hearingid: 6402ecfaa0034c46ce636566e5ef11b4

informantnumber:

horsename:

hearing_racingtype: thoroughbred-racing

startdate: 01/01/2001

newcharge:

plea:

penaltyrequired:

decisiondate: no date provided

hearing_title: Non-Raceday Inquiry - S J Boyd

charge:

facts:

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Decision:

Heard before a Judicial Committee at Christchurch

on 24 September 2008 :

DECISION OF THE JUDICIAL COMMITTEE

The defendant is charged with one breach of Rule 1004(1), (2) and (4) of the Rules of Harness Racing.  The charge (Information 67383) laid by Racecourse Inspector Kitto reads as follows –

“Stephen John BOYD, being the trainer of the Registered Standard bred horse “MACKLES CREEK” on the 13^th day of June 2008, did take the said horse to a racecourse, namely  Waterlea racecourse,  for the purpose of engaging in a race, namely Race 6, THE MARLBOROUGH EXPRESS  MOBILE PACE, held by the  Marlborough Harness Racing Club, and did  fail to present the horse free of  prohibited substances, namely, Scopolamine.”

--

Heard before a Judicial Committee at Christchurch

on 24 September 2008 :

DECISION OF THE JUDICIAL COMMITTEE

The defendant is charged with one breach of Rule 1004(1), (2) and (4) of the Rules of Harness Racing.  The charge (Information 67383) laid by Racecourse Inspector Kitto reads as follows –

“Stephen John BOYD, being the trainer of the Registered Standard bred horse “MACKLES CREEK” on the 13^th day of June 2008, did take the said horse to a racecourse, namely  Waterlea racecourse,  for the purpose of engaging in a race, namely Race 6, THE MARLBOROUGH EXPRESS  MOBILE PACE, held by the  Marlborough Harness Racing Club, and did  fail to present the horse free of  prohibited substances, namely, Scopolamine.”

          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 Boyd had previously indicated that he admitted this breach of the Rule, and he confirmed this at the hearing. 

          Mr Kitto produced written authority from the General Manager of Harness Racing New Zealand (“HRNZ”) to file this information. Mr Kitto also presented and read a Summary of Facts which is attached to this decision. 

Summary of Facts:  

The horse “Mackles Creek” was entered for and won the Marlborough Express Mobile Pace at the Marlborough Harness Racing Club’s race meeting held at the Waterlea racecourse at Blenheim on 13 June 2008, earning stake money of $5000-00.  After the race “Mackles Creek” was swabbed and on analysis “Scopolamine” was detected in the urine sample. “Scopolamine” is a prohibited substance under the New Zealand Rules of Harness Racing.

          On being interviewed Mr Boyd could not explain the positive swab.  Investigation of Mr Boyd’s training establishment were made, and various items (14) were sent to the Racing Laboratory for analysis with negative results. A later test on “Mackles Creek” and another of Mr Boyd’s  horses also tested negative to “Scopolamine”.

          Although “Scopolamine” is used in preparations used to treat horses, it also occurs naturally in deadly nightshade, a variety of the night shade family.  It was thought that this may have been the source of the positive swab.  An inspection of the stabling yards at the Waterlea racecourse was carried out, but no deadly nightshade was found.  Solanum Nigrum (black night shade), another variety of the night shade family was found.  Dr Wayne Temple, Director of the New Zealand National Poisons Centre provided a statement that Solanum Nigrum does not contain “Scopolamine” but that deadly night shade does. 

To be quite sure the plant believed to be Solanum Nigrum which was found at Waterlea racecourse was sent to the Racing Laboratory for analysis, and it was confirmed that the plant did not contain “Scopolamine”.       

Submissions on Penalty: 

Mr Kitto’s written submissions on penalty are also attached to this decision.  The main points of these submissions are as follows.

          The penalties provided for this breach are contained in Rule 1004(7)(a) and (b) and (8), which provide for a fine not exceeding $10,000-00 and/or disqualification or suspension of a licence for any period not exceeding 5 years. Any horse connected with the breach shall be disqualified from the race.

          Mr Kitto advised that to Mr Boyd’s credit he has not previously offended, and he has a reputation for integrity and honesty.  He has also been totally co-operative and has taken all steps possible to establish what happened. Also he admitted the breach at the first opportunity.  Mr Boyd is a married man with a family, and has an occupation outside harness racing, this being his main source of income. Mr Kitto recommended that this matter could be dealt with by means of a fine.

Decision on Penalty:  

Rule 1004(7) and (8) provide as follows.

“(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.”

There have been a number of appeal cases dealing with drug administration charges, and some of these are Coulson (1993) Racing Appeal Reports 605,       Nicholson (1994) Racing Appeal Reports 943 and Lamb (1998) Racing Appeal Reports. These cases have all stated words to the effect that there is nothing that is more likely to bring down the integrity of the racing industry generally than the fact that horses perform at meetings when they have been administered, whether innocently or for some ulterior motive, a prohibited substance.

          When considering an appropriate penalty in this case we have looked at penalties imposed in other recent similar cases, and we list these as follows.  In all these cases the administration was found to be accidental.  

HRNZ v. Chmiel (2008), a fine of $3000-00 – (Caffeine, Theobromine, Paraxanthine and Theophylline)

HRNZ v. Law (2006), a fine of $2000-00 – (Heptaminol).  This was a case where it was deemed there were exceptional personal circumstances warranting a lower than usual fine.

HRNZ v. B. Kerr (2005) a fine of $4000-00 – (3 – Hydroxylignicaine).

We believe that an appropriate penalty in this case is a fine between $3000-00

and $4000-00.  We agree that Mr Boyd should be given credit for his early guilty plea and the fact that he has no previous convictions.  We also take into account that he fully co-operated with Mr Kitto during this enquiry, and that he went to quite some trouble to try and find an explanation for the positive swab.

For all the above reasons we have decided that Mr Boyd will be fined the sum of $3000-00.

Costs: 

Mr Kitto advised that no costs were being sought by HRNZ.  There will however be an order for the payment of costs of $125-00 to the JCA. 

Disqualification:   

At the hearing on 24 September 2008 an oral order was made disqualifying “Mackles Creek” from the race.

We now formally confirm this order.   In accordance with Rule 1004(8) “Mackles Creek” is disqualified from 1^st place in the Marlborough Express Maiden Mobile Pace at the Marlborough Harness Racing Club’s meeting held at the Waterlea racecourse on 13 June 2008.  The stake money payable is to be dealt with in accordance with Rule 1115(4).

The amended places are as follow.

1^st –   Miss Chievous (11)

2^nd – To Ri Dette (3)

3^rd –   Sheze Purrfect (2)

4^th –  Cullens Charm (13)

5^th –   Shikaka (12)

6^th –   Galleons Ambition (14)

­­­­______________

J.  M. Phelan

Chairman

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hearing_type: Old Hearing

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

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