Non-Raceday Inquiry – JJ Clementson

hearingid: 42ac2e924965ab36c61ce04a02cfce10

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hearing_racingtype: thoroughbred-racing

startdate: 01/01/2001

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decisiondate: no date provided

hearing_title: Non-Raceday Inquiry - JJ Clementson

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Decision:

The defendant has been charged (Information 66501) with three breaches of the New Zealand Rules of Harness Racing by Racecourse Inspector Mr Kitto

The defendant has been charged (Information 66501) with three breaches of the New Zealand Rules of Harness Racing by Racecourse Inspector Mr Kitto, as follows.

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1. "On the 10^th day of September 2006, at the Methven Trotting Club's race meeting held at the Mount Harding racecourse at Methven, did an act which a Judicial Committee deems fraudulent, corrupt or detrimental to the interests of harness racing, namely administers a substance to the horse "Conagher" in the vicinity of the horse stalls area, approximately 30 minutes before Race 9, the Shearmac Aluminium & Joinery Limited Handicap Trot, in breach of Rule 1001(1)(v)(i) and you and the horse "Conagher" are therefore liable to the penalty or penalties which may be imposed in accordance with Rules 1001(2)(a)(b)(c) and (3) of the New Zealand Rules of Harness Racing."
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Rule 1001(1)(v)(i) provides as follows.

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"(1) Every person commits a serious racing offence within the meaning of these Rules, who, in New Zealand or in any other country:-

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(v) either by himself or in conjunction with any person:

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(i) does or permits or suffers to be done any act which a Judicial Committee deems fraudulent, corrupt or detrimental to the interests of harness racing?."

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2. "On the 10^th day of September 2006, at the Methven Trotting Club's race meeting, held at the Mount Harding racecourse at Methven, you did without first obtaining permission from a Stipendiary Steward or Racecourse Inspector have in your possession at a race meeting, a prohibited substance, an anti-inflammatory, namely "Methyl-Salicylate" in breach of Rule 1004(5) and you are therefore liable to the penalty or penalties which may be imposed in accordance with Rules 1003(1)(a)(b)(c) and (2)(a)(b)(i)(ii)(iii) of the New Zealand Rules of Harness Racing."

Rule 1004(5) provides as follows.

"(5) No person shall unless they have first obtained the permission of a Stipendiary Steward or Racecourse Inspector, have in their possession either at a race meeting or in any motor vehicle, trailer or float being used for the purpose of travelling to or from a race meeting any prohibited substance."

3. "On the 10^th day of September 2006, at the Methven Trotting Club's race meeting, held at the Mount Harding racecourse at Methven, during the day of racing and prior to the horse racing, in respect of the horse "Conagher" which was entered in a race, namely Race 9, the Shearmac Aluminium & Joinery Limited Handicap Trot, you did administer by injection a substance, in breach of Rule 1004(6) and you and the horse are liable to the penalty or penalties which may be imposed in accordance with Rules 1003(1)(a)(b)(c) and (2)(a)(b)(i)(ii)(iii) of the New Zealand Rules of Harness Racing."

Rule 1004(6) provides as follows.

"(6) No person shall during any day of racing, in respect of a horse

entered in a race, administer by injection, nasal gastric tube,

gastric tube, ventilator, or nebulizer any substance whatsoever.

Where such administration occurs both the person and the

trainer commit a breach of this sub-rule unless such device was

used after the horse had raced or under the direction or supervision

of a club veterinary surgeon, Racecourse Inspector or Stipendiary

Steward.

For the purposes of this sub-rule the day of racing is deemed to

commence 12 hours prior to the first race and conclude half an hour after the last race."

Mr Eaton agreed to take the charges as read and confirmed that all charges were defended. Counsel also agreed that charges 1 and 3 were laid in the alternative, and that a conviction was being sought on one of these charges only.

