Non Raceday Inquiry – NZGRA v AT and JM Hall 1 August 2011 – Decision

hearingid: 7ae3d37a1c28e53f71cdd4fe82ed69ab

informantnumber: 67322

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decisiondate: 31/07/2011

hearing_title: Non Raceday Inquiry - NZGRA v AT and JM Hall 1 August 2011 - Decision

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appealdecision: NO LINKED APPEAL DECISION

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NON RACEDAY JUDICIAL COMMITTEE DECISION
Informant: Thomas Rodney Carmichael - Racing Integrity Unit
Defendants: Allan Thomas Hall & Janet Mary Hall - Public Trainers
Race: 2, Wanganui GRC, 27 May 2011
Venue: Awapuni Racecourse, Palmerston North
Date: Thursday 21 July 2011
Judicial Committee: KG Hales, Chairman - Mr T Utikere, Committee Member
Plea: Admitted

ALLEGED:
Mr AT & Mrs JM Hall have been jointly charged pursuant to the New Zealand Greyhound Racing Rules in that as joint trainers of the greyhound “Freddy John” which was presented for and raced in Race 2 at the Wanganui Greyhound Racing Club’s meeting on 27 May 2011, when it was found to have administered to it a prohibited substance, namely “Pholcodine”.

The charge was admitted, and thus it is deemed to be proved.

SUMMARY OF FACTS:
Allan Thomas Hall and Janet Mary Hall (the Defendants) are charged today with a breach of Rules 87.1, 87.3 and 87.4 of the Rules of the New Zealand Greyhound Racing Association in that they were the trainers of the greyhound “Freddy John” which has returned a race day positive test to the drug Pholcodine.

The charge proceeds under what is commonly referred to as the Drug Negligence Rule.

The facts of the matter are not in dispute and may be summarised as follows:

1. The Defendants are licensed Public Trainers under the Rules of the New Zealand Greyhound Racing Association.
2. On 27 May 2011 they were the trainers and the persons for the time being in charge of the greyhound “Freddy John” which had been correctly entered for and started in race two at a race meeting conducted by the Wanganui Greyhound Racing Club at Hatrick Raceway.

3. “Freddy John” won the race and was selected as a post-race swab. Mr Hall was present when the dog was swabbed and has signed the relevant swab card accordingly. He has indicated that he has no complaints regarding the swabbing procedures.

4. “Freddy John” was 2/3 in the betting in a field of seven. Its form was very good leading into the race. The stake won was $1,140.

5. All samples from the meeting were packaged in accordance with the Regulations and forwarded by courier to the Racing Laboratory where they were received on 31 may 2011 “with all seals intact.”

6. On 13 June 2011 the Official Racing Analyst reported in writing that the sample from “Freddy John” had tested positive to Pholcodine.

7. Pholcodine is an “opiod cough suppressant (anti-tussive). It helps suppress unproductive coughs and also acts as an anti-fungal agent. It has a mild sedative effect, but has little or no analgesic effect. It is a Prohibited Substance within the meaning of the Rules and its presence in a race day sample is, prima facie, a breach of the Rules.

8. Mr & Mrs Hall were interviewed at their property on 14 June 2011. Mr Hall said that “Freddy John” had shown symptoms of kennel cough. He said that he had, on occasions, used the commercially available product "Duro-Tuss” to treat greyhounds showing these symptoms, particularly young greyhounds. He said that the product was a human medicine and had been obtained from a pharmacy in Levin.

9. Mr Hall further stated that a teaspoon of “Duro-Tuss” was administered orally to “Freddy John” on 14, 15 and 16 May 2011. This was some twelve days prior to the race day. Mr Hall said that he believed that the product contained a Prohibited Substance. He said that is the reason he allowed an eleven day margin before the dog raced again. The administration dates were confirmed from Mr Hall’s diary notes.

