Non Raceday Inquiry – AP & LM Neal

Decision: --

An Information was lodged by Racecourse Inspector Mr TR Carmichael against Andrew Peter Neal and Lynette Margaret Neal alleging that they were in breach of Rules 1004(1) and 1004(2) in that they were the joint Trainers and the persons for the time being in charge of the horse Arid which had been taken to Alexandra Park for the purposes of engaging in a race namely the Golden Sun Mobile Pace, Race 8 at a Meeting conducted by the Franklin Trotting Club on the 1^st day of December 2006 and that they failed to present the said horse free of prohibited substances

An Information was lodged by Racecourse Inspector Mr TR Carmichael against Andrew Peter Neal and Lynette Margaret Neal alleging that they were in breach of Rules 1004(1) and 1004(2) in that they were the joint Trainers and the persons for the time being in charge of the horse Arid which had been taken to Alexandra Park for the purposes of engaging in a race namely the Golden Sun Mobile Pace, Race 8 at a Meeting conducted by the Franklin Trotting Club on the 1^st day of December 2006 and that they failed to present the said horse free of prohibited substances namely Bicarbonate or other alkali substance as evidenced by a blood TC02 level of 39.0 mmol/L and that accordingly they are subject to the penalty provisions contained in Rules 1004(7) and 1004(8) of the New Zealand Rules of Harness Racing.

Rule 1004(1) states:

Rule 1004(2) states:

The definition of Prohibited Substance is contained in Rule 1005 and in the Prohibited Substance Regulations.

Mr Lange provided to the Committee a very helpful booklet of Prosecution Papers. This contained not only the Briefs of Evidence for Mr Lange's witnesses but also the Certificate of Analysis of the sample taken from Arid and the report from Mr RG Howitt, a Racing Chemist employed by NZ Racing Laboratory Services Limited at Avondale in Auckland. The booklet also contained copies of the various exhibits to be produced as well as copies of Blood Analysis Reports by Gribbles Veterinary Services in Hamilton in relation to the samples taken from Arid on the 4^th of December 2006, the 12^th of December 2006 and the 20^th of December 2006. A copy of the Decision given by the Appeal Tribunal on the 19^th of February 2002 in the case of HRNZ v CR Thornley was also presented to the Committee.

Finally the Committee was presented with a copy of a letter dated the 5^th of January 2006 from Mr Edward Rennell, General Manager of HRNZ to Mr Carmichael giving him permission to lodge the Information against Mr and Mrs Neal. This satisfied the provisions of Rule 1103(4)(c).

In his opening, Mr Lange referred to the Rules under which Mr and Mrs Neal had been charged and also drew the Committee's attention to Rule 1008 and Rule 1008A.

Rule 1008 states:

"In the absence of any express provision to the contrary in any proceeding for a breach of these Rules:

Rule 1008A states:

Mr Lange advised this Committee that in his opinion the effect of these Rules is clear in that where a horse is presented to race with a TC02 level above 35 mmol/L the horse is deemed to be presented in breach of the Prohibited Substance Rule (Rule 1004). It is not necessary for the Informant to prove what has caused the elevated level or the person responsible.

Mr Lange further submitted to the Committee that the Rules impose a strict obligation on the Trainer to ensure the horse is presented free of a Prohibited Substance.

In making his opening submissions Mr Lange did however tell this Committee that it was not being alleged by HRNZ that Mr or Mrs Neal deliberately administered any particular substance to Arid but Mr Lange reinforced that this was an offence of strict liability. In further support of this Mr Lange advised this Committee that

To adopt the proposition that there must be proof that a Prohibited Substance was given/ingested would have the effect of making a threshold meaningless.

Mr Lange then addressed the proposition that the threshold could be exceeded without administration and stated that this had been considered by previous judicial bodies in racing firstly in the case of HRNZ v Hamilton (9/10/01) and secondly in HRNZ v Thornley (19/2/02).

