Non-Raceday Inquiry – MP Baker & BP Baker PART 2

hearingid: 29d8340e41b64a0e3084dd998f9c54a8

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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 - MP Baker & BP Baker PART 2

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Decision:

IN THE MATTER OF THE NEW ZEALAND RULES OF RACING

                                                               BETWEEN                               NZ THOROUGHBRED RACING

                                                                                                                 Informant

                                                               AND                                          MURRAY PHILIP BAKER

                                                                                                                 BJORN PHILIP BAKER

                                                                                                                 Defendants

HEARING:                                           Wednesday 8^th October 2008 at Te Rapa Racecourse

JUDICIAL COMMITTEE:                   RM Seabrook (Chairman)

                                                               J Holloway

IN ATTENDANCE                               MP Baker (Defendant)

                                                               BP Baker (Defendant)

                                                               JW McKenzie (NZTR)

                                                               BF McKenzie (NZTR)

                                                               G Lee (Owner)

                                                               PJ Walker (Owner)

                                                               D Black (Veterinarian)

                                                               J Rowan (Observer)

                                                               A Rodley (Waikato Times)

 CONTINUATION of Baker decision - PART 2 - PENALTY SUBMISSIONS

Part 2

PENALTY SUBMISSIONS

Mr J W McKenzie then produced Penalty submissions as follows :

Publicity arising out of the results of a positive swab casts adverse comment and often severe criticism of those associated with the horses that have been post race analysed as having a prohibited substance in their metabolism.

Because of the very high status of these three horses, speculation has been considerable, and some media outlets, particularly electronic venues, are quite irresponsible.  While the facts are invariably not known, it does not preclude the rumour machine from casting aspersions that need never arise.  As stated in the summary of facts, Murray Baker has been a long time licensed trainer with an impeccable training record.  Bjorn, his son, is regarded as a highly intelligent, decent young man with a tertiary qualification as a pharmacist.

The treatment of horses for ulcers has been an issue for many years and international trainers have used medications to treat, prevent and cure a horse with ulcers, because ulcers do impair the ability of a horse to maximize its performance.   There are preparations that can be used at all times for the treatment of ulcers, but Ranitidine has a withholding time of 48 hours, which includes a protection time barrier of 24 hours.

It is relevant to state that NSW does not regard Ranitidine as a prohibited substance.  NSW prohibited the use of all/any substances to a horse within twenty four hours of race day.  That policy is consistent with New Zealand as to its effect.

It is also relevant to state that because in this case the substance was administered by mixing in the feed, it does not breach the provisions of Rule 1004 (2) (c). (Administration after 12.01 pm on race day by injection, nasal gastric tube, gastric tube, ventilator or nebulizer …).

The fact that Ranitidine was administered by the trainer/s, up to and including race day morning, was always going to place the drug in the metabolism of the horse when it raced and was subsequently taken for a collection of its urine post race.

While it is accepted it was done with the honest belief that Ranitidine, like Omeprazole, was an exempt substance, literature on Ranitidine provided for the NZEVA members clearly defined a withholding period of 48 hours.  It is more than likely that Dr Black, knowing Bjorn Baker was a chemist (pharmacist), would know of this and hence did not specifically detail how the Ranitidine was to be administered, and Bjorn, being a chemist, had the honest belief it was exempt and did not seek clarification as to how and when to feed it.

Notwithstanding an honest belief that a substance is exempt, without definitive knowledge of that fact it is, I submit, gross negligence to presume such a belief.

The administration of any product into the feed in the close proximity to race day is a process that needs meticulous consideration to what one is doing.  While an honest belief may remove intent, it does not remove negligence if that belief is wrong.

It is perhaps most unfortunate that Bjorn, with his qualifications and knowledge, did not take the precautionary step to ensure what he was doing was not going to result in a positive swab.

While it was apparent during inquiries Murray did question his son as to the change from Omeprazole to Ranitidine, he did accept it was his son who was qualified in the dispensing for administration of such products.

Bjorn, on the other hand, acknowledges total responsibility for failing to confirm that Ranitidine was not exempt, and is adamant that his father had no part in the mix up.

Because Murray and Bjorn have entered into a training partnership, registered under the Rules of Racing, it is incumbent on each of the partners to be responsible for the action of the other and vice versa.  In a case such as this where a feeding regime is embarked upon, each is vicariously responsible for the actions and consequences of such action on either partner.

Before dealing with submissions relating to the quantum of penalty, it is relevant to repeat both trainers, Murray and Bjorn, have conducted themselves in an honest and professional manner.  The Inspectors received total co-operation and access to all aspects of relevant information to bring the investigation to completion.  The training establishment was tidy, well managed, and medications isolated from risk of contamination.

Members of the Committee, the penalty in each case must be consistent with like circumstances for similar charges, under similar Rules.  For individual charges of a breach of Rule 1004, recent fines have been between $4,000 and $5,000.  One case involved two charges for the same horse on different race days in close proximity, where the horse ingested poppy plants and seeds from a nearby garden.  The trainer was fined $4,500.

In this case we have three high profile stakes winning horses, winning races of a $40,000 gross stake with $24,000 going to the winning owners.  Each of those horses has now been disqualified from each of those races, at a total cost of some $72,000 to their owners.

The merits of whether the substance Ranitidine did have any effect on the performance of each or any of those horses is irrelevant, as explained in submissions relating to the Requests for Rulings under Rule 1001 (1).  What is relevant is that the New Zealand Rules of Racing have been applied.  Those Rules are consistent with international Rules on the issue of disqualification for horses that return an analysis for a prohibited substance in their urine immediately following a race.

The principles for sentencing in racing matters were clearly set out in an Appeal decision of Mr JW  Gendall QC (Justice Gendall) in a prominent case in 1994 referred to as P… (produced as an exhibit).

It is submitted on behalf of NZTR that in this instance there is no necessity to interfere with the license of either trainer.

The issue of punishment to the defendants is important but, equally, so is the issue of deterrence.  The continued use of any substance close to race time must be monitored extremely carefully so as not to allow such a repeat as this, solely because one of the trainers thought he was administering an exempt product.

I submit that the proximity to race start, namely the date of the races, warrants a much greater degree of due diligence.  Failure to observe that level of care must warrant a more severe penalty.

It is submitted that the two defendants be dealt with jointly.  While one may have been more responsible for the administration than the other, they accept they are equally responsible for the actions of each other.

On each charge it is submitted they together be fined the sum of $6,000.00 (a total of $18,000 for the three charges) and ordered to pay costs to NZTR of $1,000.00 plus any costs incurred by the JCA.

Mr Murray Baker, on behalf of the partnership, said this was his first charge under this rule in 30 years.  He said Ranitidine was not prohibited in Australia and this was a genuine mistake to which his son had freely admitted.  He said it was unfortunate that there were three high profile races involved.  He added their loss in percentages was approximately $7,000.

Mr D Black, Veterinary Surgeon, said that no drug was ever prescribed without prior discussion with the trainers, and the confusion this time arose only because Bjorn had used the Ranitidine combination in Australia with great effect.  He said the Bakers were meticulous with such matters and the welfare of their horses was always paramount.

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hearing_type: Old Hearing

Rules: 1004.2.c, 1001.1

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