Non Raceday Inquiry – NZGRA v BA Johnston 21 July 2011 – Decision

hearingid: ad8f6d6f90bd6b2cda451b529cdcb92c

informantnumber: 67321

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decisiondate: 31/07/2011

hearing_title: Non Raceday Inquiry - NZGRA v BA Johnston 21 July 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
Defendant: Brent Alan Johnston - Licensed Owner/Trainer
Race: 2, Palmerston North GRC, 16 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 BA Johnston has been charged pursuant to the New Zealand Greyhound Racing Rules in that he was the trainer of “Imperative” which was presented for and raced in Race 2, the Geon Wellington C 1, at a race meeting conducted by the Palmerston North Greyhound Racing Club, when the said greyhound was found to have had administered to it a prohibited substance, namely “Scopolamine” being an offence under the provisions of Rules 87.1 and 87.3, and punishable pursuant to Rules 87.4 and 89.1 of the New Zealand Greyhound Racing Association Rules.

SUMMARY OF FACTS:
Mr Brent Johnston (the Defendant) is charged today with an offence under Rules 87.1 and 87.3 of the Rules of the New Zealand Greyhound Racing Association, in that he was the official trainer of the registered greyhound “Imperative” which was presented to race at Palmerston North on 16 May 2011 when, upon the analysis of a post-race urine sample, the greyhound was found to have a drug (Scopolamine) in it’s system.

All matters preliminary to this hearing, including the filing of a charge against the Defendant, the appropriate notices to the various parties, and the appointment of Judicial Committee, have been properly attended to.

The basic facts surrounding the matter are not in dispute and can be summarised as follows:

INFORMATION NUMBER 67321:

1. The Defendant is a licensed Owner/Trainer. He has been so licensed for about ten years.

2. On 16 May 2011 the Defendant was the official trainer of the registered greyhound “Imperative”.

3. On May 2011, “Imperative” was correctly entered for and started in race two (Geon Wellington C1) at a race meeting conducted by the Palmerston North Greyhound Racing Club at Manawatu Raceway. This race was for Class 1 greyhounds over 375 meters. “Imperative” finished second in the race and earned gross stake money of $272.50. It was 7/7 in the betting (of seven starters). The Defendant was present at the meeting as the person for the time being in charge of the greyhound.
4. “Imperative” was selected to be swabbed and this was carried out post-race. The Defendant was present during the swabbing process and has indicated that the correct procedures were followed and he has signed the relevant sections of the swab card accordingly.

5. The samples were forwarded by courier to the Racing Laboratory at Auckland where they were received on 18 May 2011 “with all seals intact”.

6. On 7 June 2011 the Racing Analyst confirmed in writing that the sample taken from “Imperative” at Palmerston North on 16 May 2011 had tested positive to Scopolamine.

7. Scopolamine is an “anti-cholinergic drug, also known as “Hyoscine”. It has legitimate use in canine medicine as an ingredient in Scourban Plus for the treatment of diarrhoea, gastro enteritis and other digestive disturbances.

INTERVIEWS:

8. The Defendant was interviewed at Wanganui on 9 June 2011. He has denied the intentional administration of any product that he knew contained Scopolamine. A search of the kennel area failed to locate any product that contained Scopolamine.

9. On 10 June 2011 the Defendant telephoned the Investigator and advised him that he had found an old Scourban Plus bottle at his property. He said that he had obtained this from a local veterinarian in August 2010 but that he had not used it in recent times. The bottle and solid contents were sent to the Racing Laboratory for analysis.

10. On 11 July 2011 the Official Racing Analyst reported that a sample from the solid material in the labelled bottle had tested positive to Scopolamine.

11. The Defendant further reported to the Investigator that he had conducted some inquiries to establish other sources of Scopolamine as he was adamant that he had not used Scourban. He said that he had read that the plant known as “Deadly Nightshade” contained Scopolamine and that he had witnessed his greyhounds eating parts of this plant which was prevalent on his property.

12. On 14 June 2011 an investigator called at the property in Wanganui where the Defendant had been living at the time of this offence. It was confirmed that a species of “Nightshade” was growing at the property.

13. Samples of plant material were taken and subsequently delivered to the Racing Laboratory for analysis. The plant material was identified as the common “Black Nightshade”. An analysis of berries and plant material did not identify Scopolamine or Hyoscine.

THE DEFENDANT’S RESPONSE:
Mr Johnston accepted that the drug Scopolamine was in the dog’s system. He thought that it might have been as a result of the dog eating the weed “Nightshade” and he produced to the hearing a print out from Wikipedia. Mr Johnston did not know what Scopolamine was when he was told of the test results, and said that he had no idea where it came from.

Mr Johnston said that he had been buying meat from the Wanganui Greyhound Club and thought that there must be a possibility of the substance being in the meat that he purchased.

