Appeal – JH Price

ID: JCA19608

Hearing Type:
Old Hearing

Rules:
1004.1, 1004.8

Hearing Type (Code):
thoroughbred-racing

Decision:

The Appellant was charged with a breach of Rule 1004(1) and (2) of the Rules of Harness Racing. The Judicial Committee, by a reserved decision dated 3 August 2007, made an order that the horse Watch Him Trot be disqualified from the race held at the Taranaki Trotting Club on 22 April 2007 and imposed a fine of $2,500 and ordered a payment of costs of $400.

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Nature of appeal
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The Appellant was charged with a breach of Rule 1004(1) and (2) of the Rules of Harness Racing. The Judicial Committee, by a reserved decision dated 3 August 2007, made an order that the horse Watch Him Trot be disqualified from the race held at the Taranaki Trotting Club on 22 April 2007 and imposed a fine of $2,500 and ordered a payment of costs of $400.

The Notice of Appeal set out nine separate grounds. Some of these overlapped. It was said that the Appellant did not admit a breach of Rule 1004(1) and (2) but only of Rule 1004(8). That ground of appeal was not sustainable given the unequivocal admission made by Mr Price before the Judicial Committee and this ground of appeal was not seriously pursued.

It follows from what has just been said that the appeal was against the penalties imposed by the Judicial Committee. The disqualification of Watch Him Trot was mandatory and, thus, the Appeal Tribunal is concerned only with the monetary penalties that were imposed.

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Position of the Appellant
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2.1 By profession the Appellant is a chemist. He plainly knows a good deal about substances which can (or cannot) be administered to race horses. He entertains a strong sense of grievance about how he was treated, particularly with reference to other licence holders who have been involved with the administration of the prohibited substance, heptaminol. The Appellant's professional knowledge and his sense of grievance are not matched by a corresponding forensic objectivity.

2.2 It was first said that the manufacturer of the veterinary medication sold as kynoselen had failed to notify licence holders or, at least, had failed to make clear that kynoselen contained heptaminol. On 21 April 2007, before travelling to the race meeting at New Plymouth, and some 27 hours before the race, the Appellant asked another licenced trainer to inject the horse Watch Him Trot with a dose of kynoselen. There were three bottles containing this substance in a drawer in the stables. Two of the bottles had the new formula which did not contain heptaminol while the third bottle, which was pre-2004, contained the prohibited substance.

While the packaging of kynoselen post 2004 was similar the Tribunal is clear that there was no legal obligation upon the manufacturer to notify individual licence holders.

2.3 The Appellant sought to argue that the prohibited substance heptaminol would not, as a matter of fact, affect the performance of the horse. That submission was inappropriate. The rules are clear. Heptaminol is a prohibited substance. The rule has now been in place for some time. It is not open to a licence holder, as a matter of law, to contend that heptaminol does not affect race track performance. All licence holders must accept the rules that are in place. Arguments which might be advanced in support of a rule change were not appropriate at the hearing of this appeal. The Appellant had a good deal to say on this subject and the Tribunal was obliged, after some time, to explain that this was not a matter which could be taken into account.

2.4 As noted in para 2.1 above, of particular concern to the Appellant was the treatment of the licence holders Larkin and Harris. These two cases came before a Judicial Committee on 5 July this year. In neither case were the charges laid under the rule which has application here. The Appellant contended that those licence holders ought to have been charged under the same provisions, ie Rule 1004(1) and (2). It was said by the Appellant that he had been unfairly treated by reference to those persons. At another point in the course of his submissions the Appellant acknowledged that he had been properly charged and said that Messrs Larkin and Harris had not. It is not the business of this Tribunal to consider whether the charges laid against Messrs Larkin and Harris were appropriate, nor is it the business of this Tribunal to consider the penalties that were imposed in those cases. It is desirable that there be a consistency of approach to breaches of the rules ? both by informants and by judicial committees. It is not, however, proper for this Tribunal to make any comment upon the approach taken in the Larkin and Harris cases and we expressly decline to do so.

2.5 The Appellant further argued that the Judicial Committee had placed undue emphasis upon the decision in Wenn. It was pointed out that this was a Thoroughbred Racing case. That, of course, is evident from the decision itself and would have been apparent to the Judicial Committee.

