Non Raceday Inquiry – HRNZ v EH Downey – 24 June 2011 – Decision 26 June 2011

hearingid: cf21b9e633cf1b49c8c3e86b1b378716

informantnumber: 68920

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decisiondate: 23/06/2011

hearing_title: Non Raceday Inquiry - HRNZ v EH Downey - 24 June 2011 - Decision 26 June 2011

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appealdecision: NO LINKED APPEAL DECISION

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Non Raceday Inquiry - HRNZ v E H DOWNEY - Decision 24 June 2011
Rules:  1004(1) and (2)
Information Number:  68920
BEFORE A JUDICIAL COMMITTEE HELD AT AUCKLAND
IN THE MATTER of Harness New Zealand Rules of Racing
BETWEEN Thomas Rodney CARMICHAEL
Informant
AND Errol Hebert DOWNEY
Defendant
JUDICIAL COMMITTEE: Mr Gavin Jones (Chair) and Mr Bryan Scott (Member)
VENUE: Alexandra Park, Auckland
PRESENT: Mr Errol Downey, the Defendant, public trainer, Mr Thomas Carmichael (Racing Investigator) and Mr R Quirk (Registrar)
DATE OF HEARING: 24 June 2011
DATE OF ORAL DECISION: 24 June 2011
DATE OF REASONS FOR DECISION: 26 June 2011

Reason for Decision on Penalty

1) A charge was brought against the Defendant, Mr. Downey alleging “that on the 3rd day of February 2011 at Cambridge Raceway, Errol Herbert Downey committed a breach of Rule 1004(1) and (2) in that he was the trainer of the horse Remington which was presented to race in race six (Mico Te Rapa Junior Drivers Mobile Pace) at a race meeting conducted by the Cambridge Te-Awamutu Harness Racing Club; and Errol Herbert Downey is therefore liable to the penalty or penalties that may be imposed pursuant to Rule 1004(7) and 1004 (8)”
2) Harness Racing New Zealand (HRNZ) Rules relating to Prohibited Substances provide that:
A horse shall be presented for a race free of prohibited substances - Rule 1004 (1).
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 - Rule 1004 (2).
Where a person is left in charge of a horse, and the 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 and the person left in charge both commit a breach of these Rules – Rule 1004 (3).
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.
3) HRNZ Rules relating to Penalties provide that:
Every person who commits a breach sub-rule (2) or (3) shall be liable to:
a) A fine not exceeding $10,000 (Rule 1004 7a) , and/or
b) Be disqualified or suspended from holding or obtaining a licence for any specified period not exceeding five years (Rules 1004 7b).
c) Any horse connected with a breach of sub-rule (1) or (2) shall be disqualified from any race entered and/or liable to a period of disqualification not exceeding five years (Rule 1004 (8)).
4) At the commencement of the hearing Mr Carmichael sought leave to amend the information to include reference to the prohibited substance. The charge was amended as follows:
On the 3rd day of February 2011 at Cambridge Raceway, Errol Herbert Downey committed a breach of Rule 1004(1) and (2) in that he was the trainer of the horse Remington which was presented to race in race six (Mico Te Rapa Junior Drivers Mobile Pace) at a race meeting conducted by the Cambridge Te-Awamutu Harness Racing Club; when the said horse was found to have been administered to it a Prohibited Substance, namely, Phenylbutazone and Errol Herbert Downey is therefore liable to the penalty or penalties that may be imposed pursuant to Rule 1004(7) and 1004 (8).
5) The amened charge was put to Mr Downey who acknowledged its nature and substance and confirmed his guilty plea. He also acknowledged that he had seen all the relevant documents and that he accepted the evidence.
6) Mr Downey confirmed that he had no issues or concerns with the proposed procedure for the conduct of the hearing.
7) Given that Mr Downey admitted the Rule breach. The charge is therefore proved.
8) Mr Carmichael presented an agreed summary of facts. The key relevant points are as follows:
a) The Defendant, Mr Downey is licensed to train under the New Zealand Rule of Harness Racing and has held a Trainers licence since 1990.
b) On 3 February 2011 the horse Remington was correctly entered for and started in race six, the Mico Te Rapa Junior Drivers Mobile Pace, at a race meeting conducted by the Cambridge Te Awamutu Harness Racing Club at Cambridge Raceway.
c) Remington finished in third place, earning stake money of $420. The official results of the race were:
1st Lightning Magic
2nd Miysis
3rd Remington
4th Matai Mies
5th Kissimmee-Simon
d) A post race swab was taken from Remington and submitted to the Racing Laboratory in Auckland. Upon analysis the swab sample was found to contain Phenylbutazone which is a Prohibited Substance within the Rules of Harness Racing.
e) Phenylbutazone is also referred to a ‘Bute’ and is a non-steroidal anti-inflammatory drug (NSAID), used for the short term treatment of pain including symptoms of analgesia and antipyresis.
f) The presence of Phenylbutazone in a race day sample is prima facie, a breach of the Prohibited Substance Rule.
g) When interviewed regarding the positive test Mr Downey advised that he did not intentionally administer Phenylbutazone or any like product to Remington. However he acknowledged that he had been treating another horse in his stable with Phenylbutazone since early January 2011 and raised the possibility that Remington could have been administered Phenylbutazone from a contaminated feed bucket.
h) As a result samples from four feed buckets at Mr Downey’s stables and a urine sample from Remington were tested by the Racing Laboratory. Upon analysis all four buckets tested positive to Phenylbutazone. The urine sample tested negative.
i) In the absence of any other possibility, both the Informant and Defendant agree that it is most likely that Remington inadvertently ingested Phenylbutazone through a contaminated food bucket.
9) In response to the summary of facts Mr Downey submitted:
a) That he has four horses in his stable and Remington is the only one currently in work and racing.
b) That one of the four horses in the stable is currently being treated for an injury and he took personal responsibility for caring for that horse and his son took care of the other three, including Remington.
c) That there were four feed buckets in the stabling area and he took particular care in insuring that the feed bucket used by the injured horse was isolated.
d) That his son or other persons who assisted with feeding the other three horses must have mistakenly used the bucket.
e) That he accepted full responsibility and was not seeking to blame anyone for the mistake.
f) That he was not aware of the quantity of the prohibited substance that was detected but that it must have been minute.