The events forming the background to these charges took place at the Methven Trotting Club's meeting at the Mount Harding racecourse on 10 September 2006. Mr Clementson had taken his horse "Conagher" to that meeting to race. Also at the meeting were Mr Todd Woodward, who had taken "Motu Armbro Scott" to the meeting, and his partner Tania Moore who was assisting him. A pony was also stabled next to "Motu Armbro Scott" as a travelling companion. The two horses mentioned above were to contest the 9^th race and they were stabled next to each other, or possibly with one stall between them.

Other persons involved were - Sarah Robinson, an Ambulance Officer who was a friend of Kylie Moore, the sister of Tania Moore; Mr Neil Burton was present and helped Mr Clementson with his horse; a witness Mr Alister Kirkman; a witness Mr Edward Murray Skurr, and Mr Clementson's wife, Mrs Rosemary Beatrice Clementson. Stipendiary Steward Mr Ydgren and Racecourse Inspector Mr Kitto were at the meeting in their official capacities.

Tania Lee Moore gave evidence that shortly before the start of the 9^th race she had seen Mr Clementson administering a white substance down the throat of "Conagher" with a syringe. She said that she had seen Mr Clementson hold the horse's head with one hand while using the syringe in his other hand, and then wiping the horses mouth with his hands. The witness then saw Mr Clemenston place the syringe in a bag.

Mr Woodward was out on the track when this incident occurred, but he arrived back a short time later and the witness told Mr Woodward what she had seen. She was told that she should report the matter to the "stipes". The witness then located Mr Ydgren and told him what she had seen. Mr Ydgren in turn located Mr Kitto who then spoke to the witness.

The witness was cross-examined at length. In particular she was asked if she was with someone else when she had reported the matter to Mr Ydgren. We are satisfied that she was on her own when she spoke to Mr Ydgren and also on her own when she was spoken to by Mr Kitto.

The witness was also cross-examined as to whether she had discussed this matter, in a loud voice, with other persons on the racecourse. The witness denied that she had and we are satisfied that she did not. It was put to this witness that her evidence was not the truth, and that, for some reason, she was intent on causing trouble for Mr Clementson.

There was also cross-examination about who was present when the syringe was used. The witness said that there were other persons in the area, but not at the time that the syringe was used. She also said that Mr Clementson did not appear to take any care to avoid being seen.

Sarah Jane Robinson gave evidence that on this day she was at the racecourse with Kylie Moore. The witness said she saw a man use a syringe to administer a white substance down a horse's throat. The witness was unable to positively identify Mr Clementson as the person using the syringe. Although she was with Kylie Moore at the time, Tania Moore was nearby.

The witness said that she did not like horses and kept well away from them. It was clear that she did not have a good knowledge of horses. At the time she did not think anything of the matter.

Under cross-examination it was put to the witness that she had made up her story to support Tania Moore's evidence. The witness was also questioned as to why it had taken her so long to come forward. The witness explained that she was at a race meeting at Methven on 15 October 2006 and was talking to the mother of Tania and Kylie Moore. She learned that Tania Moore was to give evidence in this case. The witness told Mrs Moore that she had also seen this incident. Mrs Moore then told Tania Moore who in turn asked the witness if her name could be given to Mr Kitto. She agreed.

Dr Geoffrey Derrick Beresford, a scientist employed by New Zealand Racing Laboratory Services Limited at Avondale in Auckland, produced an analytical report of 11 items referred to him by Mr Kitto. These items comprised of two plastic syringes, six plastic bottles and three plastic jars. On analysis ten of these items were found to be clear of prohibited substances.

Item "K", a small blue plastic jar, was shown on analysis to contain methyl salicylate (oil of wintergreen) which is an anti-inflammatory and a prohibited substance under HRNZ Rules.

In cross-examination the witness was asked about what methyl salicylate could be used for in general terms. It was clear that this substance did have a wide variety of uses.

Dr Andrew Gierson, Chief Veterinarian for HRNZ, gave evidence that methyl salicylate is an anti-inflammatory agent, and is also a substance capable of altering (sic) the speed, stamina, courage, or conduct of a horse. It was also established during Dr Grierson's evidence that methyl salicylate and its metabolites are prohibited substances and are listed in the "Prohibited Substance Regulations".

