because of the circumstances recommended a fine of $1,250.00. He said Mr FORRESTER had pleaded guilty to a breach of the same rule and been fined $500.00 and the mandatory disqualification of WILLOUGHBY had been effected by the Judicial Committee which dealt with the charge against Mr FORRESTER. Mr CARMICHAEL did not seek costs.

Mr LAWSON again said the analysis of the powder suggested that it did not cause the elevated TC02 reading. He said Mr MARTIN had been fully co-operative, supplied Mr CARMICHAEL with a sample of the powder, pleaded guilty and agreed to having the case heard on a race night to reduce costs to the industry and himself. Mr LAWSON accepted that a fine of $1,250.00 was appropriate and a sufficient deterrent to Mr MARTIN and others within the industry.

Mr MARTIN'S attention was drawn to Mr FORRESTER'S denial (during the hearing of his case) that he had instructed Mr MARTIN to feed the white powder to WILLOUGHBY. Mr MARTIN strongly refuted Mr FORRESTER'S version. He said he had seen Mr FORRESTER feed the powder to his horses on many occasions.

Penalty Decision:

In fixing penalty the Committee takes into account Mr MARTIN'S guilty plea, his co¬operation, the submissions of Mr CARMICHAEL and Mr LAWSON and the previous breach of the Rule by Mr MARTIN. Mr CARMICHAEL did not seek a period of disqualification. Given all of the circumstances, in particular the doubt as to whether or not the Calcium Formate powder would affect the TC02 level, and the fact that Mr FORRESTER was the trainer on the 19th of June when the previous elevated level of TC02 was detected, the Committee is satisfied a period of disqualification is not warranted. However, this is a second breach of the Rule by Mr MARTIN and a fine well in excess of $500.00 is warranted. A fine of $1,250.00 is imposed. There is no order for costs. The mandatory disqualification of WILLOUGHBY has already been dealt with.

BRIAN ROWE
CHAIRMAN

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hearing_type: Old Hearing

Rules: 1004.1A

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