--| ---------------------- IN THE MATTER of the New Zealand Rules of Harness Racing ------------BETWEEN HARNESS RACING NEW ZEALAND --------Informant ----AND NIGEL RAYMOND McGRATH, PHILIP BENJAMIN BURROWS and JAMES TERRE KEAST Defendants ----Date of Hearing: Wednesday, 18 August 2004 --And Monday, 23 August 2004 ----Venue: Commodore Airport Hotel --Memorial Drive --CHRISTCHURCH ----Judicial Committee: E F DOHERTY (Chairman) and --N O HARRIS --------------------Present: C J LANGE Counsel for Harness Racing New Zealand --P H B HALL Counsel for McGrath and Burrows and --J R RAPLEY Counsel for Keast ----------DECISION OF JUDICIAL COMMITTEE --------Mr McGrath is a licensed public trainer operating as McGrath Racing Stables. Two of his horses, ME N JIM and WHODUNNIT returned positive swabs, the latter doing so twice. Mr McGrath was charged with three breaches of Rule 1001 (1) (q) and in the alternative with breaches of rule 1004 (1) (2) (3) and (4). ----The schedule of charges attached to the informations (64736 &65003) allege that: --------"On or about the 23rd day of April 2004, Nigel Raymond McGRATH administered, caused or permitted to be administered to the horse "ME N JIM" which had been taken to Alexandra Park for the purpose of engaging in a race, a prohibited substance namely Propantheline Bromide in breach of Rule 1001 (1) (q) and Rules 1001 (2) and (3)." ----And further that, --------"On or about the 23rd day of April 2004, Nigel Raymond McGRATH administered, caused or permitted to be administered to the horse ?WHODUNNIT? which had been taken to Addington Raceway for the purpose of engaging in a race, namely Race 8, The Tyre General Pace at the New Zealand Metropolitan Trotting Club's race meeting a prohibited substance, namely Xanthene-9-carboxylic acid in breach of Rule 1001 (1) (q) and you are therefore liable to the penalty or penalties which may be imposed under Rule 1001 (2) and (3)." ----and in the alternative, ----"On or about the 23rd day of April 2004, Nigel Raymond McGRATH was the trainer of the horse ?WHODUNNIT" which had been taken to a racecourse, namely Addington Raceway for the purpose of engaging in a race, namely Race 8, The Tyre General Pace at the New Zealand Metropolitan Trotting Club's race meeting when the said horse was found to have had administered to it a prohibited substance, namely Xanthene-9-carboxylic acid in breach of Rule 1004 (1) (2) (3) and (4) and you are therefore liable to the penalty or penalties which may be imposed under Rule 1004 (5) (a)(b) and (6)." ----and further that, --------"On or about the 29th day of April 2004, Nigel Raymond McGRATH administered, caused or permitted to be administered to the horse "WHODUNNIT" which had been taken to the Forbury Park Racecourse for the purpose of engaging in a race, namely Race 3, The Forbury Committee Pace, at the Forbury Park Trotting Club's race meeting a prohibited substance, namely Xanthene-9-carboxylic acid in breach of Rule 1001 (1) (q) and you are therefore liable to the penalty or penalties which may be imposed under Rule 1001 (2) and 1001 (3)." ----and in the alternative, --------"On or about the 29th day of April 2004, Nigel Raymond McGRATH was the trainer of the horse ?WHODUNNIT" which had been taken to a Racecourse, namely the Forbury Park Racecourse for the purpose of engaging in a race, namely Race 3, The Forbury Committee Pace at the Forbury Park Trotting Club's race meeting when the said horse was found to have had administered to it a prohibited substance, namely Xanthene-9-carboxylic acid in breach of Rule 1004 (1) (2) (3) and (4) and you are therefore liable to the penalty or penalties which may be imposed under Rule 1004 (5) (a) (b) and (6)." ----Mr Burrows is a licensed trials horseman and is the stable foreman at McGrath Racing Stables. He was the person in charge of ME N JIM when it raced at Alexandra Park on 23 April 2004. He was charged with a breach of Rule 1004 (1) (2) (3) and (4). The information alleges that: --------"On the 23rd day of April 2004 Phillip Benjamin BURROWS was the person left in charge of the horse ME N JIM which had been taken to Alexandra Park Racecourse for the purpose of engaging in a race, namely Race 6, the Harnesslink.Com Mobile Pace at the Auckland Trotting Club's race meeting when the said horse was found to have had administered to it a prohibited substance, namely Propantheline Bromide in breach of Rule 1004 (1) (2) (3) and (4) and you are therefore liable to the penalty or penalties which may be imposed under Rule 1004 (5) (a) (b) and (6)." ----Mr Keast is a licensed public trainer and open horseman. He is employed by McGrath Racing Stables principally to work horses in the morning. He was the person in charge of WHODUNNIT when it raced at Forbury Park on 29 April 2004. He was charged with a breach of Rule 1004 (1) (2) (3) and (4). The information alleges that: --------"On the 29th day of April 2004 James Terre KEAST was the person left in charge of the horse "WHODUNNIT " which had been taken to Forbury Park Racecourse for the purpose of engaging in a race, namely Race 3, the Forbury Committee Pace at the Forbury Park Trotting Club's race meeting when the said horse was found to have had administered to it a prohibited substance, namely Xanthene-9-carboxylic acid in breach of Rule 1004 (1) (2) (3) and (4) and you are therefore liable to the penalty or penalties which may be imposed under Rule 1004 (5) (a) (b) and (6)." ----Rule 1001 (1) provides as follows: ----"Every person commits a serious racing offence within the meaning of these Rules, who, in New Zealand or in any other country: --------(q) Administers, causes or permits to be administered or who attempts to administer or to cause to be administered or who permits any person to administer or cause to be administered to any horse which is taken or is to be taken to a racecourse for the purpose of engaging in a race any prohibited substance." ----Rule 1004 provides as follows: ----"(1) A horse shall be presented for a race free of prohibited substances. --------(2) Where a horse is taken, or is to be taken, to a racecourse for the purpose of engaging in a race otherwise than in accordance with sub-rule (1) the trainer of the horse commits a breach of these Rules. ----(3) 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. -------- - 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."
