Appeal – JJ Clementson

hearingid: 1fba4bcdccc358e954f40328ec8d9710

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hearing_racingtype: thoroughbred-racing

startdate: 01/01/2001

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decisiondate: no date provided

hearing_title: Appeal - JJ Clementson

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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.

BEFORE THE APPEALS TRIBUNAL HELD AT CHRISTCHURCH

            IN THE MATTER        of the New Zealand Rules of Harness Racing

            BETWEEN                  Joseph John CLEMENTSON -  Appellant

            AND                             Harness Racing New Zealand - Respondent

HEARING:                    19 June 2007

APPEAL TRIBUNAL:  Judge J Bisphan (Chairman),  Professor GG Hall

APPEARANCES:         Mr J Eaton for Appellant

                                       Mr C Lange for Respondent

DATE OF DECISION: 11 July 2007

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                                        DECISION OF APPEALS TRIBUNAL

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In a decision made on or about 10 April 2007, the Judicial Committee found a charge under Rule 1004(6) proved against the appellant. Rule 1004(6) provides:

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 the club veterinarian surgeon, race course inspector or stipendiary steward.

The appellant appeals against the finding and also the penalty imposed.

We do not propose to go into the background to this matter as it is well known to the parties. Furthermore, the findings of fact made by the Judicial Committee are not disputed. Very briefly it was found proven that at the Methven Trotting Club's meeting on 10 September 2006 the appellant used a syringe to introduce a substance down the throat of his horse Conagher. On that charge the appellant was fined $4,000.00 and disqualified from holding or obtaining a licence for a period of six months to take effect after 20 May 2007. The appellant was also fined $1000.00 for a breach of rule 1004(5) but that matter is not the subject of this appeal. The appellant was ordered to pay the sum of $5000.00 costs to the respondent and $1500.00 to the JCA in respect of the hearing before the Judicial Committee.

We should add that the appellant had also been charged with a serious racing offence under Rule 1001(1)(b)(i) on the basis that what he did in administering the substance to the horse as alleged was detrimental to the interests of harness racing. That charge was an alternative to the charge under Rule 1004(6) and in the event the Judicial Committee chose to dismiss the more serious charge and find the lesser charge proved.

In his submissions before us Mr Eaton for the appellant refined the essential issue for this Tribunal to the meaning of the word "injection" in the relevant rule. Specifically, the question must be ? Was the use by the appellant of a syringe to introduce the substance into the horse an administration by injection?

The submissions before us by and large were also made to the Judicial Committee which in its decision relevantly dealt with the matter in the following terms:

During the hearing it was established that there were (amongst others) two relevant different meanings that could be attributed to the word "injection". The definition of this word in veterinary terms clearly limits the act to an injection with a syringe and needle. The dictionary meaning is much wider and would include driving or forcing a fluid into a passage, cavity or solid material under pressure. On behalf of HRNZ Mr Lange submitted that the wider dictionary meaning should be applied whilst Mr Eaton on behalf of Mr Clementson submitted that the veterinary dictionary meaning should be adopted. No case law was referred to.

We also refer to the Oxford English Dictionary (online) which defines "inject" as "to drive or force (a fluid etc) into a passage or cavity as by means of a syringe or by some impulsive power esp of the introduction of medicines or other preparations into the cavities or tissues of the body."

We have given this matter careful consideration and prefer the interpretation given by Mr Lange on behalf of HRNZ. Our reasons for this decision are as follows:

The rules of harness racing are not written for veterinarians but are for the guidance of trainers, drivers, owners and other persons involved in harness racing.

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• In particular, Rule 1004(6) describes things that a trainer would do to treat a horse and it is not written in veterinarian terms.
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• We also agree with Mr Lange that it would be absurd if a trainer could lawfully administer a substance down the throat of a horse with a syringe without a needle attached but would be breaching the rule if a needle was attached to that syringe.
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We recognise that there is no presumption in favour of the Judicial Committee's decision and that we must come to our own conclusion.

In their submissions before us counsel expanded on the approach taken before the Judicial Committee. In essence Mr Eaton submitted that the word "injection" should be interpreted by being given its ordinary meaning which in his submission was by use of a needle and syringe. He submitted that the rule was substantially using veterinary terms and that the veterinary definition given at the hearing supported his contention that an injection meant by needle and syringe. Mr Eaton pointed to the fact that the rule did not deal with prohibited substances but "any substance" and that the rule is administration specific. In other words what is aimed at is the mode and method of administration.

Mr Lange on the other hand submitted that it was necessary to look at the purpose of the rule. He submitted that absurd results would follow if the word injection was confined to only the use of a needle and syringe.

In our view the purpose of the rule is clear. It is remedial. The rule is one of a number in the Rules to ensure that horses do not race with any prohibited substance in their bodies or systems. The rule of course does not mention prohibited substances. It casts the net wide to include "any substance" for the reason that it is impossible to swab or take blood samples from every horse on every occasion of a race. It acknowledges that some substances which may affect the performance of a horse are difficult, if not impossible, to detect and some substances may not have tests devised for them. It attempts to limit the circumstances in which a horse on race day might be given or supplied a prohibited substance that might affect its racing performance. It prohibits specific administration of any substance to a horse relevantly on race day except after it has raced or with official approval.

We do not consider that it is helpful in assessing the purpose of the rule or as an aid to its interpretation to describe the rule as containing references to veterinary implements or activities carried out solely or mainly by veterinarian surgeons. The rules are applicable to all those who become involved in racing and it would have to be accepted that trainers, persons in charge of horses and veterinary surgeons alike use the apparatus referred to in the rule and also inject substances into horses.

