Non Raceday Inquiry – HRNZ v RJ McKenzie 8 December 2011 – Decision dated 21 Janaury 2012
ID: JCA16861
Decision:
BEFORE THE JUDICIAL CONTROL AUTHORITY
UNDER THE RACING ACT 2003
HELD AT CAMBRIDGE
IN THE MATTER of the New Zealand Rules of Harness Racing
BETWEEN Mr THOMAS RODNEY CARMICHAEL (on behalf of HARNESS RACING NEW ZEALAND)
Informant
AND Mr Roderick John Mackenzie - Licensed Trainer
Defendant
Information No: 69110
Venue: Cambridge Raceway, Cambridge
Judicial Committee: BJ Scott (Chairman), AJ Dooley (Committee Member)
Appearing: Mr M Branch - Counsel for the Informant, Mr TR Carmichael – Racing Investigator, Mr W Dollimore - Counsel for Mr Mackenzie,
Mr RJ Mackenzie in person
Plea: Not admitted
Date of Hearing: 8th December 2011
DECISION OF JUDICIAL COMMITTEE
1.1 Mr Mackenzie was charged pursuant to Rules 1004(1) and 1004(2) that on the 1st day of March 2011 at Alexandra Park he was the Trainer and the person in charge of the horse AVERIL’S QUEST which was presented to race in a Qualifying Trial at a Race Meeting conducted by the Kumeu Trotting Club when the said horse was found to have administered to it a drug namely Phenylbutazone.
By letter dated the 17th of March 2011 the Operations Manager of the Racing Integrity Unit gave approval for the charge to be lodged against Mr Mackenzie and pursuant to that charge a Hearing was also to be held into the positive test produced by AVERIL’S QUEST.
1.2 Rule 1004(1) provides:
“A horse shall be presented for a race free from prohibited substances.”
Rule 1004(2) provides:
“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(3) provides:
“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(4) provides:
“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.”.
1.3 Mr Mackenzie did not admit the breach.
1.4 It would appear that for Mr Mackenzie’s convenience a Hearing into the positive test returned by AVERIL’S QUEST was held the next day on the 18th of March 2011. This was during the Meeting held by the Kumeu Trotting Club at Alexandra Park Raceway that evening.
1.5 We are told that the purpose of having that Hearing so quickly was to enable Mr Mackenzie to requalify his horse. This was for Mr Mackenzie’s benefit and no other.
1.6 The Judicial Committee at that Hearing in its Decision stated the following:
“Mr Mackenzie accepted the facts as presented by Mr Carmichael. He said that he wanted AVERIL’S QUEST disqualified so that he could requalify it as soon as possible. He said that there were only a limited number of trials available in the near future.
The Chairman told Mr Mackenzie that in order to disqualify AVERIL’S QUEST the Committee had to be satisfied there had been a breach of Rule 1004(1) and in the existing circumstances that required an acknowledgement by him that the Rule had been broken.
Mr Mackenzie said that he did not challenge the analysis and gave the necessary acknowledgement.”.
1.7 Mr Mackenzie endorsed the Information with the following:
“I reserve the right to defend the charge under Rule 1004(1) (2) and (7). I consent to AVERIL’S QUEST being disqualified under Rule 1004(8) and wish that to be effected.”
1.8 The Judicial Committee duly disqualified AVERIL’S QUEST from the Qualifying Trial on the 1st of March 2011. The Committee then adjourned the charge against Mr Mackenzie to a time, date and place to be fixed by the Executive Officer of the Judicial Control Authority.
1.9 For the sake of clarity it is useful to outline the chronology of events as follows:
(a) AVERIL’S QUEST raced in a Qualifying Trial at Alexandra Park on the 1st of March 2011.
(b) Following that trial, AVERIL’S QUEST underwent drug testing.
(c) The positive result of that drug test was communicated to Mr Carmichael on the 14th of March 2011.
(d) Mr Carmichael discussed the result of the test with Mr Mackenzie on the 15th of March 2011.
(e) An authority from the General Manager of the Racing Integrity Unit to proceed with charges arising from the positive test was given by letter dated the 17th of March 2011.
(f) Mr AJ Ryan as Counsel for Mr Mackenzie forwarded an email to the Executive Officer of the Judicial Control Authority at 9.01am on the 18th of March 2011 in which he advised he was acting on the instructions of Mr Mackenzie, that he was aware that the matter relating to the positive test was to be dealt with at a Hearing at Alexandra Park later that day and that Mr Mackenzie would accept that his horse should be disqualified but he did not accept that he was in any way responsible for the positive test.
(g) The Committee was advised that the information was served on Mr Mackenzie on the 18th of March 2011 not long before the Hearing.
(h) As a result of the evidence put before it the Judicial Committee then disqualified AVERIL’S QUEST pursuant to Rule 1004(8).
1.10 Subsequent investigations were undertaken by Mr Carmichael preparatory to the hearing of the charge against Mr Mackenzie.
1.11 Mr Mackenzie subsequently instructed Mr Dollimore to represent him and by Memorandum dated the 28th of June 2011 Mr Dollimore highlighted what he perceived to be technical errors in the drug testing procedure such as the horses name being recorded as Anvil’s Quest rather than Averil’s Quest and the swabbing docket referring to the Auckland Trotting Club rather than a Meeting of the Kumeu Trotting Club.
1.12 At a subsequent telephone conference with the parties, Mr Dollimore requested a Preliminary Hearing into the circumstances giving rise to the charge against Mr Mackenzie and in particular Mr Dollimore wanted to ensure that there was a correct evidential basis before the Committee. He indicated that this might also include a re-hearing of that part of the charge that related to the positive test returned by AVERIL’S QUEST.
1.13 The Preliminary Hearing was held on the 13th of October 2011 and on behalf of the Informant at that Hearing, Mr Branch objected to any suggestion of a re-hearing into the positive test on the basis of the doctrine of Issue Estoppel. The basis of this was that the prior decision was from a competent Court or Tribunal, the parties were the same and the issue was common to both parties. The original decision in his submission should remain.