Dr Grierson was asked about the word "injection". He said that in veterinary terms this meant an injection with a syringe and needle, but that an "injection" could have a wider ordinary meaning. We note here that Mr Lange had previously made submissions that the word "injection" did have a wider meaning than solely by a needle and syringe. He referred us to a dictionary meaning which included "The action or an act of driving or forcing (a fluid) into a passage, cavity, or solid material under pressure:"

Under cross-examination it was put to Dr Grierson that the use of a syringe without a needle would amount to "drenching". Dr Grierson did not disagree with this statement.

Dr Grierson was also asked what quantity of methyl salicylate would need to be present to give a "positive" test or affect a horse's performance. There was then a discussion about the "Prohibited Substance" Rule which lists "salicylic acid" as being one of the prohibited substances which has a tolerance level ? see clause (e). Dr Grierson explained that this is because salicylic acid occurs naturally in some plants. In answer to the question Dr Grierson said he could not be specific about an amount as this would vary depending on the circumstances of the administration and the particular horse involved.

Racecourse Inspector Mr Kitto gave evidence that he had approached Mr Clementson on the racecourse at about 4-15pm on 10 September 2006. He had asked Mr Clementson if he had administered anything to "Conagher", and if he had any syringes with him on the course. Both these allegations were denied. Mr Kitto then searched bags in the possession of Mr Clementson and the 11 items mentioned above were found.

Mr Kitto said that he interviewed Mr Clementson at 4-45pm that day, and he produced and played a tape recording of that interview along with a transcript. The 11 items were later sent to the Racing Laboratory for analysis.

On 23 October 2006 at 3-00pm Mr Kitto again interviewed Mr Clementson, in the presence of his wife, at the Ashburton racecourse. A tape recording of this interview was produced and played and a transcript was also produced. Mrs Clementson was also interviewed at the same time, and a tape recording of this interview was produced and played and a transcript of the interview produced.

At all times during these interviews Mr Clementson denied that he had used a syringe to administer a substance down the throat of "Conagher". During the interview on 10 September Mr Clementson also denied that he had any syringes in his possession.

Richard Neil Burton, the holder of a Licence to Train, and a Graduation Horseman, gave evidence that he had gone to the races at Methven on 10 September 2006 and that he had assisted Mr Clementson, a long time friend, to gear up "Conagher". Mr Burton said that he did not see Mr Clementson administer anything to "Conagher" with a syringe, and that he was present all the time.

Mr Burton was cross-examined about when he made his statement on this matter, and it was established that it was made on 15 December 2006. It was also put to Mr Burton that he had made up this story to help out a friend, which he denied.

Alister Kirkman gave evidence and said that he was a friend of Mr Burton, who trained a horse that he had an interest in. He said that he went to the Methven races on 10 September 2006 with Mr Burton. The witness said that although he knew Mr Clementson he did not know him well. He was aware that Mr Burton was a friend of Mr Clementson's, and that Mr Burton also helped Mr Clementson on occasions.

Mr Kirkman said that shortly before Christmas 2006 Mr Burton had mentioned to him that Mr Clementson was facing these charges. The witness said that he then recalled that on the day of the races he was near the rail talking to a friend when he overheard two girls talking and saying how they had "stitched Joe up". Mr Kirkman said these girls had their backs to him and that he did not recognise them.

When cross-examined the witness said he thought nothing of this conversation at the time. He also said that this incident took place a few minutes after "Conagher's" race was run, and that he was not sure if "Conagher" had returned from the track by then. It was also put to the witness that he had made this story up, but he denied this.

Edward Murray Skurr gave evidence that he attended the races at Methven on 10 September 2006. He said that he had known Mr Clementson since he moved to Oxford about 4 ? 5 years ago. He went to the races on this day on his own with the intention of helping Mr Clementson with his horse. He was present when Mr Clementson was harnessing "Conagher" and had not seen anything given to the horse with a syringe. About 10 minutes or so before the race he had left the area to have a bet, and when he returned the horse was not in its stall.

