Non-Raceday Inquiry – B S Herd & O P Bosson

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startdate: 01/01/2001

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hearing_title: Non-Raceday Inquiry - B S Herd & O P Bosson

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Decision:

The Committee determined that it would hear the material in respect of both Messrs O P Bosson and B S Herd

before delivering decisions. In the result this led to a hearing extending over more than three hours.

DECISION

NON RACEDAY INQUIRY :  NZTR  v  MR  O P BOSSON  and  NZTR v MR B S HERD

Heard at Waikato Racing Club, Te Rapa Racecourse, Hamilton

Friday 31 October 2008

JUDICIAL COMMITTEE   Mr M McKechnie, Chairman and Mr R Seabrook

PRESENT                                              Mr M Colson counsel for NZTR  

                                                                Mr J McKenzie, Chief Racecourse Inspector NZTR

                                                                Mr O P Bosson

                                                                Mr A R Galbraith, QC counsel for Mr Bosson

                                                                Mr B S Herd

                                                                Mr P Brosnahan counsel for Mr Herd

PRELIMINARY

1.            The Committee determined that it would hear the material in respect of both Messrs Bosson and Herd before delivering decisions. In the result this led to a hearing extending over more than three hours.

DECISION

2.            The Committee has today been hearing charges against Mr Bosson and Mr Herd arising out of events that occurred at Te Rapa Racecourse on 03 October this year.  In respect of Mr Bosson, he has pleaded guilty to a charge under Rule 528 and the charge laid against him under Rule 1001 (1) (p) has been withdrawn.  Mr Herd has pleaded guilty to a serious racing offence under Rule 1001 (1) (p) and the charge under Rule 528 against him has been withdrawn.

3.            The Committee has had placed before it a summary of facts, prepared by Mr Colson, counsel for NZTR.  The summary makes reference to a number of drug tests, or the results of drug tests that took place on the 13^th of October, ten days after the events that give rise to these charges.  For reasons given in a ruling earlier today there will be no reference to those drug tests on 13^th October. The Committee holds that they are not of sufficient relevance to be taken into account in determining the appropriate penalties that are to be imposed.  It is important to point out that those tests related to Mr Herd and in no way affect the position of Mr Bosson. 

4.            The summary of facts, shortly stated, makes it plain that on the 3^rd of October here at Te Rapa Mr Herd was asked to provide a urine sample for the random drug testing regime which is administered under the Rules of Racing by the Racecourse Inspectors and on that occasion it was Mr Bryan McKenzie.  The circumstances, as now disclosed, are that Mr Herd spoke to Mr Bosson and asked him if he would provide a urine specimen.  Mr Bosson agreed to do that.  This was done with a tube which ordinarily would contain Berocca tablets, that was then handed back to Mr Herd and he placed the contents of that in the receptacle provided and it was passed to the nurse. This subsequently tested clear.  That of course was not Mr Herd’s sample, but Mr Bosson’s urine.  Some days later information came into the possession of Mr John McKenzie, the Chief Racecourse Inspector, and as a result of that the true position as just outlined emerged.  Mr Herd had signed a form, a copy of which we have been shown, headed up “Employment Urine Drug Testing”, in which he had acknowledged or certified that the urine sample which was being put forward was his own.  That of course was untrue. 

5.            In these circumstances, the Committee is faced with the task of determining what are the appropriate penalties that should be imposed.  Mr Bosson and Mr Herd are two of the best known and most respected jockeys in New Zealand.  Mr Bosson has had a long and successful relationship with the Te Akau racing stables and only very recently was successful on Princess Coup in the Kelt Capital Stakes.  Mr Herd has for many years been regarded as one of the leading riders in New Zealand and one of the most senior riders in the Central Districts; indeed he is a Riding Master there, which testifies to his seniority, and he is the partner of the respected trainer Lisa Latta. 

MR BOSSON

6.            We turn first to Mr Bosson.  Mr Colson for NZTR emphasizes the integrity of the drug testing regime and the responsibility of licence holders under that regime.  He says that there were aggravating considerations in that Mr Bosson had three opportunities to disassociate himself from what Mr Herd had proposed; he could have refused when he was asked to provide a sample, he could have stopped when he actually went to fill the Berocca tube and called it off then and, thirdly, says Mr Colson, when he handed the sample back to Mr Herd he could have stopped then and put an end to it.  The time sequence over which these events took place has not been established.  It is not clear whether these events occurred over a short period of time or otherwise.  But in any event the submissions that Mr Colson makes have validity because there were three distinct steps and at any time Mr Bosson could have called it off.  On the other hand Mr Galbraith, for Mr Bosson, stresses that in truth this was a spur of the moment act on his client’s part. There is no suggestion that these men had discussed this previously or had hatched any plan to act in this way.  It seems to be accepted that Mr Herd asked Mr Bosson to provide the sample because they are good mates, they had known each other for a long time and Mr Bosson’s acceptance was very much on the spur of the moment.

7.            In considering the appropriate penalty, Mr Galbraith points to a number of considerations which he says tell in mitigation.  First of all, Mr Bosson acknowledged his conduct immediately he was confronted with it, and gave what now seems clear is a truthful account of what occurred.  Of course Mr Bosson had nothing at all to gain from taking part in this episode and it is regrettable that he will suffer a significant penalty simply because he went to the assistance, so he thought, of his mate.  Mr Galbraith stresses Mr Bosson’s prior record; there is nothing in that record to suggest any dishonesty or deceitful behavior on any prior occasion. There are character references from Messrs Walker and Ellis which recount their relationship with Mr Bosson and the success that he has had in the involvement with the Te Akau racing organization.  Mr Bosson has been the subject of a good deal of adverse publicity, not all of it generated in New Zealand, since this matter came to light.  Furthermore, Mr Galbraith says this will hurt Mr Bosson perhaps more than some others because, as is well known, he is a heavy weight rider and a period of disqualification will perhaps impact on him more than others inasmuch as it will take him longer to get back to riding weight and riding form.  And of course there is a financial cost, particularly with the summer racing that is about to start.

8.            There are a number of cases which have been drawn to our attention and, one way or another, the members of the Committee are familiar with all of these.  The Hillis case has been referred to on a number of occasions and Mr Seabrook was involved in that case and both the members of the Committee have looked at that again in preparation for today’s hearing.  Other cases which have been drawn to our attention are those involving the jockeys Matt Cameron and Darryl Bradley and the Chairman of the Committee today was involved with both of those.  It is said by Mr Galbraith that those cases can be distinguished for various reasons; in the case of the jockey Cameron, there was a pattern of deceit over a period of some time which caused the investigating authorities a good deal of difficulty and involved them in a great deal of work.  Nothing of that kind occurred here. The Bradley case involved possible financial gain.

9.            Mr Colson, for NZTR, submits that a proper period of disqualification is six months.  The Committee’s view is that there must be a period of disqualification but that Mr Bosson is entitled to a significant discount because of his immediate admission of his involvement.  If it were otherwise, there would be no discount.  The issue of drugs in racing is more important now than it has ever been and this particular case involving two of our most senior jockeys has caused a great deal of adverse publicity and adverse comment.  That has not only hurt Mr Bosson and Mr Herd but it has hurt the wider interests of racing.  The proper penalty in the case of Mr Bosson is four months disqualification, starting immediately.  That will mean that he can resume riding on the 1^st of March next (2009).  There will be costs payable to NZTR of $500 and costs payable to the JCA of $500.

MR HERD

10.          We now consider the position of Mr Herd.  Mr Colson, for NZTR, says that there are significant aggravating factors in the conduct of Mr Herd.  It is submitted that he went to considerable trouble by getting the Berocca tube.  Mr Herd for his part, as we understand it, says that this was already in his gear and that it was not a case of bringing that to the races with any dishonest plan in mind.  Mr Colson points to the signing of the certificate which was plainly false. Further that there was quite some time for Mr Herd to have recovered his senses and acknowledged what he had done. This because it was something like five days before the matter came to the attention of Mr John McKenzie.  Mr Colson points to the fact that this deceit very nearly succeeded; that the false sample was tested clear and that but for the information which was given to Mr McKenzie the subterfuge might have come off. 

11.          The matter which the Committee considers to be perhaps the most serious is Mr Herd’s involving Mr Bosson in what he did.  That was reprehensible and it is a significant factor which distinguishes this case from that of the jockey Wayne Hillis.  Further, Mr Colson points to Mr Herd’s seniority, his being a Riding Master and that somebody in his position, at that level of responsibility, is the last person who might be expected to behave in this way. 

12.          Mr Brosnahan, for Mr Herd, has made it clear at the very beginning that Mr Herd is ashamed and he has apologised for Mr Herd’s behaviour.  The Committee noted that one of the descriptions that Mr Brosnahan adopted in describing Mr Herd’s behaviour was “a short time framework of stupidity” – that is an apt description.  Mr Brosnahan points to those things which can be said in Mr Herd’s favour.  On 11 October he was confronted by Mr Bryan McKenzie, at a race meeting, and we have been provided with a word by word transcript of what was said.  Mr Herd acknowledged immediately what had happened.  Subsequently his story changed somewhat and Mr Colson has drawn our attention to that but the Committee is not persuaded that a great deal turns on that matter. 

13.          On the question of penalty, Mr Brosnahan drew our attention to a number of considerations.  The first that we mention are the drastic consequences which may follow from a significant period of disqualification.  Disqualification forbids a licence holder from having any connection with horses in training.  That means a person disqualified is not permitted to go to the premises of a licensed trainer, or to go to a race track.  Mr Herd is the partner-in-life of Lisa Latta who, as we said earlier, is a respected trainer in the Central Districts and who has stables at the Awapuni Racecourse.  A period of disqualification Mr Brosnahan says will therefore be particularly hurtful because it will impact on the operation of Lisa Latta’s stable.  Mr Herd is an essential part of that operation and it is said that he rides the most difficult horses in track work and the Committee has no difficulty in accepting that he does have a significant part in the running of that operation. 

14.          Mr Brosnahan, looking at the legal issues, accepted that the Hillis case was that most comparable to the present but he sought to distinguish it; he said in that case the jockey had sought to mislead people for some time afterwards and that such was not the case here because Mr Herd had immediately acknowledged his responsibility when he was spoken to by Mr Bryan McKenzie on the 11^th of October.  That submission is correct in as far as it goes but there are two things which the Committee thinks are relevant at this point.  The first is that the Hillis case was some time ago and the issue of drugs in racing has become increasingly significant and this has been reflected in changes in the Rules and in particular the Rule which now provides that persons who test positive for the most serious of drugs can immediately be stood down.  So the issue is at a rather higher level than it was when that case was determined.  The second matter is the one to which we have already referred and that is the consideration absent in the Hillis case but present here, where Mr Herd involved his fellow jockey.  Of course Mr Bosson should have said no, but if Mr Herd had never asked him Mr Bosson would never have been put in that position.  So not only has Mr Herd got himself into a great deal of difficulty, but Mr Bosson, as the Committee has recorded, is also to be disqualified for a significant period. 

15.          For the reasons which we have sought to explain, we think that in this case Mr Herd’s misconduct is more serious than in the Hillis case.  Mr Colson urged a period of 18 months disqualification. Mr Brosnahan sought to persuade the Committee that there should be an extended period of suspension but not disqualification.  That is not appropriate and nor is it in line with earlier authorities. We have in mind the Hillis case in particular. In that case the Appeal Tribunal considered the relationship between suspension and disqualification and the circumstances in which each was appropriate. For the most serious of racing offences, and this is certainly one, the ultimate sanction of disqualification must be imposed.  The question is determining the appropriate period; as noted Mr Colson urged a period of eighteen months.  The Committee takes the view that Mr Herd should be given some consideration for the fact that he owned up to this when he was seen by Mr Bryan McKenzie on the 11^th of October, even if he did somewhat alter his story in subsequent discussions.  Against all of that background, the appropriate disqualification for Mr Herd is a period of fifteen months. That means that he will not ride until the 1^st of February 2010.  There will be costs to NZTR of $1,500 and the JCA of $500 and $300 to be paid to the NZTR in respect of the drug testing that was undertaken and about which Mr McKenzie informed the Committee.

ADDENDUM

16.          Ordinarily disqualification would take effect immediately. The Committee was advised that Mr Herd has mounts booked for tomorrow the 1^st November. We were told that this was done because there was uncertainty as to whether the hearing would conclude today. In time now available there is little opportunity for the connections of those horses to arrange a replacement rider. In those circumstances the disqualification of Mr Herd will take effect from the conclusion of racing on Saturday the 1^st November 2008.

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Murray McKechnie

Chairman

_____________________________________

Richard Seabrook

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