Neither do we accept the appearance of the behaviour of trainers or handlers of horses at the race course is a particularly significant factor. Mr Eaton put it on the basis that it would not be in the interests of racing for the public to see tubes, needles and nebulisers used on horses just prior to racing. That may be so, but the rule is wider than that. There would be ample opportunity for trainers, handlers and others to inject substances or use the aforesaid instruments prior to bringing the horse to the race course and opportunity to do such administrations surreptitiously at the race course. Both these forms of activity would also fall within the purview of the rule.

We find that the usual rules of statutory interpretation can be a guide to interpreting the words in the Harness Racing rules. S.5(i) of the Interpretation Act 1999 is as follows:

"The meaning of an enactment must be ascertained from its text and in the light of its purpose.

Words are to be given their ordinary meaning against the background of the purpose of the rule and the context in which the particular words are found. The case of Shum v ACC, Greig J High Court Auckland, 26 August 1997 CP 635/94 was referred to us and we derived some assistance from it. Again it was emphasised that words are to be given their ordinary meaning.

The decision goes on to say (p7) quoting from CIR v Alcar New Zealand Limited [1994] 3 NZLR 439

?If however the words are capable of more than one meaning and the object of the legislation is clear, then the words must be given such fair large and liberal construction as will be ensure the attainment of the object of the Act.

Those well known words do not now feature in the Interpretation Act 1999 but still have application. Also in Shum an Oxford English Dictionary definition of the word "injection" was provided as follows:

The action of forcing a fluid into a passage or cavity as by means of a syringe or by some impulsive force esp the introduction in this way of a liquid or other substance into the vessels or cavities of the body either for medicinal purposes or (in a dead body or portion of one) in order to exhibit the structure or preserve the tissues.

The draughtsman of the rule has used the word "injection" which describes the method of administration and followed it by a description of the actual pieces of apparatus to be used in administration. In making that distinction we infer that the meaning of "injection" is not restricted to a single piece of apparatus. If the draughtsman had intended that the word "injection" solely related to the use of a needle and syringe as contended for by Mr Eaton then the draughtsman could have simply used those words or even just the word "needle". We find that the word "injection" is not to be limited in that way but is to be given a wider connotation, which would, of course, include the use of syringes and needles and syringes alone. That interpretation accords with the dictionary definition which we have previously referred to. In our view the ejusdem generis rule referred to by Mr Eaton is not applicable. That rule applies where particular words are followed by general words. That is not the case here.

We hold that the words "administer by injection" in the rule encompass different modes of introducing a substance into the body of a horse and to different parts of the body of the animal. We see no warrant to interpret the word "injection" as if it were followed by the words "by needle", because, depending on the part of the horse to be injected, it might be impossible or inappropriate to use a needle. The word "administer" in the rule must contemplate active human assistance to the assimilation of the substance into the horse.

To give the word "injection" an interpretation other than the one adopted by the Judicial Committee would frustrate the purpose of the rule by restricting injections to needles attached to syringes when clearly the rule is meant to catch all those defined administrations on race day which might give rise to the introduction of prohibited substances into a horse. With reference to this case what the appellant did was to use a syringe (i.e. depress the plunger) to introduce a substance into the throat of the horse on race day. We would have thought that was the very sort of conduct intended to be proscribed by the rule. We find it fits squarely into the concept of administering by injection even though no needle was used.

In our view it cannot be correct to interpret the rule on the basis that administrations on a race day solely by means of a syringe would not be caught. We think that Mr Lange is correct when he says that it would be absurd if a trainer could lawfully administer a substance down the throat of a horse with a syringe (without a needle attached) but would be breaching the rule if a needle was attached to that syringe. We acknowledge that this may mean that at least some of the actions referred to by Mr Eaton at paragraph 33 of his submissions could be caught by the rule and be prohibited.

We list his following examples:

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• Squeezing a tube of cream into any passage or cavity (including a cut);
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• Using any form of drink bottle which requires squeezing to extract the solution;
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• The use of an eye drop in plastic bottle.
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We have no difficulty with that because in all cases the requirement is that there must be "an administration" within the limited time span provided for in the Rules. We uphold the decision of the Judicial Committee as to its finding under Rule 1004(6).

In our view the penalty imposed by the Judicial Committee is outside the range which was available to it. The maximum penalty is one year's disqualification and the maximum fine is $5,000.00. As Mr Eaton correctly points out, the fine imposed was 80% of the maximum and 50% of the disqualification maximum. Whilst we agree that the appellant's past record is to be taken into account, we believe that in the particular circumstances of this case that should go more to the nature of the penalty imposed (i.e. a fine in addition to a period of disqualification) rather than the extent of it, otherwise the penalty could fall to be criticised for re-sentencing on the previous matters. It is significant that no prohibited substance was in fact found in the horse. We find that the Judicial Committee's penalty was manifestly excessive and that a fine of $2,500.00 and four month's disqualification is the appropriate penalty in the circumstances of this case. The totality of the financial penalty imposed is also to be considered. When regard is had to the two charges and to costs, this is the sum of $11,500.00. Costs should be real but are not intended to indemnify a party to the proceedings. We regard the award of costs of $5,000.00 to HRNZ and $1500.00 to the Judicial Control Authority as being above what would normally be warranted in a matter of this nature. To redress that situation we will make no award for costs on this appeal.

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1. The appeal against the finding in respect of Rule 1004(b) is dismissed.
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2. The appeal against the penalty imposed in respect of the breach of Rule 1004(b) is allowed. The Judicial Committee's penalty is quashed and a fine of $2,500.00 together with four months disqualification from 20 May 2007 is substituted therefor.
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3. We make no order for costs on this appeal but confirm the Judicial Committee's costs orders.
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___________________ _____________________

J Bisphan, Chairman

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hearing_type: Old Hearing

Rules: 1004.6, 1004.5, 1001.1.b.i, 1004.b

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