HRNZ v PEM Simpson 15 May 09 – (res descn)

hearingid: c21e7adbcd4ad6bcef786311be4b6b1a

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hearing_racingtype: thoroughbred-racing

startdate: 01/01/2001

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decisiondate: no date provided

hearing_title: HRNZ v PEM Simpson 15 May 09 - (res descn)

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Decision:

HARNESS RACING NZ v PETER ERIC MICHAEL SIMPSON
Hearing before Non-Raceday Judicial Committee
At Alexandra Park Raceway 1st May 2009

JUDICIAL COMMITTEE  Mr M S McKechnie, Chairman and Mr B J Rowe

   
PRESENT:   Mr David Jackson, Counsel for Harness Racing NZ
                       Mr Rob Carmichael, Chief Racecourse Inspector
                       Mr David Hayes, Counsel for Mr Graeme Rogerson
                       Mr Murray Gregory, Racing Manager
                       Mr Barry Lichter, Journalist

Reserved decision of Judicial Committee
15th MAY 2009

HARNESS RACING NZ v PETER ERIC MICHAEL SIMPSON
Hearing before Non-Raceday Judicial Committee
At Alexandra Park Raceway 1st May 2009

JUDICIAL COMMITTEE  Mr M S McKechnie, Chairman and Mr B J R

PRESENT:    Mr David Jackson, Counsel for Harness Racing NZ
                        Mr Rob Carmichael, Chief Racecourse Inspector
                        Mr David Hayes, Counsel for Mr Graeme Rogerson
                        Mr Murray Gregory, Racing Manager
                        Mr Barry Lichter, Journalist

Reserved decision of Judicial Committee
15th MAY 2009

1. INTRODUCTION

1.1 There are a number of interesting, perhaps novel issues, which have been raised in the course of this hearing. Before setting those out it is appropriate to summarise the charges before the Committee.
1.2 At all relevant times Mr Simpson was a public trainer licensed under the Rules of NZ Harness Racing. He was at the time of the alleged offences training in partnership with Mr Graeme Rogerson at Tuhikaramea.
1.3 On 31st May 2008 the horse Muscle And Power won a 2yr old race at Cambridge Raceway. The gross stake money won was $50,000.00. The horse raced in the registered ownership of Mr Rogerson and a Mr E J Edwards. The horse was required to give a post-race swab and a sample was analysed during the period 2nd to 6th June and reported as a clear sample. The stake money for winning the race was paid to Mr Rogerson on the 18th June 2008. On the 4th September last the stored sample which had been held frozen at the racing laboratory maintained by Harness Racing NZ was further analysed specifically to ascertain if dimethyl sulphoxide (DMSO) was present. This sample was found to have a concentration of DMSO of 31.5 milligrams per litre. DMSO is a prohibited substance when present in a concentration exceeding 15 milligrams per litre.
1.4 On the 6th June 2008 the horse Strike up the Band won race 7 at the Auckland Trotting Club meeting at Alexandra Park. The gross stake money earned was $9,555.00 The horse was raced in a partnership which included Mr Rogerson. A post-race swab was taken and the sample later analysed. It was reported to be a clear sample and the stake money was paid to Mr Rogerson as the owner’s agent on the 2nd July 2008. On the 15th September last the stored sample which had been held frozen by Harness Racing NZ was further analysed. This was to establish if DMSO was present. The test established a concentration of 30.1 milligrams of DMSO per litre.
1.5 On the 26th June 2008 the horse Locked and Loaded won a race at the Cambridge – Te Awamutu Harness Racing Club meeting conducted at Cambridge Raceway. The gross stake money was $4,800.00. At the time the horse was owned by Cavalla Bloodstock Limited. The horse was later sold and exported to Australia. Locked and Loaded was selected for a post-race swab and this was subsequently analysed and reported as clear. On 16th September 2008 the remaining sample which had been held frozen by Harness Racing NZ was analysed specifically for DMSO. This sample tested positive with a concentration of 74 milligrams per litre.