-- ----All of the defendants confirmed that all of the alleged breaches were not admitted. ----ADMITTED FACTS: ----The following facts were admitted by all parties: -------- - The horse Me N Jim is a three year old gelding registered pursuant to the Rules of Harness Racing.
------ - The horse Whodunnit is a six year old gelding registered pursuant to the Rules of Harness Racing.
------ - The Defendant Mr. Nigel McGrath is the holder of a Public Trainer's Licence and Open Horseman's Licence issued under the Rules of Harness Racing.
------ - The Defendant Philip Burrows is Nigel McGrath's Stable Foreman and the holder of a Trials Horseman's Licence pursuant to the Rules of Harness Racing.
------ - The Defendant Jamie Keast is the holder of an Open Horseman's Licence.
------ - On 17th April 2004 the horse Me N Jim was transported from Christchurch to Cambridge (together with five other horses trained by the Defendant McGrath) to race at the Auckland Trotting Club's meetings to be held on 23 April 2004 and 30 April 2004.
------ - The horse Me N Jim was entered in Race 6 at the Auckland Trotting Club's meeting held Alexandra Park Raceway at Auckland on 23 April 2004. The race and Alexandra Park Raceway are, respectively, both a race and racecourse within the meaning of the Rules of Harness Racing.
------ - The Defendant Nigel McGrath was the trainer of the horse and the Defendant Philip Burrows the person in charge of the horse at the relevant times.
------ - At the conclusion of the race officials on duty, in accordance with the Swabbing Instructions, took a urine swab from the horse.
------ - The swab was delivered to New Zealand Racing Services Laboratory for analysis in accordance with the Swabbing Instructions on 26 April 2004.
------ - Upon analysis the swab was found to contain Propantheline.
------ - The horse Whodunnit was entered in Race 8 at the New Zealand Metropolitan Trotting Club's meeting held at Addington Raceway, Christchurch on Friday, 23 April 2004. The race and Addington Raceway are, respectively, both a race and racecourse within the meaning of the Rules of Harness Racing.
------ - The Defendant Nigel McGrath was the trainer of the horse at the relevant time.
------ - The horse was placed 1st for a stake of $2,969 in the race.
------ - At the conclusion of the race officials on duty, in accordance with the Swabbing Instructions, took a urine swab from the horse.
------ - The swab was delivered to New Zealand Racing Services Laboratory for analysis in accordance with the Swabbing Instructions on 25 April 2004.
------ - On analysis the swab contained Xanthene-9-Carboxylic acid. This substance is a major metabolite of Propantheline. Propantheline and its metabolites are substances that come within the category of substances listed in paragraph (b) of the Prohibited Substances Regulations.
------ - The horse Whodunnit was entered in Race 3 at the Forbury Park Trotting Club's meeting held at Forbury Park Racecourse, Dunedin on, 29 April 2004. The race and Forbury Park Racecourse are, respectively, both a race and racecourse within the meaning of the Rules of Harness Racing.
------ - The Defendant Nigel McGrath was the trainer of the horse and the Defendant Jamie Keast the person in charge of the horse at the relevant time.
------ - The horse was placed 1st for a stake of $2,969 in the race.
------ - At the conclusion of the race officials on duty, in accordance with the Swabbing Instructions, took a urine swab from the horse.
------ - The swab was delivered to New Zealand Racing Services Laboratory for analysis in accordance with the Swabbing Instructions.
------ - On analysis the swab contained Xanthene-9-Carboxylic acid. This substance is a major metabolite of Propantheline. Propantheline and its metabolites are substances that come within the category of substances listed paragraph (b) of the Prohibited Substances Regulations.
-- ----SUMMARY OF EVIDENCE: ----In a statement to Detective Borlase, Peter Wilkinson, a registered medical practitioner based at Templeton Medical Centre, Christchurch confirmed that Nigel McGrath had been his patient from 25 November 1999 till the present time. He described him as an infrequent patient. On 14 October 2003, according to his records, Mr. McGrath had consulted him regarding an elbow injury. During that consultation Mr. McGrath advised him that propantheline previously prescribed had greatly helped his gastritis problem and he requested a repeat prescription. A three month course of that medication was prescribed comprising 270 15mg tablets of propantheline three times daily before meals. The prescription was repeated on 22 January 2004 and again on 26 April 2004. He confirmed that Pro- Banthine is the trade name of the drug propantheline. ----Senior Constable Deborah Kaye Smalley supplied a statement confirming the Police were supplied by Mr. McGrath, during the course of a search of his premises on 6 May 2004, with a container labelled "Humidimix" which had written on it in black marker pen "ulcer treatment-seven days". It contained a small quantity of a white crystal type substance and she had delivered the container to Mr. Rod Carmichael at the offices of Harness Racing New Zealand in Christchurch. ----Geoffrey Derrick Beresford, General Manager of New Zealand Racing Laboratory Services Limited described processing the race day urine samples and detection of propantheline and xanthene-9-carboxylic acid as alleged. He also confirmed detection of propantheline in the contents of the container labelled "Humidimix" and marked with black pen handwriting "7 days Ulcer Treatment" which had been delivered to him by Mr. Carmichael. ----He had carried out further tests on samples delivered by veterinarian, Andrew Grierson, from administration trials on two mares. They were the administration of 30mg propantheline bromide (Propan-B) and a test tube of "Blue Magic". Urine samples had been drawn every two hours from 0 to 8 hours. Propantheline was detected in all samples but the amounts were visibly very much less in the 6 to 8 hour samples. These results, he said, were consistent with earlier experiments carried out in Canada where only traces of propantheline could be detected in the 15.5 and 23.5 hour post administration samples. ----Mr. Beresford confirmed that Propantheline was not a substance naturally occurring in horses, it was used as a muscle relaxant for pregnant mares. He agreed that the substance tested, as "Blue Magic" was not the substance found in the "Humidimix" container. He was unable to say when administration might have taken place in the race day samples but thought it unlikely to be outside 24 hours. ----He agreed there had been no published restrictions on the use of Propantheline Bromide. When asked about earlier testing for this