Non Raceday Inquiry – Mr GT Court

hearingid: 70d3a76479ef2f196833cca582639eef

informantnumber:

horsename:

hearing_racingtype: thoroughbred-racing

startdate: 01/01/2001

newcharge:

plea:

penaltyrequired:

decisiondate: no date provided

hearing_title: Non Raceday Inquiry - Mr GT Court

charge:

facts:

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Decision:

Mr Court was charged with a breach of Rule 1001(1)(q) of the New Zealand Rules of Harness Racing.

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IN THE MATTER

of the New Zealand Rules of --

Harness Racing--

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BETWEEN HARNESS RACING NEW ZEALAND

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Informant--

AND GRAHAM THOMAS COURT

of West Melton, Licensed Public Trainer--

ndant--

DATE OF HEARING:

Monday, 26 July 2004                                                                                                                                 VENUE: Board Room, Harness Racing New Zealand, 135 Lincoln Road,Christchurch--

JUDICIAL COMMITTEE:

R G McKenzie (Chairman)             P H M Welch------

PRESENT:

Mr B A Kitto (Racecourse Inspector for Harness Racing New --

Zealand for the Informant)--

Mr G T Court (the Defendant)

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Mr N G McIntyre, Stipendiary Steward (Observer)

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Mr C J Lange (Observer)

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Ms Nicki Sonne (Registrar)

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DATE OF DECISION:

16 August 2004--

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RESERVED DECISION OF JUDICIAL COMMITTEE --

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Mr Court was charged with a breach of Rule 1001(1)(q) of the New Zealand Rules of Harness Racing. The Schedule of Charge attached to Information No.65484 alleged that:

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"On the 17^th day of June 2004 Graham Thomas Court did administer to a horse namely TRY ME FRANCO which was taken to a racecourse, namely, the Forbury Park Racecourse for the purpose of engaging in a race, namely Race 9, The Dunedin Casino Handicap Pace held by the Forbury Park Trotting Club a prohibited substance, namely, Diclofenac in breach of Rule 1001 (1) (q) and you are therefore liable to the penalty or penalties which may be imposed in accordance with Rules 1001(2) (a) (b) (c) and 3."

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Rule 1001 (1) provides as follows:

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Every person commits a serious racing offence within the meaning of these Rules, who, in New Zealand or in any other country:

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(q) administers, causes or permits to be administered or who attempts to administer or to cause to be administered or who permits any person to administer or cause to be administered to any horse which is taken or is to be taken to a racecourse for the purpose of engaging in a race any prohibited substance.

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Mr Court indicated on the information form that he admitted the breach of the Rule and he confirmed this at the beginning of the hearing. Accordingly, the charge was found to be proved.

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THE FACTS:

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Mr Kitto presented the following Statement of Facts that was accepted by Mr Court:

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"The defendant ?is 54 years of age, who is the holder of a Public Trainers Licence issued under the New Zealand Rules of Harness Racing. He has been involved most of his life in the Racing Industry and was first licensed in 1987. He has also been previously licensed as a Professional horseman.

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He is the trainer of the horse TRY ME FRANCO. Mr Court entered TRY ME FRANCO in Race 9, The Dunedin Casino Handicap Pace held at the Forbury Park Trotting Club Racecourse on Thursday the 17^th June 2004. Mr Paul Court (his son) drove the horse winning the race with a stake of $3438.00.

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TRY ME FRANCO was post race swabbed. On the 1^st day of July 2004 a Certificate of Analysis from New Zealand Racing Laboratory Services declared the urine sample "Diclofenac detected" and with the control sample "negative for Diclofenac".

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Harness racing Veterinary Consultant Professor Irvine advised that diclofenac is an anti-inflammatory substance and is therefore a Prohibited Substance under the New Zealand Rules of Harness Racing.

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On Monday the 5^th July 2004 Mr Court was interviewed in the morning tea room at his training establishment. Mr Court was given a copy of the Certificate of Analysis and advised that TRY ME FRANCO had returned a positive swab for Diclofenac.

