Non Raceday Inquiry HRNZ v CT Dalgety 17 December 2009 – decision

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hearing_title: Non Raceday Inquiry HRNZ v CT Dalgety 17 December 2009 - decision

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Decision:

BEFORE A JUDICIAL COMMITTEE
HELD AT CHRISTCHURCH 

IN THE MATTER of Information No. 67389

BETWEEN  BARRY ALEXANDER KITTO, Racecourse Inspector for Harness Racing New Zealand
  Informant

AND  CRAN TERRY DALGETY, Licensed Public Trainer
  Defendant

Date of Hearing: Thursday, 17 December 2009

Venue: Judicial Room, Addington Raceway, Christchurch

Judicial Committee:  R G McKenzie (Chairman,  J M Phelan
 
Date of Decision: 31 December 2009 

RESERVED DECISION OF JUDICIAL COMMITTEE
                   
The Charges

[1]  Information No. 67389, filed by Racecourse Inspector for Harness Racing New Zealand, Mr B A Kitto, against Licensed Public Trainer, Mr C T Dalgety, alleged that Mr Dalgety “being the trainer of the registered Standardbred horse HIP HOP ANVIL on the 10th day of November 2009, did take the said horse to a racecourse, namely the Addington Raceway, for the purpose of engaging in a race, namely Race 8, the NRM Sires Stakes Series Final, held by the New Zealand Metropolitan Trotting Club, and did fail to present the horse free of prohibited substances, namely “Caffeine, “Theophylline” and “Theobromine”.

BEFORE A JUDICIAL COMMITTEE
HELD AT CHRISTCHURCH 

IN THE MATTER of Information No. 67389

BETWEEN  BARRY ALEXANDER KITTO, Racecourse Inspector for Harness Racing New Zealand
  Informant

AND  CRAN TERRY DALGETY, Licensed Public Trainer
  Defendant

Date of Hearing: Thursday, 17 December 2009

Venue: Judicial Room, Addington Raceway, Christchurch

Judicial Committee:  R G McKenzie (Chairman,  J M Phelan
 
Date of Decision: 31 December 2009 

RESERVED DECISION OF JUDICIAL COMMITTEE
                   
The Charges

[1]  Information No. 67389, filed by Racecourse Inspector for Harness Racing New Zealand, Mr B A Kitto, against Licensed Public Trainer, Mr C T Dalgety, alleged that Mr Dalgety “being the trainer of the registered Standardbred horse HIP HOP ANVIL on the 10th day of November 2009, did take the said horse to a racecourse, namely the Addington Raceway, for the purpose of engaging in a race, namely Race 8, the NRM Sires Stakes Series Final, held by the New Zealand Metropolitan Trotting Club, and did fail to present the horse free of prohibited substances, namely “Caffeine, “Theophylline” and “Theobromine”.

[2] A letter signed by Mr Edward Rennell, General Manager of Harness Racing New Zealand, pursuant to Rule 1103 (4) (c) of the New Zealand Rules of Harness Racing, was produced.  

The Plea

[3] Mr Dalgety was present at the hearing of the information and indicated that he admitted the breach. The charge was found proved accordingly.

The Rules

[4] Rule 1004 of the New Zealand Rules of Harness Racing provides as follows:
1004 (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) . . . is committed regardless of the circumstances in which the prohibited substance came to be present in or on the horse.

The Facts
[5] The horse, HIP HOP ANVIL, trained by Mr Dalgety, was correctly entered for and started in Race 8, NRM Sires’ Stakes Series Final (Group 1), at the meeting of New Zealand Metropolitan Trotting Club held at Addington Raceway on Tuesday, 10 November 2009. HIP HOP ANVIL was 2/2 in the betting and finished in 3rd placing in the Race, earning stake money of $14,720.

[6] The horse was post-race swabbed and the urine sample was forwarded to the New Zealand Racing Laboratory Services for analysis. The Official Racing Analyst subsequently reported that Caffeine, Theophylline and Theobromine were detected in the sample.

[7] Caffeine is a prohibited substance under the New Zealand Rules of Harness Racing. It falls within the category of a central nervous system stimulant and any substance falling within that category is a prohibited substance.

[8] Mr Dalgety was interviewed by Mr Kitto on 27 November 2009. He advised that none of his racing team would have been treated with any Caffeine product within at least 10 days of racing and he always allowed for a margin of error.

[9] Mr Dalgety advised that a 1-litre container of “Itz Magic”, which contained Caffeine, had fallen over on the third shelf of his drug cabinet and items in the cabinet may have been contaminated. He believed that the positive swab by HIP HOP ANVIL may have happened through contamination.

[10] The cabinet was unlocked by Mr Dalgety in Mr Kitto’s presence. Mr Kitto described the cabinet as “a secure cabinet in excellent condition”.

[11] Mr Kitto said that, on examining the cabinet, it was obvious that there had been a spillage. On the bottom shelf, a large roll of cotton wool was badly stained with a blue colour. The stain was also apparent on the plungers of some “Boost” syringes.