Mr Branch further submitted that any re-hearing would be an Abuse of Process.
1.14 Mr Dollimore referred us to the technical errors in the procedures and also the haste within which the positive test charge was put to the Judicial Committee on the 17th of March 2011. He submitted to us that Mr Mackenzie attended that Hearing without being properly advised.
Mr Dollimore at that Hearing did however accept that AVERIL’S QUEST did return a positive test of Phenylbutazone following the running of the trial at Alexandra Park on the 1st of March 2011.
1.15 In our Decision following the Preliminary Hearing we found that not only did AVERIL’S QUEST return a positive test to Phenylbutazone on the 1st of March 2011 but that at the subsequent Hearing on the 18th of March 2011 this was accepted by Mr Mackenzie and that this Hearing was accepted by Mr Dollimore.
1.16 It was also our view that on the basis of the Doctrine of Issue Estoppel that there could be no re-hearing into the positive test result and further that to do so would be an Abuse of Process.
Opening Submissions by Mr Branch
2.1 Mr Branch in his opening submissions confirmed to this Committee that there had already been a finding under Rule 1004(1) concerning the horse AVERIL’S QUEST.
2.2 He said that the sole issue now was whether Mr Mackenzie was the Trainer of the horse or if he denied that then he was the person in charge of the horse at Alexandra Park on the 1st of March 2011.
2.3 In Mr Branch’s view, if it was found that Mr Mackenzie was the Trainer or the person in charge of AVERIL’S QUEST then the provisions of Rule 1004 were satisfied and the Committee should find the charge to be proven.
2.4 Mr Branch also advised this Committee that if Mr Mackenzie was to present any other form of defence then he should have been given notice of that prior to this Hearing. He pointed out that he had requested details of any alternative defence from Mr Dollimore but that he had not received anything.
Opening Submissions by Mr Dollimore
3.1 Mr Dollimore said that he reserved his Client’s rights in respect to any irregularities in respect to the procedure, both the drug testing procedure in respect to the horse and also the procedure concerning the Judicial Committee Hearing on the 18th of March 2011 and the subsequent investigations leading up to this Hearing.
Evidence of Mr Carmichael
4.1 Mr Carmichael gave evidence before this Committee. He told this Committee of the procedure on the 1st of March 2011 when he was requested by the Stipendiary Steward of the day to have AVERIL’S QUEST swabbed. He was present when the brand was checked on the horse and recorded on the Swab Card by the Veterinarian.
4.2 Mr Carmichael said that ANVIL’S QUEST failed to pass urine and he directed the Veterinarian to obtain a blood sample from the horse. He was present when the sample was obtained. He gave evidence of going with Mr Mackenzie to the Swab Clinic to complete the documentation and packaging of the sample.
4.3 Mr Carmichael produced the various exhibits being the Swab Card, the Certificate of Analysis, written statement from Mr Mackenzie, a copy of the Trainer Notification form for AVERIL’S QUEST and also the Decision from the Judicial Committee on the 18th of March 2011.
4.4 Mr Dollimore reserved his Client’s rights in respect to exhibit two which was the Certificate of Analysis and he was particularly concerned that that Certificate referred to the presence of Lignocaine although that did not form part of the charge against Mr Mackenzie. Mr Dollimore drew this to the Committee’s attention as a technical defect in the Certificate.
4.5 Under cross examination Mr Carmichael confirmed that he had been present at the Trials and he confirmed the procedure, the notification of receiving a positive test and advising Mr Mackenzie on the 15th of March 2011. He also had produced the authority from the Operations Manager of the Racing Integrity Unit to proceed with the charge against Mr Mackenzie and in turn AVERIL’S QUEST.
4.6 Under further cross examination Mr Carmichael confirmed that he laid the charge against Mr Mackenzie on the 18th of March 2011 and that the summons was served on Mr Mackenzie on that date and this was the date of the Hearing.
4.7 Mr Carmichael did say however that Mr Mackenzie had been given notice verbally of the positive test on the 15th of March 2011.
4.8 Mr Carmichael acknowledged that a Hearing was convened with some haste but he did say that it was not for his benefit but that it was for Mr Mackenzie’s benefit because of the lack of other qualifying trials available.
4.9 Mr Carmichael also said that this was the first time that he had proceeded with the charge as quickly as the one in this case but that it was not a procedure suggested by him.
4.10 Mr Carmichael was asked if he had provided any disclosure to Mr Mackenzie prior to the Hearing and he had provided a copy of the Certificate of Analysis and the Swab Card and he had obtained a statement from Mr Mackenzie.
4.11 Mr Carmichael also said that Mr Mackenzie had had the opportunity to obtain some legal advice and he referred to the email received at 9.01am on the 18th of March 2011 from Mr AJ Ryan who was then acting as Counsel for Mr Mackenzie.
4.12 Under further cross examination Mr Carmichael said that Mr Mackenzie had outlined to him the proposed racing programme for AVERIL’S QUEST and he asked what would happen if he proceeded with that programme and then there was a subsequent Hearing into the positive test. Mr Carmichael said that he advised Mr Mackenzie that his horse may be disqualified. He confirmed that there was a strong possibility that it may be disqualified.
4.13 Mr Carmichael again said that the procedure for the first Hearing was not done for his benefit but purely for the benefit of Mr Mackenzie.
4.14 Mr Carmichael was asked if he knew the difference between absolute liability and strict liability and he said that he was aware of the difference following the previous Decision in the matter of NZGRA v M.
4.15 Mr Carmichael was asked if he thought that the procedure leading up to the first Hearing was wrong and he said that he did not think so and again he said that it was not done for his benefit. He also said that he gave partial disclosure to Mr Mackenzie on the day and Mr Mackenzie was able to amend the information and reserve his rights.