substance he explained that no testing method had been available prior to 17 May 2004. No further positives had been obtained since these and the total now tested would be in the thousands but there were no precise figures at this time. ----Andrew Grierson, Veterinary Surgeon, confirmed he was Chief Veterinary Adviser to Harness Racing New Zealand and New Zealand Thoroughbred Racing. He said that Propantheline Bromide was clearly a prohibited substance within the Rules of Harness Racing New Zealand. This was because it is an anticholinergic agent of the ammonium group and such agents are specifically listed in the Prohibited Substance Regulations of Harness Racing New Zealand. He confirmed the tests he had carried out on two horses as mentioned by Mr. Beresford. ----Propan-B, he said, is a licensed animal remedy supplied in powder form containing Propantheline Bromide. It is a smooth muscle relaxant commonly used for pregnant mares. The tablets described as Pro-Banthine provide 15mg quantities and two can be used for treating mares when dissolved in saline with the same effects as the powder form. ----Mr. Hall asked if Mr. Grierson agreed with certain findings in a statement supplied by Professor Irvine. He agreed there were very few published studies on the effects of Propantheline Bromide on horses. He did not agree with Professor Irvine's view that it was not a Bronchodilator. From his experience with racehorses that would be so for a normal healthy horse, but for one with a bronchodilation problem it would be different. He noted Professor Irvine's conclusions regarding the effects of Propantheline on organ systems in horses. While respecting Professor Irvine's views Mr. Grierson remained firm in his view that such effects were capable in terms of the rules and in respect of the cardiovascular system he put it as probable rather than merely possible as suggested by Professor Irvine. ----Mr. Grierson said that he did not know of any use of Propantheline Bromide for ulcers in horses by veterinarians. There were other, more effective remedies he would use. These had no restriction on their use. ----A statement was received from Professor Clifford Hugh Greenfield Irvine who was unable to attend the hearing because of ill health. He noted that he could find very few scientific studies on the effect of propantheline bromide on horses although there were over 600 papers referring to the use of it in humans. He referred to the relevant rule of Harness Racing 105 (1) and the Prohibited Substance Regulations which, he said, specified that a Prohibited Substance must be capable of affecting the speed, stamina, conduct or courage of a horse by its action on the nervous system, the cardiovascular system etc. Therefore it was necessary to establish whether propantheline was capable of affecting those qualities in the horse for it to be a prohibited substance in that category. ----After reviewing whether propantheline bromide was a bronchodilator he concluded that it was unlikely to influence performance through an action on respiratory capacity. Whether it had an action on body systems other than the respiratory system he noted there had been no testing to his knowledge on cardiac function, but concluded that it could act on organ systems, specifically the alimentary-digestive system and the urogenital system and possibly the cardiovascular system. However, whether propantheline was capable of affecting speed, stamina, courage or conduct of a horse was, he thought, debatable. ----William John Bishop, Managing Director of Canterbury Equine Clinic Limited which specialises in equine veterinary services and surgery, also gave evidence. He had been veterinary surgeon and consultant for Nigel McGrath for approximately five years and was an active owner/breeder of standard bred horses. At no stage, he said, had he been asked to advise in respect of or prescribe propantheline bromide for any of Mr. McGrath's horses. It is a therapeutic substance, which could be prescribed for treament of ulcers in humans and horses. Had he been asked to prescribe it for treatment of ulcers in his racehorses he would have advised him there were no restrictions on its use. ----He had read the statement of Professor Irvine and agreed with him that there was considerable doubt whether propantheline is a performance-enhancing drug to qualify under Rule 105 (1) (a). Stomach ulcers were recognised as a significant problem in racehorses causing loss of appetite and accordingly lacklustre performance. As he understood the position, Mr. McGrath was feeding the substance to ensure the horses achieved normal appetite and health. ----Chief Racecourse Inspector Thomas Rodney Carmichael confirmed his actions in obtaining and delivering post race samples for testing. He produced a statement of his interview with Mr. McGrath. In it Mr. McGrath confirmed that he had arranged for Me N Jim to be transported to Auckland where it had raced on 23 April 2004. He had not gone to Auckland himself until 26 April 2004 and for the five days before racing it had been under the care of Mr. Burrows, his stable foreman. The gear sent with the horses would have included the ulcer treatment mix, which is kept in a "Humidimix" container. This was his own mixture, which he learned about in the States when he was up there in 1999 and made up by him using tablets obtained from Dr. Wilkinson. He knew they contained propantheline. The only benefit that he believed they would provide was for treating ulcers. He never believed they would improve the performance of his horses. ----He had used the treatment on and off since he came back from the States. He asked the chemist at Templeton if there were any guidelines for its use in sports and was assured there was not a problem. Even so he was very careful not to use it within seven days of racing. He did not give Mr. Burrows any instructions to feed this mix to Me N Jim at Auckland, either before racing on 23 April 2004 or on 30 April 2004 nor had he given instructions to any other person. ----Statements were provided from Philip Benjamin Burrows confirming that he was at Cambridge with the horses before racing at Auckland on 23 April and that he had made up the feeds and fed the horses. When feeding the horses they added vitamins and sometimes salts if they have had a hard run and sometimes ulcer treatment stuff but they did not add that after seven days before racing. He agreed that sometimes they were fed the wrong feed and that feeds could get mixed up for different horses. He went on to say that at the time, with either one or the other being up in Auckland, being down on staff, working a lot of hours and under a fair amount of stress, "that's where obviously mistakes can occur." ----He confirmed that when Whodunnit went