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Mr Court immediately produced a tube of Voltaren Emulgel from the table in the tea room saying that he had rubbed it on the near side front knee as it had a big knee. Mr Court said that he had used it on TRY ME FRANCO on the 15^th, 16^th and the day of racing being the 17^th June 2004.

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Mr Court said his wife had purchased the Voltaren Emulgel from a chemist. He said he had used it himself and that it doesn?t burn. He said he knew it was a non-steroidal anti-inflammatory. He was using it on TRY ME FRANCO to reduce the swelling. He never sought advice in relation to Voltaren Emulgel. This is a human product. It is not available as a Veterinary Product.

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Mr Court was open and up front in relation to what had happened."

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Mr Kitto produced a number of exhibits including:

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• A copy of the written approval of the General Manager of Harness Racing New Zealand pursuant to Rule 1103 (4) (c); --
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• A copy of Swab Card No.16188; --
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• A copy of Certificate of Analysis dated 1.7.04 from New Zealand Racing Laboratory Services advising of the detection of Diclofenac in the urine sample taken from TRY ME FRANCO; --
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• A copy of letter dated 12.7.04 from Dr C H G Irvine advising that Diclofenac is an anti-inflammatory substance and therefore a prohibited substance under Rule 105 of the Rules of Harness Racing; --
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• A copy of the transcript of the interview with Mr Court on 5 July 2004. --

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INFORMANT?S SUBMISSIONS ON PENALTY:

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Mr Kitto submitted that the starting point for a serious racing offence (which this is) involving a drug/prohibited substance administration should be a disqualification in the range of 2-3 years for a first offence. From that starting point, he submitted, the Committee needs to consider Mr Court's culpability, the aggravating and mitigating factors and the circumstances of the case to determine the appropriate penalty. Mr Kitto further submitted that a period of disqualification of less than 2 years could be imposed having regard to three important mitigating factors:

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• Mr Court's previous good record: --
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• His cooperation and frankness during the investigation; and --
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• His admission of the charge at the earliest opportunity. --

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Mr Kitto referred to the penalty Rules. He submitted that the scheme of the Rules is clear and that serious racing offences are to be viewed as such ? that is to say, as serious racing offences for which significant penalties can be imposed. He submitted that trainers have a clear obligation to ensure that a horse races drug-free and trainers need to exercise a high degree of care and vigilance. In this regard, Mr Kitto referred to a number of Australian and New Zealand cases where this principle has been stated.

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Mr Kitto also referred to the World Anti-Doping Code published in 2003 by the World Anti-Doping Agency and he produced a copy as an exhibit. He referred to some specific provisions of the Code and submitted that there was no reason why the approach in New Zealand harness racing should differ from that in other sporting codes.

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Mr Kitto submitted that aggravating factors in the present case were as follows:

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• The prohibited substance was used on the horse two days prior to racing and on the day of the race; --
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• Mr Court made no enquiry as to whether it was safe to use; and --
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• There is a responsibility on trainers taking horses to race meetings to enquire as to the appropriateness of using any preparation on a horse. --

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Mr Kitto referred to the mitigating factors referred to above and, as an additional mitigating factor, acknowledged that Mr Court had not endeavoured to "minimise or trivialise his offending".

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SUBMISSIONS OF DEFENDANT:

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Mr Court told the Committee that he been in harness racing all his life. He said that he was using the Voltaren Emulgel on himself and never gave it a thought before applying it on the horse. He said that it had done him some good. He accepted that what had happened was entirely his own fault in that he had not looked into the product properly. He submitted that it was "at the bottom end of any scale" because he had not "cheated" or given the horse any substance to enhance its performance. He said that he should have looked into the product more than he did but merely "took it for granted". Mr Court said that he had not used the product on any horse previously. The horse was not lame or unsound but had some filling in a knee. He was poulticing the knee and rubbing on the Voltaren Emulgel. The product had no irritant effect on the horse as some liniments do, he said.

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Mr Court submitted that a small fine would be appropriate. When asked by the Committee, Mr Court stated that his income from harness racing was his sole source of income. He said that he had up to 30 horses in his stable at any one time. He confirmed that he was in a position to pay a fine, even a substantial one.

