Non Raceday Inquiry – G C Small – 18 Dec 08 5

hearingid: 86100a5313254025184eb5b5e08d95c7

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hearing_racingtype: thoroughbred-racing

startdate: 01/01/2001

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hearing_title: Non Raceday Inquiry - G C Small - 18 Dec 08 5

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The Defendant Mr SMALL is licensed as a trainer and open horseman.  He is charged with 2 breaches of Rule 1004(6) of the Rules of Harness Racing.  The charges (Information Number 66990) filed by Race Course Inspector Mr KITTO read as follows:

1.               “On the 13^th day of November 2007, at Christchurch, did during day of a racing, administer by injection a substance, namely, Pro-Dosa BOOST to the horse ‘Changeover’, which was entered in a race, namely Race 9, the Christchurch Casino New Zealand Trotting Club, in breach of Rule 1004(6) of the New Zealand Rules of Harness Racing”. 

2.               “On the 13^th day of November 2007, at Christchurch, did during a day of racing, administer by injection a substance, namely, Pro-Dosa BOOST to the horse ‘Awesome Armbro’, which was entered in a race, namely Race 9, the Christchurch Casino New Zealand Trotting Club, in breach of Rule 1004(6) of the New Zealand Rules of Harness Racing”. 

BEFORE A JUDICIAL COMMITTEE

AT AUCKLAND

                                                                                                                  IN THE MATTER of the New Zealand Rules of Harness Racing

                                                                            BETWEEN                  Barry Alexander KITTO

                                                                                                                 Informant

                                                                            AND                            Geoffrey Clemment SMALL

                                                                                                                 Defendant

APPEARING                                                   Mr T R Carmichael for Harness Racing New Zealand

                                                                            Mr G C Small

                                                                            Mr R Lawson – Lay Advocate

                                                                            Ms R Bak (Registrar)

PRESENT                                                          Mr R Carr – Syndicate Manager

                                                                            Mr Barry Lichter – Journalist

DATE OF HEARING                                      18 December 2008

JUDICIAL COMMITTEE                               Mr B J Rowe (Chairman)

                                                                            Mr J M Phelan

DATE OF DECISION                                      12 January 2009

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                                                                            DECISION OF THE JUDICIAL COMMITTEE

_____________________________________________________________________________________

The Defendant Mr SMALL is licensed as a trainer and open horseman.  He is charged with 2 breaches of Rule 1004(6) of the Rules of Harness Racing.  The charges (Information Number 66990) filed by Race Course Inspector Mr KITTO read as follows:

1.               “On the 13^th day of November 2007, at Christchurch, did during day of a racing, administer by injection a substance, namely, Pro-Dosa BOOST to the horse ‘Changeover’, which was entered in a race, namely Race 9, the Christchurch Casino New Zealand Trotting Club, in breach of Rule 1004(6) of the New Zealand Rules of Harness Racing”. 

2.               “On the 13^th day of November 2007, at Christchurch, did during a day of racing, administer by injection a substance, namely, Pro-Dosa BOOST to the horse ‘Awesome Armbro’, which was entered in a race, namely Race 9, the Christchurch Casino New Zealand Trotting Club, in breach of Rule 1004(6) of the New Zealand Rules of Harness Racing”. 

3.               Rule 1004(6) reads as follows:

“No person shall during any day of racing, in respect of a horse entered in a race, administer by injection, nasal gastric tube, gastric tube, ventilator, or nebuliser, any substance whatsoever.  Where such administration occurs both the person and the trainer commit a breach of this sub-Rule unless such device was used after the horse had raced or under the direction or supervision of Club Veterinary Surgeon, Race Course Inspector or Stipendiary Steward.  For the purposes of this sub-Rule the day of racing is deemed to commence 12 hours prior to the first race and conclude half an hour after the last race”.

4.               Rule 1003(1) provides the penalty provisions for a breach of Rule 1004(6) as follows:

a.       A fine not exceeding - $5,000.00 and/or;

b.      Suspension from holding or obtaining a licence for a period not exceeding 12 months and/or;

c.       Disqualification for a period not exceeding 12 months.

In addition to or in substitution of any penalty imposed pursuant to sub-Rule (1) hereof, any horse connected with the breach of the Rule may be scratched or disqualified from any race and/or disqualified for a period not exceeding 12 months.

The meaning of the term “injection” was the determined by the Appeal Tribunal in the Case of HRNZ v CLEMENTSON to be the Dictionary meaning of the word and not the usual medical/veterinary meaning (which is a syringe with a needle attached).  The Dictionary meaning would include any device which can be used to force veterinary products into the mouth of a horse.