4.16 Mr Carmichael confirmed that he was in charge of the investigation up until the time that Mr Branch was appointed as Counsel. He said that when the Hearing date was set he provided all disclosure to Mr Mackenzie.
4.17 Mr Carmichael confirmed that there was no urine sample because the filly would not pass urine but a blood sample was taken.
4.18 Mr Carmichael confirmed that on the 15th of March 2011 he did have a discussion with Mr Mackenzie about an independent analysis of the extra sample. He said that it would have to be sent to a laboratory in Australia and would cost in the vicinity of $1,000.00.
4.19 Mr Carmichael acknowledged that the Swabbing Card does not specify how long a “B” sample or extra sample would last.
4.20 Mr Carmichael was asked that if in his investigation did he find any evidence of administration of drugs to Mr Mackenzie’s horses. He said he saw syringes but no tubes etc. He also said that he has not charged Mr Mackenzie with administration but he has charged him with presenting a horse with a drug having been administered.
Mr Carmichael said that this was the Drug Negligence Rule.
4.21 Mr Carmichael confirmed that Mr Mackenzie has not had a breach of this Rule in 30 years of training.
4.22 Mr Carmichael was asked if he was involved when preparation of the transcript from the original Judicial Committee Hearing and he has said that he was not. He did however refer to that transcript and referred to Mr Mackenzie’s acknowledgement that he did not challenge the analysis.
4.23 By way of cross examination Mr Carmichael looked at his exhibit 2 which was the Certificate of Analysis and confirmed that the sample consisted of duplicate blood samples.
4.24 Mr Branch confirmed that that concluded the case for the Informant.
Submissions by Mr Dollimore
5.1 Mr Dollimore submitted that the charge had not been proved. He said that the Informant had referred to Rule 1004(2) and that the Informant alleges drug administration by Mr Mackenzie. He said that there was no evidence of administration and the charge should be dismissed.
5.2 In submissions by Mr Branch, in reply he referred to the provisions of Rule 1004. He advised that the Rule was clear and that it was the Drug Negligence Rule. There was no evidence of administration and that the charge was under what is commonly known as the “Drug Negligence Rules”. Mr Branch said it could not be anything other than that.
5.3 Mr Branch said that there was no miscarriage of justice as was suggested by Mr Dollimore and that Mr Dollimore’s application should fail.
Decision as to Mr Dollimore’s Application
6.1 The Committee considered the Application by Mr Dollimore and the submissions by both Mr Branch and Mr Dollimore.
6.2 Mr Dollimore has submitted that the Informant alleges drug administration by Mr Mackenzie. That is not the case at all and if it were then these matters would be proceeding under the Serious Racing Offence Rules.
6.3 The Informant has alleged negligence on the part of Mr Mackenzie and has said that the charge is not anything other than that.
6.4 We have before us prior acceptance by Mr Mackenzie at the Hearing on the 18th of March 2011 and further at the Preliminary Hearing in this matter on the 13th of October 2011 that AVERIL’S QUEST had returned a positive test on the 1st of March 2011.
6.5 The Committee therefore finds that there is a case for Mr Mackenzie to answer and denies Mr Dollimore’s Application.
Evidence by Mr Mackenzie
7.1 Mr Mackenzie gave evidence of having held a Training License for a period of over 30 years and he said that he has not previously appeared on any drug charges in that time. He said that this was not as a result of good luck.
7.2 He said that he always observed correct withholding times and used only therapeutic drugs that were specifically prescribed by qualified vets.
7.3 Mr Mackenzie referred to Phenylbutazone being on his property about 11 months prior to the 1st of March 2011. It was then properly prescribed and purchased by his wife for treatment of her riding hack. He produced a copy of the invoice for this.
7.4 Mr Mackenzie gave evidence of the procedures in his stable and how careful he was when his wife was using Phenylbutazone on her riding hack.
7.5 Mr Mackenzie gave evidence of AVERIL’S QUEST only being attended to by himself or his wife and is transported in their own truck.
7.6 Mr Mackenzie said that he had always complied with drug regulations, he has not made any mistakes, he has not been negligent in any way, that it was not possible for it to be the result of any unauthorised actions, that he had virtually infallible procedures in place and he had not had Phenylbutazone on his property for almost a year prior to the 1st of March 2011.
7.7 Mr Mackenzie said that he had made no mistakes and didn’t expect to be held absolutely liable for mistakes and shortcomings of others in this affair.
7.8 Mr Mackenzie gave evidence of his discussions with Mr Carmichael at the time of receiving notification of the swab irregularity and confirmed that he had discussed the racing programme and he was advised that if the horse continued to race prior to a Hearing then it would automatically be swabbed.
7.9 Mr Mackenzie said that on the 17th of March 2011 the arrangements for the Hearing to disqualify AVERIL’S QUEST from the Trial were well advanced but from his position were no longer necessary. He said however that after consulting Mr Ryan by phone he decided to go ahead with the Hearing and the subsequent disqualification mainly because he had nothing to hide and didn’t want other people to have any reason to feel aggrieved about racing a horse that was under a cloud at qualifying. He also knew that there were Trials in seven days time and he had no qualms about requalifying.
7.9 Mr Mackenzie said that in relation to the Hearing that it would be most unreasonable of any Committee to expect him to plead after only three days and not having had full disclosure of evidence and that it was his intention to reserve his rights to defend himself pending further negotiations. He recorded this on the transcript.
7.10 Mr Mackenzie said that at the Hearing he thought that the Rules were “a little bit grey” and that if he had have been asked “do you plead guilty?” then that would have alerted him more to what was happening.
7.11 Mr Mackenzie also referred to technical errors in the documentation and procedures.
7.12 Mr Mackenzie said that he heard that security seals on Tripak bags had been known to fail after placement in the refrigerator and at one stage they were repaired using staples and sellotape. He was not able to give any evidence in respect to the samples for his horse.