Mr Skurr was cross-examined about the condition of a bucket which he said in his evidence was dry.

Mrs Rosemary Beatrice Clementson gave evidence, and this related almost entirely to the jar containing methyl salicylate. The interview with Mrs Clementson by Mr Kitto on 23 October 2006 had included an explanation about this matter.

Mrs Clementson said that she had bought two jars of this substance at a market when she was visiting Auckland. The jar found at the races on 10 September 2006 was one of these jars. The witness said that she had used the contents to rub on her neck to give her relief after an operation, and that she had put it in the bag where it was found. She said that she thought she had put it there about Christmas 2005, and that would have been the last time she saw it.

In cross-examination Mrs Clementson was asked if her husband would have known that this jar was in his bag, and she said that he may not have. Mrs Clementson agreed that her husband was careful and thorough, and that he put oils and such like in small containers to take them to the races.

Brent Anthony Lilley, a Public Trainer and Graduation Horseman, read as his evidence a statement made to Mr Kitto on 20 December 2006. He said that he was in the Clevedon Hotel in Auckland on about 12 December 2006 when he met a man he got to know only as "Brian". He said that during conversations with this man the charges against Mr Clementson were discussed. Mr Lilley was asked "who caught him", and he said that "he thought it was Todd Woodward's girl friend Tania Moore".

"Brian" said that he was at Methven on that day, parked next to Woodward's car, and he heard them (Todd Woodward and Tania Moore) laughing and joking about Joe Clementson. Later Mr Lilley asked "Brian" if he would be prepared to put pen to paper "to try and help Joe out". Brian agreed, and again asked for the name of Tania Moore.

The next night, Mr Lilley said, "Brian" came back to the Clevedon Hotel and gave him the letter signed "Brian Coleman". Mr Lilley later handed this letter to Stipendiary Steward Mr Muirhead. This letter alleged that Todd Woodward and Tania Moore had been talking in a loud voice about "sticking it to old Joe Clemence" (sic) and "we need the money more than them."

Mr Lilley was cross-examined at length. One avenue of questioning was in relation to phone calls between Mr Clementson and himself while he was in Auckland on and about 19 December 2006. Mr Lilley's phone records did not disclose any such calls, but Mr Lilley was adamant that there were regular phone calls between them.

Mr Lilley was also questioned about the identity of Brian Colemen. He said that he thought he had seen him around the race meetings in the South Island, but had not spoken to him before these events. He described him. It was put to Mr Lilley that Brian Colemen did not exist and that he had made up the letter to help Mr Clementson. Mr Lilley denied that this was so.

There was also evidence from Mr Kitto and Stipendiary Steward Mr Ydgren that a thorough search of records (such as Electoral Rolls and phone books) had been made to try and locate Brian Coleman. A number of such persons had been located but none were the Brian Coleman who had allegedly signed the letter we are now dealing with.

Testimony must have two principal qualities before it will be accepted as evidence in a judicial hearing. Firstly the evidence must be relevant, and secondly it must be admissible. Rule 1111(1)(b) of the New Zealand Rules of Harness Racing provides that a Judicial Committee has a discretion to admit any evidence it deems relevant, whether admissible in a Court of Law or not.

The evidence we are dealing with here is hearsay. That is to say it is being presented to this Tribunal as evidence of its own truth. With some exceptions hearsay evidence is not usually acceptable as proof. The main reason for the exclusion of hearsay evidence is that the person making the statement relied on is not subject to cross-examination.

In the present case there are two main possibilities. Firstly that Brian Coleman does not exist at all, in which case Mr Lilley must have written the letter. There is no evidence before us that Mr Lilley did this. The second possibility is that Brian Coleman made the letter up from information given to him by Mr Lilley and signed the letter with a fictitious name.

We are satisfied that the letter signed "Brian Coleman" is fictitious, and we will place no reliance on it in reaching our decision on these charges.

