Appeal TW Mitchell v RIU – Decision dated 12 July 2012

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decisiondate: 17/07/2012

hearing_title: Appeal TW Mitchell v RIU - Decision dated 12 July 2012

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appealdecision: 9ea461448c8247ef2dc5912bb6a3338f

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Decision:

BEFORE THE APPEALS TRIBUNAL

IN THE MATTER of the New Zealand Rules of Harness Racing

BETWEEN TODD WILLIAM MITCHELL

Appellant

AND THOMAS RODNEY CARMICHAEL (on behalf of
Harness Racing New Zealand)

Respondent

Appeals Tribunal: Bruce Squire QC (Chairman), Professor Geoffrey Hall

Counsel: Ms M J Thomas – Counsel for Mr Mitchell, Mr C J Lange – Counsel for HRNZ

DECISION OF APPEALS TRIBUNAL

1. Introduction:

1.1. On 23 February 2012 before a Judicial Committee duly constituted under the New Zealand Rules of Harness Racing (“the Rules”) the Appellant Mr Mitchell admitted three charges of presenting a horse for a race with a total carbon dioxide level in excess of 35 millimoles per litre in plasma in breach of R.1004 (1A), 1004 (1) and 1004 (2) in two of the charges and in the third charge of R.1004 (1A) and 1004 (3). The three charges admitted by Mr Mitchell were:

(i) on the 28th day of April 2011 Todd William Mitchell was the Trainer and person for the time being in charge of the horse “Covert Action” which was presented to race in race 4, the Supporters Pack May 19th Mobile Pace, at a race meeting conducted by the Cambridge-Te Awamutu Harness Racing Club at Cambridge Raceway, when a pre-race blood sample taken from “Covert Action” was found upon analysis to have a TCO2 level of 36.4 mmol/L, in breach of the provisions of Rules 1004 (1A), 1004 (1) and 1004 (2);

(ii) on the 17th day of June 2011 Todd William Mitchell was the Trainer and person for the time being in charge of the horse “Skip Bo” which was presented to race in race 1, the Grand Hotel Mobile Pace, at a race meeting conducted by the Auckland Trotting Club at Alexandra Park, when a pre-race blood sample taken from “Skip Bo” was found upon analysis to have a TCO2 level of 36.5 mmol/L, in breach of the provisions of R.1004 (1A), 1004 (1) and 1004 (2) of the Rules of Harness Racing;

(iii) on the 1st day of July 2011 Todd William Mitchell was the person for the time being in charge of the horse “Anvils Delight” which was presented to race in race 8, the Placemakers Thames and Whitianga Mobile Pace, at a race meeting conducted by the Thames Harness Racing Club at Alexandra Park, when a pre-race blood sample taken from “Anvils Delight” was found upon analysis to have a TCO2 level of 36.4 mmol/L in breach of the provisions of R.1004 (1A) and 1004 (3) of the Rules of Harness Racing.

2. The Hearing before the Judicial Committee:

2.1 Although Mr Mitchell admitted the charges and it was not necessary for the Informant to prove how the horses concerned came to have the elevated TCO2 levels referred to in the charges, the Judicial Committee was nonetheless required to consider the issue for the purpose of assessing and imposing penalty. This arose because the Judicial Committee was told Mr Mitchell had admitted the charges because they were what his Counsel described as “charges of absolute liability”, but that the elevated TCO2 levels were due to illness of the horses and not to any culpable conduct on the part of Mr Mitchell himself. As a result it was submitted the Judicial Committee should not impose any penalty for the breaches notwithstanding the three charges Mr Mitchell admitted were the second, third and fourth occasions he had breached the Rules under which he had been charged, having committed an earlier breach in 2010 for which he was fined the sum of $800.00. In order to resolve the issue the Judicial Committee heard evidence from four witnesses, Dr Andrew Grierson, the Chief Veterinarian of HRNZ, Mr Mitchell himself, Ms Shelley Baikie who was employed by Mr Mitchell at his stables and Dr Williamson a Veterinarian who was called to give evidence for Mr Mitchell.

