Non Raceday Inquiry – BJ Lilley

Decision: --

"On the 7^th December 2006, at Christchurch, Bryan Jeffrey LILLEY, being the trainer of the horse, "Gridlock", did take the said horse to a racecourse for the purpose of engaging in a race, namely Race 8, the Placemakers Cranford Street Mobile pace at the Rangiora Harness Racing Club's race meeting held at Addington Racecourse, and that you failed to present the horse for the said race, free of a prohibited substance

BEFORE A JUDICIAL COMMITTEE AT CHRISTCHURCH

            IN THE MATTER of the New Zealand Rules of Harness Racing

            BETWEEN        Barry Alexander KITTO

                                     Racecourse Inspector,    (Informant)

            AND                  Bryan Jeffrey LILLEY

                                    Licensed Trainer,     (Defendant)

APPEARING:              

Mr B Kitto for HRNZ

Mr BJ Lilley in person

Mr RJ Wilson on behalf of Mr Lilley

Mr N Ydgren,  Hearing Registrar

DATE OF HEARING:   26 January 2007

JUDICIAL COMMITTEE:  Mr JM Phelan  (Chairman)

                                     Mr RA Quirk

_________________________________________________________________

DECISION OF THE JUDICIAL COMMITTEE

___________________________________________________________________

The defendant is charged with one breach of Rule 1004(1), (2) and (4) of the Rules of Harness Racing. The charge (Information 66413) laid by Racecourse Inspector Kitto reads as follows ?

The Rules referred to above, which come under the "Prohibited Substance Rule", read as follows ?

"(1) A horse shall be presented for a race free of prohibited substances.

(2) Where a horse is taken, or is to be taken, to a racecourse for the purpose

of engaging in a race otherwise than in accordance with sub-rule (1) the trainer of the horse commits a breach of these Rules.

(4) A breach of these rules under sub-rule (2) or sub-rule (3) is committed regardless of the circumstances in which the prohibited substance came to be present in or on the horse.

Mr Lilley had previously indicated that he admitted this breach of the Rule, and

he confirmed this at the hearing.

The Executive of Harness Racing New Zealand has set a TCO2 level of 35

mmol/L. In addition an "analytical error" factor has been set at 1.2 mmol/L and no prosecution is undertaken unless the analysis exceeds 36.2 mmol/L.

Summary of Facts: Mr Kitto presented a "Summary of Facts" which is attached to this decision. The horse "Gridlock" was entered for and finished 11^th in the Placemakers Cranford Street Mobile Pace at the Rangiora Harness Racing Club's meeting held at Addington racecourse on 7 December 2006. Prior to the race the horse was pre-race blood tested, and the subsequent analysis revealed a TCO2 level of 36.6 mmol/L.

Mr Lilley was later interviewed by Mr Kitto and he was at a loss to explain how the high TCO2 level had arisen. Mr Lilley said that he does not feed bicarbonate to his horses. At the time of this test "Gridlock" was on a course of antibiotics, but subsequent enquiries by Mr Lilley have failed to identify any link between this treatment and the high TCO2 test result.

Submissions on Penalty: Mr Kitto's written submissions on penalty are also attached to this decision. The main points of these submissions are as follows.

The penalties provided for this breach are contained in Rule 1004(7)(a) and (b) and (8). These penalties are a fine not exceeding $10,000-00 and/or disqualification or suspension of a licence for any period not exceeding 5 years. Any horse connected with the breach shall be disqualified from the race.

Mr Kitto also referred to the previous similar case of HRNZ v. Whittaker where a fine of $600-00 had been imposed where the TCO2 level was 36.3 mmol/L.

It should also be recorded that since the introduction of the Prohibited Substance Rule (previously the Drug Negligence Rule) on 1 April 2001 there have been a number of prosecutions. From the beginning HRNZ has recognised that there should be a division in the seriousness of such breaches. The lowest level was set at between 36.3 and 37.2 mmol/L. and it was recommended at that time that a fine of $500-00 should be the minimum penalty where there were no aggravating factors, the charge was admitted, and the defendant had a good record.

Mr Kitto advised that Mr Lilley had pleaded guilty at the first opportunity, and that he had a good record. A fine of between $600-00 and $750-00 was recommended.

Mr Robin John Wilson also attended this hearing to assist Mr Lilley with submissions in relation to penalty, which he provided in writing and read to the Committee. Mr Wilson is the one of the owners of "Gridlock" and also Mr Lilley's employer. Mr Wilson is also the President of the Rangiora Harness Racing Club (Inc).

The submissions were that Mr Lilley is a conscientious trainer and meticulous in his observance of the Rules of Harness Racing. He had fully co-operated with Mr Kitto during the enquiry and had pleaded guilty because he accepts that "Gridlock" did produce a TCO2 level higher than that permitted by the Rules. Mr Lilley does not admit any deliberate or inadvertent administration of bicarbonates to the horse. I note here that there is no evidence or suggestion of such administration.

There were further submissions in relation to the penalty that should be imposed. Mr Wilson urged the Committee to consider a small fine or no penalty at all on the grounds that there was no "offending" behaviour by Mr Lilley other than the production of a horse on race day with a high TCO2 level.

There were also submissions that other trainers who had been convicted for a breach of this Rule had fed their horses bicarbonate in their feed, but that Mr Lilley did not do so. Reference was made to the cases of HRNZ v. Burton and HRNZ v. Whittaker where those trainers were in the habit of feeding bicarbonate to their horses. We are conversant with the facts of these cases, and although it is true that these trainers did feed their horses bicarbonate there was evidence that Mr Whittaker's horse had not been fed bicarbonate since 19 June 2006, which was four days before the horse raced.

Decision on Penalty: Rule 1004(7) and (8) provide as follows.

"(7) Every person who commits a breach of sub-rule (2) or (3) shall be liable to:

------
--
1. a fine not exceeding $10,000; and/or
--
2. be disqualified or suspended from holding or obtaining a licence for any specific period not exceeding five years.

(8) Any horse connected with a breach of sub-rule (1), (2) or (3) shall be disqualified from any race entered and/or liable to a period of disqualification not exceeding five years."

In the present case we find that there were no aggravating factors in relation to this charge. We are also satisfied that Mr Lilley has a good record and that he pleaded guilty at the first opportunity.

We have given careful consideration to submissions made on behalf of Mr Lilley as to the penalty that should be imposed. Rule 1004(4) makes it clear that a breach of this Rule is committed regardless of the circumstances in which the prohibited substance came to be present in the horse. Although Mr Lilley can not explain how the breach occurred this is not a reason for imposing a lesser penalty. There needs to be consistency in penalties imposed, and the penalty in this case should be in the range recommended by Mr Kitto.

Taking into account the above matters, and also previous penalties, we are satisfied that Mr Lilley has met all the criteria for a minimum penalty and he is fined the sum of $600-00.

Costs: Mr Kitto advised that no costs were being sought by HRNZ as this matter was heard on a race night. For this same reason no costs are being sought by the JCA. There will be no order for costs.

Disqualification: In accordance with Rule 1004(8) it is mandatory to disqualify "Gridlock" from the race. Accordingly "Gridlock" is disqualified from 11^th place in the Placemakers Cranford Street Mobile Pace at the Rangiora Harness Racing Club's meeting held at Addington racecourse on 7 December 2006 and the stake money is to be refunded to HRNZ.

JM Phelan

Chairman.