hearingid: b0d15aa19c390f09ffa8ca76a243c13c

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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 - G C Small - 18 Dec 08 6

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Decision:

The defendant is charged with one breach of Rule 1004(1), (2) and (4), 1004(7)(a) and (b), (8), and 1004D of the Rules of Harness Racing.  The charge (Information 67386) preferred by Racecourse Inspector Kitto reads as follows –

          “I, the above named informant allege that the above named Defendant

committed a breach of Rule 1004(1),(2) and (4), 1004(7)(a)(b), (8), and 1004(D) in that Geoffrey Clemment SMALL,  being the Trainer of the Registered Standard bred horse “Rowan Direct” on the 15^th  day of August 2008,  did take the said horse to a racecourse, namely, Alexandra Park,  for the purpose of engaging in a race, namely Race 9, the Sims Pacific Metals Mobile  pace held by the Franklin Trotting Club,  and did fail to present the horse free of  prohibited substances, namely, Dimethyl Sulphoxide.”

BEFORE A JUDICIAL COMMITTEE

AT AUCKLAND      

IN THE MATTER of the

New Zealand Rules of

Harness Racing

                                                BETWEEN                 Barry Alexander KITTO                                                                               

Informant

AND                           Geoffrey Clemment SMALL

                                    Defendant

APPEARING:                                                Chief Racecourse Inspector Mr T. R. Carmichael for Harness Racing New Zealand.

                                                                        Mr R. Lawson representing Mr Small

                                                                        Mr G. C. Small

                                                                        Ms R. Bak – Registrar

DATE OF HEARING:                                  18 December 2008

JUDICIAL COMMITTEE:                J. M. Phelan (Chairman)

                                                                        B. J. Rowe

DATE OF DECISION:                                    12 January 2009

                               DECISION OF THE JUDICIAL COMMITTEE

The defendant is charged with one breach of Rule 1004(1), (2) and (4), 1004(7)(a) and (b), (8), and 1004D of the Rules of Harness Racing.  The charge (Information 67386) preferred by Racecourse Inspector Kitto reads as follows –

            “I, the above named informant allege that the above named Defendant

committed a breach of Rule 1004(1),(2) and (4), 1004(7)(a)(b), (8), and 1004(D) in that Geoffrey Clemment SMALL,  being the Trainer of the Registered Standard bred horse “Rowan Direct” on the 15^th  day of August 2008,  did take the said horse to a racecourse, namely, Alexandra Park,  for the purpose of engaging in a race, namely Race 9, the Sims Pacific Metals Mobile  pace held by the Franklin Trotting Club,  and did fail to present the horse free of  prohibited substances, namely, Dimethyl Sulphoxide.”

Rule 1004(1), (2) and (4)

Penalty Provision Rules 1004 (7)(a)(b), and (8) and 1004D.

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 Lawson had earlier advised, on behalf of Mr Small, that this charge was

admitted, and this was confirmed at the hearing.

Mr Carmichael produced a letter from the General Manager of HRNZ giving approval to charge Mr Small with this breach of the Rules.  Also produced was a record of the official placings in the Pacific Metals Mobile Pace; a swab card showing details of the swab being taken, and a Certificate of Analysis from Dr Beresford of the New Zealand Racing Laboratory notifying the positive test to Dimethyl Sulphoxide (“DMSO”).

Summary of Facts:  

Mr Carmichael presented a “Summary of Facts” which is attached to this decision.  Mr Small was the trainer, and the person for the time being in charge, of the horse “Rowan Direct” which was correctly entered for and started in Race 9, the Pacific Metals Mobile Pace, at the Franklin Trotting Club’s meeting at Alexandra Park on 15 August 2008.  “Rowan Direct” won the race and earned gross stake money of $6055-00.

“Rowan Direct” was post race swabbed and the sample sent to the Racing

Laboratory.  On 1 September 2008 the Racing Analyst advised that the sample had tested positive to DMSO, which is a prohibited substance when present in urine at a concentration of more than 15 milligrams per litre.  The analysis detected a concentration of 68 milligrams per litre.  The recommended withholding time for DMSO is 48 hours, based on a dose of 50 grams.

Mr Small was interviewed about this matter on 3 September and 3 October 2008. He admitted administration of DMSO about 56 hours before “Rowan Direct” raced.  However 150 grams was administered on the directions of Mr Small’s Veterinarian, Doctor Corrine Hills.

Doctor Hills made a statement confirming that she had dispensed DMSO to Mr Small, and provided him with instructions for use and recommendations regarding withdrawal times.  She said that for the previous 2 years there had been the widespread understanding among veterinarians in New Zealand that the use of 150 grams 2 days before racing has been widely reported, and as a result she had recommended her clients administer no more than 150 grams at least 2 days before racing.

It was established the dose recommended by the New Zealand Equine Veterinary Association (“NZEVA”) Detection list guide should have been a maximum of 50 grams with a withholding time of 2 days.

Submissions on Penalty: 

Mr Carmichael’s written submissions on penalty are also attached to this decision.  The New Zealand Rules of Harness Racing provide for the following penalties in this case.

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

(a) a fine not exceeding $10,000;  and/or

(b) 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.”

Mr Carmichael advised that Mr Small should be given credit for –

- His early admission of the breach.

- The fact that the administration of the DMSO was carried out on the instructions and guidance of his veterinarian.

- That subsequent tests carried out by the Official Racing Veterinarian cast some doubts upon the validity of recommended withholding times.

Mr Carmichael recommended that a starting point in this case is a fine of

$750-00.

Mr Lawson made written submissions on penalty on behalf of Mr Small, and these are also attached to this decision.  The following points were made by Mr Lawson.

- The breach was admitted.

- There was full cooperation during the investigation.

- That the obvious reason for the positive swab was that advice was taken from a veterinarian who has agreed that incorrect advice was given. 

- That trainers have no way of knowing doses and withholding times, as that information is only available to members of the Veterinary Association.

It was agreed that Mr Carmichael’s recommendation of $750-00 as a

starting point for a penalty in this case was fair.  No precedent for a case like th

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hearing_type: Old Hearing

Rules: 1004.1, 1115.4

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