Non-Raceday Inquiry 22 Aug 2005 – M Purdon

hearingid: 652a45744613b46c85af2ba85d6ad8f6

informantnumber:

horsename:

hearing_racingtype: thoroughbred-racing

startdate: 01/01/2001

newcharge:

plea:

penaltyrequired:

decisiondate: no date provided

hearing_title: Non-Raceday Inquiry 22 Aug 2005 - M Purdon

charge:

facts:

appealdecision:

isappeal:

submissionsfordecision:

reasonsfordecision:

Decision:

The defendant, Mr Mark Purdon, admitted a breach of Rule 1001(1)(v)(i) in that between 26 March and 16 April 2004 he acted in a manner detrimental to the interests of harness racing in the circumstances in which he administered a substance to the horse Light and Sound which was taken to a racecourse for the purpose of engaging in a race.

The defendant, Mr Mark Purdon, admitted a breach of Rule 1001(1)(v)(i) in that between 26 March and 16 April 2004 he acted in a manner detrimental to the interests of harness racing in the circumstances in which he administered a substance to the horse Light and Sound which was taken to a racecourse for the purpose of engaging in a race.

In accordance with Rule 1111(1)(d) we find the charge proved.

The penalty provision is Rule 1001(2) which provides for the imposition of a fine not exceeding $25,000, and/or suspension from holding a licence for a specific period or for life, and/or disqualification for a specific period or for life. In addition, Rule 1001(3) confers a discretion to disqualify the horse from the race. The provision states: "The Judicial Committee may in addition to or substitution of any penalty imposed under sub-rule (2) hereof disqualify from any race and/or for any specific period or for life any horse connected with the serious racing offence."

Mr Purdon was first charged with breaches of the Rules relating to the administration of a prohibited substance (namely informations nos. 64738 served 2 June 2004, 64739 served 22 July 2004, 65491 & 65492 served 13 August 2004, and 65017 served 10 November 2004). At the hearing Mr Lange sought leave to withdraw these informations. Mr Davidson did not oppose the application. The informations were withdrawn with the leave of the Committee and information 65297 alleging the breach which Mr Purdon has admitted was substituted.

We set out the summary of facts as helpfully contained in the submission of counsel for Harness Racing New Zealand (HRNZ).

--

--

1. In April 2004 the Police and HRNZ commenced an investigation into the alleged use of a substance referred to as "Blue Magic".
--
--

--

2. A sample of Blue Magic was obtained from an informant and analysed. The sample was found to contain Propantheline Bromide at a level of 2 mg/ml.
--
--

--

3. On 6 May 2004 the Police spoke with Mr Robert Asquith, who was identified as being the manufacturer and supplier of Blue Magic.
--
--

--

4. Mr Asquith advised the police that the principal ingredient in the substance was Propantheline Bromide. The product was sold to owners and trainers. The price varied between different owners and trainers, some trainers getting it for nothing and some for $150. Asquith also acknowledged that on some occasions he supplied water with blue dye in it. [In his statement to the Police Mr Asquith stated "it is not a ?go quick?, the product is primarily for peptic ulcers and it only helps horses that suffer from ulcers".]
--
--

5.        Mr Asquith stated that he sold to Mr Purdon 10 phials at $150 per phial, and that he gave Purdon the instruction that it was to be injected 6 hours out from the race for the best results.

--
--
--

6.       On 6 May 2004 the Police visited the training establishment operated by Mr Purdon. A search failed to locate any phials of Blue Magic.

--
--

7.      Mr Purdon acknowledged knowing Mr Asquith and having met him with the owner of Light and Sound, Mr John Seaton, at a restaurant [at the Christchurch Casino].

--
--

8.      On 14 May 2004 Mr Purdon visited the Hornby Police Station at the invitation of the Police to collect items taken from his property under warrant. Mr Purdon advised the Police that he met Mr Asquith through Mr Seaton and following that meeting had discussions with Mr Asquith about the results of blood tests conducted on his horse by his vet, Mr Bishop, as Mr Asquith was said to be able to read and interpret such results. [Mr Purdon added that he had been sent faxes of such results and was impressed by Mr Asquith's knowledge and that Mr Asquith had got back to him with substances that the horses needed, including Selenium.]