In Hamilton the Judicial Committee set out in its decision the probability of various levels being exceeded. The probability of a level of 39.0 mmol/L was 1 in 2,236,920.

In Thornley the Appeal Tribunal stated:

"From all the information before us we are driven to agree that the elevated levels in the Appellants horses were due to administration to the horse of Bicarbonate or other Alkalising Agent. We further conclude, but particularly in relation to the levels of 40.9 that they simply cannot be normal and could only have been obtained from the administration of a substantial dose of Bicarbonate or other Alkalising Agent."

Mr Lange advised the Committee that he had four witnesses but he also advised that the Certificate of Analysis of Sample dated the 6^th of December 2006 and signed by Mr Rob Howitt, Racing Analyst and Dr Geoff Beresfort, Official Racing Analyst together with the Evidence Brief dated the 21^st of January 2007 from Mr Robert Graeme Howitt was accepted by the Defendants and admitted into evidence. This was acknowledged by Mr Branch on behalf of the Defendants.

Mr Lange then called Dr Florus Oskam to give evidence. Dr Oskam was officially present as the Race Night Veterinarian at the Race Meeting conducted by the Franklin Trotting Club. His duties included the supervision of post race swabbing and taking pre-race blood samples as directed by the Racecourse Inspector. Dr Oskam read from his Brief of Evidence and he confirmed that the record showed that all starters in Race 8 at the meeting were pre-race sampled for TC02 levels. This involved the taking of two 4ml Heparin tubes of blood from the vein of each horse.

Dr Oskam produced as Exhibit "1" a copy of "Notice to Owner, Trainer or Authorised Representative such Notice dated the 1^st day of December 2006 and related to the horse Arid."

Dr Oskam identified his signature on that form. The "Bicarbonate Report" for Race 8 was produced as Exhibit "2" and Dr Oskam identified his signature on that form.

Dr Oskam stated that at the time of taking the blood samples from Arid he did not note any abnormalities about the horse and nothing was brought to his attention by the Trainers. Dr Oskam reported that about 30 minutes after Race 8 that Mr Neal had asked him to examine Arid because the horse had not raced up to expectations. Dr Oskam reported that the clinical examination of Arid revealed an elevated heart rate of 84 beats per minute but that rate lowered slightly to 80 beats per minute after 10 minutes. During the examination Arid coughed twice however auscultation of the chest sounded normal and the horse's temperature was also normal at 38 degrees. From his recollection Dr Oskam stated that the horse was agitated and pawing the ground when first presented however he did note that the horse settled down over the time that he was examining it.

It was suggested either by Dr Oskam or Mr Neal that the horse should be medicated for the trip back to Cambridge and Mr Neal preferred that Flunixin be used.

In cross examination Dr Oskam thought that it had been a mutual decision between Mr Neal and himself to medicate Arid for the trip back to Cambridge.

Dr Oskam was asked whether he thought Arid's post race heart beat was normal and he stated that it was. Dr Oskam had undertaken some heartbeat tests but only on a sample of 10 horses and he acknowledged that several factors such as fitness of the horse and so on are factors that have a bearing on the heartbeat rate. He said that generally horses' heartbeats are worked out in ranges. In his opinion Arid was completely quiet when he took the pre-race blood sample and that Arid's heartbeat rate was normal when he undertook the clinical examination post race.

Dr Oskam was also asked if he discussed with Mr Neal whether Arid might have had post race colic and he stated that it was common for horses to have post race colic.

In answer to Mr Lange, Dr Oskam explained that post race colic was abdominal pain that a horse suffered and it was quite common. He also explained that a heartbeat rate of 84 was not in the range of resting heart rates but was not unusual for post race heart rate. Post race heart rates were always elevated. Dr Oskam also explained that in the clinical examination of Arid he listened for gut sounds and noted that Arid was quite normal. He also did not notice excessive sweating or any scouring pre-race.