One further matter concerns this Tribunal. Mr Clementson was well aware as from 10 September 2006 that he was being investigated by HRNZ. He and his wife were interviewed again on 23 October 2006, and on 6 November 2006 he was served with the information containing these charges. Mr Clementson must have known that Messrs Burton, Kirkman and Skurr had been at the course that day and yet it took about another 6 weeks after the service of the information for these persons to come forward or to be approached about evidence they might be able to give. It is also of concern that this was at about this same time that "Brian Coleman" appeared on the scene. These delays are detrimental to the credibility of the evidence of these persons, and we need to take this into account.

Submissions by Counsel have been made in relation to all matters before the Tribunal, and we are grateful for the assistance they have given us.

Mr Lange made submissions that the standard of proof is never "beyond reasonable doubt" in prosecutions such as this, as they are civil in nature and not criminal. Mr Eaton did not disagree with this, but submitted that there is a "sliding scale", and the more serious the offence the better the evidence needs to be to prove a charge.

We remind ourselves of the burden and standard of proof that relates to these charges. The burden or onus of proof rests, as always, on the prosecution, in this case HRNZ. There are two standards of proof. In criminal proceedings the standard of proof is beyond reasonable doubt.

In civil proceedings the standard of proof is on the balance of probabilities. This is a civil proceeding. Deciding a matter on the balance of probabilities means that we must be more satisfied than not that the charge has been proved. Also Rule 1008A of the New Zealand Rules of Harness Racing makes it clear that the standard of proof shall be on the balance of probabilities.

We do however agree with Mr Eaton that the more serious the charge the higher the standard of proof must be. There is reference to this matter in the Court of Appeal decision of Johnson v. New Zealand Racing Conference (CA 117/96) of 16/7/96 where it was decided that ?

"We agree with Gallen J. that the burden of proof is on the prosecution and that the standard of proof, while a civil standard, must take into account the seriousness of the allegations both in themselves and in their effect, if established, on Mr Johnson. We also agree that it is not necessary for the Appeal Judges to state expressly the standard which they are applying. The critical question is whether the decision actually applies the standard."

In summary we agree that the standard of proof required in this case is high as

the charges are serious.

We have had the opportunity to observe Tania Moore give her evidence and during cross-examination. We are satisfied that she is a credible witness and find no reason to disbelieve her. We have also had the opportunity of hearing Mr Burton give his evidence and during cross-examination. Obviously both accounts of what took place cannot be right. Tania Moore had her evidence recorded a few minutes after the events whereas Mr Burton did not recall these events until 3 months later. We much prefer the evidence of Tania Moore to that of Mr Burton.

We also find that the witness Sarah Robinson was a truthful and reliable witness. Her explanation for not coming forward sooner is understandable.

The evidence of Alister Kirkman was similar to that of Brian Coleman which we have already discounted. The inference was that one of the girls overheard was Tania Moore. This evidence is too vague to be helpful.

The evidence of Edward Skurr shows that he was away from the stall area for some time before "Conagher" left it. There is no helpful evidence from this witness that would exclude the possibility that Mr Clementson did do the acts complained of.

Mrs Clementson's evidence relates only to the charge of possessing the methyl salicylate. We find that her evidence is not consistent with the explanation given by her husband when he was initially interviewed by Mr Kitto at Methven on 10 September 2006. At that time Mr Kitto had gone through all the 11 items found in the bag. Mr Clementson was questioned at length (see pages 4 ? 6 of the transcript) about these items and at no stage did he deny that this jar was his or mention that it was his wife's.

In summary the evidence of the prosecution is much more believable than that of the defence. Only the evidence of Mr Burton, if believed, supports Mr Clementson's denial that he administered a substance to "Conagher". As mentioned above we prefer the evidence of Tania Moore and Sarah Robinson on this point.