to the Forbury Park meeting he had been responsible for the feeding regime in the three day period beforehand. He agreed there was a possibility that the ulcer treatment could have been fed to it and also of it being in the drench. ----Racecourse Inspector Barry Kitto took a statement from Jamie Keast and he confirmed that just the one horse had been taken by him to Dunedin namely; Whodunnit, and he had no involvement with any feeding on that day for the horse. He had driven the horse; it had won the race and had been swabbed. After the race it had been claimed and he had no further involvement but he acknowledged he had been in charge of it up to that point. He stated that he had only been at the stables to help work the horses in the mornings and had little to do with feeding them. He was unaware of any use of propantheline until informed by Mr. McGrath after the first positive of the feeding of it as an ulcer treatment. ----Mr. McGrath also made a statement to Detective Borlase in which he provided further information concerning his knowledge and use of Propantheline. He said that he first heard about it around six years ago when visiting and working in California before he went out training on his own in New Zealand. He had got to hear of it by talking to a person in a bar. He had used the tablets or pills on his horses and had no doubt it improved their performance but never considered it to be illegal. He took the tablets himself for stomach problems. ----He had crushed the tablets and in the main mixed them in with the Humidimix. He had tried diluting them in water and injecting it into the veins but it did not have the same effect on the horses and he tried to syringe it down the horse's throat after mixing in water but again it did not have the same effect. He had found that giving it in their night feed mixed with the Humidimix had been more beneficial to the horse's performance. He had always been careful not to feed it to any horse within 7 days of it racing and that is why he had that marked on the container. ----He had done thorough enquiries from professional people like chemists at Templeton, his Doctor knew and he had no reason to suggest it was wrong to use. He had found it improves the horse's appetite and general well being. It was cheap, costing about $15 a bottle and when he got results from using the tablets at that price it was quite appealing. To get his vet to provide ulcer treatment for his horses was very expensive. ----He had told absolutely no one about this product or his use of it and his stable staff only knew it as an ulcer treatment substance for the horses. This treatment was his own little secret, as all trainers want to get the edge on the others. He had not told any one else and had been using it for the past two years maybe longer. ----SUBMISSIONS FOR DEFENDANTS: ----Mr. Rapley submitted for the defendant James Keast that the Rules relating to prohibited substances and in particular the definition set out in Rule 105 (1) was poorly drafted, unclear and unworkable such that the informant had failed to prove that there has been a breach of the rules at all. ----The relevant rule provides as follows: ----"105 (1) Prohibited substance means: -- a. any substance capable of affecting the speed, stamina, courage or conduct of a horse by its actions upon the central or peripheral nervous system, or the cardio-vascular, respiratory, alimentary-digestive, musculoskeletal or urogenital systems; and -------- -- b. any substance set out in the Prohibited Substance Regulations; and -------- --c. metabolites, artefacts and isomers of the prohibited substances prescribed by paragraphs (a) and (b) hereof." ------ ----Because of the use of the word "and" all three of the above categories needed to be established before a substance could be a prohibited substance he submitted. ----There was doubt, he submitted, if Professor Irvine's opinion were accepted, that Propantheline or its metabolite affects the speed, stamina, courage or conduct of a horse. He conceded that if only (b) or (c) applied then Propantheline, being an anti cholinergic substance as set out in (b) and xanthene-9-carboxylic acid being a metabolite of propantheline, would be prohibited substances. However, that left unclear, he argued, whether subparagraph (a) in the regulations was still to be proved. ----Mr. Hall submitted for the Defendants Nigel McGrath and Philip Burrows that, as submitted by Mr. Rapley, while it was accepted that the substances were caught under Part (b) of the Prohibited Substance Regulations as anti cholinergic agents there was real doubt about whether they were bronchodilators, and if not, then the second and vital ingredient of the capability of affecting performance had not been established and they were therefore not prohibited substances. ----He further submitted that while the ulcer treatment might have found its way into the feed it was as a result of inadvertence rather than any deliberate act by any of the defendants. ----What could not be disputed, he submitted, was that the defendant Nigel McGrath could not have been personally involved in feeding the ulcer guard substance to Whodunnit on 29 April 2004 because he was in Auckland from 26 April until after 29 April 2004. Similarly with Me N Jim that horse left on 17April 2004 with the defendant Philip Burrows. Mr. McGrath remained in Christchurch and was still in Christchurch on race day 23 April 2004. ----The more serious charges require proof of administration by Mr. McGrath and, he submitted, this had not been proved in any of the three instances. Any administration had to have been accidental and did not support the more serious offences. ----Mr. McGrath, he submitted, had been forthright, open and cooperative with the police and the inspectors and had given an honest account to the police and Harness Racing officials. There was no evidence that he knew that propantheline was a prohibited substance and he had taken reasonable precautions to ensure that, whatever it was, it would not end up in the system of a race horse on race day by imposing the seven day restriction on its use prior to racing. Had his instructions been observed by those responsible for feeding the horses no offences would have been committed. ----SUBMISSIONS FOR INFORMANT: ----Mr. Lange in the course of his detailed submissions put it that, in regard to the definition of prohibited substances, the rule was clear that it meant any substance falling within paragraph (a), and any substance falling within paragraph (b), and any substance falling within paragraph (c). Any other interpretation was, he submitted, contrary to any sensible reading of the provision. ----As to wheth
Decision Date: 01/01/2001
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.
