Non Raceday Inquiry – HRNZ v M Purdon 1 August 2011 – Decision 8 August 2011

hearingid: 90f931144b122edd186f85c6c1724c32

informantnumber: 67324

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decisiondate: 05/08/2011

hearing_title: Non Raceday Inquiry - HRNZ v M Purdon 1 August 2011 - Decision 8 August 2011

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appealdecision: NO LINKED APPEAL DECISION

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Decision:

BEFORE THE JUDICIAL COMMITTEE OF THE JUDICIAL CONTROL AUTHORITY HELD AT CHRISTCHURCH

IN THE MATTER OF

HRNZ (THOMAS RODNEY CARMICHAEL, Chief Racing Investigator)
Informant

AND

MARK PURDON, Public Trainer and Open Horseman

Defendant

Information Number: 67324
Date of hearing: 1 August 2011
Committee: Prof G Hall, Chairman - Mr R McKenzie, Committee Member
Counsel: Mr R Carmichael for Informant - Mr R Sandford for Defendant
Date of Decision: 8 August 2011

DECISION OF JUDICIAL COMMITTEE

[1] The defendant, Mr Mark Purdon, has admitted a breach of r 1004(1) and (2) (the prohibited substance rule). This breach arises from the detection of the substance Clenbuterol in a routine race day sample.

[2] In accordance with Rule 1111(1)(d) we find the charge proved.

[3] The penalty provision is r 1004(7) which provides for the imposition of a fine not exceeding $10,000, and/or disqualification or suspension from holding or obtaining a licence for any specific period not exceeding 5 years. In addition, 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 5 years: 1004(8).

The facts

[4] We set out the summary of facts, with only minor changes, as helpfully contained in the submissions of counsel for the informant.

1. On 18 February 2011 the horse FLY LIKE AN EAGLE was correctly entered for and started in race 3 (Breckon Bloodstock Young Guns Heat 6 Mobile Pace) at a race meeting conducted by the Auckland Trotting Club at Alexandra Park.

2. FLY LIKE AN EAGLE finished first, earning gross stake money of $12,500.

3. FLY LIKE AN EAGLE was selected as a post-event swab. During the swabbing process the horse was accompanied by stable foreman Mr Jeremy Young. He did not report any difficulties or irregularities with the collection and packaging of the samples from FLY LIKE AN EAGLE. He signed the swab card accordingly.

4. At the conclusion of the meeting the samples were checked by Ms Catherine Pemberton (veterinarian) and Mr Rodney Carmichael (Chief Racing Investigator) and then placed, together with the other race day samples, into a tamper proof courier security bag for transit to the Racing Laboratory. The samples were delivered by courier to the Racing Laboratory where they were received on 22 February 2011 with all seals intact.

5. On 3 March 2011 Mr Rob Howitt, the Racing Analyst, reported in writing that the sample from FLY LIKE AN EAGLE had tested positive to Clenbuterol.

6. Clenbuterol is a sympathomimetic amine used by sufferers of breathing disorders as a decongestant and bronchodilator. In equine medicine it is used for the treatment of respiratory disease and to relieve bronchospasm. Indications include equine influenza and other viral infections. It is also a nonsteroidal anabolic and metabolism accelerator.

7. Clenbuterol is therefore a prohibited substance within the meaning of the Rules of Harness Racing. The presence of Clenbuterol in a race day sample is, prima facie, a breach of the Rules.

8. The defendant was interviewed in connection with the offence at his Pukekohe satellite stables on 4 March 2011.
9. Mr Purdon accepted that the product Ventipulmin (Clenbuterol) had been prescribed by his veterinarian for general use within the stables to treat horses suffering from viral infections. He said that he was unsure if FLY LIKE AN EAGLE was one of those horses. Mr Purdon said that the day to day running of the stables was the responsibility of a stable foreman. Mr Purdon had been in Australia prior to the meeting at Auckland on 18 February 2011 but confirmed that he was at the Pukekohe stables at least two days before the meeting. Mr Purdon attended the races on 18 February 2011 and actually drove FLY LIKE AN EAGLE.

10. Two containers of Ventipulmin (Clenbuterol) were located on a shelf in the stables. One of these was labelled with a recommended withholding time, whilst the other was not so labelled. In any event, the withholding time quoted was not strictly correct in that the NZEVA guidelines suggest an additional 24 hours should be added to the withholding period. It was also noted that the Ventipulmin was prescribed for "general use" and not specific.

11. A feed bucket, identified as being the bucket used for feeding FLY LIKE AN EAGLE, was also checked. Scrapings from this bucket were forwarded to the Racing Laboratory for analysis. On 17 March 2011 the Racing Analyst reported in writing that the scrapings from the bucket tested positive to Clenbuterol.