2. EVENTS FOLLOWING THE POSITIVE TESTS

2.1 Mr Simpson was interviewed at Hamilton on the 12th September 2008. This after the first retest of the sample from the horse Muscle And Power. A record of that interview was made available to the Committee. In summary Mr Simpson acknowledged that he was the co-trainer of the horse and said that he had administered 50 to 100 milligrams of DMSO to the horse at least 48 hours before it had raced. He acknowledged that he was the person in charge of the horse on the day in question.
2.2 The Committee was advised that DMSO is commonly used as an equine medicine. It is used as a liniment along with and in combination with other ingredients. It can be administered intravenously or by nasal gastric tube. It has anti inflammatory and analgesic properties. It is acknowledged by Harness Racing NZ that DMSO does have legitimate therapeutic uses. The withholding time recommended by the Equine Branch of the NZ Veterinary Association is 48 hours. This is based on a recommended dose of 50 grams.
2.3 Mr Simpson was interviewed on a second occasion on the 28th October 2008. This interview was conducted by Mr Carmichael and followed the positive tests for Strike up the Band and Locked and Loaded. At this second interview Mr Simpson again explained that he was acting upon veterinary advice. He was asked about the role of Mr Rogerson. The following occurs at the conclusion of the interview. 

 “Just dealing with the responsibility in terms of both of these positives, as I said to you before, you and Graeme Rogerson are the joint trainers. Is there any particular reason why Graeme Rogerson should be absolved from any responsibility in these matters”?
 “Well I did the work and I did the administration but we are in a joint partnership, be he did not literally have any hands on affect in this situation”.
 “But he is, I think you indicated to me, regularly in the stable working and assisting with track work when he is in the country”
 “Yes”.
2.4 It does not appear that Mr Rogerson was interviewed. Nothing was put before the Committee to indicate that this had occurred.
2.5 Following the interviews with Mr Simpson three informations were lodged alleging breaches of Rule 1004(1) & (2). Mr Simpson is no longer domiciled in New Zealand. The Committee was not told when he left this country or anything of the circumstances surrounding his departure. Mr Carmichael informed the Committee that he had been in regular contact with Mr Simpson post his departure from New Zealand. Mr Simpson is now domiciled in the USA. The Committee is satisfied from the evidence of Mr Carmichael that the informations reached Mr Simpson. There is dispute about the significance of what happened thereafter. Mr Carmichael produced a letter which he said was sent to him by Mr Simpson and which is dated the 21st February 2009. This letter makes detailed reference to each of the three charges. The paragraphs in the letter which are of particular significance are No’s 2 to 5. These are as follows:
2. The above are offences within the provisions of Rule 1004(1) and (2); and punishable in accordance with the provisions of Rule 1004(7) and (8).
3. I understand the substance of these charges and that they have been properly filed in accordance with Rule 1102(4)(c).
4. This is to advise that I admit the charges as filed and consent to the matters being determined by a Judicial Committee appointed in accordance with the Rules, I waive the requirements of the Rules relating to hearings and consent to the matters being determined in my absence.
5. The foregoing consents are conditional upon the Informant (Harness Racing New Zealand) seeking a monetary penalty of $750 on each charge, being consistent with submissions made by the Informant in relation to similar cases.