2.2 The evidence given by the witnesses centered around the implications and effect of the feeding regime in place at Mr Mitchell’s stables in which the horses were fed a “dry feed” over which was poured a mixture of molasses and water into which had been introduced a substance called Calcium Propionate, and veterinary reports provided by Mr Mitchell that the horses were found some weeks after the races from which the charges arose to have symptoms consistent with chronic inflammation which may have been associated with COPD/chronic irritation. The evidence before the Judicial Committee established that Calcium Propionate acted as an alkalizing agent which increased TCO2 levels in horses and was capable of improving a horse’s endurance. Mr Mitchell told the committee that he had started feeding his horses Calcium Propionate in 2008 in order to assist their recovery from strenuous exercise. He denied giving his horses an alkalizing agent and as recorded in the Committee’s Decision “…certainly did not do so on raceday”. His evidence in those respects was generally confirmed by Ms Baikie.

2.3 The evidence of Dr Williamson, having considered the veterinary reports referred to earlier, was to the effect that each of the horses had suffered in differing degrees from inflammation of the lungs or pneumonitis for some time. Dr Williamson said the effect of the inflammation in the lungs was to impair the gaseous exchange between the lungs and the bloodstream leading to a condition known as respiratory acidosis. He said the effect of respiratory acidosis, simply explained, was to impair the ability of the horse to expel CO2 through its breathing process leading to a buildup of CO2 in the horse’s blood. He explained the condition was difficult to diagnose because the underlying causes had few obvious signs and the condition could lie dormant in a horse for many years before being brought on by stress occasioned by such factors as racing or travel. Under cross examination Dr Williamson accepted that for the purposes of the hearing the elevated TCO2 levels of the horses concerned in the charges admitted by Mr Mitchell could only be explained by either respiratory acidosis or what the Judicial Committee has referred to in paragraph 4.2 of its Decision as “substance administration”.

2.4 Dr Grierson in his evidence told the Judicial Committee he thought the daily feeding of Calcium Propionate to a horse was unlikely to raise its TCO2 level in a pre-race blood sample beyond 35mmol/L unless the substance was given to the horse on the day of the race. He accepted that respiratory acidosis could raise a horses TCO2 level but was not aware of any studies that indicated respiratory illness alone could cause high TCO2 levels. In answer to a question as to whether the combination of a feeding regime and a horse having a respiratory infection would cause increased TCO2 levels, Dr Grierson said he thought the threshold level of 35 mmol/L was sufficiently high to accommodate such circumstances and would be unlikely to give a reading above what he referred to as “the norm”. Dr Grierson also expressed the view that if the horses had been suffering from a respiratory illness as claimed, it was unlikely they would have been able to place in the races in which they had run, as the three horses concerned in this case had done in each of their races.

2.5 The evidence of Mr Mitchell and Ms Baikie confirmed that none of the three horses appeared to be unwell on the day of the races from which the charges arose although Ms Baikie indicated that “Skip Bo” “took forever to recover”. She was not present on the day “Covert Action” ran at the Cambridge race meeting.

2.6 Mr Mitchell said that following the elevated TCO2 level found in “Covert Action” following the race on 28 April 2011 he was advised to get a lung wash done on the horse and did so. As a result of this procedure, “Covert Action” was found to be suffering from a chronic inflammation associated with COPD. After “Skip Bo” had returned elevated TCO2 levels, Mr Mitchell said he halved the amount of Calcium Propionate fed to the horse and subsequently arranged for the horse to undergo a lung wash also. This horse too was found to be suffering from a respiratory infection. A subsequent report obtained in relation to “Anvils Delight” following it returning an elevated TCO2 level after racing on 1 July 2011 also indicated the presence of a respiratory illness. Mr Mitchell told the Committee that he had not sought professional advice regarding the feeding of Calcium Propionate to the horses and it was not until he was notified of the TCO2 level returned by “Anvils Delight” that he ceased using Calcium Propionate altogether.

3. Penalty Submissions made to the Judicial Committee:

3.1 Before the Judicial Committee the Informant submitted that in the event it was found the three breaches charged occurred as a result of an ingestion of an alkali substance, bearing in mind the admitted charges were Mr Mitchell’s second, third and fourth breaches of the Prohibited Substance Rule, disqualification for a period of two years was the appropriate sanction. In that regard reference was made to a range of previous decisions and the rationale behind the Prohibited Substance Rule, and the need to “sheet home” to Trainers their obligations and the high onus imposed on them by the Rules.

3.2 On the other hand, as observed earlier, Counsel for Mr Mitchell urged on the Judicial Committee the elevated TCO2 levels of the three horses was due to illness and Mr Mitchell was entirely without fault despite admitting each of the three breaches charged. It was submitted on his behalf that if the Committee was satisfied illness was the cause of the elevated TCO2 levels in the horses no penalty should be imposed but if that was not accepted by the Committee, bearing in mind the actual TCO2 levels involved, a fine of $500.00 on each of the three charges was appropriate.

