Non Raceday Inquiry – HRNZ v M G Berger 10 July 2009 decision

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startdate: 01/01/2001

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hearing_title: Non Raceday Inquiry - HRNZ v M G Berger 10 July 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 Michael Geoffrey BERGER

  Defendant

APPEARING: Mr T.R. CARMICHAEL (HRNZ)
                         Mr M. BRANCH representing Mr BERGER
                         Mr M.G. BERGER

DATE OF HEARING: 10th July 2009

JUDICIAL COMMITTEE: B.J. Rowe – Chairman
                                            A.Dooley

DATE OF DECISION: 10th July 2009

DECISION OF THE JUDICIAL COMMITTEE

The charge (Information 67566) filed by Chief Racecourse Inspector Carmichael reads as follows:

On the 22nd day of May 2009 Michael Geoffrey BERGER was the trainer and the person for the time being in charge of the horse MYDADISACHAMP which was presented to race in Race 5 at a race meeting conducted by the Franklin Trotting Club when the said horse was found to have had administered to it a prohibited substance, namely CLENBUTEROL.

BEFORE A JUDICIAL COMMITTEE
AT AUCKLAND

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

BETWEEN Thomas Rodney CARMICHAEL 

  Informant

 AND Michael Geoffrey BERGER

  Defendant

APPEARING: Mr T.R. CARMICHAEL (HRNZ)
                         Mr M. BRANCH representing Mr BERGER
                         Mr M.G. BERGER

DATE OF HEARING: 10th July 2009

JUDICIAL COMMITTEE: B.J. Rowe – Chairman
                                            A.Dooley

DATE OF DECISION: 10th July 2009

DECISION OF THE JUDICIAL COMMITTEE

The charge (Information 67566) filed by Chief Racecourse Inspector Carmichael reads as follows:

On the 22nd day of May 2009 Michael Geoffrey BERGER was the trainer and the person for the time being in charge of the horse MYDADISACHAMP which was presented to race in Race 5 at a race meeting conducted by the Franklin Trotting Club when the said horse was found to have had administered to it a prohibited substance, namely CLENBUTEROL.

Rule 1004 is the Prohibited Substance Rule, and reads 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.”

Mr Berger admitted the breach of the rule.

Mr Carmichael produced a letter from the General Manager of HRNZ giving approval to charge Mr Berger with this breach of the rules.  Also produced was a record of the official placings in the Plumbing World Takanini Mobile Pace, a swab card showing details of the swab being taken, and a certificate of analysis from Dr Beresford of the New Zealand Racing Laboratory notifying the positive test to Clenbuterol.

Summary of Facts:

Mr Carmichael presented a summary of facts.  Mr Berger was the trainer and the person for the time being in charge of the horse MYDADISACHAMP which was correctly entered for and started in Race 5, The Plumbing World Takanini Mobile Pace at a race meeting conducted by the Franklin Trotting Club at Alexandra Park on 22nd May 2009.  MYDADISACHAMP won the race and earned gross stake money of $6,755.00.

MYDADISACHAMP was post race swabbed and the sample sent to the racing laboratory.  On 11th June 2009, the racing analyst advised that the sample had tested positive to Clenbuterol.

Clenbuterol has wide spread use in equine sports and is used for the treatment of allergic respiratory disease in horses as it is a bronchodilator.  It can be used both orally and intravenously.  In this case it was included as a powder in a product sold commercially as Airway TMPS and supplied by the defendant’s veterinarian.

It is a prohibited substance within the meaning of the Rules.  It is included in the list circulated to veterinarians by the Equine Branch of the Veterinarians Association and has a recommended withholding time of four days.  That list is not available to trainers.

On the 12th of June 2009 Mr Berger was interviewed.  In essence he admitted:

• That at the relevant times he was the trainer of the horse MYDADISACHAMP.
• That he was not present at the race meeting on 22nd May 2009 but he was represented by a stable employee.
• That the product was left for him at his Cambridge stable by his veterinarian when he himself was absent and that the veterinarian did not discuss withholding times and did not advise him that the product supplied differed from what he usually obtained.
• That he did not realise that the product obtained from his veterinarian contained Clenbuterol, and believed it was a product with the same qualities as Bromotrimidine which he usually obtained and used to treat the symptoms that were present in this horse.  He did not believe that it would result in a positive swab. 
• That upon veterinary advice previously received for Bromotrimidine he fed the powder to the horse but stopped at least 48 hours before the horse was due to race. 

