Non-Raceday Inquiry – Mr JM Whittaker

hearingid: 2a721765929a7dc7ace75f8755f56dd7

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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 - Mr JM Whittaker

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The defendant is charged with one breach of Rule 1004(1), (2) and (4) of the Rules of Harness Racing. The charge (Information 66252) laid by Racecourse Inspector Kitto

BEFORE A JUDICIAL COMMITTEE AT CHRISTCHURCH

IN THE MATTER of the New Zealand Rules of Harness Racing

BETWEEN  -  Barry Alexander KITTO

                         Racecourse Inspector, Informant

AND             -  Jeffrey Michael WHITTAKER

                         Licensed Public Trainer,  Defendant  

APPEARING:

Mr CJ Lange, Counsel for Harness Racing New Zealand

Mr BA Kitto, Racecourse Inspector

Dr WJ Bishop, for the Defendant

Mr JM Whittaker

Mrs PL Densem, owner of "Vivo Per Lei"

Mr N Ydgren, Registrar

DATE OF HEARING:      26 September 2006

JUDICIAL COMMITTEE:  Mr JM Phelan  (Chairman)

                                             Mr RG McKenzie

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DECISION OF THE JUDICIAL COMMITTEE

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The defendant is charged with one breach of Rule 1004(1), (2) and (4) of the Rules of Harness Racing. The charge (Information 66252) laid by Racecourse Inspector Kitto reads as follows ?

"I, the above named informant allege that the above named Defendant

committed a breach of Rule 1004(1),(2) and (4) in that on the 23 June 2006, at Christchurch, Jeffrey Michael WHITTAKER, being the trainer of the horse "Vivo Per Lei", did take the said horse to a racecourse for the purpose of engaging in a race, namely Race 1, the Robbies Bar and Bistro trot at the New Zealand Metropolitan Trotting Club's race meeting held at Addington Racecourse, and that you failed to present the horse for the said race,

free of a prohibited substance, namely alkalising agents as evidenced by a

total carbon dioxide level (TCO2) present at a concentration of 36.3 mmol/L

being in breach of Rule 1004(1)(2) and (4).

You are therefore liable to the penalty or penalties which may be imposed in

accordance with Rule 1004(7)(a) and (b) and the horse "Vivo Per Lei" shall be liable to the penalty or penalties which may be imposed in accordance with Rule 1004(8)."

The Rules referred to above, which come under the "Prohibited Substance Rule", read 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.

(4) 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.

Mr Whittaker had previously indicated that he did not admit this breach of the

Rule. He was represented at the hearing by Veterinary Surgeon Dr W. J. Bishop.

Mr Lange presented the case for Harness Racing New Zealand ("HRNZ") and it was established that Dr Bishop agreed with most of the evidence. Dr Bishop asked for and obtained agreement from Mr Kitto that Mr Whittaker had been honest and forthright during the investigation of this matter. In the Summary of Facts Mr Kitto's words were that "Mr Whittaker was totally honest during the investigation?.

The Summary of Facts can be briefly stated as follows.

Mr Whittaker correctly entered and started the horse "Vivo Per Lei" in Race 1, the Robbies Bar & Bistro Trot, at the New Zealand Metropolitan Trotting Club's race meeting held at Addington Raceway on Friday 23 June 2006. "Vivo Per Lei" won the race.

Prior to the running of the race "Vivo Per Lei" was pre-race blood tested along with the rest of the starters in the race. On 28 June 2006 the Racing Laboratory reported that the horse had returned a bicarbonate level reading of 36.3 mmol/L. The threshold level is 35.0 mmol/L, as set out in the "Prohibited Substance Regulation", and the actionable level where a prosecution is taken is when the level is more than 36.2 mmol/L.

Although the Executive of Harness Racing New Zealand has set a TCO2 level of

35.0 mmol/L, it has added an "analytical error" factor which has been set at 1.2 mmol/L, and no prosecution is undertaken unless the analysis exceeds 36.2 mmol/L.

Mr Whittaker was later interviewed by Mr Kitto and he was at a loss to explain how his horse had returned such a high reading. Mr Whittaker also explained that his horses were given a scoop of bicarbonate in their night feeds, and that these night feeds were made up by a stable employee. The supply of bicarbonate had run out on 19 June 2006, and "Vivo Per Lei" would not have been fed bicarbonate since that date.

Dr Bishop made submissions about the accuracy of the "Certificate of Analysis" and the "Confirmation Sample 06B/1545". The "Certificate of Analysis" states that the TCO2 result was 36.3 mmol/L. The "TCO2 Confirmation Results" gives the details of how the final reading was arrived at. It was Dr Bishop's submission that readings recorded in the bottom right "box" showed that there were two conflicting readings, these being 36.2 and 36.3 mmol/L. It was Dr Bishop's case that as one of these readings was within the permissible range Mr Whittaker should be given the benefit of the doubt, and the charge against him should be dismissed.

Robert Graeme Howitt gave evidence on behalf of HRNZ by means of a phone conference call. Mr Howitt said that he was a Racing Chemist employed by the Racing Laboratory at Avondale in Auckland. He described his qualifications and experience in this profession. In his written evidence Mr Howitt explained how the analysis was carried out using the Beckman Synchron EL-ISE analyser.