Mr Lange then called Racecourse Inspector Mr TR Carmichael. Mr Carmichael also read from his Brief of Evidence and he confirmed that he was officially present at the Race Meeting conducted by the Franklin Trotting Club at Alexandra Park on the 1^st of December 2006. During the course of the Meeting he was responsible for the selection of horses that were to be pre-raced sampled for TC02 testing; the supervision of sampling and for keeping a contemporaneous record of all horses tested. He confirmed that all horses in Race 8 were sampled and that he accompanied Dr Florus Oskam and was present when each of the horses was sampled. Mr Carmichael referred to Exhibits "1" and "2" and confirmed the signatures by Mr Andrew Neal and Dr Oskam on Exhibit "1" and Dr Oskam on Exhibit "2".

Mr Carmichael also stated that during the process he did not notice any abnormalities about Arid and neither Andrew nor Lynette Neal had brought anything to his attention. Mr Carmichael confirmed the pre-race bloodtesting procedure which he supervised. A copy of the Certificate of Analysis dated the 6^th of December 2006 was produced by Mr Carmichael.

Mr Carmichael then stated that he spoke to Andrew and Lynette Neal at their stables on the 7^th of December 2006 when he advised them of the elevated TC02 level for Arid and he obtained a written statement signed by them in which they both denied the administration of any alkali substance to Arid before it raced at Auckland on the 1^st of December 2006.

Mr Carmichael then reported that during a search of the feedroom at the Neal property he saw a brown container which was labelled "Bicarb" and he produced a photo from the feedroom showing the Bicarb container on a set of shelves with numerous other containers. Mr and Mrs Neal had assured him that no Bicarbonate had been given to Arid.

Mr Carmichael received from Andrew Neal copies of analytical reports from Gribbells Veterinary at Hamilton and these had been referred to Dr Andrew Grierson the Veterinary Consultant for HRNZ.

Mr Carmichael produced the official result for Race 8 at the Franklin Trotting Clubs Meeting on the 1^st of December 2006 and also the Race Record for Arid.

Mr Carmichael advised this Committee that in February 2001 the Executive of HRNZ approved fundamental changes to the Blood Bicarbonate Testing System. This involved the setting of an arbitrary level of 35.0 mmol/L. The effective investigative level was 36.2 mmol/L and testing under the new system commenced on the 1^st of June 2001. Since the 1^st of June 2001 a total of 14,913 horses have been pre-race blood tested for TC02 levels and Mr Carmichael said that of that total, 20 have been investigated and prosecuted as a consequence of returning a level above 36.2 mmol/L and that there have only been four instances including the result from Arid where the result has been 39.0 mmol/L or over. Mr Carmichael produced all of those records for the Committee and also the TC02 records for all horses trained by Andrew and Lynette Neal.

Mr Carmichael was cross examined as to his reasons for producing Arid's race record and he stated that he was trying to point out that Arid had gone as fast as ever but he did acknowledge that various factors come into account when times are compared. Mr Carmichael acknowledged that Mr and Mrs Neal co-operated with him and in discussion about the Bicarb container he agreed that it may have been a medium sized container.

In discussing guidelines for penalties Mr Carmichael did acknowledge that there was a scale for Rule 1004.

Mr Carmichael was then questioned about a letter dated the 11^th of February 2001 addressed to him from Professor Rueben J Rose from the University of Sydney in respect to the horse Yulestar. A copy of this letter was presented to the Committee.

Mr Carmichael stated that the old files relating to blood testing were destroyed when the new system came in because they were not deemed to be relevant. Mr Carmichael was questioned further concerning the samples taken from Yulestar in mid December 2000 and he stated that these were dealt with under the old system. Mr Carmichael explained the old system and then explained the steps taken under the new system. When questioned further about the graduated penalties sought by HRNZ under the new system he did say that the penalties were formulated very early on when the new system came into effect. Mr Carmichael said that the new system used completely different methodology and an Auto Analyzer is now used in respect to the samples.