[12] Mr Dalgety explained to Mr Kitto that he had used the cotton wool to clean up the three shelves and, instead of disposing of it, had left the cotton wool in a cardboard box on the bottom shelf  which contained drench sachets. Mr Dalgety admitted to Mr Kitto that he had not cleaned the cabinet properly after the spillage. It was likely that he had contaminated himself when touching the roll of cotton wool.

[13] The roll of cotton wool with the blue stain and a plastic bag containing six syringes of “Boost” with blue stain on the plungers were forwarded to the Racing Laboratory for analysis and Caffeine was detected on each. 

[14] Mr Dalgety supplied Mr Kitto with his “day diary” which is a comprehensive work record for horses in his stable. The diary did not show any horses being treated with “Itz Magic” since February 2009.

[15] Mr Kitto said that Mr Dalgety has always maintained a high standard of excellence in his training standards and is obviously very disappointed that he has failed to maintain that standard on this occasion. Mr Dalgety enjoys a reputation for high standards in integrity both within and outside of the harness racing industry, in which he has a lifetime involvement.

Penalty Submissions by the Informant

[16] Mr Kitto submitted that the matter could be dealt by means of a monetary penalty. He referred to the case of C (2008), which involved the same prohibited substances, in which the defendant was fined $3,000.

[17] Mr Kitto also referred to the other leading cases all of which, he said, had endorsed the principle that “there is nothing that is more likely to bring down the integrity of the racing industry generally than the fact that horses perform at meetings when they have been administered, whether innocently or for some ulterior motive, a prohibited substance”.

[18] Mr Kitto also referred to Rule 1114 (2) which provides:-
 On finding a breach proved the Judicial Committee . . . in imposing a penalty . . . may have regard to such matters as they consider appropriate including:
(a) the status of the race;
(b) the stake payable payable in respect of the race;
(c) any consequential effects upon any person or horse as a result of breach of the Rule;
(d) the need to maintain integrity and public confidence in Harness Racing.

[19] Mr Kitto pointed out that the Race was a Group 1 race, held on the most prestigious day on the harness racing calendar, for a total stake of $200,000. There had been no consequential effects on the horse’s owners as Mr Dalgety had paid out the stake won and had also paid the driver, D J Dunn, his winning percentage.

[20] The only aggravating factor, Mr Kitto submitted, was that Mr Dalgety had failed to clean up the spillage of “Itz Magic” in his drug cabinet.

[21] Mr Dalgety had cooperated openly and in a forthright manner during the investigation of the charge. He had sought to have the matter heard at the earliest opportunity and had admitted the charge, Mr Kitto said. It was an understatement to say that Mr Dalgety was “stunned” by what had happened.

[22] Mr Dalgety maintains very high standards in his training stables and is “devastated” by this lapse in his own high standards.

[23] Mr Kitto submitted that a fine higher than that imposed in the C case was appropriate.

Submissions by the Defendant

[24] Mr Dalgety said that the charge was an illustration of how a simple mistake could turn into a “catastrophe”.

[25] He was the third generation of “horse people”, he said, and was married with three young children. He had been training for 17 years and had taken over 3,000 horses to the races. He said he had worked hard to gain respect. He said that his name had now been “dragged through the gutter”. Facing this charge was the lowest point in his career, he said.  

[26] His stable has been “on a roll” lately and winning a lot of races. This fact intensified the public reaction to the charge and had brought allegations of “drug cheat”.

[27] He confirmed that he had compensated the owner of HIP HOP ANVIL for the stake lost and the driver of the horse for his percentage of the stake moneys.

[28] Mr Dalgety explained that he had used the product, “Itz Magic”, which was a popularly-used product, for over 20 years. None of his staff had access to or used his therapeutic treatments and he held the key to the locked cabinet. He believed that, when he shut the door, the container of “Itz Magic” had tipped over and trickled down the shelves and dried. When it dried, it crystallised. He believed that he had touched the saline sachets, with crystals on them, at the bottom of the cabinet when he had mixed them up. The contents of each sachet were mixed up in a container and were “stomach-tubed” to the horse.

[29] Mr Dalgety said that he believed that he had thoroughly cleaned the spillage but it was apparent he had not done so. He was surprised how such a small amount of the product could bring about these consequences.

[30] He acknowledged that the race involved was a major race and this had made things worse. It was fortunate, in retrospect, that HIP HOP ANVIL did not win that race. He reiterated that the situation had come about by a “simple mistake”.

[31] Two other runners, BETTOR’S STRIKE and HOLY HERO, trained by him were swabbed on the raceday and returned clear samples, Mr Dalgety said.

[32] Mr Kitto, given the opportunity to respond to Mr Dalgety’s submissions, stated that he had visited hundreds of stables and Mr Dalgety’s stables were, without question, a credit to him. His drug cabinet was probably the best he had ever seen, inasmuch as it was a modern steel cabinet and the key was placed in a secure hiding place that only Mr Dalgety had access to. The interior of the cabinet was very “orderly and tidy”, Mr Kitto said.