Mr CARMICHAEL produced the authority from HRNZ for the filing of the non-race day information.  Mr CARMICHAEL presented a written summary of facts and other relevant documentation.  A copy of all the documentation is attached to this decision.   Mr CARMICHAEL read the summary of facts.  He said Mr SMALL was the trainer and the person for the time being in charge of the horses Changeover and Awesome Armbro which were correctly entered for and started in the New Zealand Trotting Cup at Addington on 13 November 2007.  Changeover finished 4^th earning stake money of $34,910.00 and Awesome Armbro was unplaced.  On the 11^th November 2007 during the collection of “out of competition” blood samples from all horses competing in the New Zealand Trotting Cup, Mr SMALL was reminded of the time limit in relation in injecting a horse before its race start.  All horses in the New Zealand Trotting Cup were subject to off-course security from 6:00 am on the day of the race.  Shortly after 1:00 pm on 13 November 2007 at the direction of Mr SMALL a stable employee administered orally a product called Pro-Dosa BOOST to both Changeover and Awesome Armbro.  This product was administered by means of a purpose made applicator in which the product is supplied.  It was done in the presence of the security guard.  Both applicators were then handed to the security guard by the stable employee and secured, together with feed samples, and subsequently left at the security headquarters on course at Addington.  The following day the security bags were checked by a race course inspector and the two empty Pro-Dosa BOOST applicators were found.  An investigation was then commenced and Mr SMALL and the stable employee were interviewed.  Mr SMALL believed he had not done anything wrong believing that the applicator used to administer the Pro-Dosa BOOST was not a syringe upon which a needle could be attached to inject a substance into a horse.  The fact that the substance was administered in front of the security guard who was also handed the empty containers adds credibility to that belief.  Mr CARMICHAEL said he therefore acknowledged that these Rule breaches have arisen through an honest albeit mistaken belief by the Defendant that the substance administered via an applicator and not a syringe, was not a breach of the Rule.  Those applicators were subsequently examined for any traces of prohibited substances.  Both applicators were free of any such substance. 

Mr Lawson said Mr SMALL accepted the summary of facts as presented by Mr CARMICHAEL.  He said the Rule itself was not written sufficiently clearly for trainers to be able to understand it. He criticised HRNZ for only recently advising trainers of the interpretation of the word “injection”.  He emphasised that Mr SMALL was not aware of the interpretation at the time the product was administered to the horses. He said Mr SMALL had administered the same product to horses in the same way in November 2006 in front of security guards, and whilst HRNZ was aware of what he done, no charges were laid. Mr LAWSON pointed out that the product could be squeezed out onto a spoon and the spoon used to put the product in a horses mouth and no breach of the Rule would have occurred.

When interviewed Mr SMALL said “but I have done this in New Zealand and Australia for years and there was no problem”.  Mr CARMICHAEL acknowledged that what had occurred was Mr SMALL’S normal practice and that it was well known as such.

SUBMISSIONS ON PENALTY

Mr CARMICHAEL referred the Committee to three cases involving the injection of substances to a horse on race day as follows:

(a)                 HRNZ v Parsons (June 2008) – fine of $3,000.00, costs of $100.00, horse disqualified.

(b)                 HRNZ v Dawson (October 2008) – fine of $2,250.00, no costs, horse scratched.

(c)                  NZTR v Simon (March 2008) – fine of $750.00, no costs, horse not disqualified.

Mr CARMICHAEL said the 2 HRNZ cases involved an injection in a stall at the race course itself and that both trainers involved admitted they were aware that what they were doing was an offence.  No prohibited substance was involved in either case.  He said the SIMON case was similar to the other cases in that the substance containing glycerine was administered to the horse in the stalls on course just prior to the horse parading at the start of the race.  He said there was no attempt by Mr SMALL to conceal what was done and that he had readily admitted what had happened when interviewed.  Mr CARMICHAEL accepted that Mr SMALL did not believe he was “injecting” the horses in breach of the Rule.  He suggested that the starting point for any penalty would be a fine of around $750.00 on each charge with costs of $250.00 on each charge.  He made no application for the disqualification of the horses involved.

Mr LAWSON again referred to the vagueness of the Rule.  He said Mr SMALL was not aware that he was breaking the Rule.  He said this case was quite different to the other cases which had preceded it.  He said the interpretation of the R

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hearing_type: Old Hearing

Rules: 1004.6, 1003.1

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