Dr Andrew Grierson then gave evidence. He confirmed his Veterinary qualifications and experience and also told the Committee that he is the Chief Veterinary Advisor to Harness Racing New Zealand and New Zealand Thoroughbred Racing. Dr Grierson's Brief of Evidence was essentially based on the blood test schedules for the horses in Race 8 at the Franklin Trotting Club Meeting on the 1^st of December 2006, the Certificate of Analysis in respect to the TC02 sample for Arid and the Analyst's Report thereto, the three Gribbles Veterinary Laboratory Reports referred to earlier in this Decision and a handwritten report from Dr MacKay of Cambridge Veterinary Services.

Dr Grierson had discussed with Dr Oskam the results of the post race examination of Arid on the 1^st of December 2006 and he also stated that he had carefully examined the laboratory results in the report of the 4^th of December 2006 from Gribbles Veterinary Laboratory. Dr Grierson's opinion was that the blood test results indicate normal parameters and that there is nothing to suggest a metabolic disorder to elevate TC02.

Dr Grierson then gave evidence in respect to a horse's heart rate. He said that in his opinion a heart rate of 84 would be within the normal limits for a horse post race. Dr Grierson then went on to say that if a horse has an elevated heart rate this can increase the metabolic rate but this has the effect of reducing the TC02 level. Dr Grierson was asked if there are any studies that show a horse can have a TC02 level of 39 naturally and he said that as far as he was aware there weren?t any such studies. He said that he had read the relevant material and although there could be variations 39 is not normal.

Dr Grierson was also asked about the current testing and analysis regime. He explained that an Auto Analyzer was now used for the purposes of analysing the samples and he gave evidence about the standards used in the testing procedures which were based on standards arrived at in Australia and which were calibrated into the machines. When asked if there was a difference between a TC02 level and a blood bicarbonate level Dr Grierson said that there was and he explained the difference.

When asked by Mr Branch whether he had undertaken any research into TC02 levels Dr Grierson said that he had not. When asked about the possibility of a horse naturally having a TC02 level of 39 mmol/L Dr Grierson said that the possibility was one in a million and the probability was very unlikely. Dr Grierson again in answer to a question put to him did say that he had not read any reports which say you can?t get a TC02 level naturally of 39.0.

Dr Grierson was asked about the Yulestar situation and referred to the letter of the 11^th of February 2001 from Professor Rueben Rose to Mr Carmichael. Dr Grierson then spoke of the difference between the old system in use when Yulestar was tested and the present blood testing system. He did say that in his letter Professor Rose had said that a high level was possible but not probable and as far as Dr Grierson was concerned that might have been a possible outcome but not a probable outcome under the old system.

Dr Grierson then spoke of the level that is set. He advised that the mean level for the country is 31.5 and taking into account variables between different horses, their feeding regimes and so on, the level was set at 35 mmol/L. A margin of 1.2 mmol/L was added to that so that horses were required to have a TC02 level below 36.2.

When asked if a horse had a respiratory problem would he expect it to have an increased TC02 level, he said that it would not, it would only have an increase in the respiratory rate. Dr Grierson was asked about the Gribbles Veterinary blood tests and in particular he was asked about the white blood cell count and if he would expect there to be an increase in globulin. In reply he stated that he would be very surprised that the horse was fighting an infection because as far as he was concerned there was no abnormality in the blood sample particularly that contained in the report dated the 4^th of December 2006.

In answer to re-examination by Mr Lange, Dr Grierson confirmed that the co-relation between blood bicarbonate and TC02 levels was a difference of about 5%. He understood that a TC02 level would be higher by 5% than the blood bicarbonate level. He stated that the TC02 level was measuring the amount of dissolved CO2 in the bloodstream.

When asked to compare machines used under the old system and the new system he said that you can?t compare machines and everything changed when the new system was put in place. As far as he was aware the system being used was the same system that all countries that conducted horse racing were using.