He said that he had used the veterinary remedy “Scourban” but the “Scourban” that he was provided by his veterinary surgeon was not in the manufacturer’s bottle. He said that he last used this remedy in August 2010. He was now aware of the fact that “Scourban” contained a prohibited substance, namely “Scopolamine”. He said that during August and September 2010 that he scratched dogs from racing because he had been using “Scourban” because he was aware at that time that it contained a prohibited substance. Mr Johnston told us that he had asked his veterinary surgeon about the stand-down period. He also told the hearing that he did not have a locked cupboard for his animal remedies.

PENALTY SUBMISSIONS - RACING INTEGRITY UNIT:
The Defendant has not previously appeared before a Judicial Committee for any serious breach of the Rules. The charge which he faces is one of negligence as there is no confirmed evidence of any deliberate administration by him.

Mr Carmichael also submitted that this matter is commonly known as the “Drug Negligence” Rule. He said that very few people admit or provide reasons as to how prohibited substances got into an animal’s system, and said that the defence that
Mr Johnston was advancing is the “perennial defence”.

Mr Carmichael submitted that the prohibited substance was in the dog’s system and that in his submission there must have been an opportunity created by Mr Johnston for that to have occurred.

Mr Carmichael said that there were no previous cases involving Scopolamine where dogs had been fed contaminated meat.

In summary, Mr Johnston said that he had difficulty with the explanations given by Mr Johnston and submitted that a fine should be imposed. He said that the range of fines from previous cases was between $1,500 and $3,000.

THE DEFENDANT’S PENALTY SUBMISSIONS:
Mr Johnston said that he had not appeared before a Judicial Panel before, and felt that a fine in the region of $1,500 would be harsh. He maintained that he still had no idea as to how the drug got into the dog’s system.
He conceded that there was an old bottle of Scopolamine in his laundry, but that the amount of drug in the bottle that he had could not have been administered because it had dried out. He said that his veterinary surgeon had told him that “Scourban” is transferrable through meat, but did not produce any written evidence to confirm that submission.

Mr Johnston told us that he has seven greyhounds in his kennels. He also has pups. He said that the dog in question had won on two previous occasions to this incident, and did not return a positive swab. He also advanced the proposition that perhaps his dog had been “knobbled”.

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DECISION:
The essence of the case is that the greyhound, “Imperative”, was found on analysis of a urine sample, to have the prohibited substance “Scopolamine” in its system. The offence is one of strict liability, and it is noted that the Rules do not provide for a reasonable precautions defence.

However, Mr Johnston has admitted the charge which is therefore deemed to be proved.

Mr Johnston has disavowed all knowledge as to how the substance was administered to his greyhound. He has suggested that it came from nightshade plants growing on his property, or perhaps from contaminated meat. He suggested that perhaps the dog had been “knobbled” or, that is to say, interfered with in some way by an unknown third party.

We find such pleas as somewhat disingenuous. If any of these explanations were of substance, then Mr Johnston would have had more convincing evidence available to this hearing. Mr Johnston knows full well that the animal remedy “Scourban” contains the prohibited substance “Scopolamine”, and we do not find it very convincing that his discovery of a disused bottle of “Scourban” the day after he was interviewed by the Racing Inspector, to be of any assistance to him. We note that
Mr Johnston had been using the remedy “Scourban” in August or September 2010.

Thus, we are satisfied that Mr Johnston, in all of the circumstances, was guilty of drug negligence as that term is commonly understood in the Rules of Greyhound, Thoroughbred and Harness Racing.

In so far as penalty is concerned, in terms of consistency with other penalties imposed in similar cases of recent times, our starting point is a fine of $1,500 after taking into account the mitigating factors which are an admission of the charge and Mr Johnston’s previous good record. We have also taken into account Mr Johnston’s financial situation which he describes as “not good”. Apart from training greyhounds he is currently unemployed. The aggravating factor, however, is the lack of acceptance of a simple fact situation, and as a consequence his unwillingness, seemingly, to assist the Racing Integrity Unit in its enquiries. That has made the Racing Investigator’s task that much more difficult.

Therefore, it is appropriate for that aggravating feature to add a premium to our starting point of $200 making the fine $1,700.

COSTS
Costs are not sought by the Racing Integrity Unit.

However, there will be an order for costs in favour of the Judicial Control Authority for a half day hearing, namely $350.

We make the following further orders:

1. “Imperative” is disqualified from Race 2.

The amended placings are, therefore:
First Dog No. 2 “Flag Waver”
Second Dog No. 4 “Chelsea’s Beauty”
Third Dog No. 6 “Crash Gybe”

2. The stake of $272.50 is to be refunded.

KG Hales              T Utikere
CHAIRMAN           Committee Member

hearing_type: Non-race day

Rules: 87.1 and 87.3

Informant: TR Carmichael - RIU

JockeysandTrainer:

Otherperson:

PersonPresent:

Respondent: BA Johnston - Licensed Owner/Trainer

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