4. The Decision of the Judicial Committee:

4.1 In dealing with the cause of the elevated TCO2 levels the Committee rejected the submission they were due to illness of the horses. In reaching that finding the Committee noted that if illness had been the sole cause, the subsequent tests would have produced considerably higher TCO2 readings than was the case. The Committee was also influenced by the fact the three horses appeared normal on raceday and were able to place in the races in which they had run. The Committee observed that it would not have expected the horses to perform that well had they been sufficiently ill to raise their TCO2 levels to exceed the threshold.

4.2 The Committee then observed that the “other option” explaining the elevated TCO2 levels was the ingestion of alkaline through either administration or feeding. It went on to record at para 7.11 of its Decision:

“The feeding regime described to us had no science to it at all and in our view it is possible that there was a buildup of Calcium Propionate in the horses feed bins and as a result there was an ingestion of that substance. This can be the only plausible reason for the TCO2 levels other than deliberate administration and that has not been alleged before us.”

4.3 Against that finding the Judicial Committee went on to characterise the culpability of Mr Mitchell as “…reckless in the extreme…” (para 7.15). The basis of that finding is set out in paragraphs 7.6 and 7.7 of the Committee’s Decision which for completeness we set out in full:

7.6 “Mr Mitchell has not been charged with deliberate administration, however, in the Committee’s view this is not just a case of negligence. The facts presented to us about Mr Mitchell’s use of Calcium Propionate are of very real concern to us and should be a warning to other trainers. The giving of substances to horses regardless when, where and how it is done must always be treated with caution. It is always incumbent upon a trainer to know all the information concerning a particular substance he/she is using and in most cases this will involve obtaining professional advice. Mr Mitchell has been sadly lacking in this area to the extent that this Committee views his actions as being reckless in the extreme. It is notable that even when he was notified of the TCO2 level returned by COVERT ACTION he took no steps or advice regarding the Calcium Propionate and when SKIP BO returned its TCO2 level all he did was reduce the amount of Calcium Propionate. Again he did not take ay professional advice. It is hard to imagine a better example of a trainer being completely reckless with the use of a chemical product that he was feeding to his horses.”

7.7 “This case and the facts set out in it need to be a warning to all trainers that giving substances to their horses haphazardly and without proper knowledge and advice is fraught with danger. The RIU has quite rightly signaled its intentions to ensure that we have drug free racing in New Zealand and that there is a level playing field for all participants. It is in the interests of all those who participate in this Industry that not only is there a level playing field but also that the Industry is intent on preserving its Integrity”.

The Committee also referred to a warning put out by the Ontario Racing Commission in 2010 relating to the use of Calcium Propionate pointing out that it could lead to elevated TCO2 levels.

4.4 On the basis of those findings the Committee concluded that a substantial period of disqualification was warranted and disqualified Mr Mitchell for a period of one year commencing on 19 April 2012. The Committee also ordered him to pay costs to the Judicial Control Authority in the sum of $2,150.00 and reserved the question of costs to HRNZ.

5. The Appeal:

5.1 In the Notice of Appeal filed by Mr Mitchell his Counsel sought to have the appeal dealt with by way of written submissions and a tele-conference in order to limit the costs incurred by the parties. In a Minute dated 23 April 2012 we indicated we would defer any decision as to whether a hearing in the usual way would be required until we had received and considered the written submissions of Counsel. Having done so we are satisfied that we are able to deal with the appeal on the basis of the written submissions filed without the need for a tele-conference but we need to make it clear that this should not be regarded as a precedent for the hearing of future appeals. In general there is much to be gained from the Tribunal’s perspective for appeals to be heard in the usual way, not least the ability to isolate and refine issues in the exchanges that customarily occur between Counsel and the Tribunal, and the submissions of Counsel that bear on those issues. In this case we have decided the appeal can be dealt with without the need for a formal hearing but as we have indicated that should not be regarded as creating a precedent for future cases.