Penalty Submissions:

Mr Carmichael said the starting point for penalty was a fine in the order of $3,000.00.  He produced copies of two precedent cases where there had been fines of $2,000.00 and $2,500.00.  He submitted that Mr Berger was entitled to credit for the following reasons:

• He has been a public trainer for about 30 years with a hitherto unblemished record and an excellent reputation amongst his peers.
• He has admitted the offence at the first opportunity and has consented to the matter being determined on a race day thus reducing costs to the industry.
• The product supplied to him by his usual veterinarian was not the product he usually obtained and it was not labelled in accordance with accepted recognised veterinary practices. 

In accordance with Rule 1004(8) Mr Carmichael sought the disqualification of MYDADISACHAMP.

Mr Branch submitted that negligence cases could be classified as follows:

• Cases where intentional administration could not be proved.
• Cases where the trainer makes a mistake.
• Cases where someone other than the trainer makes the mistake.

He submitted the present case fitted into the latter category.  He said it was the ‘vet’ who had not done his job.  He referred the committee to a recent DMSO case where a fine of $750.00 had been imposed.  He suggested the penalty in this case should be similar to that penalty.  He referred to Mr Berger’s impeccable record, his early guilty plea and that there was no need for a deterrent type penalty.  He produced a ‘testimonial’ letter in support of Mr Berger, and two letters which confirmed that Mr Berger was not present at his stable when the veterinarian delivered the product.

Mr Berger said that he was very disappointed because he had wanted to keep his clean record intact.  He said he had used the same veterinarian for about 25 years. 

The Chairman referred the parties to a recent case involving a breach of the rule in question where a fine of $3,000.00 was imposed.  He distributed copies of the judgement.

In response Mr Carmichael said the penalty should be less than the $3,000.00 starting point he referred to.  He said the DMSO cases were ‘different’ and that a penalty had been agreed across the board.  He said the negligence involved in the case referred to by the Chairman was much more serious than the present case.  He said the product supplied by the veterinarian should have had a label on it outlining that there was a restricted drug contained and should have referred to the withholding time for Clenbuterol. 

In response to a question from the Chairman Mr Berger acknowledged that he realised that he had been supplied with a different product from that previously supplied and that he should have contacted his veterinarian and questioned him about the contents of the product. 

Penalty Decision:

In determining penalty the Committee takes into account the following:

1. The early guilty plea.
2. Mr Berger’s clear, indeed impeccable record.
3. The submissions of Mr Carmichael.
4. The submissions of Mr Branch.
5. That Mr Berger was negligent in that he should have checked with his veterinarian as to the contents of the product supplied.
6. The DMSO cases, rightly or wrongly, are a ‘special category’ and reference to the penalties imposed in those cases is not helpful.
7. The precedent relevant cases referred to.  The case where a fine of $2,000.00 was imposed is not helpful in that the financial situation of the defendant was a major factor.  The case referred to by the Chairman is accepted as having a greater degree of negligence involved.  The case involving a fine of $2,500.00 has a degree of negligence similar to the present case.
8. There was clearly no intention on the part of Mr Berger to present MYDADISACHAMP to race with a prohibited substance in its system.
9. The recommended starting point in the penalty guidelines is not helpful as it is the subject of review.
10. Although there was negligence on the part of Mr Berger, this is a case of an ‘innocent mistake’.

Balancing those matters, the Committee imposes a fine of $2,400.00.  In accordance with the mandatory provisions of Rule 1004 (8) MYDADISACHAMP is disqualified.  The prize money is to be distributed in accordance with the amended placings which are:

1st – EASYS DREAM
2nd – MILLWOOD PC
3rd – SOKY’S COURAGE
4th – LAST JUDGEMENT
5th – WINSOME COURAGE
6th – AMBRASHIA

There is no order for costs.

B.J. Rowe
CHAIRMAN

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hearing_type: Old Hearing

Rules: 1004.8

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