7.13 Mr Mackenzie said it was 15 days after the swab before he was notified of the procedure. He complained that the reserve sample would have started to have deteriorated within that period.
7.14 Mr Mackenzie said that this was a Qualifying Trial and that there was no money involved and therefore no point in anything being administered to his horse.
7.15 Under cross examination Mr Branch intimated to Mr Mackenzie that what he had presented was not evidence but purely a submission.
7.16 The parties disagreed on this point.
Final Submissions by Mr Branch
8.1 Mr Branch presented written submissions to the Committee. He set out the provisions of Rule 1004.
8.2 Mr Branch said that it had already been determined that:
(a) AVERIL’S QUEST was presented for a race when not free of a prohibited substance.
(b) AVERIL’S QUEST was taken to a racecourse for the purpose of engaging in a race, other than in accordance with Rule 1004(1).
(c) AVERIL’S QUEST was to be disqualified from the race it competed in.
8.3 Mr Branch submitted that the only issue for this Committee to decide was whether Mr Mackenzie was the Trainer of AVERIL’S QUEST (as required by Rule 1004(2)) or the person left in charge of the horse (Rule 1004(3)).
8.4 Mr Branch said that Mr Mackenzie had been invited to admit he was the Trainer of AVERIL’S QUEST but he had not responded to that invitation.
8.5 Mr Branch said that he relied on Mr Carmichael’s evidence which established that Mr Mackenzie was the official Trainer of AVERIL’S QUEST. Mr Branch said that in the alternative Mr Carmichael’s evidence was such that it clearly established that if Mr Mackenzie was not the Trainer then he was the person left in charge of the horse.
8.6 Mr Branch also said that it could not be challenged that the horse was found to have the drug Phenylbutazone in its system and that this was acknowledged by Mr Mackenzie. He said that attacks on procedure should not affect the outcome of this Hearing.
Final Submissions by Mr Dollimore
9.1 Mr Dollimore again traversed the procedure involved and the process that had been followed. He said that it was very unusual.
9.2 Mr Dollimore said that it was a consensual order that was made as to disqualification of the horse.
9.3 Mr Dollimore referred to Mr Mackenzie’s evidence and his excellent record as far as drug charges were concerned.
9.4 Mr Dollimore said that there was an extraordinary prosecutorial trail in this matter and it was unfair from Mr Mackenzie’s point of view.
He said that although the standard of proof was on the balance of probabilities that the whole case had been framed on the basis that Mr Mackenzie would plead guilty.
9.5 Mr Dollimore also submitted that the procedure was unfair not only in the initial haste but also the fact that six weeks after the event Mr Mackenzie got a letter referring to urine samples when in fact blood samples had been taken. He also submitted that it was unfair that Mr Mackenzie was not told that blood samples (and particularly the reserve sample) would break down after a period of time.
9.6 Mr Dollimore also said that the procedure was unfair on Mr Mackenzie because it had taken so long to get to a Hearing.
Reasons for Decision
10.1 This Committee has already found as a matter of fact the following:
(a) That AVERIL’S QUEST returned a positive test on the 1st of March 2011.
(b) That the Hearing into that positive test by AVERIL’S QUEST was properly dealt with by a competent Judicial Committee.
(c) At that Hearing Mr Mackenzie did acknowledge that AVERIL’S QUEST had a positive test and he accepted the analysis although he reserved his position as to his liability.
(d) The email of the 18th of March 2011 from Mr Ryan confirms this.
(e) A charge under Rule 1004 is not a charge of administration but as the Informant correctly puts to us is what is commonly known as “the Drug Negligence Rule”.
10.2 The Committee therefore agrees with the Informant that the only issue to be decided is whether Mr Mackenzie was either the Trainer of AVERIL’S QUEST at the appropriate time or the person in charge of that horse. We have received documentary evidence from Mr Carmichael showing that as far as Harness Racing New Zealand is concerned Mr Mackenzie is the Trainer of AVERIL’S QUEST.
10.3 There is evidence before us that Mr Mackenzie was present with the horse at the time that the drug testing was undertaken and he was also present at the Hearing before the Judicial Committee on the 18th of March 2011.
It would be trite in our opinion of Mr Mackenzie to deny that he is the Trainer of AVERIL’S QUEST. It is also relevant to note that Mr Mackenzie has had ample opportunity firstly in the Hearing on the 18th of March 2011, secondly in the Preliminary Hearing on the 13th of October 2011 and now in this Hearing to deny that he was either the Trainer of AVERIL’S QUEST or the person in charge of the horse on the 1st of March 2011. He has not done so.
10.4 It is very clear, based on the evidence presented to us, that Mr Mackenzie is and was at all relevant times the Trainer of AVERIL’S QUEST and as such the provisions of Rule 1004(2) are satisfied. It follows therefore that the Informant has proven its case against Mr Mackenzie.
Decision
11.1 We find the charge against Mr Mackenzie proven.
Penalty:
Submissions as to Penalty and Costs
12.1 Mr Branch is given seven days from receipt of this Decision to provide in writing submissions as to penalty and costs. He must provide those to the Executive Officer of the JCA who will in turn provide copies to Mr Dollimore.
12.2 Mr Dollimore is given a further seven days from that date to provide his submissions as to penalty and costs.
Dated this twenty sixth day of January 2012.
BJ Scott AJ Dooley
Chairman Committee Member
Appeal Decision: NO LINKED APPEAL DECISION
Decision Date: 18/04/2012
Publish Date: 18/04/2012
JCA Decision Fields (raw)
Dmitry: This section contains all JCA fields migrated from the raw data.
Data from these fields should be mapped appropriately to display amongst the standard fields above; please make note of any values below that are missing in the above standard fields but should be there.