Dr Grierson was then asked about the effect that a horse sweating would have on a TC02 level. He stated that if a horse was sweating profusely and that would be 8-10 litres of sweat, then the TC02 level could rise approximately 2 mmol/L above the mean of 31.5 mmol/L. He also advised that if a horse was sweating 8-10 litres of perspiration before a race then it would be physically able to be seen.

Dr Grierson said that the same answer applied to the situation where a horse was scouring and again this would be based on a horse scouring badly and this would be very obvious to anybody who was dealing with the horse.

When asked about the effect of an infection in a horse, Dr Grierson said that there was no evidence of any infection and he said that the low white blood count doesn?t necessarily have an effect on the TC02 level and it was only an indicator that something was going on.

Dr Grierson was asked about the effect of a horse having a bowel irritation and also colitis. Dr Grierson said that viral colitis was very rare and it was usually bacterial. As far as Dr Grierson was concerned there was no evidence of any infection going on the blood test and all parameters were normal. He also pointed out that Gribbles Veterinary Laboratory normally do the test prior to exercise. In his opinion the Yulestar results were also not relevant in relation to the Gribbles Veterinary Tests because they were taken under the old system.

The conclusion of Dr Grierson's evidence was the conclusion of the case for the Informant.

Mr Branch then called Dr Ian MacKay from Cambridge Veterinary Services.

Dr MacKay stated that he was a Veterinarian in Cambridge and for the last 10 years had been working with horses. Dr MacKay read his Brief of Evidence to the Committee.

Dr MacKay examined Arid on the 8^th of November 2006 and he stated that the symptoms and the physical examination gave a probable diagnosis of "Typhilitis". Dr MacKay stated that Mrs Neal told him that she had recently changed Arid's diet and this often the cause of inflammatory bowel disease and he gave the horse 10 millilitres of "Flunixin". He also recommended a change of diet for the horse.

Dr MacKay conducted a blood test on Arid on the 4^th of December 2006 and he said that this showed an abnormally low white blood cell count. He gave evidence of the horse being spelled and further blood tests being taken and further reductions in the white blood cell count. Dr MacKay was aware that Arid had suffered from chronic respiratory problems since racing in Australia as a late two year old.

He stated that Arid had been diagnosed with acute Typhilitis on the 8^th of November 2006 although in his earlier evidence he said that the symptoms in the physical examination gave a probable diagnosis of Typhilitis. He also said that the horse had suspected chronic Typhilitis due to the horse having consistently loose motions as Mr Neal had advised him on the 4^th of December 2006.

Dr MacKay in his evidence also said that Arid had been shown to have mild "Leucophenia". This could be seen from the low white cell count.

Dr MacKay did not believe that sweating would increase the TC02 level to any great degree but said that as far as he was concerned scouring was a different matter.

Under cross examination Dr MacKay said that he did not recommend to Mr and Mrs Neal that they fed Bicarbonate to Arid. He recommended a product called "Thrive" but said that would not be the cause of an elevated TC02 level. Dr MacKay said that he had not seen any studies that showed that a horse's TC02 level could naturally go up to 39.0 mmol/L. He saw Arid on the 4^th of December but did not do a clinical test and only took blood.

He only knew that the horse had a chronic respiratory problem over the past three years and he was told that Mr Neal had put it on a nebulizer which helps it to breathe. Dr MacKay did not believe that the use of the nebulizer would increase the TC02 level.

When questioned Dr MacKay acknowledged that he was not an expert in the field of TC02 levels.

In referring to the Gribbles Veterinary Reports, Dr MacKay said that they showed an indication of some degree of infection. He did acknowledge that the infection could create an acidotic situation which could have had the effect of decreasing bicarbonate levels and he said that when the horse had acute Typhilitis as far as he was concerned it had acidosis then.