--
--

9.      Mr Purdon admitted purchasing 10 phials from Mr Asquith. He thought he had a horse it might suit because he believed the horse could be a bleeder and that the substance could help bleeders. Mr Asquith told him that no positive swab would be returned. He acknowledged using just two of the phials, throwing out the remaining eight phials following publicity in relation to the related Australian investigation.

--

--

--

10. Mr Purdon gave a full explanation to the Police. He acknowledged injecting the horse 6 hours before the race, and thought it may have helped for the reasons he obtained the substance, that the horse may have been a bleeder.
--
--

--

11. He acknowledged using the substance a second time and stated the horse did not go that well on the second occasion.
--
--

--

12. The only persons who knew that he had used the substance were himself and the owner, Mr Seaton.
--
--
--

13.     Mr Purdon then telephoned the General Manager of HRNZ to apologise for his actions as he became aware that his conduct was inappropriate and what appeared to him to be a thoughtless but inappropriate action had implicated him in something of a more serious nature as the Harness Racing investigations were publicised.

--
--
--

14.     Throughout the conversation, Mr Purdon was contrite and remorseful. He told the General Manager of his visit to the Hornby Police Station and admitted using the blue substance on the horse Light and Sound, and that it was the only horse he had used the substance on. He apologised and expressed concern at the damage his actions could do to the industry.

--
--
--

15.    At the time the horse raced the Racing Laboratory was not testing for Propantheline Bromide.

--
--

16.     In this case there was no evidence of use of any substance other than Mr Purdon's own admission.

--
--

17.     For the avoidance of doubt, the charge is not a charge of administering Blue Magic as a prohibited substance.

--
--

18.     Rather the charge is directed at the acquisition and use of a substance on a horse on race day, for the reasons set out above, where Mr Purdon failed to discharge his responsibility to ascertain the contents of the substance he obtained and used.

--

Mr Lange's first submission was that the penalty regime of the Rules falls within three general tiers. These he identified as:

--

--

1. For general breaches of the Rules a penalty of a fine not exceeding $5,000 and/or suspension or disqualification for a period not exceeding 12 months.
--
--

--

2. A penalty for a breach of the prohibited substance rule (formerly drug negligence) of a fine not exceeding $10,000 and suspension or disqualification for a period not exceeding five years.
--
--

--

3. Serious racing offences (formerly corrupt practices) which prescribe penalties of a fine not exceeding $25,000 and suspension or disqualification for a period up to life.
--

He submitted that the scheme of the Rules was clear and that serious racing offences were to be viewed, as they were described, that is as serious offences for which significant penalties could be imposed.

The charge was emphasised to relate to the acquisition and use of a substance upon a horse and Tribunals were observed to have repeatedly commented on trainers' obligations in such circumstances in the context of the drug/prohibited substance rules. It was submitted that those comments applied equally in the context of this charge. In his oral submission Mr Lange gave particular emphasis to the decision in Harper v Racing Penalties Appeal Tribunal of Western Australia (1995) 12 WAR 337, 347 where Owen and Anderson JJ in delivering their joint judgment in the Supreme Court of Australia stated:

"If it is correct to think that the financial wellbeing of the industry depends significantly on the maintenance of betting turnover, the need to maintain integrity in horse racing, and to do so manifestly, is easily seen to be imperative and of paramount importance. It may well be anticipated that unless racing is perceived to be fair and honest, people may be discouraged from betting."

These principles, we observe, are no less relevant in the New Zealand context and indeed are reflected in rule 1114(2) which provides:

"On finding a breach proved the Judicial Committee may impose any penalty and/or affect any remedy provided by these Rules. In imposing a penalty or affecting any remedy provided in these Rules the Judicial Committee may have regard to such matters as they consider appropriate including:-

(a) the status of race;

(b) the stake payable in respect of the race;

(c) any consequential effects upon any person or horse as a result of breach of the Rule;

(d) the need to maintain integrity and public confidence in Harness Racing."

Mr Lange also referred to Nicholson (1994) Racing Appeal Reports 943, 945 where the Authority stated:

"To feed a horse an unknown product before it was to race is, at the very least, to act with gross negligence?. There is nothing more likely to bring down the integrity of the racing industry generally than the fact that horses perform at meetings when they have been administered, whether innocently or for some ulterior motive, a prohibited substance."

