Non Raceday Inquiry – NZTR v DJC Nunn 28 May 2009 decision

hearingid: 26c03d18c3d4130485e6072e08ab31a4

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hearing_racingtype: thoroughbred-racing

startdate: 01/01/2001

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hearing_title: Non Raceday Inquiry - NZTR v DJC Nunn 28 May 2009 decision

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BEFORE A JUDICIAL COMMITTEE AT ELLERSLIE

IN THE MATTER of the New Zealand Rules of Racing

BETWEEN         NEW ZEALAND THOROUGHBRED RACING  Informant

AND                    DENNIS JOHN CHARLES NUNN Owner Trainer   Defendant

                            At Ellerslie Racecourse on Thursday 28th May 2009

Present:             Mr J McKenzie (Chief Racecourse Inspector for NZTR)

                            Mr BF McKenzie (Racecourse Inspector)

Also Present:    Mr R Scott (Racecourse Inspector)

Judicial:             RM Seabrook (Chairman) 
                            JM Phelan

The charges are:

1) That the horse ITSABITADAAD was brought to the Racecourse at Te Rapa for the purpose of engaging in the Dowz Birthday 1600 race at the meeting of the Waikato Racing Club on Wednesday 29 April 2009, (in which said race such horse started) and that such horse had had administered to it a prohibited substance, namely Caffeine and its metabolites, capable of affecting its speed, stamina, courage or conduct in breach of Rule 1004(2) and that you were the trainer if the horse and that by virtue thereof you are liable to the penalty or penalties which may be Imposed upon you pursuant to Rule 1004 (3) of the New Zealand Rules of Racing unless you satisfy the Committee that you had taken all proper precautions to prevent the administration of such prohibited substance.

And further

2) That at about 4.30 am on Wednesday 29th April 2009, being the trainer of the horse ITSABITADAAD which was entered for the Dowz Birthday 1600 race at  the meeting of the Waikato Racing Club on that day, you did administer to the said horse by way of injection into its throat a substance namely the oral paste ‘Boost’ and that such administration occurred prior to the horse racing and was not carried out under the direction of a Stipendiary Steward or Racecourse Inspector and that by virtue thereof you did commit a breach of Rule 1004(2C) and that you are liable to the penalty or penalties which may be imposed upon you pursuant to Rule 1004 (3) of the New Zealand Rules of Racing.

BEFORE A JUDICIAL COMMITTEE AT ELLERSLIE

IN THE MATTER of the New Zealand Rules of Racing

BETWEEN          NEW ZEALAND THOROUGHBRED RACING  Informant

AND                     DENNIS JOHN CHARLES NUNN Owner Trainer   Defendant

                             At Ellerslie Racecourse on Thursday 28th May 2009

Present:              Mr J McKenzie (Chief Racecourse Inspector for NZTR)

                             Mr BF McKenzie (Racecourse Inspector)

Also Present:     Mr R Scott (Racecourse Inspector)

Judicial:              RM Seabrook (Chairman) 
                             JM Phelan

The charges are:

1) That the horse ITSABITADAAD was brought to the Racecourse at Te Rapa for the purpose of engaging in the Dowz Birthday 1600 race at the meeting of the Waikato Racing Club on Wednesday 29 April 2009, (in which said race such horse started) and that such horse had had administered to it a prohibited substance, namely Caffeine and its metabolites, capable of affecting its speed, stamina, courage or conduct in breach of Rule 1004(2) and that you were the trainer if the horse and that by virtue thereof you are liable to the penalty or penalties which may be Imposed upon you pursuant to Rule 1004 (3) of the New Zealand Rules of Racing unless you satisfy the Committee that you had taken all proper precautions to prevent the administration of such prohibited substance.

And further

2) That at about 4.30 am on Wednesday 29th April 2009, being the trainer of the horse ITSABITADAAD which was entered for the Dowz Birthday 1600 race at  the meeting of the Waikato Racing Club on that day, you did administer to the said horse by way of injection into its throat a substance namely the oral paste ‘Boost’ and that such administration occurred prior to the horse racing and was not carried out under the direction of a Stipendiary Steward or Racecourse Inspector and that by virtue thereof you did commit a breach of Rule 1004(2C) and that you are liable to the penalty or penalties which may be imposed upon you pursuant to Rule 1004 (3) of the New Zealand Rules of Racing.

REQUEST FOR RULING

That the horse ITSABITADAAD was brought to the Racecourse at Te Rapa and started in the Dowz Birthday 1600 race at the meeting of the Waikato Racing Club on Wednesday 29th April 2009 and that such horse had had administered to it a prohibited substance, namely caffeine and its metabolites capable of affecting its speed, stamina, courage or conduct and that by virtue thereof and of the provisions  of Rule 1004 (1) of the New Zealand Rules of racing the said horse shall be disqualified from the said race.

Mr Nunn attended the hearing and admitted this breach of rules.  Accordingly we find the charge to be proved.  Mr J W McKenzie provided an authority to prosecute from the Chief Executive of NZTR.  Mr McKenzie also presented and read a summary of facts relating to this charge.

SUMMARY OF FACTS

On 29 April 2009 The Waikato Racing club concluded a race meeting at the Te Rapa Racecourse.  Race 10 for that day was a maiden race known as the Dowz Birthday 1600.  NZTR records show this race was won by the horse ITSABITADAAD.  The horse was subjected to a routine swab post race.  By certificate of analysis date 12 May 2009 NZRLS confirmed the finding of Caffeine and its metabolites in the sample.  Caffeine is a prohibited substance pursuant to the NZ Rules of Racing.