Submissions as to Penalty
Mr Carmichael submitted:
10) That Mr Downey had not taken proper care and the inadvertent ingestion of Phenylbutazone could have been avoided had Mr Downey taken steps to properly label and isolate the bucket used to mix food for the horse in his stable that was being treated with Phenylbutazone.
11) That the breach involved acts of negligence.
12) That there is no requirement under the Rules to quantify the amount of Prohibited Substance detected.
13) That the Racing Integrity Unit were seeking a fine in the order of $3000 which is in keeping with similar cases including:
HRNZ and J P (31 August 2007) – Penalty $2500 fine
HRNZ and Ms L (18 May 2007) – Penalty $2000 fine
HRNZ and M B (10 July 2009) – Penalty $2000 fine
HRNZ and C D (31 December 2009) – Penalty $3500 fine
14) That the circumstances of the cases referred to varied and that a fine of $2500 may be an appropriate starting point.
15) That neither disqualification nor suspension is sought in terms of Mr Downey’s licence to train, but the mandatory disqualification of Remington is sought.
16) That Mr Downey has held a Trainers Licence for more than 20 years. He has an unblemished record and is highly regarded amongst his peers.
17) That Mr Downey admitted the breach at the first opportunity and consented to the matter being heard on a race day to limit administration costs.
18) That the substance detected has legitimate therapeutic use in equine medicine and was properly prescribed for an injured horse in Mr Downey’s stable.
19) That the Racing Integrity Unit does not seek costs in connection with the investigation or hearing.
Mr Downey submitted:
20) That he had been involved in racing for several years and that he operated a small team, mainly to assist with the development of his son who is a promising Harness Driver. He loved the industry and would never cheat or knowingly take a horse to the races with a banned substance.
21) That in terms of the fine recommended by the Informant, he asked the Committee to take into account the fact that he has a very small stable which is only sustainable because it is supplemented by income derived from another source. And that he has learned a lesson from this incident.
22) In response to Mr Carmichael’s submission that this was a case of negligence the Committee sought his opinion as to where this incident sat on the continuum of seriousness in terms of negligence. He advised the Committee that in his experience there were generally three levels of negligence; deliberate, gross and a failure to take proper care. He said that this was a case of Mr Downey failing to take proper care and therefore at the lower end of the scale. 
23) Having carefully considered the facts and submissions lodged by the Informant and Defendant, the Committee accepts that although Mr Downey was negligent in not taking proper precautions to isolate the feed bucket his actions were not deliberate or intentional. We agree with the assessment that this breach is at the lower end of negligence.
24) There are no particular aggravating features about this case, other than the fact that Mr Downey or some other persons failed to isolate the feed bucket that was being used by the horse which was under treatment.
25) The Committee acknowledges that Mr Downey has held a Trainers Licence for more than 20 years; he has an unblemished record and cooperated with all investigative steps. In addition we note that the prohibited substance had been properly prescribed for use on another horse in his stable. We consider that these are all mitigating factors.
26) The Committee has taken guidance from similar decisions and penalties resulting from breaches of this Rule and in particular noted similarities and points of difference.
27) The Committee has also given due weight to the status and stake of the race in which Remington finished in third pace, the consequence of the breach and Mr Downey’s personal circumstances. We have also given considerable thought to the need to maintain integrity and public confidence in Harness Racing as well as the need for consistency in decision making.

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28) Taking all of the above matters into account, we impose the following penalties and make the following orders:
a) That the Defendant is fined $1800.
b) That although this matter was heard on a raceday it was conducted in the nature of a non-race hearing. On that basis an order is made for costs of $350 in favour of the Judicial Control Authority. It is noted that the Racing Integrity Unit did not seek an order for costs.
c) That pursuant to Rule 1004 (8) Remington is disqualified from 3rd placing in Race six, (the Mico Te Rapa Junior Drivers Mobile Pace); and
d) That all stake money earned as a result of finishing in third place be refunded to HRNZ; and
e) That placings for the race be amended as follows:
1st Lightning Magic
2nd Miysis
3rd Matai Mies
4th Kissimmee-Simon

G R Jones (Chair)             B Scott (Committee)
 

hearing_type: Non-race day

Rules: 1004(1) and (2)

Informant: TR Carmichael - Racing Investigator

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Respondent: EH Downey - Trainer of REMINGTON

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