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DISQUALIFICATION OF HORSE:

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At the conclusion of the hearing on 26 July 2004, the Committee reserved its decision on penalty. However, the Committee felt that it was appropriate, and Mr Kitto agreed, that the issue of the disqualification of TRY ME FRANCO from the Race be addressed. The relevant Rule is Rule 1004D which provides as follows:

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Any horse which has been taken to a racecourse for the purpose of engaging in a race which is found to have administered to it or ingested by it any prohibited substance shall be disqualified from the race."

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That Rule clearly requires this Committee to disqualify TRY ME FRANCO from Race 9 of the Forbury Park Trotting Club's meeting held at Forbury Park Racecourse on 17 June 2004, Dunedin Casino Handicap Pace, and the Committee ordered that it be disqualified accordingly. Consequent upon that disqualification, the amended placings for the Race are as follows:

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1^st 3 Happy Gilmour

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2^nd 14 Goldsworthy

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3^rd 5 Rapid Flair

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4^th 8 Vera's Atom

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5^th 11 Petite Star

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It was ordered that stakes be paid accordingly.

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DECISION OF COMMITTEE ON PENALTY:

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The Committee has carefully considered all of the relevant circumstances presented in this case in its process of determining an appropriate penalty.

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We have taken into account:

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• Mr Court's early plea of guilty to the charge; --
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• The length and extent of his involvement in harness racing and his previous excellent record; --
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• Mr Court's cooperation and frankness during the course of the investigation; and --
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• His financial and personal circumstances. --

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The detection of a drug in any horse which has competed in an event whilst a drug is in its system is a serious offence and is, in fact, categorised as a "serious racing offence" under the New Zealand Rules of Harness Racing. Rule 1001 (2) provides as follows:

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Every person who commits a serious racing offence shall be liable to the following penalties:

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1. a fine not exceeding $25,000; and/or --
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2. suspension from holding or obtaining a licence, for any specific period or for life; and/or --
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3. disqualification for a specific period or for life. --

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It is serious because it is detrimental to the image of the industry and has the very real potential to affect the confidence of the public that supports harness racing by investing on the outcome of races. It is therefore in the best interests of the industry that Judicial Committees, in imposing penalties, ensure that the confidence of the betting public is maintained. In addition, there needs to be a "level playing field" on which all competitors can compete on a fair and equal footing, with no competitor having any unfair advantage over its rivals as the result of having a prohibited substance in its system. These principles have been widely reported in previous cases.

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Against the mitigating factors referred to above, the Committee has noted the following factors which may be described as aggravating factors:

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• Mr Court has, in the Committee's view been guilty of gross negligence in applying the substance to TRY ME FRANCO. The Voltaren was in gel form, designed for rubbing on the affected area. It contains the non-steroidal anti-inflammatory drug called Diclofenac, and it is intended for human use. Mr Court's explanation for deciding to use it on the horse was that it had helped him. Frankly, the Committee is astounded that Mr Court, given his long involvement in harness racing, should consider that a sufficiently good reason for using it on a racehorse over a period of 3 days prior to the horse's racing, including on the day of the race. --
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• Mr Court used the Voltaren without seeking any veterinary advice ? in fact, he admitted that it did not even occur to him to seek such advice. Not to seek veterinary advice was more than na?ve ? it was grossly negligent, even reckless. --

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The Committee acknowledges that Mr Court is a capable and successful trainer but we have to say that we find his actions in administering Voltaren Emulgel to TRY ME FRANCO immediately prior to racing at Forbury Park to be unfathomable. Mr Court, in his submissions to the Committee, stated that the Voltaren Emulgel was not administered with the aim of enhancing the performance of the horse.

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The Committee does not accept that. With respect, there would be no point in applying the substance if it was not likely to have some beneficial effect, however slight, on the horse and its racing performance and it was likely that Mr Court had in mind such a beneficial effect when he made the decision to apply it to the horse's knee in such close proximity to its race. Having said that, the Committee accepts Mr Court's explanation that he did not consider that he might have been administering a prohibited substance to TRY ME FRANCO and the Committee is satisfied that there was no dishonesty on Mr Court's part nor was he trying to gain an unfair advantage.