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informantnumber: 69110
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newcharge:
plea:
penaltyrequired:
decisiondate: 18/04/2012
hearing_title: Non Raceday Inquiry - HRNZ v RJ McKenzie 8 December 2011 - Decision dated 21 Janaury 2012
charge:
facts:
appealdecision: NO LINKED APPEAL DECISION
isappeal:
submissionsfordecision:
reasonsfordecision:
Decision:
BEFORE THE JUDICIAL CONTROL AUTHORITY
UNDER THE RACING ACT 2003
HELD AT CAMBRIDGE
IN THE MATTER of the New Zealand Rules of Harness Racing
BETWEEN Mr THOMAS RODNEY CARMICHAEL (on behalf of HARNESS RACING NEW ZEALAND)
Informant
AND Mr Roderick John Mackenzie - Licensed Trainer
Defendant
Information No: 69110
Venue: Cambridge Raceway, Cambridge
Judicial Committee: BJ Scott (Chairman), AJ Dooley (Committee Member)
Appearing: Mr M Branch - Counsel for the Informant, Mr TR Carmichael – Racing Investigator, Mr W Dollimore - Counsel for Mr Mackenzie,
Mr RJ Mackenzie in person
Plea: Not admitted
Date of Hearing: 8th December 2011
DECISION OF JUDICIAL COMMITTEE
1.1 Mr Mackenzie was charged pursuant to Rules 1004(1) and 1004(2) that on the 1st day of March 2011 at Alexandra Park he was the Trainer and the person in charge of the horse AVERIL’S QUEST which was presented to race in a Qualifying Trial at a Race Meeting conducted by the Kumeu Trotting Club when the said horse was found to have administered to it a drug namely Phenylbutazone.
By letter dated the 17th of March 2011 the Operations Manager of the Racing Integrity Unit gave approval for the charge to be lodged against Mr Mackenzie and pursuant to that charge a Hearing was also to be held into the positive test produced by AVERIL’S QUEST.
1.2 Rule 1004(1) provides:
“A horse shall be presented for a race free from prohibited substances.”
Rule 1004(2) provides:
“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(3) provides:
“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(4) provides:
“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.”.
1.3 Mr Mackenzie did not admit the breach.
1.4 It would appear that for Mr Mackenzie’s convenience a Hearing into the positive test returned by AVERIL’S QUEST was held the next day on the 18th of March 2011. This was during the Meeting held by the Kumeu Trotting Club at Alexandra Park Raceway that evening.
1.5 We are told that the purpose of having that Hearing so quickly was to enable Mr Mackenzie to requalify his horse. This was for Mr Mackenzie’s benefit and no other.
1.6 The Judicial Committee at that Hearing in its Decision stated the following:
“Mr Mackenzie accepted the facts as presented by Mr Carmichael. He said that he wanted AVERIL’S QUEST disqualified so that he could requalify it as soon as possible. He said that there were only a limited number of trials available in the near future.
The Chairman told Mr Mackenzie that in order to disqualify AVERIL’S QUEST the Committee had to be satisfied there had been a breach of Rule 1004(1) and in the existing circumstances that required an acknowledgement by him that the Rule had been broken.
Mr Mackenzie said that he did not challenge the analysis and gave the necessary acknowledgement.”.
1.7 Mr Mackenzie endorsed the Information with the following:
“I reserve the right to defend the charge under Rule 1004(1) (2) and (7). I consent to AVERIL’S QUEST being disqualified under Rule 1004(8) and wish that to be effected.”
1.8 The Judicial Committee duly disqualified AVERIL’S QUEST from the Qualifying Trial on the 1st of March 2011. The Committee then adjourned the charge against Mr Mackenzie to a time, date and place to be fixed by the Executive Officer of the Judicial Control Authority.
1.9 For the sake of clarity it is useful to outline the chronology of events as follows:
(a) AVERIL’S QUEST raced in a Qualifying Trial at Alexandra Park on the 1st of March 2011.
(b) Following that trial, AVERIL’S QUEST underwent drug testing.
(c) The positive result of that drug test was communicated to Mr Carmichael on the 14th of March 2011.
(d) Mr Carmichael discussed the result of the test with Mr Mackenzie on the 15th of March 2011.
(e) An authority from the General Manager of the Racing Integrity Unit to proceed with charges arising from the positive test was given by letter dated the 17th of March 2011.
(f) Mr AJ Ryan as Counsel for Mr Mackenzie forwarded an email to the Executive Officer of the Judicial Control Authority at 9.01am on the 18th of March 2011 in which he advised he was acting on the instructions of Mr Mackenzie, that he was aware that the matter relating to the positive test was to be dealt with at a Hearing at Alexandra Park later that day and that Mr Mackenzie would accept that his horse should be disqualified but he did not accept that he was in any way responsible for the positive test.
(g) The Committee was advised that the information was served on Mr Mackenzie on the 18th of March 2011 not long before the Hearing.
(h) As a result of the evidence put before it the Judicial Committee then disqualified AVERIL’S QUEST pursuant to Rule 1004(8).
1.10 Subsequent investigations were undertaken by Mr Carmichael preparatory to the hearing of the charge against Mr Mackenzie.
1.11 Mr Mackenzie subsequently instructed Mr Dollimore to represent him and by Memorandum dated the 28th of June 2011 Mr Dollimore highlighted what he perceived to be technical errors in the drug testing procedure such as the horses name being recorded as Anvil’s Quest rather than Averil’s Quest and the swabbing docket referring to the Auckland Trotting Club rather than a Meeting of the Kumeu Trotting Club.
1.12 At a subsequent telephone conference with the parties, Mr Dollimore requested a Preliminary Hearing into the circumstances giving rise to the charge against Mr Mackenzie and in particular Mr Dollimore wanted to ensure that there was a correct evidential basis before the Committee. He indicated that this might also include a re-hearing of that part of the charge that related to the positive test returned by AVERIL’S QUEST.
