Non Raceday Inquiry – NZTR V DW Stackhouse 9 April 2011 – Decision

hearingid: cd2792d5883681c28289b90b2618f2ff

informantnumber: 61913

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decisiondate: 14/04/2011

hearing_title: Non Raceday Inquiry - NZTR V DW Stackhouse 9 April 2011 - Decision

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BEFORE A JUDICIAL COMMITTEE
HELD AT CHRISTCHURCH
IN THE MATTER of New Zealand Thoroughbred Racing Rules of Racing
AND
IN THE MATTER of Information No.61913
BETWEEN R D SCOTT, Racing Investigator for Racing Integrity Unit
Informant
AND DANIEL WILLIAM ROSS STACKHOUSE, Licensed Apprentice Jockey (Class B) and Jumps Jockey (Class D)
Defendant

Date of Hearing: 9 April 2011
Venue: Riccarton Park, Christchurch
Judicial Committee: R G McKenzie (Chairman), J M Phelan (Committee Member)
Present: Mr R D Scott, the Informant, Mr D W R Stackhouse, the Defendant, Miss P M Gerard, Licensed Trainer (Class A), Mr M R Davidson, Registrar
Date of Decision:

RESERVED DECISION OF JUDICIAL COMMITTEE

1.0 The Charge

1.1 Mr Stackhouse was charged with a breach of Rule 656 (3) of the New Zealand Thoroughbred Rules of Racing as follows:
“THAT on Wednesday 16 February 2011 at the Riccarton Race Course, that [he] , being a rider who having been requested by a Racing Investigator to supply a sample of his urine which was found upon analysis, to contain the diuretic drug Frusemide, committed a breach of Rule 656 (3) of the New Zealand Rules of Racing AND THAT [he is] therefore liable to the penalty or penalties which may be imposed upon [him] pursuant to the provisions of Rule 803 (1) of the said Rules.”
1.2 Mr Stackhouse was present at the hearing of the information. He was assisted by his employer, Miss P M Gerard, Licensed Trainer (Class A). The charge and Rule 656 (3) were read to Mr Stackhouse who then indicated that he understood them and that he admitted the breach. The charge was found proved accordingly.
1.3 Mr Scott produced a copy of a letter signed by Mr Greg Purcell, Chief Executive of New Zealand Thoroughbred Racing, pursuant to Rule 903 (2) (d), giving permission to the filing of the information.

2.0 The Rule

2.1 Rule 656 provides as follows:
(3) A Rider who, having been requested by a Stipendiary Steward or Investigator to supply a sample of his blood, breath, urine, saliva or sweat (or more than one thereof) in accordance with this Rule must not have blood, breath, urine, saliva or sweat (whichever is the subject of the applicable sample) which is found upon analysis to contain any controlled drug as defined in the Misuse of Drugs Act 1975 or other illicit substance or diuretic and/or its metabolites, artifacts or isomers.

3.0 Summary of Facts

3.1 Mr Scott presented the following Summary of Facts:
(1) Mr Stackhouse currently holds Class B (Apprentice Jockey) and Class D (Jumps Rider) licences issued by New Zealand Thoroughbred Racing.
(2) On Wednesday, 16 February 2011, Mr Stackhouse attended the Canterbury Racing meeting at the Riccarton Racecourse.
(3) Racing Investigator, Mr R D Scott, served a written notice on all jockeys riding that day advising that they were required under the Rules of Racing to provide a urine sample for analysis in order to detect, or otherwise, the presence of any controlled drug as defined in the Misuse of Drugs Act 1975, or other illicit substances or diuretic and/or its metabolites.
(4) Mr Stackhouse had his notice served on him at 10.11 am.
(5) At 4.55 pm Mr Stackhouse complied with this requirement and provided the sample to Mrs S Ruane, an enrolled nurse, and in such capacity the person authorised to supervise the collection procedure.
(6) This sample was given the identification number 305709.
(7) On 22 February 2011, the Institute of Environmental Science and Research (ESR) advised NZTR by memo that Mr Stackhouse’s sample had tested positive for the diuretic drug Frusemide.
(8) Mr Stackhouse was advised of the positive test on Monday 28 February 2011 and was later served with a copy of the ESR report. The delay in notification was due to the earthquake of 22 February.
(9) When spoken to, Mr Stackhouse admitted to taking the Frusemide prior to the race meeting on 16 February. He also advised that he had taken a herbal tablet called “Optislim”. A sample of “Optislim” was forwarded to ESR for analysis and Frusemide was not detected.
(10) Throughout the course of the investigation, Mr Stackhouse was totally cooperative and provided open and honest answers at all times.

4.0 Penalty Submissions of Informant

4.1 Drug testing of riders is an important aspect of the New Zealand thoroughbred racing industry. It is carried out for the reasons of maintaining the integrity of the industry and equally important for reasons of maintaining health and safety in the workplace.
4.2 The Board of NZTR has an illicit drugs free policy in terms of all riders whether they are riding in races, trials or in track work. Racing clubs which operate training facilities at their racecourses are also mindful. They too have a responsibility to provide a safe working environment.
4.3 In addition to the integrity and the workplace safety aspects, of importance also is the fact that trainers and riders have a responsibility to the owners of valuable thoroughbred horses to ensure the horse itself is not placed in danger by having, on its back, a rider who has in his system any drug as defined by the Rules of Racing.
4.4 The Rules were amended to include the diuretic drug Frusemide and became part of the New Zealand Rules of Racing on 1 January 2007.
4.5 The Rule change came about for reasons of health and safety and was implemented after consultation with the Jockeys Association.
4.6 Mr Stackhouse was interviewed by Racing Investigator, Mr R D Scott, on 28 February 2011. He freely admitted having used a diuretic tablet prior to the Riccarton meeting. He admitted using the diuretic to assist him to ride at the correct weight.
4.7 The drug had earlier been prescribed to him. He stated that he had previously taken a herbal tablet which has been analysed and found to not contain Frusemide.
4.8 It is submitted that the breach does not include any illicit drugs. Mr Stackhouse freely admitted this breach and he cooperated during the inquiry. A fine would be an appropriate penalty.
4.9 Mr Scott submitted, on behalf of NZTR, that the appropriate fine on this occasion would be $500-750, this being what NZTR considers appropriate for an apprentice who offends for the first time with use of a diuretic.
4.10 Mr Scott presented a schedule of penalties for previous Frusemide breaches.