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The Committee was able to obtain some guidance from the case of Robinson (2002), a case in the thoroughbred code, which also involved the application of Voltaren to a horse with an apparent muscular problem. The defendant in that case took the advice of a chemist but did not consult with a veterinarian. She was charged under the drug negligence provisions of the Rules of Racing and was fined the sum of $2,500. The Judicial Committee in the Robinson case said that it could find no improper intent on the defendant's part. Likewise, we find no improper intent on Mr Court's part.

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The Judicial Committee, in its decision in the Robinson case, said as follows:

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The purpose of the Rule is to maintain confidence in the integrity of racing by ensuring fairness in that all horses must be presented to race free of drugs. Any penalty must therefore punish the offender and be a deterrent to others who may potentially offend. There must be a clear signal that these offences must not be tolerated?.We are however conscious that fines alone do not appear to have sufficient deterrent effect. We do not think it appropriate to depart from the recent regimen without specific warning but we take this occasion to give that warning. In future cases consideration will have to be given to the imposition of a period of suspension or disqualification as well as a fine to ensure there is adequate deterrence.

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This Committee endorses that statement.

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The Committee recognises, however, that an application, such as in the Robinson case and the present case, is much lower on a scale of seriousness than a deliberate administration by way of intra-muscular injection or oral administration and this viewpoint has, ultimately, been a major contributing factor in the Committee's decision in relation to penalty.

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Mr Kitto invited the Committee to consider that an appropriate starting point in considering penalty should be a disqualification for a period of 2-3 years from which starting point the mitigating matters can be factored in to arrive at a term of disqualification, appropriate in all the circumstances.

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The Committee considers that, while disqualification would normally be appropriate in the case of administration of a prohibited substance, the starting point suggested by Mr Kitto, in this instance, is manifestly high and the Committee has given considerable thought to the matter of whether a disqualification is called for in all the circumstances of the present case.

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Mr Court has a long, previously unblemished record as a harness racing trainer. When confronted with the news of the positive swab by TRY ME FRANCO, he made no attempt to conceal what had happened, which is to his credit, and cooperated fully during the course of the investigation. He pleaded guilty to the charge at the earliest possible opportunity thus saving Harness Racing New Zealand the trouble and expense of a defended hearing and having to call witnesses. These matters were properly acknowledged by Mr Kitto and the Committee believes that considerable weight should be given to them. These mitigating factors entitle Mr Court to a significant reduction in the penalty that might otherwise have been imposed.

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The Committee is aware of the far-reaching consequences that a disqualification would have on Mr Court, his family, his staff and his owners. Having regard to those consequences, which would be out of all proportion to the circumstances of the administration and would, in our view, unduly punish Mr Court, and having regard to the mitigating factors referred to above, the Committee is satisfied that a period of disqualification is not called for. However, the Committee has fixed the monetary penalty that it intends to impose at the higher end of the scale of penalties for a breach of the former drug negligence rule to reflect the high degree of negligence on Mr Court's part.

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Accordingly, it is the decision of this Committee, taking all of the above matters into account, that Mr Court shall be fined the sum of $6,000.00. The Committee is satisfied that the final penalty is sufficient to maintain integrity and public confidence in harness racing and will still operate as a deterrent.

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In arriving at penalty, the Committee did not take into account any of the provisions of the World Anti-Doping Code produced by Mr Kitto. The Committee was not aware of any previous New Zealand case where it has been referred to and the Committee was not satisfied as to its relevance in a harness racing context.

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COSTS

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Mr Kitto informed the Committee that Harness Racing New Zealand did not seek an order for costs against Mr Court but he suggested that Mr Court be ordered to pay costs to the Judicial Control Authority. Mr Court is ordered to pay costs in the sum of $500.00 to the Judicial Control Authority.

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R G McKENZIE                                                                           P H M WELCH

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sumissionsforpenalty:

reasonsforpenalty:

penalty:

hearing_type: Old Hearing

Rules: 1001.1.q, 1001.1, 1103.4.c, 1001.2

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