10. Whilst Mr Hall has, strictly speaking, administered the product which is the source of the positive swab to the greyhound, the Informant accepts that he did not knowingly administer Pholcodine with the intention of affecting the performance of the greyhound. For that reason both he and Mrs Hall (as joint trainers) have been charged with a breach of the Drug Negligence provisions in the Rules, rather than the more serious charge of a deliberate administration. The Informant accepts that this treatment was not carried out with intent to affect performance but for therapeutic reasons. Mr Hall said that he had used the product before and never expected it to return a positive swab.

11. At the time of this offence Mr & Mrs Hall had been registered as Public Trainers for many years. When interviewed Mr Hall readily admitted the use of “Duro-Tuss” and produced the container. A sample of that had been analysed and confirms the presence of Pholcodine.

THE DEFENDANT’S SUBMISSIONS:
Mr & Mrs Hall explained to the hearing that there were a couple of dogs in their kennels that had kennel cough. They administered the product “Duro-Tuss” to the greyhound “Freddy John”, to assist in curing the animal’s complaint. They knew that they would have to wait a period of time before racing the dog and thought that 72 hours would be enough but, as it transpired, it was nearly twelve days before the dog raced.

They advised that they were well familiar with the book “The Care of the Racing Greyhound” written by Dr. Jim Gannon, and in that publication, there was reference to the fact that some dogs can hold substances in their systems longer than others.

However, they did concede that they had never discussed with their veterinarian how to treat kennel cough as it has not been a recurring problem in their kennels. When they have had incidences of kennel cough, Mr Hall told the hearing that they usually use “Duro-Tuss” but have scratched dogs. He said that at the relevant time, when “Freddy John” was being treated that there were two other young dogs in the kennels which were not racing at the time, which dogs were also being treated with “Duro-Tuss”. He kept them out of work.

Mr Hall also advised the hearing that this is the first time that a greyhound in his kennel had been subject to swabbing after being treated with “Duro-Tuss”.

PENALTY SUBMISSIONS ON BEHALF OF THE RACING INTEGRITY UNIT:
Mr Carmichael submitted that this matter proceeds on the basis that Mr & Mrs Hall, but more particularly Mr Hall, have been negligent in using a product which is, strictly speaking, not intended as an animal remedy.

On the basis of the strict liability nature of the Rule, and the Court of Appeal decision in NZGRA v M, Mr & Mrs Hall have presented “Freddy John” to race with a Prohibited Substance in its system. That is a breach of the Rules.

In their favour it must be said that Mr & Mrs Hall readily admitted the use of the product that they had, in good faith, used previously.

Recent cases involving Prohibited Substance positives, together with the penalties imposed, are listed below.

• NZGRA v C (27.11.2008);
(Disqualified for three months)
• NZGRA v G (2009);
(Fined $1,500 - Costs $500).
• NZGRA v S (2011);
(Fined $1,500).

It is therefore the submission of the Informant that, depending on the personal circumstances of Mr & Mrs Hall, that neither disqualification nor suspension is appropriate and that the matter can be disposed of by way of a fine.

The single aggravating factor in the case is the use of a product not intended as an animal remedy. Against this, the Informant accepts that the penalty may be mitigated by:

a) The frank admission regarding the use of “Duro-Tuss”;
b) The admission of the offence at the first opportunity and their willingness to have the mater determined prior to a race meeting, in an effort to minimise costs, both to the industry and themselves;
c) Their hitherto unblemished record in greyhound racing over many years.

Rule 87.4 provides the mandatory requirement that a greyhound presented to race with a drug in its system shall be disqualified. It is therefore submitted that “Freddy John” be disqualified from race two at Wanganui on 27 May 2011, and that placings be amended accordingly.

THE DEFENDANTS’ PENALTY SUBMISSIONS:
Mr & Mrs Hall told us that they have been Public Trainers for fourteen years, and were hobby trainers for quite a period of time before that. They thought that they had been involved in greyhound racing for at least thirty years.