While it was inappropriate to impose a penalty as if the charge was a prohibited substance administration charge, Mr Lange submitted that in this case the penalty should fall in a range higher than that for a breach of rule 1004 but slightly below the administration rule. He said that it could not be concluded that Mr Purdon acted without ulterior motive. Mr Purdon had a horse which he believed was a bleeder and that the substance could help bleeders. He purchased 10 phials. He was told to inject the substance six hours before the race "for the best results".

He submitted where a person administers a substance, which is believed will assist a horse, six hours before it races "for the best results", the only logical inference to draw was that the substance was administered with the belief and purpose that it would improve the performance of the horse. After the first administration Light and Sound won the race, and the substance was also administered a second time. After it raced on that occasion Mr Purdon noted the horse did not go so well. It was the informant's submission this was a case of a breach of the Rules where a substance had been acquired and then used with the purpose and belief to improve the horse's performance, on not one but two occasions.

Mr Lange submitted the appropriate starting point was disqualification for a period of 12 months before there was a balancing of aggravating and mitigating features.

Mr Davidson emphasised that Mr Purdon's acknowledgement was not of the use of a prohibited substance but use of a substance in circumstances when as a trainer he took insufficient and no proper precautions to determine the nature of the substance. Mr Purdon made frank admissions. But for his statements there would be no basis for the charge. There had never been a positive swab.

Mr Davidson re-iterated that Mr Purdon did not know at the time he administered the substance what was in it, and still did not. Although the police statement recorded that he thought it was performance enhancing, this wording was denied, but he did acknowledge that he thought the horse performed better (and this confirmed his suspicion that the horse was a bleeder). His explanation provided the evidence against him, but he could not acknowledge, as he had not the knowledge, that the substance used contained Propantheline Bromide or any other particular substance. He simply understood that it was an enzyme.

Mr Davidson provided a fuller account of how the defendant came to administer the substance. Light and Sound had performed very well in its first year, moderately in its second year, but was not training or trialling as well as his record indicated in early 2004. Mr Purdon had a suspicion that it might be a bleeder although there was no direct evidence of that. Mr Purdon's thinking was based on the history of the horse from its outstanding 2-year-old form. A first up run was the best, the horse suffered when pressure went on, and it was difficult to keep in condition.

The late Mr John Seaton as the owner knew of Mr Purdon's concern. The horse clearly had considerable ability. Mr Seaton introduced him to Mr Asquith at the Christchurch Casino telling the defendant that Mr Asquith might be able to help if Light and Sound was a bleeder. Mr Purdon spoke with Mr Asquith over a range of subjects. He said he thought Light and Sound might be a "bleeder", and Mr Asquith said he had something which might help which he described as "an enzyme". There was no reference to "Blue Magic" (a name not known to the defendant at the time) and no further discussion took place. Mr Asquith told Mr Purdon that he could read blood tests or interpret them, and that was of interest given that the horse was a bleeder. In March 2004 the defendant sent Mr Asquith blood tests that were taken from six horses and Mr Asquith responded by telephone analysing the results in a way which seemed accurate and informed, so (to Mr Purdon) Mr Asquith seemed to know what he was talking about.

At a second meeting at the Casino, which had not been arranged, Mr Purdon asked Mr Asquith about the substance earlier discussed, which might help a bleeder. Mr Asquith said it did, named his price, and again said that it contained "an enzyme". Mr Purdon asked if it was legal and was told it would not return a positive swab. There was no further explanation than that.

After the admitted administration on 26 March the horse ran well and the defendant thought his view the horse was a bleeder was probably accurate. A second administration took place not the next time the horse raced on 10 April but the race after that, on 16 April, and not six hours before the race but early in the day. Mr Purdon was unaware of the Weightman investigation in Australia until told about it by Mr Asquith at the Casino. He asked Mr Purdon if he had seen that Weightman was accused in relation to substances and 60 phials of "this stuff" which the defendant took to be a reference to the blue substance. Mr Purdon was very taken aback. He asked if there was anything "wrong" with the substance that he had obtained from Mr Asquith, who reassured him that he "should be alright".