12. Interviews with the stable foreman and stable-hand Ms Kelly Blakemore indicated that the horse had been fed from an unmarked container of Ventipulmin (Clenbuterol) and it was only when a second correctly marked container was used after the race, that the two of them suspected that there was a possibility that the horse had been given feed containing the drug within the withholding time.

13. In a signed Acknowledgement of Conditions for 2010/2011 season, dated 1 July 2010, Mr Purdon agreed, at paragraph 1, that: "I will at all times be responsible for the conduct of both stable operations and compliance with the Rules of Harness Racing at both stables".

[5] The informant accepted this breach of the Rules arose primarily from carelessness by Mr Purdon’s staff, and through the inconsistent labelling of medication. Mr Carmichael stated that when he questioned the defendant on 4 March last, Mr Purdon said was unaware that FLY LIKE AN EAGLE was on any treatment of any kind. Mr Carmichael submitted that the overall responsibility for the stable, however, rested clearly with the defendant and, given that he was at the stables for at least 2 days prior to the race meeting, he should have made himself aware of any treatment of the horses that were to race.

[6] Mr Sandford stated that the defendant “conceded and acknowledged” that the summary of facts prepared by the Chief Racing Investigator was “fair and correctly recorded the facts leading to the laying of the most recent information against Mr Purdon.” Significantly, he accepted that “the facts as established, and the statements made by Mr Purdon and his staff, clearly support that the breach of the Rules has been caused by either gross carelessness or negligence.” He emphasised that while it was apparent there was quite some degree of confusion at the Pukekohe stable, there had been no intentional administration of a prohibited substance. Mr Carmichael did not disagree with this submission.

Submissions as to penalty
[7] The informant submitted that neither disqualification nor suspension was appropriate and that the matter could properly be disposed of by way of a fine in the order of $3000. Mr Carmichael said this was consistent with the penalties imposed in the following cases:
HRNZ v P (31 August 2007);
HRNZ v L (18 May 2007);
HRNZ v B (10 July 2009); and
HRNZ v D (31 December 2009).

[8] These offences involved the administration of the drug either by the trainer or upon his/her direction, but in circumstances where the offences involved acts of negligence.

[9] Both parties accepted the following mitigating circumstances were present:
• The defendant has accepted responsibility for the actions of his staff and absolves his co-trainer and stable foreman;
• The defendant has admitted the offence at the first opportunity and has consented to the matter being determined in his absence;
• The substance detected has a legitimate therapeutic use in equine medicine and, although properly prescribed, the container from which the substance was administered to FLY LIKE AN EAGLE did not have the withholding time noted upon it.

[10] Mr Sandford stated that Mr Purdon accepted that the informant’s recommendation that a fine should be imposed was “fair and consistent taking into account the fact that the breach of rules was not intentional.” He referred to the cases identified by the informant and noted previous cases of negligence involving prohibited substances have resulted in the imposition of fines and costs.

[11] Mr Sandford further submitted that Mr Purdon had taken responsibility for his actions and had honoured his undertaking given to HRNZ concerning the satellite stable. The defendant had acted responsibly and had cooperated fully in having the matter dealt with promptly despite the fact that he was absent and working in Australia. Mr Carmichael acknowledged that this was the case.

[12] Both counsel referred us to an official notice issued by the Chief Stipendiary Steward, Mr George, in relation to drug testing and the fact that the Racing Integrity Unit would be seeking increased penalties for “any person charged for positive swabs.” This notice was issued after the defendant’s breach of r 1004 and thus he had no notice of this policy being adopted by the Racing Integrity Unit. That said, the need to maintain integrity and public confidence in harness racing has always been a consideration under r 1114(2) and we propose to give weight to this factor in our decision.

[13] With respect to the defendant’s record, Mr Sandford stated that Mr Purdon was arguably “Australasia's most successful harness horse trainer” and that he had carved out a history of success rivalled probably only by his father. Apart from one specific matter, he said, which was the “Blue Magic” charges, his record had been exceptional and free of controversy. As an indication of Mr Purdon’s recent successes, Mr Sandford noted the defendant had a record of 65 starters in the Harness Jewels resulting in 12 wins, 11 seconds, 7 thirds and 4 fourths, with stakes in excess of $1.5 million.

[14] With respect to the “Blue Magic” charges, the informant indicated that they did not believe that these were relevant to the charges before us today. We note that these were charges against r 1001(1)(v)(i) (acting in a manner detrimental to the interests of harness racing) and were heard some five and a half years ago, whilst the charges before us today relate to drug negligence. The informant submitted that the defendant, who has not re-offended in this time, could be treated as “a first offender” and we propose to do so.

[15] Mr Sandford submitted that having regard to all the circumstances of the case, a fine of $2,500 was appropriate.