3. DOES MR ROGERSON HAVE THE RIGHT TO BE HEARD BEFORE THE COMMITTEE

3.1 The Executive of Harness Racing NZ has made regulations governing training partnerships. These are referred to as Training Partnership Regulations. They expressly provide by Regulation 6(b):
 Each partner shall be jointly and severally responsible and liable for any act or omission of another partner.
 Mr Rogerson has not been charged with any offence in relation to the issues before the Committee. Further reference will be made to that circumstance later in this decision.
3.2 When these charges first came before the Committee Mr Don McIlraith gave notice that he wished to be heard on behalf of Mr Rogerson. Mr McIlraith is a Lay Advocate well known in racing circles. A series of telephone conferences were convened with the Committee Chairman. In the course of these Mr McIlraith explained that Mr Rogerson was Mr Simpson’s training partner and that he had an ownership interest in the horses Muscle And Power and Strike up the Band. Mr McIlraith further explained that Mr Rogerson wished to instruct an Auckland based Queens Counsel but that this legal practitioner would not be available until sometime after the 1st June of this year. An adjournment was sought to some date post 1st June. This was opposed by Harness Racing NZ. The Committee declined to adjourn the hearing for such a period and a timetable was set to bring the matter to hearing on the 1st May. In the course of the telephone discussions Mr McIlraith indicated that the plea or indication of guilt by Mr Simpson would be t  he subject of challenge. So it proved. This was of course known to Mr Carmichael. At the commencement of the hearing on the 1st May Mr Carmichael gave evidence of a further discussion with Mr Simpson. He put before the Committee a document prepared in a law office in the State of New Jersey USA and dated 30th April this year. That document, on its face, appears to be signed by Mr Simpson and is in the form of a sworn statement. It is attested by a person describing themselves as a Notary Public in the State of New York. The document contains two statements of relevance. These are as follows:
1. There were no inducements offered to me in return for my “guilty” plea.
2. The penalty sought against me was entirely consistent with the penalty imposed against other trainers for the same offence.
3.3 In all the Committee issued three rulings before the hearing commenced on the 1st May. In addition to the question of the adjournment sought those rulings were to set a framework for the hearing and to establish the position which each party would take.
3.4 For Mr Rogerson it is said that he is qualified to be heard by reason of two circumstances. First he was in a training partnership with Mr Simpson. Secondly he has an ownership interest in the horses Muscle And Power and Strike up the Band.
 Thus the Committee must consider in what circumstances, (if any) can a person asserting some ownership interest have the right to be heard. This may depend upon precisely who has been charged and what plea that person has chosen to make.
3.5 The Committee questioned Mr Jackson, counsel for Harness Racing NZ, as to why both parties in the training partnership were not charged. It was said, in essence, that Mr Simpson was in control of the horses and therefore the decision was taken that only he should be charged. That decision is not consistent with the plain provision in the Training Partnership Regulations which expressly provides for joint and several responsibilities and liabilities. As between persons in the training partnership there may be differing levels of culpability when a breach of the rules occurs. It would be expected that this would reflect in any penalties imposed. In the Committee’s view where a breach is alleged by a training partnership all members of the partnership should be charged. That is clearly what the regulation intends.
3.6 The decision not to charge Mr Rogerson has led to an anomalous situation. Harness Racing NZ not having charged Mr Rogerson then submits that he cannot be heard before this Committee. It is not however in dispute that at the relevant time there was an extant partnership between he and Mr Simpson. This disputed question of Mr Rogerson’s right to be heard would never have arisen had informations been laid against both he and Mr Simpson. The question of Mr Rogerson’s right to be heard as a part owner is a discrete issue to which we will return.
3.7 In our view it would be wrong for a member of a training partnership to be denied the right to be heard because the prosecuting authority has chosen not to involve that partner. For reasons already explained we consider that Harness Racing NZ was in error in not charging Mr Rogerson. It would be wrong in our view to deny Mr Rogerson the right to be heard by reason of the mistaken decision that he not be charged.

4. THE POSITION OF OWNERS

4.1 We turn to the position of persons who have an ownership interest. For Mr Rogerson it was contended that in addition to his position as co-trainer his ownership interest gave a right to be heard before the Committee.
4.2 There is no provision in the rules which expressly provides that an owner can appear and make submissions to a Judicial Committee when the breach of the rules is alleged against the trainer. There may be rare instances where an owner wishes to put material before the Committee which it would not otherwise be aware of. Under the provisions of Rule 1111 the Committee has an almost unfettered discretion as to how to conduct proceedings. The Committee may under sub para (8), on its own motion or on the application of a party, require persons to appear before it.
4.3 This Committee takes the view that any owner who wishes to be heard in respect of a breach alleged against his or her trainer would be required to satisfy the Committee that the material to be put forward was firstly not otherwise known to the Committee and secondly and importantly that it was relevant to the issues for determination. It might therefore require the owner to first of all make the information known and for there to then be a ruling as to whether such information should be received. Given that there is no express right of audience – nor any express prohibition – the matter can be left for the determination of individual Judicial Committees as the case may require. In the view of this Committee the situation of an owner wishing to be heard where the breach is alleged against a trainer is likely to arise most infrequently.
4.4 In the circumstances of the present case it is not necessary to rule as to whether Mr Rogerson can be heard as an owner. The Committee is satisfied that he is entitled to be heard by reason of his training partnership with Mr Simpson.
4.5 In support of the argument that Mr Rogerson be heard before the Committee Mr Hayes drew attention to Section 27 of the New Zealand Bill of Rights Act. In the light of the determination set out in paragraph 3.7 above it is not necessary to rule upon that submission.