Mr Davidson described the defendant's actions as follows: "It was incautious and inappropriate for a trainer to act on these indications, not knowing what was in the substance, and not making further and proper inquiry as to whether this substance would or would not infringe the rules. While foolish and inappropriate, his overall honesty of purpose can be gauged by the fact that even without a positive swab, and with no knowledge held by anyone other than himself (and perhaps John Seaton) that the substance was administered, he admitted his actions. Mr Asquith did not know of and could not prove the administration. Only Mark Purdon could provide evidence of that, which he did. No trainer or anyone else involved in the industry can, or can be seen, to act carelessly in the administration of substances. There must be vigilance in any administration. Mark Purdon erred in that. He does not shy away from the irregularity of what he did, and thus accepts that this will be a measure to be brought to account by the Committee." He emphasised in his oral submissions that Mr Purdon was clear in his instructions and that he did not attempt to resile or retreat from his actions.

Mr Davidson called Mr Breckon, a prominent owner with 12 years' experience in the industry, who had known Mr Purdon for ten years and had had a number of horses in the Purdon barn. He had raced horses in Australia and the US. He had had horses with five different trainers and they had stake earnings of over a $1 million. He currently had seven or eight horses in work, two of which were with the defendant. He spoke to Mr Purdon's achievements, describing him as a "champion". He stated that he visited the Purdon stables on a fortnightly basis and had found them to be "run like clockwork". He expressed the view that he had never had occasion to doubt Mr Purdon's honesty, that the matter before the Committee must have arisen out of a "misunderstanding" and, were it otherwise, he would not hesitate to remove his horses.

Mr Davidson concluded his submission by stating that Mr Purdon is a central and important figure in racing, and his own rehabilitation necessitated his being involved in the industry, not standing outside it. He should be allowed to respond in a determined and responsible way by continuing his work. It was a case where he should be allowed and encouraged to stay in, or at worst return promptly to training, and the approach taken in Scott would be appropriate in this case. The magnitude of the effect felt by him and his family, and the suffering which had been endured was, he said, out of all proportion to the breach.

He stated the matter could be dealt with by a fine of "real consequence".

We obtain only limited assistance from the two cases under Rule 1001(l)(v)(i) to which counsel both made reference.

In Simpson (28 March 1994) a Judicial Committee imposed a period of 9 months' disqualification plus a fine of $2,000 on the first charge and 3 months disqualification concurrent plus a fine of $1,000 on the second charge of doing an act detrimental to the interests of harness racing. The charges arose out of the administration of unknown substances to a horse, the first in the horse latrine and the second at the trainer's stables prior to the horse being taken to the racecourse. The circumstances of the administrations were furtive behaviour, captured on a hidden video camera, and with a staff member acting as a lookout. The decision turned on the administration of what were perceived to be performance enhancing substances, despite Simpson's explanations.

In Scott (13 November 2003) the Judicial Committee imposed a fine of $5000 plus costs of $1600 where the defendant injected a horse with a homeopathic substance prior to racing. The substance and the swab taken from the horse proved negative for banned substances and it appears the Committee accepted Scott's explanation that he believed it was not a banned substance and would not affect performance. The horse was scratched prior to racing. Scott admitted a breach of Rule 1001(l)(p), committing a dishonest act, on two separate occasions seeking permission from a swabbing official to be allowed to take Penny Gem into the urine box to void. The request was false as the purpose was to administer the injection of a substance named Vetradyne. He also admitted a breach of rule 1001(l)(v)(i) in that he did an act deemed to be detrimental to the interests of racing by administering an intravenous injection of Vetradyne to relieve pain.

Scott was held to have acted dishonestly in seeking access to the box, and the case proceeded on the basis that he believed it was not a drug or a banned substance and would not affect performance. While the absence of a specific rule referring to the injecting of horses on race day did not preclude a breach having been committed, it was held that "Mr Scott showed a disregard for the importance of the integrity of racing". The purposes of sentencing were described in Scott to be to punish but not be retributive, to deter others as well as the defendant, to mark the disapproval of the authorities of the conduct, to look to the offender and give the opportunity to rehabilitate, and to maintain the integrity of the industry. The last matter was held to be a paramount consideration. It was noted it was extremely unlikely that Scott would ever act in this way again and his rehabilitation had commenced. He was a man of high reputation and character and committed to the industry.