The Defendant Mr Nunn was seen at his stable by the Racecourse Inspector on 14th May 2009.  He was totally co-operative and frank when told of the positive finding.  He admitted to the Inspectors he had given the horse ITSABITADAAD some 5 days before the race a quantity of ‘Techtonic’ (20 mls) in the feed of the horse to help with its eating.  Mr Nunn said he had never read the label on the container.  In fact the manufacturer advises in printing on the container label the withholding time for this substance is 21 days.  The Defendant Mr Nunn also informed the Inspectors he had administered, by way of oral injection, a substance known as ‘Boost’.  He said he gave this to ITSABITADAAD at about 4.30 am on the morning of the race at Te Rapa.  Whilst this substance is not normally prohibited and has no withholding time, it is a breach of the rules to administer any substance by this method on the day of a horse racing.

However Mr McKenzie stated that the words written on the tube of ‘Boost’ contradicted the terms of the current NZ Rules of Racing.  The words state the 1 tube can be given 4 – 8 hours prior to racing.

Mr Nunn, when asked did not dispute any of the matters raised.  He said he had been using ‘Techtonic’ for many years and was unaware it contained caffeine.  He understood it was a tonic and he gave it to his horses to help them in their eating.  He admitted he did not read the withholding time as written on the label.  He said he gave ITSABITIDAAD 20 mls of ‘Techtonic’ on 25 April 2009 in its evening meal. 

In relation to the second charge he said that after getting advice from a Vet, he gave ITSABITADAAD 80 mls of ‘Boost’ down its throat at about 4.30 am on the morning of the race.

Mr Nunn admitted he had not kept up to date with the rules and did not realize he should not have given the horse any treatment on the day of the race and prior to the race.

SUBMISSIONS ON PENALTY

Mr J W McKenzie presented and read penalty submissions.  He began by acknowledging that Mr Nunn had been totally co-operative in every aspect including his plea of guilty.  However regardless of the fact that this charge resulted out of apparent ignorance it is still seen by many as a form of cheating.  The detection only occurs after the event in this case.  The defendant failed to read the instructions on the product that gave rise to the positive swab, yet on the other hand read the instruction on the vitamin Oral-Ject ‘Boost’ which also brought him into a breach of the rules.  The instructions re the ‘Techtonic’ clearly state a withholding time of 21 days.  The Defendant administered the substance within 4 -5 days of racing.  The Oral-Ject ‘Boost’ states as best used only a matter of hours before a race time.

The Rules of Racing 1004(2C) prohibit the administration of any such substance at any time after 12.00 am on Race Day.  NZTR do not regard this as an administration of intent.  It is however gross negligence.

Mr McKenzie submitted there is a need for a deterrent aspect to other trainers who fail to observe and maintain due diligence of the requirement of the rules.

He said this case had aspects of gross negligence.  A starting point for any penalty warranted a fine considerably higher than a penalty for a trainer who might solely be vicariously responsible.  He submitted a starting point in this case, for the breach of Rule 1004(2) would be a penalty of $7500 minimum.

However he asked the Committee to have regard to the following:

• Mr Nunn was completely ignorant of his grossly negligent feeding regime.
• His reaction to the news from the Inspectors was one of genuine remorse
• His total co-operation with the investigation and his admission of total guilt, not only in his actions but in this plea.
• His departure away from the training scene for 13 years left him short on knowledge.
• The fact that while he is not entitled to lenience because he is also the Part Owner, nobody outside his family had been affected by the aftermath, the loss of stake and the subsequent penalty imposed.

Accordingly NZTR submitted that a fine consistent with recent cases should be imposed.  NZTR sought a penalty of $5000 for a breach of Rule 1004 (2C).

Regarding the second charge under the Rule 1004 (2C) Mr McKenzie said this was a relatively new rule to stop trainers giving any substances on a Race Day, many of which were regarded as innocuous, but still capable of being a prohibited substance.  While submitting a $750 fine was appropriate in this case Mr McKenzie said he would have asked for considerably more if the writing on the ‘Boost’ capsule had been in accordance with NZTR Rules.  However while this was some mitigation in Mr Nunn’s favour it was his obligation to be conversant with NZTR Rules and adhere to them.

Accordingly NZTR submitted that a fine of $750 be imposed on Mr Nunn for a breach of Rule 1004(2C).  In addition costs of $300 were sought by NZTR.

PENALTY

The Committee carefully considered all evidence and submissions as presented.  While satisfied there was no intent on Mr Nunn’s part to gain an advantage by the administration of Caffeine and Metabolites we cannot escape the fact that this was an act of gross negligence.  The requirements of Rules 1004(2) and 1004 (2C) are very clear and it is Mr Nunn’s obligation as a registered Owner/Trainer to be fully conversant with these rules and adhere to them.

The Committee concurs with the mitigating factors outlined by Mr McKenzie in particular Mr Nunn’s guilty plea and his full co-operation with the Race Course Inspectors.  However the integrity of racing is paramount and any penalty must contain a deterrent element.  The sentence must be a realistic punishment but not excessively retributive. 

Taking all the above factors into account and to maintain consistency and fairness this Committee imposes the following penalties:

Under the first charge of Rule 1004(2) we impose a fine of $5000.

On the second charge, under Rule 1004(2C), we impose a fine of $750.  In addition we order costs of $300 to NZTR and $500 to the JCA.

Addressing the request for a ruling under Rule 1004(1) we rule that the horse ITSABITAAD be disqualified from the Dowz Birthday 1600 at Te Rapa on 29 April 2009.

In addition any acting pursuant to Rule 1109 we order the refund of all stakes paid to the connections of ITSABITADAAD be refunded to NZTR and redistributed accordingly.

Richard Seabrook
Chairman

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hearing_type: Old Hearing

Rules: 1004.2, 1004.3, 1004.2C, 1004.1

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