In relation to charge (2) of having possession of a prohibited substance on a racecourse, we are satisfied from the evidence of Dr Grierson and Dr Beresford that methyl salicylate is a prohibited substance under the New Zealand Rules of Harness Racing. We also find that Mr Clementson knew or ought to have known that the jar in his bag contained a prohibited substance. We reject the evidence of Mrs Clementson that her husband may not have known about the jar being there.

Mr Lange made submissions relating to the quantity of the prohibited substance that was contained in the jar and he referred to the case Tucker v. Auckland Racing Club and Others [1956] NZLR 1 at 13 where it was held that ?

"Thus, bearing in mind what I conceive to be the ordinary meaning of

the word "capable" as it is commonly used to-day, I am of opinion that

upon the grammatical construction of both Rules whereby the word

"capable" qualifies the words "drug or stimulant", it is the nature or

quality of the drug or stimulant found to have been administered, and

not the quantity of such drug which has, in fact, been administered, that

is struck at by the Rule."

In relation to this submission Mr Eaton said that the prosecution had failed to

prove the quantity or level of methyl salicylate in the Vanes jar product. However we take the view that the amount of prohibited substance does not have to be proved, and that possession in breach of the Rule is an offence.

In relation to "possession" both Counsel made submissions. We have no doubt that there must be some act or acts by Mr Clementson to show he was in possession of the prohibited substance. In this case Mr Clementson did not disown the offending jar at any time during the first interview on 10 September 2006, and we are satisfied that he was in possession. We also reject the proposition that Mr Clementson did not know what was in the jar.

Taking all the above matters into account we find that this charge has been proved to the required standard.

Charges (1) and (3) have been laid in the alternative. Charge (1), under Rule 1001(1)(v)(i), is a serious racing offence (maximum penalty of a $25,000 fine and/or suspension from holding or obtaining a licence for any specific period or life) whereas charge (3) under Rule 1004(6) is not a serious racing offence (maximum penalty of a $10,000 fine and disqualification or suspension etc for up to 5 years). The basis for both charges is the same. The allegation is that Mr Clementson used a syringe to administer an unknown substance to "Conagher". Charge (3) requires proof that the administration to "Conagher" was by means of "injection".

During the hearing it was established that there were (amongst others) two relevant different meanings that could be attributed to the word "injection". The definition of this word in veterinary terms clearly limits the act to an injection with a syringe and needle. The dictionary meaning is much wider, and would include driving or forcing a fluid into a passage, cavity, or solid material under pressure. On behalf of HRNZ Mr Lange submitted that the wider dictionary meaning should be applied, while Mr Eaton, on behalf of Mr Clementson, submitted that the veterinary dictionary meaning should be adopted. No case law was referred to.

We also refer to the Oxford English Dictionary "online" which defines "inject"

as; "to drive or force (a fluid etc.) into a passage or cavity, as by means of a syringe, or by some impulsive power; said esp. of the introduction of medicines or other preparations into the cavities or tissues of the body."

We have given this matter careful consideration and prefer the interpretation given by Mr Lange on behalf of HRNZ. Our reasons for this decision are as follows.

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• The Rules of Harness Racing are not written for Veterinarians, but are for the guidance of trainers, drivers, owners and other persons involved in harness racing.
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• In particular Rule 1004(6) describes things that a trainer would do to treat a horse, and it is not written in veterinary terms.
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• We also agree with Mr Lange that it would be absurd if a trainer could lawfully administer a substance down the throat of a horse with a syringe without a needle attached, but would be breaching the Rule if a needle was attached to that syringe.

Having now reviewed all the evidence relating to charges (1) and (3) we are

satisfied that Mr Clementson used a syringe to inject a substance down the throat of "Conagher" as charged. We find that charge (3) under Rule 1004(6) is more appropriate in the circumstances than charge (1) under Rule 1001(1)(v)(i). We therefore find that charge (3) has been proved to the required standard. Charge (1) is dismissed.

Counsel are to provide written submissions on penalty and costs by 20 April 2007.

JM. Phelan

Chairman.

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Rules: 1111.1.b, 1001.1.v.i, 1004.5, 1004.6

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