2.6 The Appellant said that there was a mistake by the Judicial Committee in relying upon the judgment of the Supreme Court (as it then was) in Tucker v Auckland Racing Club et al (1956) NZLR 1. The Tribunal has carefully read both the decision of the Judicial Committee and the various judgments referred to, including Tucker. The reference to Tucker in the decision under appeal is relevant to the issue of the nature and quality of the drug as distinct from the amount or quantity. The Judicial Committee correctly appreciated the ratio of Tucker and we can see no force in the criticism made in this area.

2.7 The Appellant suggested, in the course of his oral submissions, that Harness Racing New Zealand had an obligation to licence holders in relation to the repackaging of kynoselen. In response Mr Carmichael pointed out that the NZ Harness Racing Weekly on 6 and 20 October 2004 had published notices in relation to heptaminol. In these circumstances the Tribunal takes the view that there was nothing further that NZ Harness Racing was required to do.

2.8 On the quantum of penalty and costs the Appellant was asked a number of questions. From this it became apparent that there were some relevant circumstances. These were:

The Appellant's financial position. It was claimed that this remains difficult. No detail was provided. Mr Carmichael said he knew something of the position and confirmed, in general terms, what had been said by the Appellant.

The Appellant was told by Mr Carmichael before the hearing in front of the Judicial Committee that Harness Racing New Zealand would not seek costs. The record of the Judicial Committee proceeding confirms this. However, costs of $400 were ordered against the Appellant. Clearly that was thought to be an appropriate contribution towards the costs incurred in having two Judicial Committee panel members assembled at Alexandra Park on 20 July. Enquiries which this Tribunal undertook, and which were referred to the Appellant and Mr Carmichael, have established that but for this appeal on that day the second member of the Judicial Committee would not have been required at Alexandra Park.

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The case for Harness Racing New Zealand
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3.1 Mr Carmichael had prepared detailed submissions. These had been made available to the Appellant the day before the hearing. The Tribunal found the submissions most helpful.

3.2 Mr Carmichael declined to comment upon the appropriateness or otherwise of the charges laid in the cases of Larkin and Harris. He did, however, submit that whatever the position may have been in those cases the charge brought against this Appellant was entirely appropriate.

3.3 On the question of penalty Mr Carmichael relied principally upon the decision of the Judicial Committee in Law. Mr John Phelan, who is a member of this Tribunal, presided at the hearing on 18 May in respect of the licence holder Law. That case was heard in Christchurch.

3.4 Mr Carmichael contended that the Judicial Committee had not, in fact, placed significant reliance upon the decision in Wenn. Moreover, in that case, the financial circumstances of the licence holder were almost certainly different from the present. In addition, in the Wenn case, the facts established that the licence holder had relied upon the advice of a veterinarian.

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Legal issues
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4.1 Appeals are by way of rehearing. The Appeal Tribunal is required to give appropriate weight to the decision appealed against. It is clear that on 20 July there were extensive submissions made by this Appellant. A copy of those submissions was available to this Tribunal and many of them were repeated at the appeal hearing. Further, it is clear from reading the decision appealed from that the committee accurately appreciated what had occurred and had given careful consideration to the matters raised by the Appellant. In this regard it is worth noting the following:

The committee noted the plea and the co-operation of the Appellant.

It was accepted that the breach was accidental.

That Mr Carmichael, while drawing attention to relevant decisions, had not made any specific recommendation as to penalty but had accepted that the administration of heptaminol was accidental.

4.2 The financial circumstances of a licence holder are of some relevance. When fixing an appropriate financial penalty it is proper to take into account the individual financial circumstances. Here the Appellant gave a very generalized explanation of his financial position ? confirmed in general terms by Mr Carmichael. In the absence of any further information the Judicial Committee could not find any special circumstances which might have justified a significant reduction in the penalty.

4.3 As noted earlier there appears to have been some inadvertent confusion on the question of costs. The Appellant believed that no costs would be sought against him and, indeed, Harness Racing NZ made no such application before the Judicial Committee. This Tribunal was told that there was no discussion concerning whether costs should be allowed in respect of the expenses incurred by the JCA. In the event an award of costs in that regard was made in the sum of $400.

4.4 There have been considerable expenses incurred in the hearing of this appeal. Members of the Tribunal have been required to travel to Auckland. There are significant travel costs and, in addition, modest fees are paid to the members of the Tribunal.