1.13 The Preliminary Hearing was held on the 13th of October 2011 and on behalf of the Informant at that Hearing, Mr Branch objected to any suggestion of a re-hearing into the positive test on the basis of the doctrine of Issue Estoppel. The basis of this was that the prior decision was from a competent Court or Tribunal, the parties were the same and the issue was common to both parties. The original decision in his submission should remain.
Mr Branch further submitted that any re-hearing would be an Abuse of Process.
1.14 Mr Dollimore referred us to the technical errors in the procedures and also the haste within which the positive test charge was put to the Judicial Committee on the 17th of March 2011. He submitted to us that Mr Mackenzie attended that Hearing without being properly advised.
Mr Dollimore at that Hearing did however accept that AVERIL’S QUEST did return a positive test of Phenylbutazone following the running of the trial at Alexandra Park on the 1st of March 2011.
1.15 In our Decision following the Preliminary Hearing we found that not only did AVERIL’S QUEST return a positive test to Phenylbutazone on the 1st of March 2011 but that at the subsequent Hearing on the 18th of March 2011 this was accepted by Mr Mackenzie and that this Hearing was accepted by Mr Dollimore.
1.16 It was also our view that on the basis of the Doctrine of Issue Estoppel that there could be no re-hearing into the positive test result and further that to do so would be an Abuse of Process.
Opening Submissions by Mr Branch
2.1 Mr Branch in his opening submissions confirmed to this Committee that there had already been a finding under Rule 1004(1) concerning the horse AVERIL’S QUEST.
2.2 He said that the sole issue now was whether Mr Mackenzie was the Trainer of the horse or if he denied that then he was the person in charge of the horse at Alexandra Park on the 1st of March 2011.
2.3 In Mr Branch’s view, if it was found that Mr Mackenzie was the Trainer or the person in charge of AVERIL’S QUEST then the provisions of Rule 1004 were satisfied and the Committee should find the charge to be proven.
2.4 Mr Branch also advised this Committee that if Mr Mackenzie was to present any other form of defence then he should have been given notice of that prior to this Hearing. He pointed out that he had requested details of any alternative defence from Mr Dollimore but that he had not received anything.
Opening Submissions by Mr Dollimore
3.1 Mr Dollimore said that he reserved his Client’s rights in respect to any irregularities in respect to the procedure, both the drug testing procedure in respect to the horse and also the procedure concerning the Judicial Committee Hearing on the 18th of March 2011 and the subsequent investigations leading up to this Hearing.
Evidence of Mr Carmichael
4.1 Mr Carmichael gave evidence before this Committee. He told this Committee of the procedure on the 1st of March 2011 when he was requested by the Stipendiary Steward of the day to have AVERIL’S QUEST swabbed. He was present when the brand was checked on the horse and recorded on the Swab Card by the Veterinarian.
4.2 Mr Carmichael said that ANVIL’S QUEST failed to pass urine and he directed the Veterinarian to obtain a blood sample from the horse. He was present when the sample was obtained. He gave evidence of going with Mr Mackenzie to the Swab Clinic to complete the documentation and packaging of the sample.
4.3 Mr Carmichael produced the various exhibits being the Swab Card, the Certificate of Analysis, written statement from Mr Mackenzie, a copy of the Trainer Notification form for AVERIL’S QUEST and also the Decision from the Judicial Committee on the 18th of March 2011.
4.4 Mr Dollimore reserved his Client’s rights in respect to exhibit two which was the Certificate of Analysis and he was particularly concerned that that Certificate referred to the presence of Lignocaine although that did not form part of the charge against Mr Mackenzie. Mr Dollimore drew this to the Committee’s attention as a technical defect in the Certificate.
4.5 Under cross examination Mr Carmichael confirmed that he had been present at the Trials and he confirmed the procedure, the notification of receiving a positive test and advising Mr Mackenzie on the 15th of March 2011. He also had produced the authority from the Operations Manager of the Racing Integrity Unit to proceed with the charge against Mr Mackenzie and in turn AVERIL’S QUEST.
4.6 Under further cross examination Mr Carmichael confirmed that he laid the charge against Mr Mackenzie on the 18th of March 2011 and that the summons was served on Mr Mackenzie on that date and this was the date of the Hearing.
4.7 Mr Carmichael did say however that Mr Mackenzie had been given notice verbally of the positive test on the 15th of March 2011.
4.8 Mr Carmichael acknowledged that a Hearing was convened with some haste but he did say that it was not for his benefit but that it was for Mr Mackenzie’s benefit because of the lack of other qualifying trials available.
4.9 Mr Carmichael also said that this was the first time that he had proceeded with the charge as quickly as the one in this case but that it was not a procedure suggested by him.
4.10 Mr Carmichael was asked if he had provided any disclosure to Mr Mackenzie prior to the Hearing and he had provided a copy of the Certificate of Analysis and the Swab Card and he had obtained a statement from Mr Mackenzie.
4.11 Mr Carmichael also said that Mr Mackenzie had had the opportunity to obtain some legal advice and he referred to the email received at 9.01am on the 18th of March 2011 from Mr AJ Ryan who was then acting as Counsel for Mr Mackenzie.
4.12 Under further cross examination Mr Carmichael said that Mr Mackenzie had outlined to him the proposed racing programme for AVERIL’S QUEST and he asked what would happen if he proceeded with that programme and then there was a subsequent Hearing into the positive test. Mr Carmichael said that he advised Mr Mackenzie that his horse may be disqualified. He confirmed that there was a strong possibility that it may be disqualified.
4.13 Mr Carmichael again said that the procedure for the first Hearing was not done for his benefit but purely for the benefit of Mr Mackenzie.
4.14 Mr Carmichael was asked if he knew the difference between absolute liability and strict liability and he said that he was aware of the difference following the previous Decision in the matter of NZGRA v M.