Scott was entitled to significant credit for his admissions, for his openness and frankness. He had highly supportive references. He believed that he was breaking no rule in using Vetradyne. There was no intention to break a rule, and the use of the box was in fact to avoid "detriment", and he had suffered significant cost and adverse publicity. There was found to be "considerable detriment" notwithstanding these factors, because to those not wholly in possession of the facts "the perception of a leading trainer injecting a horse on a race track prior to that horse running in the richest race is damning".

We note each case can be distinguished from the case of Mr Purdon in the difference in the circumstances of the administration, and in particular, the conclusion in Simpson that these were performance enhancing substances. In addition, in neither case was there the aftermath and consequences as in Mr Purdon's case.

The breach of the Rules of Harness Racing which Mr Purdon has admitted has no element of administration or attempted administration of a prohibited substance to the horse Light and Sound. This matter is significant in determining the defendant's culpability and the appropriate penalty for his conduct. We do not sentence him on the basis that he is "a drug cheat" and media and public speculation to this effect is completely disregarded by this Committee. We are fully aware of the tragedy that has surrounded the so-called "blue magic affair" which has consumed two lives with resulting trauma to families, friends and colleagues. It would not be over-stating the matter to comment that the investigations have shaken the very foundations of the industry. But we must not and do not sentence Mr Purdon on the basis that he was the cause of or even the catalyst to these events. Such a conclusion is not justified by the facts as presented to the Committee.

The penalty is to be determined on the basis that the most that can be said is that there was a possibility the substance administered to Light and Sound was a prohibited substance, as indeed there must always be in circumstances where someone administers a substance without knowing fully what is involved. This is a very unusual case in the annals of racing, in that there was no swab or analysis of the material that was administered (unlike Scott). The case ultimately depends on what Mr Purdon admitted.

The key difference between counsels' analysis of the summary of facts centred on the submission of counsel for HRNZ that "it could not be concluded that Mr Purdon acted without ulterior motive." Where a person administers a substance, which they believe will assist a horse, six hours before it races "for the best results", the only logical inference to draw, Mr Lange said, was that the substance is administered with the belief and purpose that it will improve the performance of the horse. After the first administration the horse won the race, and the substance was then administered a second time. It was thus his submission this was a case of a breach of the Rules where a substance had been acquired and then used with the purpose and belief to improve the horse's performance, on not one but two occasions.

The defendant's counsel frequently emphasised that while Mr Purdon's actions were incautious, even unwise, there was no ulterior motive. Mr Purdon used the unknown substance to treat a horse which, in his view, was a "bleeder". He had not sought out Mr Asquith but had been introduced to him by Mr Seaton as someone who might be able to help with the horse if Mr Purdon's concerns as to bleeding were valid. Mr Purdon's suspicions to this effect have now been substantiated in that successful treatment has been given to Light and Sound by Mr Brett Pelling, his trainer in the US where the horse is now racing. Mr Pelling stated the horse was on 8cc (double the standard dose) of T-Salix (a legal medication in that country for bleeding) and the horse had since "blossomed" and was "recovering well from his races".

Counsel for HRNZ suggests a starting point of one year's disqualification before aggravating and mitigating factors are taken into account. Counsel for the defendant suggests that the matter can be dealt with by way of a substantial fine. We prefer Mr Lange's submission and adopt a starting point of one year.

This starting point is fixed after having regard to the aggravating factors relating to the breach. In this regard we must consider the harm resulting from the breach and the degree of culpability of the defendant. The first point is that we accept this is not a case of the administration of a prohibited substance. We must impose a penalty for the breach of rule 1001(1)(v)(i), specifically that Mr Purdon through his actions in administering an unknown substance to Light and Sound on not one but two occasions did an act detrimental to racing. That is not to say that the fact the particular substance is unknown is irrelevant to our inquiry. Perhaps the most puzzling aspect of this case is the circumstances in which a trainer of the defendant's acknowledged depth and breadth of experience came to purchase a substance not from a veterinarian clinic but from a non-approved source and then administered on not one but two occasions this unknown substance to a top racehorse. Mr Purdon's actions can truly be described as being unfathomable.