hearingid: ea091f3aac367e4237cf987375fe6ca8
hearing_racingtype: thoroughbred-racing
decisiondate: no date provided
hearing_title: Non Raceday Inquiry Messrs McGrath Keast Burrows
Decision: -- Mr McGrath is a licensed public trainer operating as McGrath Racing Stables. Two of his horses, ME N JIM and WHODUNNIT returned positive swabs, the latter doing so twice. Mr McGrath was charged with three breaches of Rule 1001 (1) (q) and in the alternative with breaches of rule 1004 (1) (2) (3) and (4). ------| ---------------------- IN THE MATTER of the New Zealand Rules of Harness Racing------------BETWEEN HARNESS RACING NEW ZEALAND --------Informant ----AND NIGEL RAYMOND McGRATH, PHILIP BENJAMIN BURROWS and JAMES TERRE KEAST Defendants ----Date of Hearing: Wednesday, 18 August 2004--And Monday, 23 August 2004 ----Venue: Commodore Airport Hotel--Memorial Drive --CHRISTCHURCH ----Judicial Committee: E F DOHERTY (Chairman) and--N O HARRIS --------------------Present: C J LANGE Counsel for Harness Racing New Zealand --P H B HALL Counsel for McGrath and Burrows and--J R RAPLEY Counsel for Keast ----------DECISION OF JUDICIAL COMMITTEE --------Mr McGrath is a licensed public trainer operating as McGrath Racing Stables. Two of his horses, ME N JIM and WHODUNNIT returned positive swabs, the latter doing so twice. Mr McGrath was charged with three breaches of Rule 1001 (1) (q) and in the alternative with breaches of rule 1004 (1) (2) (3) and (4). ----The schedule of charges attached to the informations (64736 &65003) allege that: --------"On or about the 23rd day of April 2004, Nigel Raymond McGRATH administered, caused or permitted to be administered to the horse "ME N JIM" which had been taken to Alexandra Park for the purpose of engaging in a race, a prohibited substance namely Propantheline Bromide in breach of Rule 1001 (1) (q) and Rules 1001 (2) and (3)." ----And further that, --------"On or about the 23rd day of April 2004, Nigel Raymond McGRATH administered, caused or permitted to be administered to the horse ?WHODUNNIT? which had been taken to Addington Raceway for the purpose of engaging in a race, namely Race 8, The Tyre General Pace at the New Zealand Metropolitan Trotting Club's race meeting a prohibited substance, namely Xanthene-9-carboxylic acid in breach of Rule 1001 (1) (q) and you are therefore liable to the penalty or penalties which may be imposed under Rule 1001 (2) and (3)." ----and in the alternative, ----"On or about the 23rd day of April 2004, Nigel Raymond McGRATH was the trainer of the horse ?WHODUNNIT" which had been taken to a racecourse, namely Addington Raceway for the purpose of engaging in a race, namely Race 8, The Tyre General Pace at the New Zealand Metropolitan Trotting Club's race meeting when the said horse was found to have had administered to it a prohibited substance, namely Xanthene-9-carboxylic acid in breach of Rule 1004 (1) (2) (3) and (4) and you are therefore liable to the penalty or penalties which may be imposed under Rule 1004 (5) (a)(b) and (6)." ----and further that, --------"On or about the 29th day of April 2004, Nigel Raymond McGRATH administered, caused or permitted to be administered to the horse "WHODUNNIT" which had been taken to the Forbury Park Racecourse for the purpose of engaging in a race, namely Race 3, The Forbury Committee Pace, at the Forbury Park Trotting Club's race meeting a prohibited substance, namely Xanthene-9-carboxylic acid in breach of Rule 1001 (1) (q) and you are therefore liable to the penalty or penalties which may be imposed under Rule 1001 (2) and 1001 (3)." ----and in the alternative, --------"On or about the 29th day of April 2004, Nigel Raymond McGRATH was the trainer of the horse ?WHODUNNIT" which had been taken to a Racecourse, namely the Forbury Park Racecourse for the purpose of engaging in a race, namely Race 3, The Forbury Committee Pace at the Forbury Park Trotting Club's race meeting when the said horse was found to have had administered to it a prohibited substance, namely Xanthene-9-carboxylic acid in breach of Rule 1004 (1) (2) (3) and (4) and you are therefore liable to the penalty or penalties which may be imposed under Rule 1004 (5) (a) (b) and (6)." ----Mr Burrows is a licensed trials horseman and is the stable foreman at McGrath Racing Stables. He was the person in charge of ME N JIM when it raced at Alexandra Park on 23 April 2004. He was charged with a breach of Rule 1004 (1) (2) (3) and (4). The information alleges that: --------"On the 23rd day of April 2004 Phillip Benjamin BURROWS was the person left in charge of the horse ME N JIM which had been taken to Alexandra Park Racecourse for the purpose of engaging in a race, namely Race 6, the Harnesslink.Com Mobile Pace at the Auckland Trotting Club's race meeting when the said horse was found to have had administered to it a prohibited substance, namely Propantheline Bromide in breach of Rule 1004 (1) (2) (3) and (4) and you are therefore liable to the penalty or penalties which may be imposed under Rule 1004 (5) (a) (b) and (6)." ----Mr Keast is a licensed public trainer and open horseman. He is employed by McGrath Racing Stables principally to work horses in the morning. He was the person in charge of WHODUNNIT when it raced at Forbury Park on 29 April 2004. He was charged with a breach of Rule 1004 (1) (2) (3) and (4). The information alleges that: --------"On the 29th day of April 2004 James Terre KEAST was the person left in charge of the horse "WHODUNNIT " which had been taken to Forbury Park Racecourse for the purpose of engaging in a race, namely Race 3, the Forbury Committee Pace at the Forbury Park Trotting Club's race meeting when the said horse was found to have had administered to it a prohibited substance, namely Xanthene-9-carboxylic acid in breach of Rule 1004 (1) (2) (3) and (4) and you are therefore liable to the penalty or penalties which may be imposed under Rule 1004 (5) (a) (b) and (6)." ----Rule 1001 (1) provides as follows: ----"Every person commits a serious racing offence within the meaning of these Rules, who, in New Zealand or in any other country: --------(q) Administers, causes or permits to be administered or who attempts to administer or to cause to be administered or who permits any person to administer or cause to be administered to any horse which is taken or is to be taken to a racecourse for the purpose of engaging in a race any prohibited substance." ----Rule 1004 provides as follows: ----"(1) A horse shall be presented for a race free of prohibited substances. --------(2) Where a horse is taken, or is to be taken, to a racecourse for the purpose of engaging in a race otherwise than in accordance with sub-rule (1) the trainer of the horse commits a breach of these Rules. ----(3) 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. -------- - 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."