4.15 Mr Carmichael was asked if he thought that the procedure leading up to the first Hearing was wrong and he said that he did not think so and again he said that it was not done for his benefit. He also said that he gave partial disclosure to Mr Mackenzie on the day and Mr Mackenzie was able to amend the information and reserve his rights.
4.16 Mr Carmichael confirmed that he was in charge of the investigation up until the time that Mr Branch was appointed as Counsel. He said that when the Hearing date was set he provided all disclosure to Mr Mackenzie.
4.17 Mr Carmichael confirmed that there was no urine sample because the filly would not pass urine but a blood sample was taken.
4.18 Mr Carmichael confirmed that on the 15th of March 2011 he did have a discussion with Mr Mackenzie about an independent analysis of the extra sample. He said that it would have to be sent to a laboratory in Australia and would cost in the vicinity of $1,000.00.
4.19 Mr Carmichael acknowledged that the Swabbing Card does not specify how long a “B” sample or extra sample would last.
4.20 Mr Carmichael was asked that if in his investigation did he find any evidence of administration of drugs to Mr Mackenzie’s horses. He said he saw syringes but no tubes etc. He also said that he has not charged Mr Mackenzie with administration but he has charged him with presenting a horse with a drug having been administered.
Mr Carmichael said that this was the Drug Negligence Rule.
4.21 Mr Carmichael confirmed that Mr Mackenzie has not had a breach of this Rule in 30 years of training.
4.22 Mr Carmichael was asked if he was involved when preparation of the transcript from the original Judicial Committee Hearing and he has said that he was not. He did however refer to that transcript and referred to Mr Mackenzie’s acknowledgement that he did not challenge the analysis.
4.23 By way of cross examination Mr Carmichael looked at his exhibit 2 which was the Certificate of Analysis and confirmed that the sample consisted of duplicate blood samples.
4.24 Mr Branch confirmed that that concluded the case for the Informant.
Submissions by Mr Dollimore
5.1 Mr Dollimore submitted that the charge had not been proved. He said that the Informant had referred to Rule 1004(2) and that the Informant alleges drug administration by Mr Mackenzie. He said that there was no evidence of administration and the charge should be dismissed.
5.2 In submissions by Mr Branch, in reply he referred to the provisions of Rule 1004. He advised that the Rule was clear and that it was the Drug Negligence Rule. There was no evidence of administration and that the charge was under what is commonly known as the “Drug Negligence Rules”. Mr Branch said it could not be anything other than that.
5.3 Mr Branch said that there was no miscarriage of justice as was suggested by Mr Dollimore and that Mr Dollimore’s application should fail.
Decision as to Mr Dollimore’s Application
6.1 The Committee considered the Application by Mr Dollimore and the submissions by both Mr Branch and Mr Dollimore.
6.2 Mr Dollimore has submitted that the Informant alleges drug administration by Mr Mackenzie. That is not the case at all and if it were then these matters would be proceeding under the Serious Racing Offence Rules.
6.3 The Informant has alleged negligence on the part of Mr Mackenzie and has said that the charge is not anything other than that.
6.4 We have before us prior acceptance by Mr Mackenzie at the Hearing on the 18th of March 2011 and further at the Preliminary Hearing in this matter on the 13th of October 2011 that AVERIL’S QUEST had returned a positive test on the 1st of March 2011.
6.5 The Committee therefore finds that there is a case for Mr Mackenzie to answer and denies Mr Dollimore’s Application.
Evidence by Mr Mackenzie
7.1 Mr Mackenzie gave evidence of having held a Training License for a period of over 30 years and he said that he has not previously appeared on any drug charges in that time. He said that this was not as a result of good luck.
7.2 He said that he always observed correct withholding times and used only therapeutic drugs that were specifically prescribed by qualified vets.
7.3 Mr Mackenzie referred to Phenylbutazone being on his property about 11 months prior to the 1st of March 2011. It was then properly prescribed and purchased by his wife for treatment of her riding hack. He produced a copy of the invoice for this.
7.4 Mr Mackenzie gave evidence of the procedures in his stable and how careful he was when his wife was using Phenylbutazone on her riding hack.
7.5 Mr Mackenzie gave evidence of AVERIL’S QUEST only being attended to by himself or his wife and is transported in their own truck.
7.6 Mr Mackenzie said that he had always complied with drug regulations, he has not made any mistakes, he has not been negligent in any way, that it was not possible for it to be the result of any unauthorised actions, that he had virtually infallible procedures in place and he had not had Phenylbutazone on his property for almost a year prior to the 1st of March 2011.
7.7 Mr Mackenzie said that he had made no mistakes and didn’t expect to be held absolutely liable for mistakes and shortcomings of others in this affair.
7.8 Mr Mackenzie gave evidence of his discussions with Mr Carmichael at the time of receiving notification of the swab irregularity and confirmed that he had discussed the racing programme and he was advised that if the horse continued to race prior to a Hearing then it would automatically be swabbed.
7.9 Mr Mackenzie said that on the 17th of March 2011 the arrangements for the Hearing to disqualify AVERIL’S QUEST from the Trial were well advanced but from his position were no longer necessary. He said however that after consulting Mr Ryan by phone he decided to go ahead with the Hearing and the subsequent disqualification mainly because he had nothing to hide and didn’t want other people to have any reason to feel aggrieved about racing a horse that was under a cloud at qualifying. He also knew that there were Trials in seven days time and he had no qualms about requalifying.
7.9 Mr Mackenzie said that in relation to the Hearing that it would be most unreasonable of any Committee to expect him to plead after only three days and not having had full disclosure of evidence and that it was his intention to reserve his rights to defend himself pending further negotiations. He recorded this on the transcript.
7.10 Mr Mackenzie said that at the Hearing he thought that the Rules were “a little bit grey” and that if he had have been asked “do you plead guilty?” then that would have alerted him more to what was happening.