5.2 The Notice of Appeal lodged by Counsel for Mr Mitchell specified five grounds of appeal as follows:

(i) there was no evidence upon which the Judicial Committee could find as a fact that there was a build-up of Calcium Propionate in the horse feed bins which led to the elevated levels;
(ii) the Judicial Committee in effect punished the Appellant for the use of Calcium Propionate when there was no evidence the Calcium Propionate led to the elevated levels and indeed the evidence of the Informant was that the Calcium Propionate given as part of the normal feeding regime could not have led to the levels;

(iii) that the Judicial Committee’s determination that there was recklessness failed to take into account the mens rea requirements of recklessness namely foresight;

(iv) the Judicial Committee took into account the Ontario Racing Commission publication of a warning for the use of Calcium Propionate without ascertaining whether or not the Appellant was aware of that warning;

(v) the sentence imposed was manifestly excessive.

However the written submissions lodged by Counsel for Mr Mitchell do not address in any detail grounds (iii) and (iv) and grounds (i) and (ii) can conveniently be dealt with together as aspects of ground (v).

5.3 The first ground of appeal arises from that part of the Committee’s decision in paragraph 7.11 set out at paragraph 4.2 of this Decision in which the Committee took the view it was “possible” a buildup of Calcium Propionate in the horse feed bins was the cause of the ingestion of the alkaline substance by the horses. The point made by Counsel for Mr Mitchell is that Dr Grierson in his evidence (recorded and summarised in paragraph 1.12 of the Committee’s Decision) accepted that daily feeding of Calcium Propionate was unlikely to raise TCO2 levels in the horses above the threshold limit of 35 mmol/L unless administered on the day of the race. Counsel also noted there was no allegation of intentional administration of an alkaline substance on raceday and there had been no cross-examination of Mr Mitchell when he gave evidence concerning that issue. It was submitted the evidence before the Judicial Committee arising from the cross-examination of Mr Mitchell got no higher than a concession from him that it was possible that there could, on occasions, be residue of Calcium Propionate left in the horses’ feed bins which may have been responsible for the elevated TCO2 levels. Counsel submitted that other than that concession there was no evidence to support the conclusion drawn by the Committee it was possible there had been a buildup of Calcium Propionate in the horses’ feed bins which resulted in the ingestion of an alkaline substance by the horses.

5.4 Counsel then made the following submission in paragraph 10 of her written submissions which for completeness we set out in full:

10. “Since its own expert had given evidence that the breach was unlikely to have occurred from the substance being provided in the night feeds the respondent appears to have been asking the Committee to conclude that there had been a buildup of Calcium Propionate in the feed bucket”.

Referring then to R.1008A which requires matters in issue in proceedings to be proved on the balance of probabilities, Counsel submitted that applying that standard of proof it was not open to the Judicial Committee to find that it was possible a buildup of Calcium Propionate in the horses’ feed bins caused the ingestion of the alkaline substance.

5.5 While the Judicial Committee expressed its view as to a buildup of Calcium Propionate in the horses’ feed bins as a “possibility”, which on its face is inconsistent with the standard of proof required by R.1008A, we think the use of the word “possible” needs to be read in the context of how the Judicial Committee was addressing the issue under consideration. The Committee had earlier recorded in paragraph 6.7 of its Decision, that on the evidence there were three possible factual situations open. The first was that the Committee could not determine the cause of the elevated TCO2 levels and the charges stood as proven without any aggravating or mitigating factors; the second was that Mr Mitchell was complicit in that he intentionally administered a substance to the horses for the purposes of elevating their TCO2 levels; and the third was that the elevated TCO2 levels were the result of illness in each of the horses and that Mr Mitchell was entirely without fault. As the reasoning of the Committee proceeds it is apparent it was not satisfied that the first factual situation referred to applied, and for the reasons previously outlined it rejected illness of the horses as being the cause of the elevated TCO2 levels. That left the remaining option, as it put it, of ingestion of the alkaline substance either through administration or feeding. The reference to the “possibility” of there being a buildup of Calcium Propionate in the horses’ feed bins needs to be read in context with the following sentence in paragraph 7.11 which records:

“This can be the only plausible reason for the TCO2 levels other than deliberate administration and that has not been alleged before us”.

While the use of the term “possible” in paragraph 7.11 is unfortunate given the requirements of R.1008A as to the standard of proof required to be applied, we think that taken with the next succeeding sentence set out above, the finding of the Committee was that the ingestion of the alkaline substance resulted from the feeding of the horses and that it was properly satisfied of that to the standard required by R.1008A. Further, the basis upon which the Committee assessed the culpability of Mr Mitchell in paragraphs 7.6 and 7.7 of its Decision confirms that was its finding.