-- ----All of the defendants confirmed that all of the alleged breaches were not admitted. ----ADMITTED FACTS: ----The following facts were admitted by all parties: -------- - The horse Me N Jim is a three year old gelding registered pursuant to the Rules of Harness Racing.
------ - The horse Whodunnit is a six year old gelding registered pursuant to the Rules of Harness Racing.
------ - The Defendant Mr. Nigel McGrath is the holder of a Public Trainer's Licence and Open Horseman's Licence issued under the Rules of Harness Racing.
------ - The Defendant Philip Burrows is Nigel McGrath's Stable Foreman and the holder of a Trials Horseman's Licence pursuant to the Rules of Harness Racing.
------ - The Defendant Jamie Keast is the holder of an Open Horseman's Licence.
------ - On 17th April 2004 the horse Me N Jim was transported from Christchurch to Cambridge (together with five other horses trained by the Defendant McGrath) to race at the Auckland Trotting Club's meetings to be held on 23 April 2004 and 30 April 2004.
------ - The horse Me N Jim was entered in Race 6 at the Auckland Trotting Club's meeting held Alexandra Park Raceway at Auckland on 23 April 2004. The race and Alexandra Park Raceway are, respectively, both a race and racecourse within the meaning of the Rules of Harness Racing.
------ - The Defendant Nigel McGrath was the trainer of the horse and the Defendant Philip Burrows the person in charge of the horse at the relevant times.
------ - At the conclusion of the race officials on duty, in accordance with the Swabbing Instructions, took a urine swab from the horse.
------ - The swab was delivered to New Zealand Racing Services Laboratory for analysis in accordance with the Swabbing Instructions on 26 April 2004.
------ - Upon analysis the swab was found to contain Propantheline.
------ - The horse Whodunnit was entered in Race 8 at the New Zealand Metropolitan Trotting Club's meeting held at Addington Raceway, Christchurch on Friday, 23 April 2004. The race and Addington Raceway are, respectively, both a race and racecourse within the meaning of the Rules of Harness Racing.
------ - The Defendant Nigel McGrath was the trainer of the horse at the relevant time.
------ - The horse was placed 1st for a stake of $2,969 in the race.
------ - At the conclusion of the race officials on duty, in accordance with the Swabbing Instructions, took a urine swab from the horse.
------ - The swab was delivered to New Zealand Racing Services Laboratory for analysis in accordance with the Swabbing Instructions on 25 April 2004.
------ - On analysis the swab contained Xanthene-9-Carboxylic acid. This substance is a major metabolite of Propantheline. Propantheline and its metabolites are substances that come within the category of substances listed in paragraph (b) of the Prohibited Substances Regulations.
------ - The horse Whodunnit was entered in Race 3 at the Forbury Park Trotting Club's meeting held at Forbury Park Racecourse, Dunedin on, 29 April 2004. The race and Forbury Park Racecourse are, respectively, both a race and racecourse within the meaning of the Rules of Harness Racing.
------ - The Defendant Nigel McGrath was the trainer of the horse and the Defendant Jamie Keast the person in charge of the horse at the relevant time.
------ - The horse was placed 1st for a stake of $2,969 in the race.
------ - At the conclusion of the race officials on duty, in accordance with the Swabbing Instructions, took a urine swab from the horse.
------ - The swab was delivered to New Zealand Racing Services Laboratory for analysis in accordance with the Swabbing Instructions.
------ - On analysis the swab contained Xanthene-9-Carboxylic acid. This substance is a major metabolite of Propantheline. Propantheline and its metabolites are substances that come within the category of substances listed paragraph (b) of the Prohibited Substances Regulations.
-- ----SUMMARY OF EVIDENCE: ----In a statement to Detective Borlase, Peter Wilkinson, a registered medical practitioner based at Templeton Medical Centre, Christchurch confirmed that Nigel McGrath had been his patient from 25 November 1999 till the present time. He described him as an infrequent patient. On 14 October 2003, according to his records, Mr. McGrath had consulted him regarding an elbow injury. During that consultation Mr. McGrath advised him that propantheline previously prescribed had greatly helped his gastritis problem and he requested a repeat prescription. A three month course of that medication was prescribed comprising 270 15mg tablets of propantheline three times daily before meals. The prescription was repeated on 22 January 2004 and again on 26 April 2004. He confirmed that Pro- Banthine is the trade name of the drug propantheline. ----Senior Constable Deborah Kaye Smalley supplied a statement confirming the Police were supplied by Mr. McGrath, during the course of a search of his premises on 6 May 2004, with a container labelled "Humidimix" which had written on it in black marker pen "ulcer treatment-seven days". It contained a small quantity of a white crystal type substance and she had delivered the container to Mr. Rod Carmichael at the offices of Harness Racing New Zealand in Christchurch. ----Geoffrey Derrick Beresford, General Manager of New Zealand Racing Laboratory Services Limited described processing the race day urine samples and detection of propantheline and xanthene-9-carboxylic acid as alleged. He also confirmed detection of propantheline in the contents of the container labelled "Humidimix" and marked with black pen handwriting "7 days Ulcer Treatment" which had been delivered to him by Mr. Carmichael. ----He had carried out further tests on samples delivered by veterinarian, Andrew Grierson, from administration trials on two mares. They were the administration of 30mg propantheline bromide (Propan-B) and a test tube of "Blue Magic". Urine samples had been drawn every two hours from 0 to 8 hours. Propantheline was detected in all samples but the amounts were visibly very much less in the 6 to 8 hour samples. These results, he said, were consistent with earlier experiments carried out in Canada where only traces of propantheline could be detected in the 15.5 and 23.5 hour post administration samples. ----Mr. Beresford confirmed that Propantheline was not a substance naturally occurring in horses, it was used as a muscle relaxant for pregnant mares. He agreed that the substance tested, as "Blue Magic" was not the substance found in the "Humidimix" container. He was unable to say when administration might have taken place in the race day samples but thought it unlikely to be outside 24 hours. ----He agreed there had been no published restrictions on the use of Propantheline Bromide. When asked about earlier testing for this substance he explained that no testing