5. THE PLEA BY MR SIMPSON

5.1 It is said for Mr Rogerson that Mr Simpson’s plea should not be accepted. This is because it is claimed that the plea is conditional upon a particular penalty being imposed. Paragraphs 2 to 5 of the letter of the 21st February 2009 are relied upon. Counsel went so far as to refer to the procedure followed as being akin to buying justice.
5.2 In considering the validity or otherwise of Mr Simpson’s plea all of the circumstances must be examined. There were two interviews following the positive test results. The first interview was on the 12th September 2008. Present were Mr Barry Kitto Racecourse Inspector, Mr Tom Taumanu Stipendiary Steward, Mr McIlraith and the Racing Manager for the Rogerson interests Mr Murray Gregory. Mr Simpson was asked a series of questions by Mr Kitto. The typed transcript of the interview runs to a little more than seven pages. There is nothing to suggest that there was any coercion or pressure applied upon Mr Simpson. Moreover he was surrounded by advisors. The second interview took place on the 28th October 2008. On that occasion Mr Carmichael spoke with Mr Simpson and there does not appear to have been any other persons present. Again the record of interview gives no indication of any pressure being applied to Mr Simpson. At both interviews he has answered questions straightforwardly and explained how DMSO came to  be administered to the three horses.
5.3 In our view the proper construction of the letter of the 21st February 2009 is that Mr Simpson was making clear that he wished the penalty to be in line with that imposed upon other persons in similar circumstances. As a result of the interviews which took place Mr Simpson was fully informed of the nature of the allegations and must have appreciated that charges would be laid under the relevant rules. Mr Simpson is an experienced public trainer who has worked not only in New Zealand but also in Australia and the USA. The penalties spoken of in paragraph 5 of the letter of the 21st February 2009 are in fact in line with those imposed in similar circumstances.
5.4 It is common practice in the Criminal Courts for Defendants, by their counsel, to seek sentence indications in order that they might review the plea which they are to make. One such case has very recently been reported in the newspapers involving the former New Zealand Rugby League coach. The practice has judicial sanction and is not objectionable.
5.5 We also have regard to the sworn statement on the 30th April 2009 made before the Notary Public in New Jersey. Moreover Mr Carmichael gave evidence of the discussions which he had with Mr Simpson in relation to the obtaining of that document.
5.6 Rule 1110 expressly provides that where a Defendant does not appear at the hearing of an information the alleged breach may be admitted by giving written notice to the Committee. This Committee is satisfied that Mr Simpson understood precisely what was alleged against him and that his guilty pleas have integrity. Nothing in the circumstances surrounding the interviews or the obtaining of the written statements leads to any concern about a want of understanding or any basis for a suggestion that some form of favour or inducement was offered.
5.7 Rule 1111(1)(d) provides that if a Defendant admits the breach of the rules the Judicial Committee shall find the breach proved. The Committee will return to that rule after considering the next submission made for Mr Rogerson.