What is established.

The substance changed hands for $1,500 for 10 phials. A not insubstantial sum. The substance was said to contain "an enzyme" which would not be detected by a raceday swab. The purveyor of the substance acknowledged to the Police that on one occasion the substance that he sold was no more than water adulterated with blue dye. The transaction was a consequence of two discussions at the Christchurch Casino. Mr Purdon was introduced to the late Mr Asquith by the owner of Light and Sound, the late Mr Seaton. We are aware that Mr Seaton and Mr Purdon were close personal friends and that Mr Purdon leased his property from Mr Seaton. We accept this close relationship may have influenced Mr Purdon's actions but this of course does not explain or justify them. There was mention of the fact that the substance was best given six hours before the race and that it would not be detected in any swabbing of the horse.

Whether Mr Purdon believed he was giving a homeopathic remedy which would assist with bleeding or had a more sinister motive, an "ulterior motive" as Mr Lange says, need not ultimately be determined by this Committee. Putting Mr Purdon's actions in the most favourable light, we have no doubt that giving an unknown substance acquired from a virtual stranger whom he met in non-racing surroundings at the apparent instigation of the owner (and close personal friend) to a racehorse within hours of starting in two races for tightly assessed horses, is highly foolish and a blatant disregard of the caution required of licensed trainers under the Rules of Harness Racing, and, even more importantly, is a significant breach of rule 1001(1)(v)(i) which requires condemnation by this Committee. Notwithstanding his being impressed by Mr Asquith's ability to read blood counts, to adopt Mr Davidson's words, Mr Purdon acted "in a way no trainer can or should".

In determining penalty in the circumstances of this case the integrity of racing has to be and has been at the forefront of our deliberations. We have no doubt that a deterrent penalty is required in the interests of deterring any other licence holder who might be tempted to behave in a similar fashion. Arguably Mr Purdon does not need the stamp of this Committee to emphasise to him the interests of specific deterrence. The publicity and public opprobrium that has accompanied the disclosure of the defendant's actions is evident to the Committee and indeed for all to see. The penalty this Committee imposes must be viewed in this context. The public and media interest in this case has been unprecedented in modern times, at least in harness racing in New Zealand. There is no doubt one frenzy feeds off the other, and the defendant has been subjected at times to wild and unsubstantiated allegations. In addition to verbal abuse left on Mr Purdon's cellphone, the family has endured graffiti sprayed on farm buildings and protests at the gate of the property.

We see no aggravating factors personal to the defendant, but many mitigating ones. He is aged 41. He began work as a stable hand at the age of 15. He has been a licensed trainer since 1995/1996. He employs eight people and currently trains some 40 horses. He is highly regarded in the industry. His previous record is exemplary and we have both read and listened to testaments of his good character. They speak in glowing terms of his stellar performance in and dedication to harness racing.

The mitigating factors are numerous and weighty, but in particular we note that the two administrations would never have been detected had the defendant not made a voluntary disclosure. This is matter of great weight. Significantly, his admission of the breach has saved the time and cost of a prolonged inquiry. While the plea is certainly not at the earliest available opportunity we note that it was immediately after the amended information was laid and that much of the delay was to due to procedural matters in the High Court which were not specifically related to the defendant's case and were eventually withdrawn. The mitigating factors justify in our view a reduction of

sumissionsforpenalty:

reasonsforpenalty:

penalty:

hearing_type: Old Hearing

Rules: 1001.1.v.i, 1111.1.d, 1001.2, 1001.3, 1114.2, 1001.l.v.i, 1001.l.p

Informant:

JockeysandTrainer:

Otherperson:

PersonPresent:

Respondent:

StipendSteward:

raceid:

race_expapproval:

racecancelled:

race_noreport:

race_emailed1:

race_emailed2:

race_title:

submittochair:

race_expappcomment:

race_km:

race_otherexp:

race_chair:

race_pm1:

race_pm2:

meetid:

meet_expapproval:

meet_noreport:

waitingforpublication:

meet_emailed1:

meet_emailed2:

meetdate: no date provided

meet_title:

meet_expappcomment:

meet_km:

meet_otherexp:

tracklocation:

meet_racingtype:

meet_chair:

meet_pm1:

meet_pm2:

name: