Non Raceday Inquiry – BA Kerr

hearingid: 94f3930a3a77e59961a63e506901cce0

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hearing_racingtype: thoroughbred-racing

startdate: 01/01/2001

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decisiondate: no date provided

hearing_title: Non Raceday Inquiry - BA Kerr

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Decision:

Brian Anthony KERR being the trainer of the Registered Standardbred horse "Marie" on the 7^th day of August 2005 did take the said horse to a racecourse, namely, the Oamaru Racecourse for the purpose of engaging in a race, namely, Race 9, the "Otematata Engineering/Keep it Clean Handicap Trot" held by the Kurow Harness Racing Club, and did fail to present the horse free of prohibited substances namely, 3-Hydroxylignocaine".

Information No. 66451 alleges as follows:

Mr Kerr denied the breach of the Rule.

The relevant Rule provides as follows:

Mr Kitto presented a detailed Summary of Facts which may be summarised as follows:

1. Mr Kerr is the trainer of MARIE which was correctly entered for Race 9, Otematata Engineering / Keep it Clean Handicap Trot held by Kurow Harness Racing Club at Oamaru Racecourse on 7 August 2005. The horse was driven by M P Jones and won the race earning a stake of $4,688.

2. MARIE was post-race swabbed. On 19 August 2005, a Certificate of Analysis from New Zealand Racing Laboratory Services declared that 3-Hydroxylignocaine had been detected in the urine sample. The control sample was negative for 3-Hydroxylignocaine. Mr Kerr arranged for the reserve sample to be analysed by Racing Analytical Services, Melbourne, Australia, and 3-Hydroxylignocaine was detected in that sample.

3. Harness Racing New Zealand's Chief Veterinarian, Dr Andrew Grierson, has advised that 3-Hydroxylignocaine is a local anaesthetic as listed in the Prohibited Substance Regulations and is therefore a prohibited substance under the New Zealand Rules of Harness Racing.

4. Mr Kerr was interviewed at his stables on 24 August 2005 and was advised that MARIE had returned a positive swab for 3-Hydroxylignocaine, a metabolite of Lignocaine. Exhibits taken from his stables were all negative for 3-Hydroxylignocaine.

5. Mr Kerr appeared quite dumbfounded and was not able to explain how the positive swab occurred. A window of opportunity for someone to administer something to MARIE did occur at the racecourse when Mr Kerr left the horse unattended for 20-30 minutes while he went for a meal.

6. At the racecourse, Mr Kerr did not use his allocated horse stalls but, instead, used an open yard for the horse. This allowed the horses to walk round after the float trip.

7. Mr Kerr has never used the product containing Lignocaine and his veterinarians have never used the product for the horse MARIE. Mr Kerr's accounts do not reveal the use of Lignocaine.

Mr Kerr indicated that he accepted the Statement of Facts presented by Mr Kitto. However, he did question Mr Kitto as to whether it was common practice to leave horses unattended for a time at the racecourse. Mr Kitto agreed that it was a common practice. Mr Kitto also acknowledged, in response to a question from Mr Kerr, that it was common for trainers to leave their horses in yards rather than boxes where yards were available.

Mr Kerr explained that the horses had travelled to the racecourse by "public transport" and, instead of taking staff with him to look after the two horses, he had gone on his own. He had arrived at the racecourse just after midday and MARIE was not racing until Race 9. He put it to Mr Kitto that it was impractical to stand around with the horse until Race 9 without having something to eat. Mr Kitto acknowledged this but pointed out that a horse should not be left unattended before a race.

Mr Kerr explained to the Committee his reasons for denying the breach of the Rules and explained that he did not mean any "disrespect" to the harness racing industry in doing so. He said he could not accept that he was guilty of taking the horse to the races with the prohibited substance in its system. He was "baffled" as to how the horse had come to have the substance in its system.

Mr Kerr called Dr Bill Bishop, Veterinary Surgeon, to give evidence on his behalf. Dr Bishop confirmed that his practice, Canterbury Equine Clinic Limited, had attended Mr Kerr's horses for more than 15 years and that there is no record of Lignocaine having been used at Mr Kerr's property during this period. He explained that Lignocaine is a local anaesthetic and that the only product that his practice has is in injectible form used for pain relief - for example, a horse with a cut leg requiring stitches, or stitching up mares. It has only a local effect with a very rapid onset of action (about 10 minutes) and its effect has gone within an hour. Dr Bishop submitted that there has been no instance, to his knowledge, where Lignocaine has been regarded as a performance-enhancing drug. It can gain access to the body by being injected, through broken skin or through the mucous membrane ? hence it a common ingredient of throat lozenges.

Dr Bishop stated that, if the horse had been injected, this would had to have happened at the races because the substance would have disappeared within an hour. Alternatively, the horse may have had some substance applied to some broken skin or something in its mouth. He referred to the Tierce case in Australia. In that case, the horse had had access to a mouthwash containing Lignocaine.

Dr Bishop confirmed that the only drugs that would be on Mr Kerr's property would be drugs dispensed by his practice for a specific horse.

Questioned by Mr Kitto, Dr Bishop acknowledged that Lignocaine was a prohibited substance under the Rules of Harness Racing.

Mr Kerr said that it had been about a month since MARIE had required veterinary attention for any reason. He, initially, thought that the source of the Lignocaine may have been a cream applied to cracked heels but an analysis of the particular cream proved negative to Lignocaine. He therefore concluded that MARIE had become contaminated off his property.

Mr Kerr referred the Committee to the recent thoroughbred case of Waterhouse in Australia in which the Racing NSW Appeal Panel quashed a $15,000 fine imposed on a trainer after a horse trained by her returned a positive to cocaine which was described as "miniscule".

Mr Kerr accepted that, where a prohibited substance was detected, there was no defence available to the trainer. However, he submitted that he had presented MARIE at the races with no Lignocaine in her system and, because of the wide range of forms in which that substance can be used, Lignocaine could have got into the horse's system by any one of a number of ways. It was unknown exactly how it did get in.

In a closing submission, Dr Bishop submitted that the possibility could not be dismissed that MARIE had, in fact, raced free of the prohibited substance and had become contaminated post-race, between racing and the taking of the urine sample. He understood that a stable hand from another stable had removed the tongue tie and it was possible that he may have had some cream on his hands.

Following a deliberation, the Committee delivered the following oral decision:

"What I am going to say now is by way of an interim decision and the Committee will, in due course, deliver a more detailed, written decision which will be made available to both parties.

Mr Kerr has pleaded not guilty to a charge under the Prohibited Substance Rule following a positive swab by the horse, MARIE, trained by him, after its win at the Kurow Harness Racing Club on 7 August 2005.

Mr Kitto has presented a Summary of Facts to the Committee, which facts establish a breach of the Rule in that MARIE was taken to the racecourse at Oamaru, it competed in Race 9 that afternoon, a post-race urine swab tested positive to 3-Hydroxylignocaine and that substance is a prohibited substance under the New Zealand Rules of Harness Racing. Mr Kerr did not dispute any of those matters and he explained he was denying the charge because, he believed, he had done nothing wrong and was in no way responsible for MARIE's returning a positive swab.

The Committee has considered the facts as presented by Mr Kitto, the submissions of Mr Kerr and the evidence given by his witness, Dr Bishop, a Veterinary Surgeon. The relevant Rule is very specific in that it requires that a horse shall be presented for a race free of prohibited substances. If a horse is taken to the races in breach of that Rule, the trainer commits a breach of the Rule and a breach is committed regardless of the circumstances in which the prohibited substance came to be present in or on the horse. The Committee is required to find the charge proved if the requirements of the Rule are made out.

The Committee is satisfied that a breach of Rule 1004(1), (2) and (4) has been proved by the Informant. It is not known, and it will probably never be known, how the prohibited substance came to be present but there is no requirement for the Informant to prove that."

The Prohibited Substance Rule came into effect on 1 August 2003 replacing the former Drug Negligence Rule. The new Rule, effectively, removes any defence available to a trainer where a horse trained by him returns a positive swab to a prohibited substance. It is only necessary for the Informant to show that a horse was presented by the trainer for a race not free of a prohibited substance and that it was taken to a racecourse for the purpose of engaging in a race not free of a prohibited substance. Once these elements are established, a breach is committed regardless of the circumstances in which the prohibited substance came to be present in or on the horse.

The Committee is satisfied that it has been established that Mr Kerr, as the trainer of MARIE, took that mare to the Oamaru Racecourse on 7 August 2005 for the meeting of Kurow Harness Racing Club where it competed in and won Race 9 on the programme. We are further satisfied that MARIE was post-race swabbed and that the urine sample, on analysis, showed the presence of 3-Hydroxylignocaine and that that substance is a prohibited substance under the Rules of Harness Racing. How the substance came to be in MARIE's system can only be the subject of speculation. There is clearly no evidence of administration or, indeed, no evidence or any suggestion of any wrongdoing on the part of Mr Kerr resulting in the positive swab. However, the wording of Rule 1004(4) is very specific ? a breach is proved regardless of the circumstances in which the prohibited substance came to be present in the horse.

Mr Kerr has denied a breach of the Rule but, at the same time, has acknowledged that the elements to establish a breach of the Rule have been made out by the Informant. The Committee can understand Mr Kerr's unwillingness to plead guilty to the alleged breach feeling, as he quite clearly does, that he is in no way responsible for the circumstances that have led to this charge being brought against him.

However, as stated above, the wording of Rule 1004(4) is very specific and, notwithstanding that the circumstances in which the prohibited substance, 3-Hydroxylignocaine, came to be in MARIE's system are not known, the Committee is satisfied that the breach of Rule 1004, as alleged in the information, has been proved.

Mr Kitto referred to the penalty provisions in Rule 1004(7) and (8) and to the most recent drug prosecutions under the new Rules ? namely, McGrath, Burrows, Keast, Court and Smolenski, and the penalties imposed in each of those cases.

Mr Kitto submitted that Serious Racing Offences under the Rules were to be viewed as such and significant penalties could be imposed for such offences. Trainers have a clear obligation to ensure that a horse races drug free and trainers need to exercise a high degree of care and vigilance. To support this submission, Mr Kitto referred to the leading cases of Coulson (1993), Nicholson (1994), Wolfenden (1995) and Lamb (1998).

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• Mr Kerr's frankness and cooperation during the investigation; --
• His previous good record and lifetime involvement in the industry.

Mr Kerr submitted that he had not been charged with or found guilty of administering a prohibited substance to the horse. He said it was important for his self-respect that that fact was made clear in the findings of the Committee. He referred to the other cases mentioned by Mr Kitto and submitted that, in each of those cases, the trainer knew what he was giving the horse. He submitted that he should be "discharged without conviction" and referred to the decision of the Appeals Panel in the Waterhouse case in which the panel principal stated: "Contamination cannot be attributed in any blameworthy way to an act or omission by the trainer". In that case, the Appeals Panel quashed a $15,000 fine imposed by Racing NSW stewards for presenting a horse to race with cocaine in its system. Mr Kerr submitted that the circumstances of that case were similar.

On Mr Kerr's behalf, Mr Bishop referred to a 2001 New South Wales case of Size involving Lignocaine. In that case, Mr Size, a leading Sydney trainer, was fined by Stewards the sum of $2,780 after Lignocaine was found in one of his horse in a post-race urine test. Mr Size had not previously faced a drug charge in more than 20 years as a trainer, he disclaimed all knowledge of how Lignocaine showed up in the horse's system, the horse was not being treated by veterinarians and the substance was not kept at Mr Size? s stables.

Mr Kerr produced character references from Messrs Craddock and Jones (Green Machine Racing Syndicate), Mr D T Carville, Mr Graeme Hessey and Mr M L Bowden. At least two of those names are very well known and respected in harness racing circles. Each of those testimonials referred to Mr Kerr in glowing terms and referred, variously, to his professionalism, his honesty and integrity and his unblemished, long-standing involvement in harness racing.

Mr Kitto referred to Rule 1004(8) which provides:

He referred to the mandatory requirement to disqualify a horse and said that he sought disqualification of MARIE in this instance.

The Committee agreed that disqualification of MARIE was mandatory and ordered that it be disqualified accordingly. Consequent upon the disqualification, the amended placings for the race are as follows:

1^st 10 Jacques La Mer

2^nd 19 Ciao

3^rd 13 Hayden John

4^th 17 Adam's First

5^th 18 Winonesoon

It is ordered that stakes be paid accordingly.

The relevant penalty provision is Rule 1004(7) which provides as follows:

Mr Kitto, in his submissions relating to penalty, submitted that the "starting point for drug/prohibited substance administration breaches" should be 2 years' disqualification from which starting point Mr Kerr's culpability, aggravating and mitigating factors and the circumstances of the particular case should be factored in to determine the appropriate penalty. Mr Kitto conceded that, having regard to mitigating factors which he acknowledged, a penalty of less than 2 years' disqualification could be imposed in the present case.

It is significant that the previous cases referred to by Mr Kitto in his penalty submissions were all cases of administration of a prohibited substance. The charges in those cases were brought under Rule 1001(q) under the heading of "Serious Racing Offences" for which the maximum penalty is a fine of $25,000 and/or suspension or disqualification for a specific period or for life. Clearly, cases of administration of a prohibited substance are to be viewed as more serious than breaches of the Prohibited Substance Rule and the maximum penalties for the respective breaches support this view.

The Prohibited Substance Rule replaced the Drug Negligence Rule in August 2003, although the former has removed a defence that had previously been available to a trainer under the latter if he could satisfy the Judicial Committee "that he was not in charge of the horse at the relevant time and that he had taken all reasonable precautions to prevent administration of a drug".

The Committee is not aware of any drug negligence case in New Zealand in which a period of suspension or disqualification has been imposed on the trainer. Neither is the Committee aware of any previous penalties imposed under the Prohibited Substance Rule since its coming into force in August 2003. Some guidance can be had, we believe, from the thoroughbred case of Hrstich (August 2005) in which a trainer admitted a charge under the equivalent Rule in that code. In that case, the Judicial Committee found that "an inadvertent or unintentional administration had taken place". The trainer was fined the sum of $4,000. The Committee also notes the similarity of the fact situation in the present case to the facts in the Australian case of Size referred to by Dr Bishop and notes that Mr Size received a fine only.

In determining an appropriate penalty in the present case, the Committee has had regard to the following mitigating factors:

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• Mr Kerr's previous good record. Mr Kitto acknowledged that Mr Kerr has had a lifetime involvement in harness racing having first been licensed in 1984; --
• His frankness and cooperation during the investigation which was also acknowledged by Mr Kitto; --
• Although Mr Kerr denied the breach, he did accept the Summary of Facts presented by Mr Kitto, thereby avoiding the necessity for the Informant to call witnesses. His denial of the breach was based purely on his not wishing to admit to any wrongdoing resulting in the positive swab by MARIE; and --
• The genuine concern shown by him throughout the hearing.

In addition, the Committee has considered the degree of negligence on Mr Kerr's part. Stable security at Mr Kerr's property appeared to be of a high standard but it would appear most likely, in any event, that the prohibited substance entered MARIE's system at the Oamaru racecourse and, based on the helpful evidence of Dr Bishop, probably no more than one hour prior to the taking of the post-race urine sample. It may be that there was nothing Mr Kerr could have done to prevent the contamination and, at worst, the contamination occurred during the 20-30 minute period when he left the horse unattended in the yard at the racecourse. In either case, the degree of negligence on Mr Kerr's part was not high, in the view of the Committee.

However, against those factors, the Committee must consider the need to maintain integrity and public confidence in harness racing, which has been referred to on many previous occasions. That need does not require to be elaborated upon here, other than to say that the detection of a drug in a horse which has competed in a race whilst a drug was in its system is a serious matter because it is detrimental to the image of the industry and has the very real potential to affect the confidence of the public that supports harness racing by investing in the outcome of races. It is in the best interests of the industry that Judicial Committees ensure that the confidence of the betting public is maintained. In addition, there needs to be a "level playing field" on which all competitors can compete on a fair and equal footing, with no competitor having any unfair advantage over its rivals as the result of having a prohibited substance in its system.

Having regard to all of the above matters, the Committee has determined that a period of disqualification is not called for in this case. The need to maintain integrity and public confidence in harness racing and the need to underline the requirement for trainers to exercise a high degree of vigilance can, in the Committee's view, be met by the imposition of a fine in this case. The Committee, in deciding upon the amount of an appropriate fine, recognises the need for consistency and, therefore, is persuaded by the fine imposed by the Judicial Committee in the recent Hrstich case referred to above.

Mr Kerr is fined the sum of $4,000.

Mr Kitto did not seek costs on behalf of Harness Racing New Zealand and no order for costs in favour of Harness Racing New Zealand is made. However, Mr Kerr is ordered to pay costs in the sum of $350 to the Judicial Control Authority.

CHAIRMAN

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hearing_type: Old Hearing

Rules: 1004.1, 1004.4, 1004.7, 1004.8, 1001.q

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