When asked about the feeding of Bicarbonate to horses, Dr MacKay said he would normally recommend a dessertspoon full to a tablespoon full (about 30 grams) in the feed at night.

Dr MacKay said that as far as he was concerned Mr and Mrs Neal were not milkshaking their horses because if he thought they were then he would not be providing veterinary services to them. When re-examined by Mr Branch, Dr MacKay confirmed that irritable bowel produced acidosis and he commented on the loss of electrolytes on bicarbonate levels.

Mrs Lynette Neal then gave evidence. She said that she was the person responsible for feeding the horses at their establishment.

Mrs Neal said that she had never fed Bicarbonate to Arid and that they had never had a tying up problem with him. She stated that they had had him treated for stomach ulcers in the past and that in recent times she had fed the horse "Thrive". This had been recommended to her by their Veterinarian.

The horse had had a formula 3 feed but that had been changed to a more fibre based feed

Mrs Neal said that the horse had had a history of respiratory complaints and that on the morning of the races on the 1^st of December 2006 the horse's dung was loose but he seemed to be fine to take to the races.

Mrs Neal acknowledged that there was Bicarbonate in the stables and she was feeding it to a three year old filly only. It was not fed to all of the horses.

Mrs Neal had no explanation for the high reading for Arid apart from his illness.

She stated that she was the person who was responsible for feeding the horses and that only Mr Neal and herself had access to the horses and that they did not have any staff.

Mrs Neal did acknowledge that mistakes can be made and that no one is perfect but she said that in this instance there had not been a mistake.

Mrs Neal was shown the photo exhibit of the feedroom and was asked what else was on the shelf. She stated that on the top shelf was Potassium Plus, Betomite (a clay substance), Thermo H. The next shelf had Glucosomine Sulphate, Molasses, an empty container, another Glucosomine and two containers one of Bicarb and one of Glucose. On the bottom shelf was a container of Thrive and a bucket of Alkalite Salts. Mrs Neal said that on the 1^st of December 2006 she was feeding about 12 horses including four racehorses. On the day of the races Arid had a lunch feed and only the racehorses get a lunch feed. She fed Thrive because of Arid having loose dung.

Mrs Neal said that Thrive was the only different item introduced to Arid's feeding since a previous blood test.

Andrew Neal then gave evidence and he spoke of the horse's two year old racing history and the problems that the horse had encountered after he had come back from Bendigo.

Mr Neal said that in respect to Arid that two days prior to the 1^st of December 2006 the horse was very loose in his dung and they put it down to the spring grass and therefore boxed him for a time before race day. He said that Arid had very loose dung when they put him in the cart and when he went onto the track and he didn?t warm up as usual and scoured prior to the start. He said the horse didn?t show his usual vigour, didn?t want to go out of the gate and battled throughout the race and was distressed after the race.

He said that after the horse was washed and walked he took him to the vet because he hadn?t recovered fully. The vet was Dr Oskam.

Mr Neal said that it was Dr Oskam who suggested giving the horse Flunixin and also that he offered to take a further blood sample from the horse but they didn?t do so.

When cross examined Mr Neal accepted that the TC02 level for Arid was extremely high. He also acknowledged that people can make mistakes with feeding and handling horses. He did say that there was no chance of a mistake with Arid because he was the only horse in the barn who was being fed on race day.

Mr Neal was asked that if the high TC02 level was the result of administration to or ingestion by the horse then either there was an error or one of either Mr or Mrs Neal had done it deliberately. Mr Neal accepted that.

Mr Neal did say however that the horse had trained poorly and blew hard and didn?t recover properly after the race.

When questioned he did say that the horse seemed to be OK before the race and only noticed the loose dung two days before race day. He stated that there was nothing else wrong with the horse.

Mr Neal was asked if when the pre-race blood test was taken did he notice any reason why he shouldn?t start the horse. He answered no.

At the conclusion of the Hearing the Committee reserved its decision and invited Co