Decision and reasons
[16] We accept there is no evidence of deliberate administration. The Pukekohe satellite stable of Mr Purdon appears to have got itself into quite a muddle concerning the administration of the drug Clenbuterol when there was a viral infection in the stable. We note that the veterinarian who had supplied the drug had not ensured that all containers of the drug were correctly labelled but, that said, the onus is on Mr Purdon and his staff to ensure that the drug is given to a horse within the correct withholding times. It is clear one of the container used was labelled and another was not and, it was not until the container with “4 days withholding” written on it was used, that the issue was raised by Mr Young with Ms Blakemore, who had administered the drug to the horse in its feed. This conversation was not until the Monday after the horse had raced and she was uncertain as to whether FLY LIKE AN EAGLE had been given the drug in its feed within the 4 day period prior to racing. It is also apparent that there was further confusion as to the withholding period, with the further 24 hours that the NZEVA guidelines suggest, not having been factored in to the use of the drug.

[17] We accept Mr Sandford’s submission that Mr Purdon had no direct knowledge of the conduct of his staff relating to the administration of the prohibited substance, and his further submission that it is to Mr Purdon’s credit that he stands by his undertaking to HRNZ on 1 July 2010 and takes the blame himself and has not endeavoured to pass this on to his employees, who were negligent in the performance of their duties. We note, however, that the defendant was at the stable for 2 days prior to his driving FLY LIKE AN EAGLE and therefore had time to assure himself, were he so minded, that a prohibited substance had not been administered to the horse. An inquiry of this nature would not be unexpected in circumstances where he knew horses in the stable were being treated for a virus.

[18] We view the defendant’s description of the breach being caused by gross carelessness or negligence as being most apt. It is a risk that trainers who are operating satellite stables take. They are reliant on the actions of their staff and thus they need to ensure that the person who is running the stable is a person in whom their trust and faith can be safely vested. It is evident the drug Clenbuterol had been properly prescribed for general use in the Pukekohe stable but the withholding time had not only been miscalculated but was unknown at the relevant time to both the person feeding the horse and the person supervising that person. Clearly better procedures needed to be put in place, and we would trust that in light of this charge, that the necessary modifications to stable procedures have been implemented.

[19] The breach is serious in that a winning horse has returned a positive result. The consequence of this, of course, is that FLY LIKE AN EAGLE will be disqualified from the race and the connections will lose the stake of $12,500.

[20] A further significant issue is that people investing on the race were unaware that one horse in the race was obtaining an advantage through competing when having been treated with a prohibited substance. The integrity of harness racing can legitimately be questioned in these circumstances. The penalty we impose has to reflect to this fact. The defendant’s carelessness needs to be denounced and he must be held accountable.

[21] The defendant’s personal circumstances are clearly favourable. He is a Public Trainer and Open Horseman, licensed under the New Zealand Rules of Harness Racing. He has been involved in the racing industry for more than 30 years, and has held a trainer’s licence on his own account since the 1995/96 racing season. He has a very good record and has achieved results of high distinction in an industry to which he is clearly dedicated.

[22] The defendant has admitted the breach immediately upon the amended information being laid, and he has fully cooperated in the Racing Integrity Unit’s investigation.

[23] The informant and defendant are not far apart in their submissions as to the appropriate penalty. One submits a fine of $3,000, and the other, $2,500. After considering the cases cited to us and weighing the gravity of the breach against the defendant’s personal circumstances, we believe the higher figure is the appropriate sum. We fine the defendant the sum of $3,000.

[24] Rule 1004(8) provides for the mandatory disqualification of a horse presented to race when a prohibited substance has been detected. We formally order that FLY LIKE AN EAGLE be disqualified from race 3 at the race meeting conducted by the Auckland Trotting Club at Alexandra Park on 18 February 2011, and that the stakes be paid accordingly.

[25] The amended result is:
1st 4 IDEAL SCOTT
2nd 3 LETS ELOPE
3rd 2 BETTOR REASON
4TH 1 MR NICKEL
5th 6 VILLAGE RED

Costs
[26] The informant made no submissions as to costs. The defendant submitted that if this committee was of a mind to impose costs then these should be in line with previous decisions and not be significant due to the fact that Mr Purdon has admitted the breach and incurred the costs of instructing counsel to appear for him in his absence.

[27] No costs are awarded in favour of the informant, but the defendant is ordered to pay a contribution to the costs of the Judicial Control Authority in the sum of $650.

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Refer above.

hearing_type: Non-race day

Rules: 1004(1)and (2)

Informant: Mr R Carmichael - Chief Racing Investigator

JockeysandTrainer:

Otherperson:

PersonPresent: Mr R Sandford - Representing Mr Purdon

Respondent: Mr M Purdon - Public Trainer and Open Horseman

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