Mr Howitt also explained the details of the "TCO2 Confirmation Results". He said that there were two adjusted results showing readings of 36.30 and 36.25 mmol/L, which have an average reading of 36.275 mmol/L which was rounded up to 36.3 mmol/l.

During his evidence Mr Howitt also referred the HRNZ practice of allowing a 1.2 mmol/L "uncertainty of measurement" on top of the 35.0 mmol/L. This addition is to ensure that no prosecution is undertaken where the reading could be at or under the 35.0 mmol/L allowed by the Rules.

Mr Howitt also said that the actual "uncertainty" level was 0.9 mmol/L, and that there was a 99.9% confidence in this figure.

Dr Bishop questioned Mr Howitt at length. These questions were almost entirely devoted to the variance between the figures shown in the "TCO2 Confirmation Results". Dr Bishop put it to Mr Howitt that the summarised 1^st and 2^nd results (as shown in the lower right "box") of 36.3 and 36.2 mmol/L resulted in Mr Whittaker being denied natural justice because of the rounding up. Dr Bishop argued that Mr Whittaker faced a conviction even though only one of the two readings was in excess of 36.2 mmol/L.

Mr Howitt responded and explained that the summarised 1^st and 2^nd results simply repeated the readings of 36.3 and 36.25 mmol/L shown above in the "TCO2 Confirmation Results". Mr Howitt also explained that the reason why the full readings had been shortened was because the program used to print the bottom right hand "box" only allowed for one decimal point.

Mr Lange made submissions that the "analytical error" factor of 1.2 mmol/L was an adequate protection against anyone being wrongly convicted of a breach of this Rule

Mr Lange said that the plus or minus 1.2 mmol/L "analytical error" factor meant that, in this case, the actual reading was between 35.1 and 37.5 mmol/L. On the basis of Mr Howitt's evidence (of plus or minus 0.9 mmol/L) the range was between 35.4 and 37.2 mmol/L.

Mr Lange also referred to the Appeal Tribunal decision in HRNZ v. Thornley (2002) where, at page 9, it was stated that "?.the level of 36.2 mmol/L makes it very unlikely that a "normal" horse would be caught out."

Dr Bishop had not been aware of the appeal decision in the Thornley case and the hearing was adjourned to enable him to read this decision.

On the resumption of the hearing Dr Bishop referred to page 6 of the decision where it was stated that a study had shown that the probabilities were that a reading of 36.2 mmol/L would occur in 1 in 902 horses (in normal circumstances). Dr Bishop contended that this showed that there was a reasonable chance that "Vivo Per Lei" had tested 36.2 mmol/L naturally.

After hearing the evidence we made the following findings.

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• That the "TCO2 Confirmation Results" were accurate.
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• We reject the submissions of Dr Bishop that the readings were 36.3 and 36.2 mmol/L respectively, and find that they were in fact 36.30 and 36.25 mmol/L respectively.
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• We are satisfied that the "analytical error" or "uncertainty of measurement" factor of 1.2 mmol/L is an adequate protection, and makes it very unlikely that that a "normal" horse would be caught out.

As per the above findings we are satisfied that the readings were in fact 36.30 and 36.25 mmol/L. We are also satisfied that the precise final reading was 36.275 mmol/L which was rounded up to 36.3 mmol/L.

Dr Bishop also referred to Rule 1008A which provides that the standard of proof for any matter which has to be proved by the informant or defendant shall be on the balance of probabilities. This means that in this case the informant must produce evidence to prove that it is more probable than not that the offence has been committed. Dr Bishop's submissions were that there was some doubt that the TCO2 level was in fact more than 36.2mmol/L, and that for this reason the charge should be dismissed.

Having set out the facts of this matter, the evidence from Mr Howitt, and the submissions made by Mr Lange and Dr Bishop, we are satisfied that it has been proved to the required standard (on the balance of probabilities) that "Vivo Per Lei" had a TCO2 level of 36.3, which was in excess of the permissible level, when it was taken to Addington Raceway on 23 June 2006 for the purpose of engaging in a race. We find that the charge has been proved.

It should also be mentioned that during the hearing Mr Whittaker was given an opportunity to make a statement. This statement related to his background and character, rather than relating to his guilt or innocence. This information would be more appropriate when dealing with penalty.

We now need to make a decision regarding penalty and costs. If either of the parties wishes to have this hearing re-convened for this purpose then this is to be arranged through the JCA. If the parties agree, the decisions on penalty and costs can be dealt with by both parties filing written submissions with the JCA within 14 days from the receipt of this decision.

"(8) Any horse connected with a breach of sub-rule (1), (2) or (3) shall be disqualified from any race entered and/or liable to a period of disqualification not exceeding 5 years."

It is therefore mandatory to disqualify "Vivo Per Lei" from the race. Accordingly "Vivo Per Lei" is disqualified from 1^st place in the Robbies Bar & Bistro Trot (Race 1) at the New Zealand Metropolitan Trotting Club's meeting held on 23 June 2006. The revised places are as follows.

1^st ? Sonny Liston (3).

2^nd ? Gypsy Like (15).

3^rd ? Dontgobreakinmyheart (9).

4^th ? Just Begun (6).

5^th ? Abracadabra (16).

6^th ? Love Hate Revenge (11)

Harness Racing New Zealand is to make arrangements to distribute the stake money in accordance with the amended placings.

JM Phelan

Chairman.

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Rules: 1004.1, 1004.1.2, 1004.7.a, 1004.8

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