5.6 In the result we do not accept the submission that the finding of a buildup of Calcium Propionate in the horses’ feed bins resulted in the ingestion of the alkaline substance was not available to the Judicial Committee on the evidence before it or that in reaching that conclusion it applied the wrong standard of proof. In that regard we note the passages of Dr Grierson’s evidence relied on by Counsel for Mr Mitchell to support her argument under this head nowhere excluded the possibility of a buildup of Calcium Propionate in the horses’ feed bins or that such a buildup could have resulted in the ingestion of the alkaline substance by the horses. For the same reasons we do not accept the related ground of appeal set out in sub-paragraph (ii) of paragraph 5.2 of this Decision has been made out.

5.7 That finding and the matters referred to in paragraphs 7.6 and 7.7 of the Judicial Committee’s Decision set out earlier form the basis of the Judicial Committee’s finding that Mr Mitchell had been “reckless in the extreme”. We have given careful consideration to this characterization of Mr Mitchell’s conduct in this case and as to whether it is warranted on the factual findings made by the Judicial Committee. While there can be no issue taken with the comments rightly made by the Judicial Committee as to the need for care and caution in the giving of substances to horses, we have reservations as to whether Mr Mitchell’s conduct and its shortcomings as identified by the Committee in this case justified the level of culpability implicit in the phrase “reckless in the extreme”. The shortcomings of Mr Mitchell’s conduct outlined by the Judicial Committee certainly, in our view, warranted the imposition of a period of disqualification, particularly given the breaches were his second, third and fourth breaches of the Rules all committed within a period of three months, but we are left with the impression that the shortcomings did not entirely justify the level of culpability attributed to them by the Judicial Committee and the period of disqualification imposed may have been overly influenced by that assessment of culpability.

5.8 Counsel for the Informant noted in his submissions the breaches in respect of “Skip Bo” and “Anvils Delight” occurred following a warning given by notice by the Racing Integrity Unit that it would be seeking harsher penalties for breaches of the Rules relating to prohibited substances. Whether or not the Judicial Committee took account of that in fixing penalty in this case is not apparent on the face of its Decision but we do so ourselves for the purpose of assessing the appropriateness of the penalty imposed on Mr Mitchell. In the result, having considered the various factors which influenced the Judicial Committee in fixing penalty, the various cases referred to by the Committee and Counsel in their submissions and the warning given by the Racing Integrity Unit, we have come to the conclusion that the period of 12 months suspension imposed was excessive in the circumstances of the case and should be reduced. We are of the view however that a financial penalty should be imposed to give proper effect to the level of culpability we believe the offending involves, notwithstanding the reduction in the period of disqualification. We also consider that as Mr Mitchell has succeeded in his appeal to a limited extent but not for the principal reasons advanced by his Counsel, he should be responsible for costs on the appeal on a more limited basis than would otherwise be the case had his appeal wholly failed.

6. Result:

6.1 In the result the appeal is allowed to the extent that the disqualification of one year imposed on Mr Mitchell by the Judicial Committee and to commence on 19 April 2012 is quashed and in its place a period of disqualification for 9 months to commence as from 19 April 2012 is imposed. In addition, Mr Mitchell is to pay a fine of $1,500.00 on each of the 3 admitted breaches making a total fine of $4,500.00. He is also to pay the costs of the Judicial Control Authority as ordered by the Judicial Committee and any costs which may have been awarded to the Informant by the Judicial Committee.

6.2 In addition, Mr Mitchell is to pay costs to both the Informant and the Judicial Committee on this appeal which will be assessed on a limited basis for the reasons outlined above. In that regard we require submissions from Counsel. Counsel for HRNZ is to take responsibility for ascertaining the costs of the JCA as well as HRNZ and is to file his submissions by 5:00 pm on Friday 20 July 2012. Counsel for Mr Mitchell is to file her submissions in reply by Friday 27 July 2012. If that timetable causes Counsel any difficulty beyond mere inconvenience leave is reserved to apply.

DATED at Wellington this 12th day of July 2012

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Bruce Squire QC (Chairman)
Signed: pursuant to R.1207(4)

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hearing_type: Non-race day

Rules: 1004(1A) 1004(1) 1004(2) 1004(3)

Informant: TW Mitchell - Appellant

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Respondent: TR Carmichael - Respondent representing the Racing Integrity Unit

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