5.0 Submissions by the Defendant

5.1 Mr Stackhouse referred to the schedule of previous penalties presented by Mr Scott and submitted that it showed that apprentice jockeys who had breached the Rule for Frusemide use had been fined $500. He pointed out this was his first breach of the Rule. He confirmed that he had problems with his weight.
5.2 Miss Gerard stated that Mr Stackhouse was disappointed in himself that he had breached the Rule. He is a very busy apprentice rider. He had been away 3-4 days that week. Because he is away so often, he is not always able to get to a sauna or use a spa. Travel disruptions often affect his ability to plan, which makes it difficult for him when it comes to wasting. He is aware of the need to present himself at the correct weight on raceday. Mr Stackhouse has learned from his mistake, Miss Gerard said.
5.3 When asked by the Committee, Mr Stackhouse said that he taken the diuretic on the day prior to the race meeting. 

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6.0 The Penalty Rule

6.1 The relevant penalty provision is contained in Rule 803 which provides as follows:
(1) A person who, or body or other entity which, commits or is deemed to have committed a breach of these Rules or any of them for which a penalty is not provided elsewhere in these Rules shall be liable to:
(a) be disqualified for a period not exceeding 12 months; and/or
(b) be suspended from holding or obtaining a Licence for a period not exceeding 12 months. If a Licence is renewed during a term of suspension, then the suspension shall continue to apply to the renewed Licence; and/or
(c) a fine not exceeding $20,000.

7.0 Reasons for Penalty

7.1 Mr Scott, in his penalty submissions, explained that the Rules were amended as from 1 January 2007 to prohibit use of diuretics, of which Frusemide is one. He further explained the reason for the amendment to the Rules – “maintaining the integrity of the industry and equally important for reasons of maintaining health and safety in the workplace”.
7.2 The “water pill” had previously been used by jockeys as a weight loss aid by removing retained fluid. While it is effective to a point in achieving this, it does have adverse side effects which include dehydration and electrolyte imbalance, which may result, among other things, in weakness, lethargy, drowsiness and low blood pressure. It is self-evident that a jockey should not be riding while suffering from any of those side effects. To do so places himself, his fellow riders and horses at risk and the Rule is designed to avoid this. The Rule exists for a very good reason. For that reason, jockeys (as well as track riders) must be made aware that use of any diuretic will not be tolerated.
7.3 In determining penalty in this case, the Committee took into account Mr Stackhouse’s very frank admission of the breach and his cooperation with Mr Scott during the course of the investigation. The Committee also took into account Mr Stackhouse’s previous good record. These are mitigating factors for which Mr Stackhouse is entitled to receive credit. We also took into account that Mr Stackhouse is an apprentice jockey who has, we understand, been riding for less than 2 years.
7.4 The Committee recognises that Mr Stackhouse is a very promising apprentice jockey. The Committee is aware that, in the 2009/2010 season, he rode 34 winners and, in the current season, has ridden in excess of 60 winners to date. Mr Stackhouse told the Committee that he has a weight problem, which is a pity for such an obviously talented rider. However, the use of diuretics is not the way to overcome a weight problem and this point must be strongly made, not only to Mr Stackhouse, but also to any other jockey who may be tempted to aid his weight problems by the use of diuretics.
7.5 The Committee notes that the first charge under the new Rule was the case of T in early 2007. In that case, it was submitted by the Informant on behalf of NZTR that a fine of $1,000 would be an appropriate penalty but that any penalty imposed would not be regarded as a benchmark (and the Committee agreed) and, in the future, NZTR may seek far more severe penalties. In the event, the Defendant was fined the sum of $1,000.
7.6 Other fines, drawn to our attention by Mr Scott, have ranged between $500 and $1,000. The most recent case of H, which was not mentioned by Mr Scott, involving Frusemide was in December 2010. In that case, the Defendant was a first offender who had cooperated fully and had admitted the breach. The fine in that case was $1,000. The facts of the present case are similar in the Committee’s view.
7.7 Taking all matters into account, and having regard to the submission as to penalty by Mr Scott, the Committee has decided that an appropriate penalty is a fine of $650. This was arrived at by taking a starting point of $1,000 and then giving Mr Stackhouse a discount, taking into account the mitigating factors referred to in Paragraph 7.3, including Mr Stackhouse’s status as an apprentice jockey.
7.8 Mr Stackhouse is fined the sum of $650.

8.0 Costs

8.1 No costs were sought by NZTR. However, the Judicial Control Authority has incurred hearing costs in respect of a non-raceday hearing.
8.2 Mr Stackhouse is ordered to pay costs to the JCA in the sum of $225.00.

R G McKenzie      J M Phelan
(Chairman)          (Committee Member)

hearing_type: Non-race day

Rules: 656(3)

Informant: Mr RD Scott - Racing Inspector

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PersonPresent: Miss PM Gerard - Licensed Trainer (Class A), Mr MR Davidson - Registrar

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