6. TESTING OF THE SAMPLES

6.1 It is common ground that at the time the samples were first tested all were clear. There had been no test specifically taken for DMSO. Some time after June 2008 Harness Racing NZ became aware that DMSO may have been in use. In answer to a question from the Committee Mr Carmichael advised that there had been testing for this substance on earlier occasions but not for some two years. Around 500 samples which had been held in storage were retested. Of these six proved positive for DMSO.
6.2 For Mr Rogerson it was said that Harness Racing NZ could not re-test the samples. It was claimed there was no authority to do that. Mr Hayes submission was that the Rules of Harness Racing were in the nature of a contract and that contractual terms must be spelled out in clear terms. He pointed to Rule 881(1). That is in the following terms:
 ”Every Club or other body conducting the meetings shall hold the stakes in respect of each race for a period of seven (7) days or pending the result of the analysis of any sample pursuant to Rule 214(3) hereof whichever is the latter”.
 This rule Mr Hayes said indicated that there was an obligation upon Harness Racing NZ to analyse promptly. He submitted that there was no express provision about the number of tests which could be made. In the absence of such a provision he contended that only one test was authorised. Given the claimed contractual nature of the relationship contended for Mr Hayes submitted that if more than one test was to take place the parties must have expressly agreed to that.
 The power to require the taking of samples is in Rule 214(1). Pursuant to that rule there are swabbing instructions which have been issued. Substantial compliance with those instructions is sufficient: see Rule 214(4).
6.3 The swabbing instructions do not set any timetable. Neither the rules nor the instructions indicate whether there can be successive tests.  It was said that the contractual nature of the arrangement between trainers and Harness Racing NZ meant that once a sample had been tested the so-called agreement between the parties for testing to take place had somehow expired or come to an end. We do not consider that the characterisation of the relationship between licensed trainers and Harness Racing NZ as contractual to be accurate. The informant here is the governing body charged with the conduct of harness racing. It has power to make rules and regulations to best achieve that end. It does not negotiate contractual arrangements with persons who own or train horses. Those who choose to own or train horses must accept the rules and regulations which govern harness racing. Reference is made to Rule 102(1)(c) & (b). See also Rule 1002(1)(a) & (b).
6.4 Mr Hayes further pointed to there being no provision in the swabbing instructions or elsewhere in the rules or regulations to govern the storage of samples. That is not entirely correct inasmuch as in the swabbing instructions there is a provision which requires all samples to be dispatched to an approved laboratory for analysis. It is for Harness Racing NZ to approve the laboratory. No issue about absence of approval arises here – rather it is a question of the authority to retest a second sample or test a reserve sample after a significant period of time.
6.5 Mr Carmichael told the Committee that the storing of samples was governed by the physical space available. There are apparently no internal rules as to the period for which samples may be held.
6.6 For completeness it should be noted that Mr Hayes told the Committee in his reply submissions that he did not (could not) contest the accuracy of the analysis which demonstrated the prohibited DMSO levels.
6.7 Mr Jackson drew attention to Rule 1103(7). Shortly stated this provides that an information for a serious racing offence can be filed within five (5) years of the facts alleged in the information being brought to notice. Mr Jackson explained that it was not always possible to test for every prohibited substance and that it was appropriate, where suspicion later arose, for there to be the power to retest. Further Mr Jackson submitted, the retesting process had established a plain breach of the prohibited substance rule and if that breach could not be acted upon then horses which had finished behind the three horses in question would have lost out in circumstances where there was a proven breach. It was Mr Jackson’s submission that where proved breaches had occurred the integrity of harness racing required that the evidence be accepted and acted upon. Here the alleged breaches of Rule 1004 and the filing of informations is governed by Rule 1003(6). Nonetheless there is force in Mr Jackson’s submission.
6.8 It is unfortunate that the rules and the instructions do not spell out the position clearly. In those circumstances the Committee must examine what powers it believes that the rules and instructions truly provide. The interpretation of legal documents involves ascertaining what meaning they would convey to a reasonable person having all the background knowledge which is available to the person or class of persons to whom the documents are addressed. A written commercial contract between two parties is addressed to those parties only: a public document such as an Act of Parliament is addressed to the public at large. In this case the documents are addressed to all of those people who come within the provisions of Rule 102(1)(c) & (d). That is a wide range of persons and includes all those who are licensed under the rules, all who work in and around horses and all owners.
 As earlier indicated we do not accept that the Rules of Harness Racing and regulations and protocols made under those rules are analogous to a contractual arrangement. The more so when considering the provisions which have to do with the use of prohibited substances. In our view it is not necessary that every step which the governing body of Harness Racing NZ can take must be the subject of an express authorisation. The Prohibited Substance Rule No 1004 and supplementary instructions, procedures or directions issued under that rule are all aimed at preventing the use of prohibited drugs. The integrity of Harness Racing NZ depends in large part upon the ability of the authorities to detect prohibited drugs. Limiting that detection by allowing only one test of a legitimately obtained sample would be too restrictive. It would prevent the correction of error. It would prevent the authorities from acting upon subsequently acquired information which might point to a breach of the rule. It could encourage more freq  uent abuse of the rule if those who were so minded knew that only one test could ever be made.
6.9 We consider that the proper interpretation to be placed upon the rules, instructions and directions is that a second or subsequent test can take place provided of course that such a test meets the necessary levels of scientific certainty. There is no express restriction on the retesting of samples. In those circumstances the interpretation which best gives effect to the clear purpose and philosophy of the rules, instructions and directions is to be preferred. In our view the permitting of a second or subsequent test best gives effect to what the rules, regulations and directions seek to achieve.
6.10 For the reasons explained the submissions advanced for Mr Rogerson that a second test was unlawful is rejected. The Committee is satisfied on the evidence which it has heard that there was a breach of Rule 1004(1) & (4). This determination has been reached independently of the pleas of guilty made by Mr Simpson, the validity of which are accepted for the reasons set out earlier in this decision.