This was the first time that a greyhound raced by them had been subject to swabbing after having been treated with “Duro-Tuss”.

They were most surprised at the positive result that was produced by “Freddy John” and acknowledged that they were using a human remedy for a cough which had not been treated in terms of its use on animals and greyhounds, in particularly. They accepted that they were in error in this regard. They were most apologetic for the inconvenience to the industry which had occurred as a result of “Freddy John” testing positive for a Prohibited Substance.

They told the hearing that it had been their practice, to scratch dogs when they had been similarly treated, in the past.
 

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penalty:

Mr & Mrs Hall were frank in their admissions before this panel, and were clearly cooperative in their dealings with the Racing Integrity Unit and we are grateful to them for that.

They are greyhound trainers of some considerable experience. They have been Public Trainers for fourteen years and hobby trainers prior to that. They have had an involvement of some thirty years in greyhound racing.

They have an impeccable record, and have not been charged pursuant to the Greyhound Racing Rules before.

These matters are mitigating factors which we will take into account in assessing penalty. There are, however, two aggravating features.
By administering a human remedy to a greyhound, notwithstanding that Mr & Mrs Hall had used the drug in the past; they were sailing off into unchartered waters. This Committee accepts that Dr. Jim Gannon, a widely respected veterinarian and author of “The Care of the Racing Greyhound”, advises that a greyhound with kennel cough should be treated with a cough suppressant. No particular type of cough suppressant is mentioned, it would seem, but one has to infer that only a recognised animal remedy should be used. Dr. Gannon also says that the metabolism of some greyhounds may cause a substance to be retained in the systems longer than others. It seems quite extraordinary that Mr & Mrs Hall allowed a time lapse of some twelve days after the last administration of the drug, yet the greyhound still tested positive after its race. This demonstrates the inherent danger of using a remedy which has not had administration tests carried out on it.

The second aggravating factor, but to a lesser degree, is the impact on the connections of the greyhound. We note that Mr & Mrs Hall are part owners only and, therefore, the other part owners will suffer a financial loss, albeit not great.

We accept without reservation that when using the drug in the past, that when Mr Hall had been unsure about the effects of the drug, that he has been cautious by scratching greyhounds that he has so treated, from the race.

We have balanced the mitigating and aggravating features. We have taken into account Mr Carmichael’s reference to the recent cases involving C, G and S. There is also the recent decision of the Racing Integrity Unit and R where a suspension of four months was imposed on appeal, for administering a drug called “Kynoselen” which contained Heptaminol. Having taken particular note of the mitigating factors we can say that a suspension and/or disqualification are not sentencing options for this committee in this case. A fine is the appropriate penalty. Mr Carmichael submitted that a fine ranging from $1,500 to $3,000 could be imposed, but then submitted that the offending was at the lower end of the scale, and that $1,500 may be an appropriate fine.

Thus, after taking into account the mitigating factors, our starting point for the imposition of a penalty is a fine of $1,500. However, cognisance does need to be taken of the aggravating features and a premium needs to be added to that penalty. That premium is $100, and thus the fine that will be imposed is that of $1,600.

COSTS
Costs in favour of the Judicial Control Authority for a half day hearing are set at $350.

We note that the Racing Integrity Unit does not seek costs in this instance.

We make the following further orders:

1. That “Freddy John” is disqualified from Race 2.

The amended placings are, therefore:
First Dog No. 6 “ “Buddy Broke”
Second Dog No. 1 “Just Defy That”
Third Dog No. 2 “Botany Matthew”.

Stakes are to be paid accordingly.

2. The stake paid to Mr & Mrs Hall is to be refunded.

KG Hales             T Utikere
CHAIRMAN           Committee Member

 

hearing_type: Non-race day

Rules: 87.1, 87.3 and 87.4

Informant: TR Carmichael - RIU

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Respondent: AT and JM Hall - Public Trainers

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