method had been available prior to 17 May 2004. No further positives had been obtained since these and the total now tested would be in the thousands but there were no precise figures at this time. ----Andrew Grierson, Veterinary Surgeon, confirmed he was Chief Veterinary Adviser to Harness Racing New Zealand and New Zealand Thoroughbred Racing. He said that Propantheline Bromide was clearly a prohibited substance within the Rules of Harness Racing New Zealand. This was because it is an anticholinergic agent of the ammonium group and such agents are specifically listed in the Prohibited Substance Regulations of Harness Racing New Zealand. He confirmed the tests he had carried out on two horses as mentioned by Mr. Beresford. ----Propan-B, he said, is a licensed animal remedy supplied in powder form containing Propantheline Bromide. It is a smooth muscle relaxant commonly used for pregnant mares. The tablets described as Pro-Banthine provide 15mg quantities and two can be used for treating mares when dissolved in saline with the same effects as the powder form. ----Mr. Hall asked if Mr. Grierson agreed with certain findings in a statement supplied by Professor Irvine. He agreed there were very few published studies on the effects of Propantheline Bromide on horses. He did not agree with Professor Irvine's view that it was not a Bronchodilator. From his experience with racehorses that would be so for a normal healthy horse, but for one with a bronchodilation problem it would be different. He noted Professor Irvine's conclusions regarding the effects of Propantheline on organ systems in horses. While respecting Professor Irvine's views Mr. Grierson remained firm in his view that such effects were capable in terms of the rules and in respect of the cardiovascular system he put it as probable rather than merely possible as suggested by Professor Irvine. ----Mr. Grierson said that he did not know of any use of Propantheline Bromide for ulcers in horses by veterinarians. There were other, more effective remedies he would use. These had no restriction on their use. ----A statement was received from Professor Clifford Hugh Greenfield Irvine who was unable to attend the hearing because of ill health. He noted that he could find very few scientific studies on the effect of propantheline bromide on horses although there were over 600 papers referring to the use of it in humans. He referred to the relevant rule of Harness Racing 105 (1) and the Prohibited Substance Regulations which, he said, specified that a Prohibited Substance must be capable of affecting the speed, stamina, conduct or courage of a horse by its action on the nervous system, the cardiovascular system etc. Therefore it was necessary to establish whether propantheline was capable of affecting those qualities in the horse for it to be a prohibited substance in that category. ----After reviewing whether propantheline bromide was a bronchodilator he concluded that it was unlikely to influence performance through an action on respiratory capacity. Whether it had an action on body systems other than the respiratory system he noted there had been no testing to his knowledge on cardiac function, but concluded that it could act on organ systems, specifically the alimentary-digestive system and the urogenital system and possibly the cardiovascular system. However, whether propantheline was capable of affecting speed, stamina, courage or conduct of a horse was, he thought, debatable. ----William John Bishop, Managing Director of Canterbury Equine Clinic Limited which specialises in equine veterinary services and surgery, also gave evidence. He had been veterinary surgeon and consultant for Nigel McGrath for approximately five years and was an active owner/breeder of standard bred horses. At no stage, he said, had he been asked to advise in respect of or prescribe propantheline bromide for any of Mr. McGrath's horses. It is a therapeutic substance, which could be prescribed for treament of ulcers in humans and horses. Had he been asked to prescribe it for treatment of ulcers in his racehorses he would have advised him there were no restrictions on its use. ----He had read the statement of Professor Irvine and agreed with him that there was considerable doubt whether propantheline is a performance-enhancing drug to qualify under Rule 105 (1) (a). Stomach ulcers were recognised as a significant problem in racehorses causing loss of appetite and accordingly lacklustre performance. As he understood the position, Mr. McGrath was feeding the substance to ensure the horses achieved normal appetite and health. ----Chief Racecourse Inspector Thomas Rodney Carmichael confirmed his actions in obtaining and delivering post race samples for testing. He produced a statement of his interview with Mr. McGrath. In it Mr. McGrath confirmed that he had arranged for Me N Jim to be transported to Auckland where it had raced on 23 April 2004. He had not gone to Auckland himself until 26 April 2004 and for the five days before racing it had been under the care of Mr. Burrows, his stable foreman. The gear sent with the horses would have included the ulcer treatment mix, which is kept in a "Humidimix" container. This was his own mixture, which he learned about in the States when he was up there in 1999 and made up by him using tablets obtained from Dr. Wilkinson. He knew they contained propantheline. The only benefit that he believed they would provide was for treating ulcers. He never believed they would improve the performance of his horses. ----He had used the treatment on and off since he came back from the States. He asked the chemist at Templeton if there were any guidelines for its use in sports and was assured there was not a problem. Even so he was very careful not to use it within seven days of racing. He did not give Mr. Burrows any instructions to feed this mix to Me N Jim at Auckland, either before racing on 23 April 2004 or on 30 April 2004 nor had he given instructions to any other person. ----Statements were provided from Philip Benjamin Burrows confirming that he was at Cambridge with the horses before racing at Auckland on 23 April and that he had made up the feeds and fed the horses. When feeding the horses they added vitamins and sometimes salts if they have had a hard run and sometimes ulcer treatment stuff but they did not add that after seven days before racing. He agreed that sometimes they were fed the wrong feed and that feeds could get mixed up for different horses. He went on to say that at the time, with either one or the other being up in Auckland, being down on staff, working a lot of hours and under a fair amount of stress, "that's where obviously mistakes can occur." ----He confirmed that when Whodunnit went to the Forbury Park meeting he had been responsible for the feeding