7.11 Mr Mackenzie also referred to technical errors in the documentation and procedures.
7.12 Mr Mackenzie said that he heard that security seals on Tripak bags had been known to fail after placement in the refrigerator and at one stage they were repaired using staples and sellotape. He was not able to give any evidence in respect to the samples for his horse.
7.13 Mr Mackenzie said it was 15 days after the swab before he was notified of the procedure. He complained that the reserve sample would have started to have deteriorated within that period.
7.14 Mr Mackenzie said that this was a Qualifying Trial and that there was no money involved and therefore no point in anything being administered to his horse.
7.15 Under cross examination Mr Branch intimated to Mr Mackenzie that what he had presented was not evidence but purely a submission.
7.16 The parties disagreed on this point.
Final Submissions by Mr Branch
8.1 Mr Branch presented written submissions to the Committee. He set out the provisions of Rule 1004.
8.2 Mr Branch said that it had already been determined that:
(a) AVERIL’S QUEST was presented for a race when not free of a prohibited substance.
(b) AVERIL’S QUEST was taken to a racecourse for the purpose of engaging in a race, other than in accordance with Rule 1004(1).
(c) AVERIL’S QUEST was to be disqualified from the race it competed in.
8.3 Mr Branch submitted that the only issue for this Committee to decide was whether Mr Mackenzie was the Trainer of AVERIL’S QUEST (as required by Rule 1004(2)) or the person left in charge of the horse (Rule 1004(3)).
8.4 Mr Branch said that Mr Mackenzie had been invited to admit he was the Trainer of AVERIL’S QUEST but he had not responded to that invitation.
8.5 Mr Branch said that he relied on Mr Carmichael’s evidence which established that Mr Mackenzie was the official Trainer of AVERIL’S QUEST. Mr Branch said that in the alternative Mr Carmichael’s evidence was such that it clearly established that if Mr Mackenzie was not the Trainer then he was the person left in charge of the horse.
8.6 Mr Branch also said that it could not be challenged that the horse was found to have the drug Phenylbutazone in its system and that this was acknowledged by Mr Mackenzie. He said that attacks on procedure should not affect the outcome of this Hearing.
Final Submissions by Mr Dollimore
9.1 Mr Dollimore again traversed the procedure involved and the process that had been followed. He said that it was very unusual.
9.2 Mr Dollimore said that it was a consensual order that was made as to disqualification of the horse.
9.3 Mr Dollimore referred to Mr Mackenzie’s evidence and his excellent record as far as drug charges were concerned.
9.4 Mr Dollimore said that there was an extraordinary prosecutorial trail in this matter and it was unfair from Mr Mackenzie’s point of view.
He said that although the standard of proof was on the balance of probabilities that the whole case had been framed on the basis that Mr Mackenzie would plead guilty.
9.5 Mr Dollimore also submitted that the procedure was unfair not only in the initial haste but also the fact that six weeks after the event Mr Mackenzie got a letter referring to urine samples when in fact blood samples had been taken. He also submitted that it was unfair that Mr Mackenzie was not told that blood samples (and particularly the reserve sample) would break down after a period of time.
9.6 Mr Dollimore also said that the procedure was unfair on Mr Mackenzie because it had taken so long to get to a Hearing.
Reasons for Decision
10.1 This Committee has already found as a matter of fact the following:
(a) That AVERIL’S QUEST returned a positive test on the 1st of March 2011.
(b) That the Hearing into that positive test by AVERIL’S QUEST was properly dealt with by a competent Judicial Committee.
(c) At that Hearing Mr Mackenzie did acknowledge that AVERIL’S QUEST had a positive test and he accepted the analysis although he reserved his position as to his liability.
(d) The email of the 18th of March 2011 from Mr Ryan confirms this.
(e) A charge under Rule 1004 is not a charge of administration but as the Informant correctly puts to us is what is commonly known as “the Drug Negligence Rule”.
10.2 The Committee therefore agrees with the Informant that the only issue to be decided is whether Mr Mackenzie was either the Trainer of AVERIL’S QUEST at the appropriate time or the person in charge of that horse. We have received documentary evidence from Mr Carmichael showing that as far as Harness Racing New Zealand is concerned Mr Mackenzie is the Trainer of AVERIL’S QUEST.
10.3 There is evidence before us that Mr Mackenzie was present with the horse at the time that the drug testing was undertaken and he was also present at the Hearing before the Judicial Committee on the 18th of March 2011.
It would be trite in our opinion of Mr Mackenzie to deny that he is the Trainer of AVERIL’S QUEST. It is also relevant to note that Mr Mackenzie has had ample opportunity firstly in the Hearing on the 18th of March 2011, secondly in the Preliminary Hearing on the 13th of October 2011 and now in this Hearing to deny that he was either the Trainer of AVERIL’S QUEST or the person in charge of the horse on the 1st of March 2011. He has not done so.
10.4 It is very clear, based on the evidence presented to us, that Mr Mackenzie is and was at all relevant times the Trainer of AVERIL’S QUEST and as such the provisions of Rule 1004(2) are satisfied. It follows therefore that the Informant has proven its case against Mr Mackenzie.
Decision
11.1 We find the charge against Mr Mackenzie proven.
sumissionsforpenalty:
reasonsforpenalty:
penalty:
Submissions as to Penalty and Costs
12.1 Mr Branch is given seven days from receipt of this Decision to provide in writing submissions as to penalty and costs. He must provide those to the Executive Officer of the JCA who will in turn provide copies to Mr Dollimore.
12.2 Mr Dollimore is given a further seven days from that date to provide his submissions as to penalty and costs.
Dated this twenty sixth day of January 2012.
BJ Scott AJ Dooley
Chairman Committee Member
hearing_type: Non-race day
Rules: 1004(1), 1004(2),
Informant: Mr TR Carmichael - on behalf of HRNZ
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PersonPresent: Mr M Branch - Counsel for the Informant, Mr W Dollimore - Counsel for Mr McKenzie, Mr RJ MacKenzie in person
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