4.5 The Judicial Committee took considerable time and trouble with the hearing and the decision which issued on 3 August. An Appellant is required to satisfy the Tribunal that the penalty complained of was manifestly excessive or in some manner inappropriate. For reasons which have been explained the Tribunal considers that the penalty imposed by the Judicial Committee was appropriate. No grounds have been established for interfering with the fine of $2,500 or the costs award of $400. There was, however, some confusion in relation to the position in relation to costs before the Judicial Committee and that is reflected in what is said in the next sub-paragraph.

4.6 The appeal is dismissed. The deposit made by the Appellant is forfeited. There will be costs in favour of the JCA in the sum of $300. This is a very modest sum, having regard to the actual cost of conducting the appeal.

Dated this 5th day of September 2007

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Murray McKechnie

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John Phelan

Decision Date: 01/01/2001

Publish Date: 01/01/2001

JCA Decision Fields (raw)

Dmitry: This section contains all JCA fields migrated from the raw data.

Data from these fields should be mapped appropriately to display amongst the standard fields above; please make note of any values below that are missing in the above standard fields but should be there.

hearingid: 47a7d657b1a9a9bea1e0f988091f4c68

informantnumber:

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hearing_racingtype: thoroughbred-racing

startdate: 01/01/2001

newcharge:

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decisiondate: no date provided

hearing_title: Appeal - JH Price

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Decision:

The Appellant was charged with a breach of Rule 1004(1) and (2) of the Rules of Harness Racing. The Judicial Committee, by a reserved decision dated 3 August 2007, made an order that the horse Watch Him Trot be disqualified from the race held at the Taranaki Trotting Club on 22 April 2007 and imposed a fine of $2,500 and ordered a payment of costs of $400.

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Nature of appeal
--
--
--

The Appellant was charged with a breach of Rule 1004(1) and (2) of the Rules of Harness Racing. The Judicial Committee, by a reserved decision dated 3 August 2007, made an order that the horse Watch Him Trot be disqualified from the race held at the Taranaki Trotting Club on 22 April 2007 and imposed a fine of $2,500 and ordered a payment of costs of $400.

The Notice of Appeal set out nine separate grounds. Some of these overlapped. It was said that the Appellant did not admit a breach of Rule 1004(1) and (2) but only of Rule 1004(8). That ground of appeal was not sustainable given the unequivocal admission made by Mr Price before the Judicial Committee and this ground of appeal was not seriously pursued.

It follows from what has just been said that the appeal was against the penalties imposed by the Judicial Committee. The disqualification of Watch Him Trot was mandatory and, thus, the Appeal Tribunal is concerned only with the monetary penalties that were imposed.

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Position of the Appellant
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While the packaging of kynoselen post 2004 was similar the Tribunal is clear that there was no legal obligation upon the manufacturer to notify individual licence holders.

2.8 On the quantum of penalty and costs the Appellant was asked a number of questions. From this it became apparent that there were some relevant circumstances. These were:

The Appellant's financial position. It was claimed that this remains difficult. No detail was provided. Mr Carmichael said he knew something of the position and confirmed, in general terms, what had been said by the Appellant.

The Appellant was told by Mr Carmichael before the hearing in front of the Judicial Committee that Harness Racing New Zealand would not seek costs. The record of the Judicial Committee proceeding confirms this. However, costs of $400 were ordered against the Appellant. Clearly that was thought to be an appropriate contribution towards the costs incurred in having two Judicial Committee panel members assembled at Alexandra Park on 20 July. Enquiries which this Tribunal undertook, and which were referred to the Appellant and Mr Carmichael, have established that but for this appeal on that day the second member of the Judicial Committee would not have been required at Alexandra Park.

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The case for Harness Racing New Zealand
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3.1 Mr Carmichael had prepared detailed submissions. These had been made available to the Appellant the day before the hearing. The Tribunal found the submissions most helpful.

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Legal issues
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The committee noted the plea and the co-operation of the Appellant.

It was accepted that the breach was accidental.

That Mr Carmichael, while drawing attention to relevant decisions, had not made any specific recommendation as to penalty but had accepted that the administration of heptaminol was accidental.

Dated this 5th day of September 2007

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Murray McKechnie

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John Phelan

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hearing_type: Old Hearing

Rules: 1004.1, 1004.8

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Appeal – JH Price

JCA Decision Fields (raw)

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