regime in the three day period beforehand. He agreed there was a possibility that the ulcer treatment could have been fed to it and also of it being in the drench. ----Racecourse Inspector Barry Kitto took a statement from Jamie Keast and he confirmed that just the one horse had been taken by him to Dunedin namely; Whodunnit, and he had no involvement with any feeding on that day for the horse. He had driven the horse; it had won the race and had been swabbed. After the race it had been claimed and he had no further involvement but he acknowledged he had been in charge of it up to that point. He stated that he had only been at the stables to help work the horses in the mornings and had little to do with feeding them. He was unaware of any use of propantheline until informed by Mr. McGrath after the first positive of the feeding of it as an ulcer treatment. ----Mr. McGrath also made a statement to Detective Borlase in which he provided further information concerning his knowledge and use of Propantheline. He said that he first heard about it around six years ago when visiting and working in California before he went out training on his own in New Zealand. He had got to hear of it by talking to a person in a bar. He had used the tablets or pills on his horses and had no doubt it improved their performance but never considered it to be illegal. He took the tablets himself for stomach problems. ----He had crushed the tablets and in the main mixed them in with the Humidimix. He had tried diluting them in water and injecting it into the veins but it did not have the same effect on the horses and he tried to syringe it down the horse's throat after mixing in water but again it did not have the same effect. He had found that giving it in their night feed mixed with the Humidimix had been more beneficial to the horse's performance. He had always been careful not to feed it to any horse within 7 days of it racing and that is why he had that marked on the container. ----He had done thorough enquiries from professional people like chemists at Templeton, his Doctor knew and he had no reason to suggest it was wrong to use. He had found it improves the horse's appetite and general well being. It was cheap, costing about $15 a bottle and when he got results from using the tablets at that price it was quite appealing. To get his vet to provide ulcer treatment for his horses was very expensive. ----He had told absolutely no one about this product or his use of it and his stable staff only knew it as an ulcer treatment substance for the horses. This treatment was his own little secret, as all trainers want to get the edge on the others. He had not told any one else and had been using it for the past two years maybe longer. ----SUBMISSIONS FOR DEFENDANTS: ----Mr. Rapley submitted for the defendant James Keast that the Rules relating to prohibited substances and in particular the definition set out in Rule 105 (1) was poorly drafted, unclear and unworkable such that the informant had failed to prove that there has been a breach of the rules at all. ----The relevant rule provides as follows: ----"105 (1) Prohibited substance means: -- a. any substance capable of affecting the speed, stamina, courage or conduct of a horse by its actions upon the central or peripheral nervous system, or the cardio-vascular, respiratory, alimentary-digestive, musculoskeletal or urogenital systems; and ---- ---- -- b. any substance set out in the Prohibited Substance Regulations; and ---- ---- --c. metabolites, artefacts and isomers of the prohibited substances prescribed by paragraphs (a) and (b) hereof." ---- -- ----Because of the use of the word "and" all three of the above categories needed to be established before a substance could be a prohibited substance he submitted. ----There was doubt, he submitted, if Professor Irvine's opinion were accepted, that Propantheline or its metabolite affects the speed, stamina, courage or conduct of a horse. He conceded that if only (b) or (c) applied then Propantheline, being an anti cholinergic substance as set out in (b) and xanthene-9-carboxylic acid being a metabolite of propantheline, would be prohibited substances. However, that left unclear, he argued, whether subparagraph (a) in the regulations was still to be proved. ----Mr. Hall submitted for the Defendants Nigel McGrath and Philip Burrows that, as submitted by Mr. Rapley, while it was accepted that the substances were caught under Part (b) of the Prohibited Substance Regulations as anti cholinergic agents there was real doubt about whether they were bronchodilators, and if not, then the second and vital ingredient of the capability of affecting performance had not been established and they were therefore not prohibited substances. ----He further submitted that while the ulcer treatment might have found its way into the feed it was as a result of inadvertence rather than any deliberate act by any of the defendants. ----What could not be disputed, he submitted, was that the defendant Nigel McGrath could not have been personally involved in feeding the ulcer guard substance to Whodunnit on 29 April 2004 because he was in Auckland from 26 April until after 29 April 2004. Similarly with Me N Jim that horse left on 17April 2004 with the defendant Philip Burrows. Mr. McGrath remained in Christchurch and was still in Christchurch on race day 23 April 2004. ----The more serious charges require proof of administration by Mr. McGrath and, he submitted, this had not been proved in any of the three instances. Any administration had to have been accidental and did not support the more serious offences. ----Mr. McGrath, he submitted, had been forthright, open and cooperative with the police and the inspectors and had given an honest account to the police and Harness Racing officials. There was no evidence that he knew that propantheline was a prohibited substance and he had taken reasonable precautions to ensure that, whatever it was, it would not end up in the system of a race horse on race day by imposing the seven day restriction on its use prior to racing. Had his instructions been observed by those responsible for feeding the horses no offences would have been committed. ----SUBMISSIONS FOR INFORMANT: ----Mr. Lange in the course of his detailed submissions put it that, in regard to the definition of prohibited substances, the rule was clear that it meant any substance falling within paragraph (a), and any substance falling within paragraph (b), and any substance falling within paragraph (c). Any other interpretation was, he submitted, contrary to any sensible reading of the provision. ----As to wheth |
hearing_type: Old Hearing
Rules: 1001.2, 1004.5.a.b, 1001.1, 105.1.a, 105.1, 1004.6, 1001.1.q, 1004.1.2.3
meetdate: no date provided
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