7. PENALTY

7.1 The position is governed by Rule 1004(7) & (8). Harness Racing NZ seeks a fine in the order of $750.00 on each of the three charges. It does not seek costs.
7.2 In the telephone conferences that occurred before the 1st May it was indicated on behalf of Mr Rogerson that an argument might be mounted contending that disqualification of the horses should not result in the forfeiture of stake money. In the event that argument was not developed by Mr Hayes at the hearing on the 1st May. The rule is perfectly plain: disqualification results in forfeiture of stake money and there is no discretion.
7.3 The Committee was referred to decisions involving a licensed trainer dated as recently as 18th December last. The Committee is familiar with those decisions.
7.4 Mr Simpson has pleaded guilty to each charge. The Committee has found the charges to have been proved. The arguments raised against the testing have been rejected and convictions will be entered in each case. Mr Simpson will be fined $750.00 on each charge. It follows that all three horses shall be disqualified and stake money won will be forfeited. This direction is made under Rule 1115(4). For the sake of completeness it is proper to record that the Committee was advised that the application to disqualify the horse Locked and Loaded was not the subject of any dispute by the owner.

8. COSTS

8.1 This has been an extended hearing. There were three pre-hearing telephone conferences and rulings followed each.  The hearing itself took several hours. Counsel for Harness Racing NZ travelled from Christchurch. Mr Rogerson’s counsel is domiciled in Hamilton. One of the members of the Committee is domiciled in Rotorua.
8.2 The manner in which the hearing developed resulted from Mr Rogerson’s wish to be heard. For reasons earlier explained the Committee held that he was entitled to be heard. On Mr Rogerson’s behalf there were two arguments raised. First that Mr Simpson’s pleas should not be accepted. Secondly that Harness Racing NZ does not have the authority to retest a sample or to test a reserve sample for prohibited substances. Despite the conscientious manner in which Mr Hayes pursued his client’s case there was little attraction in either of these arguments. On the issue of the plea Mr Rogerson was seeking to go behind the admissions made at interview and the written statements furnished by Mr Simpson while the two of them were in a training partnership. As to the retesting of samples it is not necessary to repeat what was said earlier other than to note that the whole argument for Mr Rogerson proceeded not by reference to any rule or regulation which was a bar to retesting but rather by a strained reference to the rul  es for the interpretation of commercial contracts.
8.3 In the circumstances as just explained a Costs Award is appropriate. The Committee is not minded to make a Costs Award in favour of Harness Racing NZ. Much of the difficulty that has arisen here would have been avoided if both members of the training partnership Messrs Simpson and Rogerson had been charged. The Committee has ruled that Mr Rogerson was entitled to be heard even although he had not been charged. Once Mr Rogerson obtained the right to be heard the Committee then gave consideration to the arguments advanced on his behalf. They had little merit. The consequence of all of this is that the hearing was extended beyond the time that it might reasonably have taken and in part, at least, Mr Rogerson is responsible for that circumstance. He will pay costs to the JCA of $500.00.
 Dated this 15th day of May 2009

Murray McKechnie
Chairman and on behalf of
Bryan Rowe

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Rules: 1004.1, 1004.7, 1102.4.c, 1111.1.d, 881.1, 214.3, 214.1, 214.4, 102.1.c, 1002.1.a, 1103.7, 1003.6, 1115.4

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