Disqualification of Hip Hop Anvil

[33] The Chairman read the relevant Rule, Rule 1004D:-
Any horse which has been taken to a racecourse for the purpose of engaging in a race which is found to have administered to it or ingested by it any prohibited substance shall be disqualified from that race.

[34] The Committee disqualified HIP HOP ANVIL from the Race. As a consequence, the amended result for the Race is as follows:-
 1st     15    Sir Lincoln
 2nd      9    Anvils Best Ever
 3rd       4    Franco Hendrix
 4th     11    Five Star Anvil
 5th     12    Glenalvon

[35] It is ordered that stakes be paid in accordance with that amended result.

The Penalty Rule

[36] The relevant penalty provisions are contained in Rule 1004 (7) which provides:-
 Every person who commits a breach of sub-rule (2) or (3) shall be liable to:
 (a)    a fine not exceeding $10,000.00; and/or
 (b)    be disqualified or suspended from holding or obtaining a licence for any specific period not exceeding 5 years.

Penalty

[37] The Committee believes that the most useful starting point in determining penalty in this case is the decision of the Judicial Committee in the 2008 case of C, referred to by Mr Kitto in his submissions (paragraph 16 above).

[38] In that case, a horse trained by C had returned a positive swab, to similar prohibited substances as HIP HOP ANVIL, after finishing 2nd in a race at Addington. It was established that the trainer trained from the same property as another trainer, had separate gear rooms, but shared the same feed room. A product belonging to the other trainer containing Caffeine was found in the feed room. It was established that C had used a feed bucket that had previously contained that product. The Judicial Committee found that there were no aggravating factors. C was fined the sum of $3,000.

[39] In Mr Dalgety’s case, there are a number of mitigating factors. Firstly, Mr Dalgety pleaded guilty to the charge at the earliest opportunity and cooperated fully with the investigation. Secondly, he has an unblemished record in 17 years as a trainer. Thirdly, Mr Kitto spoke in glowing terms of the impeccable standard of his training establishment and, in particular, the state of his drugs cabinet and the esteem in which Mr Dalgety is held in harness racing. Fourthly, Mr Dalgety had reimbursed the connections and driver of HIP HOP ANVIL for the lost stake and percentage respectively. Finally, Mr Dalgety’s contrition was clear to the Committee.

[40] The positive swab returned by HIP HOP ANVIL was the result of a most unfortunate set of circumstances. The container of the product, “Itz Magic”, had tipped over in the cabinet where it was kept and some of the contents had trickled down on to other items stored in the cabinet, including some sachets of a saline drench which Mr Dalgety used on his horses prior to racing. Mr Dalgety, who told the Committee that he is the only person  who has access to the secure drugs cabinet, became aware of the spillage, and took what he believed were adequate steps to clean up the spillage. In retrospect, those steps were not adequate but it would, in the Committee’s view, be unfair to Mr Dalgety to say that he was negligent in not taking proper care in doing so.  The Committee is sure that, at the time, he took what he believed were all proper steps and, but for sheer misfortune, may have been adequate. The fact that two other horses trained by Mr Dalgety, which had both received the identical pre-race treatment to HI P HOP ANVIL, were swabbed on the day and tested clear indicates the degree of misfortune, or sheer bad luck.

[41] The consequences for Mr Dalgety - the disqualification of the horse, the public disapproval, the stain on his reputation and the inevitable penalty - are out of all proportion to the circumstances of how the positive swab came about. However, those consequences illustrate the extremely high standard of care that a trainer must observe to avoid such happenings. 

[42] The Committee must take into account the status of the Race and the stake payable (see paragraph 19 above) and, as always, the need to maintain integrity and public confidence in harness racing. Because Mr Dalgety had reimbursed the connections and driver, the consequences to other persons were minimal.

[43] Referring again to the case of C, it is fair to say that the defendant in that case had not exercised quite the degree of care that Mr Dalgety had. The Committee puts the degree of negligence in the present case below that of the defendant in the C case.

[44] Mr Kitto submitted that a fine higher than that imposed by the Judicial Committee in the C case ($3,000) was appropriate. The Committee agrees, but only having regard to the status of the Race and the stake payable. In other respects, the present case is less serious than or, at worst, on a par with the C case.

[45] The mitigating factors referred to in paragraph 39 above are weighty and the Committee has taken them into account in arriving at a penalty in this case.

[46] Having regard to all of the circumstances of this case, the Committee fines Mr Dalgety the sum of $3,500.

Costs

[47]  Mr Kitto did not seek an order for costs on behalf of Harness Racing New Zealand. However, although the hearing of the charge took place on a raceday, it was in the nature of a non-raceday inquiry and, therefore, it is appropriate to make an order for costs in favour of the Judicial Control Authority. Mr Dalgety is ordered to pay costs in the sum of $350 to that body.

 
R G McKENZIE            J M PHELAN
Chairman                     Panellist
 

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